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
It is clear that the leaders of the opposition in 1215 did not consider
the constitutional powers of a national Parliament the best safeguard of
the rights and liberties theoretically guaranteed by the Charter. Only
one practical or constitutional expedient seems to have occurred to
them, namely, that embodied in chapter 61. Twenty-five barons were to be
appointed by their fellow-barons to act as Executors of the Charter; but
their functions were apparently only to be called into play in the event
of King John or his officers breaking any of the provisions of the
Charter. If this occurred, intimation might be made to a smaller
sub-committee of four, chosen from the twenty-five, and these four would
straightway ask the King to redress the grievance complained of. If this
was not done within forty days, John granted to the Committee of
twenty-five, assisted by “the whole community of the realm,” the right
practically to make war upon him. He conferred on them in the most
explicit terms full power “to distrain and distress us in all possible
ways, by seizing our castles, lands, possessions, and in any other way
they can, until the grievances are redressed according to their
pleasure.”
Such a provision can hardly be described as constitutional, since it is
rather the negation of all constitutional principles—nothing more nor
less than legalized rebellion. Provision is made not for the orderly
conduct of government, but rather to provide an organization for making
war upon the king in certain abnormal circumstances which are defined.
Such a scheme was clearly impracticable, and the fact that it
recommended itself as a possible expedient to the barons speaks
eloquently of their complete ignorance of the most elementary principles
of the science of government. Civil war levied on a warrant granted
beforehand by the king is treated as a constitutional expedient for the
redress of particular grievances as they arise.[225]
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Footnote 225:
Details of this scheme, and a fuller discussion of its defects will be
found _infra_ under chapter 61.
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The same inability to devise practical remedies for specific evils may
be traced in several minor clauses of the Charter.[226] When John
promised in chapter 16 that no one should be compelled to do greater
service than had been formerly due from any holding, no attempt was
made, in case of dispute, to provide constitutional machinery to define
what such service actually was; while chapter 45, providing that only
men who knew the law, and meant to keep it, should be made justiciars,
sheriffs or bailiffs, laid down no criterion of fitness, and contained
no suggestion of any way in which so laudable an ambition might be
realized.
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Footnote 226:
Public-domain text, read in full here on John Shaqi.
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