The History of Parliamentary Taxation in England

by Shepard Ashman Morgan

Edward I, when he signed “Confirmatio Cartarum,” in an inconclusive way handed over to Parliament the right to consent to all taxation before it be levied; in other words, hereafter Parliament had grounds upon which it could contest arbitrary exactions of the crown. That the grounds for objection were not absolute and that Edward left a loophole by which he could escape will appear upon a consideration of the articles themselves.

The first four chapters of Confirmatio Cartarum have to do with the bare reissuance of the Charter of Henry III, and penalties for their infraction. The fifth is more to the point; it provides that the recent exactions shall not be taken into precedent for future taxation.[183] The sixth chapter brings the issue directly before us and exhibits also the loophole by which The tax provisions of Confirmatio Cartarum the king might find his escape from it, if he should have the inclination and the power to do so. It says that “for no business from henceforth we shall take of our realm such manner of aids, tasks, nor prises, but by the common assent of all the realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed.”[184] The chapter going on in reference to the evil custom of forty shillings on every sack of wool, commonly known as the “maletolt,” says, “We ... have granted that we will not take such thing nor any other without their common assent and good will; saving to us and our heirs the custom of wools, skins, and leather, granted before by the commonalty aforesaid.”

The chapters are explicit. Of the two, the sixth is of far greater consequence, both to those seeking in Confirmatio Cartarum a complete statement of the right of Parliament to exercise exclusive control over taxation and to those looking for a vindication of the royal prerogative. The fifth can be taken for what it was, a mere promise on the part of the king not to bring forward past wrongs in defense of future ills,—a promise, the like of which was seldom of much practical avail. The sixth, however, were it not for two clauses saving to the king “the ancient aids and prises, due and accustomed,” and the “custom of wools, skins, and leather granted before,” would have established a tolerably broad basis for the theory that royal control over taxation underwent its legal death in 1297. The facts, however, that the king could still retain his right to levy ancient aids and prises, provided they were what his ancestors were wont to exact; that he could claim unquestioned control over the wool-tax to the extent of half a mark on the sack; and that nothing was said at all about his right to tallage his demesne and the city of London, form a sound backing for the contention that not only was the royal power over taxation not dead, but that it was still vigorous and capable of much future activity. One might rightfully deduce, also, at least in so far as an explicit reading of the text can lead one to conclusions, that within certain circumscribed limits, the royal prerogative would be unquestioned.

By implication, however, it is possible to read into Confirmatio Cartarum a different significance than a bald consideration of its contents allows. The mere fact that the nation had taken a stand on the matter of taxation marks the year 1297 as of profound importance; the fact that the stand was not conclusive, that it did not represent the fullest advance possible at the time, is not to be wondered at. Furthermore, the subsequent Parliaments saw to it that the king observed more than the mere letter of the law, notwithstanding Edward’s evident aptitude for only that. The case in this respect was not unlike the observance of the omitted chapters of Magna Carta; though the written form of them had been misunderstood and unappreciated, yet by the natural forces at play between king and Councils, the spirit of them survived.

De tallagio non concedendo

The so-called Statute De tallagio non concedendo, if it could be taken at its face value, provided exactly those restraints upon the royal power wherein Confirmatio Cartarum was wanting. It appears in the Chronicle of Walter of Hemingburgh immediately after the French text of Confirmatio Cartarum under the heading “Articuli incerti in Magna Carta,”[185] “No tallage or aid,” it says, “shall be laid or levied by us or our heirs in our realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of our realm.”[186]

Seizure of corn, wool, and leather was provided against, and the maletolt was forever done away with. Humfrey Bohun and Roger Bigod received pardon for themselves and their following for failing to serve in the train of Edward when he went to Flanders.

De tallagio non concedendo was denominated a statute in the Petition of Right and declared to be such by decision of the judges, in the Hampden case in 1637. In all probability, however, it is nothing but the Latin abstract of Confirmatio Cartarum, included by Walter of Hemingburgh in his narrative for the greater convenience of the reader, together with a formal statement of the pardon of the two earls. That Edward did not feel himself bound by the restrictions of the “Statute” is shown by the fact that in 1304 he tallaged the towns and the royal demesne. Furthermore, the nation seems at the time not to have regarded the Chronicler’s articles as law, for they registered no complaint against Edward’s tallage.[187]