(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 He rarely did so, however, without meeting protests; and the rule of law laid down in the act of 1340 was never repealed.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.