CHAPTER FOURTEEN.

Et ad habendum commune consilium regni, de auxilio assidendo aliter quam in tribus casibus predictis, vel de scutagio assidendo, summoneri faciemus archiepiscopos, episcopos, abbates, comites, et majores barones, sigillatim per litteras nostras; et preterea faciemus summoneri in generali, per vicecomites et ballivos nostros, omnes illos qui de nobis tenent in capite; ad certum diem, scilicet ad terminum quadraginta dierum ad minus, et ad certum locum; et in omnibus litteris illius summonicionis causam summonicionis exprimemus; et sic facta summonicione negocium ad diem assignatum procedat secundum consilium illorum qui presentes fuerint, quamvis non omnes summoniti venerint.

This chapter, which has no equivalent among the Articles of the Barons, appears here incidentally: it would never have found a place in Magna Carta but for the need of suitable machinery to give effect to the provision of chapter 12.^[498]

As the earlier clause is frequently supposed to contain a general doctrine of taxation, so this one is often cited as enunciating a general doctrine of parliamentary representation; while the close connection between the two chapters is taken to indicate an equally close connection between the two conceptions supposed to underlie them, and is urged as evidence that the framers of Magna Carta had grasped the essentially modern principle that taxation and representation go together.^[499] In this view, the barons at Runnymede deserve credit for anticipating some of the best features of the modern system of parliamentary government. The words of the text, however, will scarcely bear so liberal an interpretation. Vital points of difference between the principles of Magna Carta and the modern doctrine of representation are revealed by a careful analysis.

Under chapter 12 scutages and extraordinary aids could only be levied “with common counsel of our kingdom,” and now chapter 14, by formulating rules for convening the individuals whose consent was thus required, fixes authoritatively the composition of an assembly definitely charged with this specific function. The same Latin words which signify joint “consent” or counsel thus came to signify also a special institution, namely, that “Common Council” afterwards of such vital constitutional importance, continuing under a new name the old curia regis in several of its most important aspects, and passing in turn into the modern Parliament. The duties and constitutional importance of this commune concilium may be considered under six heads.

I. Nature of the Summons. Formal writs had to be issued when the attendance of the members was required. These writs must specify the time, place, and reason of assembling, giving formal notice at least forty days in advance. In these respects the writs issued were all to be the same; but in one vital particular a distinction was recognized. Each of the really powerful men of the realm—archbishops, bishops, abbots, earls, and "other greater barons"—must receive a separate writ, under the royal seal, addressed to him individually and directly, while the “smaller barons” were to be summoned collectively and indirectly through the sheriffs and bailiffs of each district.

II. Composition of the Council. It is clear that the meetings contemplated were purely baronial assemblies since none but Crown tenants were invited to attend; while individual notice under the king’s seal was given only to the more important magnates among them. The Common Council of the Charter was thus an assembly of military Crown tenants, and “the common consent of my kingdom” in John’s mouth was synonymous with “the consent of my barons.”^[500]

The king’s Council had by this time freed itself from any complicated theories as to its own composition, which may ever have hampered it. It was now extremely homogeneous; a feudal muster of Crown vassals. Some historians, indeed, in their anxiety to find distinguished pedigrees for their democratic ideals, have traced the origins of the leading features of the modern Parliament back to the Anglo-Saxon era; but such attempts are hurtful to the best interests of history, while they do not in the least advance the cause of popular liberties.

It is unnecessary here to examine the various rival theories professing to explain the composition of the Anglo-Saxon Witenagemot, or to discuss the exact connection between that venerable institution and the Curia Regis of the Norman kings. As a matter of fact, the early constitution of the court of the Conqueror or of Rufus seems to have been monarchic rather than aristocratic or democratic; that is to say, it depended to a great extent on the personal will of the king, who might issue or withhold writs of summons very much as he pleased. No evidence exists, of date anterior to the Great Charter, of any magnate thrusting himself unbidden into a royal council or forcing the king to issue a formal invitation. On one occasion, indeed, the action of Henry II. in omitting to issue a writ laid him open to unfavourable criticism. This was in October, 1164, when a special council was summoned to Northampton to pass judgment upon various questions at issue between the king and Thomas à Becket. The primate was ordered to appear for judgment, but the formal writ of summons, which every archbishop, as holder of a barony, was wont to receive as matter of course, was deliberately withheld. Apparently contemporary opinion condemned this omission.^[501] It is safe to infer, then, that as early as 1164, the method of issuing these writs had become uniform, but this constitutional understanding was not reduced to writing until embodied in Magna Carta. Thus it was in 1215 that the magnates of England formulated for the first time a distinct claim to be present at the king’s councils; and even then the demand only referred to assemblies summoned for one specific purpose. Previously, attendance was reckoned not as a privilege, but merely as an expensive burden, incident, like so many other burdens, to the possession of land.^[502]

III. Position of the “Minor Barons.” In recognizing a distinction between two classes of Crown tenants, the Great Charter merely gave the weight of its authority to existing usage, as that had taken shape in the reign of Henry II. Crown tenants varied in power and position in proportion to the extent of their lands, from the great earl who owned the larger share of one or more counties, down to the small free-holder with only a few hides, or it might be acres, of land. A rough division was drawn somewhere in the midst; but the exact boundary was necessarily vague, and this vagueness was probably encouraged by the Crown, whose requirements might vary from time to time.^[503] Those Crown tenants on one side of this fluctuating line were known as barones majores, those on the other as barones minores. The distinction had been recognized as early as the days of Henry II.;^[504] but Magna Carta helped to stereotype it, and contributed to the growing tendency to confine the word “baron” to the greater men.^[505] It is unlikely that any “minor baron” who obeyed the general summons would enjoy equal authority with the magnates invited individually by writ; and it is difficult to say even whether he was sure of a welcome, and, if so, in what capacity. Three distinct theories at least have been advanced as to the position occupied by the “minor barons” in the Common Council. (1) The duty of attendance, burdensome to all, was specially burdensome to the poorer Crown tenants. It has accordingly been suggested that the device of inviting them by general summons was intended as an intimation that they need not come. This is the view taken by Prof. Medley.^[506]

(2) Dr. Hannis Taylor holds an exactly opposite opinion, reading this chapter as the outcome of a desire to ensure the fuller attendance of the smaller men—as an attempt “to rouse the lesser baronage to the exercise of rights which had practically passed into desuetude.”^[507] Each of the barones minores was thus encouraged to attend for himself and his own interests. If such an attempt had really been made, and had succeeded in compelling the attendance of a large proportion of those who previously had almost made good their right to shirk the burden, the result would have been to leave no room whatever for the future introduction of the representative principle into the national council.

(3) A third theory, while agreeing that those summoned by general writ were intended to obey the summons, thinks that the smaller Crown tenants were called not exclusively each man for himself, but in a representative capacity. It is thus suggested that a few knights (probably elected for this purpose by their fellows) were expected to attend to represent the others. Dr. Stubbs seems predisposed towards this opinion, although he expresses himself with his usual caution.^[508]

The reasons for rejecting this third theory will be more conveniently discussed in connection with the doctrine of representation. It is perhaps unnecessary to decide between the two others; but it may be suggested, even at the risk of seeming to invent a fourth theory in a series already too numerous, that to the great men who framed the clause it must have been a matter of supreme indifference whether their humbler fellow-tenants attended or stayed away. The general summons expressed neither an urgent desire for their presence, nor yet an intimation that they were not wanted; but merely conformed with the established usage, and left with each “minor baron” the decision whether he should come or stay away. His presence would make little difference upon the deliberations of the magnates.

IV. Representation. It is well to hesitate before applying to ancient institutions a word so essentially modern as “representation.” In a sense the reeve and the four best men of every village “represented” their fellows in the county court from a very early age; and in a somewhat different sense the feudal lord “represented” his free tenants and villeins in the king’s court, but in neither instance was there anything approaching the very definite relation which exists at the present day between the elected member of Parliament and the constituents he “represents.” It is true that the difference may in some respects be one of degree rather than of kind, and it is further true that two years before the date of Magna Carta a tentative experiment had been tried in the direction of introducing representatives of the counties into the king’s Council, thus taking the first step in a long process destined ultimately to lead without any absolute breach of continuity to the modern Parliament. But the Barons in June, 1215, showed no desire to follow the example set by John in November, 1213. The terms in which Magna Carta directs that all minor barons should be summoned are explicit, and may be profitably contrasted with the words used in the writ dated 7th November, 1213, addressed to the sheriff of Oxford, ordering him to compel, in addition to the barons and the knights already summoned (presumably barones minores), the attendance of quatuor discretos homines de comitatu tuo (presumably other than Crown tenants).^[509]

So far from the words of Magna Carta showing any desire to confirm this precedent, they show a deliberate intention to ignore it, and to fall back on the more ancient practice. The members of the assembly which Magna Carta stipulated should be convened for the taking of “the common consent” were all of one type, drawn from the same section of the land-owning aristocracy, namely, military tenants-in-chief of the Crown. The barons, great and small, might be present, each man for himself; but the other tax-paying classes were completely ignored.^[510] They were neither present nor yet represented. The barons in this, as in other matters, stood out for the old feudal order under which they had preserved a wide measure of independence from the Crown’s control; whereas King John for selfish reasons adopted the more enlightened policy of his father, and even, unconsciously it may be, anticipated some of the measures of his grandson, Edward Plantagenet. In brief, John was progressive, while his opponents were conservative. The present chapter must be added to the not inconsiderable list of those which attempted to bring about a feudal reaction.^[511]

V. Powers and Functions of the Council. It was not until long after the days of Magna Carta that Parliament secured the most important of those functions now deemed essential to its existence. No claim was made by the Great Charter on behalf of the commune concilium to any right to be consulted in the making of laws or in the performance of administrative or judicial duties by the Crown. No effort was made towards formulating any doctrine of ministerial responsibility. This assembly, narrow and aristocratic in its composition, had only one right secured to it by Magna Carta—namely, a limited control over one form of taxation. Even here, as we have seen, no general or sweeping claim was put forward on its behalf. It had no right to a control of the national purse: the barons confined themselves to a selfish assertion of a right to protect their own individual pockets against an increase of feudal burdens. A modern Magna Carta would have contained a careful list of the powers and privileges of “the common council of the realm,” and would have given to this list a conspicuous place of honour.^[512]

VI. Rights of Majorities and Minorities. The medieval conception of constitutional solidarity was defective; the king’s council acted too much like a fortuitous gathering of unrelated individuals, and too little like a recognized organ of the body politic. Each “baron” was summoned on his own behalf, and in order that he might give his individual consent to a proposed levy; while it is doubtful how far a dissenting minority could be bound by a decision of the rest. Accordingly, the framers of Magna Carta deemed it necessary to assert what would be too obvious to modern politicians to require assertion—namely, that when the commune concilium had been properly convened, its power to transact business should not be interfered with because a section of those summoned chose to stay away. “The business shall proceed on the day appointed, according to the advice of such as shall be present, although all that were summoned do not come.” Not all business was competent, however, for the cause of summons had to be mentioned in the writs. If these writs were in order, the Council, so we may presume, had power to impose aids or scutages on those who were absent.^[513]

Nothing is said, however, as to the validity of a protest made by those who came and expressed disapproval of what the majority agreed to. As the substance of this chapter was observed in practice (though omitted from subsequent confirmations), a precedent of the year 1221 may perhaps be cited to illustrate the interpretation put upon it by contemporary practice. A Council summoned by William Marshal, as Regent of Henry III., had consented to a levy of scutage, and the bishop of Winchester was assessed at 159 marks as the amount due for his knight’s fees. He refused to pay, on the ground, quite untenable by modern standards, that he had all along dissented from the grant. The fact of his protest was vouched by Hubert de Burgh and others who had been present at the Council. The plea was actually accepted by the Regent, and the exchequer adjudged bishop Peter to be quit of the payment.^[514] The incident shows how far the statesmen of the day were from realizing the most elementary principles of political theory. They had not yet grasped the conception of a Council endowed with constitutional authority to impose its will on a dissenting minority. Here it was apparently a minority of one.

The barons by consenting in 1217 to accept a return to the fixed rates of scutage customary in the reign of Henry II., deliberately sacrificed such right of control over the finances of the nation as they may have obtained in 1215. At no time, indeed, did they show any appreciation of the vital nature of the constitutional issues at stake. The importance of the common council, and the necessity of defining its composition, functions, and privileges, lay entirely beyond their narrow sphere of vision.

It should be remembered, however, that the substance of this chapter of John’s charter (although discarded in subsequent reissues) was virtually observed in practice by the Crown, and treated as in force by the barons. From this time forward the Common Council was almost invariably consulted before the Crown attempted to levy such contributions; and sometimes was bold enough to make conditions or to decline payment altogether, the first instance on record of an outright refusal taking place in a Parliament held at London in January, 1242.^[515]

The barons, in October, 1255, if Matthew Paris has not fallen into error, considered that the provisions of chapters 12 and 14 of John’s Magna Carta were still in force, although they had been omitted in the reissues of Henry III. When the king asked a liberal aid in furtherance of his scheme for securing the crown of Sicily for his son Edmund, those present at the Council deliberately refused, on the ground that some of their peers had not been summoned “according to the tenor of Magna Carta.” This incident illustrates the extreme constitutional importance rightly attached by the barons to the rigid observance by the Crown of the established usage relative to the convening of Parliament.^[516]

CHAPTER FIFTEEN.

Nos non concedemus de cetero alicui quod capiat auxilium de liberis hominibus suis, nisi ad corpus suum redimendum, et ad faciendum primogenitum filium suum militem, et ad primogenitam filiam suam semel maritandam, et ad hec non fiat nisi racionabile auxilium.

This chapter confers on the tenants of mesne lords protection similar to that already conferred on Crown tenants: sums of money are no longer to be extorted from them arbitrarily by their lords.^[517] Different machinery, however, had here to be adopted, since the expedient relied on in chapter 12 (“the common consent of the realm”) was clearly inapplicable.

I. Points of difference between tenants-in-chief and under-tenants. Tenants of mesne lords were in some respects better off than tenants of the king,^[518] but in others their position was distinctly worse. Not only had they to satisfy the demands of their own lord for “aids,” but they generally found that part of every burden laid by the king upon that lord’s shoulders was transferred to theirs. In seeking to provide for under-tenants the protection of which they stood so much in need Magna Carta looked, not to the common council, but to the king. No mesne lord was to be allowed to compel his tenants to contribute to his necessities without obtaining a written licence from the Crown; and stringent rules forbade the issue of such licences except upon the usual three occasions. Contrast this procedure with that which affected Crown tenants.

(1) While chapter 12 had spoken of “aids and scutages,” this one speaks of “aids” alone. The omission can be readily explained: a mesne lord in England had no right of private war, and was, as a logical consequence, debarred from demanding scutage upon his own initiative. He might, indeed, allocate upon his freeholders part of any scutage which the Crown had taken from him; but the great barons who framed the Charter had no intention to renounce so just a right. The restriction of this clause to “aids” was thus intentional.

(2) It would have been absurd to require “the common counsel of the realm” to every aid paid by the freeholders of a manor. The embryo Parliament had no time for petty local affairs; and the present chapter makes no such suggestion. Some substitute had, however, to be found. A natural expedient would have been to compel the mesne lord who wished an aid to take “the common consent” of the freeholders of his manor, assembled for that purpose in their court baron, as in a local parliament. This course was sometimes followed. Henry Tracey, for example, in 1235 (although armed with a royal writ), convened his Devonshire knights and obtained their collective consent to an aid of 20s. per fee on the occasion of his daughter’s marriage.^[519] No such obligation, however, had been placed upon mesne lords by Magna Carta, which had sought a practical substitute for “the common consent of the realm” in quite a different direction, as will be explained immediately.

(3) A check upon such exactions was sought, not in any action by the court baron, but in the mesne lord’s need for a royal licence. The necessity for this may at first have been a practical, rather than a legal, one; for executive power lay with the officers of the Crown alone, and the sheriff gave his services only at the king’s command.^[520] The Crown thus exercised what was virtually a power of veto over all aids taken by mesne lords. Such a right, conscientiously used, would have placed an effectual restraint on their rapacity. John, however, employed it solely for his own advantage, selling writs to every needy lord who proposed to enrich himself (and, incidentally, the Crown also) at his tenants’ expense.

Magna Carta forbade the two tyrants thus to combine against the sub-tenants, enunciating a hard-and-fast rule which, if duly observed, would have struck at the root of the grievance. The whole subject of aids was removed from the region of royal caprice into the region of settled law. No writ could be lawfully issued except on the three well-known occasions.

II. The Influence of Magna Carta upon later Practice. This chapter, along with chapters 12 and 14, was discarded by Henry III.; and little difference, if any, can be traced between the practices that prevailed before and after 1215. Only in one particular were the requirements of John’s Magna Carta observed, namely, as regards the need for obtaining a royal licence. Mesne lords after this date, whatever may have been their reason, invariably asked the Crown’s help to collect their aids. They could not legally distrain their freeholders, except through the sheriff, and this was, in part at least, a result of Magna Carta.^[521]

Henry III., however, entirely disregarded the rule which forbade the licensing of extraordinary aids. Like his ancestors, he was prepared to grant writs on almost any plausible pretext. From the Patent and Close Rolls, as well as from other sources, illustrations of the Crown’s earlier and later practice may readily be collected.

(1) Scutages. In 1217, for example, Henry granted permission to all Crown tenants who had served in person to collect scutage from their knights.^[522]

(2) Ordinary Aids. (a) John in 1204 authorized the collection of “an effectual aid” from the knights and freeholders of the Constable of Chester for the ransom of their lord.^[523] (b) A royal writ in 1235 allowed Henry Tracey, as already mentioned, to take an aid for his eldest daughter’s marriage.

(3) Special Aids. (a) When a fine of sixty marks was incurred in 1206 by the Abbot of Peterborough, John allowed him to distrain his under-tenants for contributions.^[524] (b) An heir, paying relief, might likewise transfer the obligation to his freeholders.^[525] (c) The lord’s debts were frequently paid by his tenants. The returns to the Inquest of 1170 contain particulars of the “sums given individually by some forty burgesses of Castle Rising towards paying off the mortgages of their lord, the Earl of Arundel, who was clearly in the hands of the Jews”;^[526] while in 1234 the Earl of Oxford and the Prior of Lewes each obtained a letter patent distraining their tenants to contribute to the discharge of their debts.^[527] Sufficient evidence is thus preserved that Henry III. took full advantage of the omission from his own charters of this part of his father’s promises. He did not question too minutely the justice of applications for such writs, if good fees were punctually paid. His letters, during the earlier years of his reign, authorized the taking of a “reasonable” aid, without hinting at any mode of determining what that was. This is illustrated by the procedure adopted by Henry Tracey in 1235, who apparently debated with his assembled knights of Devonshire the amount to be paid as “reasonable,” and finally accepted 20s. per fee.^[528] It is interesting to note, however, that this same mesne lord, twelve years later, obtained a writ bidding the sheriff of Somerset assist him to collect “the scutage of Gascony” at a specified rate, namely, 40s. per fee.^[529]

The first Statute of Westminster virtually reverted to the rule laid down in 1215, for its terms imply that aids could only be taken on the three well-known occasions. The vague declaration that these should be reasonable in amount is replaced by the specification of a fixed rate, namely 40s., or double what had been usual at an earlier period. Definition of the amount and times of payment may, however, have been worth purchasing even at this increase.