Front Page Titles (by Subject) CHAPTER FIFTEEN. - Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
Return to Title Page for Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER FIFTEEN. - 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).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
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: money is no longer to be extorted arbitrarily by their lords.1 Different machinery, however, had here to be adopted, since the expedient of chapter 12 (“the common counsel of the realm”) was inapplicable.
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,2 but in others their position was worse. Not only had they to satisfy demands of their own lord for “aids,” but part of every burden laid by the King upon that lord’s shoulders was transferred to theirs. In seeking to protect under–tenants, Magna Carta looked, not to the common council, but to the King. No mesne lord could compel his tenants to contribute to his necessities without written licence from the Crown; and the Crown was now forbidden to issue such licences except upon the usual three occasions.3 Contrast this procedure with that which affected Crown–tenants:—
(1) While chapter 12 had spoken of “aids and scutages,” this one speaks of “aids” alone. The omission can be readily explained: a mesne lord in England had no admitted right of private war, and was 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 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” for 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 in 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 consent to an aid of 20s. per fee on his daughter’s marriage.1 No such obligation, however, had been placed on mesne lords by Magna Carta, which had sought a practical substitute for “the common counsel of the realm” in a different direction.
(3) A check upon such exactions was sought, not in the court baron, but in the 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.2 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, sold writs to every needy lord who proposed to enrich himself at his tenants’ expense. Magna Carta forbade the two tyrants thus to combine against sub–tenants, enunciating a hard–and–fast rule which, if duly observed, would have struck at the root of the grievance: no writ could be lawfully issued except on the three well–known occasions.
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. Mesne lords 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.1
Henry III., however, 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 can readily be collected:
In 1217, for example, Henry granted permission to all Crown tenants who had served in person to collect scutage from their knights.2
(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.1 (b) A royal writ in 1235 allowed Henry Tracey, as already mentioned, to take an aid for his daughter’s marriage.
(a) When a fine of sixty marks was incurred in 1206 by the Abbot of Peterborough, John allowed him to distrain his under–tenants.2 (b) An heir, paying relief, might likewise take reasonable contributions from freeholders.3 (c) The lord’s debts were frequently paid by his tenants. The returns to the Inquest of 1170 contain particulars of “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”4 while in 1234 the Earl of Oxford and the Prior of Lewes each obtained a letter patent distraining tenants to contribute to discharge their debts.5 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 the justice of such writs, if good fees were paid. His letters 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, when he debated with his assembled knights of Devonshire the amount to be paid as “reasonable,” and finally accepted 20s. per fee.6 This same mesne lord, however, twelve years later, obtained a writ bidding the sheriff of Somerset assist him to collect “the scutage of Gascony” at 40s. per fee.7
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. Only 20s. could be taken from a knight’s fee and an equal sum from land held in socage of the annual value of £20. No aid for a knighthood could be taken before a son was 15 years of age, or for a marriage until a daughter was 7.
[1 ]The chapter is, therefore, on the one hand, a supplement of cc. 12 and 14; on the other, a particular application of the principle enunciated in c. 60, which extended to sub–tenants benefits secured to Crown–tenants by previous chapters.
[2 ]The exemptions enjoyed by them are explained under c. 43.
[3 ]By strict feudal theory the King had no right to interfere between the barons and their sub–tenants. (1) The need for royal writs was thus a usurpation. (2) Those writs were “only letters of request,” not binding on sub–tenants. See Adams, Origin, 230–2.
[1 ]Bracton’s Note–book, No. 1146, cited Pollock and Maitland, I. 331.
[2 ]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 landowner 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. In later practice, the sheriff often collected scutage from the sub–tenants and paid it directly to the Crown. Pollock and Maitland, I. 249–253.
[1 ]Cf. Pollock and Maitland, I. 331: “The clause expunged from the Charter seems practically to have fixed the law.”
[2 ]Close Rolls, I. 306, cited Pollock and Maitland, I. 331.
[1 ]Patent Rolls, 5 John, cited Madox, I. 615.
[2 ]Close Rolls, 7 John, cited Madox, I. 616.
[3 ]See Glanvill, IX. 8.
[4 ]See Round, Commune of London, 130.
[5 ]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.”
[6 ]Supra, p. 257, and cf. Pollock and Maitland, I. 331.
[7 ]See Madox, I. 677.