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83. The CASE of IMPOSITIONS, on an Information in the Exchequer by the Attorney-General against Mr. JonN BATES, Merchant. Michaelmas, 4 JAMES I. a. D. 1606–1610.

["This famous Case involved in it a constitutional Question of the first magnitude; Mr. Bates, the Defendant, having been prosecuted for refusing to pay a Duty on foreign currants imposed by a mere act of the crown. The attempt to enforce a submission to this duty by legal process, was certainly a principal and early part of that rash and unwarrantable scheme to establish in the crown a right of taxing the subject, which disturbed the reigns of the two first princes of the Stuart line. James the first claimed the right of imposing duties on imported and exported merchandize by prerogative. His son and immediate successor, the unfortunate Charles, not only persisted in the claim, but added to it the equally formidable pretension of ship-money. Realized, these claims, with loans, benevolences, monopolies, and the other subsidiary branches of the same extravagant design, would have comprized nearly a compleat system of extraparliamentary taxation; for imposition at the ports was calculated to serve the purpose externally, ship-money to operate internally. Had they been acquiesced in, parliaments would soon have become unnecessary assemblies; the mildness of a limited monarchy would gradually have degenerated into the harshness of an absolute one; a legal government would have been corrupted into a tyranny. To the great disgrace of the profesfession of the law, some who in other respects were its brightest ornaments, gave their aid to these attempts against the rights of parliament. We make the acknowledgment with concern; but it is a truth, which neither can nor ought to be concealed. The great luminary of science, lord Bacon, exercised his eloquence to reconcile parliament to impositions by prerogative. Sir John Davis, so justly admired for his writings about Ireland, composed a treatise to prove the right of the crown. Both displayed the greatness of their talents on the occasion, though they managed the argument in different ways; the former speciously professing to claim the prerogative in question from and to limit it by law; the latter boldly adventuring to exalt the same prerogative above law, and describing it to be like another Sampson, too strong to be bound. 2. Bac. 4to ed. 1778. p. 223. Dav. on Imposit. 131. Even the judges deigned to be instruments for subjugating their country to an illegal taxation. Though it was incontrovertible, that, by the fundamental policy of our constitution, the legislature consisted of king, lords, and commons in parliament assem

* See 1 Cobb. Parl. Hist. 1132.

bled; though the judges had before them the strong testimony of lord chancellor Fortescue in his famous book De Laudibus Legum Angliæ,' that even in the reigns of Henry the sixth and Edward the fourth the English monarchy stood distinguished as limited from the French monarchy as absolute, notwithstanding their original resemblance to each other; though this noble-minded lord chancellor had instructed the heir apparent to the crown, that one of the most essential differences between the two monarchies arose from the prevalence of the king's despotism of taxation in France, and from parliament's having that power in England; though they could not but know, that from the moment the king should succeed in attracting from parliament the commanding power of taxation, parliament must have perished; though the statute-book was full of legislative declarations against taxes without consent in parliament, though not so much as one recognition of the claim could be found in the records of justice, the court of exchequer in Bates's case unanimously gave judgment for impositions by prerogative on imports and exports; and in Mr. Hampden's Case, though some very recent admonitions and warnings of duty had intervened, all the judges of Westminster-hall, two only excepted, joined to give the sanction of a judicial opinion to ship-money. Nor were monopolies, loans, and benevolences, wholly uncountenanced by the courts of justice. But, during this crisis, the houses of parliament did not forget their duty. They pursued the several devices for illegal taxation, till all were hunted down, and had yielded to the tide of law and constitution. In 1610, the house of commons, alarmed by the judgment in Bates's case, formally debated* the right of the crown to impose on merchandize at the ports; and at length by a petition to the king complained of such impositions as a grievance, which in the subsequent parliaments was followed with frequent remonstrances of the like kind. In 1623, monopolies were curbed and regulated by statute. In 1627, gifts, loans, and benevolences, were pointedly declared contrary to law by the Petition of Right, with general words to comprehend all sorts of taxes and charges out of parlianient. In 1610, the legislature crushed ship-money almost in its birth,

* For more learning relative to this question, see the third part of lord Hale's most elaborate Treatise "concerning the Customs," in the first vol. of Mr. Hargrave's Collection of Tracts.

+ See 2 Cobb. Parl. Hist. 230, et seq.
Sec 2 Cobb. Parl. Hist. 672.

by declaring the judgment for it contrary to law and vacating the record. In the same year the final blow was given to taxation by prerogative; an act for tonnage and poundage being passed, with a declaration against the king's claim to impose such duties. Thus the victory over all the several inventions to tax the subject by prerogative became complete; before the civil wars broke out, before the contest with the crown degenerated from resistance of its usurped powers into an invasion of its just claims. Fortunately too, when the country emerged from the anarchy and misery of the scene which followed, the extravagance of joy did not extinguish a due remembrance of the constitution. One of the first acts, after the restoration, was a grant of tonnage and poundage, with words which renewed a part of the former declarations against taxing by prerogative; for it anxiously recited, that no rates can be imposed on merchandize imported or exported by subjects og < aliens, but by common consent in parlia'ment.' 12 Cha. 2. c. 4. §. 6.-It was once our intention to have traced more fully the history of the long contest about taxes out of parliament, from the accession of the house of Stuart, till it was finally decided against the crown in 1611; our plan being to have minutely and distinctly stated the proceedings on each species of device to elude the constitution, and to have given a general view of the arguments by which each was sustained or repelled. But though we had already made many researches, and collected several materials on the subject, it was found impossible to do justice to it, without more time, than was consistent with present convenience to allow. We therefore reserve the detail of the subject for some future occasion. As to the attempts at extra-parliamentary taxation in the previous period, they are fully investigated in some of the pieces which we now present to

the reader.

"So far as respected the general point of taxing by prerogative, it seems to have been the strongest of all cases against the crown. There were such apparent bars to the claim of prerogative in this respect, that it seems surprizing, how lawyers of eminence could submit to the drudgery of being advocates in such a cause. If king James had found himself strong enough by military force to change the form of our government, and to substitute for it a despotic sovereignty in the crown, however monstrous such an abuse of his public trust would have been, its meaning could not have been doubted; for it would have amounted to saying, “I confess the present constitution is otherwise, but I chuse to make a new one; sic voleo, sic jubeo, stet pro ratione voluntas.' However unjustifiable it may be, I will have it so." But whatsoever the inclinations of James the first and his son the unfortunate Charles

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might be, either they were not in a condition to risk being thus explicit, or had not the courage to try their force and this being so, the difficulty of accomplishing their design against the constitution became great indeed; for the great lines of argument both on the principle and fact of the constitution were in the teeth of prerogative taxation ; whether the attempt had been made in the large and short way, by at once insisting, that the power was inherent in the crown and exerciseable without the two houses of parliament; or, as the experiment was tried, in the detail, by taking advantages of all the irregular practices of former times, and by straining certain allowed rights and prerogatives into abuse, and so giving to them the colour and pretext of a right of a far higher class. It could not be denied, that the legislative power was by our constitution in the king, lords, and commons. To argue then the next moment, that, notwithstanding this, there was latent in the crown a power of taxing, was an inconsistency in principle; for it was saying in the same breath, that the king was and was not the legislature; taxing the subject being undeniably one of the highest exercises of legislative authority,, Nor was the argument on the matter of fact much better for the crown. As far back as the reigns of Edward the first and Edward the third, that is, almost as far back as the records of parliament, those most authentic sources of our constitutional history; can be traced, the king has joined with the two houses of parliament in most explicitly declaring, that to tax in any other manner than in parliament is contrary to the law of the land, and that all other forms of taxation are strains of regal power incapable of being justified. It also happened, that exclusively of such general legislative declarations against taxing out of parliament, there was scarce any particular mode of illegal and irregular taxation, but what at one time or another had been specifically condemned. It was no wonder therefore, that lord Coke, when he framed the Petition of Right in the reign of our first Charles, laid his foundation against the prerogat ve of taxing, as well as against the other excesses of that ill-advised prince, on the code of our antient statute law; for it is observable, that, throughout that famous declaratory law, every proposition is derived from that highest of all sources for constitutional knowledge. Here one night easily imagine lord Coke, then nearly of the age of eighty years, to address himself exultingly to the speaker of the commons to this effect. "I propose to the house, not a theery of the best kind of government; not a change of our constitution in the way of improvement: but the solemn declaration of an actual and subsisting constitution; one honorably derived to us from our hardy ancestors, one capable of being proved by testimony from the earliest 16

cords of parliament; one, which has subsisted for centuries, and survived both the calamity of various and long civil wars, and the tyranny of successive ill administrations of our government, even the sanguinary reigns of the two first princes of the Tudor line; nay, one, which even they found it convenient to add new sanctions to, by resorting to its forms to give currency to their despotism and cruelty. Thus strongly fenced with the highest possible testimonies for a mixed and limited monarchy, I wave all inferior proofs. I might perhaps evince from our antient story, that in all periods of time there was a freedom in our constitution ; that it was free to our British, to our Danish, to our Saxon, nay to our Norman ancestors; and that it was beyond the power of traditionary fable to name the period, when our monarchs were unshackled by parliaments. I might perhaps trace the antiquity of our present legislative constitution, as composed of king, lords and commons, or at least the substance of it, as far back as the time when the Roman government ceased amongst us. But I will not travel unnecessarily into such remote periods: I will not unnecessarily waste the precious time of this house, or even my own time, in such traditionary and dubious investigations. I will leave all these topicks to the curious antiquarian as his proper employment; or reserve them for the pastime of private curiosity. Confident in the strength of parliamentary records, I will appeal to them only. If they are not decisive in my favour, or as I should rather say in favour of the constitution and against monarchical despotism, I yield the victory to the devotees of the crown: I agree, that the king shall singly exercise that highest power of legislation, the power of taxing: I agree, that from henceforth the king of England shall be a tyrant ; and that the reality of parliament shall expire here, as it has expired in almost every other country in Europe. I will not even ask for aid from the testimony of that honest and generous lawyer, that high example of judicial chastity, that undefiled servant of a eourt royal, the great lord chancellor Fortescue. Even his adinired printed book

De Laudibus Legum Angliæ,' and the still more valuable remains of him in the manuscript treatise on the difference between absolute and limited monarchy, shall be suppressed. I ask only to put into my scale of a free constitution, and of a limited monarchy, the statute rolls and other records of parliament. Saving these only, I consent to put into the scale of regal prerogative, all the fables of British antiquity, all the traditions of our Gothic ancestors, all the imperfect histories of monkish aunalists, all the vague arguments from the vague titles of Saxon and Anglo-Nortnan laws, all the deceptive verbal criticism from words no longer clearly understood, all the volumes of pre

cedents of irregular and condemned practices; nay even the vain arguments from the uncertain origin of the representative part of our English parliaments, with the boasted argument from the arbitrary administration of the executive magistrate whilst our throne was filled with the proud Tudor line. Allow to me the benefit of the Magna Charta of our third Henry as confirmed by our first Edward, with the long series of subsequent statutes and parliamentary records; especially the 34th of our first Edward against talliages and aids without consent of parlia ment, the 25th of Edward the third against forced loans, and the statutes of the last mentioned king with those of the second and third Richards against benevolences and such like charges. Those on the other side shall have the full and sole benefit of all other records and testimonies whatever; with the additional weight of the king and his whole court; without excepting his accomplished but too pliant judges, or those indefatigable hunters of precedents for violations of constitutional government, the great law officers of the crown. Should the ponderous weight of royal charters and parliamentary records fail me against such an ag gregate of influences in the opposite scale, I will agree, that the constitution of parliament must perish; and that our kings inust in future be absolute and despotic sovereigns.-Though too my scale, in consequence of the wisdom, integrity, justice, and firmness of this present house of commons, should at present preponderate; yet from the increasing degeneracy of those out of this honourable house, I prophesy, that the high talents with the low ambition of future lawyers will soon again counteract our present solemn proceedings against the excesses of royal prerogative; and that future judges will soon arise to countenance those excesses by new corruptions of judicial authority. But should the conflict be once more revived, I trust, that the freedom of our constitution will again triumph: and should that contest ever again come, and another victory be gained over the pretended prerogatives of the crown, which events from the course of nature can scarce happen in my time, be it recorded in the journals of this parliament, for the instruction of our latest posterity, that such a time, whenever it shall come, will not be the era of a free government newly established in resistance of the abuses of royal power; but will be the æra of mere salvation of a frame of government so antient, that authentic memorials are wanting to trace its origin with any thing like accuracy."-In the speech thus imagined for lord Coke, when he presented the Petition of Rights to the house of commons in the year 1627, there is a succession of thoughts, which are the result of all the now editor's study of the antient contests between the crown and the subject, on the claims of pre

rogative to a right of taxation and other powers of a legislative kind. The same ideas in substance have often occurred to his mind, and he has long wished to disburthen it by an avowal of them; though till the present moment he has not so much as once nade the attempt. True it is, that these thoughts are very general, are mere outlines for argument. To try their force, an investigation of innumerable authorities is requisite. But loose and general as the reasoning is, it may perhaps serve as a preliminary memento for those, who are curious and able to pursue the subject in its fullest compass.

"With respect to the particular claim of a prerogative to tax at the ports, it was more than liable to the general objections of being a prerogative taxation; because there was the addition of peculiar arguments against yielding to such a precedent. It was this very species of regal impositions, which gave occasion to some of the antient statutes declaratory of the illegality of taxing without the consent of parliament; as will appear by reading the incomparable speeches against impositions at the ports, by those profound constitutional lawyers Yelverton and Hakewill. It was also an apparent bar to such a claim, that it had not only been condemned in the reign of the first and third Edwards; but that from the time of the latter king, there had been a continual habit of granting duties of tonnage and poundage at the ports on the commencement of every reign, either for the life of the new monarch, or for a term of years. Nor is it to be forgotten, that prerogative impositions at the ports appear to have been dormant, from the reign of Edward the third, till after the accession of queen Mary, the elder daughter of our eighth Henry. That princess indeed did cause a resurrection of such impositions, after their having been asleep for near three centuries, by ordering some duties on cloth to be levied beyond what was warranted by the parliamentary grant of tonnage and poundage to her. But the then merchants of London were equally awakened by the measure; and they loudly complained, in the first year of Elizabeth, to that great queen, to be relieved on the ground, that such impost by mere power of the crown was illegal. Their opposition is thus stated in lord Dyer's Reports: and it was aided by an argument against prerogative duties at the ports; for Mr. Hakewill tells us, that Mr. Plowden, one of the most consummate lawyers we have had at any time, composed such an argument against the duties thus irregularly imposed by Mary. From the same authority also, and from the account of the case in lord Dyer's Reports, fol. 165, it is clear, that notwithstanding a conference of the judges on the occasion, no sanction, either judicial or extrajudicial, was ever obtained, in the reign of Elizabeth, for this ex

cess of prerogative; or at least that it was never thought fit to produce any opinion of the judges, or to assert that any such was ever given by them in that reign.

"Upon this transient view of the attempts to establish a prerogative power of taxation, how can it be wondered at, that the rash attempts of James the first and his son the unfortunate Charles, which latter really was possessed of many pleasing and valuable accomplishments, should terminate in the disgrace of the former, and the personal destruction of the latter? The father had to answer for attempting to systemize prerogative taxation. The son, misled by the father's ill example, and having had instilled into his mind the most extravagant notions of the unbounded extent of regal power, not only adopted his father's illegal plan; but persisted in it, even after giving the royal assent to laws expressly condemning both generally and particularly all taxes of the subject except by act of parliament; and so at length the more deserving son fell himself a victim to the adoption of a system, which the far less deserving father had begun to execute, with no other mischief than one which his mind probably did not sufficiently feel, namely, the disgrace of being odious to and distrusted by his subjects. To the conduct of their predecessor, queen Mary, it was an objection, that she had revived an ill precedent of prerogative taxation after a dormancy of centuries. But on the part of James and Charles, there seems to have been the aggravation of variously extending the bad precedent thus received from Mary; with the still higher aggravation of influencing the judges into a public avowal of judicial opinions, which justified even the principle of taxing without parliament. It may not be useless to add to this long note, that the present editor is in possession of a volune, formerly belonging to sir Christopher Yelverton, father to sir Henry Yelverton; which contains, among other valuable law manuscripts, not only a full report of the arguments of the judges and counsel in the Case of Impositions, but also the of a copy most elaborate argument in that case by lord chief baron Fleming, from original notes written in his book, and in his own hand.* Decided as the present editor is on this sort of subject, he wishes not to conceal an iota of the learning on the contrary side of the question. So far from it is he, that should the present Collection of Tracts be continued, which however is not very probable, it is his design to publish the very argument thus mentioned. Nor is he afraid to apprize his readers in the mean time, that, notwithstanding its great blemishes, it is so able a performance, as in

* It is to be regretted that the learned gen-. tleman has not made public the contents of this MS.

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many respects to deserve a very serious attention, even from those the most hostile to the unconstitutional system of taxing without a parliamentary grant. Here our readers, who are curious on subjects of the constitution, may consult what he has remarked about benevolences in a note to Mr. Oliver St. John's Case, (A. D. 1615, infra.)-The editor cannot conclude this note without apprizing his readers, that he is possessed of an imperfect manuscript tract, intitled, "Reflections by the Lord Chief Justice Hale on Mr. Hobbs's Dialogue of the Law:" and that this performance, though an unfinished one, contains both a very pointed refutation and a very severe reprehension of Mr. Hobbs for his arbitrary notions concerning the extent of the kings prerogatives. In general lord Hale is the most dispassionate of all writers upon our law and constitution. But he saw the pernicious tendency of Mr. Hobbs's doctrine in so strong a point of view, that in this instance lord Hale appears to have been scarce able to restrain his indignation. The following extract from the manuscript, being on Taxation, will evince this; and at the same time shew, how pure this exemplary judge's opinions were on that high subject.

It is a thing most certain and unquestionable, by the law of England, no com'mon aid or tax can be imposed upon the • subjects, without consent in parliament;

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and no dispensation or non obstante can avail to make it good or effectual; no not for the maintaining of a military force, though in case of necessity. And that man, that will teach, that in all these cases a tacit condition is implied, to let loose laws of this importance, and to subject the estates and properties of the subjects to arbitrary impositions, notwithstanding the solemnest engagements to the contrary.1. Takes upon him to be wiser than the king himself, who hath not only granted, but judged the contrary.-2. Takes upon him to be wiser than all the estates of the kingdom, as neither just or prudent advisers for the good and safety of the king'dom.-3. Goes about to break down the security of all men's properties and estates.

4. Doth mischievously insinuate jealousies in the minds of men, as if all the laws of the kingdom might be abrogated, when the king pleaseth; and thereby does the king and his government more mischief than he can ever recompence.'

"The only state of this important Case, and of the arguments in it, is in Lane's Reports, and in a short note added to Dyer's Reports by the learned editor of the improved edition. See Lane's Rep. p. 22. and Dy. ed. 1688, fo. 165-b. in the margin. The report in Lane, being the fullest, shall be laid before the

* See the observations, on this short note, of Mr. Vaillant in his improved edition of Dyer, 1795.

reader; to which we shall subjoin a Speech made in parliament by lord Bacon in 1610, when the Judgment of the Exchequer in the Case in question was formally discussed by the House of Commons. We shall next add a transcript from an original Manuscript, described by Mr. Carte to be in the handwriting of the famous sir John Davis; being in substance like the latter part of the printed Treatise on Impositions with his name, but differing much in the language, and more likely to be correct. These pieces together comprize the principal Arguments for the prerogative of Impositions claimed by the crown. But, without something more, it would be a very partial view of the subject. In justice, therefore, as well to that excellent constitution, to the injury of which the claim of Impositions by prerogative operated, as to those who so honourably for themselves and so happily for their country resisted the invasion, we shall add two most learned and able Arguments on the opposite side of the question; one delivered by Mr. Hakewill in the same Parliament with lord Bacon's Argument; the other also contemporary, and said to have been composed by sir Henry Yelverton, afterwards the judge of that name. Both of these valuable remnants of the Debates in Parliament on Impositions by the crown are very rare; having been printed separately, and not being to be found in any published collections of the time. What is very remarkable, they are not only unnoticed by Mr. Hume, Mr. Carte, and the authors of the Parliamentary History; but have even escaped the observation of our deservedly celebrated female historian. That the two former writers should not be studious to draw the attention of their readers to two arguments, so fit to counteract the reception of their particular prejudices, is easy to be accounted for; especially in the instance of Mr. Carte, whose bias in favour of the prerogative is more avowed and apparent than Mr. Hume's. But Mrs. Macaulay's silence cannot be explained in the same way; and therefore we attribute it to the accident of her not having met with either of the arguments. Perhaps our observation on Mr. Hume and Mr. Carte may sound as harsh to some persons. But we can assure such, that it is not intended to write disrespectfully of either of those authors. We feel strongly the merit of Mr. Carte, as a most elaborate historian; as oue, to whose familiar knowledge and skilful use of records, with the other most authentick materials of the history of his country, all, who follow him in the same line, are infinitely obliged. For strength, clearness, and elegance of stile, for profoundness in remark, for beautiful arrangement and close compression of matter, we consider Mr. Hume's work as a inodel of

historical composition. Such being the churacters of these eminent writers, it becomes the more necessary to know, on which side

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