Though I do not perceive why we should assume any great subdivision of tenures before the statute of Quia Emptores, in 18 Edw. I., which prohibited subinfeudation, it is obvious that the committee have pointed out the inconvenience of a scheme which gave all tenants in capite (more numerous in Domesday than they perhaps were aware) a right to assist at great councils. Still, as it is manifest from the early charters, and explicitly admitted by the committee, that the king could raise no extraordinary contribution from his immediate vassals by his own authority, and as there was no feudal subordination between one of these and another, however differing in wealth, it is clear that they were legally entitled to a voice, be it through general or special summons, in the imposition of taxes which they were to pay. It will not follow that they were summoned, or had an acknowledged right to be summoned, on the few other occasions when legislative measures were in contemplation, or in the determinations taken by the king's great council. This can only be inferred by presumptive proof or constitutional analogy.
The eleventh article of the Constitutions of Clarendon in 1164 declares that archbishops, bishops, and all persons of the realm who hold of the king in capite, possess their lands as a barony, and are bound to attend in the judgments of the king's court like other barons. It is plain, from the general tenor of these constitutions, that "universæ personæ regni" must be restrained to ecclesiastics; and the only words which can be important in the present discussion are "sicut barones cæteri." "It seems," says the committee, "to follow that all those termed the king's barons were tenants in chief of the king; but it does not follow that all tenants in chief of the king were the king's barons, and as such bound to attend his court. They might not be bound to attend unless they held their lands of the king in chief 'sicut baroniam,' as expressed in this article with respect to the archbishops and other clergy." (p. 44.) They conclude, however, that "upon the whole the Constitutions of Clarendon, if the existing copies be correct, afford strong ground for presuming that owing suit to the king's great court rendered the tenant one of the king's barons or members of that court, though probably in general none attended who were not specially summoned. It has been already observed that this would not include all the king's tenants in chief, and particularly those who did not hold of him as of his crown, or even to all who did hold of him as of his crown, but not by knight-service or grand serjeanty, which were alone deemed military and honourable tenures; though, whether all who held of the king as of his crown, by knight-service or grand serjeanty, did originally owe suit to the king's court, or whether that obligation was confined to persons holding by a particular tenure, called tenure per baroniam, as has been asserted, the Constitutions of Clarendon do not assist to ascertain." (p. 45.) But this, as they point out, involves the question whether the Curia Regis, mentioned in these constitutions, was not only a judicial but a legislative assembly, or one competent to levy a tax on military tenants, since by the terms of the charter of Henry I., confirmed by that of Henry II., all such tenants were clearly exempted from taxation, except by their own consents.
They touch slightly on the reign of Richard I. with the remark that "the result of all which they have found with respect to the constitution of the legislative assemblies of the realm still leaves the subject in great obscurity." (p. 49.) But it is remarkable that they have never alluded to the presence of tenants in chief, knights as well as barons, at the parliament of Northampton under Henry II. They come, however, rather suddenly to the conclusion that "the records of the reign of John seem to give strong ground for supposing that all the king's tenants in chief by military tenure, if not all the tenants in chief,[a] were at one time deemed necessary members of the common councils of the realm, when summoned for extraordinary purposes, and especially for the purpose of obtaining a grant of any extraordinary aid to the king; and this opinion accords with what has generally been deemed originally the law in France, of other countries where what is called the feudal system of tenures has been established." (p. 54.) It cannot surely admit of a doubt, and has been already affirmed more than once by the committee, that for an extraordinary grant of money the consent of military tenants in chief was required long before the reign of John. Nor was that a reign, till the enactment of the Great Charter, when any fresh extension of political liberty was likely to have become established. But the difficulty may still remain with respect to "extraordinary purposes" of another description.
They observe afterwards that "they have found no document before the Great Charter of John in which the term 'majores barones' has been used, though in some subsequent documents words of apparently similar import have been used. From the instrument itself it might be presumed that the term 'majores barones' was then a term in some degree understood; and that the distinction had, therefore, an earlier origin, though the committee have not found the term in any earlier instrument." (p. 67.) But though the Dialogue on the Exchequer, generally referred to the reign of Henry II., is not an instrument, it is a law-book of sufficient reputation, and in this we read—"Quidam de rege tenent in capite quæ ad coronam pertinent; baronias scilicet majores seu minores." (Lib. ii. cap. 10.) It would be trifling to dispute that the tenant of a baronia major might be called a baro major. And what could the secundæ dignitatis barones at Northampton have been but tenants in capite holding fiefs by some line or other distinguishable from a superior class?[]
It appears, therefore, on the whole, that in the judgment of the committee, by no means indulgent in their requisition of evidence, or disposed to take the more popular side, all the military tenants in capite were constitutionally members of the commune concilium of the realm during the Norman constitution. This commune concilium the committee distinguish from a magnum concilium, though it seems doubtful whether there were any very definite line between the two. But that the consent of these tenants was required for taxation they repeatedly acknowledge. And there appears sufficient evidence that they were occasionally present for other important purposes. It is, however, very probable that writs of summons were actually addressed only to those of distinguished name, to those resident near the place of meeting, or to the servants and favourites of the crown. This seems to be deducible from the words in the Great Charter, which limit the king's engagement to summon all tenants in chief, through the sheriff, to the case of his requiring an aid or scutage, and still more from the withdrawing of this promise in the first year of Henry III. The privilege of attending on such occasions, though legally general, may never have been generally exercised.
The committee seem to have been perplexed about the word magnates employed in several records to express part of those present in great councils. In general they interpret it, as well as the word proceres, to include persons not distinguished by the name "barones;" a word which in the reign of Henry III. seems to have been chiefly used in the restricted sense it has latterly acquired. Yet in one instance, a letter addressed to the justiciar of Ireland, 1 Hen. III., they suppose the word magnates to "exclude those termed therein 'alii quamplurimi;' and consequently to be confined to prelates, earls, and barons. This may be deemed important in the consideration of many other instruments in which the word magnates has been used to express persons constituting the 'commune concilium regni.'" But this strikes me as an erroneous construction of the letter. The words are as follows:—"Convenerunt apud Glocestriam plures regni nostri magnates, episcopi, abbates, comites, et barones, qui patri nostro viventi semper astiterunt fideliter et devotè, et alii quamplurimi; applaudentibus clero et populo, &c., publicè fuimus in regem Angliæ inuncti et coronati." (p. 77.) I think that magnates is a collective word, including the "alii quamplurimi." It appears to me that magnates, and perhaps some other Latin words, correspond to the witan of the Anglo-Saxons, expressing the legislature in general, under which were comprised those who held peculiar dignities, whether lay or spiritual. And upon the whole we may be led to believe that the Norman great council was essentially of the same composition as the witenagemot which had preceded it; the king's thanes being replaced by the barons of the first or second degree, who, whatever may have been the distinction between them, shared one common character, one source of their legislative rights—the derivation of their lands as immediate fiefs from the crown.
The result of the whole inquiry into the constitution of parliament down to the reign of John seems to be—1. That the Norman kings explicitly renounced all prerogative of levying money on the immediate military tenants of the crown, without their consent given in a great council of the realm; this immunity extending also to their sub-tenants and dependants. 2. That all these tenants in chief had a constitutional right to attend, and ought to be summoned; but whether they could attend without a summons is not manifest. 3. That the summons was usually directed to the higher barons, and to such of a second class as the king pleased, many being omitted for different reasons, though all had a right to it. 4. That on occasions when money was not to be demanded, but alterations made in the law, some of these second barons, or tenants in chief, were at least occasionally summoned, but whether by strict right or usage does not fully appear. 5. That the irregularity of passing many of them over when councils were held for the purpose of levying money, led to the provision in the Great Charter of John by which the king promises that they shall all be summoned through the sheriff on such occasions; but the promise does not extend to any other subject of parliamentary deliberation. 6. That even this concession, though but the recognition of a known right, appeared so dangerous to some in the government that it was withdrawn in the first charter of Henry III.
The charter of John, as has just been observed, while it removes all doubt, if any could have been entertained, as to the right of every military tenant in capite to be summoned through the sheriff, when an aid or scutage was to be demanded, will not of itself establish their right of attending parliament on other occasions. We cannot absolutely assume any to have been, in a general sense, members of the legislature except the prelates and the majores barones. But who were these, and how distinguished? For distinguished they must now have become, and that by no new provision, since none is made. The right of personal summons did not constitute them, for it is on majores barones, as already a determinate rank, that the right is conferred. The extent of property afforded no definite criterion; at least some baronies, which appear to have been of the first class, comprehended very few knights' fees: yet it seems probable that this was the original ground of distinction.[c]
The charter, as renewed in the first year of Henry III., does not only omit the clause prohibiting the imposition of aids and scutages without consent, and providing for the summons of all tenants in capite before either could be levied, but gives the following reason for suspending this and other articles of king John's charter:—"Quia vero quædam capitula in priori cartâ continebantur, quæ gravia et dubitabilia videbantur, sicut de scutagiis et auxiliis assidendis ... placuit supra-dictis prælatis et magnatibus ea esse in respectu, quousque plenius consilium habuerimus, et tunc faciemus plurissimè, tam de his quam de aliis quæ occurrerint emendanda, quæ ad communem omnium utilitatem pertinuerint, et pacem et statum nostrum et regni nostri." This charter was made but twenty-four days after the death of John; and we may agree with the committee (p. 77) in thinking it extraordinary that these deviations from the charter of Runnymede, in such important particulars, have been so little noticed. It is worthy of consideration in what respects the provisions respecting the levying of money could have appeared grave and doubtful. We cannot believe that the earl of Pembroke, and the other barons who were with the young king, himself a child of nine years old and incapable of taking a part, meant to abandon the constitutional privilege of not being taxed in aids without their consent. But this they might deem sufficiently provided for by the charters of former kings and by general usage. It is not, however, impossible that the government demurred to the prohibition of levying scutage, which stood on a different footing from extraordinary aids; for scutage appears to have been formerly taken without consent of the tenants; and in the second charter of Henry III. there is a clause that it should be taken as it had been in the time of Henry II. This was a certain payment for every knight's fee; but if the original provision of the Runnymede charter had been maintained, none could have been levied without consent of parliament.
It seems also highly probable that, before the principle of representation had been established, the greater barons looked with jealousy on the equality of suffrage claimed by the inferior tenants in capite. That these were constitutionally members of the great council, at least in respect of taxation, has been sufficiently shown; but they had hitherto come in small numbers, likely to act always in subordination to the more potent aristocracy. It became another question whether they should all be summoned, in their own counties, by a writ selecting no one through favour, and in its terms compelling all to obey. And this question was less for the crown, which might possibly find its advantage in the disunion of its tenants, than for the barons themselves. They would naturally be jealous of a second order, whom in their haughtiness they held much beneath them, yet by whom they might be outnumbered in those councils where they had bearded the king. No effectual or permanent compromise could be made but by representation, and the hour for representation was not come.