Magna Carta Juridical Nature in United Kingdom
The juridical nature of the document to which John set his seal at Runnymede will be differently estimated according as it is judged by present–day or by medieval standards.
The Early 20th Century Point of View
Much ingenuity has been expended in the effort to discover which particular category of modern jurisprudence most accurately describes the Great Charter. Is it an enacted law, or a treaty; the royal answer to a petition; or a declaration of rights? Is it a simple pact, bargain, or agreement between contracting parties? Or is it a combination of two or more of these? Something has been said in favour of almost every possible view, perhaps more to the bewilderment than to the enlightenment of students of history uninterested in legal subtleties.
Magna Carta as a formal piece of Legislation
The claim of Magna Carta to rank as a formal act of legislation has been supported on the ground that it was promulgated in what was practically a commune concilium. King John, it is maintained, met in a national assembly all the estates of his realm who had any political rights, and these concurred with him in the grant. The consent of all who claimed a share in the making of laws—archbishops, bishops, abbots, earls, and crown–tenants, great and small—entitles the Charter to rank as a statute.
Against this view, however, technical informalities may be urged. Both the composition of the Council and the procedure adopted there, were irregular. No formal writs of summons had been issued, and, therefore, the meeting was never properly constituted. Further, the whole proceedings were tumultuary; the barons, assembled in military array, compelled the consent of John by show of force. On these grounds, modern jurisprudence, if appealed to, would reject the claim of the Charter to be enrolled as an ordinary statute. It may be argued also that Magna Carta, while something less than a law, is also something more. A law made by the king in one national assembly might be repealed by the king in another; whereas the Great Charter was intended by the barons to be unchangeable. It was granted to them and their heirs for ever; and, in return, a price had been paid, namely, the renewal of their allegiance.1
Magna Carta as a Treaty
Magna Carta has also been described as a treaty. Such is the verdict of Dr. Stubbs.2 “The Great Charter, although drawn up in the form of a royal grant, was really a treaty between the King and his subjects. . . . It is the collective people who really form the other high contracting party in the great capitulation.”3 This view receives some support from words contained in chapter 63 of the Charter: “Juratum est autem tam ex parte nostra quam ex parte baronum, quod haec omnia supradicta bona fide et sine malo ingenio observabuntur.” There is, however, a radical objection. A treaty is a public act between two contracting powers, who must, to meet the requirements of modern jurisprudence, be independent States or their accredited agents; while John and his opponents were fragments of one State, torn asunder by mutual jealousies.
Magna Carta as a Contract or Agreement
For other authorities, Magna Carta is a contract, pact, or private agreement. M. Emile Boutmy is of this opinion:—“Le caractère de cet acte est aisé à définir. Ce n’est pas précisément un traité, puisqu’il n’y a pas ici deux souverainetés légitimes ni deux nations en présence; ce n’est pas non plus une loi; elle serait entachée d’irrégularité et de violence; c’est un compromis ou un pacte.”1 Thus considered, the proudest act of the national drama would take its place in the legal category which includes the hire of a waggon or the sale of a load of corn. There are, however, objections to this theory also. It is difficult to see how the plea of “force,” if sufficient (as M. Boutmy urges) to render null the enactment of a public law, would not be even more effective in reducing a private agreement. If Magna Carta has no other basis than the consent of the contracting parties, it seems safer to describe it as a public treaty than a private pact.
Magna Carta as a Code or Declaration of Rights
Other theories also are possible; as, for example, that the Great Charter is of the nature of a Declaration of Rights, such as have played so prominent a part in France and the United States; while a recent American writer on English constitutional development regards it as a code, creating a formal constitution for England—in a rude and embryonic form, it is true:—“If a constitution has for its chief object the prevention of encroachments and the harmonizing of governmental institutions, Magna Carta answers to that description, at least in part.”2 It would be easy to cite compromises between these competing theories. Thus, a high authority declares that “the Great Charter is partly a declaration of rights, partly a treaty between Crown and people.”1
The legal effect of the Magna Carta is hard to be determined
The essential nature of what took place at Runnymede, in June, 1215, is plain, when stripped of legal subtleties. A bargain was struck, between the King and his rebel magnates, that, in return for a renewal of fealty and homage, John would grant “to the freemen of England and their heirs for ever” the liberties enumerated in sixty–three chapters. No one thought of asking whether the transaction thus concluded was a “treaty” or a private “contract.”
The terms had to be drawn up in legal form, so as to bear record to the exact nature of the provisions, and also to the authenticity of John’s consent. It was, therefore, reduced to writing, and the resulting document was naturally couched in the form invariably used for all irrevocable grants intended to descend from father to son, namely, a feudal charter, authenticated by the impression of the granter’s seal—just as in the case of a grant of land, and with many of the clauses appropriate to such a grant.2
John grants to the freemen of England and their heirs certain specified rights and liberties, as though these were so many hides of land.3 The legal effect of such a grant is hard to determine; and insuperable difficulties beset any attempt to expound its legal consequences in terms of modern law.4 In truth, the form and substance of Magna Carta are badly mated. Its substance consists of a number of legal enactments and political and civil rights; its form is borrowed from the feudal lawyer’s book of styles for conferring a title to landed estate.1
The results of this part of the inquiry seem, then, to be mainly negative. It is misleading to describe phenomena of the thirteenth century in modern phraseology which would have been unintelligible to contemporaries. Yet, if it is necessary to make the attempt, Magna Carta may perhaps be regarded as an agreement partaking of the natures alike of a statute and a royal grant, of a public treaty and a private contract, yet identical with no one of these, but (in any view) enacting or proclaiming a number of rules and customs as binding in England, and reducing them to writing in the unsuitable form of a feudal charter granted by King John to the freemen of England and their heirs.2
The Contemporary Standpoint
It is perhaps more profitable to enquire under what category of medieval jurisprudence Magna Carta would have fallen, if its contemporaries had consciously attempted its classification. In Dr. Vinogradoff’s phrase: “The best way to solve these problems is perhaps to locate our document in the pigeon–holes of medieval and not of modern rubrication.”(Law Quarterly Review, XXI. 250–7).
Answering his own question, he proceeds to range it, partly as a unilateral grant by John to his subjects and partly as of the nature of the medieval expedient known to the continent of Europe as an “establishment” (stabilimentum or établissement). No exact definition of a stabilimentum need be expected from an age accustomed to a vague use of words; but its essence seems to have been a legislative act, more or less of an institutional and exceptional nature, affecting the general welfare of the country, and thus requiring collective action by all classes or estates.
The elements of authority dispersed among the various participants in legislative or sovereign power had to be concentrated round the King, somewhat as the consent of all first–class States has to be obtained at the present day for effecting a change in the rules of International Law observed by civilized nations.
Legislative acts similar to the établissements of Capetian Kings were not unknown in England. The main purport of the Statute of York (1322), for instance, according to its latest interpreter (G. Lapsley, Eng. Hist Rev. XXVII., p. 118), would seem to be that consent of “the community” (or “commonalty,” as it is usually rendered), as well as of the prelates, earls and barons, should be needed for any change of the nature of an “establishment,” which thus means an alteration in the framework of government.
Magna Carta contemplated in chapter 61 an institutional innovation, parallels to which may be found in the more or less oligarchical schemes of 1244, 1258, 1264 and 1311. The historical importance of such restrictions upon the method of legislation required for changing the framework of government, lies in their bearing on the development of a system of Estates and of the future Parliament of the three Estates.
Source: Part III. Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).