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.