merchandizis scire faciant quod salvò securè in terram Angliae veniant cum vinis merchandizis suis faciendo inde rectas dubitas consuetudines nec sibi timeant de malis tolnetis quae iis faciat Rex vel in terra sua 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 antiquum 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. E. 3. cap. 9. the words are 2. E. 3. cap. 9. 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 or 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. in the 25 year of his reign made upon the very point in question 25. E. 1. cap. 7. the words are these And forasmuch as he 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 seà voluntariè excluduntur After which preamble among the particulars this of fort 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 I will pursue it a little further Matth Westm so 430. Edit per H. Savile mil. Francofurti 1601. 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
Auxilium is the most usual term for impositions upon goods imported and exported as by the Acts of Parliament by which such impositions are given to the King in which they are called most commonly by the name of Aids as proceeding of good will and benevolence The fourth Statute alledged on this part is that of 5. E. 2. c. 14. just in point of the matter in question 5. E. 2. cap. 14. Rot. Ordin and therefore I will set it down as I finde it Verbatim in the Record in the Tower Ensâ—ment novelles customes sont levies antients enhaunces come sur levies drapes vine aver du pois aut choses purquoy les Merchantes veynont pluis vilement meynes de bien menynent en la terre les Merchants estrangers demurront pluis longment que ils solâ—yent faier pur le quel dâ—moure le choses sont le pluis enhaunces que ils ne soloyeâ—t estre al dammage de roy de son people Nous ordoâ—omus que tout manners de male tolls levies puies de Coronement de Roy Ed. faier de Roy Henry soyent entirement oustes de tout estreints put tout jours nient contristeant le Chartre que le dict Roy Ed fist un Merchants aliens pur ceo que il fuit fait contra le grand Char. encâ—untre le Franchise de la City de Londres sans assent de Baronage c. Savant neque dont al Roy le custome de leynes peulx de quirs c. si aver les do et By this Law is recited That by the levying of new Customs and by the raising of old Traffique was destroyed and all things made dear And therefore all new Impositions and Customs were discharged Chariâ Mercatoriâ by which Custom that was encreased on Aliens was taken away and the reason alledged Because it was sans assent de Baronage and against the great Charter And this is further with this clause Saving to the King his Custom of Wooll Wooll-fells and Leather Si aver les do et Great wars have been raised against the credit of this Law in the Parliament House and Three things have been especially objected against it First That it is no Law for it was enforced upon the King by some of the Nobility that were too strong for him the Realm being then in tumult and mutiny about the quarrel of Peirce of Gaveston so never had the Kings free consent but he gave way unto it for fear of greater mischeif Secondly That in it self it is unjust as in taking away the Custom granted to the King by Charta Mercatoria 31. E. 1. and in making doubt whether the King should have the Custom of Woolls c. by those words Saving it to him Si avâ—r los do et The third Objection is That if it were a Law it is repealed To these I give particular Answers To the first That this Statute was made both at the instance of the King and people with a purpose and intention on all parts to settle things in a stay and order both in the Kings house and Commonwealth the King and his Nobles standing in good terms when this business was taken in hand and it was begun and ended with great solemnity and ceremony For the King is the third year of his reign gave Commission under his Great Seal to 32. Lords spiritual and temporal Com. 16. Mar. 3. E. 2. Rot. ordin 5 E. 2. of which there were eleven Bishops eight Earls and thirteen Barons they being as Committees of the higher House to devise Ordinances for the good government of his house and his Realm In which Commission he doth for the honor of Gods the good of him and of his Realm of his freewill grant to the Prelates Earls and Barons and others elected by the whole Kingdom full power to ordain the State of his house and Realm by such Ordinances as by them should be made to the honor of God the honor and profit of holy Church the honor of himself the profit of him and his people according to right and reason and the oath he made at his Coronation These joyning with others of discreet Commons in Parliament and taking every of them a solemn oath for their sincere demeanor in the business did make this and other Ordinances which were so well liked of by the King that after they were made he took an oath to observe them and caused them to be published in Pauls Church-yard by the Bishop of Salisbury by denouncing Excommunication against all that should wilfully infringe them Pullic 3. Kal. Oct. 5. E. 2. R t. ord Pat. 5. Oct. 5. E. 2. Rot. ordin And by his Letters Patents dated 5. Oct 5. regni sui did send them through the Realm to be published and from thenceforth to be observed thereby signifying his great liking and approbation of them after which they had the force and power of Laws given unto them in the Parliament in the fifth year of his reign The second Objection which is the injustness of the Law instanced in two points The taking away of Charta Mercatoria and the doubting of the Kings right to the Custom of Wooll-fells and Leather To the first of these I deny it to be unjust but to be according to the Law of England and liberty of the Kingdom for that Charter did contain in it divers grants of things which were not in the power of the King to grant without assent of Parliament the trial per medietatem linguae and other things tending to the alteration of the Law and burdening of the people and therefore that Charter never had his undoubted and setled force until it was confirmed by Act of Parliament but lay asleep almost twenty years together without being put in execution between 5 E. 2. and 27. E. 3. when it was confirmed for the doubt that is supposed to he made in the Statute of the Kings right to the Custom of Wooll Wooll-fells and Leather I take it there is no such doubt made For the words Saving the Kings right to the Custom of Woolls si aver les do et have this construction that is at such times as he ought to have it so the word si bath the signification of quando for it had been a folly to have made a Saving of that of the right whereof they had doubted neither is it likely but that they would have taken it away if it had not been lawful but there was no colour to doubt of the right of it for it was given by Act of Parliament and ever continued in force without challenge or exceptions to the lawfulness of it The third Objection is That this Statute is repealed To this I plead Nullum valet recordum If it be repealed it must be by Act of Parliament for unum quodque dissolvitur iisdem modis quibus est colligatum I and others have searched the Records of the Realm and endervoured
by all means to inform our selves of the truth herein we can find no Act of Parliament of repeal The truth is some Kings finding these Laws not to sort to their wills and humors have endeavoured to suppress them but they did never yet obtain a repeal of them by Act of Parliament But it is further urged That although there were no formal repeal of the Law yet it was never put in execution as a Law but even presently upon the making was rejected and use and practise went quite against is and for instance hereof a Record was vouched that E. 2 held himself so little bound by it as that in the 11. year of his reign he set an Imposition without assent of Parliament upon Wooll Wooll-fells Leather Wines Cloth Aver de pois and divers other kind of Merchandizes To this I answer that if it were true that a distinct and impotent King as he was did contrary to the Law doth this make the Law void and no Law But if we look into the whole Record and scan this action of E. 2. from the beginning of it unto the end we shall finde it a very good instance to prove the practice and execution both of this Law of 5. E. 2 and of that in 25. E 1. for it is true that E. 2. in the eleventh year of his reign did borrow of the Merchants a certain sum of money above the due Custom of Woolls Wooll-fells Wine Averdepois Leather and such other goods imported and exported but it appeareth by the Record he took it but for one year he took it by the advice and counsel of the Merchants and he took it per viam mutui as a loan Rot. Claus 11. E. 2. The direction of the Writ is Collectoribus mutui nobis per mercaetores alienigenas indigenas de certis rebus Merchandisis usque ad certum tempus faciendi This was done in good terms he did not claim it as his right but did borrow it which I do think is a good evidence against his right But what became of this the State would not abide it for all these fair shews And therefore afterwards the King sendeth out other Writs by which he dischargeth all Merchandizes of this Loan saving only Wooll Wooll-fells and Leather and for the Loan taken upon those Commodities it was limited to continue but until Michaelmas after and good security was given to the Merchants by the Customers to pay themselves by way of defalcation out of the Customs which should be due after Machaelmas those sums which were so borrowed of them The words of the Record are worth the observing Rot. fintum 11. E. 2. Cum pro expeditione guerrae Scotiae aliis arduis urgentibus necessitatibus nobis multipliciter incumbentibus pro quarum exoneratione quasi infinitam pecuniam refundere oportebit pecunia plurimum indigeamus in praesenti nuper pro eo quod exitus regni terrarum nostrarum simul cum pecunia nobis in subventione praemissorum tam per Clerum quam Communitatem regni nostri concessa ad sumptus pradictos cum fâ—stinatione qua expediret faciendos non sufficiunt exquirentes vias modos quibus possemus pecuniam habere commodius decentius pro praemissis de consilio advisamento quorundam mercatorum tam alienigenarum quam indigenarum viam invenimus infra script viz. And so setteth down the manner of the loan and the security for the payment of it This I take it was neither an Imposition nor a wrong in any respect Also by the first Record it appeareth that the Loan set on Wines Averdepois and such other Commodities besides Wooll Woll-fells and Leather were presently discharged by E 2. which sheweth they were taken to be within the intent of the Statute of 25 E. 1. The fifth Statute alledged on the behalf of the Subject is that 14. E. 3. Stat 1. c. 21. by which the Commons pray the King to take no more then the old Custom of the half Mark. 14. E. 3. Stat. 1. cap. 21. The King prayeth aid of the Commons for a time above the Custom upon his necessity of Wars And the conclusion is that by that Act the King doth grant that after the Feast of Pentecost twelve moneths following he will take no more of Woolls Wooll-fells and Leather but the old Custom and doth promise to charge set or assess upon the Custom but in manner as aforesaid The sixth Statute is 14. E. 3. Stat 2. cap 1. 14. E. 3. stat 2. c. 1 The King doth grant by way of Charter to the Prelats Earls Barons Commons Citizens Burgesses and Merchants that they be not from henceforth charged nor grieved to make any aid or sustain charge if it be not by the common consent of the Prelates Earls Barons and other great men and Commons of the Realm and that in Parliament These two Statutes grew upon an occasion of an Imposition set on Wooll by the King without assent of Parliament Little hath been objected against them but only to the first that it was obtained of grace and not upon instance of right which they gather out of the words of the Law which are The Commons pray the King that he would stablish that from henceforth no more then the old Custom be taken The like reason may be made against the King out of the same words in the same Law for the King in the same Act prayeth the Commons to give him an Imposition upon Woolls for a time above the old Custom but the Record of the Petitions exhibited in Parliament on which these two Laws are made cleareth the objection The first was delivered by the Lords in this form Rot. Par. 13. E. 3. num 5. Les grands volunt that the male toll set on Woolls newly be altogether abated and that the old Custom be held and that they may have this in point of Charter and by inrolment in Parliament This word volunt had been too high for a suit of grace and therefore must be intended of right The Commons Petition in form is somewhat humble but in effect and purpose is rough and stern The words are these Rot. Par. 13. E. 3. num 13. The Commons pray that the male toll of Woolls be taken as it was used in antient time which is now enhanced without the assent of the Commons and grandâ—s as we conceive and that if it be otherwise demanded that every one of the Commons may arrest them without being challenged According to these Petitions the first of these two Laws is by inrolment in Parliament the second is in form of a Charter the first doth express some special commodities The second doth reach generally at all The seventh Law directly touching this point 13. E. 3. stat 2.6.2 is that 14. E. 3. Stat. 2. cap. 1. The King doth grant according to the Great Charter that all Merchants Deniznes and foreigners may without let
Patents of his own will and power absolute without assent of Parliament he be so 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 impositions 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 jurae 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 prâ—cessu ac etiam in redditione judicii lâ—quelae quae fuit in Curiâ nostrâ coram nobis Error intervenis manifestus ad grave damnum c. Nos errorem si quis fuerit modo debito corrigi pariibus praedictis plenam celerem justitiam fieri volentes in hâc parte vobis mandamus quòd Recordum processum loquelae illius cum omnibus ea tangentibus in praesens Parliamentum nostrum sub sigillio tuo distiâ—â—â—è apertèmittas hoc breve ut inspectis c. nâ—s de Consilto advisamento Domi norum spiritualium temporalâ—um ac Communitatis in Parliamento nostro praedicto existentis alterius pro errore illo corrigenâ—o fieri faciamus quâ—d 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 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 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
But the matter so depending in the ordinary Court of Justice a Writ came out of the Parliament and did 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 Judgemet 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. upon the complaint 1. El. Dier 265. 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. E. 3.13 by which case it appeareth 39 E. 3.13 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 that 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 King recited 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. 1. by meer right of Prerogative at the Common Law Rot. char 31. E. 1. num 42. in Turri 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 21 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. heretofore cited doth make this point clear without scruple 27 E.
safely come into the Realm of England with their goods and Merchandizes and safely tarry and safely return paying the Subsides Customs and other profits reasonably due Upon the words of this Law was great advantage taken in this that besides Custom and Subsidy which comprehend all the certain and ordinary duties the King hath upon the wares and goods of Merchants there are other profits spoken of to be due These they affirm cannot be understood but of Impositions by the King without assent of Parliament To this I answer if they were not duties due to the King besides Custom and Subsidy which might satisfie the intention of these words this objection might have had some colour in it but it is plain that besides these two there are other profits due to the King upon Merchants goods as Scavage Tonage and the like And you shall finde a Petition in Parliament Rot. Par. 50. E. 3. nu 163. 50. E. 3. against the raising of these above the old rate The eighth Law is 15. E. 3. stat 2. c. 5. E. 3. Stat. 2. cap. 5. whereby it is enacted that every Merchant may freely buy and sell and pass the Sea with their Merchandizes of Wooll and all other things paying the Custom of old time used according to the Statute made in the last Parliament in Midlent which was the Stat. 14. E. 3. stat 2. cap. 2. This Law doth expresly exclude the novelty of Impositions The ninth Law is that 18. E. 3. stat 1. ca. 3. whereby it is enacted 18 E. 3. stat 1. c. 3 That the Sea be open to all manner of Merchants to pass with their Merchandizes where it shall please them The tenth is 27. E. 3. stat 2. c. 2. 27. E. 3. stat 2 cap. 2 for the assurance of Merchants-strangers and other the King doth will and grant for him and his Heirs that nothing shall be taken over the due Customs not taken of them to his use by colour of suit or in other manner against their wills The eleventh is 38. E. 3. cap. 2. 38 E. 3. cap. 2. that all manner of Merchants aliens and Denizens may buy and sell all manner of merchandizes and freely carry them out of the Realm paying the Customs and Subsidies thereof due The last is 22. H 8. cap. 8. by which it was enacted that Tables should be set up in Ports 22. H. 8. cap. 8. by which the certainty and very duty of every Custom Toll and Duty or sum of money to be demanded and required of Wares and Merchandizes shall and may plainly appear and be declared to the intent that nothing be exacted otherwise then in old time hath been used and accustomed By this late Law it appeareth that the judgment of the whole Parliament was at that time That nothing was due upon Wares and Merchandizes but that which which was certain and had been antiently due by which Impositions are excluded whose qualities are novelty and incertainty as being set on as present occasion moveth and proportioned for quantity and other circumstances as the will of the King directeth These are the Laws which I conceive most directly tend to the restraining the Kings of England from the exercise of that irregular power of imposing at the first offered by them to be put in execution yet not pressed as their right and never practised but upon opposition of the whole State and at last deserted and given over until of late as by that which followeth in the fourth place will appear My fourth and last assertion is Custom 4 That this practise of imposing without assent of Parliament is contra morem Majorum In this I will make an historical perlustration of the times past whereby I will discover and make known what passages have been in this business in this Kingdom and especially the high Court of Parliament for the space of 300 years and more last past since the beginning of the reign of E. 1 sithence which time and not before this Kingdom hath grown into the glory and reputation of foraigne traffique And as a worthy Gentleman of the Kings learned Councel made certaine considerations upon this question framed and strengthened out of the greatness of his wit and reason so I grounding my self upon the practice of former times which is the safest rule whereby to square the right both of King and people in this Common-wealth where their right is jus consuetudinarium a right that groweth by use and practice I will propose unto you certaine observations out of the action and experience of former times untill the raignes of the two late Queenes by which you may the better ground and frame your judgements in the determination of the right in this question My first observation is in point of circumstance that there never was any Imposition set but in time of actuall war and duplicatis vexillis they were set on very rarely and sparingly but for a short rime and that certaine and definite and upon some few commodities and that by the assent of the Merchants that were to beare the burthen In our time the occasion not so sensible the continuance to be perpetual the number many hundreds almost no kinde of Commodity spared I will give you some few Instances of these circumstances out of the Records themselves The maletole of Wooll set on by King ε. I. 22. E. 1. orig Scace Rent Thes which gave the occasion of the Stat. 25. yeare of his raigne was given by Merchants The Record saith Mercatores gratanter concesserunt in subsidium guerrae Regis 22. E. 1. men Scac. R. Thes T. Mich. Rot. parl 17. E. 3. nu 28. It further sheweth it was for his necessity of Warre which then was great also For the time of E. 3. there need not many instances for his whole raigne was almost an actuall warfare As in the sixt year of his raigne for his war in Scotland and Ireland In the thirteenth year of his raigne for his war in France severall Impositions were ser on In the seventeenth year of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Merchants Rot. parl 50. E. 3. nu 18. and it was in the time of VVar. In the twentieth yeare of King E. 3. it appeareth in the Record that the Imposition then put upon VVools was by the assent of Merchants for two years for the necessity the King had in his passage ovet the sea to recover his right and to defend the Realme My second observation is Never any Imposition was set on by the King out of Parliament but complaint was made of it in Parliament and not one that ever stood after suck complaint made but remedy was afforded for it Et quod Rex inconsulio fecit consulto revocavit his Soveraigne power controlled his subordinate In which it is a thing very notable that the King in no one Case
this the King may restrain the passage of the person and of the goods therefore he may suffer them not to pass but sub mode 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 1 H. 7.10 In 1. H. 7. fol. 10 in the case of the Florentines for their Allome the Lord Chief Justice Hussey 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 plurimâ— nobis coronae nostrae prejudicia prosequi Fitzh N. B. 85. b. So in point of Government Fitzh N. B 15 â—b and common good of the Realm he may restrain the person But to conclude therefore he may take money not to restrain is to fell 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 In 2. E. 3. in the case of the Earl of Richmond before-cited 2. E. 3.7 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 This 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 and a Law made against such and the like grants 9. E. 3. cap. 1. 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. Br. that by the Common Law any man may go out of the Kingdom Fitzh N. B. 85. 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 Dier 1. El. 165. Dier 13. El. 296. Eliz. fol. 165. Dier 12. 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 The
so long with-held us And we your Majesties most humble faithful and loyal Subjects shall ever according to our bounden duty pray for your Majesties long and happy reign over us The question is whether the King without assent of Parliament may set impositions upon the wares and goods of merchants exported and imported out of and into this Realme THree things have been debated in this Parliament that have much concerned the right of our whole Nation of which every one of them hath exceeded the other by a gradation in weight and moment The first was the change of our name which was a point of honour wherein we shewed our selves not willing to leave that name by which our ancestors made our Nation famous The name of Britaine not admitted in legall proceedings yet have we lost it saving onely in those cases where our ancient and faithfull Protector the Common Law doth retaine it The second was the union a question of greater moment for that concerned the freehold of our whole Nation not in so high a point as having or not having but in point of Division and participation that is whether we should enjoy the benefits and liberties of the kingdome our selves onely as we and our ancestors have done or admit our neighbour Nation to have equall right in them and so make our own part the less by how much the greater number should be among whom the Division was to be made This 〈◊〉 〈◊〉 against us both Legally and Solemâ—â—â—â—nd therefore in that we rest Coke l. 7 Calvins case hâ—ping of â—â—â—t effect of this judgement which we râ—â—â— of in the Poet Tros Tyriusque mihi nullo discrimine habetur Virgil. Aen. l. 1. Dido's speech to Aeneas The third is the question now in hand which exceedeth the other two in importance consequence concerning the whole kingdome for it is a question of our very essence not what we shall be called nor how we shall divide that we have but whether we shall have any thing or nothing for if there be a right in the King to alter the property of that which is ours without our consent we are but tenants at his will of that which we have If it be in the King and Parliament Then have we propertie and are Tenants at our own will for that which is done in Parliament is done by all our wills and consents And this is the very state of the question which is proposed that is whether the King may impose without consent of Parliament Impositions are of two natures Forreine and Intestine Intestine be those which are raised within our land in the commerce and dealing that is at home within our selves and may aswell for that reason be so called as for that vescuntur intestiniâ— Reipublicae They are fed and nourished with the consuming and wasting of the entralls of the Common wealth Against these I need not to speake for the Kings learned Councell have with great honour and conscience in full Councell acknowledged them to be against the law Therefore I will apply my self to speak of impositions forreigne being the single question now in hand and maintained on the Kings behalfe with great art and eloquence The inconvenience of these impositions to the Common-wealth that is how hurtfull they are to the Merchants in impoverishing them in their estates to the King in the increasing of his revenues by decay of traffique and to the whole people in making all commodities excessive deare is confessed by all and therefore need no debate The point of right is now only in question and of that I will speak with conscience and integrity rather desirous that the truth may be knowne and right be done than that the opinion of my self or any other may prevaile The occasion of this question was given by the book of rates lately set our affronted with the copy of Letters Patents dated July 28. 6. Jac. In which book besides the rates is set down every kind of merchandise exported and imported for the true answering of subsidy to the King according to the Statute of Tonnage and Poundage In the first yeare of his reigne there is an addition of impositions upon all those kind of wares which within the book are expressed and the rate of the imposition as high and in some cases higher than the rate of the subsidy And this declared to be by authority of those Letters Patents Hereupon considering with my selfe that heretofore the setting on of one only imposition without assent of Parliament upon some one kinde of merchandise and that for a small time and upon urgent necessity of actuall war did so affect our whole Nation and especially the great Councel of the Parliament being the Representative body of the whole Common-wealth that neither the sun did shine nor the rivers run their courses until it was taken off by the publick judgment of the whole State I thought it concerned me and other members of that Councell that were no less trusted for our Countrey than those in former times and have their actions to guide and direct us to have the same care they had in preserving the right and liberties of the people having now more cause then they had for that the impositions now set on without assent of Parliament are not upon one or two speciall kinds of goods but almost indefinite upon all and do extend to the number of many hundreds as appeareth by that printed book of rates and are set in charge upon the whole kingdome as an inheritance to continue to the King his heires and successors for ever which limitation of estate in matter of impositions was never heard of nor read of before as I conceive The inducements expressed in these Letters Patents are much upon point of State and with reference to the rights and practice of forraine Princes For this I will not take upon me to enter into the consideration of such great mysteries of policie and government but will only put you in minde of that I observe out of Tit. Livius the Romane Historiographer Tit. Liv. l. 8. Omnem divini humanique moris memoriam abolemus cum nova peregrinaque patriis priscis praeferimus To that which hath been spoken for the Kings Prerogative I will give answer to so much of it as I may conveniently in my passage through this debate wherein I will principally endeavor to give satisfaction to such new objections as were made by the worthie and learned Counsellor of the King that spake last in maintenance of his Majesties Prerogative The case in termes is this The King by his Letters Patents before recited Pat. July 28. Iac. 6. hath ordained willed and commanded that these new impositions contained in that book of rates shall be for ever hereafter payd unto him his Heires and Successors upon paine of his displeasure Hereupon the question ariseth whether by this Edict and Ordinance so made by the King himselfe by his Letters
must give his own Letters Pattents the force of a Law to alter the property of his Subjects goods which is also against the Law That the King of England cannot take his subjects goods without their consent it need not be proved more than a principle it is jus indigena an old homeborne right declared to be Law by divers statutes of the Realme 34 E. 3. c. 2. As in 3â— E. 3. cap 2. That no office of the Kings or of his heires shall take any goods of any manner of person without the assent and good will of the party to whom the goods belonged The same is declared in many other Statutes made against prisages and purveyances Neither have ever any Kings attempted to go plainly and directly against that right but have devised certaine legal colours and shadowes for their wrongfull doing in that kind which I doe find were of three sorts Commissions Loans or Privie Seales Benevolence by way of Commission by way of Loan by way of Benevolence Commission of all other were the most insolent for they went out as it were by authority to levy ayd of the people upon great necessity of the commonwealth These were condemned in Parliament 21 E. 3. Num. 16 upon a greivous complaint made of the use of them by the Commons unto the King in Parliament wherein the people doe pray the King that he would be pleased to remember how at the Parliament held the 17 year of his raign and at the last Parliament That is the Parliament it was then accorded and granted by their said Lord the King and his Councell that there should goe out no Commissions out of Chauncery for Hobbeleries Archers and other charges to believed upon the people if they were not granted in Parliament which ordinances were not observed by reason whereof the people were impoverished acd decayed for which they prayed the King that he would be pleased to take pity of his people and the ordinances and grants made to his people in Parliament to affirme and hold And that if such Commissions goe out without assent or Parliament that the Commons which are grieved thereby may have writs of supersedeas according to the said Ordinance and that the people be not bound to obey them To this the Kings answer is Si ul tiel imposition fuit fait per grand necessitis ceo del assent des Prelates Counies Barons aut grandes ausomes des Commons adonque presents Neant moins nostre Seignior le Roy ne voet que tiel imposition non duement fait soit treit in consequence eins voet que les ordinances dont cest petition fait mention soit bienment gardes The last time that ever King attempted the course of exaction was 17 H. 8. Stowes annals 17. H. 8. upon the taking of the French King at Pavia by the forces of Charles the fifth Cardinal Wolsey having a purpose to put the King into a warre about that quarrell and finding a warre about that quarrell and finding his cophers empty advised this way to send out Commissions and by them to levie ayd of the people according to the value of their estate But this gave such discontent to the whole Realme that it caused in many places an actuall rebellion and the Cardinal being called to give an account of this bad advice did justifie this fact by the example ot Joseph who advised Pharaoh to take the fifth part of his subjects goods But when he saw that would not serve the turne he falsely laid it upon the Judges informing the King he did it by their advice being resolved by them of the lawfulness of the fact So you see that great Church-men found more safety in matter of government of our Commonwealth in making a false report of a point of the Common Law then in a true Text of the Scripture And if any Church men will endeavor by application of the Text of Scripture to overthrow the antient Laws and Liberties of the Kingdom I would advise them to be admonished by the ill success of the Cardinal in this particular action and by the miserable catastrophe of his whole life and fortunes Loans and Privy Seals Loans and Apprests were those which we call Privy Seals which though they were more moderate in shew yet being made against the good will of the parties were as injurous indeed as the other The Commons in Parliament Rot. pat 25. E. 3. num 16. 25. E 3. Num. 16. made a grievous complaint to the King against the use of them and prayed that none from thenceforth should be compelled to make Loans against their will and they gave this reason in their petition for that it is against reason and the franchise of the land and prayed that restitution might be made to those that have made such Loans To this the Kings rescript was It pleaseth our Lord the King it be so Lastly Benevolence Came in those kinde of exactions which were termed by the fair name of Benevolences but they became so odious as they gave the occasion of a good Law to be made against themselves and against all other shifts and devices by what new terms soever imposed upon the Subjects 1 R. 3. c. 2 the Law is 1 R. 3. cap. 2 and is thus The King remembring how the Commons of this his Realm by new and unlawful inventions and inordinate covetise against the Law of this Realm have been put to great servitude and important charges and exactions and especially by a new Imposition called a Benevolence enacteth by the advise c. that the Subjects and Commons of this Land from henceforth shall in no wise be charged by any such charges or impositions called the Benevolence nor by such like thing But if you will deny that the King doth in this case take the goods of his Subject without his assent then you must other fall upon mine alternative proposition That the Kings Patent hath in this case the power of a Law to alter property for how can he recover the imposed by a legal course of proceeding and by judgment in his Court but upon a title precedent him before the action brought which title must be a property in the same imposed and how commeth he by that property but by his own Letters Patents by which he declareth he will have that same as an imposition For the Judgment giveth not the right but onely doth manifest and declare it and giveth execution of it So in this point the question is whether the Kings Patent hath the force and power of the Law or not for if it be not maintained that it hath it can never be concluded that he can transfer the property of his Subjects goods to himself without the assent of them for quod meum est sine facto meo alterius fieri non potest And if you give this power to the Kings Patent you subject the Law and take away
all rules and bounds of settled government and leave in the Subject no property of his own neither do you by this advance the Kings power and prerogative 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 in the time of Henry 6. Fortese de laudibus Leg. Aug. c. 9. His words are these in his Book De laudibus Legum Angliae cap. 9. Non potest Rex Angliae ad libitum leges mutare rognisui principatu namque nedum regali sed politico ipse dominatur Si regali tantum praeesses iis leges mutare posset tallagia quoque caetera onera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigore◠sed longè aliter potest Rex politicis imperans quia nec leges ipse sine subditorum assensu mutars poterit nec subjectum populum reuitentem onerare peregrinis impositionibus In which place I must interpret unto you that peregrina 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 which is the very thing in question Further in the thirty sixth Chapter Fortesc de laud. Leg. Ang. cap. 36. 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 eorum 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 Philip Comines Ph. Com. l 4. cap. 1. l. 5. cap. 8. that lived at that times 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 Diec. 1. E. 165. until the case in my L. Dier 1. 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 as in the book of 42. Ass pl. 5. 42. Aff. p. 9. 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
3. cap. 26. which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of Custom by three pence in the pound which is by name mentioned in the Statute is now due by Act of Parliament If you will have the King hold this encrease of Custom by Prerogative you go directly against his meaning for it appeareth by that which presently followed this Grant that the King took this encrease of Custom by way of contract onely and not by way of Prerogative for the same year following he directeth his Writs to the Officers of his Ports reciting the contract made with the Aliens by Charta Mercatoria adding further that some Denizens were willing to pay the like Custom upon the same Immunities to them to be granted and cloth assign his Officers to gather it but with this clause Si gratanter absque coertion◠solvere voluerint ita quod aliquem Mercatorem de regno potestate nostrâ ad prastationes custumas hujusmodi invite solvendas nullatenùs distringatis Nothing can more plainly express that the Kings intention was not to demand this by way of Prerogative but by force of the contract If there were such a Prerogative in the Crown as of right to have Custom how cometh it to pass this Prerogative never yet had fruit or effect for this I can maintain That the King of England hath not one penny Custom or Imposition upon Merchandizes elder then the fourth year of Queen Mary that he holdeth not by Act of Parliament and by the peoples grant The eldest that he hath is that of Woolls Wooll-fells and Leather and that is by Act of Parliament as appeareth in the Statute 25 E. 1. cap. 7. the Tonnage and Poundage by Parliament in the first year of every Kings reign 25 E. 1. cap. 7. The Aliens encrease of Custom by Parliament 27 E. 3 cap. 26. 27. E. 3. cap 26. Then this Prerogative hath been much neglected that it was never called on to be put in execution untill now of late years Concerning the Statutes made for restraining our Kings Statute 3 from the exercise of this pretended Prerogative which is the third matter I stand upon Those that have maintained the Kings Prerogative in this point have endeavored to interpret those Statutes to extend onely to restrain him from imposing upon Wooll Wooll-fells and Leather which are staple commodities And the reason they give for this restraint more then for other goods is because the King by Statute is restrained to a Custom certain for those commodities as the half Mark a Sack of Wooll and half a Mark three hundred Wooll-fells and thirteen shillings four pence a Last of Leather and therefore great reason he should not exceed this Custom in these Commodities This Objection receiveth many Answers First it appeareth both by the express letter of divers of the Laws made in this point by the occasion that induced the making of the Laws and by the execution of them that all other Wares and Merchandises as well as those of the staple were within the purpose and intent of those Laws Secondly The reason alleadged why there should be restraint for the staple Commodities rather then for the other is mistaken for the Lords and Commons did grant to E. 1. by Act of Parliament the custom of the half Mark for Wooll Wooll-fels and Leather which was matter of meer grace and liberality and includeth no restraint in it but rather a favourable extention quite contrary to the sence of the Objection according to that rule of interpretation Gratiosa ampliari decet odiosa restringi And admit some Laws be made expresly to restrain impositions upon Wooll Wooll-fells and Leather by reason that the occasion of making such Laws was the actual imposing upon those goods at that time shall we not by good construction Secundum mentem extensivam legis extend this Law to other Wares and Merchandizes that are within the same mischief If we look to the reason of the Law we shall make no doubt of it for that is because the impositions were without assent of Parliament not because they were upon such and such Commodities Besides those Laws so made are declarativae juris antiqui non introductivae novi In the enumeration of those Statutes which I conceive make directly to this purpose I will endeavour rather to answer the Objections made against them then to enforce the sense and meaning of them which is very plain and open and needs no interpretation The first Statute enforced is Mag. Charta cap 30. made in the ninth year of H. 3. by which it is enacted that all Merchants shall have free egress and regress out of and into this Realm with their goods and merchandizes to buy and sell sine omnibus malis tolnetis per antiquas rectas consuetudines In which words we may infer that both the use and right of imposing are absolutely excluded and debarred for Consuetudo which in this case is to be taken for Vsage which is mos not improperly for Porterium a duty paid in money as our English word Custom in one sence doth signifie implieth a beginning and continuance by consent and will of the parties not by power and enforcement which cannot be a Custom and therefore it cannot be an Imposition for that ariseth meerly out of the will and power of their imposer and is against the will of him upon whose goods it is set But take Consuetudo either for Mos or Portorium the epithites with which it is qualified antiquum and rectum do describe it to be of that nature that it cannot be an Imposition for antiquum in legal construction is that which is time out of mind that is not an Imposition for then by continuance of time it should grow a right by prescription and were justifiable Rectum implieth a limited right which inferred there may be a wrong and exceeding of that right which is not in impositions for if there be a right in the King to impose the quantity time and other circumstances are in his discretion the right is illimited And if he set on never so great an Imposition there is as much right in it as if it be never so small the excess maketh it a burthen but not a wrong We may further observe that in the Statute Malum tolnetum which is evill Toll is set down by way of antithesis to antiqua and recta consuetudo by which is inferred that exactions upon Wares and Merchandizes not qualified with these two properties of antiquum and rectum are evill and unjust This is made more evident by a Record in the Tower of the sixteenth year of H. 3. which was a Mandat sent by the King to the Customers of his Ports for the execution of this Law made in 9 H. 3. whereby it is commanded Rot. clau◠16. H. 3◠ma◠Quod omnibus Mercatoribus in portum suum venientibus cum vinis aliis
manifest and acknowledged by all yet if his own be detained from him by the King he hath no other Writ or Action to recover but a meer petition Supplicat Celsitudini c. So as if the word Petition to the King infer defect of right in the Petitioner there can be no case where the King can do the Subject wrong A second Objection out of the body of the Law is that the King doth release that imposition of forty shillings which implieth a right setled in him But to this I answer That it is no necessary inference wheresoever a release of right is for it is used for claim onely or where possession was though wrongful and that in majorem securitatem quia abundans cautela non nocet but in this case a Release was very expedient and for some respect necessary to extinguish a right the King had in this imposition against the Merchants themselves For this imposition though it were not set on by assent of Parliament yet was it not set on by the Kings absolute power but was granted to him by the Merchants themselves who were to be charged with it so the grievance was the violation of the right of the people in setting it on without their assent in Parliament not the damage that grew by it for that did onely touch the Merchants who could not justly complain thereof because it was their own act and grant This appeareth by two notable Records 22. E. 1. Origen in Scac. Rem Thes the one 22. E. 1. A Writ to the Treasurer and Barons of the Exchequer in Ireland to discharge the Merchants there of impositions on Woolls in which the King reciteth Licet in subsidium Guerrae Regis pro recuperandâ terrâ Vasconià mercatores gratanter concesserunt per biennium vel triennium si tantum duravit Guerra de sacco lanae c. The other Record is the Writ of publication In 26. E. 1. mem Scac. Rem Thes that in 26. E. 1. went out after the Statute of 25. in which Writ the King reciteth thus Cum nos ad instantiam Communitatis Regni nostri remiserimus custumam 40 s. nobis nuper in subsidium Guerrae noctrae contra Regem Franciae concessum c. A third Objection made out of the body of the Statute by those which have argued on the contrary part was upon these words that the King would take no such things without common consent by which words they conceived the intention of the Law was limited precisely to impositions set upon Wooll and not on other commodities which are not such things but other and for this they alledge this reason That it was not probable when the complaint was only for an imposition on Wooll that the King would give a remedy for other things not spoken of for which there was no cause of complaint To this a full answer is given many ways First out of the Saving in the Act which extends to other things then to Wooll as to Wooll-fells and Leather therefore the purview of the Act by these words such things extendeth to more then the Wooll for there needs no saving but for that which is contained in the purview Secondly The reason alledged that no more by likelihood should be remedied but for Wooll because onely that was complained of is false For the complaint of the Commons was not onely for this imposition on Wooll but divers other burthens and grievances of the like nature And this will appear if we compare all the parts of the Law the one with the other For this Law is in the form of a Charter written in French and beginneth Edward by the Grace of God c. and is an entire grant and Instrument without Fractions Sections and Chapters as it is now printed and containeth in it next before this last clause concerning the impositions on Woolls which in the printed Book is Cap. 6. That the King for no business from thenceforth will take no manner of aids mises nor prises but by common assent This word mises in French signifieth properly impositions derived of the word mitto in Latine to put so the word such things is a conclusion to all the premises and hath relation not onely to that which is made Cap. 7. by the Printer and concerneth the male toll of Woolls but to that precedent which is all other aids impositions and takings The Writ of publication of this Statute sent out to all parts in 26. E. 1. Mem. Scac. in 26. E. 1. Rem Thes maketh plain this construction the words of it are Concedentes quod custumam illam vel aliam sine voluntate vel communi assensu non capiamus These words vel aliam are indefinite and extend to any other whatsoever besides that of Woolls The Writ doth further discharge Merchants for the commodities of Wooll-fells and Leather which are not complained of by name in the Statute and therefore the Law was intended to other impositions as well as to those upon Woolls The Objedion made out of matter subsequent to the Statute was this that notwithstanding this Law of 25 E. 1. impositions that before the Statute had been set on other Merchandize then Woolls were still answered after the Statute and for instance of this was alledged 16. E. 1. Orig. R. Thes that whereas 16. E. 1. an imposition of 40 s. the Tun was set upon Wines brought into the Kingdom an accompt was made of this in the Exchequer in 26 E. 1. as by the Records there appeareth by which it seemeth that the Law of 25. E. 1 was not taken to extend to Wines and such other Commodities other then Woolls named in the Statute It is true such an imposition was se◠on by E. 1. in the sixteenth year of his reign 25 26 E. 1. de compt T. Mich. R. Thes and an accompt made for it 25 and 26. But it appeareth by the Record of the accompt that it was made for the time ended before the Statute made As from the eighteenth of May 16 E 1. to 23 Jul. 22. E. 1. But there is no Record that ever any accompt was made for any money received for that imposition for the time after the Statute made neither was it very willingly answered before for it appeareth by the Record that it was ten years after the setting of it The third Statute alledged on the behalf of the Subject is that 34. E. 1. c. 1. the words are these 34. E. 1. cap. 1. No tallage or aid shall be taken or levied by us or our heirs in our Realm without the good will and assent of our Arch-bishops Bishops Earls Barons Knights Burgesses and other freemen of the Land Against this was objected That this Statute was intended onely upon the Taxes and impositions of things The word Auxilium makes it clear that it is to be intended further then of things within the Realm for Tallagium is commonly intended of Domestical Taxes but
ever claimed or so much as ever named his right or prerogative which no doubt would have been 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. E 1. 25. E. 1. ca. 7. the Impositions of Wools taken off and a Law made against it Rot. parl 38. E. 3. n. 26. and the King undertook for him and his successors to doe so no more 38. E. 3. cap. 2. 38 E. 3. 26. the Imposition of three shillings foure pence on a sacke of Wooll put off upon complaint 45. E. 3. cap. 4. and a Law made against it 18. E. 3. cap. 10. 11. R. 38 E. 3. ca. 2. the like Statute 45 ε. 3. c. 4. upon a com plaint of an Imposition on Wools made in Parliament 18. E. 3. cap. 3. l. 1 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 Weol 21. E. 3. n. 11. R. Parl. 2. s upon a tunne of VVine 25. E. 3. n. 22. rot Parl. and fix 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 Merthants 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 Orig. in Scau 31. E. 1. R. Thes E. 1 in his Writs he sent to the Officers of his parts to levie three pence on the pound over the old custome of 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 net cake 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 ulira antiquas custumus 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 possint 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. I. 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 Stottish 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 bactenus praegravetur quod dolenter referimus sed inevitabili necessitate compulsi de eisdem oneribus ipsum aahus relevare non valemus dictum populum ut tantam necessitatem nostram humiliter benigne patiatur caritative sustineat priorem quam penes nos concepit de cetere 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 peâ—es eundem excusetis speramus namque per Dei gratiam cujus manus cunctis indigentibus sola sufficiens largistua com probatur beneficiis compensatius dictum populum visitare consolari pro loco tempore opportunis 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 saying thereon saith they were not onera ex presumtione 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 râ—ferimus shewing his griefe and remorse at it inevitabili necessitate compulsi 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 exhiberent 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
cap. 1. that is enacted in parliament which is contained in the Proclamation 17. H. 6. cited for a president that is because the Duke of Burgundy made an Ordinance whereby the Traffick of the English Nation was restrained that therefore the Englishment should not traffick with the Subjects of the Duke of Burgundy The same thing enacted upon the like occasion 4 E. 4. c. 1 19. H. 7. cap. 21. 4. E. 4. c. 1. 19. H. 7. c. 21. The importation of divers Commodities forbidden as being prejudicial to the Manufactures within the Realm 6. H. 8. cap. 12. 6 H. 8. cap. 12. The exportation of Norfolk Wools out of the Realm forbidden 26. H. 8 cap. 10. 26. H. 8. cap. 10. Power is given to the King to order and dispose of the Traffick of Merchants at his pleasure and the reason is given because otherwise the Leagues and Amities with foreign Princes might be impeached by reason of restraint made by divers statutes then standing on foot whereby it appeareth that it was not then taken to be Law that the King had an absolute power in himself to order and dispose of the course of Traffick without help of a Statute 2 E. 6. c. 9 2. E. 6. cap. 9. Exportation of Leather restrained 1 2. Ph. Mar. 1 2. P. M.c. 5. The exportation of Herring Butter Cheese and other Victuals forbidden 18. Eliz. cap. 8. The exportation of Tallow 18. El. c. 8 Raw Hides Leather So in all times no use of Proclamations in matters of this nature but Acts of Parliament still procured Wherefore in mine opinion it behoveth them that do so earnestly urge this argument the King may restrain Traffick therefore may impose to prove better then they have done that the King may restrain Traffick of his own absolute power For as the natural policy and constitution of our Commonwealth is we may better say that is Law which is de more gentis then that which floweth from the reason of any man guided by his general notion and apprehension of power regal in genere not in individuo The last assault made against the right of the Kingdom was an Objection grounded upon policy and matter of State as t he it may so fall out that an Imposition may be set by a foreign Prince that may wring our people in which case the counterpoise is to set on the like here upon the Subjects of that Prince which policy if it be not speedily execucuted but stayed until a Parliament may in the mean time prove vain and idle and much damage may be sustained that cannot afterwards be remedied This strain of policy maketh nothing to the point of right our rule is in this plain Commonwealth of ours Oportet neminem esse sapientiorem legibus If there be an inconvenience it is fitter to have it removed by a lawful means then by an unlawful But this is rather a mischief then an inconvenience that is a prejudice in present of some few but not hurtful to the Commonwealth And it is more tolerable to suffer an hurt to some few for a short time then to give way to the breach and violation of the right of the whole Nation For that is the true inconvenience neither need it be so difficult or tedious to have the consent of the Parliament if they were held as they ought or might be but our surest guide in this will be the example of our Ancestors in this very case and that in the time of one of the most politick Princes that ever reigned in this Kingdom 7. H. 7. cap. 7. 7. H. 7. cap. 7. you shall finde an Act of Parliament in which it was recited that the Venetians had set upon the English Merchants that laded Malmeseys at Candy four duckets of gold upon a But which in sterling is eighteen shillings the But. It was therefore enacted that every Merchant stranger that brought Malmsey into this Kingdom should pay eighteen shillings the But over and above the due Custom used this Imposition to endure until they of Venice had set aside that of four duckets the But upon the Englishmen Much hath been learnedly uttered upon this argument in the maintenance of the peoples right and in answering that which hath been pressed on the contrary but my meaning is not to express in this Disconrse all that hath or may be said on either side but onely to make a remembrance somewhat larger of that which I my self offered as my symbolum towards the making up of this great rekoning of the Commonwealth which if it be not well audited may in time cost the Subjects of England very dear My hope is of others that labored very worthily in this business that they will not suffer their pains to die and therefore I have forborn to enter into their Province I will end with that saying of that true and honest Counsellor Philip Comines in his fifth book the 18. chapter Ph. Com. l. 5 c. 18. That it is more honorable for a King to say I have so faithful and obedient Subjects that they deny me nothing I demand then to say I levy what me list and I have priviledges so to do After the Kings Right to Impose had been thorowly examined in Parliament and there determined not to be in him alone without assent of Parliament among other Petitions of grievance given unto his Majesty this hereafter was concerning Impositions THe policy and constitution of this your Majesties Kingdom appropriates unto the Kings of this Realm with assent of Parliament as well the soveraign power of making Laws as that of taxing or imposing upon the Subjects Goods or Merchandizes wherein they justly have such a propriety as may not without their consent be altered or changed This is the cause that the people of this Kingdom as they have ever shewed themselves faithful and loving to their Kings and ready to aid them in all their just occasions with voluntary contributions so have they been ever careful to preserve their own Liberties and Rights when any thing hath been come to prejudice or impeach the same And therefore when their Princes either occasioned by War or by their over-great bounty or by any other necessity have without consent of Parliament set on Impositions either within the Land or upon commodities exported or imported by the Merchants they have in open Parliament complained of it in that it was done without their consents and thereupon never failed to obtain a speedy and full redress without any claim made by the Kings of any Power or Prerogative in that point And though the Law of Propriety be originally and carefully preserved by the common Laws of this Realm which are as antient as the Kingdom it self yet those famous Kings for the better contentment and assurance of their loving Subjects agreed that this old fundamental Right should be further declared and established by Act of Parliament wherein it is provided that no