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Magna Carta

Magna Carta: Its Role in the Making of the English Constitution, 1300-1629

Copyright Date: 1948
Edition: NED - New edition
Pages: 424
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  • Book Info
    Magna Carta
    Book Description:

    Magna Carta was first published in 1948. Minnesota Archive Editions uses digital technology to make long-unavailable books once again accessible, and are published unaltered from the original University of Minnesota Press editions. This important study in English constitutional history is the story of the Magna Carta from the end of the reign of Edward I to the dissolution of parliament and the completion of Sir Edward Coke’s Commentary (1300-1629). Miss Thompson surveys the various ways, practical and theoretical, in which the Charter was used by groups and individuals in English society. She examines the pertinent sources and finds that the Charter was never eclipsed in the later Middle Ages or even in the Tudor period and that its reinterpretation in the early Stuart period was not an abrupt and novel phenomenon. The statesmen who transformed a charter of feudal “liberties” into a charter of “liberty of the subject” were using a document with a long history and a reputation already made in plea rolls and Year Books, parliament and statute rolls, law treatises, and even chronicles. Miss Thompson provides considerable background material to support her emphasis on this process of interpretation, and she clearly interprets the character and motives of successive sponsors of the Charter. The value of Miss Thompson’s study is in the unusual thoroughness of her treatment of Magna Carta and in her corrections of misconceptions about the role the Magna Carta has played in the making of the English constitution._x000B_

    eISBN: 978-1-4529-3843-1
    Subjects: History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
    (pp. vii-viii)
  3. Table of Contents
    (pp. ix-2)
    (pp. 3-6)

    A study of the first century of Magna Carta served to indicate why it persisted as a document and entered upon its long career of endurance and fame, but the period set was an arbitrary one. It became obvious to the researcher that the lines of interest uncovered did not cease with the death of Edward I; that the Charter was never entirely eclipsed in the later Middle Ages or even in the Tudor period; that its reinterpretation in the early Stuart period was not something undertakende novo, an abrupt and novel phenomenon. The statesmen who transformed a charter...


    • CHAPTER I Parliamentary Confirmations and Supplementary Statutes
      (pp. 9-32)

      Thanks to Sir Edward Coke everyone is familiar with the many parliamentary confirmations of Magna Carta and the Forest Charter.¹ Again and again in his reports, speeches, and treatises the great lawyer took occasion to emphasize these confirmations as evidence of the permanence of the Great Charter and its role as fundamental law. Modern historians have accepted Coke’s count. In interpreting the contemporary purpose or value of such confirmations, they have been inclined to assume that provisions of the Charter early became obsolete and that medieval parliaments were seeking merely the moral victory of reminding the king that he was...

    • CHAPTER II Magna Carta in the Plea Rolls and Year Books
      (pp. 33-67)

      The best evidence of the lasting practical value of some chapters of the Great Charter, through the reigns of the first three Edwards at least, is that of the plea rolls and Year Books. Here are actions “founded on the statute” in which the original writ actually quotes a provision of the Charter or is traditionally believed to be based on it. Attorneys and pleaders cite it on behalf of litigants, sometimes accurately and justifiably in support of a major issue, again erroneously or as a frivolous exception, only to be corrected by their opponents or overruled by the judges....

    • CHAPTER III Magna Carta and Liberty of the Subject
      (pp. 68-99)

      Modern commentators have successfully divested chapter 29 of the clouds of glory with which it has come trailing down the centuries. The blame for the elaborate glosses which made of this chapter the “palladium of English liberties” has been laid with some justice at the door of the seventeenth-century protagonists of the common law such as Coke and Selden. Arguments of counsel in thefive knights caseand debates on the Petition of Right effectively linked chapter 29 with the writ of habeas corpus. By 1628 Coke had completed hisSecond Institute. These interpretations of the Great Charter, forged as...

    • CHAPTER IV Magna Carta and Special Interests: The City of London
      (pp. 100-120)

      Two miles from London lay Westminster, clustering round its Abbey, and its Hall which Rufus had built and which Richard II was adorning with rafters of Irish oak. Westminster had become the recognized center of royal administration, law and Parliament, although it had no commerce and no municipal privileges of its own, and was only a village at great London’s gate. There was no royal foothold inside the English capital corresponding to the Louvre in Paris. When the King came up to town, he lived sometimes at Westminster on one side of London, sometimes in the Tower on the other....

    • CHAPTER V Magna Carta and Special Interests: The English Church
      (pp. 121-136)

      No complete separate account of Magna Carta in its relations to the English church need be given here. The clergy were the literal, physical, and spiritual guardians of the Charter: they kept copies of it in their cathedral archives and contributed to its enforcement by their anathemas. Earlier chapters have shown the clergy as interested in confirmations of the Charter and as playing important roles in constitutional crises as did Archbishop Winchelsea in 1311 and Stratford in 1341. Provisions on purveyance and amercements were of value to individual “clerks,” great and small, while bishops and abbots who held by barony...


    • CHAPTER VI Magna Carta and the Printers and Chroniclers
      (pp. 139-166)

      M. Bémont’s historical sketch of the Charter concludes that from the reign of Henry VI to the Stuarts it was no longer an issue. “Parliament approved docilely the political and religious coups d’états of the fifteenth and sixteenth centuries, and the Great Charter rested in the shade.”¹ Historians have been content to accept this conclusion. Professor Cross, for instance, after enumerating certain great principles “embedded in the momentous document,” concludes “nevertheless machinery had later to be devised to make these principles operative, and there were long stretches when they were practically forgotten.” In a note he adds, “Shakespeare in his...

    • CHAPTER VII The Lawyers and Magna Carta
      (pp. 167-196)

      Nothing gives one such a surprising sense of peace and calm, stability and continuity, as to retreat from the hurly-burly of the usual textbooks and narrative histories of the Tudor period, with their wars and rumors of wars, threats of disputed successions, Edwardian agitators and Marian martyrs, into the reports and treatises. Something of the continuity in law and institutions which persists throughout this period Holdsworth attributes to the policies of that “consummate statesman,” Henry VIII, who planned and induced the nation to accept “the policy of making a Reformation in religion by way of evolution and not by way...

    • CHAPTER VIII The Puritans and Magna Carta
      (pp. 197-230)

      As a result of the interests and activities described in the last two chapters, there was available by the latter part of Elizabeth’s reign much of the “ammunition” to be used in the constitutional struggle of the next reigns. There were in print the works of Glanvill, Bracton, Britton, Fleta, and Fortescue; the Register of Writs and Fitzherbert’sNatura Brevium; the Year Books and the more recent reports of Dyer and Plowden; and treatises on the justices of the peace and the courts, such as Staunford’s and Lambarde’s, as well as on more specialized subjects such as the church and...


    • CHAPTER IX Scholarship and Controversy Intensify
      (pp. 233-267)

      Elizabeth’s successor was well-received at first. It was not yet apparent how the personality and polity of James Stuart were to jar the nice balance of crown and parliament, prerogative and common law—thedominium politicum et regaleof Fortescue, “that golden mediocritie” of Lambarde, or “our estate and pollicie exquisitlie planted and established in great wisdome,” as Morice puts it. Trevelyan, with his usual felicity, has described how

      The first of these four Stuarts, who have left their indelible negative impression upon England, ushered in the tragedy of King and people with a pageant of royal progress from Berwick...

    • CHAPTER X Chapter 29 in Courts and Inns of Court
      (pp. 268-293)

      Apart from these major disputes there were a number of individual cases, some grave, some trivial, which may have contributed to Ashley’s “finding how obvious this law was on all occasions.” Before turning to chapter 29 we may note briefly other clauses of the Charter which received some practical application, sometimes positive, sometimes negative. For instance, inSir Drue Drury’s case, Magna Carta chapter 3 construed as to what it didnotcontain, served to secure to a guardian the value of the marriage of a young ward, knighted by the king while under age. This was an important case...

      (pp. None)
    • CHAPTER XI A Decade of Parliaments, 1621-1629
      (pp. 294-353)

      In the decade from 1620 to 1630 the main interest in Magna Carta history shifts from councils and court to parliament—the third and fourth of James and the three short parliaments of Charles I, 1625, 1626, 1628–29. Even so, the chief protagonists and their opponents, in constitutional issues turning on the Charter, were not the ordinary country gentlemen or merchants but “all the lawyers in the House” in general and Sir Edward Coke in particular. Their arguments were a reflection of what had already been worked out in councils and courts. Selden drew on his own learned treatises,...

    • CHAPTER XII Coke’s Commentaries: Summation of Three Centuries
      (pp. 354-374)

      It is not easy to find a good stopping place in Magna Carta history. Yet as some point must be set to terminate these studies, the year chosen is 1629, and the last topic to receive intensive treatment, appropriately, Sir Edward Coke’s commentary on Magna Carta, theSecond Institute. Here was put into definitive form by an authoritative pen all the current knowledge and understanding of the great document, both routine and controversial, to date. To be sure, in one sense, 1629—the eve of the eleven years of no parliaments and King Charles’ seemingly successful bid for absolutism—is...

    (pp. 377-397)
    (pp. 398-405)
  10. INDEX
    (pp. 406-410)