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, but in others their position was worse. Not only had they to satisfy demands of their own lord for “aids,” but part of every burden laid by the King upon that lord’s shoulders was transferred to theirs. In seeking to protect under–tenants, Magna Carta looked, not to the common council, but to the King. No mesne lord could compel his tenants to contribute to his necessities without written licence from the Crown; and the Crown was now forbidden to issue 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 admitted right of private war, and was 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 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” for 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 in 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 consent to an aid of 20s. per fee on his daughter’s marriage. No such obligation, however, had been placed on mesne lords by Magna Carta, which had sought a practical substitute for “the common counsel of the realm” in a different direction.

(3) A check upon such exactions was sought, not in the court baron, but in the 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. 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, sold writs to every needy lord who proposed to enrich himself at his tenants’ expense. Magna Carta forbade the two tyrants thus to combine against sub–tenants, enunciating a hard–and–fast rule which, if duly observed, would have struck at the root of the grievance: no writ could be lawfully issued except on the three well–known occasions.