II. Previous Editions and Commentaries.
Every general history of England and almost every book which has ever appeared on English law has had something to say by way of commentary on Magna Carta. It is perhaps for this very reason that exceedingly few treatises have been devoted exclusively to its elucidation. While edition after edition of the text of the Charter, or of its re-issues, have appeared, few of these have been accompanied by explanations however brief. The paucity of attempts to explain the meaning of the Charter is almost more remarkable than the frequency with which the text has been reproduced. Magna Carta is a document often printed, but seldom explained.
I. Printed Editions of the Text of Magna Carta. Previous to 1759 even the best informed writers on English history laboured under much confusion in regard to the various charters of liberties. Few of them seem to have been aware that fundamental differences existed between the original charter granted by John and the re-issues of Henry III. Much of the blame for this confusion must be borne by Roger of Wendover, who, in his account of the transactions at Runnymede, incorporated, in place of John’s Charter, the text of the two charters granted by Henry.[[310]]
The early historians were content to rely either on this version or on that contained in the Inspeximus of Edward I. Thus, in all early printed collections of statutes, the text which professes to represent the original Charter follows in reality the words of Henry’s third re-issue. The very earliest printed edition of Magna Carta seems to have been that published on 9th October, 1499, by Richard Pynson, the King’s printer,[[311]] and a contemporary of Wynkyn de Worde. This was not, of course, John’s Charter, but followed Edward’s Inspeximus of Henry’s Charter of 1225.
Since the middle of the eighteenth century, many editions of the text of John’s Great Charter have been published, either alone or along with the text of the various re-issues of the reign of Henry III.; but it seems unnecessary to mention more than four of these.
(1) In 1759 appeared Sir William Blackstone’s scholarly work entitled The Great Charter and The Charter of the Forest, containing accurate texts of all the important issues of the Charters of Liberties carefully prepared from the original manuscripts so far as these were known to him.[[312]]
(2) In some respects the Record Commissioners have improved even on Blackstone’s work in their edition of the Statutes of the Realm, published in 1810. A special section of the volume is devoted to Charters of Liberties, where not only the grants of John and Henry III., but also the charters which led up to them, and their subsequent confirmations, have received exhaustive treatment.
(3) A carefully revised text, Magna Carta regis Johannis, was published by Dr. Stubbs in 1868; and the various charters are also to be found, arranged in chronological order, in his well-known volume, first published in 1870, entitled Select Charters and other illustrations of English Constitutional History, a convenient collection easily accessible to all students of law and history.
(4) For the continuous study of the sequence of charters, the best book of reference is Chartes de Libertés Anglaises by M. Charles Bémont published in 1892, in the pages of which the various editions of John’s and Henry’s charters will be found in a form convenient for comparison with each other, and with previous and succeeding documents.
II. Commentaries and Treatises. It is doubtful whether any good purpose would be served by the preparation of a list of all the books which contain casual references to Magna Carta or to its provisions; and it is clear that the task would be an extremely burdensome one. There is no difficulty, however, in naming the few treatises of outstanding merit which have been exclusively or mainly devoted to the exposition of the Great Charter. Of these only nine require special mention.
(1) The mysterious medieval lawbook known as the Mirror of Justices contains a chapter upon Magna Carta which has some claims to rank as a commentary, although it represents the opinions of a political pamphleteer rather than those of an unbiassed judge. The date of this treatise is still the subject of dispute. It has been usual to place it not earlier than the years 1307-27, mainly because it makes mention of “Edward II.” Prof. Maitland, however, dates it earlier, maintaining on general grounds that it was “written very soon after 1285, and probably before 1290.”[[313]] He explains the reference to “Edward II.” as applying to the monarch now generally known in England as Edward I., but sometimes in his own reign known as Edward II., to distinguish him from an earlier Edward, still enshrined in the popular imagination, namely, Edward Confessor. Mr. Maitland is not disposed to treat this work of an unknown author too seriously, and warns students against “his ignorance, political bias, and deliberate lies.”[[314]]
(2) Dismissing the Mirror, then, as a dangerous and possibly disingenuous guide, the earliest serious commentary known to exist is that of Sir Edward Coke, formerly Lord Chief Justice. This elaborate treatise, forming the second of Coke’s four Institutes, was published in 1642 under direction of the Long Parliament, the House of Commons having given the order on 12th May, 1641.[[315]]
Although this commentary, like everything written by Coke, was long accepted as a work of great value, its method is in reality entirely uncritical and unhistorical. The great lawyer reads into Magna Carta the entire body of the common law of the seventeenth century of which he was admittedly a master. He seems almost unconscious of the great changes accomplished by the experience and vicissitudes of the four eventful centuries which had elapsed since the Charter had been originally granted. The various clauses of Magna Carta are thus merely occasions for expounding the law as it stood, not at the beginning of the thirteenth century, but in his own day. In the skilful hands of Sir Edward, the Great Charter is made to attack the abuses of James or Charles, rather than those of John or Henry, which its framers had in view. In expounding the judicium parium, for example, he carefully explains many minute details of procedure before the Court of the Lord High Steward, and describes elaborately the nature of the warrants to be issued prior to the arrest of any one by the Crown; while, in the clause of Henry’s Charter which secures an open door to foreign merchants in England “unless publicly prohibited,” he discovers a declaration that Parliament shall have the sole power to issue such prohibitions, forgetful that the regulation of trade was an exclusive prerogative of the Crown with which Parliament had no right to interfere for many centuries subsequent to the reign of Henry III.
(3) In 1680 Mr. Edward Cooke, barrister, published a small volume entitled Magna Charta made in the ninth year of King Henry III. and confirmed by King Edward I. in the twenty-eighth year of his reign. This contained a translation of Henry’s Magna Carta with short explanatory notes founded mainly on the commentary of Sir Edward Coke. In his Preface, Mr. Cooke declared that his object was to make the Great Charter more accessible to the public at large, since, as he said, “I am confident, scarce one of a hundred of the common people, know what it is.”
(4) Sir William Blackstone’s Introduction to his edition of the charters, published in 1759, as already mentioned, contains valuable information as to the documents he edits; but he explicitly disclaims all intention of writing a Commentary. He is careful to state “that it is not in his present intention, nor (he fears) within the reach of his abilities, to give a full and explanatory comment on the matters contained in these charters.”[[316]]
(5) The Hon. Daines Barrington published in 1766 his Observations upon the Statutes from Magna Charta to 21 James I. This book contains some notes on the Charter also founded chiefly upon Coke’s Second Institute; his original contributions are not of outstanding value.
(6) In 1772 Prof. Francis Stoughton Sullivan gave to the public his course of lectures previously delivered in the University of Dublin under the title An Historical Treatise on the Feudal Law, with a Commentary on Magna Charta. The author’s own words give a sufficiently accurate conception of its scope and value: “I shall therefore proceed briefly to speak to Magna Charta, and in so doing shall omit almost all that relates to the feudal tenures, which makes the greatest part of it, and confine myself to that which is now law.”[[317]]
(7) Mr. John Reeves’ invaluable History of English Law, the first edition of which appeared in 1783-84, marked the commencement of a new epoch in the scientific study of the genesis of English law. Treating incidentally of Magna Carta, he shows wonderful insight into the real purport of many of its provisions, but the state of historical knowledge when he wrote rendered many serious errors inevitable.
(8) In 1829, Mr. Richard Thomson published an elaborate edition of the charters combined with a commentary which contains much useful information, but makes no serious attempt to supplement the unhistorical explanations of Sir Edward Coke by the results of more recent investigations in the provinces of law and history. His work is a storehouse of information which must, however, be used with caution.
(9) In many respects, the most valuable contribution yet made to the elucidation of the Great Charter is that contained in M. Charles Bémont’s preface to his Chartes des Libertés Anglaises, published in 1892. Although he has subjected himself to the severe restraints imposed by the slender size of his volume and by a rigid desire to state only facts of an undisputed nature, leaving theories strictly alone; he has, nevertheless, done much to help forward the study of the charters. In particular he has performed an important service by insisting upon the close mutual connection between the various Charters of Liberties, from that of Henry I. down to the confirmations of Edward I., and of subsequent kings. It is doubtful, however, whether by this very insistence upon the gradual process of development which may be traced in this long series, he does not lay himself open to the misconception that he takes too narrow a view of the scope and relations of the Charter. Magna Carta’s points of contact with the past and future history of English liberties and English laws and institutions must not be narrowed down to those occurring in one straight line. Its antecedents must not be looked for exclusively among documents couched in the form of charters, nor its results merely in their subsequent confirmations. It is impossible to understand it aright, except in close relation to all the varied aspects of the national life and the national development. Every Act appearing on the Statute Rolls is, in a sense, an Act amending Magna Carta; while such enactments as the Statute of Marlborough and the Statute of Westminster I. have as intimate a connection with John’s Great Charter as the Confirmatio Cartarum or the Articuli super Cartas have. This is a truth which M. Bémont undoubtedly recognizes, though the scheme of his book led him rather to emphasize another and, at first sight, contradictory aspect of his subject. His object was not to explain the numerous ways in which the Charters of Liberties are entwined with the whole of English history, but merely to furnish a basis for the accurate study of one of their most important features. His book is indispensable, but is not intended to form, in any sense, a commentary on Magna Carta.
It would thus appear that only two serious attempts have been made to produce treatises forming, explicitly and exclusively, commentaries on the Great Charter, namely the Second Institute of Coke and the laborious and useful work of Mr. Richard Thomson. Since Mr. Thomson’s Magna Charta appeared, three-quarters of a century have passed, marking an enormous advance in historical and legal science; yet the results of modern research, so capable of throwing light on the subject-matter of the Great Charter, have never been systematically brought to bear upon it. Dr. Stubbs, from whom such a work would have been especially welcome, contented himself with giving a paraphrase or abstract of the Charter, rendering into English equivalents as literally as possible the actual words of his Latin text—a cautious course, which cannot lead his disciples astray, but leaves them to the guidance of their own ignorance rather than of his knowledge. The reason given by Dr. Stubbs for keeping silence is rather the excess than the absence of information. “The whole of the constitutional history of England,” he tells us, “is little more than a commentary on Magna Carta.”[[318]] It is for this reason, presumably, that he refrains from all explanations and confines himself to an abstract of its main provisions. While thus many invaluable hints may be obtained from the pages of the three volumes of his history, and from his other works, Dr. Stubbs has not in any of his published writings contributed anything of the nature of a direct commentary upon John’s Great Charter. In this policy, he has been followed by the members of the great modern school of English historians of which he is the founder.[[319]]
Many valuable hints may be obtained from other writers such as Dr. Gneist, Sir Edward Creasy, Mr. Taswell Langmead, Dr. Hannis Taylor, Miss Norgate, and Sir James Ramsay,[[320]] but their efforts to explain the meaning of the Great Charter take the form of disconnected notes, rather than of exhaustive commentaries.[[321]]
[310]. R. Wendover, III. 302-318.
[311]. This date is given by Bémont, Chartes, lxxi., but Robert Watt in his Bibliotheca Britannica, Thomson, Magna Charta, 450, and Lowndes, Bibliographer’s Manual, 1449, all give the date of the earliest edition as 1514. Bémont, lxxi., and Thomson, 450–460, Watt, and Lowndes furnish details of the various editions of Pynson, Redman, Berthelet, Tottel, Marshe, and Wight, from 1499 to 1618. All of these are now superseded by the Statutes of the Realm, published by the Record Commission in 1810.
[312]. The substance of this admirable edition, now unhappily scarce, has been reproduced in the same author’s Tracts (1762).
[313]. See The Mirror of Justices (edited for the Selden Society by Prof. Maitland), Introd., xxiii. to xxiv.
[314]. Ibid., xxxvii. Cf. xlviii.
[315]. See Dictionary of National Biography, XI. 243.
[316]. Introduction, p. ii.
[317]. See p. 375 of the work cited.
[318]. See Const. Hist., I. 572, and cf. Select Charters, 296.
[319]. One of the most brilliant members of that school, Mr. Prothero, whose power of rendering difficult subjects both lucid and interesting would specially have qualified him for the task of explaining Magna Carta, declines the task partly upon the ground that it would be impossible "to throw any new light on a subject exhausted by the ablest writers."—S. de Montfort, p. 14.
[320]. The works of these and other authors are mentioned in the Appendix.
[321]. It is unnecessary to do more than mention A Historical Treatise on Magna Charta by Mr. Boyd C. Barrington, of the Philadelphia Bar (1899), of which the author says (p. ii.): “No claim is made for originality, but solely for research, which has been exhaustive in every line I can pursue.” It is dismissed by his distinguished fellow-countryman, Dr. Gross (Sources and Literature of English History, p. 348), as “of little value.”