advance the Kings power and prerogatjve Bracton l. 1. c. 8. but you make him no King for as Bracton saith Rex est ubi dominatur lex non voluntas So we see that the power of imposing and power of making Laws are convertibilia coincidentia and whosoever can do the one can do the other And this was the opinion of Sir John Fortescue that reverend and honorable Judge a very learned professor of the Common Law and Chief Justice of the Kings Bench Fortesc de laudibus Leg. Ang. c. 9. in the time of Henry 6. His words are these in his Book De laudibus Legum Angliae cap. 9. Non potest Rex Angliae ad libitum leges mutare regni sui principatu namque nedum regali sed politico ipse dominatur Si regali tantum praeesset iis leges mutare posset tallagia quoque caetera onera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigorem sed longè aliter potest Rex politicis imperans quia nec leges ipse sine subditorum assensu mutare poterit nec subjectum populum renitentem onerare peregrinis impositionibus In which place I must interpret unto you that peregrinae impositiones be not strange and unheard of impositions as was urged by the worthy Gentleman that spake last but impositions upon traffick into and out of forain Countries Fortesc de laud. Leg. Ang. cap. 36. which is the very thing in question Further in the thirty sixth Chapter he saith of the King of England Neque Rex ibidem per se aut ministros suos tallagia Subsidia aut alia quaevis onera imponit ligeis suis aut leges corum mutat vel novas condit sine concessione vel assensu totius regni sui in Parliamento So he maketh these two powers of making Law and imposing to be concomitant in the same hand and that the one of them is not without the other he giveth the same reason for this as we do now but in other words because as he saith in England it is principatus mixtus politicus the King hath his soveraign power in Parliament assisted and strengthened with the consent of the whole Kingdom and therefore these powers are to be exercised by him only in Parliament In other Countries they admit the ground of the Civil Law quod principi placuerit legis habet vigorem Because they have an absolute power to make Law they have also a power to impose which hath the force of a Law in transferring property Ph. Com. l 4. cap. 1. l. 5. cap. 8. Philip Comines that lived at that time in his fourth Book the first Chapter the fifth Book the eighth Chapter taketh notice of this policy of England and commends it above all other States as settled in most security And further to our purpose laieth this ground That a King cannot take one penny from his Subjects without their consent but it is violence And you may there note the mischiefs that grew to the Kingdom of France by the voluntary impositions first brought in by Charles the Seventh and ever since continued and encreased to the utter impoverishment of the Common people and the loss of their free Councel of three Estates And if this power of imposing were quietly setled in our Kings considering what the greatest use they make of assembling of Parliaments which is the supply of money I do not see any likelihood to hope for often meetings in that kind because they would provide themselves by that other means And thus much for my first reason grounded upon the natural constitution of the Policy of our Kingdom and the publike Right of our Nation 2 For the point of Common Law Com. Law which is my second reason it hath been well debated and nothing left unspoken that can be said in it and therefore I will decline to speak of that which other men have well discussed and the rather for that there is nothing in our Law-book directly and in point of this matter neither is the word imposition found in them until the case in my L. Dier 1. Diec. 1. E. 165. Eliz. 165. for we shall finde this business of an higher strain and alwaies handled elsewhere as afterwards shall appear yet I will offer some Answers to such Objections as have been made on the contrary in point of Common Law and have not been much stood upon by others to be answered The Objections that have been made are these That from the first Book of the Law to the last no man ever read any thing against the Kings power of imposing No Judgement was ever given against it in any of the Kings Courts at Westminster Other points of Prerogative as high as this disputed and debated his excess in them limited 42. Ass p. 9. as in the book of 42. Ass pl. 5. where the Judges took away a Commission from one that had power given by it to him under the great Seal to take ones person and to seise his goods before he was indicted So Master Scrogs case 1 2 E. Dier 175 1 2. El Dier 175 the power of the King in making a Commission to determine a question of right depending between two parties notably debated and ruled against the King that he could not grant it To this I answer That cases of this nature of which the question now handled is have ever been taken to be of that extraordinary consequence in point of the Common right of the whole Kingdom that the States would never trust any of the Courts of ordinary Justice with the deciding of them but assumed the cognisance of them unto the high Court of Parliament as the fittest place to decide matters so much concerning the whole body of the Kingdom as 2. Ed. 3.7 it appears that Ed. 1. had granted a Charter to the men of Great Yarmouth that all the ships of Merchants coming to the Port of Yarmouth should land their goods at their Haven and not at any other Haven at that Port as at Garneston and Little Yarmouth which were members of that Port. This was very inconvenient for the Merchants and a great hurt to Traffick and therefore the Charter was questioned in the time of Ed 2. and adjudged good by the Council But the parties not contented with this judgment in the second year of King E. 3. by an order in Parliament made upon a Petition there exhibited against this Grant brought a Scire facias out of the Chancery returnable in the Kings Bench to question again the lawfulness of the Patent and in that Suit the cause was notably debated and those Reasons much insisted upon that have been enforced in this case as that of the Kings power in the custody of the Ports But the matter so depending in the ordinary Court of Justice a Writ came out of the Parliament and did
lawfully intituled to that he doth impose as that thereby he doth alter the property of his subjects goods and is enabled to recover these imposition by course of Law I think he cannot and I ground my opinion upon these foure reasons 1. It is against the naturall frame and constitution of the policie of this kingdome which is jus publicum regni and so subverteth the fundamentall Law of the Realme and induceth a new forme of state and government 2. It is against the municipall Law of the Land which is jus privatum the Law of property and of private right 3. It is against divers Statutes made to restraine our King in this point 4. It is against the practice and action of our Common wealth contra morem majorum and this is the modestest rule to limit both Kings Prerogatives and Subjects Liberties Upon the first and fourth of these foure principal grounds I will more insist then upon the second and third both for that in their own nature they are a more proper matter for a Councel of State to the judgement of which I apply my discourse and they have not been enforced by others As also for that the other two as more fit for a barre and the Courts of ordinary justice have by some professors of the Law been already most leardnedly and exquisitely discussed For the first it will be admitted for a rule and ground of State that in every Common-wealth and government there be some rights of Soveraignty jura Majestatis which regularly and of common right doe belong to the Soveraign power of that State unless Custome or the provisional ordinance of that State doe otherwise dispose of them which Soveraigne power is potestas suprema a power that can controule all other powers and cannot be controuled but by it self It will not be denied that the power of imposing hath so great a trust in It by reason of the mischiefes may grow to the Common-wealth by the abuses of it that it hath ever been ranked among those rights of Soveraign power Then is there no further question to be made but to examine where the Soveraigne power is in this Kingdome for there is the right of imposition The Soveraigne power is agreed to be in the King but in the King is a twofold power the one in Parliament as he is assisted with the consent of the whole State the other out of Parliament as he is sole and singular guided merely by his own will And if of these two powers in the King one is greater than the other and can direct and controule the other that is Suprema Potestas the Soveraigne power and the other is subordinata It will then be easily proved that the power of the King in Parliament is greater than his power out of Parliament and doth rule and controule it for if the King make a grant by his Letters Patents out of Parliament it bindeth him and his successors he cannot revoke it nor any of his Successours But by his power in Parliament he may defeate and avoyd it and therefore that is the greater power If a judgement be given in the Kings Bench by the King himselfe as may be and by the Law is intended a writ of Error to reverse this judgement may be sued before the King in Parliament which writ must be granted by the Chancellor upon bill indorsed by the King himself 1 H. 7.19 6. Lib. Intrac fol. 302. c. 1. as the book is 1 H 7.19.6 And the forme of the writ of Error is that it being directed to the Chiefe Justice of the Kings Bench Quia in recordo pricessu ac etiam in redditione judicii loquelae quae suit in Curiâ nostrâ coram nobis Error intervenit manifestus ad grave damnum c. Nos errorem si quis fuerit modo debito corrigi partibus praedictas plenam celerem justitiam fieri volentes in hà c parte vobis mandamus quòa Recordum processum loquelae illius cum omnibus ea tangentibus in praesens Parliamentum nostrum sub sigillio tuo distinâ—â—è apertè mittas hoc breve ut inspectis c. nos de Consilio advisamento Dominorum spiritualium temporalâ—um ac Communitatis in Parliamento nostro praedicto existentis ulterius pro errore illo corrigendo fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Angliae fuerit faciendum So you see the Appeal is from the King out of the Parliament to the King in Parliament the writ is in his name the rectifying and correcting the errours is by him but with the assent of the Lords and Commons The booke is not so that the CoÌ„mons should meddle than which there can be no stronger evidence to prove that his power out of Parliament is subordinate to his power in Parliament for in Acts of Parliament be they lawes grounds or whatsoever else the Act and power is the Kings but with the assent of the Lords and Commons which maketh it the most soveraigne and supreame power above all and controulable by none Besides this right of imposing there be others in the Kingdome of the same nature As the power to make lawes the power of Naturalization the power of erection of arbitrary Government the power to judge without appeale the power to legitimate all which do belong to the King only in in Parliament Others there be of the same nature that the King may exercise out of Parliament which right is grown unto him in them more in those others by the use and practice of the Common-wealth as denization coynage making warr which power the King hath time out of minde practised without the gain-saying and murmuring of his subjects But these other powers before mentioned have ever been executed by him in Parliament and not otherwise but with the reluctation of the whole Kingdome Can any man give me a reason why the King can only in Parliament make lawes No man ever read any law whereby it was so ordained and yet no man ever read that any King practised the contrary Therefore it is the originall right of the Kingdome and the very natural constitution of our State and policy being one of the highest rights of Soveraigne power So it is in naturalization legitimation and the rest of that sort before recited It hath been alleaged that those which in this Cause have enforced their reasons from this Maxime of ours That the King cannot alter the Law have diverted from the question I say under favor they have not for that in effect is the very question now in hand for if he alone out of Parliament may impose he altereth the Law of England in one of these two maine fundamental points He must either take his Subjects goods from them without assent of the party which is against the Law or else he must give his own Letters Pattents the force of a Law to alter the
adjourn it thither again where it gave occasion of a good Law to be made to prevent the like Grants and to make them void notwithstanding any Judgment given upon them and to make such Judgments also void The Statute is 9 E. 3. c. 1. And in the Parliament Rolls 9. E. 3. c. 1. Every Alien and Denizen may carry his Merchandise where it pleaseth him notwithstanding any Charter granted or Judgment thereupon 16 17. R. 2. 2 H. 4. num 109. we finde a notable Record which gives warrant for the proceeding in Parliament in this manner as hath been in this Case notwithstanding the Judgment in the Exchequer and declares to the Kingdom that notwithstanding the great wonder made by some men nothing hath been done in this business by those that serve in the Parliament but in imitation of their worthy Predecessors in the like case In the second year of H. 4. the Commons shew that in the time of R. 2. by the means of John Waltham Bishop of Salisbury Treasurer of England wrongfully without authority of Parliament and by reason of a Judgement given in the Exchequer 16 17. R. 2. by the Barons there against certain Merchants of Bristol and other places passage had been taken for Wines otherwise then in ancient times had been and therefore they prayed they might pay their prise Wines in the manner they had used to pay notwithstanding any Judgment given in the Exchequer or other Ordinance made by the said Treasurer contrary to the antient usage which Petition the King granted and the Judgment thereupon became void and the prisage Wine hath been paid contrary to the Judgment ever since In 1. El. Dier 165. 1. El. Dier 265. upon the complaint made by the Merchants of the impositions set upon Cloth by Queen Mary by her absolute power without assent of Parliament The Cause was thought too weighty to be decided in any one Court but as it appeareth in the Book it was referred to all the Judges of England who divers times had conference about it So it may well be there is nothing against it in our year Books for there is nothing of it Another Objection was this which was made in the last argument viz. That Custom is originally due by the Common Law of England it can then have no other ground or cause but meerly by the Kings royal Prerogative as a right and duty originally belonging to his Crown which if it be it must necessarily follow he may impose for that is but the exercising of that right To prove this was alleadged the case 39. 39 E. 3.13 E. 3.13 by which case it appeareth that King John had a Custom of eight pence on a Tun of Wine in the Port of Southampton but the Book doth not tell you that the King had it by prerogative and he might have it as well otherwise as by prescription or convention which shall rather be intended by reason of the certainty of the sum paied for if it were by prerogative he might take sometimes more sometimes less at his will the right being indefinite and the quantity limited onely by his own discretion A common person may have such a custom certain as 18. El Dier 352. The Mayor of London hath the twentieth part of Salt brought into the City by Aliens 18 El. Dier 352 which is a great Imposition but is good by prescription originally and hath received greater strength since by Acts of Parliament made for the confirmation of the Liberties and Customs of the City of London So it appeareth that John of Britain had Custom of the ships that arrived at his Port of Little Yarmouth Dier 43. worth twenty pounds per annum And these instances do inefer that a Custom may be otherwise then by prerogative and therefore it is no good argument to conclude the King had such a custom Therefore he had it by Prerogative The Book in 30. H. 8. Dier 43. 30 Hen. 8 Dier 43. was much pressed on this point which saith that Custom belonged to the King at Common Law and doth instance in Wooll Wooll-fells and Leather begun at the Common Law but abridged by the Statute of 14 E. 3. ca 21. stat 1. 14 Ed. 3. c. 21. stat but this appeareth to be a great error and mistaking in the Book for we do finde that that Custom of Woolls Wooll-fells and Leather was begun by a Grant in Parliament as appeareth in Statute 15 E. 1. cap. 7. The words be granted to us by the Commonalty aforesaid and the last mention before was that the King had granted to the Bishops Earls Barons and all the Commonalty of the Land c. Novemb. 3. Ed. 1. The Kingrecited in his Letter Patents That Prelati magnates ac tota communitas mercatorum Regni granted this new Custom And so the ground and motive of that opinion being false all grounded upon that must needs be erroneous It was objected That the King holdeth at this day the encrease of four pence in the pound over due Custom paid by Merchants Aliens according to the purport of the Charta mercatoria 31 E. Rot. char 31. E. 1. num 42. in Turri 1. by meer right of Prerogative at the Common Law for by that Grant of the Merchants he cannot hold it they being no Body Politick at the time of the Grant and therefore the Grant is meerly void to binde in succession and yet the Merchants Aliens do pay it at this day It is agreed That by the Common Law a contract with a number not incorporate bindeth not succession but we must take notice that they by whom that Grant was made of the augmentation of Custom by three pence in the pound and other encreases 31. E. 1. were Merchants Aliens who by the Law of Merchants and Nations may contract to bind their successors in matters of Traffick For their contracts are not ruled by the Common Law of the Land but by the Law of Nations per legem Mercatoriam as the Book case is 3. Ed. 4.10 and there was a good consideration given them by the King for this encrease of Custom as discharge of prise Wines for two shillings the Tun and other Immunities which all Merchants Aliens hold and enjoy at this day by force of that contract made 31 E. 1. For a stranger paieth now but two shillings the Tun for prisage whereas it standeth an Englishman in much more so as the rule of commutative Justice maketh the contract available to the King against the Merchants because he parteth with part of his prisage to the Merchant and maketh it available to the Merchant against the King because he giveth him encrease of Custom above that is due by Law But the Statute of 27 E. 3. cap. 26. 27 E. 3. cap. 26. heretofore cited doth make this point clear without scruple which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of Custom by three
suis faciendo inde rectas dubitas consuetudines nec sibi timeant de malis tolnetis quae iis faciat Rex vel in terrâ suá fieri permittat By this record the word Consutudo is interpreted to be mos not portorium otherwise it should have been solvendo consuetudines not faciendo Also these words entiquum rectum in the Statute in this Writ are rectum debitum which doth more enforce a certainty of right and duty which by no means can be intended in impositions Objections against this Law were made in the last Argument First That it was made for Aliens This is true the words of the Law do plainly shew it was made for Aliens But if the State was so careful to provide for them shall we not judge that with Denizens it was so already And that this Statute was made to extend that liberty by Act of Parliament to Aliens which Denizens had by the Common Law succeeding times did so conceive of it as appeareth by the Statute of 2. 2. E. 3. cap. 9. E. 3. cap. 9. the words are that all Merchants Strangers and Princes may go and come with their merchandizes in England after the tenor of the great Charter and that Writs be thereupon sent to all the Sheriffs in England and to Mayors and Bayliffs of good Towns where need shall require A second Objection was made in the last Argument out of these words of the Statute of M. Char. that Merchants might freely traffique nisi publicè antea prohibiti fuerint by which was enforced that the King had power to restrain and prohibit Traffique therefore to impose It is agreed there may be a publick restraint of traffique upon respects of the common good of the Kingdom but whether that which is called publica prohibitio in the Statute be intended by the King alone or by Act of Parliament is a question For such restraints have still been by Parliament But admit the King may make a restraint of traffique in part for some publick respect of the Commonwealth he doth this in point of protection as trusted by the Commonwealth to do that which is for the publick good of the Kingdom but if he use this trust to make a gain and benefit by imposing that is a breach of the trust and a sale of government and protection But more of this shall be hereafter spoken in the answering of the main Objections The next Law is that notable Statute of E. 1. 25. E. 1. cap. 7. in the 25 year of his reign made upon the very point in question the words are these And forasmuch as the most part of the Commonalty of this Realm finde themselves sore grieved with the male toll of Woolls that is to wit a toll of forty shillings for every sack of Wooll and have petitioned to us for to release the same We at their request have clearly released it and have granted for us and our Heirs that we shall not take such things without their common consent and good will saving to us and our Heirs the Customs of Woolls Skins and Leather granted before by the Commonalty aforesaid Against the application of this Law to the question now in hand many Objections were made some out of matter precedent to the Law some out of the Law it self some out of matter subsequent and following after the Law For matter precedent It was objected out of Thomas Walsingham Tho. Walsingham in E. 1. fo 71 72 73. edit per W. Camb. impres Francof 1603. an Historiographer of good credit that writ of that time when the Statute was made That in the Petition of grievances given to King E. 1. by the people in the 25 year of his reign upon which petition the Statute was made that they found themselves not grieved in point of right but in point of excess the words are Communitas sentit se gravatam de vectigali lanarum quod nimis est onerosum viz. de quolibet sacco 40 s. de lanâ fractâ septem marcas so they express the cause of their grief that it was too heavy which is to be applied to the point of excess not of right To this I answer that if the words had been quia est nimis onerosum this construction might have been made out of them because the word quia had induced a declaration of the cause of that which was formerly affirmed but the words are quod nimis onerosum which doth only positively affirm that the imposition de facto was intolerable for the greatness of it which doth not therefore admit that it is tolerable in respect of the right the King had to impose But this is made clear by the general word precedent in the preamble of the Petition which doth evidently infer they grounded their complaint upon point of right not upon point of excess the words are these Tota terrae communitas sentit se valdè gravatam quia non tractantur secundum leges consuetudines terrae secundum quas tractari antecessores sui solebant habere sed voluntariè excluduntur After which preamble among the particulars this of forty shillings upon a sack of Wooll is ranked but with a dependency of that expressed in the preamble for the point of right But seeing we light upon History which though it be of small authority in a Law argument yet being the History of our own Realm hath fit and proper use in the common counsel of the Realm Matth Westm fo 430. Edit per H. Savile mil. Francofurti 1601. I will pursue it a little further Out of Matth. Westm a Writer that lived much nearer the time of the Law made then Thomas Walsingham he saith That the Commons by their petitions required Ne Rex de caetero tallagia usurparet voluntarias super his inductas exactiones de caetero quasi in irritum revocaret by which it appeareth that the point of the complaint was that the exactions laid on them were voluntary that is at the Kings will without assent of Parliament Out of the Law it self it hath much been pressed as first the Commons made petition to the King whereupon they infer out of the nature of the word petition that their proceeding was by way of grievance for the excess and inconvenience as a matter of grace not in course of justice for the wrong To this I answer That considering the quality of the parties to this action it being between the King and the Subject duty and good manners doth induce gentleness and humility of terms without blemish or diminution of the force of right It is according to the demeanor of Job cap. 9. v. 15. Job 9.15 Though I were just yet would I not answer but I would make supplication to my Judge But in our forms of Law be the right of the Subject never so clear manifest and acknowledged by all yet if his own be detained from him by the King he hath no
done if it had been thought due but gave satisfaction to the complaint by one of these three waies Either by discharging them quite and making some good Law against them Secondly by intreating the people to hold them some short time by their favor Thirdly by waving his present possession and taking that of their gift by Act of Parliament as an aide which he had set on by his absolute power as an Imposition Instances of the first 25. 25. E. 1. ca. 7. Rot. parl 38. E. 3. n. 26. 38. E. 3. cap. 2. 45. E. 3. cap. 4. 18. E. 3. cap. 10 11. R. 18. E. 3. cap. 3. l. 1 21. E. 3. n. 11. R. Parl. 25. E. 3. n. 22. rot Parl. E 1. the Impositions of Wools taken off and a Law made against it and the King undertook for him and his successors to doe so no more 38 E. 3.26 the Imposition of three shillings foure pence on a sacke of Wooll put off upon complaint and a Law made against it 38 E. 3. ca. 2. the like Statute 45 E. 3. c. 4. upon a complaint of an Imposition on Wools made in Parliament 45. E. 3. n. 42. Rot. Parl. Instances of the second 21. E. 3. nu 11. a petition upon an Imposition of 2. s. upon a sacke of Wool 2. s upon a tunne of VVine and six pence upon aver de pois all discharged presently saving the two shillings upon a sacke of Wool and for that intreated that it might stay till Easter following and so it did and was then taken away Instance of the third 25 E. 3. nu 22. the Commons made petition against an imposition of fourty shillings upon a sack of Wool granted to the King by the Merchants shewing that they ought not to be bound by their act The King did not claime right or justice but because his warres were great upon his request had it granted unto him for two yeeres by Act of Parliament and pretended no title of Prerogative neither was it ever spoken of My third observation is that our Kings have acknowledged that it is not their right E. Orig. in Scau 31. E. 1. R. Thes 1 in his Writs he sent to the Officers of his parts to levie three pence on the pound over the old custome or the Denizons as well as of the Aliens and to suffer the Denizons to enjoy those privileges the Aliens did enjoy by the payment of the encrease of Custome doth give this direction expresly That they should not take it of Denizons against their will The words of the Record express it very fully Cum mercatores extranei alienigenae pro quibusdam libertatibus eis per nos concessis priscis nostris quibuscunque remissis nobis de bonis merchandisis suis quibuscunque infra regnum potestatem nostram adducend ultra antiquas custumas dare concesserint praestationes custumas subscriptas viz and so setteth down the increases and amongst the rest this three pence upon the pound and so proceedeth Ac quidam mercatores de regno nostro potestate nostra ut ipsis dictis libertatibus immunitatibus uti gaudere quod de prisis nostris quieti esse possiut praestationes custumas hujusmodi de bonis merchandisis suis nobis solvere velint ut accepimus assignavimus vos c. ad custumas praestationis praedictas de mercatoribus de regno potestate nostra colligend qui eas gratanter sine coercione solvere voluerint Ita tamen quod aliquem mercatorem de dicto regno potestate nostra ad praestationes custumas hujusmodi nobis invito solvend nallatenus distringatis Surely if E. 1. had claimed the prerogative of imposing he would never have given these cautions in the requiring of that which he had taken to be his due as that they should not exact it of any of his subjects that were not willing to pay it nor trouble nor distraine them for it In the twelfth yeere of E. 3. we finde the Record of certaine letters written from the King being then at Barwick in the Scottish Warres Rot. Alem. 12. E. 3. dorm 21. in turr unto the Archbishop of Canterburie in which letters the King seemeth to have a great confidence in the devotion of the Archbishop and therefore earnestly intreateth him to further his enterprises with his prayers to God and then addeth further Ad hoc pater cum populus regni nostri variis oneribus tallagiis impositionibus hactenus praegravetur quod dolenter referimus sed inevitabili necessitate compulsi de eisdem oneribus ipsum adhuc relevare non valemus dictum populum ut tautam necessitatem nostram humiliter benigne patiatur caritativè sustineat priorem quam penes nos concepit de cetero instanter in orationibus eleemosynis suis oneribus praedicts quae non ex malitia vel presumptione voluntaria ipsum gravant non obstantibus exhibeant caritatem indulgentiam muneribus aliis modis quibus secundum Deum videbitis piis exhortationibus inducatis nos penes eundem excusetis speramus namque per Dei gratiam cujus manus cunctis indigentibus sola sufficiens largiflua comprobatur beneficiis compensatius dictum populum visitare consolari pro loco tempore opportunit The principall thing I note out of this Record upon the very point of this my third observation is that the King intending to excuse himself of the burthens by him laid on the people and to avoid the blemish of wrong and injustice in laying thereon saith they were not onera ex presumptione voluntaria that is burthens that he presumed to lay on at his owne will whereby he condemneth impositions without assent of Paliament which are onera ex voluntate Regis to proceed of presumption which doth clearly exclude clame of right and disproveth the lawfulness of the Act. But there are divers other notable passages in the Record worthy our marking As out of the word praegravantur used by the King wee may gather hee did accompt these Impositions a grievous burden to his people which sheweth his owne pity of them He saith further Dolentes referimus shewing his griefe and remorse at it inevitabili necessitate compnlsi he did it constrained by unavoidable necessity shewing he was forced to it against his will by that which violateth and breaketh all law which inferreth he would not maintaine his action by law Adhuc relevare non valemus this insinuates he would ease them in good time caritatem exhibereut they should afford him charity in the bearing of them as if so be in point of justice or right they need not Penes eundem excusetis the Bishop should excuse him to the people By this he did clearly leave the point of justification and so of right lastly he promiseth he would visit and comfort them beneficiis compensativis would give them recompence for those summes he had
goods therefore he may suffer them not to pass but sub modo paying such an Imposition for his sufferance as he shall set upon them For the grounds and propositions laid in this objection I shall not be much against any one of them others of them must be qualified ere they be confessed but the inference and argument made upon them I utterly deny for in it there is mutatio hypothesis and a transition from a thing of one nature to a thing of another As the premises are of a power in the King onely fiduciary and in point of trust and government the conclusion infers a right of interest and gain Admit the King had Custodiam portuum yet he hath but the custody which is trust and not Dominium utile he hath power to open and shut upon consideration of publike good to the people and State but not to make gain and benefit by it the one is protection the other is expilation The Ports in their own nature are publike Portus sunt Publici free for all to go in and out yet for the common good this liberty is restrainable by the wisdom and policy of the Prince who is put in trust to discern the times when this natural liberty shall be restrained In 1. H. 7. fol. 1. H. 7.10 10 in the case of the Florentines for their Allome the Lord Chief Justice Hujsey doth write a Case that in the time of E. 4. a Legate from the Pope being at Calice to come into England it was resolved in full Council as the Book saith before the Lords and Judges that he should not have licence to come into England unless he would take an Oath at Calice that he would bring nothing with him that should be prejudicial to the King and his Crown The King by the Common Law may send his Writ Ne exeas regnum to any Subject of the Realm but the surmise of the Writ is Quia datum est nohis intelligi quod tu versus partes exteras absque licentia nostra clam destinas te divertere quam plurima nobis coronae nostrae prejudicia prosequi Fitzh N. B. 85. b. Fitzh N. B 15. â—b So in point of Government and common good of the Realm he may restrain the person But to conclude therefore he may take money not to restrain is to sell Government trust and common Justice and most unworthy the divine Office of a King But let us compare this power of the King in foraign affairs with the like power he hath in Domestick Government There is no question but that the King hath the custody of the gates of all the Towns and Cities in England as well as all the Ports and Havens and upon consideration of the Weal publike may open and shut them at his pleasure as if the infection of the sickness be dangerous in places vicine to the City of London the King may command that none from those places shall come into the City May he therefore set an Imposition upon those that he suffereth to come into the City So if by reason of infection he forbid the bringing of Wares and Merchandizes from some Cities or Towns in this Kingdom to any great Fare or Mart shall he therefore restrain the bringing of Goods thither unless money be given him by way of Imposition The King in his discretion in point of equity and for qualifying the rigor of the Law may enjoyn any of his Subjects by his Chancellor from suing in his Court of Common Law May he therefore make a benefit by restraining all from suit in his Courts unless they pay him an Imposition upon their Suits 2. E. 3.7 In 2. E. 3. in the case of the Earl of Richmond before-cited the King had granted unto the men of great Yarmouth that all the Ships that arrived at the Port of Yarmouth which consisted of three several Ports Great Yarmouth Little Yarmouth and Gerneston should arrive all at Great Yarmouth and at no other place within that Port. The lawfulness of this Patent being in question in the Kings Court it was reasoned in the Kings behalf for the upholding of the grant as it is now that the King had the custody of the Port he might restrain Merchants fron landing at all in his Kingdom Therefore out of the same power might appoint where and in what Haven they should land and no other The Patent was demurred on in the Kings Bench as being granted against the Law but the Case depending was adjourned into Parliament for the weight and consequence of it and there the Patent was condemned 9. E. 3. cap. 1. and a Law made against such and the like grants The Presidents that were vouched for maintenance of this power of restraint in the King were four produced almost in so many hundred years Rot. Par. 2. E. 1. n. 16. Rot. fin 2. E. 1. n. 17. Ro. claus 10. E. 3. dor 31. Ro. claus 17. H. 6. in dors whereof two were in the second year of E. 1. one in the tenth year of E. 3. another in the seventeenth year of H. 6. since which time we hear of none but by Act of Parliament as they had been usually and regularly before To these I will give answer out of themselves out of the common Law out of divers Statutes and out of the practice of the Commonwealth The restaint in the time of E. 1. the one of them was to forbid the carrying of Wooll out of the Realm the other was to forbid all Traffick with the Flemings That of 10. E. 3. was to restrain the exportation of Ship-timber out of the Realm That of 17. H. 6. to prohibite Traffique with the Subjects of the Duke of Burgundy These presidents are rare yet they have in them inducements out of publique respects to the Common-wealth for the rule of Common Law in this case I take it to be as the reverend Judge Sir Anthony Fitzherbert holds in his Writ of Ne exeas regnum in Nat. Fitzh N. B. 85. Br. that by the Common Law any man may go out of the Kingdom but the King may upon causes touching the good of the Commonwealth restrain any man from going by his Writ or Proclamation and if he then go it is a contempt This opinion of his is confirmed by the Book 1. Eliz. fol. 165. Dier 12. Dier 1. El. 165. Dier 13. El. 296. 13. Eliz. Dier 296. In like manner if a Subject of England be beyond sea and the King send to him to repair home if he do it not his Lands and goods shall be seised for the contempt and this was the case of William de Britain Earl of Richmond 19. E. 2. He was sent by the King into Gascoyne on a message 19. E. 2. and refused to return for which contempt his Goods Chattels Lands and Tenements were seised into the Kings hands 2 3. P. M. Dier 128 The Record is cited 2