3

cretionary power over their persons; and it was far more closely guarded by statutes. We have seen that the Tudors had been obliged to respect it; and that the pecuniary exactions made by them were neither frequent nor severe. They had exacted loans from their richer subjects, and compelled them to pay the sums. promised by summoning them before the Council; 2 they had occasionally profited slightly by rearrangements of the tariff made for the purpose of promoting English trade; and they had levied ships and ship money for the defence of the country.* The Stuarts naturally made use of those precedents and attempted to develop them. But the spirit in which they applied them was totally different from the spirit in which they had been applied by the Tudors; so that what the Tudors had done without protest, and even with popular approval, now raised a storm of popular disapproval, heated debates in Parliament, and litigation in the courts. To understand why this was so we must look at the use which the Stuarts made of these powers of exacting loans, of rearranging the tariff, and of levying ship money.

8

It had been settled in the case of Oliver St. John," a decision in which Coke had ultimately concurred," that the crown was at perfect liberty to persuade its subjects to lend their money; and that the circulation of a letter stating that this was contrary to law, and otherwise reflecting upon the king, was punishable as a seditious libel. But in 1626 Charles, being hard pressed for money, attempted to compel his subjects to lend specific sums of money named by himself. The total amount to be collected was fixed at five subsidies; and persons were ordered to lend the amount which they would have been obliged to pay if five subsidies had been voted. Those who refused to lend were to be

5

4 Ibid 105.

* (1615) 2 S.T. 899; see Acts of the Privy Council (1613-1614) 635, 641, 647 for the directions as to his arrest and imprisonment.

In the list of "innovations" charged against Coke in 1616 it is said that, "he gave opinion that the king by his great seal could not so much as move any of his subjects for benevolence. But this he retracted after in the Star Chamber; but it marred the benevolence in the meantime," Spedding, Letters and Life of Bacon vi 92; cp. a letter of Bacon to the king in 1615, "My lord chief justice delivered the law for the benevolence strongly; I would he had done it timely," ibid v 135; for similar justifications of the loan given by the Privy Council see Acts of the Privy Council (1613-1614) 628-631, 649-650, 655-657.

7 Bacon arguing for the prosecution said, "the whole carriage of the business had no circumstance compulsory. There was no proportion or rate set down, not so much as by way of a wish; there was no menace of any that should deny; no reproof of any that did deny; no certifying of names of any that had denied.

I conclude therefore that this was a true and pure benevolence, not an imposition called a benevolence of which the statute speaks," 2 S.T. at pp. 904-905; for the letters directing the levy see Acts of the Privy Council (1613-1614), 491-496.

8 Cp. Spedding, op. cit. v 134.

2

1

bound over to appear before the Council. If this did not go beyond the Tudor precedents, it was at any rate clearly contrary to a statute of Richard III.'s reign; and, though precedents of similar illegal demands by the Tudor sovereigns can be produced,3 it was at least certain that they had never made such demands at a time when there was strong disapproval throughout the country of the home policy, the foreign policy, and the ecclesiastical policy of the government. It was inevitable that the legality of such an attempt would be tested in the courts; and the judges could hardly do anything else than decide that it was illegal. Crew was dismissed; but it was obvious that the other judges would not be compliant ; and so, as we have seen, the expedient was resorted to, of stating that persons arrested for non-payment of the loan were arrested per speciale mandatum regis. In the ensuing Parliament the illegality of such a loan was practically admitted by the king's secretary; and the clause of the Petition of Right dealing with this matter finally settled the question. Charles did not again resort to this particular expedient to fill his exchequer.

5

The question of the right of the crown to impose new customs duties by his prerogative was considerably more complicated. It is clear from the medieval statutes and precedents that the king had lost any power that he might once have had to impose new customs duties without the consent of Parliament." Certain of these duties, the amounts of which had been fixed by Parliament, were annexed to the crown in perpetuity; and from the end of Edward III.'s reign onwards any increase had had the sanction of Parliament. Since 1453 an increase known as tunnage and poundage had been voted by Parliament to each king at the beginning of his reign for his life. Parliamentary

1 Gardiner, op. cit. vi 144; S.P. Dom. 1625-1626 435-436, xxxvi 42-43; Bacon in 1614 had advised that all appearance of compulsion should be avoided, hinting that such a forced loan would be illegal, see Spedding, Letters and Life v 81-83; this policy, followed in 1614, was now abandoned.

21 Richard III. c. 2.

3 See Scott Thomson, Lords Lieutenants in the Sixteenth Century, 120-125, for similar demands in 1589, 1591 and 1596.

4 Vol. v 351.

5"One and all they refused to give the required signatures unless they were allowed to add that they signed simply to please his Majesty, without any intention of giving their authority to the loan," Gardiner, op. cit. vi 149.

Ibid 237.

7 Stubbs, C.H. ii 266, 571-576; Dowell, History of Taxation i 131-137.

8 These were the Antiqua Custuma-export duties on wools, wool-fells, and leather, the rates of which were fixed in 1275, Hall, Customs Revenue i 67-68; the Nova Custuma-a further tax on goods exported by aliens the rates of which were fixed by the Carta Mercatoria of 1303, ibid i 69-70; Prisage and Butlerage, ibid ii 90-116.

Dowell, op. cit. i 141, 145-146, 163; for the origins of this duty see Stubbs, C.H. ii 576-577; for the defence made by Charles I. of his illegal act in taking tunnage and poundage without a parliamentary grant, see below 70 and n. 1.

control over these customs duties was thus well established when James 1. came to the throne. On the other hand, it was clear that the king had large powers of rearranging the tariff to further the commercial interests of his subjects; and, owing to the fact that in the sixteenth century commerce was becoming more and more international, these powers were more and more extensively exercised.1 Nor was any serious objection made to their exercise.2 But it is clear that the principle that the crown cannot impose new customs duties without the consent of Parliament, and the principle that the crown can make rearrangements of the tariff to further the commercial interests of its subjects, might easily conflict. It might be contended that a duty imposed in furtherance of the latter object was an infringement of the former principle.

This was exactly the contention raised by Bates in 1606.3 L James I. had imposed a poundage of 5s. on currants in addition to the poundage of 2s. 6d. imposed by statute. Bates declined to pay the poundage of 5s. on the ground that the king had no power to impose it. An information was brought against him in the Exchequer, and the question was thoroughly discussed both at the bar and by the bench.1

The history of this imposition upon currants shows that the crown had chosen its ground well. Elizabeth had granted to a company of English merchants the monopoly of the Venetian trade. This grant enabled the members of the company to make a charge upon non-members for permission to trade. It expired in 1591; with the result that the company lost the right to make this charge, and the crown lost the money payable to it by the company in return for the monopoly. The crown therefore recouped itself by charging the merchants directly an imposition upon the goods which they imported. Shortly afterwards a return was made to the former policy. The merchants trading to Venice and those trading to Turkey were incorporated under the name of the Levant Company, and given the monopoly of trade to those countries. The Company again adopted the plan of making a charge upon non-members for permission to trade. Non-members were allowed to import currants on payment of 5s. 6d. per cwt. The Levant Company's charter was forfeited in 1600; but a new charter was granted on condition

2 Ibid 338.

32 S.T. 371.

1 Vol. iv 336-338. The reporter Lane says, "this matter hath been divers times argued at the bar, and at the bench, by Snig and Savil, Barons, and now by Clark, and Flemming, Chief Baron, whose arguments only I heard," ibid 382.

5 The following summary is taken from Gardiner, History of England ii 2-5. For the history of these early trading companies see vol. iv 319-320, 338-339; Pt. II. c. 4, I. § 4.

that it paid the crown £4000 a year. The trade did not prosper,

and the charter was surrendered in 1603. The crown therefore lost its £4000 a year; and "it was only natural that, the trade being now open, the Council should revert to the imposition which had been before levied, either by the Crown or by the Company itself." After taking a legal opinion as to the legality of such an imposition, the duty was imposed." But it did not bring in much revenue to the crown. Both in 1604 and 1605 the merchants were excused arrears of duty. In fact the main object of the government was not to exact customs dues, but to regulate the Venetian trade.

The court decided that such an imposition was perfectly legal. The king's power, it held, was twofold-ordinary and absolute.3 Over matters of state-such as the conduct of foreign affairs-the king's power was absolute. But the regulation of foreign trade was a branch of foreign affairs; and therefore the raising or lessening of these duties must belong to the king's absolute power. In fact, if the law were otherwise, English subjects would be at a disadvantage as compared with foreigners, and trade would suffer. It was argued that the king had no power to lay an imposition upon Bates because he was an English subject. The answer was the imposition was laid on the currants while in the hands of the Venetians; and Bates, having imported commodities so charged, became liable to pay the duty. The court also said that, in its opinion, the crown had a similar power to lay an imposition upon commodities produced in England. This question did not, however, arise in this case; and it held that, "for foreign commodities it appears by no Act of Parliament, or other precedent, that ever any petition or suit was made to abate the impost of foreign commodities, but of them the impost was paid without denial." 8

The court was fully aware both of the difficulty and the importance of the case. They saw clearly that they must reconcile

1 Gardiner, op. cit. ii 3.

2 Ibid 4, citing S.P. Dom. 1603-1610 51, iv 46.

42 S.T. at p. 391, per Fleming, C.B., cited vol. iv 337.

3 Above 22 n. I.

5"If the king cannot impose upon foreign commodities a custom, as well as foreigners may upon their own commodities, and upon the commodities of this land when they come to them, then foreign states shall be enriched, and the king impoverished, and he shall not have equal profit with them," 2 S.T. at p. 390.

"That the king may impose upon a subject I omit; for it is not here the question. . .; but the impost here is not upon the subject, but here it is upon Bates, as upon a merchant, who imports goods within the land, charged before by the king; and at the time when the impost was imposed upon them, they were the goods of the Venetians, and not the goods of a subject, nor within the land, but only upon those which shall be after imported: and so all the arguments, which were made for the subject, fail," ibid.

7 Ibid at pp. 393-394.

8 Ibid at p. 394.

the prerogative of the crown with the right of the subject, and lay down some rule which would settle the boundaries between two conflicting principles of constitutional law.1 The rule which they laid down seems to me to be eminently reasonable. In effect they said, you must look at the intention with which the duty is imposed. Does the crown intend to regulate trade, or does it intend to raise money? If it intends only to regulate trade, if the imposition is imposed primarily with this object, the fact that the financial burden of the subject is increased is immaterial. We may thus sum up the effect of the decision in the following propositions—(1) the crown, being responsible for the conduct of foreign affairs, has a wide prerogative to act as it pleases in the interests of trade. (2) This includes a power to admit, to exclude, or to discourage by impositions, certain commodities. (3) Impositions levied with this object are not illegal because they have no Parliamentary sanction.

3

Though the House of Commons was inclined to back up Bates's contention 2 there was no general disapproval of the decision-in fact there is some evidence that it was generally regarded as correct. Coke and Popham approved of it; and Hakewill, who argued strongly against it in 1610, admitted that, though he had since changed his mind, he was at the time "much persuaded" by it. But the measures taken by the government in reliance upon this decision called renewed attention to the point raised by Bates. James issued a new Book of Rates, and placed impositions upon articles produced and sold

1 "But for the matter it is of great consequence, and hath two powerful objects which it principally respecteth. The one is the king, his power and prerogative, his treasure, and the revenues of the crown; and to impair and derogate from any of these was a part most undutiful in any subject. The other is the trade and traffic of merchandise, transportation in and out of the land of commodities, which further public benefit ought much to be respected, and nourished as much as may be," 2 S.T. at pp. 387-388.

Gardiner, History of England ii 5-6.

$ Coke says, 12 Co. Rep. 33-34, "Upon conference between Popham, Chief Justice, and myself upon a judgment given lately in the Exchequer concerning the imposition of currants it appeared to us that the king cannot at his pleasure put any imposition upon any merchandise to be imported into this kingdom, or exported, unless it be for advancement of trade and traffic, which is the life of every island, pro bono publico . . . and for this cause such impositions were lawful "; but in the Second Institute 63 he condemns the decision, saying that "the common opinion was that the judgment was against law, and divers express Acts of Parliament "; though the 12th and 13th parts of the reports were not published by Coke and are of less authority than the other eleven parts, vol. v 462, yet we should remember that the Second Institute represents the views which he held after he had thrown in his lot with the Parliament, ibid 444, 471; apparently, like Hakewill, his view had already begun to change before 1610-perhaps owing to the use which the king was making of the decision in Bates's Case, see above 41; below 46 and n. 2.

42 S.T. 409-410-"I do confess that by the weighty and unanswerable reasons, as I then conceived them, of those grave and reverend judges, sitting in their seat of justice, I was much persuaded."