The Case of Eton College1 (1815) furnishes an instance of such a dispensation. The Statutes of that College forbade the Fellows to hold any spiritual preferment in conjunction with a Fellowship in the College. Queen Elizabeth gave permission to the Fellows to hold benefices of a certain value without thereby forfeiting their Fellowships, any article or clause in the Statutes of our said College to the contrary notwithstanding.' It was argued that such a dispensation was saved by the words 'as it hath been assumed and exercised of late,' and that the Bill of Rights did not affect an assumption or exercise of the dispensing power which had taken place 100 years before. The fellows were allowed to take the benefit of the dispensation by the Visitor of the College acting on the advice of his assessors, Sir W. Grant and Sir W. Scott.

§ 2 (b). The Suspending Power.

power.

In the time of the Stuarts it must be remembered that the The suspending dispensing power with which I have just been dealing was made to rest upon something more than precedent or convenience it was claimed on behalf of the Crown because the king was held out to be the source from which law emanated and to possess a discretionary prerogative which enabled him, whensoever he thought the interests of the kingdom demanded it, to vary or set aside the law of the land. On this ground had been based the decision of the Court in Godden v. Hales. In the year 1687 James II determined to act up to the estimate formed by the judges of his prerogative, to free himself from the necessity of granting dispensations in individual cases, and to suspend all the penal laws relating to religion.

'We do declare,' runs the celebrated Declaration of Indul- The Declaration

gence, that it is our royal will and pleasure, that from henceforth of Indulthe execution of all and all manner of penal laws in matters gence.

The case is reported by Mr. Williams (1816). The substance of it may be found in Broom, Constitutional Law, note to Seven Bishops' case.

The

petition of the Seven Bishops.

ecclesiastical, for not coming to church or for not receiving the sacrament, or for any other nonconformity to the religion established, or for or by the reason of the exercise of religion in any manner whatsoever, be immediately suspended, and the further execution of the said penal laws, and every of them is hereby suspended.'

The declaration goes on to say that the oaths of supremacy and allegiance and also the several tests and declarations mentioned in the Acts of Parliament made in the twenty-fifth and thirtieth years of the reign of our late royal brother King Charles II shall not at any time hereafter be required to be taken declared or subscribed by any person or persons whatsoever who is or shall be employed in any office or place of trust either civil or military under us or in our government.'

The validity of the claim thus asserted came in a somewhat circuitous before the law courts in the Seven Bishops' way case. Six Bishops, with the Archbishop of Canterbury, petitioned the king that he would not insist on the reading of this declaration by them and its distribution throughout their dioceses as had been ordered by the King in Council. For this they were tried in the Court of King's Bench as for a seditious libel, and the defence set up came to this-that the declaration of the king's intention to suspend the penal statutes respecting religion, amounted to an expression of intention to break the law, and that loyal subjects might decently, and without seditious purpose, petition against the requirement that they should publish an illegal declaration.

Their petition alleged nothing that was false; it was not proffered with malice: if the king's action was illegal or doubtful in respect of legality the petition was not seditious. The only point therefore on which the judges might instruct the jury was whether the legality of the declaration was so sure that to petition against it was seditious. On this the judges were divided; two addressed themselves to the interpretation of the law, two to the furtherance of the king's wishes. Of the former Powell J. puts the matter in the clearest light :

'If there be no such dispensing power in the king,' he says, 'then that can be no libel which they presented to the king, which says

that the declaration, being founded upon such a pretended power, is illegal. Now this is a dispensation with a witness. It amounts to an abrogation and utter repeal of all the laws; for I can see no difference nor know any, in law, between the king's power to dispense with laws ecclesiastical, and his power to dispense with any other laws whatsoever. If this be once allowed of, there will need no Parliament. All the legislature will be in the king, which is a thing worth considering, and I leave the issue to God and your consciences'.'

Whatever might be said for the possibility that the dispensing power could be exercised with salutary effect, it was clear that the suspending power as claimed and used by James II was inconsistent with the very existence of a Parliament, as a legislature. The Lords and Commons might meet to vote supplies, to state grievances, to criticise the ministers of the Crown, but it would be idle for them to make laws which the king could at any moment annul. The Bill of Rights accordingly made short work of the suspending power, enacting:

That the pretended power of suspending of laws or the execution of laws, as it hath been assumed and exercised of late by royal authority, without consent of Parliament, is illegal?'

§3. Taxation.

The claim of the Crown to levy taxes without consent of Parliament is very closely associated with the claim to legislate independently of Parliament. For it was only by keeping a firm hold upon the sources of extraordinary revenue that the Commons obtained a hold upon legislation.

the dis

It must be borne in mind that I do not propose here to Nature of give an account of the sources of royal revenue, but of the re- cussion. spective claims of Crown and Parliament to demand the money of the people for the needs of government. The story of the controversy is so well told in the two great seventeenth century cases that I will not do more than sketch the 21 Will. & Mary, Sess. 2, c. 2.

112 St. Tr. 183.

Why the king could

character of the dispute and then leave Bate's case and the case of Shipmoney to give the history of the matter as they do nearly to its end.

The king in the fourteenth century had certain sources of not live of income, feudal dues, crown lands, fees, fines and the like; and

his own.

Modes of taxation.

Direct

the contention of the Parliaments of those days was that the king should 'live of his own.' This meant that the king had an income sufficient for the business of government, and should ask for no more. But it was not really desirable that the king should live of his own. If he had done so he would have been too great for the liberties of the country or too small for its security he would have been rich enough to make him independent of Parliaments or so poor as to become contemptible among his rivals abroad and his vassals at home. We might never have known parliamentary government because the king would never have had cause to ask his people for money, or we might never have become a united kingdom because the monarchy would have collapsed among the rival magnates or have fallen a prey to a foreign invader.

The difficulty never arose, because, in the words of Dr. Stubbs, 'no king of the race of Plantagenet ever attempted to make his expenditure tally with his ordinary income.' It would have been unfortunate either for our liberties, or for our independence and cohesion as a nation, if the kings of that race had been able or had tried to do so.

When the king wanted money in excess of the ordinary revenue he could obtain it either by direct taxation levied on the estimated value of land and chattels, or by indirect taxation in the form of impositions upon exports and imports. Of these the first had been kept within the control of the national assembly or of Parliament by various enactments, from Magna Charta onwards, dealing with the different forms scutages, aids, tasks and prises-which taxation of this kind assumed. It was not so easy to maintain Parliamentary merchan control over impositions on exports and imports. The king

aids and

prises.

Indirect

Imposi

tion on

dise.

claimed a prerogative to regulate trade, to define the privileges of alien merchants, to make agreements, apart from Parliament, with the merchants as a sub-estate or class.

After a long struggle the Commons in 13401 obtained the passing of a statute, not wholly satisfactory in its terms, limiting the king to a fixed charge on wool, and on other things to the ancient customs, unless Parliament granted more. In 13712 they carried a statute which closed the controversy as to wool, and from 13733 they regularly granted customs on wine and merchandise for a term of years or for the life of the king, under the name of tunnage and poundage.

The claim of the Crown to levy impositions in addition to the customs thus granted was not raised for nearly two hundred years. But in 1557 Mary laid a duty on cloths Imposiexported and another on French wines imported. Elizabeth laid a duty on sweet wines, and these continued to be raised throughout her reign.

Indirect Taxation. The Case of Impositions.

tions.

of Bate.

James determined to derive a substantial revenue from impositions of this nature. He began by the publication of letters patent increasing the duty on tobacco from 2d. to 68. 10d. a pound, and on currants from 28. 6d. to 78. 6d. Bate, a Turkey merchant, refused to pay the additional impost, The case and the Attorney General took proceedings against him in the Court of Exchequer. Bate set up the statute granting 28. 6d., and averred that he had paid all that the law required him to pay. Judgment was given against him mainly on the ground that trade was matter of general policy falling within 2 St. Tr. the discretion of the king. The king's power was said by the 371. Court to be double, ordinary and absolute; the ordinary power seems in the view of the Court to have been concerned with administration of known existing law, the larger and