The Republican Tradition and the Struggle for Constitutional Liberty
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by due process of law, never again to circumvent the regular courts
through court martial trials by commissions, never again to quarter soldiers in private homes without the consent of the householder, and never
again to raise money without the consent of Parliament.
There was, however, a potential loophole concerning the limitations
imposed on the King’s power to levy a tax by virtue of a longstanding
practice which permitted the throne to issue special writs calling for a tax
in time of emergency. These writs, however, had been imposed only on
the port towns of England because their purpose was to raise money for
ships of the Royal Navy. Charles I, anxious to build more ships, issued a
writ in 1636, clearly in violation of the spirit of the Petition of Right, extending the system inland—to all of the counties. There was no national
emergency, but Charles declared the existence of one anyway, and argued that the inland counties should pay because they too enjoyed the
protection of His Majesty’s Navy.
Many declined to pay, declaring that the King’s writ was a tax levied
without parliamentary authority. A member of the House of Commons,
John Hampden had vigorously opposed the arbitrary rule of the crown
for many years. In the famous Ship Money Case of 1637, he was tried for
refusing to pay the small sum of twenty shillings assessed upon his land,
claiming that Charles had no authority to declare a national emergency
on his own, and that the writ itself violated his property rights. Although
Hampden lost his case, the judges’ decision was later stricken from the
rolls. Hampden became a popular hero in both England and the American
colonies, and a symbol of resistance to oppressive taxation and arbitrary
government. A monument memorializing Hampden’s courageous stand
against the ship money tax remains to this day in his native village of
Great Kimble: ‘‘Would 20s. Have Ruined Mr. Hampden’s Fortune? No,
But The Payment of Half 20s. On the Principle it was Demanded Would
Have Made Him a Slave.’’
The Ship Money Case was cited by American lawyers in their battle
with Parliament over the latter’s taxing powers, and the constitutional
doctrine that the executive has a special prerogative, or reserved power,
to rule by decree in times of crises was rejected by the Framers. The American constitutional tradition has never embraced the doctrine of royal absolutism that emergencies create power. Unfortunately, not all nations of