Chapter VII: The Stuarts, 1603-1689 236 (1)

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]