He then at enormous length went over all the authorities and acts of Parliament, contending that they all prove the king’s power to lay what taxes he pleases on goods imported, and he concluded by giving judgment for the crown.
Historians take no notice of this decision, although it might have influenced the destinies of the country much more than many of the battles and sieges with which they fill their pages. Had our foreign commerce then approached its present magnitude, Parliaments would never more have met in England, – duties on tea, sugar, timber, tobacco, and corn, imposed by royal proclamation, being sufficient to fill the exchequer, – and the experiment of ship money would never have been necessary. The chief baron most certainly misquotes, misrepresents, and mystifies exceedingly; but, however fallacious his reasoning, the judgment ought not to be passed over in silence by those who pretend to narrate our annals, for it was pronounced by a court of competent jurisdiction, and it was acted upon for years as settling the law and constitution of the country.38
King James declared that Chief Baron Fleming was a judge to his heart’s content. He had been somewhat afraid when he came to England that he might hear such unpalatable doctrines as had excited his indignation in Buchanan’s treatise, “De Jure Regni apud Scotis,” and he expressed great joy in the solemn recognition that he was an absolute sovereign. Our indignation should be diverted from him and his unfortunate son, to the base sycophants, legal and ecclesiastical, who misled them.
On the death of Popham, no one was thought so fit to succeed him as Fleming, of whom it was always said that, “though slow, he was sure;” and he became chief justice of England the very same day on which Francis Bacon mounted the first step of the political ladder, receiving the comparatively humble appointment of solicitor general.
Lord Chief Justice Fleming remained at the head of the common law rather more than six years. During that time the only case of general interest which arose in Westminster Hall was that of the Postnati. As might be expected, to please the king, he joined cordially in what I consider the illegal decision, that persons born in Scotland after the accession of James to the throne of England, were entitled to all the privileges of natural born subjects in England, although it was allowed that Scotland was an entirely separate and independent kingdom. Luckily, the question is never likely again to arise since the severance of the crown of Hanover from that of Great Britain; but if it should, I do not think that Calvin’s case could by any means be considered a conclusive authority, being founded upon such reasoning as that “if our king conquer a Christian country, its laws remain till duly altered; whereas if he conquer an infidel country, the laws are ipso facto extinct, and he may massacre all the inhabitants.”
Lord Chief Justice Fleming took the lead in the prosecution of the Countess of Shrewsbury before the Privy Council, on the charge of having refused to be examined respecting the part she had acted in bringing about a clandestine marriage, in the Tower of London, between the Lady Arabella Stuart, the king’s cousin, and Sir William Somerset, afterwards Duke of Somerset. He laid it down for law, that “it was a high misdemeanor to marry, or to connive at the marriage of any relation of the king without his consent, and that the countess’s refusal to be examined was ‘a contempt of the king, his crown and dignity, which, if it were to go unpunished, might lead to many dangerous enterprises against the state.’ He therefore gave it as his opinion that she should be fined £10,000 and confined during the king’s pleasure.”
While this poor creature presided in the King’s Bench, he was no doubt told by his officers and dependants that he was the greatest chief justice that had appeared there since the days of Gascoigne and Fortescue; but he was considered a very small man by all the rest of the world, and he was completely eclipsed by Sir Edward Coke, who at the same time was chief justice of the Common Pleas, and who, to a much more vigorous intellect and deeper learning, added respect for constitutional liberty and resolution at every hazard to maintain judicial independence. From the growing resistance in the nation to the absolute maxims of government professed by the king and sanctioned by almost all his judges, there was a general desire that the only one who stood up for law against prerogative should be placed in a position which might give greater weight to his efforts on the popular side; but of this there seemed no prospect, for the subservient Fleming was still a young man, and likely to continue many years the tool of the government.
In the midst of these gloomy anticipations, on the 15th day of October, 1613, the joyful news was spread of his sudden death. I do not know, and I have taken no pains to ascertain, where he was buried, or whether he left any descendants. In private life he is said to have been virtuous and amiable, and the discredit of his incompetency in high office ought to be imputed to those who placed him there, instead of allowing him to prose on as a drowsy serjeant at the bar of the Common Pleas, the position for which nature had intended him.
CHAPTER VI.
NICHOLAS HYDE
After the abrupt dissolution of the second Parliament of Charles I. without the grant of a supply, all redress of grievances being refused, the plan was deliberately formed of discontinuing entirely the use of popular assemblies in England, and of ruling merely by prerogative. For this purpose it was indispensably necessary that the king should have the power of imposing taxes, and the power of arbitrary imprisonment. He began to exercise both these powers by assessing sums which all persons of substance were called upon to contribute to the revenue according to their supposed ability, and by issuing warrants for committing to jail those who resisted the demand. But these measures could not be rendered effectual without the aid of the judges; for hitherto in England the validity of any fiscal imposition might be contested in a court of justice; and any man deprived of his liberty might, by suing out a writ of habeas corpus, have a deliberate judgment upon the question “whether he was lawfully detained in custody or not.” Sir Thomas Darnel, Sir Edmund Hampden, and other public-spirited men, having peremptorily refused to pay the sums assessed upon them, had been cast into prison, and were about to seek legal redress for their wrongs.
In the coming legal contest, almost every thing would depend upon the chief justice of the King’s Bench. According