the Exchequer, where he pleaded; and the point was argued with great solemnity by lord that hath been a judge? 'Tis true, this writ hath not been used when tunnage and poundage was granted; now it is not, but taken by prerogative; ergo, this writ is now in full force."-In another letter of his, dated Charter-house, May 10, 1638, he tells his lordship, "Four judges have argued the ship-writ this term: first, baron Trevor, who concluded for the king; with him judge Crooke [Croke], who directly concluded against the legality of the writ. Now at the end of the term came judge Jones, who handled the business so, that no man could tell what to make of his argument; in dock, out nettle, sometimes for the king, then for the subject; so that when he ended, judge Finch asked him, for whom he concluded? He said, for this time for the king. Judge Hutton spake long and strong to make that good which was his opinion, and concurred with his brother Crooke, concluding against the king b."-Laud, in a letter to Wentworth, dated Lambeth, 14th May, 1658, speaks of the judgment of the judges in the following terms. "The judges have argued by four in a term, and so eight are past, and four to come for the next term: of the eight that are past, none have gone against the king, but J. Crooke, and J. Hutton, who both did it, and very sourly. The accidents which have followed upon it already are these: first, the faction are grown very bold. Secondly, the king's monies come in a great deal more slowly than they did in former years, and that to a very considerable sum. Thirdly, it puts thoughts into wise and moderate men's heads, which were better out; for they think, if the judges, which are behind, do not a Strafforde's Letters and Dispatches, vol. I. p. 358. b Id. vol. II. p. 167. the council and the judges, who all, Croke and Hutton excepted, adhered to their former opinion, and thereby, in effect, gave their parts exceedingly well and thoroughly, it may much distemper this extraordinary and great service." However, the writs continued to be issued out, and money raised by virtue of them till the beginning of the long parliament, when it was resolved upon the question, nemine contradicente, "That the charge imposed upon the subjects for the providing and furnishing of ships, and the assessments for raising of money for that purpose, commonly called ship-money, are against the laws of the realm, the subjects right of property, and contrary to former resolutions in parliament, and to the petition of right. "Resolved upon the question, nemine contradicente, That the extrajudicial opinion of the judges, published in the Star-chamber, and inrolled in the courts of Westminster, in hæc verba, &c. (reciting the judgment) in the whole and every part of them, are against the laws of the realm, the right of property, and the liberty of the subjects, and contrary to former resolutions in parliament, and to the petition of right. "Resolved upon the question, nemine contradicente, That the writ following, in hæc verba, &c. and the other writs commonly called ship-writs, are against the laws of the realm, the right of property, and the liberty of the subject, and contrary to former resolutions in parliament, and the petition of right." This parliament, not content with voting, ordered impeachments against several of the judges for betraying the liberties of the subjects, and breaking through those "laws of which they were the sworn guardians." a Strafforde's Letters and Dispatches, vol. II. r. 170. vol. IV. p. 88. b Rushworth, These op up every thing to the crown. pressions were attended with severe and terrible punishments, inflicted by the Star .. And on Feb. 13, 1640, "Sir Robert Berkly was taken from the Bench by the usher of the black rod, and carried away to prison, which struck a great terror in the rest of his brethren then sitting: the other judges submitted themselves to the pleasure of the house of lords, and gave great bail for their appearance; but, I think, they had the luck to escape farther punishment, except Berkly, who, in order to redeem himself, advanced ten thousand pounds to the parliament." However, their names have been had in abhorrence by all the lovers of our constitution. Such as imagine that this imposition was not worth the noise that was made about it in those days, will do well to attend to what follows. It is strong and unanswerable. ""Tis a maxim in politics, which we readily admit as undisputed and universal, that a power, however great, when granted by law to an eminent magistrate, is not so dangerous to liberty, as an authority, however inconsiderable, which he acquires from violence and usurpation. For besides that the law always limits every power, which it bestows, the very receiving it as a concession establishes the authority whence it is derived, and preserves the harmony of the constitution. By the same right that one prerogative is assumed without law, another may also be claimed, and another, with still greater facility: while the first usurpations both serve as precedents to the following, and give force to maintain them. Hence the heroism of Hampden, who sustained the whole violence of royal prosecution, rather than pay a tax of 20s. not imposed by a Whitlock, p. 40. Rushworth, vol. IV. p. 150. chamber", for comparatively small matters, 66 parliament: hence the care of all English patriots to guard against the first encroachments of the crown: and hence alone the existence, at this day, of English liberty." Pity it is, this same gentleman had not understood history a little better than to say, in another work," that Charles, after the laying on of ship-money, in order to discourage all opposition, proposed the question to the judges, which they answered in the manner above mentioned";" and that “ all the judges, except four, at the public arguing in the Exchequer, gave it in favour of the crown" I say, it is pity he should say this, because Mr. Whitlock, and our other historians, would have informed him, that Charles consulted not the judges till after Mr. Hampden's refusal; and Croke and Hutton alone, when it came to be publicly argued, gave it against the king.—Historians, above all men, should remember the maxim in Prior: "Authors, before they write, shou'd read." 52 Severe and terrible punishments were inflicted by the Star-chamber, &c.] The court of Star-chamber, though of great antiquity, is but little mentioned in the law-books. The reason of which is thought to be, because it intrenched too much upon the common law of England." By a statute made in the third year of king Henry the Seventh, power is given to the chancellor, the lord treasurer of England for the time being, and the keeper of the king's privy seal, or two of them, calling unto them a bishop and a temporal lord of the king's most honourable council, and the two chief justices of the King's Bench and Common Pleas, for the time being, or other two justices in their ab a Hume's Political Discourses, p. 152. 8vo. Edinburgh, 1752. 1ory of Great Britain, p. 217. c Id. p. 219. b His These op up every thing to the crown. pressions were attended with severe and terrible punishments, inflicted by the Star And on Feb. 13, 1640, "Sir Robert Berkly was taken from the Bench by the usher of the black rod, and carried away to prison, which struck a great terror in the rest of his brethren then sitting: the other judges submitted themselves to the pleasure of the house of lords, and gave great bail for their appearance; but, I think, they had the luck to escape farther punishment, except Berkly, who, in order to redeem himself, advanced ten thousand pounds to the parliament." However, their names have been had in abhorrence by all the lovers of our constitution. Such as imagine that this imposition was not worth the noise that was made about it in those days, will do well to attend to what follows. It is strong and unanswerable. ""Tis a maxim in politics, which we readily admit as undisputed and universal, that a power, however great, when granted by law to an eminent magistrate, is not so dangerous to liberty, as an authority, however inconsiderable, which he acquires from violence and usurpation. For besides that the law always limits every power, which it bestows, the very receiving it as a concession establishes the authority whence it is derived, and preserves the harmony of the constitution. By the same right that one prerogative is assumed without law, another may also be claimed, and another, with still greater facility: while the first usurpations both serve as precedents to the following, and give force to maintain them. Hence the heroism of Hampden, who sustained the whole violence of royal prosecution, rather than pay a tax of 20s. not imposed by a Whitlock, p. 40. Rushworth, vol. IV. p. 150. |