Objection 101 CHAP. XXVI The third Objection touching the repeal of Charta Mercatoria by King Edw. 2. and the remitall of divers Impositions by King Edw. 3. upon sundry Petitions of the Commons in Parliament and the punishment of divers Persons in Parliament for procuring Impositions to be set up 106 CHAP. XXVII The Answer to the third Objection 110 CHAP. XXVIII The fourth Objection that the Prerogative is bound or taken away by divers Acts of Parliament 129 CHAP. XXIX The Answer to the fourth Objection 131 CHAP. XXX The fifth Objection that Tonnage and Poundage were never taken but when the same was granted by Parliament 140 CHAP. XXXI The Answer to the fifth Objection 141 CHAP. XXXII The Conclusion 146 CHAP. XXXIII A Comparison of the Impositions set and taken in England by the Kings Prerogative with the Exceptions and Gabells in Forein States and Kingdoms whereby it will appear that the Subjects of the Crown of England do not bear so heavy a burthen by many degrees as the Subjects of other Nations do bear in this kind 147 AN ARGUMENT UPON The Question of Imposition digested and divided into sundrie Chapters by one of His Majesties learned Counsel in IRELAND CHAP. 1. The Exposition and meaning of certain words which do shew the true state of the Question THe Question it self is no more than this Whether the Impositions which the King â—f England hath laid and levied upon Merchandize by vertue of his Prerogative onely without Act of Parliament be lawful or warranted by the Law of England By the word Imposition we mean only such rates or sums of money as the King by Letters Patents under the Great Seal of England or Ireland hath set upon Merchandizes imported and exported and commanded the same to be paid and levied to His Majesties use over and above the Customes and Subsidies formerly due and payable for the same Merchandizes By the word Merchandizes we mean only such goods or Merchandizes as are transported over the Seas from one Realm or Dominion unto another to be sold or exchanged for reasonable gain or profit for upon the ingate or outgate of Commodities so crossing the Seas only Customes Subsidies and Impositions for Merchandizes are paid and taken and not for any Commodities carried too and fro by Sea and Land within one and the same Realm and Dominion By the Law of England we understand not only our customary Common Law and our Statutes of England which are Native and peculiar to our Nation only but such other Laws also as be common to other Nations as well as us have been received and used time out of mind by the Kings and people of England in divers cases and by such ancient usage are become the Lawes of England in such cases namely the generall Law of Nations and the Law-Merchant which is a branch of the Law the Imperial or Civil Law the Common or Ecclesiastical Law every of which Laws so far forth as the same have been received and used in England time out of mind may properly be said to be the Laws of England CHAP. II. Of the general Law of Nations or Jus Gentium and the force thereof in all Kingdoms that traffique and commerce is a principal subject of that Law and that it giveth power unto all Kings to take Customes and Impositions upon Merchandizes and that the Crown of England hath many Prerogatives annexed to it by the Law of Nations of which our Common Law taketh notice and doth admit and approve the same JVs Gentium or the generall Law of Nations is of equal force in all Kingdoms for all Kingdoms had their beginning by the Law of Nations therefore it standeth with good reason that the Law of Nations should be of force and of like force in all Kingdoms and for this cause in the Realms subject to the Crown of England the Law of Nations also is in force in such cases especially wherein the King himself or his Subjects have correspondence or commerce with other Nations who are not bound in those cases by the Municipall Laws of England Omnes populi saith Justinian qui legibus moribus reguntur partim suo proprio partim coÌ„muni omnium hominum jure utuntur nam quod quisque populus ipse sibi Ius constituit id ipsius proprium Civitatis est vocaturque jus Civile quod vero naturalis ratio inter omnes homines constituit id apud omnes homines plerumque custoditur vocaturque Ius gentium quasi quo jure omnes gentes utuntur and in the same place it is said Ius Gentium omni hominum generi coÌ„mune est ex hoc Iure Gentium omnes pene contractus introducti sunt ut emptio venditio locatio conductio societas depositum mutuum c. And with this agreeth our Doctor and Student lib. 1. cap. 2. where it is said that Trade and Traffique is by the Law of Nations so that Commerce Trade Traffique for Merchandize between the people of several Nations and Kingdoms is a principal subject of the Law of Nations and therefore to that question that hath been made in England Whether the ancient Customes payable for Merchandizes did first grow due by our customary Common Law or Statute Law of England Why may I not answer that neither the Customary Law nor the Statute Law of England but the generall Law of Nations did first give these duties unto the Crown of England For as the Law of Nations was before Kings for Kings were made by the Law of Nations Ex jure Gentium Reges originem traxerunt saith Baldus So Kings were no sooner made by the Law of Nations but presently the same Law cum creatus fuerit Rex ei omnia regalia conceduntur competit omnibus Regibus jus imponendi quantum habet Regalia saith Baldus Vectigalia introducta sunt à jure c. which is the Law of Nature or Nations Ideo non otiosa sed favoralia saith another Doctor did annex this Prerogative to their several Crowns Vectigalorigine ipsa jus Caesarum Regum partimoniale est saith another Inhaeret Sceptro saith another and therefore when our ancient British Kings took up Customes for Merchandizes transported into France as Strabâ— writeth Britanni vectigalia tollebant gravia earum rerum quas brevi trajectâ— in Galliam importabant shall we presume they did it by Act of Parliament no for doubtlesse they did it by vertue of this Prerogative given unto them by the Law of Nations for Kings upon their first institution did greater things than this by their Prerogative without the consent of the people Vetusissima coronae jura ex singulari Regum decreto primitus orta saith a learned Doctor and at first saith Iustinian Arbitria Regum pro legibus fuere and so saith Halicarnassus lib. 3. Cicero offic. lib. 2. And truly as Customes and Impositions taken upon importations of Merchandizes being most
they wanted right so to doe or because they doubted of their right in that behalf for they well knew they had the same right the same prerogative and absolute power that their Predecessors had but because they found other means to make other profit upon transporting of Merchandizés and that in another manner and in so high measure as the trade of Merchandizes in those daies could hardly bear any greater charge without danger of overthrowing all Trade and Comerce And therefore those Princes did in their wisdomes forbear to lay any further Impositions by their Prerogatives For these Kings who reigned after King Edw. 3. who conquered Callis in France and before Queen Mary lost Callis had two principal waies and meanes to raise extraordinary profits upon Merchandizes but proceeding from one cause namely from establishing the Staple at Callis for King Edw. 3. some few yeares before his death did by his Prerogative in point of Government without Act of Parliament erect a Staple at his Town of Callis and did ordain and command that all the Merchandizes exported out of England Wales and Ireland by any Merchant Denison or Alien should presently be carried to the Staple at Callis and to no other place beyond the Seas This Staple at Callis was first setled and fixed there by an Ordinance which the King made by virtue of his Prerogative and absolute power in the government of Trade and Comerce without Act of Parliament And if this Ordinance so made had been thought unlawful and against the liberty of the Subject it would never have been approved and confirmed by the Judgements of so many Parliaments in the times of Rich. 2. Hen. 4. Hen. 5. and Edw. 4. Neither could there have been such heavy penalties layd by those Parliaments upon the transgressors of those Ordinances Insomuch as in the time of King Henry the sixth it was made Felony to Transport any Merchandizes to any part beyond the Seas but to Callis onely Now the Staple of Callis being thus established there did arise a double profit to the Crown for transportieg of Merchandizes over and above the ancient Customes and other Subsidies granted by Parliament First it came to pass that the Customs and Subsidies for Merchandizes transported out of England Wales and Ireland which before was single and payd but once that is upon the outgate after the establishing of the Staple at Callis the duties for the same Merchandizes became double at the least and for the most part treble and were ever payd twice and for the most part thrice namely once upon the outgate in the Ports of England Wales and Ireland secondly upon the ingate at Callis and because all the commodities brought into Callis could not be vented into the main Land there but the greatest part was to be exported again by Sea into higher or lower Germany and other the North-East Countries and some into Spain and Italy and the Hands of the Levant there did arise a third payment of Customes and Subsidies for so much of their commodities as were exported again cut of Callis by meanes whereof the Customes and Subsidies did amount to threescore thousand or threescore and ten thousand pounds sterling per annum in the latter times of King Edw. 3. and during the reign of Rich. 2. Hen. 4. Hen. 5. and the beginning of the reign of Hen. 6. as appears by the Records of the Exchequer of England which according to the valuation of Moneys at this day the ounce of Silver being now raised from two shillings to five shillings do make two hundred thousand pound sterling per annum which doth equal or surmount all the Customes Subsidies and Impositions received at this day though that plenty of money and price of all things and consequently the expences of the Crown be exceedingly increased in these times And albeit the breach of Amity between the Crown of England and the Duke of Burgundy who was the Lord of the Lower Germany in the weak and unfortunate time of King Hen. 6. did cause a stop of Trade between us and that Country into which the greatest part of our Staple wares especially Wooll and Cloth were vented and uttered and was likewise the cause of loss of all our Territories in France except Callis and all the Merchandizes thereof whereby the Customes and other duties payable for Merchandizes were in the time of that unhappy Prince withdrawn and diminished to a low proportion yet afterwards upon the Mariage of Margaret Sister to King E. 4. unto the Lord Duke of Burgundy as that in honour of the English Wooll which brought so much Gold into his Country he instituted the Order of the Golden Fleece and thereupon the Customes Subsidies and Impositions were raised again to so high a Revenue as our Kings could not well in policy strain that strength of profit upon Merchandizes any higher Secondly albeit the Staple established at Callis being first established by an order made by the Kings Prerogative and absolute power was afterwards approved and confirmed by sundry Acts of Parliament yet did the King by another Prerogative retain a power to dispence with that Ordinance and those Acts of Parliament and to give license to such and so many Merchants as himself thought fit to export any Merchandizes out of England Wales and Ireland unto any other parts beyond the Seas besides à non obstante of the first Ordinance and of the Statutes which did establish the Staple at Callis By virtue of this Prerogative and power the several Kings who had Callis in their possessions did grant so many Licences to Merchants as well Aliens as Denizens to transport our Staple commodities immediately into other places without coming to Callis for which Licences whereof there are an incredible number found in the Records of England the Merchants payd so dear for their commodities especially the Genoeses and the Venetians and other Merchants of the Levant as by the profits made of those Licences did amount to double the value of those Customes and Subsidies payable for exportation thereof and thereof those Princes as they had the less need so had they no reason at all to charge the Trade of Merchandizes with any other or greater Impositions In these two points before expressed doe consist the principal cause why the Princes of England who succeeded King Edw. 3. who won Callis untill the reign of Queen Mary who lost Callis did not directly use their Prerogative in setting any other Impositions upon Merchandizes above the ancient Customes and Subsidies granted by Parliament For it is to be observed that most part of those Princes who reigned after K. Edw. 3. and before Queen Mary had the Subsidy of Tonnage and Poundage granted unto them by Parliament which being added to the gain of the Staple of Callis did augment not a little the profit layd upon Merchandizes And may be a reason likewise why those Kings did forbear to lay any other Impositions by their Prerogative
we find a more brief cause of Justice for there the King in respect of the loss which certain Merchants of London had sustained by an arrest made of their goods made by the Countesse of Flanders doth grant unto them all the Merchandizes whereof the Flemings were possest in England Rot. Pa. 3 E. 1. m. 19. in Archivis turris London Whereupon the Lord Mayor of London did seize so much goods of the Flemish Merchants as amounted to 730. Marks and delivered the same to Thomas Debassing and other Merchants who had suffered loss by that arrest and in the same Roll of 3 Ed. 1. the Lord Mayor of London and Bailiffs of Southampton are commanded by the Kings Writ Quod omnes Mercatores Londienses ad partes Angliae accedentes per bona catalla sua distringuantur sed in legem mercatoriā consuetidinem Regni ad satisfaciendum Mercatoribus Florentinis de pecuniis ipst mutuo tradiderunt Willielmo Episcopo Leodiensi Here we see that Lex mercatoria which doth apparently differ from the ordinary Cōmon Law of this Kingdom is said to be Consuetudo Regni And lastly in a sute at the Common Law no mans Writing can be pleaded against him as his Act and Deed unlesse the same be sealed and delivered but in a sute between Merchants Bills of Lading Bills of Exchange being but Tickets without Seals Letters of advice and credences Policies of assurance Assignations of debts all which are of no force at the Common Law are of good credit and force by the Law Merchant Thus we see how Merchandizes do differ from other goods and Chattles in the eye of the Law and how the Law Merchant doth differ from the common Law of England and how the Common Law doth admit and allow thereof Our Parliaments likewise have not onely made extraordinary provision for the more speedy recovery of Debts due unto Merchants for their Merchandizes than is provided by our Common Law as appeareth by the Statute of Acton Burnell made the 11 Ed. 1. and the Statute de Mercatoribus made 13 Ed. 1. but also have course of proceedings in cases of Merchants differing from the course of our Common Law for by the Statute of 27 Ed. 3. cap. 2. it is declared that the proceedings in causes of Merchants shall be from day to day and hour to hour according to the Law of the Staple and not according to the course of the Common Law and by another Article in the same Parliament that all Merchants comming to the Staple should be ruled according to the Law of Merchants touching all things comming to the Staple and not by the Common Law of the Land and by another Article that neither of the Benches nor any ordinary Judges of the Common Law shall have any Jurisdiction in those cases and lastly that the Law of Marque and Reprisall which is a branch of the Law Merchant shall be used as it had been used in times past So as the Parliament doth but declare the ancient Law and doth not introduce a new Law in those cases Untill I understood this difference between Merchandizes other goods and between the Law Merchant and the Common law of England I confess I did not a little marvell England being so rich and entertaining Traffique with all Nations of the World having so many fair Ports and so good Shipping the King of England also being the Lord of the Sea and also a principall part of his Royal Revenue consisting in duties payable for Merchandizes so as many Questions must of necessity arise in all ages touching Merchants and Merchandizes What should be the cause that in our Books of the Common Law of England there are to be found so few cases concerning Ships or Merchants or concerning Customes or Impositions payable for Merchandizes But now the reason thereof is apparent for the Common Law of the Land doth leave these cases to be ruled by another Law namely the Law Merchant which is a branch of the Law of Nations The Law Merchant as it is a part of the Law of Nature and Nations is universall and one and the same in all Countries in the World for as Cicero saith of the Law of Nations Non erit alia lex Romae alia Athenis alia nunc alia posthac sed omnes gentes omni tempore unalex eademque perpetua continebit c. So may we say of the Law Merchant there is not one Law in England another in France another in Spain another in Germany but the same rules of reason and the like proceedings of the Law Merchant are observed in every Nation for as our Chancellor of England affirmeth 13 E. 4. 9. That the proceedings of the Law Merchant ought to be according to the Law of Nature which is universall so say the Civilians of severall Nations The Italian Doctor saith In curia mercatorum naturalis aequitas praecipue expectanda ex aequo bono causas dirimendas esse The French man saith In curia mercatorum proceditur de mera aequitate omissis solemnitatibus apicibus juris The Spaniard likewise saith Apices subtilitas juris non considerantur in foro mercatorio whereby it is manifest that causes concerning Merchants and Merchandizes are not wont to be decided by the peculiar and ordinary Laws of every Country but by the generall Law of Nature and Nations out of which resulteth this Conclusion Suppose it be admitted that by the positive Law of the land Taxes and Tallages may not be laid upon our goods within the land without an Act of Parliament yet by the Law of Nations and by the Law Merchant which are also the Law of England in cases of Merchandizes the King of England as well as other Kings may by vertue of his Prerogative without Act of Parliament lay Impositions upon Merchandizes crossing the Seas being goods whereupon the Law doth set another character than goods possessed in the land as is before expressed CHAP. IV. Of the Imperial or Civil Law and of the extent of the Iurisdiction thereof of what force it is at this day within the Monarchies of Europe and in what case it is received within the King of Englands Dominions and how it warranteth all Kings and Absolute Princes to lay Impositions upon Merchandizes WHen the City of Rome was Gentium Domina Civitas illa magna quae regnabat super Reges terrae The Roman Civil Law being communicated unto all the Subjects of that Empire became the Common Law as it were of the greatest part of the inhabited world yet the extent thereof was never so large as that of the general Law of Nature as it is noted by Cicero offic. lib. 2. Majores nostri aliud jus Geutium aliud Civile jus esse voluerunt quod enim civile non idem continu◠Gentium quod autem idem civile esse debet whereby it is manifest that the
find in divers ancient Charters made unto those Corporations a power granted unto the King to take de omnibus rebus venalibus within their Liberties certain sums of Money viz. de libra piperis so much de libra zinziberis so much de quolibet panno c. for murage or towards the reparation of their Walls which is nothing else but an Imposition laid by the Kings Charter to maintain those Cities Boroughs wherein Trade and Traffique is maintained wee find such a Charter granted to Nottingham 3 Edw. 1. pat m. 21. in Arch. turris London The like is granted to Cloneniell and to some other Towns in Ireland F. N. 170. B. We find a Patent granted to a Burrough in England to take for five years a certain sum of Money of every Passenger toward the paving of the same Town Again no Fair or Market may bee holden within the Realm neither can a multitude of Subjects assemble themselves together to that end without a speciall Warrant or Grant of the King and when a Subject hath a Grant of a Fair he hath a Court of Py-powder incident thereunto wherein the proceeding in Summary de plano from hour to hour as in the Court of Merchants And for the Government of all Fairs and Markets especially touching Weights and Measures the Standard whereof was first established by the Kings Ordinance to whom the establishing of the Standard Monies which is mensura publica omnium rerum commutabilium is also reserved as a speciall Commoditie Besides in every Fair and Market where things are bought by retail for the necessary use of the Buyer and not to sell the same again as Merchandizes in another Market for that is regrating and unlawfull by the rule of the Common Law There is a Toll taken which is nothing else but an Imposition laid upon the Buyer and that that Toll was originally imposed by the Kings Prerogative it is manifest in this that the ancient Tenants of the Crown namely the Tenants in ancient Demeasne are discharged of Toll in all Markets and Fairs and that the King by Charter hath discharged divers other persons of Toll as appeareth in the Register of Writs and Fitz. Na. Brevium where we find divers Writs essend quiet de Theolneo But this discharge of Toll is onely for things bought for necessary use of the Buyer and for Merchandizes for the Tenants in ancient Demeasne are discharged of Toll for such things only as are for their provisions or manurance of their lands and in the Writ which dischargeth the goods of Ecclesiasticall persons of this Toll there is this clause dummodo non faciat Merchandizas de iisdem as is before declared Lastly the Kings Prerogative in the Ordering and Government of Trade within the Realm doth appear in that notable Charter granted to the Abbot of Westminster recited in the Register of Writs fol. 107. wherein the King doth grant to the Abbot and his Successors to hold a Fair at Westminster for thirty two dayes together with a prohibition that no man should buy or sell within seven miles of that Fair during that time CHAP. IX That the King hath another Prerogative in the Government in the Trade of Merchandizes crossing the Seas differening from the Prerogative which he useth and ordereth in Trade and Traffique in Markets and Fairs within the Land and of the difference between Custome and Toll by the rules of the Common Law TOuching Merchandizes crossing the Seas outward and inward the same are of another quality and the Law hath another consideration thereof than it hath of such things as are bought and sold in Fairs and Markets within the Land as is before expressed and therefore the duties payable upon the exportation and importation of Merchandizes have another name being called Customes and not Toll and are also paid in another manner for Customes must be paid before the Merchandizes be discharged and brought to Land whereas toll is not paiable but for goods brought into the Fair or Market Again Custome must be paid whether the Merchandizes be sold or not but Toll is not due but for goods bought and sold in the Market Again Custom is alwayes paid by the Merchant who selleth or intendeth to sell his Merchandizes in grosse but Toll is ever paid by the party who buyeth some Commodity for his proper use and provision by retail Lastly if Customes be not paid or agreed for before the Merchandizes be discharged and brought to Land the Merchandizes are ipso facto forfeited and may presently be seized to the use of the King but if Toll be not paid the thing sold is not forfeited only it may be distrained and detained till the Toll bee paid or an Action upon the Case may be brought for the Toll These differences between Custome and Toll do apparently prove that Merchandizes for which Customes are paid do differ from other goods sold in the Markets and Fairs for which Toll is taken and that the Trade of Merchandizes crossing the Seas and the Trade that is used in Markets and Fairs are ordered by different Prerogatives and as the Tolls of severall kinds which are taken in Markets Fairs and Towns Corporate were first imposed by vertue of that Prerogative whereby the King ordereth all Trade within the Land so by vertue of that other Prerogative whereby the King governeth the Trade of Merchandizes crossing the Seas the Crown of England ever since the first institution of the Monarchy hath from time to time raised and received out of Merchandizes Customes and Impositions of divers Nature and Natures according to the diversities of Merchandizes exported and imported and the divers occasions and necessities of the comercion CHAP. X. Of the ancient duty called Custome payable for our principall Commodities exported and that it was originally an Imposition THE ancient duties payable for Merchandizes were but of two kinds and known by two names Customes and Prizes Customes were paid for Homebred and Native Commodities exported and Prizes were taken out of Forreign Commodities imported The Native Cōmodities out of which Custome was paid were Wooll Wooll-fells and Leather and this Custome did consist of rertain rates or sums of Mony imposed by the King upon those Merchandizes exported which rates were raised and reduced higher or lower from time to time as occasion did arise for although in the time of King Edw. 1. the Customes payable for those Commodities were reduced to this certainty viz. to a demi mark for every Sack of Wooll a demi mark for every three hundred Wooll-fells and a mark for every last of Leather which we call now the great and ancient Custome ab initio non fuit sic these were not the rates from the beginning for not long before that time there was a greater and more ancient Custome paid for the exportation of those Commodities Britanni saith Strabo vectigalia tollebant gravia earum rerum quas brevi trajectu in Galliam importabant
We may adde hereunto other reasons First Rich. 2. was a Minor and over-ruled by the great Princes of the Blood who would not suffer him to use his Prerogative Secondly that during the Wars of Lancaster and York there was no fit time to make use of that Prerogative while both parties did strive to win the favour of the people Thirdly that King Hen. 7. had much ado to settle himself in the quiet possession of the Kingdome after those troubles Fourthly that King H. 8. had such a mass of Treasure left him by his Father and did so inrich himself by dissolution of Abbyes as he had no need to make use of this Prerogative Fiftly that K. E. 6. was also a Minor and that his chiefest Council did more contend to advance their own houses than the Kings profit CHAP. XVIII That Queen Mary did use her Prerogative in laying Impositions upon Merchandizes QUeen Mary in whose time the Town of Callis was lost and consequently the benefit of the Staple at Callis was lost did by her absolute power as appeareth by the Report of the Lord Dyer 1 Eliz. Dyer 165. raise an Imposition upon Clothes viz. six shillings and eight pence upon every Cloth over and above all Customes and Subsidies True it is that the Merchants petition'd to be disburthened of this Imposition which was referred to the consideration of the Justices and other whereupon they had many assemblies and conference as that Book reporteth And albeit the Resolution of the Judges in that behalf be not found in that book it is to be presumed That they adjudged the Imposition to be just and lawfull because it was continued and answered during all the Reign of Queen Mary This Queen Mary likewise by her Preroonely layd an Imposition of four Marks upon every Tun of French Wines over and above the Prizage and Buttlerage which during her life time was payd without contradiction CHAP. XIX That Queen Elizabeth also used her Prerogative in laying Impositions upon Merchandizes QUeen Elizabeth also by virtue of the same Prerogative did not only continue the Impositions layd by Queen Mary upon Cloths and French Wines but did raise other Impositions of sundry sorts of Merchandizes by the same absolute power namely upon every Tun of sweet Wines upon every Tun of Rhenish Wines upon every Kental of Allom which during the time of the prudent Princess were payd and received without question Besides the same Queen upon complaint made unto her in the twelfth year of her Reign That the State of Venice did impose one Ducket upon every hundred of Currans exported out of their Dominions by the Merchants of England did by her Letters Patents grant unto the English Merchants who traded into the Levant That they only and their Assigns might bring Currans into England The English Merchants having this privilege did take five shillings and six pence upon every hundred waight of Currans brought into England by Strangers which was duly payd although it was taken by the Merchants by virtue of their privilege only of fortiori yet it ought to have been payd if it had been payable to the Queen her self as the Lord Chief Baron Fleming did observe in his Argument of Bate's case of Currans in the Court of Exchequer in England CHAP. XX That our Soveraign Lord King James hath by virtue of the same Prerogative without Act of Parliament layd several Impositions upon Merchandizes HIS Majesty likewise when he came to be King of England finding his Crown to be seized of this Prerogative and finding withall the necessary charge of the Crown exceedingly to increase did for the supportation thereof not onely continue the Impositions layd by Queen Mary and Queen Elizabeth but also layd new Impositions upon sundry sorts of Merchandizes over and above all Customes and Subsidies formerly due and payable for the same And these are the Impositions now the principal of these is twelve pence upon the pound or a second poundage set upon Merchandizes as well exported as imported by Letters Patents 28. Iuly in the sixth year of his Majesties Reign but how is it set and imposed surely with such moderation and limitations and such receptations full of grace and favour as no Monarch or State in the world did ever impart to their Subjects the like in the like case for besides other gracious clauses contained in the same Letters Patents All commodities serving either for food or sustenance of the Kings people or seting the poor on work or for munition or defence of the Realm or for maintainance of Navigation or which especially tends to the enriching of a Kingdome are excepted and discharged by this Imposition As for the special Impositions which his Majesty hath set upon certain forrein commodities as Currans Logwood Tobacco c. As touching the first of these the Imposition hath been adjudged lawful in the Court of Exchequer of England And for the other commodities they are of such nature as no man ever made question but that the Impositions set upon them were lawful Besides these Impositions layd in England his Majesty by his Prerogative onely since the beginning of his Reign received the Impost of Wines in Ireland and hath likewise to make equality of Trade in that Realm layd an Imposition of twelve pence on the pound of all other Merchandizes imported and exported out of the Ports of Dublin Waterford Drogheda and Galway the Citizens of which Cities and Townes are exempted and discharged of Poundage granted by Act of Parliament there which Imposition was never impugned in Ireland but hath since the setting thereof been levied and payd without contradiction And that wee see how long the Crown of England hath been seised of this Prerogative in laying Impositions upon Merchandizes and how the same hath been put in practice by the most prudent Princes since the Conquest CHAP. XXI The general reasons whereupon this Prerogative is grounded ALthough it be a matter of difficulty and doth savour withall of curiosity and presumption to search a reason for every Prerogative that is incident to the Crown for Sacrilegii est disputare de Principis facto saith the Imperial Law and Scrutator Majestatis opprimitur à gloria saith the Wise man Yet the reasons whereupon this Prerogative is grounded are so many and manifest as it were not amiss to collect the principal of them rather for the confirmation than the satisfaction of such as have moved this question touching the lawfulness of Impositions layd by his Majesty upon Merchandizes First the King is the Fountain of all Justice and therefore the first reason drawn from the Kings charge in doing Justice and procuring Justice to be done to Merchants not onely distributive Justice wherein consisteth Praemium and Paena but cōmutative Justice is also derived from the king Now his Majesty doth exercise commutative Justice chiefly in the ordering and government of Trade and Comerce wherein hee is to doe Justice or to procure Justice to
or to lay Impositions as the Emperor of Rome or Germany or any other King Prince or State in the world now have or ever had yet let it be truly said for the honor of the Crown of England That His Majesty that now is and all his Noble Progenitors have used and put in practice this Prerogative with more moderation and favor toward the people than any Forein State or Prince in the world have besides and that in three respects First the King of England doth make use of this Prerogative only in laying Impositions upon Merchandizes crossing the Seas upon such onely and not upon any other goods which are bought and sold within the Land neither doth he by his absolute power alone impose any Tax upon Lands or Capita hominum or Capita animalium or upon other things innumerable whereof there are strange presidents and examples both Ancient and Modern in other Countries Secondly the King doth not charge all Merchandizes crossing the Seas with this Imposition now in question for in the Letters Patent whereby the Imposition of twelve pence in the pound over and above the Subsidie of Poundage is laid and limited divers kinds of Commodities are excepted especially such as serve for food and subsistance of the Kings people for setting the poor on work for maintainance of Navigation and other things of like nature as before is declared Thirdly the Impositions which are laid by the Kings of England upon Merchandizes are not so high as the Impositions and Exactions set and taken by other Princes and States for the highest Imposition in Ireland is but twelve pence upon the pound or but a single Poundage which is but five in the hundred and is the lowest rate in Christendome at this day and in England there is added but twelve pence in the pound more which is but ten pound upon the hundred pound and yet divers sorts of Merchandizes as I said before are excepted and discharged of that Imposition of the second Imposition of twelve pence But on the other side let us see the practice of other Princes and States in laying Impositions and how far they have extended and strained their Prerogative in that point beyond and above the Impositions in England I will begin with the Romans when they had gained the Monarchy of the World so as all Kingly power did rest in their Emperor First Iulius Caesar laid the first Imposition upon Forein Merchandizes saith Suetonius peregrinarum mercinm portaria primus instituit and that Imposition was Octava rerum pars which was more by a fifth part than our highest Imposition in England for it is two shillings and six pence upon the pound Next Augustus Caesar about the time of our Saviours Birth sent out an Edict whereby he did tax all the world and this Tax was Capitatio or an Imposition super capita hominum though the quantity thereof doth not appear but the poll-money which our Saviour did pay and wrought a miracle it seemeth to be an high Imsition for the peeces of money taken out of the Fishes mouth which is called didrachma or stater is said to bee worth two shillings and six pence sterling which being given for himself and Peter da illis pro me et te shews that fifteen pence sterling was given for a Poll which must needs amount to an infinite thing if it were collected over all the World then subject to the Roman Emperor Tiberius the Roman Emperor who succeeded Augustus took the hundred part of all things bought and sold within the Empire which perhaps was an Imposition of greater value and profit than the other Caligula the Emperor layd an Imposition upon all Sutes in Law and took the fourth part of the value of the value of the thing sued for and set a pain upon the Plaintiff if he compounded or were Non-suted without his Licence He likewise imposed a number of Sesterâ—â— upon every Marriage contracted or made within the whole Empire Vespasian in meaner and more homelier matters took by way of Imposition a part of every poor Labourers wages and part of every Beggers alms he set likewise an Imposition upon Vrine and pleased himself with this Apothegm Dulcis odor lucri ex re qualibet Severus the Emperor did impose upon the dishonest gains of the Stews and took part of the Prostitutes there as the Bishop of Rome doth at this day all the Emperors before Trajan took the twentieth part of all Legacies and Lands descended as things which came unlooked for and as a cleer gain and therfore the Heirs and Legatories might easily spare a part to the Emperor and Nicephorus one of the Emperors of the East did not onely take sumaria tributa Smoke-money out of every Chimney but he layd an Imposition upon every mans Estate that grew suddenly rich upon a presumption that hee had found a Treasury which did belong to the Emperor by Prerogative With a little more search I might find out other Impositions of severall kinds set by the ancient Emperors upon the heads of Beasts upon the tiles of Houses and the like I might adde hereunto the Impositions set by Lotrain upon every pane of Glasse in Windows but these may suffice how high they strained and how far they extended their Prerogatives in this point of Impositions Secondly the Roman Empire being over-come by the Gothes and Vandalls and other barbarous Nations and thereby broken into Kingdomes and Free States their passed divers ages before these Monarchies could be well setled and before peace bred plenty and plenty bred civility and before Trade Traffique Comerce and Intercourse could be established between these States and Kingdoms and therefore while these States and Kingdoms were yet but poor and while there was a generall scarcity of Gold and Silver in these parts of the World and so for want of money there was but little Trade and Traffique among the people either at home or broad Kings and Princes did not neither could they make that use of their Prerogative in laying Impositions as they had done in those latter times since all Arts and Sciences have been encreased all Commodities improved and the Riches of the East and West Indies have been transported into this Hemisphere But now let us see whether the Kings and Princes of other Countries round about us at this day make not a far more profitable use of their Prerogatives in laying Impositions upon their people than the King of England doth albeit his Kingly power be full as large as any of theirs In France the most richest and ancientest of the Neighbour Kingdoms the Impositions not onely upon Merchandizes crossing the Seas but also upon Lands Goods persons of men within the Realm are so many in number and in name so divers as it is a pain to name and collect them all and therefore it must needs be a more painfull thing for the people of that Kingdom to bear them all La