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CHAPTER FOURTEEN. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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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, severally by our letters; 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 machinery to give effect to chapter 12.2
As chapter 12 is frequently supposed to enunciate a general doctrine of taxation, so this one is cited as enunciating a doctrine of parliamentary representation; while the close connection between the chapters is taken as evidence that the framers of Magna Carta had grasped the essentially modern principle that taxation and representation ought always to go together.1 In this view, the barons at Runnymede are given credit for anticipating the best features of modern parliamentary government. The text, however, will scarcely bear so liberal an interpretation.2 Vital points of difference between the principles of Magna Carta and the modern doctrine of representation are revealed by analysis.
Under chapter 12, scutages and extraordinary aids could only be levied “with common counsel of our kingdom,” and now chapter 14 fixes authoritatively the composition of an assembly charged with this function. The same Latin words which signify joint “consent” or counsel came to signify also the “Common Council,” afterwards of vital constitutional importance, continuing under a new name the old curia regis, and passing in turn into the modern Parliament. The duties and constitutional importance of this commune concilium may be considered under six heads.
Nature of the Summons.
Formal writs had to be issued, specifying the time, place, and reason of assembling, at least forty days in advance. Each of the really powerful men of the realm—archbishops, bishops, abbots, earls, and “other greater barons”—received a separate writ addressed to him individually, while the “smaller barons” were summoned collectively and indirectly through the sheriffs and bailiffs of each district.
Composition of the Council.
It is clear that the meetings contemplated were purely baronial assemblies, since none but Crown tenants were invited to attend. “The common consent of my kingdom,” in John’s mouth, was synonymous with “the consent of my barons.”1 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 entirely homogeneous, a feudal muster of Crown–vassals.2
It is unnecessary here to examine the rival theories professing to explain the composition of the Anglo–Saxon Witenagemot, or to discuss the exact connection between that institution and the Curia Regis of the Norman Kings. As 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. 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 criticism. This was in October, 1164, when a special council was summoned to Northampton to pass judgment upon 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 holder of a barony was wont to receive, was withheld. Apparently, contemporary opinion condemned this omission.3 It is safer 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. It was in 1215 that the magnates of England formulated 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 rather as a burden incident to the possession of land.1
Mr. Round2 maintains that under John “the writ of summons suddenly assumed a very real importance,” and argues, with much plausibility, that the present chapter proves “that the Crown had been endeavouring to use the writ as a means of excluding its opponents from the assembly.” The barons, on their part, unable to assert a right to attend uninvited, “insisted that they all must be summoned.”
Position of “Minor Barons.”
Crown–tenants varied in power and position from the great earl, who owned the larger share of one or more counties, to the small freeholder with a few hides or acres of his own. A rough division was drawn somewhere in the midst; but the boundary was vague, and this vagueness was probably encouraged by the Crown, whose requirements might vary from time to time.3 The Crown–tenants on one side of this fluctuating line were barones majores; those on the other, barones minores. The distinction had been recognized as early as the days of Henry II.;4 but Magna Carta helped to stereotype it, and contributed to the growing tendency to confine the word “baron” to the greater men.5 The smaller barons grudged the long journeys and the expense of attending Councils whose decisions they were powerless to influence; and they found a more fitting sphere for their energies in the meetings of the shire. For these reasons, they were prepared to ignore any summonses they might receive. In this respect, in Mr. Round’s1 opinion, the feudal theory “broke down in England.”
Three distinct theories have been advanced as to the position occupied by the “minor barons” in the Common Council. (1) The duty of attendance was burdensome on the poorer Crown–tenants. It has 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.2 (2) Dr. Hannis Taylor holds an opposite opinion, reading this chapter as an attempt “to rouse the lesser baronage to the exercise of rights which had practically passed into desuetude.”3 If such an attempt had really been made, and had succeeded, the result would have been to leave no room for the future introduction of the representative principle into the national council. (3) A third theory holds that the smaller Crown–tenants were called in a representative capacity. 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.4
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 was 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 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.
It is well to hesitate before applying to ancient institutions a word so essentially modern as “representation.” In a sense, the reeve and four best men of every village “represented” their fellows in the county court from an 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 definite relation which exists at present between the member of Parliament and his constituents. Magna Carta shows no tendency whatever to adapt this expedient of representation, even in its crudest form, to the composition of the Common Council. The councillors whose summons was enjoined were all of one type, military tenants of the Crown, each of whom was to attend in his own interests not in those of his class, still less of his district or of the community as a whole. The barons, great and small, might be present, each man for himself; but the other contributors to the King’s exchequer were ignored.1
Powers 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 on behalf of the commune concilium to be consulted in the making of laws or in the performance of administrative duties by the Crown: no effort was made towards formulating any doctrine of ministerial responsibility. This assembly, narrow and aristocratic in composition, had only one right secured to it, a limited control over taxation. Even here, as we have seen, no general claim was put forward. It had no right to control the national purse: the barons merely protected 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.”1
It would, indeed, have been an evil thing for England, if this narrow baronial assembly had established a claim to tax the important classes of the community, townsmen and vassals of mesne lords, who were totally unrepresented in it. Doubtless, it would have been ready enough to substitute, if it could, a scheme of taxation that relieved Crown–tenants of the burden of scutages and aids, at the expense of their humbler neighbours.
Rights of Majorities and Minorities.
The medieval conception of 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. “No new exactions without consent of the individual taxed” was nearer the ideals of 1215 than “no taxation without consent of Parliament.” Each “baron” was summoned on his own behalf; and 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 lost 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.2
Nothing is said, however, as to the validity of a protest made by those who came and expressed disapproval. As the substance of this chapter was observed in practice (though omitted from subsequent confirmations), a precedent of the year 1221 may illustrate the interpretation put upon it by contemporary practice. A Council summoned by William Marshal had consented to a scutage, and the Bishop of Winchester was assessed at 159 marks for his knight’s fees. He refused to pay, on the ground, quite untenable by modern standards, that he had dissented from the grant. The plea was accepted by the Regent, and the exchequer adjudged bishop Peter quit of the payment.1 The incident shows how far the statesmen of the day were from realizing the principles of modern 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.2
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, 1242.3 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.”4
[2 ]On the whole subject of the commune concilium, cf. supra, 129–131 and 149.
[1 ]E.g. Anson, Law and Custom of the Constitution (1st ed.), I. 14, declares that one of the two cardinal principles of the Charter is “that representation is a condition precedent to taxation.” This has been altered in later editions.
[2 ]Prof. Adams (Origin, 276 n.) perhaps goes too far towards the opposite extreme in holding this chapter “an unnecessary addition to the Articles of the Barons and quite without importance.” Contrast Round as cited infra, p. 251.
[1 ]This is illustrated by comparison with the phrases in which Henry and his sons expressed “the common consent”: e.g. (1) the Assize of Clarendon in 1166 (Select Charters, 143) bears to have been ordained by Henry II. “de consilio omnium baronum suorum”; (2) John’s Charter to Innocent in 1213 declares that he acted “communi consilio baronum nostrorum” (Select Charters, 285); (3) Matthew Paris makes Earl Richard complain to Henry III. in 1255 that the Apulian business had been entered on “sine consilio suo et assensu barnagii” (Chron. Maj., V. 520).
[2 ]Cf. Round (Peerage and Pedigree, 349 ff.), who speaks of this as creating “a harsh and artificial division of society.” Its composition was stereotyped, and Mr. Round rejects alike the theory of Stubbs (Const. Hist., I. 566) that the Council was being gradually extended, and that of Freeman (Norman Conquest, V. 419) that it was suffering contraction. Cf. also Adams, Origin, 226 n., and the authorities there collected.
[3 ]See Ramsay, Angevin Empire, p. 54, and authorities there cited.
[1 ]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.
[2 ]Peerage and Pedigree, 355–6.
[3 ]See Prof. Medley, Eng. Const. Hist., 123.
[4 ]Dialogus de Scaccario, II. x. D., “baronias scilicet majores seu minores.”
[5 ]Cf. supra, c. 2. Prof. Vinogradoff, Law Quart. Rev. XXI. 255, shows that “baronia” long remained a technical term for the body of freemen holding from the king, both great and small.
[1 ]Op. cit., 353. Cf. also his King’s Serjeanties, 36; Commune of London; 252–3.
[2 ]Eng. Const. Hist., 123. “The smaller tenants–in–chief would thankfully regard the general summons as an intimation to stay away.”
[3 ]Eng. Const., I. 466.
[4 ]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.
[1 ]The writs of 7th November, 1213, are commonly regarded as introducing the representative principle into the national assembly, and in this view the barons’ scheme embodied in Magna Carta has been considered as reactionary by comparison. Cf. Anson, Law and Custom, I. 44: “The provisions of 1215 described an assembly which was already passing away.” There are difficulties, however, connected with the interpretation of those writs; and recent authorities are inclined to point to 1264, rather than to 1213, as the beginning of the systematic application of representation to Parliament. See Adams, Origin, 317, 340. Cf. also supra, 29–30.
[1 ]Cf. Report on Dignity of a Peer, I. 63.
[2 ]Cf. Stubbs, Const. Hist., I. 607: “Absence, like silence, on such occasions implies consent.”
[1 ]See Pipe Roll of 5 Henry III., cited Madox, I. 675.
[2 ]For the beginnings of the modern doctrine of the rights of majorities see infra under c. 61.
[3 ]See Prothero, Simon de Montfort, 67, and authorities there mentioned.
[4 ]See M. Paris, Chron. Maj., V. 520. Note, however, that the version of the Charter given in his own history contains no such requirement. The barons in 1255 may have had access to the version of 1215.