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
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
Law of Nations is and ought to be a binding Law in all States and Countries as it is binding so it is perpetuall and cannot be rejected as the Roman Civil Law is rejected in most of the Kingdoms in Europe in such cases as do arise within the body of every Kingdom In France Philip le Bell saith Bodin de Repub. lib. 2. cap. 8. when he erected the Courts of Parliament at Paris and Mountpelier did expresly declare That they should not be bound in their judgments by the rule of the Roman Civil Law and in erecting of all the Universities of France they are charged in their severall Charters not to revive the profession of the Civil and Common Law as of binding Laws in that Kingdom and therfore Earum non imperio sed ratione utimur saith another learned Doctor of France In Spain saith Bodin in the same place several Kings have made Edicts that no man upon pain of death should allege the Roman Civill Law as a binding Law in their Dominions And that Stephen King of Spain did forbid the publique pleading of the Civill Law As for England to omit what Pope Elutherius wrote in his Epistle to Lucius the first Christian Monarch of the Britains and whereof mention is made in Saint Edwards Laws de protestate Regia Ecclesiastica published in the time of 3 Hen. 8. petiistis saith he leges Romanas Caesaris vobis transmitti quibus in regno Eritaniae uti voluistis leges Romanas Caesaris reprobare possumus legem Dei nequaquam c. In a Parliament holden in England 11 R. 2. when a course of proceedings in Criminal causes according to the Civil Law was propounded an answer was made by all the States assembled That the Realm of England neither had been in former times nor hereafter should be ruled and governed by the Civil Law Rot. Parliament 11 R. 2. in Archivis turris London and accordingly Chopinus the French Lawyer in his Book de Domino Franciae tit. 28. speaking of the Civil law hujus Romani juris saith he nullus apud Anglos usus sed ex veteri gentis instituto Britani reguntur legibus municipialibus quas illis majorum mores praescripserunt But this is to be understood of causes arising within the Land onely for all Marine and Sea causes which doe arise for the most part concerning Merch and Merchandizes crossing the seas our Kings have ever used the Roman Civil Law for the deciding determining therof as the Romans did use the Law of the Rhodians in those cases according to the memorable rescript of the Emperour Anthonius terram suis legibus Rhodits Regi How be it now those Laws of the Rhodians are digested and incorporated into one body of the Civil Law the jurisdiction touching causes arising upon the Sea is committed by the King of England to his Admirall who in his Court of Admiralty doth proceed in those cases according to the rule of the Civil Law Now for the Rules of the Civill Law touching the power of Kings in laying Impositions upon Merchandizes the same are clear without question and observed without contradiction in all the nations of the world Regii tantum juris ac muneris est vectigalia imponere redditus seu vectigalia portus quae perveniant ex his quae in portum vel ex portu vehentur regalia sunt Rex qui non recognoscit superior em potest instituere nova vectigalia c. hoc est jus totius mundi totus mundus hoc jure utitur the D. Doctors who interpret the Imperiall Law have their Books full of these Rules And if it be objected That these rules of the Imperiall Law are onely intended of the Emperour a learned Civilian hath this position plus juris habet Rex in Regno quam Imperator in imperio quia Rex transmittit regnum ad successionem quod non facit imperator qui est tantum electionis c. Lastly when I speak of the rules of the Civil Law and make use thereof I do apply the same onely in cases of Merchandizes crossing the Seas which I do expresse by way of protestation that I may not be mistaken here and in other places where I cite the Text of the Imperiall Law as if I intended that Law to be of force in England generally as in other places CHAP. V. Of the Canon or Ecclesiastical Law and how far forth it doth examine and resolve this Question in cases of Conscience only THe Canon Law is received and admitted in England as a binding-Law in cases Ecclesiasticall which are indeed the proper Subjects of that Law But this question of Imposition is meerly Civil and therefore the Canon Law doth not handle it but in cases of Conscience only so indeed it doth examin and determine in what cases an absolute Prince may with a good conscience lay and demand new Impositions Decret. causa 24. Quaesti 3. Princeps potest indicere nova vectigaliae and in Summa summarum tit. de gabellis exactionibus these rules and distinctions are laid down Quilibet Monarcha potest imponere novum vectigal quod tamen boni viri arbitrio moderandum est potest Princeps imponere vectigal ultra conventionem in duobus casibus 1. quando redditus ejus non sufficiunt ad segimē boni cōmunis decentiam status-ejus 2. quando non sufficiunt ex nova emergentia principes enim sunt à Deo instituti ut nō quaerant propria Lucra sed cōmunem utilitatem populorum lilia agri neque arant neque nent which may be applyed saith a French Monk to all Princes but espicially to the Kings of France because they bore the Lilies The Canonists do likewise allege the example of our Saviour who paid an Imposition of Poll-money and wrought a miracle to enable himself to do it that the Tribute-money which Christ commanded to be paid Date Caesari quae sunt Caesaris and the Custome which Saint Paul willeth every Christian to pay willingly reddite omnibus cui tributum cui vectigal were but Impositions raised by the Emperours Edict only without the consent of the people and yet Saint Paul requires obedience to Princes in that case not only for fear of the Princes displeasure but for conscience sake non solum propter iram sed propter conscientiam CHAP. VI That this Question of Imposition may be examined and decided as well by the rules of the Laws before mentioned as by the rules of our Municipiall Laws or Common Law of England FOrasmuch as the general Law of Nations which is and ought to be Law in all Kingdoms and the Law Merchant is also a branch of that Law and likewise the Imperiall or Roman Law have been ever admitted had received by the Kings and people of England in causes concerning Merchants and Merchandizes and so are become
THE QUESTION CONCERNING IMPOSITIONS Tonnage Poundage Prizage Customs c. Fully stated and argued from Reason Law and Policy DEDICATED To King IAMES in the latter end of his Reign BY Sir JOHN DAVIES His then Majesties Attourney Generall LONDON Printed by S. G. for Henry Twyford in Vine-Court Middle-Temple and Rich Marriot under the Dyall in Saint Dunstans Church-yard London 1656. TO THE KINGS Most Excellent MAJESTIE THis Question SIR Concerning your Majesties Prerogative in laying Impositions upoÌ„ Merchandizes ought not to have been made or moved at all howbeit it hath been stirred and debated in Parliament it is now become an Argument of such Dignity and Importance as the best-able amongst your Servants learned in the Law may well imploy their best learning in the discussing thereof For my part though I find my self unable to handle this Noble Question as the weight and worthinesse requireth yet have I upon sundry occasions arising from the course of my service collected such notes and drawn together such materials as may be of use in the building of a Fortresse in the defence of this Prerogative and sure I am that if your Majestie will vouchsafe to cast your eye upon these Collections that your Judgment will make a far better use and application thereof than I who have gathered the same can posible do these little sparks of knowledge being taken into your Majesties consideration wil instantly multiply and arise into a flame and so give a great light for clearing of this Question This learning within my hand is but a Spade in your Majesties hand will become a Scepter I have onely like the poor Indian digged up the Oare of Mine which being brought into the Kings Mint and refined there becomes part of the royall Treasure For the Argument it self it will hardly receive any Ornament Ornari res ipsa negat contenta doceri The best light I can give it is Lucidus ordo by breaking it into Capitâ— rerum and casting it into a plain and naturall method it is somewhat long and in Multilâ—quio non deâ—st peccacum saith Solomon it is also mixt with some reasons of State wherein a common Lawyer may easily make a Solaecism yet such as it is my zeal to advance your Majesties Service hath moved me to present it to your Majesty with all humbleness and with some hope that this dutifull paine shall purchase a pardon for the errours therein committed By your Majesties unprofitable Servant and humble Subject Iohn Davies THE CONTENTS Of this BOOK CHAP. I. THe Exposition and meaning of certain words which do shew the true state of the Question page 1 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 4 CHAP. III. Of the Law Merchant which is a branch of the Law of Nations and how it differs front our Common Law and how in the judgement of our Law Merchandizes do differ from other Goods Chattels which do not crosse the Seas and how the Common Law and Statute Law of England do admit and allow of the Law Merchant 10 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 20 CHAP. V. Of the Canon or Ecclesiastical Law and how far forth it doth examine and resolve this Question in cases of Conscience only 25 CHAP. VI That this Question of Imposition may be examined and decided as well by the rules of the Laws before mentioned as by the rules of our Municipiall Laws or Common Law of England 27 CHAP. VII Of the Kings Prerogatives in general and that the same do consist in certain speciall points or cases reserved to the absolute power of the Crown when the Positive Law was first established and that the CoÌ„mon Law of England doth acknowledge and submit it self to those Prerogatives 29 CHAP. VIII Of the Kings Prerogative in the ordering and governing of all Trade and Traffique in Corporations Markets and Fairs within the Land and the Common Law doth acknowledge this Prerogative and submit it self there unto 34 CHAP. IX That the King hath another Prerogative in the Government in the Trade of Merchandizes crossing the Seas differing 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 38 CHAP. X. Of the ancient duty called Custome payable for our principall Commodities exported and that it was originally an Imposition 41 CHAP. XI Of the ancient duties called Prizes taken out of Forein goods imported except Wines and the petty-Customes of three pence of the pound were accepted by King Edw. 1. in lieu of Prizes 46 CHAP. XII Of the ancient Customes payable for Wines called Prizâ—ge and Butlerage 50 CHAP. XIII Of the ancient Officers which our Kings have created by vertue of their Prerogatives to search and over-see all sorts of Merchandizes and to collect the duties payable for the same 52 CHAP. XIV Of other Impositions besides the ancient Customes before mentioned laid upon Merchandizes by severall Kings and Queens since the Conquest some of which Impositions have been discontinued or remitted and some of them are continued and paid at this day and first of the Imposition set by King Edw. 1. over and besides the Customes spoken of before 53 CHAP. XV Of the Imposition set and taken by King Edward the second 55 CHAP. XVI Of the Impositions laid and levied upon Merchandizes by King Edw. 3. 57 CHAP. XVII Of the Profits raised unto the Crown out of Merchandizes during the reigns of several Kings who succeeded K. Edw. 3. untill the reign of Queen Mary 62 CHAP. XVIII That Queen Mary did use her Prerogative in laying Impositions upon Merchandizes 70 CHAP. XIX That Queen Elizabeth also used her Prerogative in laying Impositions upon Merchandizes 71 CHAP XX That our Soveraign Lord King James hath by virtue of the same Prerogative without Act of Parliament layd several Impositions upon Merchandizes 73 CHAP. XXI The general reasons whereupon this Prerogative is grounded 76 CHAP. XXII Of the several Objections that are made against the Kings Prerogative in laying Impositions upon Merchandizes and the several Answers thereunto 94 CHAP. XXIII The Answer to the first Objection 96 CHAP. XXIV Of the second Objection touching the uncertainty and unbounded largenesse of this Prerogative 99 CHAP. XXV The Answer to the second
properly called Vectigalia à mercibm evectis invectis are the most ancient duties payable to the King so are the same grounded saith Bodin upon the greatest reason and equity in the world quid est enim rationi aequitati magis consentaneum quà m is qui in nostro territorio ex nostris questum facit principi nostro cujus permissu sub cujus protectione negotiatu◠aliquod perdat presolvat And this common reason and equity which is the ground of these duties payable for Merchandizes what is it else but the Law of Nations which is nothing else but that which common reason hath establisht amongst all men for the common good of all men and which all Nations have received and imbraced for their mutual benefit and commoditie Neither is this the onely Prerogative which the King of England hath by the Law of Nations habet Rex in regno suo saith Bracton alia privilegia de jure Gentium propria viz. Soreceum maris thesaurum insentum grossos pisces balenas sturgiones Wavias c. huiusmodi de jure Gentium pertinent ad Coronam saith Stampford Prerogativa Regis fol. 37. 6. Adde hereunto the absolute power of the King to make War and Peace League and Truces to grant safe Conducts to pardon all Offenders to distribute all degrees of Honour and the like wherein the King hath sole and absolute power Merum imperium non mixtum and which Prerogative is as antient as the Crown and incident to the Crown by the Law of Nations Lastly for the proof that our Common Law doth acknowledge and prove the Law of Nations in most of these cases The Book 19 Edw. 4. 6. doth approve the Kings absolute power in making War Peace and Leagues and in 37 Edw. 6. 20. That part of the Law of Nations whereby the High Constable and Marshall of England do proceed in their Courts of War and Chivalrie is called the Law of the Land We finde also the Kings sole power in 11 Hen. 4. Rot. Parliament in Archivis turris London for Coyning of Money we have the case of Mines Com. 316. for safe conduct of Merchants and stop of Trades tempore guerrae and Letters of Reprisall we have 7 Edw. 4. 19. 2 R. 3. 2. Magna Charta cap. 30. and the Register wherein we find Writs of Reprisall CHAP. III. Of the Law Merchant which is a branch of the Law of Nations and how it differs from our Common Law and how in the judgement of our Law Merchandizes do differ from other Goods Chattels which do not crosse the Seas and how the Common Law and Statute Law of England do admit and allow of the Law Merchant MErcatura vel Societas Mercatorum est magna Respublica saith Vlpian and therefore that Common-wealth of Merchants hath alwayes had a peculiar and proper Law to rule and govern it this Law is called the Law Merchant wherof the Laws of all Nations do take speciall knowledge first both the Common Law and Statute Law of England do take notice of the Law Merchant and do leave the causes of Merchants and Merchandizes to be decided by the rules of that Law for what saith the Book of 13 Edw. 4. 9 10 A Merchant Stranger made sute before the Kings Privy council for certain Bailes of Silk feloniously taken from him and it was moved that this matter might be determined by Common Law unto which motion the Lord Chancellor doth there answer This sute is brought by a Merchant who is not bound to sue according to the Law of the Land nor to tarry the tryal of twelve men nor other solemnity of the Law of the Land albeit the King hath jurisdiction of him within the Realm and may cause him to stand to his Judgement yet this must be according to the Law of Nature which some call the Law Merchant which is a Law universall throughout the word these are the words of that Book it is there resolved by all the Justices That if the Merchandizes of such a Merchant stranger be stollen and waved by the Felon the King himselfe shall not take those Merchandizes as waifes though in that case the goods of another person were lost by the Common Law of England Doth not this case make it manifest that in the judgement of our Common Law Merchandizes that crosse the Seas are goods of another nature quality and consideration than other goods and Chattels which are possessed within the Realm and do not crosse the Seas This learning is not common in our Books and therefore I think it meet to exemplifie this difference with more cases in this point If two Merchants be Joynt-Owners or Partners in Merchandizes which they have acquired by a Joynt-Contract in this case the one shall have an Action of Account against the other die legem mercatoriam saith the Register fol. 135. and F. N. 117. D. and yet by the rule of the Common Law if two men be joyntly possessed of other goods which are not Merchandizes the one shall not call the other to account for the same Again if two Merchants have a joynt Interest in Merchandizes if the own die the Survivor shall not have all but the Executor of the party deceased shall by the Law Merchant call the Survivour to an account for the moytie F. N. 117. D. whereas if there be two Joynts of other goods which are not Merchandizes the Survivor shall have all per jus accrescendi even by rule of the Common Law Again in an Action of Debt upon a simple Contract which is without Deed in writing the Defendant by the Common Law may wage his Law that is he may bar the Plantiff of his Action by taking an Oath that he doth not ow the Debt nor any part thereof and yet in Itin. Derby 2 Edw. 3. Iohn Crompton Merchant upon a Contract without Deed the Defendant would have waged his Law but was not permitted so to do and so Judgement was given against the said Defendant Again the goods of Ecclesiastical persons are discharged of Toll by the Common Law si non exerceat Marchandizas de eisdem saith the Register 259. a. for then their goods are charged being now become goods of another nature when the same are turned into Merchandizes so are the goods of the French Nobility discharged by Gabels and Impositions if they traffique not but if they traffique saith Bodin their goods are charged like other Merchandizes Again for goods wrongfully taken within the Land the Common Law giveth remedy against the Trespasser or the wrongfull Taker onely but if an English Merchant be spoiled of his Merchandizes upon the Sea or beyond the Sea by the Subject of another King the Register doth give him a Writ of Reprisall against all the Subjects of that Nation Regist. 122. 6. and 46 Hen. 3.
the Law of the Land in those cases why should not this Question of Impositions be examined and decided by the rules of those Laws so far forth as the same doth concern Merchants Merchandizes as well as by the rules of our Customary or Common Law of England especially be cause the rules of those other Laws are well known to the other Nations with whom we have commerce and to whō and from whom all Merchandizes are transported wheras the rules of our own Municipall Laws are only known within our Islands and if this Question may be decided either by the Laws of Nations or by the Law Merchant which is but a member thereof or by the Roman Civil Law we find this point clearly and absolutely determined and over-ruled by the rules of those Lawes viz. That all absolute Kings and Princes may set Impositions upon Merchandizes by their Prerogatives and thereupon we may conclude that since one Monarch hath as much power as another as Fortescue in his Book de Laudibus legum Angliae affirmeth the K. of England as well as any other King as the Emperour himself cum ipse omnes libertates habet in regno suo quas imperator vindicat in imperio As King William Rufus told the Arch-Bishop Anselm may by vertue of his Royal Prerogative annexed to his Crown and inherent to his Scepter lay Impositions upon Merchandizes exported or imported into any of his Kingdoms or Doninions CHAP. VII Of the Kings Prerogatives in general and that the same do consist in certain speciall points or cases reserved to the absolute power of the Crown when the Positive Law was first established and that the Canon Law of England doth acknowledge and submit it self to those Prerogatives BY the Law of Nature all things were cōmon and all persons equal there was neither Meum nor Tuum there was neither King nor Subject then came in the Law of Nations which did limit the Law of Nature and brought in property which brought in community of things which brought in Kings and Rulers which took away equality of persons for property caused Contracts Trade and Traffique which could not be ministred without a King or Magistrate so as the first and principal cause of making Kings was to maintain property and Contracts and Traffique and Commerce amongst men Hereupon by the same Law of Nations Tributes and Customes became due to the King or Prince to maintain him in his place of Government quasi Ministerii sui stipendia saith the School-man Deo Minister est tibi in bonum ideo tributa potestas saith Saint Paul and all these things namely Property and Contract and Kings and Customes were before any positive Law was made then came the positive Law and limited the Law of Nations whereas by the Law of Nations the King had an absolute and unlimited power in all matters whatsoever By the positive Law the King himself was pleased to limit and stint his absolute power and to tye himself to the ordinary rules of the Law in common and ordinary cases worthily and princely according to the Roman Emperour Dignissimum Principe Rex se allegatum legibus confiteri retaining and reserving notwithstanding in many points that absolute unlimited power which was given unto him by the Law of Nations and in these cases or points the Kings Prerogatives do confist so as the Kings Prerogatives were not granted unto him by the people but reserved by himself to himself when the positive Law was first established and the King doth exercise a double power viz. an absolute power or Merum Imperium when he doth use Prerogatives onely which is not bound by the positive Law and an ordinary power of Jurisdiction which doth co-operate with the Law whereby he doth minister Justice to the people according to the prescript rule of the positive Law as for example the King doth not condemn all Malefactors but by the rule of the positive Law but when the Malefactor is condemned by the Law he giveth him a pardon by his absolute Prerogative Again the King doth punish the breach of the Peace within the Land by the ordinary course of the Cōmon Law but he doth make War and Peace with Forreign Nations Quod pertinet ad liberum jus gladii as a Doctor speaketh by that absolute and unlimited power which the Law of Nations hath given unto him Again the King doth establish the Standard of Money by vertue of his Prerogative only for the Common Law doth give no rule touching the matter or form or value thereof but when those Monies are dispersed into the hands of the Subjects the same do become subject in respect of the property thereof to the ordinary rules of the Common Law Again the right of Free-hold and all Inheritance and all Contracts reall and personall arising within the Land are left to be decided by the positive Law of the Land but the Government and ordering of Traffique Trade and Commerce both within the Land and without doth rest in the Crown as a principall Prerogative wherein the King is like to Primum mobile which carrieth about all the inferiour Spheres in his superiour Course and yet doth suffer all the Planets underneath him to finish all their divers and particular courses or rather he doth imitate the Divine Majesty which in the Government of the world doth suffer things for the most part to passe according to the order and course of Nature yet many times doth shew his extraordinary power in working of miracles above Nature And truly as the King doth suffer the customary Law of England to have her course on the one side so doth the same Law yeeld submit and give way to the Kings Prerogative over the other and therefore in the 1 Hen. 7. fol. 23. there is a rule That every Custome is void in Law quae exaltat in praerogativum Regis which is an argument that the Kings Prerogative is more ancient than the customary Law of the Realm besides the power of the Kings Prerogative above the Common Law doth appear in this That whereas all privileges do flow and are derived from the Kings Prerogative and every privilege in one point or other privat communem legem yet the Common Law doth admit and allow of privileges granted by vertue of the King Prerogative CHAP. VIII Of the Kings Prerogative in the ordering and governing of all Trade and Traffique in Corporations Markets and Fairs within the Land and the Common Law doth acknowledge this Prerogative and submit it self thereunto FIrst it is manifest that all Corporations of Cities and Boroughes within the Land were chiefly instituted for Trade and Commerce and not by the rule of Common Law no such Corporation can be made but by the Kings Charter for though there have been some Corporations which have been time out of mind yet the Law presumes that the same at first had their beginnings by the Grant of the King besides we
pence and for every three hundred Wooll-fells six shillings and four pence and for every last of Leather a demi mark over and above the duties payable by Denizens for the same commodities which grant being made by the Merchants of every Nation not being incorporated and made a body politick is in respect of them of no force of the rule of the common Law until the Kings charter made it good and maintained it untill it was confirmed by Parliament 27 Edw. 3. which was fifty years after the date of the Charter upon the matter these duties payable by Merchant Strangers were onely Impositions raised and established by the Kings charter which Charter being made in England was afterwards established exemplified under the Great Seal of England and transmitted into Ireland with a special Writ directed to the Officers of the Customes there to levy three pence of the pound and other duties mentioned in that Charter as appeareth in the Red Book of the Exchequer there by vertue of which Writ onely without Act of parliament the three pence of the pound and other duties were levied and paid to the Crown in Ireland CHAP. XII Of the ancient Customes payable for Wines called Prizage and Butlerage THe most ancient Custome payable for Wines is Prizage which is not any sum of Money but two Tunns of Wine in specie out of every Ship freighted with twenty Tun the one to be taken before the Mast and the other behind the Mast of the Ship and the price which the King himself did limit to pay was twenty shillings onely for every Tun as appeareth by an ancient Record of 52 Hen. 3. whereby we may conjecture what easie rates the King gave for the prizes of other Merchandizes This Custome of Prizage was meerly an Imposition for it could not be granted by the Merchants of Forreign Nations being no body politique as is before declared neither is there any Act of Parliament wherby our own Merchants did ever grant it unto the Crown This duty of Prizage was remitted unto the Stranger by the Charter of 31 Edw. 1. before mentioned and in lieu thereof by vertue of the same Charter the King before mentioned receiveth two shillings for every Tun of Wine brought in by Strangers which we now call Butlerage but Prizage is paid in Specie by all our own Merchants at this day the Citizens of London onely excepted who having remissiō of Prizage by a special charge were charged with a new Imposition called Gauge viz. de quolibet dolio 1 d. de vinis venientibus London which was accounted Forreign Magno Rot. An. 1 Edw. 1. in the Office of the Pipe at Westminster the last of these Impositions which by the continuance have gotten the name of Custome was laid and imposed three hundred years since and have ever since been approved and are now maintained by the Common Law of England as the lawfull and ancient Inheritance of the Crown CHAP. XIII Of the ancient Officers which our Kings have created by vertue of their Prerogatives to search and over-see all sorts of Merchandizes and to collect the duties payable for the same AS our ancient Kings by vertue of their Prerogative without Parliament have laid the Customes or Impositions before expressed upon all sorts of Merchandizes exported and imported so by the same Prerogative have they ordained severall sorts of Officers to search and over-see those Merchandizes on which they had laid those Impositions namely the Gauger of Wines a high Officer is as ancient as the Imposition of the Gauge it self before mentioned the Alneger of the cloths which is more ancient than any Act of Parliament that makes mention of the cloths for there is a Record of 14 Edw. 2. in Archivis turris which speaketh of the Alneger the Packer of Woolls the Garbellor of spices besides the Officer of the Customes viz. the Customer Comtroller and Searcher all which Officers have ever taken Fees of Merthants both Denizens and Aliens not by grant of the Merchants or Act of Parliament but by vertue of their severall Patents granted from the King CHAP. XIV Of other Impositions besides the ancient Customes before mentioned laid upon Merchandizes by severall Kings and Queens since the Conquest some of which Impositions have been discontinued or remitted and some of them are continued and paid at this day and first of the Imposition set by King Edw. 1. over and besides the Customes spoken of before IT appeareth in the Record of the Exchequer of England That in 16 Edw. 1. an Imposition of four shillings was laid upon every Tun of Wine brought into England from certain Towns in Gascogine and Spain and at this day answered and compted for duty for the space of ten years untill the 26 Edw. 1. when it was remitted but during the Kings pleasure only it appeareth likewise 25 Edw. 1. by the Charter of the confirmation then made of the Great Charter that King Edw. 1. had for divers years before set and laid an Imposition of fourty shillings upon every Sack of Wooll exported which ad instantiam Communitatis he was pleased to remit which remittall was of meer Grace upon the Petition of the Commons after that Imposition had been laid many years before and it is to be noted that this Imposition of fourty shillings upon a Sack of Wooll was taken and levied above twenty years together after the new Imposition of the demi mark upon a Sack of Wooll which was set and established for that begun in 3 Edw. 1. and this Imposition of fourty shillings continued till 25 Edw. 1. which is a strong argument that the first establishment of the demi mark was not by a binding Act of Parliament with a Negative voice that no other duties should be taken for those Merchandizes as was surmized but was only a mitigation or reducement of a greater Custome paid before which was done of meer Grace upon some reason of State at that time CHAP. XV Of the Imposition set and taken by King Edward the second KIng Edward the second in the beginning of his Reign did as well take the ancient as the new Custome upon Wooll Wooll-sells and Leather which ancient Custom must needs be intended an ancient Imposition over and besides the demi mark which was then called the new Custome and this appeareth by a Record in the Tower 3 Ed. 2. Claus. memb. 16. where the King directeth his Writ collectoribus suis tam antiquae quam novae customae lanarum pellium corriorum and requireth them to pay certain Debts of his Fathers King Edward 1. out of their old and new Customes and a hundred thousand pound pro damnis occasione retardationis solutionis debitis c. and howbeit afterwards he being a weak Prince and misguided by ill Counsell and over-ruled by his unruly Barons was driven first to suspend the payments of his Customes of three pence the pound and other duties contained
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
from the Interest the King hath in the parts of the Kingdom and the custody thereof which giveth him power to shut and open the same at his pleasure Again all the Ports of the Kingdome are the Kings not onely the Cinque-Ports which have a special Warden appointed by the King but the rest of the Ports are also his and many of them bear a mark of the Kings Inheritance in their Additions as Linn Regis Waymouth Melcombe Regis Pool Regis for the King is Custos totius Angliae Regni as the four Seas are the Walls of the kingdom so the Havens and Creeks are the Gates and Posterns of it They are Ostia they are Ianua Regni and we find two Ports in Italy called by those names the one at the mouth of Tiber the other corruptly called Genoa but the true name thereof is Ianua And as the Havens are Ianua Regni the King himself is Ianus and hath power to open and shut them at his pleasure Omnia sunt nostra clausa patentque manu Saith Ianus in the Poet And again Modo namque Patulchus idem modo sacrifico Clusius ore vocor The King of England hath ever had this Prerogative incident to his Crown to shut and open the Ports when it pleased him as appeareth by many Records especially by the Parliament Rolls in the time of King Edw. 3. wherein are found many Petitions that the Sea might be open which during that Kings time was often shut by virtue of his Prerogative only and never fully opened again but when the King layd an Imposition upon Merchandizes And this Prerogative of Custody of the Ports and of shutting and opening the same is reserved unto the Crown upon an excellent reason For Trade and Comerce is not fit to be holden with all persons neither are all things fit to be imported or exported For such persons as are enemies to the Crown come to discover Arcana Regni such persons as come to corrupt Religion or the manners of the people such persons as under colour of Merchandizes come to set up Monopolies or a dry Exchange to drain or draw away our commodities or money out of the Kingdom are not fit to enter in at the Gates of the Kingdome And again such commodities as the kingdom cannot spare as Corn in time of dearth and such as may advantage our Enemies and hurt us in time of Warre as Horses Armor Gunpowder c. are not fit to be exported out of the Realm And Poysons Heretical books and other things which are apparently hurtfull to the people are not to be imported and therefore the Prerogative of opening and shutting the Ports is accompanied with another absolute power of stoping and imbarring of Trade Comerce sometimes generally sometimes between us and particular Nations and sometimes for particular Merchandizes only whereof there are many presidents and examples both in Records and Histories of our Nation 2 Edw. 1. Rot. Parliament m. 18. in Archivis Turris 2 Edw. 3. Rot. fin m. 17. ibid. 10 Edw. 3. Chaunc m. 3. in dorso ibid. 17 Hen. 6. Sccio Angliae Matthew Paris Hist. magna p. 568. 10 Hen. 7. Stow. And this Prerogative of imbarring Trade doth result out of the undoubted Prerogative which the King hath to make Peace and War with Forein Nations for open War is no sooner denounced but all Trade of Merchandize is stopt and imbarred between the Nations which are ingaged in the Warre durante bello inter Reges Christianos merces quascunque exportare vetamur ne Regni arcana scrutentur saith a Doctor of the Imperiall Law whereupon wee make this Argument That since the King hath absolute power of shut the Ports and stop Trade it standeth with as good reason that he shold have the like power to lay reasonable Impositions upon Merchandizes for opening of the Ports and for giving of freedome of Trade again he that may doe the more may doe the lesse Non debet ei cui id quod majus est id quod minus est non licere saith the Rule of the Law hee that may prohibit Merchants not to Trade or passe may dispence with that prohibition and give them leave to go and Traffique sub modo Again the King of England is Dominus Maris which floweth about the Island as divers ancient Books and Records do testifie as Fitz Avowry 192. 6 Rich. 2. protection 46. Rot. Scotiae m. 16. in Arch. Turris And he is Lord of the Sea not only quoad protectionem jurisdictionem sed quoad proprietatem and this is our Neptunes trident for God gave unto man as well the Dominion of the Sea as of the Earth where it is said Gen. 1. replete terram subjicite eam dominamini piscibus maris c. and in Psal. 8. Omnia subjecit pedibus ejus Pisces maris quicquid perambulat semitas maris And therefore Baldus affirmeth de jure Gentium distincta esse dominia in mare sicut in terra arida and again mare attribuitur terrae Circunstanti Hence it is though there be but one Ocean in resepct wherof the whole Earth is quasi insula saith Strabo yet is there Mare Gallicum Sardicum Creticum AEgypticum oceanus Britanicus Germanicus c. which particular names do note a propriety in the Princes and States who are Lords of the Land adjoyning Hence it is that our Common Law doth give unto our King all the land which is gained from the Sea which Stampford in the Book of the Kings Prerogative doth affirm to belong to the King de jure Gentium quia Mare seu particula Maris est de Territorio illius Civitatis vel Regni cui magis appropinquat saith one learned Doctor Mare se extendit cum aquae sint mensurabiles saith another hence it is that all navigable Rivers as the River of Thames and the River of Lee and divers others are called in our Books the Kings Streams 19. Ass. p. 6. Dyer 117. a. because such Rivers are arms of the Sea so far as the Sea doth flow in them 22. Ass. p. 93. and lastly hence it is that by the Common Law the King may prohibit all Subjects whatsoever to passe over the Seas without his licence and to that end in 22 Edw. 4. the King commanded the Warden of the Cinque Ports and the Bailifs of all other Ports of the Kingdom that they should not suffer any Man Ship or Boat to passe beyond the Seas quousque Rex illud mandaverit and the like Commandments were given 4 Edw. 3. 21 Edw. 3. 16 Rich. 2. 17 Hen. 6. If therefore the King hath such an absolute Interest in the Ports and in the Sea and in all Navigable Rivers wherein the Kings Ports are situated for the main part why should he not have the like absolute power to limit and prescribe unto
and stoned to death for blasphemy and then he took it for a lawfull Escheat but when the King doth lay an Imposition upon Merchandizes without the consent of the Merchants and doth cause the Officers of his Customes to take and levie the same it seems say they they take away the goods of the Subject without his consent and without cause of forfeiture which is not warranted either by Law of Nations which brought in property nor by the Law of the Land which doth maintain property CHAP. XXIII The Answer to the first Objection TO this Objection we answer That the King doth not take the Land or Goods of any without his consent but here we must distinguish there is a particular and expresse consent and there is an implicit and general consent when a man doth give his Goods or surrender his Lands to the King by deed enrolled or when in Parliament which representeth the body of the whole Realm and wherein every man doth give his consent either by himself or his Deputy A subsidy is granted to the King there is an expresse consent but when subjects who live under a Royall Monarchy do submit themselves to the obedience of that Law of that Monarchy whatsoever the Law doth give to that Monarch the subjects who take the benefit of the Law in other things and doe live under the protection of the Law doe agree to that which the Law gives by an implicit and general consent and therefore there are many cases where the King doth lawfully take the goods of a Subject without his particular expresse consent though the same be not forfeited for any crime or contempt of the Owner If a Theef do steal my goods and waive them the King may lawfully take those goods without my particular consent and without any fault or forfeiture of mine but in regard I live under the Law which giveth such wayves unto the King he taketh not the same without my implicit consent so if my Horse kill a man the King may lawfully take my Horse a Deodand without my fault or consent in particular but in that I have consented to the obedience of the Law which giveth all Deodands to the King he taketh not my Horse without the implicit or generall consent of mine In the time of War the King doth take my House to build a Fort or doth build a Bulwark upon my Land he doth me no wrong though he doth it without my consent for my implicit consent doth concur with it for that I being a member of the Common-weal cannot but consent to all Acts of necessity tending to the preservation of the Common-wealth So if the King doth grant me a Fair or Market with a power to take a reasonable Toll If a man will buy any thing in my Fair or Market I may take Toll of him though I give no particular consent to the grant because the Law whereunto every Subject doth give consent and obedience doth warrant the taking of Toll in every Market and Fair granted by the King So it is in case of Impositions the Law doth warrant the Kings Prerogative to impose upon Merchandizes as is before declared and therefore though the Merchants give not their particular consents to the laying of these Impositions yet in regard they live under the protection and obedience of the Law which submits it self to this Prerogative and allow and approve the same it cannot be said that the King doth take these Impositions of them without their implicit and generall consent CHAP. XXIV Of the second Objection touching the uncertainty and unbounded largenesse of this Prerogative THe second Objection is against the uncertainty and unlimited largenesse of this Prerogative for in other cases they say where the King taketh the goods of a Subject by his Prerogative there is a certainty what he may take as in the case of wayvs he may take onely the goods wayved and no more In case of Deodand he may take only the thing that causeth the death of a man and no more In case of wreck he may take only the goods that are wreckt and no more In case of Wardship of Land holden in Capite the King may take the profits of the Land till the Heir sues his Livery and no longer In case where the King hath Annum Diem vastum hee may retain of the Lands of the Felon attainted which are holden of other Lords for a year and a day and no longer In all these cases there is a certainty what the King shall have and how long he shall have it but in case of Imposition the quantity or rate thereof high or low is left to the Kings own will or pleasure so as if he should be mis-led as many Princes have been with evill Counsell he might with his Prerogative doe hurt the Cōmon-wealth by laying too heavy burthens upon his Subjects for though hetherto his Majesty hath imposed upon Merchandizes only twelve pence on the pound over and above the ancient Custome and the Subsidies granted by Parliament yet this Prerogative being unlimitted he may hereafter say they set five shillings or ten shillings upon the pound if it please him and so undoe the Merchants or discontinue and overthrow all Trade and Comerce CHAP. XXV The Answer to the second Objection TO this Objection the fittest answer is That it is an undutifull Objection and withall too busie too bold and too presumptuous for it is an Objection against the wisdome of the King in point of Government and against the bounty and goodnesse of the King towards his people the Text of the Civil Law cited before doth call it a kind of Sacrilege to dispute of Princes Judgments or Actions and for the Law of England sure I am that it trusteth the Wisdome and Judgement of the King alone in matter of greater importance than in laying of Impositions or setting of rates upon Merchandizes Is not the Kings wisdome only trusted with the absolute power of making War and Peace with forein Nations whereby hee may when hee pleaseth interrupt all Trade of Merchandizing Is not the King alone trusted with the like power of making and decrying of monies which is the onely Medium of all Traffique and Comerce Is not he solely and without limitation trusted with the nomination and creation of all Judges and Magistrates who are to give Judgement in cases concerning the Liberties Lands and Lives of all his Subjects hath not he a sole and unlimited power to pardon all Malefactors to dispence with all penal Laws to distribute all Honours to grant to whom he pleaseth Protections Denizations Exemptions not only from Juries but from all other Services of the Common-wealth and yet these Prerogatives if the same be not used with judgement and moderation may prove prejudicial to the Common-wealth as well as the laying of Impositions upon Merchandizes Shall therefore any undutifull Subject make these conclusions The King may have a continuall Warre
to take these Subsidies by Acts of Parliament CHAP. XXXI The Answer to the fifth Objection THe Answer to this Objection is twofold First That which is objected is not true for Tonnage and Poundage have been taken by the Kings Prerogative without Act of Parliament Secondly If it had been true it is no Argument against the Kings Prerogative in this point for what is Tonnage but a certain sum of money payable for every Tun of VVine imported did not King Edw. 3 by force of his Charter Mercatoria without Act of Parliament take two shillings for every Tun of VVine imported by Strangers did not the same King set a new Imposition of Gauge viz. upon every Tun of VVine brought into London as is before expressed and are not the severall Impositions of VVines taken by His Majesty in England and Ireland a kind of Tonnage being nothing else but extraordinary rates imposed upon ever Tun of VVine and levied and taken by the Kings Prerogative Again was not the three pence upon the pound imposed by King Edw. 1. by his Charta Mercatoria a kind of Poundage and well nigh as great an Imposition as twelve of the pound granted at this day by Act of Parliament if we consider the Standard of Monies in the time of King Edw. 1. when a peny sterling did contain as much or more pure Silver as the three pence sterling doth contain at this day but admit that no Tonnage or Poundage had ever been taken but by grant in Parliament yet it is no Argument but that the King might impose the like or the same by his Prerogative for three particular reasons The first because these Subsidies were granted for maintainance of the Navy Royall the charges whereof were grown so great in the time of King Edw. 4. as appearech by the Act of Tonnage and Poundage granted in the 12 year of that Kings Reign that it sufficed not nor in time to come was like to suffice or defray the charge of the Crown in keeping the Sea these are the words of that Act if then in the time of King Edw. 4. the Subsidy of Tonnage being three shillings upon a Tun of VVine brought in by Denizens and six shillings upon a tun brought in by Strangers and the Subsidy of Poundage or of twelve pence of the pound upon other Cōmodities was not then sufficient to bear the charge of the Royall Navy which was not comparable by many degrees in strength and beauty and multitude of Ships to the Kings Navie at this day Doth it stand with reason that the Crown should be stinted or limited ever after to take no more than those poor Subsidies granted at that time that the King should wait for a Parliament and pray an ayde of the Commons for a competent means to maintain the Walls of the Kingdom when by the Common Law of the Realm he may grant Letters Patents for Murage to maintain the Walls of a Corporate Town If any unexpected necessity should arise for repairing of the Navy Royall and making a Navall War should the King expect a Parliament for a greater Subsidy to bee granted by the Commons before he should rigge and make ready his Ships perhaps a Kingdom might be lost in the mean time as if a Pilot sitting at the Helm and seeing a sudden gust of wind would over-set the Ship or perceiving her to be running on a Rock should forbear to turn the Helm or cause the Sail to be stricken untill he had consulted with the Mariners or Passengers and demanded their consent or counsell in the businesse the Pilot himself with his Mariners and Passengers might be cast away before they were agreed what course to take Secondly these Subsidies of Tonnage and Poundage were first granted by Act of Parliament in the time of the Civill VVars between the two great Houses of Lancaster and York when the severall Kings were loath to make use of their Prerogatives but were glad to please their people and loath to impose any charge upon them but by common consent in those troublesome times Thirdly Kings and Princes oftentimes of their own noble nature and sometimes in policy do accept that of their Subjects as a gift which they might exact take as a duty and therefore our most potent and politique Kings have ordained and accepted many things in Parliament which they might have done in their private Chambers by their own prerogative without any other Ceremony who ever made doubt of the Kings Prerogative in establishing the Standard of monies and yet how many Acts of Parliament do we find touching Monies in the times of King E. 1. and King Edw. 2 the Kings Prerotative in making establishing Marshall Law was never yet in question yet are there Acts of Parliament touching Musters departures of Souldiers without their Captains Licences or the like The King only doth give Honours and places of precedency yet King Hen. 8. made an Act of Parliament whereby he rancked the great Offices of the Crown in their severall places as well in Council as in Parliament No man ever doubted but the King being the Fountain of Justice may erect Courts or Justice by his Prerogative yet we find the Court of Augmentations and the Court of VVards erected by Act of Parliament Lastly in the time of Edw. 2. we find an Act of Declaration of the principall Prerogatives of the Crown of England were most undoubted and clear yet His Majesty was pleased in his first Parliament to accept of an Act of Recognition CHAP. XXXII The Conclusion BY these reasons and demonstrations which are before expressed it is evident that the King of England by vertue of an ancient Prerogative inherent to the Crown and Scepter may justly and lawfully set Impositions upon Merchandizes and may limit and rate the quantity and proportion thereof by his own wisdom and discretion without Act of Parliament and this Prerogative is warranted and approved by the generall Law of Nations and the Law Merchant which is a principall branch of the Law of Nations by the Imperial Law the Ecclesiasticall Law and by the rule of the Common Law of England and by the practice of the most prudent Kings and Queens of England since the Conquest and that this Prerogative is grounded upon many excellent reasons and that the severall Objections made against this Prerogative are but shadows and colours of reason and clearly removed and washed away by the severall Answers thereunto 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 ALbeit indeed the King of England being no Emperor and having all Imperiall Rights within his own Kingdoms hath and ever had as absolute a Prerogative Imponere vectigalia