Magna Carta 700th Anniversary
- Topic: Law
Source: Magna Carta Commemoration Essays, edited by Henry Elliot Malden, M.A. with a Preface by the Rt. Hon. Viscount Bryce, O.M., Etc. For the Royal Historical Society, 1917.
MAGNA CARTA (1215–1915). AN ADDRESS DELIVERED ON ITS SEVENTH CENTENARY, TO THE ROYAL HISTORICAL SOCIETY AND THE MAGNA CARTA CELEBRATION COMMITTEE.
Seven hundred years ago, at a meadow on the Thames between Staines and Windsor, known as Runnymede, a spot thereafter hallowed for all lovers of England and of freedom, King John, bending before a storm he had raised but could not lay, set the great seal of England to a Charter of Liberties. The event proved memorable in many ways, but pre-eminently because of its clear enunciation of the principle that the caprice of despots must bow to the reign of law; that the just rights of individuals, as defined by law and usage, must be upheld against the personal will of kings.
John Lackland, in acceding to the demands of his barons, under picturesque and memorable circumstances, tacitly admitted the doctrine of later constitutional law that rulers are accountable for the use they make of their sovereign powers. The royal surrender at Runnymede thus presaged the darker tragedy enacted at Whitehall, four centuries later, when the chief exponent of the Stewart doctrine of the Divine Right of Kings died a martyr to his faith. In 1215, King John, sorely against his will, was forced to take the first painful step on that road of constitutional progress that led, in the course of centuries, to the firm establishment of the modern doctrines of the Royal Impersonality, and the Responsibility of Ministers for the actions of their King.
The events that led to so notable a surrender must be briefly told. John’s father, Henry Plantagenet, a prince endowed with a double portion of the untiring vigour, the ability, and the hot blood of the race of Anjou, had prepared strong foundations for his English throne. In organizing an efficient administrative system, he had strained to the utmost every prerogative of the Crown, and reduced to the narrowest limits the franchises and privileges and independence of the great feudatories, his earls and barons. With one hand he had increased in frequency and amount every one of the galling feudal services and incidents performed by his vassals; with the other, he had curtailed their profitable franchises, their rights of holding courts and trying prisoners.
These, then, were the two chief sets of feudal grievances felt in the thirteenth century—increase of feudal burdens and curtailment of feudal privileges—that made the barons restive under even the indomitable energy of the formidable Henry. Under Henry’s hot-tempered sons, Richard and John, both forms of oppression were pressed home more ruthlessly on the tenants of the Crown; and a third set of grievances was added in the failure of both these princes, for different reasons, to continue the efficient, orderly system of Government for which the barons under Henry had paid so heavy a price; and in the employment of a class of unscrupulous foreign adventurers who were placed as officers of the royal household and as sheriffs or bailiffs in every county of the land.
Every feudal service and incident was made more galling by the stringent methods of enforcement John adopted. Scutages, in particular, or money paid in commutation of actual military service in the field, increased in frequency and in amount, and became more burdensome from the rigorous manner of their exaction. Every rule of the unwritten but well-recognized feudal law was broken by John and his horde of unbridled mercenaries, such as Engelard of Cigogne, and Geoffrey of Martigny and their associates branded by name in the fiftieth chapter of Magna Carta. Cruel private wrongs, inflicted by John as a man, added to the growing flame of resentment kindled by his extortions, lawlessness, and inefficiency as a ruler.
By 1213, the barons, seething with discontent, only waited an opportunity to demand redress, with weapons in their hands. Direction and point and unity of action were given to their endeavours when Archbishop Stephen Langton, a name ever to be honoured by the heirs of English liberty, produced a copy of the Coronation Charter, granted in the year 1100 by John’s great-grandfather, Henry I, as a model from which they might begin, at least, to formulate their claims for reform of abuses.
Only a fit occasion was needed for the rebellion to break forth; and that occasion came in the autumn of 1214, when John set sail from France, vanquished and humiliated by the complete failure of his grandiose schemes for winning back from Philip Augustus the lost French provinces of the Angevin inheritance, by means of a grand alliance, with the Emperor as its central figure. Returning, discomfited, on 15 October, 1214, John found himself confronted with a domestic crisis unique in English history. The northern barons took the lead in demanding redress. Their cup of wrath, that had long been filling, overflowed when a new scutage, at the unprecedently high rate of three shillings for each knight’s fee, was demanded.
Roger of Wendover narrates how, after a futile conference with John, on 4 November, the magnates met at Bury St. Edmunds “as if for prayers; but there was something else in the matter, for after they had held much secret discourse, there was brought forth in their midst the Charter of King Henry I, which the same barons had received in London from Archbishop Stephen of Canterbury”. After binding themselves by a solemn oath to take united action against the King, the barons separated to prepare for the resort to arms, the muster being fixed for Christmas. The covenanters kept their tryst; a deputation from the insurgents met John in London at the Temple on 6 January, 1215; and a truce was patched up till Easter.
In April, the northern barons again met in arms and marched southward to Brackley. They were met there by emissaries from the King to inquire as to their demands; who took back with them to John a certain schedule—the rude draft that was afterwards expanded into the baronial manifesto that is to-day exhibited to the public in the British Museum in the same case with Magna Carta, commonly known as the “Articles of the Barons,” but describing itself more fully and accurately as “Capitula quæ barones petunt et dominus rex concedit”.
John’s consent, however, was not to be easily obtained. When the embassy bore back these demands to Wiltshire, where the King then was, John, livid with fury, declared, with his favourite blasphemous oath, that he would never grant them liberties that would make himself a slave; asking sarcastically, “Why do not the barons, with these unjust exactions, demand my Kingdom?”
On 5 May, the barons, having chosen as their leader, Robert Fitzwalter, acclaimed by them as “Marshal of the Army of God and Holy Church,” performed the solemn feudal ceremony of diffidatio, or renunciation of their fealty and homage, a formality indispensable before vassals could, without infamy, wage war upon their feudal overlord. Absolved from their allegiance at Wallingford by a Canon of Durham, they marched on London, on the attitude of which all eyes now turned with solicitude. When the great city opened her gates to the insurgents, setting an example to be immediately followed by other towns, she practically made the attainment of the Great Charter secure. The Mayor of London thus takes an honoured place beside the Archbishop of Canterbury among the band of patriots to whose initiative England owes her Charter of Liberties. John, deserted on all sides, and with an Exchequer too empty for the effective employment of mercenary armies, agreed to a conference on the 11th day of June, a date afterwards postponed till the 15th of the same month.
It was on 15 June, then, in the year 1215, that the conference began between John, supported by a slender following of half-hearted magnates, upon the one side, and the mail-clad barons, backed by a multitude of determined and well-armed knights, upon the other. The conference lasted for eight days, from Monday of one week till Tuesday of the next. On Monday the 15th, John set seal to the demands presented to him by the barons, accepting every one of their forty-eight “Articles,” with the additional “Forma Securitatis” or executive clause, vesting in twenty-five of their number full authority to constrain King John by force to observe its provisions.
This was merely a preliminary measure. Numerous minor points had yet to be adjusted before the final settlement, which took place on Friday, 19 June, when the completed Charter, containing the substance of the Articles in an altered sequence, and with numerous additions and amendments as to points of detail, was also sealed, not merely in duplicate or triplicate but in considerable numbers, each of the great English Cathedral churches in particular receiving a certified parchment for its own. Four of these originals still exist, two of them in the British Museum, one at Lincoln, and one at Salisbury. The more famous of the Museum copies, originally deposited in Dover Castle, is now scarred by the marks of fire and in part illegible.
Throughout the conferences, as in the discussions and embassies that preceded them, Stephen Langton played the leading part, alike in giving direction and unity of aim and moderation to the counsels of the barons, in preventing complete rupture of diplomatic relations, in pressing the barons’ just claims upon the King, while remaining a faithful servant of the best interests of the Crown, and perhaps also in focussing the baronial demands, and thus accepting in some sort the responsibilities of an editor in the drafting of the actual clauses of Magna Carta. The Great Charter, whose weighty declaration “Quod Anglicana ecclesia libera sit,” has helped to build into one whole the rights of the national Church with the constitutional liberties of the nation, so that they should act as mutual buttresses, was thus merely repaying the obligation it owed to the greatest of English primates.
When John, on that Friday morning of a memorable June, set seal to the completed record of his surrender, known to contemporaries as “Carta Libertatum,” or “Carta Baronum,” or “Carta de Runnymede,” and to after-ages simply and pre-eminently, as “The Great Charter,” he had no intention of being bound by his promises longer than circumstances compelled him. The wax on which the great seal had been impressed had scarcely hardened when John appealed to Rome for leave to repudiate his consent, alleging his intention of going on Crusade. In response, Innocent III issued a Bull, in which he sternly forbade, under ban of anathema, that John should observe the Charter, or that the barons and their “accomplices” should exact its enforcement. At a Lateran Council, Innocent excommunicated all those English barons who had “persecuted” his liegeman “John, King of England, crusader and vassal of the Church of Rome, by endeavouring to take from him his Kingdom, a fief of the Holy See”.
Meanwhile, the points at issue between the English King and his feudatories had passed from the sphere of conferences, legal documents and diplomacy to the sphere of civil war. The insurgents, in their urgent need, invited the aid of Louis, son of the French King, offering him the rich guerdon of the Crown of England.
The fortunes of war still trembled in the balance, when John’s death at Newark on 19 October, 1216, and the consequent desertion of the French Prince’s cause by many of the English barons, paved the way for the healing of internal discords on a peaceful and permanent basis. William the Marshal, acting as Regent for the boy King, son and heir of John, accepted and confirmed the Great Charter in young Henry’s name, subject to certain omissions and modifications, as the basis of his future scheme of Government. Confirmations of the Charter were accordingly issued in 1216, on Henry’s accession, and in 1217, when it was arranged by treaty that Louis of France should renounce his pretensions to the English throne and depart from England; and, finally, in Henry’s third Great Charter, impressed with his own seal in 1225, Magna Carta took its definitive shape, assuming the form, word for word, in which it stands to-day as the earliest enactment on the Statute Rolls of England.
Thenceforward the almost sacred text of the Great Charter has remained fixed and stereotyped, together with that of the Forest Charter which, issued in 1225 for the first time as a separate document, formed its natural complement, the two being confirmed together in future reigns, without suffering variation in one jot or tittle.
New confirmations in 1237 and 1253 were accompanied by solemn ceremonials, repeated on several occasions during the reign of Edward I. The constitutional importance and results of the “Confirmatio Cartarum” of 1297 are known to all; and of later confirmations, Coke has counted fifteen under Edward III, eight under his grandson Richard, six under Henry IV, and one under Henry V. No further confirmation was required thereafter, for the Great Charter had by that time been woven inextricably into the fabric of the national law and the national life.
Such, in brief, were the stages in the genesis of the Great Charter of English liberties. From even the hastiest examination of these facts, one question emerges and presses for an answer. Whence did the Charter acquire the right to be described, without qualification, and without rival, as being “Great“? Why did the granting of it mark an epoch in English history, and perhaps in the history of civilization? Whence came its world-wide fame?
To begin with, it is obvious that its title to distinction cannot be exclusively derived from any one of its isolated characteristics; for its chief merits, in the eyes of different ages, have not always been the same. Gazing backwards over the crowded centuries that separate the present from the day when John surrendered to the mailed fists of the feudal host at Runnymede, is it possible to estimate the stages by which the prestige of Magna Carta has slowly been built up? The task is no easy one; but it would seem that three separate periods may be distinguished, in each of which the chief merits of the Charter have been differently rated, being found respectively in its reference to the present, the future, and the past.
The First Epoch.
The importance of the Charter for the men of 1215 did not lie in what forms its main value for the constitutional theorists of to-day. To the barons at Runnymede its merit was that it was something definite and utilitarian—a present help for present ills. To them, it was by no means what it became to the English lawyers and historians of a later age, who looked on it as something intangible and ideal, a symbol standing for the essence of the Constitution, a bulwark of English liberties.
To the barons, every clause was valued because it gave relief from a current wrong; little they thought of its influence on the development of constitutional liberty in future ages. The individual Crown tenant smarted under the steadily increasing burden of feudal exactions. His scutages were more frequent and at a higher rate. On succeeding to his fief, he had been forced to pay a relief of an amount bounded only by the limits of John’s greed. If his father’s lands had fallen into wardship, on coming of age he found them exhausted and laid waste. When he died, his widow and children would be subjected to a host of harrying and unjust exactions. In Magna Carta he sought an immediate remedy to these embittering ills. The same Crown tenant found that by the insidious extension of the use of certain royal writs, the profitable jurisdiction of his court-baron was being infringed, and his authority as a local magnate undermined. He found too that where the royal justice was beneficial, it was fitfully administered; and that the same upstart aliens, on whom John bestowed in marriage the best-dowered heiresses of the realm, were given a free hand to abuse the powers of the lucrative offices that were showered upon them. To Magna Carta the baron looked as an immediate end of all these abuses and irregularities.
No contemporary estimates of the value of Magna Carta, considered as one whole, are extant. The biographer of William the Marshal excuses himself from discussing the Charter and the Civil War on the ground that “there were too many incidents which it would not be honourable to recount”. The chief contemporary source of information is a Chronicle composed by a minstrel who visited England in the train of Robert of Béthune, one of John’s familiars, who gives a fragmentary catalogue of particular clauses rather than a general estimate.
The provisions of the Charter which this troubadour found worthy of mention were the clauses that redressed three abuses, namely the “disparagement” of heiresses, the loss of life or limb for killing deer, and the encroachment on feudal courts, and the clause appointing the baronial executive committee. The selection of these four topics as of outstanding value gives point to the view already expressed that to the men of 1215 Magna Carta was an intensely practical document, valued as an immediate remedy of present ills, with nothing whatever of the glamour of romance.
The Second Epoch.
By the Stewart era, if not earlier, a marked change had taken place. After a period of comparative neglect, the Great Charter established new claims to popular esteem when it proved its usefulness as a shelter against the stretches of prerogative by a James or Charles Stewart. It is interesting to compare the glowing rhetoric of Coke with the colder estimates contemporary with Magna Carta. Speaking of one of the Charter’s famous clauses, Sir Edward Coke breaks thus into rhapsody: “As the gold-finer will not out of the dust, threads or shreds of gold, let pass the least crumb, in respect of the excellency of the metal; so ought not the learned reader to pass any syllable of this law, in respect of the excellency of the matter”.
By that age the Charter had become, too, a powerful instrument of reform in the hands of the leaders of the parliamentary opposition to the arbitrary Government that accompanied the Stewart doctrine of the Divine Right of Kings. It became indeed the strongest link that bound together past and future in the constitutional development of English freedom. It served this purpose all the better, because of the antique flavour of its language in redressing old-world abuses of which the seventeenth century had forgotten the meaning. The very fact that many of the feudal grievances of 1215 had died a natural death and been forgotten centuries before the struggle with the Stewarts began; that much of its phraseology was no longer understood, made it possible for Coke and Hampden, Eliot and Pym and Hakewell, to give to its numerous clauses meanings that favoured their own aspirations in the cause of constitutional progress. For its seventeenth-century exponents the Charter’s great value lay thus in its bearing on the future. By discovering precedents for a desired reform in some obscure passage of Magna Carta, a needed innovation might be readily represented as a return to the time-honoured practice of the past. The veneration with which his contemporaries viewed the antiquarian and black-letter learning of Sir Edward Coke, that unrivalled master of the intricacies of the common law, secured the unquestioned acceptance of his declaration of what exactly had been meant by obscure chapters of the Charter. The Great Charter, as enshrined in the imaginations of the parliamentary leaders of the Puritan Rebellion was, to a great extent, the creation of Coke’s legal intellect. It has been contended, indeed, in a brilliant and still recent article, under the startling title of “The Myth of Magna Carta” that no Charter really existed to correspond with the conceptions formed of it by the leaders of the Long Parliament; and that Coke was the creator of the Charter, or of the “Myth” which alone had political significance or value.
It seems safer, however, to maintain that there are two Great Charters (or two aspects of one charter) each of which, valuable in its own sphere and period, has rendered inestimable services to the growth of sound theories of Government—the original feudal charter, and the charter of seventeenth-century interpretations. Part, at least, of the greatness of the Charter would thus seem to lie, not so much in what it was to its framers in 1215, as in what it afterwards became to the political leaders, to the judges and lawyers, and to the entire mass of the people of England in later ages.
The Third Epoch.
In our own day, when the privilege of living under the best constitution in the world has come to be more lightly valued, by a generation who are prone to take their heritage for granted, Magna Carta is no longer resorted to as an indispensable storehouse of precedents for desired reforms. Its chief value is not now for its bearing on the present, as it was to the men of 1215, nor on the future as it was to the men of 1628 or 1688, but as a helpful means of reconstructing the past. The vivid glimpses that the Charter gives us of life in England in the early thirteenth century open, as it were, a window into the past. To understand the Charter aright in all the clauses of its sixty-three chapters, traversing, as these do, fields both wide and various, requires intimate knowledge of every phase of mediæval England, whether feudal, social, economic, legal, or political. From the many points at which it touches the life and customs of the Middle Ages, its elucidation affords ample illustration of the principles that must animate every teacher of history, who seeks to gain the permanent interest of his hearers. That root principle is the necessity of never, for one moment, forgetting the closeness of the tie that binds the dead past to the living present. There is no document, however dry and obsolete it may to-day appear, which did not spring from a human situation that was once alive with hopes and fears. The pigeonholes of a lawyer’s office, with their scores of uninteresting-looking documents, tied neatly into bundles with red tape, are, as it were, the fossil bones of human ambitions and passions and tragedies that have long since been struck cold. To the eye of imagination, however, there shines through every one of them, some ray of the sentiments and emotions with which they were once instinct. The lumbering clauses of the Articles of his Deed of Partnership cannot quite conceal the eager hopes of the young merchant making a first start in life; the Proceedings in Bankruptcy mark the close of a long-drawn agony; the Last Will and Testament suggests thoughts that run through the whole gamut of the infinite pathos of human life. Similar results flow from the application of imagination to any historical document, and notably is this true of the interpretation of Magna Carta. Read this feudal Charter apart from its historical context and without any effort of imaginative sympathy; and taking it thus, dull clause by clause, you will find it wearisome to extinction. But read it in the light of all that is known of life in the Middle Ages; read it in the light of the human passions and ambitions and wildly beating hopes of the barons in whose interests it was framed; read it in the light of its magnificent historical setting; and, behold, you have transformed the whole!What is the writ præcipe, or the assize of novel disseisin, or the crown’s right of prerogative wardship to the men of to-day? Nothing, if we are ignorant of the once living context. Much, if we have the sympathy and historical insight to set them in their true perspective against a background of mediæval life.
The problem then, for the historical teacher, as for the historical researcher, is how best to reconstruct the once full-blooded life of the past out of the dry bones that now cumber the ground. The Hebrew Prophet, Ezekiel (ch. xxxvii., verses 1 to 10) has described how this miracle comes to pass: “The hand of the Lord...set me down in the midst of the valley which was full of bones, and said unto me.... Prophesy upon these bones, and say unto them, O ye dry bones, hear the word of the Lord.... So I prophesied as I was commanded; and as I prophesied, there was a noise, and behold a shaking, and the bones came together, bone to his bone. And when I beheld, lo, the sinews and the flesh came up upon them, and the skin covered them above; but there was no breath in them.... So I prophesied, as he commanded me, and the breath came into them, and they lived, and stood up upon their feet, an exceeding great army.” So only by the spirit of sympathy and the breath of historical imagination can the dry bones of history be made to live again.
The nature and the motives of the interest that is to-day taken in Magna Carta are thus widely different from those that influenced the men of the seventeenth century, and both are different from those of the thirteenth; it is therefore useless to seek for any one quality as the sole source of the Charter’s fame.
It is further plain that its value cannot lie in any principle of logical arrangement; for the chapters are grouped in a disorderly manner, as though they had been jotted down exactly as they occurred to the memory of the framers, and that hurriedly in case they might be quickly again forgotten. The time now available makes it impossible, if indeed it were desirable, to give a detailed account of the sixty-three chapters of Magna Carta or even to attempt their classification; while a mere catalogue would serve no useful end.
There is certainly no one clause to which the chief value of the Charter can be exclusively traced. No such monopoly can be claimed for the twelfth and fourteenth chapters, limiting the King’s power of imposing aids and scutages without the “commune concilium” of the realm; nor for the thirty-ninth, which gave security of life and property against John’s arbitrary interference, by affording the protection of “judicium parium”; nor for the famous fortieth chapter, that declared, in oftquoted words, “To no one will we sell, to no one will we refuse or delay right or justice”; nor can it be claimed even for that extraordinary sixty-first chapter, which provided machinery for enforcing all the rest, by means of a committee of twenty-five of the baronial opposition to whom John granted authority, under certain conditions, of coercing him by the forcible seizure of his castles, lands, and possessions.
One who searches for the causes of the Charter’s greatness must thus look elsewhere than to even the most famous of its isolated provisions. The elements, indeed, that have contributed to the constitutional influence of Magna Carta are numerous and varied. While an attempt to classify these elements, on any principle of absolute mutual exclusion, would be artificial and stultifying, they may yet, perhaps, be regarded as roughly falling under the seven following heads: the inherent merits of the Charter; its historical setting; its continuity with the past; its continuity with the future; the number and solemnity of its confirmations; its flexibility; and its success in taking hold upon the popular imagination.The Great Charter is famous:—
First.—Because of its inherent merits; because of its moderation; the wide orbit of its range; its preference for practical details rather than vague generalities; its assertion of the existence of settled usages to which the King binds himself to conform. This is perhaps the cardinal principle of the whole, its insistence that there is something higher and more sacred than the will of sovereigns and rulers.
Secondly.—It is famous because of its vivid historical setting. Christendom was impressed by the spectacle of an anointed king obliged to surrender at discretion to his rebellious subjects.The fact that John was compelledto accept what previously he had passionately refused, meant a loss of royal prestige and an encouragement to future resisters of oppression. The dramatic circumstances of John’s humiliation were stamped indelibly on the minds of future generations.
Thirdly.—It is famous because of its continuity with the past. It was modelled in some measure on the Charter of Henry I, and that Charter was in some respects an embodiment of the terms of the old coronation oath, under which the Conqueror and his sons had sworn to observe the laws of Edward the Confessor’s reign; and that oath can in turn be traced back to the days of the early kings of Wessex. The demand for the confirmation of Magna Carta took the place of the older battle-cry of a return to the laws of good King Edward, and the halo as of a golden age that surrounded the “leges Eadwardi” was transferred to their supposed new embodiment in John’s Charter of Liberties.
Fourthly.—It is famous because of its continuity with the future; because it stands directly in the line of development of English liberty and the reign of law; because it marks the first decisive step in the establishing of a system of government of great value to the whole of the civilized world. “Slow and sure” has been the motto of the builders of English liberty; and the influence of Magna Carta, and of the circumstances that gave it birth, have been woven into the whole fabric of our constitutional continuity.For one thing, the winning of the Charter marks the beginning of a new grouping of political forces in England. No longer, as in the days of those three master-builders of our constitution, William the Conqueror, Henry Beauclerc, and Henry Plantagenet, were Crown and people united, in the name of law and order, against a baronage that contended for feudal licence.All this was changed in 1215; the mass of merchants and yeomen, the small subvassals, and the clergy had in that year formed a league with the barons, as the new champions of law and order, against the Crown that had now become the chief law-breaker.This association with new allies was accompanied by a change of baronial policy.Convinced that the complete feudal independence of each feudatory in his own territory was now impossible, the feudal magnates sought to control and guide the royal power they could no longer defy. Magna Carta was the firstfruit of this new policy, and thus stands directly in the line of constitutional development.
Fifthly.—It is also famous because of its numerous re-issues and confirmations, and because of the solemnity with which some of these have been accompanied. It is true indeed that we are dependent upon an authority of some centuries’ later date for some of the most impressive details. Holinshed, embroidering on the narrative of Matthew Paris, relates how, in a Parliament held at London in 1253, after Henry III had confirmed the Charter, sentence of excommunication was pronounced by the Archbishop of Canterbury and thirteen of his bishops “revested and apparelled in pontificalibus, with tapers according to the manner...against all transgressors of the liberties of the church and of the ancient liberties and customs of the realm of England, and namely those which are contained in the great charter and in the charter of forest.... Whilst the sentence was in reading the King held his hand upon his breast with glad and cheerful countenance, and when in the end they threw away their extinct and smoking tapers, saying, ’So let them be extinguished and sink into the pit of hell which run into the dangers of this sentence,’ the King said, ’So help me God, as I shall observe and keep all these things, even as I am a Christian man, as I am a Knight, and as I am a King, crowned and anointed’.1 “
Sixthly.—The Charter was found valuable as a weapon in the hands of later champions of freedom because of its flexibility. The original meaning of many of its clauses was in later centuries forgotten, and, after the decay of feudalism, new interpretations (as we have seen) superseded older ones. The process which substituted the redress of the abuses most bitterly felt in later centuries for those actually redressed in 1215 was usually a perfectly honest one; and, thus, even mistaken interpretations of Magna Carta have contributed to the advance of sound principles of government. This process of constantly adapting the half obsolete provisions of Magna Carta to meet the changing needs of succeeding generations had been begun in the reign of John’s famous grandson, if not even in that of his son; while the interpretations of some of its most famous clauses commonly entertained under Edward III would have astonished alike John and his opponents. But the process of modernization culminated only in the reigns of the Stewarts.
If the inaccurate eulogies of Coke and Hampden have obscured the bearing of many chapters, and diffused false notions as to the development of English law, the service these very errors have rendered to the cause of constitutional progress is measureless. What was originally an affirmation of the validity of feudal law and custom against the arbitrary caprice of John, became in time an affirmation of seventeenth-century national law against the arbitrary stretches of prerogative by the Stewart Kings in furtherance of their personal or dynastic aims. Magna Carta, in this way, became a bridge between the older monarchy, limited by the restraints of mediaeval feudalism, and the modern constitutional monarchy, limited by a national law enforced by Parliament.
To the fame gained by Magna Carta in respect of its real and original meaning, must thus be added the fame gained by the imaginary Magna Carta, as evolved from the earlier Charter by the learning of Coke and his parliamentary associates. We have seen how, in the seventeenth century, it became a means of cloaking innovations in the guise of a return to the past, and how in an age averse from constitutional innovations, it enabled the opponents of the Divine Right of Kings to gain for their policy the approval of staid upholders of the venerated past. The elasticity of the Great Charter has thus enabled it to adapt itself to the ever-changing needs of succeeding centuries; and each century that enjoyed its powerful aid has heaped upon it, in return, tributes of grateful veneration, and has read into it new principles of which its framers never dreamed.
Seventhly and Lastly.—It has enjoyed an enduring fame because of the hold which, for these and other reasons, it gained and held for many generations upon the popular imagination. Its emotional and moral value is perhaps even greater than its strictly legal or constitutional value. All government is, at bottom, founded on public opinion—upon sentiments either of affection and veneration or of fear. Psychological considerations are often all-powerful in the world of politics and morality. It is no disparagement of Magna Carta, then, to admit that part of its value has been read into it by later generations, and that its power now lies in the halo almost of romance that has collected round it in the course of centuries. Sentiment counts for much in the most practical affairs of men. It is sentiment that has brought the flower of Anglo-Saxon and Celtic manhood from the shores of the seven seas—from Africa, Australasia, Canada, and India—to fight the mother-country’s battles in Europe and in Asia—the twin sentiments of love of Empire and love of home; and these men claim justly, as their right, a full share in the goodly heritage of the free institutions and traditions of the homeland, of which Magna Carta forms an essential part.
The Great Charter is great because in ages long after its framers were dead and forgotten, it became a shield and buckler behind which constitutional liberty could take shelter. Fortified as it had been by the veneration of ages, it became a strongly entrenched position that the enemies of arbitrary government could safely hold. Apart from the salutary effect of many of its original enactments, its moral influence has steadily contributed to an advance in the national spirit and therefore to the more firm founding of the national liberties. The value of the Great Charter has continually increased in the seven hundred years during which traditions, associations, and aspirations have clustered ever more thickly round it.
In the forefront of this long catalogue of virtues, however, there lies the one great cardinal merit of the Charter, which has already been insisted on, namely that it is, in essence, an admission by an anointed king that he was not an absolute ruler; that he had a master in the laws he had often violated but now once more swore to obey; that his prerogative was defined and limited by principles more sacred than the will of kings; and that the community of the realm had the right to compel him, when he refused of his own free will, to comply. Magna Carta affirmed the doctrine that kings are accountable for their deeds, and thus paved the way for the shifting of the responsibility from the King to his ministers, holding office at the will of a Representative Parliament.
In conclusion, it may not be unprofitable to ask what valuable lessons (if any) Magna Carta and its historical context have for the men of 1915 in this time of unparallelled stress and anxiety. Here two lines of thought suggest themselves, one connected with our foreign relations and the other with our domestic troubles and reforms.
One set of problems lies in the realm of international, and the other of constitutional, law; and both of them turn on the possibility of substituting peaceful methods for brute force in settling acute differences of opinion. There are two ways, and only two, of reconciling conflicting principles and interests. One is by the method of rational men; the other, of savages and wolves and tigers. The one proceeds by the devising and enforcing of wise laws and the framing of constitutions; the other, by the arbitrament of war.
Take the international problem first. More than nineteen centuries have elapsed since the Prince of Peace was born into the world at Bethlehem. War and the horrors of war should surely be obsolete and impossible in this twentieth Christian century; and yet never has a more widespread, unremitting, or inhuman war been waged than is waged to-day. What hopes, then, remain for the priests of peace? Must they, with averted faces, renounce all hope of the long-expected time when wars shall cease? The events surrounding Magna Carta would seem to furnish them with a ray of hope, however dim; for, in 1215, the granting of the Charter was the beginning, not the end, of a bitter Civil War; and at that date the possibility of permanently superseding domestic strife by peaceful constitutional methods seemed as remote as the possibility of devising machinery to prevent recurrence of war among rival nations appears to-day. Yet, in 1215, in spite of the blackest of outlooks, the process had really commenced of substituting, in domestic troubles, the settlement by reason for the settlement by brute force.
A Constitution for England had already in 1215 begun to be evolved. Similarly, may it not be possible that in 1915, when everything looks its blackest for the friends of peace, we may not be far from the coming of the dawn? International law may yet achieve what seems so impossible to-day; just as constitutional law has achieved what seemed equally impossible in 1215.
The second problem or group of problems, for light on which we turn to the history of Magna Carta, affects the internal policy of Great Britain and the British Empire. The present generation of Englishmen, like the spendthrift heirs of an industrious father, show a tendency to underestimate the value of that priceless heritage of the British Constitution that has come to them without effort of their own, as a product of the labour and the forethought of the generations that have gone before. Why is it that constitutional privileges that are the envy of all civilized foreign nations, privileges that were esteemed alike by Pitt and Fox and Edmund Burke, by Blackstone, Hallam, Mill and Macaulay, by Wellington and Earl Grey, by Peel and Palmerston and Lord John Russell, by Gladstone, Disraeli, and John Bright, have come to be cheaply held as airy trifles to be taken for granted, or to be lightly bartered away for the rapid attainment of the moment’s transient and loud-voiced needs?
Why was it that, even for years before the evil example set by Germany at the commencement of her war against the foundations of civilization, there appeared everywhere signs of a tendency at work to discredit the constitutional heritage to which so many generations of Britons have contributed; of a retrograde movement, away from the method of settling disputes by the discussion of what is just and right to the method of self-help by organized violence? Whatever the reason, the facts are undoubted. A spirit of lawlessness, discontent, and greed had (even before the fateful August of 1914) bred a quick impatience of every constitutional barrier that stood in the way of its own immediate gratification.
It had ceased to be remembered that even red-tape, whether of the moral or legal variety, is an excellent thing in its own place. This universal impatience with legal and traditional restraints, from which Great Britain can by no means claim to have been wholly free, was perhaps only part of a great wave of discontent with constitutional impediments, which culminated in the felon’s act of Germany in repudiating the obligations of her plighted word and violating every accepted code of law and honour.
The time will come, however, when the tide will turn; when public opinion will recognize once more the merits of the slow but sure constitutional methods of settling disputes; when the British Constitution, readjusted and amended, perhaps, to meet the new destinies that lie ahead, will return into the sunshine of popular favour; when Magna Carta and other “scraps of paper” or of parchment will come to their own again.
The centre of world-interest will then swing back again from the work of the bayonet and the howitzer to the work of the pen. Then all eyes will centre once more on constitutional problems, of which three at least are likely to occupy the foreground of public attention: The framing of a new, perhaps federal, Constitution for the British Isles; the framing of a new Imperial Constitution to bind the Overseas Dominions more closely to the mother-land; the framing of some stepping-stone, at least, toward a scheme of government for Europe and the world, capable of substituting the decisions of justice and reason for the grim arbitrament of war.
For that new world, towards whose dawn we are peering through the darkness, yet with stout hope in our hearts, Magna Carta has grave lessons, which it cries aloud with no uncertain voice. The part that the Great Charter has played in achieving the enduring reforms of earlier centuries, is a sermon on the text of “slow but sure”. It teaches the value of continuity in all matters of constitutional development. It shows that ground, to be permanently held against the encroachments of the enemy, must be slowly and painfully acquired and carefully entrenched yard by yard against the inevitable counter-attack to be openly delivered, or prepared more insidiously underground.
Magna Carta and its historical context proclaim to all idealists who are in haste for quick results, the danger of breaking with the past. Framers of new schemes of government, whether for the United Kingdom or the Empire, will find sure evidence of the strength given to national institutions by continuity, when they look back on the long, slow, steady growth of the English Constitution through the vicissitudes of the seven hundred years that separate the Conference at Runnymede from the present day. When the happy day has dawned on which Britons meet to celebrate, on bended knee, the restoration of peace to a tortured Europe, they will do well to return thanks also for the free land into which they and their sons were born:—
- A land of settled government,
- A land of just and old renown,
- Where freedom broadens slowly down,
- From precedent to precedent.
Holinshed, “Chronicle,” i. pp. 128–9; M. Paris, v. p. 360.
- A Legal Glossary by Roscoe Pound
- Bastiat, The Law (revised LF edition)
- Bentham on the Principles of Morals & Legislation
- Blackstone on Property (1753)
- Blackstone on the Absolute Rights of Individuals (1753)
- Blackstone: Analysis and Contents of Vol. 1 of Commentaries on the Law of England
- Blackstone: Analysis and Contents of Vol. 2 of Commentaries on the Law of England
- Blackstone: Introduction to the Laws of England
- Bryce on the Legal History of Rome and England
- Burlamaqui and Natural Law
- Carmichael & Natural Rights
- Cicero’s Treatise on the Laws
- Dicey on Law and Public Opinion in the 19th Century
- Dicey on the Rise of Legal Collectivism in the 20thC
- Doctrine of the Separation of Powers
- Fuller and the Law
- Gaius' Institutes of Roman Law: An Historical Introduction
- Gardiner on the Constitional Issues of the English Revolution
- Gardiner on the English Revolution
- Grotius & the Freedom of the Seas
- Grotius and the Natural Law Tradition
- Grotius on Prize and Booty
- Heineccius and Turnbull on Natural Law
- History of English Law
- Holdsworth on the Law Merchant
- Kant’s Philosophy of Law
- Law and Liberty by Roscoe Pound
- Lenks on the history of Habeus Corpus
- Leoni on the Rule of Law
- Magna Carta 700th Anniversary
- Magna Carta and the Common Law
- Magna Carta and the US Constitution
- Magna Carta in 16th Century English Legal Thought
- Magna Carta: An Historical Introduction
- Maitland on English Law before the Norman Conquest
- Maitland’s Outlines of English Legal History
- McIlwain on Ancient Constitutionalism
- Natural Law and Liberalism
- Pollock on the King’s Peace in the Middle Ages
- Pollock on the Law of Torts
- Pollock on the Oath of Allegiance in English History
- Pollock’s Model Version of Tort Law
- Pound and the Law
- Pound on the Ideal Element of Law
- Pound on the Philosophy of Law (Property)
- Pufendorf and Universal Jurisprudence
- Richard Cumberland and Natural Law
- Rommen & the Study of Natural Law in the 20thC
- Rommen and Natural Law
- Rommen on Natural Law in the Age of Individualism
- Roots of Liberty: Magna Carta (2008)
- Spooner on Natural Law (1882)
- Spooner, Taxation and the Common Law (1852)
- The History of James Wilson’s Law Lectures