(2) A majority of those present to form a quorum. Driven by the necessities of the case, the barons devised, or stumbled upon, a peculiarly modern expedient. The presence of every member of the committee of twenty-five could not reasonably be expected upon every occasion, while absolute unanimity on questions of delicacy would be difficult to obtain. It was provided, accordingly, that the will of the majority of those present should prevail. It would be inaccurate to say, in modern phraseology, that thirteen formed a quorum, since the quorum varied with the number of those present. It is notable that no provision was made for summoning or constituting meetings of the committee endowed with these tremendous powers. Room was thus left for packed meetings of one faction being hurriedly convened and usurping the rights of the whole body. The precedent thus tentatively introduced for the right of a majority to act for the whole was followed only timidly and at long intervals. Still, its appearance in John’s Charter marks a stage in the advance of the valuable principle of modern politics which substitutes the “counting of heads for the breaking of them.”
(3) The sub-committee of four. Four of the twenty-five Executors were to act as a medium of intercourse between aggrieved individuals and the king, being charged with the duty of hearing complaints and laying them before John. Such a position would involve wide discretionary powers; for if the four barons refused to endorse the justice of the complaint, John also would be in safety to refuse.[[1075]]
(4) Local agents of the twenty-five executors. In each county the twelve knights, whose original function was to preside at inquiries into “evil customs,” came to act as the local representatives of the revolutionary committee, being associated with the sheriff in the discharge of all his duties and armed with power to constrain him to carry out the provisions of Magna Carta, very much as the twenty-five were authorized to constrain the king. In particular, these knights were charged with the enforcement of the oath of obedience to the revolutionary committee, and with the confiscation of the property of all who refused.[[1076]]
(5) The part to be played by the public. The king authorized his subjects to side with the executors and against him if he should violate the Charter, and to assist them in such acts of violence as the forcible seizure of his castles, lands, and personal estate; for his general mandate was granted to the twenty-five “cum communa totius terre,” while licence was “freely and publicly” bestowed on everyone so disposed to swear obedience to the Executors in all such acts, and to bring their weight to bear on the king to the best of their ability. Two aspects of this provision require special attention: (a) Its relation to allegiance and treason. It was intended to operate as a provisional release of John’s subjects from their oaths of fealty and homage, and consequently from the pains and penalties of the treason laws. John solemnly authorized his subjects, in certain circumstances, to transfer their allegiance from himself to the committee of his foes. If they refused, he promised to compel them; and on 27th June, 1215, writs were actually issued instructing the seizure of the lands and goods of all who would not swear to obey the twenty-five.[[1077]] (b) Communa totius terre. The “community of the whole land” was thus to afford active help in subjecting the king to the reign of law; and the phrase has been pressed into the service of democracy by enthusiasts who seek to magnify modern conceptions by finding their roots in the past. Few words of medieval Latin offer a more tempting field to enquirers than this communa, which, with its English and French equivalents, holds the key to many problems of constitutional origins. A group of interesting questions clusters round the three words “borough, guild, and commune,” and the appearance in Magna Carta of a body described as a “commune” (communa totius terre) in conjunction with an oath of obedience to a revolutionary committee suggests an interesting comparison with the form of civic constitution known in that age as “the sworn commune.”[[1078]] A second field of enquiry, equally alluring, is suggested by the fact that the lower chamber of the Mother of Parliaments, the English “House of Commons,” was originally composed of the representatives of the various communes or communities known as counties and boroughs respectively.
These wider questions are here referred to merely as illustrations of the difficulties that lurk in the word “commune,” and in the equally perplexing phrase “commune of the whole land.”[[1079]] The mere use of such a phrase cannot be accepted as a proof that the Charter rests on a broad popular basis.
III. Criticism of the Scheme. The faults of the scheme, whether viewed from the side of theory or of practice, are obvious. It was a violent and unnatural measure, full of immediate dangers, and calculated to exercise a baneful influence on constitutional development in the future. The fact that Magna Carta provided no better sanction for its own enforcement than the right of legalized rebellion has already been discussed as its cardinal defect.[[1080]] Instead of preventing the king from inflicting wrongs, it merely provided forcible measures for the redress of those already committed, thus adding the crowning evil of civil war to those minor evils it sought to reform. That the whole scheme was foredoomed to failure constitutes perhaps its least conspicuous fault in the eyes of later history. It is instructive to note a few of its other defects in detail.
(1) The scheme challenged hostility by its want of moderation. It aimed at reducing the Crown at one blow from the plenitude of irresponsible tyranny to a position of degrading impotence. On every vexed political question of the day, John’s authority would have been superseded by that of twenty-five of the most hostile faction of the baronage. If the king thought himself aggrieved in anything, he would require to plead his cause humbly before a tribunal in which his opponents sat as judges. The scheme was thus repugnant to the mass of loyal Englishmen, who cherished a respect for the time-honoured principle of monarchy. No king with a grain of self-respect would long submit tamely to a position so illogical and degrading—to remain a sovereign whose “sovereignty” existed merely on the sufferance of his enemies, a puppet-king whose subjects had the legal right to coerce him. The powers thus conferred on a baronial committee in 1215 were more sweeping than those conferred on a similar committee in 1258, and yet the Parliament which appointed the latter has been branded for all time as “the Mad Parliament,” because of the violence of its measures against the king.
(2) Rebellion, even where morally justified, is essentially and necessarily illegal; to attempt to map out for it a legitimate sphere of action is to attempt the logically impossible. The barons, in their dearth of political experience, and in the extremity of their need, had demanded and obtained something more dangerous than the amplest measure of constitutional authority. They had failed to rise to the true conception of a limited monarchy. Their scheme recognized a king still absolute in some matters, but in others powerless and abject. They set up side by side two rival Executives, each in different circumstances supreme. The relations of the two were far from accurately defined, even in theory, while collisions were certain to occur frequently in practice. The powers of the twenty-five, a body which received no proper organization, were those of aggression rather than of administration. Viewed in this light, the claims of the barons to constructive statesmanship rank extremely low.
(3) The powers of the Revolutionary Committee, excessive though ill-defined, backed by the sworn obedience of all classes of the nation, would tend completely to paralyze the king. The nominal sovereign, always nervous under this sword of Damocles, would lose all power of initiative, while the committee, so powerful to reduce him to impotence, would be powerless alike to goad him into action or to act in his stead. The Revolutionary Committee had been planned as a drag on a bad executive, not as a good executive to take its place.
(4) Even as a drag, however, the efficiency of the committee would have been completely neutralized in either of two contingencies: if the barons composing it disagreed among themselves, or, if the king refused to surrender, preferring the appeal to arms. The monarch had always the alternative of civil war, and the material and moral advantage of acting on the defensive lay with him; while the committee had to face the risks to which an attacking party is invariably exposed. Not a single step to restrain the king could legally be taken until he had precipitated matters by committing a clear act of aggression, and had thereafter received formal intimation followed by an interval of forty days, during which he might complete his preparation for war without fear of interruption.