Constitutional History of England by Henry Hallam - HTML preview

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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

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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

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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

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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

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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

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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,

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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]

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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

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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