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
_Const. Hist._, I. 571. Cf. _Ibid._, I. 583, “The act of the united
nation, the church, the barons, and the commons, for the first time
thoroughly at one.” Who were “the commons” in 1215? The question is a
difficult one to answer. Cf. also Mr. Prothero, _Simon de Montfort_,
18, “The spirit of nationality of which the chief portion of Magna
Carta was at once the product and the seal.”
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A united English nation, whether conscious or unconscious of its
identity, cannot be said to have existed in 1215, except under several
qualifications. The conception of “nationality,” in the modern sense, is
of comparatively recent origin, and requires that the lower as well as
the higher classes should be comprehended within its bounds. Further,
the coalition which wrested the Charter from the royal tyrant was
essentially of a temporary nature, and quickly fell to pieces again.
Even while the alliance continued, the interests of the various classes,
as has been already shown, were far from identical. Political rights
were treated as the monopoly of the few (as is evidenced by the
retrograde provisions of chapter 14 for the composition of the _Commune
concilium_); and civil rights were far from universally distributed. The
leaders of the “national” movement certainly gave no _political_ rights
to the despised villeins, who comprised more than three quarters of the
entire population of England; while their _civil_ rights were almost
completely ignored in the provisions of the Charter.
Magna Carta undoubtedly marked one step, an important step, in the
process by which England became a nation; but that step was neither the
first nor yet the final one.
V. Magna Carta. Its defects.
The great weakness of the Charter lay in this, that no adequate sanction
was attached to it, in order to ensure the enforcement of its
provisions. The only expedient suggested for compelling the King to keep
his promises was of a nature at once clumsy and revolutionary, and
entirely worthless considered as a working scheme of government. Indeed,
it was devised not so much to prevent the King from breaking faith as to
punish him when he had done so. In other words, no proper constitutional
machinery was invented to turn the legal theories of Magna Carta into
practical realities. In its absence, we find what has sometimes been
described as “a right of legalized rebellion” conferred on an executive
committee of twenty-five of the King’s enemies.
Public-domain text, read in full here on John Shaqi.
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