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diff --git a/old/53189-0.txt b/old/53189-0.txt deleted file mode 100644 index 843f792..0000000 --- a/old/53189-0.txt +++ /dev/null @@ -1,8082 +0,0 @@ -The Project Gutenberg eBook, The History of Parliamentary Taxation in -England, by Shepard Ashman Morgan - - -This eBook is for the use of anyone anywhere in the United States and most -other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms of -the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you'll have -to check the laws of the country where you are located before using this ebook. - - - - -Title: The History of Parliamentary Taxation in England - - -Author: Shepard Ashman Morgan - - - -Release Date: October 1, 2016 [eBook #53189] - -Language: English - -Character set encoding: UTF-8 - - -***START OF THE PROJECT GUTENBERG EBOOK THE HISTORY OF PARLIAMENTARY -TAXATION IN ENGLAND*** - - -E-text prepared by Giovanni Fini, deaurider, and the Online Distributed -Proofreading Team (http://www.pgdp.net) from page images generously made -available by Internet Archive (https://archive.org) - - - -Note: Images of the original pages are available through - Internet Archive. See - https://archive.org/details/historyofparliam00morgiala - - - - - -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 slope of his last years. - -In October, 1269, there occurred an incident which, if indeed the -report be well founded, sums up the attainments of his reign. Henry -brought together a great assembly in honor of Saint Edward, an -assembly of magnates lay and clerical, and likewise numbering certain -representatives of the cities and boroughs.[122] After the conclusion -of the ceremony, Henry convened the barons as a Parliament, and -received from it a grant of a twentieth of lay movables. Whether or not -the burgesses and citizens participated in the offering to the king is -unknown. But if that be the truth, enveloped as it is in the mist, -then we can see the newly-made legislators actually participating in -the most important of legislative functions, and we are assured that -the work of Simon de Montfort had indeed borne early fruit. - - - - -IV - -LAW OF PARLIAMENTARY TAXATION - -1272-1297 - - -[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 colored 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 papists, 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. - - - - - * * * * * * - - - - -Transcriber’s note: - -—Obvious errors were corrected without note. - - - -***END OF THE PROJECT GUTENBERG EBOOK THE HISTORY OF PARLIAMENTARY -TAXATION IN ENGLAND*** - - -******* This file should be named 53189-0.txt or 53189-0.zip ******* - - -This and all associated files of various formats will be found in: -http://www.gutenberg.org/dirs/5/3/1/8/53189 - - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg-tm electronic works to protect the PROJECT GUTENBERG-tm -concept and trademark. 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