Magna Carta: A Commentary on the Great Charter of King John: With an Historical IntroductionMcKechnie, William Sharp
History
Magna Carta: A Commentary on the Great Charter of King John: With an Historical Introduction
McKechnie, William Sharp
Constitutional history -- England -- Sources; Law -- England -- History; Law -- England -- Sources; Magna Carta
The numerous factors which contributed towards the worth of Magna Carta
may be distinguished as of two kinds, intrinsic and extrinsic. (1) Its
intrinsic value depends on the nature of its own provisions. The reforms
demanded by the barons and granted by this Charter were just and
moderate. The avoidance of all extremes tended towards a permanent
settlement, since moderation both gains and keeps adherents. Its aims
were practical as well as moderate; the language in which they were
framed, clear and straightforward. A high authority has described the
Charter as “an intensely practical document.”[220] This _practicality_
is an essentially English characteristic, and strikes the key-note of
almost every great movement for reform which has held a permanent place
in English history. Closely connected with this feature is another—the
essentially _legal_ nature of the whole. As Magna Carta was rarely
absent from the minds of subsequent opponents of despotism, a practical
and legal direction was thus given to the efforts of Englishmen in many
ages.[221] Therein lies another English characteristic. While democratic
enthusiasts in France and America have often sought to found their
rights and liberties on a lofty but unstable basis of philosophical
theory embodied in Declarations of Rights; Englishmen have occupied
lower but surer ground, aiming at practical remedies for actual wrongs,
rather than enunciating theoretical platitudes with no realities to
correspond.
-----
Footnote 220:
Prof. F. W. Maitland, _Social England_, I., 409.
Footnote 221:
Cf. Gneist, _Const. Hist._, Chapter XVIII.: “By Magna Carta English
history irrevocably took the direction of securing constitutional
liberty by administrative law.”
-----
Another intrinsic merit of the Charter was that it made definite what
had been vague before. Definition is a valuable protection for the weak
against the strong; whereas vagueness increases the powers of the tyrant
who can interpret while he enforces the law. Misty rights were now
reduced to a tangible form, and could no longer be broken with so great
impunity. Magna Carta contained no crude innovations, and confirmed many
principles whose value was enhanced by their antiquity. King John, in
recognising parts of the old Anglo-Saxon customary law, put himself in
touch with national traditions and the past history of the nation.
Further, the nature of the provisions bears witness to the broad basis
on which the settlement was intended to be built. The Charter,
notwithstanding the prominence given to redress of feudal grievances,
redressed other grievances as well. In this, the influence of the Church
and notably of its Primate, can be traced. Some little attention was
given to the rights of the under-tenants also, and even to those of the
merchants, while the villein and the alien were not left entirely
unprotected. Thus the settlement contained in the Charter had a broad
basis in the affection of all classes.
Public-domain text, read in full here on John Shaqi.
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