IV.: Magna Carta: an Estimate of its Value.

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 legal document with specific remedies for current evils. To English lawyers and historians of a later age it became something intangible and ideal, a symbol for the essential principles of the English Constitution, a palladium of English liberties.

To trace the growth of these modern estimates lies outside the scope of the present treatise; but it should be noted that admiration for John’s Charter and its numerous reissues and confirmations was more measured among contemporaries than among its votaries of the seventeenth or nineteenth centuries; and that, for a long interventing period, it suffered almost complete neglect.

There is some reason to suppose that the Carta Libertatum or Carta Baronum (as it is usually cited by contemporary authorities) was first described as “great” in the reign of Henry III., and that it was then “great” mainly in a material sense, a “large” charter as contrasted with a certain parva carta granted by Henry in 1237.

When, after many confirmations, the Charter had established itself as a permanent part of the law of the land, it seems to have fallen into the background of men’s thoughts. It played no conscious or conspicuous part in the “constitutional experiments” of the Yorkist kings; and friends of popular liberties under the Tudors seem to have made few appeals to its authority; Shakespeare’s King John has nothing to say of Runnymede or what happened there. It was during the struggles of Parliament with the first two Stewart Kings and in part through the influence of Coke, with his strange combination of black–letter lore and enthusiasm for the old Constitution as interpreted by him, that the Charter, now “great” in a sense higher than material, took hold of the popular imagination. Thereafter estimates of its worth steadily expanded. In many a time of national crisis, Magna Carta has been appealed to as a fundamental law too sacred to be altered—as a talisman containing some magic spell, capable of averting national calamity.

Are these modern estimates of its value justified by facts, or are they gross exaggerations? Did it really create an epoch in English history? If so, wherein did its importance exactly lie?

The numerous factors which contributed towards the worth of Magna Carta may be distinguished as of two kinds, inherent and accidental. (a) Its intrinsic value depends on the nature of its own provisions. The reforms demanded by the barons were just and moderate: avoidance of extremes tended towards a permanent settlement. Its aims were practical as well as moderate; the language in which they were framed, clear and straightforward. A high authority has described the Charter as “an intensely practical document.” This practicability is an English characteristic, and strikes the key–note of almost every great movement for reform which has succeeded in English history. Closely connected with this is another feature, the markedly legal nature of the Charter. As Magna Carta, after Coke’s day, was rarely absent from the thoughts of statesmen, a practical and legal direction was thus given to the efforts of Englishmen in many ages. Therein lies another English characteristic. While democratic enthusiasts in France and America have often sought to found their liberties on a lofty but unstable basis of philosophical theory embodied in Declarations of Rights; Englishmen have occupied lower but surer ground, aiming at practical remedies for actual wrongs, rather than enunciating theoretical platitudes with no realities to correspond.

Further, the nature of the provisions bears witness to the broad basis on which the edifice was intended to be built. The Charter, notwithstanding the prominence given to feudal grievances, redressed other grievances as well. Another intrinsic merit was that it made definite what had been vague before. Definition is a valuable protection for the weak against the strong: vagueness favours the tyrant who can interpret while he enforces the law. Misty rights were now reduced to a tangible form, and could no longer be broken with impunity. Where previously the vagueness of the law lent itself to evasion, its clear re–statement in 1215 pinned down the King to a definite issue. He could no longer plead that he sinned in ignorance; he must either keep the law, or openly defy it—no middle course was possible.

(b) Part of the value of Magna Carta may be traced to extrinsic causes; to its vivid historical setting. The importance of its provisions is emphasized by the object–lessons that accompanied its inauguration. Christendom was amazed by the spectacle of a King obliged to surrender at discretion to his subjects. The fact that John was compelled to accept the Charter meant a loss of royal prestige, and great encouragement to future rebels. What once had happened, might happen again: the King’s humiliation was stamped as a powerful image on the minds of future generations.

A separate treatise would be required for any serious attempt to discuss the various estimates formed of Magna Carta as viewed in successive centuries and in different aspects. Some commentators have concerned themselves mainly with individual clauses; others have treated it as one whole. Historians look mainly to its immediate effects; lawyers and publicists to its ultimate consequences, as it affected the development of the English law and Constitution.

(1) Value of Individual Provisions. To judge from the reforms that attracted the notice of the only contemporary chronicler whose opinion has come down to us, the clauses considered of most importance in his day were those treating of the “disparagement” of women, loss of life or member for killing beasts of the forest, reliefs, the restoration of seignorial jurisdiction (“hautes justices”) and the appointment and powers of the twenty–five barons over the King’s government and over the appointment of bailiffs.

Some at least of these clauses are among those usually considered reactionary, and there seems little doubt that the barons in 1215 were deeply interested in the restoration of their feudal franchises, which Henry and his sons were taking away from them. In the words of the French historian, who was perhaps the first to sound the reaction from the “traditional” view of Magna Carta: “The barons had no suspicion that they would one day be called the founders of English liberty. . . . They were guided by a crowd of small and very practical motives in extorting this form of security from John Lackland.”

Of modern writers’ estimates of the relative importance of particular clauses it seems unnecessary to speak, as their number and variety are great.

(2) Its Legal Value. The value of the Charter as a whole, however, is more than a mere sum of the values of its separate parts. Its great importance lay, not in the exact terms of any or all of its provisions, but in the fact that it enunciated a definite body of law, claiming to be above the King’s will and admitted as such by John. As our supreme authorities say of Magna Carta: “For in brief it means this, that the King is, and shall be below the law.” The King, by granting the Charter, admitted that he was not an absolute ruler—that he had a master in the laws he had often violated, but which he now swore to obey. Magna Carta has thus been truly said to enunciate “the reign of law” or “rule of law” in the phrase made famous by Professor Dicey.

This conception of the existence of a definite body of clearly formulated rights (now set down in the Charter in black and white under John’s seal), which the King was bound to observe, was supplemented by the King’s acceptance of the barons’ claim to a right of compulsion. This was a principle of abiding value, apart from any or all of the clauses redressing specific grievances. “In the slowly developing crisis of Henry III.’s reign, what men saw in the charter in its bearing on their differences with the King was not a body of specific law, but that the King’s action was bound and limited, and that the community possessed the right to coerce him.”

(3) Its Value for the future Development of the Constitution. Magna Carta marks the commencement of a new grouping of political forces in England; indeed, without such a rearrangement, the winning of the Charter would have been impossible. Throughout the reign of Richard I. the unity of interests between King and lower classes had been endangered by the heavy drain of taxation; but the actual break–up of the old tacit alliance only came in the crisis of John’s reign. Henceforward can be traced a change in the balance of parties in the commonwealth. No longer are Crown and people united, in the name of law and order, against the baronage, standing for feudal disintegration. The mass of humble freemen and the Church form a league with the barons, in the name of law and order, against the Crown, now the chief law–breaker.

Such an alliance involved the adoption of a new baronial policy. Hitherto each great baron had aimed at his own independence, striving to gain new franchises for himself, and to keep the King outside. This policy, which succeeded both in France and Scotland, had before John’s reign already failed in England; and the English barons, now admitting the hopelessness of the struggle for feudal independence, substituted a more progressive policy. The King, whose interference they could no longer hope completely to shake off, must at least be taught to interfere justly and according to rule; he must walk by law and custom, not by the caprices of his evil heart. The barons sought to control henceforward the royal power they could not exclude: they desired some share in the national councils, if they could no longer hope to create little nations of their own within the four corners of their fiefs. Magna Carta was the fruit of this new policy.

It has been often repeated, and with truth, that the Great Charter marks also a stage in the growth of national unity or nationality. Here, however, it is necessary to guard against exaggeration. It marks merely a stage in a process, rather than a final achievement. It is necessary somewhat to discount the Charter’s claims to be “the first documentary proof of the existence of a united English nation” and the often–quoted words of Dr. Stubbs, that “the Great Charter is the first great public act of the nation, after it has realised its own identity.”

A united English nation, whether conscious or unconscious of its identity, cannot be said to have existed in 1215, except under several qualifications. The conception of “nationality,” in the modern sense, is of recent origin, and requires that the lower as well as the higher classes should be comprehended within its bounds. Further, the coalition which wrested the Charter from the royal tyrant was essentially of a temporary nature, and quickly fell to pieces. Even while the alliance continued, the interests of the various classes, as has been already shown, were far from identical. Political rights were treated as the monopoly of the few; and civil rights were far from universally distributed. The leaders of the “national” movement gave no political rights to the despised villeins, who comprised more than three quarters of the population of England; while their civil rights were almost completely ignored in the provisions of the Charter. Magna Carta marked an important step, in the process by which England became a nation; but that step was neither the first nor yet the final one.

In treating of the juridical nature of Magna Carta as partly of the type of legislation known on the Continent as an établissement, requiring all participants in political power to be assembled round the King in order that they might give consent, it has already been suggested that what took place at Runnymede may have had an influence on the development of the conception of a series of estates and therefore on the genesis of the modern Parliament. The Charter’s greatest contribution, however, to constitutional advance lay undoubtedly in its admission (tacitly implied in its every clause) that the royal prerogative was limited by the customary feudal rights of the barons (if not of other classes as well).

In a sense there was nothing new in this: the feudal relation, with its inherent conceptions of mutual, contractual obligations and the rights of diffidatio and rebellion, needed no official proclamation: it was known to all. But the formal embodiment of a great mass of feudal custom in a document, destined to be consulted and reinterpreted in future ages, created, as it were, a bridge between the older monarchy, limited by medieval, feudal restraints, and the modern, constitutional monarchy, limited by a national law enforced by Parliament. This is the main thesis upon which Professor Adams so emphatically insists, “the unintended result” of Magna Carta. In light of it, he claims to have located the origin of the English Constitution in Magna Carta, and in these two principles of it which assert the limitations of the King’s prerogative and the barons’ right to compel him to respect the rights of others.

These estimates of the rôle played by Magna Carta would seem to be somewhat excessive and to attempt to find too simple an origin for a system of which complexity and compromise between conflicting elements are the very essence. On the one hand, there is more in the English Constitution than the mere principle of limited monarchy: on the other, the main line by which that monarchy has progressed from medieval to modern ideals has not been by the method, unsuccessfully attempted in 1215, 1244, 1258, 1265 and 1311 (to name only the best–known instances), of subjecting the King to the dictation of a Committee of his adversaries; but rather the method of using the counsellors of his own appointment to curb his own caprice, while making it progressively difficult for him to appoint any minister of whom the national council did not approve. The revolutionary expedient of the Committee of twenty–five was not destined to be on the direct line of development that led, through the doctrine of ministerial responsibility, to the Cabinet system of government that reached and perhaps passed its highest point of achievement in the nineteenth century.

(4) Its Moral or Sentimental Value. After every allowance has been made for the great and beneficent influence of Magna Carta, it may still be doubted whether the belief of enthusiasts in its excessive importance has been fully justified. Many other triumphs, almost equally important, have been won in the cause of liberty; and statutes have been passed embodying them. Why then should Magna Carta be extolled as the palladium of English liberties? Is not, when all is said, the extreme merit attributed to it mainly of a sentimental or imaginative nature? Such questions must be answered partly in the affirmative. Much of its value does depend on sentiment. Yet all government is, in a sense, founded upon sentiment—sometimes affection, sometimes fear: psychological considerations are all–powerful in the practical affairs of life. Intangible and even unreal phenomena have played an important part in the history of nations. The tie that binds the British colonies at the present day to the Mother Country is largely one of sentiment; yet the troopers from Canada and New Zealand who responded to the call of Britain in her hour of need produced practical results of an obvious nature. The element of sentiment in politics can never be ignored.

It is no disparagement of Magna Carta, then, to confess that part of its power has been read into it by later generations, and lies in the halo, almost of romance, that has gathered round it in the course of centuries. It became a battle cry for future ages, a banner, a rallying point, a stimulus to the imagination. For a King, thereafter, openly to infringe the promises contained in the Great Charter, was to challenge public opinion—to put himself palpably in the wrong. For an aggrieved man, however humble, to base his rights upon its terms was to enlist the sympathy of all. Time and again, from the Barons’ War against Henry III. to the days of John Hampden and Oliver Cromwell, the possibility of appealing to the words of Magna Carta has afforded a practical ground for opposition; an easily intelligible principle to fight for; a fortified position to hold against the enemies of national freedom. To explain the exact way in which this particular document—dry as its details at first sight may seem—has fired the popular imagination, is a task that lies rather within the sphere of psychology than of history, as usually conceived. However difficult it may be to explain this phenomenon, there is no doubt of its existence. The importance of the Great Charter has increased, as traditions, associations, and aspirations have clustered more thickly round it.

Thus Magna Carta, in addition to its legal and political value, has a moral value of an equally emphatic kind. Apart from and beyond the salutary effect of the useful laws it contains, its moral influence has contributed to an advance in the national spirit, and therefore in the national liberties. Such considerations justify enthusiasts, who hold that the granting of Magna Carta was the turning–point in English history.