Constitutional History of England, Henry VII to George II (Vol. 1-3). Hallam Henry

Чтение книги онлайн.

СКАЧАТЬ matters of complaint taken up by the Commons in this session were, the exaction of money under the name of loans; the commitment of those who refused compliance, and the late decision of the king's bench, remanding them upon a habeas corpus; the billeting of soldiers on private persons, which had occurred in the last year, whether for convenience or for purposes of intimidation and annoyance; and the commissions to try military offenders by martial law—a procedure necessary within certain limits to the discipline of an army, but unwarranted by the constitution of this country which was little used to any regular forces, and stretched by the arbitrary spirit of the king's administration beyond all bounds.651 These four grievances or abuses form the foundation of the Petition of Right, presented by the Commons in the shape of a declaratory statute. Charles had recourse to many subterfuges in hopes to elude the passing of this law; rather perhaps through wounded pride, as we may judge from his subsequent conduct, than such apprehension that it would create a serious impediment to his despotic schemes. He tried to persuade them to acquiesce in his royal promise not to arrest any one without just cause, or in a simple confirmation of the Great Charter, and other statutes in favour of liberty. The peers, too pliant in this instance to his wishes, and half receding from the patriot banner they had lately joined, lent him their aid by proposing amendments (insidious in those who suggested them, though not in the body of the house), which the Commons firmly rejected.652 Even when the bill was tendered to him for that assent, which it had been necessary for the last two centuries that the king should grant or refuse in a word, he returned a long and equivocal answer, from which it could only be collected that he did not intend to remit any portion of what he had claimed as his prerogative. But on an address from both houses for a more explicit answer, he thought fit to consent to the bill in the usual form. The Commons, of whose harshness towards Charles his advocates have said so much, immediately passed a bill for granting five subsidies, about £350,000; a sum not too great for the wealth of the kingdom or for his exigencies, but considerable according to the precedents of former times, to which men naturally look.653

      The sincerity of Charles in thus according his assent to the Petition of Right may be estimated by the following very remarkable conference which he held on the subject with his judges. Before the bill was passed, he sent for the two chief justices, Hyde and Richardson, to Whitehall; and propounded certain questions, directing that the other judges should be assembled in order to answer them. The first question was, "Whether in no case whatsoever the king may not commit a subject without showing cause?" To which the judges gave an answer the same day under their hands, which was the next day presented to his majesty by the two chief justices in these words: "We are of opinion that, by the general rule of law, the cause of commitment by his majesty ought to be shown; yet some cases may require such secrecy, that the king may commit a subject without showing the cause for a convenient time." The king then delivered them a second question, and required them to keep it very secret, as the former: "Whether, in case a habeas corpus be brought, and a warrant from the king without any general or special cause returned, the judges ought to deliver him before they understand the cause from the king?" Their answer was as follows: "Upon a habeas corpus brought for one committed by the king, if the cause be not specially or generally returned, so as the court may take knowledge thereof, the party ought by the general rule of law to be delivered. But, if the case be such that the same requireth secrecy, and may not presently be disclosed, the court of discretion may forbear to deliver the prisoner for a convenient time, to the end the court may be advertised of the truth thereof." On receiving this answer, the king proposed a third question: "Whether, if the king grant the Commons' petition, he doth not thereby exclude himself from committing or restraining a subject for any time or cause whatsoever, without showing a cause?" The judges returned for answer to this important query: "Every law, after it is made, hath its exposition, and so this petition and answer must have an exposition as the case in the nature thereof shall require to stand with justice; which is to be left to the courts of justice to determine, which cannot particularly be discovered until such case shall happen. And although the petition be granted, there is no fear of conclusion as is intimated in the question."654

      The king, a very few days afterwards gave his first answer to the Petition of Right. For even this indirect promise of compliance, which the judges gave him, did not relieve him from apprehensions that he might lose the prerogative of arbitrary commitment. And though, after being beaten from this evasion, he was compelled to accede in general terms to the petition, he had the insincerity to circulate one thousand five hundred copies of it through the country, after the prorogation, with his first answer annexed; an attempt to deceive without the possibility of success.655 But instances of such ill faith, accumulated as they are through the life of Charles, render the assertion of his sincerity a proof either of historical ignorance, or of a want of moral delicacy.

      The Petition of Right, as this statute is still called, from its not being drawn in the common form of an act of parliament, after reciting the various laws which have established certain essential privileges of the subject, and enumerating the violations of them which had recently occurred, in the four points of illegal exactions, arbitrary commitments, quartering of soldiers or sailors, and infliction of punishment by martial law, prays the king, "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; and that none be called to answer or take such oath, or to give attendance, or be confined or otherwise molested or disquieted concerning the same, or for refusal thereof; and that no freeman in any such manner as is before mentioned be imprisoned or detained; and that your majesty would be pleased to remove the said soldiers and marines, and that your people may not be so burthened in time to come; and that the aforesaid commissions for proceeding by martial law may be revoked and annulled; and that hereafter no commissions of the like nature may issue forth to any person or persons whatever, to be executed as aforesaid, lest by colour of them any of your majesty's subjects be destroyed or put to death contrary to the laws and franchises of the land."656

      Tonnage and poundage disputed.—It might not unreasonably be questioned whether the language of this statute were sufficiently general to comprehend duties charged on merchandise at the outports, as well as internal taxes and exactions, especially as the former had received a sort of sanction, though justly deemed contrary to law, by the judgment of the court of exchequer in Bates's case. The Commons, however, were steadily determined not to desist till they should have rescued their fellow-subjects from a burthen as unwarrantably imposed as those specifically enumerated in their Petition of Right. Tonnage and poundage, the customary grant of every reign, had been taken by the present king without consent of parliament; the Lords having rejected, as before-mentioned, a bill that limited it to a single year. The house now prepared a bill to grant it, but purposely delayed its passing; in order to remonstrate with the king against his unconstitutional anticipation of their consent. They declared "that there ought not any imposition to be laid upon the goods of merchants, exported or imported, without common consent by act of parliament; that tonnage and poundage, like other subsidies, sprung from the free grant of the people; that when impositions had been laid on the subjects' goods and merchandises without authority of law, which had very seldom occurred, they had, on complaint in parliament, been forthwith relieved; except in the late king's reign, who, through evil counsel, had raised the rates and charges to the height at which they then were." They conclude, after repeating their declaration that the receiving of tonnage and poundage and other impositions not granted by parliament is a breach of the fundamental liberties of this kingdom, and contrary to the late petition of right, with most humbly beseeching his majesty to forbear any further receiving of the same, and not to take it in ill part from those of his loving subjects who should refuse to make payment of any such charges without warrant of law.657

      The king anticipated the delivery of this remonstrance by proroguing the parliament. Tonnage and poundage, he told them, was what he had never meant to give away, nor could possibly do without. By this abrupt prorogation, while so great a matter was unsettled, he trod back his late footsteps, and dissipated what little hopes might have arisen from his tardy assent to the Petition of Right. During the interval before the ensuing session, those merchants, among whom Chambers, Rolls, and Vassal are particularly to be remembered with honour, who gallantly refused to comply with the demands of the custom house, had their goods distrained, СКАЧАТЬ