CHAPTER VII

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

The History of Parliamentary Taxation in England · 第 7 / 10 章