LAW OF PARLIAMENTARY TAXATION
1272-1297

Henry died the 16th November, 1272, with his son, the great Edward, away on the crusade. But there was no question as to the succession; the most powerful of the barons swore fealty to Edward Edward I, 1272-1307 four days after his father’s death, and when he returned to England in the middle of 1274, he was crowned King of England. In the interim, the government was in the hands of the Archbishop of York; the barons still resting after their struggle with Henry III engaged in no warfare other than their usual petty tumults. The regular income of the crown sufficed for the expenses of government.

The young king whose way to the throne was thus paved for him, was one of the greatest, if indeed he was not in truth the greatest, figure which ever graced the English throne. He is credited with being a lover of truth and purity, honorable and contented with frugal living; he was wary and at the same time determined; an able councillor, ingenious in working out the details of a plan, he was yet most sure in accomplishment. Edward was by instinct a legislator, and equally instinctive was his love of arbitrary power. Yet his wisdom kept him short of tyranny and showed him that the fittest means of conserving his own advantage was to allow Parliament reasonable leeway and scrupulously to regard the forms of its enactments. Edward was, however, capable of utilizing the letter of the law to the prejudice of its spirit. And therein lay the chief defect in his generally ascribed character of perfect monarch; he was not above using the law to contravene the purposes for which the law itself was designed.

Representation, which had “ripened in the hand of Simon de Montfort,” Edward I made the common fruit of the people. Edward had the conception that the nation, if it be strong enough to live in the face of dangers, must act as the united backing of a strong king. The relation, as he intended it, between king and people is reciprocal; the strength of the one is the strength of the other, and neither must predominate. That was precisely the relation which such a Parliament as that called by Edward I in 1295, was capable of bringing about; in it each of the three estates had an essential share in the carrying on of the government.

The early part of his reign is of importance secondary to that of the decade ending with 1297. But an understanding of the supremely important crisis which brought about the Confirmation of the Charters is only to be built upon a knowledge of the various events which preceded it.

Before Edward returned from Palestine, his regents summoned to a Parliament held at Hilarytide 1273, not only prelates and barons, but also four knights from each shire and four citizens from each city.[123] The purpose of the convention was the taking of the oath of allegiance to the new king, and the call was prompted doubtlessly by the need of having the whole nation held loyal to the absent and still uncrowned Edward. Here was another instance of the growing appreciation of the usefulness of the commons.

There was no taxation in the reign of Edward I, except as the clergy taxed the people for the prosecution of the crusade, until Edward called his first Parliament on the 22d April, 1275, at Westminster. The composition of the assemblage is uncertain; the implication of the Chronicler is that it was a Parliament of magnates,[124] but the introductory clause of the Statute of Westminster has it otherwise.[125] “These be the Acts of King Edward ...” it says, “by his council and by the assent of archbishops, bishops, abbots, priors, earls, barons and the community of the realm being thither assembled.” The Statute of Westminster, which was composed of some fifty-one articles, included a provision for regulating the feudal aids which were required upon the knighting of the lord’s son or on the event of the marriage of his daughter. Twenty shillings on the knight’s fee and twenty shillings from each parcel of land held in socage yielding twenty pounds annually, were to be the maximum rates thereafter.

The great advantages gained by the nation under the Statute of Westminster were not won without a price. The same Parliament made a grant of a custom on wool, woolfells, and leather.[126] The parties to the grant were essentially the same as those who registered their assent in the preamble of the statute; there was, however, this singular difference, that it was done “at the instance and request of the merchants.” The amount levied was “a half-mark from each sack of wool, and a half-mark from each three hundred woolfells, which make a sack, and one mark from each last of leather, exported from the realm of England,” etc.

The importance, both in a forward view and in retrospect of this grant of a wool custom, is very great. Parliament in granting this custom assumed the power of assenting to a tax which previously had been considered within the peculiar province of the king. It made a definite statement of what was to be taken subsequently as the legal rate of duty chargeable upon exports of wool. The rate, which since the beginning of the century had been agreed upon between royal officers and merchants as their reasonable charge was this half mark (6s. 8d.) on each sack of wool weighing 364 pounds, or on the estimated equivalent of a sack, 300 woolfells, and a mark upon each last (or load) of leather.[127] Exactions above this rate were known as mala tolta, the evil tolls, and the phrase had been shortened to the single word maletolt. The forty-first chapter of Magna Carta had promised to all merchants freedom “from all evil tolls,” though it continued the “ancient and right customs.” Apparently, however, Henry III with respect to this clause as in many another similar instance, did not deem himself bound to adhere scrupulously to his promise. The Parliament of Edward I at Westminster in 1275 settled the matter; the “great and ancient custom” on wool was legally determined, and thereafter a larger exaction would be regarded as illegal.[128]

Edward summoned a second Parliament for the 13th October following in a manner which gives ground for the presumption that the presence of the knights of the shire in a parliament designed primarily for the raising of money, was already becoming a custom. The point cannot be better illustrated than by a translation of the writ itself.[129] “Since we have bidden the prelates and magnates of our realm,” so it goes, “to be present at our Parliament which we will hold ... at Westminster, to treat with us both concerning the condition of our realm and of certain of our business which we will declare to them at the same time, and as it is expedient that two knights from the county above-mentioned be present at the same Parliament from the body of discreet and lawful knights of the same county, by the reasons above-stated we command you that you cause to be elected in your full county-court (in pleno comitatu) by the assent of the same county, the said two knights and that you cause them to come to us at Westminster in behalf of the community of the said county on the said day, to treat with us and with the above-mentioned prelates and magnates about the above-stated business. And omit none of it.”

[Sidenote Attendance of Knights of the Shire “expedient” for uses of taxation]

Thus we observe that it was “expedient” for the lesser landholders to be present in a Parliament which was called for the purpose of securing the grant of a tax. The tone of the writ is most matter-of-fact, as though the knights of the shire were considered scarcely less usual attendants at Edward’s parliaments than the magnates themselves. That the king “declared unto them certain of his business” and that they proved amenable is exhibited by the fact that this Parliament granted a fifteenth of temporal movables.[130]

The next event of importance witnessed the extension of the function of levying taxes to the citizens and burgesses. By the fall of 1282 Edward found himself in financial difficulties. Since the Parliaments of 1275 taxation had been very light. He had received in 1279 a scutage of forty shillings on the fee on account of the Welsh war,[131] and he received assistance from the clergy in 1279 and the years following. Beside the income resulting from these grants, he still had his custom on wool, but it was far from sufficient for his needs, and he had been obliged to have recourse to the rigid enforcement of statutes, rigorous application of writs, notably that of Quo Warranto,[132] and in 1278 he had adopted the expedient, in after time to be exercised frequently, of compelling all who possessed £20 a year in lands to become knights, and to pay the fee incidental to the attainment of knighthood.[133]

The Welsh war came on again in 1282 and added to the king’s embarrassment. He was unwilling to call a Parliament and took the less public but also less efficient means of negotiating with individuals for money with which to carry on the war. He sent royal commissioners abroad through the country who should plead the king’s necessity and accept grants from sheriffs, bailiffs, and mayors as representing their respective communities, and also from individual citizens and countrymen upon their own behalf.[134] These private offerings tided the king over his immediate necessities. Late in the fall, however, he found his position untenable and was forced either to call a Parliament or to adopt some effective substitute. Being at Rhuddlan, in the center of hostile country, and having most of his barons with him, he was obliged to formulate a new plan for the attainment of his end or else to adopt existing machinery to his purposes. He sent out writs on the 24th November bidding the sheriffs send representatives to two provincial assemblies at Northampton or York, as the case might be, for the 20th January following. The members were to include all those who were capable of bearing arms, and who held lands to the annual value of £20, not already with the army; four knights from each county having full power for the community of the county; two men from each city, borough, and market town, having like power for the community of the same, “to hear and to do those things which we on our part will cause to be shown to them.”[135] The clergy also were summoned; the bishops were to bring their archdeacons, the heads of religious houses, and the proctors of the cathedral clergy.

These irregular assemblies convened as they were bidden, the clergy and laity meeting separately. The knights and burgesses at Northampton made a grant of a thirtieth on condition that the barons do likewise;[136] the clergy refused to make any offering at all because the parochial clergy were not represented. At York, the knights and burgesses made the grant of a thirtieth without condition; the clergy made promises which they did not keep. When the collection was made, allowances were admitted for the sums which had been contributed upon private negotiation. Notwithstanding the irregular character of these Councils in view of later developments,—irregular in that the parochial clergy and the baronage were not represented and that the meeting was not in a single general assembly,—they marked the “transition from local to that of central assent to taxation.”[137] The king had discovered that it was easier to attain his end through a Parliament than by private solicitation,—that is, if he were to wait for the assent of the people at all. It was a step on the road; Edward had decided in favor of summoning a Parliament as against asking for money from individuals. It was more profitable.

There is no further record of taxation until 1289, save that of a grant in 1288 from Nicholas IV, of an ecclesiastical tenth for six years in reward of Edward’s vow to undertake a crusade,[138] and a scutage in 1285 on account of the Welsh campaign of three years before.[139] Edward’s expenses, on the other hand, were heavy. The prosecution of his foreign interests in Gascony, where he had been in person for three years, was a heavy drain upon the exchequer. Parliaments of 1289 and 1290 At the Parliament of 1289 the treasurer, John Kirkby, laid the royal needs before the barons, who responded that they would not pay “until they should see the king’s face in his own land.”[140] Kirkby began to tallage the cities and boroughs and the other demesne lands of the king, “imposing upon them an intolerable sum of money.” It is probable that this as well as other royal tallages applied only to such of the cities and boroughs as were included in the royal demesne. As a matter of fact, most of the boroughs were included in the demesnes of the king.[141]

The following spring Edward married his younger daughter to the Earl of Gloucester and besought Parliament for an aid “pur fille marier,” though technically this was to be paid only in the case of the marriage of the king’s eldest daughter. Parliament proved well-disposed, however, and granted forty shillings on the fee. The manner in which the barons and bishops who composed this session of Parliament made their offering is noteworthy, in view of the fact that the tenants-in-chief intimated that they could speak only for themselves. They made their own grant of an aid and extended it “as far as in them lies,” to “the community of the whole kingdom.”[142] The barons made special note of the fact that the offering was an advance upon the two marks which had been granted to King Henry, and stipulated that this be not drawn into precedent. As a matter of fact, the tax fell only on the tenants-in-chief (just why can only be conjectured), and the collection was not made until many years afterward.

A second Parliament was held in July. To it Edward summoned two or three elected knights from each shire.[143] The design behind the calling of the Parliament was probably the securing of a grant of a fifteenth of temporal movables, since it develops that such a tax was laid at that session, by clergy and laity alike.[144] Edward made a further demand of a tenth of spiritual revenue, which the clergy granted him on the 2d October following.[145] Apparently these offerings to the king were in payment for his banishment of the Jews, who were hated for their usurious habits and for their religion; the laity sought their expulsion for the former reason and the clergy ostensibly for the latter, but the offence to their pockets doubtless did much to arouse their religious zeal against the Jews.

The interval between 1290 and 1294 does not furnish a wealth of material. The royal poverty coexisted with a spirit of restlessness on the borders and in France during the four years, and little was accomplished toward relieving either the one or the other. In 1291 the Pope had complicated Edward’s relations with the English clergy by giving him a tenth of spiritual revenue for six years,[146] and the barons holding estates in Wales gave a fifteenth in 1292. Edward also had recourse to distraint of knighthood, which as in 1282 was symptomatic of a straitened treasury.[147]

Edward in June, 1294, held at Westminster a Parliament which was attended by the magnates of England and John Baliol, King of Scotland. The barons determined upon war with France, and proceeded to provide for the outlay necessitated by it, not by a general grant, but with private contributions. John Baliol gave the income from the estates which he held in England for three years, and the other magnates “promised aid according to their abilities.”[148] But the supply was far from being sufficient;Seizure of wool, 1294 Edward was obliged to adopt extraordinary means to meet his obligations. Shortly before the Westminster Council Edward had made a move which later assumed large proportions in the parliamentary eye. He seized all the wool in the country, belonging both to clergy and laymen, and released it the following July at a rate which meant scarcely less than redemption, three to five marks on the sack, and which was greatly in excess of the rate specified in 1275. Edward had a shadow of legal sanction for his act, perhaps the consent of the wool merchants,[149] perhaps an ordinance of his Council.[150]

In any event, he had the great defense of the exigencies of war, a plea which he knew how to make effective. Early in July he seized coined money which had been deposited in the cathedrals and religious houses for safekeeping, and had it removed to his treasury in London. “And he got much money which he never after restored,” says the Chronicler.[151]

Edward summoned for the 21st September of the same year a general convocation of the clergy to London. Beside the usual body of prelates, there were in attendance elected representatives of the parochial and cathedral clergy. Edward demanded half the spiritual revenue, to the great distress of the ecclesiastics. They demurred, and urged a postponement which Edward granted them. Upon their reassembling, the king reiterated his demand upon pain of outlawry in case of nonfulfillment. Clergy grant money under pain of outlawry, 1294 The Dean of St. Paul’s was so greatly terrified that he died of fright, and then the grant was made.[152] This assembly takes its importance from the fact that here was a tacit recognition of the need of clerical consent through representatives to taxation.

On the 8th October, Edward addressed writs to the sheriffs ordering the election of two knights in each shire who were to come to Westminster on the 12th of the following month. They were to be of “full power for themselves and the entire community of the county aforesaid, to consult and consent for themselves and that community, to those things which the earls, barons, and chief men shall have agreed upon and ordained.”[153] The next day Edward sent out supplementary writs summoning two knights from each shire in addition to those previously called. There was no representation from the cities and boroughs. The laity proved more tractable than the clergy had been at their assembly in September, and readily accomplished Edward’s purpose. It is probable that their deliberations were not delayed, for on the same day with the assembling of the Parliament, was dated the appointment of the commissioners of collection. The laity of the baronage and the shires gave a tenth of all movables.[154] A sixth of movables was drawn from the towns by separate negotiation, or perhaps by way of tallage.[155]

The step to the events and attainments of the next year was not long, but it was of surpassing importance. The year 1295 is painted in scarlet on the canvas of constitutional progress in England. It witnessed the Model Parliament in the composition of which a principle was applied which must ever stand as the basic theory of popular legislative institutions; Events leading up to the Model Parliament, 1295 indeed, without it, there can be no lawmaking by the nation at all, and when the taxing power be included amongst the lawmaking functions, unless strict adherence be given to this principle, the taxpayer can never be assured of a voice in the laying of taxes. Edward I, furnishing the pattern, summoned the Model Parliament on the expressed theory that “what touches all, by all should be approved.” Here was the first authentic instance of a perfect and complete representation of the three estates in a national legislative body giving its assent to taxation.

The events immediately prior to the calling of the Parliament are of interest. Trouble was on with the Welsh, and a Scotch war began before the other was over. The French king had transgressed Edward’s Gascon possessions and his sailors had landed at Dover, putting a convent and some houses to the torch. Edward’s arms seemed doomed to universal failure; nowhere were his prospects bright. By no means the least serious feature of his position was an empty treasury. With the hope of devising the means of changing his fortune, he summoned to Westminster for the 1st August a Parliament composed of the barons and prelates of the realm. The session took place on the 15th August. The bulk of the debate was upon the proposal for papal mediation between England and France, and no attempt was made to raise money. But it was doubtlessly decided to ask for a grant at the meeting of Parliament intended for the following autumn.[156]

On the four days from the 30th September to the 3d October, Edward addressed writs to the clergy, the barons, and the sheriffs, the last of whom were to send up the representatives of the counties and the boroughs. In the writs to the clergy, by way of preamble Edward said, “As a most just law, established by the careful providence of sacred princes, exhorts and decrees that what affects all, by all should be approved, so also, very evidently should common danger be met by means provided in common.”[157] This legal maxim, which had previously held a place only in the minds of students of the law, was by this act become a most important element in the governmental practice of England.[158] The writs provided not only for the attendance of the prelates, but also for the sending up of representatives of the lower clergy,—the archdeacons and deans in person, a suitable proctor for the chapters, and two others for the parochial clergy of each diocese. All were to have “full and sufficient power ... to consider, ordain, and provide.”

The writs to the barons[159] were similar in tenor to the usual issuance upon such occasions. To the sheriffs it was “strictly commanded” that they “cause to be elected without delay” and sent up to Westminster “two knights from the aforesaid county, two citizens from each city in the same county, and two burgesses from each borough, of those who are especially discreet and capable of acting.” All were to have “full and sufficient power for themselves and for the community of the aforesaid county ... and the communities of the aforesaid cities and boroughs separately, then and there for doing what shall then be ordained according to the common counsel in the premises; so that the aforesaid business shall not remain unfinished in any way for defect of this power.”[160]

The Parliament, since known as the Model Parliament, assembled the 27th November, 1295, in accordance with the summons of the king. Each of the estates met by itself, and each made its grant to the king independently of the others.[161] The barons and the knights of the shire gave Edward an eleventh of their movables, the clergy a tenth, and the burgesses and citizens a seventh.[162] Here was the perfect form for the laying of taxes. In 1283 the provincial councils at Northampton and at York had suggested the composition of the Model Parliament, but the foreshadowed form was far from perfect. In 1295 the question was fully answered as to how the people should assent to taxation, in case their assent should be asked. The Model Parliament furnished the perfect mechanism; the question was still in the air, however, as to whether this mechanism should be the sole instrument by which the laying of taxation should be performed.

Events, however, were tripping one another up in their haste to bring forward a suitable answer. The Parliament of 1296, which met at Bury St. Edmund’s on the 3d November, clinched a precedent which should have its weight in making the reply. Its constitution was precisely the same as in 1295; the barons and knights gave a twelfth of their movables, and the citizens and burghers an eighth.

The clergy, however, held off. According to the understanding reached the previous December when Edward accepted from them a tenth in lieu of a larger grant, they were to meet a demand with a further contribution of like amount,[163] unless peace be declared in the interval. In consequence, Edward was scarcely ready to accept the apology of Archbishop Winchelsey; the archbishop declared that should the clergy acquiesce, the papal will expressed in the recently published bull “Clericis laicos”[164] would be contravened, and that Edward puts the clergy in outlawry therefore no grant would be forthcoming. He would give his final answer after meeting the clergy of his province at St. Paul’s early in January, 1297. When at last his reply was presented, it was in tenor different from that given in November; the Pope’s will was clear and it must hold. Edward moved swiftly. Remembering the satisfactory effect of his threat of outlawry in 1294, he immediately placed the clergy beyond the royal protection.[165] Some of the clergy won back the favor of the king by making individual contributions to the royal treasury, an evasion of the terms of the papal bull which was quite acceptable to Edward. On the 12th February, the king, weary of waiting for a favorable movement from Archbishop Winchelsey, ordered the seizure of the lay fees of the clergy in the see of Canterbury, whereat the archbishop brought forward his weapon of excommunication. Thus did Edward find disposed against himself and the royal cause the powerful body of English churchmen, at a moment when their adherence would have been of vast advantage.

The Scots had been put down during the year 1296 and Baliol removed forever from Scotch territory. The momentary peace on the borders made Edward feverish to avenge himself upon Philip of France, who was making free with Gascony. The trouble with the church had served to delay preparations which might speedily have reached completion upon the granting of money at the November Parliament, and Edward was in no temper to brook further interference. He had formulated a plan of campaign against the French which provided not only for an expedition into Gascony in reinforcement of the army already there, but for the landing of a powerful force in Flanders. The latter he intended to lead in person, but the conduct of the Gascon army he hoped to delegate to his barons. With the intention of securing their consent he Struggle with the barons over service in Gascony called a meeting of the baronage at Salisbury for the 24th February. Neither the clergy nor the knights and burgesses were present. The barons held freshly in mind the recent opposition of the clergy and they were in no mood to forego any tightening of the royal bonds upon themselves.

Edward urged them to go into Gascony, and straightway one by one they began to make excuses. To the king, burning to defend the English possessions abroad and already overwrought by the long struggle with the churchmen, the refusal savored of disloyalty, and in requital he threatened them with forfeiture of their lands. The two great earls Roger Bigod, Earl of Norfolk and Marshal of England, and Humfrey Bohun of Hereford, the Constable, were quite as backward in meeting the king’s wishes and no more favorably received.

“With you, O King,” said Earl Roger, “I will gladly go: as belongs to me by hereditary right, I will go in the front of the host before your face.”

“But without me,” Edward assured, “you will go with the rest.”

“Without you, O King,” Earl Roger declared, “I am neither bound to go, nor will I.”

“By God, Earl,” swore the king, “You shall either go or hang!”

“By the same oath, O King, I will neither go nor hang!”[166]

In these words and on these grounds the Earl Marshal of England refused to undertake foreign service, and the Council scattered. Edward, not to be undone, straightway set about preparing for an expedition independently of his baronage. Seizure of wool He laid hands upon all the wool and woolfells of the country, that being the commodity most readily convertible into money, and ordered that it be carried to the seaports. In default of obedience, this wool passed to the crown by confiscation. Every merchant who was the possessor of more than five sacks received tallies from the royal commissioners which might or might not secure payment in the future.[167] Those who had less than five sacks were allowed to retain it upon paying a toll of forty shillings on the sack. Simultaneously, Edward directed at every county a demand for 2000 quarters of wheat, a like quantity of oats, and a supply of beef and pork. Whereas in 1294 Edward had been able to plead the consent of the merchants to his toll on wool, in the present instance no plea was possible save the exigencies of the case, and that was no defense at law. So Edward, by stress of circumstance, was obliged to forfeit the support of a growing and exceedingly important body of his people.

The king determined to make a final attempt to win the barons from their contumacy. For the 7th July, he summoned the whole fighting force of the kingdom to London; the assembly was to include all who held lands to the annual value of £20, no matter what the tenure.[168] From these a demand for foreign service was obviously unconstitutional, since they were not immediately bound to him. Coupled with the weakness of the king’s position was the continued opposition of Bohun and Bigod; they and a large number of the other barons had surrounded themselves with a force of knights to the number of fifteen hundred, and, though they were not as yet openly hostile, they had been able to shield their lands from the royal exactions of wool and wheat.[169] When Edward ordered the Marshal and the Constable to perform their offices, they refused.

Thus it was that Edward found himself pitted not only against the King of France, but also against the church, the merchant class, and his own baronage. Of these the church showed itself most amenable to placation. Edward restored to Archbishop Winchelsey the lands of the see of Canterbury which he had confiscated.[170] To strengthen further a position which at best was exceedingly weak, Edward made a dramatic attempt to win over to his cause the support of the people.

On the 14th July, a week after his unsuccessful council with the barons, he appeared on a wooden stage erected in front of the great hall at Westminster and addressed the populace. He asked that they forgive the harshness of his acts, but reminded them that what money they had given him had gone to subdue enemies plotting to drive the English tongue from the earth.

“Behold,” he cried, his voice choked with tears, “I am going to expose myself to danger for your sakes; I pray you, if I return, receive me as you have me now, and I will restore to you all that has been taken. But if I return not,” and at this he brought forward his son, the young Edward, who was standing near him on the platform, “crown my son as your king.”[171] The people threw up their caps and promised fealty to the king. The archbishop declared his resolve to be faithful.

But neither the reconciliation with the church nor the adherence of the London populace brought him money, and in so far as advantage was reckoned in terms of shillings, Edward was no better off than before his council of the 7th July. He had recourse to the old expedient of individual negotiation. He consulted in a private audience the chief men still remaining of those who had gathered for the military levy; he assumed their ability to grant taxes upon the analogy of a Parliament, an assumption scarcely reasonable in view of their depleted numbers.His financial expedients Notwithstanding the fact that Earls Roger and Humfrey remained obdurate, such of the barons and knights as were there granted an eighth and the citizens and burghers a fifth, on the somewhat hazy understanding that the king should confirm the charters. Edward on the 30th July gave orders for the collection of the tax and issued writs for the seizure of 8000 sacks of wool, for which the merchants received tallies as a record of credit at the exchequer.[172]

Then he went down to the coast and prepared to embark. Putting great faith in the continued support of the people, he addressed to them an eloquent plea for loyalty to the crown as against the barons. He spoke of the exactions of money to which they had been subjected, and declared that, severe as was the pain which had been inflicted upon the people, equally great was his own distress; that the money had been spent for “le commun profit du reaume, pur son pople honyr et destruyre.”[173] The barons, The barons’ grievances on the other hand, immediately came forward with a list of grievances which they presented to the king, complaining, amongst other things, of the aids, tallages, and prises which the king had lately levied. So afflicted were they with “divers tallages, aids, and prises,” such as those upon corn, oats, malt, wool, hides, oxen, kine, and salt meat, that it would have been impossible for them to equip for any foreign expedition. More than that, they could make no grant of an aid, because of their great poverty following the exaction of the aforesaid tallages and prises; indeed, there were “many who had no sustenance, and who could not till their lands.” The tax on wool was much too heavy, no less than 40s. on the sack; wool comprised half the wealth of the nation, and the tax was equivalent to a fifth part of the value of the whole land. Magna Carta and the Charter of the Forest were both disregarded, and many acts were done in defiance of them.[174]

Edward did not return a definite answer; the call to war sounded too loudly. Before he embarked he issued orders for the collection of Edward embarks for Flanders a third of clerical temporalities in a most peremptory manner; on the 10th August the clergy had expressed hopes of being able to gain the Pope’s permission to disregard the provisions of “Clericis laicos,” but of late they had showed a disposition to stand with the baronage. Finally, on the 22d August, Edward succeeded in getting up sail and made for Flanders.

But he could not escape the issue. Almost before England had sunk below his horizon Bohun and Bigod were at the Exchequer loudly protesting against the collection of the aid which had been irregularly granted to Edward five weeks previously. They went to the extreme of forbidding the Barons of the Exchequer to proceed with their work of taking the tax until Edward should make formal confirmation of the Charters.[175] The Londoners forgot their loyalty to the king, and swore by the earls. The young Prince Edward, afterward king, whom Edward had left as his regent, tried to throw a dam across the swelling river by promising that the eighth should not be taken into precedent.[176] This was published in proclamation on the 28th August, but it availed nothing. The fifth which had been asserted as owing from the cities and boroughs was lost sight of.

Edward, two days before his departure for Flanders had sent out summonses to a number of barons and knights to meet his son on the 8th September at Rochester. But before that date was reached, the necessity for a full Council was apparent. Accordingly, on the 8th September, messages were sent out which called most of the barons of the royal party; on the 9th, Archbishop Winchelsey, the Constable and the Marshal, were summoned,[177] and on the 15th letters were addressed to the sheriffs ordering an election of knights of the shire.[178] No representatives of the cities and boroughs or of the inferior clergy were called.

The Parliament was summoned for the octaves of St. Michael (the 6th October), at London. The great nobles, coming with their train of armed soldiers, both foot and horse, had command of the situation.[179] They demanded that the young regent confirm Magna Carta and the Charter of the Forest, together with certain supplementary articles. Prince Edward, acting on the advice of his councillors, agreed, and straightway on the 10th October, sent the Charters and the new Principle that grants must await redress of grievances provisions to his father in Flanders for final confirmation. Nor was that enough. “The earls,” says Bishop Stubbs, “took advantage of their strength to force on the government the principle, which both before and long after was a subject of contention among English statesmen, that grievances must be redressed before supplies are granted.”[180] The irregular and much disputed grant of an eighth they declared null, and in place of it they substituted a ninth from such of the laity as were in attendance, a grant in which the towns subsequently were included. Here was one of the opening battles in the war which was to decide whether or not Parliament, sitting guardian of the public purse, could by reason of that guardianship, establish its control over the executive as well as the legislative acts of the nation.

The articles found the king at Ghent on the 5th November and he set his name both to the Charters and to the provisions supplementary to them. The difficulties with the barons thus concluded, it was not long before the clerical atmosphere cleared also.Confirmation of the Charters On the 20th November, the clergy, in response to a suggestion from Archbishop Winchelsey, evading the letter of “Clericis laicos,” initiated a tax upon themselves, a fifth from the northern province, and a tenth from the southern.[181] The purpose of the levy was the defense of the realm against the Scots who had again invaded the north.[182]

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.

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]

The appearance of Confirmatio Cartarum marked a stage in the history of parliamentary taxation. During the reigns of Henry III and Edward, machinery was constructed which could carry out the chapters of Magna Carta providing for taxation by assent. The Parliament of the three estates, assembled for the purpose of meeting the pecuniary necessities of the king, proved itself to be the easiest and most effective means by which the whole nation could grant taxes. But the evolution from the Commune Concilium, the rough prototype of Parliament, had scarcely gone farther than to supply a convenient instrument of taxation. In 1297 every tax did not need the assent of Parliament as the prerequisite to its levy; Confirmatio Cartarum was not all-inclusive. More than that, the question was still undetermined as to whether the granting of supplies should always wait upon redress of grievances. If Parliament should maintain that principle in practice, then its hold would be secure upon the executive. Power in 1297 was not far from a balance between king and nation.

If the evolution of a government can ever be attributed to the directing skill of man rather than to the slow weaving of events, the construction for England of an engine of popular taxation can be ascribed to Edward Plantagenet, and in less degree to the drafter of the working plan, Simon de Montfort. Edward perceived the nation’s problem and adapted such means as lay near his hand to its solution. So it was that an assembly, not only of the magnates of the kingdom, but of elected knights of the shire, of parish priests from the inferior clergy, of merchant citizens and burgesses from the towns, came together to provide in common for the common need.