Читать книгу Magna Carta: A Commentary on the Great Charter of King John. With an Historical Introduction онлайн
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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.