f its use. That the king
could not change what was then the almost sacred datum of the common
law, without seeing whether his nation liked it or not, was an
essential part of the "tentative" system. The king had to feel his way
in this exceptional, singular act, as those ages deemed original
legislation, as well as in lesser acts. The legislation was his at
last; he enacted after consulting his Lords and Commons; his was the
sacred mouth which gave holy firmness to the enactment; but he only
dared alter the rule regulating the common life of his people after
consulting those people; he would not have been obeyed if he had not,
by a rude age which did not fear civil war as we fear it now. Many most
important enactments of that period (and the fact is most
characteristic) are declaratory acts. They do not profess to enjoin by
inherent authority what the law shall in future be, but to state and
mark what the law is; they are declarations of immemorial custom, not
precepts of new duties. Even in the "Great Charter" the notion of new
enactments was secondary, it was a great mixture of old and new; it was
a sort of compact defining what was doubtful in floating custom, and
was re-enacted over and over again, as boundaries are perambulated once
a year, and rights and claims tending to desuetude thereby made patent
and cleared of new obstructions. In truth, such great "charters" were
rather treaties between different orders and factions, confirming
ancient rights, or what claimed to be such, than laws in our ordinary
sense. They were the "deeds of arrangement" of mediaeval society
affirmed and re-affirmed from time to time, and the principal
controversy was, of course, between the king and nation--the king
trying to see how far the nation would let him go, and the nation
murmuring and recalcitrating, and seeing how many acts of
administration they could prevent, and how many of its claims they
could resist.

Sir James Mackintosh says that Magna Charta "converted the right of
taxation into the shield of liberty," but it did nothing of the sort.
The liberty existed before, and the right to be taxed was an
efflorescence and instance of it, not a sub-stratum or a cause. The
necessity of consulting the great council of the realm before taxation,
the principle that the declaration of grievances by the Parliament was
to precede the grant of supplies to the sovereign, are but conspicuous
instances of the primitive doctrine of the ante