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confirm the previous custom. The king had not the right to levy a feudal aid by his own authority except in the three fixed cases; outside these three cases he had to consult his barons and tenants-in-chief. John Lackland had ignored this usage, or at least he had levied at his discretion, almost every year, a tax, the scutage, to which Henry II. had only resorted seven times and at a more moderate rate. The barons, as the wording of the clause proves, considered scutage as a sort of aid, and the uncertainty of terminology justified them in doing so. In any case the object of article 12 was to remind the king of the custom which regulated the feudal aid in the three cases, and to submit scutage expressly to the same restrictions. When John Lackland had disappeared, this clause was not reproduced in the confirmation of the Great Charter granted on the 12th of November, 1216. We must not conclude from this that the question had no importance in the eyes of the barons, for it was said in article 42 of that confirmation that, upon divers grave and doubtful clauses of the Great Charter, notably on the levy of scutages and aids, more ample deliberation was to be taken.1 It was perhaps the assimilation of the scutage to the feudal aid in the three cases, which was contested by the king's advisers. However this may be, in the confirmations of 1217 and of 1225, clause 12 was replaced by the following one in which no mention is

Text adopted in the confirmations

made of the feudal aid in the three cases: "That scutage be henceforth taken as it was accustomed to be taken in the time of

King Henry II."2 This wording clearly proves that the barons had no idea of a parliamentary system, and only wished to be secured, in some way or other, against the too frequent return and the raising of the rate of scutage. Article 14 of the document of 1215, touching 1. "Quia vero quedam capitula in priori carta continebantur que gravia et dubitabilia videbantur, scilicet de scutagiis et auxiliis assidendis. (Bémont, p. 58, n. 4).

2. Article 37 (Bémont, p. 57).

the summons of the Common Council is not to be found again in any of the confirmations, and our opinion is that it had been introduced into the Great Charter by desire of the king,1 and not in the least by desire of the barons. The more so as it does not figure in the Articles of the Barons.

The Great
is not

a national

The Great Charter of 1215, as we see, was not a political statute, inaugurating constitutional guarantees unknown until then. On the other hand, far from being a national work, it was manifestly conceived in the interests of a class. What is to be our conclusion? Sir Frederick Pollock and Mr. Maitland, after having pointed out a great number of defects in the Great Charter, add: "And yet with all its faults this document becomes, and rightly becomes, a sacred text, the nearest approach to an irrepealable, 'fundamental statute' that England has ever had. For in brief it means this, that the king is and shall be below the law.' 2 That again, it seems to us, is to assign too glorious a rôle to the baronage of John Lackland and to its political conceptions, which are childish and anarchical. The English nobility of that day has not the idea of law at all. Powerless to prevent the growth of a very strong royal power which has enveloped the country with the network of its administration and its courts, it seeks only to secure itself against financial exactions and the violence of a cruel and tyrannical king. It does not succeed in discovering, and it perhaps does not seek for

1. The end of the clause specifies that "the business should be transacted on the day assigned, by the counsel of those who are present, although all the persons summoned are not come." This is a precaution taken by the king against those who claimed only to pay the tax if they had consented to it in person, and the insertion of this rule is doubtless the principal motive which dictated the insertion of the article. No one, besides, thought that the consecrated usage of the Common Council could be abolished and when article 14 disappeared from the confirmations of the Great Charter, assemblies of barons and prelates continued none the less to be convoked.

2. History of English Law, i, p. 173.

Does not

organise the reign of law

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any legal" means of controlling his acts and preventing abuses, it does not think of organising the "Common Council," it forgets even to speak of it in the Articles which it asks the king to accept. In order to force the king to respect his engagements, what expedient does it devise? The most naïf, the most barbarous procedure, Appeal to the procedure of civil war: "The barons civil war shall elect twenty-five barons of the kingdom, who shall with all their power observe, keep and cause to be observed the peace and liberties granted, and in case of need, if the king refuse to repair the wrongs he has committed, "compel and molest him in every way that they can, by taking of his castles, of his lands and of his possessions" with the aid "of the commune of all the land," that is to say, with the aid of all those who are accustomed to bear arms. There is no question, in the Great Charter of John Lackland,1 of the reign of law; it is merely a question of engagements taken by the king towards his nobles, respect for which is only imposed on him by the perpetual threat of rebellion.


importance of the Great Charter

The importance of the Great Charter is in reality due to its fullness, its comprehensiveness, to the variety of the problems which it attempts to solve. Reasons of the It does not differ fundamentally from the charters of liberties which preceded it in the twelfth century, but it is much more explicit. It is five times longer than that of Henry I., it regulates a much greater number of questions, and, being posterior to the capital reforms of Henry II., it is more adapted to the conditions of life and to the state of Law. In passing, and

1. It is quite understood that our remarks cannot apply in their entirety except to the Great Charter of John Lackland. The clause respecting the twenty-five barons has disappeared from the Great Charter of 1225, which has a constitutional importance of the first order, while it is less interesting and less characteristic in the eyes of the historian than that of 1215.

accessorily it enunciates in favour of chartered towns, the merchants and the seignorial villeins, certain promises of which there is no question in the documents conceded at their accession by Henry I., Stephen and Henry II.; although we must reduce the scope of these clauses to its just proportions, the share here assigned to civic liberties is evidently a new and striking fact. Finally, the Great Charter was the result of a celebrated crisis. The aristocracy in arms wrested it by main force from a prince as redoubtable by his intelligence as by his vices, and its publication was followed by a terrible civil war, which ended in its solemn confirmation. It thus became a symbol of successful struggle against royal tyranny; men have discovered in it, in the course of centuries, all sorts of principles of which its authors had not the least notion, and have made of it the "Bible of the Constitution." 1 False interpretations of some of its articles have not been without influence on the development of English liberties. There is no need to seek elsewhere the causes of its success in the Middle Ages and of its long popularity in modern times.

1. Speech of William Pitt, quoted by Bémont, Chartes, p. lxix, note 1.




Aids, regulated by the Great Charter, 101-102, 127, 141, 142; see

Alodium, 52.

Anglo-Saxon and Norman institutions, divergences between, 66.
Armies, Anglo-Saxon, 58; Norman, 59 sqq.

Articuli Baronum, 117, 118, 143.

Auxilium burgorum, 98, 102, 153.

Barons, the, their origin, 53-4; meaning of the word in the 11th century,

61 note 1; the barons and the Great Charter, 129 sqq.

Barony, nature of a, 63.

Bede, alleged allusion to Folkland by, 33.

Bookland, 31.

Borough, employment of the word, 71; impossibility of defining it

exactly, 68 sqq.

Boroughs, the heterogenous, 79; the homogeneous, 80; "garrison theory"
of origin of heterogeneous, 78.

Breteuil, influence of customs of, in England, 88.

Britons, see Celts.

Bruges, a typical castle-formed town, 77 note 1.

Burgage, tenure in, 58, 70.

Burgenses, 79, 80, 81.

Burh-bot, 80.

Burh-geat-setl, 39 sqq.

Burhs, meaning of the term, 70, 74, 75, 77-8.

Cambray, example of conspiratio, 94-5.

Carucage, 141.

Castles, origin of certain towns, 76.

Celts, Celtic elements in the origins of the manor, 10 sqq.

Ceorl, 7, 14, 24.

Charter of Liberties, the alleged Unknown, 116.

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