VI. Magna Carta: Value of Traditional Interpretations.
The Great Charter has formed a favourite theme for orators and politicians in all periods of English history, partly because of its intrinsic merit, partly because of the dramatic background of its historical setting, but chiefly because it has been, from the time of its inception down to the present day, a rallying cry and a protecting bulwark in every crisis which threatened to endanger the national liberties.
The uses to which it has been put, and the interpretations which have been read into it, are so numerous and so varied, that they would require a separate treatise to do them justice. Not only was Magna Carta, as will be shown in some detail in a later section, frequently reissued and confirmed, but its provisions have been asserted and re-asserted time after time, in Parliament, in the courts of justice, and in institutional works on jurisprudence. Its influence has thus been threefold; and any attempt to explain its bearing on the subsequent history of English liberties would require to distinguish between these three separate and equally important aspects. (1) It has supplied a powerful instrument in the hands of politicians, especially of the leaders of the House of Commons in the seventeenth century, when waging the battle of constitutional freedom against the Stewart dynasty. (2) Its legal aspect has been as important as its political one, since it has been cited in innumerable litigations before the various courts of law. In the course of legal debate and of judicial opinions, it has been the subject of many and conflicting interpretations, some of them accurate and some erroneous. (3) Finally, it has been discussed in many commentaries either exclusively devoted to its elucidation or else treating of it incidentally in the course of general expositions of the law of England.
An exhaustive search throughout the seven centuries which separate us from 1215 for instances in which Magna Carta has appeared in the arena of politics, on the judicial bench, or in legal treatises would prove a gigantic task, but could hardly fail to illustrate the inestimable services it has rendered to English liberties.
In the light of the important part which Magna Carta has thus played throughout many centuries of English history, it need not excite wonder that the estimation in which it was held, high as that was from a very early period, has gradually increased, until it has overstepped all due bounds, and has become utterly exaggerated and distorted. While some sympathy may be felt for such extravagant admiration, not unnatural in the circumstances, it is clearly the duty of the commentator to correct false impressions. It is well to point out that no document of human origin can be really worthy of the excessive eulogy of which the Great Charter has been made the subject; unfortunately, it has more frequently been described in terms of inflated rhetoric than of sober methodical analysis. [229]
Nor has this tendency to unthinking adulation been entirely confined to popular writers; judges and institutional authors, even Sir Edward Coke himself, have too often lost the faculty of critical and exact scholarship when confronted with the virtues of the Great Charter. There is scarcely one great principle of the English constitution of the present day, or indeed of any constitution in any day, calculated to secure national liberties, or otherwise to win the esteem of mankind, which has not been read by commentators into the provisions of Magna Carta. In particular, the political leaders of the seventeenth and eighteenth centuries discovered among its chapters every important reform which they desired to introduce into England, thereby disguising the revolutionary nature of many of their projects by dressing them in the garb of the past.
Many instances of the constitutional principles and institutions, with the origin of which successive commentators have erroneously credited the Great Charter, will be expounded under the appropriate chapters of the sequel. It will be sufficient in the meantime to enumerate trial by jury; the right of every prisoner to obtain a writ of Habeas Corpus; the abolition of all arbitrary imprisonment at the king’s command; the complete prohibition of monopolies; the enunciation of a close and indissoluble tie between taxation and representation; equality of all and sundry before the law; a matured conception of nationality, embracing high and low, freeman and villein alike: all these, and more, have been discovered in various clauses of the Great Charter. [230]
If these tendencies to excessive and sometimes ignorant praise have been unfortunate from one point of view, they have been most fortunate from another. The legal and political aspects must be sharply contrasted. On the one hand, the vague and inaccurate words used in speaking of the Charter even by great lawyers, such as Coke (not necessarily equally great as historians, living as they did in an age when the science of history was unknown), have not only obscured the bearing of many chapters, but have done a distinct injury to the study of the development of English law. On the other hand, as the mistakes made in commenting on the Charter have been almost entirely due to a laudable desire to extend as widely as possible its provisions in favour of individual and national liberties, and to magnify generally its importance; the service these very errors have done to the cause of constitutional progress is measureless. If political bias has coloured the interpretation placed on many of the most famous clauses, the ensuing benefit has accrued not to any one narrow party or faction, not to any separate class or interest, but rather to the entire body politic and to the cause of national progress in its widest and best developments.
Thus the historian of Magna Carta, while bound to correct estimates now seen to be erroneous in the light of modern research, cannot afford to despise or under-estimate the value of traditional interpretations. The meanings which have been read into it by the learned men of later ages, and which have been acquiesced in by public opinion of the day, have had an equally potent effect whether they were historically well founded or ill founded. The stigma of being banned by the Great Charter was usually too great a burden for any institution or line of policy to bear. If the belief prevailed that an abuse complained of was really prohibited by Magna Carta, the most arbitrary king had difficulty in finding judges who would declare it legal, or trustworthy ministers who would persevere in enforcing it. The prevalence of such a belief was the main point; whether it was well or ill founded was, for political purposes, quite immaterial. The greatness of Magna Carta lies not so much in what it was to its framers in 1215, as in what it afterwards became to the political leaders, to the judges and lawyers, and to the entire mass of the men of England in later ages.
229. Extravagant estimates of its value will readily occur to anyone acquainted with the literature of the subject. For example, Sir James Mackintosh (History of England, I. 218, edn. of 1853) declares that we are “bound to speak with reverential gratitude of the authors of the Great Charter. To have produced it, to have preserved it, to have matured it, constitute the immortal claim of England upon the esteem of mankind. Her Bacons and Shakespeares, her Miltons and Newtons, etc., etc.” Such uncritical eulogy contributes nothing to the understanding of Magna Carta.
230. Edmund Burke (Works, II. 53, edn. of 1837, Boston) credits Magna Carta with creating the House of Commons! “Magna Charta, if it did not give us originally the House of Commons, gave us at least a House of Commons of weight and consequence.” As will be shown in the sequel, chapter 14 of the Great Charter (the only one bearing on the subject) is in reality of a reactionary nature, confining the right of attendance at the commune concilium to the freeholders of the Crown and departing from the precedent of two years earlier, which introduced representatives of each county.
