Читать книгу Magna Carta: A Commentary on the Great Charter of King John - William Sharp McKechnie - Страница 22

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Much ingenuity has been expended, without adequate return, in the effort to discover which particular category of modern jurisprudence most exactly describes the Great Charter of John. 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.

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 were then endowed with political rights, and these concurred with him in the granting of Magna Carta. The consent of all who claimed a share in the making or repealing of laws—archbishops, bishops, abbots, earls, and crown-tenants, great and small—entitles the Charter to rank as a regular 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; many individuals with the right and duty of attendance had no opportunity to be present. Further, the whole proceedings were tumultuary; the barons assembled in military array and compelled the consent of John by turbulence and 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.

On the other hand, it may be argued 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 A law made by the king in one national assembly might be repealed by the king in another; whereas the Great Charter was intended by the barons to be unchangeable.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—a fundamental condition of John’s continued possession of the throne.^[183]

Magna Carta has also been frequently described as a treaty. Such is the verdict of Dr. Stubbs.^[184] “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.”^[185] This view receives some support from certain words contained in chapter 63 of the Charter itself: “Juratum est autem tam ex parte nostra quam ex parte baronum, quod haec omnia supradicta bona fide et sine malo ingenio observabuntur.”

It is not sufficient to urge against this theory, as is sometimes done, that the concord was entered into in bad faith by one or by both of the contracting parties. It is quite true that the compromise it contained was accepted merely as a cloak under which to prepare for war; yet jurisprudence, in treating of formal documents granted under seal, pays no attention to sincerity or insincerity, but looks merely to the formal expression of consent.

Interesting questions might also be raised as to how far it is correct to extend to treaties the legal rule which declares void or voidable all compacts and agreements induced by force or fear. In a sense, every treaty which ends a great war would fall under such condemnation, since the vanquished nation always bows to force majeure. Such claims as the Great Charter may have to rank as a treaty are not, therefore, necessarily weakened by John’s subsequent contention that when granting it he was not a free agent.

There is, however, a more 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 merely fragments of one nation or State, torn asunder by mutual fears and jealousies.

Some authorities discard alike the theory of legislation and the treaty theory to make way for a third, namely, that Magna Carta is merely a contract, pact, or private agreement. M. Emile Boutmy is of this opinion. "Le caractère de cet acte est aisé à définir.^[186] 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."^[187]

Thus considered, the proudest act of the national drama would take its place in the comparatively humble legal category which includes such transactions as the hire of a waggon or the sale of a load of corn. There are, however, fatal 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 declared consent of the contracting parties, it seems safer to describe it as a public treaty than as a private or civil pact devoid of political significance.

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 the political history of France and of the United States; while a recent American writer on English constitutional development seems almost to regard 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.”^[188]

It would be easy to find examples of attempts to compromise between these competing theories, by combining two or more of them. Thus, a high English authority declares that “the Great Charter is partly a declaration of rights, partly a treaty between Crown and people.”^[189]

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 the rebel magnates, the purport of which was that the latter should renew their oaths of fealty and homage, and give security that they would keep these oaths, while John, in return, granted “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 of this bargain, however, had to be drawn up in proper legal form, so as to bear record for all time to the exact nature of the provisions therein contained, and also to the authenticity of John’s consent thereto. 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 addition of a seal—just as in the case of a grant of land, and with many of the clauses appropriate to such a grant.^[190]

John grants to the freemen of England and their heirs certain specified rights and liberties, as though these were merely so many hides or acres of land. Concessimus etiam omnibus liberis hominibus regni nostri, pro nobis et haeredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas, eis et haeredibus suis, de nobis et haeredibus nostris.^[191] 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.^[192] 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.^[193]

The results of this inquiry seem then to be completely negative. It is useless to describe phenomena of the thirteenth century in modern phraseology which would have been unintelligible to contemporaries. Medieval lawyers experienced great difficulties in trying to express the actual facts of their day in terms of such categories of the Roman jurisprudence as had survived the fall of Rome and Roman civilization. There is no one of the ancient or modern categories which can be applied with confidence to the Great Charter or to the transaction of which it is the record. Magna Carta may perhaps be described as a treaty or a contract which enacts or proclaims a number of rules and customs as binding in England, and reduces them to writing in the unsuitable form of a feudal charter granted by King John to the freemen of England and their heirs.

183. The quid pro quo received by the King was merely the promise of conditionel homage, dependent (as we learn from chapter 63) on his observance of the conditions of the Charter. This arrangement may be compared with the agreement made between Stephen and the Earl of Gloucester in 1136 (see supra, p. 120), and it bears some points of analogy with the procedure adopted by the framers of the Bill of Rights, who inserted a list of conditions in the Act of Parliament which formed the title of William and Mary to the throne of England.

184. Const. Hist., I. 569.

185. Mr. Prothero is of the same opinion (Simon de Montfort, 15). It was “in reality a treaty of peace, an engagement made after a defeat between the vanquished and his victors.”

186. Here we differ from him.

187. Études de droit constitutionnel, 41.

188. Prof. Jesse Macy, English Constitution, 162.

189. Sir William R. Anson, Law of the Constitution, I. 14.

190. In strict legal theory the complete investiture of the grantee required that “charter” should be followed by “infeftment” or delivery (real or constructive) of the subject of the grant. In the case of such intangible things as political rights and liberties, the actual parchment on which the Charter was written would be the most natural symbol to deliver to the grantees.

191. See chapter 1. The grant which thus purports to be perpetually binding on John’s heirs, was in practice treated as purely personal to John, and requiring confirmation by his son. Yet this also was in strict accordance with feudal theory, which required the heir to complete his title to his deceased father’s real estate by obtaining a Charter of Confirmation from his lord, for which he had to pay “relief.” The liberties of the freemen were only a new species of real estate.

192. Prof. Maitland, Township and Borough, p. 76, explains some of the absurdities involved: "Have you ever pondered the form, the scheme, the main idea of Magna Charta? If so, your reverence for that sacred text will hardly have prevented you from using in the privacy of your own minds some such words as ‘inept’ or ‘childish.’ King John makes a grant to the men of England and their heirs. The men of England and their heirs are to hold certain liberties of that prince and his heirs for ever. Imagine yourself imprisoned without the lawful judgment of your peers, and striving to prove while you languish in gaol that you are heir to one of the original grantees. Nowadays it is only at a rhetorical moment that Englishmen ‘inherit’ their liberties, their constitution, their public law. When sober, they do nothing of the kind. But, whatever may have ‘quivered on the lip’ of Cardinal Langton and the prelates and barons at Runnymead, the speech that came was the speech of feoffment. Law, if it is to endure, must be inherited. If all Englishmen have liberties, every Englishman has something, some thing, that he can transmit to his heir. Public law cannot free itself from the forms, the individualistic forms of private law."

193. Pollock and Maitland, I. 150, emphasize this disparity. “In form a donation, a grant of franchises freely made by the king, in reality a treaty extorted from him by the confederate estates of the realm, ... it is also a long and miscellaneous code of laws.” Cf. also Ibid., I. 658.