In spite of the immense constitutional prestige enjoyed by Magna Carta, that historical document played little or no part in the development of parliament. It was there ordained that no scutage or aid, except the three regular feudal aids, should be im posed, save by the common council of the realm. To this council the archbishops, bishops, abbots, earls and greater barons were to be summoned personally by the king's letters, and the lesser tenants in chief by a general writ through the sheriff. The sum mons was required to appoint a certain place, to give 4o days' notice at least, and to state the cause of meeting.
This council was in no sense a modern parliament nor was it intended to be. Magna Carta has been truly described as "a very feudal document," how feudal McKechnie has forcibly shown in his standard commentary. By these clauses the tenants-in-chief protected themselves from arbitrary taxation by the Crown with out their "common counsel," but they did not thereby preclude themselves from taxing their own mesne tenants. It is only when later kings begin, of their own initiative, to summon representa tives of the shires and boroughs to attend meetings of the common council to grant a tax that the "Commons" come into existence. And there can be no doubt that Maitland is right when he traces the origin of the "Commons," and the principle of representation which their summons implied, to the adaptation of the pre-existing institution of the jury to that purpose. Originating as a fiscal instrument for valuation of land, as in Domesday Book, or for assessment to the first tax on personalty, as in the case of the Saladin tithe, the jury was extended to the "presentment" of crimes by Henry II. and, as such, it represented the township, the borough and the "hundred" in the "county court." It was originally elected and from this it was but a step to summoning elected representatives of the counties and boroughs to Westminster.
But it must be remembered that the idea that the consent of the local communities or "communes" of county and borough to taxation is necessary is of very late growth. The juries of neighbours who were summoned to assess the people under the Saladin tithe were assessing a tax to which their consent was neither asked nor required. A definite departure was made when, in 1265, Simon de Montfort, the leader of the revolt against Henry III., summoned to Lewes a national assembly which was distinctive in that writs were issued not only to the knights of the shire, who had occasionally been summoned before, but to representatives of the boroughs. It was a revolutionary assembly . but none the less it established a precedent.
The transition period between Simon de Montfort's parliament of 1265 and the "model parliament" of 1295 was long a puzzle to historical students, since, except for two provincial councils in 1283, no traces were found in the records, between 1265 and 1295, of the representation of cities or boroughs, or of repre sentation of the counties between 1275 and 129o. But in 1910 C. Hilary Jenkinson (see English Historical Review, for April) found in the Record Office some old documents which proved to be fragments of three writs and of returns of members for the Easter parliament of 1275. They make it certain that knights of the shire were then present, and that burgesses and citizens were summoned (not as in 1265 through the mayors, but as since 1295 through the sheriffs). The importance of the 1295 parlia ment thus appears to be smaller in English constitutional history, the full reforms appearing to have been adopted 20 years earlier. It is noteworthy, however, that in the writs of 1275 the instruc tion to the sheriff is "venire facias," not "elegi facias." In 1295 these precedents were followed with a parliament summoned by Edward I. which was long regarded as the first "model parliament." But as an institution it had yet to make its footing good as the exclusive authority on taxation. In legislation it was long subject to competition by the king's council and by the "Great Council." (See PRIVY COUNCIL.) The "Great Council"
continued to be summoned not infrequently without the issue of writs to the Commons, and this is the test applied in peerage cases to determine whether the descendant of a baron summoned to a national assembly has made out his claim to be a "lord of parliament." (See the St. John Barony case, 1915, A.C. 305, where it was held that a national assembly of I290 was not a parliament, in spite of its having passed the "Statute" of Quia Emptores, because the Commons were not summoned.) Secession of the Clergy.—It formed part of Edward's policy to include the clergy in his scheme for the representation of all orders and classes of his subjects. They were summoned to attend the parliament of 1295 and succeeding parliaments of his reign, and their form of summons has been continued until the present time; but the clergy resolutely held aloof from the national council, and insisted upon voting their subsidies in their own convocations of Canterbury and York. The bishops retained their high place among the earls and barons, but the clergy sacrificed to ecclesiastical jealousies the privilege of shar ing in the political councils of the State. As yet, indeed, this privilege seemed little more than the voting of subsidies, but it was soon to embrace the redress of grievances and the framing of laws for the general welfare of the realm. By the 17th century the clergy definitely lost their power of separate taxation and were included in the grant made by the Commons Meanwhile the Commons, unconscious of their future power, took their humble place in the great council of the realm. The knights of the shire, as lesser barons, or landowners of good social standing, could sit beside the magnates of the land without constraint ; but modest traders from the towns were overawed by the power and dignity of their new associates. They knew that they were summoned for no other purpose than the taxing of themselves and their fellow townsmen; their attendance was irksome; it interrupted their own business; and their journeys exposed them to many hardships and dangers. It is not surprising that they should have shrunk from the exercise of so doubtful a privilege. Considerable numbers absented themselves from a thankless service; and their constituents, far from exacting the attendance of their members, as in modern times, begrudged the sorry stipend of 2S. a day, paid to their representatives while on duty, and strove to evade the burden imposed upon them by the Crown. Some even purchased charters, withdrawing franchises which they had not yet learned to value. Nor. in truth, did the representation of towns at this period afford much protection to the rights and interests of the people. Towns were enfran chised at the will or caprice of the Crown and the sheriffs; they could be excluded at pleasure; and the least show of indepen dence would be followed by the omission of another writ of summons. But the principle of representation (q.v.), once estab lished, was to be developed with the expansion of society; and the despised burgesses of Edward I., not having seceded, like the clergy, were destined to become a potential class in the parliaments of England. Eventually, in 1624, the principle that once a writ had been issued to a borough to send representatives to parliament, and obeyed, it could no longer be withheld was established and thereby the independence of the Commons was secured. The Crown, however, retained the prerogative to in corporate new boroughs with parliamentary representation and thus, in days when there was no such thing, except in the case of the counties, as a common franchise, the Crown could by the charter of incorporation create what franchise for the borough it pleased. The Tudors made free use of this prerogative to "pack" the Commons, but in the reign of Charles II. it fell wholly into desuetude.