II. Provisions classified according as they are of a progressive, reactionary, or declaratory nature.
Among the many questions pressing for answer, none seem more natural than those which inquire into the relations between the promises made in the Charter and the system of government actually at work under Henry of Anjou and his sons; or the relations between these promises and the still older laws of Edward Confessor.
The view generally entertained is that the provisions of Magna Carta are chiefly, if not exclusively, of a declaratory nature. The Great Charter has for many centuries been described as an attempt to confirm and define existing customs rather than to change them. In the words of Blackstone,[[196]] writing in 1759, “It is agreed by all our historians that the Great Charter of King John was for the most part compiled from the ancient customs of the realm, or the laws of King Edward the Confessor, by which they usually mean the common law, which was established under our Saxon princes, before the rigours of feudal tenures and other hardships were imported from the continent.” Substantially the same doctrine has been enunciated only the other day, by our highest authority. "On the whole, the charter contains little that is absolutely new. It is restorative. John in these last years has been breaking the law; therefore the law must be defined and set in writing.[[197]] This view seems, on the whole, a correct one; the insurgents in 1215 professed to be demanding nothing new, but merely a return to the good laws of Edward Confessor, as supplemented by the promises contained in the charter of Henry I. An unbroken thread runs back from Magna Carta to the laws and customs of Anglo-Saxon England and the old coronation oaths of Ethelred and Edgar. Yet the Great Charter contained much that was unknown to the days of the Confessor and had no place in the promises of Henry I. In many points of detail the Charter must look for its antecedents rather to the administrative changes introduced by Henry II. than to the old customary law that prevailed before the Conquest.
Thus it is not sufficient to describe Magna Carta merely as a declaratory enactment; it is necessary to distinguish between the different sources of what it declared. A fourfold division may be suggested. (1) Magna Carta embodied and handed down to future ages some of the usages of the old customary law of Anglo-Saxon England, unchanged by the Conqueror or his successors, now confirmed and purified from abuses. (2) In defining feudal incidents and services, it confirmed many rules of the feudal law brought into England by the Normans subsequently to 1066. (3) It also embodied many provisions of which William I. and even Henry I. knew no more than did the Anglo-Saxon kings—innovations introduced for his own purposes by Henry of Anjou, but, after half a century of experience, now accepted loyally even by the most bitter opponents of the Crown. In the words of Mr. Prothero, “We find ... the judicial and administrative system established by Henry II. preserved almost intact in Magna Carta, though its abuse was carefully guarded against.”[[198]] Finally, (4) in some few points, the Charter actually aimed at going farther than Henry II., great reformer as he was, had intended to go. Thus, to mention only two particulars, the Petty Assizes are to be taken in every county four times a year, while sheriffs and other local magistrates are entirely prohibited from holding pleas of the Crown.
There are two further reasons why we cannot be content with an explanation which dismisses Magna Carta with the bald statement that its provisions are merely of a declaratory nature. History has proved the universal truth of the theory that a purely declaratory enactment is impossible; since the mere lapse of time, by producing an altered historical context, necessarily changes the purport of any Statute when re-enacted in a later age. Even if words identically the same are repeated, the new circumstances read into them a new meaning. Such is the case even when the framers of these re-enactments are completely sincere, which, often, they are not. It is no unusual device for innovators to render their reforms more palatable by presenting them disguised as returns to the past. Magna Carta affords many illustrations of this. Its clauses, even where they profess to be merely confirmatory of the status quo, in reality alter existing custom.
Further, it is of vital importance to bear in mind the exact nature of the provisions confirmed or declared. A re-statement of some of the more recent reforms of Henry II. (or of those of Archbishop Hubert Walter, following in his footsteps) leads logically to progress rather than to mere stability; while the professed confirmation of Anglo-Saxon usages or of ancient feudal customs, fast disappearing under the new régime, implies retrogression rather than standing still. Chapters 34 and 39 of Magna Carta, for example, are of this latter kind. They really demand a return to the system in vogue prior to the innovations of Henry II. when they declare in favour of feudal jurisdictions. Thus, some of the provisions of the Great Charter which, at a casual glance, appear to be correctly described as declaratory, are, in reality, innovations; while others tend towards reaction.
III. Provisions classified according to the estates of the community in whose favour they were conceived.
This third principle of arrangement would stand condemned as completely misleading, if it were necessary to accept as true, in any literal sense, the assertions so frequently made concerning the absolute equality of all classes and interests before the law—as that law was embodied in Magna Carta. Here, then, we are face to face with a fundamental question of immense importance: Does the Great Charter really, as the orthodox traditional view so vehemently asserts, protect the rights of the whole mass of humble Englishmen equally with those of the proudest noble? Is it really a great bulwark of the constitutional liberties of the nation, considered as a nation, in any broad sense of that word? Or is it rather, in the main, a series of concessions to feudal selfishness wrung from the King by a handful of powerful aristocrats? On such questions, learned opinion is sharply divided, although an overwhelming majority of authorities range themselves on the popular side, from Coke (who assumes in every page of his Second Institute that the rights won in 1215 were as valuable for the villein as for the baron) down to writers of the present day. Lord Chatham in one of his great orations[[199]] insisted that the barons who wrested the Charter from John established claims to the gratitude of posterity because they “did not confine it to themselves alone, but delivered it as a common blessing to the whole people”; and Sir Edward Creasy,[[200]] in citing Chatham’s words with approval, caps them with more ecstatic words of his own, declaring that one effect of the Charter was “to give and to guarantee full protection for property and person to every human being that breathes English air.” Lord Chatham indeed spoke with the unrestrained enthusiasm of an orator; yet staid lawyers and historians like Blackstone and Hallam seem to vie with him in similar expressions. “An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter”; so we are told by Hallam.[[201]] Bishop Stubbs unequivocally enunciated the same doctrine. “Clause by clause the rights of the commons are provided for as well as the rights of the nobles.... This proves, if any proof were wanted, that the demands of the barons were no selfish exactions of privilege for themselves.”[[202]]
Dr. Gneist is of the same opinion. “Magna Carta was a pledge of reconciliation between all classes. Its existence and ratification maintained for centuries the notion of fundamental rights as applicable to all classes in the consciousness that no liberties would be upheld by the superior classes for any length of time, without guarantees of personal liberties for the humble also.”[[203]]
“The rights which the barons claimed for themselves,” says John Richard Green,[[204]] before proceeding to enumerate them, “they claimed for the nation at large.” The testimony of a very recent writer, Dr. Hannis Taylor,[[205]] may close this series. “As all three orders participated equally in its fruits, the great act at Runnymede was in the fullest sense of the term a national act, and not a mere act of the baronage on behalf of their own special privileges.” It would be easy to add to this “cloud of witnesses,” but enough has been said to prove that it has been a common boast of Englishmen, for many centuries, that the provisions of the Great Charter were intended to secure, and did secure, the liberties of every class and individual of the nation, not merely those of the feudal magnates on whose initiative the quarrel was raised.