812 North and Weingast court of wards,the Crown managed the estates which had passed to minors.These were often openly run for the advantage of the Crown, not infrequently extracting the full value of the estate.1 The Crown put dispensations''up for sale,that is,the use of its powers to allow specific individuals to dispense with a specific law or restriction."Sale' of this power was often used in conjunction with the enforcement or threat of enforcement of regulations that had not been enforced for years.At times the Crown simply seized the property of citizens.An especially egregious example occurred in 1640 when "the government seized f130,000 of bullion which private merchants had placed in the Tower for safety,causing numerous bankruptcies."20 This clash of interests between the king on the one hand and wealth holders and tax payers on the other was a major reason why the Crown failed to obtain grants from Parliament.In exchange for grants,Parlia- ment demanded conditions and limits on the king's power that he was unwilling to accept.Parliamentary interests thereby exacerbated the problem they were attempting to eliminate.Withholding funds wors- ened the Crown's fiscal problems and intensified its search for alterna- tive sources of revenue. Institutional Basis of Stuart Policymaking Both Parliament and the common law courts fought the Crown's use of monopolies and other changes in rights in its search for revenue. Parliament regularly presented the king with"grievances,''lists of problems caused by the king that it wanted addressed.21 Grievances were part of a larger bargaining process in which Parliament attempted, in exchange for revenue,to limit the Crown's power and its use of policymaking to expropriate wealth.Because of ever-present revenue problems,the Stuarts often called on Parliament for additional revenue. Parliamentary interests regularly demanded that in exchange for reve- nue the Crown respect traditional property rights and institutions:for example,that it cease declaring new monopolies.The Crown,in turn, was evidently unwilling to accept these restrictions and hence Parlia- ment was often dissolved without having come to an agreement with the Crown.22 Attempts were also made to prevent the Crown's using the law to further its objectives.In 1624 Parliament passed the much-noted Statute 19Ibid,p.103. 20 C.Hill,Century of Revolution,p.103. 21 For details,see Notestein,The Winning of the Initiative. 22 Part of the Crown's motivation appears to have been a desire to move toward the absolutism prevalent on the continent,notably in France and Spain.As Kenyon observes,at the onset of the seventeenth century,"any further adjustments [in the balance of power between Parliament and the Crown]were likely to be at the expense of Parliament"(Kenyon,Stuart England,p.43).It almost succeeded.Hirst describes debates in Parliament in which the participants were explicitly concerned with this possibility (Hirst,Authoriry and Confict,chap.3)
812 North and Weingast court of wards, the Crown managed the estates which had passed to minors. These were often openly run for the advantage of the Crown, not infrequently extracting the full value of the estate.19 The Crown put "dispensations" up for sale, that is, the use of its powers to allow specific individuals to dispense with a specific law or restriction. "Sale" of this power was often used in conjunction with the enforcement or threat of enforcement of regulations that had not been enforced for years. At times the Crown simply seized the property of citizens. An especially egregious example occurred in 1640 when "the government seized £130,000 of bullion which private merchants had placed in the Tower for safety, causing numerous bankruptcies. "20 This clash of interests between the king on the one hand and wealth holders and tax payers on the other was a major reason why the Crown failed to obtain grants from Parliament. In exchange for grants, Parliament demanded conditions and limits on the king's power that he was unwilling to accept. Parliamentary interests thereby exacerbated the problem they were attempting to eliminate. Withholding funds worsened the Crown's fiscal problems and intensified its search for alternative sources of revenue. Institutional Basis of Stuart Policymaking Both Parliament and the common law courts fought the Crown's use of monopolies and other changes in rights in its search for revenue. Parliament regularly presented the king with "grievances," lists of problems caused by the king that it wanted addre~sed.~' Grievances were part of a larger bargaining process in which Parliament attempted, in exchange for revenue, to limit the Crown's power and its use of policymaking to expropriate wealth. Because of ever-present revenue problems, the Stuarts often called on Parliament for additional revenue. Parliamentary interests regularly demanded that in exchange for revenue the Crown respect traditional property rights and institutions: for example, that it cease declaring new monopolies. The Crown, in turn, was evidently unwilling to accept these restrictions and hence Parliament was often dissolved without having come to an agreement with the Crown.22 Attempts were also made to prevent the Crown's using the law to further its objectives. In 1624 Parliament passed the much-noted Statute l9 Ibid., p. 103. 20 C. Hill, Century of Revolution, p. 103. 21 For details, see Notestein, The Winning of the Initiative. 22 Part of the Crown's motivation appears to have been a desire to move toward the absolutism prevalent on the continent, notably in France and Spain. As Kenyon observes, at the onset of the seventeenth century, "any further adjustments [in the balance of power between Parliament and the Crown] were likely to be at the expense of Parliament" (Kenyon, Stuart England, p. 43). It almost succeeded. Hirst describes debates in Parliament in which the participants were explicitly concerned with this possibility (Hirst, Authority and ConJlict, chap. 3)
English Institutional Evolution 813 of Monopolies prohibiting the use of patents to grant monopolies to existing businesses in exchange for revenue.In this manner it attempted to assert the traditional rights of secure property.In addition common law courts handed down the famous "Case of Monopolies''in 1601, making the Crown's use of monopolies illegal in common law.The Crown,however,was able to evade these restrictions.While these evasions often took forms of questionable legality,so long as the Crown did not depend on Parliament for revenue,it was able to use them in practice. Understanding the subsequent institutional reaction to these royal policies requires that we study the institutional means by which the Crown ran the government.For our purposes three elements of the royal powers and institutions were central to the Crown's success. First,a major source of power for the Crown was the royal prerogative, by which the Crown issued proclamations or royal ordinances.By this means it could issue new rules;that is,it had quasi-legislative powers without recourse to Parliament.Crown rules were enforced,not through the common law court system,but through the prerogative courts and included the power to suspend laws and to dispense with laws for specific individuals.23 Second,the Star Chamber,combining legislative,executive,and judicial powers,played a key role.On issues concerning prerogative, the Star Chamber had come to have final say,and could in certain circumstances reverse judgments against the Crown.24 Finally,since the Crown was personally responsible for day-to-day government operations,it paid the judges,who served at its pleasure. Increasingly the Stuarts used their power over judges to influence their judgments.Judges-Chief Justices Coke (1616/17)and Crew (1627) were openly fired for ruling against the Crown.Ultimately this tactic produced judges who by and large supported the Crown.25 The effect of these institutions was to combine in the Crown execu- tive,legislative,and judicial powers,limiting external institutional checks.While royal proclamations did not have the same legal status as an act of Parliament,they were enforced directly through the common law courts.While these courts did not have to go along with the king-and often did not-ultimately he won through the higher court, the Star Chamber.Thus,while the common law was often against the 23 Dispensations for individuals,like most powers under the Stuarts,were put up for sale (Maitland,Constitutional History,pt.IV). 24 The Star Chamber,in which the most egregious examples of arbitrary power occurred, became a regular feature of Stuart England.See Maitland,Constitutional History,and Friedrich A. Hayek,Constitution of Liberty (Chicago,1960),chap.11. 25 Coke's dismissal,"the first of a judge in over thirty years,ushered in a period of increasing royal pressure on the bench:in Charles's reign two other chiefjustices,Crew and Heath,and one chief baron of the exchequer court,Walter,were to follow Coke"(Hirst,Authority and Conflict, p.121).See also Hayek's excellent and extensive discussion,in Constitution of Liberty,chap.11
English Institutional Evolution 813 of Monopolies prohibiting the use of patents to grant monopolies to existing businesses in exchange for revenue. In this manner it attempted to assert the traditional rights of secure property. In addition common law courts handed down the famous "Case of Monopolies" in 1601, making the Crown's use of monopolies illegal in common law. The Crown, however, was able to evade these restrictions. While these evasions often took forms of questionable legality, so long as the Crown did not depend on Parliament for revenue, it was able to use them in practice. Understanding the subsequent institutional reaction to these royal policies requires that we study the institutional means by which the Crown ran the government. For our purposes three elements of the royal powers and institutions were central to the Crown's success. First, a major source of power for the Crown was the royal prerogative, by which the Crown issued proclamations or royal ordinances. By this means it could issue new rules; that is, it had quasi-legislative powers without recourse to Parliament. Crown rules were enforced, not through the common law court system, but through the prerogative courts and included the power to suspend laws and to dispense with laws for specific individuals .23 Second, the Star Chamber, combining legislative, executive, and judicial powers, played a key role. On issues concerning prerogative, the Star Chamber had come to have final say, and could in certain circumstances reverse judgments against the Crown.24 Finally, since the Crown was personally responsible for day-to-day government operations, it paid the judges, who served at its pleasure. Increasingly the Stuarts used their power over judges to influence their judgments. Judges-Chief Justices Coke (1616117) and Crew (1627)- were openly fired for ruling against the Crown. Ultimately this tactic produced judges who by and large supported the The effect of these institutions was to combine in the Crown executive, legislative, and judicial powers, limiting external institutional checks. While royal proclamations did not have the same legal status as an act of Parliament, they were enforced directly through the common law courts. While these courts did not have to go along with the king-and often did not-ultimately he won through the higher court, the Star Chamber. Thus, while the common law was often against the '' Dispensations for individuals, like most powers under the Stuarts, were put up for sale (Maitland, Constitutional History, pt. IV). 24 The Star Chamber, in which the most egregious examples of arbitrary power occurred, became a regular feature of Stuart England. See Maitland, Constitutional History, and Friedrich A. Hayek, Constitution of Liberty (Chicago, 1960), chap. 11. ''Coke's dismissal, "the first of a judge in over thirty years, ushered in a period of increasing royal pressure on the bench: in Charles's reign two other chief justices, Crew and Heath, and one chief baron of the exchequer court, Walter, were to follow Coke" (Hirst, Authority and Conflict, p. 121). See also Hayek's excellent and extensive discussion, in Constitution of Liberty, chap. 11