Chapter VII: The Stuarts, 1603-1689 236 (6)

The dissolution left Charles without the means with which to carry on the proposed war with Spain. He turned again to old expedients; he forced loans, exacted benevolences, and suspended penal laws for a consideration. The loans took the form of a general levy according to the well-known rate of the subsidy and were thus in effect assessments of a general tax by the arbitrary power of the crown. Of great importance in the light of subsequent history, was the requisition made upon the seaport towns for ships armed and equipped, the precursor of the demand for ship money. Imprisonment, impressment into the royal navy, the quartering of soldiers upon the inhabitants, the dismissal from offices held of the crown, were the several rewards of those sufficiently courageous to stand by the principle that taxes be laid only by the assent of Parliament.[333] By an order in Council it was declared, “that all customs, duties, and imposts on all goods and merchandizes exported and imported, which, for many ages had been continued, and esteemed a principal and necessary part of the revenue of the crown, should be levied and paid.” The hope was expressed that these levies “might receive an absolute settlement by Parliament,” when that body should again assemble.[334]

[Charles’s third Parliament, 1627-28]

[Threats of non-Parliamentary exaction]

Not being content with the financial difficulties incident to the war with Spain, Charles, at the suggestion of Buckingham, slipped into a war with France. Buckingham led an expedition to the Isle of Rhé, met with disaster and ignominy, and succeeded in using up the ready money of the king. Charles had to call his third Parliament in order to obtain supplies. It met 17th March, 1627-28. The king attempted to propitiate the commons by releasing the prisoners whom he still held for refusing to meet the demand for the general loan. In his opening speech, Charles took the wrong tack. “There is none here,” he said, “but knows that common danger is the cause of this Parliament, and that supply at this time is the chief end of it.... If you, (which God forbid) should not do your duties in contributing what the State at this time needs, I must in discharge of my conscience, use those other means which God hath put into my hands, to save that which the follies of some particular men may otherwise hazard to lose.”[335] Nor was this bold assertion of the divine right of a king to put his hand in the pockets of his subjects enough. The lord keeper said in addition, “This way (of obtaining a supply), as his Majesty hath told you, he hath chosen, not as the only way, but as the fittest; not as destitute of others, but as most agreeable to the goodness of his own most gracious disposition, and to the desire and weal of his people. If this be deferred, necessity and the sword of the enemy will make way to others. Remember his Majesty’s admonition: I say, remember it.”[336]

[Grievances have precedence]

[Denunciation of extortions]

The House immediately set itself to the consideration of grievances, chief amongst which were “raising money by loans, by benevolences, and privy seals: and what was too fresh in memory, the imprisonment of certain gentlemen who refused to lend.”[337] The matter of a supply was debated, but passed by in favor of the grievances. On the 3rd April, the commons agreed unanimously to certain highly significant resolutions against the powers assumed by the king. “No freeman ought to be committed, or detained in prison, or otherwise restrained,” they said, “by command of the king, or the Privy Council, or any other,” except for lawful cause expressed in a lawful warrant; and “that the ancient and undoubted right of every freeman is, that he hath a full and absolute property in his goods and estate; and that no tax, tallage, loan, benevolence, or other like charge, ought to be commanded or levied by the king or his ministers, without common assent of Parliament.”[338]

For the space of two months the commons and the House of Lords engaged themselves in conference and separately in the consideration of a petition defining, the rights asserted in the resolutions. On the part of the commons the chief advocates were Selden, Littleton, and Digges; Sir Edward Coke, whose unwillingness to bend the judicial knee to King James had procured his dismissal long since from the chief-justiceship; and Noy, the genius who was shortly to turn against the Commons and in his invention of ship money furnish a means whereby to lay taxes without parliamentary assent. The interest of the crown was defended by attorney-general Heath and Sergent Ashley. The king was in a dilemma; he could not permit the petition to be brought in, in parliamentary form, and he could not dissolve Parliament without losing five subsidies which the commons had signified their willingness to grant him.[339] He therefore tried to steer a middle course; he offered to Parliament his royal word not to imprison unjustly and expressed his willingness to confirm the charters. Coke, however, insisted upon a specific statement of issues; any such hazy settlement of difficulties as the king proposed was unlikely to be permanent; definiteness was essential. To that end he proposed the drawing up of a Petition of Right.

[The Petition of Right]

When the instrument was at last drawn up, it was sent to the House of Lords. The lords attempted to introduce an amendment designed “to leave entire that sovereign power,” as the proposed change itself ran, “wherewith your Majesty is trusted for the protection, safety and happiness of your people;”[340] but the commons would have none of it, and at last the lords yielded their assent. The king at first gave a cumbersome, evasive answer to the petition which was in reality no answer at all,[341] and roused thereby a storm of indignation, which exhibited itself in a movement to censure Buckingham. This the king averted by signing the Petition of Right in the usual manner, and received in consequence his five subsidies.[342]

[The statutes cited in the Petition]

The Petition which thus became a regularly passed Act of Parliament, is of transcendent importance in the development of the control of the people over the public purse. In terms absolutely unequivocal, it asserts that “your subjects have inherited this freedom, that they should not be compelled to contribute to any tax, tallage, aid, or other like charge, not set by common consent in Parliament.” The statutory sources whence that freedom was inherited are cited in detail. The citations, are, however, ill-taken. _Statutum de tallagio non concedendo_ was in all likelihood no statute at all, but a chronicler’s abstract of Edward I’s Confirmatio Cartarum, or perhaps an unauthoritative copy of the pardon which was granted to Humfrey Bohun and Roger Bigod at approximately the same time with the Confirmation of the Charters. It is not unlikely that the citation of the statute of the 25th of Edward III was an error; at any rate, the text of the statute has not been discovered,[343] and the date at which it was said to be enacted was at the height of the great plague, a time scarcely adapted to the assertion of a great constitutional principle. But the precise historical foundation upon which Sir Edward Coke and his associates based their charges against the king, is of quite secondary importance. The true value of the Petition of Right lies in this, that Charles I had been obliged to subscribe to a statutory provision by which no man thereafter was to “be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by Act of Parliament.” That was indeed supremely important.

[The Petition of Right and customs duties]

But the language of the Petition of Right might reasonably be taken to refer only to internal taxes and that the matter of customs duties, the charges upon merchandise at the outports, was left still in the air. Protests had indeed been made against the exaction of these duties by the crown, especially during the reign of James in the great agitation over the Book of Rates, but no statute had been passed providing definitely for parliamentary control. To that end, the commons delayed the passage of a bill which gave the king tunnage and poundage for life, pending the acceptance by him of a remonstrance against impositions. The remonstrance as framed by the commons declared that “there ought not any imposition to be laid upon the goods of merchants, exported or imported, _without the common consent by Act of Parliament_.”[344] It further made assertion that the laying of impositions at the outports was contrary to the Petition of Right. The king’s attitude was decisive; before the remonstrance was handed to him, he evaded the issue by proroguing Parliament. Never, so he said, would he give away tunnage and poundage; he must needs retain them for himself. The session ended 26th June, 1628.[345]

[Tunnage and poundage]

During the six months which elapsed before the reassembling of Parliament, Charles continued to levy tunnage and poundage upon his own authority, relying still upon the decision in the Bate Case for his justification. Several merchants who refused to pay were promptly clapped into prison; among those whose goods were seized for the same reason was Henry Rolles, a member of the House of Commons. The second session of Parliament was called for the 20th January, 1628-29; the commons came together with no pretense of smothering their indignation against the conduct of the king. A number of plans were brought forward as means of rectifying the abuses. The evident determination of the commons to conclude the matter, daunted the king. Summoning both Houses to Whitehall, he renounced the right of levying tunnage and poundage. “It ever was, and still is my meaning,” so were his words, “by the gift of my people to enjoy it, and my intention in my speech at the end of the last session was not to challenge tunnage and poundage as of right, but _de bene esse_, showing you the necessity, not the right, by which I was to take it until you had granted it to me, assuring myself according to your general professions that you wanted time and not good-will to give it me.”[346] For a moment it appeared as though this abandonment of position by the king would end the conflict. Three days after his reception of the Houses at Whitehall, Mr. Secretary Cooke moved the reading of a bill granting him tunnage and poundage for life. But it never passed. The commons were distracted by a question of religious innovation, talked at great length over their religious grievances, and allowed their momentary flush of cordial feeling toward the king to cool. Mr. Secretary Cooke on the two days following that upon which he made his motion regarding tunnage and poundage, delivered messages from Charles urging haste in the consideration of the measure.[347] On the 2nd February, the commons acknowledged the receipt of the messages, but rather than pass a bill satisfactory to the king in this particular, they stated their intent to “proceed with religion.”[348]

On the 19th February they began a lengthy consideration of the breach of privilege committed against the House of Commons in the seizure of the goods of Henry Rolles, the merchant member of the House, who had refused payment of tunnage and poundage during the recent recess. The officers who had participated in the seizure of his goods were summoned before the commons that they might answer for contempt. The stand was taken against the king on this ground of privilege, instead, as Pym advised, of objecting on the broad constitutional ground that Parliament had not granted the tax. This hostility was too much for the conciliatory spirit which Charles had evinced at the opening of the session. Through Mr. Secretary Cooke, he announced his unwillingness to have his officers questioned, since “what they did was by his own direct command, or by order of the council-board, his Majesty himself being present, and therefore, would not have it divided from his act.”[349]

[Tumult in the Commons]

The question was fought out on the 2nd March, when the commons reassembled after a brief recess. The king, hoping to arrange the difficulty privately with the leaders of the House, ordered the recess to be continued until the 10th March. To this the commons entered vigorous protest; at the putting of the question, the vote was overwhelmingly against adjournment. The speaker, Sir John Finch, in obedience to the royal will, attempted to leave his chair, and thus break up the session; but Holles and Valentine, two members most eager for the consideration of the matters pressing for attention, pushed him back into his seat. Sir John Eliot, who had drawn up three resolutions expressing the mind of the commons on the questions of religion and taxation, read them above the uproar. The speaker and the clerk refused to put the vote and the king’s guard was already on its way to make a forcible end to the proceedings. At the moment when the guardsmen were at the door, Holles read the resolutions and they were carried by acclamation. The House then adjourned in a tumult until the 10th March.[350]

The resolutions were most explicit. The two which concerned the impositions said: “Whosoever shall counsel or advise the taking and levying of the subsidies of tunnage and poundage, not being granted by Parliament, or shall be an actor and instrument therein, shall be likewise reputed an innovator in the government and a capital enemy to this kingdom and commonwealth.” And: “If any merchant or other person whatsoever shall voluntarily yield or pay the said subsidies of tunnage and poundage not being granted by Parliament, he shall likewise be reputed a betrayer of the liberty of England, and an enemy to the same.”[351]

When the House reconvened on the 10th March, the king dissolved Parliament without further ado. With respect to such of the commons as merited his displeasure he remarked that the vipers amongst them would meet with their rewards.

[Charles’s eleven years without Parliament, 1629-40]

With the dissolution of his third Parliament, Charles entered upon a new epoch in his reign; and at the conclusion of it, he found that his game had been for too heavy stakes, and that he had lost. For eleven years he did without a Parliament. He began by issuing a Declaration addressed to his “loving subjects” in which he told the history of the late session from his own point of view,--that he was in extreme need of money with which to meet the necessities of England and relieve the “miserable afflicted state” of Protestants abroad, that Parliament had proved itself intractable, and had greatly delayed, contrary to all precedent, in the matter of tunnage and poundage; not only that, but upon his graciously yielding to Parliament the power of granting him tunnage and poundage, it had raised up still another cause for delay in the case of Henry Holles.[352] In a proclamation issued two weeks later he plainly exhibited his intention to rule without a Parliament; “the calling, continuing, and dissolving of them,” he said, “being always in the King’s own power. And his Majesty shall be more inclinable to meet in Parliament again when his people shall see more clearly into his intents and actions, when such as have bred this interruption shall receive their condign punishment.”[353]

[His financial expedients]

He imprisoned accordingly Holles, Strode, Sir John Eliot and others whom he included amongst the vipers of the commons, and removed such of them to the Tower as were able to sue out their writs of habeas corpus, in order that he might thus elude the service of the writs. But imprisonment was scarcely a means of relief to the king’s financial exigencies. He turned to expedients which were exceedingly oppressive, and most of them clearly illegal. He rigorously extorted tunnage and poundage by the arbitrary authority of the crown; he reëstablished the monopolies abolished under James I, and applied them to nearly every article in common use; he revived laws long since dead and applied them stringently for the sake of their fines; he revived forest legislation and increased the limits of the royal woodlands, mulcting the owners of adjoining property for encroachment; he searched titles of estates for defects which would make them liable to reversion to the crown; he went back to the old practice of compulsory knighthood for those who had £40 or more in lands or rents.

[Ship money, first writ, 20th October, 1634]

But the supreme grievance was the extortion of ship money. Sir William Noy, lately leader in the commons in defense of popular power against royal prerogative, now become by the grace of the king attorney-general and a chief supporter of that same royal prerogative, shut himself up in the Tower for some days that he might better consult the ancient authorities. “Shaking off the dust of ages from parchments in the Tower,” says Hallam, “this man of venal diligence and prostituted learning discovered that the seaports and even maritime counties had in early times been sometimes called upon to furnish ships for the public service; nay there were instances for a similar demand upon some inland places.”[354] The first writ of ship money was directed to the magistrates of London and other seaport towns, and was issued on the 20th October, 1634. It recited the depredations of pirates, “Turks, enemies of the Christian name,” and the prevalence of war upon the continent. It enjoined upon the magistrates the furnishing of ships of specific tonnage and equipage by the 1st of the following March. They were empowered to assess all the inhabitants according to their substance, both for the fitting out of the ships and the maintenance of their crews for the space of six months. Refusals to pay were punishable by imprisonment. The writ was issued by the king with the advice of the Privy Council.[355]

[The true occasion for the levy]

The show of precedent was barely an extenuation, not a justification of the demand. As a matter of fact, it was virtually an extortion of a tax, and as such was a distinct violation of the Petition of Right. London, being the only port in the kingdom capable of constructing and equipping ships of the character designated in the writs, was the only town able to make literal compliance with the demand. The rest were obliged to make money payments. But the matter was to come up later in the courts, and the legality or illegality of the writs was there to be decided. As for the occasion of the requisition denominated in the ordinance, that was false. The design was not against “Turks, enemies of the Christian name,” but against the Dutch Republic. Charles had proposed a secret treaty with Spain whereby the government of the Lowlanders should be overthrown and its territory be divided between England and Spain.[356] Not only was this act of Charles a breach of his recent great compact with the nation, but it had for its purpose an act of aggression against the people who stood for the highest political ideals then known in Europe, and was based on a lie.

[Second writ, 4th August, 1635. Its general application]

Sir John Finch, the chief justice of common pleas, the same who, as speaker of the commons, had been forcibly held in his chair in order to keep the House in session at the close of the last Parliament, undertook the levying of ship money upon the death of Noy; he advanced the fortunes of the writs by making them applicable to the entire kingdom. On the 4th August, 1635, the demand made its second appearance; it was to cover not only the needs of a navy, but to furnish “a spring and magazine that should have no bottom, and for an everlasting supply for all occasions.”[357] Instructions were included in the writs to the sheriffs, by which the ships could be compounded for by the counties, and the amount transmitted to the treasurer of the navy for his Majesty’s uses. Payment was to be enforced.

[Third writ, 9th October, 1636]

A year later, the 9th October, 1636, the third assessment was laid. Murmuring against the writs, which was common enough amongst the lower classes in 1635, now spread to men of great position. The earls of Danby and Warwick and other peers protested to the king, not so much against the amount of the tax, as against the unconstitutional manner of its levy. But Charles found it too profitable a means of income to let go; he was the richer each year by some £200,000.

[Extra-judicial opinions]

The courts, however, seemed of contrary mind to the rest of the nation. In November, 1635, at the instance of Sir John Finch, the following extra-judicial opinion was delivered by the judges:--“I am of the opinion that, as when the benefit doth more particularly redound to the ports or maritime parts, as in case of piracy or depredations upon the seas, that the charge hath been, and may be lawfully imposed upon them according to precedents of former times; so when the good and safety of the kingdom in general is concerned, and the whole kingdom in danger (of which his Majesty is the only judge), then the charge of the defence ought to be borne by all the realm in general. This I hold agreeably both to law and reason.”[358]

On the 7th February, 1637, Charles laid the case before the judges of the Exchequer extra-judicially in much the same terms as the opinion of 1635. He requested an answer to the following question:--“When the good and safety of the Kingdom in general is concerned, and the whole Kingdom in danger, whether may not the King, by writ under the Great Seal of England, command all the subjects of our Kingdom at their charge to provide and furnish such a number of ships, with men, victuals, and munition, and for such time as we shall think fit for the defence and safeguard of the kingdom from such danger and peril, and by law compel the doing thereof, in case of refusal or refractoriness: and whether in such a case is not the King the sole judge both of the danger, and when and how the same is to be prevented and avoided?”[359] The opinion of the judges was ostensibly unanimous in favor of the crown; Coke and Hutton as a matter of fact dissented, but subscribed on the principle that the opinion of the majority should be that of the whole body.

[Hampden’s Case, 1637]

In the face of this sweeping and conclusive opinion delivered privately to the king, there was apparently no hope for any one who should have to answer in that court for refusal. Shortly thereafter, however, such a case came up. John Hampden, a gentleman of Buckinghamshire, had refused to pay the assessment of 20_s._ which was laid upon some of his lands, and by reason of his refusal was summoned to the Exchequer. He appeared and answered to the charge in November, 1637. He was defended by the brilliant Oliver St. John and Mr. Holborne. Solicitor General Littleton and Attorney General Bankes conducted the case for the crown.

The question upon which the case was argued may be phrased as follows: “Whether the king had a right on his own allegation of public danger to require an inland county to furnish ships, or a prescribed sum of money by way of commutation, for the defense of the kingdom?”[360] The argument for Hampden can be summed up under five heads:

[The case for the defendant]

I. The law and constitution of England provide certain ordinary revenues for the defense of the realm. These comprehend the military forces provided by those holding lands by military tenure; the liability of the Cinque Ports and others holding similarly to provide a quota of ships, by reason of their tenure; the feudal and other revenues inherent in the crown; the customs on wool and leather, and tunnage and poundage, and other special dues which were wont to be granted to the king in time of danger.[361]

II. The law and constitution of England provide certain extraordinary revenues when the ordinary revenues should prove insufficient, and for the defense of the realm. Chief among these were the subsidies and aids which were granted in Parliament. That Parliament was the only body capable of levying these charges was exhibited by the fact that the kings of England were wont to denominate their arbitrary exactions as “loans” and “benevolences.”

III. The statutes of the realm provided in most emphatic language that no tax should be levied on the subject without the consent of Parliament. The charter of the Conqueror, Magna Carta, especially Confirmatio Cartarum and De Tallagio non Concedendo, the statutes passed subsequently under Edward III, and more than all the others, the Petition of Right, showed the utter illegality of the ship money.

IV. The citations by the crown of exactions similar to the ship money did not demonstrate the lawfulness of the demand; they merely showed precedents of such a general levy. The case must be decided by law, not by precedents,--“_judicandum est legibus non exemplis_.”

V. In the present instance, the perils which the king cited were insufficient to justify an unusual demand for money. The precedent of the arbitrary actions of Queen Elizabeth at the time of the Armada could in no wise be taken as a justification for so great an exercise of the prerogative when the nation was at peace with the world; the piratical acts of Turkish corsairs or even the insolence of rival neighbors could not be reckoned amongst those imminent perils for which a Parliament could provide too tardily.[362]

[A judgment for the crown]

The judgment was in favor of the crown seven to five. Three of the minority based their decision upon the particular rather than on general grounds; Croke and Hutton, however, denied the general contention of the crown absolutely. Croke maintained that taxation save by authority of Parliament is contrary to the common law and to the statutes; that the exaction could not be defended upon the plea of imminent danger; and that the extension to inland counties was not legal or warranted by any legal precedent. The seven judges whose opinions were favorable to the king, upheld the prerogative of the crown as against the legislative power of Parliament. Sir John Finch, chief justice of the common pleas, stated their attitude clearly. “No act of Parliament,” he said, “can bar a king of his regality, as that no lands should hold of him, or bar him of the allegiance of his subjects or the relative on his part, as trust and power to defend his people; therefore acts of Parliament to take away his royal power in the defense of his kingdom are void; they are void acts of Parliament to bind the king not to command the subjects, their persons, and goods, and I say their money too; for no acts of Parliament make any difference.”[363]

The effect of this decision upon the minds of the people was immediate; it changed the payment of the ship money from a semi-voluntary gift to the king into an extortion enforced by him. Previously they had supposed that the ship money was paid out of sufferance, that if it became too heavy, an appeal to the courts would be sufficient to remove it; now they felt that the king had them by the throat and could force them to do as he willed. Never was there a clearer issue; the king and his prerogative against the commons and their long-developing rights; the power of the king to levy taxes upon his own arbitrary authority against taxation by the will of the taxed as expressed in Parliament.

[The Short Parliament, 1640]

The Scottish rebellion of 1638 which was waged for the defense of religious freedom, and the interval of peace, beginning the 18th June, 1639, which was used by Scots and English alike as a period of armament, proved too much for Charles’s irregular financial supply. Reluctantly he called his Fourth Parliament, commonly known as the Short Parliament, for the 13th April, 1640. The assembly was, strange to say, most moderate and loyal to the king. Charles through the ex-Speaker Sir John Finch, now Lord Keeper, asked for a large supply immediately, saying that he would listen to grievances afterwards.[364]

[Clash between the Houses]

The commons recalled instances wherein the royal word had been broken, and preferred to withhold supply until the end of the session, according to their familiar habit. They proceeded to inquire into the Hampden case, and considered in detail the various occasions upon which the law had been broken during their eleven years’ recess. They appointed a committee to confer with the lords over a long list of grievances, divided into the three departments of innovations in religion, invasions of private property, and breaches of parliamentary privilege.[365] At this Charles came forward with a gigantic piece of tactlessness; thinking he saw a hole through which he could escape, he tried to win the lords to his standard. Applying to them, they voted and communicated to the House of Commons that “his Majesty’s supply should have the precedency, and be resolved on before any other matter whatsoever.”[366] To the commons this appeared an arrant breach of privilege, it being their right that money bills should originate in their House. The lords immediately adopted a conciliatory tone; they renounced any intention of offending the commons. “The bill of subsidies,” they admitted, “ought to have its inception and beginning in your House; and that when it comes up to their lordships, and is by them agreed unto, it must be returned back to you and be by your House presented.”[367]

The king had reason to regret his intrusion since the dispute which he had caused delayed a supply from the commons so much the more. He now had recourse to a compromise. He offered the withdrawal of his claim to ship money in consideration of a grant of twelve subsidies,[368] payable in three years. The commons, perceiving that the proposition, if acceded to, involved the tacit admission that the ship money had been justly laid, insomuch as its removal was obtainable only by purchase, refused to enter into the agreement. But the effect of the message was not quite lost; on the contrary it seemed as though the king would shortly receive his grant. At the moment when the commons were on the point of deciding upon a supply, the amount to be determined subsequently, Sir Henry Vane, secretary of state, precipitated a crisis. He asserted that the supply would not be accepted unless it were to the amount and in the manner designated in the king’s message.[369] The next day, the 5th May, the king dissolved his three-weeks-old Parliament, to his own great distress and the trepidation of the nation.

[Dissolution of Parliament]

Charles employed the six months which intervened between the dissolution of Parliament and the summons of the Long Parliament in his usual occupations. He locked up several members of the House. He exacted forced loans, created new monopolies, and levied ship money. Prosecutions followed swiftly upon refusals to pay. “Coat and conduct money,” a new exaction from the counties, was demanded to cover the traveling expenses of recruits on their way to fight against the Scots. He obtained six subsidies from the clergy whom he illegally kept in convocation after the dissolution of Parliament.

[Sitting of the Long Parliament, 3rd November, 1640]

The wind of opposition was rising to a gale. With the sitting of the Long Parliament, which convened on the 3rd November, 1640, the tempest broke. The immediate occasion of the summons was the universal demand of the people and the peers for a session of Parliament, coupled with emptiness of the treasury which came with the commencement of the disastrous Scottish war. The composition of the commons was overwhelmingly anti-regal;[370] the popular leaders had been at work in the counties ever since the dissolution of the Short Parliament looking to the return of a strong majority in opposition to the king. The assembly convened full of the idea that “they had now had an opportunity to make their country happy by removing all grievances and pulling up the causes of them by the roots, if all men would do their duties.”[371]

Parliament lost no time in setting about its work. Proceedings were immediately instituted looking to the impeachment of the Earl of Strafford, Archbishop Laud, Finch, and six of the judges who had figured in the ship money case. Various victims of the tyrannical jurisdiction of the Star Chamber were set at liberty. The commons exhibited their uncompromising hostility to the king by voting assistance to their “brethren” the Scots, whose army was in possession of much territory on the English side of the border. They granted them £25,000 a month as long as their stay in England should be needful, and in addition £300,000 as an indemnity.

[Royal exaction of tunnage and poundage declared illegal]

With such acts of open opposition to the king in process, it was natural that Parliament should set itself to clean up all the abuses which of recent times had crept into the government. Its actions were not subversive of the constitution; on the contrary it left unassailed many prerogatives of the king. On the 22nd June, 1641, Parliament granted to the king tunnage and poundage for a length of time somewhat less than two months[372] and in the same bill declared, “that it is and hath been the ancient right of the subjects of this realm, that no subsidy, custom, impost, or other charge whatsoever ought or may be laid or imposed upon any merchandise exported or imported by subjects, denizens, or aliens without common consent in Parliament.”[373] The Act prescribed also the punishment which should be inflicted upon officers who in time to come should exact payments not sanctioned by Parliament. They were to “incur and sustain the pains, penalties, and forfeitures ordained and provided by the Statute of Provision and Premunire made in the sixteenth year of King Richard II, and shall also from thenceforth be disabled during his life to see or implead any person in any action real, mixed, or personal, or in any court whatsoever.” Thus was it enacted that tunnage and poundage exacted by authority of the crown was illegal, and protected merchants from being sued by the customs officers in case of refusal to pay the unlawful imposition. The king received tunnage and poundage by six subsequent acts for short terms down to the 2nd July, 1642.

[The Ship Money Act, 7th August, 1641]

Six weeks later, on the 7th August, 1641, Parliament turned its attention toward the matter of ship money. On that date it passed an “Act for the declaring unlawful and void the late proceedings touching Ship-Money, and for the vacating of all records and process concerning the same.”[374] The act cites the Hampden Case and others of a similar nature and outlines the plea of the royal prerogative as given in the extra-judicial opinion of the judges. It condemns “all which writs and proceedings” as being “utterly against the law of the land.” In greater detail it enacts “that the said charge imposed upon the subject for the providing and furnishing of ships commonly called ship money, and the said extra-judicial opinion of the said justices ... and the said judgment against John Hampden, were and are contrary to and against the laws and statutes of this realm, the right of property, the liberty of the subjects, former resolutions in Parliament and the Petition of Right.” The act also provided that all particulars desired in the Petition of Right should be “strictly holden and observed as in the same Petition they are prayed and expressed.” The ship writs and the Hampden judgment are specifically annulled.[375]

Thus came to an end the long chain of statutes which Parliament from its inception had been forging to fetter the arms of the king straining toward the prize of arbitrary taxation. The virtue of the Long Parliament is thus commented upon by Hallam: “In the first place,” he says, “it will appear ... that they made scarce any material change in our constitution, such as it had been established and recognized under the house of Plantagenet.... Thus in by far the greater part of the enactments of 1641, the monarchy lost nothing that it anciently possessed; and the balance of our constitution might seem rather to have been restored to its former equipoise, than to have undergone any change.... It is to be observed in the second place, that by these salutary restrictions, and some new retrenchments of pernicious or abused prerogative the Long Parliament formed our constitution such nearly as it now exists.”[376] The legislation of 1641 in effect restored to Parliament what power it nominally held two centuries before.

[The Grand Remonstrance, 1st December, 1641]

A current of reaction now set in favorable to the king. The leaders in the commons discovered that the popular support to their measures was becoming weak, that the royalist party was recruiting adherents from the former supporters of the opposition, that their own backing was by a party, not by the nation. With the hope of winning back full national adherence to Parliament, the Grand Remonstrance was framed by the House of Commons and presented to the king, on the 1st December 1641.[377] It purported to show the present state of the kingdom, the evil conditions which Parliament had succeeded in bettering, and the darkness of the future, if support were withdrawn from Parliament. With respect to taxation, the Remonstrance recites the various illegalities and abuses which the crown had practiced and the steps which the commons had taken to provide for their correction. For future safeguard against their return it suggests “that for the better preservation of the liberties and laws, all illegal grievances and exactions should be presented and punished at the sessions and assizes; and that judges and justices should be sworn to the due execution of the Petition of Right and other laws.”

[The Puritan Revolution]

With the delivery of the Grand Remonstrance, the contest for Parliamentary taxation became of relatively small moment in the great conflicts of the Puritan Revolution. The struggle over the impeachment of Pym and the popular leaders in the House, the attempt of the king to secure absolute command of the militia, the battles on the field and in the House of Commons during the Civil War, the events which led up to the execution of Charles--these were neither immediately caused by the conflict over taxation nor did they have immediate effect upon it. Taxation up to 1641 was a prime cause of opposition to the crown; thereafter it ceased to be of so great importance.

[Accession of Charles II, 1660]

Charles II came to the throne in 1660 after the English people had made an eleven years’ trial of a military despotism under a good and moderate despot. His first Parliament, that of 1660, granted him the proceeds of the customs for life. During the period of the Commonwealth, the freedom from the feudal charges had been most agreeable to those holding of the crown. Consequently, this Parliament set itself to regulate the confused system of military tenure by the simple expedient of abolition. The Great Contract which had been proposed under James I for the same purpose, had been advocated in vain. Now, however, the effort was successful. The feudal incidents, such as wardships, marriages, knight’s service, as well as the three feudal aids, knighting the king’s son, ransoming the king, and furnishing dowry for his eldest daughter, were done away with. By this great deprivation, the royal revenue was naturally much prejudiced. Parliament made up the loss by granting to the crown an hereditary excise on beer and some other liquors, increasing the royal revenue to the annual value of £1,200,000.[378]

[Appropriation of supplies, 1665]

In 1665 the expenses incident to the Dutch War made it possible to establish a principle which had been touched upon from time to time since the days of Henry III. Sir George Downing, in the subsidy bill of that year, introduced the provision that the money raised in accordance with the bill, £1,250,000, be applicable solely to the prosecution of the war, and that the money could not be paid out by the Exchequer save by special warrant stating that as the purpose of the payment. Clarendon opposed the measure as an encroachment upon the honor of the crown, but Charles himself was not averse to it, mainly by reason of his belief that the promised revenue would be thus more acceptable to bankers as the security for loans. The appointment in the following year of a commission to examine the public accounts in order to determine the faithfulness with which the provision was carried out, clinched the principle underlying its original passage. The bill was the natural consequence of the liberty of appropriation enjoyed under the Commonwealth. The exercise of the principle of appropriating supplies in detail was not carried to its full extent until after 1689. Its importance is difficult to overestimate. It placed the executive power in a position of perfect dependence upon the will of Parliament, for the money requisite for any administrative act was to be forthcoming only in accordance with the previously expressed intent of Parliament.

[Reign of James II, 1685-88]

The reign of James II, who came to the throne in 1685 at the death of Charles, was retrogressive. He assumed the crown with the full intention of exercising arbitrary authority, and if he had not tried to substitute Catholicism for the Established Church, there is little to show that he would not at least for a time have succeeded. Before the summons of his Parliament, which he called reluctantly notwithstanding a lapse of five years under Charles without one, he continued to himself the payment of the customs duties by proclamation. This illegal act met with no serious objection from Parliament when it met. Nor was this all; Parliament raised the permanent revenue of the king to the annual amount of £2,000,000, and on the suppression of Monmouth’s rebellion, gave him £700,000 more wherewith to support a standing army. Thus did Parliament make James financially independent, provided he was content to live within reason, and gave him an army in addition. This was a combination of powers which on the Continent had sufficed to create despotisms.

[William and Mary]

That it did not create a despotism in England is not greatly to be wondered at. James set himself to fighting the battle of the Roman Catholic church in England. The result was almost immediate disaster. On the 5th November, 1688, William, Prince of Orange, and Stadtholder of the United Provinces, landed at Torbay in Devonshire. He was requested by seventy of the lords spiritual and temporal (all who were then in London), by the members of the House of Commons which met in the last Parliament of Charles II, and the corporation of the City of London, to assume the provisional government of the kingdom pending a session of Parliament. This was called for the 22nd January, 1688-89. On the 13th February following, a tender of the crown was made to William, on the conditions denominated in the recently framed Declaration of Right. In it the illegal acts of King James were recited and the announcement was made that the throne had been abdicated; it was asserted also that certain specified acts of King James were illegal, and a resolution was appended settling the crown on William and Mary. William, speaking for himself and for the Princess Mary, “thankfully accepted what had been offered them.”

[The Bill of Rights, 1689]

The Declaration of Right, with some slight but essential changes, was incorporated at the second session of this Parliament, the 25th October, 1689, in statutory form known subsequently as the Bill of Rights.[379] In the matter of taxation, it sums up in a few clauses the whole principle which had been in course of evolution since the German chieftains received gifts of cattle and fruits from their people.

It states that King James “did endeavor to subvert and extirpate ... the laws and liberties of this kingdom ... by levying money for and to the use of the crown, by pretense of prerogative, for other time and in other manner than the same was granted by Parliament.” Then follows the definite assertion, “that levying money for or to the use of the crown by pretense of prerogative, without grant of Parliament for longer time or in other manner than the same is or shall be granted, is illegal.” The clause which gave to these statements the force of law, emphasizes the power of Parliament. “All which their Majesties are contented and pleased,” so it goes, “shall be declared, enacted, and established by authority of this present Parliament, and shall stand, remain, and be the law of this realm forever; and the same are by their said Majesties, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in Parliament assembled, and by the authority of the same, declared, enacted and established accordingly.”

With the passing of the Bill of Rights the principle was vindicated in its fullness that Parliament rather than the crown has the power to tax. Within Parliament itself the power of laying taxes had undergone further differentiation in that the House of Commons claimed the sole right of initiating tax levies. The theory deduced therefrom, that the House of Commons has sole control over money bills and that interference by the House of Lords is an assumption of power beyond the constitutional rights of that House, came up for fuller definition 220 years later. The corollary principle that Parliament has the power to appropriate supplies for specific purposes and that it can demand an accounting for the money so appropriated were accorded general acquiescence then and thereafter.

INDEX

Accounts, examination of, 186-188;
appointment of treasurers under Richard II, 191-194;
under Charles II, 303;
after Bill of Rights, 308.

Aid _pur fille marier_, Edward I, 121.

Ancient Customs, rate stated, 165.

Anglo-Saxons, their early ideas of taxation, 3.

Appropriation of Supplies, 184-186;
declaration under Henry VI, 210;
under Charles II, 303-304;
after Bill of Rights, 308.

Assize of Arms, 35.

_Auxilium vicecomitis_, 27, 29.

Bate Case, 241-242;
opinions of the Barons, 242-244;
position of Parliament, 244;
Book of Rates, 245;
remonstrance by Parliament, 246-248.

Becket, Thomas, his controversy with Henry II, 27-30.

Benevolence, a form of extortion, 214;
prohibiting statute of Richard III, 216-217;
Morton’s Crotch, 220;
Shoring or Under-propping Act, 221;
Henry VIII’s “amiable graunte,” 225;
under James I, 253;
St. John’s Case, 253-254;
under Charles I, 264, 267, 272, 294.

Bigod, Roger, dispute with Edward I, 135-138.

Bill of Rights, 306-308.

Bohun, Humfrey, dispute with Edward I, 135-138.

Book of Rates, 245.

Buckingham, 262-264, 265, 269.

Burghers, at Parliament of 1265, 102-103;
acquire function of taxing, 116-119.

_Carta Mercatoria_, 158;
complaint against, 162.

Carucage, 43, note 1;
imposition by Richard I, 43;
a revival of the Danegeld, 35, note 1;
levy of 1198, 44;
“assessed” by the Common Council, 77-78.

Charles I, his accession, 261;
signs Petition of Right, 269;
renounces tunnage and poundage, 274-275;
rules without Parliament, 279.

Charles II, his accession, 302;
death, 304.

Clergy, John’s antagonism of, 55;
need of their assent to taxation recognized, 125;
meet separately, 131, note 1;
attempted taxation of by Parliament, 1449, 210;
taxation after English Reformation, 228-230.

_Clericis laicos_, 133, note 1;
tendency to disregard, 1297, 142, 145;
adduced in 1301, 156.

Common Council, no provision for London representatives made in Magna
Carta, 66;
its composition, 66-68;
representation, 68-69;
part in taxation in early years of Henry III, 77-78;
grants a tax on movables, 1224, 79-81;
instances of refusal, 1232 and 1237, 81-82;
refuses a grant, 1242, 85;
its control over taxation in 1250, 91-92;
knights of the shires called, 1254, 92-94;
its control of disbursements, see Disbursements.

Commons, House of, foreshadowed in Parliament of 1265, 102, 103;
meets separately, 189, 190;
initiation of tax levies, 205-208, 308;
composition dictated by James I, 238;
revival of impeachment, 256;
breach of privilege in Short Parliament, 293.

_Commune Concilium_, see Common Council.

Conditional grant, early instance of, 1224, 79-80;
repetitions, 81-82.

_Confirmatio Cartarum_, action prior to, 142-144;
signed by Edward I, 145;
analysis of tax clauses, 146-150;
marks a stage in Parliamentary taxation, 152-153.

Contributions, voluntary, among the early Germans, 2, 3.

Cowel’s “Interpreter,” 248.

Customs, in early England, 113, note 1;
_Carta Mercatoria_, 158;
statutory provision for control by Parliament, Edward III, 177-178;
persistence of the struggle over customs, 179-180;
Bate Case, 242-244;
Book of Rates, 245;
collection ordered by Charles I, 265;
omission in Petition of Right, 273.
See also under New Customs, Ancient Customs.

Danegeld, origin 991 and early instances, 6-7;
authority for its exaction, 8-9;
reimposition under the Conqueror, 15-16;
under William Rufus, 18;
Stephen’s promise of abolition, 25-26;
supposed cause of Woodstock Controversy, 27, note 3;
its disappearance from the Rolls, 35, and note 1;
revival as “carucage,” 35, 43.

_De tallagio non concedendo_, 150-151, 159, 167;
cited in Petition of Right, 271.

Disbursements, rejection of commission for, 82-83, 85;
demand for supervision of, 87-88;
Matthew Paris’s scheme, 88.

Distraint of Knighthood, 117, 123;
resorted to by Charles I, 281;
made illegal, 299, note 1.

Divine right, etc., in taxation, 236;
assertion by Charles I, 266.

Domesday Survey, 17.

Duties, Bate Case, 242-244;
Book of Rates, 245.
See under Customs.

Edward I, accession, 107;
his character, 107-108;
dispute over foreign service, 134-137;
his financial preparations for the Gascon expedition, 1297, 140;
his part in attainment of Parliamentary taxation, 153;
last years of his reign, 157-159;
his death, 159.

Edward II, his accession, 159-160;
deposition, 169.

Edward III, accession and coronation, 169-170;
death of, 188.

Edward IV, accession, 213;
taxation and extra-Parliamentary exactions, 214-216.

Elizabeth, accession, 230;
character of her government, 231.

Examination of accounts, see Accounts.

Excise, granted in lieu of feudal incidents, 302.

Feudal incidents, done away with under Charles II, 302.
See also under Great Contract.

Fifteenth and tenth, becomes a fixed sum, 183, note 5.

Fitz-Peter, Geoffrey, justiciar of John, his address to the sheriffs,
50;
his edict at the Council of St. Albans, 58-59.

Flambard, Ranulf, 18.

Folkland, a royal means of revenue, 4.

Forced loans, a charge against Richard II, 201, 202;
under Edward IV, 214;
under Henry VIII, 226-228;
under Elizabeth, 232;
under James I, 251, 253;
under Charles I, 264, 267, 272, 294.

Foreign service, dispute over, 1297, 134-137, 140-142.

_Fyrdwite_, a counterpart of scutage, 32.

Gaveston, 161, 163, 166;
his death, 166, note 1.

Germans, early idea of taxation among, 2-3.

Grants, delay of to end of session, 204.

Great Contract, 249.

Grievances, redress of; principle of, in 1297, 144-145;
delay of grants to end of session, 204;
principle adhered to, James I, 252, 254-255;
under Charles I, 262-263.

Hampden’s Case, 287-291, 293;
Long Parliament annuls the judgment, 298.

Henry I, character of his reign, 19;
his Charter, 19-20;
attitude toward National Council, 24.

Henry II, accession of, 26;
his ancestry, 26;
his controversy with Becket, 27-30;
his death, 37.

Henry III, character of his reign, 71-72;
his accession and the regency, 72-73;
declared of age, 78;
restraint under Provisions of Oxford, 97-99;
war with Montfort, 100-101;
his last years, 104-106.

Henry IV, his accession, 202.

Henry V, his short reign, 208-209.

Henry VI, his accession, 209;
character of his reign, 210;
his overthrow, 211.

Henry VII, accession, 217;
few Parliaments in his reign, 219;
the “new found” subsidy, 219-220;
extortions, 220-221.

Henry VIII, accession and early taxation, 221-222;
his commissions and benevolences, 224;
death, 230.

Heriot, 5.

Inquest, juries of, utilized in collection of Saladin Tithe, 36;
in carucage, 44.

Inquest of Service, 52.

Initiation of tax levies by Commons, 205-208;
admission by the Lords, 293;
after Bill of Rights, 308.

James I, accession, 237;
dictates composition of House of Commons, 238;
Cowel’s “Interpreter,” 248;
the Great Contract, 249;
his death, 261.

James II, accession, 304;
his absolutism and death, 305.

John, accession of, 48;
early taxation, 49-50;
his scutages, 50-52;
break with the pope, 51;
antagonism of the clergy, 55;
his death, 72.

King, Anglo-Saxon, personal leader and lord of national land, 3-4;
his sources of income, 3-5.

Knights of the shire, summoned to Parliament by Simon de Montfort and
Henry III, 99-100;
attend Parliament of 1264, 101;
Parliament of 1205, 102-103;
their attendance declared “expedient,” 114-115;
meet separately, 1294, 125-126.

Lewes, battle and Mise of, 101.

Lincoln, Hugh of, his refusal of assent to Richard I’s demands, 44-46.

Lincoln, Parliament of, 156.

London, provided for in Magna Carta, 65.

Lords, House of, meets separately, 189-190.

Lords Ordainers, 163.

Magna Carta, scutage a moving cause, 50, 60;
events leading to, 60-62;
granting of the charter, 62;
Cap. 12, 63 and note 1, 64-66;
provision for London, 65;
Cap. 14, 66-67;
king remains supreme authority over taxation, 69-70;
omissions in renewals, 70;
renewed 1216, 73;
second reissue, 74-75;
reissue, 1224, 80;
reissue, 1297, see _Confirmatio Cartarum_;
reconfirmation, 1301, 156.

Maletolt, definition of, 112;
in _Confirmatio Cartarum_, 147, 148;
under Edward III, 172-177;
statutory abolition, 177;
subsequent violations and reaffirmations, Edward III, 180-183.

Money Bills, initiation by Commons, 205-208, 233-235;
admission by Lords, 293;
after Bill of Rights, 308.