Part 5 — MAGNA CARTA. (continued 2)

The feudal scheme of society had no place for Jews and afforded them no protection. Not only did they share the disabilities common to all aliens, but these were not in their case mitigated by the protection extended to other foreigners by their own sovereigns and by the Church. As exiles in a foreign land, exposed to the attacks of a hostile mob, they were forced to rely absolutely on the only power strong enough to protect them, the arm of the king. The Jews became the mere serfs, the perquisites or chattels of the Crown, in much the same way as the villeins became the serfs or chattels of their lords. Rights they might have against others by royal sufferance, but they had no legal remedy against their master. In the words of Bracton,^[460] “the Jew could have nothing of his own, for whatever he acquired, he acquired not for himself but for the king.” His property was his merely by royal courtesy, not under protection of the law. When he died, his relations had no legal title to succeed to his mortgages, goods, or money; the exchequer, fortified by an intimate knowledge of the extent of his wealth (for that 273consisted chiefly in registered bonds), stepped into possession and could do what it pleased. The king usually, indeed, in practice contented himself with one-third of the whole; but if the relations of the deceased Jew received less than the balance of two-thirds, they would be well advised to offer no remonstrance. The Crown did not admit a legal obligation; and there was no one either powerful enough, or interested enough, to compel the fulfilment of the tacit understanding which restricted the royal claims. Whatever the Jew had amassed belonged legally and potentially not to him but to the Crown. Magna Carta, in striking at money-lenders, was striking at the king.

CHAPTER ELEVEN.

Et si quis moriatur, et debitum debeat Judeis, uxor ejus habeat dotem suam, et nichil reddat de debito illo; et si liberi ipsius defuncti qui fuerint infra etatem remanserint, provideantur eis necessaria secundum tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo servicio dominorum; simili modo fiat de debitis que debentur aliis quam Judeis.

And if anyone die indebted to the Jews, his wife shall have her dower and pay nothing of that debt; and if any children of the deceased are left under age, necessaries shall be provided for them in keeping with the holding of the deceased; and out of the residue the debt shall be paid, reserving, however, service due to feudal lords; in like manner let it be done touching debts due to others than Jews.

If the preceding chapter deprived Jews of part of the interest they claimed, the present one deprived them also in certain circumstances of part of the security on which they had lent the principal. The widow’s dower lands were 274discharged from her husband’s debts, only two-thirds of the original security thus remaining under the mortgage. Even this must submit to a prior claim, namely the right of the debtor’s minor children to such “necessaries” as befitted their station in life. Magna Carta, at the same time, with characteristic care for feudal rights, provided that the full service due to lords of fiefs must not be prejudiced, whoever suffered loss. Finally, these rudiments of a law of bankruptcy were made applicable to Gentile creditors equally as to Jews. These provisions, with others injuriously affecting the royal revenue, were omitted in 1216, not to be restored in future charters: but they were re-enacted in their essential principle, though not in detail, by the Statute of Jewry, which limited a creditor’s rights of execution to one moiety of his debtor’s lands and chattels.

CHAPTER TWELVE.

Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum militem faciendum, et ad filiam nostram primogenitam semel maritandam, et ad hec non fiat nisi racionabile auxilium: simili modo fiat de auxiliis de civitate Londonie.

No scutage nor aid shall be imposed in our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the citizens of London.

This is a famous clause, greatly valued at the time it was framed because of its precise terms and narrow scope (which 275made evasion difficult), and even more highly valued in after days for exactly opposite reasons. It came indeed to be interpreted in a broad general sense by enthusiasts who, with the fully-developed British constitution before them, read the clause as enunciating the modern doctrine that the Crown can impose no financial burden whatsoever on the people without consent of Parliament. Before discussing how far such an estimate is justified, it will be necessary to examine the historical context, with special reference to two classes of John’s subjects; his feudal tenants, and the citizens of London respectively.

I. Protection of Crown Tenants from arbitrary Exactions. The pecuniary obligations of the barons may be arranged in two groups according as they depended on the king’s own actions, or were determined by circumstances which lay beyond the royal control. Payments of the former type (such as reliefs and amercements), exigible only at fixed dates or on the occurrence of specific events, were treated of elsewhere in Magna Carta. The present chapter sought to prevent John from extorting additional payments either absolutely at his own discretion, or because of situations which he had purposely created as excuses for demanding money. The entire field of such arbitrary feudal dues was covered by the words “scutages” and “extraordinary aids,”^[461] the use of which protected the barons from every sort of compulsory payment which might be demanded by the king at his own discretion.

(1) Scutage. The development of the system described by this name has been traced in the Historical Introduction.^[462] Used at first as an expedient for substituting, in the Crown’s option, money payments for military service, it became, under John, a regular source of revenue, imposed almost every year on one pretext or another, while 276it was levied at an increased rate, and under conditions of a vexatious and burdensome nature. If any one cause contributed, more than the others, to the rebellion which culminated at Runnymede, it was John’s method of imposing scutages. This chapter, then, attempted to strike at the common root from which many grievances grew. The Crown was no longer to be left sole judge of the occasions on which a scutage might be demanded. “The common consent (or counsel) of the realm” must first be obtained. If this provision had been carried into practice, it would have removed the supreme control of the system of scutages from the Crown which received the money, to the Crown tenants who paid it. This truly radical remedy included the remedy of all minor abuses as well, since the collective body of barons who could refuse payment unconditionally, might a fortiori make grants under such conditions as they chose. Henceforward it would lie with them to say, on each occasion, whether the old normal 20s. per knight’s fee should be superseded by some other rate, either higher or lower. This provision was never enforced, being omitted altogether from the reissue of 1216, while the clause substituted for it in the Charter of 1217 took an entirely different form.^[463]

(2) Feudal aids. It was recognized from an early date that in emergencies feudal vassals ought to contribute to their lord’s support in proportion to the extent of their holdings. Such payments were known as aids, and were originally supposed to be free-will offerings.^[464] By John’s reign they had fallen into two groups—ordinary and extraordinary. The former, three in number, were only dealt with incidentally by the Charter.^[465] It is with the “extraordinary” aids that this chapter specially occupies itself. These are placed in the same position as scutages: 277the Crown cannot exact either, “unless by common counsel of the realm.”

II. Protection of Citizens of London from arbitrary Exactions. Some attempt was made to protect the men of London, as well as the Crown tenants, from John’s demands for money. The insurgent leaders in this way discharged part of their debt to an ally with special claims upon their gratitude.^[466] The Articles of the Barons had contained several important provisions affecting the capital; and these were embodied in the Charter in slightly altered terms, which suggest some influence at work not altogether friendly to the citizens.^[467] The present clause of the completed charter, for example, uses only one word, “aids,” where the 32nd of the Articles of the Barons had referred to “tallages and aids.” There is no evidence to show whether the omission had been deliberately planned, or was merely the result of inadvertence; and the ambiguity inherent in both words makes it dangerous to hazard a dogmatic opinion on the practical effect of the alteration. Yet a clearly-marked line can be traced between the respective meanings of the two terms when they are technically used.

(1) “Aid” is the vaguer word, applicable to every payment which can be regarded as in any sense a free-will offering. It embraced gifts to the Crown, whether from prelate or burgess or feudal baron. London was stimulated towards acts of generosity by kings of England both before and after John. There were times 278when “voluntary” aids, like the “benevolences” of Tudor days, could not safely be withheld.

(2) “Tallage” was a tax levied at a feudal lord’s arbitrary will upon more or less servile dependants, who had neither power nor right to refuse. The frequency of these exactions and the sums taken depended solely on the lord’s caprice, restrained by no law, but only by such limits as an enlightened self-interest or regard for public opinion might dictate. Liability to arbitrary tallage was thus one of the chief marks of an unfree status, and was contrasted with the impositions levied on those freeholders who held by knight’s service, by socage, or by frankalmoin. The owner of the smallest manor, like the owner of the greatest barony, might tallage his own villeins; and the king had a similar privilege over a wider field. His rights extended even over civic communities who held royal charters, since towns were theoretically on the royal demesne, and therefore liable to tallage. The great city of London, in spite of its growing wealth, its political importance, and its list of chartered privileges, still shared this liability.^[468]

(3) Comparison of tallage and aid. The tallage, as a forced payment, thus differed fundamentally from the nominally free “aid,” while two minor points of difference may also be noted. In arranging an aid the givers usually suggested the amount, though the king might reject the offer as insufficient; while the amount of a tallage, on the other hand, was arbitrarily fixed by the Crown. Further, while the aid granted by a community was a joint offering which the citizens assessed and collected by their own officers, and for which they admitted a collective responsibility, the Crown itself allocated on whom it pleased the particular sums of tallage to be paid by each individual, no joint liability being admitted by those who had to pay. It was obviously 279to the advantage of a borough to forestall, by the present of a liberal aid, the Crown’s anticipated demand for a tallage, for the hated tax-gatherer was thus kept outside the city gates. An aid was also more to the king’s advantage than a tallage of equal amount. Not only was he saved the trouble, expense, and delay of the collection, but he obviated risk of loss through the insolvency of some of the individuals fixed upon.

A story told by Madox^[469] brings out the contrast. A dispute had arisen between the king and the Londoners. To Henry’s demand for 3000 marks of “tallage” they at first replied by offering 2000 marks of “aid,” which the king refused. The citizens then denied liability to tallage altogether, but were confronted with entries in Exchequer and Chancery Rolls which entirely contradicted their audacious contention. On the morrow the mayor and citizens acknowledged that they were talliable, and gave the king the sum he demanded.

(4) Effects of the omission of the word “tallage” from Magna Carta. As the two words appearing in the Articles of the Barons had well-recognized differences of meaning, it is unlikely that the omission of one of them from the Charter was regarded as a purely verbal change. John would readily enough dispense with the right to exact “aids” from the wealthy traders of his capital, if he still preserved his privilege of tallaging them at pleasure. The omission was perhaps deliberately made in deference to John’s strong feeling on a point which did not personally affect the barons.^[470] Another omission should be noted. The Articles had extended protection not only to Londoners, but also “to citizens of other places who thence have their liberties,” meaning the towns whose chartered privileges had been modelled on those of the metropolis. Magna 280Carta completely ignored, in this connection, all towns except London.^[471]

(5) The nature of the protection afforded by Magna Carta. The arrangement of the present chapter is peculiar. After treating fully of the abuses of Crown tenants, the case of the Londoners is thrown in carelessly in a few words: “In like manner it shall be done concerning aids from the citizens of London.” Various interpretations of the words “simili modo” are possible. High authorities suggest that the clause means no more than that aids taken from London, like ordinary aids taken from Crown tenants, must be “reasonable.”^[472] If this is so, a criterion of reasonableness different from that applicable to knights’ fees became necessary; and this would have been hard to find.^[473]

It is equally probable, however, that the intention was to render the same consent necessary to the validity of aids, asked from London, as had previously been stipulated in the case of scutages from tenants in chief. If this is so, then the method provided in chapter 14 for taking “the common counsel of the realm” was peculiarly ill-adapted to secure to the men of London any effective voice in taxing themselves. The necessity for the consent of an exclusively baronial assembly could not adequately protect the Londoners, whose essentially different interests were unrepresented.

Subsequent history casts no light on the original intention of this clause; no occasion of testing its meaning ever occurred, the entire chapter of which it forms part 281having been omitted from all subsequent issues of the Charter.

(6) Later history of the Crown’s right to tallage the towns. Magna Carta, even in its original form, did not deprive the king of his right to tallage London, like any other part of his ancient demesne; and the Crown continued quite legally and almost without question to exercise this prerogative at intervals from 1215 until 1340. It has sometimes been maintained, indeed, that the Confirmatio Cartarum of 1297 was intended to abolish this prerogative, and it is true, that a document once considered as an authoritative version of the Confirmatio bore the suggestive title of De tallagio non concedendo. It is now well known that the latter document is quite unauthentic; while, if the confirmatio itself was intended to relieve the towns from tallages taken without their consent, it signally failed. Edward III. occasionally exacted tallages from London and other towns. His parliaments, however, sought to prohibit this, and succeeded, in 1340, in passing a statute which abolished, in words peculiarly wide and categorical, unparliamentary taxation of every kind whatsoever. This act, which is sometimes styled by modern writers “the real statutum de tallagio non concedendo,” is held by Dr. Stubbs to have conclusively abolished inter alia the Crown’s right of tallage.^[474] This finally settled the law, but did not prevent the king from trying to break that law. In subsequent years Edward III. frequently disregarded the restriction thus placed upon his financial resources, and with varying success. He rarely did so, however, without meeting protests; and the rule of law laid down in the act of 1340 was never repealed.

III. Magna Carta and the Theory of Parliamentary Taxation. It is a commonplace of our text-books that chapters 12 and 14 taken together amount to the Crown’s 282absolute surrender of all powers of arbitrary taxation, and even that they enunciate a general doctrine of the nation’s right to tax itself.^[475] Yet the very idea of “taxation” in its abstract form, as opposed to specific tolls and tallages levied on definite things or individuals, is essentially modern. The doctrine of the day was that the king in normal times ought “to live of his own,” like any other land-owning gentleman. A regular scheme of “taxation” to meet the ordinary expenses of government was undreamt of. It is too much to suppose, then, that our ancestors in 1215 sought to abolish something which, strictly speaking, did not exist. The famous clause treats, not of “taxation” in the abstract, but of the scutages and aids already discussed. It does not concern itself with the rights of Englishmen as such, but chiefly with the interests of those who held freeholds of the Crown, and incidentally and inadequately with those of the citizens of London. Several considerations place this beyond reasonable doubt.

(1) The terms of the restriction are by no means wide or sweeping; but precise, accurate, and narrow. The “common consent of the realm” was made a requisite for three species of exactions at the most: for scutages and for extraordinary aids taken from the feudal tenants, and possibly also for aids taken from the city of London: that is all. Not a word is said of any other form of taxation or of other groups of taxpayers. The restriction thus benefits Crown tenants only, with the doubtful addition of the Londoners. (2) If under-tenants received by chapter 15 some protection against their mesne lords, they received none against the claims of the king. The Charter affected not national “taxation,” but merely feudal dues. (3) The scant measure of protection afforded did not extend even to all Crown tenants. The king’s villeins were, of course, excluded; and so were even freeholders whose tenure was 283other than that of chivalry. Socage tenants were left liable to carucage and other exactions, tenants in frankalmoin (among them the wealthy Cistercian monks) to forced contributions from the wool and hides of their sheep, while the right of the Crown arbitrarily to raise the “farms” of all parts of its own demesnes was deliberately reserved.^[476] (4) The Crown’s initiative in “taxation” (here restricted in regard to “aids” and “scutages”) was, under many other names and forms, left intact. The king required no consent before taking such prizes and custom dues as he thought fit from merchandise reaching or leaving England, or before taking tolls and fines at inland markets under the plea of regulating trade. Tallages also were exigible at discretion from aliens and Jews, from tenants of demesne, from London and other chartered towns. (5) The limited scope of this restriction on prerogative is further illustrated by the method provided for taking “the common consent.” The assembly to be convened for that purpose was a narrow body, representative neither of the several ranks and classes of the community, nor of the separate national interests, nor yet of the various districts of England. On the contrary, its composition was extremely homogeneous, an aristocratic council of the military tenants of the Crown, convened in such a way that only the greater among them were likely to attend.^[477]

These facts serve as a warning not to read into Magna Carta modern conceptions which its own words will not warrant. This famous clause was far from formulating any national doctrine of self-taxation; it was primarily intended to protect Crown tenants from impositions levied by John, not qua sovereign but qua feudal lord. Such as it was, it was totally omitted, along with its corollary (chapter 14), in 1216. The provision substituted for both, in the Charter of 1217, referred only to scutages, 284saying nothing about aids, and cannot possibly be read as a general prohibition of all arbitrary taxation by the Crown.^[478]

CHAPTER THIRTEEN.

Et civitas Londonie habeat omnes antiquas libertates et liberas consuetudines suas, tam per terras, quam per aquas. Preterea volumus et concedimus quod omnes alie civitates, et burgi, et ville, et portus, habeant omnes libertates et liberas consuetudines suas.

And the citizens of London shall have all their ancient liberties and free customs, as well by land as by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties and free customs.

A full list of the liberties and customs of London would be a long one; and an account of how each of these grew up and was confirmed by the Crown need not be given here. The most cherished of the privileges enjoyed in John’s day were the right to appoint a civic chief, who bore the name of mayor, and the right to choose sheriffs of their own who should collect the city’s firma^[479] (or annual rent payable to the exchequer), so as to obviate the intrusion of royal bailiffs. Only a brief account of the way in which the metropolis obtained these two privileges need be here attempted.

The chief feature of London before the Norman Conquest seems to have been lack of proper municipal organisation. Dr. Stubbs describes the capital during the eleventh century 285as “a bundle of communities, townships, parishes, and lordships, of which each has its own constitution.”^[480] It was thus a collection of small administrative units, rather than one large unit. Some semblance of legal unity was, it is true, afforded by the folkmoot, in which the citizens regularly assembled; by its smaller council known as “husteng”; and perhaps also by its “cnihtengild” (if, indeed, this third body be not entirely mythical); while the existence of a “portreeve” shows that for some financial purposes also the city was treated as one whole. London, however, prior to the reign of Henry I. was far from possessing machinery adequate to the duties of a local government for the whole community.

The first step towards acquiring a municipal constitution is generally supposed to have been taken by the citizens when they obtained a charter from Henry I. in the last years of his reign (1130-35). This is not strictly accurate. London, indeed, by that grant gained certain valuable privileges and enjoyed them for a short time, but it did not obtain a constitution. The chief rights actually conferred by Henry were as follows:—(1) The firma was fixed at the reduced rate of £300 per annum, the citizens obtaining for this payment a lease in perpetuity of their own city with the surrounding county of Middlesex—the grant being made to the citizens and their heirs; (2) they acquired the right to appoint whom they pleased as sheriffs of London and Middlesex, implying the exclusion of the king’s tax-collectors by men of their own choosing; (3) a similar right of appointing their own nominee as justiciar was also conferred on them, to the exclusion apparently of the royal justices of eyre. Many minor privileges were confirmed which need not here be specified. Mr. J. H. Round^[481] argues 286with convincing force that these concessions, important as they were, did not confer a civic constitution upon London. Henry’s charter, in his opinion, confirmed all the already existing separate jurisdictions and franchises, perpetuating the old state of disunion, rather than creating a new principle of cohesion. He proves, further, that these benefits continued in force only for a few years after Stephen’s accession. That king was coerced by the Earl of Essex into infringing the citizens’ chartered rights; and London did not regain the ground thus lost until the reign of Richard I.

Henry II., indeed, granted a charter to the citizens in 1155, which is usually interpreted as a full confirmation of all the concessions of the earlier Henry.^[482] Mr. Round has conclusively proved the error of this opinion.^[483] The charter of 1155 restricted, rather than enlarged, the privileges of London, being couched in cautious and somewhat grudging terms. The main concessions of the earlier charter were completely omitted: the citizens no longer elected their own sheriffs or their own justiciar; the reduction of the firma to £300 was not confirmed; and subsequent pipe rolls show that Henry doubled that amount, although the Londoners protested, arguing for the lower rate.

The next crisis came early in Richard’s reign. Then it was that London first obtained its municipal constitution. Then also it regained and secured on a permanent basis the privileges precariously held for a few years under Henry I. and Stephen. The form in which the constitution came at last was borrowed from France, and was neither more nor less than the Commune, so well known on the Continent in the twelfth and thirteenth centuries. The commune of London was possibly modelled upon the commune of Rouen; the chief cities of England and Normandy respectively must have had intimate relations. Mr. Round^[484] has shown that these concessions were not, as has sometimes been supposed, voluntarily granted in 1189 by Richard I., but were 287extorted from his younger brother John, when that ambitious prince was bidding high for powerful allies to support his claim to act as Regent. London really got its first constitution on 8th October, 1191, under picturesque and memorable circumstances. While Richard tarried in the Holy Land, a scramble took place at home for the right to represent him. The Chancellor Longchamp had been appointed Regent; but John, wily and unscrupulous, successfully ousted him, with the help of the men of London. At the critical moment the metropolis had offered its support on conditions, which included the restoration of all the short-lived privileges conferred by the charter of Henry I., and, in addition, a municipal constitution of its own in the form of a commune of the continental type.

Mr. Round, in a notable passage, describes the scene. "When, in the crisis of October, 1191, the administration found itself paralysed by the conflict between John, as the king’s brother, and Longchamp, as the king’s representative, London, finding that she held the scales, promptly named the 'Commune’ as the price of her support. The chronicles of the day enable us to picture to ourselves the scene, as the excited citizens, who had poured forth overnight, with lanterns and torches to welcome John to the capital, streamed together on the morning of the eventful 8th October at the well-known sound of the great bell, swinging out from its campanile in St. Paul’s Churchyard. There they heard John take the oath to the ‘Commune,’ like a French king or lord; and then London, for the first time, had a municipality of her own."^[485]

For any accurate definition of a commune we look in vain to contemporary writers, who are usually carried away by their political bias. Richard of Devizes^[486] quotes with approval, “Communia est tumor plebis, timor regni, tepor sacerdotii.” Some insight has been gained in recent years, however, into its exact nature. A Commune was a town which had obtained recognition as a corporate entity, as 288a link in the feudal chain, becoming the free vassal of the king or other lord, and itself capable of having sub-vassals of its own.^[487] Its chief institutions were a mayor and an elective council, generally composed of twenty-four members, some or all of whom were known as échevins or skivini, a word which in its modern form of “scavengers” has fallen on evil days, no longer denoting the city fathers, but men who perform civic duties of a useful but less dignified nature. Perhaps the chief peculiarity of the commune was the method of its formation, namely, by popular association or conspiracy, involving the taking of an oath of a more or less revolutionary nature by the citizens and its subsequent ratification by those in authority. It is generally admitted that these communes, though revolutionary in their origin, were not necessarily democratic in their sympathies. Under the new constitution of London, the grievous taxation of Richard’s reign was made to fall more heavily on the poor of London than on any other class. The commune thus set up in 1191, tolerated at first rather than encouraged by the Crown, formed thenceforth the municipal government of the capital; the citizens chose not only their own sheriffs, but also their own mayor, although the latter, when once appointed, held office for life.

When John became king, he granted three charters, ratifying the privileges of the capital in return for a gersuma (or slump payment) of 3000 marks.^[488] All the franchises specified in the old charter of Henry I. were now confirmed, with one exception: the liberty to appoint a justiciar of their own, now seen to be inconsistent with the Crown’s centralizing policy, was abandoned. None of these charters made mention of mayor or commune, but they confirmed some minor privileges gained in Richard’s reign.^[489]

289A fourth charter, dated 20th March, 1201, was merely of temporary interest; but a fifth, granted on 9th May, 1215, little more than a month previous to Magna Carta, is of great importance, and represents the bait thrown by John to the citizens in the hope of gaining their support in this new crisis, as he had previously gained it in the crisis of 1191. The fifth charter not merely confirmed to the citizens in explicit terms the right already enjoyed by them of electing a mayor for life, but allowed them to elect a new one every year. Miss Norgate does not exaggerate, when she describes this concession as “the crowning privilege of a fully constituted municipality, the right to elect their own mayor every year.”^[490] An annually elected magistrate would, undoubtedly, feel his dependence on the citizens more than one holding office for life; but it seems probable that the chief value of the grant lay in its confirmation by John as king, of the rights conceded by him fourteen years earlier as his brother’s unauthorised representative, and enjoyed meanwhile on an insecure tenure. The charter of May, 1215, by officially recognizing the mayor, placed the commune over which he presided on a legal footing. The revolutionary civic constitution, sworn to in 1191 was now confirmed. The citizens acted on the permission granted them of annually changing their chief magistrate: but in place of supporting the king who made the grant, they opened their gates to his enemies.^[491]

Such then was the London whose privileges were confirmed by Magna Carta—a city which had slowly grown to greatness, obtaining after many struggles a complete municipal constitution in the form of a commune with annually elected mayor and council, as well as sheriffs of 290its own appointment, who excluded the Crown’s financial officers not only from the district within its walls but from the whole of Middlesex. The Great Charter, avoiding details, confined itself to a general confirmation to the men of London of their ancient “liberties and free customs,” two words^[492] whose vagueness ought in this connection to receive a liberal interpretation.^[493]

London, in this respect, was not to stand alone; a similar concession was explicitly made in favour of all other cities, boroughs, towns, and sea-ports. This was a mere confirmation, however, not to be read as conferring new privileges or exemptions, each borough being left to prove its own customs as best it might. In the reissues of Henry, the distinction of being mentioned by name was shared by these “barons of London,” with “the barons of the Cinque ports,” who from their wealth, their situation, and their fleet, were allies well worth conciliating. They played, indeed, a prominent part in the decisive naval victory gained by Hubert de Burgh on 24th August, 1217.^[494]

Other portions of John’s Great Charter which specially affected the Londoners were the last clause of chapter 12, and chapters 33 and 41; while many of the privileges granted or confirmed in other chapters were shared by them. The Mayor of London, it should be added, was one of the executive committee of twenty-five, entrusted with wide powers to enforce the provisions of the Charter.^[495]

Among the most cherished privileges claimed by the chartered boroughs were the rights to exact tolls and to place oppressive restrictions upon all rival traders not members of their guilds, foreigners and denizens alike. The confirmation of these privileges in this chapter has been 291held to contradict chapter 41, which grants protection and immunities to foreign merchants.^[496] The inconsistency, however, should not be pushed too far, since the later chapter aimed at the abolition of “evil customs” inflicted by the king, not of those inflicted by the boroughs. At the same time, all favour shown to aliens would be bitterly resented by their rivals, the English traders. If the charter had been put in force in its integrity, the more specific privileges in favour of foreign merchants would have prevailed in opposition to the vague confirmation of borough “liberties” wherever the two came into collision.^[497]

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. 292And 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 293a 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 294ever 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 295purpose. 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 296that 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 297presence, 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” 298were 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 299realm,” 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 300levy 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 301chapters 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]

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 302tenants: 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 303common 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, 304conscientiously 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.

II. The Influence of Magna Carta upon later Practice. This chapter, along with chapters 12 and 14, was discarded by Henry III.; and little difference, if any, can be traced between the practices that prevailed before and after 1215. Only in one particular were the requirements of John’s Magna Carta observed, namely, as regards the need for obtaining a royal licence. Mesne lords after this date, whatever may have been their reason, invariably asked the Crown’s help to collect their aids. They could not legally distrain their freeholders, except through the sheriff, and this was, in part at least, a result of Magna Carta.^[521]

Henry III., however, entirely disregarded the rule which forbade the licensing of extraordinary aids. Like his ancestors, he was prepared to grant writs on almost any plausible pretext. From the Patent and Close Rolls, as well as from other sources, illustrations of the Crown’s earlier and later practice may readily be collected.

(1) Scutages. In 1217, for example, Henry granted permission to all Crown tenants who had served in person to collect scutage from their knights.^[522]

(2) Ordinary Aids. (a) John in 1204 authorized the collection of “an effectual aid” from the knights and freeholders of the Constable of Chester for the ransom of their 305lord.^[523] (b) A royal writ in 1235 allowed Henry Tracey, as already mentioned, to take an aid for his eldest daughter’s marriage.

(3) Special Aids. (a) When a fine of sixty marks was incurred in 1206 by the Abbot of Peterborough, John allowed him to distrain his under-tenants for contributions.^[524] (b) An heir, paying relief, might likewise transfer the obligation to his freeholders.^[525] (c) The lord’s debts were frequently paid by his tenants. The returns to the Inquest of 1170 contain particulars of the “sums given individually by some forty burgesses of Castle Rising towards paying off the mortgages of their lord, the Earl of Arundel, who was clearly in the hands of the Jews”;^[526] while in 1234 the Earl of Oxford and the Prior of Lewes each obtained a letter patent distraining their tenants to contribute to the discharge of their debts.^[527] Sufficient evidence is thus preserved that Henry III. took full advantage of the omission from his own charters of this part of his father’s promises. He did not question too minutely the justice of applications for such writs, if good fees were punctually paid. His letters, during the earlier years of his reign, authorized the taking of a “reasonable” aid, without hinting at any mode of determining what that was. This is illustrated by the procedure adopted by Henry Tracey in 1235, who apparently debated with his assembled knights of Devonshire the amount to be paid as “reasonable,” and finally accepted 20s. per fee.^[528] It is interesting to note, however, that this same mesne lord, twelve years later, obtained a writ bidding the sheriff of Somerset assist him to collect “the scutage of Gascony” at a specified rate, namely, 40s. per fee.^[529]

306The first Statute of Westminster virtually reverted to the rule laid down in 1215, for its terms imply that aids could only be taken on the three well-known occasions. The vague declaration that these should be reasonable in amount is replaced by the specification of a fixed rate, namely 40s., or double what had been usual at an earlier period. Definition of the amount and times of payment may, however, have been worth purchasing even at this increase.

CHAPTER SIXTEEN.

Nullus distringatur ad faciendum majus servicium de feodo militis, nec de alio libero tenemento, quam inde debetur.

No one shall be compelled to perform greater service for a knight’s fee, or for any other free tenement, than is due therefrom.

For military tenants, the transition from scutage to service was a natural one; since it was not enough to protect themselves from exactions in money, if they were still exposed to arbitrary exactions in kind. John, therefore, declared that no freeholder should be constrained to do more service for his lands than he was legally bound to do. Disputes might arise, however, as to what extent of service actually was due in each particular case, and Magna Carta did nothing to remove such ambiguities. The difficulties of definition, indeed, were enormous, since the duration and conditions of service might vary widely even among tenants-in-chivalry, in consequence of special exemptions or special burdens which appeared in title deeds or rested upon immemorial usage. The barons would be unwilling to enter on so intricate and laborious a task, fearing that the introduction of such complications might do more harm than 307good. The necessity for accurate definition may never have occurred to them: the main purport of their grievance was so vividly present to their own minds that they did not acknowledge the possibility of any mistake. The military Crown tenants had frequently objected to serve abroad, particularly during John’s campaigns in Poitou, which involved a long expensive journey to a region in which they had nothing at stake.^[530] They regarded themselves as not legally bound to make expeditions to such portions of the Angevin Empire as had not belonged to the Norman kings when their ancestors got their fiefs. To force them to enter on campaigns to the south of France, or to fine them heavily for staying at home, was, they argued, to distrain them ad faciendum majus servicium de feodo militis quam inde debetur. When they inserted these words in the Charter, they doubtless regarded them as an absolute prohibition of compulsory service in Poitou, at all events.^[531] The clause was wide enough, however, to include many minor grievances connected with service. The barons did not confine its provisions to military service even, but extended it to other forms of freehold tenure (“nec de alio libero tenemento”). No freeholder, whether in socage, serjeanty, or frankalmoin, could in future be compelled to render services not legally due.

If the barons thought they had thus settled the vexed questions connected with foreign service, they deceived themselves. Although this chapter (unlike those dealing with scutage) remained in full force in all subsequent confirmations, it was far from preventing disputes. Yet the disputants in future reigns occupied somewhat different ground. From the days of William I. to those of Charles II.Charles II., when the feudal system was abolished, quarrels frequently arose, the most famous of which culminated in 1297 in Edward’s 308unseemly wrangle with the Earls of Norfolk and Hereford, whose duty it was to lead the royal army as hereditary Constable and Marshal respectively, but who refused point-blank to embark for Gascony except in attendance on the king’s person.^[532]

It has been shown in the Historical Introduction^[533] how the obligations of a military tenant fell naturally into three groups (services, incidents, and aids), while a fourth group (scutages) was added when the Crown had adopted the expedient of commuting military service for its equivalent value in money.

Feudal grievances also may be arranged in four corresponding groups, each redressed by special clauses of Magna Carta: abuse of aids by chapters 12, 14, and 15; abuse of the feudal incidents, by chapters 2 to 8; abuse of scutage, by chapters 12 and 14; and abuse of service, by the present chapter, which thus completes the long list of provisions intended to protect tenants against their feudal lords.

CHAPTER SEVENTEEN.

Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo.

Common pleas shall not follow our court, but shall be held in some fixed place.

An attempt was here made to render royal justice cheaper and more accessible. Law-suits in which the Crown had no special interest, common pleas, were to be 309held in some one, fixed, pre-appointed spot, and must no longer follow the king as he moved about from place to place. The full extent of the boon conferred by this reform will be better appreciated after a short consideration of the method of dispensing justice adopted by Henry II. and his sons.

I. The Curia Regis as a Court of Law. The evil complained of was a characteristically medieval one, and arose from the fact that all departments of government were originally centred in the king and his household, or Curia Regis, which performed royal and national business of every kind. This Curia Regis, indeed, united in itself the functions of the modern Cabinet, of the administrative departments (such as the Home Office, the Foreign Office, and the Admiralty), and of the various legal tribunals. It was the parent inter alia of the Court at St. James’s and the courts at Westminster. One result of throwing so many and miscellaneous duties on a small body of hard-worked officials was to produce a congestion of business. Nothing could be done outside of the royal household, and that household never tarried long in any one spot. Everything was focussed to one point, but to a point constantly in motion. Wherever the king went, there the Curia Regis, with all its departments, went also. The entire machinery of royal justice followed Henry II., as he passed, sometimes on the impulse of the moment, from one of his favourite hunting seats to another. Crowds thronged after him in hot pursuit, since it was difficult to transact business of moment elsewhere.

This entailed intolerable delay, annoyance, and expense upon litigants who brought their pleas for the king’s decision. The case of Richard d’Anesty is often cited in illustration of the hardships which this system inflicted upon suitors. His own account is extant and gives a graphic record of his journeyings in search of justice, throughout a period of five years, during which he visited in the king’s wake most parts of England, Normandy, Aquitaine, and Anjou. The plaintiff, although ultimately 310successful, paid dearly for his legal triumph. Reduced to borrow from the Jews to meet his enormous outlays, mostly travelling expenses, he had to discharge his debts with accumulations of interest at the ruinous rate of 86⅔ per cent.^[534]

II. Common Pleas and Royal Pleas. Long before 1215 all litigations conducted before the king’s courts had come to be divided roughly into two classes, according as the royal interests were or were not specially affected by the issue. Those on one side of this fluctuating line were known as royal pleas, or “pleas of the Crown,” provisions for holding which are contained in chapter 24, those on the other side as ordinary pleas or “common pleas,” to which alone the present chapter refers. As these ordinary suits did not require to be determined in the royal presence, it was therefore possible to appoint a special bench of judges to sit permanently in some fixed spot, to be selected once for all as likely to suit the convenience of litigants. No town was named in Magna Carta; but Westminster, even then the natural home of law, was probably intended from the first. It is Westminster that Sir Frederick Pollock has in mind when he writes in reference to this chapter: “We may also say that Magna Carta gave England a capital.”^[535] The barons in 1215, however, in asking this reform, were not insisting on any startling innovation, but demanding merely the strict observance of a rule long recognized. During most of John’s reign, a court did sit at Westminster dispensing justice, with more or less regularity; and there most “common pleas” were tried, unless John ordered otherwise.^[536] Magna Carta insisted that all exceptions must cease; the rule of law must supersede the royal caprice.

311III. Effects of Magna Carta on the genesis of the three Courts of Common Law. The ultimate consequences of the accomplishment of this reform reached further than was foreseen. Intended merely to remove from litigants a practical grievance of frequent occurrence, it had important indirect effects on the development of the English Constitution. By securing for common pleas a permanent home, it gave an impetus to the disintegrating tendencies already at work within the many-sided household of the king. It contributed somewhat to the slow process whereby the Curia Regis, as an administrative organ, was differentiated from the same Curia as the dispenser of justice. It helped forward the cleavage destined to divide completely the future Courts of Westminster from the Court of St. James’s and from Downing Street. Nor was this all: the special treatment accorded to “common pleas” emphasized the distinction between them and royal pleas, and so contributed to the splitting up of the same Curia Regis, on its judicial side, into two distinct tribunals. One little group of judges were set apart for hearing common pleas, and were known as "the king’s Judges of the Bench," or more briefly as “the Bench,” and at a later date as the Court of Common Pleas. A second group, reserved for royal pleas, became the court Coram Rege, known subsequently as the Court of King’s Bench. There were thus two benches: a common bench for common pleas and a royal bench for pleas of the Crown.^[537]

The double process by which these two small courts separated themselves slowly from the parent court and from each other began long prior to Magna Carta, and was not completed before the close of the thirteenth century. These benches were also closely linked with a third bench, known for centuries as the Court of Exchequer, which was in its origin merely one department of that government bureau, the king’s financial Exchequer—that office in which money was weighed and tested and the royal accounts drawn up. Many disputes or pleas affecting 312Crown debts and debtors had to be there decided, and in due time a special group of officials were set aside to try these. These men, called, not judges, but “barons of the exchequer,” formed what was in fact, though not in name, a third bench or court of justice.

All three of the Courts of Common Law—the Court of King’s Bench, the Court of Common Pleas, and the Court of Exchequer—were thus offshoots of the king’s household. In theory, each of these ought to have confined itself to the special class of suits to which it owed its origin—to royal pleas, common pleas, and exchequer pleas respectively; but by a process well known to lawyers and law-courts in all ages, each of them eagerly encroached on the jurisdictions and the fees appropriate to the others, until they became, for most purposes, three sister courts of similar and co-ordinate authority. They were bound to decide all suits according to the technical and inflexible rules of common law; and their jurisdiction thus required a supplement, which was supplied by the genesis of the Court of Chancery, dispensing, not common law, but equity, which professed to give (and, for a short time, actually did give) redress on the merits of each case as it arose, unrestrained by precedents and legal subtleties.

IV. The Evolution of the Court of Common Pleas. The comment usually made upon the present chapter is that we have here the origin of the Court of Common Pleas. Now, legal institutions do not spring, full-fledged, into being. The Court of Common Pleas, like its sister Courts of King’s Bench and Exchequer, was the result of a long process of gradual separation from a common parent stem. Prior to 1215 several tentative efforts seem to have been made towards establishing each of these. On the other hand, it is probable, nay certain, that long after 1215 the Court of Common Pleas did not completely shake off either its early dependence upon the Curia Regis, or yet its close connection with its sister tribunals.

Three stages in the process of evolution may be emphasized. (1) The earliest trace of the existence of a 313definite bench of judges, set apart for trying common pleas, is to be found in 1178, not in 1215. When Henry II. returned from Normandy in the former year, he found that there had been irregularities in his absence. To prevent their recurrence, he effected certain changes in his judicial arrangements, the exact nature of which is matter of dispute. A contemporary writer^[538] relates how Henry chose two clerks and three laymen from the officials of his own household, and gave to these five men authority to hear all complaints and to do right “and not to recede from his court.” It was long thought that this marked the origin of the Court of King’s Bench, but Mr. Pike^[539] has conclusively proved that the bench thus established was the predecessor, not of the royal bench, but rather of the bench for common pleas.

In 1178, then, these five judges were set apart to hear ordinary suits; but they were specially directed not to leave Henry’s court; so that common pleas still “followed the king,” even ordinary litigants in non-royal pleas having to pursue the king in quest of justice as he passed from place to place in quest of sport.

It must not be supposed that the arrangement thus made in 1178 settled the practice for the whole period of thirty-seven years preceding the grant of Magna Carta. On the contrary, it was merely one of many experiments tried by that restless reformer, Henry of Anjou; and the separate court then instituted may have been pulled down and set up again many times. The bench which appears in 1178 had probably, at best, a fitful and intermittent existence. There is evidence, however, that some such court did exist and did try common pleas in the reigns of Richard and John.^[540] On the other hand, this tribunal had 314in John’s reign ceased to follow the king’s movements habitually (thus disregarding the decree of 1178), and had established itself at Westminster.^[541] It was in 1215 considered an abuse for John to try a common plea elsewhere. Times had changed since his father had granted as a boon that a set of judges should remain constantly at “his court” to try such cases.

(2) Magna Carta in 1215 gave authoritative sanction to the already recognized rule that common pleas should be tried at Westminster, instead of moving with the king. No exceptions were henceforth to be allowed. Young Henry renewed this promise, and the circumstance of his minority favoured its strict observance. A mere boy could not make royal progresses through the land dispensing justice as he went. Accordingly, all pleas continued for some twenty years to be heard at Westminster. The same circumstances, which thus emphasized the stability of common pleas (along with all other kinds of pleas) in one fixed place, may have arrested the process of cleavage between the two benches. All the judges of both courts sat at Westminster, and therefore there was the less need for allocating the business between them with any exactitude. The two benches were in danger of coalescing.

(3) About the year 1234 a third stage was reached. Henry began to follow the precedent, set by his ancestors, of moving through his realm with judges in his train, hearing pleas wherever he stopped. While one group of judges went with him, another remained at Westminster. Some way of allocating the business had therefore to be found. Common pleas, in accordance with Magna Carta, remained stationary; while pleas of the Crown went on their travels. The split between the two benches now became absolute. Each provided itself with separate records. From the year 1234, two continuous series of distinct rolls can be traced, known respectively as rotuli placitorum coram rege and rotuli placitorum de banco. If any date in the history of 315one law court, which is in process of becoming two, can be reckoned as specially marking the point of separation, it should be that at which separate rolls appear. The court’s memory lies in its records, which are thus closely associated with its identity. In 1234 the common bench and the royal bench had become distinct.^[542] Evidence drawn from a few years later proves that a definition of common pleas had been arrived at and that the rule which required them to be held “in a fixed place” was insisted on. While Henry and his justices sat in judgment at Worcester in 1238, a litigant protested against his suit being tried before them. It was a “common plea” and therefore, he argued, ought not to follow the king, in violation of Magna Carta. At Westminster only, not at Worcester or elsewhere, could his case be heard.^[543]

With royal pleas, however, it was very different: for long they continued to follow the king’s person without any protest being raised; and the Court of King’s Bench did not finally settle at Westminster for nearly a century after the Court of Common Pleas had been established there. So late as 1300, Edward I. ordained by the Articuli super cartas that “the Justices of his Bench” (as well as his Chancellor) should follow him so that he might have at all times near him “some sages of the law, which be able duly to order all such matters as shall come into the Court at all times when need shall require.”^[544]

V. Erroneous Views. In the reign of Edward I. the real motive of this chapter of Magna Charta—so quickly had the organization of the law courts progressed—had already been lost sight of. The day of wandering common pleas, such as that of Richard d’Anesty, had been long forgotten. Some litigants of Edward’s time had, however, a different grievance of their own, connected with the 316hearing of their suits. The Court of Exchequer was willing, for an adequate consideration, to place its specially potent machinery, devised originally for the king’s exclusive use, at the disposal of private creditors, thus treating “common pleas” as “exchequer pleas.” Ordinary debtors, summoned as defendants before the barones scaccarii, were subjected to harsher treatment than they would have experienced elsewhere. It was not unnatural that defendants who found themselves thus hustled should read the words of Magna Carta relative to “common pleas” as precisely suited to their own case. They made this mistake the more readily as the original motive had been forgotten. The Charter was thus read as preventing the stationary Court of Exchequer (not the constantly moving King’s Bench) from hearing ordinary suits. This erroneous view received legislative sanction. The Articuli super cartas in 1300 declared that no common pleas should thenceforth be held in the Exchequer “contrary to the form of the Great Charter.”^[545]

This is a clear misinterpretation of the intention of Magna Carta. The Exchequer never “followed the Crown”; it stayed at Westminster where its offices, tallies, and pipe rolls were. The Charter would have expressed itself in 317widely different words if it had desired to exclude common pleas from the Exchequer. The Articuli super Cartas, however, attempted what the Charter of 1215 did not. After 1300 it was clearly illegal to hold any pleas in the Exchequer, unless such as affected the Crown and its ministers. Subsequent statutes confirmed this; but their plain intention was always defeated by the ingenious use of legal fictions and the connivance of the Barons of Exchequer, who welcomed the increase of their fees which kept pace with the increase of business.^[546]

The evil directly attacked by Magna Carta was something quite different—an evil wider, more pressing and less technical, namely, the practice of causing ordinary litigants, with their legal advisers and witnesses, to dance attendance on a constantly moving court.

CHAPTER EIGHTEEN.

Recogniciones de nova dissaisina, de morte antecessoris, et de ultima presentacione, non capiantur nisi in suis comitatibus et hoc modo; nos, vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus duos justiciarios per unumquemque comitatum per quatuor vices in anno, qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, capiant in comitatu et in die et loco comitatus assisas predictas.

Inquests of novel disseisin, of mort d’ancestor, and of darrein presentment, shall not be held elsewhere than in their own county-courts,^[547] and that in manner following,—We, or, if 318we should be out of the realm, our chief justiciar, will send two justiciars through every county four times a year, who shall, along with four knights of the county chosen by the county, hold the said assizes^[548] in the county court, on the day and in the place of meeting of that court.

Provision is thus made for holding before the king’s travelling justices, frequently and in a convenient manner, three species of judicial inquests known as “the three petty assizes.” These are of exceptional interest, not only in relation to Magna Carta, but from their intimate connection with several constitutional problems of prime importance; with the reforms of Henry II. on the one hand, and with the genesis of trial by jury and of the Justices of Assize on the other.

I. The Curia Regis and the travelling Justices. From an early date, certainly from the accession of Henry I., it was the Crown’s practice to supplement the labours which its officials conducted within the precincts of the royal exchequer by the occasional despatch of chosen individuals to inspect the provinces in the royal interests, collecting information and revenue, and, incidentally, hearing lawsuits. Justice was thus dispensed in the king’s name by his delegates in every shire of England, and a distinction arose between two types of royal courts: (1) the King’s Council and its offshoots (including the three courts of common law and the court of chancery) which at first followed the king’s person, but gradually, as already shown,^[549] found a settled home at Westminster; and (2) the courts of the itinerant justices which exercised such delegated authority as the Crown chose from time to time to entrust to them. The natural sphere of the labours of these royal commissioners as they passed from district to district was the court of each shire, specially convened to meet them. 319They formed in this way the chief link between the old local popular courts and the system of royal justice organized by Henry II.,^[550] subordinating the former to the latter, until the county courts virtually became royal courts. These travelling justices passed through two stages, two different types receiving royal recognition at different periods, the Justices in Eyre and the Justices of Assize respectively.

(a) The Justices in Eyre were the earliest form of travelling judges, though their original duties were rather financial and administrative, than strictly judicial. Their history extends from the reign of Henry I. to the end of the fourteenth century.^[551] Their outstanding characteristics were the sweeping nature of the commissions under which they acted (ad omnia placita), the harsh and drastic way in which they used their authority, and their intense unpopularity. Their advent was dreaded like a pestilence: each district they visited was left impoverished by fines and penalties. On one occasion, the men of Cornwall “from fear of their coming, fled to the woods.”^[552]

An eyre was only resorted to at long intervals—every seven years came to be the recognized term—and was intended as a severe method of punishing delinquencies and miscarriages of justice occurring since the last one, and of collecting arrears of royal dues. It was not a visit from these universally-hated Justices of Eyre that the barons in 1215 demanded four times a year.

(b) The Justices of Assize were also travelling judges, but in their original form at least, possessed hardly another feature in common with the Justices in Eyre. Their history extends from a period not earlier than the reign of Henry II. down to the present day.^[553] They seem to have been popular from the first, as their primary function was 320to determine pending suits by a rational and acceptable form of procedure; while the scope of their jurisdiction, although gradually extended as their popularity increased, was at all times limited strictly by the express terms of their commissions. They were regarded not as royal tax-gatherers armed with harsh powers of coercion, but as welcome bearers of justice to the doors of those who needed it.

At first their duties were confined to one species of judicial work, namely, to presiding at enquiries of the kind specially mentioned in the text. These particular inquests were known as “assizes,” and the new species of travelling judges were hence called “Justices of Assize,” a name which has clung to them for centuries, although their jurisdiction has been gradually increased till it now includes both civil and criminal pleas of every description, and although meanwhile the invention of new forms of process has superseded the old “assizes,” and at last necessitated their total abolition.^[554] They are still “justices of assize” in an age which knows nothing of assizes.

II. The Nature and Origin of the three Petty Assizes. The institution of the "assizes"—particular forms of the sworn inquest—occupied a prominent place among the expedients by which Henry II. hoped to substitute a more rational procedure for the form of proof known as trial by combat.^[555]

321The duellum, introduced at the Norman Conquest, remained for a century thereafter the chief method in use among the upper classes for determining all serious pleas or litigations. Gradually, however, it was confined to two important groups of pleas, one civil and the other criminal: namely, appeals of treason and felony on the one hand, and suits to determine the title to land on the other.^[556] This process of restriction was accelerated by the deliberate policy of Henry II., who attempted, indeed, to carry it much further, devising machinery which provided for the defendant or accused party, wherever possible, an option by resorting to which he could, in an ever increasing variety of circumstances, escape trial by battle altogether. Under chapter 36 will be explained the expedient adopted for evading combat in an appeal of treason or felony. The present chapter relates to the procedure devised by Henry for superseding the duellum in certain important groups of civil pleas,^[557] and incidentally affords proof that this part of his reforms had already become popular with the opponents of the Crown. The frequent use of the three Petty Assizes was now insisted on, although the Grand Assize was still viewed askance for reasons to be explained in connection with chapter 34.

(1) The Grand Assize is not mentioned in Magna Carta; but some acquaintance with it is a necessary preliminary to a proper appreciation of the Petty Assizes. In the troubled reign of Stephen—which was rather the reign of anarchy in his name—lands changed hands frequently. This left to his successor a legacy of quarrels, too often leading to bloodshed. There was hardly an important estate in England to which, at Henry’s accession, two or more rival magnates did not lay claim. Constant litigations resulted, and the only legal method of deciding the issue was the duellum.

322At some uncertain date, near the commencement of his reign, Henry II. introduced a startling innovation. The holder of a property de facto (that is the man in actual enjoyment of the estate in virtue of a bona fide title), when challenged to combat by a rival claimant was allowed an option: he might force the claimant (if the latter persisted) to refer the whole matter to the oath of twelve knights of the neighbourhood. Henry’s ordinance laid down careful rules for the appointment of these recognitors. Four leading knights of the whole county were first to be chosen, on whom was placed the duty of selecting twelve knights of the particular district where the lands lay, and these, with all due solemnity and in presence of the king’s justiciars, declared upon oath to which suitor the lands belonged. Their decision was final, and determined the question of ownership for all time coming.^[558] The name Grand Assize was applied alike to the procedure and to the knights who gave the verdict. The twelve knights thus anticipated the functions of a modern jury, while the king’s justiciars acted like the presiding judge at a modern trial.^[559]

Valuable as was this innovation, it had one obvious defect. The option it conferred might sometimes be 323usurped by the wrong man. It was intended to operate in the interests of order and justice by favouring the peaceable holder de facto; but what if a turbulent and lawless claimant, scorning an appeal to legal process, took the law into his own hands, evicted the previous holder by the rude method of self-help, and thereafter claimed the protection of Henry’s ordinance? In such a case the man of violence—the holder mala fide—would enjoy the option intended for his innocent victim.

(2) The petty assizes may, perhaps, be regarded as the outcome of Henry’s determination to prevent such misuse of his new engine of justice. If one claimant alleged that the other had usurped his rights by violence or fraud, the king allowed the preliminary plea thus raised to be summarily decided by the oath of twelve local landowners, according to a procedure known as a petty assize. These petty assizes, of which there were three kinds, all related to questions of “possession,” as opposed to questions of “ownership,” which could only be determined by battle or by the Grand Assize.

(a) The assize of novel disseisin. The word “seisin,” originally synonymous with “possession” in general, was gradually restricted by medieval lawyers to the possession of real estate. “Disseisin” thus meant the interruption of seisin or possession of land; and was the technical term applied to such violent acts of eviction as were likely to defeat the intention of Henry’s ordinance of the Grand Assize. “Novel” disseisin implied that such violent ejection was of comparatively recent date, for a summary remedy could only be given where there had not been undue delay in applying for it. The first of the petty assizes, then, was a rapid and peaceable method of ascertaining by reference to sworn local testimony whether an alleged recent eviction had really taken place or not. Without any of the law’s delays, without any expensive journeys to the king’s Court or to Westminster, but in a rapid manner and in the district where the lands lay, twelve local gentlemengentlemen determined upon oath all allegations of this nature. If the recognitors 324of the petty assize answered “Yes,” then the evicted man would have “seisin” immediately restored to him, and along with “seisin” went the valued option of determining what proof should decide the "ownership"—whether it should be battle or the Grand Assize. An ordinance instituting this most famous of the three petty assizes was issued probably in 1166, a year fertile in legal expedients, and formed a necessary supplement to the ordinance of the Grand Assize, preventing all danger that the option intended for the man of peace should be usurped by the man of violence.^[560]

(b) The assize of mort d’ancestor. The protection afforded to the victim of a “novel disseisin” did not remove all possibility of justice miscarrying. Interested parties, other than the man forcibly ejected, even his heirs, were left unprotected. Further, an heir might be forcibly deprived of his tenement either by his lord or by some other rival claimant before he had an opportunity to take possession; never having been “in seisin,” he could not plead that he had suffered “disseisin.” For the benefit of such an heir, a second petty assize, known as "mort d’ancestor," was invented.^[561] This is mentioned in article 4 of the Assize of Northampton, an ordinance issued by Henry in 1176; and this earliest known reference probably marks its origin. Procedure, essentially similar to, though not quite so speedy or informal as, that already described was thus put at the heir’s disposal. If successful, he took the lands temporarily, subject to all defects in his ancestor’s title, leaving as before the question of absolute ownership to be determined (if challenged) by the more cumbrous machinery of the Grand Assize.

325(c) The assize of darrein presentment. Advowson or the right of appointing the incumbent to a vacant church benefice was then, as now, a species of real estate. Such patronage was highly prized, affording as it did an opportunity of providing a living for a younger son or needy relative; or it might be converted into ready cash. Disputes often arose both as to the possession and as to the ownership of advowsons. Any one who claimed the absolute right or property as against the holder must do so by battle or the Grand Assize, exactly as in the case of any other form of real estate; and the Charter says nothing on this head.^[562] On the other hand, the less vital question of possession might be more rapidly determined. If a benefice fell vacant, and each of two proprietors claimed the patronage, the Church could not remain without a shepherd, for years perhaps, until the question of title was decided. No; the man in possession was allowed to make the appointment. But who was the man in possession? Clearly he who had (or whose father had) presented a nominee to the living when the last vacancy occurred. Even here there was room for dispute as to the facts. Twelve local men decided which claimant had actually made the last appointment (the “darrein presentment”); and the claimant thus preferred had a legal right to fill up vacancies, remaining in possession until someone proved a better title by battle or the Grand Assize.

All three forms of the petty assize were merely new applications by Henry Plantagenet of the royal procedure known in England, since the Norman Conquest, as inquisitio or recognitio.^[563]

III. The Assizes in 1215. The petty assizes, when invented by Henry II., were resented bitterly as innovations; 326but public opinion, half a century later, had abundantly vindicated the wisdom of this part of his reforms. The insurgent barons in 1215 were far from demanding their abolition; their new grievance was rather that sessions of the justices of assize were not held often enough. They prescribed the way in which these assizes, now grown so popular, were to be held, and several points were specially emphasized. (1) No inquiry of the kind was to be held elsewhere than in the county where the property was situated. Justice was in such cases to be brought to every landowner’s door, although pleas of the Crown might still follow the king, and ordinary common pleas had to be taken to Westminster. This was intended to save expense and to meet the convenience of litigants, of those who served on assizes, and of all concerned.^[564] Within two years, however, it was seen that this provision went too far. It was more convenient to hold certain inquiries before the Bench at Westminster than in the particular locality. The reissue of 1217 therefore made two important modifications: (a) All assizes of darrein presentment were thereafter to be taken before “the Justices of the Bench.” (b) Any assize of novel disseisin or of mort d’ancestor revealing points of special difficulty, might also be reserved for the decision of the Bench. An element of uncertainty was thus introduced, of which the Crown took advantage. In a reported case of the year 1221 it was decided that an assize of mort d’ancestor should be held in its own county, not at Westminster.^[565]

(2) John’s Charter further insists on quarterly circuits of Justices of Assize; so that litigants in every county of England might have four opportunities each year of 327having their disputes amicably settled. Such excessive frequency was quite uncalled for, and involved unnecessary expense on the king, and an amount of labour on his officers out of all proportion to the good effected. The Charter of 1217, accordingly, provided that a circuit should be made only once a year. In 1285, however, it was enacted that they might be held three times a year, but not oftener.^[566]

(3) The Charter speaks of the two justices and of the four county knights, but says nothing of the twelve knights from the immediate neighbourhood of the disputed property. The omission has no special significance. Magna Carta had no directions to convey on this matter, and therefore it kept silence; but the presence of the twelve must have been presumed, since their verdict formed the essential feature of the entire procedure.^[567] The twelve formed the jury, and the two justices were the judges, while the chief duty of the four was to select the twelve. The chapter directed the justices “to hold the assizes along with the four knights”; but it does not appear whether the latter were to sit as local assessors of the court, or to serve along with the twelve recognitors, or to act as a link between the two.