Chapter VII: The Stuarts, 1603-1689 236 (2)

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.