cc. 12 and 14, while on the other it is merely a particular

application of the general principle enunciated in c. 60, which extended to sub-tenants all the benefits secured to Crown tenants by previous chapters.

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.

Footnote 518:

The exemptions enjoyed by them are explained under c. 43.

(1) While chapter 12 had spoken of “aids and scutages,” this one speaks of “aids” alone. The omission can be readily explained: a mesne lord in England had no right of private war, and was, as a logical consequence, debarred from demanding scutage upon his own initiative. He might, indeed, allocate upon his freeholders part of any scutage which the Crown had taken from him; but the great barons who framed the Charter had no intention to renounce so just a right. The restriction of this clause to “aids” was thus intentional.

(2) It would have been absurd to require “the common counsel of the realm” to every aid paid by the freeholders of a manor. The embryo Parliament had no time for petty local affairs; and the present chapter makes no such suggestion. Some substitute had, however, to be found. A natural expedient would have been to compel the mesne lord who wished an aid to take “the common consent” of the freeholders of his manor, assembled for that purpose in their court baron, as in a local parliament. This course was sometimes followed. Henry Tracey, for example, in 1235 (although armed with a royal writ), convened his Devonshire knights and obtained their collective consent to an aid of 20s. per fee on the occasion of his daughter’s marriage.[519] No such obligation, however, had been placed upon mesne lords by Magna Carta, which had sought a practical substitute for “the common consent of the realm” in quite a different direction, as will be explained immediately.

Footnote 519:

See Bracton’s _Notebook_, case 1146, cited by Pollock and Maitland, I. 331.

(3) A check upon such exactions was sought, not in any action by the court baron, but in the mesne lord’s need for a royal licence. The necessity for this may at first have been a practical, rather than a legal, one; for executive power lay with the officers of the Crown alone, and the sheriff gave his services only at the king’s command.[520] The Crown thus exercised what was virtually a power of veto over all aids taken by mesne lords. Such a right, conscientiously used, would have placed an effectual restraint on their rapacity. John, however, employed it solely for his own advantage, selling writs to every needy lord who proposed to enrich himself (and, incidentally, the Crown also) at his tenants’ expense.

Footnote 520:

In theory, in Henry II.’s reign at least, a royal writ was _not_ required in the normal case. See _Dialogus_, II. viii., and the editors’ comment (p. 191): “Normally the levying of money under any pretext from a land-owner gave him a right to make a similar levy on his under-tenants.” As regards _scutage_, a distinction was recognized. The lord who actually paid scutage might collect it from his sub-tenants without a licence; but, if he served in person, he could recover none of his expenses except by royal writ. See _Ibid._, and cf. Madox, I. 675. It is necessary, however, to avoid confusion between two types of writ, (_a_) that which merely authorized contributions, _e.g._, _de scutagio habendo_; (_b_) that which commanded the sheriff to give his active help.

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]

Footnote 521:

Cf. Pollock and Maitland, I. 331: “The clause expunged from the Charter seems practically to have fixed the law.”

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]

Footnote 522:

_Close Rolls_, I. 306, cited Pollock and Maitland, I. 331.

(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 lord.[523] (_b_) A royal writ in 1235 allowed Henry Tracey, as already mentioned, to take an aid for his eldest daughter’s marriage.

Footnote 523:

_Patent Rolls_, 5 John, cited Madox. I. 615.

(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]

Footnote 524:

_Close Rolls_, 7 John, cited Madox, I. 616.

Footnote 525:

See Glanvill, IX. 8.

Footnote 526:

See Round, _Commune of London_, 130.

Footnote 527:

See Madox, I. 617, citing _Patent Rolls_, 18 Henry III. Various other examples are given by Pollock and Maitland, I. 331, _e.g._ “the earl of Salisbury, to enable him to stock his land.”

Footnote 528:

_Supra_, p. 303, and cf. Pollock and Maitland, I. 331.

Footnote 529:

See Madox, I. 677.

The 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.