Magna Carta: Commentaries and Treatises in United Kingdom

Introduction

“At the beginning of the twentieth century, Charles McIlwain observed that the new histories of the Magna Carta were portraying the charter as a “document of reaction” that could only fulfill its purported greatness “when men [were] no longer able to understand its real meaning” (McIlwain 1914, 46). Characteristic of these early-twentieth-century writers was Edward Jenks, who, in his 1904 article “The Myth of Magna Carta,” came to the conclusion that the real beneficiaries of the document—the liber homo of Article 39—were not “the people” we traditionally imagine, but rather an “aristocratic class … who can no more be ranked amongst the people, than the country gentleman of to-day” (Jenks 1904, 269).

Although Jenks’s position is often criticized as extreme, it is nevertheless the case that virtually all of the Magna Carta’s modern commentators recognize vast historical inaccuracies in the Whiggish accounts of the charter’s development up until the late nineteenth century (Radin 1946; Reid 1993; Halliday 2010, 15–16). What these new revisionist histories suggested was that the Magna Carta’s great provisions—due process and trial by jury—only became great when, forgetting or ignoring the charter’s seemingly lackluster beginnings, generations subsequent to 1215 gave them new meaning.” (Justin J. Wert (2010). With a Little Help from a Friend: Habeas Corpus and the Magna Carta after Runnymede. PS: Political Science & Politics, 43, pp 475-478. doi:10.1017/S1049096510000600.)

Histoire des ducs de Normandie et des rois d’Angleterre

Within five years of the peace made at Runnymede, a minstrel attached to Robert of Béthune, one of John’s familiars, included an incomplete but not inaccurate summary of the Charter in his Histoire des ducs de Normandie et des rois d’Angleterre, supposed to have been composed in 1220.1 This first rude commentary has already been alluded to.2 Posterity would gladly have bartered it, such as it is, for a few words of explanation from one who was well able to speak but preferred to keep silence.

The discreet biographer of William the Marshal excuses himself from drawing upon his intimate sources of information: he must pass over, he says, the war which was in England between the King and his barons, for there were too many incidents which it would not be honourable to recount.3

Mirror of Justices

Later in the century, comes the mysterious medieval lawbook known as the Mirror of Justices, complaining of “the damnable disregard” of Magna Carta and containing a chapter on that document with some claims to rank as a commentary, although it represents the opinions of a political pamphleteer rather than those of an unbiassed judge. The date of this treatise is still the subject of dispute. It has been usual to place it not earlier than the years 1307–27, mainly because it makes mention of “Edward II.” Prof. Maitland, however, dates it earlier, maintaining on general grounds that it was “written very soon after 1285, and probably before 1290.”4

He explains the reference to “Edward II.” as applying to the monarch now generally known in England as Edward I., but sometimes in his own reign known as Edward II., to distinguish him from an earlier Edward still enshrined in the popular imagination, namely, Edward Confessor. Mr. Maitland is not disposed to treat this work of an unknown author too seriously, and warns students against “his ignorance, political bias, and deliberate lies.”1

Sir Edward Coke

Reference has already been made to the comparative neglect of Magna Carta in the fifteenth and sixteenth centuries, and to the influence of Coke in reviving interest in its provisions. Of the commentaries that have subsequently appeared, it is not, perhaps, necessary to mention more than the following thirteen. (1) The elaborate treatise of Sir Edward Coke, King James’s deposed Chief Justice, comprising the second of his four Institutes, was published in 1642 under direction of the Long Parliament, the House of Commons having given the order on 12th May, 1641.2

Although this commentary, like everything written by Coke, was long accepted as a work of great value, its method is in reality 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 changes wrought by the experience and vicissitudes of four eventful centuries.

The clauses of Magna Carta are merely occasions for expounding the law as it stood, not at the beginning of the thirteenth century, but in Coke’s own day. In the skilful hands of Sir Edward, the Great Charter is made to attack abuses of James or Charles, rather than those of John or Henry.

In expounding the judicium parium, for example, he explains minute details of procedure before the Court of the Lord High Steward, and the nature of the warrants to be issued prior to 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 “Parliament” did not exist in 1215, and that the regulation of trade was then an exclusive prerogative of the Crown.

Edward Cooke´s Magna Charta

In 1680 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. 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.”

Sir William Blackstone’s Introduction

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.”1

Observations upon the Statutes from Magna Charta to James I

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.

An Historical Treatise on the Feudal Law

In 1772 Prof. F. S. Sullivan issued a course of lectures under the title An Historical Treatise on the Feudal Law, with a Commentary on Magna Charta: “I shall therefore proceed briefly to speak to Magna Charta, and in so doing shall omit almost all that relates to the feudal tenures, which makes the greatest part of it, and confine myself to that which is now law.”2

History of English Law

John Reeves’ invaluable History of English Law, which appeared in 1783–84, marked the commencement of a new epoch in the scientific study of the genesis of English law. Treating incidentally of Magna Carta, he shows wonderful insight into the real purport of many of its provisions, but the state of historical knowledge when he wrote rendered serious errors inevitable.

In 1829 Richard Thomson published an elaborate edition of the charters, combined with a commentary which makes no serious attempt to supplement the unhistorical explanations of Coke by the results of more recent investigations. His work is a storehouse of information which must, however, be used with caution.

Chartes des Libertés Anglaises

In many respects, the most valuable contribution yet made to the elucidation of the Great Charter is that contained in M. Charles Bémont’s preface to his Chartes des Libertés Anglaises, published in 1892. Although he has subjected himself to the severe restraints imposed by the slender size of his volume and by a rigid desire to state only facts of an undisputed nature, leaving theories strictly alone; he has done much to help forward the study of the charters, insisting upon the close mutual connection between the various Charters of Liberties.

It is doubtful, however, whether by this very insistence upon the continuity of this one series of documents, he does not lay himself open to the misconception that he takes too narrow a view of the scope and relations of the Charter. Magna Carta’s antecedents must not be looked for exclusively among documents couched in the form of charters, nor its results merely in their subsequent confirmations. It is impossible to understand it aright, except in close relation to all the varied aspects of the national life and development.

Every Act appearing on the Statute Rolls is, in a sense, an Act amending Magna Carta; while such enactments as the Statutes of Marlborough and Westminster I. have as intimate a connection with John’s Great Charter as the Confirmatio Cartarum or the Articuli super Cartas have. This is a truth which M. Bémont recognizes, though the scheme of his book led him to emphasize another aspect of his subject. His object was not to explain the numerous ways in which the Charters of Liberties are entwined with the whole of English history, but merely to furnish a basis for the accurate study of one of their most important features. His book is indispensable, but is not intended to form, in any sense, a commentary on Magna Carta.

The Myth of Magna Carta

A brilliant article by Mr. Edward Jenks appeared in The Independent Review for November, 1904, whose title, The Myth of Magna Carta, indicates the iconoclastic lines on which it proceeds. He argues that the Charter was the product of the selfish action of the barons pressing their own interests, and not of any disinterested or national movement; that it was not, by any means, “a great landmark in history”; and that, instead of proving a material help in England’s advance towards constitutional freedom, it was rather “a stumbling block in the path of progress,” being feudal and reactionary in its intention and effects. Finally, for most of the popular misapprehensions concerning it, he holds Coke responsible.

The Magna Carta of the English and of the Hungarian Constitution

In The Magna Carta of the English and of the Hungarian Constitution (1904), Mr. Elemér Hantos ably analyzes the numerous and interesting parallels between John’s Charter and the Bulla Aurea of Andreas II., dating from 1222, and furnishes a brief commentary on both.

Deprecating exaggerated estimates of its value

M. Charles Petit–Dutaillis, in his Étude sur la vie et le règne de Louis VIII. (1894), was one of the first of modern historians to deprecate exaggerated estimates of the value of Magna Carta, insisting that “the barons had no suspicion that they would one day be called the founders of English liberty.”1 More recently, in his Studies and Notes supplementary to Stubbs’ Constitutional History2 he has included a brief but valuable discussion of the Great Charter.

The Origin of the English Constitution

The whole of Prof. G. B. Adams’ The Origin of the English Constitution (1912) is virtually a discussion of the Great Charter, and abounds in valuable suggestions for estimating its tenor and value, and for elucidating its various clauses. It does not aim at being an exhaustive treatise, but is intended to supplement rather than supersede existing commentaries.1

Source: Part V. Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).

Notes

[1 ]R. Wendover, III. 302–318.

[2 ]This date is given by Bémont, Chartes, lxxi., but Robert Watt in his Bibliotheca Britannica, Thomson, Magna Carta, 450, and Lowndes, Bibliographer’s Manual, 1449, all give the date of the earliest edition as 1514.

[3 ]The substance of this admirable edition, now unhappily scarce, has been reproduced in the same author’s Tracts (1762).

[1 ]Published in 1840 (edited by F. Michel).

[2 ]Supra, p. 123.

[3 ]G. le Maréchal, 15031 ft.

[4 ]See The Mirror of Justices (edited for the Selden Society by W. J. Whittaker), Introduction (by Maitland), xxiii. to xxiv.

[1 ]See The Mirror of Justices, xxxvii. Cf. xlviii.

[2 ]See Dictionary of National Biography, XI. 243.

[1 ]Introduction, p. ii.

[2 ]P. 375 of work cited.

[1 ]P. 57 of work cited.

[2 ]This is the title of the English translation by Mr. W. E. Rhodes (1908) of the Appendices to the first volume of a French version of Stubbs’ Const. Hist., published in 1907.

[1 ]Of the books and articles containing incidental references to Magna Carta, it is unnecessary to speak; those containing comments on isolated chapters or particular aspects are mentioned infra in their appropriate places. The late Mr. Harcourt’s His Grace the Steward and Trial of Peers contains a vigorous commentary on chapter 39, and his article “The Amercement of Barons by their Peers” (Eng. Hist. Rev., XXII. 732), on chapter 21. The first edition of the present work (published, 1905) evoked a number of valuable contributions to various aspects of the subject; among these may be mentioned Vinogradoff, Law Quart. Rev., XXI. 250–7; Liebermann, Historische Vierteljahrschrift, 1907, 231–5; Bémont, Revue Historique, 1907, 122–4; Petit–Dutaillis, Le Moyen Age, 1906, 277–282; H. W. C. Davis, Eng. Hist. Rev. (1905), XX. 719–726; Neilson, Juridical Review, June, 1905, 128–144. See also Jurid. Rev., March, 1905, 61; and Law Notes (New York), August, 1905, 94–6 for some legal decisions, Scotch and American respectively.

Magna Carta Commentaries and Treatises