Lastly, the petition of right, that noble legacy of a slandered parliament, reciting and confirming the ancient statutes, had established that no man thereafter be compelled to make or yield any gift, loan, benevolence, tax, or such-like charge, without common consent by act of parliament. This latest and most complete recognition must sweep away all contrary precedent, and could not, without a glaring violation of its obvious meaning, be stretched into an admission of ship-money.
The king's counsel, in answer to these arguments, appealed to that series of records which the diligence of Noy had collected. By far the greater part of these were commissions of array. But several, even of those addressed to inland towns (and, if there were no service by tenure in the case, it does not seem easy to distinguish these in principle from counties), bore a very strong analogy to the present. They were, however, in early times. No sufficient answer could be offered to the statutes that had prohibited unparliamentary taxation. The attempts made to elude their force were utterly ineffectual, as those who are acquainted with their emphatic language may well conceive. But the council of Charles the First, and the hirelings who ate their bread, disdained to rest their claim of ship-money (big as it was with other and still more novel schemes) on obscure records, or on cavils about the meaning of statutes. They resorted rather to the favourite topic of the times, the intrinsic, absolute authority of the king. This the attorney-general Banks placed in the very front of his argument. "This power," says he, "is innate in the person of an absolute king, and in the persons of the kings of England. All magistracy it is of nature, and obedience and subjection it is of nature. This power is not any ways derived from the people, but reserved unto the king when positive laws first began. For the king of England, he is an absolute monarch; nothing can be given to an absolute prince but what is inherent in his person. He can do no wrong. He is the sole judge, and we ought not to question him. Where the law trusts, we ought not to distrust. The acts of parliament," he observed, "contained no express words to take away so high a prerogative; and the king's prerogative, even in lesser matters, is always saved, wherever express words do not restrain it."
But this last argument appearing too modest for some of the judges who pronounced sentence in this cause, they denied the power of parliament to limit the high prerogatives of the Crown. "This imposition without parliament," says Justice Crawley, "appertains to the king originally, and to the successor ipso facto, if he be a sovereign in right of his sovereignty from the Crown. You cannot have a king without these royal rights, no, not by act of parliament." "Where Mr. Holborne," says Justice Berkley, "supposed a fundamental policy in the creation of the frame of this kingdom, that in case the monarch of England should be inclined to exact from his subjects at his pleasure, he should be restrained, for that he could have nothing from them, but upon a common consent in parliament; he is utterly mistaken herein. The law knows no such king-yoking policy. The law is itself 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 nor heard that lex was rex; but it is common and most true, that rex is lex." Vernon, another judge, gave his opinion in few words: "That the king, pro bono publico, may charge his subjects for the safety and defence of the kingdom, notwithstanding any act of parliament, and that a statute derogatory from the prerogative doth not bind the king; and the king may dispense with any law in cases of necessity." Finch, the adviser of the ship-money, was not backward to employ the same argument in its behalf. "No act of parliament," he told them, "could bar a king of his regality, as that no land should hold of him, or bar him of the allegiance of his subjects or the relative on his part, as trust and power to defend his people; therefore acts of parliament to take away his royal power in the defence of his kingdom are void; they are void acts of parliament 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."
Seven of the twelve judges, namely, Finch, chief justice of the common pleas, Jones, Berkley, Vernon, Crawley, Trevor, and Weston, gave judgment for the Crown. Brampston, chief justice of the king's bench, and Davenport, chief baron of the exchequer, pronounced for Hampden, but on technical reasons, and adhering to the majority on the principal question. Denham, another judge of the same court, being extremely ill, gave a short written judgment in favour of Hampden. But Justices Croke and Hutton, men of considerable reputation and experience, displayed a most praiseworthy intrepidity in denying, without the smallest qualification, the alleged prerogative of the Crown and the lawfulness of the writ for ship-money. They had unfortunately signed, along with the other judges, the above-mentioned opinion in favour of the right. For this they made the best apology they could, that their voice was concluded by the majority. But in truth it was the ultimate success that sometimes attends a struggle between conscience and self-interest or timidity.[35]
The length to which this important cause was protracted, six months having elapsed from the opening speech of Mr. Hampden's counsel to the final judgment, was of infinite disservice to the Crown. During this long period, every man's attention was directed to the exchequer-chamber. The convincing arguments of St. John and Holborne, but still more the division on the bench, increased their natural repugnance to so unusual and dangerous a prerogative.[36] Those who had trusted to the faith of the judges were undeceived by the honest repentance of some, and looked with indignation on so prostituted a crew. That respect for courts of justice, which the happy structure of our judicial administration has in general kept inviolate, was exchanged for distrust, contempt, and desire of vengeance. They heard the speeches of some of the judges with more displeasure than even their final decision. Ship-money was held lawful by Finch and several other judges, not on the authority of precedents, which must in their nature have some bounds, but on principles subversive of any property or privilege in the subject. Those paramount rights of monarchy, to which they appealed to-day in justification of ship-money, might to-morrow serve to supersede other laws, and maintain new exertions of despotic power. It was manifest, by the whole strain of the court lawyers, that no limitations on the king's authority could exist but by the king's sufferance. This alarming tenet, long bruited among the churchmen and courtiers, now resounded in the halls of justice. But ship-money, in consequence, was paid with far less regularity and more reluctance than before.[37] The discontent that had been tolerably smothered was now displayed in every county; and though the council did not flinch in the least from exacting payment, nor willingly remit any part of its rigour towards the uncomplying, it was impossible either to punish the great body of the country gentlemen and citizens, or to restrain their murmurs by a few examples. Whether in consequence of this unwillingness or for other reasons, the revenue levied in different years under the head of ship-money is more fluctuating than we should expect from a fixed assessment; but may be reckoned at an average sum of £200,000.[38]
Proclamations.—It would doubtless be unfair to pass a severe censure on the government of Charles the First for transgressions of law, which a long course of precedents might render dubious, or at least extenuate. But this common apology for his administration, on which the artful defence of Hume is almost entirely grounded, must be admitted cautiously, and not until we have well considered how far such precedents could be brought to support it. This is particularly applicable to his proclamations. I have already pointed out the comparative novelty of these unconstitutional ordinances, and their great increase under James. They had not been fully acquiesced in; the Commons had remonstrated against their abuse; and Coke, with other judges, had endeavoured to fix limits to their authority, very far within that which they arrogated. It can hardly, therefore, be said that Charles's council were ignorant of their illegality; nor is the case at all parallel to that of general warrants, or any similar irregularity into which an honest government may inadvertently be led. They serve at least to display the practical state of the constitution, and the necessity of an entire reform in its spirit.
Various arbitrary proceedings.—The proclamations of Charles's reign are far more numerous than those of his father. They imply a prerogative of intermeddling with all matters of trade, prohibiting or putting under restraint the importation of various articles, and the home growth of others, or establishing regulations for manufactures.[39] Prices of several minor articles were fixed by proclamation, and in one instance this was extended to poultry, butter, and coals.[40] The king declares by a proclamation that he had incorporated all tradesmen and artificers within London and three miles round; so that no person might set up any trade without having served a seven years' apprenticeship, and without admission into such corporation.[41] He prohibits in like manner any one from using the trade of a maltster or that of a brewer, without admission into the corporations of maltsters or brewers erected for every county.[42] I know not whether these projects were in any degree founded on the alleged pretext of correcting abuses, or were solely designed to raise money by means of these corporations. We find, however, a revocation of the restraint on malting and brewing soon after. The illegality of these proclamations is most unquestionable.
The rapid increase of London continued to disquiet the court. It was the stronghold of political and religious disaffection. Hence the prohibitions of erecting new houses, which had begun under Elizabeth, were continually repeated.[43] They had indeed some laudable objects in view; to render the city more healthy, cleanly, and magnificent, and by prescribing the general use of brick instead of wood, as well as by improving the width and regularity of the streets, to afford the best security against fires, and against those epidemical diseases which visited the metropolis with unusual severity in the early years of this reign. The most jealous censor of royal encroachments will hardly object to the proclamations enforcing certain regulations of police in some of those alarming seasons.
It is probable, from the increase which we know to have taken place in London during this reign, that licences for building were easily obtained. The same supposition is applicable to another class of proclamation, enjoining all persons who had residences in the country to quit the capital and repair to them.[44] Yet, that these were not always a dead letter, appears from an information exhibited in the star-chamber against seven lords, sixty knights, and one hundred esquires, besides many ladies, for disobeying the king's proclamation, either by continuing in London, or returning to it after a short absence.[45] The result of this prosecution, which was probably only intended to keep them in check, does not appear. No proclamation could stand in need of support from law, while this arbitrary tribunal assumed a right of punishing misdemeanours. It would have been a dangerous aggravation of any delinquent's offence to have questioned the authority of a proclamation, or the jurisdiction of the council.
The security of freehold rights had been the peculiar boast of the English law. The very statute of Henry VIII., which has been held up to so much infamy, while it gave the force of law to his proclamations, interposed its barrier in defence of the subject's property. The name of freeholder, handed down with religious honour from an age when it conveyed distinct privileges, and as it were a sort of popular nobility, protected the poorest man against the Crown's and the lord's rapacity. He at least was recognised as the liber homo of Magna Charta, who could not be disseised of his tenements and franchises. His house was his castle, which the law respected, and which the king dared not enter. Even the public good must give way to his obstinacy; nor had the legislature itself as yet compelled any man to part with his lands for a compensation which he was loath to accept. The council and star-chamber had very rarely presumed to meddle with his right; never perhaps where it was acknowledged and ancient. But now this reverence of the common law for the sacredness of real property was derided by those who revered nothing as sacred but the interests of the Church and Crown. The privy council, on a suggestion that the demolition of some houses and shops in the vicinity of St. Paul's would show the cathedral to more advantage, directed that the owners should receive such satisfaction as should seem reasonable; or on their refusal the sheriff was required to see the buildings pulled down, "it not being thought fit the obstinacy of those persons should hinder so considerable a work."[46] By another order of council, scarcely less oppressive and illegal, all shops in Cheapside and Lombard Street, except those of goldsmiths, were directed to be shut up, that the avenue to St. Paul's might appear more splendid; and the mayor and aldermen were repeatedly threatened for remissness in executing this mandate of tyranny.[47]