to the courts of law to try their legality.
Union with Scotland debated. —The principal business of this third
session, as it had been of the last, was James's favourite scheme of
a perfect union between England and Scotland. It may be collected,
though this was never explicitly brought
288
forward, that his views extended to a legislative incorporation.[507] But in all the speeches on this subject, and especially his own, there is a
want of distinctness as to the object proposed. He dwells continually
upon the advantage of unity of laws, yet extols those of England as
the best, which the Scots, as was evident, had no inclination to adopt.
Wherefore then was delay to be imputed to our English parliament, if
it waited for that of the sister kingdom? And what steps were
recommended towards this measure, that the Commons can be said
to have declined, except only the naturalisation of the ante-nati, or
Scots born before the king's accession to our throne, which could
only have a temporary effect?[508] Yet Hume, ever prone to eulogise this monarch at the expense of his people, while he
289
bestows merited praise on his speech in favour of the union, which is
upon the whole a well-written and judicious performance, charges the
parliament with prejudice, reluctance, and obstinacy. The code, as it
may be called, of international hostility, those numerous statutes
treating the northern inhabitants of this island as foreigners and
enemies, were entirely abrogated. And if the Commons, while both
the theory of our own constitution was so unsettled and its practice so
full of abuse, did not precipitately give in to schemes that might create
still further difficulty in all questions between the Crown and
themselves, schemes, too, which there was no imperious motive for
carrying into effect at that juncture, we may justly consider it as an
additional proof of their wisdom and public spirit. Their slow progress
however in this favourite measure, which, though they could not
refuse to entertain it, they endeavoured to defeat by interposing
delays and impediments, gave much offence to the king, which he
expressed in a speech to the two houses, with the haughtiness, but
not the dignity, of Elizabeth. He threatened them to live alternately in
the two kingdoms, or to keep his court at York; and alluded, with
peculiar acrimony, to certain speeches made in the house, wherein
probably his own fame had not been spared.[509] "I looked," he says,
"for no such fruits at your hands, such personal discourses and
speeches, which of all other, I looked you should avoid, as not
beseeming the gravity of your assembly. I am your king; I am placed
to govern you, and shall answer for your errors; I am a man of flesh
and blood, and have my passions and affections as other men; I pray
you, do not too far move me to do that which my power may tempt
me unto."[510]
Continual bickerings between the Crown and Commons. —It is most
probable, as experience had shown, that such a demonstration of
displeasure from Elizabeth would have ensured the
290
repentant submission of the Commons. But within a few years of the
most unbroken tranquillity, there had been one of those changes of
popular feeling which a government is seldom observant enough to
watch. Two springs had kept in play the machine of her
administration, affection and fear; attachment arising from the sense
of dangers endured, and glory achieved for her people, tempered,
though not subdued, by the dread of her stern courage and vindictive
rigour. For James not a particle of loyal affection lived in the hearts of
the nation, while his easy and pusillanimous, though choleric
disposition, had gradually diminished those sentiments of
apprehension which royal frowns used to excite. The Commons, after
some angry speeches, resolved to make known to the king through
the speaker their desire, that he would listen to no private reports, but
take his information of the house's meaning from themselves; that he
would give leave to such persons as he had blamed for their
speeches to clear themselves in his hearing; and that he would by
some gracious message make known his intention that they should
deliver their opinions with full liberty, and without fear. The speaker
next day communicated a slight but civil answer he had received from
the king, importing his wish to preserve their privileges, especially
that of liberty of speech.[511] This, however, did not prevent his sending a message a few days afterwards, commenting on their
debates, and on some clauses they had introduced into the bill for the
abolition of all hostile laws.[512] And a petition having been prepared by a committee under the house's direction for better execution of the
laws against recusants, the speaker, on its being moved that the
petition be read, said that his majesty had taken notice of the petition
as a thing belonging to himself, concerning which it was needless to
press him. This interference provoked some members to resent it, as
an infringement of their liberties. The speaker replied that there were
many precedents in the late queen's time, where she had restrained
the house from meddling in politics of divers kinds. This, as a matter
of fact, was too notorious to be denied. A motion was made for a
committee "to search for precedents of ancient as well as later times
that do concern any messages from the sovereign magistrate, king or
queen of this realm, touching petitions offered to the House of
Commons." The king now interposed by a second message, that,
though the petition were such as the like had not been read in the
house, and contained matter whereof
291
the house could not properly take knowledge, yet if they thought good
to have it read, he was not against the reading. And the Commons
were so well satisfied with this concession, that no further
proceedings were had; and the petition, says the journal, was at
length, with general liking, agreed to sleep. It contained some strong
remonstrances against ecclesiastical abuses, and in favour of the
deprived and silenced puritans, but such as the house had often
before in various modes brought forward.[513]
The ministry betrayed, in a still more pointed manner, their jealousy of
any interference on the part of the Commons with the conduct of
public affairs in a business of a different nature. The pacification
concluded with Spain in 1604, very much against the general wish,[514]
had neither removed all grounds of dispute between the
governments, nor allayed the dislike of the nations. Spain advanced
in that age the most preposterous claims to an exclusive navigation
beyond the tropic, and to the sole possession of the American
continent; while the English merchants, mindful of the lucrative
adventures of the queen's reign, could not be restrained from
trespassing on the rich harvest of the Indies by contraband and
sometimes piratical voyages. These conflicting interests led of course
to mutual complaints of maritime tyranny and fraud; neither likely to
be ill-founded, where the one party was as much distinguished for the
despotic exercise of vast power, as the other by boldness and
cupidity. It was the prevailing bias of the king's temper to keep on
friendly terms with Spain, or rather to court her with undisguised and
impolitic partiality.[515] But this so much thwarted the prejudices of his subjects that no part perhaps of his administration had such a
disadvantageous effect on his popularity. The merchants presented
to the Commons, in this session of 1607, a petition upon the
grievances they sustained
292
from Spain, entering into such a detail of alleged cruelties as was
likely to exasperate that assembly. Nothing however was done for a
considerable time, when after receiving the report of a committee on
the subject, the house prayed a conference with the Lords. They, who
acted in this and the preceding session as the mere agents of
government, intimated in their reply, that they thought it an unusual
matter for the Commons to enter upon, and took time to consider
about a conference. After some delay this was granted, and Sir
Francis Bacon reported its result to the lower house. The Earl of
Salisbury managed the conference on the part of the Lords. The
tenor of his speech, as reported by Bacon, is very remarkable. After
discussing the merits of the petition, and considerably extenuating the
wrongs imputed to Spain, he adverted to the circumstance of its
being presented to the Commons. The Crown of England was
invested, he said, with an absolute power of peace and war; and
inferred, from a series of precedents which he vouched, that petitions
made in parliament, intermeddling with such matters, had gained little
success; that great inconveniences must follow from the public
debate of a king's designs, which, if they take wind, must be
frustrated; and that if parliaments have ever been made acquainted
with matter of peace or war in a general way, it was either when the
king and council conceived that it was material to have some
declaration of the zeal and affection of the people, or else when they
needed money for the charge of a war, in which case they should be
sure enough to hear of it; that the Lords would make a good
construction of the Commons' desire, that it sprang from a
forwardness to assist his majesty's future resolutions, rather than a
determination to do that wrong to his supreme power which haply
might appear to those who were prone to draw evil inferences from
their proceedings. The Earl of Northampton, who also bore a part in
this conference, gave as one reason among others, why the Lords
could not concur in forwarding the petition to the Crown, that the
composition of the House of Commons was in its first foundation
intended merely to be of those that have their residence and vocation
in the places for which they serve, and therefore to have a private
and local wisdom according to that compass, and so not fit to
examine or determine secrets of state which depend upon such
variety of circumstances; and although he acknowledged that there
were divers gentlemen in the house of good capacity and insight into
matters of state, yet that was the accident of the person,
293
and not the intention of the place; and things were to be taken in the
institution, and not in the practice. The Commons seemed to have
acquiesced in this rather contemptuous treatment. Several
precedents indeed might have been opposed to those of the Earl of
Salisbury, wherein the Commons, especially under Richard II. and
Henry VI., had assumed a right of advising on matters of peace and
war. But the more recent usage of the constitution did not warrant
such an interference. It was however rather a bold assertion, that
they were not the proper channel through which public grievances, or
those of so large a portion of the community as the merchants, ought
to be represented to the throne.[516]
Impositions on merchandise without consent of parliament. —During
the interval of two years and a half that elapsed before the
commencement of the next session, a decision had occurred in the
court of exchequer, which threatened the entire overthrow of our
constitution. It had always been deemed the indispensable
characteristic of a limited monarchy, however irregular and
inconsistent might be the exercise of some prerogatives, that no
money could be raised from the subject without the consent of the
estates. This essential principle was settled in England, after much
contention, by the statute entitled Confirmatio Chartarum, in the 25th
year of Edward I. More comprehensive and specific in its expression
than the Great Charter of John, it abolishes all "aids, tasks, and
prises, unless by the common assent of the realm, and for the
common profit thereof, saving the ancient aids and prises due and
accustomed;" the king explicitly renouncing the custom he had lately
set on wool. Thus the letter of the statute and the history of the times
conspire to prove, that impositions on merchandise at the ports, to
which alone the word prises was applicable, could no more be levied
by the royal prerogative after its enactment, than internal taxes upon
landed or movable property, known in that age by the appellations of
aids and tallages. But as the former could be assessed with great
ease, and with no risk of immediate resistance, and especially as
certain ancient
294
customs were preserved by the statute,[517] so that a train of fiscal officers, and a scheme of regulations and restraints upon the export
and import of goods became necessary, it was long before the
sovereigns of this kingdom could be induced constantly to respect
this part of the law. Hence several remonstrances from the Commons
under Edward III. against the maletolts or unjust exactions upon wool,
by which, if they did not obtain more than a promise of effectual
redress, they kept up their claim, and perpetuated the recognition of
its justice, for the sake of posterity. They became powerful enough to
enforce it under Richard II., in whose time there is little clear evidence
of illegal impositions; and from the accession of the house of
Lancaster it is undeniable that they ceased altogether. The grant of
tonnage and poundage for the king's life, which from the time of
Henry V. was made in the first parliament of every reign, might
perhaps be considered as a tacit compensation to the Crown for its
abandonment of these irregular extortions.
Henry VII., the most rapacious, and Henry VIII., the most despotic, of
English monarchs, did not presume to violate this acknowledged
right. The first who had again recourse to this means of enhancing
the revenue was Mary, who, in the year 1557, set a duty upon cloths
exported beyond seas, and afterwards another on the importation of
French wines. The former of those was probably defended by
arguing, that there was already a duty on wool; and if cloth, which
was wool manufactured, could pass free, there would be a fraud on
the revenue. The merchants however did not acquiesce in this
arbitrary imposition, and as soon as Elizabeth's accession gave
hopes of a restoration of English government, they petitioned to be
released from this burthen. The question appears, by a memorandum
in Dyer's Reports, to have been extra-judicially referred to the judges,
unless it were rather as assistants to the privy council that their
opinion was demanded. This entry concludes abruptly, without any
determination of the judges.[518] But we 295
may presume, that if any such had been given in favour of the Crown,
it would have been made public. And that the majority of the bench
would not have favoured this claim of the Crown, we may strongly
presume from their doctrine in a case of the same description,
wherein they held the assessment of treble custom on aliens for
violation of letters patent to be absolutely against the law.[519] The administration, however, would not release this duty, which continued
to be paid under Elizabeth. She also imposed one upon sweet wines.
We read of no complaint in parliament against this novel taxation; but
it is alluded to by Bacon in one of his tracts during the queen's reign,
as a grievance alleged by her enemies. He defends it, as laid only on
a foreign merchandise, and a delicacy which might be forborne.[520]
But considering Elizabeth's unwillingness to require subsidies from
the common, and the rapid increase of foreign traffic during her reign,
it might be asked why she did not extend these duties to other
commodities, and secure to herself no trifling annual revenue. What
answer can be given, except that, aware how little any
unparliamentary levying of money could be supported by law or
usage, her ministers shunned to excite attention to these innovations
which wanted hitherto the stamp of time to give them prescriptive
validity?[521]
296
James had imposed a duty of five shillings per hundredweight on
currants, over and above that of two shillings and sixpence, which
was granted by the statute of tonnage and poundage.[522] Bates, a Turkey merchant, having refused payment, an information was
exhibited against him in the exchequer. Judgment was soon given for
the Crown. The courts of justice, it is hardly necessary to say, did not
consist of men conscientiously impartial between the king and the
subject; some corrupt with hope of promotion, many more fearful of
removal, or awe-struck by the frowns of power. The speeches of
Chief Baron Fleming, and of Baron Clark, the only two that are
preserved in Lane's Reports, contain propositions still worse than
their decision, and wholly subversive of all liberty. "The king's power,"
it was said, "is double—ordinary and absolute; and these have
several laws and ends. That of the ordinary is for the profit of
particular subjects, exercised in ordinary courts, and called common
law, which cannot be changed in substance without parliament. The
king's absolute power is applied to no particular person's benefit, but
to the general safety; and this is not directed by the rules of common
law, but more properly termed policy and government, varying
according to his wisdom for the common good; and all things done
within those rules are lawful. The matter in question is matter of state,
to be ruled according to policy by the king's extraordinary power. All
customs (duties so called) are the effects of foreign commerce; but all
affairs of commerce and all treaties with foreign nations belong to the
king's absolute power; he therefore who has power over the cause,
must have it also over the effect. The seaports are the king's gates,
which he may open and shut to whom he pleases." The ancient
customs on wine and wool are asserted to have originated in the
king's absolute power, and not in a grant of parliament; a point,
whether true or not, of no great importance, if it were acknowledged,
that many statutes had subsequently controlled this prerogative. But
these judges impugned the authority of statutes derogatory to their
idol. That of 45 E. 3, c. 4, that no new imposition should be laid on
wool or leather, one of them maintains, did not bind the king's
successors; for the right to impose such duties was a principal part of
the Crown of England, which the king could not diminish. They
extolled the king's grace in permitting the matter to be
297
argued, commenting at the same time on the insolence shown in
disputing so undeniable a claim. Nor could any judges be more
peremptory in resisting an attempt to overthrow the most established
precedents, than were these barons of King James's exchequer, in
giving away those fundamental liberties in which every Englishman
was inherited.[523]
Remonstrances against impositions in session of 1610. —The
immediate consequence of this decision was a book of rates,
published in July 1608, under the authority of the great seal, imposing
heavy duties upon almost all merchandise.[524] But the judgment of the court of exchequer did not satisfy men jealous of the Crown's
encroachments. The imposition on currants had been already noticed
as a grievance by the House of Commons in 1606. But the king
answered that the question was in a course for legal determination;
and the Commons themselves, which is worthy of remark, do not
appear to have entertained any clear persuasion that the impost was
contrary to law.[525] In the session, however, which began in February 1610, they had acquired new light by sifting the legal authorities, and
instead of submitting their opinions to the courts of law, which were in
truth little worthy of such deference, were the more provoked to
remonstrate against the novel usurpation those servile men had
endeavoured to prop up. Lawyers, as learned probably as most of the
judges, were not wanting in their ranks. The illegality of impositions
was shown in two elaborate speeches by Hakewill and Yelverton.[526]
And the country gentlemen, who, though less deeply versed in
precedents, had too good sense not to discern that the next step
would be to levy taxes on their lands, were delighted to find that there
had been an old English constitution not yet abrogated, which would
bear
298
them out in their opposition. When the king therefore had intimated by
a message, and afterwards in a speech, his command not to enter on
the subject, couched in that arrogant tone of despotism which this
absurd prince affected,[527] they presented a strong remonstrance against this inhibition; claiming "as an ancient, general, and
undoubted right of parliament to debate freely all matters which do
probably concern the subject; which freedom of debate being once
foreclosed, the essence of the liberty of parliament is withal
dissolved. For the judgment given by the exchequer, they take not on
them to review it, but desire to know the reasons whereon it was
grounded; especially as it was generally apprehended that the
reasons of that judgment extended much farther, even to the utter
ruin of the ancient liberty of this kingdom, and of the subjects' right of
property in their lands and goods."[528] "The policy and constitution of this your kingdom (they say) appropriates unto the kings of this realm,
with the assent of the parliament, as well the sovereign power of
making laws, as that of taxing, or imposing upon the subjects' goods
or merchandises, as may not, without their consents, be altered or
changed. This is the cause that the people of this kingdom, as they
ever showed themselves faithful and loving to their kings, and ready
to aid them, in all their just occasions, with voluntary contributions; so
have they been ever careful to preserve their own liberties and rights,
when anything hath been done to prejudice or impeach the same.
And therefore when their princes, occasioned either by their wars, or
their over-great bounty, or by any other necessity, have without
consent of parliament set impositions, e