house in order against his decease, could rescue his widow from the
extremely unfortunate position into which his death would necessarily
plunge her. He must leave her without adequate protection against the
tyranny of the king, who might inflict terrible hardships by a harsh use
of rights vested in him for the safeguard of the feudal incidents due to
the Crown as overlord. Newly deprived of her natural protector, she was
under the immediate necessity of conducting a series of delicate
negotiations with a powerful opponent fortified by prerogatives wide and
vague. She might indeed, if deprived of her “estovers,” find herself for
the moment in actual destitution, until she had made her bargain with
the Crown; she had a right, indeed (under normal circumstances) to
one-third of the lands of her late husband (her _dos rationalis_) in
addition to any lands she might have brought as a marriage portion, but
she could only enter into possession by permission of the king, who had
prior claims to hers, and could seize everything by his prerogative of
primer seisin.[414] This chapter provides a remedy. Widows shall have
their rights without delay, without difficulty, and without payment.
-----
Footnote 414:
Cf. _supra_, 78–9.
I. _The Widow’s Share of Real Estate._ Three words are used:—_dos_,
_maritagium_, and _hereditas_.
(1) _Dower._ A wife’s dower is the portion of her husband’s lands set
aside to support her in her widowhood. It was customary from an early
date for a bridegroom to make adequate provision for his bride on the
day he married her. Such a ceremony, indeed, formed a picturesque
feature of the marriage rejoicings, taking place literally at the door
of the church, as man and wife returned from the altar. The share of her
husband’s land thus set apart for the young wife was known as her _dos_
(or dowry), and would support her if her husband died. In theory the
transaction between the spouses partook of the nature of a contract by
which they arranged the extent of the provision to be given and
accepted. The wife’s rôle, however, was a passive one; her concurrence
was assumed. Yet, if no provision was made at all, the law stepped in,
on the presumption that the omission had been unintentional on the
husband’s part, and fixed the dower at one-third of all his lands.[415]
-----
Footnote 415:
See Pollock and Maitland, II. 422-3. The ceremony at the church door,
when resorted to, was no longer an opportunity of giving material
proof of affection to a bride, but a means of cheating her out of what
the law considered her legitimate provision, by substituting something
of less value.
-----
John’s Magna Carta contents itself with the brief enactment “that a
widow shall have her dower.” The Charter of 1217 goes farther,
containing an exact statement of the law as it then stood:—"The widow
shall have assigned to her for her dower the third part of all her
husband’s land which he had in his lifetime (_in vita sua_) unless a
smaller share had been given her at the door of the church." Lawyers of
a later age have by a strained construction of the words _in vita sua_,
made them an absolute protection to a wife against all attempts of her
husband to defeat or lessen her dower by alienations granted without her
consent during the subsistence of the marriage.[416] Magna Carta
contains no warrant for such a proposition, although a later clause
(chapter 11) secures the dower lands from attachment by the husband’s
creditors, whether Jews or others.
-----
Footnote 416:
Pollock and Maitland, II. 419.
-----
(2) _Maritagium._ It was customary for a land-owner to bestow some share
of his property as a marriage portion upon his daughters, that they
might not come to their husbands as empty-handed brides. The land so
granted was usually relieved from all burdens of service and homage. It
was hence known as _liberum maritagium_, which almost came to be
recognized as a separate form of feudal tenure. Grants for this purpose
could be made without the consent of the tenant’s expectant heirs,
although early English law absolutely prohibited alienation of lands for
any other purpose without their consent. _Maritagium_ was thus “a
provision for a daughter—or perhaps some other near kinswoman—and her
issue.”[417] The husband of the lady was, during the marriage, treated
as virtual owner for all practical purposes; but on his death the widow
had an indisputable title to lands brought with her “in free
marriage.”[418]
-----
Footnote 417:
See Pollock and Maitland, II. 15-16.
Footnote 418:
_Liberum maritagium_, considered as a tenure, has various
peculiarities. The lady’s husband became the feudal tenant of her
father. The issue of the marriage were heirs to the lands and would
hold them as tenants of the heir of the donor. For three generations,
however, neither service nor homage was due. After the third
transmission, the land ceased to be specially “free”; the peculiar
tenure came to an end; and the new owner was subject to all the usual
burdens of an ordinary tenant.
-----
The obvious meaning, however, has not always been appreciated. Coke[419]
reads the clause as allowing to widows of under-tenants a right denied
(by chapter 8) to widows of Crown tenants—namely “freedom to marry where
they will without any licence or assent of their lords.” This
interpretation is inherently improbable, since the barons at Runnymede
desired to place restrictions on their enemy, the king, not upon
themselves; and it is opposed to the law of an earlier reign, as
expounded by Bracton.[420]
-----
Footnote 419:
_Second Institute_, p. 16.
Footnote 420:
See _supra_, p. 253.
-----
Daines Barrington[421] invents an imaginary rule of law in order to
explain a supposed exception. An ordinary widow, he declares, could not
in the normal case marry again before the expiry of a year after her
first husband’s death. Some widows, however, were specially privileged.
_Maritagium_ was a right conferred on widows of land-owners to cut short
the period of mourning imposed on others. This is a complete inversion
of the truth; the possession of land always restricted, instead of
extending, freedom of marriage. Several later authorities follow
Barrington’s mistake.[422]
-----
Footnote 421:
_Observations_, pp. 8-10.
Footnote 422:
_E.g._ Thomson, _Magna Charta_, p. 172. Dr. Stubbs has his own reading
of _maritagium_, namely, “the right of bestowing in marriage a feudal
dependant.” See Glossary to _Sel. Charters_, p. 545. The word may
sometimes bear this meaning, but not in Magna Carta.
-----
Such mistakes when made by recent writers are the more inexcusable in
view of the clear explanation given a century ago by John Reeves,[423]
who distinguished between two kinds of marriage portion: _liberum
maritagium_, whence no service whatever was exigible for three
generations, and _maritagium servitio obnoxium_, liable to the usual
services from the first, although exempt from homage until after the
death of the third heir.[424]
-----
Footnote 423:
See his _History of English Law_, I. 121 (3rd ed.).
Footnote 424:
Cf. _Ibid._ I. 242, where Reeves rightly points out that Coke is
mistaken, although he fails to notice the distinction drawn in the
passage criticized between the Crown and mesne lords.
-----
(3) _Hereditas._ The first two words are thus readily understood: but
what is _hereditas_? Is it simply another name for one of these, or is
it something different? It is possibly used to denote estates acquired
by the wife, not as a marriage portion, but in any other way, for
example by the opening of a succession on the death of someone, her
father or other relative, of whom she is the heir.
II. _The Widow’s Share of Personal Estate._ The chapter of the Charter
at present under discussion says nothing as to the widow’s right to any
portion of her deceased husband’s goods and chattels. Chapter 26,
however, confirms the existing law which secured to her, in the normal
case, one third of her husband’s personal estate, as will be more fully
explained hereafter.
III. _Provision for the Widow’s immediate Needs._ Many intricate
questions might arise before it was possible to divide the land into
aliquot portions and so “assign” the exact one-third due to her.
Meanwhile, temporary provision must be made for her support. This was of
two kinds: (1) _Quarantine._ Magna Carta confirmed her right to remain
in the family home for a space of forty days. This was known to later
lawyers as the widow’s quarantine.[425] The Charter of 1216 notes an
exception to the general rule, on which John’s Charter is silent: if the
deceased husband’s chief place of residence had been a castle, the widow
could not stay there; feudal strongholds were not for women. In such
cases, however, so the reissue of 1216 carefully provided, another
residence must be immediately substituted. In later days, widows
unlawfully deprived of their quarantine were provided with a remedy by
means of a writ, known as “_de quarentina habenda_,” directing the
sheriff to take summary procedure to do her right.[426]
-----
Footnote 425:
The “unknown charter” (see Appendix) specified sixty days, but Magna
Carta fixed the period at forty.
Footnote 426:
See Coke, _Second Institute_, p. 16.
-----
(2) _Estovers of Common._ The widow required something more than the
protection of a roof; for, until her dower lands had been delivered to
her, no portion of the produce of her late husband’s manors could be
strictly called her own. The estate was held “in common” between her and
her husband’s heir (or between her and the “guardian” of that heir’s
estates). It was only fair that, until her rights were ascertained, she
should be allowed a reasonable share of the produce. Neither John’s
Charter nor the first issue of Henry III. said anything on this head.
The reissue of 1217 supplied the omission, expressly confirming the
widow of a Crown tenant in the right to _rationabile estoverium suum
interim de communi_. Many explanations of the word _estovers_ (generally
used in the plural) might be cited: from Dr. Johnson, who defines it
broadly as “necessaries allowed by law,” to Dr. Stubbs, who narrows it
to “firewood.”[427] It was the right to use certain parts of the natural
produce of land or other property for the supply of one’s personal or
domestic wants. Such rights varied in extent, however; from the general
right to a full supply of all things necessary for the maintenance of
life, down to the restricted right to take one kind of produce for one
specific purpose only.[428]
-----
Footnote 427:
See Glossary to _Select Charters_, p. 539: “firewood; originally
provision or stuff generally.”
Footnote 428:
Several instances of the wider use of the word may be given. Bracton
(III. _folio_ 137) explains that, pending the trial of a man accused
of felony, his lands and chattels were set aside by the sheriff until
it was determined whether they were to become the king’s property by
the conviction of the accused; meanwhile the imprisoned man and his
family out of the revenue received “reasonable estovers.” (Cf.
_infra_, c. 32.) The Statute of Gloucester (6 Edward I. c. 4) mentions
incidentally one method of stipulating for a return from property
alienated, viz., to take the grantee bound to provide the grantor in
estovers of meat or clothes. (“_A trouver estovers en vivre ou en
vesture_”). Blackstone again (_Commentaries_, I. 441) applies the name
_estovers_ to the alimony or allowance made to a divorced woman "for
her support out of the husband’s estate." Sometimes, however, the word
was used in a more restricted sense. Coke (_Second Institute_, p. 17)
says, "when _estovers_ are restrained to woods, it signifieth
housebote, hedgebote, and ploughbote,"—that is, such timber as was
required for repairing houses, hedges, and ploughs. Apparently it had
an even more restricted scope when used to describe the right of those
who dwelt in the king’s forests, viz., to take dead timber as
firewood. (Cf. _infra_, c. 44.)
-----
It seems natural to infer that in this passage of Magna Carta the word
bears its wider signification. Such was Coke’s view,[429] who held that
it implied the widow’s right to “sustenance” of every kind, including
the right to kill such oxen on the manor as she required for food.
Estovers “of common” should thus be read as extending the widow’s right
of consumption for her own and her household’s use over every form of
produce held “in common” by her and the heir’s guardian prior to a final
division.[430]
-----
Footnote 429:
_Second Institute_, p. 17.
Footnote 430:
There seems no reason to restrict her estovers to a right over
“commons,” in the sense of pastures and woods held “in common” by her
late husband and the villeins of his manor. Some such meaning, indeed,
attaches to the phrase “dower of estovers” met with in later reigns,
_e.g._ in _Year Book_ of 2 Edward II. (Selden Society), p. 58, where
it was held that such a right (claimed as a permanent part of dower)
did _not_ belong to a widow.
-----
CHAPTER EIGHT.
Nulla vidua distringatur ad se maritandum dum voluerit vivere sine
marito; ita tamen quod securitatem faciat quod se non maritabit sine
assensu nostro, si de nobis tenuerit, vel sine assensu domini sui de quo
tenuerit, si de alio tenuerit.
Let no widow be compelled to marry, so long as she prefers to live
without a husband; provided always that she gives security not to
marry without our consent, if she holds of us, or without the consent
of the lord of whom she holds, if she holds of another.
Wealthy ladies, who were wise, were glad to escape with their children
from John’s clutches by agreeing to buy up all the Crown’s oppressive
rights for a lump sum. In the very year of Magna Carta, Margaret, the
widow of Robert fitz Roger, paid £1000;[431] and a few years earlier
Petronilla, Countess of Leicester, expended as much as 4000 marks.[432]
Though the circumstances of each of these cases seem to have been
peculiar, the Pipe Rolls contain numerous smaller sums; in 1206 Juliana,
widow of John of Kilpec, accounts for 50 marks and a palfrey.[433]
Horses, dogs, and falcons were frequently given in addition to money
fines, and testify eloquently to the greed of the king, the anxiety of
the victims, and the extortionate nature of the whole system. In return,
formal charters were usually obtained, a good example of which is one
granted to Alice, countess of Warwick, dated 13th January, 1205,[434]
containing many concessions; among others that she should not be forced
to marry; that she should be sole guardian of her sons; that she should
have one-third part of her late husband’s lands as her reasonable dower;
and that she should be quit from attendance at the courts of the shire
and of the hundred, and from payment of sheriff’s aids during her
widowhood. Another charter of 20th April, 1206, shows what a widow had
to expect if she failed to make her bargain with the Crown. John granted
to Richard Fleming, an alien as his name implies, and presumably one of
his not too reputable mercenaries, the wardship of the lands of the
deceased Richard Grenvill with the rights of marriage of the widow and
children.[435]
-----
Footnote 431:
See _Pipe Roll_ of 16 John, cited Madox I. 491.
Footnote 432:
See _Pipe Roll_ of 6 John, cited Madox I. 488.
Footnote 433:
See _Pipe Roll_ of 6 John, cited Madox I. 488.
Footnote 434:
_New Rymer_, I. 91.
Footnote 435:
See _New Rymer_, I. 92.
-----
Magna Carta sought to substitute a general rule of law for the
provisions of these private charters purchased by individuals at ruinous
expenditure. It contained no startling innovations, but only repeated at
greater length the promises made (and never kept) by Henry I. in the
relative part of clause 4 of his coronation charter. No widow was to be
constrained to marry again against her will. This liberty must not be
used, however, to the prejudice of the Crown’s lawful rights. Although
the widow need not marry as a second husband the man chosen by the king
without her consent, neither could she marry without the king’s consent
the man of her own choice. Magna Carta specially provided that she must
find security to this effect, an annoying, but not unfair, stipulation.
The Crown, in later days, compelled the widow, when having her dower
assigned to her in Chancery, to swear not to marry without licence; and
if she broke her oath, she had to pay a fine, which was finally fixed at
one year’s value of her dower.[436]
-----
Footnote 436:
See Coke, _Second Institute_, 18.
-----
CHAPTER NINE.
Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro
debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum
reddendum; nec plegii ipsius debitoris distringantur quamdiu ipse
capitalis debitor sufficit ad solucionem debiti; et si capitalis debitor
defecerit in solucione debiti, non habens unde solvat, plegii
respondeant de debito; et, si voluerint, habeant terras et redditus
debitoris, donec sit eis satisfactum de debito quod ante pro eo
solverint, nisi capitalis debitor monstraverit se esse quietum inde
versus eosdem plegios.
Neither we nor our bailiffs shall seize any land or rent for any debt,
so long as the chattels of the debtor are sufficient to repay the
debt; nor shall the sureties of the debtor be distrained so long as
the principal debtor is able to satisfy the debt; and if the principal
debtor shall fail to pay the debt, having nothing wherewith to pay it,
then the sureties shall answer for the debt; and let them have the
lands and rents of the debtor, if they desire them, until they are
indemnified for the debt which they have paid for him, unless the
principal debtor can show proof that he is discharged thereof as
against the said sureties.
The Charter now passes to another group of grievances. Chapters 9 to 11
treat of the kindred topics of debts, usury, and the Jews, and should be
read in connection with each other, and with chapter 26, which regulates
the procedure for attaching the personal estate of deceased Crown
tenants who were also Crown debtors. The present chapter, although quite
general in its terms, had special reference to cases where the Crown was
the creditor; while the two following chapters treated more particularly
of debts contracted to Jews or other money lenders.
The fact that John’s subjects owed debts to his exchequer did not, of
course, imply that they had borrowed money from the king. The sums
entered as due in the Rolls of the Exchequer represented obligations
which had been incurred in many different ways. What with feudal
incidents and scutages, and indiscriminate fines, so heavy in amount
that they could only be paid by instalments, a large proportion of
Englishmen must have been permanently indebted to the Crown. At John’s
accession most of the northern barons still owed the scutages demanded
by Richard. John remitted none of the arrears, while imposing new
burdens of his own: the attempts made to collect these debts intensified
the friction between John and his barons.[437] It was, further, the
Crown’s practice wherever possible, to make its debtors find sureties
for their debts, thus widening the circle of those liable to distraint,
while the officers who enforced payment were guilty of irregularities,
which became the cloaks of grave abuses.
-----
Footnote 437:
See _supra_, p. 89.
-----
Three equitable rules were laid down. (1) The personal estate of a
debtor must be exhausted before his real estate or its revenues were
attacked. To take away his land might deprive him ultimately of his
means of livelihood, since the chattels left to him could not yield a
permanent revenue.[438] The rule here laid down by Magna Carta has not
found a place in modern systems of law, which usually leave the option
with the creditor. (2) The estate (both real and personal) of the chief
debtor had to be exhausted before proceedings could be instituted
against his sureties. Magna Carta thus enunciated in English law a rule
which has found favour in most systems of jurisprudence. The man who is
only a surety for another’s debt is entitled to immunity until the
creditor has taken all reasonable steps against the principal debtor.
Such a right is known to the civil law as _beneficium ordinis_, and to
modern Scots law as the “benefit of discussion.” (3) If these sureties
had, after all, to pay the debt in whole or in part, they were allowed
“a right of relief” against the principal debtor, being put in
possession of his lands and rents. This rule has some analogy with the
equitable principle of modern law, which gives to the surety who has
paid his principal’s debt, the right to whatever property the creditor
held in security of that debt.
-----
Footnote 438:
The _Dialogus de Scaccario_, II. xiv., had, half a century earlier,
laid down rules even more favourable to the debtor in two respects:
(_a_) the order in which moveables should be sold was prescribed; and
(_b_) certain chattels were absolutely reserved to the debtor, _e.g._
food prepared for use; and, in the case of a knight, his horse with
its equipment.
-----
Even when the Crown’s bailiffs obeyed Magna Carta by leaving land alone
when chattels were available, they might still wantonly inflict terrible
hardship upon debtors. Sometimes they seized goods valuable out of all
proportion to the debt; and an Act of 1266[439] forbade this practice
when the disproportion was “outrageous.” Sometimes they attempted to
extort prompt payment or to ruin their victim by selecting whatever
chattel was most indispensable to him. Oxen were taken from the plough
and allowed to die of starvation and neglect. The practice of the
exchequer, in the days of Henry II., had been more considerate; oxen
were to be spared as far as possible where other personal effects were
available.[440] John’s charter has no such humane provision,[441] and
the abuse continued. The Act of 1266, already cited, forbade officers to
chase away the owner who came to feed his impounded cattle at his own
expense. The _Articuli super cartas_[442] went further; prohibiting the
seizure of beasts of the plough altogether so long as other effects
might be attached of sufficient value to satisfy the debt.[443]
-----
Footnote 439:
51 Henry III., stat. 4 (among “statutes of uncertain date” in
_Statutes of Realm_, I. 197).
Footnote 440:
See _Dialogus de Scaccario_, II. xiv.: “_Mobilia cujusque primo
vendantur; bobus autem arantibus, per quos agricultura solet exerceri,
quantum poterint parcant_” (p. 148).
Footnote 441:
Cf., however, the rule as to amercements in c. 20.
Footnote 442:
28 Edward I. c. 12. See also Statute of Marlborough, 52 Henry III. c.
15.
Footnote 443:
Henry’s reissues make two small additions explaining certain points of
detail: (_a_) the words “_et ipse debitor paratus sit inde
satisfacere_” precede the clause giving sureties exemption; and (_b_)
the sureties are declared liable to distraint, not merely when the
chief debtor has nothing, but also when he can pay, but will not,
“_aut reddere nolit cum possit_.”
CHAPTER TEN.
Si quis mutuo ceperit aliquid a Judeis, plus vel minus, et moriatur
antequam illud solvatur, debitum non usuret quamdiu heres fuerit infra
etatem, de quocumque teneat; et si debitum illud inciderit in manus
nostras, nos non capiemus nisi catallum contentum in carta.
If one who has borrowed from the Jews any sum, great or small, die
before that loan be repaid, the debt shall not bear interest while the
heir is under age, of whomsoever he may hold;[444] and if the debt
fall into our hands, we will not take anything except the principal
sum[445] contained in the bond.
-----
Footnote 444:
The words “_de quocumque teneat_” include both Crown tenants and
under-tenants, and suggest that only freeholders were to receive
protection from this clause.
Footnote 445:
_Catallum_ and _lucrum_ were the technical words used for “principal”
and “interest” respectively in bonds and other formal documents. See,
_e.g._ Round, _Ancient Charters_ (Pipe Roll Society, Vol. X.) No. 51,
and John’s Charter to the Jews, _Rot. Chart._, p. 93.
-----
The taking of usury, denied by law to Christians, was carried on by Jews
under great disadvantages and risks; and the rates of interest were
proportionately high, ranging in normal cases from two to four pence per
pound per week; that is, from 43⅓ to 86⅔ per cent. per annum.[446]
During his nonage a ward had nothing wherewith to discharge either
principal or interest, since he who had the wardship drew the revenue.
At the end of a long minority an heir would have found the richest
estates swallowed up by a debt which had increased automatically ten or
twenty-fold.[447]
-----
Footnote 446:
See Pollock and Maitland, I. 452, and Round’s _Ancient Charters_,
notes to Charter No. 51.
Footnote 447:
The Crown was sometimes called in to enable a creditor, overwhelmed by
the accumulation of interest, to come to a settlement with his
creditors. In 1199 Geoffrey de Neville gave a palfrey to the king to
have his aid “in making a moderate fine with those Jews to whom he was
indebted.” See _Rotuli de Finibus_, p. 40. Ought we to view John’s
intervention as an attempt to arrange a reasonable composition with
unreasonable usurers, or was it simply a conspiracy to cheat
Geoffrey’s creditors?
Magna Carta prevented this great injustice to the ward; but, in doing
so, inflicted, according to modern standards, some injustice on the
money-lenders. During the minority no interest at all, it was provided,
should accrue to Jew or other usurer; while, if the debt passed to the
Crown, the king must not use his prerogative to extort more than a
private debtor might; he must confine himself to the principal sum
specified in the document of debt. The provision that no interest should
run during minorities was confirmed by the Statute of Merton,[448] which
made it clear, however, that its provisions should not operate as a
discharge of the principal sum or of the interest which had accrued
before the ancestor’s death. The Statute of Jewry, of uncertain
date,[449] made interest irrecoverable by legal process. All previous
acts against usury were repealed by the statute 37 Henry VIII. c. 9,
which, however, forbade the exaction of interest at a higher rate than
10 per cent., and this remained the legal rate until reduced to 8 per
cent, by 21 James I. c. 17. Money-lending and the usury laws are
subjects closely bound up with the repressive measures against the Jews.
Footnote 448:
20 Henry III. c. 5.
-----
Footnote 449:
_Statutes of Realm_, I. 221.
-----
I. _The History of the Jews in England._ The policy of the Crown towards
those aliens of the Hebrew race who sought its protection varied at
different times, and three periods may be distinguished. From the Norman
Conquest to the coronation of Richard I. the Jews were fleeced and
tolerated; during the reigns of Richard and John and the minority of
Henry III. they were fleeced and protected; and finally they were
fleeced and persecuted, this last stage extending from the formation of
the alliance between Henry and Innocent IV. down to the ordinance of
1290, which banished in perpetuity all Jews from England. The details of
this long story of hardship and oppression, tempered fitfully by royal
clemency, which had always to be well paid for, can here be glanced at
only in the barest outline. There were Jews in England before the Norman
Conquest; but the first great influx came in the reign of Rufus, whose
financial genius recognized in them an instrument for his gain, and who
would the more gladly protect them, as likely to prove a thorn in the
side of his enemy the Church. A second influx resulted from the
persecution of Israelites on the Continent of Europe, consequent on the
failure of the first Crusade. This new alien immigration seems to have
excited mistrust in England, and led to the disarming of all Jews in
1181, a measure which left them at the mercy of the Christian rabble.
Accordingly, when a disturbance occurred at the coronation of Richard
I., on 3rd September, 1189, owing to the imprudence of some officious
Jews, a general massacre took place in London, while York and other
towns were not slow to follow the example. The king was moved to anger,
not so much by the sufferings of the Jews, as by the destruction of
their bonds, since that indirectly injured the Crown; for the more the
Jews had, the more could be extorted from them, and when the written
bond had been burned, no evidence of the debt remained. Richard,
returning from his captivity a few years later, in urgent need of money,
determined to prevent a repetition of such interference with a valuable
source of revenue. His motive was selfish, but that was no reason why
the Israelites should not pay for a measure designed for their own
protection. Assembled at Nottingham they granted a liberal aid, in
return for a new expedient devised to secure their bonds. This scheme,
for the details of which Richard was probably indebted to the genius of
his great justiciar, archbishop Hubert Walter, was of a comprehensive
and practical character. In London, York, and other important cities,
offices or bureaus were established under the Crown’s protection,
containing treasure chests, called _archae_, fitted with triple locks,
to be opened only at stated intervals in the presence of special
custodians, known as chirographers, who kept the keys. These custodians
were usually four in number, two Christians and two Jews, chosen by
juries specially summoned for that purpose by the sheriff of the county,
and they were obliged to find sureties that they would faithfully
perform their important functions. Only in their presence could loans be
validly contracted between Jews and Christians; and it was their duty to
see the terms of all such bargains reduced to writing in a regular
prescribed form in duplicate copies. No contract was binding unless a
written copy or chirograph had been preserved in one or other of those
repositories or arks, which thus served every purpose of a modern
register, and other purposes as well. If the money-lender suffered
violence and was robbed of his copy of the bond, the debtor was still
held to his obligations by the duplicate which remained. If the Jew and
all his relatives were slain, even then the debtor did not escape, but
was confronted by a new and more powerful creditor, the king himself,
armed with the chirograph. Lists of all transactions were preserved, and
all acquittances and assignments of debts, known from their Hebrew name
as “starrs,” had also to be carefully enrolled.[450] Minute and
stringent rules, codified by Hubert Walter in the terms of a written
commission, were issued to the judges when starting on their circuit in
September, 1194.[451]
Footnote 450:
Cf. J. M. Rigg, _Sel. Pleas of the Jewish Exchequer_, p. xix.
-----
Footnote 451:
See chapter 24 of the _Forma procedendi in placitis coronae regis_,
cited in _Sel. Charters_, 262.
-----
If this cunningly-devised system prevented the Christian debtor from
evading his obligations, it also placed the Jewish creditor completely
at the mercy of the Crown; for the exact wealth of every Jew could be
accurately ascertained from a scrutiny of the contents of the _archae_.
The king’s officials were enabled to judge to a penny how much it was
possible to wring from the coffers of the Jews, whose bonds, moreover,
could be conveniently attached until they paid the tallage demanded. The
custom of fixing on royal castles as the places for keeping these arks,
probably explains the origin of the special jurisdiction exercised over
the Jews by the king’s constables (“_qui turres nostras
custodierunt_”).[452] In the dungeons of their strongholds horrible
engines were at hand for enforcing obedience to their awards. Such
jurisdiction, however, extended legitimately over trivial debts
only.[453] All important pleas were reserved for the officials of the
exchequer of the Jews, a special government department, which controlled
and regulated the whole procedure. Evidences of the existence of this
separate exchequer have been traced back to 1198, although no record has
been found of a date prior to 1218.[454] John, while despising the Jews,
was not slow to realize that in them the Crown possessed an asset of
great value. It was his policy to protect their wealth as a reservoir
from which he might draw in time of need, contenting himself meanwhile
with comparatively moderate sums. Thus, by a charter dated 10th April,
1201, he took 4000 marks in return for confirming their privileges; and
he obtained a second payment of a similar amount after his rupture with
Rome. The charter of 1201 was only a confirmation of rights already
enjoyed by all English Jews in virtue of the liberal interpretation put
upon the terms of an earlier charter which had been granted by Henry I.
to a particular father in Israel with his household, but subsequently
extended, with the tacit concurrence of the Crown, to the whole Hebrew
race. Under John’s charter they enjoyed valuable and definite
privileges, which, while leaving them completely in the royal power,
exempted them from all jurisdictions except those of the king and his
castellans; while, if a Christian brought a complaint against a Jew, it
was to be judged by the peers of that Jew.[455]
-----
Footnote 452:
See John’s Charter to the Jews of 10th April, 1201, in _Rotuli
Chartarum_, p. 93.
Footnote 453:
See Pollock and Maitland, I. 453, n.
Footnote 454:
Rigg, _ibid._, xx.
Footnote 455:
“_Judicata sit per pares Judei._” See _Rot. Chart._, I. 93.
When a repetition of the massacre which had disgraced his brother’s
coronation threatened to take place in 1203, John promptly ordered the
mayor and barons of London to suppress all such attempts. In terms
contemptuous alike to the Londoners and to the Jews his writ declared
that his promise of protection, “even though granted to a dog,” must be
held inviolate.[456] Protection was accorded to them, however, only that
they might furnish a richer booty to the Crown, when the proper occasion
arrived. Suddenly John issued orders for a wholesale arrest of the Jews
throughout England. The most wealthy members of their community were
brought together at Bristol, and, on 1st November, 1210, were compelled
to give a reluctant consent to a general tallage at the enormous sum of
66,000 marks. Apparently this amount had been fixed as the result of an
exaggerated estimate of the contents of the _archae_, and was more than
they could afford to pay. The methods adopted by John’s castellans to
extort the arrears of the amount are well-known, especially in the case
of the unfortunate Jew of Bristol, from whom seven teeth were extracted,
one each day, until he consented to pay the sum demanded.[457]
-----
Footnote 456:
_Rot. Pat._, I. p. 33, and _New Rymer_, I. 89. The date is 29th July,
1203.
Footnote 457:
See Rigg, _Sel. Pleas of the Jewish Exchequer_, xxiv.
-----
It was doubly hard that the race thus plundered and tortured by the king
should be subjected to harsh treatment by the king’s enemies on the
ground that they were pampered protégés of the Crown. Yet such was the
case: on Sunday, 17th May, 1215, when the insurgents on their way to
Runnymede entered London, they robbed and murdered the Jews, using the
stones of their houses to fortify the city walls.[458] It is not to be
wondered then that the same insurgents in forcing on King John the
demands which formed the basis of Magna Carta, included provisions
against usury.
-----
Footnote 458:
See Miss Morgate, _John Lackland_, p. 230.
-----
The advisers of the young Henry in 1216 omitted these clauses, but not
from love of the Jews. They were unwilling to impair so useful a
financial resource, which has been compared to a sponge which slowly
absorbed the wealth of the nation to be quickly squeezed dry again by
the king. The Jews were always willing to disgorge a portion of their
gains in return for protection in the rest, even of a contemptuous and
intermittent kind; but their lot became hard indeed when Henry III.,
urged by popular clamour and the wishes of the Pope, began a course of
active persecution, without relaxing the rigour of those royal exactions
which had previously been the price of protection. In 1253, a severe
ordinance inflicted a long list of vexatious regulations on the Hebrews,
almost converting their quarters in each great city into ghettos, like
those of the Continent of Europe. This was merely the commencement of a
series of oppressive measures, the natural outcome of the growing hatred
with which Christians regarded Jews,—a result partly of the heated
imagination of the rabble, ready to believe unauthenticated stories of
the crucifixion of Christian children, and partly of the fact that rich
Jews, in spite of all persecution, had possessed themselves of the
landed estates of freeholders and nobles and claimed to act as lords of
Christian tenants, enjoying wardships, escheats, and advowsons, as any
Christian baron might have done. The scope of this enquiry excludes any
detailed account of the stages through which repressive legislation
passed, until the lot of the Jews in England became intolerable. The
Statute of Jewry, however,[459] was of exceptional importance; taking
from usurers the right to recover interest by legal process, and
limiting execution for the principal to one half of the debtor’s lands
and chattels. In return some temporary concessions were granted. One by
one, all these privileges were withdrawn, until the end came in 1290
with the issue of a decree of perpetual banishment by Edward I., who was
compelled to sacrifice the cherished right of keeping a royal preserve
of Jews in deference to the culmination of national prejudice in a storm
of unreasoning hate.
-----
Footnote 459:
_Statutes of Realm_, I. 221.
II. _Legal Position of the Jews._ All through these vicissitudes of
fortune the legal status of the Jews had remained unchanged in all
essentials. Their position was doubly hard; they were plundered by the
Crown and persecuted by the populace. If John saved them from being
robbed by his Christian subjects, it was that they might be better worth
the robbing by a Christian king. Yet, for this protection, at once
fitful and interested, the Jews had to pay a heavy price; not only were
they liable to be tallaged arbitrarily at the king’s will, without limit
and without appeal, but they were hated by rich and poor as the king’s
allies. Such feelings would of themselves account for the unsympathetic
treatment accorded to money-lenders by Magna Carta; two other reasons
contributed. All usury was looked on in the Middle Ages as immoral
(although illegal only for Christians), while excessive interest was
habitually exacted.
The feudal scheme of society had no place for Jews and afforded them no
protection. Not only did they share the disabilities common to all
aliens, but these were not in their case mitigated by the protection
extended to other foreigners by their own sovereigns and by the Church.
As exiles in a foreign land, exposed to the attacks of a hostile mob,
they were forced to rely absolutely on the only power strong enough to
protect them, the arm of the king. The Jews became the mere serfs, the
perquisites or chattels of the Crown, in much the same way as the
villeins became the serfs or chattels of their lords. Rights they might
have against others by royal sufferance, but they had no legal remedy
against their master. In the words of Bracton,[460] “the Jew could have
nothing of his own, for whatever he acquired, he acquired not for
himself but for the king.” His property was his merely by royal
courtesy, not under protection of the law. When he died, his relations
had no legal title to succeed to his mortgages, goods, or money; the
exchequer, fortified by an intimate knowledge of the extent of his
wealth (for that consisted chiefly in registered bonds), stepped into
possession and could do what it pleased. The king usually, indeed, in
practice contented himself with one-third of the whole; but if the
relations of the deceased Jew received less than the balance of
two-thirds, they would be well advised to offer no remonstrance. The
Crown did not admit a legal obligation; and there was no one either
powerful enough, or interested enough, to compel the fulfilment of the
tacit understanding which restricted the royal claims. Whatever the Jew
had amassed belonged legally and potentially not to him but to the
Crown. Magna Carta, in striking at money-lenders, was striking at the
king.
-----
Footnote 460:
_Folio_, 386b.
-----
CHAPTER ELEVEN.
Et si quis moriatur, et debitum debeat Judeis, uxor ejus habeat dotem
suam, et nichil reddat de debito illo; et si liberi ipsius defuncti qui
fuerint infra etatem remanserint, provideantur eis necessaria secundum
tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo
servicio dominorum; simili modo fiat de debitis que debentur aliis quam
Judeis.
And if anyone die indebted to the Jews, his wife shall have her dower
and pay nothing of that debt; and if any children of the deceased are
left under age, necessaries shall be provided for them in keeping with
the holding of the deceased; and out of the residue the debt shall be
paid, reserving, however, service due to feudal lords; in like manner
let it be done touching debts due to others than Jews.
If the preceding chapter deprived Jews of part of the interest they
claimed, the present one deprived them also in certain circumstances of
part of the security on which they had lent the principal. The widow’s
dower lands were discharged from her husband’s debts, only two-thirds of
the original security thus remaining under the mortgage. Even this must
submit to a prior claim, namely the right of the debtor’s minor children
to such “necessaries” as befitted their station in life. Magna Carta, at
the same time, with characteristic care for feudal rights, provided that
the full service due to lords of fiefs must not be prejudiced, whoever
suffered loss. Finally, these rudiments of a law of bankruptcy were made
applicable to Gentile creditors equally as to Jews. These provisions,
with others injuriously affecting the royal revenue, were omitted in
1216, not to be restored in future charters: but they were re-enacted in
their essential principle, though not in detail, by the Statute of
Jewry, which limited a creditor’s rights of execution to one moiety of
his debtor’s lands and chattels.
CHAPTER TWELVE.
Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune
consilium regni nostri, nisi ad corpus nostrum redimendum, et
primogenitum filium nostrum militem faciendum, et ad filiam nostram
primogenitam semel maritandam, et ad hec non fiat nisi racionabile
auxilium: simili modo fiat de auxiliis de civitate Londonie.
No scutage nor aid shall be imposed in our kingdom, unless by common
counsel of our kingdom, except for ransoming our person, for making
our eldest son a knight, and for once marrying our eldest daughter;
and for these there shall not be levied more than a reasonable aid. In
like manner it shall be done concerning aids from the citizens of
London.
This is a famous clause, greatly valued at the time it was framed
because of its precise terms and narrow scope (which made evasion
difficult), and even more highly valued in after days for exactly
opposite reasons. It came indeed to be interpreted in a broad general
sense by enthusiasts who, with the fully-developed British constitution
before them, read the clause as enunciating the modern doctrine that the
Crown can impose no financial burden whatsoever on the people without
consent of Parliament. Before discussing how far such an estimate is
justified, it will be necessary to examine the historical context, with
special reference to two classes of John’s subjects; his feudal tenants,
and the citizens of London respectively.
I. _Protection of Crown Tenants from arbitrary Exactions._ The pecuniary
obligations of the barons may be arranged in two groups according as
they depended on the king’s own actions, or were determined by
circumstances which lay beyond the royal control. Payments of the former
type (such as reliefs and amercements), exigible only at fixed dates or
on the occurrence of specific events, were treated of elsewhere in Magna
Carta. The present chapter sought to prevent John from extorting
additional payments either absolutely at his own discretion, or because
of situations which he had purposely created as excuses for demanding
money. The entire field of such arbitrary feudal dues was covered by the
words “scutages” and “extraordinary aids,”[461] the use of which
protected the barons from every sort of compulsory payment which might
be demanded by the king at his own discretion.
-----
Footnote 461:
“Extraordinary” is here applied to all aids other than the three
normal ones which, falling due each on a definite occasion, come under
the opposite group of fixed payments.
-----
(1) _Scutage._ The development of the system described by this name has
been traced in the Historical Introduction.[462] Used at first as an
expedient for substituting, in the Crown’s option, money payments for
military service, it became, under John, a regular source of revenue,
imposed almost every year on one pretext or another, while it was levied
at an increased rate, and under conditions of a vexatious and burdensome
nature. If any one cause contributed, more than the others, to the
rebellion which culminated at Runnymede, it was John’s method of
imposing scutages. This chapter, then, attempted to strike at the common
root from which many grievances grew. The Crown was no longer to be left
sole judge of the occasions on which a scutage might be demanded. “The
common consent (or counsel) of the realm” must first be obtained. If
this provision had been carried into practice, it would have removed the
supreme control of the system of scutages from the Crown which received
the money, to the Crown tenants who paid it. This truly radical remedy
included the remedy of all minor abuses as well, since the collective
body of barons who could refuse payment unconditionally, might _a
fortiori_ make grants under such conditions as they chose. Henceforward
it would lie with them to say, on each occasion, whether the old normal
20s. per knight’s fee should be superseded by some other rate, either
higher or lower. This provision was never enforced, being omitted
altogether from the reissue of 1216, while the clause substituted for it
in the Charter of 1217 took an entirely different form.[463]
-----
Footnote 462:
See _supra_, 86–93.
Footnote 463:
See _supra_, 172–3.
-----
(2) _Feudal aids._ It was recognized from an early date that in
emergencies feudal vassals ought to contribute to their lord’s support
in proportion to the extent of their holdings. Such payments were known
as aids, and were originally supposed to be free-will offerings.[464] By
John’s reign they had fallen into two groups—ordinary and extraordinary.
The former, three in number, were only dealt with incidentally by the
Charter.[465] It is with the “extraordinary” aids that this chapter
specially occupies itself. These are placed in the same position as
scutages: the Crown cannot exact either, “unless by common counsel of
the realm.”
-----
Footnote 464:
Cf. _supra_, 80–2.
Footnote 465:
These three aids were carefully specified, and a reasonable rate was
stipulated for, but not defined. In this respect the treatment here
accorded to _aids_ is less satisfactory than that of _reliefs_ in
chapter 2, which carefully defined the amount to be paid. It is
probable that the framers of the present chapter relied on existing
usage, which seems to have regarded the normal aid as one-fifth of the
normal relief, _i.e._ as 20s. per knight’s fee. An alternative
explanation is also possible, that the same “common counsel” which had
the right to veto extraordinary aids, was also expected to determine
the reasonable amount of the ordinary aids.
-----
II. _Protection of Citizens of London from arbitrary Exactions._ Some
attempt was made to protect the men of London, as well as the Crown
tenants, from John’s demands for money. The insurgent leaders in this
way discharged part of their debt to an ally with special claims upon
their gratitude.[466] The Articles of the Barons had contained several
important provisions affecting the capital; and these were embodied in
the Charter in slightly altered terms, which suggest some influence at
work not altogether friendly to the citizens.[467] The present clause of
the completed charter, for example, uses only one word, “_aids_,” where
the 32nd of the Articles of the Barons had referred to “tallages and
aids.” There is no evidence to show whether the omission had been
deliberately planned, or was merely the result of inadvertence; and the
ambiguity inherent in both words makes it dangerous to hazard a dogmatic
opinion on the practical effect of the alteration. Yet a clearly-marked
line can be traced between the respective meanings of the two terms when
they are technically used.
-----
Footnote 466:
See _supra_, p. 42.
Footnote 467:
See article 23 (which became c. 33), article 31 (c. 41), and article
32 (cc. 12 and 13), and cf. _supra_, pp. 140-1. Whether article 12 (c.
35) was more a benefit to, than a restraint upon, traders seems
doubtful.
-----
(1) “_Aid_” is the vaguer word, applicable to every payment which can be
regarded as in any sense a free-will offering. It embraced gifts to the
Crown, whether from prelate or burgess or feudal baron. London was
stimulated towards acts of generosity by kings of England both before
and after John. There were times when “voluntary” aids, like the
“benevolences” of Tudor days, could not safely be withheld.
(2) “_Tallage_” was a tax levied at a feudal lord’s arbitrary will upon
more or less servile dependants, who had neither power nor right to
refuse. The frequency of these exactions and the sums taken depended
solely on the lord’s caprice, restrained by no law, but only by such
limits as an enlightened self-interest or regard for public opinion
might dictate. Liability to arbitrary tallage was thus one of the chief
marks of an unfree status, and was contrasted with the impositions
levied on those freeholders who held by knight’s service, by socage, or
by frankalmoin. The owner of the smallest manor, like the owner of the
greatest barony, might tallage his own villeins; and the king had a
similar privilege over a wider field. His rights extended even over
civic communities who held royal charters, since towns were
theoretically on the royal demesne, and therefore liable to tallage. The
great city of London, in spite of its growing wealth, its political
importance, and its list of chartered privileges, still shared this
liability.[468]
-----
Footnote 468:
This statement, for which evidence is given _infra_, is not always
admitted. Taswell-Langmead, _Eng. Const. Hist._, p. 107, says “The
city of London can never have been regarded as a demesne of the
Crown.”
-----
(3) _Comparison of tallage and aid._ The tallage, as a forced payment,
thus differed fundamentally from the nominally free “aid,” while two
minor points of difference may also be noted. In arranging an aid the
givers usually suggested the amount, though the king might reject the
offer as insufficient; while the amount of a tallage, on the other hand,
was arbitrarily fixed by the Crown. Further, while the aid granted by a
community was a joint offering which the citizens assessed and collected
by their own officers, and for which they admitted a collective
responsibility, the Crown itself allocated on whom it pleased the
particular sums of tallage to be paid by each individual, no joint
liability being admitted by those who had to pay. It was obviously to
the advantage of a borough to forestall, by the present of a liberal
aid, the Crown’s anticipated demand for a tallage, for the hated
tax-gatherer was thus kept outside the city gates. An aid was also more
to the king’s advantage than a tallage of equal amount. Not only was he
saved the trouble, expense, and delay of the collection, but he obviated
risk of loss through the insolvency of some of the individuals fixed
upon.
A story told by Madox[469] brings out the contrast. A dispute had arisen
between the king and the Londoners. To Henry’s demand for 3000 marks of
“tallage” they at first replied by offering 2000 marks of “aid,” which
the king refused. The citizens then denied liability to tallage
altogether, but were confronted with entries in Exchequer and Chancery
Rolls which entirely contradicted their audacious contention. On the
morrow the mayor and citizens acknowledged that they were talliable, and
gave the king the sum he demanded.
-----
Footnote 469:
I. 712, citing Mem. Roll 39 Henry III.
-----
(4) _Effects of the omission of the word “tallage” from Magna Carta._ As
the two words appearing in the Articles of the Barons had
well-recognized differences of meaning, it is unlikely that the omission
of one of them from the Charter was regarded as a purely verbal change.
John would readily enough dispense with the right to exact “aids” from
the wealthy traders of his capital, if he still preserved his privilege
of tallaging them at pleasure. The omission was perhaps deliberately
made in deference to John’s strong feeling on a point which did not
personally affect the barons.[470] Another omission should be noted. The
Articles had extended protection not only to Londoners, but also “to
citizens of other places who thence have their liberties,” meaning the
towns whose chartered privileges had been modelled on those of the
metropolis. Magna Carta completely ignored, in this connection, all
towns except London.[471]
-----
Footnote 470:
Alternative explanations are possible, _e.g._ that the prelates,
accustomed to tallage their own dependants, used their influence
successfully to combat this innovation as “the thin end of the wedge.”
Footnote 471:
It might possibly be argued that the last clause of chapter 13
extending to all towns a confirmation of liberties and customs, was
intended to embrace this provision as to aids. If so, the draftsman
has expressed himself clumsily.
-----
(5) _The nature of the protection afforded by Magna Carta._ The
arrangement of the present chapter is peculiar. After treating fully of
the abuses of Crown tenants, the case of the Londoners is thrown in
carelessly in a few words: “In like manner it shall be done concerning
aids from the citizens of London.” Various interpretations of the words
“_simili modo_” are possible. High authorities suggest that the clause
means no more than that aids taken from London, like ordinary aids taken
from Crown tenants, must be “reasonable.”[472] If this is so, a
criterion of reasonableness different from that applicable to knights’
fees became necessary; and this would have been hard to find.[473]
-----
Footnote 472:
Such is the opinion expressed in the _Lords’ Report on the Dignity of
a Peer_, I. 65.
Footnote 473:
In 1168, when Henry II. took an aid for the marriage of his daughter,
London contributed £617 16s. 8d., which might afford a precedent for a
“reasonable” aid. See _Pipe Roll_, 14 Henry II., cited Madox, I. 585.
-----
It is equally probable, however, that the intention was to render the
same consent necessary to the validity of aids, asked from London, as
had previously been stipulated in the case of scutages from tenants in
chief. If this is so, then the method provided in chapter 14 for taking
“the common counsel of the realm” was peculiarly ill-adapted to secure
to the men of London any effective voice in taxing themselves. The
necessity for the consent of an exclusively baronial assembly could not
adequately protect the Londoners, whose essentially different interests
were unrepresented.
Subsequent history casts no light on the original intention of this
clause; no occasion of testing its meaning ever occurred, the entire
chapter of which it forms part having been omitted from all subsequent
issues of the Charter.
(6) _Later history of the Crown’s right to tallage the towns._ Magna
Carta, even in its original form, did not deprive the king of his right
to tallage London, like any other part of his ancient demesne; and the
Crown continued quite legally and almost without question to exercise
this prerogative at intervals from 1215 until 1340. It has sometimes
been maintained, indeed, that the _Confirmatio Cartarum_ of 1297 was
intended to abolish this prerogative, and it is true, that a document
once considered as an authoritative version of the _Confirmatio_ bore
the suggestive title of _De tallagio non concedendo_. It is now well
known that the latter document is quite unauthentic; while, if the
_confirmatio_ itself was intended to relieve the towns from tallages
taken without their consent, it signally failed. Edward III.
occasionally exacted tallages from London and other towns. His
parliaments, however, sought to prohibit this, and succeeded, in 1340,
in passing a statute which abolished, in words peculiarly wide and
categorical, unparliamentary taxation of every kind whatsoever. This
act, which is sometimes styled by modern writers “the real _statutum de
tallagio non concedendo_,” is held by Dr. Stubbs to have conclusively
abolished _inter alia_ the Crown’s right of tallage.[474] This finally
settled the law, but did not prevent the king from trying to break that
law. In subsequent years Edward III. frequently disregarded the
restriction thus placed upon his financial resources, and with varying
success. He rarely did so, however, without meeting protests; and the
rule of law laid down in the act of 1340 was never repealed.
-----
Footnote 474:
See _Const. Hist._, II. 548. “Of the scope of this enactment there can
be no doubt; it must have been intended to cover every species of tax
not authorised by parliament, and ... it seems to have had the effect
of abolishing the royal prerogative of tallaging demesne.”
-----
III. _Magna Carta and the Theory of Parliamentary Taxation._ It is a
commonplace of our text-books that chapters 12 and 14 taken together
amount to the Crown’s absolute surrender of all powers of arbitrary
taxation, and even that they enunciate a general doctrine of the
nation’s right to tax itself.[475] Yet the very idea of “taxation” in
its abstract form, as opposed to specific tolls and tallages levied on
definite things or individuals, is essentially modern. The doctrine of
the day was that the king in normal times ought “to live of his own,”
like any other land-owning gentleman. A regular scheme of “taxation” to
meet the ordinary expenses of government was undreamt of. It is too much
to suppose, then, that our ancestors in 1215 sought to abolish something
which, strictly speaking, did not exist. The famous clause treats, not
of “taxation” in the abstract, but of the scutages and aids already
discussed. It does not concern itself with the rights of Englishmen as
such, but chiefly with the interests of those who held freeholds of the
Crown, and incidentally and inadequately with those of the citizens of
London. Several considerations place this beyond reasonable doubt.
-----
Footnote 475:
_E.g._ Taswell-Langmead, _Engl. Const. Hist._, 106, and Anson, _Law
and Custom of the Const._, I. 14. Dr. Stubbs, _Const. Hist._, I. 573,
considers that these words “admit the right of the nation to ordain
taxation.”
-----
(1) The terms of the restriction are by no means wide or sweeping; but
precise, accurate, and narrow. The “common consent of the realm” was
made a requisite for three species of exactions at the most: for
scutages and for extraordinary aids taken from the feudal tenants, and
possibly also for aids taken from the city of London: that is all. Not a
word is said of any other form of taxation or of other groups of
taxpayers. The restriction thus benefits Crown tenants only, with the
doubtful addition of the Londoners. (2) If under-tenants received by
chapter 15 some protection against their mesne lords, they received none
against the claims of the king. The Charter affected not national
“taxation,” but merely feudal dues. (3) The scant measure of protection
afforded did not extend even to all Crown tenants. The king’s villeins
were, of course, excluded; and so were even freeholders whose tenure was
other than that of chivalry. Socage tenants were left liable to carucage
and other exactions, tenants in frankalmoin (among them the wealthy
Cistercian monks) to forced contributions from the wool and hides of
their sheep, while the right of the Crown arbitrarily to raise the
“farms” of all parts of its own demesnes was deliberately reserved.[476]
(4) The Crown’s initiative in “taxation” (here restricted in regard to
“aids” and “scutages”) was, under many other names and forms, left
intact. The king required no consent before taking such prizes and
custom dues as he thought fit from merchandise reaching or leaving
England, or before taking tolls and fines at inland markets under the
plea of regulating trade. Tallages also were exigible at discretion from
aliens and Jews, from tenants of demesne, from London and other
chartered towns. (5) The limited scope of this restriction on
prerogative is further illustrated by the method provided for taking
“the common consent.” The assembly to be convened for that purpose was a
narrow body, representative neither of the several ranks and classes of
the community, nor of the separate national interests, nor yet of the
various districts of England. On the contrary, its composition was
extremely homogeneous, an aristocratic council of the military tenants
of the Crown, convened in such a way that only the greater among them
were likely to attend.[477]
-----
Footnote 476:
See _infra_, under c. 25.
Footnote 477:
Even when an honour escheated to the Crown, the tenants of that honour
“were not suitors of the _Curia Regis_.” See _Report on Dignity of a
Peer_, I. 60.
-----
These facts serve as a warning not to read into Magna Carta modern
conceptions which its own words will not warrant. This famous clause was
far from formulating any national doctrine of self-taxation; it was
primarily intended to protect Crown tenants from impositions levied by
John, not _qua_ sovereign but _qua_ feudal lord. Such as it was, it was
totally omitted, along with its corollary (chapter 14), in 1216. The
provision substituted for both, in the Charter of 1217, referred only to
scutages, saying nothing about aids, and cannot possibly be read as a
general prohibition of all arbitrary taxation by the Crown.[478]
-----
Footnote 478:
Cf. _supra_, pp. 173-4 and _infra_, under c. 14.
-----
CHAPTER THIRTEEN.
Et civitas Londonie habeat omnes antiquas libertates et liberas
consuetudines suas, tam per terras, quam per aquas. Preterea volumus et
concedimus quod omnes alie civitates, et burgi, et ville, et portus,
habeant omnes libertates et liberas consuetudines suas.
And the citizens of London shall have all their ancient liberties and
free customs, as well by land as by water; furthermore, we decree and
grant that all other cities, boroughs, towns, and ports shall have all
their liberties and free customs.
A full list of the liberties and customs of London would be a long one;
and an account of how each of these grew up and was confirmed by the
Crown need not be given here. The most cherished of the privileges
enjoyed in John’s day were the right to appoint a civic chief, who bore
the name of mayor, and the right to choose sheriffs of their own who
should collect the city’s _firma_[479] (or annual rent payable to the
exchequer), so as to obviate the intrusion of royal bailiffs. Only a
brief account of the way in which the metropolis obtained these two
privileges need be here attempted.
-----
Footnote 479:
_Firma_ is explained _infra_, c. 25.
-----
The chief feature of London before the Norman Conquest seems to have
been lack of proper municipal organisation. Dr. Stubbs describes the
capital during the eleventh century as “a bundle of communities,
townships, parishes, and lordships, of which each has its own
constitution.”[480] It was thus a collection of small administrative
units, rather than one large unit. Some semblance of legal unity was, it
is true, afforded by the folkmoot, in which the citizens regularly
assembled; by its smaller council known as “husteng”; and perhaps also
by its “cnihtengild” (if, indeed, this third body be not entirely
mythical); while the existence of a “portreeve” shows that for some
financial purposes also the city was treated as one whole. London,
however, prior to the reign of Henry I. was far from possessing
machinery adequate to the duties of a local government for the whole
community.
-----
Footnote 480:
Stubbs, _Const. Hist._, I. 439. Cf. Round, _Commune of London_, 220,
who is in substantial agreement. Miss Mary Bateson, however, thinks
that “there has been a tendency unduly to minimise the measure of
administrative unity in the twelfth-century shire of London.” See the
evidence produced by her, _Engl. Hist. Rev._, XVII. 480-510.
-----
The first step towards acquiring a municipal constitution is generally
supposed to have been taken by the citizens when they obtained a charter
from Henry I. in the last years of his reign (1130-35). This is not
strictly accurate. London, indeed, by that grant gained certain valuable
privileges and enjoyed them for a short time, but it did not obtain a
constitution. The chief rights actually conferred by Henry were as
follows:—(1) The _firma_ was fixed at the reduced rate of £300 per
annum, the citizens obtaining for this payment a lease in perpetuity of
their own city with the surrounding county of Middlesex—the grant being
made to the citizens and their heirs; (2) they acquired the right to
appoint whom they pleased as sheriffs of London and Middlesex, implying
the exclusion of the king’s tax-collectors by men of their own choosing;
(3) a similar right of appointing their own nominee as justiciar was
also conferred on them, to the exclusion apparently of the royal
justices of eyre. Many minor privileges were confirmed which need not
here be specified. Mr. J. H. Round[481] argues with convincing force
that these concessions, important as they were, did not confer a civic
constitution upon London. Henry’s charter, in his opinion, confirmed all
the already existing separate jurisdictions and franchises, perpetuating
the old state of disunion, rather than creating a new principle of
cohesion. He proves, further, that these benefits continued in force
only for a few years after Stephen’s accession. That king was coerced by
the Earl of Essex into infringing the citizens’ chartered rights; and
London did not regain the ground thus lost until the reign of Richard I.
-----
Footnote 481:
_Geoffrey de Mandeville_, 356.
-----
Henry II., indeed, granted a charter to the citizens in 1155, which is
usually interpreted as a full confirmation of all the concessions of the
earlier Henry.[482] Mr. Round has conclusively proved the error of this
opinion.[483] The charter of 1155 restricted, rather than enlarged, the
privileges of London, being couched in cautious and somewhat grudging
terms. The main concessions of the earlier charter were completely
omitted: the citizens no longer elected their own sheriffs or their own
justiciar; the reduction of the _firma_ to £300 was not confirmed; and
subsequent pipe rolls show that Henry doubled that amount, although the
Londoners protested, arguing for the lower rate.
-----
Footnote 482:
See _e.g._ Miss Norgate, _Angevin Kings_, II. 471.
Footnote 483:
_Geoffrey_, 367.
-----
The next crisis came early in Richard’s reign. Then it was that London
first obtained its municipal constitution. Then also it regained and
secured on a permanent basis the privileges precariously held for a few
years under Henry I. and Stephen. The form in which the constitution
came at last was borrowed from France, and was neither more nor less
than the _Commune_, so well known on the Continent in the twelfth and
thirteenth centuries. The commune of London was possibly modelled upon
the commune of Rouen; the chief cities of England and Normandy
respectively must have had intimate relations. Mr. Round[484] has shown
that these concessions were not, as has sometimes been supposed,
voluntarily granted in 1189 by Richard I., but were extorted from his
younger brother John, when that ambitious prince was bidding high for
powerful allies to support his claim to act as Regent. London really got
its first constitution on 8th October, 1191, under picturesque and
memorable circumstances. While Richard tarried in the Holy Land, a
scramble took place at home for the right to represent him. The
Chancellor Longchamp had been appointed Regent; but John, wily and
unscrupulous, successfully ousted him, with the help of the men of
London. At the critical moment the metropolis had offered its support on
conditions, which included the restoration of all the short-lived
privileges conferred by the charter of Henry I., and, in addition, a
municipal constitution of its own in the form of a commune of the
continental type.
-----
Footnote 484:
_Commune of London_, 222.
-----
Mr. Round, in a notable passage, describes the scene. "When, in the
crisis of October, 1191, the administration found itself paralysed by
the conflict between John, as the king’s brother, and Longchamp, as the
king’s representative, London, finding that she held the scales,
promptly named the 'Commune’ as the price of her support. The chronicles
of the day enable us to picture to ourselves the scene, as the excited
citizens, who had poured forth overnight, with lanterns and torches to
welcome John to the capital, streamed together on the morning of the
eventful 8th October at the well-known sound of the great bell, swinging
out from its campanile in St. Paul’s Churchyard. There they heard John
take the oath to the ‘Commune,’ like a French king or lord; and then
London, for the first time, had a municipality of her own."[485]
-----
Footnote 485:
_Commune of London_, 224.
-----
For any accurate definition of a commune we look in vain to contemporary
writers, who are usually carried away by their political bias. Richard
of Devizes[486] quotes with approval, “_Communia est tumor plebis, timor
regni, tepor sacerdotii_.” Some insight has been gained in recent years,
however, into its exact nature. A Commune was a town which had obtained
recognition as a corporate entity, as a link in the feudal chain,
becoming the free vassal of the king or other lord, and itself capable
of having sub-vassals of its own.[487] Its chief institutions were a
mayor and an elective council, generally composed of twenty-four
members, some or all of whom were known as _échevins_ or _skivini_, a
word which in its modern form of “scavengers” has fallen on evil days,
no longer denoting the city fathers, but men who perform civic duties of
a useful but less dignified nature. Perhaps the chief peculiarity of the
commune was the method of its formation, namely, by popular association
or conspiracy, involving the taking of an oath of a more or less
revolutionary nature by the citizens and its subsequent ratification by
those in authority. It is generally admitted that these communes, though
revolutionary in their origin, were not necessarily democratic in their
sympathies. Under the new constitution of London, the grievous taxation
of Richard’s reign was made to fall more heavily on the poor of London
than on any other class. The commune thus set up in 1191, tolerated at
first rather than encouraged by the Crown, formed thenceforth the
municipal government of the capital; the citizens chose not only their
own sheriffs, but also their own mayor, although the latter, when once
appointed, held office for life.
-----
Footnote 486:
_Select Charters_, p. 252.
Footnote 487:
M. Luchaire, _Communes Françaises_, p. 97, defines it as “_seigneurie
collective populaire_.”
-----
When John became king, he granted three charters, ratifying the
privileges of the capital in return for a _gersuma_ (or slump payment)
of 3000 marks.[488] All the franchises specified in the old charter of
Henry I. were now confirmed, with one exception: the liberty to appoint
a justiciar of their own, now seen to be inconsistent with the Crown’s
centralizing policy, was abandoned. None of these charters made mention
of mayor or commune, but they confirmed some minor privileges gained in
Richard’s reign.[489]
-----
Footnote 488:
Miss Bateson, _Engl. Hist. Rev._, XVII. 508.
Footnote 489:
_E.g._ the removal of obstacles to free navigation in Thames and
Medway. Cf. _infra_, c. 33.
A fourth charter, dated 20th March, 1201, was merely of temporary
interest; but a fifth, granted on 9th May, 1215, little more than a
month previous to Magna Carta, is of great importance, and represents
the bait thrown by John to the citizens in the hope of gaining their
support in this new crisis, as he had previously gained it in the crisis
of 1191. The fifth charter not merely confirmed to the citizens in
explicit terms the right already enjoyed by them of electing a mayor for
life, but allowed them to elect a new one every year. Miss Norgate does
not exaggerate, when she describes this concession as “the crowning
privilege of a fully constituted municipality, the right to elect their
own mayor every year.”[490] An annually elected magistrate would,
undoubtedly, feel his dependence on the citizens more than one holding
office for life; but it seems probable that the chief value of the grant
lay in its confirmation by John as king, of the rights conceded by him
fourteen years earlier as his brother’s unauthorised representative, and
enjoyed meanwhile on an insecure tenure. The charter of May, 1215, by
officially recognizing the mayor, placed the commune over which he
presided on a legal footing. The revolutionary civic constitution, sworn
to in 1191 was now confirmed. The citizens acted on the permission
granted them of annually changing their chief magistrate: but in place
of supporting the king who made the grant, they opened their gates to
his enemies.[491]
-----
Footnote 490:
_John Lackland_, 228.
Footnote 491:
From this date the list of mayors shows frequent, sometimes annual,
changes. Thus Serlo the mercer was Mayor in May, 1215, when London
opened its gates to the insurgents, while William Hardell had
succeeded him before 2nd June, 1216, when he headed the citizens who
welcomed Louis to make London his headquarters.
-----
Such then was the London whose privileges were confirmed by Magna
Carta—a city which had slowly grown to greatness, obtaining after many
struggles a complete municipal constitution in the form of a commune
with annually elected mayor and council, as well as sheriffs of its own
appointment, who excluded the Crown’s financial officers not only from
the district within its walls but from the whole of Middlesex. The Great
Charter, avoiding details, confined itself to a general confirmation to
the men of London of their ancient “liberties and free customs,” two
words[492] whose vagueness ought in this connection to receive a liberal
interpretation.[493]
-----
Footnote 492:
Both words are discussed _infra_, c. 39.
Footnote 493:
The Charter mentions neither mayor nor commune, but probably by
implication confirmed both. Prof. G. B. Adams finds such confirmation,
not in c. 13, but in c. 12 (by its application of the word _auxilium_
to London); and maintains that with the omission of this word from
subsequent charters "London’s legal right to a commune fell to the
ground." _Engl. Hist. Rev._, XIX. 706.
-----
London, in this respect, was not to stand alone; a similar concession
was explicitly made in favour of all other cities, boroughs, towns, and
sea-ports. This was a mere confirmation, however, not to be read as
conferring new privileges or exemptions, each borough being left to
prove its own customs as best it might. In the reissues of Henry, the
distinction of being mentioned by name was shared by these “barons of
London,” with “the barons of the Cinque ports,” who from their wealth,
their situation, and their fleet, were allies well worth conciliating.
They played, indeed, a prominent part in the decisive naval victory
gained by Hubert de Burgh on 24th August, 1217.[494]
-----
Footnote 494:
See _supra_, p. 170.
-----
Other portions of John’s Great Charter which specially affected the
Londoners were the last clause of chapter 12, and chapters 33 and 41;
while many of the privileges granted or confirmed in other chapters were
shared by them. The Mayor of London, it should be added, was one of the
executive committee of twenty-five, entrusted with wide powers to
enforce the provisions of the Charter.[495]
-----
Footnote 495:
See _infra_, c. 61.
-----
Among the most cherished privileges claimed by the chartered boroughs
were the rights to exact tolls and to place oppressive restrictions upon
all rival traders not members of their guilds, foreigners and denizens
alike. The confirmation of these privileges in this chapter has been
held to contradict chapter 41, which grants protection and immunities to
foreign merchants.[496] The inconsistency, however, should not be pushed
too far, since the later chapter aimed at the abolition of “evil
customs” inflicted by the king, not of those inflicted by the boroughs.
At the same time, all favour shown to aliens would be bitterly resented
by their rivals, the English traders. If the charter had been put in
force in its integrity, the more specific privileges in favour of
foreign merchants would have prevailed in opposition to the vague
confirmation of borough “liberties” wherever the two came into
collision.[497]
-----
Footnote 496:
Cf. Pollock and Maitland, I. 447-8.
Footnote 497:
Cf. _infra_, c. 41.
-----
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.
And for obtaining the common counsel of the kingdom anent the
assessing of an aid (except in the three cases aforesaid) or of a
scutage, we will cause to be summoned the archbishops, bishops,
abbots, earls, and greater barons, by our letters under seal; and we
will moreover cause to be summoned generally, through our sheriffs and
bailiffs, all others who hold of us in chief, for a fixed date,
namely, after the expiry of at least forty days, and at a fixed place;
and in all letters of such summons we will specify the reason of the
summons. And when the summons has thus been made, the business shall
proceed on the day appointed, according to the counsel of such as are
present, although not all who were summoned have come.
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]
-----
Footnote 498:
On the whole subject of the _commune concilium_, cf. _supra_ 151-4 and
also 173-4.
-----
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.
-----
Footnote 499:
_E.g._ Sir William R. Anson, _Law and Custom of the Constitution_, I.
14, emphatically declares that one of the two cardinal principles of
the entire Charter is “that representation is a condition precedent to
taxation.”
-----
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]
-----
Footnote 500:
This is illustrated by a comparison of the words used in the text with
the phrases in which Henry and his sons expressed “the common consent”
to important ordinances and charters: _e.g._ (_a_) the Assize of
Clarendon in 1166 (_Select Charters_, 143) bears to have been ordained
by Henry II. “_de consilio omnium baronum suorum_”; (_b_) John’s
Charter surrendering his kingdom to Innocent in 1213 declares that he
acted “_communi consilio baronum nostrorum_” (_Select Charters_, 285);
(_c_) Matthew Paris makes Earl Richard complain to his brother Henry
III. in 1255 that the Apulian business had been entered on “_sine
consilio suo et assensu barnagii_” (_Chron. Maj._ V. 520).
-----
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]
-----
Footnote 501:
See Ramsay, _Angevin Empire_, p. 54, and authorities there cited.
Footnote 502:
See L. O. Pike, _House of Lords_, 92, "There is no trace of any desire
on the part of the barons to be summoned to the king’s great Council
as a privilege and an honour before the reign of John." Cf. also
_Report on the Dignity of a Peer_, I. 389.
-----
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]
-----
Footnote 503:
See Prof. Medley, _Engl. Const. Hist._, 123.
Footnote 504:
See _Dialogus de Scaccario_, II. x. D., “_baronias scilicet majores
seu minores_.”
Footnote 505:
Cf. _supra_, c. 2.
Footnote 506:
_Engl. Const. Hist._, 123. “The smaller tenants-in-chief would
thankfully regard the general summons as an intimation to stay away.”
-----
(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.
-----
Footnote 507:
_Engl. Const._, I. 466.
-----
(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]
-----
Footnote 508:
See _Const. Hist._, I. 666. “Whether or no the fourteenth article of
the Great Charter intended to provide for a representation of the
minor tenants-in-chief by a body of knights elected in the county
court,” etc.
-----
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]
-----
Footnote 509:
Cf. _supra_, p. 36. The writ appears in _Rot. Claus_, I. 165, and also
in _Sel. Charters_, 287. Cf. _New Rymer_, I. 117.
-----
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]
-----
Footnote 510:
Cf. _supra_, c. 12.
Footnote 511:
Cf. Anson, _Law and Custom_, I. 44. “The provisions of 1215 described
an assembly of a type which was already passing away.” Cf. what is
said of reactionary tendencies in connection with cc. 37 and 39.
-----
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]
-----
Footnote 512:
Cf. _Report on Dignity of a Peer_, I. 63, where it is mentioned as
“remarkable that no one article in the Charter has reference to the
previous existence of any assembly convened for general purposes of
legislation; nor does the charter contain any provision for the
calling of any such assembly in the future, or any provision
purporting the existence by law of any representative system for the
purpose of general legislation.”
-----
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]
-----
Footnote 513:
Cf. Stubbs, _Const. Hist._, I. 607: “Absence, like silence, on such
occasions implies consent.”
-----
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.
-----
Footnote 514:
See _Pipe Roll_ of 5 Henry III., cited Madox, I. 675.
-----
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]
-----
Footnote 515:
See Prothero, _Simon de Montfort_, 67, and authorities there
mentioned.
-----
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]
-----
Footnote 516:
See M. Paris, _Chron. Maj._, V. 520. His words are: “_Et responsum
fuit quod omnes tunc temporis non fuerunt juxta tenorem magnae cartae
suae vocati, et ideo sine paribus suis tunc absentibus nullum
voluerunt tunc responsum dare_.” Matthew, however, probably improved
his story in the telling, adding local colour from the only version of
the charter known to him—namely, that spurious copy he had
incorporated in his own history. He clearly knew nothing of the
essential differences between the charters of John and of Henry. The
barons in 1255 may, or may not, have been equally ignorant.
-----
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.
We will not for the future grant to any one licence to take an aid
from his own free tenants, except to ransom his body, to make his
eldest son a knight, and once to marry his eldest daughter; and on
each of these occasions there shall be levied only a reasonable aid.
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.
-----
Footnote 517:
The chapter is, therefore, on the one hand a necessary supplement of
cc. 12 and 14, while on the other it is merely a particular
application of the general principle enunciated in c. 60, which
extended to sub-tenants all the benefits secured to Crown tenants by
previous chapters.
-----
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.
-----
Footnote 518:
The exemptions enjoyed by them are explained under c. 43.
-----
(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.
-----
Footnote 519:
See Bracton’s _Notebook_, case 1146, cited by Pollock and Maitland, I.
331.
-----
(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.
-----
Footnote 520:
In theory, in Henry II.’s reign at least, a royal writ was _not_
required in the normal case. See _Dialogus_, II. viii., and the
editors’ comment (p. 191): “Normally the levying of money under any
pretext from a land-owner gave him a right to make a similar levy on
his under-tenants.” As regards _scutage_, a distinction was
recognized. The lord who actually paid scutage might collect it from
his sub-tenants without a licence; but, if he served in person, he
could recover none of his expenses except by royal writ. See _Ibid._,
and cf. Madox, I. 675. It is necessary, however, to avoid confusion
between two types of writ, (_a_) that which merely authorized
contributions, _e.g._, _de scutagio habendo_; (_b_) that which
commanded the sheriff to give his active help.
-----
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]
-----
Footnote 521:
Cf. Pollock and Maitland, I. 331: “The clause expunged from the
Charter seems practically to have fixed the law.”
-----
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]
-----
Footnote 522:
_Close Rolls_, I. 306, cited Pollock and Maitland, I. 331.
-----
(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.
-----
Footnote 523:
_Patent Rolls_, 5 John, cited Madox. I. 615.
-----
(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]
-----
Footnote 524:
_Close Rolls_, 7 John, cited Madox, I. 616.
Footnote 525:
See Glanvill, IX. 8.
Footnote 526:
See Round, _Commune of London_, 130.
Footnote 527:
See Madox, I. 617, citing _Patent Rolls_, 18 Henry III. Various other
examples are given by Pollock and Maitland, I. 331, _e.g._ “the earl
of Salisbury, to enable him to stock his land.”
Footnote 528:
_Supra_, p. 303, and cf. Pollock and Maitland, I. 331.
Footnote 529:
See Madox, I. 677.
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.
-----
CHAPTER SIXTEEN.
Nullus distringatur ad faciendum majus servicium de feodo militis, nec
de alio libero tenemento, quam inde debetur.
No one shall be compelled to perform greater service for a knight’s
fee, or for any other free tenement, than is due therefrom.
For military tenants, the transition from scutage to service was a
natural one; since it was not enough to protect themselves from
exactions in money, if they were still exposed to arbitrary exactions in
kind. John, therefore, declared that no freeholder should be constrained
to do more service for his lands than he was legally bound to do.
Disputes might arise, however, as to what extent of service actually was
due in each particular case, and Magna Carta did nothing to remove such
ambiguities. The difficulties of definition, indeed, were enormous,
since the duration and conditions of service might vary widely even
among tenants-in-chivalry, in consequence of special exemptions or
special burdens which appeared in title deeds or rested upon immemorial
usage. The barons would be unwilling to enter on so intricate and
laborious a task, fearing that the introduction of such complications
might do more harm than good. The necessity for accurate definition may
never have occurred to them: the main purport of their grievance was so
vividly present to their own minds that they did not acknowledge the
possibility of any mistake. The military Crown tenants had frequently
objected to serve abroad, particularly during John’s campaigns in
Poitou, which involved a long expensive journey to a region in which
they had nothing at stake.[530] They regarded themselves as not legally
bound to make expeditions to such portions of the Angevin Empire as had
not belonged to the Norman kings when their ancestors got their fiefs.
To force them to enter on campaigns to the south of France, or to fine
them heavily for staying at home, was, they argued, to distrain them _ad
faciendum majus servicium de feodo militis quam inde debetur_. When they
inserted these words in the Charter, they doubtless regarded them as an
absolute prohibition of compulsory service in Poitou, at all
events.[531] The clause was wide enough, however, to include many minor
grievances connected with service. The barons did not confine its
provisions to military service even, but extended it to other forms of
freehold tenure (“_nec de alio libero tenemento_”). No freeholder,
whether in socage, serjeanty, or frankalmoin, could in future be
compelled to render services not legally due.
-----
Footnote 530:
See the authorities cited _supra_, p. 85, nn. I and 2.
Footnote 531: