Magna Carta: A Commentary on the Great Charter of King John / With an Historical Introduction

CHAPTER ELEVEN.

Et si quis moriatur, et debitum debeat Judeis, uxor ejus habeat dotem suam, et nichil reddat de debito illo; et si liberi ipsius defuncti qui fuerint infra etatem remanserint, provideantur eis necessaria secundum tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo servicio dominorum; simili modo fiat de debitis que debentur aliis quam Judeis.

If the preceding chapter deprived Jews of part of the interest they claimed, the present one deprived them also in certain circumstances of part of the security on which they had lent the principal. The widow’s dower lands were discharged from her husband’s debts, only two-thirds of the original security thus remaining under the mortgage. Even this must submit to a prior claim, namely the right of the debtor’s minor children to such “necessaries” as befitted their station in life. Magna Carta, at the same time, with characteristic care for feudal rights, provided that the full service due to lords of fiefs must not be prejudiced, whoever suffered loss. Finally, these rudiments of a law of bankruptcy were made applicable to Gentile creditors equally as to Jews. These provisions, with others injuriously affecting the royal revenue, were omitted in 1216, not to be restored in future charters: but they were re-enacted in their essential principle, though not in detail, by the Statute of Jewry, which limited a creditor’s rights of execution to one moiety of his debtor’s lands and chattels.

CHAPTER TWELVE.

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.

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 exactly opposite reasons. It came indeed to be interpreted in a broad general sense by enthusiasts who, with the fully-developed British constitution before them, read the clause as enunciating the modern doctrine that the Crown can impose no financial burden whatsoever 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 of John’s subjects; his feudal tenants, and the citizens of London respectively.

I. Protection of Crown Tenants from arbitrary Exactions. The pecuniary obligations of the barons may be arranged in two groups according as they depended on the king’s own actions, or were determined by circumstances which lay beyond the royal control. Payments of the former type (such as reliefs and amercements), exigible only at fixed dates or on the occurrence of specific events, were treated of elsewhere in Magna Carta. The present chapter sought to prevent John from extorting additional payments either absolutely at his own discretion, or because of situations which he had purposely created as excuses for demanding money. The entire field of such arbitrary feudal dues was covered by the words “scutages” and “extraordinary aids,”^[461] the use of which protected the barons from every sort of compulsory payment which might be demanded by the king at his own discretion.

(1) Scutage. The development of the system described by this name has been traced in the Historical Introduction.^[462] Used at first as an expedient for substituting, in the Crown’s option, money payments for military service, it became, under John, a regular source of revenue, imposed almost every year on one pretext or another, while it was levied at an increased rate, and under conditions of a vexatious and burdensome nature. If any one cause contributed, more than the others, to the rebellion which culminated at Runnymede, it was John’s method of imposing scutages. This chapter, then, attempted to strike at the common root from which many grievances grew. The Crown was no longer to be left sole judge of the occasions on which a scutage might be demanded. “The common consent (or counsel) of the realm” must first be obtained. If this provision had been carried into practice, it would have removed the supreme control of the system of scutages from the Crown which received the money, to the Crown tenants who paid it. This truly radical remedy included the remedy of all minor abuses as well, since the collective body of barons who could refuse payment unconditionally, might a fortiori make grants under such conditions as they chose. Henceforward it would lie with them to say, on each occasion, whether the old normal 20s. per knight’s fee should be superseded by some other rate, either higher or lower. This provision was never enforced, being omitted altogether from the reissue of 1216, while the clause substituted for it in the Charter of 1217 took an entirely different form.^[463]

(2) Feudal aids. It was recognized from an early date that in emergencies feudal vassals ought to contribute to their lord’s support in proportion to the extent of their holdings. Such payments were known as aids, and were originally supposed to be free-will offerings.^[464] By John’s reign they had fallen into two groups—ordinary and extraordinary. The former, three in number, were only dealt with incidentally by the Charter.^[465] It is with the “extraordinary” aids that this chapter specially occupies itself. These are placed in the same position as scutages: the Crown cannot exact either, “unless by common counsel of the realm.”

II. Protection of Citizens of London from arbitrary Exactions. Some attempt was made to protect the men of London, as well as the Crown tenants, from John’s demands for money. The insurgent leaders in this way discharged part of their debt to an ally with special claims upon their gratitude.^[466] The Articles of the Barons had contained several important provisions affecting the capital; and these were embodied in the Charter in slightly altered terms, which suggest some influence at work not altogether friendly to the citizens.^[467] The present clause of the completed charter, for example, uses only one word, “aids,” where the 32nd of the Articles of the Barons had referred to “tallages and aids.” There is no evidence to show whether the omission had been deliberately planned, or was merely 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.

(1) “Aid” is the vaguer word, applicable to every payment which can be regarded as in any sense a free-will 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.

(2) “Tallage” was a tax levied at a feudal lord’s arbitrary will upon more or less servile dependants, who had neither power nor right to refuse. The frequency of these exactions and the sums taken depended solely on the lord’s caprice, restrained by no law, but only by such limits as an enlightened self-interest or regard for public opinion might dictate. Liability to arbitrary tallage was thus one of the chief marks of an unfree status, and was contrasted with the impositions levied on those freeholders who held by knight’s service, by socage, or by frankalmoin. The owner of the smallest manor, like the owner of the greatest barony, might tallage his own villeins; and the king had a similar privilege over a wider field. His rights extended even over civic communities who held royal charters, since towns were theoretically on the royal demesne, and therefore liable to tallage. The great city of London, in spite of its growing wealth, its political importance, and its list of chartered privileges, still shared this liability.^[468]

(3) Comparison of tallage and aid. The tallage, as a forced payment, thus differed fundamentally from the nominally free “aid,” while two minor points of difference may also be noted. In arranging an aid the givers usually suggested the amount, though the king might reject the offer as insufficient; while the amount of a tallage, on the other hand, was arbitrarily fixed by the Crown. Further, while the aid granted by a community was a joint offering which the citizens assessed and collected by their own officers, and for which they admitted a collective responsibility, the Crown itself allocated on whom it pleased the particular sums of tallage to be paid by each individual, no joint liability being admitted by those who had to pay. It was obviously to the advantage of a borough to forestall, by the present of 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 also more to the king’s advantage than a tallage of equal amount. Not only was he saved the trouble, expense, and delay of the collection, but he obviated risk of loss through the insolvency of some of the individuals fixed upon.

A story told by Madox^[469] brings out the contrast. A dispute had arisen between the king and the Londoners. 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 liability to tallage altogether, but were confronted with entries in Exchequer and Chancery Rolls which entirely contradicted their audacious contention. On the morrow the mayor and citizens acknowledged that they were talliable, and gave the king the sum he demanded.

(4) Effects of the omission of the word “tallage” from Magna Carta. As the two words appearing in the Articles of the Barons had well-recognized differences of meaning, it is unlikely that the omission of one of them from the Charter was regarded as a purely verbal change. John would readily enough dispense with the right to exact “aids” from the wealthy traders of his capital, if he still preserved his privilege of tallaging them at pleasure. The omission was perhaps deliberately made in deference to John’s strong feeling on a point which did not personally affect the barons.^[470] Another omission should be noted. The Articles had extended protection not only to Londoners, but also “to citizens of other places who thence have their liberties,” meaning the towns whose chartered privileges had been modelled on those of the metropolis. Magna Carta completely ignored, in this connection, all towns except London.^[471]

(5) The nature of the protection afforded by Magna Carta. The arrangement of the present chapter is peculiar. After treating fully of the abuses of Crown tenants, the case of the Londoners is thrown in carelessly in a few words: “In like manner it shall be done concerning aids from the citizens of London.” Various interpretations of the words “simili modo” are possible. High authorities suggest that the clause means no more than that aids taken from London, like ordinary aids taken from Crown tenants, must be “reasonable.”^[472] If this is so, a criterion of reasonableness different from that applicable to knights’ fees became necessary; and this would have been hard to find.^[473]

It is equally probable, however, that the intention was to render the same consent necessary to the validity of aids, asked from London, as had previously been stipulated in the case of scutages from tenants in chief. If this is so, then the method provided in chapter 14 for taking “the common counsel of the realm” was peculiarly ill-adapted to secure to the men of London any effective voice in taxing themselves. The necessity for the consent of an exclusively baronial assembly could not adequately protect the Londoners, whose essentially different interests were unrepresented.

Subsequent history casts no light on the original intention of this clause; no occasion of testing its meaning ever occurred, the entire chapter of which it forms part having been omitted from all subsequent issues of the Charter.

(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]

CHAPTER THIRTEEN.

Et civitas Londonie habeat omnes antiquas libertates et liberas consuetudines suas, tam per terras, quam per aquas. Preterea volumus et concedimus quod omnes alie civitates, et burgi, et ville, et portus, habeant omnes libertates et liberas consuetudines suas.

A full list of the liberties and customs of London would be a long one; and an account of how each of these grew up and was confirmed by the Crown need not be given here. The most cherished of the privileges enjoyed in John’s day were the right to appoint a civic chief, who bore the name of mayor, and the right to choose sheriffs of their own who should collect the city’s firma^[479] (or annual rent payable to the exchequer), so as to obviate the intrusion of royal bailiffs. Only a brief account of the way in which the metropolis obtained these two privileges need be here attempted.

The chief feature of London before the Norman Conquest seems to have been lack of proper municipal organisation. Dr. Stubbs describes the capital during the eleventh century as “a bundle of communities, townships, parishes, and lordships, of which each has its own constitution.”^[480] It was thus a collection of small administrative units, rather than one large unit. Some semblance of legal unity was, it is true, afforded by the folkmoot, in which the citizens regularly assembled; by its smaller council known as “husteng”; and perhaps also by its “cnihtengild” (if, indeed, this third body be not entirely mythical); while the existence of a “portreeve” shows that for some financial purposes also the city was treated as one whole. London, however, prior to the reign of Henry I. was far from possessing machinery adequate to the duties of a local government for the whole community.

The first step towards acquiring a municipal constitution is generally supposed to have been taken by the citizens when they obtained a charter from Henry I. in the last years of his reign (1130-35). This is not strictly accurate. London, indeed, by that grant gained certain valuable privileges and enjoyed them for a short time, but it did not obtain a constitution. The chief rights actually conferred by Henry were as follows:—(1) The firma was fixed at the reduced rate of £300 per annum, the citizens obtaining for this payment a lease in perpetuity of their own city with the surrounding county of Middlesex—the grant being made to the citizens and their heirs; (2) they acquired the right to appoint whom they pleased as sheriffs of London and Middlesex, implying the exclusion of the king’s tax-collectors by men of their own choosing; (3) a similar right of appointing their own nominee as justiciar was also conferred on them, to the exclusion apparently of the royal justices of eyre. Many minor privileges were confirmed which need not here be specified. Mr. J. H. Round^[481] argues with convincing force that these concessions, important as they were, did not confer a civic constitution upon London. Henry’s charter, in his opinion, confirmed all the already existing separate jurisdictions and franchises, perpetuating the old state of disunion, rather than creating a new principle of cohesion. He proves, further, that these benefits continued in force only for a few years after Stephen’s accession. That king was coerced by the Earl of Essex into infringing the citizens’ chartered rights; and London did not regain the ground thus lost until the reign of Richard I.

Henry II., indeed, granted a charter to the citizens in 1155, which is usually interpreted as a full confirmation of all the concessions of the earlier Henry.^[482] Mr. Round has conclusively proved the error of this opinion.^[483] The charter of 1155 restricted, rather than enlarged, the privileges of London, being couched in cautious and somewhat grudging terms. The main concessions of the earlier charter were completely omitted: the citizens no longer elected their own sheriffs or their own justiciar; the reduction of the firma to £300 was not confirmed; and subsequent pipe rolls show that Henry doubled that amount, although the Londoners protested, arguing for the lower rate.

The next crisis came early in Richard’s reign. Then it was that London first obtained its municipal constitution. Then also it regained and secured on a permanent basis the privileges precariously held for a few years under Henry I. and Stephen. The form in which the constitution came at last was borrowed from France, and was neither more nor less than the Commune, so well known on the Continent in the twelfth and thirteenth centuries. The commune of London was possibly modelled upon the commune of Rouen; the chief cities of England and Normandy respectively must have had intimate relations. Mr. Round^[484] has shown that these concessions were not, as has sometimes been supposed, voluntarily granted in 1189 by Richard I., but were extorted from his younger brother John, when that ambitious prince was bidding high for powerful allies to support his claim to act as Regent. London really got its first constitution on 8th October, 1191, under picturesque and memorable circumstances. While Richard tarried in the Holy Land, a scramble took place at home for the right to represent him. The Chancellor Longchamp had been appointed Regent; but John, wily and unscrupulous, successfully ousted him, with the help of the men of London. At the critical moment the metropolis had offered its support on conditions, which included the restoration of all the short-lived privileges conferred by the charter of Henry I., and, in addition, a municipal constitution of its own in the form of a commune of the continental type.

Mr. Round, in a notable passage, describes the scene. "When, in the crisis of October, 1191, the administration found itself paralysed by the conflict between John, as the king’s brother, and Longchamp, as the king’s representative, London, finding that she held the scales, promptly named the 'Commune’ as the price of her support. The chronicles of the day enable us to picture to ourselves the scene, as the excited citizens, who had poured forth overnight, with lanterns and torches to welcome John to the capital, streamed together on the morning of the eventful 8th October at the well-known sound of the great bell, swinging out from its campanile in St. Paul’s Churchyard. There they heard John take the oath to the ‘Commune,’ like a French king or lord; and then London, for the first time, had a municipality of her own."^[485]

For any accurate definition of a commune we look in vain to contemporary writers, who are usually carried away by their political bias. Richard of Devizes^[486] quotes with approval, “Communia est tumor plebis, timor regni, tepor sacerdotii.” Some insight has been gained in recent years, however, into its exact nature. A Commune was a town which had obtained recognition as a corporate entity, as a link in the feudal chain, becoming the free vassal of the king or other lord, and itself capable of having sub-vassals of its own.^[487] Its chief institutions were a mayor and an elective council, generally composed of twenty-four members, some or all of whom were known as échevins or skivini, a word which in its modern form of “scavengers” has fallen on evil days, no longer denoting the city fathers, but men who perform civic duties of a useful but less dignified nature. Perhaps the chief peculiarity of the commune was the method of its formation, namely, by popular association or conspiracy, involving the taking of an oath of a more or less revolutionary nature by the citizens and its subsequent ratification by those in authority. It is generally admitted that these communes, though revolutionary in their origin, were not necessarily democratic in their sympathies. Under the new constitution of London, the grievous taxation of Richard’s reign was made to fall more heavily on the poor of London than on any other class. The commune thus set up in 1191, tolerated at first rather than encouraged by the Crown, formed thenceforth the municipal government of the capital; the citizens chose not only their own sheriffs, but also their own mayor, although the latter, when once appointed, held office for life.

When John became king, he granted three charters, ratifying the privileges of the capital in return for a gersuma (or slump payment) of 3000 marks.^[488] All the franchises specified in the old charter of Henry I. were now confirmed, with one exception: the liberty to appoint a justiciar of their own, now seen to be inconsistent with the Crown’s centralizing policy, was abandoned. None of these charters made mention of mayor or commune, but they confirmed some minor privileges gained in Richard’s reign.^[489]

A fourth charter, dated 20th March, 1201, was merely of temporary interest; but a fifth, granted on 9th May, 1215, little more than a month previous to Magna Carta, is of great importance, and represents the bait thrown by John to the citizens in the hope of gaining their support in this new crisis, as he had previously gained it in the crisis of 1191. The fifth charter not merely confirmed to the citizens in explicit terms the right already enjoyed by them of electing a mayor for life, but allowed them to elect a new one every year. Miss Norgate does not exaggerate, when she describes this concession as “the crowning privilege of a fully constituted municipality, the right to elect their own mayor every year.”^[490] An annually elected magistrate would, undoubtedly, feel his dependence on the citizens more than one holding office for life; but it seems probable that the chief value of the grant lay in its confirmation by John as king, of the rights conceded by him fourteen years earlier as his brother’s unauthorised representative, and enjoyed meanwhile on an insecure tenure. The charter of May, 1215, by officially recognizing the mayor, placed the commune over which he presided on a legal footing. The revolutionary civic constitution, sworn to in 1191 was now confirmed. The citizens acted on the permission granted them of annually changing their chief magistrate: but in place of supporting the king who made the grant, they opened their gates to his enemies.^[491]

Such then was the London whose privileges were confirmed by Magna Carta—a city which had slowly grown to greatness, obtaining after many struggles a complete municipal constitution in the form of a commune with annually elected mayor and council, as well as sheriffs of its own appointment, who excluded the Crown’s financial officers not only from the district within its walls but from the whole of Middlesex. The Great Charter, avoiding details, confined itself to a general confirmation to the men of London of their ancient “liberties and free customs,” two words^[492] whose vagueness ought in this connection to receive a liberal interpretation.^[493]

London, in this respect, was not to stand alone; a similar concession was explicitly made in favour of all other cities, boroughs, towns, and sea-ports. This was a mere confirmation, however, not to be read as conferring new privileges or exemptions, each borough being left to prove its own customs as best it might. In the reissues of Henry, the distinction of being mentioned by name was shared by these “barons of London,” with “the barons of the Cinque ports,” who from their wealth, their situation, and their fleet, were allies well worth conciliating. They played, indeed, a prominent part in the decisive naval victory gained by Hubert de Burgh on 24th August, 1217.^[494]

Other portions of John’s Great Charter which specially affected the Londoners were the last clause of chapter 12, and chapters 33 and 41; while many of the privileges granted or confirmed in other chapters were shared by them. The Mayor of London, it should be added, was one of the executive committee of twenty-five, entrusted with wide powers to enforce the provisions of the Charter.^[495]

Among the most cherished privileges claimed by the chartered boroughs were the rights to exact tolls and to place oppressive restrictions upon all rival traders not members of their guilds, foreigners and denizens alike. The confirmation of these privileges in this chapter has been held to contradict chapter 41, which grants protection and immunities to foreign merchants.^[496] The inconsistency, however, should not be pushed too far, since the later chapter aimed at the abolition of “evil customs” inflicted by the king, not of those inflicted by the boroughs. At the same time, all favour shown to aliens would be bitterly resented by their rivals, the English traders. If the charter had been put in force in its integrity, the more specific privileges in favour of foreign merchants would have prevailed in opposition to the vague confirmation of borough “liberties” wherever the two came into collision.^[497]