The Project Gutenberg eBook, The History of Parliamentary Taxation in England, by Shepard Ashman Morgan

THE HISTORY OF
PARLIAMENTARY TAXATION
IN ENGLAND

Williams College

DAVID A. WELLS PRIZE ESSAYS

Number 2

THE HISTORY OF
PARLIAMENTARY TAXATION
IN ENGLAND

BY

SHEPARD ASHMAN MORGAN, M.A.

PRINTED FOR THE
DEPARTMENT OF POLITICAL SCIENCE
OF WILLIAMS COLLEGE
By Moffat, Yard and Company, New York
1911

HENRY LOOMIS NELSON
OLIM
PRECEPTORI
D. D. D.
DISCIPULUS
HAUD IMMEMOR
S. A. M.

PREFACE

This is the second volume in the series of “David A. Wells Prize Essays” established under the provisions of the bequest of the late David A. Wells. The subject for competition is announced in the spring of each year and essays may be submitted by members of the senior class in Williams College and by graduates of not more than three years’ standing. By the terms of the will of the founder the following limitation is imposed: “No subject shall be selected for competitive writing or investigation and no essay shall be considered which in any way advocates or defends the spoliation of property under form or process of law; or the restriction of Commerce in times of peace by Legislation, except for moral or sanitary purposes; or the enactment of usury laws; or the impairment of contracts by the debasement of coin; or the issue and use by Government of irredeemable notes or promises to pay intended to be used as currency and as a substitute for money; or which defends the endowment of such ‘paper,’ ‘notes’ and ‘promises to pay’ with the legal tender quality.”

The first essay, published in 1905, was “The Contributions of the Landed Man to Civil Liberty,” by Elwin Lawrence Page. The subject of the following essay was announced in 1906 by the late Henry Loomis Nelson, then David A. Wells Professor of Political Science. As first framed it read, “The Origin and Growth of the Power of the English National Council and Parliament to Levy Taxes, from the Time of the Norman Conquest to the Enactment of the Bill of Rights; Together with a Statement of the Constitutional Law of the United States Governing Taxation.” Mr. Nelson subsequently eliminated the last clause, thus restricting the field of the essay to English Constitutional History. The prize was awarded in 1907. Since the death of Mr. Nelson in 1908, the task of editing the successful essay has been given to the undersigned in coöperation with the author.

In publishing this volume occasion is taken to state the purpose of the competition. Since it is confined to students and graduates of a college which offers no post-graduate instruction, it is not intended to require original historical research but rather to encourage a thoughtful handling of problems in political science.

Theodore Clarke Smith,

J. Leland Miller Professor of

American History

Williams College,

Williamstown, Mass., December, 1910.

INTRODUCTION

In a chapter of Hall’s Chronicle having to do with the mid-reign history of Henry VIII occurs an instance of popular protest against arbitrary taxation. The people are complaining against the Commissions, says the Chronicler, bodies appointed by the Crown to levy taxes without consent of Parliament. “For thei saied,” so goes the passage, “if men should geue their goodes by a Commission, then wer it worse than the taxes of Fraunce, and so England should be bond and not free.” Hall’s naïve statement is scarcely less than a declaration of the axiomatic principle of politics that self-taxation is an essential of self-government.

Writers on the evolution of the taxing power are inclined to go a step farther and believe that the liberty of a nation can be gauged most readily by the power of the people over the public purse. With a view so extended a narrative of the growth of popular control in England might easily expand into a history of the English Constitution. In the present essay, however, an effort has been made to exclude all matters which were not of the strictest pertinency to the subject in hand. Feudal dues and incidents, the machinery of taxation, the Exchequer, the forces accounting for the shifting composition of the national assemblies, these and other matters have been treated of in outline rather than in detail, because they appeared to lie beyond the scope of this essay.

Only two matters have been taken to be of first rate importance,—the tax and the authority by which it was laid. Taxation has been construed broadly as being any contribution levied by the government for its own support. An endeavor has been made in each instance to find out who or what the taxing authority was, and whether the tax was laid in accordance with it. Under the Normans the taxing authority was unmistakably the king, and by the Bill of Rights it lay as unmistakably in Parliament, with the right of initiation in the House of Commons. The story of the shift from one position to the other forms, of course, the major burden of the essay.

At the time when the subject was assigned, the power of the House of Commons over money bills had not been brought into question for more than two centuries, and the first drafts had been written and the prize awarded before the Asquith ministry was confronted with the problem of interference by the House of Lords. At this writing the question has not been settled. It has seemed advisable therefore to leave the essay within the bounds originally set for it, and what connection it has with the events of 1909 and 1910 consists chiefly in its consideration of the basic principles involved in that struggle.

To the late Henry Loomis Nelson, David A. Wells Professor of Political Science in Williams College, I owe the interest I have had in the preparation of this book. It is an outgrowth of his course in English Constitutional history, and some of the interpretations placed upon events are his interpretations. His death intervened before the second draft of the book was made, and the revisory work had to be done without his suggestions. To my friend, Dr. Theodore Clarke Smith, Professor in Williams College, I am indebted for a painstaking examination of the manuscript and for much valuable advice in the work preliminary to publication. Acknowledgments in the footnotes to Bishop Stubbs, Mr. Medley, Mr. Taswell-Langmead and many others scarcely manifest my obligations. But the essay throughout is based upon original authorities.

Shepard Ashman Morgan.

New York, December, 1910.

CONTENTS

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

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:Amongst the Germans “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.

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.Amongst the Anglo-Saxons 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.

As lord of the national land, the king had a double source of revenue. The folkland, or land subject to national regulation[2] and Revenue of the Anglo-Saxon kings 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.

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, The Witenagemot and its powers 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.

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,His National Council 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

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.Instance of the Danegeld, 1084 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 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? In the Shire Moots 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.

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?In the National Council 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]

By the treaty of Wallingford in 1153, Stephen agreed that the crown should descend at his death to Henry of Anjou,[29] Henry II, 1154-1189 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]

The story of it is full of dramatic interest. At the Council of Woodstock in 1163, “the question was moved,” Controversy with Becket over the Sheriff’s Aid 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.

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. Scutage 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, 6s. 8d.) 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 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. The Saladin Tithe, 1188 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.Assessment by Juries of Inquest 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.

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. Scutage, a cause leading to the Charter 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.

But it was only a pause. On June 1, 1212, he caused to be taken the Inquest of Service, Inquest of Service, 1212 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.

There were two features of John’s use of scutage aside from the magnitude and frequency of his levies Attendant abuses of John’s levies of Scutage 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.

But the knights were by no means the only body of Englishmen whom John alienated by his frequent levy of taxes. Antagonism of the clergy 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.General demand of a thirteenth of movables “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.”

The time was at hand when men would not longer endure the extortionate exercise of an unchallenged royal right. Normandy is lost 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.

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.Events leading to Runnymede 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.

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. Reissue of the Charter with omissions 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]

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, Second reissue of the Charter this time in the form which later generations of kings should be called upon to confirm.

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 Its omissions 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.

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. Text of 1215 is adhered to in practice 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.

If full credence can be attached to the record here given that a tax was Carucage “assessed” by the Council, 1218 “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.

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. Conditional grant of a fifteenth of movables, 1224 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.

The Council continued to exercise the right not merely of making grants of money in consideration of a redress of grievances, Other conditional grants and instances of refusal 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]

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. Offer of a disbursing commission, 1237, rejected 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.

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 Refusal of a grant, 1242 “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]

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 Great Council in 1244 holds out for supervised expenditure 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]

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.Representation as it existed in Henry’s National Council 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.

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 King and Earl Simon call knights of the shire to national assemblies 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

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 The House of Commons is foreshadowed 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

LAW OF PARLIAMENTARY TAXATION
1272-1297

Henry died the 16th November, 1272, with his son, the great Edward, away on the crusade. But there was no question as to the succession; the most powerful of the barons swore fealty to Edward Edward I, 1272-1307 four days after his father’s death, and when he returned to England in the middle of 1274, he was crowned King of England. In the interim, the government was in the hands of the Archbishop of York; the barons still resting after their struggle with Henry III engaged in no warfare other than their usual petty tumults. The regular income of the crown sufficed for the expenses of government.

The young king whose way to the throne was thus paved for him, was one of the greatest, if indeed he was not in truth the greatest, figure which ever graced the English throne. He is credited with being a lover of truth and purity, honorable and contented with frugal living; he was wary and at the same time determined; an able councillor, ingenious in working out the details of a plan, he was yet most sure in accomplishment. Edward was by instinct a legislator, and equally instinctive was his love of arbitrary power. Yet his wisdom kept him short of tyranny and showed him that the fittest means of conserving his own advantage was to allow Parliament reasonable leeway and scrupulously to regard the forms of its enactments. Edward was, however, capable of utilizing the letter of the law to the prejudice of its spirit. And therein lay the chief defect in his generally ascribed character of perfect monarch; he was not above using the law to contravene the purposes for which the law itself was designed.

Representation, which had “ripened in the hand of Simon de Montfort,” Edward I made the common fruit of the people. Edward had the conception that the nation, if it be strong enough to live in the face of dangers, must act as the united backing of a strong king. The relation, as he intended it, between king and people is reciprocal; the strength of the one is the strength of the other, and neither must predominate. That was precisely the relation which such a Parliament as that called by Edward I in 1295, was capable of bringing about; in it each of the three estates had an essential share in the carrying on of the government.

The early part of his reign is of importance secondary to that of the decade ending with 1297. But an understanding of the supremely important crisis which brought about the Confirmation of the Charters is only to be built upon a knowledge of the various events which preceded it.

Before Edward returned from Palestine, his regents summoned to a Parliament held at Hilarytide 1273, not only prelates and barons, but also four knights from each shire and four citizens from each city.[123] The purpose of the convention was the taking of the oath of allegiance to the new king, and the call was prompted doubtlessly by the need of having the whole nation held loyal to the absent and still uncrowned Edward. Here was another instance of the growing appreciation of the usefulness of the commons.

Edward’s first Parliament, 1275, and the Statute of Westminster

There was no taxation in the reign of Edward I, except as the clergy taxed the people for the prosecution of the crusade, until Edward called his first Parliament on the 22d April, 1275, at Westminster. The composition of the assemblage is uncertain; the implication of the Chronicler is that it was a Parliament of magnates,[124] but the introductory clause of the Statute of Westminster has it otherwise.[125] “These be the Acts of King Edward ...” it says, “by his council and by the assent of archbishops, bishops, abbots, priors, earls, barons and the community of the realm being thither assembled.” The Statute of Westminster, which was composed of some fifty-one articles, included a provision for regulating the feudal aids which were required upon the knighting of the lord’s son or on the event of the marriage of his daughter. Twenty shillings on the knight’s fee and twenty shillings from each parcel of land held in socage yielding twenty pounds annually, were to be the maximum rates thereafter.

A custom on wool

The great advantages gained by the nation under the Statute of Westminster were not won without a price. The same Parliament made a grant of a custom on wool, woolfells, and leather.[126] The parties to the grant were essentially the same as those who registered their assent in the preamble of the statute; there was, however, this singular difference, that it was done “at the instance and request of the merchants.” The amount levied was “a half-mark from each sack of wool, and a half-mark from each three hundred woolfells, which make a sack, and one mark from each last of leather, exported from the realm of England,” etc.

The importance, both in a forward view and in retrospect of this grant of a wool custom, is very great. Parliament in granting this custom assumed the power of assenting to a tax which previously had been considered within the peculiar province of the king. It made a definite statement of what was to be taken subsequently as the legal rate of duty chargeable upon exports of wool. The rate, which since the beginning of the century had been agreed upon between royal officers and merchants as their reasonable charge was this half mark (6s. 8d.) on each sack of wool weighing 364 pounds, or on the estimated equivalent of a sack, 300 woolfells, and a mark upon each last (or load) of leather.[127] Exactions above this rate were known as mala tolta, the evil tolls, and the phrase had been shortened to the single word maletolt. The forty-first chapter of Magna Carta had promised to all merchants freedom “from all evil tolls,” though it continued the “ancient and right customs.” Apparently, however, Henry III with respect to this clause as in many another similar instance, did not deem himself bound to adhere scrupulously to his promise. The Parliament of Edward I at Westminster in 1275 settled the matter; the “great and ancient custom” on wool was legally determined, and thereafter a larger exaction would be regarded as illegal.[128]

Edward’s Second Parliament, 13th October, 1275

Edward summoned a second Parliament for the 13th October following in a manner which gives ground for the presumption that the presence of the knights of the shire in a parliament designed primarily for the raising of money, was already becoming a custom. The point cannot be better illustrated than by a translation of the writ itself.[129] “Since we have bidden the prelates and magnates of our realm,” so it goes, “to be present at our Parliament which we will hold ... at Westminster, to treat with us both concerning the condition of our realm and of certain of our business which we will declare to them at the same time, and as it is expedient that two knights from the county above-mentioned be present at the same Parliament from the body of discreet and lawful knights of the same county, by the reasons above-stated we command you that you cause to be elected in your full county-court (in pleno comitatu) by the assent of the same county, the said two knights and that you cause them to come to us at Westminster in behalf of the community of the said county on the said day, to treat with us and with the above-mentioned prelates and magnates about the above-stated business. And omit none of it.”

[Sidenote Attendance of Knights of the Shire “expedient” for uses of taxation]

Thus we observe that it was “expedient” for the lesser landholders to be present in a Parliament which was called for the purpose of securing the grant of a tax. The tone of the writ is most matter-of-fact, as though the knights of the shire were considered scarcely less usual attendants at Edward’s parliaments than the magnates themselves. That the king “declared unto them certain of his business” and that they proved amenable is exhibited by the fact that this Parliament granted a fifteenth of temporal movables.[130]

The next event of importance witnessed the extension of the function of levying taxes to the citizens and burgesses. By the fall of 1282 Edward found himself in financial difficulties. Since the Parliaments of 1275 taxation had been very light. He had received in 1279 a scutage of forty shillings on the fee on account of the Welsh war,[131] and he received assistance from the clergy in 1279 and the years following. Beside the income resulting from these grants, he still had his custom on wool, but it was far from sufficient for his needs, and he had been obliged to have recourse to the rigid enforcement of statutes, rigorous application of writs, notably that of Quo Warranto,[132] and in 1278 he had adopted the expedient, in after time to be exercised frequently, of compelling all who possessed £20 a year in lands to become knights, and to pay the fee incidental to the attainment of knighthood.[133]

Provincial assemblies at Northampton and York, 1283

The Welsh war came on again in 1282 and added to the king’s embarrassment. He was unwilling to call a Parliament and took the less public but also less efficient means of negotiating with individuals for money with which to carry on the war. He sent royal commissioners abroad through the country who should plead the king’s necessity and accept grants from sheriffs, bailiffs, and mayors as representing their respective communities, and also from individual citizens and countrymen upon their own behalf.[134] These private offerings tided the king over his immediate necessities. Late in the fall, however, he found his position untenable and was forced either to call a Parliament or to adopt some effective substitute. Being at Rhuddlan, in the center of hostile country, and having most of his barons with him, he was obliged to formulate a new plan for the attainment of his end or else to adopt existing machinery to his purposes. He sent out writs on the 24th November bidding the sheriffs send representatives to two provincial assemblies at Northampton or York, as the case might be, for the 20th January following. The members were to include all those who were capable of bearing arms, and who held lands to the annual value of £20, not already with the army; four knights from each county having full power for the community of the county; two men from each city, borough, and market town, having like power for the community of the same, “to hear and to do those things which we on our part will cause to be shown to them.”[135] The clergy also were summoned; the bishops were to bring their archdeacons, the heads of religious houses, and the proctors of the cathedral clergy.

They make grants of taxes

These irregular assemblies convened as they were bidden, the clergy and laity meeting separately. The knights and burgesses at Northampton made a grant of a thirtieth on condition that the barons do likewise;[136] the clergy refused to make any offering at all because the parochial clergy were not represented. At York, the knights and burgesses made the grant of a thirtieth without condition; the clergy made promises which they did not keep. When the collection was made, allowances were admitted for the sums which had been contributed upon private negotiation. Notwithstanding the irregular character of these Councils in view of later developments,—irregular in that the parochial clergy and the baronage were not represented and that the meeting was not in a single general assembly,—they marked the “transition from local to that of central assent to taxation.”[137] The king had discovered that it was easier to attain his end through a Parliament than by private solicitation,—that is, if he were to wait for the assent of the people at all. It was a step on the road; Edward had decided in favor of summoning a Parliament as against asking for money from individuals. It was more profitable.

There is no further record of taxation until 1289, save that of a grant in 1288 from Nicholas IV, of an ecclesiastical tenth for six years in reward of Edward’s vow to undertake a crusade,[138] and a scutage in 1285 on account of the Welsh campaign of three years before.[139] Edward’s expenses, on the other hand, were heavy. The prosecution of his foreign interests in Gascony, where he had been in person for three years, was a heavy drain upon the exchequer. Parliaments of 1289 and 1290 At the Parliament of 1289 the treasurer, John Kirkby, laid the royal needs before the barons, who responded that they would not pay “until they should see the king’s face in his own land.”[140] Kirkby began to tallage the cities and boroughs and the other demesne lands of the king, “imposing upon them an intolerable sum of money.” It is probable that this as well as other royal tallages applied only to such of the cities and boroughs as were included in the royal demesne. As a matter of fact, most of the boroughs were included in the demesnes of the king.[141]

The following spring Edward married his younger daughter to the Earl of Gloucester and besought Parliament for an aid “pur fille marier,” though technically this was to be paid only in the case of the marriage of the king’s eldest daughter. Parliament proved well-disposed, however, and granted forty shillings on the fee. The manner in which the barons and bishops who composed this session of Parliament made their offering is noteworthy, in view of the fact that the tenants-in-chief intimated that they could speak only for themselves. They made their own grant of an aid and extended it “as far as in them lies,” to “the community of the whole kingdom.”[142] The barons made special note of the fact that the offering was an advance upon the two marks which had been granted to King Henry, and stipulated that this be not drawn into precedent. As a matter of fact, the tax fell only on the tenants-in-chief (just why can only be conjectured), and the collection was not made until many years afterward.

A second Parliament was held in July. To it Edward summoned two or three elected knights from each shire.[143] The design behind the calling of the Parliament was probably the securing of a grant of a fifteenth of temporal movables, since it develops that such a tax was laid at that session, by clergy and laity alike.[144] Edward made a further demand of a tenth of spiritual revenue, which the clergy granted him on the 2d October following.[145] Apparently these offerings to the king were in payment for his banishment of the Jews, who were hated for their usurious habits and for their religion; the laity sought their expulsion for the former reason and the clergy ostensibly for the latter, but the offence to their pockets doubtless did much to arouse their religious zeal against the Jews.

The interval between 1290 and 1294 does not furnish a wealth of material. The royal poverty coexisted with a spirit of restlessness on the borders and in France during the four years, and little was accomplished toward relieving either the one or the other. In 1291 the Pope had complicated Edward’s relations with the English clergy by giving him a tenth of spiritual revenue for six years,[146] and the barons holding estates in Wales gave a fifteenth in 1292. Edward also had recourse to distraint of knighthood, which as in 1282 was symptomatic of a straitened treasury.[147]

Edward in June, 1294, held at Westminster a Parliament which was attended by the magnates of England and John Baliol, King of Scotland. The barons determined upon war with France, and proceeded to provide for the outlay necessitated by it, not by a general grant, but with private contributions. John Baliol gave the income from the estates which he held in England for three years, and the other magnates “promised aid according to their abilities.”[148] But the supply was far from being sufficient;Seizure of wool, 1294 Edward was obliged to adopt extraordinary means to meet his obligations. Shortly before the Westminster Council Edward had made a move which later assumed large proportions in the parliamentary eye. He seized all the wool in the country, belonging both to clergy and laymen, and released it the following July at a rate which meant scarcely less than redemption, three to five marks on the sack, and which was greatly in excess of the rate specified in 1275. Edward had a shadow of legal sanction for his act, perhaps the consent of the wool merchants,[149] perhaps an ordinance of his Council.[150]

In any event, he had the great defense of the exigencies of war, a plea which he knew how to make effective. Early in July he seized coined money which had been deposited in the cathedrals and religious houses for safekeeping, and had it removed to his treasury in London. “And he got much money which he never after restored,” says the Chronicler.[151]

Edward summoned for the 21st September of the same year a general convocation of the clergy to London. Beside the usual body of prelates, there were in attendance elected representatives of the parochial and cathedral clergy. Edward demanded half the spiritual revenue, to the great distress of the ecclesiastics. They demurred, and urged a postponement which Edward granted them. Upon their reassembling, the king reiterated his demand upon pain of outlawry in case of nonfulfillment. Clergy grant money under pain of outlawry, 1294 The Dean of St. Paul’s was so greatly terrified that he died of fright, and then the grant was made.[152] This assembly takes its importance from the fact that here was a tacit recognition of the need of clerical consent through representatives to taxation.

Knights of the Shire meet separately

On the 8th October, Edward addressed writs to the sheriffs ordering the election of two knights in each shire who were to come to Westminster on the 12th of the following month. They were to be of “full power for themselves and the entire community of the county aforesaid, to consult and consent for themselves and that community, to those things which the earls, barons, and chief men shall have agreed upon and ordained.”[153] The next day Edward sent out supplementary writs summoning two knights from each shire in addition to those previously called. There was no representation from the cities and boroughs. The laity proved more tractable than the clergy had been at their assembly in September, and readily accomplished Edward’s purpose. It is probable that their deliberations were not delayed, for on the same day with the assembling of the Parliament, was dated the appointment of the commissioners of collection. The laity of the baronage and the shires gave a tenth of all movables.[154] A sixth of movables was drawn from the towns by separate negotiation, or perhaps by way of tallage.[155]

The step to the events and attainments of the next year was not long, but it was of surpassing importance. The year 1295 is painted in scarlet on the canvas of constitutional progress in England. It witnessed the Model Parliament in the composition of which a principle was applied which must ever stand as the basic theory of popular legislative institutions; Events leading up to the Model Parliament, 1295 indeed, without it, there can be no lawmaking by the nation at all, and when the taxing power be included amongst the lawmaking functions, unless strict adherence be given to this principle, the taxpayer can never be assured of a voice in the laying of taxes. Edward I, furnishing the pattern, summoned the Model Parliament on the expressed theory that “what touches all, by all should be approved.” Here was the first authentic instance of a perfect and complete representation of the three estates in a national legislative body giving its assent to taxation.

The events immediately prior to the calling of the Parliament are of interest. Trouble was on with the Welsh, and a Scotch war began before the other was over. The French king had transgressed Edward’s Gascon possessions and his sailors had landed at Dover, putting a convent and some houses to the torch. Edward’s arms seemed doomed to universal failure; nowhere were his prospects bright. By no means the least serious feature of his position was an empty treasury. With the hope of devising the means of changing his fortune, he summoned to Westminster for the 1st August a Parliament composed of the barons and prelates of the realm. The session took place on the 15th August. The bulk of the debate was upon the proposal for papal mediation between England and France, and no attempt was made to raise money. But it was doubtlessly decided to ask for a grant at the meeting of Parliament intended for the following autumn.[156]

“What affects all, by all should be approved”

On the four days from the 30th September to the 3d October, Edward addressed writs to the clergy, the barons, and the sheriffs, the last of whom were to send up the representatives of the counties and the boroughs. In the writs to the clergy, by way of preamble Edward said, “As a most just law, established by the careful providence of sacred princes, exhorts and decrees that what affects all, by all should be approved, so also, very evidently should common danger be met by means provided in common.”[157] This legal maxim, which had previously held a place only in the minds of students of the law, was by this act become a most important element in the governmental practice of England.[158] The writs provided not only for the attendance of the prelates, but also for the sending up of representatives of the lower clergy,—the archdeacons and deans in person, a suitable proctor for the chapters, and two others for the parochial clergy of each diocese. All were to have “full and sufficient power ... to consider, ordain, and provide.”

The writs to the barons[159] were similar in tenor to the usual issuance upon such occasions. To the sheriffs it was “strictly commanded” that they “cause to be elected without delay” and sent up to Westminster “two knights from the aforesaid county, two citizens from each city in the same county, and two burgesses from each borough, of those who are especially discreet and capable of acting.” All were to have “full and sufficient power for themselves and for the community of the aforesaid county ... and the communities of the aforesaid cities and boroughs separately, then and there for doing what shall then be ordained according to the common counsel in the premises; so that the aforesaid business shall not remain unfinished in any way for defect of this power.”[160]

The Model Parliament, 27th Nov., 1295

The Parliament, since known as the Model Parliament, assembled the 27th November, 1295, in accordance with the summons of the king. Each of the estates met by itself, and each made its grant to the king independently of the others.[161] The barons and the knights of the shire gave Edward an eleventh of their movables, the clergy a tenth, and the burgesses and citizens a seventh.[162] Here was the perfect form for the laying of taxes. In 1283 the provincial councils at Northampton and at York had suggested the composition of the Model Parliament, but the foreshadowed form was far from perfect. In 1295 the question was fully answered as to how the people should assent to taxation, in case their assent should be asked. The Model Parliament furnished the perfect mechanism; the question was still in the air, however, as to whether this mechanism should be the sole instrument by which the laying of taxation should be performed.

Similar composition at Parliament of 1296

Events, however, were tripping one another up in their haste to bring forward a suitable answer. The Parliament of 1296, which met at Bury St. Edmund’s on the 3d November, clinched a precedent which should have its weight in making the reply. Its constitution was precisely the same as in 1295; the barons and knights gave a twelfth of their movables, and the citizens and burghers an eighth.

The clergy, however, held off. According to the understanding reached the previous December when Edward accepted from them a tenth in lieu of a larger grant, they were to meet a demand with a further contribution of like amount,[163] unless peace be declared in the interval. In consequence, Edward was scarcely ready to accept the apology of Archbishop Winchelsey; the archbishop declared that should the clergy acquiesce, the papal will expressed in the recently published bull “Clericis laicos”[164] would be contravened, and that Edward puts the clergy in outlawry therefore no grant would be forthcoming. He would give his final answer after meeting the clergy of his province at St. Paul’s early in January, 1297. When at last his reply was presented, it was in tenor different from that given in November; the Pope’s will was clear and it must hold. Edward moved swiftly. Remembering the satisfactory effect of his threat of outlawry in 1294, he immediately placed the clergy beyond the royal protection.[165] Some of the clergy won back the favor of the king by making individual contributions to the royal treasury, an evasion of the terms of the papal bull which was quite acceptable to Edward. On the 12th February, the king, weary of waiting for a favorable movement from Archbishop Winchelsey, ordered the seizure of the lay fees of the clergy in the see of Canterbury, whereat the archbishop brought forward his weapon of excommunication. Thus did Edward find disposed against himself and the royal cause the powerful body of English churchmen, at a moment when their adherence would have been of vast advantage.

The Scots had been put down during the year 1296 and Baliol removed forever from Scotch territory. The momentary peace on the borders made Edward feverish to avenge himself upon Philip of France, who was making free with Gascony. The trouble with the church had served to delay preparations which might speedily have reached completion upon the granting of money at the November Parliament, and Edward was in no temper to brook further interference. He had formulated a plan of campaign against the French which provided not only for an expedition into Gascony in reinforcement of the army already there, but for the landing of a powerful force in Flanders. The latter he intended to lead in person, but the conduct of the Gascon army he hoped to delegate to his barons. With the intention of securing their consent he Struggle with the barons over service in Gascony called a meeting of the baronage at Salisbury for the 24th February. Neither the clergy nor the knights and burgesses were present. The barons held freshly in mind the recent opposition of the clergy and they were in no mood to forego any tightening of the royal bonds upon themselves.

Edward urged them to go into Gascony, and straightway one by one they began to make excuses. To the king, burning to defend the English possessions abroad and already overwrought by the long struggle with the churchmen, the refusal savored of disloyalty, and in requital he threatened them with forfeiture of their lands. The two great earls Roger Bigod, Earl of Norfolk and Marshal of England, and Humfrey Bohun of Hereford, the Constable, were quite as backward in meeting the king’s wishes and no more favorably received.

“With you, O King,” said Earl Roger, “I will gladly go: as belongs to me by hereditary right, I will go in the front of the host before your face.”

“But without me,” Edward assured, “you will go with the rest.”

“Without you, O King,” Earl Roger declared, “I am neither bound to go, nor will I.”

“By God, Earl,” swore the king, “You shall either go or hang!”

“By the same oath, O King, I will neither go nor hang!”[166]

In these words and on these grounds the Earl Marshal of England refused to undertake foreign service, and the Council scattered. Edward, not to be undone, straightway set about preparing for an expedition independently of his baronage. Seizure of wool He laid hands upon all the wool and woolfells of the country, that being the commodity most readily convertible into money, and ordered that it be carried to the seaports. In default of obedience, this wool passed to the crown by confiscation. Every merchant who was the possessor of more than five sacks received tallies from the royal commissioners which might or might not secure payment in the future.[167] Those who had less than five sacks were allowed to retain it upon paying a toll of forty shillings on the sack. Simultaneously, Edward directed at every county a demand for 2000 quarters of wheat, a like quantity of oats, and a supply of beef and pork. Whereas in 1294 Edward had been able to plead the consent of the merchants to his toll on wool, in the present instance no plea was possible save the exigencies of the case, and that was no defense at law. So Edward, by stress of circumstance, was obliged to forfeit the support of a growing and exceedingly important body of his people.

The king determined to make a final attempt to win the barons from their contumacy. For the 7th July, he summoned the whole fighting force of the kingdom to London; the assembly was to include all who held lands to the annual value of £20, no matter what the tenure.[168] From these a demand for foreign service was obviously unconstitutional, since they were not immediately bound to him. Coupled with the weakness of the king’s position was the continued opposition of Bohun and Bigod; they and a large number of the other barons had surrounded themselves with a force of knights to the number of fifteen hundred, and, though they were not as yet openly hostile, they had been able to shield their lands from the royal exactions of wool and wheat.[169] When Edward ordered the Marshal and the Constable to perform their offices, they refused.

Thus it was that Edward found himself pitted not only against the King of France, but also against the church, the merchant class, and his own baronage. Of these the church showed itself most amenable to placation. Edward restored to Archbishop Winchelsey the lands of the see of Canterbury which he had confiscated.[170] To strengthen further a position which at best was exceedingly weak, Edward made a dramatic attempt to win over to his cause the support of the people.

On the 14th July, a week after his unsuccessful council with the barons, he appeared on a wooden stage erected in front of the great hall at Westminster and addressed the populace. He asked that they forgive the harshness of his acts, but reminded them that what money they had given him had gone to subdue enemies plotting to drive the English tongue from the earth.

Edward’s appeal to the people

“Behold,” he cried, his voice choked with tears, “I am going to expose myself to danger for your sakes; I pray you, if I return, receive me as you have me now, and I will restore to you all that has been taken. But if I return not,” and at this he brought forward his son, the young Edward, who was standing near him on the platform, “crown my son as your king.”[171] The people threw up their caps and promised fealty to the king. The archbishop declared his resolve to be faithful.

But neither the reconciliation with the church nor the adherence of the London populace brought him money, and in so far as advantage was reckoned in terms of shillings, Edward was no better off than before his council of the 7th July. He had recourse to the old expedient of individual negotiation. He consulted in a private audience the chief men still remaining of those who had gathered for the military levy; he assumed their ability to grant taxes upon the analogy of a Parliament, an assumption scarcely reasonable in view of their depleted numbers.His financial expedients Notwithstanding the fact that Earls Roger and Humfrey remained obdurate, such of the barons and knights as were there granted an eighth and the citizens and burghers a fifth, on the somewhat hazy understanding that the king should confirm the charters. Edward on the 30th July gave orders for the collection of the tax and issued writs for the seizure of 8000 sacks of wool, for which the merchants received tallies as a record of credit at the exchequer.[172]

Then he went down to the coast and prepared to embark. Putting great faith in the continued support of the people, he addressed to them an eloquent plea for loyalty to the crown as against the barons. He spoke of the exactions of money to which they had been subjected, and declared that, severe as was the pain which had been inflicted upon the people, equally great was his own distress; that the money had been spent for “le commun profit du reaume, pur son pople honyr et destruyre.”[173] The barons, The barons’ grievances on the other hand, immediately came forward with a list of grievances which they presented to the king, complaining, amongst other things, of the aids, tallages, and prises which the king had lately levied. So afflicted were they with “divers tallages, aids, and prises,” such as those upon corn, oats, malt, wool, hides, oxen, kine, and salt meat, that it would have been impossible for them to equip for any foreign expedition. More than that, they could make no grant of an aid, because of their great poverty following the exaction of the aforesaid tallages and prises; indeed, there were “many who had no sustenance, and who could not till their lands.” The tax on wool was much too heavy, no less than 40s. on the sack; wool comprised half the wealth of the nation, and the tax was equivalent to a fifth part of the value of the whole land. Magna Carta and the Charter of the Forest were both disregarded, and many acts were done in defiance of them.[174]

Edward did not return a definite answer; the call to war sounded too loudly. Before he embarked he issued orders for the collection of Edward embarks for Flanders a third of clerical temporalities in a most peremptory manner; on the 10th August the clergy had expressed hopes of being able to gain the Pope’s permission to disregard the provisions of “Clericis laicos,” but of late they had showed a disposition to stand with the baronage. Finally, on the 22d August, Edward succeeded in getting up sail and made for Flanders.

But he could not escape the issue. Almost before England had sunk below his horizon Bohun and Bigod were at the Exchequer loudly protesting against the collection of the aid which had been irregularly granted to Edward five weeks previously. They went to the extreme of forbidding the Barons of the Exchequer to proceed with their work of taking the tax until Edward should make formal confirmation of the Charters.[175] The Londoners forgot their loyalty to the king, and swore by the earls. The young Prince Edward, afterward king, whom Edward had left as his regent, tried to throw a dam across the swelling river by promising that the eighth should not be taken into precedent.[176] This was published in proclamation on the 28th August, but it availed nothing. The fifth which had been asserted as owing from the cities and boroughs was lost sight of.

Edward, two days before his departure for Flanders had sent out summonses to a number of barons and knights to meet his son on the 8th September at Rochester. But before that date was reached, the necessity for a full Council was apparent. Accordingly, on the 8th September, messages were sent out which called most of the barons of the royal party; on the 9th, Archbishop Winchelsey, the Constable and the Marshal, were summoned,[177] and on the 15th letters were addressed to the sheriffs ordering an election of knights of the shire.[178] No representatives of the cities and boroughs or of the inferior clergy were called.

The Parliament was summoned for the octaves of St. Michael (the 6th October), at London. The great nobles, coming with their train of armed soldiers, both foot and horse, had command of the situation.[179] They demanded that the young regent confirm Magna Carta and the Charter of the Forest, together with certain supplementary articles. Prince Edward, acting on the advice of his councillors, agreed, and straightway on the 10th October, sent the Charters and the new Principle that grants must await redress of grievances provisions to his father in Flanders for final confirmation. Nor was that enough. “The earls,” says Bishop Stubbs, “took advantage of their strength to force on the government the principle, which both before and long after was a subject of contention among English statesmen, that grievances must be redressed before supplies are granted.”[180] The irregular and much disputed grant of an eighth they declared null, and in place of it they substituted a ninth from such of the laity as were in attendance, a grant in which the towns subsequently were included. Here was one of the opening battles in the war which was to decide whether or not Parliament, sitting guardian of the public purse, could by reason of that guardianship, establish its control over the executive as well as the legislative acts of the nation.

The articles found the king at Ghent on the 5th November and he set his name both to the Charters and to the provisions supplementary to them. The difficulties with the barons thus concluded, it was not long before the clerical atmosphere cleared also.Confirmation of the Charters On the 20th November, the clergy, in response to a suggestion from Archbishop Winchelsey, evading the letter of “Clericis laicos,” initiated a tax upon themselves, a fifth from the northern province, and a tenth from the southern.[181] The purpose of the levy was the defense of the realm against the Scots who had again invaded the north.[182]