Constitutional History of England, Henry VII to George II. Volume 2 of 3Hallam, Henry
History
Constitutional History of England, Henry VII to George II. Volume 2 of 3
Hallam, Henry
Constitutional history -- Great Britain
Seven of the twelve judges, namely, Finch, chief justice of the common
pleas, Jones, Berkley, Vernon, Crawley, Trevor, and Weston, gave
judgment for the Crown. Brampston, chief justice of the king's bench,
and Davenport, chief baron of the exchequer, pronounced for Hampden,
but on technical reasons, and adhering to the majority on the
principal question. Denham, another judge of the same court, being
extremely ill, gave a short written judgment in favour of Hampden. But
Justices Croke and Hutton, men of considerable reputation and
experience, displayed a most praiseworthy intrepidity in denying,
without the smallest qualification, the alleged prerogative of the
Crown and the lawfulness of the writ for ship-money. They had
unfortunately signed, along with the other judges, the above-mentioned
opinion in favour of the right. For this they made the best apology
they could, that their voice was concluded by the majority. But in
truth it was the ultimate success that sometimes attends a struggle
between conscience and self-interest or timidity.[35]
The length to which this important cause was protracted, six months
having elapsed from the opening speech of Mr. Hampden's counsel to the
final judgment, was of infinite disservice to the Crown. During this
long period, every man's attention was directed to the exchequer-chamber.
The convincing arguments of St. John and Holborne, but still more the
division on the bench, increased their natural repugnance to so
unusual and dangerous a prerogative.[36] Those who had trusted to the
faith of the judges were undeceived by the honest repentance of some,
and looked with indignation on so prostituted a crew. That respect for
courts of justice, which the happy structure of our judicial
administration has in general kept inviolate, was exchanged for
distrust, contempt, and desire of vengeance. They heard the speeches
of some of the judges with more displeasure than even their final
decision. Ship-money was held lawful by Finch and several other
judges, not on the authority of precedents, which must in their nature
have some bounds, but on principles subversive of any property or
privilege in the subject. Those paramount rights of monarchy, to which
they appealed to-day in justification of ship-money, might to-morrow
serve to supersede other laws, and maintain new exertions of despotic
power. It was manifest, by the whole strain of the court lawyers, that
no limitations on the king's authority could exist but by the king's
sufferance. This alarming tenet, long bruited among the churchmen and
courtiers, now resounded in the halls of justice. But ship-money, in
consequence, was paid with far less regularity and more reluctance
than before.[37] The discontent that had been tolerably smothered was
now displayed in every county; and though the council did not flinch
in the least from exacting payment, nor willingly remit any part of
its rigour towards the uncomplying, it was impossible either to punish
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