chapter 2, which carefully defined the amount to be paid. It is

probable that the framers of the present chapter relied on existing usage, which seems to have regarded the normal aid as one-fifth of the normal relief, _i.e._ as 20s. per knight’s fee. An alternative explanation is also possible, that the same “common counsel” which had the right to veto extraordinary aids, was also expected to determine the reasonable amount of the ordinary aids.

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.

Footnote 466:

See _supra_, p. 42.

Footnote 467:

See article 23 (which became c. 33), article 31 (c. 41), and article 32 (cc. 12 and 13), and cf. _supra_, pp. 140-1. Whether article 12 (c. 35) was more a benefit to, than a restraint upon, traders seems doubtful.

(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]

Footnote 468:

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.”

(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.

Footnote 469:

I. 712, citing Mem. Roll 39 Henry III.

(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]

Footnote 470:

Alternative explanations are possible, _e.g._ that the prelates, accustomed to tallage their own dependants, used their influence successfully to combat this innovation as “the thin end of the wedge.”

Footnote 471:

It might possibly 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.

(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]

Footnote 472:

Such is the opinion expressed in the _Lords’ Report on the Dignity of a Peer_, I. 65.

Footnote 473:

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.

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.

Footnote 474:

See _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.”

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.

Footnote 475:

_E.g._ Taswell-Langmead, _Engl. Const. Hist._, 106, and Anson, _Law and Custom of the Const._, I. 14. Dr. Stubbs, _Const. Hist._, I. 573, considers that these words “admit the right of the nation to ordain taxation.”

(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