Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

To support these military tenants, who served after the necessary time, and likewise his infantry (as the surplus of his ordinary revenue would not suffice) he had customs and talliages, and aids and subsidies granted by parliament. These customs, or so much paid by merchants on the exportation of goods, were of two kinds; as paid either by merchant strangers, or by merchant denizens[237].

The customs paid by merchant strangers were not originally settled by act of parliament, but by a compact between the merchant strangers and king Edward the First. In the Saxon times the king had a power of excluding strangers from his kingdom, not merely with an intention of inducing their own people to traffick, but chiefly to keep out the Danes, who were the masters of the sea; lest, under pretence of trade, they might get footing in, and become acquainted with the state of the kingdom. They were, accordingly, admitted by the kings upon such terms as the latter were pleased to impose; but Edward, who had the success and prosperity of his kingdom at heart, came to a perpetual composition with them; gave them several privileges, and they gave to him certain customs in return. What shews they had their origin from consent is, that the king could not raise them without applying to parliament. The customs of natives or denizens were, certainly, first given to the king by parliament; though this has been denied by some, merely because no such act is to be found, as if many of the antient acts had not been lost; but there are acts and charters still extant, which expressly say they were appointed and granted by parliament, without the power of which they could not be either altered or enlarged.

The difference between the customs and the other aids I have mentioned, viz. talliages and subsidies, is, that the latter were occasional, granted only on particular emergencies, whereas the customs were for ever. If it be asked how they came to be granted in that manner, we must refer back to the original state of boroughs and their inhabitants, traders, in the feudal law. In France, the Roman towns were taken into protection, and had their antient privileges allowed them; but in the series of wars that happened in that country for ages, every one of them in their turns were stormed, and reduced to vassalage, either to the king or some other great lord; and as, now, these lords had learned that the Roman emperor laid on taxes at his pleasure, it was but natural they should claim the same right, especially over towns they had taken in war. The burgesses, therefore, became in the nature of villains, not indeed of common villains, for that would absolutely have destroyed trade, but with respect to arbitrary taxation, which, however, if the lord was wise, was never exorbitant. In England, I apprehend, they became villains; for the Saxons were a murdering race, and extirpated the old inhabitants. However, wise kings, considering the advantages of commerce, by degrees, bestowed privileges on certain places, in order to render them flourishing and wealthy; and at length, about the time of Magna Charta, or before, when every uncertain service was varying to a certainty, this privilege was obtained for merchant adventurers. But the other burgesses, that did not import or export, and likewise villains, were still talliageable at will. This was restrained by Magna Charta, which declares all talliages unlawful, unless ordained by parliament[238].

To come to the latter head, whether taxes, aids, and subsidies can be assessed by the king, as sole judge of the occasion, and the quantum—or whether they must be granted by parliament, was the great and principal contest between the two first princes of the unfortunate house of Stuart and their people, and which, concurring with other causes, cost the last of them his life and throne. To say nothing of the divine hereditary right urged on the king’s behalf, and which, if examined into strictly, no royal family in Europe had less pretensions to claim, both sides referred themselves to the antient constitution for the decision of this point. The king’s friends urged that all lands were holden from him by services, and that this was one of his prerogatives, and a necessary one to the defence of the state. They produced several instances of its having been done, and submitted to, not only in the times of the worst, but of some of the best kings; and as to acts of parliament against it, they were extorted from the monarchs in particular exigencies, and could not bind their successors, as their right was from God.

The advocates of the people, on the other hand, insisted, that, in England, as in all other feudal countries, the right of the king was founded on compact; that William the Conqueror was not master of all the lands in England, nor did he give them on these terms; that he claimed no right but what the Saxon kings had, and this they certainly had not; that he established and confirmed the Saxon laws, except such as were by parliament altered; that he gave away none but the forfeited lands, and gave them on the same terms as they were generally given in feudal countries, where such a power was in those days unknown. They admitted, that, in fact, the kings of England had sometimes exercised this power, and that, on some occasions, the people submitted to it. But they insisted, that most of the kings that did it were oppressors of the worst kind in all respects; that the subjects, even in submitting, insisted on their ancient rights and freedom, and every one of these princes afterwards retracted, and confessed they had done amiss. If one or two of the best and wisest of their kings had practised this, they insisted that their ancestors acquiescence once or twice, in the measures of a prince they had absolute confidence in, and at times when the danger, perhaps, was so imminent as to stare every man in the face, (for it was scarce ever done by a good prince) as when there was not a fleet already assembled in the ports of France to waft over an army, should not be considered as conveying a right to future kings indiscriminately, as a surrender of their important privileges of taxation. They insisted that these good and wise kings had acknowledged the rights of the people; that they excused what they had done, as extorted by urgent necessity, for the preservation of the whole; that, by repeated acts of parliament, they had disavowed this power, and declared such proceedings should never be drawn into precedent. They observed, that there was no occasion for the vast demesne of the king, if he had this extraordinary prerogative to exert whenever he pleased. They denied the king’s divine right to the succession of the crown, and that absolute unlimited authority that was deduced from it. They insisted that he was a king by compact, that his succession depended on that compact, though they allowed that a king intitled by that compact, and acting according to it, has a divine right of government, as every legal and righteous magistrate hath. They inferred, therefore, that he was a limited monarch, and consequently that he and his successors were bound by the legislative, the supreme authority[239].

The advocates of the king treated the original compact as a chimera, and desired them to produce it; which the other side thought an unreasonable demand, as it was, they alledged, transacted when both king and people were utterly illiterate. They thought the utmost proof possible was given by quoting the real acts of authority, which the Saxon kings had exercised; among which this was not to be found; that the Norman kings, though some of them had occasionally practised it, had, in general, both bad and good princes, afterwards disclaimed the right, and that it never had (though perhaps submitted to in one or two instances) been given up by their ancestors, who always, and even to the face of their best princes, insisted that it was an encroachment on those franchises they were intitled to by their birthright.

Such, in general, were the principles on which the arguments were maintained on both sides: for to go into minutiæ, would not consist with the design of this undertaking. I apprehend it will be evident from this detail of mine, though I protest I designed to represent both sides fairly, that I am inclined to the people in this question. I own I think that any one that considers impartially the few monuments that remain of the old Saxon times, either in their laws or histories, the constant course since the conquest, and the practice of nations abroad, who had the same feudal policy, must acknowledge, that though this right was claimed and exercised by John, Henry the Third, Edward the First, Second, and Third, Richard the Second, and Henry the Eighth, it was in the event disclaimed by every one of them, by the greatest of our kings, Edward the First and Third, and Henry the Eighth, with such candour and free will, as inforced confidence in them; by the others, in truth, because they could not help it. I hope I shall stand excused, if I add, that the majority of those who engaged in the civil war, either for king Charles, or against him, were of the same opinion. For, had he not given up this point, (and indeed he did it with all the appearances of the greatest sincerity) he would not have got three thousand men to appear for him in the field. But, unfortunately for his family, and us, (for we still feel the effects of it from the popish education his offspring got abroad) his concession came too late. He had lost the confidence of too many of his people, and a party of republicans were formed; all reasonable securities were certainly given; but upon pretence that he could not be depended upon, his enemies prevailed on too many to insist on such conditions, as would have left him but a king in name, and unhinged the whole frame of government. Thus the partizans of absolute monarchy on one side, and the republicans, with a parcel of crafty ambitious men, who for their own private views affected that character, on the other, rented the kingdom between them, and obliged the honest, and the friends to the old constitution, to take side either with one party or other, and they were accordingly, for their moderation and desire of peace, and a legal settlement, equally despised which ever they joined with[240].

I shall make but one observation more; that though it is very false reasoning to argue from events when referred to the decision of God, as to the matter of right in question; I cannot help being struck with observing, that though this has been a question of five hundred years standing in England, the decision of providence hath constantly been in favour of the people. If it has been so in other countries for two hundred or two hundred and fifty years past, which is the utmost, let us investigate the causes of the difference, and act accordingly. The ancients tell us it is impossible that a brave and virtuous nation can ever be slaves, and, on the contrary, that no nation that is cowardly, or generally vitious, can be free. Let us bless God, who hath for so long a time favoured these realms. Let us act towards the family that reigns over us, as becomes free subjects, to the guardians of liberty, and of the natural rights to mankind; but above all, let us train posterity, so as to be deserving of the continuance of these blessings, that Montesquieu’s prophecy[241] may never appear to be justly founded.

“England (says he) in the course of things, must lose her liberties, and then she will be a greater slave than any of her neighbours.”