“It seemeth to me strange,” says Baron Clarke in his opinion, “that any subjects would contend with the King in this high point of prerogative.... As it is not a kingdom without subjects and government, so he is not a king without revenues.... The revenue of the Crown is the very essential part of the Crown, and he who rendeth that from the king pulleth also his crown from his head, for it cannot be separated from the crown.” He proceeded to advance the opinion that the Statute of Edward III[304] which prohibited to the crown the right of levying new impositions on wool, woolfells, and leather, and which provided that there be only imposed “the custom and subsidy granted to the king,” had no effect in the present instance, because it extended to Edward III alone, “and shall not bind his successors, for it is a principal part of the Crown of England which the King cannot diminish.”
The opinion of Chief Baron Fleming was scarcely less sweeping. “The King’s power is double,” he said, “ordinary and absolute.... That of the ordinary is for the profit of particular subjects, for the execution of civil justice ... in the ordinary courts, and nominated ... with us the common law; and these laws cannot be changed without Parliament.... The absolute power of the king is not that which is converted or executed to private use, ... but is only that which is applied to the general benefit of the people.... This power is not guided by the rules which direct only at the common law, and is most properly named policy and government.... The matter in question is material matter of state, and ought to be ruled by the rules of policy, and if it be so, the king hath done well to execute his extraordinary power. All customs, be they old or new, are no other but the effects and issues of trades and commerce with foreign nations; but all commerce and affairs with foreigners ... are made by the absolute power of the king; and he who hath power of causes hath power also of effects.”[305]
The position of Parliament
Parliament took its stand on the subject of the impositions even before the decision was published. In the Petition of Grievances sent up by the commons at the end of the session of 1606, a list which contained so many complaints that James remarked that “they had sent an oyes through the nation to find them,” the plea was made that no such duty could be demanded legally without the consent of Parliament. The decision was announced to them when they reassembled in November 1606, but they took no action and for a time the matter rested.
But it was James himself who, in his characteristic tactless obstinacy, forced the issue. On the 29th July, 1608, taking advantage of The Book of Rates published under decision in the Bate Case, 1608 the Bate decision, he published under the authority of the Great Seal his Book of Rates, which laid heavy duties upon almost all articles of merchandise, “to be forever hereafter paid to the king and his successors on pain of his displeasure.”[306] The statement of James’s own views on the subject could not be more clearly put than he himself expressed them in the commission for the levy of the impositions addressed to the Earl of Salisbury, Treasurer of England. “This special power and prerogative,” he asserted, “(amongst many others) hath both by men of understanding in all ages and by the laws of all nations been yielded and acknowledged to be proper and inherent in the persons of princes, that they may according to their several occasions raise to themselves such fit and competent means by levying of customs and impositions upon merchandise transported out of their kingdom or brought into their dominions ... as to their wisdoms and discretions may seem convenient.”[307]
Even with the money thus obtained, James was obliged at last after a lapse of nearly two years and a half to turn to Parliament. He summoned it for the 9th February 1609-10. The commons, almost unanimously opposed to the exercise of the royal prerogative in the matter of the imposition, came prepared to dispute the decision in the Bate Case. The discussion, carried on in the face of a royal prohibition, was managed by Hakewill, Yelverton, and Whitelocke.[308] The upshot was Remonstrance from the Commons, 1609-10 a remonstrance in which the commons reminded the king that “the policy and constitution of this your kingdom appropriates unto the kings of this realm, with the assent of the Parliament, as well the sovereign power of making laws as that of taxing or imposing upon the subjects’ goods or merchandises wherein they have justly such a property as may not without their consent, be altered or changed.” Further, they pointed to the former occasions when the commons had complained in Parliament of similar impositions, and upon which redress was forthcoming. Reference was made to the action of “famous kings,” who “agreed that this old fundamental right should be further declared and established by act of Parliament, wherein it is provided that no such charges should ever be laid upon the people without their common consent, as may appear by sundry records of former times.” They went on to say, “We, therefore, your Majesty’s most humble Commons assembled in Parliament, following the examples of this worthy case of our ancestors, and out of a duty to those for whom we serve, finding that your Majesty, without advice or consent of Parliament, hath lately, in time of peace, set both greater impositions, and far more in number than any of your noble ancestors did in time of war, have with all humility presumed to present this most just and necessary petition unto your Majesty: That all impositions set without the assent of Parliament may be quite abolished and taken away; and that your Majesty, in imitation likewise of your noble progenitors, will be pleased that a law may be made during this session of Parliament to declare that all impositions set or to be set, upon your people, their goods and merchandises, save only by common assent in the Parliament, are and shall be void.”[309] The outcome was unsatisfactory. A bill framed to prohibit further impositions than those already in existence, was passed by the House of Commons, but was cast out in the upper chamber. The king was still able to cover himself with the decision in the Bate Case.
Cowel’s “Interpreter”
The attitude of James toward a book “lately published by one Doctor Cowel” and esteemed to “contain certain matters of scandal and offence toward the high court of Parliament,”[310] all but brought him into active conflict with the commons. This publication called “The Interpreter” contained a defense of the royal prerogative in such terms as greatly to offend the power of Parliament. Doctor Cowel had this to say under the head of “Subsidy:”
“... A tax or tribute assessed by Parliament, and granted by the Commons to be levied of every subject according to the value of his lands or goods, after the rate of 4s. in the pound for land and 2s. 8d. for goods, as it is not commonly used at this day. Some hold opinion that this subsidy is granted by the subject to the Prince, in recompense or consideration, that whereas the Prince of his absolute power might make laws of himself, he doth of favor admit the consent of his subjects therein, that all things in their own confession may be done with the greater indifferency.”[311]
King James had been thoughtless enough to let fall words of commendation for the book, and his approval was followed by a request from the commons for a conference with the lords. James, however, wisely withdrew from his position and issued a proclamation prohibiting the further circulation of the work and recalling the copies already issued. Thus did the storm blow over.