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1. Consent to taxation, the community of the realm and the development of parliament: the aid of 1245

David Carpenter examines what seems to be an insignificant deletion in an entry on the Fine Rolls to explore the nature of consent to taxation in Henry III’s England and nascent parliamentary organisation. In so doing he reveals the chancery as a potential hotbed of ideas and ideology.

⁋1Some fines of the month in this series have been long affairs, occasionally indeed being split into two parts so as not to try the patience of readers. This month’s contribution is a short one, but nonetheless, I hope, of significance. It reveals a chancery official’s perception of one of the most fundamental ideological shifts in English history, a shift, taking place in the thirteenth century, which led to the summons of the commons to parliament.

⁋2On 14 July 1245 King Henry III, in a writ recorded on the fine rolls, ordered the aid, conceded for marrying his first born daughter, to be levied from the lands of the late Baldwin de Lisle, earl of Devon, the lands being in royal hands during the minority of Baldwin’s heir. ¹ In the initial version of the writ, as copied out by the clerk, it was said that the aid had been ‘conceded to us [the king] by all the community of our realm – a tota communitate regni nostri nobis concessum’. Almost at once, however (for the ink seems much the same), the clerk had second thoughts and put a line through ‘by all the community - a tota communitate’, leaving the writ simply to state that ‘the aid of our kingdom has been conceded to us - auxilium [deletion] regni nostri nobis concessum’. Assuming the writ actually despatched (which does not survive), bore the corrected version, then perhaps the most likely explanation for what happened is that the clerk, copying the fine rolls entry from a draft of the writ, failed initially to notice the alteration, and had then to go back and emend his work. Whatever the truth here, one thing is plain. Someone in the chancery was very clear that the aid of 1245 had not been conceded ‘by all the community of the realm’, and felt sufficiently strongly about the matter to alter the writ accordingly.

⁋3It is possible to advance a reason as to why this was, namely a perception in the chancery that a tax of the kind levied in 1245 did not have, and did not need to have, general consent, and thus it would be incongruous to indicate the contrary. The aid of 1245 was to be paid by the king’s tenants in chief being levied on the number of fees on which they owed knight service, the rate being that of two marks on every fee. ² Thus the writ announcing the tax, sent out in May 1245 (and also enrolled on the fine rolls), stated that it was to be paid by ‘the archbishops, bishops, abbots, priors, earls, barons, knights, and all others holding of the king in chief by knight service.’ ³ If, therefore, a tenant in chief owed the service of fifteen knights to the king, then his tax bill would be 30 marks (£20), a sum he would recoup by collecting that amount from the tenants who held from him by knight service. The change made in the writ suggests that, in the view of the chancery, a tax of this kind, paid by the tenants in chief, only needed the tenants in chief to consent to it rather than the community of the realm. Hence the aid of 1235, which took much the same form as that of 1245, was conceded simply by archbishops, bishops, earls and barons ‘and all others of our kingdom who hold from us in chief’, this according to the commissioning writ also drafted by the chancery. ⁴

⁋4The change in the formula in 1245 also had a second implication, namely that there might be another form of taxation which would be conceded ‘by all the community of the realm’. That community, moreover, at least in theory, could not be represented by an assembly simply composed of the king’s tenants in chief. They could only answer for themselves and their tenants not the realm as a whole. This implication is confirmed if we look at the taxes levied in 1225, 1232 and 1237. These were very different from those of 1235 and 1245 because they were paid by everyone in the country above a certain minimum property qualification, the tax taking the form of a percentage levy on the value of everyone’s movable property. The 1225 tax, conceded in return for what became the definitive version of Magna Carta, was stated in the Charter itself to have been granted by ‘archbishops, bishops, abbots, priors, earls, barons, knights, free tenants and all of our realm’. ⁵ Similar claims were made in the writs for levying the taxes of 1232 and 1237. The drafter of the writ in 1232 even included villeins amongst those who had consented. Although the formula does not itself appear, these were taxes very much conceded ‘by the whole community of the realm.’ ⁶

⁋5The nature of the tax, then, dictated the nature of the consent, or at least of the nature of the consent which was claimed. Looked at narrowly, all that happened in 1245 was that a writ was altered in accordance with this rule, so as to prevent consent and tax being out of line. In fact, however, there was far more to it than that, for what we are witnessing, in all these formulas, is a momentous shift in political thought. In 1215, Magna Carta had laid down that scutages and aids, taxes that is paid both by tenants in chief on their fees, and by everyone on the value of their movable property, were to be levied ‘by the common counsel’ of the realm. It then went on to define how that ‘common counsel’ was to be obtained, a definition which made explicit that it was to come simply from an assembly of tenants in chief. ⁷ In other words, in the thought of 1215, the tenants in chief were perfectly able to represent ‘all the community of the realm’. What happened between 1215 and 1245 is that this view broke down. To consider just why that happened would take us beyond the confines of this ‘Fine of the Month’, but it clearly had much to do with principles of consent found in both Roman and canon law, principles vigorously asserted by churchmen when it came to ecclesiastical taxation. In 1240, for example, the bishops resisted a papal tax by saying, according to Matthew Paris, that ‘this affair touches all; all therefore ought to be convoked; without them it is neither fitting nor expedient to reply’. ⁸ It was such ideas, transferred to the area of secular taxation, which influenced the statements about consent to taxation in 1225, 1232 and 1237, and lay behind the change to the formula of the writ of 1245.

⁋6In all of this there was a disjunction between rhetoric and reality. The statements that tenants in chief had consented to taxes levied on their fees was perfectly correct. The statement that knights, freemen, even villeins, had consented to taxation on movables was absolutely not. Probably all the assemblies between the 1220s and the 1240s had much the same composition. ⁹ The greater tenants in chief were summoned individually and the lesser ones generally through the sheriffs, this in accordance with the 1215 Magna Carta. Then there were the king’s ministers and some individually summoned magnates who were not tenants in chief. What these assemblies did not have, as far as can be seen, was any formal representation of the counties and boroughs, representation which would have made them in some way representative of the wider realm. Reality, however, was catching up. In 1254, for the first time, two knights from each county, elected in the county court, were summoned to parliament to answer for taxation ‘on behalf of everyone of their county’. ¹⁰ In the 1260s Simon de Montfort summoned in addition representatives from the towns. He could claim, with far greater show of truth than in the earlier writs about taxation, that his peace settlement of June 1264 had been agreed by ‘all the community of the realm of England, communitate tota regni Anglie’, as well as by ‘the prelates and all the great men’. ¹¹

⁋7This change in the composition of parliament owed much to shifts in the structures and alterations in the balances of power within English society. But one should not underestimate the importance of ideas, none more so those within the chancery itself. Far from being a mere technical alteration to get the facts correct, the deletion of ‘by all the community of the realm’ may well reflect a strongly held view that tenants in chief did not represent all the community, and that if there was to be taxation paid by everyone, it should be agreed by an assembly which did. It was after all a chancery clerk who, in 1237, drafting the writ about the tax of that year, went out of his way to expand a purely baronial assembly, which he has meeting at Westminster, into an assembly with lower clergy, knights and freemen when it comes to consenting to the tax. ¹² It was not that he thought the assembly actually contained these elements in any formal way, but he well have thought it should do so. Chancery clerks were educated men, in touch naturally with the ideas about consent found in Roman and canon law. They also, perhaps more than anyone else in the kingdom, had their fingers on the pulse of ‘all the community of the realm’. It was they who dealt with mass of litigants, from all classes of society, seeking the writs to initiate the common law legal procedures. It was they who maintained the lists of knights in every county on whom the king might draw for his local government officials. In 1245 the idea that taxation should be conceded by ‘all the community of the realm’ was there in the chancery. Was it the chancery then in 1254 which put this into practice, not merely drafting the writs about the summons of knights to parliament, but urging the policy itself on the king’s government? The chancery’s concept of consent ‘a tota communitate regni’ was likewise made a reality in 1264 when, as we have seen, the Montfortian constitution, in a repetition of the 1245 formula, was agreed ‘communitate tota regni Anglie’, this at a parliament attended by knights elected by the counties. The chancery’s view about the importance of general consent was, we may think, not the least important reason for the birth of the House of Commons.

1.2. C 60/42, Fine Roll 16 Henry III (28 October 1244–27 October 1245), membrane 7

1.2.1. 397

⁋1 Concerning collecting an aid to the king’s use. To William Passelewe, keeper of the lands formerly of B. de Lisle, earl of Devon. Order to cause the aid granted to the king by his kingdom ¹³ towards marrying his first-born daughter to be collected from all knights’ fees which were held of the aforesaid earl, whose son and heir is in the king’s custody, namely 20s. from every knight’s fee, so that he has one moiety at Chester at the Assumption of the Blessed Mary, where it is to be delivered in the king’s Wardrobe and the other moiety at the Exchequer on the morrow of Michaelmas in the twenty-ninth year. Woodstock, 14 July [1245].