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
Although this commentary, like everything written by Coke, was long
accepted as a work of great value, its method is in reality entirely
uncritical and unhistorical. The great lawyer reads into Magna Carta the
entire body of the common law of the seventeenth century of which he was
admittedly a master. He seems almost unconscious of the great changes
accomplished by the experience and vicissitudes of the four eventful
centuries which had elapsed since the Charter had been originally
granted. The various clauses of Magna Carta are thus merely occasions
for expounding the law as it stood, not at the beginning of the
thirteenth century, but in his own day. In the skilful hands of Sir
Edward, the Great Charter is made to attack the abuses of James or
Charles, rather than those of John or Henry, which its framers had in
view. In expounding the _judicium parium_, for example, he carefully
explains many minute details of procedure before the Court of the Lord
High Steward, and describes elaborately the nature of the warrants to be
issued prior to the arrest of any one by the Crown; while, in the clause
of Henry’s Charter which secures an open door to foreign merchants in
England “unless publicly prohibited,” he discovers a declaration that
Parliament shall have the sole power to issue such prohibitions,
forgetful that the regulation of trade was an exclusive prerogative of
the Crown with which Parliament had no right to interfere for many
centuries subsequent to the reign of Henry III.
(3) In 1680 Mr. Edward Cooke, barrister, published a small volume
entitled _Magna Charta made in the ninth year of King Henry III. and
confirmed by King Edward I. in the twenty-eighth year of his reign_.
This contained a translation of Henry’s Magna Carta with short
explanatory notes founded mainly on the commentary of Sir Edward Coke.
In his Preface, Mr. Cooke declared that his object was to make the Great
Charter more accessible to the public at large, since, as he said, “I am
confident, scarce one of a hundred of the common people, know what it
is.”
(4) Sir William Blackstone’s _Introduction_ to his edition of the
charters, published in 1759, as already mentioned, contains valuable
information as to the documents he edits; but he explicitly disclaims
all intention of writing a Commentary. He is careful to state “that it
is not in his present intention, nor (he fears) within the reach of his
abilities, to give a full and explanatory comment on the matters
contained in these charters.”[316]
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Footnote 316:
Introduction, p. ii.
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(5) The Hon. Daines Barrington published in 1766 his _Observations upon
the Statutes from Magna Charta to 21 James I._ This book contains some
notes on the Charter also founded chiefly upon Coke’s _Second
Institute_; his original contributions are not of outstanding value.
Public-domain text, read in full here on John Shaqi.
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