Cassell's History of England, Vol. 2 (of 8) / From the Wars of the Roses to the Great Rebellion

by Anonymous

In the spring of 1635 similar writs were issued to the maritime counties, and even sent into the interior, a most unheard-of demand; and instructions were forwarded to all parts, signed by Laud, Coventry, Juxon, Cottington, and the rest of the Privy Council, ordering the sheriffs to collect the money which was to be levied instead of ships, at the rate of three thousand three hundred pounds for every ship. They were to distrain on all who refused, and take care that no arrears were left to their successors. The demand occasioned both murmuring and resistance. The deputy-lieutenants of some inland counties wrote to the Council, begging that the inhabitants might be excused this unprecedented tax; but they were speedily called before the Council, and severely reprimanded. The people on the coasts of Sussex absolutely refused to pay, but they were soon forced by the sheriffs to submit. Noye died before this took place, and squibs regarding him were publicly placarded, saying that his body being opened, a bundle of proclamations was found in his head, worm-eaten records were discovered in his stomach, and a barrel of soap, alluding to the enforcement of the monopoly on that article, was found in his paunch.

To put an end to all murmurs or resistance, Charles determined to have the sanction of the judges, knowing that he could not have that of Parliament. He therefore removed Chief Justice Heath on this and other accounts, and put in his place the supple Sir John Finch, lately conspicuous as Speaker of the Commons. The questions submitted to the judges were whether, when the good and safety of the realm demanded it, the king could not levy this ship-money, and whether he was not the proper and sole judge of the danger and the necessity. Finch canvassed his brethren of the Bench individually and privately. The judges met in Serjeant's Inn on the 12th of February, 1636, when they were all perfectly unanimous except Croke and Hutton, who, however, subscribed, on the ground that the opinion of a majority settled the matter.

To obtain this opinion, Charles had let the judges know through Finch, that he only required their decision for his private satisfaction; but they were startled to find their sanction immediately proclaimed by the Lord Keeper Coventry in the Star Chamber, order given that it should be enrolled in all the courts at Westminster, and themselves required to make it known from the Bench on their circuits through the country. Nor was this all, for Wentworth, now become a full-fledged agent of despotism, contended that "since it is lawful for the king to impose a tax towards the equipment of the navy, it must be equally so for the levy of an army; and the same reason which authorises him to levy an army to resist, will authorise him to carry that army abroad, that he may prevent invasion. Moreover, what is law in England is also law in Ireland and Scotland. This decision of the judges will, therefore, make the king absolute at home, and formidable abroad. Let him," he observed, "only abstain from war a few years, that he may habituate his subjects to the payment of this tax, and in the end he will find himself more powerful and respected than any of his predecessors."

Such were the principles of Wentworth, ready on the smallest concession to grant a dozen other assumptions upon it, and such the counsellors, himself and Laud, who encouraged the already too fatally despotic king to his destruction. The judges were, for the most part, equally traitorous to the nation, and preached the most absolute doctrines and passed the most absolute sentences. Richard Chambers, the London merchant, who had already suffered so severely for resisting the king's illegal demands, also refused payment of this, and brought an action against the Lord Mayor for imprisoning him for his refusal. But Judge Berkeley would not hear the counsel of Chambers in his defence; and afterwards, in his charge to the grand jury at York, described ship-money as the inseparable flower of the Crown. But they were not so easily to override the rights of the people of England. There were numbers of stout hearts only waiting a fitting opportunity to unite and crush the spirit of despotism now growing so rampant. One of the most distinguished of these patriots was John Hampden, a gentleman of Buckinghamshire, whose name has become a world-wide synonym for sturdy constitutional independence. He determined not only to resist the payment of ship-money, but to try the question, so as to make known far and wide its illegality. He consulted his legal friends, Holborne, St. John, Whitelock, and others, on the best means of dealing with it, and encouraged by his example, thirty freeholders of his parish of Great Kimble, in Buckinghamshire, also refused payment. No sooner, therefore, had Charles obtained the opinion of the judges, than he determined to proceed against Hampden in the Court of Exchequer. The case was conducted for the Crown by the Attorney-General, Sir John Banks, and the Solicitor-General, Sir Edward Littleton. The sum at which Hampden was assessed was only twenty shillings: the trial lasted for twelve days before the twelve judges, that is, from the 6th to the 18th of December, 1637.

It was argued on the part of the Crown that the practice was sanctioned by the annual tax of Dane-gelt, imposed by the Saxons; by former monarchs having pressed ships into their service, and compelled the maritime counties to equip them; and that the claim on the part of the king was reasonable and patriotic, for if he did not exercise this right of the Crown, in cases of danger, before the Parliament could be assembled serious damage might accrue. The Crown lawyers ridiculed the refusal of a man of Mr. Hampden's great estates to pay so paltry a sum as twenty shillings; and declared that the sheriffs of Bucks ought to be fined for not putting upon him twenty pounds. But it was replied upon the part of Hampden, that the amount of the assessment was not in question, it was the principle of it. Nor could the Dane-gelt give evidence in the case, the imperfect accounts to be drawn on the subject from our ancient writers being too vague and uncertain. Moreover, the practice of monarchs before or after Magna Charta could not establish any law on the subject, for Magna Charta abrogated any arbitrary customs that had gone before, and strictly and clearly forbade them afterwards. No breach of that great Charter could be pleaded against it, for it was paramount and perpetual in its authority. Again, various statutes since, and last of all the Petition of Right, assented to by the king himself, made any such taxation without consent of Parliament illegal and void; while the very asking of loans and benevolences by different monarchs was sufficient proof of this, for if they had the right to tax, they would have taxed, and not borrowed. The most arbitrary prince that ever sat on the English throne—Henry VIII.,—when he had borrowed, and was not disposed to repay, did not consider his own fiat sufficient to cancel the debt, but called in Parliament to release him from the obligation. They reminded the judges of Edward I.'s confirmation of the charters, and of the statute De Tallagio non concedendo. As to the plea of imminent danger from foreign invasion, as in the case of the great Armada, as the Crown lawyers had mentioned, such cases, they argued, were next to impossible; notices of danger, as in the instance of the Armada itself, being obtained in ample time to call together Parliament. In this case there was no urgency whatever to forestall the measures of Parliament; for neither the insolence of a few Turkish pirates, nor even the threats of neighbouring States, were of consequence enough to warrant the forestalling of the constitutional functions of Parliament.

The Crown lawyers, baffled by this unanswerable statement, then unblushingly took their stand on the doctrine that the king was bound by no laws, but all laws proceeded from the grace of the king, and that this was a right which all monarchs had reserved from time immemorial. Justice Crawley declared that the right of such impositions resided ipso facto in the king as king, that you could not have a king without these rights—no, not by Act of Parliament. "The law," said Judge Berkeley, "knows no such king-yoking policy. The law is an old and trusty servant of the king's; it is his instrument or means which he useth to govern his people by. I never read or heard that Lex was Rex, but it is common and most true that Rex is Lex." The pliable Finch said, "Acts of Parliament are void 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." Certainly they made no difference to him; and if these base lawyers could have talked away the rights of the people of England, they would have done it for their own selfish interests. When Holborne contended that it was not only for themselves, but for posterity, that they were bound to preserve the constitution intact, Finch testily exclaimed, "It belongs not to the Bar to talk of future governments; it is not agreeable to duty to have you bandy what is the hope of succeeding princes, when the king hath a blessed issue so hopeful to succeed him in his crown and virtues." But Holborne replied, "My lord, for that whereof I speak, I look far off—many ages off; five hundred years hence!"

But all the judges were not of like stamp. Hutton and Croke, who had dissented when the opinion of the judges was first taken, now made a bold stand against the illegal practice. As the ruin of a judge who thus dared to act in upright independence was pretty certain at that time, we may estimate the degree of virtue necessary to such decision, and the noble self-sacrifice of Lady Croke, who bade her husband give no thought to the consequences of discharging his duty, for that she would be content to suffer want, or any misery with him, rather than he should do or say anything against his judgment and conscience.

The case was not decided till the Trinity Term, the third term from the commencement of the trial, when, on the 12th of June, 1638, judgment was entered against Hampden in the Court of Exchequer. But even then five of the judges had the courage to decide for Hampden, though three of them did this only on technical grounds, conceding the main and vital question. The decision of this most important trial was apparently in favour of the king, and there was, accordingly, much triumphing at Court; but in reality, it was in favour of the people, for it had been so long before the public, and the arguments of Hampden's counsel were so undeniable, those of the Crown so absolutely untenable, and opposed to all the history of the nation, that the matter was everywhere discussed, and men's opinions made up that, without a positive resistance to such claims and such doctrines as had here been advanced, the country was a place of serfdom, and the bloodshed and the labour of all past patriots had been in vain. It was accordingly found that people were more averse than ever from paying these demands; and even the courtly Clarendon confesses that "the pressure was borne with much more cheerfulness before the judgment for the king than ever it was after." Lord Say made a determined stand against it in Warwickshire, and would fain have brought on another trial like that of John Hampden; but the king would not allow another damaging experiment; and events came crowding after it of such a nature, as showed how deep the matter had sunk into the public mind.

The course which matters were taking was exceedingly disgusting to the ministers of King Charles—Laud and Wentworth. The latter had been appointed Lord President of the North, where he had ruled with all the overbearing self-will of a king. The Council of the North had been appointed by Henry VIII., to try and punish the insurgents concerned in the Pilgrimage of Grace, and it had been continued ever since on as lawless a basis as that of the Star Chamber itself. In fact, it was the Star Chamber of the five most northern counties of England, summoning and judging the subjects without any jury, but at the will of the Council itself. Wentworth had risen from a simple baronet to be Privy Councillor, baron and viscount, and President of the North, with more rapidity than Buckingham himself had done. On accepting this last office, his power and jurisdiction were enlarged, and he displayed such an unflinching spirit in exercising the most despotic will, that on difficulties arising in Ireland, he was, without resigning his Presidency of the North, transferred thither, where Charles had resolved to introduce the same subjection to his sole will as in England and Scotland.

When the unfortunate expedition to Cadiz had been made, and the king feared the Spaniards would retaliate by making a descent on Ireland, he ordered the Lord-Deputy, Lord Falkland, to raise the Irish army to five thousand foot and five hundred horse. There was no great difficulty in that, but the question how they were to be maintained was not so easy. Lord Falkland, who was one of the most honourable and conscientious of men, called together the great landed proprietors, and submitted the matter to their judgment. These, who were chiefly Catholics, offered to advance the necessary funds on condition that certain concessions should be made to the people of Ireland. These were, that, besides the removal of many minor grievances, the recusants should be allowed to practise in the courts of law, and to sue the livery of their lands out of the court of wards on their taking the oath of Allegiance without that of Supremacy; that the Undertakers on the several plantations should have time to fulfil the conditions of their leases; that the claims of the Crown should be confined to the last sixty years, the inhabitants of Connaught being allowed a new enrolment of their estates; and finally, that a parliament should be held to confirm these graces, as they were called.