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sphere of ecclesiastical matters, the spread of arbitrary principles of government in the State. In 1641, when the Commons took into their own hands the reform of the government in Church and State, imprisoned Laud and convicted Strafford of treason, Arminian doctrine lost its political significance, and its holders were no longer regarded as dangerous. Government in Church and State lost its political significance and its holders were no longer regarded as dangerous. Hence though dissent was unrecognised, no attempt was made to bind consciences over to the formulas of Calvinism. The wave of reaction, produced by the political position, had spent its force, and the tide again flowed in its natural direction. Arminian tenets made way, and gained converts amongst the opponents of episcopacy. It is curious to find Baxter complaining that he found in the sectarian army soldiers who ‘ vehemently de'claimed against the doctrine of election and for the power of • free will.
The religious question was one chief cause of quarrel between Charles and the Commons. There was a second, which at the time was of hardly less interest or of less importancethat of taxation. The Commons, through dislike of the King's policy, refused to grant supplies, and Charles in consequence raised money without consent of Parliament. This led to the passing of the celebrated Petition of Right in 1628, which enacts that no man hereafter be compelled to make or yield 'any gift, loan, benevolence, tax, or such like charge, without
common consent by Act of Parliament.' It has been ordinarily held that when the Commons passed this law they intended to render all taxation without consent of Parliament illegal. Mr. Gardiner does not hold this view. The special terms, he observes, to include customs duties, which Charles at the time was levying by prerogative, were not inserted. Further, the words tax or such like charge' could only have reference to inland taxation. It was notorious that the
crown lawyers had for many years been arguing that a cus'toms duty was something altogether different in kind from ' a " tax or such like charge,” and therefore something which, as falling upon goods before their entrance into the kingdom or after their exit from it, could be imposed by the mere pre* rogative of the crown.'* Are we then, he asks, to suppose that the popular lawyers were so ignorant as not to know the proper terms to include customs duties, or so stupid as to use a term of which the meaning was certain to be contested by
* England under Charles I. and the Duke of Buckingham, ii. 311.
the advocates of the crown? Accordingly Mr. Gardiner regards the appeal made by the Commons to the Petition of Right in their Remonstrance against the levy of customs without consent of Parliament, as a daring attempt to take up new ground which would place the right of their House above the decision of the Court of Exchequer, which in the previous reign had given the crown the right of levying customs by prerogative and had hitherto been contested in vain.
From this view we dissent in several important points. Before entering on the question it will be necessary to state shortly the three branches of duties levied at the ports in the time of James I, and the technical name for each branch.
I. Customs.-These were duties fixed at a stated sum. They comprised the antiqua custuma, duties on wool, woolfells, and leather, fixed by statute in the time of Edward I., and the nova custuma, duties which had originated in the time of Edward I. and Edward III., some being imposed by the crown, some being undertaken by merchant strangers. No special grant of these duties was made in the Tonnage and Poundage Acts.
II. Subsidies—These were duties granted to the king for life by a so-called Act of Tonnage and Poundage, passed at the beginning of each reign. They comprised (1) a subsidy of tonnage, as 3s. on every ton of wine; (2) a subsidy of poundage, as 12d. on the value of every 20s. worth of goods exported or imported with certain exceptions named; (3) additional subsidies on any special articles, as 33s. 4d. on every sack of wool.
III. Imposts or Impositions.—These were duties in addition to any of the former, imposed by the crown without consent of Parliament. All these duties were in general language sometimes called “impositions, sometimes customs. Mr. Gardiner, speaking in modern language, of course calls them customs. To avoid the ambiguity which would arise from using either imposition' or 'custom ’in a double sense, we shall use the word 'port duties,' for the collective name of all three branches.
• Impositions 'were comparatively modern. Mary had first laid impositions on a few articles of import. Elizabeth had continued them. In James' time their legality was disputed by Bate, a merchant who refused to pay an imposition on currants. The case was brought before four judges in the Exchequer and judgment was given in favour of the king (1606). After this James laid impositions on many articles of export and import. The question attracted the attention of the Commons,
con Bate, am case was bas given is
and the decision of the judges was vehemently contested as bad law in the Parliaments of 1610 and 1614. Bills introduced into both these Parliaments to render impositions illegal did not pass, and in 1628, when the Petition of Right was framed, the power exercised by the crown of laying impositions was still a cause of quarrel between King and Commons.
No one, we suppose, will attempt to maintain, in the face of Mr. Gardiner's arguments, that the Commons intended to include the special question of port duties in the Petition of Right. If they had so intended, the special terms would undoubtedly be there. But admitting this, the question yet remains unanswered whether the Petition of Right was intended not merely as a law against loans and benevolences, but also as a general law against all unparliamentary taxation, and if so, whether the Commons could fairly appeal to it against the continued levy of port duties by prerogative. In stating our reasons for differing from Mr. Gardiner's conclusions on both these points we shall, in the first place, criticise his statement that the crown lawyers had for many years been arguing that a port duty was different in kind from a tax or such like
charge.' We shall afterwards give a brief sketch of the chief arguments employed while James was on the throne for and against the right of the Crown to lay impositions. Thirdly, we shall show how when Charles came to the throne the whole question entered on a new phase; and lastly, we shall treat of the Commons' intention in framing the Petition of Right, and of Mr. Gardiner's charge that they took up new ground in saying that the raising of port duties not granted by Parliament was contrary to your Majesty's royal answer to their • late Petition of Right.”
Mr. Gardiner's language implies that a port duty was supposed to differ in kind from an income tax or other inland charge in not falling on the consumer. But this certainly was not the case. The documents of the time give conclusive evidence that merchants, lawyers, and members of Parliament all knew as well as we do that the consumer paid in the last instance. Thus the Levant merchants in the time of Elizabeth begged that they might not be obliged to pay an imposition on certain currants which they had already sold without en
hancing their price a penny' The Commons, in a Petition of Grievances, complained to James that since the impositions had been laid on currants, the price to the subject had quadrupled. Baron Fleming, in giving judgment in Bate's case, said: “The impost to him [the merchant] is nothing, for he ' rateth his merchandise according to that. The impost is
But the cromach other, they ar, that while and taxes in the
'imposed upon currants, and he who will buy them shall have them subject to that charge.'*
There was, however, a certain distinction recognised by the lawyers on both sides in the use of the terms tax' and
imposition. The more special term for an inland charge such as tithes or tenths was 'tax' or tallagc’; the more special term for a charge on merchandise, .custom’or “imposition.' But the crown lawyers did not urge that the two differed in kind from each other; they argued merely that the law relating to the two was dissimilar; that while Acts of Parliament had deprived the king of power of imposing “taxes in the • land, they had not deprived him of power of imposing im• positions on merchandise. On the other hand, imposition as a general term was undoubtedly applicable to inland charges, and ‘tax’ as a general term, was undoubtedly applicable to port duties. It was indeed often so used both by the crown and the popular lawyers. For instance, Baron Fleming, after saying that the king is to obtain relief for English merchants when oppressed by foreign princes, continues, and if he [the • merchant] be not remedied thereby, then lex talionis shall be
used, goods for goods, and tax for tax.' So Hakewell, in speaking of port duties in 1610, says: “The merchant is not
the man alone that is subject to taxes, and all other men • free.' The following instances may serve to show that “tax' was commonly employed in relation to port duties on occasions when the use of correct terms was a matter of moment. In a report of a case connected with the payment of port duties, in the thirtieth year of Henry VIII., we find the law stated as follows:
* Customs for merchandise to be exported out of the realm is an inheritance in the king and by the common law, and not given by any statute. ... And a subsidy is a tax assessed by Parliament and granted to the king by the Commons during the life of each king only, for the defence of merchants upon the sea.' †
* The same judge also said that he omitted the question whether the king could impose upon the subject or his goods. At the time when the impost was imposed, the currants were the goods of the • Venetians, and not the goods of the subject, nor within this land, • but only upon those which shall be after imported.' Fleming is, of course, here speaking not of the consumer but of the English merchant. This argument was never repeated, and with good reason, for it undoubtedly restricted the king's power of imposing to articles of import. "State Trials,' ii. p. 390.
† Sir James Dyer's · Reports,' 43 b. 'Les Reports des Cases,' by Sir John Davies, p. 9. The record showing that the antiqua custuma
In 1600 some English merchants trading to the Levant refused to pay impositions on wine, oil, and currants, which, as they averred, had previously been demanded only of aliens. Their goods were stayed and only restored upon their giving bond to pay such impositions as should be adjudged reasonable. The merchants drew up a list of reasons to lay before the Privy Council, showing cause why they ought to be released from their bonds without payment. In this document the impositions are constantly called taxes. Thus the merchants say :
With all humbleness and submission to authority they think there can be no tac lawfully imposed upon them being free merchants, natural subjects, unless the same be established by Act of Parliament or particular agreement of themselves, or at the least that it be beforehand expressly published by proclamation, or under her Highness's great seal, privy seal, or signet, that if any bring in such goods they shall pay such a tax.'*
The charter granted to the Virginian Company in 1609 authorises them to export all shipping, armour, &c. necessary for the said plantation, 'without yielding or paying subsidy, custom, or imposition, or any other tax or duty for the space of seven years . . . and that they shall be free of all subsidies and customs in Virginia for the space of twenty-one years, and from all taxes and impositions for ever, upon any goods or merchandises, either upon importation thither, or exportation from thence, into our realm of England, except only the five pounds per cent. due for custom ... which five pounds per cent. only being paid, it shall be lawful for the said adventurers to export into foreign parts without any custom, tax or other duty, to be paid to us, our heirs, or successors.' †
In 1610, after the whole question had been thoroughly sifted, the House of Commons sent a Bill up to the Lords against Impositions. The Bill runs thus :
'For that in former times divers good laws and statutes have been made to give merchants free liberty to bring into this realm their goods, wares, and merchandise, paying the customs, subsidies, and other profits thereof reasonably due, without any evil toll or charge; 80 that no custom or imposition should be taken but by the common assent of the realm, except the ancient aides and taxes, as by the said statutes appeareth; which notwithstanding of late years new impositions, taxes and charges are laid upon merchandise without the com
had been fixed by statute in the third year of Edward I. was discovered by the popular lawyers in 1610. *Cott. MSS. Titus iv. F. pp. 232-234. † Hist. of Virginia,' Appendix. W. Stilts. VOL, CXLIIJ. NO. CCXCI.