V.: Magna Carta. Its defects.

The great weakness of the Charter was the absence of an adequate sanction. The only expedient for compelling the King to keep his promises was clumsy and revolutionary; quite worthless as a working scheme of government. Indeed, it was devised not so much to prevent the King from breaking faith as to punish him when he had done so. In other words, instead of constitutional machinery to turn the theories of Magna Carta into realities, “a right of legalized rebellion” was conferred on an executive committee of twenty–five of the King’s enemies.

This is the chief defect, but not the only one. Many minor faults and omissions may be traced to a similar root. Constitutional principles are conspicuously absent. The importance of a council or embryo parliament, framed on national lines; the right of such a body to influence the King’s policy in normal times as well as in times of crisis; the doctrine of ministerial responsibility; the need of distinguishing the various functions of government, legislative, judicial, and administrative—all these cardinal principles are completely ignored. Only five of the sixty–three chapters can be said to bear directly on the subject of constitutional (as opposed to purely legal) machinery, and these do so only incidentally, namely, chapters 14, 21, 39, 52, and 61.

The Commune Concilium is indeed mentioned; and its composition and mode of summons are defined in chapter 14. But this chapter appears as an afterthought—an appendix to chapter 12: it has no counterpart in the Articles of the Barons. The rebel magnates were interested in the narrow question of scutage, not in the wide possibilities involved in the existence of a national council. The Commune Concilium was dragged into the Charter, not on its own merits, but merely as a convenient method of preventing arbitrary increase of feudal exactions. This is further proved by the omission of the Council from the reissue of 1217, when an alternative way of checking the increase of scutage had been devised.

If the framers of John’s Magna Carta had possessed the grasp of constitutional principles, with which they have been sometimes credited, they would have seized the opportunity afforded them by the mention of the Common Council, in chapters 12 and 14, to define carefully the powers they claimed for it. On the contrary, no list of its functions is drawn up; nor do the words of the Charter contain anything to suggest that it exercised powers other than that of consenting to scutages and aids. Not a word is said of any right to a share in legislation, to control or even to advise the Executive, or to concur in choosing the great ministers of the Crown. Neither deliberative, administrative, nor legislative powers are secured to it, while its control over taxation is strictly limited to scutages and aids—that is to say, it only extends over the exactions that affected the military tenants of the Crown. It is true that chapters 21 and 39 may possibly be read as confirming the judicial power of the Council in a certain limited group of cases. Earls and barons are not to be amerced except by their peers (per pares suos), and the natural place for these “equals” of a Crown vassal to assemble for this purpose would be the Commune Concilium. This, however, is matter of inference; chapter 21 makes no mention of the Council; and it is equally possible that its requirements would be met by the presence among the officials of the Exchequer of a few Crown tenants. Similar reasoning applies to the provisions of chapter 39 (protecting persons and property of freemen, by insisting on the necessity of a “trial by peers”) so far as they affect earls and barons.

It is clear that the leaders of the opposition in 1215 did not consider the constitutional powers of a national Parliament to be the best safeguard of the rights and liberties theoretically guaranteed by the Charter. They relied rather on the revolutionary powers of the twenty–five barons to be appointed under chapter 61.

The same inability to devise practical remedies may be traced in minor clauses of the Charter. When John promised in chapter 16 that no one should be compelled to do greater service than was due, no attempt was made to provide machinery to define such service; while chapter 45, providing that only men who knew the law and meant to keep it, should be made justiciars, sheriffs and bailiffs, laid down no criterion of fitness, and contained no suggestion of the way in which so laudable an ambition might be realized.

Thoughtful and statesmanlike as were many of the provisions of Magna Carta, and wide as was the ground they covered, important omissions can be pointed out. Some crucial questions seem not to have been foreseen; others, for example the liability to foreign service, were deliberately shelved—thus leaving room for future misunderstandings. The praise, justly earned, by its framers for the care and precision with which they defined a long list of the more crying abuses, must be qualified in view of the failure to provide procedure to prevent their recurrence. Men had not yet learned the force of the maxim, so closely identified with all later reform movements in England, that a right is valueless without an appropriate remedy to enforce it.