THE STUARTS, 1603-1689 236
Divine right as against Parliamentary supremacy--James I
dictates the composition of the House of Commons--Tunnage and
poundage for life--Royal poverty--The Bate Case--Opinions of
the Barons in the Bate Case--The position of Parliament--The
Book of Rates--Remonstrance from the Commons--Cowel’s
“Interpreter”--The Great Contract--Petty extortion after the
dissolution of Parliament--The “Addled” Parliament--Case
of Oliver St. John--James’s Third Parliament--Delay
of a supply pending redress of grievances--Revival of
impeachment by the Commons--James’s last Parliament--Charles
I--His early Parliaments--Forced loans--Threats of
non-Parliamentary exaction--The Petition of Right--Omission
of the customs--Tunnage and poundage--Charles’s eleven
years without Parliament--His financial expedients--Ship
Money--Extra-judicial opinions--Hampden’s Case--Judgment for
the Crown--The Short Parliament--The Long Parliament--Royal
exaction of tunnage and poundage declared illegal--The
Ship Money Act--The Grand Remonstrance--The Puritan
Revolution--Charles II--Appropriation of Supplies--James
II--William and Mary--The Bill of Rights.
INDEX 309
PARLIAMENTARY TAXATION
I
THE SAXONS: CUSTOMARY REVENUES AND EXTRAORDINARY CONTRIBUTIONS
[Evolutionary character of the English Constitution]
THE English Constitution looks ever backward. Precedent lies behind
precedent, law behind law, until fact shades off into legend and that
into a common beginning, the Germanic character. Standing upon the
eminence of 1689, one sees the Petition of Right, and then in deepening
perspective, Confirmatio Cartarum and Magna Carta. The crisis of 1215
points to the Charter of Henry I, and behind that are the good laws of
Edward the Confessor. The Anglo-Saxon polity looks back of the era of
Alfred, to the times when Hengist and Horsa were yet unborn, and the
German tribesmen were still living in their forests beyond the Rhine
without thinking of migrating westward. And there, behind the habits of
those barbaric ancestors of Englishmen, lies the national character,
the Anglo-Saxon sense of right and wrong, of loyalty, justice, and
duty. The growth of the English Constitution has been as subject to
the laws of evolution as the development of man himself. The germ of
national character evolved habits of thought and action, and these
habits, or as they are better termed, institutions, were beaten upon by
conditions and fused with the institutions of another people, until at
last they took on the shape of free government.
[Early ideas of taxation]
[Amongst the Germans]
An account of the advance toward the laying of taxes by representatives
of the people must begin with some notice of the idea of taxation which
actuated the German tribesmen. Tacitus writing of them as they were at
the beginning of the Second Century A. D. makes this remark: “It is
customary amongst the states to bestow on the chiefs by voluntary and
individual contribution a present of cattle or of fruits, which, while
accepted as a compliment, supplies their wants.”[1] Here, then, is the
earliest idea of a tax, a voluntary contribution for the support of the
_princeps_. It was prompted by the essentially personal relationship
existent between people and chieftain, the sense of attachment of the
people to the leader. Direct taxation laid by the _princeps_ upon the
tribe, was as unknown in Germany as it was foreign to the Germanic
spirit.
[Amongst the Anglo-Saxons]
When the conquering Saxons, therefore, swept westward across the
German Ocean, they carried with them scarcely more than a semblance
of taxation. Between men and leader the personal relationship still
subsisted, but as time went on, the Anglo-Saxon king became less
the father of the people, and more their lord. Lord of the national
land he was as well, but he did not rule by reason of that fact. The
two claims upon popular support were therefore distinct, the one as
personal leader, the other as lord of the national land; and during the
major part of the Anglo-Saxon era they afforded a sufficient means for
the maintenance of the king and his government. Until the moment of a
supreme emergency the king did not have to seek extraordinary sources
of income.
[Revenue of the Anglo-Saxon kings]
As lord of the national land, the king had a double source of revenue.
The folkland, or land subject to national regulation[2] and alienable
only by the consent of the Witenagemot, presented the king with its
proceeds, much of which went for the maintenance of the royal armed
retainers and servants. Deducible from this right to the public lands,
was the claim of the king to tolls, duties, and customs accruing from
the harbors, landing-places, and military roads of the realm, and
to treasure-trove. Aside from this, the king was one of the largest
private landowners in the kingdom, and from it he derived rents and
profits which were disposable at will.
The other sources of the royal revenue, which at least in the
beginning may be said to have accrued to the king by reason of
personal obligation, were the military, the judicial, and the police
powers. By reason of the military power vested in him, the king
could demand the services of all freemen to fulfill the _trinoda
necessitas_,--service in the militia, repair of bridges, and the
maintenance of fortifications. Further, in accordance with the
system of vassalage incident to his military power, he had the right
of _heriot_,[3] according to which the armor of a deceased vassal
became the property of the king. The judicial authority, also, was a
fruitful source of income; from it the king adduced a right to property
forfeited in consequence of treason, theft, or similar crimes, and to
the fines which were payable upon every breach of the law. The third
great power vested in the royal person was the police control; under
it the king turned to account the privilege of market by reserving
to himself certain payments; also the protection offered to Jews and
merchants was paid for, and the king pocketed the bulk of the tribute.
Beyond these,--and here we have the analogy of the later royal claim
to purveyance,--the districts through which the king passed or those
traversed by messengers upon the king’s business, lay under obligation
to supply sustenance throughout the extent of the royal sojourn.
[Danegeld, 991]
It is apparent that an extraordinary occasion had to arise before
this large ordinary revenue should prove to be inadequate to meet
all reasonable royal necessities. The whole matter is shrouded in
obscurity, yet it is unlikely that this extraordinary occasion arrived
before the onslaught of the Danes. There is no record of an earlier
instance.
It was in 991[4] that the Saxon army under Brihtnoth, Ealdorman of the
East Saxons, suffered decisive defeat at the hands of Danish pirates.
King Ethelred the Unready found himself at the mercy of foreign
enemies, and his only recourse was bribery. Under this necessity, a
levy[5] of £10,000 was made, and secured momentary peace from the
truculent Danes. But it was only momentary; they returned in 994
and took away £16,000. They repeated, under various pretexts, their
profitable incursions in 1002, 1007, and 1011.[6] In 1012, having
been bought off for the last time, the Danes entered English pay,
and the Danegeld instead of being an extraordinary charge, became a
regularly recurrent tax. It continued until 1051, when Edward the
Confessor succeeded in paying off the last of the Danish ships.[7] The
chronicler[8] accounts for the abolition of the Danegeld after the
manner of his time. Edward the Confessor, so goes the story, entered
his treasure-house one day to find the Devil sitting amongst the money
bags. It so happened that the wealth which was being thus guarded was
that which had accrued from a recent levy of the Danegeld. To the pious
Confessor the sight was sufficient to demonstrate the evil of the tax
and he straightway abolished it.
[Authority for the Danegeld]
But the history of the origin of the Danegeld and the mythical tale of
its abolition are of trifling importance as compared with the authority
whereby the impost was laid. In 991 it was apparently the Witenagemot,
acting upon the advice of the Archbishop Sigeric, which issued the
decree levying the tax.[9] Three years later it was “King Ethelred
by the advice of his chief men” who promised the Danes tribute.[10]
Similarly in 1002, 1007, and 1011 it is Ethelred “cum consilio
primatum” who fixes the amount of money to be raised.[11]
The deduction is not hard to make: it was at least usual if indeed it
was not felt to be a necessity for the king to take counsel with the
Witenagemot before he went about the preliminaries of taxation. It
is not unlikely, however, that in practice the assent of the Witan
was less or more of a formality varying according to the weakness or
strength of the king. A strong king’s will would dominate the Witan,
whereas a weak king would be subservient to its desires and interest.
[The Witenagemot and its powers]
In order to arrive at a clear comprehension of the taxing power of
the Witan as compared with that subsequently exercised by the English
Parliament, it is essential that one understands the make-up of the
Anglo-Saxon body. As its name implies, the Witan was an assembly
of the wise. Its organization was not based upon the ownership of
land, nor was there any rule held to undeviatingly which prescribed
qualifications for membership. Generally speaking it was composed of
the king and his family, who were known as the Athelings; the national
officers, both ecclesiastical and civil, a group which included the
bishops and abbots, the ealdormen or chief men of the shires, and
the ministri or administrative officers; and finally, the royal
nominees, men who are not comprehensible in the above classes, but who
recommended themselves to the king by reason of unusual or expert
knowlege.[12] It is observable, then, that this assembly was by the
nature of its composition aristocratic. That it was not representative
in the modern sense of the term is as readily apparent. With certain
restrictions the official members--the bishops, ealdormen, the
ministri--were coöpted by the existing members, while the remainder
were either present by right of birth or invited to attend by reason
of peculiar attainment. Nevertheless, the Witenagemot was commonly
believed to be capable of expressing the national will. It had the
power of electing the king and the complementary power of deposition,
and exercised every power of government, making laws, administering
them, adjudging cases arising under them, and levying taxes for the
public need.[13]
Such in brief was the body which in 991 assented to the levy of the
Danegeld. The act was of great importance; by it the Witan both
exercised a right which was not to be vindicated in its completeness
for the space of seven hundred years, but it laid a trap for those
who, in the time of Charles the First, should be struggling for the
attainment of that right, for in their action lay the precedent
which the Stuart lawyers should warp into a pretext for the levy of
ship-money.
II
FEUDAL AND ROYAL TAXATION
THE NORMAN AND THE ANGEVIN KINGS
1066-1215
[Character of the Norman Rule]
UNDER the Saxon kings the structure of government was only half built.
The foundation, laid in the shire and hundred moots, the townships, and
the incidental organisms of local government, was solid and capable
of upholding a heavy superstructure. But the Saxons scarcely built
further. They left to the Norman kings, peculiarly fitted to their
work by temperament and habit, the task of setting up a strong central
government. The price which the nation paid for it was the loss of what
right it had possessed of assenting to taxation.
During the whole period from the coming of the Normans in 1066 to the
signing of Magna Carta in 1215 there can be brought forward only two
or three instances of assent by the National Council to taxes levied
by the king, and these few instances are at best equivocal. They
are insufficient to justify the belief that the National Council had
any final power over the levying of taxation. But the period is not
altogether gray; it concludes with the enunciation in Magna Carta of
rights which cast a halo of color over the whole subsequent narrative
of the struggle for parliamentary taxation.
[William the Conqueror 1066-1087]
William the Conqueror was precisely the man most likely to exercise
supreme control over taxation. Elected to the kingship according to
the Saxon forms and with his title to the crown backed up by force of
arms, he created a system of government of which he himself was the
center and in which his authority, even to the vassals of vassals, was
supreme.[14] With his thirst for power thus satisfied he was given a
free hand to indulge his besetting sin of avarice. Small wonder was it
therefore that he clung to the revenues of his predecessors and added
new imposts of his own.
[His National Council]
Nevertheless, notwithstanding the absolutist character of the king,
William retained the theory and for the most part the form of the Saxon
Witan. Never, however, did the Norman assemblies exercise independent
legislative or executive functions.[15] The holding of land, as a
prerequisite to membership in the National Council, was under William
an uncertain factor; the membership continued to include, generally
speaking, the same officers, ecclesiastics, and nobles as composed
the Witenagemot. The powers of this assembly were probably not great;
at any rate, the magnates of the period considered attendance not
as a right or a privilege or even as an advantage, but merely as a
necessary duty toward the royal person. The king consulted the magnates
on almost every piece of legislation, and stated in the subsequent
promulgation of the laws that he had obtained their advice. But in the
case of a strong king, such as was the Conqueror, the consultation
must have been scarcely more than a statement of the royal will and a
formal acquiescence. The holding of these assemblies took place at
the crowning days of the king, at Christmas, Easter, and Whitsuntide,
generally in London, Winchester, and Gloucester.
[Its part in taxation]
[Instance of the Danegeld, 1084]
In the matter of taxation, it is probable as in the case of other
legislation that the Conqueror advised with his Council, though the
evidence pointing toward such a conclusion is entirely of a later
date. But in so far as practical advantage to the payers of the taxes
was concerned, the power might quite as well have lain solely in the
hands of the king; if indeed the Conqueror did secure the assent of
the Council, it was no more than an instance of his policy of adhering
to the forms of law while making the practices under it serve his
own purposes. The reimposition in 1084 of the Danegeld which William
revived as an occasional instead of a regular tax, is not stated by
the chronicler as receiving assent from the Council; the king is
said to have “received six shillings from every hide.”[16] Roger of
Wendover’s Chronicle of the same year brands this exaction as an
“extortion,”[17] by which we are scarcely to understand a tax granted
in any modern sense by the chief legislative body of the kingdom. The
Saxon Chronicler speaking of the same imposition says, “The king caused
a great and heavy tax to be raised throughout England, even seventy-two
pence on every hide of land.”[18] The amount of such an impost, if
drawn from two-thirds of the hidage of the kingdom, would be a sum
approximating £20,000.[19] It is unlikely that an exaction of so great
magnitude could have been levied without the assent of the Council if
the Conqueror was under any obligation to obtain their consent or even
their advice; and it is still more unlikely that four chroniclers of
the events of that year should have let pass unnoted a vote of assent
if it had been passed by the National Council. We are therefore to
conclude that either the Conqueror levied the tax without consulting
his Council at all, or that he did consult them, and that their assent
was of so formal and valueless a nature as not to deserve notice in the
records of the year.[20]
[Domesday Survey, 1086]
The year 1086 witnessed the Domesday Survey. By it William obtained a
detailed register of the land and its capacity for taxation. To the
administrative side of taxation the Survey is of supreme importance,
since the valuation of land thus arrived at was never entirely
superseded as a definite and fair basis for the laying of taxes; to
the actual granting of the tax, however, its importance is of much
less degree. In such light the interest centers chiefly on the fact
that representatives were elected from every hundred upon whose sworn
depositions the information that William wanted was obtained.
[William Rufus, 1087-1100]
The unlucky thirteen years of the reign of William Rufus, who succeeded
to the throne upon the death of the Conqueror in 1087, are almost
negligible in considering the progress toward parliamentary taxation.
William Rufus, or more particularly his brilliant and perverted
justiciar, Ranulf Flambard, determined upon the profitable program of
getting together as much money as possible by whatever means seemed
most convenient. In the nature of things the church and the great
feudatories were the most available sources for extortion and toward
them Flambard chiefly directed his energies. He did not, however,
overlook the Danegeld and he seems to have levied it with perfect
absolutism. The chronicler Florence gives an instance of the petty
extortion which the justiciar practiced upon the people. Flambard was
in the habit of enforcing military service from the shires. On one
occasion, so says Florence, he met the array, informed the militiamen
that there was no necessity for their appearance, and then proceeded to
mulct them of the ten shillings which their shires had given to each by
way of providing for their maintenance.[21] Against plunderings of that
sort the people were too weak and too disunited to make resistance. In
such a reign, with one side unwilling to progress and the other unable,
it is apparent that no steps could be taken toward the granting of
taxes by a responsible body.
[Henry I, 1100-1135]
The reign of Henry I is of greater importance, not only because of
the long forward strides which the king and his justiciar Roger of
Salisbury took in the direction of judicial and financial organization,
but because we find in the records of his time certain pieces of
evidence which seem to support the contention that the Council gave
some measure of consent to taxation. The former is palpably beyond the
scope of this essay, but the latter is more pertinent.
[His Charter]
The first of these instances is the eleventh section of the Charter
of Liberties which Henry I issued at the moment of his accession. The
significant passage is this: “To those knights who hold their lands by
the cuirass, of my own gift I grant the lands of their demesne ploughs
free from all payments and all labor.”[22] The king goes on to state
the reason; it was “so they may readily provide themselves with horses
and arms for my service and for the defense of my kingdom.” The relief
thus granted was by way of protection against the extortionate demands
which Ranulf Flambard had laid upon the lands of vassals in the time
of William Rufus. But Henry did not grant the liberty freely out of
hand. He appended the clause that for his service and the defense of
the kingdom, the vassals should supply themselves with horses and arms.
Thus remotely and in effect rather than in fact did the Charter touch
upon taxation. It contained no reference to assent by the vassals,
either individually or in the National Council. In accordance with the
feudal theory of individual contribution for the support of the lord,
and in view of the provision in the Charter against payments, the
inference can be drawn that individual assent would be in order. But to
find an answer to the question as to where the collective assent of the
barons was obtained, if at all, one must look further.
[Question of assent to taxation]
[In the Shire Moots]
In a letter addressed to “Samson the Bishop and Urso d’Abitat,” who
were respectively the bishop of the diocese and the sheriff of the
county of Worcester, Henry says, in speaking of the county courts, “I
will cause those courts to be summoned when I will for my own proper
necessities at my pleasure.”[23] That these county courts were utilized
by the Norman kings for purposes of extortion, is attested by the
reluctance of the suitors to attend their sessions,[24] and in the
light of that fact, the “proper necessities” of the king are apparently
none other than the royal need for money. But why, if the assent of
the taxed was not required, should the courts be summoned to meet the
“proper necessities” of the crown? Would that purpose be subserved
merely by making a demand for money? Had that been the fact, the
courts might well have been left to carry on their peculiar functions
untroubled, for extortion can be the more readily practiced king to man
than king to people. The conclusion is reasonable, notwithstanding the
very large part which conjecture plays in it, that some form of assent
was usual in the county courts in response to the royal demands.
[In the National Council]
But there is another piece of evidence which points to the National
Council itself giving assent to taxation. In the Chronicle of the
Monastery of Abingdon occurs a quotation of an order from Henry to his
officers exempting the lands of a certain abbot from the payment of an
“aid which my barons have given me.”[25] Whether or not this statement
can be taken as substantiating the theory of assent depends upon a
point of time; was the gift of the barons before or after the laying of
the tax? If the gift was indeed prior to the levy, then the evidence is
conclusive that the barons assented to taxation; if, on the other hand,
the barons gave the aid after the levy had been made, the statement
refers solely to the actual payment of the tax. The tense of the Latin
verb, however, and the circumstances in which the king writes, seem
to point to the former alternative; Henry directs that the Exchequer
exempt the abbot’s lands from the collection of an aid, not which the
barons were giving him, but which they have given him. It is possible
to infer, then, that sometimes, at least, the barons formally assented
to the levying of an extraordinary aid.
But this assent must not be taken as proof that the barons discussed
taxation in formal session or that they had any generally recognized
power of choice. None of the records of the time, though they speak
emphatically of the oppressiveness of the taxes,[26] suggest that at
any time the barons refused to give the king what he asked for. The
probability is that Henry I sought baronial assent merely as a matter
of form, and that he did it out of respect, more or less conscious, for
the theory that contributions of a feudatory toward the support of the
crown should be of a nature voluntary. The perfunctory character of the
assent, together with the absence of evidence looking to a refusal,
points to nothing so much as the firmness of the royal grip upon the
purses of the nation.
[Stephen, 1135-1154]
During the major part of King Stephen’s nineteen turbulent years,
feudalism and anarchy ran hand in hand. Such progress as had been
making toward parliamentary taxation ceased. Stephen showed himself an
adept at misgovernment and succeeded in nothing so well as in his own
discomfiture.
Things went by contraries. Stephen allowed the nobles to make
themselves impregnable in the royal castles and then sought to
dislodge them by raising up a new and hostile baronage. The nobles,
needing money to carry on war amongst themselves and against the king,
extorted it from the people. “Those whom they suspected to have any
goods they took by night and by day, seizing both men and women,” says
the Saxon Chronicle,[27] “and they put them in prison for their gold
and silver, and tortured them with pains unspeakable, for never were
martyrs tormented as these were.” And then, “They were continually
levying an exaction from the towns, which they called Tenserie (a
payment to the superior lord for protection), and when the miserable
inhabitants had no more to give, then plundered they and burnt all the
towns, so that well mightest thou walk a whole day’s journey nor ever
shouldest thou find a man seated in a town, or its lands tilled.”
Henry of Huntingdon adds a detail which fills out the picture of
wretchedness. Speaking of Stephen’s promise to abolish the Danegeld
in 1135, shortly after his accession, the chronicler says, “The king
promised that the Danegeld, that is two shillings for a hide of land,
which his predecessors had received yearly, should be given up forever.
These ... he promised in the presence of God; but he kept none of
them.”[28]
[Henry II, 1154-1189]
By the treaty of Wallingford in 1153, Stephen agreed that the crown
should descend at his death to Henry of Anjou,[29] the son of the
Empress Matilda, and great-grandson of the Conqueror. The treaty
provided, also, for comprehensive reforms which Stephen, a melancholy
figure in contrast with the vigorous Henry, tried to work out. Stephen
died at the end of a year’s attempt to put in operation the new
programme and Henry came to the throne. Henry’s reign was marked by a
regular and peaceful administration of the government which had its
rise in the genius of the king for organization. It witnessed too the
struggle with Thomas à Becket, a conflict which has been pointed to as
“the first instance of any opposition to the king’s will in the matter
of taxation which is recorded in our national history.”[30]
[Controversy with Becket over the Sheriff’s Aid]
The story of it is full of dramatic interest. At the Council of
Woodstock in 1163, “the question was moved,” so goes the Latin
narrative, “concerning a certain custom.” This custom, which amounted
to two shillings from each hide, had previously fallen to the sheriffs,
but this “the king,” so continues the Latin account, “wished to enroll
in the treasury and add to his own revenues.”[31]
In response to this, Becket is recorded as saying, “Not as revenue, my
lord king, saving your pleasure, will we give it: but if the sheriffs
and servants and ministers of the shires will serve us worthily and
defend our dependents, we will not fail in giving them their aid.”[32]
This was from the chancellor turned archbishop. In his former estate
Becket had not shrunk from pressing money composition for military
service from prelates holding land of the crown on the ground that they
were tenants-in-chief and therefore owed service of arms to the king.
But now he had changed his masters and stood champion of the church.
To him Henry returned, “By the eyes of God, it shall be given as
revenue, and it shall be entered in the king’s accounts; and you have
no right to contradict; no man wishes to oppress your men against your
will.”
“My lord king,” Becket declared, “by the reverence of the eyes by which
you have sworn, it shall not be given from my land and from the rights
of the church not a penny.”
Apparently for the moment the archbishop won his point, but from
that time on, Becket and the king stood apart. The continuation of
the struggle between them at Westminster the following October; the
Constitutions of Clarendon, sweeping away much of the exclusive
authority which previously had characterized ecclesiastical
jurisdiction; the flight of Becket into France; the coronation of the
young Henry by the Archbishop of York to the prejudice of Becket, and
the latter’s declaration of illegality; these and the martyrdom of the
archbishop, are parts of another story.
[The issue in the Woodstock Controversy, 1163]
Exactly what were the motives of Becket in making his stand against
the king at the Council of Woodstock, are somewhat difficult of
determination. The interest of the king was obvious; he wished to
increase his revenue by annexing the “auxilium vicecomitis” or
“Sheriff’s aid,” which had not gone into the royal treasury at all but
had served to swell the private income of the sheriffs. Whether Becket,
“standing on the sure ground of existing custom,”[33] objects to change
merely because it was a change; or whether he had in mind some lofty
democratic principle, and took his stand against the royal power in
favor of the lesser folk through some flush of democratic fervor, is
not only impossible of being decided, but the decision would not be of
strict relevance to the subject. The two points to observe, and they
are perfectly evident, are that Becket’s stand against the king did not
concern a new levy of taxes, but an imposition already customary; and
that the king asserted Becket’s incompetency to interfere. Becket had
presumed to take a hand in a matter connected with taxation; the king
had denied him that right, though the archbishop was the chief member
of his National Council. Therein lay a great issue.
[Scutage]
A number of other incidents of the reign of Henry II, though they
lack the color of a controversy between archbishop and monarch, are
nevertheless worthy of consideration. The imposition in 1159 of the
Great Scutage, despite the fact that it came as a feudal charge rather
than as a form of regular taxation, assumes great importance in view of
the part that scutage played in the evolution of the taxing power.
Scutage is generally considered as one of the forms of “commutation
for personal service,” and commutation was undoubtedly the underlying
idea of the imposition.[34] The payment was made for every knight owing
military service. Each knight holding of the king was expected to
serve in the field for forty days. Eight pence a day in the reign of
Henry II was the usual wages of a knight, and for forty days the wages
would amount to two marks, which was the sum most commonly paid in lieu
of personal service. It was in its earlier phase distinctly a feudal
charge.
[Early instances of Scutage]
Payment of scutage, like most of the other forms of feudal and general
taxation, struck its roots far into the past. Bishop Stubbs fixes 1156
as the year in which the term scutage was first employed.[35] Others
find counterparts in various payments to the sovereign in the time
before and shortly after the Conquest. In the reign of Henry I the
practice of allowing ecclesiastics to compound at a fixed rate for
the knight-service due from their estates was generally followed. The
privilege was sometimes extended to mesne tenants.[36] One writer[37]
points to Ranulf Flambard’s device in 1093, when he took from the
men of the fyrd the money which had been given them for the purchase
of supplies while on the march. Others[38] suggest the Anglo-Saxon
_fyrdwite_, the payment made by the king’s men when they were absent
from the royal train in war time as the analogy and precedent for
scutage. It seems more likely that the king and his vassals adopted a
money payment in lieu of service because it was convenient for both
of them.[39] The king thereby got the means for the enlistment of a
body of mercenaries, subject to his absolute will, and the barons were
relieved, if so they pleased, of the burden of military service.
[The Great Scutage, 1159]
The levy commonly spoken of as the Great Scutage was made in 1159.
Henry II was considering an expedition into France against the Count of
Toulouse. He had a claim to the latter’s lands through the inheritance
of his wife, the Duchess of Aquitaine. The English baronage, by the
terms of their feudal tenure, were bound to follow their lord into
the field. Nevertheless a distaste had arisen of late among them for
service abroad, and it was natural enough, therefore, that they should
fall in with the scheme of Henry and his adviser, Thomas à Becket, for
a commutation in money. Henry levied a charge of two marks (£1, 6_s._
8_d._) on the knight’s fee of £20, annual value, from such of his
vassals as chose not to follow him into France.[40]
The authority by which this payment was demanded was apparently solely
that of the king. It is probable that the levy was unquestioned. In
view of the facts that this was merely a change, and possibly no very
great change, in the method of meeting a regular feudal obligation, and
that many of the barons were willing to avail themselves of a means of
escaping the burden of foreign service, the want of a recorded protest
is not to be wondered at. The chronicler puts it plainly and probably
with accuracy when he says that Henry “received” a scutage.[41] It
was profitable for the king. The chronicler puts the proceeds at “one
hundred and twenty-four pounds of silver.”
[Theobald’s complaint, 1156]
Three years previously, however, an ecclesiastical complaint was
raised against a similar imposition. In 1156 such prelates as held
their lands by military tenure were directed to compound for soldierly
service which their character of churchmen precluded them from
rendering.[42] Some thirty-five bishops and abbots paid the assessment,
but Archbishop Theobald raised vigorous protest.[43] He objected,
apparently, not out of principle, but because he could not see that
the exaction was necessary.[44] This probability, together with the
further considerations that the demand was not a demand for a new tax
but merely that the prelates compound for an obligation long recognized
as lawful, and that there were precedents for precisely this sort of
commutation, makes Theobald’s protest not of great importance. He did
not question, strictly speaking, the right of the king to levy taxes at
all.
[Early step toward a tax on movables]
[The Saladin Tithe, 1188]
[Assessment by Juries of Inquest]
The remainder of the reign of Henry II, aside from the fact that it
witnessed the temporary passing of the Danegeld,[45] derives its chief
importance by reason of the extension of taxation to cover personal
property. By the Assize of Arms in 1181, “every free layman who had
in chattels or in revenue to the value of sixteen marks” was to “have
a coat of mail and a helmet and a shield and a lance;” and “every
free layman who had in chattels or revenue ten marks should have a
hauberk and a head-piece of iron and a lance.”[46] Here was a step
toward laying movables and personal property open to taxation. Seven
years later, when Saladin had cut his way into Jerusalem, personal
property was forced to contribute toward the Crusade. This tax, the
so-called “Saladin tithe,” was laid at the Council of Geddington on
the 11th February, 1188. Present at it were archbishops and bishops
and the greater and lesser barons,[47] but it is not stated whether or
not they gave a formal consent to the levy. “This year,” so goes the
Ordinance, “each one shall give in alms a tenth part of his revenues
and movables, except the arms and horses and clothing of the knights;
likewise excepting the horses and books and clothing and vestments and
articles required in divine service of whatever sort of the clerks, and
the precious stones both of clerks and laymen.” This is the earliest
recorded instance of a general tax upon movables. For the assessment
and collection of the Saladin tithe, Henry adopted a scheme favorite
with him, which had been utilized in England for national purposes at
least since the time of the Domesday Survey. It was ordained that the
assessment be done by juries of inquest; thus the taxpayers themselves
were instruments in the determination of how much each should pay, even
though the determination of how much the gross payment should be was as
yet far beyond their power.
Henry II closed his reign in 1189. His taxation[48] had never been
exceptionally heavy, though it had been the occasion for protest and
had served as the pretext in 1174 for a little warring with his barons.
In the matter of royal authority over taxation, the power of the king
to levy taxes was not much diminished. The instances of opposition
that have been cited do not prove much more than that now and then
complaining voices were raised in the Great Council; nowhere is it
shown that the objections had more than passing value, much less that
they were conclusive.
The year after the laying of the Saladin tithe, Henry died. Of his four
sons, two were dead and two had taken up arms against him. His first
son, who he had hoped would succeed him as Henry III, was dead, and
so too was Geoffrey, the father of the luckless Arthur; Richard, his
second son, was for the moment the ally of Philip of France; and John,
whom the king had loved above the others, now as afterward seeking
his own advantage, had recently taken his place amongst the rebellious
barons who had made common cause with the king of France. This blow,
coming on top of his unfavorable peace with Philip, struck the old king
to the heart, and cleared the throne for Richard.
[Richard I, 1189-1199]
Richard was not, in the fullest sense of the word, an English king. His
heart was on the Continent; England he regarded as a treasure-house,
and he left the administration of it to his justiciars. Along with
the exaction of feudal incidents and other and more special forms of
taxation, Richard worked the machinery of the laws to its maximum
capacity for what money it would bring him. He sold bishoprics and
ministries, and released malefactors from prison for a consideration;
sometimes, as in the case of Ranulf Glanville, his father’s treasurer,
he threw men into prison on shadowy charges and forced them to buy
their release. But all was under the guise of legality; Richard, unlike
John, and much like Henry VIII, knew how to gain his end and yet adhere
to the letter of the law.
[Richard’s ransom]
On his way back from the Crusade near the close of the year 1192,
Richard fell into the hands of his enemy, Leopold, Duke of Austria.
Leopold turned him over to his feudal superior, the Emperor Henry VI,
and he held Richard for a ransom of £100,000. The levy of the king’s
ransom was one of the three regular feudal aids[49] for which the
subjects were responsible. The magnitude of Richard’s ransom, however,
brings it out of strictly feudal history into the domain of taxation.
In the letter which Richard wrote from his German prison to his mother,
the Queen Eleanor, and to his justiciars, he said, “For becoming
reasons it is that we are prolonging our stay with the Emperor, until
his business and our own shall be brought to an end, and until we shall
have paid him seventy thousand marks of silver.” The amount of the
ransom was subsequently raised to one hundred thousand marks, with an
additional fifty thousand exacted as the price of not assisting the
Emperor in his war to regain Apulia. Thus England became liable for
the payment of a sum aggregating £100,000.
[It involves heavy and novel taxation]
The effort to raise so great a sum revived all the forms of taxation
known to England in earlier years, and laid the basis for certain
methods of acquiring money previously unknown. The justiciars _took_
“from every knight’s fee twenty shillings,[50] and the fourth part of
all the incomes of the laity, and all the chalices of the churches,
besides the other treasures of the church. Some of the bishops, also,
took from the clergy the fourth part of their revenues, while others
took a tenth for the ransom of the king.”[51] In addition to the
property there stated as having been levied upon, the lands of tenants
in socage yielded two shillings on the hide or carucate,[52] personal
property to the amount of a fourth of its value, and the wool of the
Cistercians and Gilbertines. Thus every person in the kingdom, was laid
under contribution. Later kings found all of these means of raising
revenue exceedingly fruitful, and some of them served as precedents for
taxes which played great parts in the struggle for the control of the
public purse.[53]
[The king is the authority for the taxes]
The authority by which the impositions were laid was apparently solely
that of the king. Speaking of the letter which Richard addressed to his
mother and the justiciars, urging upon them the necessity for raising
money for the ransom, the Chronicler says, “Upon the authority of this
letter the king’s mother and the justiciars of England determined that
all the clergy as well as the laity ought to give ... for the ransom of
our lord the king.” He speaks of the exactions having been _taken_. The
fact that there is no definite record of deliberation or even of assent
by the National Council to the enormous demand which the ransom of the
king laid upon England, and that no serious objection was raised to
the collection, ordered upon the authority of queen and justices, is a
comment both upon the weariness of the nation and its respect for the
ancient feudal aid.
[Richard’s release and subsequent levies]
When Richard was finally released from durance in Austria, he returned
to England. Remembering the success which met his first visit to the
island at the time of his coronation, he proceeded to set his machinery
going despite the financial decrepitude of the nation. The account of
his Great Council at Nottingham, called near the last of March, 1194,
illustrates not only his ingenious methods of making extra-customary
feudal exactions but also the manner in which he levied his non-feudal
impositions. The Council, which was not very fully attended, was
composed of the archbishops, bishops, and earls. On the first day, he
removed from office all the sheriffs of Lincolnshire and Yorkshire,
and proceeded to sell their places to Archbishop Geoffrey of York, who
paid 3000 marks[54] on the spot with a promise of 100 marks by way of
annual increment. Having thus spent his first day, on the second he
contented himself with issuing orders against his contumacious brother
John. But on the third day he demanded the third part of the service
of the knights, the wool of the Cistercians for which he was willing
to accept a composition, and a carucage of two shillings.[55] This
last, which was the lineal descendant of the Danegeld, a land tax on
the carucate, he apparently did not exact upon any other authority than
his own. The king “determined that there should be granted to him out
of every carucate of land through out the whole of England, the sum of
two shillings.”[56] His action carries out the theory that the voice of
the king in his Council was supreme in matters of taxation, and that
the promulgation of a tax levy was rather accepted in the character of
an edict than as inviting discussion. The deduction, however, that the
individuals composing that Council were barred from objecting to a tax
or even refusing to pay it, is not well founded; the time had not yet
come when the individual felt himself bound by the tacit acquiescence
of the Council. If he were strong enough to withstand the royal
displeasure, he could refuse payment.
Richard levied a second carucage in 1198, “from each carucate or
hide of land throughout all England five shillings.” Here, too, he
acted upon his own authority, and the Chronicler does not refer to
the summons of a Council, or the participation of the magnates in the
laying of the tax. The assessment of it followed the plan pursued by
Henry II, in that the liability of the taxpayer was determined by means
of a jury of inquest. Against the payment of the imposition the men
of the religious orders demurred, whereupon an edict of outlawry came
immediately from Richard. Esteeming the payment of the tax the lighter
burden, the friars yielded.
[Hugh of Lincoln refuses assent in National Council, 1198]
The same year, 1198, furnishes us with what is by far the most
noteworthy and interesting incident of the reign of King Richard, an
event which is taken to be “a landmark of constitutional history.”[57]
Through his efficient justiciar, Archbishop Hubert Walter, the king
laid before his Council at Oxford a plan whereby he “required that
the people of the kingdom of England should find for him three hundred
knights to remain in his service one year, or else give him so much
money as to enable him therewith to retain in his service three hundred
knights for one year, namely three shillings per day, English money,
as the livery of each knight.”[58] The way in which Hubert Walter’s
proposition was met throws light upon the subservience of the National
Council. “While all the rest were ready to comply with this,” the
Chronicler proceeds, “not daring to oppose the king’s wishes, Hugh,
Bishop of Lincoln, a true worshipper of God, who withheld himself
from every evil work, made answer that for his part he would never in
this one matter acquiesce in the king’s desires.” Now, if it could
be established that the bishop raised the question as to whether
the king had a right to lay an imposition upon the baronage and to
require their assent, then we would be justified in saying that Hugh’s
refusal went far toward anticipating future history. But the evidence
does not uphold so generous an inference. In the first place, it
seems highly questionable whether Hubert Walter really offered the
alternative of a money payment,[59] a conclusion which reduces the
debate to one on foreign service. But Hugh even here did not raise the
general question. “I know,” he is quoted as saying, “that the see of
Lincoln is held by military service to our lord the king, but it has
to be furnished in this land alone; beyond the boundaries of England
nothing of the kind is due from it.”[60] Hugh, therefore, refused to
comply with the royal request on purely feudal grounds. Basing his
objection on ecclesiastical privilege, he registered his refusal for
the see of Lincoln alone; he did not take his stand in behalf of the
barons or even of the whole body of churchmen. The issue as to their
relative powers to tax was not raised between king and Council, and
the withdrawal of Hubert Walter’s demand did not constitute one of
the first victories over arbitrary taxation. The withdrawal itself
seems to have had its disagreeable consequences. Herbert, Bishop of
Salisbury, who stood shoulder to shoulder with Hugh of Lincoln in his
opposition, had to pay a heavy fine for his part in the contest, and
the Abbot of St. Edmund’s was obliged to win back royal favor with a
gift of a hundred pounds which he made in addition to the pay of four
knights for forty days.
Richard’s reign covered only a decade, six months of which he spent
in England.[61] Notwithstanding his long absence, during which the
National Council began in some small degree to feel itself able to
get along without the royal presence, the authority of the king as
the supreme initiator of taxation remained unquestioned. In the
assessing of taxes, however, the taxpayers had more participation.
The justiciars of Richard continued Henry II’s practice of assessment
through a representative jury.
[John, 1199-1216]
John, the youngest son of Henry II, the thinnest figure that ever
sat upon the English throne, succeeded to the crown some six weeks
after the tragic passing of Richard. Richard was the creation of his
own times, the incarnation of the mediæval spirit, and where it fell
short he fell short. To attribute the meanness of his brother to any
conditions of environment would be to perpetrate a slander upon the
times. Yet, notwithstanding the vileness of the king, there eventuated
from his reign the first of the three books in what Lord Chatham
denominated “the Bible of the English Constitution.” The progress
toward the finished writing of Magna Carta, especially in so far as the
events concern laying of taxes, is the next step in this history.
An interregnum of six weeks elapsed between the death of Richard and
the coming to England of John. Then Archbishop Hubert Walter set the
crown upon his head and declared him elected to the kingship. John’s
stay in England was necessarily brief, because Philip II of France was
already in a fair way to win his possessions on the far side of the
Channel. For his expedition into Normandy John exacted a scutage of two
marks on the knight’s fee; the rate was unusually high, almost without
precedent.
[John’s heavy taxation]
Being unable to make head against Philip, John concluded a truce for
which he had to pay 30,000 marks. The Jews had to pay a good deal of
it and in addition John took a carucage of three shillings on the
carucate, which, like the charge of scutage, was an exceedingly high
rate. John laid this imposition, apparently, solely upon his own
authority; Roger Hoveden says that he “took” the carucage and makes
no mention of a Council.[62] He demanded the aid, and the justices
issued the edicts. In 1201 John contributed, at the instance of a papal
delegate, a fortieth of his revenues for the Crusade; from his barons
he urged a similar offering, not “as a matter of right or of custom
or of compulsion.” Freeholders and tenants by knight’s service paid
at a similar rate; just what liberty they had in refusal is shown in
the direction of Geoffrey Fitz-Peter, the justiciar, at the end of
his address to the sheriffs: “And if any persons shall refuse to give
their consent to the said collection, their names are to be entered in
the register, and made known to us at London.”[63] In the same year he
exacted a scutage at the high rate of two marks on the knight’s fee.
[Scutage, a cause leading to the Charter]
The importance of the part which scutage played in the tragedy of
John can hardly be overestimated; it was the great moving cause
which brought about the crisis of 1215 and Magna Carta. Not only did
John raise scutage to an amount which had not been equalled since
the Scutage of Toulouse in 1159, but he levied it as though it were
a regular and almost annual obligation. Previously understood as a
commutation arranged at the pleasure of the king for knight’s service
not rendered, as an extraordinary impost reserved for extraordinary
occasions, John changed its character and used it as a means of
supplying his heavy financial needs, irrespective of customary right or
of shrewd policy.
John began with a demand of two marks on the knight’s fee.[64] The
barons had accustomed themselves, during the reigns of Henry and
Richard, to expect at the outside a demand of twenty shillings;
sometimes indeed the imposition had fallen to a single mark or even as
low as ten shillings. His second scutage came in the third year of his
reign, two marks on the fee. Then for four successive years John kept
his barons on edge with annual scutages of two marks each. In 1205-06,
apparently fearing a storm, he reduced his imposition to twenty
shillings, and then waited for three years before laying another. The
three years of relief, however, were not as innocent as they seem;
it was in 1207 that John broke with the Pope, and the freedom to
plunder ecclesiastics which this quarrel gave him, made unnecessary
for the moment any further demands upon the baronage. But this source
of revenue shortly proved insufficient, and John turned again toward
scutage. In the two financial years from 1209 to 1211, he laid three
scutages which aggregated some seventy-three shillings on the knight’s
fee. Then for the space of two years John paused.
[Inquest of Service, 1212]
But it was only a pause. On June 1, 1212, he caused to be taken the
Inquest of Service, by which he sought to bind the cord more tightly
upon his demesne tenants by ascertaining in the now familiar manner of
the local jury, how great was the return which he might expect from
the lands of each crown vassal. It is easy to see in this Inquest,
recalling in its nature Domesday Survey and the Inquest of 1166, the
intended basis for another imposition of scutage.[65] It came in
1213-14, when John made the wholly unprecedented levy of three marks on
the knight’s fee. Apparently he was doing all he could to hurry the
crisis which should lead him to Runnymede.
[Attendant abuses of John’s levies of Scutage]
There were two features of John’s use of scutage aside from the
magnitude and frequency of his levies which made them particularly
onerous. The first had to do with the fines which he exacted from such
of the baronage as were delinquent in paying the imposts of Richard,
some of which had been in arrears since 1190. Miss Norgate notes an
instance which illustrates John’s habit, and throws light upon his
character. Two men of Devon in 1201 were charged with fines by reason
of their absence from the train of Richard in 1193, and the cause
of their failure was this, that “they had been with Count John.” At
the moment John was in rebellion against Richard, but now that he
was become king in Richard’s place, he exacted fines for service the
nonperformance of which he himself had been the cause of.[66] The
collection of fines owing to Richard bore with special heaviness upon
the northern baronage and these, it will be remembered, were the
leaders in the assault upon John in 1215.
The other great abuse which John introduced into the levying of scutage
was his subversion of the theory that the payment of it by the vassal
wholly acquitted him of his obligation to the king for that occasion.
John endeavored in a number of instances to make him liable for
personal service in addition, and for fines in case he failed to be
present in his train. In 1199 John exacted fines from those who did
not accompany him to Normandy; in 1201 he accepted money-payment as a
substitute for service; in 1205 he fined the tenants-in-chivalry after
he dismissed them from service in the host. In these years scutages
were laid as well.[67]
Thus did John make over scutage; it had become a heavy impost upon the
lands of demesne tenants, an almost annual charge, and a tax foreign
to its original character as a commutation for personal service. A
rebellion culminating in the exaction from John of a written contract
between him and the baronage, detailing their mutual relations was the
natural consequence.
[Antagonism of the clergy]
[General demand of a thirteenth of movables]
But the knights were by no means the only body of Englishmen whom John
alienated by his frequent levy of taxes. The clergy, already irritated
by John’s quarrel with the Pope and his seizures of ecclesiastical
property, were ready to combat the king in any further attempt to tax
them. At a Great Council at London on the 8th January, 1207, the king
asked “the bishops and abbots to permit the parsons and the beneficed
clergy to give to the king a fixed sum from their revenues.”[68] The
prelates did not consent, and John brought the matter up again at a
second Great Council which he convened at Oxford on the 9th February.
There were present an “infinite multitude of prelates of the church and
magnates of the realm,” and John again addressed the ecclesiastics. The
bishops “unanimously answered that the English church could in no wise
sustain what was unheard of in all the ages before.” The king, “taking
wise council,” withdrew his demand, but he did not abandon his project.
“Afterward he ordained generally throughout the kingdom that every
man ... give a thirteenth part to the king” of revenue and movables.
The demand applied to all men, no matter from whom they held their
lands.[69] Against the imposition, the earlier analogues of which were
the Saladin Tithe and Richard’s ransom, “all murmured, but none dared
to contradict” the king, except Geoffrey of York; he did not consent,
but openly refused, and then had to fly from England to escape John’s
anger.[70] The writ for the assessment of the thirteenth has it that
the tax was provided “by the common advice and assent of our Council
at Oxford.”[71] How whole-souled was the assent is revealed by the
Chronicler; “none dared to contradict.”
[Normandy is lost]
The time was at hand when men would not longer endure the extortionate
exercise of an unchallenged royal right. There were a number of
conditions and circumstances aside from the burdensome taxes which were
pointing toward Runnymede and Magna Carta. By 1204 John had come to the
end of his day in France. Normandy was lost. The effect upon England
was marked; the Norman baronage was obliged to choose between England
and the Continent. Hereafter tyranny and good-rule of the English kings
were alike felt solely at home, and the barons cast their eyes not
across the Channel, but upon their lands in England. The English were
for England and the nation was born, the first conscious act of which
was to be the enactment of Magna Carta.
During the seven years from 1206-1213 John had his disgraceful quarrel
with the pope, a quarrel which ended in the enfeoffment of England with
Innocent as feudal overlord. The matter is foreign to the subject in
hand, save as the struggle, especially in the early development of it,
gave John a pretext for confiscating the ecclesiastical holdings and
thereby relieving the barons of a scutage for the space of about four
years.
John, conceiving that peace with the Pope meant full mastery of
affairs, was seized with an ambition to reconquer Normandy. To this end
he tried to induce the barons to follow him into Poictou. They refused,
first on the ground that John was not yet fully absolved from his
excommunication; and then, after this objection was removed by Stephen
Langton on the 20th July, 1213, they raised the old plea that they were
not bound by their tenure to follow the king abroad. John determined to
enforce their attendance upon him by show of arms.
[Council at St. Albans, 4th August, 1213]
Before he started to the north, where the seditious movement had
its center, an assembly was held at St. Albans on the 4th August by
Archbishop Langton, and the justiciar Geoffrey Fitz-Peter. Its purpose
was to assess the amount due to the ecclesiastics in consequence of the
damage sustained by church property during the quarrel with the Pope.
But its great importance lay in the body of men who made it up. It is
in so far as we have record, the first occasion that representatives
of the lesser folk were summoned to a National Council.[72] Beside
the bishops and barons who attended, there were present the reeve and
four men from each township on the royal demesne. The Council advanced
somewhat beyond the simple purpose for which it was summoned; the
justiciar issued an edict against unjust exactions, to be observed as
the sheriffs valued their lives and limbs, and commanded the observance
of the good laws of Henry I.[73]
[Non-noble representatives called to Oxford, 1213]
Later in the year to Oxford, the non-noble representatives were again
called, and at the initiation of John himself. John hoped to win to
himself by this act of respect the support of the smaller landowners
against the threatening barons. The sheriffs were to send up, beside
the knights holding from the king, four discreet men from each county
“to talk with us,” as the writ had it, “concerning the business of our
realm.”[74] This, provided subsequent events had kept pace with it, was
an immensely long step forward; indeed the provisions of Magna Carta
themselves do not advance to the point thus falteringly and unworthily
reached by John. It provided a precedent for the representation of the
third estate in the councils of the nation; and though it is not known
whether or not any action was taken relative to the levying of taxes,
or even whether the council was held at all, nevertheless the fact
that representation for the moment was provided for, marks the step in
the light of the present, as of great, almost of profound, importance
in the consideration of parliamentary taxation.
[Events leading to Runnymede]
It would be wandering far afield to trace the final struggles of John
with his infuriated barons. It is sufficient to note that it was an
unauthoritative demand of taxation which pulled the structure of John’s
misgovernment crashing down upon his head. On the 26th May, 1214, John
issued writs for the collection of a scutage at the quite unprecedented
rate of three marks on the knight’s fee, for which there was not a
shadow of consent. The northern barons, the same who had refused
personal service, now refused likewise to pay scutage. In the face of
precedent to the contrary, they denied their liability to follow him,
not merely to Poictou but to any district beyond the Channel, or to
pay him composition for not doing so.[75] At his interview with the
contumacious barons in November at Bury St. Edmunds, he reiterated his
demand, but they remained steadfast in their refusal.
From that time until King and Barons met on the meadow near the Thames
called Runnymede, John’s sky was darkening. He did his best to avoid
the tempest, but with no success. He attempted to break the union of
his enemies by giving the church and the people of London special
charters; it was the church, headed by Stephen Langton, which stood
shoulder to shoulder with the barons in unending hostility to John, and
it was the citizens of London whose adherence to the baronial cause
determined the final contest against the king. John bought the services
of mercenaries to fight his battles for him, but when he became
penniless, they fell away. With every expedient he could summon in his
extremity, he tried to avoid the breaking of the storm. But the whole
nation was against him. The men of the North, who had been steadfast
from the beginning in their opposition to John, were joined by barons
of similar mettle throughout the rest of England. The citizens of
London when they joined the ranks of John’s enemies were followed
by the earlier partisans of the king, save only those few who were
attached by interest or necessity. He signed the Charter the 15th June,
1215, in the full hope that with the passing of the tempest he might
forget his promises.
[Magna Carta, 15th June, 1215]
The Great Charter, in form granted by John as a voluntary gift to the
nation, was in reality a treaty concluded between him and his barons.
That its provisions relative to taxation are important has already
been hinted at; as a matter of history, the recurrence of references
to these particular sections of the Charter proves the esteem in which
Englishmen of later generations regarded this early book of their
Bible of Liberties. Whether this veneration, displayed by the framers
of subsequent and perhaps equally important instruments, was based
upon the intrinsic value of the Charter or upon nothing firmer than
sentiment, is somewhat of a mooted question.[76] The fact that it was
held in such esteem is for us the important and sufficient reason for
considering it in detail. It is essential to understand upon what the
later champions of parliamentary taxation based their arguments, even
though those arguments presumed interpretations of Magna Carta which
the framers of the Charter would have been far from admitting.
[Chapter 12]
The twelfth chapter,[77] taken with the fourteenth,[78] serves as
the legal basis for much of the eloquence against arbitrary taxation
from the time of John to the acceptance of the United States
Constitution. It has been taken to admit “the right of the nation to
ordain taxation”[79] and even as the surrender of the “royal claim to
arbitrary taxation.”[80] An analysis of the contents and application of
the twelfth chapter together with additional comment on the fourteenth
may throw some light on the substance for these assertions.[81]
The impositions which are specified in the chapter are “scutage” and
“aid.” The arbitrary levy of scutage upon the lands of his tenants
was the chief moving cause which brought John to Runnymede, and this
chapter undertook the correction of the abuse of abuses. The aids
mentioned are to be distinguished from the incidents of feudal tenure,
reliefs, marriages, primer seisins, and similar payments which are
dealt with elsewhere in the Charter and belong to the peculiar history
of feudalism. The twelfth chapter provides that the three ordinary
aids--for ransoming the king, for knighting his eldest son, and for
the marriage of his eldest daughter--should be reasonable in amount.
These might be exacted by the king as a matter of course, without the
common council of the realm. The extraordinary aids, which the Charter
places in the same category with scutages, include all other arbitrary
feudal exactions levied to meet some particular emergency and in an
unusual manner. The Charter places both these extraordinary aids and
the obnoxious scutages beyond the pale of royal imposition; hereafter
they are leviable only “by common counsel” of the kingdom. That they
were to be laid by the body known as the Common Council is indicated by
the provisions of Chapter Fourteen.
[Provision regarding London]
The people of London rightfully expected to benefit by the granting
of the Charter. According to the last clause of the Twelfth Chapter,
it was to “be done concerning the aids of the city of London” in the
“same way.” The provision is indefinite; whether the “aids” were also
to include in their category the more arbitrary and therefore more
obnoxious tallage[82] is unknown. The aids were for the most part
free-will offerings of the city itself, whereas the tallages were
exacted by the king upon his own arbitrary authority as one having the
power of a demesne lord over London. And whether or not the phrase “in
the same way” means that aids shall be levied by the common counsel
of the realm, or merely that they shall be of “reasonable” amount, is
difficult of determination. If indeed the former idea was in the minds
of the framers of the Charter, when they came to the section providing
for the composition of the Common Council, they made no provision for
the attendance of any member of the corporation of London, or even for
securing their consent. At all events, the king continued to tallage
London at not infrequent intervals and almost without question until
1340, when Parliament took the privilege away from Edward III.
[Chapter 14]
Before we advance to a consideration of the true importance of the
Twelfth Chapter, in order to have a complete understanding of its
position in the line of progress toward parliamentary taxation, we
are obliged to look at the method by which the common counsel of the
kingdom was to be taken. Chapter Fourteen[83] lays down the rule
according to which the assembly was to be called that should hold
this power of assenting to scutages and aids. The method of summons
was simple; it involved the issuance of writs, individually to the
archbishops, bishops, abbots, earls, and the greater barons, and
collectively to the lesser barons through the agency of the royal
sheriffs and bailiffs. The writs gave at least forty days’ notice as
to the place and time of meeting, and specified the business which
furnished the occasion for the Council. As for its composition, the
answer is very simple; it was a gathering of tenants-in-chief of the
king, of crown vassals. The line between the greater and the lesser
barons was ill-defined. Roughly, however, it divided the baronage into
classes, one of which included the baron whose holdings embraced the
major part of a county, and the other the tenant of the king whose
dwelling was a cottage set in his dozen acres. It is probable that the
lesser barons played no considerable part in the assembly, and that
their attendance or non-attendance was of little consequence. The light
of the lesser folk was as yet hid under the bushel.
[The advance toward Parliamentary taxation]
It is a conclusion easily drawn from the text of the two chapters
that this was a body of feudatories called together for the purpose
of making feudal payments. The members of the Commune Concilium were
the vassals of the crown and, save in rare instances, none other;
the taxation to which they were to give their consent according to
the terms of the Charter, included no carucage or other general tax,
but only the scutages and aids which feudal tenants of the king by
military service were expected to pay him as overlord. Furthermore,
the idea of representation in the strictly technical sense into which
present usage has frozen the word, was quite wanting. It is true that a
consent by the barons gathered in the Council to an imposition levied
in accordance with the notice stated in the summons, was binding upon
the barons who did not attend, but this was on the principle that
absence gave consent, not that the consent of the majority was binding
upon a dissentient minority. The instance is quoted of the Bishop
of Winchester who in Henry III’s time was relieved of his assessment
because he had opposed the levy in the Council. John had introduced
definite representation in his summons to the Oxford Council in 1213,
by directing the sheriffs to send up “four discreet knights” from their
counties to treat with him “concerning the business of his realm.” In
respect of this, looking at it in the light of later progress, the
Great Charter is positively retrogressive.
The conclusion is thus forced upon us that save in the two cases of
scutages and extraordinary aids, with possibly the addition of a
third in the shape of tallaging the city of London, supreme authority
over general taxation remained in the hands of the king. The Charter
provides solely for the financial incidents of the feudal relation,
and that in the somewhat narrower aspect of tenure by chivalry. The
only true taxes, carucage and John’s levy on movables known as the
thirteenth, were not referred to. It is an anticipation of later
history to read into the provisions of Magna Carta either a definite
inauguration of national consent to taxation or of the representative
principle.
But the wedge was driven in. Notwithstanding the omission of both
the Twelfth and the Fourteenth Chapters in subsequent renewals of
the Charter, the king lived up to the principles therein set down;
and notwithstanding the absence in Magna Carta of provision for
parliamentary taxation in fact, it was there in embryo. The nation,
headed by the barons, had set itself to the correction of abuses, and
it succeeded in attaining its immediate end. Greater purposes were to
follow, born perhaps of the inspiration in the Charter, and with the
purposes were to come also the means of attaining them. The nation,
having once taken a sip of the cup of control over taxation, would not
be content until at last it had drunk deep from the well itself.
III
THE CUSTOM OF PARLIAMENTARY GRANTS
1215-1272
MAGNA CARTA brought to an end the period of absolutism and prepared
the way for the control by Parliament of the taxing power. The barons,
standing for the moment as the champions of the nation, had wrung from
John the first concession. It really was not as great a concession, in
so far as the power to tax was concerned, as eager advocates of popular
rights have maintained. But it was the protest by the most influential
body in the kingdom and in effect by the nation itself against
unrestrained use of power by a royal tyrant.
[The reign of Henry III, 1216-1272]
The long reign of Henry III, stormy and contradictory to itself,
accomplished one clear step forward. From one cause or another it
became customary for the National Council, which in this reign first
attained to the title of Parliament, to grant money to the king.
Another step, of vast importance in the later history of parliamentary
taxation, but in Henry’s time probably not of intimate connection with
it, was the summons of the lesser tenants and subsequently of the
townsmen into the councils of Parliament. There is no sure record that
in Henry III’s reign a Parliament so constituted voted taxes, yet it
is apparent that this differentiation in the national legislative body
was the preliminary of the vesting of the taxing power in the House of
Commons.
[Reissue of the Charter with omissions]
John died in the midst of his reverses the 19th October, 1216. The
major part of his vassals were in the field against him, and worse
than all, Louis, the heir to France, with French soldiers at his back,
was in England at the bidding of the English baronage. Nine days after
John’s death, his son Henry, a nine-year-old lad, was crowned King of
England with small ceremony. After a lapse of two weeks, on the 11th
November, a body of barons gathered at Bristol. There were four or
five earls, including Pembroke, Chester, and Derby; eleven bishops,
Hubert de Burgh, one or two other ministers, and some of the military
leaders. Only one of the executors of the Charter figured at the
meeting and this was William of Aumâle. For the most part they were of
the party least disaffected by John; the rabid opponents of the old
King were in the body of supporters around Louis of France. The Council
proceeded to appoint William Marshal, Earl of Pembroke _Rector regis et
regni_, being unwilling to elect a relative of the young King to this
responsible position. The next day they reissued the Charter by common
consent in the King’s name, with the important omission of Chapters
Twelve and Fourteen.
The reason for leaving out restrictions upon the royal power so vital
to the feudatories is readily apparent. The Council was distinctly
royalist; as such, especially in view of the fact that John, the great
offender, was dead, it did not favor restricting the royal power.
Further, the barons in effect were themselves the king, and being
so, there was no particular object in limiting their own power over
themselves. That the Fourteenth Chapter would be observed, whether it
were specified or not, dealing as it did with the summoning of the
Council, went as a matter of course.[84]
[Second reissue of the Charter]
One of the objects in the minds of the Council in reissuing the Charter
was to win adherents from the standard of Louis. In this they were
partly successful; but it took the decisive defeat delivered to the
French prince at the Fair of Lincoln in May of the following year,
coupled with the loss of his reinforcing fleet in August, to bring
about peace. A treaty between Pembroke and Louis followed in September,
and secured to the belligerent barons the liberties of the realm and
the restoration of their lands. General pacification between the
parties came the 6th November following, with the second reissuance of
the Charter, this time in the form which later generations of kings
should be called upon to confirm.
[Its omissions]
There was introduced into this draft of the Charter a change which
materially affects taxation. Though Chapters Twelve and Fourteen of
John’s issue are ignored, there is in the Forty-Fourth Chapter a
distinct reference to the levying of scutage.[85] “Scutage,” it says
“shall be taken as it was wont to be taken in the time of King Henry
our uncle.” In other words the consent of the barons was to be no
longer a prerequisite to the levying of a scutage. The only restriction
placed by written law upon the king was that he should take scutages
according to the custom of Henry II,--that is, that they should not
exceed in amount twenty shillings on the knight’s fee. The barons who
remade the Charter thus abandoned the semblance of taxation by the
baronage which was provided for under the terms of John’s enactment.
It was only a shadow which they left behind, but nevertheless it was
the shadow from which something substantial could emerge, the germ
from which a creature of immense vigor might develop. The omission,
it is not too much to say, is an exceedingly apt vindication of the
contention that at the time the Charter of John was enacted, the
framers of the instrument intended to create no barriers against the
royal power of levying general taxation; if they had had in mind so
fundamental a change, it is unlikely that in 1217, even though the
radical faction was still feeling the sting of defeat, these provisions
should have been allowed to lapse.[86] It is profoundly indicative both
of the modest ambition of the barons in 1215 and the obscurity of their
political vision in 1217.
[Text of 1215 is adhered to in practice]
But the future was fairer than the conditions presaged. As a matter of
fact, the king observed in the majority of instances the conditions
imposed by the Charter of John. Scutages of even less amount than
those “taken in the time of King Henry” were taken with the consent of
the National Council, the sessions of which “continued as from time
immemorial,” though the provisions for its summons had been laid aside.
That the barons were intending to retain control as under the Charter
is indicated by the fact that a scutage under the date 24th January,
1218, “was assessed by the common council of our realm.”[87] Bishop
Stubbs believes that this scutage was granted by the identical Council
which reissued the Charter the previous November.[88] Furthermore,
there is a note of a carucage under the date 9th January, 1218, which
“was assessed by the council of our realm,” a remark which suggests
that not only did this Council determine to grant feudal payments of
scutage, but assumed as well the power of registering its assent to a
general land tax.
[Carucage “assessed” by the Council, 1218]
If full credence can be attached to the record here given that a tax
was “assessed” by the Council, and if the act of assessment can be
taken as indicating, so to speak, full-fledged consent on the part of
the barons, then we have in this record of the Close Rolls one of the
very earliest instances of general taxation by and through the English
National Council. That no greater attention was given to the event than
the scant sentence in the Rolls, is perhaps not to be wondered at,
considering the youth of the king and the coherent Council.
With such a Council, bent apparently upon putting in practice greater
privileges than it had given itself in theory, the boy Henry began his
long reign. The good Earl of Pembroke died in 1219 and Henry was left
to the conflicting counsels of Hubert de Burgh and Peter des Roches,
the Bishop of Winchester. Growing restive under them at last, in 1223
he secured a declaration from the Pope that he was of age, he being
then sixteen, and swore to observe the Charters. But neither of his
reissues of the Charter could be called, strictly speaking, voluntary;
and liberties extorted, in the sinister words of the sycophant William
Briwere, “ought not by right to be observed.”[89] The uneasiness
arising out of this uncertain state of the Charters, led to one of the
first instances of a grant of money on condition that grievances be
redressed, a manner of grant which served the Commons many a turn in
their subsequent struggles with royal prerogative.
[Conditional grant of a fifteenth of movables, 1224]
In 1224 war was on with Philip II for the possession of Poictou. The
taxation which had not been severe up to this time, was insufficient
for the prosecution of a war with France.[90] The justiciar at the
Christmas Council 1224 brought forward a demand for a fifteenth of
all movables.[91] The barons, acting beyond the power which even the
Charter of John had given them, refused to consent, unless Henry should
“of his own natural and good will” renew Magna Carta. He yielded, and
reissued both the Charter of Liberties and the Charter of the Forests
in practically the same form as the issue of 1217. That the reissue
partook of the nature of a contract between the barons and the king is
evinced in the concluding portion of the Charter itself.[92] There it
is openly stated that “the archbishops, bishops, abbots, priors, earls,
barons, knights, freeholders, and all persons of the realm, give the
fifteenth part of all movables to the king,” “for this concession and
granting of liberties.”
Here is an unequivocal instance of a tax on movables, applying to
every person in the kingdom from the archbishops and great nobles
down, granted explicitly by the Council in return for Henry’s specific
promise to adhere to the Charter. It was the most natural thing in the
world, that the barons should demand a favor in return for granting
one. They had Henry in a box and his acquiescence is none the less
natural. Yet the action is of great importance in view of later
developments. Time and time again the situation was to be repeated, and
out of repetition was to come usage which would be frozen into law. It
is of vast interest, therefore, to note the appearance so early of the
conditional grant.
[Other conditional grants and instances of refusal]
The Council continued to exercise the right not merely of making grants
of money in consideration of a redress of grievances, but also of
refusing to make a grant at all, whenever such a stand suited their
convenience. In 1232 the Earl of Chester, being spokesman for the
barons, objected to a request for money with which to carry on the
French war, on the plea that they had served in person; the clergy
sought postponement, raising the significant plea of an incomplete
assembly of prelates.[93]
[Offer of a disbursing commission, 1237, rejected]
Again, five years later, Henry being in dire distress for money because
of unwise expenditure and the lightness of recent taxation,[94]
summoned an extraordinary council of barons and prelates “to arrange
the royal business” and matters concerning the whole kingdom. William
de Ralegh, a clerk of the king, introduced the royal needs, saying
that “the king humbly demands assistance of you in money.” Sensing
beforehand an attitude of antagonism, he made this remarkable
concession, that “the money which may be raised by your good will
shall be kept to be expended for the necessary uses of the kingdom,
at the discretion of any of you elected for the purpose.” But the
barons failed to perceive the greatness of the opportunity which lay
open to them. Had they but availed themselves of it, they would have
gone far toward the establishment of the power of the legislature
over the public purse, and might have accomplished in a moment,
had they been able to maintain their control, what many succeeding
parliaments were to strive for in vain. But apparently the baronage
was not gifted with political perception; they saw only a demand for
money and “began to murmur.” They complained that the foreign advisers
of the king had been wasting the royal revenue and that there was no
great enterprise afoot which required a full treasury. Then the king
proceeded to conciliate them with what in comparison with the proposed
concession of the disbursing commission, was a mess of pottage; he
ordered the renewal of the sentence of excommunication of all violators
of the Charter, promised to abide by it himself, and received three
additional Councillors named by the Council.[95] Thereupon a grant
of the thirtieth part of all the movable property in the kingdom was
made by the lords “for themselves and their villans.”[96] In this
phrase of the writ is evidence in favor of the supposition that the
lords of the Council regarded themselves as authoritative spokesmen
for their vassals. The money was to be collected in accordance with
the prescription of the Council; four knights and a clerk (appointed
apparently by the king), were to receive the assessment of each
township from the reeve and four men, elected for the purpose. Here was
evidence of progress; the step was not very long from the assessment
and collection of a tax to the granting of it by the people themselves.
The king profited to the amount of some £22,600.
[Refusal of a grant, 1242]
After a lapse of five years, Henry found himself, as he supposed,
on the brink of a war with France; he therefore sent out orders for
a session of the Council. Apprehending that the summons presaged a
demand for money, the baronage, “because they knew that the king had so
often harassed them in this way on false pretences, ... they made oath
together that at this council no one should on any account consent
to any extortion of money to be attempted by the king.”[97] When the
Council met, therefore, Henry was greeted with a refusal, on the
grounds that he had engaged in the war without asking their advice, and
that “he had so often extorted large sums of money from them, which was
expended with no advantage; they therefore now opposed him to his face,
and refused once more to be despoiled of their money to no purpose.”
Harking back to the conditions of the grant of 1237, and laboring,
apparently, under the misconception that the king had promised that
the money be spent under the direction of a disbursing commission,
they complained because they did “not know and have not heard that any
of the aforesaid money has been expended at the discretion or by the
advice of any one of the said four nobles.”
Thus did they refuse. But Henry was neither to be robbed of his
hoped-for supply nor yet induced to give further concessions. He
therefore turned to strategy. Summoning the barons and prelates to
him one by one, he “begged pecuniary aid from them, saying, ‘See what
such an abbot has given to aid me, and what another has given me.’” By
such means he managed to wring from the barons individually what he had
been unable to induce them to give in the Council. With the money thus
obtained Henry set out on a campaign doomed to ignominious failure.
Before he came back to England he used this expedition as the pretext
for a scutage of twenty shillings on the fee.[98]
[Great Council in 1244 holds out for supervised expenditure]
Similar success did not meet Henry, when, two years later, he attempted
to raise funds with which to prosecute a Scotch war. In the fall[99]
of 1244 Henry summoned his Council to London; he laid before it the
story of his recent journey to Gascony and used the debts which he had
incurred as the pretext for a grant.[100] He addressed the baronage in
person in the expectation that they would not refuse a face to face
appeal; the nobles, however, withdrew to consult amongst themselves,
with the result that a committee of twelve, representing the three
bodies of prelates, earls, and barons, was chosen to draw up an
answer to the king. Simon de Montfort, Earl of Leicester, whose great
opportunity was not yet come, served as one of the four earls; and
Richard de Montfichet, one of the few executors of Magna Carta who
still survived, acted amongst the delegation from the baronage. The
reply was consistent with the works of both. The committee complained
of the nonobservance of the Charter, of the rash and fruitless
expenditure of money, and demanded the appointment of a justiciar and a
chancellor “by whom the kingdom might be consolidated.”
The king, however, was unwilling to act under compulsion; he refused
the petition and ordered the barons to reassemble three weeks after the
Purification of the Virgin in 1245. Thereupon the nobles declared their
willingness to grant him money, provided that in the meantime the king
should choose proper counsellors and institute reforms. The proviso
which was of greatest importance, however, was this, “that whatever
money was granted to him should be expended by the twelve ... nobles
for the king’s benefit.” These conditions were greatly to Henry’s
distaste; he set himself to wring money from the prelates, but with no
success. Then the Council “broke up, much to the king’s discontent.”
[A scheme of control]
The historian proceeds to give a scheme of reform which may possibly
be the result of the deliberations of the magnates, presented by them
to Henry for his consent.[101] It provides for the election by the
Council of four of its “most discreet” members to serve as counsellors
of the king. “By their inspection,” the account states further, “and
on their evidence the king’s treasury shall be managed, and the money
granted to him by the community in general shall be expended for the
benefit of the king and kingdom according as they shall see to be most
expedient and advantageous.” The four counsellors were to have numerous
other powers and duties, many of which are suggestive of the scheme
subsequently put into practice by Simon de Montfort.
Of itself this scheme of reform is relatively unimportant. But taken
with the demand of the magnates that twelve of their number supervise
the expenditure of such money as they should grant to the king, it
assumes some significance. It points toward the growing tendency on
the part of the barons to assume control, not only of the granting of
taxes, but of the expenditure of the money so raised as well. For some
centuries thereafter the question as to whether that control should lie
with the king or subjects was to be a prime subject of contention.
It would be a fruitless and uninteresting task to illustrate further
the control over matters of taxation exercised by the Council during
this part of the reign of Henry III. The instances in which the royal
requests were refused, and the occasions when the king attempted to
evade the refusal by private solicitation were not infrequent.[102]
A single citation may be excused, however, because of the element
of sinister humor which pervades it. Henry asked the Council for
money on the 9th February, 1248, and was greeted with a demand for a
justiciar, chancellor, and treasurer to be appointed by the Council
itself. This appeared distasteful to Henry, who was learning the
trick of independence. After a delay of some five months he refused
compliance; whereat he discovered that no grant was forthcoming from
the Council.[103] Thereupon Henry announced to his good citizens of
London that he would pass the Christmastide with them, in order that he
might freely accept of their New Year’s presents.[104]
[Representation as it existed in Henry’s National Council]
It would be too much, it seems, to say that the numerous cases in
which the Council denied to the king the financial assistance which
he urged upon them, prove the full control, in any modern sense, of
this body over taxation. The relation of Council to king was still
personal; the barons granted their support or refused it, as vassal
to feudal lord, by no means as representatives of the nation to the
government. The grants seem, indeed, to have been binding upon the
nation at large, and consequently it might be argued that the barons
were really representatives of the nation, capable of acting for it.
But the argument is based upon a confusion of terms; representation in
the modern sense was not at that time in England invented or thought
of. A baron who by virtue of his prominence or his power makes a
promise which is binding upon those of less prominence or less power,
is not a representative but a small despot. Such a position the barons
held who composed the National Council under Henry III; they acted for
the nation, but they were not in the modern sense representatives. The
inference is readily drawn, then, that a body thus constituted could
not exercise any more than a personal control over taxation.
The time was at hand, however, when the period of transition to the
impersonal relation should begin,--the relation which exists between
representatives of the nation and the government as personified in the
king, the relation recognizable to-day between the layers of taxes and
the spenders of the proceeds of taxation.
[Knights of the shires called to the Council, 1254]
In 1254, during Henry’s absence in Gascony, the regents, Queen Eleanor
and Earl Richard Cornwall, took steps to amplify the Council for the
time being with the lesser feudal tenants for the purpose of laying
taxes.[105] John, at his St. Albans Council in 1213, had had recourse
to a similar expedient, though the principle involved was quite
different. In the earlier instance a representative reeve and four men
from each township and the royal demesne were summoned in order to
assess the amount due in restitution to the clergy. In the latter the
royal writs directed that from each of the counties two “lawful and
discreet knights” be sent up to Westminster, “who together with the
knights from the other counties whom we have had summoned for the same
day, shall arrange what aid they are willing to pay us in our need.”
The knights were to be chosen by the counties themselves, probably in
the county court, since there the machinery of election already was in
existence. The election of knights by the body of suitors who composed
the courts of the counties was by no means a new thing; for eighty
years there is evidence of the election of such representatives for
local purposes, and it would be no startling innovation to extend this
function of the courts to the election of representatives in a national
council. In the present instance, furthermore, there is in the writ an
implication, though the deduction is hazardous, that the matter of the
aid received previous consideration in the county courts themselves.
“And you yourself carefully set forth to the knights and others of the
said counties,” so continues the instructions to the sheriff, “our
need and how urgent is our business, and effectually persuade them to
pay us an aid sufficient for the time being; so that the aforesaid ...
knights at the aforesaid time shall be able to give definite answer
concerning the said aid to the aforesaid council, for each of the said
counties.” The upshot of this Council was disappointing to the crown;
nothing resulted except a renewal of complaints against the royal
administration. Simon de Montfort, whose position as the defender
of the rights of Parliament, was as yet quite misapprehended, took
occasion to warn the Council against the policy of the king.[106]
The events of the next fifteen years, vital as they are to
constitutional history, must be briefly gone over. It is the period of
the Barons’ War and the Provisions of Oxford, and finally of Simon de
Montfort’s famous Parliament of 1265. But the years did not intimately
affect taxation, save as they provided more or less definitely for the
body which should ultimately have control over the granting of taxes.
Taxation was a prime cause of the baronial irritation which led to
the trouble with the king, but the conflict was not a moving cause in
the final attainment by Parliament of exclusive power over taxation.
The chain of events, however, in so far as they are pertinent to the
subject, must be traced.
[Strife between king and Parliament]
At the Hoketide Parliament[107] of 1255 the usual demand was made for
an elective ministry and was refused;[108] at the adjourned session of
this Parliament the following October, an aid to the king was denied
on the distinct ground that the members, all magnates, had not been
summoned according to the terms of Magna Carta.[109] The struggle, vain
and threatening of future ill, went on through the next year, until
by 1257 the king found himself plunged inextricably into debt, much
of which was owing to the Pope. The latter had undertaken a war with
Manfred with whom was lined up the Hohenstaufen power, to seat on the
throne of Sicily Edmund Crouchback, Henry’s second son.[110] Henry owed
him 135,000 marks, and it is said that the Londoners, the sheriffs, the
clergy, and the Jews therefore suffered.
The first Parliament of 1258 was held at London on the 9th April and
sat for about a month. The purple robes in which Henry garbed his
foreign favorites shone richly against the gray background of his
asserted poverty, and their brilliance was enough to blind the eyes of
the Parliament to his necessities.
Wars were threatened on the northern and western borders, and the Pope
was brandishing his sword of excommunication in case Henry continued
his dilatory policy toward Apulia. Parliament refused his urgent plea
for a tallage of one-third of the movables of the realm, reprehending
the simplicity of the king in making his bargain with the Pope.[111] An
outbreak was avoided by an adjournment until the 11th June at Oxford.
[Provisions of Oxford, 1258]
On that day the barons and higher clergy came together, bringing with
them a heavy burden of grievances. A scheme of reform was drawn up
in the famous Provisions of Oxford. They projected the control of
the government by a number of representative committees.[112] The
only point upon which the Provisions of Oxford touch the question
of taxation is in the section which arranges for the appointment of
a committee of twenty-four “by the whole of Parliament on behalf of
the community” to treat of the aid demanded by the king for the
prosecution of his war. The list of grievances, furthermore, for which
the Provisions were to win redress, did not bring up the matter of the
royal power to levy taxes in any degree whatsoever.[113] The nearest
approach to such an objection came in the complaint against extortions
under the feudal law and in the reference to the manner in which prises
were exacted. In each instance the remonstrance was not against the
principle but against the manner in which the act was accomplished.
[Character of the Provisions]
The Provisions of Oxford furnished no advance in the general progress
toward parliamentary taxation. The only step was a step backward. They
provided for one committee which should have the power of granting
an aid to the king, and delegated to another most of the business of
Parliament. These were movements, not toward the ideal grasped in the
time of Edward I and realized in the Bill of Rights, but of a character
distinctly retrogressive. The government was advantageous to none
save to those who participated in it, and between the participants
there was no mediator in case the distribution of advantages should
be questioned. Theoretically the king’s authority remained, though
it was in restraint; in fact it was given to an irresponsible and
self-interested body of barons subject to the mutual jealousies which
are always the incidents of oligarchic rule.
The provisional government lasted for a year and a half from its
erection in June, 1258, without interruption; thereafter it continued
for four years with a number of breaks until 1263, the year in which
civil war began between Earl Simon and the king.
[King and Earl Simon call knights of the shire to national
assemblies]
In the middle of 1261 Henry produced bulls which the Pope Alexander
IV had granted to him shortly before he died absolving him from his
oath to observe the Provisions, and pronouncing excommunication upon
all those who should contravene the absolution.[114] The act of Henry
all but brought forward the impending civil war. Simon de Montfort
and his colleagues, probably in the hope of winning the popular mind
to their cause, acting as chiefs of the provisional government,
addressed summonses to the various sheriffs inviting three knights
from each shire to attend an assembly at St. Albans. Henry, fearing
a general movement against him, sent out counter orders to the
sheriffs, requiring them to send knights not to St. Albans but to
Windsor, _nobiscum super præmissis colloquium habituros_.[115] In
all probability neither of the assemblies met; at least there is no
suggestion of a session of either in the chronicles of the time. They
assume importance, however, as foreshadowing the later Parliaments
of Simon de Montfort, and as indicative of his policy to utilize the
county organization in national matters.
[Civil War, 1263]
Two years later, in June, 1263, Simon de Montfort began war. The
following December the differences between the parties were laid before
Louis IX of France for his decision. He, not unsympathetic with the
plight of his royal brother, made an award in favor of Henry, saving
to the barons and Earl Simon only their rights under the Charter.[116]
But Simon de Montfort was in a position to protest against the
verdict. He vindicated his attitude at the battle of Lewes, 14th
May, 1264, and Henry, his relatives, and his principal adherents
found themselves prisoners in the hands of the barons. A compromise
was effected by the Mise of Lewes, which, after a reconfirmation of
the Provisions, provided for the release of Henry and named a new set
of arbitrators.[117] By the fourth article of the compromise, Henry
was to take the advice of his counsellors in administering justice
and choosing ministers; he was to observe the Charters and to live
moderately.
[Knights of the shire in Parliament, 1264]
But Earl Simon was not satisfied. He garrisoned all the royal castles
with soldiers friendly to his cause, and on the 4th June sent out
writs to the counties in the king’s name summoning to London the
following October, “four lawful and discreet knights,” who were to be
“elected for the purpose by the assent of the county to act for the
whole of that county,” and were to “treat with us of the above-stated
business.”[118] This Parliament when it met proceeded to compose a
new scheme of government, the chief feature of which was a standing
council, indirectly elected by the barons, which should be the moving
force behind all royal acts,--that is, the king was to act only in
accordance with the will of the council.[119]
[Simon de Montfort’s great Parliament, 1265]
Simon de Montfort on the 24th December following issued writs in the
king’s name bidding the sheriffs to send up two knights from the
shires, and each of some twenty-one especially designated cities and
boroughs to send up two citizens and burgesses to London.[120] The
Parliament was called for the 20th January, 1265. Beside the
representatives of the cities and boroughs, there was a very full
gathering of the clergy. The baronage, who as a body looked upon Earl
Simon’s cause with small favor, were called upon to send only
twenty-three of their number, five earls and eighteen barons.
[The first instance of burgher representation in Parliament]
[The House of Commons is foreshadowed]
It is upon this Parliament that the fame of Simon de Montfort as the
Creator of the House of Commons is established. Unless we admit as
an instance of borough representation the summons of the reeve and
four men from the demesne townships to the St. Albans Council in
1213, we have here the first participation of the burgher class, the
Third Estate of the Realm, in the Parliament of the nation. It was
to compose, along with the recently admitted representatives of the
shires, the House of Commons, and in its hands the destiny of the power
to tax was to lie. That Simon de Montfort summoned the citizens and
burgesses to the Parliament of 1265 is attributable chiefly to the fact
that they were amongst the most ardent of his supporters.[121]
It is extremely doubtful that he acted in accordance with any great
scheme of constitutional reform. He called the burghers because he
found their support useful, and therein lay the greatest hope for the
future; the time was not far distant when a greater than Simon de
Montfort should discover that a Parliament in which cities and boroughs
and counties were alike represented was the most convenient means of
supplying the royal treasury.
As for Simon de Montfort’s Parliament, its importance to taxation lies
wholly in its significance in the elaboration of the representative
principle; there is no record that it did aught with respect to
taxation. Its business was mostly confined to concluding arrangements
begun in the Mise of Lewes for the government of the kingdom.
[Last years of Henry III]
What was left of the reign of Henry III, already stretched beyond its
time, is all but negligible. The position of Simon de Montfort was too
favorable to keep him clear of jealous rivals. War speedily started
up again and in an early battle, that of Evesham, the great earl was
slain. Two years thereafter, the royalist party managed to get the
upper hand and the war came to an end. Henry was wise enough, or old
enough, not to tempt Providence; he continued his reign according to
the dictates of law and of good policy. By the statute of Marlborough
in 1267 were granted most of the measures of reform which had been
demanded nine years previously in the Mad Parliament of Oxford. With
the affairs of state running thus smoothly, Henry moved tranquilly down
the long slope of his last years.
In October, 1269, there occurred an incident which, if indeed the
report be well founded, sums up the attainments of his reign. Henry
brought together a great assembly in honor of Saint Edward, an
assembly of magnates lay and clerical, and likewise numbering certain
representatives of the cities and boroughs.[122] After the conclusion
of the ceremony, Henry convened the barons as a Parliament, and
received from it a grant of a twentieth of lay movables. Whether or not
the burgesses and citizens participated in the offering to the king is
unknown. But if that be the truth, enveloped as it is in the mist,
then we can see the newly-made legislators actually participating in
the most important of legislative functions, and we are assured that
the work of Simon de Montfort had indeed borne early fruit.
IV