The 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 petition of the Seven circuitous way before the law courts in the Seven Bishops' Bishops. 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 remaining point 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 1.' 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 deal with legislation 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 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 1 12 St. Tr. 183. PART I. X 2 I Will. & Mary, Sess. 2, c. 2. his own. Why the income, feudal dues, crown lands, fees, fines and the like; and king could not live of 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. Modes of taxation. Direct It 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.' 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 Imposition assumed. It was not so easy to maintain Parliamentary conchandise. trol over impositions on exports and imports. The king aids and prises. Indirect on mer claimed a prerogative to regulate trade, to define the privi- 1 14 Ed. III, st. 2. c. 4. 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 13711 they carried a statute which closed the controversy as to wool, and from 13732 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 2s. 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 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 more indefinite power determined the policy of government, and could not be limited by statute or common law. The right to control trade was put on a level with the right to protect merchants from foreign oppression and to declare war if such oppression should continue. The decision does not at the time appear to have struck 2 Stubbs, Const. Hist. ii. 528. 1 45 Ed. III, c. 4. 371. But the either the bar or the public as erroneous or corrupt. effect of it was to cause the king to raise the duties upon all kinds of merchandise. Bate's case was decided in 1606; a great increase on duties was made by a book of rates published in 1608, but it was not until 1610 that the Commons took Commons. up the matter, and we get the learned argument of Mr. Hakewill in support of a remonstrance against impositions Hakewill's to be presented by the House to the king1. The argument argument. falls into three divisions; the first is directed to showing that The pro test of the Argument from Com by the analogies of the Common Law the Crown did not possess the right which it claimed; the second shows that the claim has been resisted whenever made; the third enumerates the statutes which preclude the Crown from levying impositions. In conclusion he deals with the reasons assigned by the Court of Exchequer seriatim. The argument drawn from the Common Law is twofold. mon Law. It is laid down as a general proposition that the customs, so far as they are not settled by statute, exist by allowance of common law; that for all the expenses of government which the king must needs incur, a source of revenue is provided; 'for the maintenance of the courts of justice, fines and other like profits for the protection of wards lunatics and idiots, the profits of their lands': for the security of trade by keeping up harbours, clearing the sea of pirates, maintaining embassies, the duties on exports and imports recognised by law. (a) Common law revenues : First then it is argued that these common law revenues of the Crown are either certain or reducible to certainty. It are certain, would be wholly contrary to the spirit of the Common Law that the subject should be liable to pay sums the amount of which was arbitrary and uncertain, dependent on the pleasure of the person interested in raising them. This principle is illustrated from fines, reliefs, aids, and other sources of revenue, and the conclusion drawn is that 'custom being, as the above revenues are, due to the king at Common Law, arising out of the property and interest of the subject, is like 1 For Hakewill's argument, see State Trials, vol. 2, p. 371. |