[177]. Stephen was not justified in this last assumption. See Round, Geoffrey, 9.
[178]. The charter of Henry II. is given in Bémont, Chartes, 13, and in Select Charters, 135. It seems worth while to mention in this connection a notable mistake of a writer whose usual accuracy is envied by his brother historians. Mr. J. H. Round (Engl. Hist. Rev., VIII. 292) declares that “the royal power had increased so steadily that Henry II. and his sons had been able to abstain from issuing charters, and had merely taken the old tripartite oath.”
[179]. See supra, p. [32], and Round, Eng. Hist. Rev., VIII. 292.
[181]. Supra, p. 35.
[182]. Supra, p. 38.
II. Magna Carta: its Form and Juridical Nature.
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.