114 



NOTES AND QUERIES. 



I2^i S. X. Aug. 11. '60. 



up the present which it was customary to give to 

 the Sultan at certain intervals of time. In order 

 .thatihe new company might start fairly, the king 

 directed that the sum of 5322^., being the amount 

 which he was to receive for one year from the 

 farmers to whom the new impositions had been 

 lately let, should be handed over to the company 

 as a free gift. 



The council probably thought that their diffi- 

 culties were at an end. In the course of two 

 years and a half they had either given or remitted 

 to the merchants no less than 13,322Z. They were 

 soon destined to be undeceived. John Bate, as is 

 well known, very soon after this last arrangement 

 ordered his servant to drive away a cart full of 

 currants from the water-side before it had been 

 examined by the officer of the customs. Bate.was 

 sent for to the council table, and declared that his 

 servant had only acted by his orders ; he had 

 given those orders because he considered the im- 

 position to be illegal. Upon this he was com- 

 mitted to the Marshalsea for contempt of the 

 king's officers.* 



Bate has been celebrated by all modern writers 

 as the hero of the resistance to illegal taxation. 

 It is possible that with a change of circumstances 

 his views may really have undergone a change ; 

 but when we remember that he was one of the go- 

 vernors of the old Levant company, and that he had 

 therefore for years been in the habit of levying this 

 very tax of which he now complained for the pri- 

 vate profit of himself and his fellows, we can 

 hardly be surprised that the government looked 

 with some suspicion upon this old monopolist who 

 came forward as the champion of freedom of 

 trade the moment that his pockets were touched. 



They were determined, however, to act in a 

 strictly legal way, and allowed the case to be 

 brought for trial in the Exchequer Court with as 

 little delay as possible. The judgment which 

 was there pronounced has been long given up by 

 all lawyers as utterly untenable, both in technical 

 law, and in constitutional principle. But it is one 

 thing to object to the logic of the judges : it is 

 another thing to assert, as is often done, that they 

 yielded to the temptations or the threats of the 

 government to give a judgment at variance with 

 their own opinions. 



Of such temptations or threats being made use 

 of to influence them not a single proof has ever 

 been adduced. The details which I have now 

 given will, I think, make us pause before we be- 

 lieve that they were used by a government which 

 had been peculiarly anxious to deal considerately 

 with the merchants, and which, by requiring legal 

 opinions upon every step which it took, showed 

 that it was desirous not to overstep the limits of 

 the law. 



But, it is said, the judges were removeable at 



• S. P. O., Domestic, Memoranda, April lltb, 1606, 

 vol. XX. 25. 



the king's pleasure. No doubt they were in 

 theory ; but were they so in practice ? I believe, 

 and, if I am wrong, Mr. Foss will correct me, 

 that no single judge had ever lost his place since 

 the accession of Elizabeth.* Men are influenced 

 much more by the facts than by the theory of 

 their position. 



When their conduct is contrasted with that of 

 those judges who, at the beginning of Elizabeth's 

 reign, delivered, in a somewhat similar ease,' a 

 judgment not sufficiently favourable to the pre- 

 rogative to allow of its being quoted by the govern- 

 ment, it seems as if the true solution of the difficulty 

 would be apparent. 



The judges who were unfavourable to the pre- 

 rogative had never heard of such a claim being 

 put forward. They had grown up without ever 

 hearing it once mentioned. It struck them as a 

 novelty, and under that impression they read their 

 law-books. 



The judges in 1607 had always been accus- 

 tomed to see customs collected without authority 

 of parliament. Those customs were not, indeed, 

 of any great amount, but they were of sufficient 

 importance to make them look upon the opinion 

 of the opponents of the prerogative as a novelty : 

 and in the eyes of judges all novelties are errors. 



It is remarkable that Hakewill, who, in 1610, 

 was one of the ablest opponents of the claims of 

 the crown, declared in the House of Commons 

 that when he heard the judgment delivered in the 

 Exchequer Court, he accepted It as good law ; and 

 that Coke, who was afterwards distinguished by 

 his advocacy of the rights of parliament, gave his 

 opinion that although it was illegal to lay such 

 impositions for the sake of raising the revenue, 

 yet for the regulation of trade it was lawful for 

 the king to impose, and in particular that this 

 imposition was legal.f 



That Coke's opinion had at an earlier period 

 gone even beyond this is probable from a paper In 

 the Irish Series in the S. P. O. In 1586 a duty 

 upon wine had been granted by tlie Irish statute 

 28 Eliz. c. 4. It was enacted that this grant should 

 be in force for ten years only. Nevertheless, 

 when the ten years were past, the government 

 continued to levy the duty. About 1604, the 

 city of Dublin sent over to England a collec- 

 tion of grievances. In the answ^er sent to them 

 occurs the following clause : — 



" For the impost of wines his ma*'« maj' impose the same 

 w'^out anj' statute." J 



* The only possible exception is the case of Chief 

 Baron Manwood, who was in 1592 called in question, not 

 for any political offence, but upon complaint that he had 

 grossly misconducted himself in the exercise of his oflSce. 

 It is not known whether he actuall}' lost his place. At 

 all events he died before his successor was appointed. — 

 Foss, V. 321. 



+ Reports, xii. 33. 



X Undated, but supposed by Mr, Hamilton, the author 

 of the MS. Calendar, to have been written in 1604. 



