MAGNA CARTA, A PAGEANT-DRAMA.

BY

THOMAS WOOD STEVENS.

FOREWORD BY ROSCOE POUND.

When the pageant we are to witness recalls Magna Carta, now somewhat more than seven hundred years old, those of us who are lawyers should not forget that this year is also the three hundredth anniversary of a book that means quite as much to our private law as Magna Carta to our public law, namely, Coke upon Littleton. The name of Coke is inseparable from Magna Carta. The commentary on the Great Charter in his Second Institute is the medium through which it entered into our constitutional law. The Second Institute was printed by order of the Long Parliament and was almost a bible to the founders of our polity. Lawyers have looked at Magna Carta through Coke's spectacles ever since. Indeed, he made its provisions living law for Anglo-American jurisdictions. But what the Second Institute did for our public law on the basis of the Great Charter, the First Institute did for our private law on the basis of the medieval land law. If we have built our constitutional law upon the one, we have built upon the other no less securely our law of private rights and private enterprise. Let us not forget that our economic order, our industrial development, our regime of free scope for inventive genius and creative activity rest on private law no less than on public law-on the First Institute no less than on the second, on the medieval land law no less than on the medieval public law formulated in and symbolized by the Great Charter. When in his First Institute, Coke called the tenant in fee simple (the medieval idea) an absolute owner (the modern idea) he was using the new word ownership" in a very new sense, and his use of it in this sense in what became a book of authority, was a great step toward the individualist law of the next three centuries.

You will see a representation of the Barons in arms and the solemn grant or statute or treaty-it is something of all of

these by which the Great Charter was established. Perhaps the pageant of Coke's Institutes can only be in the lawyer's mind. Perhaps it has no dramatic possibilities for an outdoor spectacle. It is true, as one reads the table to Coke on Littleton, he may note more than one venerable institution of the old land law which might yield an episode: the lord collecting an aid from his tenants to meet the expense of making his son a knight or of marrying his daughter, the lord selling the marriage of his tenant's heir, the feoffor in a livery of seisin delivering a clod from the land of the feoffee in token of the seisin, the remainderman after a disseised life tenant making continual claim, the heir of a disseissee entering upon the land, the tenant in a writ of right throwing his glove upon the floor of the court and demanding trial by battle, the lord seizing his tenant's best cow as a heriot, the tenant by cornage blowing a horn to warn of the coming of invaders, the tenant following the king on foot in his wars until he had worn out a pair of shoes of the price of four pence. Surely there are dramatic possibilities here. But in the pageant that passes before the lawyer's mind, he will see feudal incidents-fines, reliefs, aids, and primer seisinshe will see following them the old conveyances, feoffment and livery, fine and recovery, lease and release, and surrender, followed by the conveyances through uses, by statutory deeds and recordings, and at length by certificates. He will see the common-law estates, the limitations worked out through the statute of uses, the simpler statutory systems of nineteenth-century America, and the overhauling of these things in England but a few years since. If we cannot celebrate the anniversary of Coke on Littleton by a pageant appealing to the outward eye, if barons and knights and ecclesiastics in the armor and trappings and vestments of the Middle Ages cannot be paraded before us, yet the eyes of the lawyer's mind will see things that mean much for the security of homes and farms and shops and by extension mean everything to enterprise and industry in every part of the English-speaking world.

Just now skepticism and disillusionment are fashionable. It is correct to be "hard boiled." We tone down the colors in which heroes and villains were painted in the last century and seek to see both as ordinary men. We search for the human

element in the hero and the humane element in the villain. The great man and great event type of history gives way to interpretation of men by a psychology which discovers the brute beneath the consciousness of the human actor and the sordid economic conditions behind the act. The lawyer's conception of Magna Carta has had to take its turn at this sort of scrutiny. A recent historian has rejoiced that although the Great Charter has attained sanctity, "the path of the merely secular historian is not blocked by the spectre of heresy" and so he may treat its more famous clauses in a way which in a theological document would "be denounced as blasphemous." But to show that John was a great soldier, that the barons were actuated by some quite selfish class motives, to show that clauses which in the hands of lawyers became legal guarantees of liberty to all manner of men for all time to come, were originally conceived in a narrow spirit of concrete remedies for the ends of a limited class, does no harm to the Great Charter for what it really is and really stands for. In truth it suffered in the last generation from what one might call the myth of the Middle Ages. For a time legal historians idealized the Middle Ages as a legal golden age in which modern legal and political institutions existed in their simple and natural form. They made a sort of epic of American public law. It began, as it were, with a prologue picturing the self-governing local group of the Germanic peoples, the mark, the Gemot, the Swiss Landesgemeinde, and the New England town meeting. The main action began with an interpretation of Magna Carta in terms of an eighteenth-century bill of right and culminated in an interpretation of the contests between courts and crown in seventeenth-century England in terms of American constitutional law. Our just regard for the Great Charter will be the deeper when we have cast off this heroic myth. Like all myths there is a core of truth. But that truth, seen and understood in its simplicity is quite enough. It does not need the stucco work coasting put around it by the historical jurists of the last generation. The Barons were not the first nor the last to build wiser than they knew.

Four eras are noteworthy in the making of our polity. First is the constructive era in the Middle Ages, the time of solid foundations of English legal and political institutions, the crea

tive centuries in which, when the Norman kings had set up a vigorous central government, the legal genius of Henry II built up an efficient administrative system which could survive the misgovernment of his sons and the civil war to which it led, and on which could be superposed a system of checks and balances, running back to the Great Charter, characteristic of the polity of English-speaking peoples ever since. These were centuries of political activity, in which men did things for order and stability and for free life under order and along with stability, but before achieved order and stability led to a period of standing still amid decaying social institutions. In these creative centuries, the twelfth and the thirteenth, the work of Henry II, Magna Carta, and the legislation of Edward I are the landmarks.

Next comes the seventeeth century-legally speaking the age of Coke-the era of the contests between the common-law courts and the Stuart kings, the era of individualism superseding the relational society of the Middle Ages, the era of a common law standing between the individual and the human agencies of social control, making from the medieval legal and political materials a system of immemorial rights of Englishmen to be taken by colonists to the new world and there presently further developed and set in constitutions, federal and state. Here legally and politically the landmarks are Coke's Institutes, the Petition of Right (drawn by Coke) and the Bill of Rights in which Coke's work was reaffirmed and visibly embodied in the British Constitution.

Next comes the eighteenth century, the era of rational humanity, seeking to secure forever and for all men by reasoned political charts and declarations and constitutional provisions what the Middle Ages had won for the free man, and the seventeenth century had provided for the adventurous man. Here the landmarks are the Declaration of Independence, the Virginia Bill of Rights of 1776, and the Constitution of the United States.

Finally we must reckon the pioneer era in America, in which a hardy liberty-loving stock, carrying English institutions across a continent, democratized them through and through, holding fast to the English conception of spontaneous individual development of every one's life for himself and in his own way,

and yet seeking to make law and politics instruments of widespread human happiness as well as guarantees of free human self assertion.

As we look back at the work of these creative eras, as it stands fast in our institutions today, we cannot but see that the ground plan, to which we have built ever since, was given by the Great Charter. It was not merely the first attempt to put in legal terms what became the leading ideas of constitutional government. It put them in the form of limitations of the exercise of authority, not to concessions to free human action from authority. It put them as legal propositions, so that they could and did come to be a part of the ordinary law of the land invoked like any other legal precepts in the ordinary course of orderly litigation. Moreover, it did not put them abstractly. In characteristic English fashion it put them concretely in the form of a body of specific provisions for present ills, not a body of general declarations in universal terms. Herein is perhaps the secret of its enduring vitality. Like the Constitution of the United States it is a great legal document. Like the Constitution it lent itself to development by lawyers' technique. It did not foreclose legal development by universal abstract clauses. It did not seek to anticipate and provide for everything in time to come. When recent historians, affecting to overthrow the lawyer's conception, tell us that its framers meant no more than to remedy this or that exact grievance of a time and place and class by a particular remedial provision framed for the exigencies of that grievance, they tell us no more than that the method of the Great Charter is the method of English law in all ages. The frame of mind in which it was drawn was nothing less than the frame of mind of the common-law lawyer; the frame of mind that looks at things in the concrete, not in the abstract, the frame of mind which prefers to go forward cautiously on the basis of experience from this case or that case to the next case, as justice in each case seems to require. Exactly because it is an example of the sure-footed Anglo-Saxon's habit of dealing with things as they arise and in the light of experience, it has been able to maintain itself as the fountain and source of English and American public law for seven centuries.