Bacon defended tion of the post-nati upheld by the judges; commission at once proposed two acts, one declaratory and the other remedial, to remove all difficulties by the parliamentary recognition of the rights of both classes.1 A debate then. ensued, during which Fuller sharply assailed the statement made as to the legal rights of the post-nati, to which Bacon the report; replied 3 in defence of the report of the commissioners, in whose proceedings he had taken an active part as one of their number. The judges were next consulted, including Coke, who was then chief justice of the common pleas, and with a single naturaliza- exception they accepted the theory of the naturalization of the post-nati by force of the common law. But as the commons refused to accept the legal theory as to the status of the post-nati, and as James was unwilling to give up his rights to issue letters of denization to aliens, under which the ante-nati could be clothed with all the rights of naturalization except that of inheriting lands in England, the attempt to settle the question in parliament had to be abandoned. Thus reserving the questions of commercial intercourse and naturalization for future consideration, a bill passed both houses which all legisla- attempted only to provide for the repeal of all English legisto Scotland lation directed against Scotland as a hostile country, on condition that a like statute should be passed in the next Scotch parliament, and for the extradition of criminals. Such was the condition of things when the third session was prorogued on the 4th of July, 1607. tion hostile repealed condition ally. Status of the postnati argued bench and Colvill's case; Before the end of the year, the king resolved to transfer the contest for the naturalization of the post-nati, which he had in king's lost in parliament, to the courts of law, where, from the known chancery in opinion of the judges, he was sure of a victory. With that end in view a piece of land was purchased in the name of Robert Colvill (or Calvin), an infant born in Edinburgh in 1605, in whose behalf two suits were brought, one in the king's bench and the other in chancery, against persons who were supposed to have deprived him of his land. The issue was so made up as to directly present the question whether or no Colvill was an alien, and as such disqualified from holding land in England. The question of law was argued in the exchequer 1 Gardiner, Hist. Eng., vol. i. p. 326. 2 Commons' Journals, vol. i. p. 334. 8 Letters and Life, vol. iii. pp. 90, 218. 4 4 Jac. I. c. 1. The bill also regulated the manner in which Englishmen were to be brought to trial for offences committed in Scotland. in favor of 1608; chamber before the chancellor and the twelve judges, all of whom, except two, declared in June, 1608, that Colvill was no judgment alien, that allegiance is the obedience due to the sovereign, the postand persons born in the allegiance of the king are his natural nati, June, subjects, regardless of locality. As allegiance was due by both kingdoms to one sovereign, it was held for that reason that internaturalization followed, although each kingdom had its own parliament and its own laws.1 trine of modified, statutes. This early doctrine as to allegiance has since been modified early doc by statute; it is now regulated by 21 & 22 Vict. c. 48. By 7 allegiance & 8 Vict. c. 66, the law as to aliens was also greatly relaxed; and law as and by the Naturalization Act, 1870, 33 & 34 Vict. c. 14, pro- to aliens relaxed, vision has been made for the naturalization of aliens, and also by recent for the naturalization of British subjects in foreign states, as well as for their resumption of British nationality. Under the terms of that act both real and personal property may be acquired and held by an alien as by a natural-born British subject, and a title to such property may be acquired through an alien as through a natural-born British subject.2 under Bate's case; Within a month after his triumph in the case of the post- New duties imposed by nati, James was driven by the condition of his exhausted trea- thrown sury to utilize the decision in Bate's case, in which the judges had declared more than a year before that he had the legal right to impose customs dues upon merchandise in addition to those granted in the Tonnage and Poundage Act. The annual expenditure had now risen to £500,000, while the ordinary revenue hardly exceeded £320,000.3 Under these trying conditions Salisbury, the new lord treasurer, after conference with the principal merchants, published on July 28, 1608, a a new book new book of rates, or values of goods from the poundage, which was accompanied by a royal order for the collection of new duties "to be forever hereafter paid to the king and his successors, on pain of his displeasure." But all such expedients failed to relieve the king's financial difficulties; after an interval of two years and a half, he was again forced to face the representatives of the nation. 1 Calvin's case, State Trials, ii. 559, 7 Jac. I. 1608. See also notes of the judgments in State Papers, Dom., xxx. 40 and xxxiv. 10. Cf. Denman's Broom's Const. Law, 1885, pp. 4-59. 2 Cf. Excursus III., Thomas' Leading Cases in Const. Law, p. 37. 8 Gardiner, Hist. Eng., vol. ii. p. 12. See also "Comparative View of the Estimated Ordinary Revenue of the Crown," in Appendix at the end of the work. 4 Cf. Hall's Hist. of the Custom-Revenue, pp. 145, 174. of rates. The fourth session ruary 9, 1610; the "Great ances defined; To the fourth session which thus began on February 9, ben Feb 1610, Cecil, in the hope of closing the ever-widening breach between the king and the parliament, submitted a proposal called the "Great Contract," that embodied an offer in genContract;" eral terms to redress all just grievances, provided the house would consent to grant as compensation a sum sufficient to pay the king's debts, and to provide a permanent support of £200,000 a year. Before it was possible to determine whether or no the house could consent to make so great a concession, it was necessary first to define what the representatives of the "just griev- popular party considered as "just grievances;" and second, to ascertain how far the king would yield to the demands to be made for their redress. From the stirring debates which took place in the house, from the conferences of that body with the lords and with the representatives of the king, and from the Petition of Grievances reported by a committee of the house, it is possible to make the following summary. Turning first to the subject of impositions, to which the publication of the royal order of July 28, 1608, imposing new duties, had given a fresh interest, the lawyers of the house engaged in a debate that lasted for four days, in the course of which Hakewill, judgment Whitelocke, and Martin sharply assailed the judgment rendered by the judges in Bate's case, by a masterly review of all sailed and the statutes and precedents bearing upon the matter from the time of Edward I. In reply Bacon and Yelverton said all that could be said in support of the royal contention.1 Angered that his prerogative should be assailed after its recognition by the judges, James had sent a message more than a month before to the commons, forbidding them to debate his right to levy impositions in general at all. But relying upon the "ancient, general, and undoubted right of parliament, to debate all matters which do properly concern the subject," the house continued to listen to the opposing views of the constitutional lawyers, until a compromise was reached, wherein the king agreed to consent to an act prohibiting him from levying impositions for the future,3 provided he was allowed to retain those already in Bate's case as defended; a compromise settlement; 1 Parl. Deb. in 1610; State Trials, vol. ii. An excellent summary may be found of the whole in Hall's A Hist. of the Custom-Revenue, pp. 145-185, and also in Gardiner, vol. ii. pp. 75-82. 2 Cott. MSS., tit. F. iv. fol. 255; Commons' Journals, vol. i. p. 427. 8 Parl. Deb. in 1610, p. 62. This bill was, however, dropped in the lords. purveyance and ward ship; imposed. Before that conclusion was reached, however, full consideration was given to the old questions involving the king's surrender of the right of purveyance and the emoluments which still resulted from feudal tenures, specially those arising out of wardship and marriage, when it was ascertained, after a debate in which Bacon 1 elaborated the feudal branch of this complicated subject, that the king would make all necessary concessions for an adequate pecuniary compensation. Next in constitutional importance stood the abuse made of the abuse of the ordaining ordaining power of the king in council by means of proclama- power; tions, an abuse of which the commons complained because "there is a general fear conceived and spread amongst Your Majesty's people, that proclamations will by degrees grow up and increase to the strength and nature of laws, . . . and this fear is the more increased by occasion of certain books lately published, which ascribe a greater power to proclamations than heretofore had been conceived to belong to them." Reference was thus made to a new law dictionary lately published by Dr. Cowell, Cowell's reader in civil law at Cambridge, in which the new notions of tionary; the prerogative had led the author to assert that the king "is above the law by his absolute power; and though for the better and equal course in making laws he do admit the three estates into council, yet this in divers learned men's opinion is not of constraint, but of his own benignity, or by reason of the promise made upon oath at the time of his coronation." 2 In order to satisfy the indignation excited by this ridiculous publication, the king issued a proclamation suppressing the book, suppressed by proclaadmitting beforehand "that he was a king by the common law of the land," and that he "had no power to make laws of himself, or to exact any subsidies de jure without the consent of his three estates, and, therefore, he was so far from approving the opinion, as he did hate those that believed it."4 While James still held on to the right to issue proclamations beyond the law in cases of emergency, when parliament was not sitting, he agreed to consult the judges and the council upon the 8 8 The proclamation may be found in the preface to the 1708 ed. of the Interpreter. 4 Such was the report made by Salisbury to the lords. Parl. Deb. in 1610, p. 24. law dic mation; the presi dent and council of Wales; James refused to redress ecclesiastical griev subject, and to cause those already issued to be amended.1 To the demand made by the house that he should exempt the four counties on the Welsh border from the jurisdiction of the president and council of Wales, a court which was a mere agency of the conciliar system, the king replied that he could not solve a question of such difficulty without further inquiry.2 If nothing more had remained, an amicable settlement might have been reached. But such a result became impossible by reason of James' refusal to make any concessions whatever to the demands of the commons upon the subject of ecclesiastical grievances. To the requests that the deprived ministers should be allowed to preach upon certain conditions, that the old grievances of pluralities and non-residence should be removed, that the conflict of jurisdiction, which had arisen out of the efforts made by the court of king's bench to limit the powers of the high commission by writs of prohibitions should be settled against the latter by a restraining statute, the house could obtain no satisfactory responses whatever.3 parliament Under these discouraging circumstances the parliament was prorogued 23d of July; prorogued on the 23d of July. judges called upon to define extent of ordaining power. ances; Fifth and last session Two months after that event the king, in accordance with his promise to consult the judges as to his power to issue proclamations, summoned Coke, the chief justice of the king's bench, to appear before the council, where he was asked by Salisbury, first, whether the king could by proclamation prohibit the building of new houses in London, in order to check the overgrowth of that city; second, whether he could in the same way forbid the manufacture of starch from wheat, in order to prevent the diminution of the supply for purposes of food. After conference with three of his brethren, an opinion was delivered by the four a few days later, in the presence. of the council, against the king's pretensions, in terms which have been set forth already.* On the 16th of October, when the fifth and last session began Oc began, the commons took up the task of opposition at the point at which it had been broken off, and on the 31st the king tober 31; 86. 1 Gardiner, Hist. Eng., vol. ii. p. 8 Such was the nature of the king's answer read in the lords at the prorogation, in answer to the memorial there presented on the 21st. 4 See above, p. 180, and note 7. |