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]]
As the earlier clause is frequently supposed to contain a general doctrine of taxation, so this one is often cited as enunciating a general doctrine of parliamentary representation; while the close connection between the two chapters is taken to indicate an equally close connection between the two conceptions supposed to underlie them, and is urged as evidence that the framers of Magna Carta had grasped the essentially modern principle that taxation and representation go together.[[499]] In this view, the barons at Runnymede deserve credit for anticipating some of the best features of the modern system of parliamentary government. The words of the text, however, will scarcely bear so liberal an interpretation. Vital points of difference between the principles of Magna Carta and the modern doctrine of representation are revealed by a careful analysis.
Under chapter 12 scutages and extraordinary aids could only be levied “with common counsel of our kingdom,” and now chapter 14, by formulating rules for convening the individuals whose consent was thus required, fixes authoritatively the composition of an assembly definitely charged with this specific function. The same Latin words which signify joint “consent” or counsel thus came to signify also a special institution, namely, that “Common Council” afterwards of such vital constitutional importance, continuing under a new name the old curia regis in several of its most important aspects, and passing in turn into the modern Parliament. The duties and constitutional importance of this commune concilium may be considered under six heads.
I. Nature of the Summons. Formal writs had to be issued when the attendance of the members was required. These writs must specify the time, place, and reason of assembling, giving formal notice at least forty days in advance. In these respects the writs issued were all to be the same; but in one vital particular a distinction was recognized. Each of the really powerful men of the realm—archbishops, bishops, abbots, earls, and "other greater barons"—must receive a separate writ, under the royal seal, addressed to him individually and directly, while the “smaller barons” were to be summoned collectively and indirectly through the sheriffs and bailiffs of each district.
II. Composition of the Council. It is clear that the meetings contemplated were purely baronial assemblies since none but Crown tenants were invited to attend; while individual notice under the king’s seal was given only to the more important magnates among them. The Common Council of the Charter was thus an assembly of military Crown tenants, and “the common consent of my kingdom” in John’s mouth was synonymous with “the consent of my barons.”[[500]]
The king’s Council had by this time freed itself from any complicated theories as to its own composition, which may ever have hampered it. It was now extremely homogeneous; a feudal muster of Crown vassals. Some historians, indeed, in their anxiety to find distinguished pedigrees for their democratic ideals, have traced the origins of the leading features of the modern Parliament back to the Anglo-Saxon era; but such attempts are hurtful to the best interests of history, while they do not in the least advance the cause of popular liberties.
It is unnecessary here to examine the various rival theories professing to explain the composition of the Anglo-Saxon Witenagemot, or to discuss the exact connection between that venerable institution and the Curia Regis of the Norman kings. As a matter of fact, the early constitution of the court of the Conqueror or of Rufus seems to have been monarchic rather than aristocratic or democratic; that is to say, it depended to a great extent on the personal will of the king, who might issue or withhold writs of summons very much as he pleased. No evidence exists, of date anterior to the Great Charter, of any magnate thrusting himself unbidden into a royal council or forcing the king to issue a formal invitation. On one occasion, indeed, the action of Henry II. in omitting to issue a writ laid him open to unfavourable criticism. This was in October, 1164, when a special council was summoned to Northampton to pass judgment upon various questions at issue between the king and Thomas à Becket. The primate was ordered to appear for judgment, but the formal writ of summons, which every archbishop, as holder of a barony, was wont to receive as matter of course, was deliberately withheld. Apparently contemporary opinion condemned this omission.[[501]] It is safe to infer, then, that as early as 1164, the method of issuing these writs had become uniform, but this constitutional understanding was not reduced to writing until embodied in Magna Carta. Thus it was in 1215 that the magnates of England formulated for the first time a distinct claim to be present at the king’s councils; and even then the demand only referred to assemblies summoned for one specific purpose. Previously, attendance was reckoned not as a privilege, but merely as an expensive burden, incident, like so many other burdens, to the possession of land.[[502]]
III. Position of the “Minor Barons.” In recognizing a distinction between two classes of Crown tenants, the Great Charter merely gave the weight of its authority to existing usage, as that had taken shape in the reign of Henry II. Crown tenants varied in power and position in proportion to the extent of their lands, from the great earl who owned the larger share of one or more counties, down to the small free-holder with only a few hides, or it might be acres, of land. A rough division was drawn somewhere in the midst; but the exact boundary was necessarily vague, and this vagueness was probably encouraged by the Crown, whose requirements might vary from time to time.[[503]] Those Crown tenants on one side of this fluctuating line were known as barones majores, those on the other as barones minores. The distinction had been recognized as early as the days of Henry II.;[[504]] but Magna Carta helped to stereotype it, and contributed to the growing tendency to confine the word “baron” to the greater men.[[505]] It is unlikely that any “minor baron” who obeyed the general summons would enjoy equal authority with the magnates invited individually by writ; and it is difficult to say even whether he was sure of a welcome, and, if so, in what capacity. Three distinct theories at least have been advanced as to the position occupied by the “minor barons” in the Common Council. (1) The duty of attendance, burdensome to all, was specially burdensome to the poorer Crown tenants. It has accordingly been suggested that the device of inviting them by general summons was intended as an intimation that they need not come. This is the view taken by Prof. Medley.[[506]]
(2) Dr. Hannis Taylor holds an exactly opposite opinion, reading this chapter as the outcome of a desire to ensure the fuller attendance of the smaller men—as an attempt “to rouse the lesser baronage to the exercise of rights which had practically passed into desuetude.”[[507]] Each of the barones minores was thus encouraged to attend for himself and his own interests. If such an attempt had really been made, and had succeeded in compelling the attendance of a large proportion of those who previously had almost made good their right to shirk the burden, the result would have been to leave no room whatever for the future introduction of the representative principle into the national council.
(3) A third theory, while agreeing that those summoned by general writ were intended to obey the summons, thinks that the smaller Crown tenants were called not exclusively each man for himself, but in a representative capacity. It is thus suggested that a few knights (probably elected for this purpose by their fellows) were expected to attend to represent the others. Dr. Stubbs seems predisposed towards this opinion, although he expresses himself with his usual caution.[[508]]
The reasons for rejecting this third theory will be more conveniently discussed in connection with the doctrine of representation. It is perhaps unnecessary to decide between the two others; but it may be suggested, even at the risk of seeming to invent a fourth theory in a series already too numerous, that to the great men who framed the clause it must have been a matter of supreme indifference whether their humbler fellow-tenants attended or stayed away. The general summons expressed neither an urgent desire for their presence, nor yet an intimation that they were not wanted; but merely conformed with the established usage, and left with each “minor baron” the decision whether he should come or stay away. His presence would make little difference upon the deliberations of the magnates.
IV. Representation. It is well to hesitate before applying to ancient institutions a word so essentially modern as “representation.” In a sense the reeve and the four best men of every village “represented” their fellows in the county court from a very early age; and in a somewhat different sense the feudal lord “represented” his free tenants and villeins in the king’s court, but in neither instance was there anything approaching the very definite relation which exists at the present day between the elected member of Parliament and the constituents he “represents.” It is true that the difference may in some respects be one of degree rather than of kind, and it is further true that two years before the date of Magna Carta a tentative experiment had been tried in the direction of introducing representatives of the counties into the king’s Council, thus taking the first step in a long process destined ultimately to lead without any absolute breach of continuity to the modern Parliament. But the Barons in June, 1215, showed no desire to follow the example set by John in November, 1213. The terms in which Magna Carta directs that all minor barons should be summoned are explicit, and may be profitably contrasted with the words used in the writ dated 7th November, 1213, addressed to the sheriff of Oxford, ordering him to compel, in addition to the barons and the knights already summoned (presumably barones minores), the attendance of quatuor discretos homines de comitatu tuo (presumably other than Crown tenants).[[509]]
So far from the words of Magna Carta showing any desire to confirm this precedent, they show a deliberate intention to ignore it, and to fall back on the more ancient practice. The members of the assembly which Magna Carta stipulated should be convened for the taking of “the common consent” were all of one type, drawn from the same section of the land-owning aristocracy, namely, military tenants-in-chief of the Crown. The barons, great and small, might be present, each man for himself; but the other tax-paying classes were completely ignored.[[510]] They were neither present nor yet represented. The barons in this, as in other matters, stood out for the old feudal order under which they had preserved a wide measure of independence from the Crown’s control; whereas King John for selfish reasons adopted the more enlightened policy of his father, and even, unconsciously it may be, anticipated some of the measures of his grandson, Edward Plantagenet. In brief, John was progressive, while his opponents were conservative. The present chapter must be added to the not inconsiderable list of those which attempted to bring about a feudal reaction.[[511]]
V. Powers and Functions of the Council. It was not until long after the days of Magna Carta that Parliament secured the most important of those functions now deemed essential to its existence. No claim was made by the Great Charter on behalf of the commune concilium to any right to be consulted in the making of laws or in the performance of administrative or judicial duties by the Crown. No effort was made towards formulating any doctrine of ministerial responsibility. This assembly, narrow and aristocratic in its composition, had only one right secured to it by Magna Carta—namely, a limited control over one form of taxation. Even here, as we have seen, no general or sweeping claim was put forward on its behalf. It had no right to a control of the national purse: the barons confined themselves to a selfish assertion of a right to protect their own individual pockets against an increase of feudal burdens. A modern Magna Carta would have contained a careful list of the powers and privileges of “the common council of the realm,” and would have given to this list a conspicuous place of honour.[[512]]
VI. Rights of Majorities and Minorities. The medieval conception of constitutional solidarity was defective; the king’s council acted too much like a fortuitous gathering of unrelated individuals, and too little like a recognized organ of the body politic. Each “baron” was summoned on his own behalf, and in order that he might give his individual consent to a proposed levy; while it is doubtful how far a dissenting minority could be bound by a decision of the rest. Accordingly, the framers of Magna Carta deemed it necessary to assert what would be too obvious to modern politicians to require assertion—namely, that when the commune concilium had been properly convened, its power to transact business should not be interfered with because a section of those summoned chose to stay away. “The business shall proceed on the day appointed, according to the advice of such as shall be present, although all that were summoned do not come.” Not all business was competent, however, for the cause of summons had to be mentioned in the writs. If these writs were in order, the Council, so we may presume, had power to impose aids or scutages on those who were absent.[[513]]
Nothing is said, however, as to the validity of a protest made by those who came and expressed disapproval of what the majority agreed to. As the substance of this chapter was observed in practice (though omitted from subsequent confirmations), a precedent of the year 1221 may perhaps be cited to illustrate the interpretation put upon it by contemporary practice. A Council summoned by William Marshal, as Regent of Henry III., had consented to a levy of scutage, and the bishop of Winchester was assessed at 159 marks as the amount due for his knight’s fees. He refused to pay, on the ground, quite untenable by modern standards, that he had all along dissented from the grant. The fact of his protest was vouched by Hubert de Burgh and others who had been present at the Council. The plea was actually accepted by the Regent, and the exchequer adjudged bishop Peter to be quit of the payment.[[514]] The incident shows how far the statesmen of the day were from realizing the most elementary principles of political theory. They had not yet grasped the conception of a Council endowed with constitutional authority to impose its will on a dissenting minority. Here it was apparently a minority of one.
The barons by consenting in 1217 to accept a return to the fixed rates of scutage customary in the reign of Henry II., deliberately sacrificed such right of control over the finances of the nation as they may have obtained in 1215. At no time, indeed, did they show any appreciation of the vital nature of the constitutional issues at stake. The importance of the common council, and the necessity of defining its composition, functions, and privileges, lay entirely beyond their narrow sphere of vision.
It should be remembered, however, that the substance of this chapter of John’s charter (although discarded in subsequent reissues) was virtually observed in practice by the Crown, and treated as in force by the barons. From this time forward the Common Council was almost invariably consulted before the Crown attempted to levy such contributions; and sometimes was bold enough to make conditions or to decline payment altogether, the first instance on record of an outright refusal taking place in a Parliament held at London in January, 1242.[[515]]
The barons, in October, 1255, if Matthew Paris has not fallen into error, considered that the provisions of chapters 12 and 14 of John’s Magna Carta were still in force, although they had been omitted in the reissues of Henry III. When the king asked a liberal aid in furtherance of his scheme for securing the crown of Sicily for his son Edmund, those present at the Council deliberately refused, on the ground that some of their peers had not been summoned “according to the tenor of Magna Carta.” This incident illustrates the extreme constitutional importance rightly attached by the barons to the rigid observance by the Crown of the established usage relative to the convening of Parliament.[[516]]
[498]. On the whole subject of the commune concilium, cf. supra 151-4 and also 173-4.
[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.”
[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).
[501]. See Ramsay, Angevin Empire, p. 54, and authorities there cited.
[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.
[503]. See Prof. Medley, Engl. Const. Hist., 123.
[504]. See Dialogus de Scaccario, II. x. D., “baronias scilicet majores seu minores.”
[505]. Cf. supra, c. 2.
[506]. Engl. Const. Hist., 123. “The smaller tenants-in-chief would thankfully regard the general summons as an intimation to stay away.”
[507]. Engl. Const., I. 466.
[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.
[509]. Cf. supra, p. [36]. The writ appears in Rot. Claus, I. 165, and also in Sel. Charters, 287. Cf. New Rymer, I. 117.
[510]. Cf. supra, c. 12.
[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.
[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.”
[513]. Cf. Stubbs, Const. Hist., I. 607: “Absence, like silence, on such occasions implies consent.”
[514]. See Pipe Roll of 5 Henry III., cited Madox, I. 675.
[515]. See Prothero, Simon de Montfort, 67, and authorities there mentioned.
[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.