[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.
III. Magna Carta: its Contents and Characteristics.
The confirmation of the rights enumerated in the sixty-three chapters of the Charter represented the price paid by John for the renewed allegiance of the rebels. These rights are fully discussed, one by one, in the second part of the present volume: a brief description of their more prominent characteristics, when viewed as a collective whole, is, therefore, all that is here required.
In the attempt to analyze the leading provisions, various principles of classification have been adopted. Three of these stand out prominently: the various chapters may be arranged according to the functions of the central government which they were intended to limit; according to their own nature as progressive, reactionary, or merely declaratory; and, finally, according to the classes of the community which reaped the greatest benefit.
I. Provisions classified according to the various prerogatives of the Crown which they affect.
Dr. Gneist[[194]] adopts this principle of division, and arranges the chapters of Magna Carta into five groups according as they place legal limitations (1) on the feudal military power of the Crown, (2) on its judicial power, (3) on its police power, (4) on its financial power, or (5) furnish a legal sanction for the enforcement of the whole. In spite of Dr. Gneist’s high authority, it is doubtful whether an analysis of Magna Carta upon these somewhat arbitrary lines throws much light on its main objects or results. Such a division, if convenient for some purposes, seems artificial and unreal, since it is founded on distinctions which were not clearly formulated in the thirteenth century. The adoption of such a principle of classification with reference to a period when the various functions of the executive were still blended together indiscriminately is somewhat of an anachronism.[[195]]