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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
law_n	common_a	court_n	matter_n	4,363	5	5.8066	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
B01916	The case of the merchants of London, in reference to the arrears of excise, stated and examined.		1662 (1662)	Wing C1116A; ESTC R171014	8,051	28

Judgment is utterly void and null But that the pretended Judgments above mentioned are defective in all three I conceive it will not be hard to manifest For first it will not be denyed but that all those pretended Acts and Ordinances for the setting up and establishing of an Excise in the times of the usurping Powers and amongst the rest th●t of the 14th of August 1649. upon which the said Judgment must be grounded if upon any were in themselves void ab in itio And could have no legal force especially after his Majestie 's happy restauration unless they had been set up and made valid by Act of Parliament which I conceive under favour they never were For although it be true that in the Parliament begun at Westminster the 25th day of April 1660. two shorts Acts were made for the continuance of the Excise the one from the 24 t● day of June 1660. to the 20th of Aug. following and the other from thence to the 25th of Decemb. following in both which it was enacted That the said Imposition together with all Arrears thereof should continue to be collected and paid according unto and after the rates rules and proportions as the same was payable and collected the 25 ●h day of April 1660. yet under correction I conceive that those words did not set up nor make valid the said pretended Act of the 14th of Aug. 1649 nor any other of those pretended Acts or Ordinances for that no Act or Statute can be continued confirmed or revived much less originally set up and made an Act being none before without special words to that purpose And in this particular if it should be admitted that the words Rates Rules and Proportions should intend a setting up of those pretended Acts themselves it must follow they must be either intirely set up that is to say the whole Acts in the very words they are penned or but in part If entirely then that part of the said Act of the 14th of Aug. 1649. which obliged all Commissioners Sub-commissioners to take an Oath to be true and faithful to the Common-wealth of England as it stood then pretended to be established without a King or House of Lords many other like absurdities had been by consequence thereby likewise established which no body will be so weak as to admit But if it shall be said That they were set up but in part then those particular parts so intended to be set up must have been specially mentioned and distinguished which here they were not I conclude therefore that neither in part nor in the whole any of the said pretended Acts or Ordinances were thereby put in force And if so the whole force of the 25 Article of the 14th Aug. 1649. upon which the said Judgments were grounded was at the time of the passing of the said Judgment utterly void and of none effect And the Merchant-Importer not being originally chargeable either by his Entries or otherwise with the payment of any Excise for his Goods could not by any Judgment grounded upon that Act be made lyable thereunto And as to the second which concerns the Authority of the said pretended Judges it will likewise follow that that was none at all as to point of giving Judgment upon any default for in the first of the two Acts of Parliament above mentioned no persons at all are constituted Commissioners for the Excise And by the second though Nathaniel Manton and others therein named are appointed Commissioners yet they have thereby no other power given them but only to collect and receive the said duties according to the former rates and rules without any Authority at all to put any of the said pretended Acts or Ordinances in execution in case of offence or disobedience to the same And as to the last point viz. Whether the said Judgments be matter of Record or not I shall need to say little unless any man shall first shew me by what Act or Statute the said Nathaniel Manton and the rest of the Gentlemen in the said Act named are constituted a Court of Record or that they had antient Jurisdiction by the Common Law until When I conceive I may save both my self and the Reader the trouble of that Argument Now for the value of these supposed Arrears to his Majesty if they were Justly recoverable as I conceive they are not it will be found upon examination to be very small and inconsiderable and not worthy so great an Odium and discontent as the very attempt of enforcing the Merchant to pay them hath already provoked For although I have heard they have been represented to amount to at least an hundred and fifty thousand pounds yet it is to be considered that the estimate thereof is taken only from the Books of the late Excise Office as they stand charged with the Merchants Entries before any adjustment made Upon which First no allowance is yet given them for goods Exported by the Merchant again which will be found to be very great quantities Secondly there are thousands of Entries that will be utterly disowned by the persons upon whose particular Accompts they are put it being a most usual and common practise in those dayes for one Merchant to enter Goods in another mans name sometimes by consent between them and sometimes without consent which was done on purpose to confound Accompts and render it impossible for the Commissioners ever to prove them and consequently to make any true Judgment upon them Thirdly there have been no allowances yet made upon those Accompts for Leakage or Wast of the Commodity which in Wines Oyles Vinegers Brandies and such like hath been very great especially in Wines the Merchant being alwayes charged in the Excise Office with the entire quantity or contents of the number of Cask Entered without any allowance for Ou ts Leakage or other Deductions which are always allowed upon payment of the Customs And the greatest part of those pretended Arrears at least the greatest sums are pretended to be due from the Wine-Merchants Fourthly during some part of that very time for which those Accompts are to be made up the Excise was by an Act of the same Usurping Powers themselves that set it up in effect wholly thrown down again or at least suspended For on the 11 th of October 1659. the Rump-Parliament which was restored to their sitting but in May then preceding foreseeing they should be outed again by Lambert as within two dayes after they were to prevent him from raising Money to pay his Army made an Act by which it was declared High-Treason to levy Customs or Excise or any other Tax upon the people And during all the time of that Exclusion until their second restitution which was about two Moneths or more the Excise was understood on all hands to be quite down and all Commodities were bought and sold Duty-free And a very great part of those very Goods for the Excise whereof the Merchant now stands charged in Arrear were bought and sold within that very time Fiftly it appears not what quantities of the same Goods the Merchant had remaining upon his hands unsold at the time when the Excise of Foreign Commodities fell all which several particulars must be allowed and deducted in case the Merchant were liable to pay the rest as indeed he is not And then this great bulk of Merchants Arrears of which so great a noise hath been made will appear to be but a Cuckow whose body in the feathers seems to be as big as a Kite but being pulled is not so big as a Sparrow To manifest which yet a little further it is most true in fact that divers Merchants standing charged according to the Books of the Excise Office with very great sums in pretended Arrear having been by the Exchequer process lately sent against them frighted into a submission to Accompt in the Excise Office have come off and cleared the whole for half as many shillings as they stood Charged with pounds Which several particulars are offered to publick consideration by a Well-wisher as well to his Majesties Revenue at to the Merchants of London with no other Design but First that the opinion of the Justness and Recoverableness of so great a sum as these Arrears have been noised to be may not so far be relyed upon as to prejudice his Majesty in point of provision otherwise now a Parliament is sitting and hath the Revenue in consideration And Secondly that in case any endevours shall be used as is reported there are to procure any Act or croud in any Clause or Proviso into any Act that shall look back upon the Mercants-Importers to declare or make them liable to Accompt for matters so long past or to make them liable to the payment of that as an Arrear which they were never liable to pay even in the Usurping times as a Duty it may be considered by those to whom it shall appertain Whether it will be at all for his Majesties service or agreeable to equity and right reason seeing the whole matter will be Ex post facto and that the discouragements upon Trade are already too Many FINIS

August to the 25th of December following By both which Acts it was enacted among other things that the said Imposition together with all Arrears thereof should be continued to be collected levyed and paid during those respective Periods according unto and after the same Rates Rules and Proportions and upon the same Goods and Commodities as the same was payable and collected the said 25th day of April 1660. With a Proviso nevertheless That all sorts of Oyls Wines Tobacco's of the English Plantations Silks Linnens and divers other Commodities therein particularly named should after the 24th July 1660. be wholly discharged of the duty of Excise By vertue of these two Acts and during the time of their being in force the Commissioners of Excise for the time then being supposing that the Powers given them by the said pretended Act of the year 1649. were thereby continued did summon in divers Merchants of the City of London to give in an Accompt of their respective Rests according to the Article above mentioned some of whom did accordingly appear and gave in such Accompts but the said Commissioners never proceeded to any adjustment with any of those but left their Accompts depending when the Excise upon forreign Goods fell But divers other of the said Merchants committed default and never gave in any Rest at all and against these it is said the Commissioners of Excise proceeded according to the said 25th Article and made up their Accompts as they stood charged in the Books of Excise by their Entries and against every default or most of them entered Judgement for the Sum and made Demand thereof but proceeded no further as to the levying either the single or the double value of the said sums or any of them upon the refusers or neglecters of payment But there were many other Merchants that were never summon'd at all to give in any Accompt of their Rest and so fell not either within the one or the other of the two former capacities that is to say had neither Judgements passed against them by the Commissioners of Excise nor Accompts depending when the Excise of Forreign Goods ceased So then the Merchants of London as to this case of pretended Arrears of Excise are to be considered in these three capacities viz. Those against whom Judgement was entered upon default of giving in their Rests Those who gave in their Rests and had their Accompts depending unadjusted And those that were never summoned at all before the ceasing of the Forreign Excise Since which time viz. in this present Parliament an Act is made for vesting the Arrears of the Excise and New-Impost in general in his Majestie Whereby among other things his Majesty is enabled to sue for and recover the same of every person and persons their Heirs Executors and Administrators having Assets who are any way accomptable for the same as if the same Duties of Excise had been lawfully Imposed and as if the several pretended Acts and Ordinances imposing the same had been good and legal Acts of Parliament and had in express words granted the same to the King And it having been suggested that there are vast Arrears of Excise standing out in the hands of the Merchants of London which by vertue of this Act are now recoverable to his Majesty and thereupon several Informations being exhibited against several of the said Merchants within every of the said three capacities Lest the apprehension of so great a sum to be raised by this means should divert or delay the Parliaments intentions in providing for his Majesties supply otherwise It will not be amiss to examine first whether all or any of the said Merchants can be chargeable with any such Arrears at all And secondly admitting them not only chargeable but that the Arrears were actually recovered of what value they will be like to be in his Majesties purse As to the Merchants of the two last capacities viz. those whose Accompt were depending and those who never were summoned I suppose it will be easily granted from what hath been before truly stated that neither originally as Importers nor by any Act ordefault of their own nor by any Accompt stated before the ceasing of the Forreign Duty they were answerable for any Excise at all And then the question concerning those two sorts will only be Whether the Act by which his Majesty is invested as aforesaid hath since made them accomptable for the same or not And it is humbly conceived it hath not For although his Majesty be thereby invested with all Arrears of Excise in general words yet it is so far from making any person accomptable for the same that was not accomptable before that it rather restrains the power it gives his Majesty to recover such Arrears to such person or persons only who at the time of the passing of the said Act were accomptable for the same Neither doth it make or declare any thing an Arrear of Excise that was not then an Arrear by some of the former pretended Laws of Excise And although Informations may possibly be exhibited against some of both these two sorts as well as against the other yet it is to be supposed that this hath proceeded either of the mistake of those who certified them Debtors or else perhaps of design to endure them for fear of trouble to come in and submit to an Accompt which by the Law they are not now lyable unto The only remaining question therefore in which there is any seeming doubt or difficulty will be concerning those against whom for default of giving in an Accompt of their respective Rests Judgements have been actually passed and enregistred in the Office of Excise before the Excise of Forreign Goods fell to the ground viz. Whether the respective sums of Mony thereby adjudged against them shall be accompted such Sums or Debts of Excise as are intended in the said Act of Investure And if they shall and that nothing be to be pleaded in barr of his Majesties demand thereof upon what evidence they shall be recoverable That no Excise was originally chargeable upon the Merchant by vertue of his Entries at the Custom-house hath been already shewn and I suppose will not be denyed it being always payable by the first Buyer and not by the Importer It will follow then that if any of those sums so adjudged be due they must be due by vertue of the Judgments themselves or not at all And then the validity of those Judgments will be to be examined Now to make a Judgment good and valid in Law First there must be some Law Custom or Statute in force at the time of the passing thereof upon which it must be grounded Secondly The Judges must be rightly and duly constituted and must have sufficient Authority and Jurisdiction of the thing upon which the Judgment is made And thirdly the Judgment it self must be matter of Record against which no Averrment can be and if it be defective in any of these the