Questions about Charles I of England

What it was "originally" doesn't really mean that it was something that by the 15th century was accepted as a kingly right, though. Laws and customs change.

not at Common Law they don't . Except by a lawful statute. That is the whole point of Common Law. English Common law has never recognised desuetude.

If you have something referring to them as the king's by right post-Magna Carta, I'd love to see it - I'm far from an expert on English laws.

Try Cunninghams History of our Taxes etc, 1761.

The customs are likewise said to be part of the inheritance of the Crowne at Common Law, that is, before any Act of Parliament was made concerning them. See Dyers Reports 43 {and he is quite authoritative}, Davis Reports 8, and the same is said in Davis 165 and Coke 12 Rep 33 " .
Even Coke!

And Magna Carta itself requires that merchants were to be able to come to buy and sell "per antiquas consuetudines". John had tried to winch up the traditional rates!. The Barons objected to the new rates, not to the levying of customs at the old rate

The way Charles used it seems to be very much against the original nature of such a thing - applying outside coastal counties and outside war time. So whatever rights Charles had to it in those contexts don't necessarily apply to his extension of it.

The Judges said they did! Which is the law.

Y' see you are exactly following the Parliamentary line. Parliament claimed "ancient right" when it was to their advantage. But when the King claimed ancient right (even when the Judges backed him up), Parliament simply claimed that King and Judges were wrong ("Because we say so, right"); and that the Kings rights were obsolete (but there's were not of course".

And Victorian historians meekly followed.
 
not at Common Law they don't . Except by a lawful statute. That is the whole point of Common Law. English Common law has never recognised desuetude.

What does desuetude have to do with it? Are you saying that no statutes had been passed or decisions made between the early 13th and the early 15th on the subject?

Try Cunninghams History of our Taxes etc, 1761.
Where might one find a copy of that?

Even Coke!

And Magna Carta itself requires that merchants were to be able to come to buy and sell "per antiquas consuetudines". John had tried to winch up the traditional rates!. The Barons objected to the new rates, not to the levying of customs at the old rate
Which doesn't answer anything on what rights were present after John.

The Judges said they did! Which is the law.
http://books.google.com/books?id=i1upIJ8E2CIC&pg=PA7&lpg=PA7&dq=ship+money+case+1637+ruling&source=bl&ots=gcdp4URPnA&sig=w4MMKkepunwoLs2znf6u9LvIAog&hl=en&sa=X&ei=uUotUsuXEYPNiwLq5ICADg&ved=0CDoQ6AEwAw#v=onepage&q=ship%20money%20case%201637%20ruling&f=false

No mention of anything about his ancient rights except in the sense of "within the royal prerogative to extend it to all of England" - which is pretty much confirming that it was NOT traditionally collected across England.

Which brings us back to Charles asserting that his authority as a king was all the relevant authority to make such a thing, rather than something as lawyerly as precedent or Common Law's assumptions.

You can't argue that statute is the only basis of law or lawfulness and that royal will as affirmed by the judges can dictate this legally regardless of statute's comments or lack thereof.

Y' see you are exactly following the Parliamentary line. Parliament claimed "ancient right" when it was to their advantage. But when the King claimed ancient right (even when the Judges backed him up), Parliament simply claimed that King and Judges were wrong ("Because we say so, right"); and that the Kings rights were obsolete (but there's were not of course".

And Victorian historians meekly followed.
If I was "Exactly following the parliamentary line", I wouldn't care whether or not the law had changed. I'd just treat it as something Parliament could overrule the judges and king on.

My problem with Charles collecting ship money has more to do with Charles ignoring that it was unpopular - and that his position de facto required having at least some level of popular support (regardless of whether de jure it had any relevance to royal authority) - and this he was a fool. Not a tyrant or otherwise leading to the Just Transformation of Government, just pursuing policy that would ultimately hurt his interests.

That's quite enough of a sin to this American monarchist that him doing anything "oppressive" or "unjust" or contrary to English Common Law would just be icing on the cake.
 
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What does desuetude have to do with it? Are you saying that no statutes had been passed or decisions made between the early 13th and the early 15th on the subject?

Just so. If they had been, they would have been on the statute rolls. Desuetude is relevant, since if John collected duties, then his successors could , absent an actual statute preventing them. For Nullum tempus occurrit regi.

Where might one find a copy of that?

I don't know where you are. A good law library should have a copy.

Which doesn't answer anything on what rights were present after John.

Well, yes, it does. For if that was the law temp John, then it was the law thereafter , until altered by statute. That is the nature of the Common Law. It doesn't change to suit temporary convenience. And John is within the time of memory.


http://books.google.com/books?id=i1upIJ8E2CIC&pg=PA7&lpg=PA7&dq=ship+money+case+1637+ruling&source=bl&ots=gcdp4URPnA&sig=w4MMKkepunwoLs2znf6u9LvIAog&hl=en&sa=X&ei=uUotUsuXEYPNiwLq5ICADg&ved=0CDoQ6AEwAw#v=onepage&q=ship%20money%20case%201637%20ruling&f=false

No mention of anything about his ancient rights except in the sense of "within the royal prerogative to extend it to all of England" - which is pretty much confirming that it was NOT traditionally collected across England.

Rex v Hampden is the authoritative case, argued before all the judges of England. Hampden was arraigned for not paying the ship money levy. He appealed to the highest court, of Exchequer Chamber. The judges found against him . That's law. Thomas's Leading Cases , 1885 p23 .

Which brings us back to Charles asserting that his authority as a king was all the relevant authority to make such a thing, rather than something as lawyerly as precedent or Common Law's assumptions.

R v Hampden is precisely that . Precedent and Common Law (Common Law makes no assumptions).

You can't argue that statute is the only basis of law and that royal will as affirmed by the judges can dictate this legally regardless of statute's comments or lack thereof.

If I was "Exactly following the parliamentary line", I wouldn't care whether or not the law had changed. I'd just treat it as something Parliament could overrule the judges and king on.

I'm not sure what you mean. But I most certainly can, and do, argue (indeed, declare) that statute is NOT the only basis of law. Most decidedly not.

And Parliament cannot, never could, "overrule the Judges " on anything. Such attempts were made from time to time (especially at this period). They always were, and are today, regarded as totally unconstitutional. If Parliament (which, remember, includes the King) do not agree with a judgement, they may enact a statute to change the law for the future. Or, of course , the King may pardon someone found guilty of an offence against the Crown. But Parliament cannot, never has (except at the swords point) and never will "overrule judges". Americans speak of this as "the separation of powers".
My problem with Charles collecting ship money has more to do with Charles ignoring that it was unpopular - and that his position de facto required having at least some level of popular support (regardless of whether de jure it had any relevance to royal authority) - and this he was a fool. Not a tyrant or otherwise impeding the Just Transformation of Government, just pursuing policy that would ultimately hurt his interests.

Oh, indeed I will agree with you in questioning the wisdom of many of Charles's deeds. That he was a foolish king is not in question. But, withal, he was the King. God's vice-regent on earth.
 
Incidentally , the Commons attitude to tunnage and poundage was very likely a reaction to Bates's Case , 1606, which was settled law, but utterly detested by the Republicans.
 
Just so. If they had been, they would have been on the statute rolls. Desuetude is relevant, since if John collected duties, then his successors could , absent an actual statute preventing them. For Nullum tempus occurrit regi.

And thus the question on statutes. Two hundred years is more than time enough for statutes to be made changing the status of tonnage and poundage.

Oh, indeed I will agree with you in questioning the wisdom of many of Charles's deeds. That he was a foolish king is not in question. But, withal, he was the King. God's vice-regent on earth.
And the king does not have infinite power - for example, Parliament having to approve tax rates (something that Rex v. Hampden does not seem to disprove - the judges seem to have considered ship money to not fall into this category instead).

Something like that looks like a situation it would take a shrewd monarch to use effectively, and one careful to avoid claiming mere fiat even when technically entitled to - a right you cannot enforce is not much of a right in the world we live in, no matter how sacrosanct under the law.

And unfortunately for Charles, Parliament by his time - rightly or otherwise - felt that the king "should" pay more attention to what they want in exchange for their cooperation with what he wanted.

I don't think that was necessarily unlawful, but it was certainly not the act of a body adverse to conflict with the king.
 
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And thus the question on statutes. Two hundred years is more than time enough for statutes to be made changing the status of tonnage and poundage.

Time enough. But, they were not so made. If they were, they would be on the statute rolls.

And the king does not have infinite power - for example, Parliament having to approve tax rates (something that Rex v. Hampden does not seem to disprove - the judges seem to have considered ship money to not fall into this category instead).

Something like that looks like a situation it would take a shrewd monarch to use effectively, and one careful to avoid claiming mere fiat even when technically entitled to - a right you cannot enforce is not much of a right in the world we live in, no matter how sacrosanct under the law.

Yes, you have it. Ship money was not a tax. Therefore, not liable to Parliamentary control. Providing, the levies were made at the ancient rates (which is what King John's barons complained of - changing the rates).

Though Bates's case might indicate that the King could arbitrarily set import duty rates. But, as was also said in Bates's Case, , whilst the law may give me a right of way through my neighbors field, will he nill he , yet I will live in better harmony if I seek his consent before I drive my cattle over it. And wiser kings than Charles had found it easier to live in harmony with the Commons than to insist on their rights. (yet, the King's Prerogative cannot fail from non-user)
 
Time enough. But, they were not so made. If they were, they would be on the statute rolls.

Which you have said already. We get that they weren't on the statue rolls.

Yes, you have it. Ship money was not a tax. Therefore, not liable to Parliamentary control. Providing, the levies were made at the ancient rates (which is what King John's barons complained of - changing the rates).
I do not envy those who had to decide what counted as "a tax".

The term in common English is sufficiently vague that legitimate non"taxes" in the legal sense we're discussing could be carelessly referred to as taxes in speech - without meaning anything worse than a slight slip of the tongue, right up until that is abused by those who want to limit the king (for any of a variety of reasons).

The vague obligation that the King as God's vice-regent is obligated to provide "justice" and "good rule" - terms with little effective legal meaning but great importance to those outside the inner circle - does not help.
 
Looking back, Charles' 'tyranny' doesn't seem particularly bad. He wanted ship money, for instance, to institute better naval protection against coastal attack (there had been a raid on the English coast by Barbary pirates which had carried people off into slavery). Nonetheless, some of his acts which seem innocuous today, were much more significant in his own day (particularly trying to force the English prayer book on the Scots), so he might have seemed much worse at the time.

Just wondering -- given his lifetime insistence on the direct link between the king and God, didn't Charles ever notice that God never seemed to give him any good ideas?
 
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