(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]]