CHAPTER TWELVE.
Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum militem faciendum, et ad filiam nostram primogenitam semel maritandam, et ad hec non fiat nisi racionabile auxilium: simili modo fiat de auxiliis de civitate Londonie.
No scutage nor aid shall be imposed in our kingdom, unless by common counsel of our kingdom, except for ransoming our person, for making our eldest son a knight, and for once marrying our eldest daughter; and for these there shall not be levied more than a reasonable aid. In like manner it shall be done concerning aids from the citizens of London.
This is a famous clause, greatly valued at the time it was framed because of its precise terms and narrow scope (which made evasion difficult), and even more highly valued in after days for exactly opposite reasons. It came indeed to be interpreted in a broad general sense by enthusiasts who, with the fully-developed British constitution before them, read the clause as enunciating the modern doctrine that the Crown can impose no financial burden whatsoever on the people without consent of Parliament. Before discussing how far such an estimate is justified, it will be necessary to examine the historical context, with special reference to two classes of John’s subjects; his feudal tenants, and the citizens of London respectively.
I. Protection of Crown Tenants from arbitrary Exactions. The pecuniary obligations of the barons may be arranged in two groups according as they depended on the king’s own actions, or were determined by circumstances which lay beyond the royal control. Payments of the former type (such as reliefs and amercements), exigible only at fixed dates or on the occurrence of specific events, were treated of elsewhere in Magna Carta. The present chapter sought to prevent John from extorting additional payments either absolutely at his own discretion, or because of situations which he had purposely created as excuses for demanding money. The entire field of such arbitrary feudal dues was covered by the words “scutages” and “extraordinary aids,”[[461]] the use of which protected the barons from every sort of compulsory payment which might be demanded by the king at his own discretion.
(1) Scutage. The development of the system described by this name has been traced in the Historical Introduction.[[462]] Used at first as an expedient for substituting, in the Crown’s option, money payments for military service, it became, under John, a regular source of revenue, imposed almost every year on one pretext or another, while it was levied at an increased rate, and under conditions of a vexatious and burdensome nature. If any one cause contributed, more than the others, to the rebellion which culminated at Runnymede, it was John’s method of imposing scutages. This chapter, then, attempted to strike at the common root from which many grievances grew. The Crown was no longer to be left sole judge of the occasions on which a scutage might be demanded. “The common consent (or counsel) of the realm” must first be obtained. If this provision had been carried into practice, it would have removed the supreme control of the system of scutages from the Crown which received the money, to the Crown tenants who paid it. This truly radical remedy included the remedy of all minor abuses as well, since the collective body of barons who could refuse payment unconditionally, might a fortiori make grants under such conditions as they chose. Henceforward it would lie with them to say, on each occasion, whether the old normal 20s. per knight’s fee should be superseded by some other rate, either higher or lower. This provision was never enforced, being omitted altogether from the reissue of 1216, while the clause substituted for it in the Charter of 1217 took an entirely different form.[[463]]
(2) Feudal aids. It was recognized from an early date that in emergencies feudal vassals ought to contribute to their lord’s support in proportion to the extent of their holdings. Such payments were known as aids, and were originally supposed to be free-will offerings.[[464]] By John’s reign they had fallen into two groups—ordinary and extraordinary. The former, three in number, were only dealt with incidentally by the Charter.[[465]] It is with the “extraordinary” aids that this chapter specially occupies itself. These are placed in the same position as scutages: the Crown cannot exact either, “unless by common counsel of the realm.”
II. Protection of Citizens of London from arbitrary Exactions. Some attempt was made to protect the men of London, as well as the Crown tenants, from John’s demands for money. The insurgent leaders in this way discharged part of their debt to an ally with special claims upon their gratitude.[[466]] The Articles of the Barons had contained several important provisions affecting the capital; and these were embodied in the Charter in slightly altered terms, which suggest some influence at work not altogether friendly to the citizens.[[467]] The present clause of the completed charter, for example, uses only one word, “aids,” where the 32nd of the Articles of the Barons had referred to “tallages and aids.” There is no evidence to show whether the omission had been deliberately planned, or was merely the result of inadvertence; and the ambiguity inherent in both words makes it dangerous to hazard a dogmatic opinion on the practical effect of the alteration. Yet a clearly-marked line can be traced between the respective meanings of the two terms when they are technically used.
(1) “Aid” is the vaguer word, applicable to every payment which can be regarded as in any sense a free-will offering. It embraced gifts to the Crown, whether from prelate or burgess or feudal baron. London was stimulated towards acts of generosity by kings of England both before and after John. There were times when “voluntary” aids, like the “benevolences” of Tudor days, could not safely be withheld.
(2) “Tallage” was a tax levied at a feudal lord’s arbitrary will upon more or less servile dependants, who had neither power nor right to refuse. The frequency of these exactions and the sums taken depended solely on the lord’s caprice, restrained by no law, but only by such limits as an enlightened self-interest or regard for public opinion might dictate. Liability to arbitrary tallage was thus one of the chief marks of an unfree status, and was contrasted with the impositions levied on those freeholders who held by knight’s service, by socage, or by frankalmoin. The owner of the smallest manor, like the owner of the greatest barony, might tallage his own villeins; and the king had a similar privilege over a wider field. His rights extended even over civic communities who held royal charters, since towns were theoretically on the royal demesne, and therefore liable to tallage. The great city of London, in spite of its growing wealth, its political importance, and its list of chartered privileges, still shared this liability.[[468]]
(3) Comparison of tallage and aid. The tallage, as a forced payment, thus differed fundamentally from the nominally free “aid,” while two minor points of difference may also be noted. In arranging an aid the givers usually suggested the amount, though the king might reject the offer as insufficient; while the amount of a tallage, on the other hand, was arbitrarily fixed by the Crown. Further, while the aid granted by a community was a joint offering which the citizens assessed and collected by their own officers, and for which they admitted a collective responsibility, the Crown itself allocated on whom it pleased the particular sums of tallage to be paid by each individual, no joint liability being admitted by those who had to pay. It was obviously to the advantage of a borough to forestall, by the present of a liberal aid, the Crown’s anticipated demand for a tallage, for the hated tax-gatherer was thus kept outside the city gates. An aid was also more to the king’s advantage than a tallage of equal amount. Not only was he saved the trouble, expense, and delay of the collection, but he obviated risk of loss through the insolvency of some of the individuals fixed upon.
A story told by Madox[[469]] brings out the contrast. A dispute had arisen between the king and the Londoners. To Henry’s demand for 3000 marks of “tallage” they at first replied by offering 2000 marks of “aid,” which the king refused. The citizens then denied liability to tallage altogether, but were confronted with entries in Exchequer and Chancery Rolls which entirely contradicted their audacious contention. On the morrow the mayor and citizens acknowledged that they were talliable, and gave the king the sum he demanded.
(4) Effects of the omission of the word “tallage” from Magna Carta. As the two words appearing in the Articles of the Barons had well-recognized differences of meaning, it is unlikely that the omission of one of them from the Charter was regarded as a purely verbal change. John would readily enough dispense with the right to exact “aids” from the wealthy traders of his capital, if he still preserved his privilege of tallaging them at pleasure. The omission was perhaps deliberately made in deference to John’s strong feeling on a point which did not personally affect the barons.[[470]] Another omission should be noted. The Articles had extended protection not only to Londoners, but also “to citizens of other places who thence have their liberties,” meaning the towns whose chartered privileges had been modelled on those of the metropolis. Magna Carta completely ignored, in this connection, all towns except London.[[471]]
(5) The nature of the protection afforded by Magna Carta. The arrangement of the present chapter is peculiar. After treating fully of the abuses of Crown tenants, the case of the Londoners is thrown in carelessly in a few words: “In like manner it shall be done concerning aids from the citizens of London.” Various interpretations of the words “simili modo” are possible. High authorities suggest that the clause means no more than that aids taken from London, like ordinary aids taken from Crown tenants, must be “reasonable.”[[472]] If this is so, a criterion of reasonableness different from that applicable to knights’ fees became necessary; and this would have been hard to find.[[473]]
It is equally probable, however, that the intention was to render the same consent necessary to the validity of aids, asked from London, as had previously been stipulated in the case of scutages from tenants in chief. If this is so, then the method provided in chapter 14 for taking “the common counsel of the realm” was peculiarly ill-adapted to secure to the men of London any effective voice in taxing themselves. The necessity for the consent of an exclusively baronial assembly could not adequately protect the Londoners, whose essentially different interests were unrepresented.
Subsequent history casts no light on the original intention of this clause; no occasion of testing its meaning ever occurred, the entire chapter of which it forms part having been omitted from all subsequent issues of the Charter.
(6) Later history of the Crown’s right to tallage the towns. Magna Carta, even in its original form, did not deprive the king of his right to tallage London, like any other part of his ancient demesne; and the Crown continued quite legally and almost without question to exercise this prerogative at intervals from 1215 until 1340. It has sometimes been maintained, indeed, that the Confirmatio Cartarum of 1297 was intended to abolish this prerogative, and it is true, that a document once considered as an authoritative version of the Confirmatio bore the suggestive title of De tallagio non concedendo. It is now well known that the latter document is quite unauthentic; while, if the confirmatio itself was intended to relieve the towns from tallages taken without their consent, it signally failed. Edward III. occasionally exacted tallages from London and other towns. His parliaments, however, sought to prohibit this, and succeeded, in 1340, in passing a statute which abolished, in words peculiarly wide and categorical, unparliamentary taxation of every kind whatsoever. This act, which is sometimes styled by modern writers “the real statutum de tallagio non concedendo,” is held by Dr. Stubbs to have conclusively abolished inter alia the Crown’s right of tallage.[[474]] This finally settled the law, but did not prevent the king from trying to break that law. In subsequent years Edward III. frequently disregarded the restriction thus placed upon his financial resources, and with varying success. He rarely did so, however, without meeting protests; and the rule of law laid down in the act of 1340 was never repealed.
III. Magna Carta and the Theory of Parliamentary Taxation. It is a commonplace of our text-books that chapters 12 and 14 taken together amount to the Crown’s absolute surrender of all powers of arbitrary taxation, and even that they enunciate a general doctrine of the nation’s right to tax itself.[[475]] Yet the very idea of “taxation” in its abstract form, as opposed to specific tolls and tallages levied on definite things or individuals, is essentially modern. The doctrine of the day was that the king in normal times ought “to live of his own,” like any other land-owning gentleman. A regular scheme of “taxation” to meet the ordinary expenses of government was undreamt of. It is too much to suppose, then, that our ancestors in 1215 sought to abolish something which, strictly speaking, did not exist. The famous clause treats, not of “taxation” in the abstract, but of the scutages and aids already discussed. It does not concern itself with the rights of Englishmen as such, but chiefly with the interests of those who held freeholds of the Crown, and incidentally and inadequately with those of the citizens of London. Several considerations place this beyond reasonable doubt.
(1) The terms of the restriction are by no means wide or sweeping; but precise, accurate, and narrow. The “common consent of the realm” was made a requisite for three species of exactions at the most: for scutages and for extraordinary aids taken from the feudal tenants, and possibly also for aids taken from the city of London: that is all. Not a word is said of any other form of taxation or of other groups of taxpayers. The restriction thus benefits Crown tenants only, with the doubtful addition of the Londoners. (2) If under-tenants received by chapter 15 some protection against their mesne lords, they received none against the claims of the king. The Charter affected not national “taxation,” but merely feudal dues. (3) The scant measure of protection afforded did not extend even to all Crown tenants. The king’s villeins were, of course, excluded; and so were even freeholders whose tenure was other than that of chivalry. Socage tenants were left liable to carucage and other exactions, tenants in frankalmoin (among them the wealthy Cistercian monks) to forced contributions from the wool and hides of their sheep, while the right of the Crown arbitrarily to raise the “farms” of all parts of its own demesnes was deliberately reserved.[[476]] (4) The Crown’s initiative in “taxation” (here restricted in regard to “aids” and “scutages”) was, under many other names and forms, left intact. The king required no consent before taking such prizes and custom dues as he thought fit from merchandise reaching or leaving England, or before taking tolls and fines at inland markets under the plea of regulating trade. Tallages also were exigible at discretion from aliens and Jews, from tenants of demesne, from London and other chartered towns. (5) The limited scope of this restriction on prerogative is further illustrated by the method provided for taking “the common consent.” The assembly to be convened for that purpose was a narrow body, representative neither of the several ranks and classes of the community, nor of the separate national interests, nor yet of the various districts of England. On the contrary, its composition was extremely homogeneous, an aristocratic council of the military tenants of the Crown, convened in such a way that only the greater among them were likely to attend.[[477]]
These facts serve as a warning not to read into Magna Carta modern conceptions which its own words will not warrant. This famous clause was far from formulating any national doctrine of self-taxation; it was primarily intended to protect Crown tenants from impositions levied by John, not qua sovereign but qua feudal lord. Such as it was, it was totally omitted, along with its corollary (chapter 14), in 1216. The provision substituted for both, in the Charter of 1217, referred only to scutages, saying nothing about aids, and cannot possibly be read as a general prohibition of all arbitrary taxation by the Crown.[[478]]
[461]. “Extraordinary” is here applied to all aids other than the three normal ones which, falling due each on a definite occasion, come under the opposite group of fixed payments.
[465]. These three aids were carefully specified, and a reasonable rate was stipulated for, but not defined. In this respect the treatment here accorded to aids is less satisfactory than that of reliefs in chapter 2, which carefully defined the amount to be paid. It is probable that the framers of the present chapter relied on existing usage, which seems to have regarded the normal aid as one-fifth of the normal relief, i.e. as 20s. per knight’s fee. An alternative explanation is also possible, that the same “common counsel” which had the right to veto extraordinary aids, was also expected to determine the reasonable amount of the ordinary aids.
[467]. See article 23 (which became c. 33), article 31 (c. 41), and article 32 (cc. 12 and 13), and cf. supra, pp. [140-1]. Whether article 12 (c. 35) was more a benefit to, than a restraint upon, traders seems doubtful.
[468]. This statement, for which evidence is given infra, is not always admitted. Taswell-Langmead, Eng. Const. Hist., p. 107, says “The city of London can never have been regarded as a demesne of the Crown.”
[469]. I. 712, citing Mem. Roll 39 Henry III.
[470]. Alternative explanations are possible, e.g. that the prelates, accustomed to tallage their own dependants, used their influence successfully to combat this innovation as “the thin end of the wedge.”
[471]. It might possibly be argued that the last clause of chapter 13 extending to all towns a confirmation of liberties and customs, was intended to embrace this provision as to aids. If so, the draftsman has expressed himself clumsily.
[472]. Such is the opinion expressed in the Lords’ Report on the Dignity of a Peer, I. 65.
[473]. In 1168, when Henry II. took an aid for the marriage of his daughter, London contributed £617 16s. 8d., which might afford a precedent for a “reasonable” aid. See Pipe Roll, 14 Henry II., cited Madox, I. 585.
[474]. See Const. Hist., II. 548. “Of the scope of this enactment there can be no doubt; it must have been intended to cover every species of tax not authorised by parliament, and ... it seems to have had the effect of abolishing the royal prerogative of tallaging demesne.”
[475]. E.g. Taswell-Langmead, Engl. Const. Hist., 106, and Anson, Law and Custom of the Const., I. 14. Dr. Stubbs, Const. Hist., I. 573, considers that these words “admit the right of the nation to ordain taxation.”
[476]. See infra, under c. [25].
[477]. Even when an honour escheated to the Crown, the tenants of that honour “were not suitors of the Curia Regis.” See Report on Dignity of a Peer, I. 60.