one aide or other in Parliament sometimes a taxe sometimes a Fifteenth sometimes a Subsidie of Tonnage Poundage In the eighteenth yeer he was inforced to go in person into Ireland to settle the state of that Country then in Rebelion all these troubles he had from abroade besides those famous Rebellions here at home which afterwards cast him out of his Seat yet did he never for all this attempt to lay impositions though he wanted not about him to put him in minde of his absolute power For Edward Strafford Bishop of Exeter Lord Chancellor of England in a Sermon made to the Parliament held anno 21. as our Chronicles report did publiquely maintaint that the King was not bound by any Law but was of himself absolute above Law and that to controle any of his actions was an offence worthy of Death at which Parliament all that were present came armed for fear of the King and the Parliament House it selfe was beset with 4000. Archers by his appointment I will speak no more of him then this though he were a King of a weak spirit yet did he not spare to practise upon his people the most grievous things that were Insomuch that he so farre discontented them that they deposed him by common consent in Parliament the onely desperate example of that kinde that our Histories doe afford or I hope ever shall His successor Henry the fourth Hen. 4. in respect he held the Crown by so weak a title had cause to give the people all the content he could possible and yet he was so oppressed with warrs on all sides from France and Scotland but especially by continuall and dangerous invasions made by the Welsh as without the aide of his people for the supply of his treasure it had not been possible for him to have held his Crown on his head and therefore he pressed his people so farre that in a Parliament held the fifth yeere of his reigne they yeelded to him so great and so unaccustomed a tax as that the grantors thereof as our Chroniclers say tooke speciall order that no memory thereof should remaine of record onely to avoide the president and yet the very next yeere following his wants were againe grown so great as his Subjects being assembled in Parliament to give him further ayde did resolve that there was no other way to supply his want then to take from the Clergie their temporall Lands and goods and to give them all to the King which being withstood by the Clergie a resumption of all the guifts of Ed. 3. and Ric. 2. was propounded at last after they had sate a whole yeere they gave him two Fifteenths at this time most of his Counsell and the great Officers of the Kingdome were Spirituall men had they not now if ever a just occasion given them to have put the King in minde of his Prerogative of laying impositions not onely to the intent to have diverted him from the harkning to that desperate motion that had been made against them to all their utter undoings but were they not also bound in duty and conscience in this time of so great necessitie seeing the Parliament knew not otherwise how to supplie the Kings wants to have advised him to have made use of his lawfull right of imposing by which means he might without troubling the Parliament quickly have raised great summes of money certainly it was not because they were ignorant of any such practise in former times For none of them that were then of the Counsell to Henry the Fourth but they lived in Ed. 3. time and most of them doubtlesse were in Ed. 3. time men of age and discretion But in all likelyhood as they knew that Edward the Third did lay impositions so likewise they knew that impositions had been from time to time in those daies condemned as unlawfull and were become hatefull to the people and onely for that reason they did forbeare to advise the King to take that course though the necessitie were never so great Another Prerogative as much concerning the interest of the Subject as this of Impositions namely the abasing of Coyne this King made no scruple at all to put in practise because he held it to be lawfull His Sonne and next Successor Hen. 5. who by his many victories over the French Hen. 5. and his noble disposition and behaviour towards his people was so farre beloved of them as never was King of this Realme more though the Kingdome were now by one degree of discent more firmely setled upon him then it was on his Father who usurped it though also his expence of treasure by reason of that great warre in France were as much as any king's of England ever were though he had troubles also from his Neighbours the Scots and within his owne Realme by Rebellions and lastly though he spared not for supplie of treasure to suppresse above a 100. Priories of Aliens yet neither out of the strength of his love with the people nor in his extreame necessity by reason of these honorable warres in France for the maintenance of which the people would willingly have undergone any burden which he would have laid upon them especially after the victory at Agencourt did he ever so much as attempt the laying of Impositions His Successor Hen. 6. Hen. 6. though indeed of a meek spirit yet he was so followed with troubles within the Realme and from abroad that he was inforced to crave such an extraordinary aide of his Subjects in Parliament as the levieing thereof was the cause of that famous Rebellion of Jack Cade in his time Besides in the 18 yeer of his Reign for the ease of his charge and supply of his wants all Grants by him made of any Lands Rents Annuities or Fees whatsoever since the first day of his Reigne were resumed and this is never yeelded to but in cases of extreame necessity As for Impositions notwithstanding his great wants he thought not of them Edw. 4. Edw. 4. that succeeded him was no lesse free from troubles for he was as you know driven to forsake his Kingdome and to live for a while like a banished man with the Duke of Burgundy He was also inforced in the 5 yeer of his Reign to make a Resumption and the same yeer to abase his Coyne And Comines observeth of him that he obteined a Subsidie of his Subjects in Parliament upon condition that he should himselfe in person undertake the war in France and that only to get the Subsidie he passed the Seas into France but presently returned without doing any thing What should such shifts as these have needed if he might without being beholding to his Subjects lawfully and without controll have raised Treasure by laying of Impositions It is well worth the remembring that which the same Comines speaking in commendation of the frame of this Common-wealth saith That this State is happy in that the people cannot be compelled by the
of Certainty and this of the provision made by the Common-Law are in my poor opinion Arguments of direct proofe that the King cannot Impose I will now according to my division urge an Argument or two of Inference and presumption the rather because Arguments of this nature have been much enforced by those who have maintained the contrary opinion Sir Francis Bacon especially by Mr. Solicitor I call them Arguments of inference and yet in my opinion those which I shall urge are also of good proofe such as they are you shall judge of them They are drawne either from the actions or forbearances of the Kings of this Realme or from the actions and forbearances of the people First in the actions and forbearances of the Kings Arguments drawne from the actions of the Kings that they have no power to Impose I observe that all the Kings of this Realm since Hen. 3. have sought and obteined an increase of Custome more or lesse by the name of Subsidie of the gift of their Subjects in Parliament Nay some of them and those not the weakest in Spirit or power but the most couragious and potent in that whole ranke even that mighty and victorious Prince King Ed. 3. being to undertake a just and honorable warre than which there could not happen a better or juster occasion to have made use of his Prerogative of Imposing did neverthelesse at that time stoope so low in this point that he did in full assembly of the three States pray his Subjects to grant him a Reliefe in this kinde for the maintenance of his warre and that to endure but for a short time and further was well content to suffer his prayer in that behalfe to be entred of Record to the memory of all posterity And the succeeding Kings have also suffered the same to be printed as may appeare by the printed Statutes at large An. 14. Ed. 3. cap. 21. Is it likely that if any or all these Kings had thought they had had in them any lawfull power by just Prerogative to have laid Impositions at their pleasure that they would not rather have made use of that than have taken this course by act of Parliament so full of delay so prejudiciall to their Right so subject to the pleasure of their people who never undergoe Burdens but with murmuring and much unwillingnes Can there be any thing more hatefull to the high Spirit of a King than to subject himselfe to the pleasure of his people especially for matter of Reliefe and that by way of Prayer having lawfull power in his hands to relieve himselfe without being beholding to them If perhaps the Kings themselves were ignorant of this great Prerogative which cannot be imagined had they not alwaies about them wise Counsellors to assist them and such as for the procuring of favor to themselves would not have failed to have put them in minde of it Nay if they had known any such lawfull Prerogative had they not been bound in conscience so to have done What an oversight was it of King Ed. 3. and all his Counsell so much to prejudice his right in so beneficiall a Prerogative as to suffer him upon Record and that in Parliament to pray for that which he might have taken out of his absolute power Can there almost be a more direct disclaiming in the Right to compare great things with lesse if the Lord by matter of Record claime any thing of his villaine it is a disclaimer of the villenage The Kings of England have other noble and high Prerogatives I will only name two of them The making of warre and peace and the raising and abasing of Coyne at their pleasure Did they ever crave the assent of their Subjects in Parliament to make a warre Their advice indeed they have sometimes sought and their ayd for treasure to maintaine it The Prerogative of raising and abasing the value of money hath been oftentimes put in practise by them and sometimes strayned to such a height that the King might well suppose the Subjects could not but be much discontent therewith And yet never any King of this Realme did it by assent of Parliament which perhaps some one milde King among so many would have done and it may be would also have prayed his Subjects to yield thereto only to avoid the grudging of the people if the seeking of assent in Parliament had not been thought to have been prejudiciall to the absolute power of their Successors and yet as for some of these Kings it may be supposed they made little conscience to prejudice a Successor in one point that made no scruple totally to depose a Predecessor from his Throne and all his Regalities and to usurp it to themselves And so I proceed to my next Argument of Inference drawn from the actions of our Kings Some of the Kings of England as namely Ed. 2. Edward the 2. in the yeere of his Reigne and Ed. 3. in the 1. and 24. yeere of his Reigne as may appeare by the Records here amongst us were contented to accept an increase of their Custome by way of Loane from the Merchants and solemnly binde themselves to repay it againe Would any wise man in the world that thought he had but a colour of Right so much prejudice his himself as to borrow that which he might take without leave and binde himselfe to repay it If a poore man perhaps through feare might be enforced so farre to yeeld to a mighty adversary yet that a powerfull man should stoope so low to one much weaker than he nay that a King in a point of such consequence should so farre discend from his Greatnesse as to borrow of his poore Subject that which without being beholding to him he might obtein as his Right and binde himselfe to repay it againe I say it cannot with any reason be imagined but withall it must be concluded that a king that shall so doe doth not thinke that he hath so much as colour of Right to impose I will not much presse or enforce the actions of Ed. 2. who I confesse was but a weake Prince Edward the 3. But as for his Sonne and successor Ed. 3. there was not as I have said a stouter a wiser a more noble and couragious Prince than he and none more carefull to preserve the Rights of his Prerogative as may evidently appeare by all his answers in Parliament on any complaint of the Subject Besides never had king of this Realme more occasion than he to straine this Prerogative of imposing to the utmost For besides his excessive expence in the warres of France and Scotland he had also a continuall charge of many expensive children his wife Queene Philip had also for her maintenance a large allowance out of his Revenue but the dowry of Queen Isabell his mother who lived till about the 27. yeere of his Reigne was so great as it is reported by some writers that little more than the
this high authority of an Ordinance in Parliament the assent also of Merchants was usually joyned therewithall to make it have the cleerer passage with the Subject and further it was never but in the time of warre The first imposition of this kinde by way of Ordinance 7 Ed. 3. R 9. Orig. de Scac. which I finde amongst the Records was 7 E. 3. amongst the Originals of the Exchequer where it is said by way of recitall that the King considering how Merchants which make great gaine by trading ought aswell as others to assist him with treasure for his Warre especially considering how at their intreaty he had placed the staple in England Therefore at his Parliament held at Yorke by the Prelates Earls and Barons it was ordained that the Merchants should yeeld unto the King a Subsidie upon Merchandizes This Subsidie or rather Imposition thus solemnly ordained and in the times of so great necessity was no sooner established then revoked as may appeare by the words imediately following in the same Record whereupon the Merchants of their own accords yeelded and freely gave ten shillings upon a sack of Wooll as much upon three hundred Woolfels and twenty shillings upon last of Lether for a short time by way of Dispensation or Licence towards the maintenance of the Warre The like is found anno 20. E. 3. 20. Ed. 3. Nu. 18. Ro Parl. where the Commons complaining of an imposition of this kinde laid by the Prelates Earles and Barons in Parliament and by the agreement also of Merchants It was not denyed unto them but that their suit was just onely it was answered them that as yet it was not convenient to take it away For that the King had taken up great summes of money of divers Merchants for his present necessity to be repayed out of the said Subsidie and therefore it could not be as yet discharged without great damage to the King and the Merchants But the most materiall Record against Impositions by way of Ordinance is the yeere following where the King in excuse of impositions complained of answereth that they were laid in times of great necessity and by the assent of the Prelates Earles and Barons and other great men and some of the Commons then present neverthelesse his pleasure is that such impositions not duly laid be not drawn into consequence but taken away 21 E. 3. No. 17. There are some others of this kinde but never any that did abide the triall though they have allwayes been accompanied with all such circumstances as were most likely to give them passage without controllment as to be laid in the time of warre to be limited to a short time with consent of Merchants If the authoritie of an Ordinance in Parliament joyned with the assent of Merchants were in those dayes not of force sufficient to uphold Impositions much lesse will an Order of the King and his Counsell out of Parliament uphold them at this day especially after so many yeeres discontinuance Another invention to raise impositions Impositions raysed by way of Loane by Merchants practised by Ed. 3. and in former times was by way of a pretended or feined Loane from the Merchants of so much above the old custome upon Merchandise exported or imported which Loane was never repaid to the Merchant That this was an old practise may be collected by the president 12. of Ed. 2. already cited where the King promiseth that without fiction or delay he would repay them their money implying thereby that sometimes fiction had been used and doubtlesse that loane which was 11. Ed. 2. the very yeere before was such a fained Loane as I speake of for otherwise without question the King would not have released part of it as may appeare by that Record that he did For if the money be bona fide borrowed and truly intended to be repaid then doubtlesse the course is lawfull if otherwise I hold this kinde also as unlawfull as any of the rest Edward the Third did once or twice borrow in this kinde as may appeare by Records already cited to another purpose with which I will not againe trouble you There was yet another Device for raising of Impositions begun indeed by Ed. 1. and condemned in the time of Ed. 2. Impositions raised by grant of Merchants for Liberties granted to them but revived and much practised by Ed. 3. which was also by way of grant of Merchants and yet not altogether the same that I first observed to have been so much practised by Ed. 3. but is much more colourable and tollerable For whereas that was a grant or rather a meere guift without any thing granted back againe in lieu thereof this I now speake of is a solemne grant indeed made by Merchants of an increase of custome for liberties and freedoms and other valuable priviledges and exemptions granted unto them by the King that former was date nihil expectantes this is date dabitur vobis and indeed the recompence that the Merchants had by this Charter granted unto them made their grant to the King lesse subject to controll then otherwise without such recompence it would have been I mean the grant of Merchant strangers so often remembred amongst us by the name of Charta Mercatoria which though it were damned all the time of Ed. 2. from the third yeer of his reign yet was it revived by E. 3. Even that very yeer when he likewise deposed the King his father and usurped to himselfe his Crown For it appeares by the Records that he commanded the same to be levied the very first yeere of his Reigne 1. Ed. 3. Ro. Fin. What hath been said against this kind of Imposition I shall not need here againe to repeate only let me call to your remembrance how this Charter as needing a better prop then his owne strength and Validity in Law was in the same Kings Reigne confirmed by Parliament and onely by that strength continueth in force at this day You have heard five or sixe severall politique Inventions and Devises for the easie drawing on and sweetning of this yoak of Impositions all practised by this prudent and potent King Ed. 3. whose times were indeed so troublesom and his charge every way so excessive as it is no marvell that he left not any way unattempted to raise money without the assent of the Commons whom he always found unwillingly and hardly drawne to matters of charge One other way of Impositions he used Impositions laid by expresse and direct Commandment not coloured or masked under any such pretence or politick Invention as you have heard but plain and direct only his owne expresse commandment to his Officers to collect of every Merchant so much for such a commoditie exported or imported and to answere it into his Exchequer without any recitall in his Commissions of Grant Assent Guift Loane of Merchants Dispensation or Ordinance in Parliament or any other such colourable pretext whatsoever
Plowdens argument against it in M. Tates hand but their resolution is no where to be found at least by Us It is very probable that if they had given judgement for the Queen it would not have beene kept close but howsoever the profit was too great to be taken from the Crowne and therfore it continues till this day Howsoever the reason in equity in the laying this Imposition upon Cloth may seeme to bee sound unto some men and so to allow of this Imposition as differing from ours yet for my part I hold it not so when I consider what course was taken by Ed. 3. upon the same occasion an 11. E. 3. c. 1. 2. It was enacted that no wooll should be caried out of England but by the Kings licence and that no man should weare Cloth other than such as should be made in England this Law tooke such effect as within ten yeeres the greatest part of the Wooll in England was made into Cloth and it became to be transported in such abundance by reason that there was no Custome at all due upon Cloth and the Custome and Subsidie upon Wools was very high that in the 21 yeere the King finding his Custome of Wools so much decreased doth seeke to remedy it not by imposing a new charge upon Cloth by his absolute power as Qu. Mary did but did it by assent of his Subjects in full Parliament as I collect partly by my L. Dyer in the place last mentioned but more fully by a recitall in a Record amongst us of 24. E 3. ro 13. orig de Scaccar to this effect That whereas the Customes and Subsidies due and granted upon Wools are much decreased because a great part of the Wooll of England is made into Cloth for which no Custome is due and whereas in consideration thereof at our Councel held the 21 yeere of our Reigne by the common assent of the Prelates Earles and Barons and others it was ordeined and accorded that 14d. by Denizens and 20d. by Strangers should be paid for every cloth of Assise c. made of English wooll and transported upon paine of forfeiture of the Clothes And so followeth an authority given to collect the same The next Imposition laid by Q. Mary was forty shillings upon a Tun of French wines imposed in the 5 yeere of her Reigne at which time there was first a Proclamation made that no wines at all should be brought from France being then in enmity with England upon paine of forfeiture of the Wines which by the way is a strange clause in a proclamation Immediately after this restraint there was an order made by the Qu. and her privy Counsell that such as would might bring in French wines notwithstanding the Proclamation paying forty shillings upon every Tun by the name of Impost as doth appeare by Record in the Rolls of Easter Terme 1 Eliz. in the office of the K. Remembrancer of the Exchequer in the case of one Germane Ciol German Ciols case against whom an Information was exhibited for not paying the said Imposition Whereunto taking it by way of Traverse that there is any Law of the Land by which he may be charged with Impost he pleads a licence made unto him an 1. 2. Ph. Mar. to import a certaine number of Tunnes of Wine within a certain time any restraint then made or afterwards to be made to the contrary notwithstanding Provided alwayes that the Custome Subsidie and other duties due and accustomed to be paid to the King and Queen were duly satisfied He shewes that for all Wines brought in by him during the life of Queen Mary he paid the Subsidie of Tonnage viz. three shillings for every Tun which was all that was due and accustomed to be paid Upon this plea a demurrer was joyned and judgement given thereupon against the Queen This Judgement hath been enforced in the maintenance of Impositions Whether or no it make not rather against them I leave to your censures Neere about the same time there were Impositions laid also by Queen Mary upon all French commodities whatsoever to be imported as may appeare by the Port-bookes of those times in the Exchequer which Impositions were received to the use of Queene Eliz. in the beginning of the 1 yeere of her Reign but ere the yeer ended they were all taken away as may appeare by the same Port-bookes which in my opinion is a great argument that they were not then held lawfull For Princes doe not so easily give over their hold in matters of profit if they be any way able to maintain it What hath hitherto upheld the Imposition upon Wines I know not except it be the great profit that comes by it to the Crown and because there was never any late Judgement given directly against Impositions You have hitherto heard what reason and direct proofe I have used Admitting the king had power by the cōmon-Lawe to lay Impositions yet hee is barred by Statutes to maintaine that by the Common Law the King cannot at his will increase his Custome by way of Imposition You have secondly heard what the practise of former ages hath been in this kinde till this day from which I have also drawn reasons of Inference that prove the Common-Law so to be But now admitting that by the Common-Law it had been cleere and without question that the King might at his will have laid Impositions and that also the same could have been cleerly proved by the practise of the ancient Kings yet I affirme that so stands the Law of England at this day by reason of Statutes directly in the point as the Kings power if ever he had any to impose is not onely limited but utterly taken away as I hope I shall be able evidently to prove notwithstanding any objection that hath been made against the interpretation of the Statutes to this sense The first Statute is in Magna Charta cap. 30. Magna Charta cap. 30. Enforced and the objections made against it answered The words are All Merchants if they were not openly prohibited before shall have their safe and sure conducts to enter and depart to goe and tarrie in the Realme as well by Land as by water to buy and sell without any evill tolls by the old and rightfull Customes except in the time of Warre And if they be of the Land making warre against us and be found in our Realme at the beginning of the warre they shall be attached without harme of body or goods untill it be knowne to us or our Justices how our Merchants be intreated there in the Land making war against us c. The Statute of which this is a branch is the most ancient Statute-Law we have wonne and sealed with the blood of our Ancestors so reverēced in former times that it hath been by Parliament provided that Transcripts thereof should be sent to all the Cathedrall Churches of England there to remaine that it should be twice every
their opinion as I conceive is not so much as colourably to be mainteined and that to maintein the same it be not at all necessary to induce my conclusion and although to admit it it may seem perhaps no good policy of Argument but rather a great disadvantage to me to admit that without which the contrary part cannot uphold their opinion and which being admitted cannot make any thing for me yet because we are here not as Arguers at the Bar but as Judges in a high-Court and that all our ends tend to the discovery of the truth I will therefore not only admit it but will maintein it as well as I can That Custom is due by the Common-Law I collect That there was ever some Custome due by the Common Law first by the name thereof for though at this day it bee and so hath beene for more then 350 yeeres as I shall have occasion more fully anon to open unto you called in our law-Latin Custuma yet in ancient time it had no other name here amongst us for I meane not to wander into forreign-learning then Consuetudo as may appeare by the Statute of Magna Charta cap. 30. Per rectas antiquas Consuetudines for I shall anon directly prove unto you that Consuetudo in that place is not to be understood a usage as hath been said but in that sence which I take it This name Consuetudo in the same sense is also found in many ancient Records brought into this house upon the late search That this name then Consuetudo which implies an approved continuance without a known beginning should by the Common-Law be given to this Revenue more then to any other Revenue belonging to the King nay that this terme which is the common and generall name to all common and approved usages of what nature or kinde soever should be applied to this dutie rather then to any other amongst all the ancient usages and Customes which the Common-Law imbraceth cannot but denote the great antiquity thereof and more then so the allowance and approbation thereof by the Common-Law for doubtlesse if beside the antiquity of this dutie the Common-Law had not also alowed the reasonablenesse of it and in a manner the necessity of it it would never have denoted it unto us by this name of excellency above all other Customes which require reasonablenes as well as antiquity Therfore doubtlesse this duty thus favored is a Childe of the Common-Law nay farther it is of the very essence of a Custome to have his only beginning by alowance of the Common-Law for that which beginneth by private contract of partie or by Act of Parliament dependeth not wholly upon the alowance of the Common-Law by one of which three waies all things considerable in Law have their commencements cannot bee called or bee a Custome in Name or Deede moreover considering that this Custome is not limited to any one place within the Realme wee shall so little neede to be curious in affirming it to bee due by the Common-Law as wee may boldly pronounce it to be part of the Common-Law it selfe Thus you see that the very name Consuetudo proves Custome to bee a dutie by Common-Law To this may bee added that Magna Charta cap. 30. which Statute was made little more then 150 yeeres after the Conquest termeth this not only Consuetudo which as I have said implies Antiquity beyond all remembrance of a beginning but Antiqua Consuetudo not onely Custome but old and ancient Custome And in comparison to this old Custome due at Common-Law the Custome upon Staple Commodities given or increased by act of Parliament 3 E. 1. not printed was called Nova Consuetudo Before the making of which Statute of 3 E. 1. you may further see that Custome was due For an 52. H. 3. in the Statute of the Exchequer printed you may read that the Collectors of the Custome of Wools were to yeeld their accompt twice every yeere into the Exchequer But that which most of all moveth me to beleeve that this duty was and is due by the Common-Law is this That in all Cases where the Common-Law putteth the King to sustaine Charge for the protection of the Subject it alwayes yeeldeth him out of the thing protected some gaine towards the maintenance of the Charge As for the protection of Wards Lunatiques and Ideots the profits of their Lands For the maintenance of the Courts of Justice it giveth him Fines for purchase of Originall writs and Fines pro licentia Concordandi which in supposition of Law are no other than Fines paid for not proceeding according to the surety by pledges put in upon purchase of the Originall and for troubling without cause the Kings Justices who are maintained in their places at the Kings charge There are many the like profits of Court given by the Common-Law to the King for the maintenance of his charge in the administring of Justice This observation which might be further proved by divers other instances in things of other nature maketh me to think that because the Common-Law expecteth that the King should protect Merchants in their Trades by maintaining repairing and fortifying the Havens at home by clearing the Sea of Pirates and Enemies in their passage and by maintaining Ambassadors abroad to treate with forreigne Princes upon all such occasions That it also giveth him out of Merchandizes exported and imported some profit for the sustentation of this publique charge otherwise were the Law very unreasonable and unjust So as to prove that by the Common-Law Custome is due to the King I shall need to say no more especially considering it hath not onely been yeelded to but proved by those which maintain a contrary Conclusion I will therefore proceed to my second Consideration Whether that profit upon Merchandizes which the Common-Law for these respects gave unto the King were a duty certaine not to be increased or inhaunced at the Kings will and pleasure without a common assent in Parliament Or otherwise Whether the Common Law hath left an absolute power in the King to demand in this case more or lesse at his owne pleasure and to compell his Subjects to pay it The resolving of which question will as I conceive make an end of this controversie between us for what are these Impositions which wee complaine of other than the enhauncing of the Custome by the Kings absolute pleasure That this duty given by the Common-Law as I have proved unto the King That Custome due by Common Law was a Sum certain was and is a duty certain not to be enhaunced by the King at his owne pleasure without assent Parliament I hope I shall be able cleerly to prove unto you In mainteinance of which I will use some Arguments of direct proofe and others of great presumption and probability And first I lay this as a ground which will not be denyed me by any man That the Common-Law of England as also all other wise
of impositions and without which they cannot long last You have now heard opened three of those six presidents which are most relied upon for mantenance of these present impositions which are all that have been urged or can be found to have been practised from the Conquest till the reigne of Ed. 3. during which time there are as you see as many publique acts in opposition of them which are of so much the more force in that they are the Legall regular Acts of great Counsells whereas on the contrary part those three impositions were the acts of powerfull Kings wills in the times of extream necessity As for Ed. 2. Edw. 2. his successor there hath not been one Imposition alledged to have been laid by him of one kinde or other Nay all the records touching this businesse found in his time being onely foure make directly against them The first is anno 3. which was as you have heard a release at the Kings will upon complaint of the Commons of the Impositions raised by Charta Mercatoria The second was the Ordinance made an 5. declaring Charta Mercatoria and all other impositions to be void and inflicting punishment upon such as should demand any The third was an 11. which is a Supersede as to discharge certain cōmodities from yeelding an increase of Custome granted by Merchants by way of loane which in great probability the King would never have released but upon complaint the rather I think so because as the Record recites it was granted in a time of great necessity The fourth is anno 12. and is much of the same nature the recitall of which containes some very observable things which I will open unto you It shewes first in very effectuall words the greatnesse of the Kings wants and the causes thereof the words are Cum pro expeditione guerrae nostrae Scotiae aliis arduis necessitatibus nobis multipliciter incumbentibus pro quarum exoneratione quasi infinitam pecuniam profundere oportebit pecunia plurimum indigeamus in presenti ac insuper pro eo quod exitus Regni terrae nostrae simul cum pecunia nobis in subventionem praemissorum tam pro Clerum quam pro Comunitatem Regni nostri concessa ad sumptus predictos cum festinationem qua expediret faciend non sufficiunt Here was cause if any cause may possibly be just for the King presently to put in practise his Prerogative of Impositions his expence by reason of a necessary Warre in Scotland was so great as the whole Revenue of the kingdome together with an ayd which had been lately granted him could not with that expedition that was requisite supply his present want doth hee for all this make use of his Prerogative of imposing or doth hee hastily for want of advised proceedings take some other course prejudiciall to his right No the record further sayes that he enquired by all wayes and meanes how he might most commodiously and fitly levy money for these occasions After which advised deliberation the course at last resolved upon was not by absolute power to lay Impositions which of all other courses if it had been lawfull had been the most speedy and beneficiall but a course more justifiable which was that Merchants should be called together and that they should be intreated to lend the King upon every sack of wooll 10. shillings and upon every last of Lether 5. shillings above the ancient custome and that for their security of true repayment without fiction or delay which are the words of the Record whereby it seems that onely a pretence of a Loane and repayment had been before that time used to colour Impositions commandment should be given to the Customers to certifie into the Exchequer the names of every particular Merchant that should so lend unto the King that they might accordingly receive full satisfaction And t is worth the observing that this Loane was for no longer time Then from Aprill till October following thus much is warranted by the Record So as you see that in all this time of this King Ed. 2. Impositions were not only altogether forborn even in the times of his greatest necessity but they were also condemned as unjust and utterly unlawfull We come now to the reigne of King Ed. 3. Ed. 3. in whose time there was no practise or meanes that by the policy of man could be thought on to bring the people under this yoke of Impositions without assent of Parliament but it was by him attempted Insomuch as I have in my observation out of the Records collected no lesse then five or six severall waies all of them very colourable which in his time were put in practise for the raising of impositions and yet none of them but was resisted by Parliament and condemned That which was most usuall with him was that Merchants should grant to pay him so much upon every Commodity exported or imported by way of increase of Custome Impositions by way of Grant of Merchants this seems not unreasonable for that every man might grant of his own what he listed and this also to make it more colourable was never attempted but in the time of warre And yet as it hath been pastly said already this was alwayes held unlawfull as may appeare by the Record of 17 E. 3. 17 E. 3. No. 27. Ro. Parl. where the Commons in Parliament say that it is a great mischiefe and against reason that they should be enforced to pay the deerer for Commodities by reason of a charge upon Merchandizes by the grant of Merchants anno 25. Edw. 3. 25 E. 3. No. 22. Ro. Parl. the which is a charge to the people though none to the Merchant the Commons reciting that whereas Merchants have granted a new increase of Custome to the King pray that Commissions to collect such new increase of Custome by singuler grant of Merchants be not awarded anno 36 Ed. 3. cap. 11. Amongst the printed Statutes Grants of Subsidies upon Woolls by Merchants without assent of Parliament are declared to be void which act was made upon a Petition of the Commons in anno 36 Ed. 3. desiring a Law to be made to the same effect If impositions raised by the Grant of Merchants 36 E. 3. No 26. Ro. Parl. which I suppose to have been by some publike and solemne instrument under the hands and seals of the principall Merchants of all the great Towns of England being called together for that purpose were not of force in this behalf much lesse was their bare assent without any such solemnity which also was a course in practise in the dayes of Ed. 3. And was also used in the laying of these present impositions which wee now complaine of Another meanes of raising impositions used by Ed. 3. was by way of dispensation for money with some Statute in force Impositions by way of Dispensation with a penal Law which restrained the passage of Merchants most of his
King to sustein any publique charge except it be by their own consent in Parliament I proceed from Ed. 4. to Hen. 7. Hen. 7. omitting Ed. 5. and Ric. 3. because of the shortnes of their Reignes Hen. 7. H. 7. had a Subsidy of Tunnage and Poundage granted to him for his life as may appear by the Parl. Roll 1 H. 7. which appeares no where in our printed books had indeed a more peaceable time than any of his Predecessors and yet he was not altogether free from troubles both within the Realme and from abroad But his naturall inclination was rather to embrace Peace he was so provident and politique in the gathering and storing up of Treasure as never any Prince of this Realme was therein to be compared to him He did himselfe take the accounts of his Revenues which I have seen under his own hand He had for his Assistants about him Empson and Dudley men learned in the Lawes and by all probability very canning in all the profitable points of the Prerogative men that that intended or studied little else than the advancing of their Masters profit men even till this day infamous for their wicked counsell in perswading that good King to lay such heavy Exactions and Burdens upon his people as he did If these men who in all likelihood should have best knowne the Kings right especially in so high a point of profit had but had the least notice of so profitable a Prerogative as this would they not have been at strife which of them should first have put the king in minde thereof Or if they had held it questionable would they not have put it to some triall Certainly there can be no cause imagined that should make them thus to forbeare but either they were utterly ignorant of any such Prerogative or that knowing such a thing to be claimed by some of the ancient kings especially by Ed. 3. they knew likewise that it was in the same times continually complained of in Parliament and alwayes condemned and that there were acts of Parliament directly against it and this is more probably to bee conceived of them being men of such searching spirits and so well studied in point of Prerogative then that they were ignorant of the practise of Ed. 3. considering also that they were nerer to those times by 120 yeers then wee are But that which most of all moves me herein is that there was in H. 7. time such an occasion offered of making use of this Prerogative as there could not possibly happen any other that might better have justified the laying of Impositions which was this The Venetians to the intent to drive our Merchants from fetching sweet wines at Candy that they might the better imploy their owne ships and Merchants did impose upon every But of Malmesey brought thence by English Merchants foure Duccats by which means the English wholly lost that Trade and the Venetians made the whole profit thereof This mischiefe was no other way better to be remedied than by imposing the like or a greater charge upon Merchants of Candy bringing Malmsey into England that so they of Candy not being able to afford them better cheape than the English the English might still fetch them from Candy as they had wont to doe I say there could not possibly be a more justifiable occasion of laying Impositions than this was And did this king so carefull in other things of preserving his Prerogative and most of all in matters that concerned his profit take hold of this occasion to lay an Imposition by his absolute power Nay rather though he saw it convenient and in a manner necessary yet he conceived it to be unlawfull so to doe and therefore did it not by his absolute power but by assent of Parliament as may appeare by the Statute of 7 Hen. 7. cap. 7. printed where in the preamble of the Act you shall see the occasion of the making of the Act to be as I have opened it unto you and you may perceive by the body of the Act that for the counterpoysing of the imposition of foure Duccats laid by the Venetians upon our Merchants there was imposed 18s. for a But of Malmesey upon their Merchants bringing it hither to last as long as the imposition of foure Duccats which as appeares by the Act came but to 18s. of our mony should endure It is not probable that this king considering his other actions would have suffered this to have been done by Parliament if he had thought he might have lawfully done it by his absolute power And therfore it cannot almost be gaine-said that in these times this pretended Prerogative of laying Impositions without assent of Parliament was held to be against Law Hen. 8. his sonne and successor Hen. 8. was so farre from the disposition of his father in this point of thrift and providence Hen. 8. had a Subsidie of Tunnage and Poundage grāted to him for his life the first yeare of his Reign as appeares by the Parl. Roll. as there was not in the whol ranke of our kings any one like to him for excessive prodigality the great riches stored up by his father with so much care and left unto him hee so sodainly consumed in Triumphs Maskes Mummeries Banquets pompous and braving Warres as was that of Turwin and Turney and in the satsfying of his lust as he was out of very necessity enforced to crave most unreasonable aids of his Subjects in Parliament such as never before had been granted which through very dread and feare were yeelded to him yet not so satisfied that no meanes for the raysing of money might bee neglected or unattempted in the 15 yeere of his Reigne by the councell of that proud Prelate Cardinall Woolsey hee spared not to send out Commissions into every shire throughout the whole Realme with privy instructions to the Commissioners how they should with most advantage behave themselves in perswading the people to contribute to the king the sixt part of their whole estates to bee paid presently either in money or plate whereupon followed extreme cursing weeping and exclamation against the king and his councell and the people were in point to rebell had not the king stayed the proceedings of the commissioners by his Letters Finding that this way would not serve his turne hee demanded a benevolence which not answering his expectation hee did the same yeere raise unto himselfe a great deale of treasure by abasing his gold Such things as these Princes never put in practise but when all other meanes faile them and yet hee went many degrees beyond this For in the 27. yeer of his reigne he suppressed above 370 Religious houses the yeerly value of whose revenues I have read to be no lesse than 32000l. per annum in those dayes and that of their goods sold at very low prises he made above 100000l. in present money About 4. yeares after he dissolved all the Monasteries Abbeies Priories
Law together The Petition for present ease is to be released onely of the Maletolt of foure shillings upon a sack of Wooll which is yeelded to The security for the time to come is We will take no such thing The saving which followeth that is Saving the Custome of Woolls Woolfells and Leather I observe the saving extends not to woolls alone as the Petition doth but also to Wooll-fells and Leather by expresse name by which it is evident that the securitie for the time to come is of a larger extent than to stretch onely to Woolls as hath been objected For else to what end should Wooll-fells and Leather be excepted in the saving if they had not been contained in the generall words no such thing An exception cannot be but of a thing contained in former words If therefore the grant would have extended to Wooll-fells if they had not been specially excepted then doe I conclude by the same reason that it doth extend to all other Merchandizes not excepted for the words are generall And so I leave this Law cleered of all objections and very full against Impositions The next Statute made against them is 14 Ed. 3. The fourth Statute urged against Impositions 14 E 3. cap. 11. cleered from objections cap. 21. By the first part of which Law you may perceive that whereas the Commons had prayed the King not to take of Woolls Wooll-fells Leather Tyn or Lead any more than the ancient Custome the King prayed them to grant him forty shillings upon a sack of Wooll for a yeer and a halfe which they granted whereupon the King by way of Retribution and in answere of their Petition as touching the Wooll causeth it to be enacted for their Security in time to come That neither he nor his heires would demand assesse nor take more custome of a sack of Wooll than sixe shillings eight pence And so likewise upon Woolls and Leather no more than the ancient custome without assent of Parliament All this while there is no answer given touching the Tyn and Lead mentioned in the Petition upon which as it appears the King had also laid Impositions But there doe follow certain generall words by which not onely Tyn and Lead but all other Commodities whatsoever are freed from Impositions The words are The King promised in the presence of his Earles Barons and others of his Parliament no more to charge set or assesse upon the Custome but in manner aforesaid Except these words doe extend to Lead and Tyn to free them from Impositions for times to come as well as woolls wooll-fells and Leather are freed by the former speciall words their Petition touching Tyn and Lead is no way answered And if they doe extend to Tyn and Lead by reason of the generalty of the words they doe by the same reason extend to all commodities For what more liberall words can there be than these That the King will not charge set or assesse upon the custome these words the custome being words indefinite are you know equivalent to an Universall according to the rule Indefinitum aequipollet universali And although the King doe but promise yet I doubt not but in this case his promise is a Law And it is worth the observing that the Lords doe in very extraordinary and unusuall manner solemnly undertake as much as in them lyeth that they shall procure the King to hold the same and that they shall in no wise assent to the contrary if it be not by the assent of the Prelates Earles Barons and Commons and that in full Parliament and for the greater surety and to give cause to eschew all counsell to the contrary of this Ordinance the Prelates have promised to give sentence upon them that counsell against the same in any point which are the very words of the Statute in print The Statute of 14 Ed. 3. cap. 21. was yeilded unto by the King 13. Ed. 4. no. 5. Ro. Par. upon a Petition exhibited the Parliament before both by the Lords and the Commons praying that a Law might be made against Impositions as may appeare by the Records of the 13 yeere of Ed. 3. at which time they likewise prayed that the King would be pleased to grant them a Charter to the same effect to be inrolled in Parliament The Statute you have heard the Charter followeth in our printed bookes immediately after the Statute where the King in the preamble thereof reciting the great gift that he had given him at the same Parliament that is to say the 9th Fleece 9th Sheep 9th Lamb throughout the Kingdom which indeed was a very extraordinary great guift and therefore his grant in regard thereof is to be intended so much more beneficially doth in lieu thereof for him and his heires grant to his Subjects in these words From henceforth they shall not be charged nor grieved to make any ayde or to susteine charge if it be not by the Common assent of the Prelates Earles Barons and other great men and the Commons of our said realme of England and that in Parliament It hath been objected that these words Aide and Charge are to be understood of Charges within the Land such as are Taxes and Tallages An Objection that the stat of 14 Ed. 3. An. 21 extendeth only to Impositions within the land and not to Imposition upon Merchandizes is answered and not of Impositions upon Merchandizes And this is the only Objection made or indeed can be made against this Statute For the cleering of which I can say no more then already I have proved by matter of Record for the opening of the sense of this Statute viz. That this Charter and the last Statute were made upon a Petition exhibited in Parliament for a law and Charter to be made against Impositions upon Merchandizes And therefore that conjecture of theirs that it should extend only to Taxes and not to Impositions cannot but fall to the ground especially since there is not in the Petition any mention at all of Taxes or Tallages or of any other charge or aide but impositions onely then which there cannot allmost be a cleerer proof then that this Law being made upon this Petition is to be expounded against Impositions which if this Petition had not been extant would with no lesse cleernesse have been proved by considering the mischiefe at the time of the making of this law which was not Tallage or Taxes but those heavie Impositions of Foure pound and five pound upon a sack of Wooll by way of dispensation with the Statute of 11. E. 3. cap. 1. of which I have formerly made mention So as this Statute being made in the first intention against dispensations for money with a penall law though the occasion were particular yet the words being generall I hold that with reason it may be extended against all dispensations with penall lawes for money in particular I hold that the raising of money by dispensations with the Statutes