[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.
CHAPTER FIFTEEN.
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: sums of money are no longer to be extorted from them arbitrarily by their lords.[[517]] Different machinery, however, had here to be adopted, since the expedient relied on in chapter 12 (“the common consent of the realm”) was clearly inapplicable.
I. 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,[[518]] but in others their position was distinctly worse. Not only had they to satisfy the demands of their own lord for “aids,” but they generally found that part of every burden laid by the king upon that lord’s shoulders was transferred to theirs. In seeking to provide for under-tenants the protection of which they stood so much in need Magna Carta looked, not to the common council, but to the king. No mesne lord was to be allowed to compel his tenants to contribute to his necessities without obtaining a written licence from the Crown; and stringent rules forbade the issue of such licences except upon the usual three occasions. 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 right of private war, and was, as a logical consequence, 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 great 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” to 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 for that purpose in their 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 collective consent to an aid of 20s. per fee on the occasion of his daughter’s marriage.[[519]] No such obligation, however, had been placed upon mesne lords by Magna Carta, which had sought a practical substitute for “the common consent of the realm” in quite a different direction, as will be explained immediately.
(3) A check upon such exactions was sought, not in any action by the court baron, but in the mesne lord’s 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.[[520]] 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, employed it solely for his own advantage, selling writs to every needy lord who proposed to enrich himself (and, incidentally, the Crown also) at his tenants’ expense.
Magna Carta forbade the two tyrants thus to combine against the sub-tenants, enunciating a hard-and-fast rule which, if duly observed, would have struck at the root of the grievance. The whole subject of aids was removed from the region of royal caprice into the region of settled law. No writ could be lawfully issued except on the three well-known occasions.