The Constitutional History of England. Hallam Henry

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СКАЧАТЬ their ecclesiastical courts from the civil jurisdiction. I have already mentioned the peremptory tone in which he repelled Bancroft's Articuli Cleri. But as the king and some of the council rather favoured these episcopal pretensions, they were troubled by what they deemed his obstinacy, and discovered more and more that they had to deal with a most impracticable spirit.

      It would be invidious to exclude from the motives that altered Lord Coke's behaviour in matters of prerogative his real affection for the laws of the land, which novel systems, broached by the churchmen and civilians, threatened to subvert.546 In Bates's case, which seems to have come in some shape extra-judicially before him, he had delivered an opinion in favour of the king's right to impose at the out-ports; but so cautiously guarded, and bottomed on such different grounds from those taken by the barons of the exchequer, that it could not be cited in favour of any fresh encroachments.547 He now performed a great service to his country. The practice of issuing proclamations, by way of temporary regulation indeed, but interfering with the subject's liberty, in cases unprovided for by parliament, had grown still more usual than under Elizabeth. Coke was sent for to attend some of the council, who might perhaps have reason to conjecture his sentiments; and it was demanded whether the king, by his proclamation, might prohibit new buildings about London, and whether he might prohibit the making of starch from wheat. This was during the session of parliament in 1610, and with a view to what answer the king should make to the Commons' remonstrance against these proclamations. Coke replied, that it was a matter of great importance, on which he would confer with his brethren. "The chancellor said, that every precedent had first a commencement, and he would advise the judges to maintain the power and prerogative of the king; and in cases wherein there is no authority and precedent, to leave it to the king to order in it according to his wisdom and for the good of his subjects, or otherwise the king would be no more than the Duke of Venice; and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken. And the lord privy-seal (Northampton) said, that the physician was not always bound to a precedent, but to apply his medicine according to the quality of the disease; and all concluded that it should be necessary at that time to confirm the king's prerogative, with our opinions, although that there were not any former precedent or authority in law; for every precedent ought to have a commencement. To which I answered, that true it is that every precedent ought to have a commencement; but when authority and precedent is wanting, there is need of great consideration before that anything of novelty shall be established, and to provide that this be not against the law of the land; for I said that the king cannot change any part of the common law, nor create any offence by his proclamation which was not an offence before, without parliament. But at this time I only desired to have a time of consultation and conference with my brothers." This was agreed to by the council, and three judges, besides Coke, appointed to consider it. They resolved that the king, by his proclamation, cannot create any offence which was not one before; for then he might alter the law of the land in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment. It was also resolved that the king hath no prerogative but what the law of the land allows him. But the king, for prevention of offences, may by proclamation admonish all his subjects that they keep the laws and do not offend them, upon punishment to be inflicted by the law; and the neglect of such proclamation, Coke says, aggravates the offence. Lastly, they resolved that if an offence be not punishable in the star-chamber, the prohibition of it by proclamation cannot make it so. After this resolution, the report goes on to remark, no proclamation imposing fine and imprisonment was made.548

      Means resorted to in order to avoid the meeting of parliament.—By the abrupt dissolution of parliament James was left nearly in the same necessity as before; their subsidy, being by no means sufficient to defray his expenses, far less to discharge his debts. He had frequently betaken himself to the usual resource of applying to private subjects, especially rich merchants, for loans of money. These loans, which bore no interest, and for the repayment of which there was no security, disturbed the prudent citizens; especially as the council used to solicit them with a degree of importunity at least bordering on compulsion. The House of Commons had in the last session requested that no one should be bound to lend money to the king against his will. The king had answered that he allowed not of any precedents from the time of usurping or decaying princes, or people too bold and wanton; that he desired not to govern in that commonwealth where the people be assured of everything and hope for nothing, nor would he leave to posterity such a mark of weakness on his reign; yet, in the matter of loans, he would refuse no reasonable excuse.549 Forced loans or benevolences were directly prohibited by an act of Richard III., whose laws, however the court might sometimes throw a slur upon his usurpation, had always been in the statute-book. After the dissolution of 1610, James attempted as usual to obtain loans; but the merchants, grown bolder with the spirit of the times, refused him the accommodation.550 He had recourse to another method of raising money, unprecedented, I believe, before his reign, though long practised in France, the sale of honours. He sold several peerages for considerable sums, and created a new order of hereditary knights, called baronets, who paid £1,000 each for their patents.551

      Such resources, however, being evidently insufficient and temporary, it was almost indispensable to try once more the temper of a parliament. This was strongly urged by Bacon, whose fertility of invention rendered him constitutionally sanguine of success. He submitted to the king that there were expedients for more judiciously managing a House of Commons, than Cecil, upon whom he was too willing to throw blame, had done with the last; that some of those who had been most forward in opposing were now won over; such as Neville, Yelverton, Hyde, Crew, Dudley Digges; that much might be done by forethought towards filling the house with well-affected persons, winning or blinding the lawyers, whom he calls the literæ vocales of the house, and drawing the chief constituent bodies of the assembly, the country gentlemen, the merchants, the courtiers, to act for the king's advantage; that it would be expedient to tender voluntarily certain graces and modifications of the king's prerogative, such as might with smallest injury be conceded, lest they should be first demanded, and in order to save more important points.552 This advice was seconded by Sir Henry Neville, an ambitious man, who had narrowly escaped in the queen's time for having tampered in Essex's conspiracy, and had much promoted the opposition in the late parliament, but was now seeking the post of secretary of state. He advised the king, in a very sensible memorial, to consider what had been demanded and what had been promised in the last session, granting the more reasonable of the Commons' requests, and performing all his own promises; to avoid any speech likely to excite irritation; and to seem confident of the parliament's good affections, not waiting to be pressed for what he meant to do.553 Neville and others, who, like him, professed to understand the temper of the Commons, and to facilitate the king's dealings with them, were called undertakers.554 This circumstance, like several others in the present reign, is curious, as it shows the rise of a systematic parliamentary influence, which was one day to become the mainspring of government.

      Neville, however, and his associates had deceived the courtiers with promises they could not realise. It was resolved to announce certain intended graces in the speech from the throne; that is, to declare the king's readiness to pass bills that might remedy some grievances and retrench a part of his prerogative. These proffered amendments of the law, though eleven in number, failed altogether of giving the content that had been fully expected. Except the repeal of a strange act of Henry VIII., allowing the king to make such laws as he should think fit for the principality of Wales without consent of parliament,555 none of them could perhaps be reckoned of any constitutional importance. In all domanial and fiscal causes, and wherever the private interests of the Crown stood in competition with those of a subject, the former enjoyed enormous and superior advantages, whereof what is strictly called its prerogative was principally composed. The terms of prescription that bound other men's right, the rules of pleading and procedure established for the sake of truth and justice, did not, in general, oblige the king. It was not by doing away with a very few of these invidious and oppressive distinctions, that the Crown could be allowed to keep on foot still more momentous abuses.

      Parliament of 1614.—The Commons of 1614 accordingly went at once to the characteristic grievance of this reign, the customs at the outports. They had grown so confident in their cause by ransacking ancient СКАЧАТЬ