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without opposition 1s. 6d. subsidy, but had refused to pay 5s. 6d. imposition. Judgment having been given against him, merchants were required to pay in all 7s. duty per hundredweight. James, however, not long afterwards lowered the imposition to 3s. 4d., so that subsidy and imposition together amounted only to 4s. 10d. The Judges decided that so long as the judgment against Bate was in force, they must continue the king in possession of the same imposition as had then been adjudged due to James. The whole sum was 5s. 6d. ; yet because this was not required of other merchants but only 4s. 10d., the defendants were to pay after the same rate.*
It is easy to see why Charles did not entrench himself behind the Exchequer decision and levy all duties as impositions. Such a course would have been incompatible with the attempt which he did make to govern by means of Parliaments. Had no principle been involved, yet the conversion of the old parliamentary grant into a royal imposition would have aroused an overpowering opposition from the mere conservative instincts of merchants and lawyers; while even members of the Commons who upheld the claim of the crown to levy impositions could hardly have regarded the change otherwise than an insult to the Parliament. Charles indeed never proposed to enter upon such a revolutionary course as to abolish the grant of tonnage and poundage. He would gladly have passed a Bill, if the Commons would have given him for life all the duties he was actually levying, without in any way questioning the prerogative of imposing or interfering with the Book of Rates. This, however, was to ask too much. For though at this time the Commons might have made a life grant, merely legalising the impositions and containing no explicit statement
* This order was first made against Samuel Vassal, but it was repeated in the cases of Langham, Browne, and other refusers. Possibly the information against Vassal was only for 5s. 6d. imposition, but judging from the Exchequer Decrees and Orders 'it was identical with that exhibited against the other merchants. In Hyde's speech in 1641 we see the interpretation laid upon this order at a time when the popular lawyers wished to increase the weight of the charges against the impeached judges by making out that they had given the king Tonnage and Poundage as well as Impositions. 'Rushworth,' vol. iii. part 1, 335313; Exchequer Decrees and Orders. Charles I.' Vol. viii. f. 186, 270, 319; vol. ix. f. 31; vol. x. f. 324; vol. xi. f. 111.
Impositions and subsidies were generally so much in the pound on the value of the goods taxed. Mary first published a Book of Rates. James raised the rates considerably. In Charles' time many complaints were made of their inequality.
of right, their terms were a resettlement of the rates in their own House and according to their own satisfaction. After the passing of the Petition of Right, finding that Parliament was to be shortly prorogued, they offered the king a Tonnage and Poundage Bill for a year, which he refused. They next proposed that Parliament should be adjourned and not prorogued, then the Bill, which they would pass at the next session, would take effect from the first meeting of the Parliament and give a retrospective sanction to all duties levied since that time. To this request also Charles refused to accede. He required the House to pass a life Act immediately without resettling the rates, or to consent to the continued levy of port duties by prerogative. The Commons refused to accept either alternative. Laying aside the Tonnage and Poundage Bill, they drew up a Remonstrance, in which they said that the receiving of tonnage and poundage and other impositions not granted by Parliament was a breach of the fundamental liberties of the kingdom and contrary to the Petition of Right. If the Petition was intended merely as a law against loans and benevolences, this appeal is doubtless rightly characterised by Mr. Gardiner as a daring attempt to take up new ground. If, on the contrary, the aim of the Petition was to render illegal all taxation without consent of Parliament, the Commons could not have left the appeal unmade, without retreating from the position they had before held and being consenting parties while Charles sapped the foundations on which the new law rested. The cause why they had not included the special question of port duties in the Petition is sufficiently obvious.† A Tonnage and Poundage Bill was
*The entries in the Commons Journals show the opposite views of the King and the House on this point. See under dates 7th, 9th, 11th April; 17th, 19th, 21st May, 1628.
† Mr. Gardiner asks whether we are to believe that the lawyers did not know that subsidy, custom, and impost' were the proper terms to exclude impositions.' We object to this use of language. Impositions' and 'customs' were words used for port duties generally. But 'subsidy' was not a proper term for 'imposition' in the technical sense of a duty levied by prerogative. Custom' may occasionally be used in that sense, but strictly the word meant those duties which were levied under the name of customs.' It is clear from the resolutions of the Commons in 1641 that the past collection of customs' was not reckoned illegal, although no Tonnage and Poundage Act had been passed. Journals,' ii. p. 163. The words used in the Acts of 1641, after Charles had been levying all duties without a parliamentary sanction, does not prove that custom' and 'subsidy' were proper
actually before the House, and the special question was left to be dealt with there. Could they indeed have foreseen that Charles would require them to pass a life Act in a week, the omission would be simply inexplicable. The readiness with which they passed the Subsidy Bill of itself, however, shows that they were not contemplating a second struggle with the king. Nor need we wonder at their confidence. Charles had practically given his word to the country that an Act should pass this session. After the dissolution of the last Parliament, he had issued a commission for the continuance of the collection of port duties, in which he set forth at some length the causes which obliged him to levy them without consent of Parliament, and stated that the collection must continue until 'such time as by Parliament as in former times it may receive 'an absolute settling.' Now Charles must have known in what sense the Commons would interpret the words here used. If by an absolute settling' he meant no more than a life Act hurried through the House in a week without the resettlement of the rates, he had better have said as much. He seems already to have.entered on that course which was afterwards to prove so fatal to him. He thought to gain future advantages for himself by wrapping up his meaning in ambiguous terms, and allowing his opponents to hope for more than he intended. to yield. All that he ever gained was the distrust of his Parliaments and his people.
With what intent then was the Petition of Right framed? It was without doubt intended not merely as a law against loans and benevolences, but as a law against all unparliamentary taxation. It was framed on the broad basis that the 'ancient and undoubted right of every freeman is that he ‘hath a full and absolute property in his goods and estate.' It was held to be a revival of Magna Charta and other statutes of the Plantagenet period, guarding the liberties of the subject, which kings of the houses of Tudor and Stuart had broken through. Not only is this its recognised purpose in the Commons' debates,† but the same is summed up in the preamble of
words to exclude 'impositions.' Neither term is found in the enacting clauses of the Bill against impositions drawn up in 1610.
Rymer, xviii. 737.
† Mr. Gardiner observes that in the debates on the Petition of Right the question of port duties was rarely mentioned. This fact of course shows that there was no intention of including the special question; it is no proof that the Petition was not intended as a law against taxation without consent of Parliament. It is no doubt correct to say, as Mr. Gardiner does, that the Tonnage and Poundage Bill was postponed
the Petition itself. The Petition opens by quoting part of the statute De Tallagio non concedendo, that no tallage or aid should be levied by the king or his heirs without consent of Parliament, and thus continues: And by authority of Parliament holden in 25 Edward III. it is decreed, that no person should be compelled to make any loans to the king against his will, and by other laws that none should be charged by any charge or imposition called a Benevolence, by which statutes 'afore-mentioned and other the good laws and statutes of this your realm, your subjects have inherited this freedom: That they should not be compelled to contribute to any tax, tallage, aid, or other the like charge not set by common consent in 'Parliament.'
'Aid' was a general word used constantly and undisputably for port duties, while the statute De Tallagio non concedendo was one of those on which the popular lawyers mainly relied to support their view of the illegality of levying port duties by prerogative. On what grounds then is it to be said that the Commons intended to exclude an entire branch of taxation from the purview of the Petition and thus give to the statute De Tallagio and the general terms they employed a far narrower meaning than these were ordinarily held to have? A general term for port duties which was not at the same time a term for inland charges they could not have inserted. There was no such term in use.
In addition to the absence of special terms and his interpretation of the word tax,' Mr. Gardiner relies on what seems to us very insufficient evidence in support of his view that the language of the Petition did not cover port duties, namely, that in the case of Chambers in the Exchequer Chamber in 1629, his counsel did not appeal to the Petition. But what does an isolated case of this description show? Merely that the pleaders shrank in the interest of their clients from pleading the Petition of Right. And justly so; the first duty of the advocate is the interest of his client, and they must have known that the surest way to lose their case would be to plead the Petition of Right apart from the possible consequences of fine or imprisonment which it might entail upon themselves. Charles' speech at the prorogation of Parliament in June 1628, in which he denied that the question of port duties was included in the Petition, had been printed and dispersed over the
because of the pressure of other business, but this statement must not be understood to mean that the question of port duties was forgotten, or did not occupy a very considerable share of attention. The Commons' Journals give ample evidence to the contrary.
country. I command you all,' he had said, to take notice of 'what I have spoken at this time to be the true intent and 'meaning of what I granted you in your Petition; but especi'ally you, my lords the Judges, for to you only under me belongs the interpretation of laws.' In November 1626, Chief Justice Crew had been dismissed from office because he refused to acknowledge the legality of a forced loan, and there could be little doubt that after this example the Judges would follow their instructions. We have indeed met with evidence for believing that it was not the question of law which deterred the merchants' advocates from pleading the Petition of Right. The answer to the information of the Attorney-General in the case of the four merchants before referred to, recites the statute De Tallagio, and the 25 Edward III., as in the Petition of Right. It then continues: By which the statutes before ' mentioned and other the good laws and statutes of this realm, his Majesty's 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.' After this quotation follow four or five lines through which a pen has been drawn for the most part in a very effectual manner. The first words, however, we were able to decipher; they ran as follows: And whereas in the 'Parliament holden in the third year of his Majesty's reign that now is, a Petition was exhibited by the Lords spiritual and temporal, and Commons in that present (?) Parliament as'sembled, concerning divers rights By whose hand was this appeal struck out? If by counsel's, we can hardly suppose that any question of law was the motive, when the pleading left standing was taken almost word for word out of the preamble of the Petition. In fact, though not named, the Petition of Right was pleaded.
Allowing, then, that the Commons had no intention of including the special question of port duties in the Petition of Right, we hold that they did intend to lay down a general law against all taxation without consent of Parliament. Hence when they appealed against the continued levy of port duties by preroga tive, they were but endeavouring to maintain the position which the Petition had been intended to assure them. Nor can their appeal fairly be characterised as an attempt to set the right of their House above the Exchequer decision. In the first place, that decision had not given the crown the right of levying subsidies by prerogative; in the second, the Commons were appealing to a law which had been aimed at all taxation with out consent of Parliament, which had been passed since the Exchequer decision, and had not been interpreted against them.