of dealing in particular commodities; but when he had described the manner in which patents passed through the different offices before the great seal is put to them, he lost his recollection and resumed his seat.
Bacon, now member for Middlesex, to show what a valuable solicitor general the government had lost, made a very gallant speech, in which he maintained that “the queen, as she is our sovereign, hath both an enlarging and restraining power: for, by her prerogative, she may, 1st, set at liberty things restrained by statute law or otherwise; and 2dly, by her prerogative she may restrain things which be at liberty.” He concluded by expressing the utmost horror of introducing any bill to meddle with the powers of the crown upon the subject, and protesting that “the only lawful course was to leave it to her majesty of her own free will to correct any hardships, if any had arisen in the exercise of her just rights, as the arbitress of trade and commerce in the realm.”
This pleased her exceedingly, and even softened her ministers, insomuch that a promise was given to promote Fleming as soon as possible, and to appoint Bacon in his place. In those days there never existed the remotest notion of dismissing an attorney or solicitor general, any more than a judge; for, though they all alike held during pleasure, till the accession of the house of Stuart the tenure of all of them was practically secure. An attempt was made to induce Fleming to accept the appointment of queen’s serjeant, which would have given him precedence over the attorney general; but this failed, for he would thereby have been considered as put upon the shelf, instead of being on the highway to promotion.
Elizabeth died, leaving Bacon with no higher rank than that of queen’s counsel; and on the accession of James I., Fleming was reappointed solicitor general.
The event justified his firmness in resisting the attempt to shelve him, for in the following year, on the death of Sir William Peryam, he was appointed chief baron of the Exchequer. While he held this office, he sat along with Lord Chief Justice Popham on the trial of Guy Fawkes and the gunpowder conspirators; but he followed the useful advice for subordinate judges on such an occasion – “to look wise, and to say nothing.”
His most memorable judgment as chief baron was in what is called “The Great Case of Impositions.” This was, in truth, fully as important as Hampden’s case of ship money, but did not acquire such celebrity in history, because it was long acquiesced in, to the destruction of public liberty, whereas the other immediately produced the civil war. After an act of Parliament had passed at the commencement of James’s reign, by which an import duty of 2s. 6d. per cwt. was imposed upon currants, he by his own authority laid on an additional duty of 7s. 6d., making 10s. per cwt. Bates, a Levant merchant, who had imported a cargo of currants from Venice, very readily paid the parliamentary duty of 2s. 3d. upon it, but refused to pay more; thereupon the attorney general filed an information in the Court of Exchequer, to compel him to pay the additional duty of 7s. 6d.; so the question arose, whether he was by law compellable to do so. After arguments at the bar which lasted many days, —
Fleming, C. B., said: “The defendant’s plea in this case is without precedent or example, for he alleges that the imposition which the king has laid is ‘indebitè, injustè, et contra leges Angliæ imposita, and, therefore, he refused to pay it.’ The king, as is commonly said in our books, cannot do wrong; and if the king seize any land without cause, I ought to sue to him in humble manner (humillime supplicavit, &c.), and not in terms of opposition. The matter of the plea first regards the prerogative, and to derogate from that is a part most undutiful in any subject. Next it concerns the transport of commodities into and out of the realm, the due regulation of which is left to the king for the public good. The imposition is properly upon currants, and not upon the defendant, for upon him no imposition shall be but by Parliament.(!) The things are currants, a foreign commodity. The king may restrain the person of a subject in leaving or coming into the realm, and a fortiori, may impose conditions on the importation or exportation of his goods. To the king is committed the government of the realm; and Bracton says, ‘that for his discharge of his office God hath given him the power to govern.’ This power is double – ordinary and absolute. The ordinary is for the profit of particular subjects – the determination of civil justice; that is nominated by civilians jus privatum, and it cannot be changed without Parliament. The absolute power of the king is applied for the general benefit of the people; it is most properly named policy, and it varieth with the time, according to the wisdom of the king, for the common good. If this imposition is matter of state, it is to be ruled by the rules of policy, and the king hath done well, instead of ‘unduly, unjustly, and contrary to the laws of England.’ All commerce and dealings with foreigners, like war and peace and public treaties, are regulated and determined by the absolute power of the king. No importation or exportation can be but at the king’s ports. They are his gates, which he may open or close when and on what conditions he pleases. He guards them with bulwarks and fortresses, and he protects ships coming hither from pirates at sea; and if his subjects are wronged by foreign princes, he sees that they are righted. Ought he not, then, by the custom he imposes, to enable himself to perform these duties? The impost to the merchant is nothing, for those who wish for his commodities must buy them subject to the charge; and, in most cases, it shall be paid by the foreign grower, and not by the English consumer. As to the argument that the currants are victual, they are rather a delicacy, and are no more necessary than wine, on which the king lays what customs seemeth him good. For the amount of the imposition it is not unreasonable, seeing that it is only four times as much as it was before. The wisdom and providence of the king must not be disputed by the subject; by intendment they cannot be severed from his person. And to argue a posse ad actum, because by his power he may do ill, is no argument to be used in this place. If it be objected that no reason is assigned for the rise, I answer it is not reasonable that the king should express the cause and consideration of his actions; these are arcana regis, and it is for the benefit of every subject that the king’s treasure should be increased.”
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
One striking instance, among a thousand, both old and new, how little the so much vaunted decisions of courts virtually amount to. Decisions that are to stand, can only stand upon their own inherent rectitude and reasonableness, and not upon the authority of those who make them. —
