Landmark Cases in Revenue Law

John Snape, Dominic de Cogan, John Snape, Dominic de Cogan

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509912254
• Edition: 1
• Topic: Law
• Subtopic: Tax Law
• Index: Law

In an important addition to the series, this book tells the story of 20 leading revenue law cases. It goes well beyond technical analysis to explore questions of philosophical depth, historical context and constitutional significance. The editors have assembled a stellar team of tax scholars, including historians as well as lawyers, practitioners as well as academics, to provide a wide range of fresh perspectives on familiar and unfamiliar decisions. The whole collection is prefaced by the editors' extended introduction on the peculiar significance of case-law in revenue matters. This publication is a thought provoking and engaging showcase of tax writing that is accessible equally to specialists and non-specialists.

1

Case of Ship-Money (R v Hampden) (1637)

Prerogatival Discretion in Emergency Conditions

MICHAEL J BRADDICK

MANY OF THE instruments of rule used by Charles I were subsequently abolished (not least of course, albeit temporarily, the monarchy, House of Lords and the Church of England), a fact which has done little for his posthumous reputation. Ship-money was among them, abolished by statute in 1641¹ and never revived. In fact, the system of public finance with which it was associated was swept away in the crisis of the mid-seventeenth century, with the result that ship-money has subsequently seemed an anachronism, a doomed attempt to make the existing arrangements work and merely a prelude to the construction of something better. Part of the charge sheet against Charles has been, in effect, that he tried it at all. As a result, ship-money has had few defenders among modern historians, usually seen as an outdated expedient employed by a king with flawed political judgement.

However, in 1637 Charles I’s judiciary had twice given ship-money a clean bill of health: first in an extra-judicial opinion and then in opinions in a prominent test case, R v Hampden.² As we will see most of the judges gave unambiguous views on very large constitutional issues about necessity, the collective good and individual property rights but were more divided in their rulings on more narrowly defined questions about the writ for collection and the means of its enforcement. In 1641, when those big questions were fully in play in very different circumstances, ship-money was abolished by Parliament, apparently delivering a damning verdict on the judiciary. However, although the judges were condemned for having failed to settle these questions in a reasonable way the parliamentary Act did not give any kind of answer at all to those same questions: nonetheless the condemnation of the judges as tools of a corrupt administration, or at least as craven or time-serving in their opinions, has been very influential.

I.THE FISCAL CONTEXT AND THE KING’S CASE

The arguments in R v Hampden belong to a world of royal finance that is now lost. Charles I inherited a financial system in which the king was expected to ‘live of his own’. He was possessed of lands, revenues and rights to demand service of various kinds, and these were intended to supply the ordinary needs of government. He could resort to other sources for extraordinary purposes – notably parliamentary taxation, but also rights to demand service in extraordinary conditions. Overall, therefore, parliamentary taxation formed a small part of the overall income of the Crown – just one component of the extraordinary revenues – and was probably in decline during the first three decades of the seventeenth century.³

This set of arrangements had been under pressure during the Tudor and Stuart periods. Inflation had reduced the value of many Crown assets which, in any case, had to be managed in a way that met expectations about benevolent paternal rule. So, for example, the Crown lands yielded far less than their market value because the Crown was hampered by sticky rents from long leases and also sometimes by a reluctance to extract the market rate from its tenants.⁴ Other assets had simply been neglected – the boundaries of royal forests had been encroached upon and the Crown had simply lost track of some of what it owned. The latter situation was summed up in the need to employ the excitingly named ‘hunters after concealed lands’.

Inflation and inattention were not the only difficulties, however. If we think of this as a royal estate, with revenues and services attached, we can see how the Crown, like other landlords, was increasingly keen to commute services into payments. A good example of that is purveyance – the legal right enjoyed by the King to demand supplies for the royal court at the King’s price rather than the market price. From the late sixteenth century onwards, this was increasingly commuted into a simple cash payment of the difference between the King’s price and market price.⁵

The pressure to raise cash rather than impose service was more marked in military matters, as military skills and equipment became more specialised. At root, the adoption of hand-held gunpowder weapons was transforming land battles, while in the early seventeenth century the possibilities for arming ships led to a much sharper separation of merchant and military ship design. On land, troops needed specialist equipment, training in its use and to be thoroughly drilled to enable effective collective action. The result was the selection of trained bands from the general muster, and for many people the duty of service in the militia was commuted into a payment to support the trained band. These were also years of more or less incessant warfare: one estimate is that during the sixteenth century there were 34 European wars, lasting on average 1.6 years and, during the seventeenth century, 29 wars each lasting 1.7 years. In effect there was a war somewhere in Europe 95 per cent of the time in the sixteenth century, and 94 per cent of the time in the following century. As Elizabeth’s privy council had put it, ‘all forrain princes, beinge neighbours to this Realme be in armes, and the manner of the present warres doe differ from warres in former tymes’.⁶

At sea the crucial development was the evolution of broadside fire. In the sixteenth century it had been possible to convert a merchant ship for war by mounting a gun at the bow. It would recoil along the centre of the ship, posing no particular challenge to its balance, and did not take up cargo space. Many long-distance merchantmen had some capacity to defend themselves in any case. The bow-mounted gun was used to fire directly ahead as the ship bore down on the enemy. The development of the broadside had dramatic implications for ship design – weakening the hull with multiple gun-ports, posing greater problems of stability and taking away cargo space. The broadside however was far more effective, and there was an increasing advantage to those powers with specialised military vessels. The ship-money fleets were developed as this process accelerated and one of the ornaments of the Royal Fleet was to be the Sovereign of the Seas – completely unsuited to mercantile use (and also to military use, as it happens, after Charles I elaborated on the original designs). The fleets mobilised against the Spanish Armada in 1588 and during the subsequent mobilisations of the 1590s had consisted largely of requisitioned merchant ships adapted for the purpose. From 1650 onwards, the state had a large fleet of specialised naval vessels.⁷

In this context, ship-money was a plausible expedient, taking an established right to demand service in the form of provision of a ship and commuting that into a payment to support the building of a ship fit for modern purposes. It was analogous to the commutation of purveyance and to developments in the militia; and like the militia promised to allow the King to secure a military resource fit for the new purposes from his ‘own’ rights.

That was not the only way to see it, however. First, the precedents supported the use of ship-money in emergency conditions but during the 1630s it came to resemble an infinitely recurring annual charge, of potentially unlimited scale, imposed as long as the King perceived the kingdom to be in danger. This was the key issue in responses to the judicial opinions of 1637, as we will see. More generally, though, many of the landed classes, at least if the opinions expressed in Parliament are any guide, thought the whole problem was royal extravagance, not rising costs. Parliaments urged active engagement in European wars but balked at the predicted costs, and in the meantime gave vent to many grievances about strategies the Crown developed to live of its own. Reluctant to grant extraordinary revenues on the wished-for scale, Parliament was also highly critical of attempts to improve ordinary revenues or to enforce the Crown’s other legal rights.⁸

An attempt had been made to cut through this in 1610, with the Great Contract, that would have granted recurring parliamentary taxation intended to support the ordinary expenses of the Crown in return for a renunciation of unpopular existing rights, duties and rates. The settlement was undermined by a lack of faith that the Crown could be trusted with money and this persisted into the 1620s but was not accompanied by a similar proposal for a new financial arrangement. Instead, during the frequent parliamentary meetings of that decade James I and then Charles were met with relatively stingy extraordinary supply, demands for active warfare and for a restriction of ordinary expenditure. Coupled with increasingly sharp criticism of Charles I’s religious policy and of his choice of favourites as advisers, by 1629 Parliament had come to seem more trouble than it was worth. It did not offer a solution to either the ordinary or extraordinary revenue problems, and the inadequate ‘supply’ came at the expense of sometimes trenchant criticism of royal government.

II.SHIP-MONEY DURING THE 1630S

Ship-money derived from an earlier provision for port towns to supply a ship for royal service in times of danger. Ports benefited particularly from the defence against threats at sea, and their service in this sense was justified by their direct benefit from it. During the 1590s, in the aftermath of the Armada, it had been a regular feature of life, and it was used again during the 1620s, when England renewed engagement in wider European conflicts. There had been a proposal in 1628 to make it a national levy on the grounds that the whole kingdom benefited from naval defence, not just the port towns, although the proposal was dropped. Following the failures of the Parliaments of the 1620s it was deployed rather differently, with serious political consequences.⁹

Ship-money in its fatally controversial form took shape after 1634. It was raised initially from the port towns, but as a compulsory payment, levied by the sheriff and enforced by distraint. In 1635 it was extended inland, and this departure from precedent was recognised to be significant. In June that year Lord Keeper Coventry had included the enforcement of ship-money as a priority in his charge to the Assize judges, noting that ‘Christendom is full of war, and there is nothing but rumours of war’, that defence of the kingdom in such circumstances was clearly a royal duty, and for the ‘general good of his kingdom’. ‘[S]ince … all the kingdom is interested both in the honour, safety and profit’, he continued, ‘it is just and reasonable that they should all put to their helping hands’.¹⁰

Nonetheless, at this point the initiative had several key features that might attract legal attention: whether it could indeed be raised from inland counties; under what circumstances; and how it could be enforced. On the first point, Charles had received very encouraging legal opinion in November 1635: ‘when the good and safety of the kingdom in general is concerned, and the whole kingdom in danger (of which His Majesty is the only judge), then the charge of the defence ought to be borne by all the realm in general’.¹¹ This view was not publicised for a full year after it was made.¹²

Ship-money in this new form was pretty clearly less popular than other rates and taxes, being as far as we can tell more prone to rating disputes and its officers more subject to legal challenge for their actions. Respectable rates of return were achieved until its final year, but it was dogged by delays and relatively slow payment.¹³ The greater difficulty of collection was partly a reflection of the fact that the ratings were more contestable: it rested on ratings made by individual sheriffs working without precedents or the commissions that apportioned some other burdens. There remains a sneaking suspicion however that rating problems were a symptom of a more serious malaise. Simonds D’Ewes, a Suffolk gentleman with detailed legal and antiquarian knowledge, certainly had profound concerns about the legality of the levy, although he didn’t say anything publicly. When he was eventually put in charge of collecting ship-money he made some show of trying to raise it but threw up his hands in the face of the scale of the administrative problems, perhaps a little easily defeated by these difficulties.¹⁴ Certainly in this case, what D’Ewes recorded privately was far more critical of the basic legality of the levy than what he said publicly, and this may have been true more generally.¹⁵

Charles sought to clear the way for ship-money in February 1637, a strong hint one would think that his government suspected that more was at stake in this rash of ap...