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discourage all opposition, had proposed this question to the iudges: - Whether, in a case of necessity, for the defence of the kingdom, he might not impose this taxation; and whether he were not sole judge of the necessity." These guardians of law and liberty replied, with great complaisance, " that in a case of necessity he might impose that taxation, and that he was sole judge of the necessity.”*
Hambden had been rated at twenty shillings for an estate which he possessed in the county of Buckingham: yet, notwithstanding this declared opinion of the judges, notwithstanding the great power and sometimes rigorous maxims of the crown, notwithstanding the small prospect of relief from parliament, he resolved, rather than tamely submit to so illegal an imposition, to stand a legal prosecution, and expose himself to all the indignation of the court. The case was argued during twelve days, in the exchequer chamber, before all the judges of England; and the nation regarded, with the utmost anxiety, every circumstance of this celebrated trial. The event was easily foreseen: but the principles, and reasonings, and behavior of the parties engaged in the trial, were much canvassed and inquired into ; and nothing could equal the favor paid to the one side, except the hatred which attended the other.
It was urged by Hambden's counsel, and by his partisans in the nation, that the plea of necessity was in vain introduced into a trial of law ; since it was the nature of necessity to abolish all law, and, by irresistible violence, to dissolve all the weaker and more artificial ties of human society. Not only the prince, in cases of extreme distress, is exempted from the ordinary rules of administration : all orders of men are then levelled ; and any individual may consult the public safety by any expedient which his situation enables him to employ. But to produce so violent an effect, and so hazardous to every community, an ordinary danger or difficulty is not sufficient ; much less a necessity which is merely fictitious and pretended, Where the peril is urgent and extreme, it will be palpable to every member of the society ; and though all ancient rules of government are in that case abrogated, men will readily, of themselves, submit to that irregular authority which is exerted for their preservation. But what is there in common between such suppositions and the present condition of the nation? England enjoys a profound peace with all her neigk.
* Rush. vol. ii. p. 355. Whitlocke, p. 24.
bors; and, what is more, all her neighbors are engaged furious and bloody wars among themselves, and by their mutual enmities further insure their tranquillity. The very writs themselves, which are issued for the levying of ship money, contradict the supposition of necessity, and pretend oniy that the seas are infested with pirates ; a slight and temporary inconvenience, which may well await a legal supply from parliament. The writs likewise allow several months for equipping the ships; which proves a very calm and deliberate species of necessity, and one that admits of delay much. beyond the fortune It is strange, too, that an extreme necessity, which is always apparent, and usually comes to a sudden crisis, should now have continued without interruption for near four years, and should have 'remained during so long a time invisible to the whole kingdom. And as to the pretension, that the king is sole judge of the necessity, what is this but to subject all the privileges of the nation to his arbitrary will and pleasure ? To expect that the public will be convinced by such reasoning, must aggravate the general indignation, by adding to violence against men's persons, and their property, so cruel a mockery of their understanding.
In vain are precedents of ancient writs produced: these writs, when examined, are only found to require the seaports, sometimes at their own charge, sometimes at the charge of the counties, to send their ships for the defence of the nation. Even the prerogative which empowered the crown to issue such writs is abolished, and its exercise almost entirely discontinued from the time of Edward III. ; * and all the authority which remained, or was afterwards exercised, was to press ships into the public was wide are these precedents from a power of obliging the people, at their own charge, to build new ships, to victual and pay them, for the public ; nay, to furnish money to the crown for that purpose ?
What security either against the further extension of this claim, or against diverting to other purposes he public money so levied? The plea of necessity would warrant any other taxation as well as that of ship money : wherever any difficulty shall occur, the administration, instead of endeavoring to elude or overcome it by gentle and prudent nesures, will
instantly represent it as a reason for infringing
* State Trials, vol. V. p. 245, 255.
all ancient laws and institutions: and if such maxims and sucha practices prevail, what has become of national liberty? What authority is left to the Great Charter, to the statutes, and to the very petition of right, which in the present reign had been so solemnly enacted by the concurrence of the whole legislature ?
The defenceless condition of the kingdom while unprovided with a navy; the inability of the king, from his established revenues, with the utmost case and frugality, to equip and maintain one; the impossibility of obtaining, on reasonable terms, any voluntary supply from parliament; all these are reasons of state, not topics of law. If these reasons appear to the king so urgent as to dispense with the legal rules of government, let him enforce his edicts by his court of star chamber, the proper instrument of irregular and absolute power, not prostitute the character of his judges by a decree which is not, and cannot possibly be legal. By this means, the boundaries, at least, will be kept more distinct between ordinary law and extraordinary exertions of prerogative; and men will know, that the national constitution is only suspended during a present and difficult emergence, but has not undergone a total and fundamental alteration.
Notwithstanding these reasons, the prejudiced judges, four* excepted, gave sentence in favor of the crown. Hambden, however, obtained by the trial the end for which he had so generously sacrificed his safety and his quiet: the people were roused from their lethargy, and became sensible of the danger to which their liberties were exposed. These national questions were canvassed in every company; and the more they were examined, the more evidently did it appear to many, that liberty was totally suhverted, and an unusual and arbitrary authority exercised over the kingdom. Slavish principles they said, concur with illegal practices; ecclesiastical tyranny gives aid to civil usurpation; iniquitous taxes are supp) tod by arbitrary punishments; and all the privileges of the nation, transmitted through so many ages, secured by so many laws, and purchased by the blood of so many heroes and patriots, now lie prostrate at the feet of the monarch. What though public peace and national industry increased the commerce and opulence of the kingdom? This advantage was temporary, and due alone, not to any encouragement given by the crown,
* See State Trials, article, Ship Money, which contains the speecher of four judges in favor of Hambden.
but to ine spirit of the English, the remains of their ancient freedorn. What though the personal character of the king, amidst all his misguided counsels, might merit indulgence, or even praise ?' He was but one man; and the privileges of the people, the inheritance of millions, were too valuable to be sacrificed to his prejudices and mistakes. Such, or more severe, were the sentiments promoted by a great party in the nation: no excuse on the king's part, or alleviation, how reasonable soever, could be hearkened to or admitted : and to redress these grievances, a parliament was impatiently longed for; or any other incident, however calamitous, that might secure the people against these oppressions which they felt, or the greater ills which they apprehended from the combined encroachments of church and state.
(1637.] THE grievances under which the English labored, when considered in themselves, without regard to the constitution, scarcely deserve the name ; nor were they either burdensome on the people's properties, or anywise shocking to the natural humanity of mankind. Even the imposition of ship money, independent of the consequences, was a great and evident advantage to the public, by the judicious use which the king made of the money levied by that expedient. And though it was justly apprehended, that such precedents, if patiently submitted to, would end in a total disuse of parliaments, and in the establishment of arbitrary authority, Charles dreaded no opposition from the people, who are not commonly much affected with consequences, and require some striking motive to engage them in a resistance of established govern ment. All ecclesiastical affairs were settled by law and uninterrupted precedent; and the church was become a considerable barrier to the power, both legal and illegal, of the crown. Peace too, industry,.commerce, opulence ; nay, even justice and lenity of administration, notwithstanding some very few exceptions; all these were enjoyed by the people; and every other blessing of government, except liberty, or rather the present exercise of liberty and its proper security.* It seemed probable, therefore, that affairs might long have continued on the same footing in England, had it not been for the neighborhood of Scotland; a country more turbulent, and less disposed to submission and obedience. It was thence the commotions first arose ; and is therefore time for us to return thither, and to give an account of the state of affairs in that kingdom.
Though the pacific, and not unskilful government of James, and the great authority which he had acquired, had much allayed the feuds among the great families, and had estabe
Clärendon, p. 74, 75. May, p. 18. Warwick, p. 62.