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.
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. Reissue of the Charter with omissions 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]
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, Second reissue of the Charter this time in the form which later generations of kings should be called upon to confirm.
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 Its omissions 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.
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. Text of 1215 is adhered to in practice 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.
If full credence can be attached to the record here given that a tax was Carucage “assessed” by the Council, 1218 “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.