IV.: Modern Criticism.

Until the last twenty–five years or so, commentators were wont to credit the framers of Magna Carta with anticipating most of the cardinal principles of the modern Constitution. In combating such exaggerations, it would not be unnatural to lay emphasis on the extent to which the machinery of this chapter is condemned by the standards of the nineteenth century. Yet it is well to steer a middle course, neither praising the men of 1215, nor blaming them for failing to achieve the impossible.

The faults of the scheme, whether viewed from the side of modern theory or of modern practice, are obvious. It was a violent measure, full of immediate dangers, and calculated to exercise a baneful influence on constitutional development in the future. The fact that Magna Carta provided no better sanction for its own enforcement than the right of legalized rebellion, has already been discussed as its cardinal defect. It is instructive to note a few of its other defects in detail.

(1) The scheme challenged hostility by its want of moderation. On every vexed political question of the day, John’s authority would have been superseded by that of twenty–five of the most hostile faction of the baronage. If the King thought himself aggrieved in anything, he would require to plead his cause before a tribunal in which his opponents sat as judges. The scheme was thus repugnant to loyal Englishmen, who cherished a respect for the monarchy. No King would submit tamely to remain a sovereign, whose “sovereignty” existed on sufferance of his enemies. The powers thus conferred in 1215 were more sweeping than those conferred on a similar committee in 1258, and yet the Parliament which appointed the latter has been branded as “the Mad Parliament,” because of the violence of its measures.

(2) Rebellion, even where morally justified, is necessarily illegal; to attempt to map out for it a legitimate sphere of action is to attempt the logically impossible. The barons had failed to rise to the true conception of a limited monarchy; their scheme recognized a King still absolute in some matters, but in others powerless and abject. The powers of the twenty–five, a body which received no proper organization, were those of aggression rather than of administration. Viewed in this modern light, the claims of the barons to constructive statesmanship rank low.

(3) The powers of the revolutionary committee, excessive though ill–defined, backed by the sworn obedience of all classes of the nation, would tend completely to paralyze the King. The nominal sovereign, nervous under this sword of Damocles, would lose all power of initiative, while the committee, powerful to reduce him to impotence, would be powerless to goad him into action or to act in his stead. The revolutionary committee had been planned as a drag on a bad executive, not as a good executive to take its place.

(4) Even as a drag, the efficiency of the committee would have been neutralized in either of two contingencies: if the barons composing it disagreed among themselves, or, if the King refused to surrender. Not a step to restrain the King could legally be taken, until he had received formal intimation followed by an interval of forty days, during which he might complete his preparation for war without fear of interruption.

(5) If the scheme of the barons seems ill–suited to the needs of the hour of its conception, it was fraught with even greater dangers to the future development of the English constitution. The problem it sought to solve was one of no transient or unimportant nature: the barons sought the best method of turning royal promises into laws which succeeding Kings must obey. In attempting this, Magna Carta moved along lines that were radically wrong; which, if not departed from in time, would have rendered any enduring progress impossible. The statesmanship which, while leaving one King on the throne, subjected him to the dictation of “five–and–twenty over–kings” was crude and ill–advised. It is true that the party of reform, throughout the long reign of Henry III., clung to the same erroneous solution; but they met with no success. After half a century of unrest, a settlement seemed as far distant as before. The dangers of schemes like those of 1215, 1244, and 1258 are clearly seen in contrast with the more tactful efforts of Edward I. towards a true solution, along lines leading in due time to complete success.

The true policy for the barons was to use the King’s own administrative machinery and the King’s own servants to control the King. The principle was slowly established that the sovereign could perform no single act of prerogative except through the agency of a particular officer or organ of the royal household; while very gradually the doctrine of ministerial responsibility grew up, compelling each officer of the Crown to obey not only the law of the land, but also the Commune Concilium, fast changing into the modern Parliament. The credit of starting the constitution on its right line of development is in great measure due to Edward 1.