this high authority of an Ordinance in Parliament the assent also of Merchants was usually joyned therewithall to make it have the cleerer passage with the Subject and further it was never but in the time of warre The first imposition of this kinde by way of Ordinance 7 Ed. 3. R 9. Orig. de Scac. which I finde amongst the Records was 7 E. 3. amongst the Originals of the Exchequer where it is said by way of recitall that the King considering how Merchants which make great gaine by trading ought aswell as others to assist him with treasure for his Warre especially considering how at their intreaty he had placed the staple in England Therefore at his Parliament held at Yorke by the Prelates Earls and Barons it was ordained that the Merchants should yeeld unto the King a Subsidie upon Merchandizes This Subsidie or rather Imposition thus solemnly ordained and in the times of so great necessity was no sooner established then revoked as may appeare by the words imediately following in the same Record whereupon the Merchants of their own accords yeelded and freely gave ten shillings upon a sack of Wooll as much upon three hundred Woolfels and twenty shillings upon last of Lether for a short time by way of Dispensation or Licence towards the maintenance of the Warre The like is found anno 20. E. 3. 20. Ed. 3. Nu. 18. Ro Parl. where the Commons complaining of an imposition of this kinde laid by the Prelates Earles and Barons in Parliament and by the agreement also of Merchants It was not denyed unto them but that their suit was just onely it was answered them that as yet it was not convenient to take it away For that the King had taken up great summes of money of divers Merchants for his present necessity to be repayed out of the said Subsidie and therefore it could not be as yet discharged without great damage to the King and the Merchants But the most materiall Record against Impositions by way of Ordinance is the yeere following where the King in excuse of impositions complained of answereth that they were laid in times of great necessity and by the assent of the Prelates Earles and Barons and other great men and some of the Commons then present neverthelesse his pleasure is that such impositions not duly laid be not drawn into consequence but taken away 21 E. 3. No. 17. There are some others of this kinde but never any that did abide the triall though they have allwayes been accompanied with all such circumstances as were most likely to give them passage without controllment as to be laid in the time of warre to be limited to a short time with consent of Merchants If the authoritie of an Ordinance in Parliament joyned with the assent of Merchants were in those dayes not of force sufficient to uphold Impositions much lesse will an Order of the King and his Counsell out of Parliament uphold them at this day especially after so many yeeres discontinuance Another invention to raise impositions Impositions raysed by way of Loane by Merchants practised by Ed. 3. and in former times was by way of a pretended or feined Loane from the Merchants of so much above the old custome upon Merchandise exported or imported which Loane was never repaid to the Merchant That this was an old practise may be collected by the president 12. of Ed. 2. already cited where the King promiseth that without fiction or delay he would repay them their money implying thereby that sometimes fiction had been used and doubtlesse that loane which was 11. Ed. 2. the very yeere before was such a fained Loane as I speake of for otherwise without question the King would not have released part of it as may appeare by that Record that he did For if the money be bona fide borrowed and truly intended to be repaid then doubtlesse the course is lawfull if otherwise I hold this kinde also as unlawfull as any of the rest Edward the Third did once or twice borrow in this kinde as may appeare by Records already cited to another purpose with which I will not againe trouble you There was yet another Device for raising of Impositions begun indeed by Ed. 1. and condemned in the time of Ed. 2. Impositions raised by grant of Merchants for Liberties granted to them but revived and much practised by Ed. 3. which was also by way of grant of Merchants and yet not altogether the same that I first observed to have been so much practised by Ed. 3. but is much more colourable and tollerable For whereas that was a grant or rather a meere guift without any thing granted back againe in lieu thereof this I now speake of is a solemne grant indeed made by Merchants of an increase of custome for liberties and freedoms and other valuable priviledges and exemptions granted unto them by the King that former was date nihil expectantes this is date dabitur vobis and indeed the recompence that the Merchants had by this Charter granted unto them made their grant to the King lesse subject to controll then otherwise without such recompence it would have been I mean the grant of Merchant strangers so often remembred amongst us by the name of Charta Mercatoria which though it were damned all the time of Ed. 2. from the third yeer of his reign yet was it revived by E. 3. Even that very yeer when he likewise deposed the King his father and usurped to himselfe his Crown For it appeares by the Records that he commanded the same to be levied the very first yeere of his Reigne 1. Ed. 3. Ro. Fin. What hath been said against this kind of Imposition I shall not need here againe to repeate only let me call to your remembrance how this Charter as needing a better prop then his owne strength and Validity in Law was in the same Kings Reigne confirmed by Parliament and onely by that strength continueth in force at this day You have heard five or sixe severall politique Inventions and Devises for the easie drawing on and sweetning of this yoak of Impositions all practised by this prudent and potent King Ed. 3. whose times were indeed so troublesom and his charge every way so excessive as it is no marvell that he left not any way unattempted to raise money without the assent of the Commons whom he always found unwillingly and hardly drawne to matters of charge One other way of Impositions he used Impositions laid by expresse and direct Commandment not coloured or masked under any such pretence or politick Invention as you have heard but plain and direct only his owne expresse commandment to his Officers to collect of every Merchant so much for such a commoditie exported or imported and to answere it into his Exchequer without any recitall in his Commissions of Grant Assent Guift Loane of Merchants Dispensation or Ordinance in Parliament or any other such colourable pretext whatsoever
yeelded to in Parliament and granted for three yeeres made a conditionall petition that if any Imposition be laid upon Woolls Wooll-fells or Leather more then the Subsidie granted in Parliament that it may be taken away the King answereth That if any be laid since the Statute it shall be taken away and then follows the printed Statute An. 45. Ed. 3. cap. 4. That no Impositions be laid upon Woolls wooll-fells or Leather which is the first place where I finde Impositions named in our printed Books I finde them first named upon my Latine Record 12. Ed. 3. in the Kings Letter to the Archbishop and first upon any Record in French not printed An. 21. Ed. 3. Num. 16. Ro. Parliament But to proceed about a yeere following this Parliament of 45. neere which time the Subsidie granted An. 43. 46. Ed. 3. Nu. 10. Ro. Parl. for three yeeres was expired there was another Subsidie of Forty three shillings foure pence upon a sack of wooll as much upon Twelve score Wooll-fells and Five pounds upon a Last of Leather above the ancient customes granted in Parliament for the maintainance of the warre in Guyen to endure for two yeers For which the King likewise gave thanks The next yeer following the Subsidie granted the last Parliament 46. Ed. 3. Nu. 12 Ro. Parl. was continued from Michaelmas for a yeere without any condition and for the next yeere upon condition amongst other things That no Imposition be laid during the two yeeres 48. E. 3. Ro. 2. Orig. de Scac. and that the money levied be imployed upon the warres In the next yeere following the King took as by the grant of Merchants upon a sack of Wooll of Denizens Fifty shillings and of strangers foure Marks upon 240. Wooll-fells of Denizens Fifty shillings and of Strangers Foure Marks and upon every Last of Leather of Denizens Five pounds and of Strangers Eight Marks Though this Record pretendeth nothing but the grant of Merchants yet it is upon the matter no other then a dispensation for so much money For at this time the passage was not open other then to Callice where the staple then was as may appeare by the two Records of 38. Ed. 3. Ro. Parl. 50. Ed. 3. Num. 24. And yet you may see how hatefull even these Impositions by way of Dispensation which are farre more tollerable then our present Impositions were in those dayes For within two yeeres following one Richard Lions 3 5â—… 1â—…â—… Farmer of the Customes amongst other things laid to his charge was accused in Parliament for setting or procuring to be set new impositions not shewing of what nature without assent of Parliament and was adjudged to forfeit his Goods and Lands 50 E. 3. N. Ro. Parl. but more particularly the Lord Latymer Lord Chamberlaine of England was expresly accused that he combined with Richard Lions and others who for their own profit had procured and Counselled the King to grant many Licences for the transporting of great quantities of Wooll beyond the Seas other then to the Staple at Callice against divers Ordinances and Commandements to the contrary and had put upon Wools and Wool-fells new impositions Here you see that the device of Dispensations for money had the name of an Imposition in those dayes though indeed it be not in its nature a meere imposition or at least not such a one as those are which we complain of But such as it was you see how from time to time it hath beene condemned and how it is reckoned up amongst the most hainous faults of those two great offenders who though perhaps they were condemned also for other offences yet the laying of these to their charge did shew the great hate generally conceived against impositions of this kinde I might here further adde in proofe of the invalidity of these Dispensations that certain Merchants having obtained some of these and having also the advantage of the Kings Proclamation to dispense with the Statute which restrained their passage yet they never thought themselves secure from ths punishment of the Statute till they were provided for by Act of Parliament as may appeare by a Statute printed anno 35 Ed. 3. cap. 21. To alledge therefore any of this kind thereby to prove the lawfulnes of ours cannot but argue a weak cause For first as I have said there is farre more reason and colour for these then for ours for in this case no man was compelled to pay that did it not to avoide a greater mischeife for by paying the Imposition he was free from a grieveous punishment for breach of a penall Law which restrained his passage whereas in our case a charge is laid upon him for exercising his lawfull Trade where no Statute Law or Common Law is to the contrary but rather both the one and the other make for him But it may bee here objected that the King may Lawfully restraine the breach of which restraint is a contempt and against Law and that to impose doth imply a restraint upon a penalty Suppose it were so yet if in case where the restraint is not onely by the King but the whole Estate assembled in Parliament for some urgent cause it be unlawfull to give License for money as you perceive it is how much more is it so where the restraint is for no other purpose then to raise an imposition as in our case but of this more largely hereafter Another devise of raising impositions without assent of the Commons in Parliament Impositions raised by way of Ordinance in Parliament practised by Ed. 3. was by way of Ordinance which indeed is in the next degree of strength unto a Statute For it is a Constitution made by the king himselfe and all the Prelates Earls and Barons not at the Counsell Table or in the Kings Chamber but sitting solemnly in Parliament and hath also the like solemnity of inrolement that a Statute hath onely it is enrolled in a Roll by it selfe which hath the name of the Roll of the Ordinances But the only essentiall difference between this and an Act of Parliament is that this hath not the assent of the Commons Some Ordinances have had that estimation amongst us that they have at this day the force of Statutes as the Ordinance of Merton made 20 Hen. 3. which though it were no other then an Ordinance made by the King the Prelates Earls and Barons without assent of the Commons yet hath it by continuance of time gotten not onely the strength but the name also of a Statute There be some others of this by nature and we finde it usuall that the names of Statutes and Ordinances have been Indifferently and confusedly used to expresse the one or the other So as there was not any other more probable devise or invention to have brought the people under the yoake of Imposition without their own assent then was this by the way of Ordinance Nay to adde yet a further strength to
Law together The Petition for present ease is to be released onely of the Maletolt of foure shillings upon a sack of Wooll which is yeelded to The security for the time to come is We will take no such thing The saving which followeth that is Saving the Custome of Woolls Woolfells and Leather I observe the saving extends not to woolls alone as the Petition doth but also to Wooll-fells and Leather by expresse name by which it is evident that the securitie for the time to come is of a larger extent than to stretch onely to Woolls as hath been objected For else to what end should Wooll-fells and Leather be excepted in the saving if they had not been contained in the generall words no such thing An exception cannot be but of a thing contained in former words If therefore the grant would have extended to Wooll-fells if they had not been specially excepted then doe I conclude by the same reason that it doth extend to all other Merchandizes not excepted for the words are generall And so I leave this Law cleered of all objections and very full against Impositions The next Statute made against them is 14 Ed. 3. The fourth Statute urged against Impositions 14 E 3. cap. 11. cleered from objections cap. 21. By the first part of which Law you may perceive that whereas the Commons had prayed the King not to take of Woolls Wooll-fells Leather Tyn or Lead any more than the ancient Custome the King prayed them to grant him forty shillings upon a sack of Wooll for a yeer and a halfe which they granted whereupon the King by way of Retribution and in answere of their Petition as touching the Wooll causeth it to be enacted for their Security in time to come That neither he nor his heires would demand assesse nor take more custome of a sack of Wooll than sixe shillings eight pence And so likewise upon Woolls and Leather no more than the ancient custome without assent of Parliament All this while there is no answer given touching the Tyn and Lead mentioned in the Petition upon which as it appears the King had also laid Impositions But there doe follow certain generall words by which not onely Tyn and Lead but all other Commodities whatsoever are freed from Impositions The words are The King promised in the presence of his Earles Barons and others of his Parliament no more to charge set or assesse upon the Custome but in manner aforesaid Except these words doe extend to Lead and Tyn to free them from Impositions for times to come as well as woolls wooll-fells and Leather are freed by the former speciall words their Petition touching Tyn and Lead is no way answered And if they doe extend to Tyn and Lead by reason of the generalty of the words they doe by the same reason extend to all commodities For what more liberall words can there be than these That the King will not charge set or assesse upon the custome these words the custome being words indefinite are you know equivalent to an Universall according to the rule Indefinitum aequipollet universali And although the King doe but promise yet I doubt not but in this case his promise is a Law And it is worth the observing that the Lords doe in very extraordinary and unusuall manner solemnly undertake as much as in them lyeth that they shall procure the King to hold the same and that they shall in no wise assent to the contrary if it be not by the assent of the Prelates Earles Barons and Commons and that in full Parliament and for the greater surety and to give cause to eschew all counsell to the contrary of this Ordinance the Prelates have promised to give sentence upon them that counsell against the same in any point which are the very words of the Statute in print The Statute of 14 Ed. 3. cap. 21. was yeilded unto by the King 13. Ed. 4. no. 5. Ro. Par. upon a Petition exhibited the Parliament before both by the Lords and the Commons praying that a Law might be made against Impositions as may appeare by the Records of the 13 yeere of Ed. 3. at which time they likewise prayed that the King would be pleased to grant them a Charter to the same effect to be inrolled in Parliament The Statute you have heard the Charter followeth in our printed bookes immediately after the Statute where the King in the preamble thereof reciting the great gift that he had given him at the same Parliament that is to say the 9th Fleece 9th Sheep 9th Lamb throughout the Kingdom which indeed was a very extraordinary great guift and therefore his grant in regard thereof is to be intended so much more beneficially doth in lieu thereof for him and his heires grant to his Subjects in these words From henceforth they shall not be charged nor grieved to make any ayde or to susteine charge if it be not by the Common assent of the Prelates Earles Barons and other great men and the Commons of our said realme of England and that in Parliament It hath been objected that these words Aide and Charge are to be understood of Charges within the Land such as are Taxes and Tallages An Objection that the stat of 14 Ed. 3. An. 21 extendeth only to Impositions within the land and not to Imposition upon Merchandizes is answered and not of Impositions upon Merchandizes And this is the only Objection made or indeed can be made against this Statute For the cleering of which I can say no more then already I have proved by matter of Record for the opening of the sense of this Statute viz. That this Charter and the last Statute were made upon a Petition exhibited in Parliament for a law and Charter to be made against Impositions upon Merchandizes And therefore that conjecture of theirs that it should extend only to Taxes and not to Impositions cannot but fall to the ground especially since there is not in the Petition any mention at all of Taxes or Tallages or of any other charge or aide but impositions onely then which there cannot allmost be a cleerer proof then that this Law being made upon this Petition is to be expounded against Impositions which if this Petition had not been extant would with no lesse cleernesse have been proved by considering the mischiefe at the time of the making of this law which was not Tallage or Taxes but those heavie Impositions of Foure pound and five pound upon a sack of Wooll by way of dispensation with the Statute of 11. E. 3. cap. 1. of which I have formerly made mention So as this Statute being made in the first intention against dispensations for money with a penall law though the occasion were particular yet the words being generall I hold that with reason it may be extended against all dispensations with penall lawes for money in particular I hold that the raising of money by dispensations with the Statutes
sentit se gravatam de vectigali Lana enim Angliae fere extendit ad medietatem valoris terrae vectigal ad quintam partem terrae The Custome of Wools as you perceive was in those dayes esteemed to bee the fift part of the value of the whol land it followeth in him that upon complaint the Subject at last obteined the Statute I now speake of the words of which are No Tallage or Ayde shall bee raysed or set by Vs or our Heires in Our Realm without the assent and good will of Arch-bishops Earles Barons Knights Burgesses and other Freemen of the Land after these generall words by way of provision against all manner of burthens whatsoever to bee laid in time to come without assent of Parliament followeth in the next branch save one especiall provision for the taking away of the imposition then in demand upon Wools which latter clause as it doth cleerely shew the cause of their present griefe to bee the same which our Chronicles say it was so doth it likewise make it evident what it was which they sought to be secured of for the times to come neither are the words themselves so obscure by reason of the generalty of them but that they also without knowing the occasion of the making of the law doe directly point at Impositions for though indeede the word Tallage be as I conceive to bee understood only of charges within the Land Tallage yet the word Ayde extendeth to all charges of what nature soever Aydes nay that even Impositions themselves have beene called Aydes or Subsidies which is all one is evident by almost all the Records of the Exchequor here amongst us especially by those of Ed. 3. time in which wheresoever you finde any mention made by the King in his Commissions of an imposition raised by him hee ever calls it Subsidium or Auxilium Subsidies So likewise in the printed Statute of 36 Ed. 3. cap. 11. you shall finde that the Imposition by grant of Merchants there mentioned is called a Subsidie or Ayde This exposition of the word Ayde concurring with the occasion of the making of the Statute doth in my opinion strongly enforce this Statute against Impositions and 't is to bee observed that in this Stat. there is no saving or exception of the kings antient Right which as our Chronicles say was a point principally insisted upon at the making of this Law earnestly pressed by the Subject to bee without that clause and for a long while stood upon by the king but at last yeelded unto in such sort as you have heard The next Statute against Impositions is 25 Ed. 1. cap. 7. The third Statute against Impositions 25 Ed. 1. cap. 7. cleered from objections the words are Forasmuch as the more part of the Cominalty hath found themselves sore agrieved with the Male-tolt of Wools viz. a toll of 40s for every sack of Wool and have made petition to bee released of the same Wee at their requests have cleerely released it and have granted for Vs and our Heires that Wee shall take no such things without their common assent and good will saving to Vs and our Heires the custome of Wools Skins and Leather granted before by the Cominalty aforesaid I might in enforcing this Statute rely upon a rule of Law for the exposition of Statutes of this nature Omnis Impositio est odiosa ideo stricta contra Impositiones large ad favorem gravatorum interpretanda est lex contra Impositiones data but there shall not need any such favorable construction for the words are in themselves very cleere The Law consisteth of three parts the first is the kings grant of a petition made by the Commons for the releasing of an Imposition of 40s upon a sack of Wool then in demand when the present grief was ended the next care was to prevent the like mischiefe in all times to come It therfore folowes And Wee have granted for Vs and Our Heires that Wee shall take no such thing without their common assent which is the second part of the law The saving in the end is the third part Against this generall provision two objections have beene made The first objection that this Statute is only against the excesse of the Impositions then laid and not against the right of Imposing answered First that the words No such things are to be understood only of the burthensomnesse and excesse of Impositions and not otherwise No such things that is say they No such grievous Impositions as this present Imposition is It had beene a poore security for times to come to have left it to interpretation whether or no Impositions which might happen to be laid in after ages be as grievous as the Imposition complained of in this time by comparing one with the other 't is so uncertain a computation as no man when hee thinks throughly of it can imagine that men worthy to sit at the making of Laws should suffer such a thing to passe them Who can certainly say whether our Impositions bee more or lesse grievous then the rate of 40s upon a sack of Wool Beside how easily had this Lawe beene to have beene deluded by abating only 12d or but 1d in the next Imposition for if it be but a penny lesse it is No such Imposition for the burden Therefore it must needes bee expounded of the quality and very nature of the thing complained of 26 Ed. 1. Interbrevia retâ—rn de Term. Mich. in Scac. in offic Rem Thesaurar ibidem and not of the quantity No such thing that is No such thing as this is that is to say an Imposition But that which will cleere this objection is a Proclamation made the very next yeer after the making of this Act in which the king reciting this Act in stead of these words Wee will take No such thing useth these words Nullam aliam Custumam sine communi consensu Capiemus not only No such but no other By which you may see that the words were then interpreted in that sence in which I doe now interpret them But admitting say they The second objection that is only against Impositions upon Wool answered that it bee so to bee expounded that the king will lay No other Imposition without assent in Parliament that is to be uuderstood say they No other Imposition upon Wools and not otherwise which is their second objection It were a very strict construction for a Statute of so beneficiall an intent as this is so to restraine it if there were no other words in the Statute that did inlarge the exposition But by the words following it is most evident that the scope of this Law is more liberall then so and that the kings intent was for ever to secure his Subjects against all charges of this nature I meane Impositions not upon Wools only but upon any other Merchandize whatsoever which I collect from laying all the parts of the