TAXATION IN ENGLAND***


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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.







[Illustration: LOGO]

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


  CHAPTER I

  THE SAXONS: CUSTOMARY REVENUES AND EXTRAORDINARY CONTRIBUTIONS       1

  Evolutionary character of the English Constitution--Early ideas
  of taxation amongst the Germans and Anglo-Saxons--Revenues
  of the Anglo-Saxon kings--The Danegeld and the authority for
  it--The Witenagemot and its powers.


  CHAPTER II

  FEUDAL AND ROYAL TAXATION: THE NORMAN AND THE ANGEVIN KINGS,
  1066-1215                                                           12

  William the Conqueror--His National Council and its part in
  taxation--Domesday Survey--William Rufus--Henry I and his
  Charter--Question of assent to taxation in the shire moots
  and the National Council--Stephen--Henry II--His controversy
  with Becket over the Sheriff’s Aid--Scutage--Theobald’s
  complaint--Early step toward a tax on movables--The Saladin
  Tithe and its assessment by juries of inquest--Richard I--His
  ransom--The king the authority for taxes--Refusal of Hugh
  of Lincoln--John--His scutages a cause leading to Magna
  Carta--Inquest of Service--John’s demand for a thirteenth
  of movables--Council at St. Alban’s, 1213--Summons to
  Oxford--Magna Carta--Chapters 12 and 14--Advance toward
  Parliamentary taxation.


  CHAPTER III

  THE CUSTOM OF PARLIAMENTARY GRANTS, 1215-1272                       71

  Henry III--Reissues of the Charter--Assessment of a carucage by
  the Council--Conditional Grants--Rejected offer of a disbursing
  commission--Supervision of expenditures--Representation as it
  was in Henry’s National Council--Knights of the shire called,
  1254--Provisions of Oxford--Knights of the shire summoned
  by Henry and Simon de Montfort to national assemblies--In
  Parliament, 1264--Simon de Montfort’s Great Parliament,
  1265--First instance of burgher representation--House of
  Commons foreshadowed.


  CHAPTER IV

  LAW OF PARLIAMENTARY TAXATION, 1272-1297                           107

  Edward I--His first Parliament and its grant of a custom on
  wool--His second Parliament--Attendance of knights of the shire
  declared “expedient”--Provincial assemblies at Northampton and
  York grant taxes--Seizure of wool, 1294--Separate meeting of
  knights of the shire--The Model Parliament, 1295--“What affects
  all by all should be approved”--Parliament of 1296--Struggle
  with the barons over service in Gascony--Contumacy of Bohun
  and Bigod--Principle that grants must wait upon redress
  of grievances--_Confirmatio Cartarum_--_De tallagio non
  concedendo_.


  CHAPTER V

  TAXATION BY THE COMMONS, 1297-1461                                 154

  Character of the period--Parliament of Lincoln--Tunnage and
  poundage and other customs--Tallage--Edward II--Tentative
  abolition of the New Customs--The Lords Ordainers--Abolition
  of the New Customs--Tallage of 1312--Deposition of Edward
  II--Edward III--Tallage of 1332 and its withdrawal--New Customs
  a regular means of revenue--The wool customs--Statutory
  abolition of the Maletolt and of all unauthorized
  taxation--Parliament the sole taxing authority in
  law--Checkered history of the wool customs--Appropriation
  of Supplies--Examination of Accounts--Death of Edward
  III--Separate sessions of the houses--Richard II--Trouble
  over audit of accounts--Special treasurers--The Rising of
  the Villeins--Richard’s despotism and dethronement--Henry
  IV--Initiation of tax levies in the House of Commons,
  1407--Henry V--Henry VI--Declaration for appropriation of
  supplies--Accession of the Yorkists.


  CHAPTER VI

  EXTRA-PARLIAMENTARY EXACTION, 1461-1603                            213

  Edward IV--Benevolences and forced loans--Richard
  III--Prohibition of benevolences--The Tudors--Henry VII--The
  “New-found Subsidy”--Morton’s Crotch--Early taxation of
  Henry VIII--Cardinal Wolsey’s breach of privilege--Henry’s
  commissions and benevolences--Forced loans--Profits of the
  Reformation--Parliament the confirming authority in clerical
  grants--Elizabeth--Liberality of her Parliaments--Assertion by
  the commons of their right to originate money bills.


  CHAPTER VII

  THE STUARTS, 1603-1689                                             236

  Divine right as against Parliamentary supremacy--James I
  dictates the composition of the House of Commons--Tunnage and
  poundage for life--Royal poverty--The Bate Case--Opinions of
  the Barons in the Bate Case--The position of Parliament--The
  Book of Rates--Remonstrance from the Commons--Cowel’s
  “Interpreter”--The Great Contract--Petty extortion after the
  dissolution of Parliament--The “Addled” Parliament--Case
  of Oliver St. John--James’s Third Parliament--Delay
  of a supply pending redress of grievances--Revival of
  impeachment by the Commons--James’s last Parliament--Charles
  I--His early Parliaments--Forced loans--Threats of
  non-Parliamentary exaction--The Petition of Right--Omission
  of the customs--Tunnage and poundage--Charles’s eleven
  years without Parliament--His financial expedients--Ship
  Money--Extra-judicial opinions--Hampden’s Case--Judgment for
  the Crown--The Short Parliament--The Long Parliament--Royal
  exaction of tunnage and poundage declared illegal--The
  Ship Money Act--The Grand Remonstrance--The Puritan
  Revolution--Charles II--Appropriation of Supplies--James
  II--William and Mary--The Bill of Rights.


  INDEX                                                              309




PARLIAMENTARY TAXATION




I

THE SAXONS: CUSTOMARY REVENUES AND EXTRAORDINARY CONTRIBUTIONS


[Evolutionary character of the English Constitution]

THE English Constitution looks ever backward. Precedent lies behind
precedent, law behind law, until fact shades off into legend and that
into a common beginning, the Germanic character. Standing upon the
eminence of 1689, one sees the Petition of Right, and then in deepening
perspective, Confirmatio Cartarum and Magna Carta. The crisis of 1215
points to the Charter of Henry I, and behind that are the good laws of
Edward the Confessor. The Anglo-Saxon polity looks back of the era of
Alfred, to the times when Hengist and Horsa were yet unborn, and the
German tribesmen were still living in their forests beyond the Rhine
without thinking of migrating westward. And there, behind the habits of
those barbaric ancestors of Englishmen, lies the national character,
the Anglo-Saxon sense of right and wrong, of loyalty, justice, and
duty. The growth of the English Constitution has been as subject to
the laws of evolution as the development of man himself. The germ of
national character evolved habits of thought and action, and these
habits, or as they are better termed, institutions, were beaten upon by
conditions and fused with the institutions of another people, until at
last they took on the shape of free government.

[Early ideas of taxation]

[Amongst the Germans]

An account of the advance toward the laying of taxes by representatives
of the people must begin with some notice of the idea of taxation which
actuated the German tribesmen. Tacitus writing of them as they were at
the beginning of the Second Century A. D. makes this remark: “It is
customary amongst the states to bestow on the chiefs by voluntary and
individual contribution a present of cattle or of fruits, which, while
accepted as a compliment, supplies their wants.”[1] Here, then, is the
earliest idea of a tax, a voluntary contribution for the support of the
_princeps_. It was prompted by the essentially personal relationship
existent between people and chieftain, the sense of attachment of the
people to the leader. Direct taxation laid by the _princeps_ upon the
tribe, was as unknown in Germany as it was foreign to the Germanic
spirit.

[Amongst the Anglo-Saxons]

When the conquering Saxons, therefore, swept westward across the
German Ocean, they carried with them scarcely more than a semblance
of taxation. Between men and leader the personal relationship still
subsisted, but as time went on, the Anglo-Saxon king became less
the father of the people, and more their lord. Lord of the national
land he was as well, but he did not rule by reason of that fact. The
two claims upon popular support were therefore distinct, the one as
personal leader, the other as lord of the national land; and during the
major part of the Anglo-Saxon era they afforded a sufficient means for
the maintenance of the king and his government. Until the moment of a
supreme emergency the king did not have to seek extraordinary sources
of income.

[Revenue of the Anglo-Saxon kings]

As lord of the national land, the king had a double source of revenue.
The folkland, or land subject to national regulation[2] and alienable
only by the consent of the Witenagemot, presented the king with its
proceeds, much of which went for the maintenance of the royal armed
retainers and servants. Deducible from this right to the public lands,
was the claim of the king to tolls, duties, and customs accruing from
the harbors, landing-places, and military roads of the realm, and
to treasure-trove. Aside from this, the king was one of the largest
private landowners in the kingdom, and from it he derived rents and
profits which were disposable at will.

The other sources of the royal revenue, which at least in the
beginning may be said to have accrued to the king by reason of
personal obligation, were the military, the judicial, and the police
powers. By reason of the military power vested in him, the king
could demand the services of all freemen to fulfill the _trinoda
necessitas_,--service in the militia, repair of bridges, and the
maintenance of fortifications. Further, in accordance with the
system of vassalage incident to his military power, he had the right
of _heriot_,[3] according to which the armor of a deceased vassal
became the property of the king. The judicial authority, also, was a
fruitful source of income; from it the king adduced a right to property
forfeited in consequence of treason, theft, or similar crimes, and to
the fines which were payable upon every breach of the law. The third
great power vested in the royal person was the police control; under
it the king turned to account the privilege of market by reserving
to himself certain payments; also the protection offered to Jews and
merchants was paid for, and the king pocketed the bulk of the tribute.
Beyond these,--and here we have the analogy of the later royal claim
to purveyance,--the districts through which the king passed or those
traversed by messengers upon the king’s business, lay under obligation
to supply sustenance throughout the extent of the royal sojourn.

[Danegeld, 991]

It is apparent that an extraordinary occasion had to arise before
this large ordinary revenue should prove to be inadequate to meet
all reasonable royal necessities. The whole matter is shrouded in
obscurity, yet it is unlikely that this extraordinary occasion arrived
before the onslaught of the Danes. There is no record of an earlier
instance.

It was in 991[4] that the Saxon army under Brihtnoth, Ealdorman of the
East Saxons, suffered decisive defeat at the hands of Danish pirates.
King Ethelred the Unready found himself at the mercy of foreign
enemies, and his only recourse was bribery. Under this necessity, a
levy[5] of £10,000 was made, and secured momentary peace from the
truculent Danes. But it was only momentary; they returned in 994
and took away £16,000. They repeated, under various pretexts, their
profitable incursions in 1002, 1007, and 1011.[6] In 1012, having
been bought off for the last time, the Danes entered English pay,
and the Danegeld instead of being an extraordinary charge, became a
regularly recurrent tax. It continued until 1051, when Edward the
Confessor succeeded in paying off the last of the Danish ships.[7] The
chronicler[8] accounts for the abolition of the Danegeld after the
manner of his time. Edward the Confessor, so goes the story, entered
his treasure-house one day to find the Devil sitting amongst the money
bags. It so happened that the wealth which was being thus guarded was
that which had accrued from a recent levy of the Danegeld. To the pious
Confessor the sight was sufficient to demonstrate the evil of the tax
and he straightway abolished it.

[Authority for the Danegeld]

But the history of the origin of the Danegeld and the mythical tale of
its abolition are of trifling importance as compared with the authority
whereby the impost was laid. In 991 it was apparently the Witenagemot,
acting upon the advice of the Archbishop Sigeric, which issued the
decree levying the tax.[9] Three years later it was “King Ethelred
by the advice of his chief men” who promised the Danes tribute.[10]
Similarly in 1002, 1007, and 1011 it is Ethelred “cum consilio
primatum” who fixes the amount of money to be raised.[11]

The deduction is not hard to make: it was at least usual if indeed it
was not felt to be a necessity for the king to take counsel with the
Witenagemot before he went about the preliminaries of taxation. It
is not unlikely, however, that in practice the assent of the Witan
was less or more of a formality varying according to the weakness or
strength of the king. A strong king’s will would dominate the Witan,
whereas a weak king would be subservient to its desires and interest.

[The Witenagemot and its powers]

In order to arrive at a clear comprehension of the taxing power of
the Witan as compared with that subsequently exercised by the English
Parliament, it is essential that one understands the make-up of the
Anglo-Saxon body. As its name implies, the Witan was an assembly
of the wise. Its organization was not based upon the ownership of
land, nor was there any rule held to undeviatingly which prescribed
qualifications for membership. Generally speaking it was composed of
the king and his family, who were known as the Athelings; the national
officers, both ecclesiastical and civil, a group which included the
bishops and abbots, the ealdormen or chief men of the shires, and
the ministri or administrative officers; and finally, the royal
nominees, men who are not comprehensible in the above classes, but who
recommended themselves to the king by reason of unusual or expert
knowlege.[12] It is observable, then, that this assembly was by the
nature of its composition aristocratic. That it was not representative
in the modern sense of the term is as readily apparent. With certain
restrictions the official members--the bishops, ealdormen, the
ministri--were coöpted by the existing members, while the remainder
were either present by right of birth or invited to attend by reason
of peculiar attainment. Nevertheless, the Witenagemot was commonly
believed to be capable of expressing the national will. It had the
power of electing the king and the complementary power of deposition,
and exercised every power of government, making laws, administering
them, adjudging cases arising under them, and levying taxes for the
public need.[13]

Such in brief was the body which in 991 assented to the levy of the
Danegeld. The act was of great importance; by it the Witan both
exercised a right which was not to be vindicated in its completeness
for the space of seven hundred years, but it laid a trap for those
who, in the time of Charles the First, should be struggling for the
attainment of that right, for in their action lay the precedent
which the Stuart lawyers should warp into a pretext for the levy of
ship-money.




II

FEUDAL AND ROYAL TAXATION

THE NORMAN AND THE ANGEVIN KINGS

1066-1215


[Character of the Norman Rule]

UNDER the Saxon kings the structure of government was only half built.
The foundation, laid in the shire and hundred moots, the townships, and
the incidental organisms of local government, was solid and capable
of upholding a heavy superstructure. But the Saxons scarcely built
further. They left to the Norman kings, peculiarly fitted to their
work by temperament and habit, the task of setting up a strong central
government. The price which the nation paid for it was the loss of what
right it had possessed of assenting to taxation.

During the whole period from the coming of the Normans in 1066 to the
signing of Magna Carta in 1215 there can be brought forward only two
or three instances of assent by the National Council to taxes levied
by the king, and these few instances are at best equivocal. They
are insufficient to justify the belief that the National Council had
any final power over the levying of taxation. But the period is not
altogether gray; it concludes with the enunciation in Magna Carta of
rights which cast a halo of color over the whole subsequent narrative
of the struggle for parliamentary taxation.

[William the Conqueror 1066-1087]

William the Conqueror was precisely the man most likely to exercise
supreme control over taxation. Elected to the kingship according to
the Saxon forms and with his title to the crown backed up by force of
arms, he created a system of government of which he himself was the
center and in which his authority, even to the vassals of vassals, was
supreme.[14] With his thirst for power thus satisfied he was given a
free hand to indulge his besetting sin of avarice. Small wonder was it
therefore that he clung to the revenues of his predecessors and added
new imposts of his own.

[His National Council]

Nevertheless, notwithstanding the absolutist character of the king,
William retained the theory and for the most part the form of the Saxon
Witan. Never, however, did the Norman assemblies exercise independent
legislative or executive functions.[15] The holding of land, as a
prerequisite to membership in the National Council, was under William
an uncertain factor; the membership continued to include, generally
speaking, the same officers, ecclesiastics, and nobles as composed
the Witenagemot. The powers of this assembly were probably not great;
at any rate, the magnates of the period considered attendance not
as a right or a privilege or even as an advantage, but merely as a
necessary duty toward the royal person. The king consulted the magnates
on almost every piece of legislation, and stated in the subsequent
promulgation of the laws that he had obtained their advice. But in the
case of a strong king, such as was the Conqueror, the consultation
must have been scarcely more than a statement of the royal will and a
formal acquiescence. The holding of these assemblies took place at
the crowning days of the king, at Christmas, Easter, and Whitsuntide,
generally in London, Winchester, and Gloucester.

[Its part in taxation]

[Instance of the Danegeld, 1084]

In the matter of taxation, it is probable as in the case of other
legislation that the Conqueror advised with his Council, though the
evidence pointing toward such a conclusion is entirely of a later
date. But in so far as practical advantage to the payers of the taxes
was concerned, the power might quite as well have lain solely in the
hands of the king; if indeed the Conqueror did secure the assent of
the Council, it was no more than an instance of his policy of adhering
to the forms of law while making the practices under it serve his
own purposes. The reimposition in 1084 of the Danegeld which William
revived as an occasional instead of a regular tax, is not stated by
the chronicler as receiving assent from the Council; the king is
said to have “received six shillings from every hide.”[16] Roger of
Wendover’s Chronicle of the same year brands this exaction as an
“extortion,”[17] by which we are scarcely to understand a tax granted
in any modern sense by the chief legislative body of the kingdom. The
Saxon Chronicler speaking of the same imposition says, “The king caused
a great and heavy tax to be raised throughout England, even seventy-two
pence on every hide of land.”[18] The amount of such an impost, if
drawn from two-thirds of the hidage of the kingdom, would be a sum
approximating £20,000.[19] It is unlikely that an exaction of so great
magnitude could have been levied without the assent of the Council if
the Conqueror was under any obligation to obtain their consent or even
their advice; and it is still more unlikely that four chroniclers of
the events of that year should have let pass unnoted a vote of assent
if it had been passed by the National Council. We are therefore to
conclude that either the Conqueror levied the tax without consulting
his Council at all, or that he did consult them, and that their assent
was of so formal and valueless a nature as not to deserve notice in the
records of the year.[20]

[Domesday Survey, 1086]

The year 1086 witnessed the Domesday Survey. By it William obtained a
detailed register of the land and its capacity for taxation. To the
administrative side of taxation the Survey is of supreme importance,
since the valuation of land thus arrived at was never entirely
superseded as a definite and fair basis for the laying of taxes; to
the actual granting of the tax, however, its importance is of much
less degree. In such light the interest centers chiefly on the fact
that representatives were elected from every hundred upon whose sworn
depositions the information that William wanted was obtained.

[William Rufus, 1087-1100]

The unlucky thirteen years of the reign of William Rufus, who succeeded
to the throne upon the death of the Conqueror in 1087, are almost
negligible in considering the progress toward parliamentary taxation.
William Rufus, or more particularly his brilliant and perverted
justiciar, Ranulf Flambard, determined upon the profitable program of
getting together as much money as possible by whatever means seemed
most convenient. In the nature of things the church and the great
feudatories were the most available sources for extortion and toward
them Flambard chiefly directed his energies. He did not, however,
overlook the Danegeld and he seems to have levied it with perfect
absolutism. The chronicler Florence gives an instance of the petty
extortion which the justiciar practiced upon the people. Flambard was
in the habit of enforcing military service from the shires. On one
occasion, so says Florence, he met the array, informed the militiamen
that there was no necessity for their appearance, and then proceeded to
mulct them of the ten shillings which their shires had given to each by
way of providing for their maintenance.[21] Against plunderings of that
sort the people were too weak and too disunited to make resistance. In
such a reign, with one side unwilling to progress and the other unable,
it is apparent that no steps could be taken toward the granting of
taxes by a responsible body.

[Henry I, 1100-1135]

The reign of Henry I is of greater importance, not only because of
the long forward strides which the king and his justiciar Roger of
Salisbury took in the direction of judicial and financial organization,
but because we find in the records of his time certain pieces of
evidence which seem to support the contention that the Council gave
some measure of consent to taxation. The former is palpably beyond the
scope of this essay, but the latter is more pertinent.

[His Charter]

The first of these instances is the eleventh section of the Charter
of Liberties which Henry I issued at the moment of his accession. The
significant passage is this: “To those knights who hold their lands by
the cuirass, of my own gift I grant the lands of their demesne ploughs
free from all payments and all labor.”[22] The king goes on to state
the reason; it was “so they may readily provide themselves with horses
and arms for my service and for the defense of my kingdom.” The relief
thus granted was by way of protection against the extortionate demands
which Ranulf Flambard had laid upon the lands of vassals in the time
of William Rufus. But Henry did not grant the liberty freely out of
hand. He appended the clause that for his service and the defense of
the kingdom, the vassals should supply themselves with horses and arms.
Thus remotely and in effect rather than in fact did the Charter touch
upon taxation. It contained no reference to assent by the vassals,
either individually or in the National Council. In accordance with the
feudal theory of individual contribution for the support of the lord,
and in view of the provision in the Charter against payments, the
inference can be drawn that individual assent would be in order. But to
find an answer to the question as to where the collective assent of the
barons was obtained, if at all, one must look further.

[Question of assent to taxation]

[In the Shire Moots]

In a letter addressed to “Samson the Bishop and Urso d’Abitat,” who
were respectively the bishop of the diocese and the sheriff of the
county of Worcester, Henry says, in speaking of the county courts, “I
will cause those courts to be summoned when I will for my own proper
necessities at my pleasure.”[23] That these county courts were utilized
by the Norman kings for purposes of extortion, is attested by the
reluctance of the suitors to attend their sessions,[24] and in the
light of that fact, the “proper necessities” of the king are apparently
none other than the royal need for money. But why, if the assent of
the taxed was not required, should the courts be summoned to meet the
“proper necessities” of the crown? Would that purpose be subserved
merely by making a demand for money? Had that been the fact, the
courts might well have been left to carry on their peculiar functions
untroubled, for extortion can be the more readily practiced king to man
than king to people. The conclusion is reasonable, notwithstanding the
very large part which conjecture plays in it, that some form of assent
was usual in the county courts in response to the royal demands.

[In the National Council]

But there is another piece of evidence which points to the National
Council itself giving assent to taxation. In the Chronicle of the
Monastery of Abingdon occurs a quotation of an order from Henry to his
officers exempting the lands of a certain abbot from the payment of an
“aid which my barons have given me.”[25] Whether or not this statement
can be taken as substantiating the theory of assent depends upon a
point of time; was the gift of the barons before or after the laying of
the tax? If the gift was indeed prior to the levy, then the evidence is
conclusive that the barons assented to taxation; if, on the other hand,
the barons gave the aid after the levy had been made, the statement
refers solely to the actual payment of the tax. The tense of the Latin
verb, however, and the circumstances in which the king writes, seem
to point to the former alternative; Henry directs that the Exchequer
exempt the abbot’s lands from the collection of an aid, not which the
barons were giving him, but which they have given him. It is possible
to infer, then, that sometimes, at least, the barons formally assented
to the levying of an extraordinary aid.

But this assent must not be taken as proof that the barons discussed
taxation in formal session or that they had any generally recognized
power of choice. None of the records of the time, though they speak
emphatically of the oppressiveness of the taxes,[26] suggest that at
any time the barons refused to give the king what he asked for. The
probability is that Henry I sought baronial assent merely as a matter
of form, and that he did it out of respect, more or less conscious, for
the theory that contributions of a feudatory toward the support of the
crown should be of a nature voluntary. The perfunctory character of the
assent, together with the absence of evidence looking to a refusal,
points to nothing so much as the firmness of the royal grip upon the
purses of the nation.

[Stephen, 1135-1154]

During the major part of King Stephen’s nineteen turbulent years,
feudalism and anarchy ran hand in hand. Such progress as had been
making toward parliamentary taxation ceased. Stephen showed himself an
adept at misgovernment and succeeded in nothing so well as in his own
discomfiture.

Things went by contraries. Stephen allowed the nobles to make
themselves impregnable in the royal castles and then sought to
dislodge them by raising up a new and hostile baronage. The nobles,
needing money to carry on war amongst themselves and against the king,
extorted it from the people. “Those whom they suspected to have any
goods they took by night and by day, seizing both men and women,” says
the Saxon Chronicle,[27] “and they put them in prison for their gold
and silver, and tortured them with pains unspeakable, for never were
martyrs tormented as these were.” And then, “They were continually
levying an exaction from the towns, which they called Tenserie (a
payment to the superior lord for protection), and when the miserable
inhabitants had no more to give, then plundered they and burnt all the
towns, so that well mightest thou walk a whole day’s journey nor ever
shouldest thou find a man seated in a town, or its lands tilled.”

Henry of Huntingdon adds a detail which fills out the picture of
wretchedness. Speaking of Stephen’s promise to abolish the Danegeld
in 1135, shortly after his accession, the chronicler says, “The king
promised that the Danegeld, that is two shillings for a hide of land,
which his predecessors had received yearly, should be given up forever.
These ... he promised in the presence of God; but he kept none of
them.”[28]

[Henry II, 1154-1189]

By the treaty of Wallingford in 1153, Stephen agreed that the crown
should descend at his death to Henry of Anjou,[29] the son of the
Empress Matilda, and great-grandson of the Conqueror. The treaty
provided, also, for comprehensive reforms which Stephen, a melancholy
figure in contrast with the vigorous Henry, tried to work out. Stephen
died at the end of a year’s attempt to put in operation the new
programme and Henry came to the throne. Henry’s reign was marked by a
regular and peaceful administration of the government which had its
rise in the genius of the king for organization. It witnessed too the
struggle with Thomas à Becket, a conflict which has been pointed to as
“the first instance of any opposition to the king’s will in the matter
of taxation which is recorded in our national history.”[30]

[Controversy with Becket over the Sheriff’s Aid]

The story of it is full of dramatic interest. At the Council of
Woodstock in 1163, “the question was moved,” so goes the Latin
narrative, “concerning a certain custom.” This custom, which amounted
to two shillings from each hide, had previously fallen to the sheriffs,
but this “the king,” so continues the Latin account, “wished to enroll
in the treasury and add to his own revenues.”[31]

In response to this, Becket is recorded as saying, “Not as revenue, my
lord king, saving your pleasure, will we give it: but if the sheriffs
and servants and ministers of the shires will serve us worthily and
defend our dependents, we will not fail in giving them their aid.”[32]

This was from the chancellor turned archbishop. In his former estate
Becket had not shrunk from pressing money composition for military
service from prelates holding land of the crown on the ground that they
were tenants-in-chief and therefore owed service of arms to the king.
But now he had changed his masters and stood champion of the church.

To him Henry returned, “By the eyes of God, it shall be given as
revenue, and it shall be entered in the king’s accounts; and you have
no right to contradict; no man wishes to oppress your men against your
will.”

“My lord king,” Becket declared, “by the reverence of the eyes by which
you have sworn, it shall not be given from my land and from the rights
of the church not a penny.”

Apparently for the moment the archbishop won his point, but from
that time on, Becket and the king stood apart. The continuation of
the struggle between them at Westminster the following October; the
Constitutions of Clarendon, sweeping away much of the exclusive
authority which previously had characterized ecclesiastical
jurisdiction; the flight of Becket into France; the coronation of the
young Henry by the Archbishop of York to the prejudice of Becket, and
the latter’s declaration of illegality; these and the martyrdom of the
archbishop, are parts of another story.

[The issue in the Woodstock Controversy, 1163]

Exactly what were the motives of Becket in making his stand against
the king at the Council of Woodstock, are somewhat difficult of
determination. The interest of the king was obvious; he wished to
increase his revenue by annexing the “auxilium vicecomitis” or
“Sheriff’s aid,” which had not gone into the royal treasury at all but
had served to swell the private income of the sheriffs. Whether Becket,
“standing on the sure ground of existing custom,”[33] objects to change
merely because it was a change; or whether he had in mind some lofty
democratic principle, and took his stand against the royal power in
favor of the lesser folk through some flush of democratic fervor, is
not only impossible of being decided, but the decision would not be of
strict relevance to the subject. The two points to observe, and they
are perfectly evident, are that Becket’s stand against the king did not
concern a new levy of taxes, but an imposition already customary; and
that the king asserted Becket’s incompetency to interfere. Becket had
presumed to take a hand in a matter connected with taxation; the king
had denied him that right, though the archbishop was the chief member
of his National Council. Therein lay a great issue.

[Scutage]

A number of other incidents of the reign of Henry II, though they
lack the color of a controversy between archbishop and monarch, are
nevertheless worthy of consideration. The imposition in 1159 of the
Great Scutage, despite the fact that it came as a feudal charge rather
than as a form of regular taxation, assumes great importance in view of
the part that scutage played in the evolution of the taxing power.

Scutage is generally considered as one of the forms of “commutation
for personal service,” and commutation was undoubtedly the underlying
idea of the imposition.[34] The payment was made for every knight owing
military service. Each knight holding of the king was expected to
serve in the field for forty days. Eight pence a day in the reign of
Henry II was the usual wages of a knight, and for forty days the wages
would amount to two marks, which was the sum most commonly paid in lieu
of personal service. It was in its earlier phase distinctly a feudal
charge.

[Early instances of Scutage]

Payment of scutage, like most of the other forms of feudal and general
taxation, struck its roots far into the past. Bishop Stubbs fixes 1156
as the year in which the term scutage was first employed.[35] Others
find counterparts in various payments to the sovereign in the time
before and shortly after the Conquest. In the reign of Henry I the
practice of allowing ecclesiastics to compound at a fixed rate for
the knight-service due from their estates was generally followed. The
privilege was sometimes extended to mesne tenants.[36] One writer[37]
points to Ranulf Flambard’s device in 1093, when he took from the
men of the fyrd the money which had been given them for the purchase
of supplies while on the march. Others[38] suggest the Anglo-Saxon
_fyrdwite_, the payment made by the king’s men when they were absent
from the royal train in war time as the analogy and precedent for
scutage. It seems more likely that the king and his vassals adopted a
money payment in lieu of service because it was convenient for both
of them.[39] The king thereby got the means for the enlistment of a
body of mercenaries, subject to his absolute will, and the barons were
relieved, if so they pleased, of the burden of military service.

[The Great Scutage, 1159]

The levy commonly spoken of as the Great Scutage was made in 1159.
Henry II was considering an expedition into France against the Count of
Toulouse. He had a claim to the latter’s lands through the inheritance
of his wife, the Duchess of Aquitaine. The English baronage, by the
terms of their feudal tenure, were bound to follow their lord into
the field. Nevertheless a distaste had arisen of late among them for
service abroad, and it was natural enough, therefore, that they should
fall in with the scheme of Henry and his adviser, Thomas à Becket, for
a commutation in money. Henry levied a charge of two marks (£1, 6_s._
8_d._) on the knight’s fee of £20, annual value, from such of his
vassals as chose not to follow him into France.[40]

The authority by which this payment was demanded was apparently solely
that of the king. It is probable that the levy was unquestioned. In
view of the facts that this was merely a change, and possibly no very
great change, in the method of meeting a regular feudal obligation, and
that many of the barons were willing to avail themselves of a means of
escaping the burden of foreign service, the want of a recorded protest
is not to be wondered at. The chronicler puts it plainly and probably
with accuracy when he says that Henry “received” a scutage.[41] It
was profitable for the king. The chronicler puts the proceeds at “one
hundred and twenty-four pounds of silver.”

[Theobald’s complaint, 1156]

Three years previously, however, an ecclesiastical complaint was
raised against a similar imposition. In 1156 such prelates as held
their lands by military tenure were directed to compound for soldierly
service which their character of churchmen precluded them from
rendering.[42] Some thirty-five bishops and abbots paid the assessment,
but Archbishop Theobald raised vigorous protest.[43] He objected,
apparently, not out of principle, but because he could not see that
the exaction was necessary.[44] This probability, together with the
further considerations that the demand was not a demand for a new tax
but merely that the prelates compound for an obligation long recognized
as lawful, and that there were precedents for precisely this sort of
commutation, makes Theobald’s protest not of great importance. He did
not question, strictly speaking, the right of the king to levy taxes at
all.

[Early step toward a tax on movables]

[The Saladin Tithe, 1188]

[Assessment by Juries of Inquest]

The remainder of the reign of Henry II, aside from the fact that it
witnessed the temporary passing of the Danegeld,[45] derives its chief
importance by reason of the extension of taxation to cover personal
property. By the Assize of Arms in 1181, “every free layman who had
in chattels or in revenue to the value of sixteen marks” was to “have
a coat of mail and a helmet and a shield and a lance;” and “every
free layman who had in chattels or revenue ten marks should have a
hauberk and a head-piece of iron and a lance.”[46] Here was a step
toward laying movables and personal property open to taxation. Seven
years later, when Saladin had cut his way into Jerusalem, personal
property was forced to contribute toward the Crusade. This tax, the
so-called “Saladin tithe,” was laid at the Council of Geddington on
the 11th February, 1188. Present at it were archbishops and bishops
and the greater and lesser barons,[47] but it is not stated whether or
not they gave a formal consent to the levy. “This year,” so goes the
Ordinance, “each one shall give in alms a tenth part of his revenues
and movables, except the arms and horses and clothing of the knights;
likewise excepting the horses and books and clothing and vestments and
articles required in divine service of whatever sort of the clerks, and
the precious stones both of clerks and laymen.” This is the earliest
recorded instance of a general tax upon movables. For the assessment
and collection of the Saladin tithe, Henry adopted a scheme favorite
with him, which had been utilized in England for national purposes at
least since the time of the Domesday Survey. It was ordained that the
assessment be done by juries of inquest; thus the taxpayers themselves
were instruments in the determination of how much each should pay, even
though the determination of how much the gross payment should be was as
yet far beyond their power.

Henry II closed his reign in 1189. His taxation[48] had never been
exceptionally heavy, though it had been the occasion for protest and
had served as the pretext in 1174 for a little warring with his barons.
In the matter of royal authority over taxation, the power of the king
to levy taxes was not much diminished. The instances of opposition
that have been cited do not prove much more than that now and then
complaining voices were raised in the Great Council; nowhere is it
shown that the objections had more than passing value, much less that
they were conclusive.

The year after the laying of the Saladin tithe, Henry died. Of his four
sons, two were dead and two had taken up arms against him. His first
son, who he had hoped would succeed him as Henry III, was dead, and
so too was Geoffrey, the father of the luckless Arthur; Richard, his
second son, was for the moment the ally of Philip of France; and John,
whom the king had loved above the others, now as afterward seeking
his own advantage, had recently taken his place amongst the rebellious
barons who had made common cause with the king of France. This blow,
coming on top of his unfavorable peace with Philip, struck the old king
to the heart, and cleared the throne for Richard.

[Richard I, 1189-1199]

Richard was not, in the fullest sense of the word, an English king. His
heart was on the Continent; England he regarded as a treasure-house,
and he left the administration of it to his justiciars. Along with
the exaction of feudal incidents and other and more special forms of
taxation, Richard worked the machinery of the laws to its maximum
capacity for what money it would bring him. He sold bishoprics and
ministries, and released malefactors from prison for a consideration;
sometimes, as in the case of Ranulf Glanville, his father’s treasurer,
he threw men into prison on shadowy charges and forced them to buy
their release. But all was under the guise of legality; Richard, unlike
John, and much like Henry VIII, knew how to gain his end and yet adhere
to the letter of the law.

[Richard’s ransom]

On his way back from the Crusade near the close of the year 1192,
Richard fell into the hands of his enemy, Leopold, Duke of Austria.
Leopold turned him over to his feudal superior, the Emperor Henry VI,
and he held Richard for a ransom of £100,000. The levy of the king’s
ransom was one of the three regular feudal aids[49] for which the
subjects were responsible. The magnitude of Richard’s ransom, however,
brings it out of strictly feudal history into the domain of taxation.
In the letter which Richard wrote from his German prison to his mother,
the Queen Eleanor, and to his justiciars, he said, “For becoming
reasons it is that we are prolonging our stay with the Emperor, until
his business and our own shall be brought to an end, and until we shall
have paid him seventy thousand marks of silver.” The amount of the
ransom was subsequently raised to one hundred thousand marks, with an
additional fifty thousand exacted as the price of not assisting the
Emperor in his war to regain Apulia. Thus England became liable for
the payment of a sum aggregating £100,000.

[It involves heavy and novel taxation]

The effort to raise so great a sum revived all the forms of taxation
known to England in earlier years, and laid the basis for certain
methods of acquiring money previously unknown. The justiciars _took_
“from every knight’s fee twenty shillings,[50] and the fourth part of
all the incomes of the laity, and all the chalices of the churches,
besides the other treasures of the church. Some of the bishops, also,
took from the clergy the fourth part of their revenues, while others
took a tenth for the ransom of the king.”[51] In addition to the
property there stated as having been levied upon, the lands of tenants
in socage yielded two shillings on the hide or carucate,[52] personal
property to the amount of a fourth of its value, and the wool of the
Cistercians and Gilbertines. Thus every person in the kingdom, was laid
under contribution. Later kings found all of these means of raising
revenue exceedingly fruitful, and some of them served as precedents for
taxes which played great parts in the struggle for the control of the
public purse.[53]

[The king is the authority for the taxes]

The authority by which the impositions were laid was apparently solely
that of the king. Speaking of the letter which Richard addressed to his
mother and the justiciars, urging upon them the necessity for raising
money for the ransom, the Chronicler says, “Upon the authority of this
letter the king’s mother and the justiciars of England determined that
all the clergy as well as the laity ought to give ... for the ransom of
our lord the king.” He speaks of the exactions having been _taken_. The
fact that there is no definite record of deliberation or even of assent
by the National Council to the enormous demand which the ransom of the
king laid upon England, and that no serious objection was raised to
the collection, ordered upon the authority of queen and justices, is a
comment both upon the weariness of the nation and its respect for the
ancient feudal aid.

[Richard’s release and subsequent levies]

When Richard was finally released from durance in Austria, he returned
to England. Remembering the success which met his first visit to the
island at the time of his coronation, he proceeded to set his machinery
going despite the financial decrepitude of the nation. The account of
his Great Council at Nottingham, called near the last of March, 1194,
illustrates not only his ingenious methods of making extra-customary
feudal exactions but also the manner in which he levied his non-feudal
impositions. The Council, which was not very fully attended, was
composed of the archbishops, bishops, and earls. On the first day, he
removed from office all the sheriffs of Lincolnshire and Yorkshire,
and proceeded to sell their places to Archbishop Geoffrey of York, who
paid 3000 marks[54] on the spot with a promise of 100 marks by way of
annual increment. Having thus spent his first day, on the second he
contented himself with issuing orders against his contumacious brother
John. But on the third day he demanded the third part of the service
of the knights, the wool of the Cistercians for which he was willing
to accept a composition, and a carucage of two shillings.[55] This
last, which was the lineal descendant of the Danegeld, a land tax on
the carucate, he apparently did not exact upon any other authority than
his own. The king “determined that there should be granted to him out
of every carucate of land through out the whole of England, the sum of
two shillings.”[56] His action carries out the theory that the voice of
the king in his Council was supreme in matters of taxation, and that
the promulgation of a tax levy was rather accepted in the character of
an edict than as inviting discussion. The deduction, however, that the
individuals composing that Council were barred from objecting to a tax
or even refusing to pay it, is not well founded; the time had not yet
come when the individual felt himself bound by the tacit acquiescence
of the Council. If he were strong enough to withstand the royal
displeasure, he could refuse payment.

Richard levied a second carucage in 1198, “from each carucate or
hide of land throughout all England five shillings.” Here, too, he
acted upon his own authority, and the Chronicler does not refer to
the summons of a Council, or the participation of the magnates in the
laying of the tax. The assessment of it followed the plan pursued by
Henry II, in that the liability of the taxpayer was determined by means
of a jury of inquest. Against the payment of the imposition the men
of the religious orders demurred, whereupon an edict of outlawry came
immediately from Richard. Esteeming the payment of the tax the lighter
burden, the friars yielded.

[Hugh of Lincoln refuses assent in National Council, 1198]

The same year, 1198, furnishes us with what is by far the most
noteworthy and interesting incident of the reign of King Richard, an
event which is taken to be “a landmark of constitutional history.”[57]
Through his efficient justiciar, Archbishop Hubert Walter, the king
laid before his Council at Oxford a plan whereby he “required that
the people of the kingdom of England should find for him three hundred
knights to remain in his service one year, or else give him so much
money as to enable him therewith to retain in his service three hundred
knights for one year, namely three shillings per day, English money,
as the livery of each knight.”[58] The way in which Hubert Walter’s
proposition was met throws light upon the subservience of the National
Council. “While all the rest were ready to comply with this,” the
Chronicler proceeds, “not daring to oppose the king’s wishes, Hugh,
Bishop of Lincoln, a true worshipper of God, who withheld himself
from every evil work, made answer that for his part he would never in
this one matter acquiesce in the king’s desires.” Now, if it could
be established that the bishop raised the question as to whether
the king had a right to lay an imposition upon the baronage and to
require their assent, then we would be justified in saying that Hugh’s
refusal went far toward anticipating future history. But the evidence
does not uphold so generous an inference. In the first place, it
seems highly questionable whether Hubert Walter really offered the
alternative of a money payment,[59] a conclusion which reduces the
debate to one on foreign service. But Hugh even here did not raise the
general question. “I know,” he is quoted as saying, “that the see of
Lincoln is held by military service to our lord the king, but it has
to be furnished in this land alone; beyond the boundaries of England
nothing of the kind is due from it.”[60] Hugh, therefore, refused to
comply with the royal request on purely feudal grounds. Basing his
objection on ecclesiastical privilege, he registered his refusal for
the see of Lincoln alone; he did not take his stand in behalf of the
barons or even of the whole body of churchmen. The issue as to their
relative powers to tax was not raised between king and Council, and
the withdrawal of Hubert Walter’s demand did not constitute one of
the first victories over arbitrary taxation. The withdrawal itself
seems to have had its disagreeable consequences. Herbert, Bishop of
Salisbury, who stood shoulder to shoulder with Hugh of Lincoln in his
opposition, had to pay a heavy fine for his part in the contest, and
the Abbot of St. Edmund’s was obliged to win back royal favor with a
gift of a hundred pounds which he made in addition to the pay of four
knights for forty days.

Richard’s reign covered only a decade, six months of which he spent
in England.[61] Notwithstanding his long absence, during which the
National Council began in some small degree to feel itself able to
get along without the royal presence, the authority of the king as
the supreme initiator of taxation remained unquestioned. In the
assessing of taxes, however, the taxpayers had more participation.
The justiciars of Richard continued Henry II’s practice of assessment
through a representative jury.

[John, 1199-1216]

John, the youngest son of Henry II, the thinnest figure that ever
sat upon the English throne, succeeded to the crown some six weeks
after the tragic passing of Richard. Richard was the creation of his
own times, the incarnation of the mediæval spirit, and where it fell
short he fell short. To attribute the meanness of his brother to any
conditions of environment would be to perpetrate a slander upon the
times. Yet, notwithstanding the vileness of the king, there eventuated
from his reign the first of the three books in what Lord Chatham
denominated “the Bible of the English Constitution.” The progress
toward the finished writing of Magna Carta, especially in so far as the
events concern laying of taxes, is the next step in this history.

An interregnum of six weeks elapsed between the death of Richard and
the coming to England of John. Then Archbishop Hubert Walter set the
crown upon his head and declared him elected to the kingship. John’s
stay in England was necessarily brief, because Philip II of France was
already in a fair way to win his possessions on the far side of the
Channel. For his expedition into Normandy John exacted a scutage of two
marks on the knight’s fee; the rate was unusually high, almost without
precedent.

[John’s heavy taxation]

Being unable to make head against Philip, John concluded a truce for
which he had to pay 30,000 marks. The Jews had to pay a good deal of
it and in addition John took a carucage of three shillings on the
carucate, which, like the charge of scutage, was an exceedingly high
rate. John laid this imposition, apparently, solely upon his own
authority; Roger Hoveden says that he “took” the carucage and makes
no mention of a Council.[62] He demanded the aid, and the justices
issued the edicts. In 1201 John contributed, at the instance of a papal
delegate, a fortieth of his revenues for the Crusade; from his barons
he urged a similar offering, not “as a matter of right or of custom
or of compulsion.” Freeholders and tenants by knight’s service paid
at a similar rate; just what liberty they had in refusal is shown in
the direction of Geoffrey Fitz-Peter, the justiciar, at the end of
his address to the sheriffs: “And if any persons shall refuse to give
their consent to the said collection, their names are to be entered in
the register, and made known to us at London.”[63] In the same year he
exacted a scutage at the high rate of two marks on the knight’s fee.

[Scutage, a cause leading to the Charter]

The importance of the part which scutage played in the tragedy of
John can hardly be overestimated; it was the great moving cause
which brought about the crisis of 1215 and Magna Carta. Not only did
John raise scutage to an amount which had not been equalled since
the Scutage of Toulouse in 1159, but he levied it as though it were
a regular and almost annual obligation. Previously understood as a
commutation arranged at the pleasure of the king for knight’s service
not rendered, as an extraordinary impost reserved for extraordinary
occasions, John changed its character and used it as a means of
supplying his heavy financial needs, irrespective of customary right or
of shrewd policy.

John began with a demand of two marks on the knight’s fee.[64] The
barons had accustomed themselves, during the reigns of Henry and
Richard, to expect at the outside a demand of twenty shillings;
sometimes indeed the imposition had fallen to a single mark or even as
low as ten shillings. His second scutage came in the third year of his
reign, two marks on the fee. Then for four successive years John kept
his barons on edge with annual scutages of two marks each. In 1205-06,
apparently fearing a storm, he reduced his imposition to twenty
shillings, and then waited for three years before laying another. The
three years of relief, however, were not as innocent as they seem;
it was in 1207 that John broke with the Pope, and the freedom to
plunder ecclesiastics which this quarrel gave him, made unnecessary
for the moment any further demands upon the baronage. But this source
of revenue shortly proved insufficient, and John turned again toward
scutage. In the two financial years from 1209 to 1211, he laid three
scutages which aggregated some seventy-three shillings on the knight’s
fee. Then for the space of two years John paused.

[Inquest of Service, 1212]

But it was only a pause. On June 1, 1212, he caused to be taken the
Inquest of Service, by which he sought to bind the cord more tightly
upon his demesne tenants by ascertaining in the now familiar manner of
the local jury, how great was the return which he might expect from
the lands of each crown vassal. It is easy to see in this Inquest,
recalling in its nature Domesday Survey and the Inquest of 1166, the
intended basis for another imposition of scutage.[65] It came in
1213-14, when John made the wholly unprecedented levy of three marks on
the knight’s fee. Apparently he was doing all he could to hurry the
crisis which should lead him to Runnymede.

[Attendant abuses of John’s levies of Scutage]

There were two features of John’s use of scutage aside from the
magnitude and frequency of his levies which made them particularly
onerous. The first had to do with the fines which he exacted from such
of the baronage as were delinquent in paying the imposts of Richard,
some of which had been in arrears since 1190. Miss Norgate notes an
instance which illustrates John’s habit, and throws light upon his
character. Two men of Devon in 1201 were charged with fines by reason
of their absence from the train of Richard in 1193, and the cause
of their failure was this, that “they had been with Count John.” At
the moment John was in rebellion against Richard, but now that he
was become king in Richard’s place, he exacted fines for service the
nonperformance of which he himself had been the cause of.[66] The
collection of fines owing to Richard bore with special heaviness upon
the northern baronage and these, it will be remembered, were the
leaders in the assault upon John in 1215.

The other great abuse which John introduced into the levying of scutage
was his subversion of the theory that the payment of it by the vassal
wholly acquitted him of his obligation to the king for that occasion.
John endeavored in a number of instances to make him liable for
personal service in addition, and for fines in case he failed to be
present in his train. In 1199 John exacted fines from those who did
not accompany him to Normandy; in 1201 he accepted money-payment as a
substitute for service; in 1205 he fined the tenants-in-chivalry after
he dismissed them from service in the host. In these years scutages
were laid as well.[67]

Thus did John make over scutage; it had become a heavy impost upon the
lands of demesne tenants, an almost annual charge, and a tax foreign
to its original character as a commutation for personal service. A
rebellion culminating in the exaction from John of a written contract
between him and the baronage, detailing their mutual relations was the
natural consequence.

[Antagonism of the clergy]

[General demand of a thirteenth of movables]

But the knights were by no means the only body of Englishmen whom John
alienated by his frequent levy of taxes. The clergy, already irritated
by John’s quarrel with the Pope and his seizures of ecclesiastical
property, were ready to combat the king in any further attempt to tax
them. At a Great Council at London on the 8th January, 1207, the king
asked “the bishops and abbots to permit the parsons and the beneficed
clergy to give to the king a fixed sum from their revenues.”[68] The
prelates did not consent, and John brought the matter up again at a
second Great Council which he convened at Oxford on the 9th February.
There were present an “infinite multitude of prelates of the church and
magnates of the realm,” and John again addressed the ecclesiastics. The
bishops “unanimously answered that the English church could in no wise
sustain what was unheard of in all the ages before.” The king, “taking
wise council,” withdrew his demand, but he did not abandon his project.
“Afterward he ordained generally throughout the kingdom that every
man ... give a thirteenth part to the king” of revenue and movables.
The demand applied to all men, no matter from whom they held their
lands.[69] Against the imposition, the earlier analogues of which were
the Saladin Tithe and Richard’s ransom, “all murmured, but none dared
to contradict” the king, except Geoffrey of York; he did not consent,
but openly refused, and then had to fly from England to escape John’s
anger.[70] The writ for the assessment of the thirteenth has it that
the tax was provided “by the common advice and assent of our Council
at Oxford.”[71] How whole-souled was the assent is revealed by the
Chronicler; “none dared to contradict.”

[Normandy is lost]

The time was at hand when men would not longer endure the extortionate
exercise of an unchallenged royal right. There were a number of
conditions and circumstances aside from the burdensome taxes which were
pointing toward Runnymede and Magna Carta. By 1204 John had come to the
end of his day in France. Normandy was lost. The effect upon England
was marked; the Norman baronage was obliged to choose between England
and the Continent. Hereafter tyranny and good-rule of the English kings
were alike felt solely at home, and the barons cast their eyes not
across the Channel, but upon their lands in England. The English were
for England and the nation was born, the first conscious act of which
was to be the enactment of Magna Carta.

During the seven years from 1206-1213 John had his disgraceful quarrel
with the pope, a quarrel which ended in the enfeoffment of England with
Innocent as feudal overlord. The matter is foreign to the subject in
hand, save as the struggle, especially in the early development of it,
gave John a pretext for confiscating the ecclesiastical holdings and
thereby relieving the barons of a scutage for the space of about four
years.

John, conceiving that peace with the Pope meant full mastery of
affairs, was seized with an ambition to reconquer Normandy. To this end
he tried to induce the barons to follow him into Poictou. They refused,
first on the ground that John was not yet fully absolved from his
excommunication; and then, after this objection was removed by Stephen
Langton on the 20th July, 1213, they raised the old plea that they were
not bound by their tenure to follow the king abroad. John determined to
enforce their attendance upon him by show of arms.

[Council at St. Albans, 4th August, 1213]

Before he started to the north, where the seditious movement had
its center, an assembly was held at St. Albans on the 4th August by
Archbishop Langton, and the justiciar Geoffrey Fitz-Peter. Its purpose
was to assess the amount due to the ecclesiastics in consequence of the
damage sustained by church property during the quarrel with the Pope.
But its great importance lay in the body of men who made it up. It is
in so far as we have record, the first occasion that representatives
of the lesser folk were summoned to a National Council.[72] Beside
the bishops and barons who attended, there were present the reeve and
four men from each township on the royal demesne. The Council advanced
somewhat beyond the simple purpose for which it was summoned; the
justiciar issued an edict against unjust exactions, to be observed as
the sheriffs valued their lives and limbs, and commanded the observance
of the good laws of Henry I.[73]

[Non-noble representatives called to Oxford, 1213]

Later in the year to Oxford, the non-noble representatives were again
called, and at the initiation of John himself. John hoped to win to
himself by this act of respect the support of the smaller landowners
against the threatening barons. The sheriffs were to send up, beside
the knights holding from the king, four discreet men from each county
“to talk with us,” as the writ had it, “concerning the business of our
realm.”[74] This, provided subsequent events had kept pace with it, was
an immensely long step forward; indeed the provisions of Magna Carta
themselves do not advance to the point thus falteringly and unworthily
reached by John. It provided a precedent for the representation of the
third estate in the councils of the nation; and though it is not known
whether or not any action was taken relative to the levying of taxes,
or even whether the council was held at all, nevertheless the fact
that representation for the moment was provided for, marks the step in
the light of the present, as of great, almost of profound, importance
in the consideration of parliamentary taxation.

[Events leading to Runnymede]

It would be wandering far afield to trace the final struggles of John
with his infuriated barons. It is sufficient to note that it was an
unauthoritative demand of taxation which pulled the structure of John’s
misgovernment crashing down upon his head. On the 26th May, 1214, John
issued writs for the collection of a scutage at the quite unprecedented
rate of three marks on the knight’s fee, for which there was not a
shadow of consent. The northern barons, the same who had refused
personal service, now refused likewise to pay scutage. In the face of
precedent to the contrary, they denied their liability to follow him,
not merely to Poictou but to any district beyond the Channel, or to
pay him composition for not doing so.[75] At his interview with the
contumacious barons in November at Bury St. Edmunds, he reiterated his
demand, but they remained steadfast in their refusal.

From that time until King and Barons met on the meadow near the Thames
called Runnymede, John’s sky was darkening. He did his best to avoid
the tempest, but with no success. He attempted to break the union of
his enemies by giving the church and the people of London special
charters; it was the church, headed by Stephen Langton, which stood
shoulder to shoulder with the barons in unending hostility to John, and
it was the citizens of London whose adherence to the baronial cause
determined the final contest against the king. John bought the services
of mercenaries to fight his battles for him, but when he became
penniless, they fell away. With every expedient he could summon in his
extremity, he tried to avoid the breaking of the storm. But the whole
nation was against him. The men of the North, who had been steadfast
from the beginning in their opposition to John, were joined by barons
of similar mettle throughout the rest of England. The citizens of
London when they joined the ranks of John’s enemies were followed
by the earlier partisans of the king, save only those few who were
attached by interest or necessity. He signed the Charter the 15th June,
1215, in the full hope that with the passing of the tempest he might
forget his promises.

[Magna Carta, 15th June, 1215]

The Great Charter, in form granted by John as a voluntary gift to the
nation, was in reality a treaty concluded between him and his barons.
That its provisions relative to taxation are important has already
been hinted at; as a matter of history, the recurrence of references
to these particular sections of the Charter proves the esteem in which
Englishmen of later generations regarded this early book of their
Bible of Liberties. Whether this veneration, displayed by the framers
of subsequent and perhaps equally important instruments, was based
upon the intrinsic value of the Charter or upon nothing firmer than
sentiment, is somewhat of a mooted question.[76] The fact that it was
held in such esteem is for us the important and sufficient reason for
considering it in detail. It is essential to understand upon what the
later champions of parliamentary taxation based their arguments, even
though those arguments presumed interpretations of Magna Carta which
the framers of the Charter would have been far from admitting.

[Chapter 12]

The twelfth chapter,[77] taken with the fourteenth,[78] serves as
the legal basis for much of the eloquence against arbitrary taxation
from the time of John to the acceptance of the United States
Constitution. It has been taken to admit “the right of the nation to
ordain taxation”[79] and even as the surrender of the “royal claim to
arbitrary taxation.”[80] An analysis of the contents and application of
the twelfth chapter together with additional comment on the fourteenth
may throw some light on the substance for these assertions.[81]

The impositions which are specified in the chapter are “scutage” and
“aid.” The arbitrary levy of scutage upon the lands of his tenants
was the chief moving cause which brought John to Runnymede, and this
chapter undertook the correction of the abuse of abuses. The aids
mentioned are to be distinguished from the incidents of feudal tenure,
reliefs, marriages, primer seisins, and similar payments which are
dealt with elsewhere in the Charter and belong to the peculiar history
of feudalism. The twelfth chapter provides that the three ordinary
aids--for ransoming the king, for knighting his eldest son, and for
the marriage of his eldest daughter--should be reasonable in amount.
These might be exacted by the king as a matter of course, without the
common council of the realm. The extraordinary aids, which the Charter
places in the same category with scutages, include all other arbitrary
feudal exactions levied to meet some particular emergency and in an
unusual manner. The Charter places both these extraordinary aids and
the obnoxious scutages beyond the pale of royal imposition; hereafter
they are leviable only “by common counsel” of the kingdom. That they
were to be laid by the body known as the Common Council is indicated by
the provisions of Chapter Fourteen.

[Provision regarding London]

The people of London rightfully expected to benefit by the granting
of the Charter. According to the last clause of the Twelfth Chapter,
it was to “be done concerning the aids of the city of London” in the
“same way.” The provision is indefinite; whether the “aids” were also
to include in their category the more arbitrary and therefore more
obnoxious tallage[82] is unknown. The aids were for the most part
free-will offerings of the city itself, whereas the tallages were
exacted by the king upon his own arbitrary authority as one having the
power of a demesne lord over London. And whether or not the phrase “in
the same way” means that aids shall be levied by the common counsel
of the realm, or merely that they shall be of “reasonable” amount, is
difficult of determination. If indeed the former idea was in the minds
of the framers of the Charter, when they came to the section providing
for the composition of the Common Council, they made no provision for
the attendance of any member of the corporation of London, or even for
securing their consent. At all events, the king continued to tallage
London at not infrequent intervals and almost without question until
1340, when Parliament took the privilege away from Edward III.

[Chapter 14]

Before we advance to a consideration of the true importance of the
Twelfth Chapter, in order to have a complete understanding of its
position in the line of progress toward parliamentary taxation, we
are obliged to look at the method by which the common counsel of the
kingdom was to be taken. Chapter Fourteen[83] lays down the rule
according to which the assembly was to be called that should hold
this power of assenting to scutages and aids. The method of summons
was simple; it involved the issuance of writs, individually to the
archbishops, bishops, abbots, earls, and the greater barons, and
collectively to the lesser barons through the agency of the royal
sheriffs and bailiffs. The writs gave at least forty days’ notice as
to the place and time of meeting, and specified the business which
furnished the occasion for the Council. As for its composition, the
answer is very simple; it was a gathering of tenants-in-chief of the
king, of crown vassals. The line between the greater and the lesser
barons was ill-defined. Roughly, however, it divided the baronage into
classes, one of which included the baron whose holdings embraced the
major part of a county, and the other the tenant of the king whose
dwelling was a cottage set in his dozen acres. It is probable that the
lesser barons played no considerable part in the assembly, and that
their attendance or non-attendance was of little consequence. The light
of the lesser folk was as yet hid under the bushel.

[The advance toward Parliamentary taxation]

It is a conclusion easily drawn from the text of the two chapters
that this was a body of feudatories called together for the purpose
of making feudal payments. The members of the Commune Concilium were
the vassals of the crown and, save in rare instances, none other;
the taxation to which they were to give their consent according to
the terms of the Charter, included no carucage or other general tax,
but only the scutages and aids which feudal tenants of the king by
military service were expected to pay him as overlord. Furthermore,
the idea of representation in the strictly technical sense into which
present usage has frozen the word, was quite wanting. It is true that a
consent by the barons gathered in the Council to an imposition levied
in accordance with the notice stated in the summons, was binding upon
the barons who did not attend, but this was on the principle that
absence gave consent, not that the consent of the majority was binding
upon a dissentient minority. The instance is quoted of the Bishop
of Winchester who in Henry III’s time was relieved of his assessment
because he had opposed the levy in the Council. John had introduced
definite representation in his summons to the Oxford Council in 1213,
by directing the sheriffs to send up “four discreet knights” from their
counties to treat with him “concerning the business of his realm.” In
respect of this, looking at it in the light of later progress, the
Great Charter is positively retrogressive.

The conclusion is thus forced upon us that save in the two cases of
scutages and extraordinary aids, with possibly the addition of a
third in the shape of tallaging the city of London, supreme authority
over general taxation remained in the hands of the king. The Charter
provides solely for the financial incidents of the feudal relation,
and that in the somewhat narrower aspect of tenure by chivalry. The
only true taxes, carucage and John’s levy on movables known as the
thirteenth, were not referred to. It is an anticipation of later
history to read into the provisions of Magna Carta either a definite
inauguration of national consent to taxation or of the representative
principle.

But the wedge was driven in. Notwithstanding the omission of both
the Twelfth and the Fourteenth Chapters in subsequent renewals of
the Charter, the king lived up to the principles therein set down;
and notwithstanding the absence in Magna Carta of provision for
parliamentary taxation in fact, it was there in embryo. The nation,
headed by the barons, had set itself to the correction of abuses, and
it succeeded in attaining its immediate end. Greater purposes were to
follow, born perhaps of the inspiration in the Charter, and with the
purposes were to come also the means of attaining them. The nation,
having once taken a sip of the cup of control over taxation, would not
be content until at last it had drunk deep from the well itself.




III

THE CUSTOM OF PARLIAMENTARY GRANTS

1215-1272


MAGNA CARTA brought to an end the period of absolutism and prepared
the way for the control by Parliament of the taxing power. The barons,
standing for the moment as the champions of the nation, had wrung from
John the first concession. It really was not as great a concession, in
so far as the power to tax was concerned, as eager advocates of popular
rights have maintained. But it was the protest by the most influential
body in the kingdom and in effect by the nation itself against
unrestrained use of power by a royal tyrant.

[The reign of Henry III, 1216-1272]

The long reign of Henry III, stormy and contradictory to itself,
accomplished one clear step forward. From one cause or another it
became customary for the National Council, which in this reign first
attained to the title of Parliament, to grant money to the king.
Another step, of vast importance in the later history of parliamentary
taxation, but in Henry’s time probably not of intimate connection with
it, was the summons of the lesser tenants and subsequently of the
townsmen into the councils of Parliament. There is no sure record that
in Henry III’s reign a Parliament so constituted voted taxes, yet it
is apparent that this differentiation in the national legislative body
was the preliminary of the vesting of the taxing power in the House of
Commons.

[Reissue of the Charter with omissions]

John died in the midst of his reverses the 19th October, 1216. The
major part of his vassals were in the field against him, and worse
than all, Louis, the heir to France, with French soldiers at his back,
was in England at the bidding of the English baronage. Nine days after
John’s death, his son Henry, a nine-year-old lad, was crowned King of
England with small ceremony. After a lapse of two weeks, on the 11th
November, a body of barons gathered at Bristol. There were four or
five earls, including Pembroke, Chester, and Derby; eleven bishops,
Hubert de Burgh, one or two other ministers, and some of the military
leaders. Only one of the executors of the Charter figured at the
meeting and this was William of Aumâle. For the most part they were of
the party least disaffected by John; the rabid opponents of the old
King were in the body of supporters around Louis of France. The Council
proceeded to appoint William Marshal, Earl of Pembroke _Rector regis et
regni_, being unwilling to elect a relative of the young King to this
responsible position. The next day they reissued the Charter by common
consent in the King’s name, with the important omission of Chapters
Twelve and Fourteen.

The reason for leaving out restrictions upon the royal power so vital
to the feudatories is readily apparent. The Council was distinctly
royalist; as such, especially in view of the fact that John, the great
offender, was dead, it did not favor restricting the royal power.
Further, the barons in effect were themselves the king, and being
so, there was no particular object in limiting their own power over
themselves. That the Fourteenth Chapter would be observed, whether it
were specified or not, dealing as it did with the summoning of the
Council, went as a matter of course.[84]

[Second reissue of the Charter]

One of the objects in the minds of the Council in reissuing the Charter
was to win adherents from the standard of Louis. In this they were
partly successful; but it took the decisive defeat delivered to the
French prince at the Fair of Lincoln in May of the following year,
coupled with the loss of his reinforcing fleet in August, to bring
about peace. A treaty between Pembroke and Louis followed in September,
and secured to the belligerent barons the liberties of the realm and
the restoration of their lands. General pacification between the
parties came the 6th November following, with the second reissuance of
the Charter, this time in the form which later generations of kings
should be called upon to confirm.

[Its omissions]

There was introduced into this draft of the Charter a change which
materially affects taxation. Though Chapters Twelve and Fourteen of
John’s issue are ignored, there is in the Forty-Fourth Chapter a
distinct reference to the levying of scutage.[85] “Scutage,” it says
“shall be taken as it was wont to be taken in the time of King Henry
our uncle.” In other words the consent of the barons was to be no
longer a prerequisite to the levying of a scutage. The only restriction
placed by written law upon the king was that he should take scutages
according to the custom of Henry II,--that is, that they should not
exceed in amount twenty shillings on the knight’s fee. The barons who
remade the Charter thus abandoned the semblance of taxation by the
baronage which was provided for under the terms of John’s enactment.
It was only a shadow which they left behind, but nevertheless it was
the shadow from which something substantial could emerge, the germ
from which a creature of immense vigor might develop. The omission,
it is not too much to say, is an exceedingly apt vindication of the
contention that at the time the Charter of John was enacted, the
framers of the instrument intended to create no barriers against the
royal power of levying general taxation; if they had had in mind so
fundamental a change, it is unlikely that in 1217, even though the
radical faction was still feeling the sting of defeat, these provisions
should have been allowed to lapse.[86] It is profoundly indicative both
of the modest ambition of the barons in 1215 and the obscurity of their
political vision in 1217.

[Text of 1215 is adhered to in practice]

But the future was fairer than the conditions presaged. As a matter of
fact, the king observed in the majority of instances the conditions
imposed by the Charter of John. Scutages of even less amount than
those “taken in the time of King Henry” were taken with the consent of
the National Council, the sessions of which “continued as from time
immemorial,” though the provisions for its summons had been laid aside.
That the barons were intending to retain control as under the Charter
is indicated by the fact that a scutage under the date 24th January,
1218, “was assessed by the common council of our realm.”[87] Bishop
Stubbs believes that this scutage was granted by the identical Council
which reissued the Charter the previous November.[88] Furthermore,
there is a note of a carucage under the date 9th January, 1218, which
“was assessed by the council of our realm,” a remark which suggests
that not only did this Council determine to grant feudal payments of
scutage, but assumed as well the power of registering its assent to a
general land tax.

[Carucage “assessed” by the Council, 1218]

If full credence can be attached to the record here given that a tax
was “assessed” by the Council, and if the act of assessment can be
taken as indicating, so to speak, full-fledged consent on the part of
the barons, then we have in this record of the Close Rolls one of the
very earliest instances of general taxation by and through the English
National Council. That no greater attention was given to the event than
the scant sentence in the Rolls, is perhaps not to be wondered at,
considering the youth of the king and the coherent Council.

With such a Council, bent apparently upon putting in practice greater
privileges than it had given itself in theory, the boy Henry began his
long reign. The good Earl of Pembroke died in 1219 and Henry was left
to the conflicting counsels of Hubert de Burgh and Peter des Roches,
the Bishop of Winchester. Growing restive under them at last, in 1223
he secured a declaration from the Pope that he was of age, he being
then sixteen, and swore to observe the Charters. But neither of his
reissues of the Charter could be called, strictly speaking, voluntary;
and liberties extorted, in the sinister words of the sycophant William
Briwere, “ought not by right to be observed.”[89] The uneasiness
arising out of this uncertain state of the Charters, led to one of the
first instances of a grant of money on condition that grievances be
redressed, a manner of grant which served the Commons many a turn in
their subsequent struggles with royal prerogative.

[Conditional grant of a fifteenth of movables, 1224]

In 1224 war was on with Philip II for the possession of Poictou. The
taxation which had not been severe up to this time, was insufficient
for the prosecution of a war with France.[90] The justiciar at the
Christmas Council 1224 brought forward a demand for a fifteenth of
all movables.[91] The barons, acting beyond the power which even the
Charter of John had given them, refused to consent, unless Henry should
“of his own natural and good will” renew Magna Carta. He yielded, and
reissued both the Charter of Liberties and the Charter of the Forests
in practically the same form as the issue of 1217. That the reissue
partook of the nature of a contract between the barons and the king is
evinced in the concluding portion of the Charter itself.[92] There it
is openly stated that “the archbishops, bishops, abbots, priors, earls,
barons, knights, freeholders, and all persons of the realm, give the
fifteenth part of all movables to the king,” “for this concession and
granting of liberties.”

Here is an unequivocal instance of a tax on movables, applying to
every person in the kingdom from the archbishops and great nobles
down, granted explicitly by the Council in return for Henry’s specific
promise to adhere to the Charter. It was the most natural thing in the
world, that the barons should demand a favor in return for granting
one. They had Henry in a box and his acquiescence is none the less
natural. Yet the action is of great importance in view of later
developments. Time and time again the situation was to be repeated, and
out of repetition was to come usage which would be frozen into law. It
is of vast interest, therefore, to note the appearance so early of the
conditional grant.

[Other conditional grants and instances of refusal]

The Council continued to exercise the right not merely of making grants
of money in consideration of a redress of grievances, but also of
refusing to make a grant at all, whenever such a stand suited their
convenience. In 1232 the Earl of Chester, being spokesman for the
barons, objected to a request for money with which to carry on the
French war, on the plea that they had served in person; the clergy
sought postponement, raising the significant plea of an incomplete
assembly of prelates.[93]

[Offer of a disbursing commission, 1237, rejected]

Again, five years later, Henry being in dire distress for money because
of unwise expenditure and the lightness of recent taxation,[94]
summoned an extraordinary council of barons and prelates “to arrange
the royal business” and matters concerning the whole kingdom. William
de Ralegh, a clerk of the king, introduced the royal needs, saying
that “the king humbly demands assistance of you in money.” Sensing
beforehand an attitude of antagonism, he made this remarkable
concession, that “the money which may be raised by your good will
shall be kept to be expended for the necessary uses of the kingdom,
at the discretion of any of you elected for the purpose.” But the
barons failed to perceive the greatness of the opportunity which lay
open to them. Had they but availed themselves of it, they would have
gone far toward the establishment of the power of the legislature
over the public purse, and might have accomplished in a moment,
had they been able to maintain their control, what many succeeding
parliaments were to strive for in vain. But apparently the baronage
was not gifted with political perception; they saw only a demand for
money and “began to murmur.” They complained that the foreign advisers
of the king had been wasting the royal revenue and that there was no
great enterprise afoot which required a full treasury. Then the king
proceeded to conciliate them with what in comparison with the proposed
concession of the disbursing commission, was a mess of pottage; he
ordered the renewal of the sentence of excommunication of all violators
of the Charter, promised to abide by it himself, and received three
additional Councillors named by the Council.[95] Thereupon a grant
of the thirtieth part of all the movable property in the kingdom was
made by the lords “for themselves and their villans.”[96] In this
phrase of the writ is evidence in favor of the supposition that the
lords of the Council regarded themselves as authoritative spokesmen
for their vassals. The money was to be collected in accordance with
the prescription of the Council; four knights and a clerk (appointed
apparently by the king), were to receive the assessment of each
township from the reeve and four men, elected for the purpose. Here was
evidence of progress; the step was not very long from the assessment
and collection of a tax to the granting of it by the people themselves.
The king profited to the amount of some £22,600.

[Refusal of a grant, 1242]

After a lapse of five years, Henry found himself, as he supposed,
on the brink of a war with France; he therefore sent out orders for
a session of the Council. Apprehending that the summons presaged a
demand for money, the baronage, “because they knew that the king had so
often harassed them in this way on false pretences, ... they made oath
together that at this council no one should on any account consent
to any extortion of money to be attempted by the king.”[97] When the
Council met, therefore, Henry was greeted with a refusal, on the
grounds that he had engaged in the war without asking their advice, and
that “he had so often extorted large sums of money from them, which was
expended with no advantage; they therefore now opposed him to his face,
and refused once more to be despoiled of their money to no purpose.”
Harking back to the conditions of the grant of 1237, and laboring,
apparently, under the misconception that the king had promised that
the money be spent under the direction of a disbursing commission,
they complained because they did “not know and have not heard that any
of the aforesaid money has been expended at the discretion or by the
advice of any one of the said four nobles.”

Thus did they refuse. But Henry was neither to be robbed of his
hoped-for supply nor yet induced to give further concessions. He
therefore turned to strategy. Summoning the barons and prelates to
him one by one, he “begged pecuniary aid from them, saying, ‘See what
such an abbot has given to aid me, and what another has given me.’” By
such means he managed to wring from the barons individually what he had
been unable to induce them to give in the Council. With the money thus
obtained Henry set out on a campaign doomed to ignominious failure.
Before he came back to England he used this expedition as the pretext
for a scutage of twenty shillings on the fee.[98]

[Great Council in 1244 holds out for supervised expenditure]

Similar success did not meet Henry, when, two years later, he attempted
to raise funds with which to prosecute a Scotch war. In the fall[99]
of 1244 Henry summoned his Council to London; he laid before it the
story of his recent journey to Gascony and used the debts which he had
incurred as the pretext for a grant.[100] He addressed the baronage in
person in the expectation that they would not refuse a face to face
appeal; the nobles, however, withdrew to consult amongst themselves,
with the result that a committee of twelve, representing the three
bodies of prelates, earls, and barons, was chosen to draw up an
answer to the king. Simon de Montfort, Earl of Leicester, whose great
opportunity was not yet come, served as one of the four earls; and
Richard de Montfichet, one of the few executors of Magna Carta who
still survived, acted amongst the delegation from the baronage. The
reply was consistent with the works of both. The committee complained
of the nonobservance of the Charter, of the rash and fruitless
expenditure of money, and demanded the appointment of a justiciar and a
chancellor “by whom the kingdom might be consolidated.”

The king, however, was unwilling to act under compulsion; he refused
the petition and ordered the barons to reassemble three weeks after the
Purification of the Virgin in 1245. Thereupon the nobles declared their
willingness to grant him money, provided that in the meantime the king
should choose proper counsellors and institute reforms. The proviso
which was of greatest importance, however, was this, “that whatever
money was granted to him should be expended by the twelve ... nobles
for the king’s benefit.” These conditions were greatly to Henry’s
distaste; he set himself to wring money from the prelates, but with no
success. Then the Council “broke up, much to the king’s discontent.”

[A scheme of control]

The historian proceeds to give a scheme of reform which may possibly
be the result of the deliberations of the magnates, presented by them
to Henry for his consent.[101] It provides for the election by the
Council of four of its “most discreet” members to serve as counsellors
of the king. “By their inspection,” the account states further, “and
on their evidence the king’s treasury shall be managed, and the money
granted to him by the community in general shall be expended for the
benefit of the king and kingdom according as they shall see to be most
expedient and advantageous.” The four counsellors were to have numerous
other powers and duties, many of which are suggestive of the scheme
subsequently put into practice by Simon de Montfort.

Of itself this scheme of reform is relatively unimportant. But taken
with the demand of the magnates that twelve of their number supervise
the expenditure of such money as they should grant to the king, it
assumes some significance. It points toward the growing tendency on
the part of the barons to assume control, not only of the granting of
taxes, but of the expenditure of the money so raised as well. For some
centuries thereafter the question as to whether that control should lie
with the king or subjects was to be a prime subject of contention.

It would be a fruitless and uninteresting task to illustrate further
the control over matters of taxation exercised by the Council during
this part of the reign of Henry III. The instances in which the royal
requests were refused, and the occasions when the king attempted to
evade the refusal by private solicitation were not infrequent.[102]
A single citation may be excused, however, because of the element
of sinister humor which pervades it. Henry asked the Council for
money on the 9th February, 1248, and was greeted with a demand for a
justiciar, chancellor, and treasurer to be appointed by the Council
itself. This appeared distasteful to Henry, who was learning the
trick of independence. After a delay of some five months he refused
compliance; whereat he discovered that no grant was forthcoming from
the Council.[103] Thereupon Henry announced to his good citizens of
London that he would pass the Christmastide with them, in order that he
might freely accept of their New Year’s presents.[104]

[Representation as it existed in Henry’s National Council]

It would be too much, it seems, to say that the numerous cases in
which the Council denied to the king the financial assistance which
he urged upon them, prove the full control, in any modern sense, of
this body over taxation. The relation of Council to king was still
personal; the barons granted their support or refused it, as vassal
to feudal lord, by no means as representatives of the nation to the
government. The grants seem, indeed, to have been binding upon the
nation at large, and consequently it might be argued that the barons
were really representatives of the nation, capable of acting for it.
But the argument is based upon a confusion of terms; representation in
the modern sense was not at that time in England invented or thought
of. A baron who by virtue of his prominence or his power makes a
promise which is binding upon those of less prominence or less power,
is not a representative but a small despot. Such a position the barons
held who composed the National Council under Henry III; they acted for
the nation, but they were not in the modern sense representatives. The
inference is readily drawn, then, that a body thus constituted could
not exercise any more than a personal control over taxation.

The time was at hand, however, when the period of transition to the
impersonal relation should begin,--the relation which exists between
representatives of the nation and the government as personified in the
king, the relation recognizable to-day between the layers of taxes and
the spenders of the proceeds of taxation.

[Knights of the shires called to the Council, 1254]

In 1254, during Henry’s absence in Gascony, the regents, Queen Eleanor
and Earl Richard Cornwall, took steps to amplify the Council for the
time being with the lesser feudal tenants for the purpose of laying
taxes.[105] John, at his St. Albans Council in 1213, had had recourse
to a similar expedient, though the principle involved was quite
different. In the earlier instance a representative reeve and four men
from each township and the royal demesne were summoned in order to
assess the amount due in restitution to the clergy. In the latter the
royal writs directed that from each of the counties two “lawful and
discreet knights” be sent up to Westminster, “who together with the
knights from the other counties whom we have had summoned for the same
day, shall arrange what aid they are willing to pay us in our need.”
The knights were to be chosen by the counties themselves, probably in
the county court, since there the machinery of election already was in
existence. The election of knights by the body of suitors who composed
the courts of the counties was by no means a new thing; for eighty
years there is evidence of the election of such representatives for
local purposes, and it would be no startling innovation to extend this
function of the courts to the election of representatives in a national
council. In the present instance, furthermore, there is in the writ an
implication, though the deduction is hazardous, that the matter of the
aid received previous consideration in the county courts themselves.
“And you yourself carefully set forth to the knights and others of the
said counties,” so continues the instructions to the sheriff, “our
need and how urgent is our business, and effectually persuade them to
pay us an aid sufficient for the time being; so that the aforesaid ...
knights at the aforesaid time shall be able to give definite answer
concerning the said aid to the aforesaid council, for each of the said
counties.” The upshot of this Council was disappointing to the crown;
nothing resulted except a renewal of complaints against the royal
administration. Simon de Montfort, whose position as the defender
of the rights of Parliament, was as yet quite misapprehended, took
occasion to warn the Council against the policy of the king.[106]

The events of the next fifteen years, vital as they are to
constitutional history, must be briefly gone over. It is the period of
the Barons’ War and the Provisions of Oxford, and finally of Simon de
Montfort’s famous Parliament of 1265. But the years did not intimately
affect taxation, save as they provided more or less definitely for the
body which should ultimately have control over the granting of taxes.
Taxation was a prime cause of the baronial irritation which led to
the trouble with the king, but the conflict was not a moving cause in
the final attainment by Parliament of exclusive power over taxation.
The chain of events, however, in so far as they are pertinent to the
subject, must be traced.

[Strife between king and Parliament]

At the Hoketide Parliament[107] of 1255 the usual demand was made for
an elective ministry and was refused;[108] at the adjourned session of
this Parliament the following October, an aid to the king was denied
on the distinct ground that the members, all magnates, had not been
summoned according to the terms of Magna Carta.[109] The struggle, vain
and threatening of future ill, went on through the next year, until
by 1257 the king found himself plunged inextricably into debt, much
of which was owing to the Pope. The latter had undertaken a war with
Manfred with whom was lined up the Hohenstaufen power, to seat on the
throne of Sicily Edmund Crouchback, Henry’s second son.[110] Henry owed
him 135,000 marks, and it is said that the Londoners, the sheriffs, the
clergy, and the Jews therefore suffered.

The first Parliament of 1258 was held at London on the 9th April and
sat for about a month. The purple robes in which Henry garbed his
foreign favorites shone richly against the gray background of his
asserted poverty, and their brilliance was enough to blind the eyes of
the Parliament to his necessities.

Wars were threatened on the northern and western borders, and the Pope
was brandishing his sword of excommunication in case Henry continued
his dilatory policy toward Apulia. Parliament refused his urgent plea
for a tallage of one-third of the movables of the realm, reprehending
the simplicity of the king in making his bargain with the Pope.[111] An
outbreak was avoided by an adjournment until the 11th June at Oxford.

[Provisions of Oxford, 1258]

On that day the barons and higher clergy came together, bringing with
them a heavy burden of grievances. A scheme of reform was drawn up
in the famous Provisions of Oxford. They projected the control of
the government by a number of representative committees.[112] The
only point upon which the Provisions of Oxford touch the question
of taxation is in the section which arranges for the appointment of
a committee of twenty-four “by the whole of Parliament on behalf of
the community” to treat of the aid demanded by the king for the
prosecution of his war. The list of grievances, furthermore, for which
the Provisions were to win redress, did not bring up the matter of the
royal power to levy taxes in any degree whatsoever.[113] The nearest
approach to such an objection came in the complaint against extortions
under the feudal law and in the reference to the manner in which prises
were exacted. In each instance the remonstrance was not against the
principle but against the manner in which the act was accomplished.

[Character of the Provisions]

The Provisions of Oxford furnished no advance in the general progress
toward parliamentary taxation. The only step was a step backward. They
provided for one committee which should have the power of granting
an aid to the king, and delegated to another most of the business of
Parliament. These were movements, not toward the ideal grasped in the
time of Edward I and realized in the Bill of Rights, but of a character
distinctly retrogressive. The government was advantageous to none
save to those who participated in it, and between the participants
there was no mediator in case the distribution of advantages should
be questioned. Theoretically the king’s authority remained, though
it was in restraint; in fact it was given to an irresponsible and
self-interested body of barons subject to the mutual jealousies which
are always the incidents of oligarchic rule.

The provisional government lasted for a year and a half from its
erection in June, 1258, without interruption; thereafter it continued
for four years with a number of breaks until 1263, the year in which
civil war began between Earl Simon and the king.

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

In the middle of 1261 Henry produced bulls which the Pope Alexander
IV had granted to him shortly before he died absolving him from his
oath to observe the Provisions, and pronouncing excommunication upon
all those who should contravene the absolution.[114] The act of Henry
all but brought forward the impending civil war. Simon de Montfort
and his colleagues, probably in the hope of winning the popular mind
to their cause, acting as chiefs of the provisional government,
addressed summonses to the various sheriffs inviting three knights
from each shire to attend an assembly at St. Albans. Henry, fearing
a general movement against him, sent out counter orders to the
sheriffs, requiring them to send knights not to St. Albans but to
Windsor, _nobiscum super præmissis colloquium habituros_.[115] In
all probability neither of the assemblies met; at least there is no
suggestion of a session of either in the chronicles of the time. They
assume importance, however, as foreshadowing the later Parliaments
of Simon de Montfort, and as indicative of his policy to utilize the
county organization in national matters.

[Civil War, 1263]

Two years later, in June, 1263, Simon de Montfort began war. The
following December the differences between the parties were laid before
Louis IX of France for his decision. He, not unsympathetic with the
plight of his royal brother, made an award in favor of Henry, saving
to the barons and Earl Simon only their rights under the Charter.[116]
But Simon de Montfort was in a position to protest against the
verdict. He vindicated his attitude at the battle of Lewes, 14th
May, 1264, and Henry, his relatives, and his principal adherents
found themselves prisoners in the hands of the barons. A compromise
was effected by the Mise of Lewes, which, after a reconfirmation of
the Provisions, provided for the release of Henry and named a new set
of arbitrators.[117] By the fourth article of the compromise, Henry
was to take the advice of his counsellors in administering justice
and choosing ministers; he was to observe the Charters and to live
moderately.

[Knights of the shire in Parliament, 1264]

But Earl Simon was not satisfied. He garrisoned all the royal castles
with soldiers friendly to his cause, and on the 4th June sent out
writs to the counties in the king’s name summoning to London the
following October, “four lawful and discreet knights,” who were to be
“elected for the purpose by the assent of the county to act for the
whole of that county,” and were to “treat with us of the above-stated
business.”[118] This Parliament when it met proceeded to compose a
new scheme of government, the chief feature of which was a standing
council, indirectly elected by the barons, which should be the moving
force behind all royal acts,--that is, the king was to act only in
accordance with the will of the council.[119]

[Simon de Montfort’s great Parliament, 1265]

Simon de Montfort on the 24th December following issued writs in the
king’s name bidding the sheriffs to send up two knights from the
shires, and each of some twenty-one especially designated cities and
boroughs to send up two citizens and burgesses to London.[120] The
Parliament was called for the 20th January, 1265. Beside the
representatives of the cities and boroughs, there was a very full
gathering of the clergy. The baronage, who as a body looked upon Earl
Simon’s cause with small favor, were called upon to send only
twenty-three of their number, five earls and eighteen barons.

[The first instance of burgher representation in Parliament]

[The House of Commons is foreshadowed]

It is upon this Parliament that the fame of Simon de Montfort as the
Creator of the House of Commons is established. Unless we admit as
an instance of borough representation the summons of the reeve and
four men from the demesne townships to the St. Albans Council in
1213, we have here the first participation of the burgher class, the
Third Estate of the Realm, in the Parliament of the nation. It was
to compose, along with the recently admitted representatives of the
shires, the House of Commons, and in its hands the destiny of the power
to tax was to lie. That Simon de Montfort summoned the citizens and
burgesses to the Parliament of 1265 is attributable chiefly to the fact
that they were amongst the most ardent of his supporters.[121]
It is extremely doubtful that he acted in accordance with any great
scheme of constitutional reform. He called the burghers because he
found their support useful, and therein lay the greatest hope for the
future; the time was not far distant when a greater than Simon de
Montfort should discover that a Parliament in which cities and boroughs
and counties were alike represented was the most convenient means of
supplying the royal treasury.

As for Simon de Montfort’s Parliament, its importance to taxation lies
wholly in its significance in the elaboration of the representative
principle; there is no record that it did aught with respect to
taxation. Its business was mostly confined to concluding arrangements
begun in the Mise of Lewes for the government of the kingdom.

[Last years of Henry III]

What was left of the reign of Henry III, already stretched beyond its
time, is all but negligible. The position of Simon de Montfort was too
favorable to keep him clear of jealous rivals. War speedily started
up again and in an early battle, that of Evesham, the great earl was
slain. Two years thereafter, the royalist party managed to get the
upper hand and the war came to an end. Henry was wise enough, or old
enough, not to tempt Providence; he continued his reign according to
the dictates of law and of good policy. By the statute of Marlborough
in 1267 were granted most of the measures of reform which had been
demanded nine years previously in the Mad Parliament of Oxford. With
the affairs of state running thus smoothly, Henry moved tranquilly down
the long <DW72> 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


[Edward I, 1272-1307]

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 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
(6_s._ 8_d._) 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.

[Parliaments of 1289 and 1290]

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. 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]

[Seizure of wool, 1294]

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; 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]

[Clergy grant money under pain of outlawry, 1294]

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. 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]

[Events leading up to the Model Parliament, 1295]

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; 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.

[Edward puts the clergy in outlawry]

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 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.

[Struggle with the barons over service in Gascony]

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 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]

[Seizure of wool]

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. 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.

[His financial expedients]

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. 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]

[The barons’ grievances]

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, 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 40_s._ 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 embarks for Flanders]

Edward did not return a definite answer; the call to war sounded too
loudly. Before he embarked he issued orders for the collection of 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.

[Principle that grants must await redress of grievances]

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
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.

[Confirmation of the Charters]

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. 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]

Edward I, when he signed “Confirmatio Cartarum,” in an inconclusive
way handed over to Parliament the right to consent to all taxation
before it be levied; in other words, hereafter Parliament had grounds
upon which it could contest arbitrary exactions of the crown. That the
grounds for objection were not absolute and that Edward left a loophole
by which he could escape will appear upon a consideration of the
articles themselves.

[The tax provisions of Confirmatio Cartarum]

The first four chapters of Confirmatio Cartarum have to do with the
bare reissuance of the Charter of Henry III, and penalties for their
infraction. The fifth is more to the point; it provides that the recent
exactions shall not be taken into precedent for future taxation.[183]
The sixth chapter brings the issue directly before us and exhibits
also the loophole by which the king might find his escape from it, if
he should have the inclination and the power to do so. It says that
“for no business from henceforth we shall take of our realm such manner
of aids, tasks, nor prises, but by the common assent of all the realm,
and for the common profit thereof, saving the ancient aids and prises
due and accustomed.”[184] The chapter going on in reference to the evil
custom of forty shillings on every sack of wool, commonly known as the
“maletolt,” says, “We ... have granted that we will not take such thing
nor any other without their common assent and good will; saving to us
and our heirs the custom of wools, skins, and leather, granted before
by the commonalty aforesaid.”

The chapters are explicit. Of the two, the sixth is of far greater
consequence, both to those seeking in Confirmatio Cartarum a complete
statement of the right of Parliament to exercise exclusive control
over taxation and to those looking for a vindication of the royal
prerogative. The fifth can be taken for what it was, a mere promise on
the part of the king not to bring forward past wrongs in defense of
future ills,--a promise, the like of which was seldom of much practical
avail. The sixth, however, were it not for two clauses saving to the
king “the ancient aids and prises, due and accustomed,” and the “custom
of wools, skins, and leather granted before,” would have established a
tolerably broad basis for the theory that royal control over taxation
underwent its legal death in 1297. The facts, however, that the king
could still retain his right to levy ancient aids and prises, provided
they were what his ancestors were wont to exact; that he could claim
unquestioned control over the wool-tax to the extent of half a mark on
the sack; and that nothing was said at all about his right to tallage
his demesne and the city of London, form a sound backing for the
contention that not only was the royal power over taxation not dead,
but that it was still vigorous and capable of much future activity.
One might rightfully deduce, also, at least in so far as an explicit
reading of the text can lead one to conclusions, that within certain
circumscribed limits, the royal prerogative would be unquestioned.

By implication, however, it is possible to read into Confirmatio
Cartarum a different significance than a bald consideration of its
contents allows. The mere fact that the nation had taken a stand on
the matter of taxation marks the year 1297 as of profound importance;
the fact that the stand was not conclusive, that it did not represent
the fullest advance possible at the time, is not to be wondered at.
Furthermore, the subsequent Parliaments saw to it that the king
observed more than the mere letter of the law, notwithstanding Edward’s
evident aptitude for only that. The case in this respect was not unlike
the observance of the omitted chapters of Magna Carta; though the
written form of them had been misunderstood and unappreciated, yet by
the natural forces at play between king and Councils, the spirit of
them survived.

[De tallagio non concedendo]

The so-called Statute _De tallagio non concedendo_, if it could be
taken at its face value, provided exactly those restraints upon the
royal power wherein Confirmatio Cartarum was wanting. It appears in the
Chronicle of Walter of Hemingburgh immediately after the French text
of Confirmatio Cartarum under the heading “Articuli incerti in Magna
Carta,”[185] “No tallage or aid,” it says, “shall be laid or levied
by us or our heirs in our realm, without the good will and assent of
the archbishops, bishops, earls, barons, knights, burgesses, and other
freemen of our realm.”[186]

Seizure of corn, wool, and leather was provided against, and the
maletolt was forever done away with. Humfrey Bohun and Roger Bigod
received pardon for themselves and their following for failing to serve
in the train of Edward when he went to Flanders.

_De tallagio non concedendo_ was denominated a statute in the Petition
of Right and declared to be such by decision of the judges, in the
Hampden case in 1637. In all probability, however, it is nothing but
the Latin abstract of Confirmatio Cartarum, included by Walter of
Hemingburgh in his narrative for the greater convenience of the reader,
together with a formal statement of the pardon of the two earls. That
Edward did not feel himself bound by the restrictions of the “Statute”
is shown by the fact that in 1304 he tallaged the towns and the royal
demesne. Furthermore, the nation seems at the time not to have regarded
the Chronicler’s articles as law, for they registered no complaint
against Edward’s tallage.[187]

The appearance of Confirmatio Cartarum marked a stage in the history
of parliamentary taxation. During the reigns of Henry III and Edward,
machinery was constructed which could carry out the chapters of Magna
Carta providing for taxation by assent. The Parliament of the three
estates, assembled for the purpose of meeting the pecuniary necessities
of the king, proved itself to be the easiest and most effective means
by which the whole nation could grant taxes. But the evolution from the
Commune Concilium, the rough prototype of Parliament, had scarcely gone
farther than to supply a convenient instrument of taxation. In 1297
every tax did not need the assent of Parliament as the prerequisite to
its levy; Confirmatio Cartarum was not all-inclusive. More than that,
the question was still undetermined as to whether the granting of
supplies should always wait upon redress of grievances. If Parliament
should maintain that principle in practice, then its hold would be
secure upon the executive. Power in 1297 was not far from a balance
between king and nation.

If the evolution of a government can ever be attributed to the
directing skill of man rather than to the slow weaving of events,
the construction for England of an engine of popular taxation can be
ascribed to Edward Plantagenet, and in less degree to the drafter of
the working plan, Simon de Montfort. Edward perceived the nation’s
problem and adapted such means as lay near his hand to its solution. So
it was that an assembly, not only of the magnates of the kingdom, but
of elected knights of the shire, of parish priests from the inferior
clergy, of merchant citizens and burgesses from the towns, came
together to provide in common for the common need.




V

TAXATION BY THE COMMONS 1297-1461


[Character of the period]

THE years subsequent to 1297 up to the time of the Tudors comprise a
period of differentiation within Parliament itself. Save for the event
of the year 1340, when the statute was passed which completed the
movement punctuated by Confirmatio Cartarum, to the effect that every
form of taxation must have the sanction of Parliament in order to be
legal, the three centuries showed greater progress inside the walls of
Parliament than beyond them. Struggles there were in plenitude between
king and Parliament to secure adherence in practice to the theory
enunciated in 1340, but the great question was that of the ruling
power within Parliament. It is during this period that the Commons
come forward as the sole initiators of taxes, leaving to the Lords
merely the coördinate power of consent. In close interrelation with
this monopoly of power over the public purse, comes, in consequence
of the theory that supplies must wait upon redress of grievances, the
advance toward control by the House of Commons of the entire machinery
of government, legislative and executive.

It is a period of confusion and contradiction. Time and again
constitutional life seems to be dead. War, disputed succession to the
crown, tyranny, slip-shod government,--these and more tend to make
the years 1297-1461 a bundle of scenes ill-bound together. The Wars
of the Roses, the struggles with France for various causes and with
varied consequences, the doting of monarchs upon foreign favorites,
all contribute toward popular distraction from that interest in
government, that keen hostility to maladministration, which makes
for constitutional progress. There was no leader to prick the public
conscience; no Simon de Montfort or Edward Plantagenet to inaugurate
reforms in the great matters of government.

[The Parliament of Lincoln, 1301]

When Edward I put his name to Confirmatio Cartarum at Ghent, on
the 5th November, 1297, he had still ten years to live. In 1301, he
re-confirmed the Charters in a bill of some twelve articles forced
from him by the barons in a manner which he denounced as outrageous,
and thereby concluded the baronial conflict. The barons presented
their claims at the Parliament of Lincoln which was summoned for the
20th January, 1301, and included amongst them, beside the plea for a
confirmation of the Charters, a demand for the enforcement of general
reforms, this last to be the prerequisite for a grant of money. A
fifteenth of all movables was then voted to the king, to be paid upon
the completion of the reforms, the date proposed being Michaelmas next
coming.[188] The clergy, who still professed adherence to the bull
“Clericis laicos,” with the approval of the baronage averred that
they could not acquiesce in any grant of money in the face of papal
prohibition. Edward, in his reply to the claims made by the barons,
declared his unwillingness to admit the validity of the assertion that
papal consent was necessary to the clerical grant. His confirmation of
the Charters was dated 14th February, 1301.[189]

[Edward’s financial expedients]

[Tunnage and poundage and other customs]

Edward’s last years were years of financial difficulty. In 1302 at the
Parliament held on the 1st July, at London, he received from the lay
estates and the clergy a fifteenth of temporal goods.[190] The same
year saw him turn back to the aid _pur fille marier_ which the barons
had granted twelve years previously in June, 1290; and in 1303 he
attempted to obtain the consent of the merchants to an increase in the
custom on wine, wool, and merchandise. He called a meeting at York,
quite irregular in its constitutional aspect, and presented the matter
for its consideration. The merchants would not listen to the plea and
the matter, as far as denizens were concerned, was dropped.[191] Five
months previously, on the 1st February, Edward had had better fortune
in a similar effort with the foreign merchants. On the principle that
the crown had the right to close the ports to merchant strangers,
Edward entered into negotiation with the leading men amongst them, and
in return for a grant of all the privileges and liberties essential to
them, they agreed to a fifty per cent. increase over the rates paid
upon wools and leather by English-born merchants. Beside these were new
duties upon other commodities, whether they be exported or imported:
wine, 2_s._ on the tun, a custom which was to achieve notoriety
under the name of tunnage; cloth, from 1_s._ to 2_s._ on the piece
depending upon the dye; general merchandise, 3_d._ in the pound of
20_s._, subsequently called poundage; and wax, 1_s._ per quintal.[192]
This agreement between king and merchants, known by the title “Carta
Mercatoria,” was not technically in contravention of Confirmatio
Cartarum, notwithstanding the provisions of the latter against the
levying without national consent of any but the “ancient prises” and
the custom on wool previously granted. Confirmatio Cartarum was a grant
to Englishmen and to Edward’s sharply legal mind, its liberties did not
extend to foreigners, however closely knit their relations might be
with the king’s own people.

[Tallage, 1304]

In 1304 Edward took from the demesne cities and boroughs and the royal
demesne a sixth of movables.[193] The records of the Parliament of
1305, far from noting any complaint against the king’s tallage, contain
this memorandum: “To the petition of archbishops, bishops, prelates,
earls, barons, and other good men of the land, praying that the king
wills to grant them the power to tallage their ancient demesne ... even
as the king has tallaged his demesne, it was answered, ‘Let it be as
petitioned.’”[194] This is all but final evidence against the validity
of _De tallagio non concedendo_.[195]

[Edward II, 1307-1327]

The great Edward died at Burgh-upon-Sands on Friday, the 7th July,
1307, and the sceptre fell into the nerveless hand of Edward II. The
new king did not inherit his father’s great attributes nor his good
fortune; he was improvident and unperceptive, the faithful dupe of
advantage-seeking associates, the lavish spender of money he did not
have, the chief enemy of himself. At last, when he had reigned some
twenty years, he was put down and his son succeeded in his stead.
Edward II’s accession was undisputed; at Carlisle, on the 20th July, he
received the homage and fealty of the English baronage, and six months
later on the 25th February, 1308, he was crowned. The coronation oath
he was obliged to take in French, not being familiar with the Latin
tongue. The oath was more than usually stringent; the last of the four
promises required of the king was this: “Sire, do you grant to hold
and to keep the laws and righteous customs which the community of your
realm shall have chosen, and will you defend and strengthen them to the
honor of God, to the utmost of your power?” Edward answered, “I grant
and promise.”[196]

Edward did not call a Parliament between

October 1307, and April 1309.[197] He was in fear, apparently, of an
attack upon his foreign favorite, Piers Gaveston, and was desirous
of shielding him, as Charles I attempted to shield Buckingham three
centuries later, by doing without a Parliament. The only merit of
the favorite seems to have been the deep, and in its consequences
the pathetic love with which he inspired the young monarch. He was
self-seeking, avaricious, willful, and capable of exercising a
domination over the king as complete as it was profitable to himself.
At last, however, the loans, which his Italian bankers, the Friscobaldi
had supplied Edward, withered away and he was obliged to issue a
summons to a Parliament.

[Tentative abolition of the New Customs]

Parliament met on the 27th April, 1309, with a full attendance of
clergy, lords, knights and burgesses. In response to Edward’s urgent
request for funds, the lords, burgesses and knights granted him a
meagre twenty-fifth, but only on condition of a redress of grievances,
these being detailed in a schedule of eleven articles.[198] Two of
the eleven have to do with taxation; the first was directed at the
abuses of purveyance; the second hit more nearly, having to do with the
New Customs which Edward I had provided for in the Carta Mercatoria
of 1303.[199] “And as to the customs which the king taketh by his
officers--,” so goes the memorandum in the Rolls, “that is to say, of
every tun of wine, two shillings; of every cloth which alien merchants
bring into his land, two shillings; and of every pound value of avoir
de pois, three pence--the king willeth at the request of the said good
people that the said customs of wines, clothes, and avoir de pois, do
cease at his will, in order to know and be advised what profit and
advantage will accrue to him and his people by ceasing the taking
of those customs; and the king will have counsel according to the
advantage which he shall see therein: saving always to the king the
ancient prises and customs anciently due and approved.” The king gave
orders that the conditional grant of the twenty-fifth be collected.

[The Lords Ordainers, 1309-1311]

The trouble over Gaveston, however, was not settled, and he became
increasingly worrisome to the barons. Furthermore the customs were
collected not by Englishmen but by Edward’s Italian bankers. In March
1310, meeting in council, the barons drew up a petition praying against
the impoverishment of the exchequer despite grants of money; the king,
so they said, was still exacting prises and living by purveyance
contrary to the engagement of 1309. Edward, still hoping to shield
Gaveston, assented to the election of a commission of twenty-one, known
as the Lords Ordainers, who exercised his authority for the space of a
year and a half.

The Lords Ordainers, recalling in their composition and purposes those
who put forward the scheme of reform in the Provisions of Oxford of
1255, proceeded to promulgate ordinances for the correction of abuses.
On the 2d August, 1310, six ordinances were made public and received
the confirmation of the king.[200] By the fourth, it was ordained “that
the customs of the realm be kept and received by people of the realm,
and not by aliens; and that the issues and profits of the same customs,
together with all other issues and profits of the realm arising from
any matters whatsoever, shall come entirely to the King’s exchequer,
... to maintain the household of the king, and otherwise to his profit,
so that the king may live of his own, without taking prises other than
those anciently due and accustomed; and all others shall cease.”[201]
Despite the apparent inclusion of the “New Customs” within the meaning
of this ordinance, their resumption was ordered the same day, on the
ground that during the period of their prohibition, prices had not been
reduced.[202]

[New Customs abolished]

Parliament met on the 8th August, 1311, to receive the final report of
the Ordainers, and sat for two months. Thirty-five additional articles
were drawn up in Parliament.[203] By the tenth article new prises
are to be abolished, and by the eleventh the New Customs are done
away with in their entirety. “New customs have been levied,” says the
ordinance, “and the old enhanced, as upon wools, cloths, wines, avoir
de pois, and other things, whereby the merchants come more seldom, and
bring fewer good into the land, and the foreign merchants abide longer
than they were wont to do, by which abiding things become more dear
than they were wont to be, to the damage of the king and his people;
we do ordain that all manner of customs and imposts levied since the
coronation of King Edward, son of King Henry, be entirely put out, and
altogether extinguished for ever, notwithstanding the charter which the
said King Edward made to the merchant aliens, because the same was made
contrary to the Great Charter ..., saving nevertheless to the king the
customs of wools, woolfells, and leather; that is to say, for each sack
of wool, half a mark, and for three hundred woolfells, half a mark, and
for a last of leather, one mark ..., and henceforth merchant strangers
shall come, abide, and go according to the ancient customs....”[204] On
the 9th October, the day upon which Parliament rose, the order went
out which made the ordinance effective.[205]

[Banishment of Gaveston]

[Tallage of 1312: Riots in London and Bristol]

Gaveston, the hated favorite, whose corruption and acts of oppression
had furnished the immediate cause for the reform movement, was amply
provided for. He was put under sentence of perpetual banishment and
in order to safeguard themselves against the return to power of him
and his kind, the barons reiterated the demand made in 1244, that the
appointment of ministers be subject in the future to their council
and consent.[206] The king gave his assent to the ordinances on the
30th September and two weeks later they went out to the sheriffs for
publication.

The Parliament which met in 1312 granted Edward no money. His position
was desperate and he turned everywhere in the hope that he could raise
funds wherewith to meet his necessities; the merchants and the clergy,
even the Pope, were induced to lend him money. But they could not
satisfy his needs; therefore in December, 1312, the Council determined
to levy a tallage on the demesne towns and the royal demesne of a
fifteenth of movables and a tenth of rents.[207] The imposition met
with opposition, resistance being most riotous in London and Bristol.
The objections which the people of Bristol raised were not based upon
legal grounds; it so happened that at the moment certain of their
burgesses were confined in the Tower of London, and that grievance,
so they maintained, warranted their refusal. The basis for resistance
raised by the citizens of London was not so casual; they claimed
immunity from a royal tallage on the ground of the “ancient privileges”
guaranteed to them under Magna Carta. Neither cited _De tallagio non
concedendo_ as the defense of their actions, and the presumption
against the validity of the so-called statute is therefore enhanced.
The king secured his payment by way of compromise; the Londoners
granted a “loan” of £400 and another of £1000, from which sums they
were to be relieved at the time of collection of the next general
aid. Many other towns escaped upon the ground that they were not
situated within the royal demesne. The principle that the king could
levy tallages upon his own demesne thus remained unquestioned; but no
tallage was levied during the rest of this reign.[208]

[Deposition of Edward II]

It is unnecessary to follow Edward II to his melancholy end. His
deposition came more as the result of stress in his own household than
because of any strain which he put upon the constitution. Favorites,
an unfaithful wife, and factions which he bred among his barons, did
more to bring about his dethronement and his subsequent murder than any
condition of taxation. In the list of grievances which Bishop Stratford
drew up as furnishing cause sufficient for the overthrow of Edward,
nothing appears which has any connection with the question of taxation,
much less any assertion of parliamentary right to control it. The king
consented to the election of his son in his stead on January 20, 1327.
Eight months thereafter he died; few doubt that he was murdered.

[Edward III, 1327-1377]

The reign of Edward III dates from the 24th January, 1327. He was
crowned five days later at the age of fourteen and took the same
stringent oath as that which had failed to bind his father. Parliament
appointed a council of government which was to be in constant
attendance upon the king; but the queen and her familiar, Mortimer,
assumed so dominant a control over the young king that the influence
of the Council was nil. Edward went through the formality of confirming
the charters and forbidding illegal assessment of aids. His rule really
did not begin until November, 1330, when Mortimer was killed.

Edward III, being no statesman, but a warrior, energetic, without
scruple, lavish, and ambitious, was not a figure designed to loom
large in constitutional history. He did not mould events as did his
grandfather; he watched them move. As a matter of fact there was
advance. Tallage was prohibited and there came, too, the abolition in
law of other forms of arbitrary taxation.

[Tallage of 1332 and its withdrawal]

Edward had in mind in 1332 the reduction of Scotland.[209] To that end
he revived a financial expedient which had not been exercised since
his father’s embarrassment in 1312, and tallaged the demesne cities
and boroughs, and the rural demesne. On the 25th June, he sent out
orders for the collection of a fourteenth of movables and a ninth of
rents.[210]

Parliament met three months later, on the 9th September, and a request
formulated by the prelates, earls, barons, and the knights of the
shires, was addressed to the king praying the recall of the commission
for the tallage; Parliament offered as a substitute a fifteenth from
the shires and a tenth from the towns. Just why a Parliament in which
the Rolls do not note the inclusion of the burgesses should accomplish
such a substitution, which obviously benefited the townsmen, is not
clear, unless a considerable portion of the knights dwelt within the
royal demesne or in small towns formerly subjected to the exaction of
tallage. In his acceptance of the grant Edward promised for the future
that he would not lay such a tallage, “Except as was customary in the
time of our ancestors, and as he might rightly do.”[211] It was not,
however, until the sweeping legislation of 1340 that tallage became
illegal.

[New Customs become a regular means of revenue]

In parallel to the struggle against tallaging the royal demesne was the
contest with the king in the matter of the custom on wool. Edward in
1328 confirmed the reëstablished scale of 1322 which his father in his
hour of supremacy had laid upon the alien merchants, in amount equal to
the “nova custuma” of Edward I. From this time the New Customs became
a part of the regular revenue of the crown, though Parliament did not
yield its sanction until a time some fifty years after the first levy,
when, in 1353, it gave its assent to the Statute of Staples.

But the regulation of the relations between king and merchant denizens,
and incidentally through them, his relations (aside from the New
Customs) with the aliens, is not so briefly told. Throughout the reign
of Edward III the question was being quietly fought out as to whether
or not the king might tamper with the wool customs irrespective of
parliamentary sanction. In 1332 Edward issued an ordinance which
provided for the collection of a subsidy on the wool of denizens; the
rate was to be half a mark on the sack and 300 woolfells, and twenty
shillings on the last of leather. A year later on the 30th June, 1333,
Edward recalled his ordinance, but he did not relinquish his grasp
upon the customs; by negotiation with the merchants, he received ten
shillings on the sack and 300 woolfells and a pound on the last. In
order to bolster up the legality of the proceeding, he issued a royal
ordinance to the same effect.[212]

[The wool customs]

In August of the year 1336, when the king’s arms were meeting with
great success on the northern border, Edward, confident in his
popularity, sent out royal letters forbidding the export of wool.[213]
Parliament met at Nottingham the following month full of pride in the
military prowess of the king, and granted him liberal aids. Not only
did the barons and knights contribute a twentieth, the towns a tenth,
the clergy a sixth, but the merchants, who were at this moment, so it
appeared, on the verge of attaining to the dignity of a fourth estate
in Parliament, granted him forty shillings on the sack of wool; and
the foreign merchants were to pay an additional twenty shillings.[214]
In the hope that its action would encourage the domestic manufacture
of cloth, Parliament in March, 1337, passed a statute forbidding
the exportation of wool, and offering foreign operatives special
inducements to settle in England.[215] The embargo was to continue
until the king and his Council should decide otherwise. Thus empowered,
Edward and his Council issued an ordinance imposing upon denizens a
custom of £2 on the sack and on 300 woolfells, and £3 on the last of
leather; the unfortunate aliens were to pay double.[216]

The effect upon the people was immediate; unable to sympathize with
the project of importing skilled labor and seeing only the curtailment
in profits normally accruing from their chief article of export, they
were led almost to the point of revolt. The Parliament which met in
September 1339, in answer to the general cry for reform, brought
forward measures aimed to allay the popular irritation. The barons made
the curious grant of “the tenth sheaf, the tenth lamb, and the tenth
fleece, payable in two years,” and they “willed that the maletolt of
wool lately levied afresh, be entirely removed and held to the old
rate.”[217] The knights and burgesses, questioning their ability to
grant money to the king without first consulting their constituents,
desired the matter deferred to a subsequent Parliament. They mentioned
six grievances upon which they demanded redress. They asked release
from the customary aids and prises, and “that the maletolt of wool and
lead be taken as of old, for that the same is now increased without the
assent of Parliament.”[218] The new Parliament, in accordance with the
will of the knights and burgesses, was summoned for the 20th January,
1340.

At this session no new legislation was undertaken. Edward was
abroad and his absence discouraged the members from enunciating new
principles. They showed themselves, however, sympathetic with the royal
necessities. The lords again offered the tenth sheaf, the tenth fleece,
and the tenth lamb; the commons granted 30,000 sacks of wool, on the
condition of the royal acceptance of certain articles drawn by them,
and in case their reforms were not favored by the king, they made a
free gift of 2500 sacks of wool.[219] Edward called a new Parliament
which met the 29th March, there being in attendance a large body of
merchants. The prelates, barons, and knights made a gift of the ninth
sheaf, fleece, and lamb in complement to the baronial tenth of the
previous January, and the towns gave a ninth of movables; a fifteenth
from the rest of the nation, such as had no wool and yet were not
townsfolk, completed the grant, save for a custom on each sack of
wool, on every 300 woolfells, and on every last of leather, of forty
shillings.[220] But the gifts were conditional; the king was to accept
the articles prepared by the commons. Being amenable to their will,
he referred the petitions to a committee, part of which was selected
by the commons themselves, with the understanding that it should draw
up statutes embracing such of the matters prayed for as were of a
permanent character.

[Statutory abolition of the maletolt and of all unauthorized
taxation]

The first statute met the demands of 1339. “And for this grant,” it
says, speaking of the liberal wool subsidy mentioned above, “the king
by the assent of the prelates, earls, barons, and all others assembled
in Parliament, hath granted, that from the feast of Pentecost that
cometh in a year, he nor his heirs shall not demand, assess, nor take,
nor suffer to be taken more custom of a sack of wool of any Englishman
but half a mark of custom only; and upon woolfells and leather the old
custom.... And this establishment lawfully to be holden and kept, the
king hath promised in the presence of the prelates, earls, barons, and
others in his Parliament, no more to charge, set, or assess, upon the
custom, but in the manner as afore is said.”[221]

The second statute was still more sweeping: “We ... will and grant
for us and our heirs, to the same prelates, earls, barons, and
commons, citizens, burgesses, and merchants ... that they be” not
“from henceforth charged nor grieved to make common aid, or to sustain
charge, if it be not by the common assent of the prelates, earls,
barons, and other great men, and commons of our said realm of England,
and that in the Parliament; and that all the profits rising from the
said aid, and of the wards and marriages, customs, and escheats, and
other profits rising of the said realm of England, shall be put and
spent upon the maintenance of the safeguard of our said realm of
England and of our wars....”[222]

[Parliament the sole taxing authority in law]

The importance of these two acts is readily apparent. The promise of
Edward to abide by the recommendation of Parliament in the matter of
the subsidy on wool, was an admission by the king that not he but
they had final control over the laying of customs duties. Thus was
established the principle to be defended and likewise to be questioned
in the future, that Parliament alone had power to lay a tax on wool.
In the second place, by the statute which provided that no charge
or aid should be levied but by consent of Parliament, tallage died
a legislative death.[223] And not only was this statute aimed at
tallages but as well at every species of unauthorized taxation. Thus
was enunciated the profoundly important principle that Parliament
was the sole authority for levying taxes not merely on the nation
at large, as had long been the practice, but in every department of
the government, on the royal demesne as readily as on the shires
themselves. If the practice of future years had lived up to the ideal
expressed in this statute, it would be possible to draw a line at the
year 1340 and say that thereafter Englishmen exercised the right of
taxing themselves.

The commons perceived, apparently, that the incidence of indirect
taxation fell upon the nation quite to the same degree as direct
taxation. The customs, in the beginning undisputedly within the royal
prerogative, and according to royalistic advocates unceasingly so up
to relatively modern times, were contended for almost as heartily as
power over direct taxation itself. “The history of the customs,” says
Bishop Stubbs, “illustrates the pertinacity of the commons as well as
the evasive policy of the supporters of prerogative.”[224] Prior to
the accession of Edward III, the struggle for control, centering upon
exactions in excess of the _antiquæ custumæ_, was quietly waged between
king and Parliament. During his reign and afterward the watchfulness of
Parliament kept up.

[Checkered history of the wool customs]

After the legislation of 1340, Parliament showed itself willing to
bargain with the king for control of the customs duties, thus staying
within its legal rights. It could only petition, it could not yet
enforce; and when the king promised his assent to a petition he
frequently forgot his word. An account of what became of the custom
on wool is illuminating as indicative of the variation between
petition and enforcement. In 1340, the king had received by grant of
Parliament forty shillings on the sack, for a year and a half, on the
understanding that he would abolish the maletolt. After a lapse of two
years,[225] Edward procured from the merchants without the consent of
the commons, a custom of forty shillings on the sack and issued orders
for its collection. The commons, exhibiting more than an elementary
knowledge of economic principles, perceived that the tax fell not upon
the foreign merchants, but upon the growers of wool. In response to the
remonstrance of the commons made in the Parliament of May, 1343, Edward
declared to them that the price to be paid for wool, being fixed by
the authority of Parliament, would be constant, and that consequently
the foreign merchants would feel the incidence of the tax.[226] The
commons, duly impressed by so subtle an argument, consented to a
reimposition of the exaction for three years under the sanction of
Parliament. After the passing of the three years, and the ordinance
fixing the price of wool having in the meantime been revoked,[227]
the commons, finding that Edward showed no disposition to release
wool from the custom, petitioned against its continuance.[228] The
king replied that he had secured the assent of the baronage and of
the merchants, and that he had already pledged the proceeds of it to
his creditors. The commons, finding that they could not win their
point, contented themselves with a belief that having established
the principle, they could at any time demand a practice of it, and
granted the perpetuation of the old rate for two years. In 1348, at the
conclusion of that term, the commons again presented a remonstrance,
asserting that the wool subsidy was really a land tax. They granted
a fifteenth for three years on the condition that the subsidy of
wool should cease in three years, and that for the future “no such
grant should be made by the merchants.” The wording was particularly
conclusive,--no “imposition, tallage, or charge by way of loan or in
any other manner,” was to be laid “without the grant and assent of the
commons in Parliament.” And the enactment was to remain “as a matter of
record, whereby they may have remedy if anything should be attempted
to the contrary in time to come.”[229] Edward accepted the grant and
assented to most of the petitions, but no new statute was based upon
them, a fact which is taken to indicate that the oppressions complained
of were recognized as illegal.[230]

Again in 1362 arbitrary exactions on wool received the attention of the
commons and the statute passed in that year enacted that thereafter no
subsidy should be set on wool without the assent of Parliament.[231]
Notwithstanding the explicit and repeated assertions by the Commons
that Parliament had the sole right to levy the subsidy, Edward at
intervals exacted the maletolt. The matter reappeared in 1371 and was
greeted with a similar statute.[232]

The details of the fifteenths and tenths,[233] of the tunnage and
poundage, of clerical grants, and of the individual subsidies on wool
belong rather to the domain of fiscal history than to a consideration
of the growing power of the English Parliament to levy taxes.[234]
The constitutional points receive illustration most clearly in the
narration of the controversy over wool, since in respect of that and of
tallage new questions were involved. As regards the rest, Parliament
did not more than confirm itself in habits which it had already formed.

[Appropriation of supplies]

Side by side with the power to grant taxes was growing up the faculty
for supervising the expenditure of money so raised. As far back as the
second decade of the reign of Henry III, in 1237, William of Ralegh
had suggested to the Commune Concilium that it appoint a committee
with whom the proceeds of a grant be deposited and by whom the money
be expended; that the suggestion was not taken was owing, perhaps, to
the ignorance of the baronage. Edward I was too strong to permit of
being so controlled, and under Edward II the whole power of the crown
was for a time delegated to others; in neither reign was the principle
of appropriation of supplies definitely put forward. But in the time of
Edward III, owing doubtless to the vast sums thrown into his bottomless
war chest, Parliament began to demand a voice in the disposition of
the public funds. In 1340, as we have seen, it was denominated in the
statute that the “profits of the said realm of England shall be put
and spent upon the maintenance of the safeguard of our said realm of
England, and of our wars.”[235] The grants of 1346 and 1348, in so
far as they accrued from the northern counties, were to be applied to
defend the border against the Scots,[236] and in 1353 a subsidy on wool
was granted to be applied solely for the purposes of the war.[237]

[Examination of accounts]

Whether or not the money was actually applied according to the
direction of Parliament was another matter. Efforts to ensure the
carrying out of the parliamentary will were begun as early as 1340. In
that year a committee of lords and commons was appointed to examine the
accounts of William de la Pole and the other collectors of the last
subsidy.[238] In 1341 the Rolls of Parliament have it that “the great
men and commons of the land pray, for the common profit of the king
and of themselves, that certain persons be deputed by commission to
audit the accounts of all those who have received the wool of our said
lord, or other aid granted to him; and also of those who have received
and paid out his money, as well beyond the seas as in the realm from
the commencement of his war until now; and that the rolls and other
remembrances, obligations, and other things made abroad be delivered
into the chancery, to be enrolled and recorded, just as was wont to
be done heretofore.”[239] To the petition the royal response ran: “It
is the king’s pleasure that this be done by good men deputed for the
purpose, with the addition that the treasurer and the chief baron be
of the number; and that it be done concerning this as it was heretofore
ordained; and that the lords be chosen in this Parliament. And also
that all rolls, remembrances, and obligations made beyond the sea, be
delivered into the chancery.”[240]

There is not much reason to suppose that Edward adhered to this promise
better than he held to others of a similar character, save that there
appears no complaint from Parliament until the last year of his reign.
In 1377, in voicing the demand of Peter de la Mare, the commons in the
Good Parliament petitioned “that it may please our lord the king to
name two earls and two barons, of those who shall seem to him best, who
shall be guardians and treasurers as well of this subsidy now granted
and of the subsidy which the clergy of England is yet to grant to
the king our lord, as of the subsidy of wool, leather, and woolfells
granted in the last Parliament.”[241] The lords so chosen were to be
sworn before the commons, and were to expend the subsidies “for the
said wars and for no other work.” The high treasurer of England was
to have nothing to do with it in anywise whatsoever. Decisive action,
however, waited upon the next reign.

[Death of Edward III, 21st June, 1377]

The long life of Edward III came to an end on the 21st June, 1377. His
was a reign which had seen much war, much poverty, much famine, and
worse than these, the Great Plague. The time was not well designed,
so it would seem, for constitutional advance, yet in the direction of
parliamentary taxation, the progress was marked. To be sure, Parliament
had not dared to come into open combat with the king, and had, in order
to preserve its theoretical power, been many times obliged to sanction
a tax after it had been levied. Thus did Edward play with Parliament
throughout the argument over the wool tax, yet the nation did secure
the enunciation of complete parliamentary control over the levying of
taxes of every description in the sweeping legislation of 1340.

But Parliament had shown a disposition to reach out after powers
which its predecessors in some instances had exercised and in others
foreshadowed. The history of the wool customs shows this if it shows
nothing else, that Parliament was inclined to make supply wait upon
redress of grievances; that the inclination was not a determination
was owing to the fact of Edward’s wars; withholding supply would wreck
English military prestige far more quickly than the arms of France. Yet
the time was not far distant when the grant would be reserved until the
end of the session, and thus secure the redress of grievances before
the granting of a supply. By other means, also, Parliament was reaching
out to control the executive. By appropriating money for particular
purposes, to which expenditure should be limited, and by demanding
an audit of accounts to insure adherence to those limitations, the
representatives of the nation were securing for it the control of the
public purse, not only in the department of income but of outlay.

[Separate sessions of the houses]

Throughout the reigns of Edward II and Edward III a process of
differentiation had been going on within the walls of Parliament
itself, resulting in separate sessions of lords and commons. The
process had its beginnings, indeed, in the time of Edward I, yet no
instance can be pointed to with certainty showing the separate sessions
until 1332. In that year the Rolls of Parliament speak of distinct
assemblies. In 1339 the division appears to have become permanent. The
House of Commons in 1352 occupied the Chapter House of Westminster
Abbey.[242] The separate sessions of lords on the one hand and the
knights of the shires and the burgesses was the preliminary of the
assumption by the two latter bodies, in name the House of Commons, of
the power of initiating tax legislation.

[Richard II, 1377-1399]

Edward III left the throne to the keeping of a boy, his grandson, the
youthful Richard II. He was only eleven years old at the beginning of
his reign, and only thirty-three when his brief attempt at absolutism
brought him deposition, and then death. “The fair rose withered,” as
Shakespeare described his dethronement, but the withering was due to
the attempt of the king, ill-advised and perhaps insane, to climb too
high.

In the matter of taxation, however, the chief interest lies in the
early part of his reign, when the years of Richard’s minority gave the
commons opportunity to enforce the exercise of the principle that taxes
should not be levied without their consent, and to foster the theories
advanced in the previous reign that they had a right to examine the
public accounts and to appropriate supplies.

[Trouble over audit of accounts]

In the time of Richard II the examination of public accounts and the
granting of money for specific purposes, became national issues. At his
first Parliament, that of October, 1377, grants of two fifteenths and
tenths were made for the prosecution of the French war on the express
condition that two treasurers be appointed who should see to the due
application of the proceeds.[243] The king chose William Walworth and
John Philipot, merchants of London, the latter of whom is distinguished
as one of the earliest English financiers, and these swore to perform
their duties faithfully. It was not without difficulty, however, that
the next Parliament, which met in October, 1378, was able to secure
an accounting. The commons demanded the accounts and for a time the
chancellor attempted evasion, hoping, so it appears, to shield John
of Gaunt who was suspected of obtaining money from the treasurers for
his private purposes. He was forced to yield and the accounts were
laid open to criticism, though with the incidental assertion by the
king “that it had never been known that, of a subsidy or other grant
made to the king in Parliament or out of Parliament by the commons, an
account had afterwards been rendered to the commons or to any one else
except to the king and his officers.” More than that, there was to be
understanding “that this shall not in future be considered a precedent
or an inference that this should have been done otherwise than by the
personal volition and command alone of our said lord the king....”[244]

[Special treasurers]

Nevertheless, this same Parliament upon the occasion of its grant to
the king, petitioned that it be expended for the advantage of the
kingdom, and that competent treasurers be appointed to keep the
accounts.[245] The thirteen-year-old king readily fell in with the
idea. To the Parliament of 1379 he sent letters in which he said, “That
you may be fully informed of the real nature of the said necessary
expenditures made and to be made, the treasurers for the said war
shall be present and shall appear, at such hour as pleases you, to
show you clearly in writing their receipts and expenditures made since
the last Parliament.”[246] The House of Commons, later during the same
Parliament petitioned for the discharge of the special treasurers,
and prayed that the Treasurer of England with the Chamberlains of the
Exchequer receive money as “was usual of old.”[247] Here is an early
instance of the individual action of the House of Commons. But in
1380, the tide turned back. The commons who were assuming leadership
in the situation, hearing from the chancellor of the very serious
embarrassment in which the crown found itself, were stung to the
belief that there was extravagance in the royal household, or else
that the ministers were incapable. They therefore prayed the king
to allow the election in Parliament of the chief officers of state.
Richard responded favorably and the commission was appointed, with
the old treasurers of subsidies, William Walworth and John Philipot,
as members.[248] By 1382 the reversion to the system of special
treasurers was complete,[249] and from that time, save at moments of
great national confusion, these officers were regularly appointed and
had as their duties the keeping of accounts, both of income and outlay,
which were to be presented before Parliament at its session immediately
following.

[Taxation by Parliament]

Over the levy of taxes Parliament, so it appears, had unquestioned
control throughout the reign;[250] the king’s household was vastly
extravagant and the royal prerogative of purveyance was exercised to
excess, but even in the articles of deposition no word of complaint,
save in the most general terms, is levelled at the king for laying
taxes unlawfully, and this remonstrance is unsupported by specific
instances. Indeed, the most violent outbreak on the score of taxation
was against Parliament itself.

In 1380, Parliament found itself in this difficult position, that
it was under necessity of supplying an immensely large sum, no less
than £160,000, as speedily as possible. The French war, an expedition
about to be undertaken against Scotland, and the usual expenses of
the kingdom had so depleted the royal treasury that the king was
sorely embarrassed; he was greatly in debt and his jewels were already
pawned. The commons were at a loss to devise the means whereby so
great a sum could be raised, and showed a disposition to shirk the
burden. The lords undertook it and suggested three methods: a graduated
poll-tax, a custom on merchandise, or a number of fifteenths and
tenths. The commons, seeing in the first the virtue of rapid assessment
and collection, chose it in spite of the disappointing proceeds of
the poll-tax of two years previously. A subsidy on wool, the normal
income from which would amount to £60,000, was to serve as an
auxiliary tax. The clergy undertook to raise a third of the remaining
£100,000, leaving some £66,667 to accrue from the poll-tax. The rate
varied according to individuals from sixty groats to three, with an
understanding that the rich should help the poor, but that in no case
should a man pay less than a groat for himself and his wife.[251]

[The Rising of the Villeins]

Here was the exciting cause for the Rising of the Villeins which
Bishop Stubbs describes as “one of the most portentous phenomena to
be found in the whole of our history.”[252] Following closely as did
the poll-tax of 1380 upon those of 1378 and 1379, both of which bore
heavily upon the lesser people, the impost set fire to tinder which had
been long preparing for a conflagration. To enter into an inquiry as
to the underlying causes and the ultimate consequences of this rising,
would be to travel far afield. It is sufficient to observe that the
payment of even so small a sum as a groat, served to bring freshly to
the minds of the most ignorant the maladministration in London, and
to arouse in them the impulse, however ill-advised or ill-directed,
to correct abuses in the executive. The Rising of the Villeins is
illustrative of the not unusual conception that bad government is
chiefly reprehensible because it is expensive.

The taxation during the years 1389-1397 was regular and moderate.
Richard’s rule for the time was that of a constitutional monarch and
his Parliaments exercised the power of initiating taxation without
opposition. Parliament was practicing what it had accomplished in
theory in the long years of struggle since Magna Carta; it was
accustoming itself to the exercise of the powers which in principle it
had acquired. Fulfillment in fact was following upon enunciation of
principle. Consequently it was with the greater shock to the nation
that Richard II suddenly changed from his constitutional habit and took
upon himself the powers of a despot.

[Richard’s despotism and his dethronement]

The temptation came to him as a result of the action of Parliament
itself. In 1398, following upon its grant the previous year, of a
custom on wool for five years and tunnage and poundage for three
years, it granted the subsidy on wool, woolfells, and leather
to Richard for the space of his life. Beside this unprecedented
liberality, it gave him as well a tenth and a half and a fifteenth and
a half for the curious term of a year and a half.[253] Nor was this
all. It cut off its own head by delegating its authority to a standing
committee of Parliament. The opening was barely offered before Richard
took advantage of it. With a revenue for life and a Council subservient
to his will, scarcely ever was there better chance for despotism; but
the acceptance of the opportunity was the close forerunner of disaster.

With the idea in his head that all was safe in England, Richard went
off to Ireland. This gave Henry, the heir to the dukedom of Lancaster,
a dream of an unguarded throne to which he could climb. Estranged by
reason of his disinheritance, he was ready to act as soon as he saw
such a vision. He landed in Yorkshire, moved southward, receiving
allegiance of the people as he went, and won away from Richard the
powerful supporters of the throne. Richard, returning, fought a battle
already lost. He resigned his kingship, and the nation as represented
in Parliament, accepted his resignation.

The charges against the king, upon which sentence of deposition was
pronounced, were summed up in thirty-three articles. Only four of them
in any degree concern taxation. These are: (14) he had not repaid loans
made in dependence upon his solemn promise; (15) he had alienated the
crown estates, and exacted unlawful taxes and purveyances; (19) he had
tampered with the elections by nominating the knights whom the sheriffs
were to return, in order to ensure to himself a revenue for life;
(21) he had extorted money from seventeen whole shires for pretended
pardons.[254]

The charges were doubtless  by enthusiasm for his deposition.
The most serious, that of unlawful taxation, seems difficult to
substantiate unless it be taken in connection with the article which
asserts that the Parliament of 1398 was packed for the very purpose of
securing a revenue for life. The complaint against purveyance seems
equally ill-founded; during the reign of Edward III it had assumed the
proportions of a great abuse of prerogative, but it was not in the time
of his grandson an object of great concern to the nation. Thomas of
Walsingham, whose tone is somewhat querulous, gives substance to the
charges about the nonpayment of loans and the exaction of money for
pretended pardons. “Promising in good faith to repay,” he says, “he
never after gave the money back to his creditors.” Further, “The clergy
and the common people and the temporal lords were constrained to give
the king sums of money beyond the strength of man to bear, in order to
buy back his good will.”[255] The step was very short to the forced
loans of the Tudors.

The trouble with Richard was that he did not go to school to history.
Parliament was putting into practice what it could learn from the
experience of its predecessors. Richard, swept with a desire, intense
and perhaps insane, to wield the sceptre of absolutism, was blinded to
what he might have read, and underwent the consequences.

[Henry IV, 1399-1413]

Henry IV was better advised; at any rate, he was politic enough to live
closely by what he had learned. He was suspicious, cautious, slow and
faltering in action save in the one supreme instance of seizing the
throne; an exceedingly good politician. The power of Parliament and
especially of the commons during his reign was more complete than ever
before,--fuller, indeed, than it should be again until after the final
hand-to-hand struggle with the Stuarts. In the matter of taxation,
instances of illegality are rare; Parliament continued to exercise the
supreme control in voting taxes; and in the more recently acquired
rights of appropriating supplies and examining public accounts, the
supremacy of Parliament was established. Not only does this observation
hold good during the reign of Henry IV, but it is equally applicable to
the two Lancastrians who succeeded him.

In 1400 there appears to have been an exception to this rule. Henry
apparently secured an aid not from Parliament but from the Great
Council. There was the understanding, however, that the grant was
binding not upon the nation at large but upon the members of the
Council.

[Practice of delaying grants]

In 1401 the commons attempted to make dependence of supply upon
redress of grievances a part of the regular parliamentary procedure.
They prayed the king that they know his responses to petitions before
setting themselves to the business of granting a supply. Henry met the
issue squarely. “On the last day of the Parliament,” say the Rolls,
“response was made that this manner of deed had not been seen nor used
in the time of any of his ancestors or predecessors, that they should
have any response to their petitions or knowledge of the same before
they had taken up and completed all the other business of Parliament,
be it to make any grant or otherwise. And therefore the king did not
wish in any way to change the good customs and usages made and used in
former times.”[256] Nevertheless, the commons proceeded to put into
practice the substance of their demand by delaying their grants of
supply until the last day of the session, when the most important of
the petitions would have received answers. Thus the next Parliament,
that which met on the 30th September, 1402, withheld its grant until
the 24th November; the session closed on the 25th and no business was
transacted in the meantime.

[Initiation of tax levies in the House of Commons, 1407]

The chief advance in the reign of the new king lay not in a fuller
control by Parliament in the matter of laying taxation; that would
scarcely have been possible. But it lay rather in a differentiation of
powers within Parliament itself, leading to a more complete supervision
of taxation by the House of Commons. Since the end of Edward III’s
reign the theory had been practiced that the commons should exercise a
decisive power over the levy of taxes, as illustrated in the levy of
the poll-tax of 1380.

The form of making a grant, “made by the commons with the assent of the
lords spiritual and temporal” first occurred in the grants to Richard
II in 1395.[257] Votes of money previous to that year were made in
conjunction with the House of Lords. The phrase was repeated in the
grants of 1401 and 1402.

In 1407 came the assertion that to the commons not only belonged
decisive power, but that they alone had the faculty of originating
taxation. It came not as a direct demand for the yielding of a
principle, but as an implication that the practice already existed, and
as such it gains in strength.

The trend of events leading up to the significant reference is
interesting. In 1407 the lords had held a debate in the king’s presence
respecting the condition of the kingdom, and had determined upon the
number of subsidies needful for national defense. Henry, for the moment
forgetting his politics, in a peremptory tone requested the commons
to send a delegation to the House of Lords “to hear and to report to
their companions that which they should have in command of our lord
the king.” The commons sent a committee of twelve in response to the
request; they heard that “it was the will of our said lord the King
they should report to the rest of their companions” the determination
of the lords, and that, “they should see to it that they conformed
most nearly to the purpose of the Lords aforesaid.” When the delegates
returned, their report was received by the commons as being an
infringement upon their liberties. The king, hearing of the temper
of the commons, reassuming immediately his habit of the politician,
“declares, by the advice and consent of the lords in manner following,”
that it is lawful for both houses to commune apart by themselves “of
the state of the realm and of the remedy necessary for the same.” So
far the king has merely recognized the need for separate deliberations
by the two houses; the phrase which implies the existence in the House
of Commons of the power to initiate taxation is this: “Any grant by the
commons granted, and by the lords assented to.”[258] Thus is admitted
by implication the order in which a grant should be made by the two
houses. In the same communication the king renounces any right which
he might previously have held to know the amount or conditions of a
prospective grant until both houses should be of one mind. The grant
which eased so sweeping an admission from the king was generous.[259]
It consisted of a fifteenth and a half and a tenth and a half, a
subsidy on wool, and tunnage and poundage for two years.[260]

In 1410 Henry asked Parliament for permission to collect a tenth and a
fifteenth annually, whenever Parliament should not be sitting. Had the
request been granted, the result for a frugal monarch would have been
hardly less than independence of parliamentary control. He was refused.
Without the frequent necessity of calling a Parliament, Henry’s last
years, instead of their smooth constitutional trend, might readily have
had as tragic a story as those of Richard II. He died in 1413.

[Henry V, 1413-1422]

His son Henry V came to the throne without dispute, and for a brief
nine years fired the souls of the English people with zest of conquest
and pride of race. A warrior, the mediæval ideal of a king, he was
yet noble of mind and soul. Had his brilliant career not so suddenly
flickered and gone out, he might have won a place beside Edward I; as
it was, the constitutional history of his reign reveals no struggle
between people and monarch over the sordid wherewithal to fight his
battles; both sides apparently honored the other. The taxation during
his reign was heavy, but it was voted gladly to the king who could use
it as a means to victory at Agincourt. Henry V, whom his people loved
enough to make legendary participant in their revellings, died in
France, 31st August, 1422.

[Henry VI, 1422-1461]

Henry VI was almost as unfortunate in his birth as in his death, and
his life seemed to bring him nothing but disaster. He was barely a
year old when his father died, his troubled reign saw the Wars of the
Roses, and tradition has it that he died by the hand of Richard, Duke
of Gloucester, afterward king. Weak in health, the possessor of a mind
which in boyhood showed the feverish precocity that foreshadows an
unbalanced maturity, he was nevertheless generous, temperate, mild, and
devoted.

[Declaration for appropriation of supplies]

The early part of his reign gives one of the few instances chronicled
under the Lancastrian kings of an attack upon constitutional usages
in taxation. In 1425 while the Duke of Bedford and Humfrey, Duke of
Gloucester were acting virtually as regents to their nephew the young
king, Bedford together with various other lords announced in Parliament
that a certain subsidy, which had been appropriated for a particular
purpose, should be levied for the king’s use notwithstanding the
conditions attaching to it; they advanced an opinion of the justices
favoring their action. The commons vindicated their right, however,
in the same Parliament; they made a fresh grant, restating the former
conditions, with this explicit addition, “No part thereof be beset ne
dispendid to no othir use, but oonly in and for the defense of the seid
roialme.”[261]

It would be both wearisome and profitless to enter into a detailed
account of the various subsidies on wool, of income taxes, of
fifteenths and tenths which trod one on the heels of the other during
the reign of Henry VI. One incident of a constitutional character,
however, rises from the general regularity. In 1449, Parliament
attempted to levy a tax upon the stipendiary priests, though usage
had it that the clergy were to have the power of taxing themselves in
convocation; a subsidy of a noble was levied upon each stipendiary
priest, for which they were to receive a general pardon at the
hands of Parliament. Henry, perceiving that trouble was brewing,
addressed the clergy, saying that it was for them to make the grant in
convocation, and that it was for him to pardon. Thus Parliament, for
the moment overreaching itself, was forced back upon the justice of
precedent.[262]

[Accession of the Yorkists]

The wars with France and with Burgundy, the heavy taxation incident to
them, the rebellion of Jack Cade arising out of it, and the Wars of
the Roses in 1453 following closely thereafter; the woeful struggle of
Henry, bleached-out in mind, a dependent upon the efforts of a woman
against the rising power of York; the wanton shedding of the noblest
blood in England--these neither developed nor confirmed parliamentary
power. Edward of York, it is sufficient to understand, became king on
the 4th March, 1461, upon King Henry’s overthrow. A momentary turning
of the tide set him once more upon it, but his tenure was very brief
and ended in tragedy.

The passing of Henry VI brings us to the dawn of the Yorkist and Tudor
era. During the reigns of the son and grandson of Edward I and the
reigns of Richard II and the Lancastrians, Parliament had developed
swiftly, not so much in the assumption of new powers as in the
distribution of powers within itself. The commons became a separate
body. Burgesses learned to act in the House of Commons in concert with
knights of the shires who in the time of Edward I had made common cause
with the greater barons. Together they assumed the right of initiating
taxes, with the understanding that the hereditary chamber should have
solely the power of assent.

The right of Parliament as against that of the king to control taxation
was enunciated again and again, not only in the instance of direct
taxation, including the levies of tallage, but in the case of the
customs, as indicated in the legislation prohibiting the maletolt.

But the enunciation of powers of Parliament was not followed by
complete and undisputed exercise of the rights so enunciated. The kings
clung to what they deemed their ancient prerogatives and more than
once overstepped the law. The Yorkists and Tudors showed a disposition
somewhat less amenable.




VI

EXTRA-PARLIAMENTARY EXACTION 1461-1603


WITH the coming of the Yorkist kings in 1461 there began a period
lasting until the end of Queen Elizabeth’s reign, in which the taxing
powers of Parliament were subtly assailed by monarchs who knew how to
use the law to their own advantage, regardless of its intent. Yet the
powers, attenuated though they were, remained to form the substance of
vigorous opposition to the attacks of the Stuarts, when they should try
to practice their theories of absolutism.

[Edward IV, 1461-1483]

[Benevolences and forced loans]

Under Edward IV, whose reign dates from 1461, the forms of taxation by
authority of Parliament were indeed gone through with. In that respect
his reign was typical of the period. His early taxation, levied while
the struggle with the Lancastrians was still in progress, was not
particularly heavy; but being laid by Parliaments sympathetic with
the Yorkist cause, Edward had little difficulty in exerting supreme
influence over it. Four years after his accession, he was given the
subsidy on wool and tunnage and poundage for life.[263] Beside these,
Parliament granted him frequent fifteenths and tenths. Not content,
however, with the grants made by Parliament, he had recourse to a
new form of extortion known by the euphemistic title of benevolence.
The benevolence was a gift made to the king by individuals or groups
of them, ostensibly in charity, but in reality under enforcement. It
differed from the forced loan, the exaction of which is mentioned in
the list of charges leading to the deposition of Richard II, in that
by it the king incurred no obligation for repayment. Henry VIII in
later years proved himself a genius at obtaining both of these means
of income. Edward found also that the revival of obsolete statutes and
the laying of fines for breaches of them could be turned to profit; the
collection of ancient debts due to the crown, and the utilization of
the royal power to advance his own mercantile interests, Edward pushed
to the extreme in order to supplement the not infrequent regular grants
of Parliament.

Dowell retells the story given in Hall’s _Chronicle_ of Edward and a
certain rich widow to whom he applied in person for a benevolence. In
his younger days Edward was one of the handsomest men in the land, and
the widow received his advances with favor. He asked her for a gift and
she promptly gave him £20.

“By my troth,” says she, “for thy lovely countenance thou shalt have
even twenty pounds.”

Edward, who had “looked for scarce half that sum, thanked her and
lovinglie kissed her.” Thereupon the lady doubled the benevolence,
paying him a second £20, either, as the Chronicler remarks, “because
she esteemed the kiss of a king so precious a jewele” or “because
the flavour of his breath did so comfort her stomach.” Such was a
fifteenth-century conception of royal courtesy.[264]

[Richard III, 1483-1485]

Upon Edward’s death in 1483, the crown for a moment rested on the head
of his young son, Edward V, only to be snatched away in favor of the
lad’s uncle Richard III. Richard received from Parliament in 1484 a
grant of tunnage and poundage and the subsidy on wool for life.[265]
His death on Bosworth Field the next year gave the world no opportunity
to see what use he would make of the freedom which Parliament thus gave
him.

[Prohibition of benevolences, 1484]

During the brief three years of Richard’s ascendancy, however, there
occurred an assertion of right and its complementary statute which
assume great importance in the light of later events. When Richard was
invited to become king, he was presented with a remarkable address,
which, among other things, cited the benevolences of the late reign
as “extorcions, ... agenst the Lawes of God and Man,” and as more
intolerable than “jopardye of deth.”[266] At his only Parliament, held
in 1484, benevolences were declared unlawful, and were to be “dampned
and annulled forever.”[267]

[The Tudors]

Henry VII, the first of the Tudors, ascended the throne upon the
successful issue of the battle of Bosworth. The wonder of the era
which he introduced lies not in any increase in the powers of
Parliament, but rather that they existed at all when the period
closed. The one hundred and twenty years of the Tudor epoch exhibits
no progress toward the realization of parliamentary supremacy; on the
other hand, the trend was in the opposite direction. The Tudors were
not tyrannical enough to rouse opposition to the fever heat as did
John; they knew rather how to bridle their despotism in time to check
revolt, and especially how to make unlawful acts assume the aspect of
legality. Furthermore, the immense activity of commerce, the progress
of literature, the religious reconstitution during the sixteenth
century, were in themselves reasons for slow advance in matters of
government; the stress of trade consequent upon the discovery of a
new world, the absorbing interest in new subjects for thought, the
intensity and magnitude of new religious conceptions, engaged the minds
of men on subjects other than those of Parliament and king. As long
as these worked in apparent harmony and the results did not greatly
offend, men were content to let well enough alone. So it was that the
Tudors, surrounding themselves with a new nobility attached to the
throne by reasons of their very origin and continuance, were able to
follow their own devices and raise money almost as seemed to them good.

[Parliaments of Henry VII The “new-found” subsidy]

In all the twenty-four years of Henry VII’s reign he called Parliament
only seven times, and six of the seven Parliaments sat within the first
eleven years of his kingship. Each was the occasion of a demand for
money. At his first Parliament, that of 1485, he received a grant of
tunnage and poundage and a subsidy on wool for life.[268] Three years
later, however, the consequences of heavy taxation were disastrous.
Need arising for the enlistment of an army with which to aid the Duke
of Brittany against the King of France, a tax was devised which not
only exacted a tenth of incomes from freeholders, but applied as well
to movables, laying imposition upon articles used in trade and even
merchants’ stocks. This “new-found subsidy” proved so intolerable to
the lower classes that a great insurrection broke out in the north
against it.[269] The king with Tudor wisdom, remitted some £48,000
of the £75,000 which the tax was designed to raise, and Parliament
gave him in return a fifteenth and tenth. In 1497, a similar rebellion
occurred in Cornwall against a tax levied for the Scotch War.

With these examples of parliamentary taxation before him, Henry turned
away to fields at once more profitable and less dangerous, at least in
their immediate consequences.

[Morton’s crotch]

He turned to the old expedient of the benevolence, despite the statute
of Richard III prohibiting its imposition. The methods used in laying
a benevolence are illustrated in the famous account by Lord Francis
Bacon of the dilemma devised by Bishop Morton, Henry’s Chancellor, “to
raise up the benevolence to a higher rate; and some called it his fork
and some his crotch. For he had couched an article in the instructions
to the commissioners who were to levy the benevolence, that if they
met with any that were sparing, they should tell them that they must
needs have, because they laid up; and if they were spenders, they must
needs have, because it was seen in their port and manner of living;
so neither kind came amiss.”[270] Parliament, subservient to the
king, actually registered for the moment its approval of the practice
of levying benevolences, when in 1492 it passed the “Shoring or
Under-propping Act” making debts still owing on gifts promised to the
king legally collectable.

The benevolence was not the only means by which the ingenious monarch
increased his income. Like Edward IV, he revived obsolete statutes and
rigorously exacted fines in consequence of every infraction of them;
but worse than that was his perversion of every function of the courts
of law into a means of extortion. His odious instruments in that work
were Richard Empson and Edmund Dudly who later were made to suffer for
the evil practices of the father in the reign of the son. Beside these
forms of imposition, the king pushed to the extreme the exaction of
feudal dues accruing to the crown.

[Henry VIII’s early taxation]

Henry VIII succeeded to the crown in 1509. With his hand always on
the pulse of the nation, he knew when he could carry his designs into
execution and when he must wait for a fever to subside. His attitude
toward taxation was not characterized by the same uniform regard for
constitutional formalities that distinguished his other acts, nor was
Parliament on the other hand quite as subservient to his will as in
matters farther from their purses. His first Parliament showed its
trust in him by granting tunnage and poundage for life, but with the
distinct provision that it be not taken into precedent. Beside this,
the Parliaments of 1513 and 1514 made generous grants of a poll-tax,
of a fifteenth and tenth and of two subsidies of six pence in the
pound.[271] Despite the magnitude of the grant, no opposition seems to
have been provoked, an unfailing sign of increasing wealth.

[Cardinal Wolsey’s breach of privilege, 1523]

At the Parliament of 1523, the first since 1515, Cardinal Wolsey
committed a distinct breach of Parliamentary privilege. Under Henry IV
it had been admitted by the king that both houses of Parliament were
to commune apart, and that the king should have no knowledge of the
progress of a grant until the two houses be of one accord.[272] Wolsey,
as representative of the royal power, reversed the usual process. Going
into the House of Commons with all his following, “with his maces,
his pillars, his pole-axes, his cross, his hatte, and the great seale
too,”--in the words of the speaker, Sir Thomas More,--he asked for
no less than £800,000 and required that it be paid in four years; he
suggested that it “be raised out of the fifth part of every man’s goods
and lands.”

To the demand of the cardinal the commons maintained perfect silence.
The speaker “with many probable arguments endeavoured to shew the
cardinal that his manner of coming thither was neither expedient
nor agreeable to the ancient liberties of that House.”[273] Wolsey
thereupon departed in a rage. The next day the matter was argued by
the commons and the contention was made that “though some men were
well-monied, yet in general it was known that the fifth of men’s goods
was not in plate or money, but in stock and cattle. And that to pay
away all their coin would alter the whole frame and intercourse of
things.”[274] For fifteen days the commons debated the question and
at the end of that time granted to the king a graduated property tax,
much smaller in amount and covering four years in the payment. Wolsey’s
displeasure was very great and he made a second journey to the commons
in the hope that he might induce them to be more generous. He told them
that he “desired to reason with those who opposed his demands.” He
was answered that “it was the order of that House to hear, and not to
reason but amongst themselves.”[275] Thus rebuffed, the cardinal went
away.

[Henry’s commissions and benevolences]

Henry did without Parliament for the next seven years, but he was
not deprived thereby of money with which to carry on the business of
government. In 1526, commissions were issued for the collection of a
sixth from the goods of the laity and a fourth from the clergy.[276]
The people immediately evinced their knowledge of the law and
complained that the proceedings were illegal; the clergy led the
movement asserting that “the King could take no man’s goods without
the authority of Parliament.”[277] The people began to murmur and
insurrection seemed imminent. “If men should geue their goodes by a
Commission,” they said, “then wer it worse than the taxes of Fraunce,
and so England should be bond and not free.”[278] In Suffolk rebellion
actually broke out; in London and in Kent the people were in a ferment.
Henry, being what he was and knowing the nature of his subjects,
eased the tension by shoving the responsibility of the measure on to
the shoulders of Wolsey,[279] and declared that he would receive no
money save as an “amiable graunte,” which was collected in 1528, and
was nothing more agreeable than a benevolence. To this the citizens
of London raised objection on the ground of the statute of Richard
III. The judges thereupon handed down an opinion that that statute,
being the work of an usurper, was void. Thus did the courts evince
their subservience to the crown, and showed themselves as open to
royal influence as the tribunals of the Stuarts a hundred years
later.[280] So in theory Henry’s attempt at arbitrary taxation was
frustrated; in practice, however, the imposition, though its burden
was transferred from the turbulent lower classes to the more amenable
people of substance, merely underwent a change of name. The exaction
was unparliamentary whether it was levied as a king’s tax or under the
thin guise of a benevolence.

[Forced loans, 1522 and 1544]

But Henry had other strings to his bow, and of these the forced
loan was one which served him well. In 1522 commissioners were
appointed throughout the kingdom to ascertain the value of every
man’s possessions and to require a certain part for the king, on
the understanding that they be repaid out of the grants from the
next Parliament. The promise of repayment was under the king’s privy
seal.[281] In 1544, forced loans were again exacted, this time from
all persons rated at £50 and more per annum. Parliament, subservient
to the king, far from protesting because of these arbitrary demands
upon the pockets of the people, in two instances released the king
from liability to payment. In 1529, Parliament “for themselves and all
the whole body of the realm which they represent, freely, liberally,
and absolutely, give and grant unto the King’s highness ... all and
every sum and sums of money which to them and every of them, is,
ought, or might be due by reason of any money ... advanced or paid
by way of trust or loan.”[282] This caused much murmuring, but, as
Hall’s Chronicle rightly puts it, “Ther was no remedy.” In 1544 a
similar act of a servile Parliament not only gives the king the funds
borrowed under the forced loan of 1542, but commands the refunding of
sums already paid by him to his creditors in discharge of debts so
incurred.[283]

[Profits of the English Reformation]

The Reformation in England redounded to the financial benefit of the
Crown. In 1532 the clergy were relieved by act of Parliament from
the payment of annates or first fruits, the sums which the ordaining
authorities exacted from those accorded any preferment in the church,
and which amounted sometimes to as much as a year’s income from
the benefice. The exactions were denounced as having risen by “an
uncharitable custom, grounded upon no just or good title,” and through
them “great and inestimable sums of money have been daily conveyed out
of this realm, to the impoverishment of the same, and to the advantage
of the court of Rome.”[284] The same Parliament, meeting for its fifth
session on the 15th January, 1533-4, reënacted the statute without
the contingencies which had conditioned the other.[285] Closely
following came a statute that deprived the Pope of his petty exactions
which for generations he had drawn from the English Church. Thus were
discontinued peter-pence, procurations, fruits, fees for dispensations,
licenses, faculties and grants.[286] The sixth session of this
Parliament, meeting at the end of the year 1534, turned the procedure
into comedy by attaching to “the King’s imperial crown forever” the
first-fruits and tenths of the annual income of all ecclesiastical
benefices, the very payments which it had declared to be in conformity
with an “uncharitable custom.”[287]

[Parliament the confirming authority in clerical grants]

Furthermore, at the session of 1533-4, Parliament had laid very
definite restrictions upon the clergy in the matter of regular
taxation.[288] Since the early part of the fourteenth century, indeed,
almost since the beginning of Parliament itself, the lesser clergy
had attended the sessions with great irregularity, and had voted
their taxes for the most part in provincial assemblies. Now, however,
came the general prohibition that the clergy should not enact or
execute ordinances binding upon themselves without the king’s license
and without his approval when once they were made. Included within
the meaning of this prohibition was the granting of taxes. From
thenceforward until the time of Charles II, when, without any special
enactment but by simple process of evolution, the clergy began to be
taxed in the same manner and according to the same rate as the laity,
clerical grants were submitted to Parliament for confirmation.

Henry VIII died in 1547. Notwithstanding the heavy taxation,
parliamentary and unparliamentary, which had been exacted during his
reign, he remained popular with the great majority of his subjects
to his death. His many vices were counterbalanced by his successful
wars, the heavy taxation by the growing trade of England, and his
semi-independence of Parliament by most efficient administration.

[Elizabeth’s accession, 1558]

After the lapse of eleven years, which in so far as they concern the
evolution of the taxing power of Parliament, composed in effect an
interregnum, Elizabeth succeeded to the throne of England. Elizabeth’s
government was a despotism and was illegal; but it was so by
sufferance, not because the nation was ignorant of its true character
or because the people were unable to control it. When in later years
the attempt was made to create a despotism against the voice of the
people, the result was a Cromwell and his Charles I. Queen Elizabeth
was loved by her subjects and they put their trust in her. The sympathy
existing between queen and people could not be illustrated better
than by the following anecdote, which suggests that under her rule
benevolences were really made with the good will of the givers.

The queen, being at Coventry, is presented by the mayor with a purse
heavily filled with gold.

“I have few such gifts, Mr. Mayor,” says the queen; “it is a hundred
pounds in gold!”

“Please, your grace,” the mayor answers, “it is a great deal more we
give you.”

“What is it?” asks the queen.

“It is,” the mayor replies, “the hearts of your loving subjects.”

And the queen makes answer, “We thank you, Mr. Mayor; it is a great
deal more indeed.”[289]

[Liberality of Elizabeth’s Parliaments. Her
extra-Parliamentary exactions]

Subsidies were granted in Parliament with liberality and readiness.
Forced loans were indeed exacted from the wealthy, but Elizabeth took
care to repay honorably and as promptly as she could. A means of
revenue which relieved her from the frequent necessity of applying to
Parliament was the granting of monopolies, based upon the right of the
crown to assure to an inventor or orginator the exclusive benefits of
his invention or innovation. By 1601, however, the royal power had
encroached so far upon the rights of the individual that the grants
of monopoly comprised exclusive control over many of the necessaries
of life. The list which was read in the House of Commons in 1601,
included:--currants, iron, powder, cards, transportation of leather,
vinegar, sea-coal, lead, oil, starch, glass, and even salt. The matter
had been first discussed in the Parliament of 1571, was brought up
again in 1597, and in 1601 Elizabeth with the tact which she could
summon on occasion, sent a message to the House to allay if possible
the agitation which was going on there over the subject of monopolies.
It gave satisfaction. “Understanding that divers patents” so ran the
message, “which she had granted had been grievous to her subjects,
some should be presently repealed, some superseded, and none put in
execution but such as should first have a trial according to the law
for the good of the people.”[290] Thus was this means of indirect
taxation by the crown done away with, until the time when James I,
putting his clumsy shoulder to the wheel, should seek to introduce it
again.

[Commons assert their right to originate money bills, 1593]

Toward the close of the reign of Elizabeth there was another evidence
of the growing realization on the part of the commons that their powers
were not to be tampered with. In this instance, the vindication was not
against the prerogative of the sovereign, but against an arrogation of
power on the part of the House of Lords. The incident was based upon
the decreasing liberality of the commons in the years after the Armada.
They had risen nobly to the defense of the nation against the peril,
but, with the passing of it, their generosity had faded. In 1593, it
was represented that, though the queen had spent upon the war some
£1,030,000 of her own, the grants of the commons persisted in being
inadequate. A message was sent down from the lords which remarked upon
the need for a supply and requested the appointment of a committee of
conference. Sir Robert Cecil, reporting from the committee, stated
that the lords would assent to no smaller grant than three entire
subsidies.[291] The commons, on the other hand, had shown a disposition
to grant no more than two. Francis Bacon stated the issue. He yielded
to the subsidy, “but disliked,” he said, “that this house should join
with the upper house in granting it. For the custom and privilege of
this house hath always been, first to make offer of the subsidies from
hence, then to the upper house; except it were that they present a bill
unto this house, with desire of our assent thereto, and then to send
it up again.”[292] The commons refused to have further conference
with the lords, so determined were they to vindicate their right to
originate money bills, by the vote 217 to 128. Notwithstanding this
scrupulous adherence to principle, they accepted the suggestion and
came forward with a grant of three subsidies, six tenths and six
fifteenths.

The death of Queen Elizabeth in 1603, brought to an end the Tudor
period and cleared the throne for James Stuart. The Tudor era was one
which can be passed lightly over in a strict account of progress toward
parliamentary supremacy in taxation. In such a study the period of the
Tudors is a bywater. Yet the fact that the principles enunciated in
the years prior to their accession stayed alive despite the attacks of
Tudor subtlety, points to a vitality sufficient to down the Stuarts,
and to establish permanent parliamentary control over the laying of
taxes.




VII

THE STUARTS: 1603-1689


[Divine right as against Parliamentary supremacy]

THE theory of divine right, by which the Stuarts laid claim to a
sovereignty as irresponsible as it was far-reaching, in practice came
into direct conflict with another theory which had been taking shape
for some four centuries, the supremacy of Parliament. In the field
of taxation the issue is scarcely less apparent. Parliament asserted
the supremacy of its will over all kinds of taxes, indirect as well
as direct. The crown, on the other hand, hesitating to close with the
representatives of the people over a question of their authority in
direct taxation, maintained that unchecked royal power extended to
indirect taxes, including duties at the ports. Furthermore, the crown,
whenever occasion arose, sought to elude the hold of Parliament upon
direct taxation, by resorting to the familiar resources of benevolences
and the sale of monopolies, and at last to the levy of ship money.

With the issue so direct, the great question was that of strength.
Should the crown with its array of adherents, upholding as their ideal
the perfect exercise of the royal prerogative, prove itself stronger
than the House of Commons? Or were the commons to prevail, standing
for the principle that the representatives of the people sitting in
Parliament should have complete control over the public purse?

[James I, 1603-1625]

James Stuart, swollen with intellectual pride, was, according to the
Duc de Sully, “the wisest fool in Europe.” Worse than his vanity were
his unsteadiness and his insincerity, traceable, perhaps, to the
Italian-Gallic stock whence he was bred.[293] Divine right, a doctrine
by its nature offensive to Englishmen, was in him doubly hateful
because he was not born king, but was proclaimed by the Council, an act
ratified, however, by popular voice, and subsequently acquiesced in by
Parliament.[294] In the matter of religion, he was not more agreeable;
suspected at times of plots to further Roman Catholicism, he assumed
toward the Puritans especial animosity, they standing in his mind not
so much as preachers of religion as propagandists of republicanism.

[James I dictates the composition of the Commons, 1604]

He wasted no time in getting things started. In the proclamation
by which he summoned his first Parliament, he assumed the power of
dictating what manner of men should compose it, and directed that his
Court of Chancery should decide whether or not the certificates of
election fulfilled the royal conditions, “and if any shall be found to
be made contrarie to this proclamation, the same is to be rejected as
unlawful and insufficient.”[295] The commons, however, shortly after
their convening, vindicated their privilege in the case of Goodwin
and Fortescue, and succeeded in maintaining thereafter their right
to decide upon the legality of returns.[296] In their “Apology of
the House of Commons, made to the king, touching their Privileges,”
nearly at the close of this session, the commons complained against the
monopolies possessed by the great trading companies in the face of many
statutes to the contrary, and the oppressive exercise of the ancient
prerogative of purveyance.[297]

[James receives tunnage and poundage for life]

In the department of regular taxation, however, James at first adopted
a conciliatory attitude. On the 26th June, 1604, James sent to the
commons a letter “written with his own hand but corrected as to the
spelling,” in which he expressed his pleasure as to a subsidy.[298] He
stated his confidence in their good-will, assuring them “in the word
of a King” that he would “be so far from taking it unkindly, their not
offering” to him a subsidy, and that he would “only interpret it to
proceed from the care they have, that our people should not have any
occasion of distaste.” James’s letter accomplished for him what may
well have been his purpose; the commons immediately granted to him
tunnage and poundage for the space of his life.[299]

[Royal poverty]

At the two subsequent sessions of 1605-6 and 1606-7 there was constant
friction between king and commons, yet there were no very remarkable
assertions of royal prerogative or of parliamentary privilege. At the
session of 1605, Parliament granted the king three entire subsidies and
six fifteenths, designed principally to meet the royal indebtedness,
some of which held over since the time of Elizabeth.[300] After the
prorogation, James called no session of Parliament until the 9th
February, 1609-10.

But James could not meet his obligations with the ordinary revenues of
the crown. He was spending between £500,000 and £600,000 a year, and
his income was in the neighborhood of £400,000; his annual deficit,
therefore, was not far from £150,000.[301] James was obliged to turn
elsewhere, and the consequence of his action was the famous Bate
Case, the decision in which was a step toward freeing the king from
parliamentary control over his revenues.

[The Bate Case]

In 1603, in answer to the agitation against the great monopolies, an
Eastern trading company, known as the Levant Company, surrendered its
charter. This company, amongst other privileges, had enjoyed the right
of collecting a duty on currants from other merchants trading in them,
and paid to the crown in return for the franchise £4,000 a year. When,
therefore, the company yielded up its charter, the crown was the loser
by £4,000 annually. In order to make up for the loss, the crown itself
proceeded to lay a duty on currants.[302] In 1605, the Levant Company
again received a charter, but James levied upon it, nevertheless, his
duty on currants, the rate being five shillings on the hundred-weight
over and above that granted to him by Parliament in its tunnage and
poundage bill. It was a merchant of the Levant Company, John Bate, who
raised the question of the legality of the imposition. The case was
taken to the Court of Exchequer for decision. Had the barons confined
themselves to the strict laws of the matter, there would not have been
great ground for objection to their decision. Precedent drawn from the
time of the Tudors and statutes of the same period, were capable of
being brought forward in a fair adjudication of the case, and would
have substantiated the contention of the crown, thus returning customs
exactions, nearly to the situation of 1300.[303] The fact that the
four barons decided the case unanimously against John Bate could not,
therefore, be reasonably reprehended. But they permitted themselves to
slip off into philosophical generalizations which struck the people as
absolutist in tenor.

[Opinions of the Barons in the Bate Case]

“It seemeth to me strange,” says Baron Clarke in his opinion, “that
any subjects would contend with the King in this high point of
prerogative.... As it is not a kingdom without subjects and government,
so he is not a king without revenues.... The revenue of the Crown is
the very essential part of the Crown, and he who rendeth that from the
king pulleth also his crown from his head, for it cannot be separated
from the crown.” He proceeded to advance the opinion that the Statute
of Edward III[304] which prohibited to the crown the right of levying
new impositions on wool, woolfells, and leather, and which provided
that there be only imposed “the custom and subsidy granted to the
king,” had no effect in the present instance, because it extended to
Edward III alone, “and shall not bind his successors, for it is a
principal part of the Crown of England which the King cannot diminish.”

The opinion of Chief Baron Fleming was scarcely less sweeping. “The
King’s power is double,” he said, “ordinary and absolute.... That
of the ordinary is for the profit of particular subjects, for the
execution of civil justice ... in the ordinary courts, and nominated
... with us the common law; and these laws cannot be changed without
Parliament.... The absolute power of the king is not that which is
converted or executed to private use, ... but is only that which is
applied to the general benefit of the people.... This power is not
guided by the rules which direct only at the common law, and is most
properly named policy and government.... The matter in question is
material matter of state, and ought to be ruled by the rules of
policy, and if it be so, the king hath done well to execute his
extraordinary power. All customs, be they old or new, are no other but
the effects and issues of trades and commerce with foreign nations; but
all commerce and affairs with foreigners ... are made by the absolute
power of the king; and he who hath power of causes hath power also of
effects.”[305]

[The position of Parliament]

Parliament took its stand on the subject of the impositions even before
the decision was published. In the Petition of Grievances sent up by
the commons at the end of the session of 1606, a list which contained
so many complaints that James remarked that “they had sent an oyes
through the nation to find them,” the plea was made that no such duty
could be demanded legally without the consent of Parliament. The
decision was announced to them when they reassembled in November 1606,
but they took no action and for a time the matter rested.

[The Book of Rates published under decision in the Bate Case,
1608]

But it was James himself who, in his characteristic tactless obstinacy,
forced the issue. On the 29th July, 1608, taking advantage of the
Bate decision, he published under the authority of the Great Seal
his Book of Rates, which laid heavy duties upon almost all articles
of merchandise, “to be forever hereafter paid to the king and his
successors on pain of his displeasure.”[306] The statement of James’s
own views on the subject could not be more clearly put than he himself
expressed them in the commission for the levy of the impositions
addressed to the Earl of Salisbury, Treasurer of England. “This special
power and prerogative,” he asserted, “(amongst many others) hath both
by men of understanding in all ages and by the laws of all nations
been yielded and acknowledged to be proper and inherent in the persons
of princes, that they may according to their several occasions raise
to themselves such fit and competent means by levying of customs and
impositions upon merchandise transported out of their kingdom or
brought into their dominions ... as to their wisdoms and discretions
may seem convenient.”[307]

[Remonstrance from the Commons, 1609-10]

Even with the money thus obtained, James was obliged at last after a
lapse of nearly two years and a half to turn to Parliament. He summoned
it for the 9th February 1609-10. The commons, almost unanimously
opposed to the exercise of the royal prerogative in the matter of
the imposition, came prepared to dispute the decision in the Bate
Case. The discussion, carried on in the face of a royal prohibition,
was managed by Hakewill, Yelverton, and Whitelocke.[308] The upshot
was a remonstrance in which the commons reminded the king that “the
policy and constitution of this your kingdom appropriates unto the
kings of this realm, with the assent of the Parliament, as well the
sovereign power of making laws as that of taxing or imposing upon
the subjects’ goods or merchandises wherein they have justly such a
property as may not without their consent, be altered or changed.”
Further, they pointed to the former occasions when the commons had
complained in Parliament of similar impositions, and upon which redress
was forthcoming. Reference was made to the action of “famous kings,”
who “agreed that this old fundamental right should be further declared
and established by act of Parliament, wherein it is provided that no
such charges should ever be laid upon the people without their common
consent, as may appear by sundry records of former times.” They went on
to say, “We, therefore, your Majesty’s most humble Commons assembled
in Parliament, following the examples of this worthy case of our
ancestors, and out of a duty to those for whom we serve, finding that
your Majesty, without advice or consent of Parliament, hath lately, in
time of peace, set both greater impositions, and far more in number
than any of your noble ancestors did in time of war, have with all
humility presumed to present this most just and necessary petition unto
your Majesty: That all impositions set without the assent of Parliament
may be quite abolished and taken away; and that your Majesty, in
imitation likewise of your noble progenitors, will be pleased that
a law may be made during this session of Parliament to declare that
all impositions set or to be set, upon your people, their goods and
merchandises, save only by common assent in the Parliament, are and
shall be void.”[309] The outcome was unsatisfactory. A bill framed
to prohibit further impositions than those already in existence, was
passed by the House of Commons, but was cast out in the upper chamber.
The king was still able to cover himself with the decision in the Bate
Case.

[Cowel’s “Interpreter”]

The attitude of James toward a book “lately published by one Doctor
Cowel” and esteemed to “contain certain matters of scandal and offence
toward the high court of Parliament,”[310] all but brought him into
active conflict with the commons. This publication called “The
Interpreter” contained a defense of the royal prerogative in such terms
as greatly to offend the power of Parliament. Doctor Cowel had this to
say under the head of “Subsidy:”

“... A tax or tribute assessed by Parliament, and granted by the
Commons to be levied of every subject according to the value of his
lands or goods, after the rate of 4_s._ in the pound for land and
2_s._ 8_d._ for goods, as it is not commonly used at this day. Some
hold opinion that this subsidy is granted by the subject to the Prince,
in recompense or consideration, that whereas the Prince of his absolute
power might make laws of himself, he doth of favor admit the consent of
his subjects therein, that all things in their own confession may be
done with the greater indifferency.”[311]

King James had been thoughtless enough to let fall words of
commendation for the book, and his approval was followed by a request
from the commons for a conference with the lords. James, however,
wisely withdrew from his position and issued a proclamation prohibiting
the further circulation of the work and recalling the copies already
issued. Thus did the storm blow over.

[The “Great Contract,” 1610]

At this same session of Parliament, James, through the Lord Treasurer,
offered to accept a composition for the incidents of feudal tenure,
including the right of purveyance. By this so-called Great Contract,
Parliament was to provide for an annual payment to the king of
£200,000. But the idea, which at first was distasteful to the commons,
shortly became equally out of favor with the king. The amount of money
required seemed excessive, and the commons feared that it might make
the king independent of them. The king, on the other hand, arrived
ultimately at the conclusion that by careful manipulation he could
readily increase his income to a sum larger than that stated in the
Great Contract. Final consideration was put over to the session of
Parliament called for the 16th October following. At the last moment,
however, when an agreement seemed by no means hopeless, a religious
misunderstanding intervened, and the negotiations fell through.

The matter of a subsidy was treated with somewhat greater favor,
though with small generosity. Parliament granted the king one entire
subsidy and one fifteenth and tenth.[312] Parliament was dissolved
9th February, 1611, and for three years James tried to carry on his
government without it.

[Petty extortion after the dissolution of Parliament]

James’s attempt at absolutism was not a financial success; a court
which was as extravagant as it was dissolute helped him increase his
deficit; he ran behind about £200,000 a year, notwithstanding the
fact that he set in motion all the machinery of petty extortion that
he dared. He tried to force loans on the security of his privy seal
but frequently met with refusal from which there was no appeal. The
jurisdiction of the Star Chamber was used as a means to lay fines which
were usually unjust and always excessive. He sold peerages and raised
money on the crown lands, and induced the French king and the Dutch to
pay up old debts owing to England.

[James’s second Parliament, 1614, known as the “Addled
Parliament”]

His enormous annual deficit forced him in 1614 to summon his second
Parliament. It came with a great and active majority lined up against
the king. It speedily passed by a unanimous vote a resolution against
the king’s right of imposing taxes without the consent of Parliament,
and demanded a conference on that subject with the House of Lords;[313]
the lords, however, turned to the judges hoping to obtain from them
enlightenment on the legal points involved, but the judges, by the
words of Chief Justice Coke, refused to render an extra-judicial
opinion. The conference was then refused. The king, becoming impatient
at the delay of the commons in accomplishing the purpose for which
he had summoned them to Parliament, with his usual failure to adapt
himself to circumstances, sent a message to the House threatening a
dissolution of Parliament unless procedure were immediately taken in
the direction of granting supplies.[314] The commons met the issue
squarely; they said that they were determined to conclude the matter
of the impositions before granting a supply. On the 7th of June, two
months and two days after the date upon which it had been convened,
James redeemed his word and dissolved Parliament. It had not passed
a single bill and thus earned the title by which it is known to
history,--the “Addled” Parliament. But it had succeeded in maintaining
its principle of making supply wait upon redress of grievances, and
some of its members had shot barbed shafts at the king, wherefore James
locked up those who had aimed most surely.

[Resort to extortion]

With the hope gone of securing a grant, James had to return to his old
courses of obtaining income. Forced loans, monopolies, heavy fines,
feudal payments rigorously exacted, and the systematic extortion of
benevolences, figured in his programme. The Council sent out orders
to all the sheriffs and magistrates to send in contributions from all
men of ability to pay; to those who refused, suggestions were made of
impending evil. The judges of assize were especially urged to recommend
payments. The benevolences netted less than £43,000 for the three years
during which they were made.[315]

[Case of Oliver St. John]

But the nation did not submit tamely. Several counties sent up
protests against the demand, recalling in defense of their position
the Statute of Richard III which forbade the levying of “exactions,
called benevolences.” The refusal of Oliver St. John to the request for
a benevolence by the mayor of Marlborough, brought him into immediate
conflict with the king. His written reply to the mayor maintained the
illegality of the demand on the ground that it was contrary to Magna
Carta and to the Statute of Richard III. He further charged the king
with breaking his coronation oath, and declared that all who paid the
benevolence were incriminated with him. He was haled before the Star
Chamber and sentenced by it to pay a fine of £5,000 and to imprisonment
during the king’s pleasure. Thus it was that James tried to rule
without a Parliament.

[James’s third Parliament, 1620-21]

But the rule could not long continue. James summoned his third
Parliament for the 30th January, 1620-21. He addressed both Houses
in a conciliatory manner, hopefully and with many promises. “For you
to hunt after grievances,” he said, “to the prejudice of your king
and yourselves, is not the errand: deal with me as I deserve at your
hands; I will leave nothing undone that becomes a just king, if you
deal with me accordingly.”[316] The commons were in a good temper and a
reconciliation seemed far more likely to eventuate than a struggle.

[Supply waits upon redress of grievances]

As for the royal advice about grievances, the commons were slow to
take it. When, shortly after the beginning of the session, it was
moved that the House proceed to the consideration of a supply, it
was stated that supply and redress of grievances should go “hand in
hand together,” that they were “as twins; to go together and have no
precedency.”[317] It was resolved that the business of the supply
be not decided independently of a consideration of grievances and
of a petition to the king for freedom of speech, thus recalling the
imprisonment of members in 1614 at the time of the dissolution of the
Addled Parliament.

[Revival of impeachment by the Commons]

High in the list of grievances was the granting of monopolies. Patents
of monopoly subserved a number of diverse purposes, some of which were
entirely legitimate. Objection could not be made to restrictions in
the sale of certain commodities such as liquors and explosives, nor to
the assurance given to an inventor that he had an exclusive right to
profits accruing from his invention. But James was free with his grants
of monopoly for the enrichment of his courtiers and himself. Parliament
laid by the heels the monopolists who had most abused their privileges,
and impeached and condemned Sir Giles Mompesson and Sir Francis
Mitchell.[318]

[Granting of a supply]

Before the judgment was given, however, but not before it was clearly
discernible what was to be the trend of events, the commons set
themselves to the consideration of a supply bill and on the 18th March
passed it unanimously. It provided for two entire subsidies. “In the
midst of their inquiries into public grievances, the commons had
thought fit to consider the necessities of the State and grant the king
a supply.”[319]

[James in a temper adjourns Parliament]

The major part of the session was spent in reforming abuses, both
by impeaching the officials responsible for them, and by framing
legislation for their correction. Chief amongst those who fell under
condemnation at the bar of the House of Lords was Lord Francis
Bacon, Lord Chancellor of England, convicted of bribery. King James
in the early part of the session seemed not out of sympathy with
these efforts to reform the administration, but as time wore on and
the commons still busied themselves with investigations of official
misconduct, he wearied, and on the 28th May, the Lord Treasurer
declared to the lords the king’s determination to adjourn Parliament.
Two of the five reasons assigned for the adjournment were these:
“For that the profits of his Majesty’s revenues are, as it were, at
a stand;” and “The omission of the State.”[320] A week later, after
great complaint by the commons, the session was adjourned to reassemble
on the 14th November. Throughout the four months during which it had
sat, no complaint had been registered against the impositions at the
outports. Apparently the commons were willing for the moment to let
them rest, or else, as is more likely, were quite unmindful of them.

[Dilatory action on a subsidy]

Parliament met on the 20th November for its final session. Lord
Treasurer Cranfield reported that the exchequer was depleted, that the
two subsidies which had been granted the previous March had been spent
in furthering the interests of James’s son-in-law, Frederic, Elector
Palatine, and “that the business now in hand required a great and
speedy supply.”[321] It was understood that the cost of maintaining an
army in the Palatinate would be not far from £900,000 a year. The Lord
Treasurer wished “that the Commons would so handle this business as to
make his Majesty in love with the Parliaments.”

But they took some time to consider it. At the end of the first week,
the commons resolved in committee of the whole house upon a single
subsidy, which, since it was to be levied doubly upon <DW7>s, would
provide some £100,000 for the prosecution of war in the Palatine.[322]
That was as near an actual grant as the commons came during the
session. On the 1st December, they fell into a conflict with the king
over matters of privilege, which had its rise in the imprisonment of
Sir Edwin Sandys during the last recess of Parliament, presumably for
utterances made in the House. There were petitions to James and replies
from him, culminating in a remarkable Protestation asserting the right
of free speech in the House.[323] On the day of the presentation of this
Protestation, the 18th December, James adjourned Parliament to the 8th
February; he then sent for the Journal of the House of Commons and tore
from it the objectionable entry with his own hand. In the stress of these
events, the proposed subsidy was allowed to slip out of mind; only did
the lords propose a meeting with the commons to consider a supply, and
this came to naught. On the 6th January, 1621-22, James saw fit not
to await the reassembling of Parliament, but issued a proclamation
of dissolution in which he denounced those who had questioned his
prerogatives in the House of Commons as “ill-tempered spirits.” Then he
committed to prison such of them as he regarded as being most hostile,
amongst whom were Sir Edward Coke, Pym, Selden, and Mallory.[324]

[James’s last Parliament, 1623-24]

[Supply granted for the Palatine war]

James convened his last Parliament on the 19th February, 1623-24. In
the interval which had elapsed since the dissolution, James recovered
his conciliatory attitude toward the commons. The plan of marrying the
Prince of Wales, the young Prince Charles, to the Infanta of Spain,
had been given up, and thus Englishmen were relieved of what to them
had been a pro-popish plot, and had been deprecated again and again as
the odious Spanish Match. The programme with respect to the Palatinate
favored by the king was that favored by the commons, and the reign
of James seemed to be approaching a happy conclusion. The commons
came forward with a grant of three subsidies and three fifteenths and
tenths, providing a somewhat greater sum than £300,000.[325] The money
was voted on the condition that, in order to insure its application to
the naval and military establishments, it be paid into the hands of
commissioners appointed by the commons, and be expended by them upon
direction of the council of war. The sympathy existing between king and
Parliament was further exhibited in the successful passage of an act
forbidding monopolies in the sale of any merchandise or in practicing
any trade, the only legislative act of constructive importance in his
reign.[326] Parliament was dissolved on the 29th May, 1624.

[Death of James I, 27th March, 1625]

Less than a year later King James died. Apparently at the end of
his reign he was learning wisdom for he was beginning to understand
Parliament. He left his crown to the keeping of a son who had in no
wise profited by the father’s experience. Charles I, brought up in an
atmosphere of divine right, was predisposed to pursue that theory to
the end. But worse than that, in arguing his melancholy destiny, was
his faithlessness. An odious policy executed without respect for truth
brought him at last to death outside his palace of Whitehall.

[First Parliament of Charles]

[Worry about the supply]

The first Parliament of Charles I recalls vividly the mid-reign
experiences of James. It convened on the 18th June, 1625, and was
met with a request for a large and unconditional grant with which
to prosecute the war which Charles had inherited from his father.
The commons, however, were careful; they looked rather for a solid
establishment of government at home than for a war abroad. Breaking
the habit of two centuries, they offered Charles tunnage and poundage
for a year instead of the term of his life, a measure which, because
of lack of precedent, was rejected in the House of Lords; and granted
only two subsidies.[327] On the 10th August, the chancellor delivered
a message to the commons from the king. He desired “a present answer
about his supply: If not, he will take care of their healths more than
they themselves, and make as good a shift for his present occasions
as he could.”[328] The House spent the rest of the day debating the
matter, and on the next proceeded in the consideration of grievances,
postponing the supply. Delay the king would not brook; perceiving that
the commons were bent upon a redress of grievances before the granting
of further aid, and because in the debates they had presumed “to
reflect upon some great persons near himself,” on the 12th August he
dissolved Parliament,[329] and looked to his privy seal as a means of
revenue.

[His second Parliament. Buckingham]

[A grant with hard conditions]

Six months later, on the 6th February, 1625-26, Charles opened his
second Parliament and met with no better success. The commons did not
consider immediately the question of a supply, but to the immense
irritation of the king, proceeded to inquire into the conduct of the
Duke of Buckingham, the favorite of Charles. He sent a message to the
commons saying that he would “not allow any of his servants to be
questioned amongst them, much less such as are of eminent place and
near unto him.” But the chief significance of his message was in its
conclusion. “I wish you would hasten my supply,” so it ran, “or else it
will be worse for yourselves; for if any ill happen, I think I shall be
the last that shall feel it.”[330] The commons replied with a grant of
three subsidies and three fifteenths, but the conditions were such as
to make it almost worse for Charles than no grant at all. The bill was
not to be brought in until the king should have given answer to their
list of grievances, and among the grievances the Duke of Buckingham was
chief.[331] Later a fourth subsidy was added and a movement was put on
foot to give Charles tunnage and poundage for life; but in the bill it
was specified that a remonstrance should be drawn up against his taking
those duties without the previous consent of Parliament.[332] Then
the commons went on with their formal impeachment of Buckingham. But
before the matter was settled, and consequently before the Commons had
made final grants of the promised subsidies, Charles, in the hope of
relieving the desperate plight of his favorite, dissolved Parliament,
on the 15th June.

[Forced loans at the rating of a subsidy]

The dissolution left Charles without the means with which to carry on
the proposed war with Spain. He turned again to old expedients; he
forced loans, exacted benevolences, and suspended penal laws for a
consideration. The loans took the form of a general levy according to
the well-known rate of the subsidy and were thus in effect assessments
of a general tax by the arbitrary power of the crown. Of great
importance in the light of subsequent history, was the requisition made
upon the seaport towns for ships armed and equipped, the precursor of
the demand for ship money. Imprisonment, impressment into the royal
navy, the quartering of soldiers upon the inhabitants, the dismissal
from offices held of the crown, were the several rewards of those
sufficiently courageous to stand by the principle that taxes be laid
only by the assent of Parliament.[333] By an order in Council it was
declared, “that all customs, duties, and imposts on all goods and
merchandizes exported and imported, which, for many ages had been
continued, and esteemed a principal and necessary part of the revenue
of the crown, should be levied and paid.” The hope was expressed that
these levies “might receive an absolute settlement by Parliament,” when
that body should again assemble.[334]

[Charles’s third Parliament, 1627-28]

[Threats of non-Parliamentary exaction]

Not being content with the financial difficulties incident to the war
with Spain, Charles, at the suggestion of Buckingham, slipped into
a war with France. Buckingham led an expedition to the Isle of Rhé,
met with disaster and ignominy, and succeeded in using up the ready
money of the king. Charles had to call his third Parliament in order
to obtain supplies. It met 17th March, 1627-28. The king attempted to
propitiate the commons by releasing the prisoners whom he still held
for refusing to meet the demand for the general loan. In his opening
speech, Charles took the wrong tack. “There is none here,” he said,
“but knows that common danger is the cause of this Parliament, and
that supply at this time is the chief end of it.... If you, (which God
forbid) should not do your duties in contributing what the State at
this time needs, I must in discharge of my conscience, use those other
means which God hath put into my hands, to save that which the follies
of some particular men may otherwise hazard to lose.”[335] Nor was this
bold assertion of the divine right of a king to put his hand in the
pockets of his subjects enough. The lord keeper said in addition, “This
way (of obtaining a supply), as his Majesty hath told you, he hath
chosen, not as the only way, but as the fittest; not as destitute of
others, but as most agreeable to the goodness of his own most gracious
disposition, and to the desire and weal of his people. If this be
deferred, necessity and the sword of the enemy will make way to others.
Remember his Majesty’s admonition: I say, remember it.”[336]

[Grievances have precedence]

[Denunciation of extortions]

The House immediately set itself to the consideration of grievances,
chief amongst which were “raising money by loans, by benevolences, and
privy seals: and what was too fresh in memory, the imprisonment of
certain gentlemen who refused to lend.”[337] The matter of a supply
was debated, but passed by in favor of the grievances. On the 3rd
April, the commons agreed unanimously to certain highly significant
resolutions against the powers assumed by the king. “No freeman ought
to be committed, or detained in prison, or otherwise restrained,” they
said, “by command of the king, or the Privy Council, or any other,”
except for lawful cause expressed in a lawful warrant; and “that
the ancient and undoubted right of every freeman is, that he hath a
full and absolute property in his goods and estate; and that no tax,
tallage, loan, benevolence, or other like charge, ought to be commanded
or levied by the king or his ministers, without common assent of
Parliament.”[338]

For the space of two months the commons and the House of Lords engaged
themselves in conference and separately in the consideration of a
petition defining, the rights asserted in the resolutions. On the part
of the commons the chief advocates were Selden, Littleton, and Digges;
Sir Edward Coke, whose unwillingness to bend the judicial knee to King
James had procured his dismissal long since from the chief-justiceship;
and Noy, the genius who was shortly to turn against the Commons and
in his invention of ship money furnish a means whereby to lay taxes
without parliamentary assent. The interest of the crown was defended by
attorney-general Heath and Sergent Ashley. The king was in a dilemma;
he could not permit the petition to be brought in, in parliamentary
form, and he could not dissolve Parliament without losing five
subsidies which the commons had signified their willingness to grant
him.[339] He therefore tried to steer a middle course; he offered to
Parliament his royal word not to imprison unjustly and expressed his
willingness to confirm the charters. Coke, however, insisted upon a
specific statement of issues; any such hazy settlement of difficulties
as the king proposed was unlikely to be permanent; definiteness was
essential. To that end he proposed the drawing up of a Petition of
Right.

[The Petition of Right]

When the instrument was at last drawn up, it was sent to the House
of Lords. The lords attempted to introduce an amendment designed “to
leave entire that sovereign power,” as the proposed change itself ran,
“wherewith your Majesty is trusted for the protection, safety and
happiness of your people;”[340] but the commons would have none of it,
and at last the lords yielded their assent. The king at first gave a
cumbersome, evasive answer to the petition which was in reality no
answer at all,[341] and roused thereby a storm of indignation, which
exhibited itself in a movement to censure Buckingham. This the king
averted by signing the Petition of Right in the usual manner, and
received in consequence his five subsidies.[342]

[The statutes cited in the Petition]


The Petition which thus became a regularly passed Act of Parliament,
is of transcendent importance in the development of the control of
the people over the public purse. In terms absolutely unequivocal,
it asserts that “your subjects have inherited this freedom, that they
should not be compelled to contribute to any tax, tallage, aid, or
other like charge, not set by common consent in Parliament.” The
statutory sources whence that freedom was inherited are cited in
detail. The citations, are, however, ill-taken. _Statutum de tallagio
non concedendo_ was in all likelihood no statute at all, but a
chronicler’s abstract of Edward I’s Confirmatio Cartarum, or perhaps an
unauthoritative copy of the pardon which was granted to Humfrey Bohun
and Roger Bigod at approximately the same time with the Confirmation
of the Charters. It is not unlikely that the citation of the statute
of the 25th of Edward III was an error; at any rate, the text of the
statute has not been discovered,[343] and the date at which it was said
to be enacted was at the height of the great plague, a time scarcely
adapted to the assertion of a great constitutional principle. But
the precise historical foundation upon which Sir Edward Coke and his
associates based their charges against the king, is of quite secondary
importance. The true value of the Petition of Right lies in this, that
Charles I had been obliged to subscribe to a statutory provision by
which no man thereafter was to “be compelled to make or yield any gift,
loan, benevolence, tax, or such like charge, without common consent by
Act of Parliament.” That was indeed supremely important.

[The Petition of Right and customs duties]

But the language of the Petition of Right might reasonably be taken
to refer only to internal taxes and that the matter of customs
duties, the charges upon merchandise at the outports, was left still
in the air. Protests had indeed been made against the exaction of
these duties by the crown, especially during the reign of James in
the great agitation over the Book of Rates, but no statute had been
passed providing definitely for parliamentary control. To that end,
the commons delayed the passage of a bill which gave the king tunnage
and poundage for life, pending the acceptance by him of a remonstrance
against impositions. The remonstrance as framed by the commons declared
that “there ought not any imposition to be laid upon the goods of
merchants, exported or imported, _without the common consent by Act
of Parliament_.”[344] It further made assertion that the laying of
impositions at the outports was contrary to the Petition of Right. The
king’s attitude was decisive; before the remonstrance was handed to
him, he evaded the issue by proroguing Parliament. Never, so he said,
would he give away tunnage and poundage; he must needs retain them for
himself. The session ended 26th June, 1628.[345]

[Tunnage and poundage]

During the six months which elapsed before the reassembling of
Parliament, Charles continued to levy tunnage and poundage upon his
own authority, relying still upon the decision in the Bate Case for
his justification. Several merchants who refused to pay were promptly
clapped into prison; among those whose goods were seized for the same
reason was Henry Rolles, a member of the House of Commons. The second
session of Parliament was called for the 20th January, 1628-29; the
commons came together with no pretense of smothering their indignation
against the conduct of the king. A number of plans were brought forward
as means of rectifying the abuses. The evident determination of the
commons to conclude the matter, daunted the king. Summoning both Houses
to Whitehall, he renounced the right of levying tunnage and poundage.
“It ever was, and still is my meaning,” so were his words, “by the gift
of my people to enjoy it, and my intention in my speech at the end
of the last session was not to challenge tunnage and poundage as of
right, but _de bene esse_, showing you the necessity, not the right,
by which I was to take it until you had granted it to me, assuring
myself according to your general professions that you wanted time and
not good-will to give it me.”[346] For a moment it appeared as though
this abandonment of position by the king would end the conflict. Three
days after his reception of the Houses at Whitehall, Mr. Secretary
Cooke moved the reading of a bill granting him tunnage and poundage for
life. But it never passed. The commons were distracted by a question
of religious innovation, talked at great length over their religious
grievances, and allowed their momentary flush of cordial feeling
toward the king to cool. Mr. Secretary Cooke on the two days following
that upon which he made his motion regarding tunnage and poundage,
delivered messages from Charles urging haste in the consideration of
the measure.[347] On the 2nd February, the commons acknowledged the
receipt of the messages, but rather than pass a bill satisfactory to
the king in this particular, they stated their intent to “proceed with
religion.”[348]

On the 19th February they began a lengthy consideration of the breach
of privilege committed against the House of Commons in the seizure
of the goods of Henry Rolles, the merchant member of the House, who
had refused payment of tunnage and poundage during the recent recess.
The officers who had participated in the seizure of his goods were
summoned before the commons that they might answer for contempt. The
stand was taken against the king on this ground of privilege, instead,
as Pym advised, of objecting on the broad constitutional ground that
Parliament had not granted the tax. This hostility was too much for the
conciliatory spirit which Charles had evinced at the opening of the
session. Through Mr. Secretary Cooke, he announced his unwillingness
to have his officers questioned, since “what they did was by his own
direct command, or by order of the council-board, his Majesty himself
being present, and therefore, would not have it divided from his
act.”[349]

[Tumult in the Commons]

The question was fought out on the 2nd March, when the commons
reassembled after a brief recess. The king, hoping to arrange the
difficulty privately with the leaders of the House, ordered the
recess to be continued until the 10th March. To this the commons
entered vigorous protest; at the putting of the question, the vote was
overwhelmingly against adjournment. The speaker, Sir John Finch, in
obedience to the royal will, attempted to leave his chair, and thus
break up the session; but Holles and Valentine, two members most eager
for the consideration of the matters pressing for attention, pushed him
back into his seat. Sir John Eliot, who had drawn up three resolutions
expressing the mind of the commons on the questions of religion and
taxation, read them above the uproar. The speaker and the clerk refused
to put the vote and the king’s guard was already on its way to make
a forcible end to the proceedings. At the moment when the guardsmen
were at the door, Holles read the resolutions and they were carried
by acclamation. The House then adjourned in a tumult until the 10th
March.[350]

The resolutions were most explicit. The two which concerned the
impositions said: “Whosoever shall counsel or advise the taking and
levying of the subsidies of tunnage and poundage, not being granted
by Parliament, or shall be an actor and instrument therein, shall be
likewise reputed an innovator in the government and a capital enemy
to this kingdom and commonwealth.” And: “If any merchant or other
person whatsoever shall voluntarily yield or pay the said subsidies of
tunnage and poundage not being granted by Parliament, he shall likewise
be reputed a betrayer of the liberty of England, and an enemy to the
same.”[351]

When the House reconvened on the 10th March, the king dissolved
Parliament without further ado. With respect to such of the commons as
merited his displeasure he remarked that the vipers amongst them would
meet with their rewards.

[Charles’s eleven years without Parliament, 1629-40]

With the dissolution of his third Parliament, Charles entered upon a
new epoch in his reign; and at the conclusion of it, he found that his
game had been for too heavy stakes, and that he had lost. For eleven
years he did without a Parliament. He began by issuing a Declaration
addressed to his “loving subjects” in which he told the history of the
late session from his own point of view,--that he was in extreme need
of money with which to meet the necessities of England and relieve the
“miserable afflicted state” of Protestants abroad, that Parliament had
proved itself intractable, and had greatly delayed, contrary to all
precedent, in the matter of tunnage and poundage; not only that, but
upon his graciously yielding to Parliament the power of granting him
tunnage and poundage, it had raised up still another cause for delay in
the case of Henry Holles.[352] In a proclamation issued two weeks later
he plainly exhibited his intention to rule without a Parliament; “the
calling, continuing, and dissolving of them,” he said, “being always in
the King’s own power. And his Majesty shall be more inclinable to meet
in Parliament again when his people shall see more clearly into his
intents and actions, when such as have bred this interruption shall
receive their condign punishment.”[353]

[His financial expedients]

He imprisoned accordingly Holles, Strode, Sir John Eliot and others
whom he included amongst the vipers of the commons, and removed such
of them to the Tower as were able to sue out their writs of habeas
corpus, in order that he might thus elude the service of the writs. But
imprisonment was scarcely a means of relief to the king’s financial
exigencies. He turned to expedients which were exceedingly oppressive,
and most of them clearly illegal. He rigorously extorted tunnage and
poundage by the arbitrary authority of the crown; he reëstablished the
monopolies abolished under James I, and applied them to nearly every
article in common use; he revived laws long since dead and applied them
stringently for the sake of their fines; he revived forest legislation
and increased the limits of the royal woodlands, mulcting the owners of
adjoining property for encroachment; he searched titles of estates for
defects which would make them liable to reversion to the crown; he went
back to the old practice of compulsory knighthood for those who had
£40 or more in lands or rents.

[Ship money, first writ, 20th October, 1634]

But the supreme grievance was the extortion of ship money. Sir William
Noy, lately leader in the commons in defense of popular power against
royal prerogative, now become by the grace of the king attorney-general
and a chief supporter of that same royal prerogative, shut himself up
in the Tower for some days that he might better consult the ancient
authorities. “Shaking off the dust of ages from parchments in the
Tower,” says Hallam, “this man of venal diligence and prostituted
learning discovered that the seaports and even maritime counties had
in early times been sometimes called upon to furnish ships for the
public service; nay there were instances for a similar demand upon some
inland places.”[354] The first writ of ship money was directed to the
magistrates of London and other seaport towns, and was issued on the
20th October, 1634. It recited the depredations of pirates, “Turks,
enemies of the Christian name,” and the prevalence of war upon the
continent. It enjoined upon the magistrates the furnishing of ships
of specific tonnage and equipage by the 1st of the following March.
They were empowered to assess all the inhabitants according to their
substance, both for the fitting out of the ships and the maintenance
of their crews for the space of six months. Refusals to pay were
punishable by imprisonment. The writ was issued by the king with the
advice of the Privy Council.[355]

[The true occasion for the levy]

The show of precedent was barely an extenuation, not a justification
of the demand. As a matter of fact, it was virtually an extortion of a
tax, and as such was a distinct violation of the Petition of Right.
London, being the only port in the kingdom capable of constructing and
equipping ships of the character designated in the writs, was the only
town able to make literal compliance with the demand. The rest were
obliged to make money payments. But the matter was to come up later in
the courts, and the legality or illegality of the writs was there to
be decided. As for the occasion of the requisition denominated in the
ordinance, that was false. The design was not against “Turks, enemies
of the Christian name,” but against the Dutch Republic. Charles had
proposed a secret treaty with Spain whereby the government of the
Lowlanders should be overthrown and its territory be divided between
England and Spain.[356] Not only was this act of Charles a breach of
his recent great compact with the nation, but it had for its purpose
an act of aggression against the people who stood for the highest
political ideals then known in Europe, and was based on a lie.

[Second writ, 4th August, 1635. Its general application]

Sir John Finch, the chief justice of common pleas, the same who, as
speaker of the commons, had been forcibly held in his chair in order
to keep the House in session at the close of the last Parliament,
undertook the levying of ship money upon the death of Noy; he
advanced the fortunes of the writs by making them applicable to the
entire kingdom. On the 4th August, 1635, the demand made its second
appearance; it was to cover not only the needs of a navy, but to
furnish “a spring and magazine that should have no bottom, and for an
everlasting supply for all occasions.”[357] Instructions were included
in the writs to the sheriffs, by which the ships could be compounded
for by the counties, and the amount transmitted to the treasurer of the
navy for his Majesty’s uses. Payment was to be enforced.

[Third writ, 9th October, 1636]

A year later, the 9th October, 1636, the third assessment was laid.
Murmuring against the writs, which was common enough amongst the lower
classes in 1635, now spread to men of great position. The earls of
Danby and Warwick and other peers protested to the king, not so much
against the amount of the tax, as against the unconstitutional manner
of its levy. But Charles found it too profitable a means of income to
let go; he was the richer each year by some £200,000.

[Extra-judicial opinions]

The courts, however, seemed of contrary mind to the rest of the nation.
In November, 1635, at the instance of Sir John Finch, the following
extra-judicial opinion was delivered by the judges:--“I am of the
opinion that, as when the benefit doth more particularly redound to
the ports or maritime parts, as in case of piracy or depredations upon
the seas, that the charge hath been, and may be lawfully imposed upon
them according to precedents of former times; so when the good and
safety of the kingdom in general is concerned, and the whole kingdom
in danger (of which his Majesty is the only judge), then the charge of
the defence ought to be borne by all the realm in general. This I hold
agreeably both to law and reason.”[358]

On the 7th February, 1637, Charles laid the case before the judges of
the Exchequer extra-judicially in much the same terms as the opinion
of 1635. He requested an answer to the following question:--“When
the good and safety of the Kingdom in general is concerned, and the
whole Kingdom in danger, whether may not the King, by writ under the
Great Seal of England, command all the subjects of our Kingdom at
their charge to provide and furnish such a number of ships, with men,
victuals, and munition, and for such time as we shall think fit for the
defence and safeguard of the kingdom from such danger and peril, and
by law compel the doing thereof, in case of refusal or refractoriness:
and whether in such a case is not the King the sole judge both of the
danger, and when and how the same is to be prevented and avoided?”[359]
The opinion of the judges was ostensibly unanimous in favor of the
crown; Coke and Hutton as a matter of fact dissented, but subscribed on
the principle that the opinion of the majority should be that of the
whole body.

[Hampden’s Case, 1637]

In the face of this sweeping and conclusive opinion delivered privately
to the king, there was apparently no hope for any one who should have
to answer in that court for refusal. Shortly thereafter, however,
such a case came up. John Hampden, a gentleman of Buckinghamshire, had
refused to pay the assessment of 20_s._ which was laid upon some of his
lands, and by reason of his refusal was summoned to the Exchequer. He
appeared and answered to the charge in November, 1637. He was defended
by the brilliant Oliver St. John and Mr. Holborne. Solicitor General
Littleton and Attorney General Bankes conducted the case for the crown.

The question upon which the case was argued may be phrased as follows:
“Whether the king had a right on his own allegation of public danger
to require an inland county to furnish ships, or a prescribed sum of
money by way of commutation, for the defense of the kingdom?”[360] The
argument for Hampden can be summed up under five heads:

[The case for the defendant]

I. The law and constitution of England provide certain ordinary
revenues for the defense of the realm. These comprehend the military
forces provided by those holding lands by military tenure; the
liability of the Cinque Ports and others holding similarly to provide
a quota of ships, by reason of their tenure; the feudal and other
revenues inherent in the crown; the customs on wool and leather, and
tunnage and poundage, and other special dues which were wont to be
granted to the king in time of danger.[361]

II. The law and constitution of England provide certain extraordinary
revenues when the ordinary revenues should prove insufficient, and for
the defense of the realm. Chief among these were the subsidies and aids
which were granted in Parliament. That Parliament was the only body
capable of levying these charges was exhibited by the fact that the
kings of England were wont to denominate their arbitrary exactions as
“loans” and “benevolences.”

III. The statutes of the realm provided in most emphatic language
that no tax should be levied on the subject without the consent of
Parliament. The charter of the Conqueror, Magna Carta, especially
Confirmatio Cartarum and De Tallagio non Concedendo, the statutes
passed subsequently under Edward III, and more than all the others,
the Petition of Right, showed the utter illegality of the ship money.

IV. The citations by the crown of exactions similar to the ship money
did not demonstrate the lawfulness of the demand; they merely showed
precedents of such a general levy. The case must be decided by law, not
by precedents,--“_judicandum est legibus non exemplis_.”

V. In the present instance, the perils which the king cited were
insufficient to justify an unusual demand for money. The precedent of
the arbitrary actions of Queen Elizabeth at the time of the Armada
could in no wise be taken as a justification for so great an exercise
of the prerogative when the nation was at peace with the world; the
piratical acts of Turkish corsairs or even the insolence of rival
neighbors could not be reckoned amongst those imminent perils for which
a Parliament could provide too tardily.[362]

[A judgment for the crown]

The judgment was in favor of the crown seven to five. Three of
the minority based their decision upon the particular rather than
on general grounds; Croke and Hutton, however, denied the general
contention of the crown absolutely. Croke maintained that taxation
save by authority of Parliament is contrary to the common law and to
the statutes; that the exaction could not be defended upon the plea
of imminent danger; and that the extension to inland counties was not
legal or warranted by any legal precedent. The seven judges whose
opinions were favorable to the king, upheld the prerogative of the
crown as against the legislative power of Parliament. Sir John Finch,
chief justice of the common pleas, stated their attitude clearly.
“No act of Parliament,” he said, “can bar a king of his regality, as
that no lands should hold of him, or bar him of the allegiance of his
subjects or the relative on his part, as trust and power to defend his
people; therefore acts of Parliament to take away his royal power in
the defense of his kingdom are void; they are void acts of Parliament
to bind the king not to command the subjects, their persons, and
goods, and I say their money too; for no acts of Parliament make any
difference.”[363]

The effect of this decision upon the minds of the people was immediate;
it changed the payment of the ship money from a semi-voluntary gift
to the king into an extortion enforced by him. Previously they had
supposed that the ship money was paid out of sufferance, that if it
became too heavy, an appeal to the courts would be sufficient to remove
it; now they felt that the king had them by the throat and could force
them to do as he willed. Never was there a clearer issue; the king and
his prerogative against the commons and their long-developing rights;
the power of the king to levy taxes upon his own arbitrary authority
against taxation by the will of the taxed as expressed in Parliament.

[The Short Parliament, 1640]

The Scottish rebellion of 1638 which was waged for the defense of
religious freedom, and the interval of peace, beginning the 18th
June, 1639, which was used by Scots and English alike as a period of
armament, proved too much for Charles’s irregular financial supply.
Reluctantly he called his Fourth Parliament, commonly known as the
Short Parliament, for the 13th April, 1640. The assembly was, strange
to say, most moderate and loyal to the king. Charles through the
ex-Speaker Sir John Finch, now Lord Keeper, asked for a large supply
immediately, saying that he would listen to grievances afterwards.[364]

[Clash between the Houses]

The commons recalled instances wherein the royal word had been broken,
and preferred to withhold supply until the end of the session,
according to their familiar habit. They proceeded to inquire into the
Hampden case, and considered in detail the various occasions upon
which the law had been broken during their eleven years’ recess.
They appointed a committee to confer with the lords over a long list
of grievances, divided into the three departments of innovations in
religion, invasions of private property, and breaches of parliamentary
privilege.[365] At this Charles came forward with a gigantic piece of
tactlessness; thinking he saw a hole through which he could escape,
he tried to win the lords to his standard. Applying to them, they
voted and communicated to the House of Commons that “his Majesty’s
supply should have the precedency, and be resolved on before any other
matter whatsoever.”[366] To the commons this appeared an arrant breach
of privilege, it being their right that money bills should originate
in their House. The lords immediately adopted a conciliatory tone;
they renounced any intention of offending the commons. “The bill of
subsidies,” they admitted, “ought to have its inception and beginning
in your House; and that when it comes up to their lordships, and is by
them agreed unto, it must be returned back to you and be by your House
presented.”[367]

The king had reason to regret his intrusion since the dispute which he
had caused delayed a supply from the commons so much the more. He now
had recourse to a compromise. He offered the withdrawal of his claim
to ship money in consideration of a grant of twelve subsidies,[368]
payable in three years. The commons, perceiving that the proposition,
if acceded to, involved the tacit admission that the ship money
had been justly laid, insomuch as its removal was obtainable only
by purchase, refused to enter into the agreement. But the effect of
the message was not quite lost; on the contrary it seemed as though
the king would shortly receive his grant. At the moment when the
commons were on the point of deciding upon a supply, the amount to
be determined subsequently, Sir Henry Vane, secretary of state,
precipitated a crisis. He asserted that the supply would not be
accepted unless it were to the amount and in the manner designated in
the king’s message.[369] The next day, the 5th May, the king dissolved
his three-weeks-old Parliament, to his own great distress and the
trepidation of the nation.

[Dissolution of Parliament]

Charles employed the six months which intervened between the
dissolution of Parliament and the summons of the Long Parliament in
his usual occupations. He locked up several members of the House. He
exacted forced loans, created new monopolies, and levied ship money.
Prosecutions followed swiftly upon refusals to pay. “Coat and conduct
money,” a new exaction from the counties, was demanded to cover the
traveling expenses of recruits on their way to fight against the Scots.
He obtained six subsidies from the clergy whom he illegally kept in
convocation after the dissolution of Parliament.

[Sitting of the Long Parliament, 3rd November, 1640]

The wind of opposition was rising to a gale. With the sitting of the
Long Parliament, which convened on the 3rd November, 1640, the tempest
broke. The immediate occasion of the summons was the universal demand
of the people and the peers for a session of Parliament, coupled
with emptiness of the treasury which came with the commencement of
the disastrous Scottish war. The composition of the commons was
overwhelmingly anti-regal;[370] the popular leaders had been at work
in the counties ever since the dissolution of the Short Parliament
looking to the return of a strong majority in opposition to the king.
The assembly convened full of the idea that “they had now had an
opportunity to make their country happy by removing all grievances and
pulling up the causes of them by the roots, if all men would do their
duties.”[371]

Parliament lost no time in setting about its work. Proceedings were
immediately instituted looking to the impeachment of the Earl of
Strafford, Archbishop Laud, Finch, and six of the judges who had
figured in the ship money case. Various victims of the tyrannical
jurisdiction of the Star Chamber were set at liberty. The commons
exhibited their uncompromising hostility to the king by voting
assistance to their “brethren” the Scots, whose army was in possession
of much territory on the English side of the border. They granted them
£25,000 a month as long as their stay in England should be needful, and
in addition £300,000 as an indemnity.

[Royal exaction of tunnage and poundage declared illegal]

With such acts of open opposition to the king in process, it was
natural that Parliament should set itself to clean up all the abuses
which of recent times had crept into the government. Its actions were
not subversive of the constitution; on the contrary it left unassailed
many prerogatives of the king. On the 22nd June, 1641, Parliament
granted to the king tunnage and poundage for a length of time somewhat
less than two months[372] and in the same bill declared, “that it is
and hath been the ancient right of the subjects of this realm, that no
subsidy, custom, impost, or other charge whatsoever ought or may be
laid or imposed upon any merchandise exported or imported by subjects,
denizens, or aliens without common consent in Parliament.”[373] The Act
prescribed also the punishment which should be inflicted upon officers
who in time to come should exact payments not sanctioned by Parliament.
They were to “incur and sustain the pains, penalties, and forfeitures
ordained and provided by the Statute of Provision and Premunire made in
the sixteenth year of King Richard II, and shall also from thenceforth
be disabled during his life to see or implead any person in any action
real, mixed, or personal, or in any court whatsoever.” Thus was it
enacted that tunnage and poundage exacted by authority of the crown
was illegal, and protected merchants from being sued by the customs
officers in case of refusal to pay the unlawful imposition. The king
received tunnage and poundage by six subsequent acts for short terms
down to the 2nd July, 1642.

[The Ship Money Act, 7th August, 1641]

Six weeks later, on the 7th August, 1641, Parliament turned its
attention toward the matter of ship money. On that date it passed an
“Act for the declaring unlawful and void the late proceedings touching
Ship-Money, and for the vacating of all records and process concerning
the same.”[374] The act cites the Hampden Case and others of a similar
nature and outlines the plea of the royal prerogative as given in the
extra-judicial opinion of the judges. It condemns “all which writs and
proceedings” as being “utterly against the law of the land.” In greater
detail it enacts “that the said charge imposed upon the subject for
the providing and furnishing of ships commonly called ship money, and
the said extra-judicial opinion of the said justices ... and the said
judgment against John Hampden, were and are contrary to and against the
laws and statutes of this realm, the right of property, the liberty
of the subjects, former resolutions in Parliament and the Petition
of Right.” The act also provided that all particulars desired in the
Petition of Right should be “strictly holden and observed as in the
same Petition they are prayed and expressed.” The ship writs and the
Hampden judgment are specifically annulled.[375]

Thus came to an end the long chain of statutes which Parliament
from its inception had been forging to fetter the arms of the king
straining toward the prize of arbitrary taxation. The virtue of the
Long Parliament is thus commented upon by Hallam: “In the first place,”
he says, “it will appear ... that they made scarce any material change
in our constitution, such as it had been established and recognized
under the house of Plantagenet.... Thus in by far the greater part of
the enactments of 1641, the monarchy lost nothing that it anciently
possessed; and the balance of our constitution might seem rather to
have been restored to its former equipoise, than to have undergone
any change.... It is to be observed in the second place, that by these
salutary restrictions, and some new retrenchments of pernicious or
abused prerogative the Long Parliament formed our constitution such
nearly as it now exists.”[376] The legislation of 1641 in effect
restored to Parliament what power it nominally held two centuries
before.

[The Grand Remonstrance, 1st December, 1641]

A current of reaction now set in favorable to the king. The leaders in
the commons discovered that the popular support to their measures was
becoming weak, that the royalist party was recruiting adherents from
the former supporters of the opposition, that their own backing was by
a party, not by the nation. With the hope of winning back full national
adherence to Parliament, the Grand Remonstrance was framed by the House
of Commons and presented to the king, on the 1st December 1641.[377] It
purported to show the present state of the kingdom, the evil conditions
which Parliament had succeeded in bettering, and the darkness of the
future, if support were withdrawn from Parliament. With respect to
taxation, the Remonstrance recites the various illegalities and abuses
which the crown had practiced and the steps which the commons had taken
to provide for their correction. For future safeguard against their
return it suggests “that for the better preservation of the liberties
and laws, all illegal grievances and exactions should be presented and
punished at the sessions and assizes; and that judges and justices
should be sworn to the due execution of the Petition of Right and other
laws.”

[The Puritan Revolution]

With the delivery of the Grand Remonstrance, the contest for
Parliamentary taxation became of relatively small moment in the great
conflicts of the Puritan Revolution. The struggle over the impeachment
of Pym and the popular leaders in the House, the attempt of the king
to secure absolute command of the militia, the battles on the field
and in the House of Commons during the Civil War, the events which led
up to the execution of Charles--these were neither immediately caused
by the conflict over taxation nor did they have immediate effect upon
it. Taxation up to 1641 was a prime cause of opposition to the crown;
thereafter it ceased to be of so great importance.

[Accession of Charles II, 1660]

Charles II came to the throne in 1660 after the English people had
made an eleven years’ trial of a military despotism under a good
and moderate despot. His first Parliament, that of 1660, granted
him the proceeds of the customs for life. During the period of the
Commonwealth, the freedom from the feudal charges had been most
agreeable to those holding of the crown. Consequently, this Parliament
set itself to regulate the confused system of military tenure by the
simple expedient of abolition. The Great Contract which had been
proposed under James I for the same purpose, had been advocated in
vain. Now, however, the effort was successful. The feudal incidents,
such as wardships, marriages, knight’s service, as well as the three
feudal aids, knighting the king’s son, ransoming the king, and
furnishing dowry for his eldest daughter, were done away with. By this
great deprivation, the royal revenue was naturally much prejudiced.
Parliament made up the loss by granting to the crown an hereditary
excise on beer and some other liquors, increasing the royal revenue to
the annual value of £1,200,000.[378]

[Appropriation of supplies, 1665]

In 1665 the expenses incident to the Dutch War made it possible to
establish a principle which had been touched upon from time to time
since the days of Henry III. Sir George Downing, in the subsidy bill
of that year, introduced the provision that the money raised in
accordance with the bill, £1,250,000, be applicable solely to the
prosecution of the war, and that the money could not be paid out by
the Exchequer save by special warrant stating that as the purpose of
the payment. Clarendon opposed the measure as an encroachment upon the
honor of the crown, but Charles himself was not averse to it, mainly
by reason of his belief that the promised revenue would be thus more
acceptable to bankers as the security for loans. The appointment in the
following year of a commission to examine the public accounts in order
to determine the faithfulness with which the provision was carried
out, clinched the principle underlying its original passage. The bill
was the natural consequence of the liberty of appropriation enjoyed
under the Commonwealth. The exercise of the principle of appropriating
supplies in detail was not carried to its full extent until after
1689. Its importance is difficult to overestimate. It placed the
executive power in a position of perfect dependence upon the will of
Parliament, for the money requisite for any administrative act was to
be forthcoming only in accordance with the previously expressed intent
of Parliament.

[Reign of James II, 1685-88]

The reign of James II, who came to the throne in 1685 at the death
of Charles, was retrogressive. He assumed the crown with the full
intention of exercising arbitrary authority, and if he had not tried to
substitute Catholicism for the Established Church, there is little to
show that he would not at least for a time have succeeded. Before the
summons of his Parliament, which he called reluctantly notwithstanding
a lapse of five years under Charles without one, he continued to
himself the payment of the customs duties by proclamation. This illegal
act met with no serious objection from Parliament when it met. Nor
was this all; Parliament raised the permanent revenue of the king to
the annual amount of £2,000,000, and on the suppression of Monmouth’s
rebellion, gave him £700,000 more wherewith to support a standing army.
Thus did Parliament make James financially independent, provided he
was content to live within reason, and gave him an army in addition.
This was a combination of powers which on the Continent had sufficed to
create despotisms.

[William and Mary]

That it did not create a despotism in England is not greatly to be
wondered at. James set himself to fighting the battle of the Roman
Catholic church in England. The result was almost immediate disaster.
On the 5th November, 1688, William, Prince of Orange, and Stadtholder
of the United Provinces, landed at Torbay in Devonshire. He was
requested by seventy of the lords spiritual and temporal (all who
were then in London), by the members of the House of Commons which
met in the last Parliament of Charles II, and the corporation of the
City of London, to assume the provisional government of the kingdom
pending a session of Parliament. This was called for the 22nd January,
1688-89. On the 13th February following, a tender of the crown was
made to William, on the conditions denominated in the recently framed
Declaration of Right. In it the illegal acts of King James were recited
and the announcement was made that the throne had been abdicated;
it was asserted also that certain specified acts of King James were
illegal, and a resolution was appended settling the crown on William
and Mary. William, speaking for himself and for the Princess Mary,
“thankfully accepted what had been offered them.”

[The Bill of Rights, 1689]

The Declaration of Right, with some slight but essential changes,
was incorporated at the second session of this Parliament, the 25th
October, 1689, in statutory form known subsequently as the Bill of
Rights.[379] In the matter of taxation, it sums up in a few clauses the
whole principle which had been in course of evolution since the German
chieftains received gifts of cattle and fruits from their people.

It states that King James “did endeavor to subvert and extirpate ...
the laws and liberties of this kingdom ... by levying money for and to
the use of the crown, by pretense of prerogative, for other time and in
other manner than the same was granted by Parliament.” Then follows the
definite assertion, “that levying money for or to the use of the crown
by pretense of prerogative, without grant of Parliament for longer time
or in other manner than the same is or shall be granted, is illegal.”
The clause which gave to these statements the force of law, emphasizes
the power of Parliament. “All which their Majesties are contented and
pleased,” so it goes, “shall be declared, enacted, and established
by authority of this present Parliament, and shall stand, remain,
and be the law of this realm forever; and the same are by their said
Majesties, by and with the advice and consent of the Lords spiritual
and temporal, and Commons, in Parliament assembled, and by the
authority of the same, declared, enacted and established accordingly.”

With the passing of the Bill of Rights the principle was vindicated in
its fullness that Parliament rather than the crown has the power to
tax. Within Parliament itself the power of laying taxes had undergone
further differentiation in that the House of Commons claimed the
sole right of initiating tax levies. The theory deduced therefrom,
that the House of Commons has sole control over money bills and that
interference by the House of Lords is an assumption of power beyond
the constitutional rights of that House, came up for fuller definition
220 years later. The corollary principle that Parliament has the power
to appropriate supplies for specific purposes and that it can demand
an accounting for the money so appropriated were accorded general
acquiescence then and thereafter.




INDEX


  Accounts, examination of, 186-188;
    appointment of treasurers under Richard II, 191-194;
    under Charles II, 303;
    after Bill of Rights, 308.

  Aid _pur fille marier_, Edward I, 121.

  Ancient Customs, rate stated, 165.

  Anglo-Saxons, their early ideas of taxation, 3.

  Appropriation of Supplies, 184-186;
    declaration under Henry VI, 210;
    under Charles II, 303-304;
    after Bill of Rights, 308.

  Assize of Arms, 35.

  _Auxilium vicecomitis_, 27, 29.


  Bate Case, 241-242;
    opinions of the Barons, 242-244;
    position of Parliament, 244;
    Book of Rates, 245;
    remonstrance by Parliament, 246-248.

  Becket, Thomas, his controversy with Henry II, 27-30.

  Benevolence, a form of extortion, 214;
    prohibiting statute of Richard III, 216-217;
    Morton’s Crotch, 220;
    Shoring or Under-propping Act, 221;
    Henry VIII’s “amiable graunte,” 225;
    under James I, 253;
    St. John’s Case, 253-254;
    under Charles I, 264, 267, 272, 294.

  Bigod, Roger, dispute with Edward I, 135-138.

  Bill of Rights, 306-308.

  Bohun, Humfrey, dispute with Edward I, 135-138.

  Book of Rates, 245.

  Buckingham, 262-264, 265, 269.

  Burghers, at Parliament of 1265, 102-103;
    acquire function of taxing, 116-119.


  _Carta Mercatoria_, 158;
    complaint against, 162.

  Carucage, 43, note 1;
    imposition by Richard I, 43;
    a revival of the Danegeld, 35, note 1;
    levy of 1198, 44;
    “assessed” by the Common Council, 77-78.

  Charles I, his accession, 261;
    signs Petition of Right, 269;
    renounces tunnage and poundage, 274-275;
    rules without Parliament, 279.

  Charles II, his accession, 302;
    death, 304.

  Clergy, John’s antagonism of, 55;
    need of their assent to taxation recognized, 125;
    meet separately, 131, note 1;
    attempted taxation of by Parliament, 1449, 210;
    taxation after English Reformation, 228-230.

  _Clericis laicos_, 133, note 1;
    tendency to disregard, 1297, 142, 145;
    adduced in 1301, 156.

  Common Council, no provision for London representatives made in Magna
          Carta, 66;
    its composition, 66-68;
    representation, 68-69;
    part in taxation in early years of Henry III, 77-78;
    grants a tax on movables, 1224, 79-81;
    instances of refusal, 1232 and 1237, 81-82;
    refuses a grant, 1242, 85;
    its control over taxation in 1250, 91-92;
    knights of the shires called, 1254, 92-94;
    its control of disbursements, see Disbursements.

  Commons, House of, foreshadowed in Parliament of 1265, 102, 103;
    meets separately, 189, 190;
    initiation of tax levies, 205-208, 308;
    composition dictated by James I, 238;
    revival of impeachment, 256;
    breach of privilege in Short Parliament, 293.

  _Commune Concilium_, see Common Council.

  Conditional grant, early instance of, 1224, 79-80;
    repetitions, 81-82.

  _Confirmatio Cartarum_, action prior to, 142-144;
    signed by Edward I, 145;
    analysis of tax clauses, 146-150;
    marks a stage in Parliamentary taxation, 152-153.

  Contributions, voluntary, among the early Germans, 2, 3.

  Cowel’s “Interpreter,” 248.

  Customs, in early England, 113, note 1;
    _Carta Mercatoria_, 158;
    statutory provision for control by Parliament, Edward III, 177-178;
    persistence of the struggle over customs, 179-180;
    Bate Case, 242-244;
    Book of Rates, 245;
    collection ordered by Charles I, 265;
    omission in Petition of Right, 273.
    See also under New Customs, Ancient Customs.


  Danegeld, origin 991 and early instances, 6-7;
    authority for its exaction, 8-9;
    reimposition under the Conqueror, 15-16;
    under William Rufus, 18;
    Stephen’s promise of abolition, 25-26;
    supposed cause of Woodstock Controversy, 27, note 3;
    its disappearance from the Rolls, 35, and note 1;
    revival as “carucage,” 35, 43.

  _De tallagio non concedendo_, 150-151, 159, 167;
    cited in Petition of Right, 271.

  Disbursements, rejection of commission for, 82-83, 85;
    demand for supervision of, 87-88;
    Matthew Paris’s scheme, 88.

  Distraint of Knighthood, 117, 123;
    resorted to by Charles I, 281;
    made illegal, 299, note 1.

  Divine right, etc., in taxation, 236;
    assertion by Charles I, 266.

  Domesday Survey, 17.

  Duties, Bate Case, 242-244;
    Book of Rates, 245.
    See under Customs.


  Edward I, accession, 107;
    his character, 107-108;
    dispute over foreign service, 134-137;
    his financial preparations for the Gascon expedition, 1297, 140;
    his part in attainment of Parliamentary taxation, 153;
    last years of his reign, 157-159;
    his death, 159.

  Edward II, his accession, 159-160;
    deposition, 169.

  Edward III, accession and coronation, 169-170;
    death of, 188.

  Edward IV, accession, 213;
    taxation and extra-Parliamentary exactions, 214-216.

  Elizabeth, accession, 230;
    character of her government, 231.

  Examination of accounts, see Accounts.

  Excise, granted in lieu of feudal incidents, 302.


  Feudal incidents, done away with under Charles II, 302.
    See also under Great Contract.

  Fifteenth and tenth, becomes a fixed sum, 183, note 5.

  Fitz-Peter, Geoffrey, justiciar of John, his address to the sheriffs,
          50;
    his edict at the Council of St. Albans, 58-59.

  Flambard, Ranulf, 18.

  Folkland, a royal means of revenue, 4.

  Forced loans, a charge against Richard II, 201, 202;
    under Edward IV, 214;
    under Henry VIII, 226-228;
    under Elizabeth, 232;
    under James I, 251, 253;
    under Charles I, 264, 267, 272, 294.

  Foreign service, dispute over, 1297, 134-137, 140-142.

  _Fyrdwite_, a counterpart of scutage, 32.


  Gaveston, 161, 163, 166;
    his death, 166, note 1.

  Germans, early idea of taxation among, 2-3.

  Grants, delay of to end of session, 204.

  Great Contract, 249.

  Grievances, redress of; principle of, in 1297, 144-145;
    delay of grants to end of session, 204;
    principle adhered to, James I, 252, 254-255;
    under Charles I, 262-263.


  Hampden’s Case, 287-291, 293;
    Long Parliament annuls the judgment, 298.

  Henry I, character of his reign, 19;
    his Charter, 19-20;
    attitude toward National Council, 24.

  Henry II, accession of, 26;
    his ancestry, 26;
    his controversy with Becket, 27-30;
    his death, 37.

  Henry III, character of his reign, 71-72;
    his accession and the regency, 72-73;
    declared of age, 78;
    restraint under Provisions of Oxford, 97-99;
    war with Montfort, 100-101;
    his last years, 104-106.

  Henry IV, his accession, 202.

  Henry V, his short reign, 208-209.

  Henry VI, his accession, 209;
    character of his reign, 210;
    his overthrow, 211.

  Henry VII, accession, 217;
    few Parliaments in his reign, 219;
    the “new found” subsidy, 219-220;
    extortions, 220-221.

  Henry VIII, accession and early taxation, 221-222;
    his commissions and benevolences, 224;
    death, 230.

  Heriot, 5.


  Inquest, juries of, utilized in collection of Saladin Tithe, 36;
    in carucage, 44.

  Inquest of Service, 52.

  Initiation of tax levies by Commons, 205-208;
    admission by the Lords, 293;
    after Bill of Rights, 308.


  James I, accession, 237;
    dictates composition of House of Commons, 238;
    Cowel’s “Interpreter,” 248;
    the Great Contract, 249;
    his death, 261.

  James II, accession, 304;
    his absolutism and death, 305.

  John, accession of, 48;
    early taxation, 49-50;
    his scutages, 50-52;
    break with the pope, 51;
    antagonism of the clergy, 55;
    his death, 72.


  King, Anglo-Saxon, personal leader and lord of national land, 3-4;
    his sources of income, 3-5.

  Knights of the shire, summoned to Parliament by Simon de Montfort and
          Henry III, 99-100;
    attend Parliament of 1264, 101;
    Parliament of 1205, 102-103;
    their attendance declared “expedient,” 114-115;
    meet separately, 1294, 125-126.


  Lewes, battle and Mise of, 101.

  Lincoln, Hugh of, his refusal of assent to Richard I’s demands, 44-46.

  Lincoln, Parliament of, 156.

  London, provided for in Magna Carta, 65.

  Lords, House of, meets separately, 189-190.

  Lords Ordainers, 163.


  Magna Carta, scutage a moving cause, 50, 60;
    events leading to, 60-62;
    granting of the charter, 62;
    Cap. 12, 63 and note 1, 64-66;
    provision for London, 65;
    Cap. 14, 66-67;
    king remains supreme authority over taxation, 69-70;
    omissions in renewals, 70;
    renewed 1216, 73;
    second reissue, 74-75;
    reissue, 1224, 80;
    reissue, 1297, see _Confirmatio Cartarum_;
    reconfirmation, 1301, 156.

  Maletolt, definition of, 112;
    in _Confirmatio Cartarum_, 147, 148;
    under Edward III, 172-177;
    statutory abolition, 177;
    subsequent violations and reaffirmations, Edward III, 180-183.

  Money Bills, initiation by Commons, 205-208, 233-235;
    admission by Lords, 293;
    after Bill of Rights, 308.

  Monopolies, under Elizabeth, 232-233;
    complaint in 1604, 238;
    under James I, 253, 255;
    prohibition under James I, 260;
    reëstablished by Charles I, 280, 294.

  Montfort, Simon de, at Great Council of 1244, 87;
    at Council of 1254, 94;
    summons knights of the shire to national assemblies, 100;
    begins civil war, 1263, 100-101;
    his Parliament of 1265, 102-103;
    his reputation as Creator of the House of Commons, 103;
    his death, 104.

  Movables, taxation of, 35;
    Assize of Arms, 35;
    Saladin Tithe, 35-36;
    John’s demand of a thirteenth, 55;
    tax on granted by Common Council, 79-81;
    grant of 1275, 115-116;
    granted at Northampton and York, 118-119;
    grants in 1290, 122;
    in 1294, 126.


  National Council, its powers and composition under Norman Kings, 14;
    its part in taxation, 15-16;
    under Henry I, 22-24;
    its place under Richard I, 43;
    townsmen present at Council of St. Albans, 58;
    representation of shires at Oxford, 59.

  New Customs, 158;
    tentative abolition of, 162, 164;
    abolished in 1311, 165;
    restored for a year, 1322, 168, note 1;
    a regular means of revenue, 1328, 172.

  Normandy, loss of, 1204, 56-57.

  Normans, character of their rule, 12-13.

  Northampton and York, provincial assemblies at, 1283, 117-119.

  Nottingham, Council of, 1194, 42.


  Offices, sale of, under Richard I, 42.

  Oxford, John’s council at, 59.

  Oxford, Provisions of, 97-99.


  Parliament, first use of the name, 95, note 1;
    refusal of aid, 1255, 96;
    knights of the shire summoned to, 99-100;
    they attend Parliament, 1264, 101;
    Simon de Montfort’s Parliament of 1265, 102, 103;
    Parliament of 1269, 105;
    first Parliament of Edward I, 109-110, 114;
    events leading to the Model Parliament, 127-128;
    “What affects all, by all should be approved,” 128-129;
    session of the Model Parliament, 131;
    Parliament of 1296, 132;
    status in 1297, 152;
    process of differentiation in, 154-156 ff.;
    statute providing for taxation solely by Parliament, Edward III,
          177-179;
    increase in power under Edward III, 188-189;
    separate sessions of the houses, 189;
    control over taxes, Richard II, 194-197, 199;
    delay of grants to end of session, 204;
    initiation of tax levies, 205-208;
    of Henry VIII, 219;
    Wolsey’s breach of privilege, 223;
    attitude toward the Bate Case, 244, 246-248;
    the Addled Parliament, 251;
    enactment of the Petition of Right, 269 ff.;
    the Short Parliament, 292-294;
    the Long Parliament, 295-301;
    declares against illegal taxation, 297;
    the Grand Remonstrance, 300-301.

  Personal property, see Movables.

  Petition of Right, 267-273.

  Poll-tax, under Richard II, graduated, 194, 197;
    excites the Rising of the Villeins, 198.

  Prisage, early rate, 113, note 1.

  Purveyance, early analogy of, 5-6.


  _Quo Warranto_, a writ, 116.


  Ralegh, William de, his offer of a disbursing commission, 82-83.

  Redress of grievances, principle of, in 1297, 144-145;
    principle adhered to, James I, 252, 254-255;
    under Charles I, 262-263.

  Reformation, profits of, 228-230.

  Representation, under the charter, 68, 69, 70;
    as it was in Henry III’s National Council, 91-92;
    development of the principle in Simon de Montfort’s Parliament,
          101-104;
    under Edward I, 108-109.

  Richard I, accession of, 38;
    his ransom, 39-40;
    general taxation under royal authority, 41;
    release and subsequent levies, 42-44.

  Richard II, accession, 190;
    summary of taxes in his reign, 194, note 3;
    resignation and deposition, 200-202.

  Richard III, accession, 216;
    benevolences prohibited, 216-217.


  St. Albans, Council of, 58-59.

  Salisbury, Gemôt of, 13, note.

  Scutage, definition of, 30;
    early instances, 31;
    the Great Scutage, 32-33;
    complaint of Archbishop Theobald, 34;
    a cause leading to Magna Carta, 50;
    list of John’s scutages, 51, and note 1;
    fines and other attendant abuses under John, 53-54;
    scutage of 1214 precipitates the movement for the Charter, 60;
    specified in Magna Carta, 64;
    referred to in Henry III’s second reissue, 75;
    practice of scutage by consent, Henry III, 76;
    scutage of 1242, 86.

  Sheriff’s aid, 27, 29.

  Ship-money, a precedent in the Danegeld, 10-11;
    requisition of ships under Charles I, 264;
    first writ, 281;
    its object, 283;
    second and third writs, 284-285;
    extra-judicial opinions, 285-286;
    Hampden’s Case, 287-291, 293;
    new levy, 294;
    declaration of illegality by Long Parliament, 298.

  Shire moots, their utilization in taxing, 21.

  Star Chamber, its utility in forced loans, 251.

  _Statutum de tallagio non concedendo_, 150, 151, 159, 167;
    cited in Petition of Right, 271.

  Stephen, 24-26.

  Subsidy, the “new-found,” 219-220;
    value of under Elizabeth, 234, note 1.

  Supplies, appropriation of, see under Appropriation.


  Tallage, under Henry II and Richard I, 47, note 1;
    definition of, 65, note 1;
    possibly provided against in Magna Carta, 65-66;
    Kirkby’s tallages, 1290, 120;
    tallage not referred to in _Confirmatio Cartarum_, 149;
    the “statute” _De Tallagio non Concedendo_, 150-151;
    tallage of 1304, 159;
    tallage of 1312 resisted, 167;
    revival under Edward III, 170;
    its withdrawal, 171;
    a function of Parliament, 177-178.

  Theobald, Archbishop, his complaint against scutage, 34.

  _Trinoda necessitas_, 4.

  Tudors, character of their reigns, 217-219.

  Tunnage and poundage, in _Carta Mercatoria_, 158;
    given James I for life, 239;
    delay in grant to Charles I, 261, 263;
    arbitrary levies, 273;
    Charles renounces tunnage and poundage, 274-275;
    failure to pass a life allowance, 275-276;
    tumult over the Rolles case, 277;
    resolution against the levies, 278;
    reëstablishment, 280;
    declaration of illegality, 297.


  Villeins, Rising of, 198-199.


  Wallingford, treaty of, 26.

  Walter, Hubert, justiciar, at Richard I’s Council of Oxford, 44-45.

  Westminster, Statute of, 110-111.

  William the Conqueror, character of his rule, 13;
    attitude toward his National Council, 14.

  William and Mary, 306-308.

  William Rufus, character of his reign, 17-18.

  Winchester, Bishop of, his refusal of assent, 69.

  Witenagemot, folkland alienable only by its consent, 4;
    assents to levies of Danegeld, 8;
    powers and composition, 9-11.

  Wolsey, Cardinal, his breach of Parliamentary privilege, 222-224.

  Woodstock, Controversy of, 27-30.

  Wool, a custom on, 1275, 111-113;
    seizure of, 1294, 124;
    seizure of, 1297, 136;
    tax on, under _Confirmatio Cartarum_, 147-148;
    increased duties to foreign merchants, 1302, 158;
    rate reëstablished, 165;
    assaults of Edward III upon the wool customs, 172-177;
    statute for Parliamentary control, 177;
    practice at variance with it, 180-183;
    proceeds of a subsidy in time of Richard II, 197.
    See also New Customs, Ancient Customs.


  York, Geoffrey of, refuses assent to John’s thirteenth, 56.




FOOTNOTES:

[1] Tacitus, _Germania_, cap. xv. “Mos est civitatibus ultro ac viritim
conferre principibus vel armentorum vel frugum, quod pro honore
acceptum etiam necessitatibus subvenit.”

[2] Vinogradoff, _Growth of the Manor_, 142, 143.

[3] The _heriot_, unlike the feudal incident known to the Normans as a
_relief_, was a repayment to the king upon the death of a vassal, of
the various accoutrements with which he had been endowed. The statute
of Cnut II, § 72, fixes the heriot of an earl at eight horses, four
suits of armor, and two hundred mancuses of gold. The heriot varied in
amount according to the rank of the deceased vassal. The statute is
given in Stubbs, _Select Charters_, 74.

[4] Florentii Wigorniensis, _Chronicon ex Chronicis_, a. 991, p. 149.

[5] “This tax was levied by reference to the hides into which in the
various hundreds of the shire, land was divided for the purposes of
taxation.” The hide was the equivalent of 100 or 120 acres. The rate
was one to four shillings, as occasion required. 1 Dowell, _History of
Taxation and Taxes in England_, 8.

[6] Amount in 1002, £24,000.--Flor. Wig. a. 1002, p. 155. Amount in
1007, £36,000.--Flor. Wig. a. 1007, p. 159. Amount in 1011 not stated.

[7] 1 Dowell, _History of Taxation and Taxes in England_, 10.

[8] 1 Roger of Hoveden, 110.

[9] Decretum est primum iam ut solveretur tributum Danicis viris,
propter magnos horrores quos incusserunt incolis maritimis; in
primis nempe, X milia librarum. Illud consilium constituit Siricus
Archiepiscopus. _Chron. Sax._ a. 991.

[10] Tunc rex Aegelredus, procerum suorum consilio, ad eos legatos
misit, promittens tributum et stipendium ea conventione illis se
daturum, ut a sua crudelitate omnino desisterunt. Flor. Wig. 151, 152;
a. 994.

[11] Flor. Wig. 155, 159, 163; a. 1002, 1007, 1011.

[12] Medley, _English Constitutional History_, 117, 118.

[13] 2 Kemble, _Saxons in England_, 204-240.

[14] At the great Gemôt of Salisbury, 1086, William put an end to the
disrupting effects of subinfeudation by causing all holders of land,
whether their tenure was mediate or immediate of him to swear primary
allegiance to the king.

[15] 1 Stubbs, _Const. Hist. Eng._ 385, note.

[16] 2 Flor. Wig. 17, a. 1084; and 1 Rogeri de Hoveden, 139. “Rex
Anglorum Willelmus de unaquaque hida per Angliam sex solidos accepit.”
This rate of six shillings the hide was three times as great as the
amount under the Saxons.

[17] 2 Roger of Wendover, 23, a. 1084. “Having extorted large sums of
money from all ranks where he could find any cause just or unjust, he
crossed the sea into Normandy.”

[18] _Chron. Sax._ a. 1083.

[19] 1 Stubbs, _Const. Hist. Eng._ 303.

[20] Aside from the reimposed Danegeld, William derived an annual
income of £20,000 from the royal lands, and an amount difficult of
estimation from the feudal dues and incidents.

[21] 2 Flor. Wig. 35, a. 1094.

[22] § 11. Militibus qui per loricas terras suas defendunt, terras
dominicarum carrucarum suarum quietas ab omnibus gildis, et omni opere,
proprio dono meo concedo, ut sicut tam magno allevamine alleviati
sint, ita se equis et armis bene instruant ad servitium meum et ad
defensionem regni mei. Stubbs, _Select Charters_, 101. The translation
of the Charter is in Adams and Stephens, _Select Documents of English
Constitutional History_, 4-6.

[23] Ego enim, quando voluero, faciam ea satis summonere propter mea
dominica necessaria ad voluntatem meam. Stubbs, _Select Charters_, 104.

[24] Cf. 1 Stubbs, _Const. Hist. Eng._ 429.

[25] 2 _Chronicon Monasterii de Abingdon_, 113, quoted by 1 Stubbs,
_Const. Hist. Eng._ 429, note 3, as follows: “H. rex Anglorum R.
episcopo, et Herberto camerario et Hugoni de Boehelanda, salutem.
Sciatis quod clamo quietas V hidas abbatis Faricii de Abendona de
eleemosyna de Wrtha, de omnibus rebus, et nominatim de isto auxilio
quod barones mihi dederunt.”

[26] _The Saxon Chronicle_ upon Henry’s taxes:

A. 1103. This was a year of much distress from the manifold taxes.

A. 1104. It is not easy to describe the misery of this land, which it
suffered at this time through the various and manifold oppressions and
taxes that never ceased or slackened.

A. 1105. This was a year of great distress from the failure of the
fruits, and from the manifold taxes which never ceased.

A. 1110. This was a year of much distress from the taxes which the king
raised for his daughter’s dowry.

A. 1118. England paid dearly for all this (i. e., the Norman war) by
the manifold taxes which ceased not all this year.

A. 1124. Full heavy a year was this; he who had any property was
bereaved of it by heavy taxes and assessments, and he who had none,
starved with hunger.

From the edition of J. A. Giles.

[27] _Chron. Sax._ a. 1137.

[28] Henry of Huntingdon’s _Chronicle_, a. 1135. Trans. by Thomas
Forester, 264.

[29] Henry II was the first king since Edward the Confessor in whose
veins ran the blood of the Saxon monarchs, being the grandson of
Matilda, wife of Henry I. Matilda was great-granddaughter of Edmund
Ironside, the son of Ethelred the Unready.

[30] 1 Stubbs, _Const. Hist. Eng._ 500.

[31] Grim, _V. S. Thomæ_, 21, 22, in Stubbs, _Sel. Chart._ 129.

[32] Bishop Stubbs (1 _Const. Hist. Eng._ 500) believes this struggle
between Henry II and Becket to have been the deathblow to the levy of
the Danegeld, which is not noted in the Pipe Rolls after 1163. J. H.
Round [_Feudal England_, 497-502, in the paper “The Alleged Dispute
on Danegeld (1163)”], effectually establishes his contention that the
tax in question was not the Danegeld, but the “auxilium vicecomitis”
or “Sheriff’s aid,” which was a customary, variable charge paid over
locally to the sheriffs in payment for their services.

[33] Round, _Feudal England_, 501.

[34] Baldwin, _Scutage and Knight Service in England_, 12.

[35] 1 Stubbs, _Const. Hist. Eng._ 491.

[36] H. W. C. Davis, _England under the Normans and Angevins_, 205.

[37] Miss Kate Norgate, _Angevin Kings_, 432.

[38] 1 Stubbs, _Const. Hist. Eng._ 494.

[39] Baldwin, _Scutage and Knight Service in England_, 5.

[40] 2 Stubbs, ed. _Gesta Regis Henrici Secundi Benedicti Abbatis_,
preface xcv-xcvii, cites other instances of scutage in this reign:
1161, for debts incurred in the Welsh war; 1172, for the expedition
into Ireland; 1186, for the expedition into Galloway against the Irish
prince, Ronald.

[41] Gervas, c. 1381, in Stubbs, _Select Charters_, 129: Hoc anno
(1159) rex Henricus scutagium sive scutagium de Anglia accepit, cujus
summa fuit centum millia et quater viginti millia librarum argenti.

[42] _Liber Rubeus de Scaccario_, Hubert Hall, editor, 6, 16-18.

[43] John of Salisbury, ep. 128, noted by 1 Stubbs, _Const. Hist. Eng._
492, note 1.

[44] Round, _Feudal England_, 274.

[45] The Danegeld disappears from the Rolls in 1163. It persists,
probably, however, as a “donum” or an “auxilium.” The “carucage” of
Richard I is the Danegeld under another name.

[46] 2 Benedict, 278. Also in Stubbs, _Select Charters_, 153.

[47] 2 Benedict, 33.

[48] Beside the instances of taxation noted above, the following are
noteworthy: 1168, a regular feudal aid, _pur fille marier_ of one mark
on the knight’s fee; 1173, exchequer officers held courts and exacted
at the same time a tallage throughout the country.

[49] The three auxilia are: For the ransom of the king, for the
marriage of the king’s eldest daughter, and for the knighting of his
eldest son.

[50] Other scutages in this reign were: 1189, 10_s._ on the knight’s
fee for a pretended expedition into Wales; 1195, 20_s._ on the knight’s
fee from those who did not follow the king to Normandy; 1196, 20_s._
for the same reason. 1 Dowell, _Taxation and Taxes_, 41.

[51] 3 Rogeri de Hoveden, _Chronica_, W. Stubbs, ed, 209-225.

[52] This carucage appears in the Rolls under the year 1194. It was
demanded at the Council of Nottingham.

[53] Rogeri de Hoveden, preface to vol. IV, lxxxii-lxxxvii.

[54] The mark was the equivalent of two-thirds of a pound.

[55] Carucage, a land-tax based upon the _carucate_, “the quantity
of land that could be ploughed by one plough, _caruca_, full team of
eight oxen in a season.” 1 Dowell, _Taxation and Taxes_, p. 35. Roger
of Hoveden sets down the equivalent of the carucate as being 100
acres,--iv. 47.

[56] 3 Rogeri de Hovoden, 242.

[57] 1 Stubbs, _Const. Hist. Eng._ 548.

[58] 4 Rogeri de Hoveden, 40.

[59] The implication in _Vita Magna S. Hugonis_ is to this effect. Vid.
Round. _Feudal England_, 528 et seq.

[60] _Vita Magna S. Hugonis_, 248, in Stubbs, _Select Charters_, 255.

[61] Beside the instances of taxation cited above, Richard exacted
from the tenants of the royal demesne a tax upon movables known as
_tallage_. It was semi-feudal in nature, being taken from the dwellers
on land held immediately of the king, and consequently the authority
of the tax for the time was far beyond question, save as the turbulent
elements in the urban populations might assume it as a pretext for a
riot. Henry II levied this tax in 1168, 1173; Richard in 1189 and 1194,
and probably upon other occasions. These are the only references to
tallages in the Rolls of these two reigns. The term appears frequently
in later records.

[62] 4 Rogeri de Hoveden, 107.

[63] 4 Rogeri de Hoveden, 188, 189.

[64] Miss Kate Norgate, _John Lackland_, 123, note 1, gives a corrected
version of the list of scutages given in 1 _Liber Rubeus de Scaccario_,
10-12:

  First scutage of John 1198-1199, 2 marks on the knight’s fee.
  Second   ”     ”   ”  1200-1201, 2   ”    ”  ”     ”      ”
  Third    ”     ”   ”  1201-1202, 2   ”    ”  ”     ”      ”
  Fourth   ”     ”   ”  1202-1203, 2   ”    ”  ”     ”      ”
  Fifth    ”     ”   ”  1203-1204, 2   ”    ”  ”     ”      ”
  Sixth    ”     ”   ”  1204-1205, 2   ”    ”  ”     ”      ”
  Seventh  ”     ”   ”  1205-1206, 20 shillings      ”      ”
  Eighth   ”     ”   ”  1209-1210, 2 marks  ”  ”     ”      ”
  Ninth    ”     ”   ”  1210-1211, 2   ”    ”  ”     ”      ”
  Tenth    ”     ”   ”  1210-1211, 20 shillings      ”      ”
  Eleventh ”     ”   ”  1213-1214, 3 marks  ”  ”     ”      ”

[65] See McKechnie, _Magna Carta_, 91-93.

[66] Miss Norgate, _John Lackland_, 122.

[67] Miss Norgate, _John Lackland_, 123-124.

[68] Ann. Waverl, a. 1207, 258. In Stubbs, _Sel. Chart._ 273.

[69] In 1204 John “took” a seventh of movables. 3 Rogeri de Wendover,
173.

[70] 3 Rogeri de Wendover, 210.

[71] In Stubbs, _Select Charters_, 283.

[72] 1 Stubbs, _Const. Hist. Eng._ 566.

[73] 3 Rogeri de Wendover, 262.

[74] The writ is in Stubbs, _Select Charters_, 287.

[75] 2 _Memoriale_ Walteri de Coventria, 217. “Dicentes se propter
terras quas in Anglia tenent non debere regem extra regnum sequi nec
ipsum euntem scutagio juvare.”

[76] See McKechnie, _Magna Carta_, 144-150.

[77] Chapter 12. No scutage or aid shall be imposed in our kingdom,
except by the common council of our kingdom, except for the ransoming
of our body, for the making of our oldest son a knight, and for once
marrying our oldest daughter, and for these purposes it shall be only
a reasonable aid; in the same way it shall be done concerning the aids
of the city of London. Adams and Stephens, _Select Documents of Eng.
Const. Hist._ 44. Latin text, Stubbs, _Select Charters_, 298.

[78] Below, 66.

[79] 1 Stubbs, _Const. Hist. Eng._ 573.

[80] Taswell-Langmead, _Eng. Const. Hist._ 101.

[81] See McKechnie, _Magna Carta_, 274, 284, 291-301.

[82] “Tallage was a tax levied at a feudal lord’s arbitrary will upon
more or less servile dependants, who had neither power nor right to
refuse.” McKechnie, _Magna Carta_, 228.

[83] Chapter 14, “And for holding a common council of the kingdom
concerning the assessment of an aid otherwise than in the three cases
mentioned above, or concerning the assessment of a scutage, we shall
cause to be summoned the archbishops, bishops, abbots, earls, and
greater barons by our letters individually; and besides we shall cause
to be summoned generally, by our sheriffs and bailiffs all those who
hold from us in chief, for a certain day, that is at the end of forty
days at least, and for a certain place; and in all the letters of that
summons, we will express the cause of the summons, and when the summons
has thus been given the business shall proceed on the appointed day, on
the advice of those who shall be present, even if not all of those who
were summoned have come.” Adams and Stephens, _Select Documents_, 44.
The Latin text is in Stubbs, _Select Charters_, 299.

[84] Cap. 42 of this reissue of the Charter states the promise of the
king to return to the matter of the levying of scutages and aids, when
the occasion should be more propitious. McKechnie, _Magna Carta_,
168-169.

[85] Cap. 44. Scutagium decetero capiatur sicut capi consuevit tempore,
regis Henrici avi nostri. McKechnie, _Magna Carta_, 585, where also is
the text of the entire reissue.

[86] McKechnie, _Magna Carta_, 173-174.

[87] 1 _Rotuli Litterarum Clausarum_, 349.

[88] 2 Stubbs, _Const. Hist. Eng._ 30, note 1. He bases his belief on
the fact that “the orders for the collecting this scutage were issued
Feb. 22, the same day on which the writs for proclaiming the charters
are dated,” and cites 1 _Rot. Claus._ 377. In the same note he records
the following instances of taxation:

“June 7, 1217, the king mentions a carucage, hidage and aid, ‘quod de
præcepto nostro assisum est.’ 1 _Rot. Claus._ 310.”

“Jan. 9, 1218, Henry mentions a carucage and hidage, ‘quod assisum fuit
per consilium regni nostri.’ 1 _Rot. Claus._ 348.

“Jan. 17, Henry mentions a scutage of two marks on the fee, ‘quod
exegimus,’ and

“Jan. 24, ‘scutagium de omnibus feodis militum quæ de nobis tenent in
capite, quod ultima assisum fuit per commune consilium regni nostri.’ 1
_Rot. Claus._ 349.”

[89] McKechnie, _Magna Carta_, 181, quotes Matthew Paris, 3 _Chron.
Maj._ 76, “Libertates quas petitis quia violenter extortæ fuerunt, non
debent de jure observari.”

[90] 2 Stubbs, _Const. Hist. Eng._ 37-38, notes the following taxes:

1. Carucage of 2 shillings, taken at the coronation of 1220. _Ann.
Wavereley_, quoted in Stubbs, _Select Charters_, 321, gives no hint of
the authority for the levy save that the king “accepit” it. The writ
(_Sel. Chart._ 351) states that it was granted by the Council.

2. Scutage of 10 shillings after the capture of Biham, granted by the
Council, 1221. 1 _Rot. Claus._ 458.

3. Scutage of 2 marks for Welsh War, 1223.

4. Scutage of 2 marks for siege of Bedford.

5. Contribution to crusade 1223, assented to by Council. 1 _Rot.
Claus._ 516.

[91] 2 Matt. Par., _Hist. Angl._ 268-269.

[92] Stubbs, _Select Charters_, 354. “Pro hac autem concessione et
donatione libertatum istarum et aliarum libertatum contentarum in carta
nostra de libertatibus forestæ, archiepiscopi, episcopi, abbates,
priores, comites, barones, milites, libere tenentes et omnes de regno
nostro, dederunt nobis quintam decimam partem omnium mobilium suorum.”

[93] 1 Matt. Par. 339.

[94] Instances of recent taxation are:

1. Scutages 1229, 1230, 1231, each for military expeditions. 2 Stubbs,
_Const. Hist. Eng._ 42, note 3.

2. A tenth of all property 1229. Refused by the barons and paid by the
clergy. 2 Matt. Par. _Hist. Angl._ 316.

3. Tallages 1227, 1230, 1234. 1 Dowell, _Taxation and Taxes_, 52.

4. A fortieth of movables, 14 Sept., 1232, 24,712 marks granted by the
Council. 2 Matt. Par. _Hist. Angl._ 345.

5. Two marks on the knight’s fee on occasion of the marriage of the
king’s sister, 1235, granted by the Commune Concilium. 1 Madox, _Hist.
Ex._ 593.

[95] 2 Matt. Par. _Hist. Angl._ 393-394.

[96] The writ is in Stubbs, _Sel. Chart._ 366.

[97] 1 Matt. Par. _Chron. Maj._ trans. by J. A. Giles, 397-404.

[98] 2 Matt. Par. _Hist. Angl._ 466.

[99] Matthew Paris is not clear as to the time of year. 2 Stubbs,
_Const. Hist. Eng._ 62, note 3, fixes the date as between 9th Sept. and
18th Nov.

[100] 2 Matt. Par. _Chron. Maj._ trans. Giles, 7-9.

[101] 2 Matt. Par. _Chron. Maj._ trans. Giles, 11-12.

[102] The following taxes and refusals are variously cited:

1245. Grant of an aid of 20 shillings “ad filiam maritandam.” 1 Madox,
_Hist. Ex._ 594.

1246. Scutage of three marks on the fee. 2 Stubbs, _Const. Hist. Eng._
65, note 5, citing Pipe Roll of 1246.

1248. Noted above.

1249. Appointment of justiciar, chancellor, and treasurer demanded.
Failure. 2 Matt. Par. _Chron. Maj._ trans. Giles, 308-309.

1252. The Pope held Henry to his promise of a Crusade made in 1250, and
authorized him to exact a tenth of the revenues of the clergy for three
years. The clergy delayed. Henry turned to the barons and asked for a
scutage; the barons answered that their reply would depend upon the
prelates. 2 Matt. Par. _Chron. Maj._ trans. Giles, 518-527.

1253. Debate on the above. At last Henry obtained his tenth from
the clergy and an aid of 3 marks from the tenants-in-chief for the
knighting of his son. The condition was the confirmation of the
Charters, and a great oath for his faithful observance of them. 3 Matt.
Par. _Chron. Maj._ trans. Giles, 22-24.

[103] 2 Matt. Par. _Chron. Maj._ trans. Giles, 254-257, 266-267.

[104] 2 Matt. Par. _Chron. Maj._ trans. Giles, 287.

[105] One of the royal writs ran thus:

“Rex Vicecomiti Bedeford, et Bukingeham., salutem.... Tibi districte
præcipimus, quod præter omnes prædictos venire facias coram consilio
nostro apud Westmonasterium in quindena Paschæ proximo futuri,
quatuor legales et discretos milites de comitatibus prædictis quos
iidem comitatus ad hoc elgerint, vice omnium et singulorum eorundem
comitatuum, videlicet duos de uno comitatu et duos de alio, ad
providendum, una cum militibus aliorum comitatuum quos ad eundem diem
vocari fecimus, quale auxilium nobis in tanta necessitate impendere
voluerint. Et tu ipse militibus et aliis de comitatibus prædictis
necessitatem nostram et tam urgens negotium nostrum diligenter exponas,
et eos ad competens auxilium nobis ad præsens impendendum efficaciter
inducas; ita quod prædicti quatuor milites præfato consilio nostro ad
prædictum terminum præcise respondere possint super prædicto auxilio
pro singulis comitatuum prædictorum.” Stubbs, _Select Charters_, 376.
Translation in Adams and Stephens, _Select Documents_, 55.

[106] 3 Matt. Par. _Chron. Maj._ trans. Giles, 75.

[107] “To a general assembly of the barons at London in 1246, the name
of Parliament, which had previously been indiscriminately ascribed
to assemblies of various kinds, is for the first time given by a
contemporary chronicler, Matthew Paris. Henceforth it became specially
though not exclusively, the appellation of the National Council.”
Taswell-Langmead, _Eng. Const. Hist._ 187.

[108] 3 Matt. Par. _Chron. Maj._ trans. Giles, 119.

[109] 3 Matt. Par. _Chron. Maj._ trans. Giles, 141-142.

[110] Cf. 2 Stubbs, _Const. Hist. Eng._ 70-73, and references there
cited.

[111] 3 Matt. Par. _Chron. Maj._ trans. Giles, 267-268, 271-272.

[112] 2 Stubbs, _Const. Hist. Eng._ 76-80; Stubbs, _Sel. Chart._ 378
ff.; Taswell-Langmead, _Eng. Const. Hist._ 188-189; 3 Matt. Par.
_Chron. Maj._ trans. Giles, 285-288.

[113] Stubbs, _Select Charters_, 382-387, especially caps. 22, 23.

[114] 1 Rymer, _Foedera_, part 2, 62.

[115] Stubbs, _Sel. Chart._ 405.

[116] Louis’s award was the so-called “Mise of Amiens.” Given in
Stubbs, _Sel. Chart._ 406. 1 Rymer, _Foedera_, part 2 83.

[117] Stubbs, _Sel. Chart._ 334; _Chron. Rishanger_, Camden Society, 37.

[118] 1 Rymer, _Foedera_, part 2, 88-89.

[119] This Parliament and the scheme of government which was drawn up
at the session is the subject of considerable dispute. See 2 Stubbs,
_Const. Hist. Eng._ 93-95; and Medley, _Eng. Const. Hist._ 133-134. The
scheme itself is given in Stubbs, _Sel. Chart._ 412 ff, and in 1 Rymer,
_Foedera_, part 2, 89.

[120] The writ is in part as follows: “Item mandatum est singulis
vicecomitibus per Angliam quod venire faciant duos milites de
legalibus, probioribus, et discretioribus militibus singulorum
comitatuum ad regem Londoniis in octavis prædictis in forma supradicta.

“Item in forma prædicta scribitur civibus Eboraci, civibus Lincolniæ,
et ceteris burgis Angliæ, quod mittant in forma prædicta duos
de discretioribus, legalioribus et probioribus tam civibus quam
burgensibus.

“Item in forma prædicta mandatum est baronibus et probis hominibus
Quinque Portuum....” Stubbs, _Sel. Charters_, 415; 1 Rymer, _Foedera_,
part 2, 93.

[121] For a fuller discussion of this rather iconoclastic view of Simon
de Montfort, see Medley, _Eng. Const. Hist._ 134.

[122] T. Wykes, _Chron._ a. 1269, 226-227, in Stubbs, _Sel. Chart._ 337.

[123] _Ann. Winton._ a. 1273, 113; Stubbs, _Sel. Chart._ 429.

[124] _Ann. Winton._ a. 1275, 119; Stubbs, _Sel. Chart._ 430.

[125] Stubbs, _Sel. Chart._ 450.

[126] “... archiepiscopi, episcopi, et alii prælati regni Angliæ ac
comites, barones, et nos (William, Earl of Pembroke) et communitate
ejusdem regni ad instantiam et rogatum mercatorum pluribus de causis
unanimiter concesserimus magnifico principi et domino nostro carissimo
domino Edwardo Dei gratia regi Angliæ illustri, pro nobis et hæredibus
nostris, dimidiam marcam de quolibet sacco lanæ et dimidiam marcam
pro singulis trescentis pellibus lanutis quæ faciunt unum saccum, et
unam marcam de quolibet lesta coriorum, exeuntibus regnum Angliæ....”
Stubbs, _Sel. Chart._ 451; Adams and Stephens, _Sel. Doc._ 69,
translation.

[127] See 1 Hubert Hall, _Customs Revenue of England_, 65-68; 2,
117-118; Medley, _Eng. Const. Hist._ 517-518.

[128] Wool, hides and leather formed the bulk of the early exports
from England. Wine was the principal import. It was on these articles
of merchandise, and such others as the merchants brought in and took
out, that duties had been charged since early times. The taxes had
become customary and were spoken of as “consuetudines,” or customs. The
basis for the exaction was the understanding that the merchants, most
of them foreigners, should be given protection by the king. The early
prisage on wine amounted to one cask from every cargo of from ten to
twenty casks, arriving at a port of England. From ships carrying more
than twenty casks, two casks were exacted. Sometimes the duty instead
of being made in wine was compounded for in money. The amount of the
export tax on wool in the beginning is not known. In merchandise of
other sorts, the payment amounted to a tenth or a fifteenth of the
value of the goods.

Magna Carta abolished illegal exactions on goods retaining only the
“ancient and lawful customs” above mentioned. Taxable commodities were
wine, wool, and general merchandise. In many instances, in spite of
the prohibitions in the Charter, the customs amounted to confiscation.
Until the time of Edward I there was unending irregularity in the
management of the customs. Merchant strangers, by Cap. 41 of the Great
Charter were to have “safe and secure exit from England, and entry to
England ... buying and selling by the ancient and right customs, quit
from all evil Tolls.”

[129] “Edwardus Dei Gratia Rex Angliæ dominus Hiberniæ et dux
Aquitanniæ vicecomiti Kanciæ salutem. Cum prælatis et magnatibus
regni nostri mandaverimus ut ipsi parliamento nostro, quod apud
Westmonasterium in quindena Sancti Michælis proxime futura tenebimus.
Domino concedenti intersint ad tractandum nobiscum tam super statum
regni nostri quam super quibusdam negotiis nostris quæ eis exponemus
ibidem, et expediens sit quod duo milites de comitatu prædicto de
discretioribus et legalioribus militibus ejusdem comitatus intersint
eidem parliamento, ex causis prædictis tibi præcipimus quod in pleno
comitatu tuo de assensu ejusdem comitatus eligi facias dictos duos
militis et eos ad nos usque Westmonasterium pro communitate dicti
comitatus venire facias ad dictum diem ad tractandum nobiscum et cum
prædictis prælatis et magnatibus super negotiis prædictis. Et hoc non
omittas....” 2 Stubbs, _Const. Hist. Eng._ 234, note 5.

[130] 1 _Rotuli Parliamentorum_, 224.

[131] _Ann._ T. Wykes, 274; Stubbs, _Sel. Chart._ 431.

[132] The statute of Gloucester, passed in 1278, provided for the
regulation of territorial franchises. In accordance with it, the
itinerant justices were to inquire by what warrant certain franchises
were held, and the writ “quo warranto” was issued in each case. Stubbs,
2 _Const. Hist. Eng._ 114-115.

[133] Writ for distraint of knighthood. 1 Stubbs, _Sel. Chart._ 457.

[134] Letter of credence for a royal commissioner to raise an aid.
Stubbs, _Sel. Chart._ 464.

[135] Stubbs, _Sel. Chart._ 465-468.

[136] _Ann. Dunst._ 294, in Stubbs, _Sel. Chart._ 433.

[137] Stubbs, _Sel. Chart._ 460.

[138] 2 Stubbs, _Const. Hist. Eng._ 124, and authorities there cited.

[139] _Cont._ Flor. Wig. 235. The scutage was for forty shillings on
the knights fee.

[140] _Ann. Osney_, 316, in Stubbs, _Sel. Chart._. 434-435.

[141] 2 Stubbs, _Const. Hist. Eng._ 545.

[142] “.... magnates et proceres tunc in parliamento existentes, pro se
et communitate totius regni quantum in ipsis est, concesserunt domino
regi....” etc. Stubbs, _Sel. Chart._ 477; 1 _Rot. Parl._ 25.

[143] The boroughs and city of London paid this tax, though they were
without special representation. The writ of summons is in Stubbs, _Sel.
Chart._ 477.

[144] _Ann. Osney_, 326, and _Ann. Dunst._ 362, in Stubbs, _Sel.
Chart._ 435.

[145] _Cont._ Flor. Wig. 243.

[146] 1 Rymer, _Foedera_, part 3, 80-81; _Cont._ Flor. Wig. 264.

[147] _Cont._ Flor. Wig. 266.

[148] Matth. Westmon. _Flores_, 421.

[149] So Bishop Stubbs conjectures, 2 _Const. Hist. Eng._ 131.

[150] Barth. Cotton, _De Rege Edwardo I_, 246.

[151] 2 Walt. de Hemingb. 53-54.

[152] 2 Walt. de Hemingb. 55-57.

[153] Stubbs, _Sel. Chart._ 479-482.

[154] Barth. Cotton, 254 et. seq.; 2 Walt. de Hemingb. 57.

[155] The character of this tax, indeed its very existence, is
questioned. Matthew of Westminster (422), mentions a tax on the
towns of “the sixth penny.” It may have been either a tallage or a
tax by special negotiation, or it may have been granted by the shire
representatives on the theory that the towns were included within their
shires, though this is most unlikely. See Taswell-Langmead, _Eng.
Const. Hist._ 199; 2 Stubbs, _Const. Hist. Eng._ 132; Stubbs, _Sel.
Chart._ 480, 483-484.

[156] Stubbs. _Sel. Chart._ 482.

[157] “Sicut lex justissima, provida circumspectione sacrorum principum
stabilita, hortatur et statuit ut quod omnes tangit ab omnibus
approbetur, sic et nimis evidenter ut communibus periculis per remedia
provisa communiter obvietur.... Præmunientes priorem et capitulum
ecclesiæ vestræ, archidiacones, totumque clerum vestræ diocesis,
facientes quod iidem prior et archidiaconi in propriis personis suis,
et dictum capitulum per unum, idemque clerus per duos procuratores
idoneos, plenam et sufficientem potestatem ab ipsis capitulo et clero
habentes ... ad tractandum, ordinandum et faciendum....” Stubbs, _Sel.
Chart._ 484. Translation in Adams and Stephens, _Sel. Doc._ 82.

[158] The phrase occurs in the codes of Justinian. Cod. V, lix, 5;
Taswell-Langmead, _Eng. Const. Hist._ 200, note 1.

[159] Stubbs, _Sel. Chart._ 485. Translation Adams and Stephens, _Sel.
Doc._ 83.

[160] “... Tibi præcipimus firmiter injungentes quod de comitatu
prædicto duos milites et de qualibet civitate ejusdem comitatus duos
cives, et de quolibet burgo duos burgenses, de discretioribus et
ad laboradum potentioribus, sine dilatione eligi, et eos ad nos ad
prædictos diem et locum venire facias: ita quod dicti milites plenam et
sufficientem potestatem pro se et communitate comitatus prædicti, et
dicti cives et burgenses pro se et communitate civitatum et burgorum
prædictorum divisim ab ipsis tunc ibidem habeant, ad faciendum quod
tunc de communi consilio ordinabitur in præmissis; ita quod pro defectu
hujusmodi potestatis negotium prædictum infectum non remaneant quoquo
modo.” Stubbs, _Sel. Chart._ 486. Translation Adams and Stephens, _Sel.
Doc._ 83.

[161] In the fourteenth century the clergy ceased to act in Parliament.
They preferred to make their grants in separate convocations, and
continued to do so until 1664 when they were merged with the other two
estates. From the reign of Henry VIII, the grants of the clergy were
subject to parliamentary confirmation. Taswell-Langmead, _Eng. Const.
Hist._ 201-202.

[162] Barth. Cotton, 299.

[163] Barth. Cotton, 299.

[164] The bull “Clericis laicos,” published 24th February, 1296,
by Boniface VIII, was levelled at the taxation of the clergy by
temporal powers; it prohibited the clergy from paying and the secular
powers from receiving contributions by way of taxes, under pain of
excommunication. The bull is given in 1 Rymer, _Foedera_, part 3, p.
156, and in Adams and Stephens, _Sel. Doc._ 84, in translation.

[165] Barth. Cotton. 315, 317-319.

[166] Walt. de Hemingb., 121.

[167] Matt. Westm., 430, in Stubbs, _Sel. Chart._ 441.

[168] 1 Rymer, _Foedera_, part 3, 179.

[169] 2 Walt, de Hemingb., 121, 122.

[170] Matt. Westm., 430, in Stubbs, _Sel. Chart._ 441. The restitution
of Winchelsey’s baronies occurred after this scene 19th July, according
to _Chron. Cant. Ang. Sac._ noted in 2 Stubbs, _Const. Hist. Eng._ 141.

[171] Matt. Westm., 430, in Stubbs, _Sel. Chart._ 441, 442.

[172] Barth. Cotton, 338; 1 _Rot. Parl._ 239.

[173] Barth. Cotton, 334.

[174] W. Rishanger, _Chron._ 175, in Stubbs, _Sel. Chart._ 442, 443.

[175] Matt. Westm., 430; W. Rishanger, 178. Both in Stubbs, _Sel.
Chart._ 444.

[176] 1 Rymer, _Foedera_, part 3, 189.

[177] Barth. Cotton, 336.

[178] 1 Rymer, _Foedera_, part 3, 190.

[179] 2 Walt. de Hemingb. 147, 148.

[180] 2 Stubbs, _Const. Hist. Eng._ 147.

[181] “Clericis laicos,” it will be remembered, prohibited compliance
by the clergy with demands by the crown for taxation. It is evident
that a gift by the clergy for the defense of the realm, provided it be
not a compliant, but an initial act, was not a contravention of the
bull.

[182] Barth. Cotton, 339.

[183] “5. And for so much as divers people of our realm are in fear
that the aids and tasks which they have given to us beforetime towards
our wars and other business, of their own grant and good will,
howsoever they were made, might turn to be a bondage to them and their
heirs, because they might be at another time found in the rolls, and so
likewise the prises taken throughout the realm by our ministers in our
name; we have granted for us and our heirs, that we shall not draw such
aids, tasks, nor prises into a custom, for anything that hath been done
heretofore, or that may be found by roll or in any other manner.” Adams
and Stephens, _Sel. Doc._ 87. Stubbs, _Sel. Chart._ 495 (French text)
and 496 (translation). Original in 2 Walt. de Hemingb. 149.

[184] “6. Moreover we have granted for us and our heirs as well to
archbishops, bishops, abbots, priors, and other folk of holy Church, as
also to earls, barons, and to all the commonalty of the land, that for
no business from henceforth we shall take of our realm such manner of
aids, tasks, nor prises, but by the common assent of all the realm, and
for the common profit thereof, saving the ancient aids and prises due
and accustomed.

“And for so much as the mere part of the commonalty of the realm
find themselves sore grieved with the maletolt of wools, that is to
wit, a toll of forty shillings for every sack of wool, and have made
petition to us to release the same; we at their requests have clearly
released it, and have granted that we will not take such thing nor any
other without their common assent and good will; saving to us and our
heirs the custom of wools, skins, and leather, granted before by the
commonalty aforesaid. In witness of which things we have caused these
our letters to be made patents.” Adams and Stephens, _Sel. Doc._ 87;
Stubbs, _Sel. Chart._ 495 (French text), and 496 (translation).

[185] 2 Walt. de Hemingb. 152, 153.

[186] The statute is in Adams and Stephens, _Sel. Doc._ 88, translated.
The Latin text is in Stubbs, _Sel. Chart._ 497, 498.

[187] In this connection see McKechnie, _Magna Carta_, 281; 2 Stubbs,
_Const. Hist. Eng._ 148-150, and _Sel. Chart._ 497; Medley, _Eng.
Const. Hist._ 507, 508.

[188] _Patent Rolls_, 24th Oct., 1301, in Stubbs, _Sel. Chart._ 446.

[189] See 2 Stubbs, _Const. Hist. Eng._ 156-158, citing 1
_Parliamentary Writs_, 104.

[190] 2 Walt. de Hemingb. 223.

[191] 1 _Parl. Writs_, 134-135, in Stubbs, _Sel. Chart._ 500-501.

[192] Carta Mercatoria, in Hall, 1 _History of the Customs_, Appendix,
202-208; 1 ibid. 69-70.

[193] 2 Walt. de Hemingb. 233; _Patent Rolls_, a. 1304, 6th Feb., in
Stubbs, _Sel. Chart._ 447.

[194] 1 _Rot. Parl._ 161-162.

[195] The only other instance of taxation to be noted was the aid
granted in 1306 by knights and barons (a thirtieth), and by citizens
and burgesses (a twentieth), on the occasion of knighting the king’s
son. 1 Rymer, _Foedera_, part 4, 48.

[196] 1 Rymer, _Foedera_, part 4, 112. Also, Stubbs, 2 _Const. Hist.
Eng._ 331.

[197] A Parliament of the three Estates at Northampton, 13th Oct.,
1307, granted him an aid on the event of his marriage and coronation,
and for the burial of Edward I. The clergy granted a fifteenth, the
towns a fifteenth, and the barons and knights a twentieth of movables.
1 _Rot. Parl._ 442.

[198] 1 _Rot. Parl._ 443-445.

[199] The second article is given in translation in Hall, 1 _History of
the Customs_, Appendix, 208.

[200] 1 _Rot. Parl._ 446-447.

[201] Translation given in Adams and Stephens, _Sel. Doc._ 93.

[202] 2 Stubbs, _Const. Hist. Eng._ 340, note 1, and citations.

[203] 1 _Rot. Parl._ 281-286.

[204] Translation given in Adams and Stephens, _Sel. Doc._ 93-94.

[205] 2 Stubbs, _Const. Hist. Eng._ 345 and note 2, with citations.

[206] Edward, despite the ordinance banishing Gaveston, in January,
1312, recalled him. But the restoration was fatal to the favorite.
Thomas of Lancaster intercepted him on his way back to London and
murdered him. Gaveston was avenged, however, in 1322, when Edward for
the moment securing the upper hand, took Lancaster and beheaded him.

[207] 1 _Rot. Parl._ 449.

[208] Other instances of taxation during the reign were: 1313,
October. Parliament grants a tax on movables,--the barons and knights
a twentieth and the towns a fifteenth. Grant made in consequence of
a general pardon issued by Edward. 1 _Rot. Parl._ 448. Cf. Thom.
Walsingham, _Hist. Anglicana_, ed. 1 Riley, 136. 1315, Jan.-March.
King put on an allowance of £10 a day. The clergy grant a tenth on
certain conditions, the towns a fifteenth and the barons and knights
a twentieth. 2 Stubbs, _Const. Hist. Eng._ 355, and citations. 1316.
Towns grant a fifteenth, the knights and barons offer a soldier to be
supported by each township, and the clergy express their willingness to
contribute a tenth in their own convocations. 1 _Rot. Parl._ 450-451. 2
Stubbs, _Const. Hist. Eng._ 356. The grant of a soldier was afterward
compounded for by a grant of a sixteenth. 1319. The towns grant a
twelfth, the barons and knights an eighteenth. 1 _Rot. Parl._ 454-455.
1320. No taxes, save a clerical tenth, granted by the Pope. 2 Stubbs,
_Const. Hist. Eng._ 363, note 2. 1322. Clergy grant a tenth for 2
years. Knights and barons grant a man-at-arms from each township for 40
days. Commuted by money payment. Edward, being for the moment supreme,
restores the New Customs for a year. 2 Stubbs, _Const. Hist. Eng._ 370,
and note 2 and authorities there cited.

[209] Sept. 1327. Parliament at Lincoln granted a twentieth for the
Scotch war. 2 _Rot. Parl._ 425.

[210] 2 Ibid. 446.

[211] 2 Ibid. 66.

[212] 2 Stubbs, _Const. Hist. Eng._ 554.

[213] 2 Rymer, _Foedera_, Aug. 12, 1336.

[214] 1 Hen. Knighton, _Chronicon_, ed. Lumby, 477.

[215] Adam Murimuth, _Chronica_ ed. Hog, 81.

[216] 2 Stubbs, _Const. Hist. Eng._ 398, 555, with authorities there
cited. The statute is given in 1 Hall, _Hist. of Customs_, 210-211.

[217] 2 _Rot. Parl._ 104.

[218] 2 Ibid. 105.

[219] 2 _Rot. Parl._ 107-108.

[220] 2 Ibid. 112-113. 2 Walt. de Hemingb. 354.

[221] 14 Edw. III, 1, in 1 _Statutes of the Realm_, 281, and in Adams
and Stephens, _Sel. Doc._ 103-104.

[222] 14 Edw. III, 2, in 1 _Statutes of the Realm_, 281, and in Adams
and Stephens, _Sel. Doc._ 104-105.

[223] The definite inclusion of tallage within the scope of these
charges and aids prohibited to the royal control had to be asserted
further: 1348. Condition of the grant made by Parliament that no
tallage or similar exaction should be imposed by the Privy Council. 2
_Rot. Parl._ 200; Adams and Stephens, _Sel. Doc._ 113. 1352. The king
openly declares that he is not intending again to impose a tallage.
2 _Rot. Parl._ 238. 1377. Parliament petitions, nearly in the words
of the statute of 1340. King replies that only a great exigency would
induce him to disregard the petition. 2 _Rot. Parl._ 365.

[224] 2 Stubbs, _Const. Hist. Eng._ 557.

[225] Bishop Stubbs conjectures 8th July, 1342, as the date of the
grant. 2 _Const. Hist. Eng._ 412, note 2.

[226] 2 _Rot. Parl._ 140, given in Adams and Stephens, 110.

[227] 1 Dowell, _Taxation and Taxes_, 166, citing 18 Edw. III, 2 c. 3.

[228] 2 _Rot. Parl._ 161.

[229] 2 _Rot. Parl._ 200. A translation is given in Adams and Stephens,
113-114.

[230] 2 Stubbs, _Const. Hist. Eng._ 418.

[231] 1 _Statutes of the Realm_, 371. Translation in Adams and
Stephens, _Sel. Doc._ 128; 2 _Rot. Parl._ 271.

[232] 2 _Rot. Parl._ 308.

[233] In 1334 the fifteenth and tenth was compounded for by a fixed
sum, rather than in accordance with a strict assessment. Hereafter each
town and each county knew for how much it would have to answer. The
expression was the fiscal equivalent of £39,000, less about £6,000 for
decayed towns. 1 Dowell, _Taxation and Taxes_, 89.

[234] The fifteenths and tenths after 1334 noted in Dowell, 1 _Taxation
and Taxes_, 89, note. Taxation, 1351-1359, see Stubbs, 2 _Const. Hist.
Eng._ 424, note 1. Taxation, 1360-1368, see Stubbs, 2 _Const. Hist.
Eng._ 433, note 1 and p. 432.

[235] 14 Edw. III, 2.

[236] 2 _Rot. Parl._ 161, 202.

[237] 2 Ibid. 252.

[238] 2 Ibid. 114.

[239] 2 Ibid. 128. Translation given in Adams and Stephens, _Sel. Doc._
105-106.

[240] 2 _Rot. Parl._ 130, given in Adams and Stephens, _Sel. Doc._ 106.

[241] 2 _Rot. Parl._ 364, given in Adams and Stephens, _Sel. Doc._ 135.

[242] Taswell-Langmead, _Eng. Const. Hist._ 211, note 1.

[243] 3 _Rot. Parl._ 7; translation in Adams and Stephens, _Sel. Doc._
136.

[244] 3 _Rot. Parl._ 35-36. Translation in Adams and Stephens, _Sel.
Doc._ 137-138.

[245] 3 _Rot. Parl._ 36.

[246] 3 Ibid. 56. Translation given in Adams and Stephens, _Sel. Doc._
138.

[247] 3 _Rot. Parl._ 66.

[248] 3 _Rot. Parl._ 73.

[249] 3 Ibid. 124.

[250] The taxes during the reign in summary:--Parliament of October,
1377. Two tenths and two fifteenths. 3 _Rot. Parl._ 7. Parliament of
October, 1378. An increase of custom on wool and merchandise over the
grant to Edward III in 1376. 3 _Rot. Parl._ 37. Parliament of April,
1379 (another session of the last Parliament). Superseded the above
tax on wool, which had proven to be insufficient, with a graduated
poll-tax which varied according to the position of the taxpayer. A
tax of a groat a head had been levied in 1377, but this was the first
instance of a poll-tax of varied incidence. The payments: The Dukes of
Lancaster and Bretagne, ten marks each; earls or their widows, four
pounds; barons and baronets, two pounds; and so on down to persons of
the lowest rank, who were to pay a groat apiece. (Further details, 1
Dowell, _Taxation and Taxes_, 94.) Proceeds were to be strictly for
national defense. Produced about half as much as was expected, only
£22,000. 3 _Rot. Parl._ 57-58, 72-73. Parliament of 1380. A tenth and
a half and a fifteenth and a half with a year’s subsidy on wool. A
second Parliament, finding this amount insufficient, in the same year
undertook to raise the “outrageous and intolerable” amount, £160,000.
The means was another graduated poll-tax, varying from sixty groats to
three, together with a continuance of the subsidy on wool, a custom
which netted about £60,000 annually. The clergy undertook to raise
their share of the money. The poll-tax was expected to bring about
£66,000. 3 _Rot. Parl._ 75, 90. Parliament of 1382. A fifteenth and
a tenth, to be devoted wholly to the defense of the realm. Tunnage
and poundage for two years. 3 _Rot. Parl._ 124, 134. Parliaments of
1383. Grant of fifteenth and tenth made in 1382, given to Bishop of
Norwich who was warring against the anti-pope in Flanders. He was
held to account at the October session. Two half tenths and two half
fifteenths were granted by the commons, one-half without condition,
and the other half for the prosecution of the war if it be prolonged.
Clergy made similar grants. 3 _Rot. Parl._ 151-152. Parliament of
1384. At spring session half a tenth and fifteenth. At fall session,
two tenths and fifteenths, one of which was remitted the following
spring. The object was the prosecution of a war in Scotland. 3 _Rot.
Parl._ 167, 185, 398. Parliament of 1385. Granted a fifteenth and a
half and a tenth and a half. Wool subsidy renewed for another year.
3 _Rot. Parl._ 204. Parliament of 1386. Half a tenth and fifteenth,
with duplication if exigencies of war demanded. Continuance of subsidy
on wool and merchandise, the object being for naval defense. Before
Richard could obtain this grant, he had to consent to the appointment
of a commission of reform to correct the irregularities in the realm
and in his household. 3 _Rot. Parl._ 220-221. Parliaments of 1388.
First session. Half a tenth and fifteenth with tunnage and poundage and
the custom on wool. From the subsidy on wool £20,000 is awarded to the
“Lords Appellant,” who had brought charges against the royal favorites
upon which they were convicted and punished. 3 _Rot. Parl._ 244-245.
The increase of custom on wool is forbidden. Fall session. A tenth and
a fifteenth. 2 Stubbs, _Const. Hist. Eng._ 505, note 3, and citations.
Parliament of 1390. Subsidy on wool and merchandise. 3 _Rot. Parl._
278. Parliament of 1391. A fifteenth and a half and a tenth and a half.
Above subsidy on wool and merchandise renewed for three years at an
increased rate. 3 _Rot. Parl._ 285-286. Parliament of 1393. Grant on
wool and merchandise for three years. 3 _Rot. Parl._ 301. Parliament
of 1394. Tunnage and poundage. 3 _Rot. Parl._ 314. Parliament of 1395.
Fifteenth and tenth. 3 _Rot. Parl._ 330. Parliament of 1397. Custom
on wool for five years. Tunnage and poundage for three years. Protest
registered against the extravagance of the court. 3 _Rot. Parl._ 340.
Parliament of 1398. A tenth and a half and a fifteenth and a half. A
subsidy on wool, woolfells, and leather for the term of Richard’s life.
3 _Rot. Parl._ 368.

[251] The scheme is given in translation in Adams and Stephens, _Sel.
Doc._ 142-144, from the original in 3 _Rot. Parl._ 90.

[252] 2 Stubbs. _Const. Hist. Eng._ 471.

[253] 3 _Rot. Parl._ 368.

[254] 3 _Rot. Parl._ 417 ff.

[255] 2 Thom. de Wals. 230-231. Cf. 3 _Rot. Parl._ 62.

[256] 3 _Rot. Parl._ 458. Translation given in Adams and Stephens,
_Sel. Doc._ 173.

[257] 3 _Rot. Parl._ 493.

[258] 3 _Rot. Parl._ 611. Translation given in Adams and Stephens,
_Sel. Doc._ 125-127.

[259] In 1472 was a marked departure from the rule. A grant regularly
enacted, appropriating revenue and income of the commons, was
changed by the lords to include a tax on their own property. 6 _Rot.
Parl._ 4-8. The good intent of the act, justified in the eyes of
contemporaries, apparently, its irregularity.

[260] 3 _Rot. Parl._ 612.

[261] 4 _Rot. Parl._ 301-302.

[262] 5 _Rot. Parl._ 152-153.

[263] 5 _Rot. Parl._ 508.

[264] 1 Dowell, _Taxation and Taxes_, 197.

[265] 6 _Rot. Parl._ 238-240.

[266] “For certainly wee be determined rather to aventure and committe
us to the perill of oure lyfs and jopardye of deth, than to lyve in
suche thraldome and bondage as we have lyved long tyme heretofore,
oppressed and injured by Extorcions and newe Imposicons, agenst the
Lawes of God and Man, and the Libertee, old Police, and Lawes of this
Reame, wheryn every Englishman is enherited.” 6 _Rot. Parl._ 241.

[267] 1 Rich. III, c. 2.--“The king remembering how the Commons of this
his realm by new and unlawful inventions and inordinate covetousness,
against the law of this realm, have been put to great thraldom and
importable charges and exactions, and in especial by a new imposition
named a benevolence, whereby divers years the subjects and Commons of
this land against their wills and freedom have paid great sums of money
to their almost utter destruction; for divers and many worshipful men
of this realm by occasion thereof were compelled by necessity to break
up their households and to live in great penury and wretchedness. Their
debts unpaid and their children unpreferred, and such memorials as they
had ordained to be done for the wealth of their souls were made void
and annulled, to the great displeasure of God and to the destruction
of this realm; therefore the king will it be ordained, by the advice
and assent of his Lords spiritual and temporal and the Commons of this
present Parliament assembled, and by the authority of the same, that
his subjects and the commonalty of this his realm from henceforth in no
wise be charged by none such charge or imposition called benevolence,
nor by such like charge; and that such exactions called benevolences,
afore this time taken be taken for no example to make such or any
like charge of any his said subjects of this realm hereafter, but it
be dampned and annulled forever.” 2 _Statutes of the Realm_, 478.
Translation given in Adams and Stephens, _Sel. Doc._ 212.

[268] 6 _Rot. Parl._ 335.

[269] 6 _Rot. Parl._ 421.

[270] Taswell-Langmead, _Eng. Const. Hist._ 298, quoting from Lord
Bacon’s _Henry VII_, 121.

[271] For further details see Dowell, 1 _Taxation and Taxes_, 129,
130. A summary of the taxes of Henry VIII is given in Cobbett, 1
_Parliamentary History of England from the Earliest Period to the Year
1803_, London 1806; 565-6.

[272] Above, 206, 207.

[273] More, _Life of Sir T. More_, 51, quoted in 1 _Parl. Hist._ 485-6.

[274] 1 _Parl. Hist._ 486.

[275] 1 _Parl. Hist._ 588.

[276] 1 _Parl. Hist._ 490.

[277] Taswell-Langmead, _Eng. Const. Hist._ 300.

[278] Ibid., 300, quoting Hall, _Chronicle_, 696, 700.

[279] 1 _Parl. Hist._ 490.

[280] Henry levied another benevolence in 1545.

[281] The form of these royal promissory notes is as follows:--“We,
Henry VIII, by the grace of God, King of England and of France,
Defender of Faith, and Lord of Ireland, promise by these presents truly
to content and repay unto our trusty and well-beloved subject, A. B.,
the sum of ----, which he hath lovingly advanced unto us by way of
loan, for defence of our realm, and maintenance of our wars against
France and Scotland: In witness whereof we have caused our privy seal
hereunto to be set and annexed the ---- day of ----, the fourteenth
year of our reign.” Cited by Hallam, 1 _Const. Hist. Eng._ 26, note 1,
from MS. Instructions to Commissioners.

[282] Stat. 21 Henry VIII, c. 24, cited in Taswell-Langmead, _Eng.
Const. Hist._ 301. 1 _Parl. Hist._ 507.

[283] 1 _Parl. Hist._ 560, 578.

[284] 23 Henry VIII, c. 20, in Adams and Stephens, _Sel. Doc._ 144.

[285] 25 Henry VIII, c. 20.

[286] 25 Henry VIII, c. 21.

[287] 26 Henry VIII, c. 3.

[288] 25 Henry VIII, c. 19.

[289] Dowell, 1 _Taxation and Taxes_, 202, quoting 2 _Mackintosh_, 433,
appendix.

[290] Taswell-Langmead, _Eng. Const. Hist._ 377, quoting 4 _Parl.
Hist._ 480.

[291] The subsidy at this time, by a conservative estimate, amounted
probably to £80,000, making the demand equal to £240,000.

[292] 1 Hallam, _Const. Hist. Eng._ 375, quoting D’Ewes, 486.

[293] Gneist. _Const. Hist. Eng._ 546.

[294] Taswell-Langmead, _Eng. Const. Hist._ 177.

[295] 1 _Parliamentary History of England_, London, 1806, 967, 970.

[296] The case is in 1 _Parl. Hist._ 998-1017. See also
Taswell-Langmead, _Eng. Const. Hist._ 267-268.

[297] 1 _Parl. Hist._ 1030-1042.

[298] 1 Ibid. 1044-1045.

[299] The rate of this grant of tunnage and poundage: Tunnage, 3 s. on
every tun of wine imported, save that on the tun of sweet wines the
charge was 6 s., and on the awm of Rhenish, 1 s. Poundage, 1 s. on
every 20 s. of goods or merchandise imported or exported, except woolen
manufactures; on tin and pewter the charge was 2 s. Wool of denizens,
33 s. 4 d. on the sack or 240 woolfells and £3, 6 s., 8 d. on the last
of hides.--1 _Parl. Hist._ 1046.

[300] 1 _Parl. Hist._ 1069-1070.

[301] Trevelyan, _England Under the Stuarts_, 107.

[302] Medley, _Eng. Const. Hist._ 235.

[303] Prothero, _Statutes and Constitutional Documents, 1559-1625_,
lxxv.

[304] Stat. 45 Edw. III, cap. 4.

[305] The case is reported in Prothero, _Stat. and Const. Doc._ 340-342.

[306] 2 _State Trials_, 481.

[307] Prothero, _Stat. and Const. Doc._ 354.

[308] The arguments of Hakewill and Whitelocke are given in detail in
Prothero, _Stat. and Const. Doc._ 342-353.

[309] Taswell-Langmead, _Eng. Const. Hist._ 395, quoting from Petyt,
_Jus Parliamentum_, 322, 323.

[310] 1 _Parl. Hist._ 1122.

[311] Prothero, _Stat. and Const. Doc._ 411.

[312] 1 _Parl. Hist._ 1133.

[313] 1 _Parl. Hist._ 1159.

[314] 1 _Parl. Hist._ 1166.

[315] 2 Gardiner, _Hist. Eng._ _[_1603-1616_]_ 172.

[316] 1 _Parl. Hist._ 1179-1180.

[317] 1 _Parl. Hist._ 1187.

[318] This was “the revival of the ancient right of Parliamentary
impeachment--the solemn accusation of an individual by the Commons at
the bar of the Lords--which had lain dormant since the impeachment of
the Duke of Suffolk in 1449.” For further details see Taswell-Langmead,
_Eng. Const. Hist._ 409 et seq.

[319] 1 _Parl. Hist._ 1208.

[320] 1 _Parl. Hist._ 1262.

[321] 1 _Parl. Hist._ 1300-1301.

[322] 1 Ibid. 1316-1317.

[323] 1 _Parl. Hist._ 1361-1363.

[324] 1 Ibid. 1366-1371.

[325] 1 _Parl. Hist._ 1487-1488.

[326] 1 Hallam, _Const. Hist. Eng._ 508, 509.

[327] 2 _Parl. Hist._ 6.

[328] 2 Ibid. 33.

[329] 2 Ibid. 35-37.

[330] 2 _Parl. Hist._ 49, 50.

[331] 2 Ibid. 56.

[332] 2 Ibid. 100, 101.

[333] Arbitrary imprisonment led to the suspension of the right to
secure a writ of _habeas corpus_, by direct command and peculiar power
of the king. _Vid._ Darnel’s Case in Taswell-Langmead, _Eng. Const.
Hist._ 425, 426.

[334] 2 _Parl. Hist._ 207, 208.

[335] 2 _Parl. Hist._ 213.

[336] 2 Ibid. 221.

[337] 2 _Parl. Hist._ 230.

[338] 2 Ibid. 259-260.

[339] 2 _Parl. Hist._ 274, 277, 278.

[340] 2 _Parl. Hist._ 355.

[341] 2 Ibid. 377.

[342] 2 Ibid. 409, 410. The sections which concern taxation:--

Humbly show unto our Sovereign Lord the King, the Lords Spiritual and
Temporal, and Commons in Parliament assembled, that whereas it is
declared and enacted by a statute made in the reign of King Edward the
First, commonly called, _Statutum de tallagio non concedendo_, that no
tallage or aid shall be laid or levied by the king or his heirs in this
realm, without the good-will and assent of the Archbishops, Bishops,
Earls, Barons, Knights, Burgesses, and other freemen of the commonalty
of this realm; and by authority of Parliament holden in the five and
twentieth year of the reign of King Edward the Third, it is declared
and enacted, that from thenceforth no person shall be compelled to
make any loans to the king against his will, because such loans were
against reason and the franchise of the land; and by other laws of this
realm it is provided, that none should be charged by any charge or
imposition, called a Benevolence, nor by such like charge, by which the
statutes before mentioned, and the other the good laws and statutes of
this realm, your subjects have inherited this freedom, that they should
not be compelled to contribute to any tax, tallage, aid, or other like
charge, not set by common consent in Parliament:

Yet nevertheless, of late divers commissions directed to sundry
commissioners in several counties with instructions have issued, by
pretext whereof your people have been in divers places assembled,
and required to lend certain sums of money unto your Majesty, and
many of them upon their refusal so to do, have had an unlawful oath
administered unto them, not warrantable by the laws and statutes
of this realm, and have been constrained to become bound to make
appearance and give attendance before your Privy Council, and in other
places; and others of them have been therefore imprisoned, confined,
and sundry other ways molested and disquieted: and divers other charges
have been laid and levied upon your people in several counties, by
Lords Lieutenants, Deputy Lieutenants, Commissioners for Musters,
Justices of the Peace and others, by command or direction from your
Majesty or your privy Council, against the laws and free customs of
this realm....

And whereas of late great companies of soldiers and marines have been
dispersed into divers counties of the realm, and the inhabitants
against their wills have been compelled to receive them into their
houses, and there to suffer them to sojourn, against the laws and
customs of the realm, and to the great grievance and vexation of the
people....

They do therefore humbly pray your most Excellent Majesty, that no man
hereafter be compelled to make or yield any gift, loan, benevolence,
tax, or such like charge, without common consent by Act of Parliament;
and that none be called to make answer, or take such oath, or to
give attendance, or be confined, or otherwise molested or disquieted
concerning the same, or for refusal thereof; ... and that your Majesty
will be pleased to remove the said soldiers and marines, and that your
people may not be burdened in time to come. 2 _Parl. Hist._ 374-6. The
Petition of Right may also be found in S. R. Gardiner, _Constitutional
Documents of the Puritan Revolution, 1625-1660_, 66-70; Adams and
Stephens, _Sel. Doc._ 339-342. Taswell-Langmead, _Eng. Const. Hist._
430-433.

[343] Gardiner, _Const. Doc._ 66, note 2.

[344] 2 _Parl. Hist._ 432.

[345] 2 _Parl. Hist._ 433-434.

[346] 2 _Parl. Hist._ 442, 443.

[347] 2 Ibid. 449, 453.

[348] 2 _Parl. Hist._ 454.

[349] 2 Ibid. 482.

[350] 2 _Parl. Hist._ 457, 491.

[351] Gardiner, _Const. Doc._ 82, 83; 2 _Parl. Hist._ 491.

[352] “The king’s declaration of the causes of the late dissolution.”
Gardiner, _Const. Doc._ 83-99; 2 _Parl. Hist._ 492-504.

[353] 2 _Parl. Hist._ 525.

[354] 2 Hallam, _Const. Hist. Eng._ 15.

The “parchments in the Tower” might readily have included the
following, which exhibits an historical precedent for the ship money:

“1008. Rex Anglorum Aegelredus de ccc. x. cassatis unam trierem, de
novem vero loricam et cassidem fieri, et per totam Angliam naves
intente praecipit fabricari.” 1 Florentii Wigorniensis Monachi,
_Chronicon ex Chronicis_, 160.

1 Freeman, _Norman Conquest_, 647, note LL., cites 3 _Codex
Diplomaticus_, 351, to show that before 1008 a levy of ships was
not unknown. Archbishops Aelfric upon his death gave to the people
of Wiltshire and Kent a ship. Wiltshire is an inland county. It is
justifiable, then, to believe that “per totam Angliam” may be taken
literally, and that Ethelred really exacted a ship from every 310 hides
throughout England.

[355] Gardiner, _Const. Doc._ 105-108.

[356] Taswell-Langmead, _Eng. Const. Hist._ 443; Trevelyan, _England
Under the Stuarts_, 163.

[357] Clarendon, _History of the Rebellion_, i, 136.

[358] Gardiner, _Const. Doc._ 108, note 2.

[359] Gardiner, _Const. Doc._ 108, 109.

[360] 2 Hallam, _Const. Hist. Eng._ 23.

[361] Mr. St. John did not enter into a consideration of the legality
of the modern impositions of the outports, levied by authority of the
Crown.

[362] The digest of the argument here given is based upon that of
Taswell-Langmead, _Eng. Const. Hist._ 446, 447, who follows closely 2
Hallam, _Const. Hist. Eng._ 23-27. Extracts from St. John’s speech are
given in Gardiner, _Const. Doc._ 109-115.

[363] Taswell-Langmead, _Eng. Const. Hist._ 448. 2 Hallam, _Const.
Hist. Eng._ 30.

[364] 2 _Parl. Hist._ 532, 533.

[365] 2 Ibid. 561, 562.

[366] 2 _Parl. Hist._ 362, 363.

[367] 2 Ibid. 568.

[368] 2 Ibid. 570, 571.

[369] 2 _Parl. Hist._ 582, 584.

[370] See the list of members in 2 _Parl. Hist._ 597-629.

[371] Taswell-Langmead, _Eng. Const. Hist._ 455, quoting 1 Clarendon,
_Hist._ 171.

[372] The time was from 25th May, to 15th July, 1641.

[373] The Act is given in Gardiner, _Const. Doc._ 88-91.

[374] The Act is given in Gardiner, _Const. Doc._ 115.

[375] By subsequent statutes, an end was put to purveyance, distraint
of knighthood, and forest extension. Parliament then came forward with
a grant of six subsidies and a poll tax equivalent to six subsidies
more.

[376] 2 Hallam, _Const. Hist. Eng._ 138, 139.

[377] Gardiner, _Const. Doc._ 127-155.

[378] For further details see Taswell-Langmead, _Eng. Const. Hist._
483, 484; and 2 Dowell, _Taxation and Taxes_, 8 et seq.

[379] The text is in Taswell-Langmead, _Eng. Const. Hist._ 512-518 and
in Adams and Stephens, _Sel. Doc._ 462-469.




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Transcriber’s note:

—Obvious errors were corrected without note.



***