Volume I Part 25 (1/2)

[519] This case I have had the good fortune to discover in one of Mr.

Hargrave's MSS. in the Museum, 132, fol. 66. It is in the handwriting of Chief Justice Hyde (temp. Car. I.), who has written in the margin: ”This is the report of a case in my lord Dyer's written original, but is not in the printed books.” The reader will judge for himself why it was omitted, and why the entry of the former case breaks off so abruptly.

”Philip and Mary granted to the town of Southampton that all malmsy wines should be landed at that port under penalty of paying treble custom. Some merchants of Venice having landed wines elsewhere, an information was brought against them in the exchequer (1 Eliz.), and argued several times in the presence of all the judges. Eight were of opinion against the letters patent, among whom Dyer and Catlin, chief justices, as well for the princ.i.p.al matter of restraint in the landing of malmsies at the will and pleasure of the merchants, for that it was against the laws, statutes, and customs of the realm (Magna Charta, c.

30; 9 E. 3; 14 E. 3; 25 E. 3, c. 2; 27 E. 3; 28 E. 3; 2 R. 2, c. 1, and others), as also in the a.s.sessment of treble custom, _which is merely against the law_; also the prohibition above said was held to be private, and not public. But Baron Lake _e contra_, and Browne J.

_censuit deliberandum_. And after, at an after meeting the same Easter term at Serjeants' Inn, it was resolved as above. And after by parliament (5 Eliz.) the patent was confirmed and affirmed against aliens.”

[520] Bacon, i. 521.

[521] Hale's _Treatise on the Customs_, part 3; in Hargrave's _Collection of Law Tracts_. See also the preface by Hargrave to Bates's case, in the _State Trials_, where this most important question is learnedly argued.

[522] He had previously published letters patent, setting a duty of six s.h.i.+llings and eight-pence a pound, in addition to two-pence already payable, on tobacco; intended no doubt to operate as a prohibition of a drug he so much hated. Rymer, xvi. 602.

[523] _State Trials_, ii. 371.

[524] Hale's _Treatise on the Customs_. These were perpetual, ”to be for ever hereafter paid to the king and his successors, on pain of his displeasure.” _State Trials_, 481.

[525] Journals, 295, 297.

[526] Mr. Hakewill's speech, though long, will repay the diligent reader's trouble, as being a very luminous and masterly statement of this great argument. _State Trials_, ii. 407. The extreme inferiority of Bacon, who sustained the cause of prerogative, must be apparent to every one. _Id._ 345. Sir John Davis makes somewhat a better defence; his argument is, that the king may lay an embargo on trade, so as to prevent it entirely, and consequently may annex conditions to it. _Id._ 399. But to this it was answered, that the king can only lay a temporary embargo, for the sake of some public good, not prohibit foreign trade altogether.

As to the king's prerogative of restraining foreign trade, see extracts from Hale's MS. Treatise de Jure Coronae, in Hargrave's Preface to _Collection of Law Tracts_, p. x.x.x. etc. It seems to have been chiefly as to exportation of corn.

[527] Aikin's _Memoirs of James I._ i. 350. This speech justly gave offence. ”The 21st of this present (May 1610),” says a correspondent of Sir Ralph Winwood, ”he made another speech to both the houses, but so little to their satisfaction that I hear it bred generally much discomfort to see our monarchical power and royal prerogative strained so high, and made so transcendent every way, that if the practice should follow the positions, we are not likely to leave to our successors that freedom we received from our forefathers; nor make account of anything we have, longer than they list that govern.” Winwood, iii. 175. The traces of this discontent appear in short notes of the debate. Journals, p. 430.

[528] Journals, 431.

[529] _Somers Tracts_, vol. ii. 159; in the Journals much shorter.

[530] These canons were published in 1690 from a copy belonging to Bishop Overall, with Sancroft's imprimatur. The t.i.tle-page runs in an odd expression: ”Bishop Overall's Convocation-Book concerning the Government of G.o.d's Catholic Church and the Kingdoms of the whole World.” The second canon is as follows: ”If any man shall affirm that men at the first ran up and down in woods and fields, etc., until they were taught by experience the necessity of government; and that therefore they chose some among themselves to order and rule the rest, giving them power and authority so to do; and that consequently all civil power, jurisdiction, and authority, was first derived from the people and disordered mult.i.tude, or either is originally still in them, or else is deduced by their consent naturally from them, and is not G.o.d's ordinance, originally descending from him and depending upon him, he doth greatly err.”--P. 3.

[531] c.o.ke's 2nd Inst.i.tute, 601; Collier, 688; _State Trials_, ii. 131.

See too an angry letter of Bancroft, written about 1611 (Strype's _Life of Whitgift_, Append. 227), wherein he inveighs against the common lawyers and the parliament.

[532] Cowell's _Interpreter, or Law Dictionary_; edit. 1607. These pa.s.sages are expunged in the later editions of this useful book. What the author says of the writ of prohibition, and the statutes of praemunire, under these words, was very invidious towards the common lawyers, treating such restraints upon the ecclesiastical jurisdiction as necessary in former ages, but now become useless since the annexation of the supremacy of the Crown.

[533] Commons' Journals, 339, and afterwards to 415. The authors of the _Parliamentary History_ say there is no further mention of the business after the conference, overlooking the most important circ.u.mstance, the king's proclamation suppressing the book, which yet is mentioned by Rapin and Carte, though the latter makes a false and disingenuous excuse for Cowell. Vol. iii. p. 798. Several pa.s.sages concerning this affair occur in Winwood's _Memorials_, to which I refer the curious reader. Vol.

iii. p. 125, 129, 131, 136, 137, 145.

[534] Winwood, iii. 123.

[535] _Somers Tracts_, ii. 162; _State Trials_, ii. 519.

[536] The court of the council of Wales was erected by statute 34 H. 8, c. 26, for that princ.i.p.ality and its marches, with authority to determine such causes and matters as should be a.s.signed to them by the king, ”as heretofore hath been accustomed and used;” which implies a previous existence of some such jurisdiction. It was pretended, that the four counties of Hereford, Worcester, Gloucester, and Salop were included within their authority, as marches of Wales. This was controverted in the reign of James by the inhabitants of these counties, and on reference to the twelve judges, according to Lord c.o.ke, it was resolved that they were ancient English s.h.i.+res, and not within the jurisdiction of the council of Wales; ”and yet,” he subjoins, ”the commission was not after reformed in all points as it ought to have been.” Fourth Inst. 242. An elaborate argument in defence of the jurisdiction may be found in Bacon, ii. 122. And there are many papers on this subject in Cotton MSS. Vitellius, C. i. The complaints of this enactment had begun in the time of Elizabeth. It was alleged that the four counties had been reduced from a very disorderly state to tranquillity by means of the council's jurisdiction. But, if this were true, it did not furnish a reason for continuing to exclude them from the general privileges of the common law, after the necessity had ceased. The king, however, was determined not to concede this point.

Carte, iii. 794.

[537] Commons' Journals for 1610, _pa.s.sim_; Lords' Journals, 7th May, _et post_; _Parl. Hist._ 1124, _et post_; Bacon, i. 676; Winwood, iii.

119, _et post_.

[538] It appears by a letter of the king, in Murden's _State Papers_, p.

813, that some indecent allusions to himself in the House of Commons had irritated him. ”Wherein we have misbehaved ourselves, we know not, nor we can never yet learn; but sure we are, we may say with Bellarmin in his book, that in all the lower houses these seven years past, especially these two last sessions, Ego pungor, ego carpor. Our fame and actions have been tossed like tennis-b.a.l.l.s among them, and all that spite and malice durst do to disgrace and inflame us hath been used. To be short, this lower house by their behaviour have perilled and annoyed our health, wounded our reputation, emboldened all ill-natured people, encroached upon many of our privileges, and plagued our people with their delays. It only resteth now, that you labour all you can to do that you think best to the repairing of our estate.”