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CHAPTER TWELVE. - Misc (Magna Carta), Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction 
Magna Carta: A Commentary on the Great Charter of King John, with an Historical Introduction, by William Sharp McKechnie (Glasgow: Maclehose, 1914).
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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 on 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 city 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 different reasons. It came indeed to be interpreted in a broad general sense by enthusiasts who, with the fully–developed British Constitution before them, found in it the modern doctrine that the Crown can impose no financial burden 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, feudal tenants and the citizens of London respectively.
Protection of Crown Tenants from arbitrary Exactions.
Apart from payments such as reliefs and amercements, the occasions of which were independent of the royal will, feudal exactions were of two types: scutages and aids. By these two expedients the King could arbitrarily increase the burdens of his feudal tenants beyond the letter of the original feudal contract. Recognized usage, however, required the consent of the vassals before they were subjected to extraordinary exactions. The barons were within their rights in seeking to embody this general principle in Magna Carta, although it would appear (from comparison of the versions of 1215, 1216 and 1217) that they had difficulty in devising a proper formula to give effect to it. The present chapter attempts a rough compromise of the question at issue, by requiring consent of the Crown tenants to all scutages and also to aids other than the recognized three.1
The three recognized aids are here specified, but no reform is attempted with regard to them, and in particular (in marked contrast to the care taken in chapter two to define the exact rate of “relief”), nothing is said of the amount payable in name of “aid.” It is only the extraordinary aids1 that are regulated by this chapter: these are not to be taken without “common counsel” or the “Common Council”—for the Latin will bear either of these two meanings, which indeed in 1215 were probably not yet differentiated from each other. If the Crown tenants by “common counsel” could refuse a grant, they could a fortiori make one upon conditions; fixing, for example, the amount of an extraordinary aid as well as the occasions of its payment. So far as aids were concerned, there was here no innovation upon existing practice.
With regard to scutage, the requirement of consent was something very different. Scutage, in lieu of military service, was of the essence of the feudal relation: to make it impossible for the Crown ever to levy a scutage without consent of those who had to pay, was to go much beyond redress of the grievance suffered under John: it was to impose on him restrictions that his father had never acknowledged.2
The total omission of this chapter in 1216 may have been partly occasioned by the consciousness that it contained an innovation unwarranted by custom: the reissue of 1217 said nothing of aids, and contented itself, in regard to the vexed question of scutages, with the vague declaration that for the future these should be taken as had been the custom under Henry II.3
In spite, however, of the omission of chapter 12 from all reissues of the Great Charter, it was customary for Henry’s advisers to consult “the Common Council” before exacting a scutage or aid. This was done, for example, in 1222, when a Council granted an “aid for the Holy Land” of three marks for an earl, one mark for a baron, and twelve pence for a knight.1 The consent of a Council, indeed, was usually taken even for one of the three recognized feudal aids.
Protection of London from arbitrary Exactions.
Some attempt was made to protect the men of London from arbitrary demands: the insurgent leaders in this way discharged part of their debt to an ally with claims upon their gratitude.2 The Articles of the Barons contained important provisions affecting London; and these were embodied in the Charter in slightly altered terms.3 The present clause, for example, uses only one word, “aids,” where the 32nd Article of the Barons referred to “tallages and aids.” There is no evidence to show whether the omission had been deliberately planned, or was 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.4
a vague word, is applicable to any payment that can be regarded as, in any sense, a freewill 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.5
would appear to mean a toll or exaction imposed on individuals who had no option of refusal. Villeins were talliable at their lord’s caprice, without appeal. Liability to tallage, however, did not necessarily imply servile status; for the King could tallage all inhabitants of towns on royal demesne. London itself, for all its wealth, political importance, and chartered privileges, still shared this unwelcome liability.1
Comparison of Aid and Tallage.
The “aid,” being a voluntary offering, differed fundamentally from tallage, which was a forced payment. In theory, the citizens were free to name the sum they proposed to pay. If the King was satisfied, the city collectively became responsible for assessing, collecting and paying over the money: the King’s representatives had no need nor right to interfere with individual citizens. The amount of a tallage, on the contrary, was fixed by the King’s Justices, assessed by them per capita on individual citizens, who were subject to direct distraint by the agents of the Crown. It was to the advantage of a borough to forestall, by 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 more to the King’s advantage also than a tallage: not only was he saved the trouble, expense, and delay of collection, but he obviated risk of loss through the insolvency of some of the individuals fixed upon.
A story told by Madox2 brings out the contrast. A dispute had arisen between the King and the Londoners in 1255. 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 outright their liability to tallage, but were confronted with entries in Exchequer and Chancery Rolls which contradicted their contention. On the morrow, the mayor and citizens acknowledged that they were talliable, and paid the sum demanded.
London’s attempts to escape tallage.
There is ample evidence that London in John’s reign was galled by the liability to tallage, and was ready to seize any loophole of escape. John’s letter to the city in 12061 refers to the serious damage done to his capital by the manner in which tallages had been assessed and collected. A document compiled about 1210, in the interests of London, partly from authentic sources, purporting to be a Charter by William I., declares that all freemen shall hold their lands and possessions “free from every unjust exaction and from every tallage.”2 Finally, Miss Bateson in 19023 called attention to a document of nine articles, which seem to be the heads of a petition prepared by the Londoners, probably in 1215, in which they ask inter alia the abolition of all tallages except per communem assensum regni et civitatis.
Effects of omission of “tallage” from Magna Carta.
Why, if not through pure inadvertence, was the word “tallage,” occurring in Articuli Baronum, omitted from the Charter? Widely different answers have been given. Prof. G. B. Adams4 ingeniously argues that the omission was deliberately made in the interests of London. That city, now a full–blown commune, enjoyed the status of a feudal vassal: though liable to aids, its burghers resented any allusion to the servile “tallage” in connection with themselves. If Prof. Adams here interprets their attitude aright, the Londoners were ill–advised to refuse, on any such punctilio, to secure in the Charter incorporation of a definite protection from arbitrary tallage by the Crown—a grievance from which they were destined to suffer for more than a century thereafter.
The true explanation, however, is more likely to lie in an opposite direction. The omission was, perhaps, made deliberately to the detriment of London, in deference to John’s strong feeling on a point that did not affect the barons personally. John, for his part, would be readily persuaded to renounce the right to take “aids” from the wealthy traders of the capital, if he preserved the more drastic privilege of tallaging them at will. The word “tallage” was dropt from the Charter, not to gratify London’s pride, but to enable the Crown to have access to the city’s treasure chests.
Nature of the protection accorded to London.
The arrangement of this chapter is noteworthy: after securing redress of abuses pressing on the barons, a few comparatively careless words are added: “in like manner it shall be done concerning aids from the city of London.” The words “in like manner” are difficult to interpret, for the two cases are far from parallel. Do they mean that no aid can be taken from London without the same “common counsel of the realm” previously stipulated for the taking of scutages from the tenants in chief? Probably not, for the method provided in chapter 14 for obtaining “the common counsel” would have been peculiarly ill–adapted to protect the Londoners, whose interests were not represented in the baronial assembly. The Petition of nine heads1 had asked more than this, namely, that no tallage should be taken without common assent “of the kingdom” (that is, of the baronial assembly) and “of the city”—a double consent being thus required, as though “the common counsel” was not enough.
High authorities suggest a different explanation for the clause in chapter 12, which is read simply as an assertion that only “reasonable” aids should be taken from London.2 If that be so, no criterion of reasonableness is suggested, and such might be difficult to find.3 Subsequent history sheds no clear light on the intention of this clause. As the chapter was omitted from all reissues, no occasion ever arose of testing its meaning by actual practice.
In deciding between the two suggested explanations, however, it should be noted that, though “councils” framed on the model of 1215 continued for half a century to meet, they made no claim to interfere with the Crown’s right to tallage London. Neither Henry nor Edward waited for the “common counsel of the realm” before enforcing their demands.
Whatever may have been the intention of the framers of this clause with regard to London, it is notable that they allowed that city to stand alone. Magna Carta completely ignored that provision of the Articles of the Barons which extended the same protection “to citizens of other places who thence have their liberties,” meaning the boroughs whose chartered privileges had been modelled upon those of the metropolis.1 Here, again, the alteration was probably a concession to John made by the barons at their allies’ expense.2
Later history of the Crown’s right to tallage the towns.
The Crown continued at intervals to take tallages from London until 1340. It has sometimes been maintained, indeed, that the Confirmatio Cartarum of 1297 was intended to abolish this prerogative, and a document once considered 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 unauthentic; while, if the Confirmatio itself was intended to relieve the towns from tallages, it signally failed. Edward III. exacted tallages from London and other towns. Parliament, however, succeeded, in 1340, in passing a statute which abolished unparliamentary taxation of every kind. This act, sometimes styled by modern writers “the real statutum de tallagio non concedendo,” finally settled the law,3 but did not prevent the King from trying to break that law. Edward frequently disregarded the restrictions 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.
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 doctrine of the nation’s right to tax itself.1 Yet the very idea of “taxation” in its abstract form, as opposed to specific tallages and exactions, 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 barons 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 counsel of the realm” was required for three exactions at the most: for scutages and for extraordinary aids from feudal tenants, and possibly also for aids from the city of London: that is all. Not a word is said of other forms of taxation or other groups of taxpayers. (2) If under–tenants received, by chapter 15, protection against mesne lords, they received none against the King. The Charter affected, not national “taxation,” but feudal dues. (3) The scant measure of protection 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, while the Crown’s right to raise the “farms” of its own demesnes was reserved.1 (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 prises and custom dues 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 assembly to be convened for taking “common counsel” was a narrow body, representative neither of the ranks and classes of the community, nor of the separate national interests, nor yet of the various districts of England. Its composition was 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.2
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 doctrine of self–taxation; it primarily affected impositions levied by John, not qua sovereign but qua feudal lord. Such as it was, it was omitted, along with its corollary (chapter 14), in 1216 and subsequent reissues.
[1 ]See supra, p. 65.
[1 ]“Extraordinary aids” here mean all aids other than the three normal ones.
[2 ]Miss Norgate, Minority, 15, thinks the innovation so undoubted as to justify Innocent’s Bull annulling the Great Charter. Cf. Adams, Origin, 276 n.: “a demand in regard to scutage which custom did not warrant.” Cf. ibid., 221–2, and supra, 71.
[3 ]See supra, p. 148.
[1 ]Miss Norgate, Minority, p. 194.
[2 ]See supra, p. 35.
[3 ]See Article 23 (which became c. 33), Article 31 (c. 41), and Article 32 (cc. 12 and 13), and cf. supra, p. 117. Whether Article 12 (c. 35) was more a benefit to, than a restraint upon, traders seems doubtful.
[4 ]See, however, Ballard (British Borough Charters, lxxx. ff.) who seems to make the two things shade into each other.
[5 ]Bracton, I. 288, holds that aids of this sort are personal not predial, for they look to persons not fiefs. Auxilium burgorum was sometimes a technical term, meaning sums paid by boroughs in lieu of ‘Danegeld. See Round, Eng. Hist. Rev., XVIII. 309. In our text, however, “aids” must be more broadly interpreted.
[1 ]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.” For lists of prelates and barons paying tallage see Ludwig Riess, Historische Zeitschrift, Vol. 14, N.S. pp. 21 ff. (1904).
[2 ]I. 712, citing Mem. Roll 39 Henry III.
[1 ]Rot. Claus., I. 64.
[2 ]Willelmi Articuli Londoniis Retractati, in Liebermann, Gesetze, I. 490, c. 5.
[3 ]Eng. Hist. Rev., XVII. 726.
[4 ]Ibid., XIX. 702; Origin, 358 ff.
[1 ]See supra, p. 236.
[2 ]Lords’ Report on the Dignity of a Peer, I. 65.
[3 ]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.
[1 ]Cf. however, Davis, England under Normans, 380.
[2 ]It might 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.
[3 ]See Stubbs, 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.”
[1 ]E.g. Taswell–Langmead, Engl. Const. Hist., 106. Dr. Stubbs, Const. Hist., I. 573, considers that these words “admit the right of the nation to ordain taxation.”
[1 ]See infra, under c. 25.
[2 ]Even when an honour escheated, its tenants “were not suitors of the Curia Regis.” See Report on Dignity of a Peer, I. 60.