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
This is the chief defect, but not the only one. Many minor faults and
omissions may be traced to a similar root. All the great constitutional
principles are in reality conspicuously absent. The importance of a
council or embryo parliament, constituted on truly national lines (of
which some glimmerings can be traced in 1213); the right of such a body
to influence the King’s policy in normal times as well as in times of
crisis; the doctrine of ministerial responsibility (already dimly
foreshadowed in the reign of Richard); the need of distinguishing the
various functions of government, legislative, judicial, and
administrative—all these cardinal principles are completely ignored by
the Charter. Not one of its many clauses affords evidence that the
statesmen of the day had any conception, even of a rudimentary nature,
of the principles of political science.
Only five of the sixty-three chapters can be said to bear directly on
the subject of constitutional (as opposed to purely legal) machinery,
and most of these do so only incidentally, namely, chapters 14, 21, 39,
61, and 62.
The _Commune Concilium_ is indeed mentioned; and its composition and
mode of summons are clearly defined in chapter 14. But it must be
remembered that this chapter appears as a mere afterthought,—as an
appendix to chapter 12; its incidental nature is proved by the fact that
it has no counterpart in the Articles of the Barons. The rebel magnates
were vitally interested in the narrow question of scutage, not in the
wide possibilities involved in the existence of a national council. The
_Commune Concilium_ was dragged into the Charter, not on its own merits,
but merely as a convenient method of preventing the arbitrary increase
of feudal exactions. That this was so, is further proved by the fact
that both parties were content to omit all mention of the Council from
the re-issue of 1217, when an alternative way of checking the arbitrary
increase of scutage had been devised.
Public-domain text, read in full here on John Shaqi.
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