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mon assent of the realm ... may it please your majesty that no tax, imposition, or charge be at any time hereafter taxed upon any goods, wares, or merchandises, &c.' *
In 1621 James I. made a grant of Nova Scotia to Sir William Alexander. By colonists, who were subjects, might be transpcrted
omnes commoditates et mercimonia quæ iis videbuntur necessaria, sine alicujus taxationis, custumæ, aut impositionis pro eisdem solutione nobis vel nostris custumariis,' &c.t
In 1626 the Commons drew up a Remonstrance in which they complained to Charles I. that the subsidies of tonnage and poundage were still levied as in the time of his father, though not granted by Act of Parliament,
as if there might be any subsidy, tax, or aid levied upon them without their consent in Parliament, or contrary to the settled laws of this kingdom.'
The chief arguments employed for and against the right of the crown to lay impositions in the Exchequer case in 1606 and the Commons' debates in 1610 are interesting, as showing the legal view of the question while James was on the throne. None of these, it will be observed, draw any distinction in kind between ‘tax' and “imposition,' while some are equally good for the imposition of inland charges as of port duties.
The crown lawyers had two main lines of argument. They argued first from law and precedent. The king's prerogative of imposing, they said, had always been recognised by the law, or rather was part of the law. “Customs' must originally have been impositions, and if customs' were now fixed at a certain sum, this did not deprive the king of the power still to lay impositions. The subsidies of tonnage and poundage were not granted to restrain the king's power to impose, but for the special purpose of maintaining a navy and guarding the seas ; even when Acts of Parliament granted supplies on condition that the king should not lay impositions, they implied a power in him to do so. As a matter of fact there were many precedents of impositions which Acts of Parliament had never been able to restrain. To this the popular lawyers answered that customs had not originally been impositions, but were due to the king either by Act of Parliament or by Common Law. If by Common Law he had no more power to increase them than he had to raise the relief for an earldom or the fines for
* Parliamentary Debates in 1610, 162. Camden Society.
original writs. Yet what were impositions but an increase of customs under another name? If Edward I. and Edward III. had tried to raise impositions, Parliament had always interfered to prevent them. Their impositions, moreover, were no precedents for the present; those were raised in time of war and for a short period; these in time of peace, and declared due to the king, his heirs, and successors. Finally, allowing the king had originally power to impose, this power had been taken away by Acts of Parliament; and, as a matter of fact, from the time of Richard II. to that of Mary no king had ever attempted to lay an imposition.
The second line of argument held by the crown lawyers took higher ground. Shortly put, it was the argument of State necessity. Sir Edward Coke has left us the result of a conference held between himself, then Attorney-General, and Chief Justice Popham. After quoting various statutes intended to deprive the king of the power of laying duties on merchandise, he continues:
Upon all which and divers records which we had seen it appeared to us that the king cannot at his pleasure put any imposition upon any merchandise to be imported into this kingdom or exported, unless it be for the advancement of trade and traffic pro bono publico ... for this is not against any of the statutes which were made for the advancement of merchandise, and of the statutes of Magna Charta, for the end of all such restraints is salus populi; and so in the case of currants which was now lately adjudged in the Exchequer. . . . And note for the benefit of the subject the king may make an imposition or toll within the realm to repair highways, bridges, and to make walls for defence, but then the sum imposed ought to be proportionable to the benefit; so the imposition for equality ought to be for the public
Amplified, Coke's and Popham's argument of necessity' took various forms. The king must be furnished to make defence in time of war, and may not be able to wait for a parliamentary grant. The ports belong to the king, and when he sees just occasion he may close them, and only reopen them conditionally. The king maintains a navy, and supports ambassadors for the good of trade, and he alone can know the charges to which he is thereby put. To these various arguments it was answered that equality between English and foreign merchants could be maintained as well by Act of Parliament as by prerogative; that in case of an offensive war, the king had time enough to obtain aid from Parliament; in case of an unexpected invasion, he could call on his subjects to serve at
* Reports, xii.
their own charge. If the king protected merchants in their trade, this charge was provided for by the Tonnage and Poundage Acts. It was true the king had the prerogative of restraint; he might shut up a port for a time, and refuse merchants passage for a time; but he had no power to restrain all merchants for all time. Yet this was what was inferred when it was said that the king had power to open the ports conditionally. Towns were the king's, so were highways, and in time of plague, or for other good reason, he might restrain passage along a highway or through the gates of a town. Might he therefore close the gates of London to all persons for all time, and demand a tax upon all goods brought into the city? This was to sell government, trust, and common justice. No man ought to be restrained in the exercise of his calling ; and the merchant had as much right freely to plough the sea as the ploughman had to plough the land.
This second line of argument was sometimes put in stronger language, and carried to conclusions which were displeasing even to those who maintained a right in the crown to levy impositions. The king's absolute power, it was said, which he exercised by prerogative, was something quite superior to his ordinary power exercised in Parliament and in courts of justice. All questions relating to merchants, being matter of state and policy, fall within the scope of this absolute power ; and hence, if the king sees good, he may lay duties on merchandise. The King of England, moreover, is as absolute as any other prince; and if he does not impose excises and other charges in the land, this moderation is not for lack of powers inherent in his crown. In answering these arguments the popular lawyers took equally high ground. The king's sovereignpower, they said, was exercised in Parliament; any other power he possessed was inferior to this, and therefore to be controlled by Acts of Parliament. It was not true that matters relating to merchants were beyond the scope of the positive law of the realm ; if it were true, how came it that Bate's case had been adjudged by the Common Law judges.
With the accession of Charles I. the whole question entered on a new phase. James did not levy the subsidies of tonnage and poundage in right of the Exchequer decision, but in right of an Act of Parliament which had granted him those duties for life. Charles levied, under the names of subsidies, cus'toms, and imposts,' all the duties which had been paid to his father, without receiving any grant from Parliament; that is, as impositions in the technical sense of the term. The question at once arises, Had he any legal judgment in his favour for doing this ? Baron Clerk, in giving judgment in Bate's case in 1606, said: “As to that which was objected that the • defendant had paid poundage granted by the statute of the
first of the king, that is nothing to this purpose ; for that is a í subsidy and not a custom ;* for when any imposition is "granted by Parliament, it is only a subsidy, and not a
custom, for the nature thereof is changed.' That,' said Baron Fleming, 'which is given by Parliament is not an im• post but a subsidy.' In the fifth year of James' reign the Attorney-General of Ireland exhibited an information against the corporation of Waterford for using for their own purposes the great and small customs. Besides the special points at issue, the general question was taken into consideration, what manner of duties customs and subsidies were, their origin and their difference. Customs were declared to be duties upon merchandise, certain and perpetual, an inheritance of the crown; subsidies to be duties payable upon merchandise exported and imported, granted by Parliament. Imposts or impositions were divided into two classes; lst, such as were rare and assessed by Parliament, and then took the nature of subsidies; 2nd, such as were imposed by prerogative royal to support the necessary charges of the crown.f It is certain, therefore, that Charles was not acting within the letter of the law, nor does it appear that the crown lawyers relied on the judgment given against Bate to maintain the right of the crown to raise subsidies ungranted by Parliament. In his commission of 1626 for the collection of port duties, as well as in his Declaration published after dissolution of Parliament in 1629, Charles is made to rest his claim to those duties on the necessity of his having the means to defend the seas and the practice of his predecessors, who had been accustomed to levy them by prerogative until they received a grant from Parliament. In 1629, the Attorney-General brought an information against four merchants for refusing to pay 3s. 4d. imposi
* The word seems here used simply in opposition to a parliamentary grant.
| Le case del customes payable pur merchandises. Les Reports des Cases, by Sir John Davies. In his history of the Rebellion, Book III., Clarendon remarks that the Tonnage and Poundage Act of 1641 not only declared against any power in the crown of levying tonnage and
poundage'-a revenue which he admits was not legally vested in the *king till an Act of Parliament'--' but also any power of imposi tion upon any merchandises whatsoever, and in any case whatsoever, which had the countenance of a solemn judgment in the Exchequer Chamber.
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tion and 1s. 6d. subsidy per hundredweight upon currants. In support of the king's claim to the imposition, he pleaded the judgment given against Bate; in support of the king's claim to the subsidy, he pleaded the Tonnage and Poundage Act of the first year of James' reign, as also the fact that Henry VIII., Edward VI., Mary, Elizabeth, and James I. had received subsidies of Tonnage and Poundage without opposition from the time of their accession until a life grant was made in Parliament. The merchants pleaded in answer that the tax of 3s. 4d. was not set by consent of Parliament but by the late king's letters patent, which was against the laws of the realm; that as to the judgment mentioned in support of the tax of 3s. 4d., they were not bound by it, because they had not been parties; that the Tonnage and Poundage Act of James had granted the subsidy of 1s. 6d. for the life of the late king only, and that the duty could not now be raised except by Act of Parliament. *
The distinction between subsidy and imposition seems, no doubt, exceedingly technical. If Charles might raise port duties by prerogative, it mattered little under what name he raised them. Then, however, the distinction must have seemed less technical than now. Impositions on a large scale were too novel to have already had the effect of making the nation regard the passing of a Tonnage and Poundage Bill as a mere formality. Besides, law in itself is technical. Ship-money and inland subsidies were both levied on real and personal estate, yet surely Charles would not have been acting within the letter of the law if, relying on the decision of the Judges in Hampden's case, he had levied subsidies by prerogative. Mr. Gardiner's position really is, that it was legal for Charles to levy tonnage and poundage without consent of Parliament on the strength of a judgment in which it had been distinctly laid down that subsidies were not impositions because they were parliamentary grants.
It was, we imagine, open to the Judges to have extended the law and declared the king entitled to subsidies as well as impositions. This, however, would have been a somewhat bold course for them to adopt, and so far as our knowledge extends they never ventured upon it. Their decision in the case of merchants refusing to pay duties on currants carefully avoided touching the question of the king's right to subsidies. Bate, who first brought the question to trial at law in 1606, had paid
* Court of Exchequer. “Bills and Answers, London and Middlesex, Charles I.,' No. 498. The merchants' names were John Cordall, James Traves, John Langham, Humphrey Browne.