such charge should ever be laid upon the people without their common consents as may appear by sundry Records of former times We therefore your Majesties most humble Commons assembled in Parliament following the example of this worthy care of our Ancestors and out of our duty to those for whom we serve finding that your Majesty without advice and consent of your Lords and Commons hath lately in time of peace set both greater Impositions and far more in number then any your noble Ancestors did ever in time of War do with all humility present this most just and necessary Petition unto your Majesty That all Impositions set without assent of Parliament may be quite abolished and taken away And that your Majesty likewise in imitation of your royal Progenitors will be pleased that a Law in your time and during this Session of Parliament may be also made to declare that all Impositions of any kinde set or to be set upon your people their Goods or Merchandizes save onely by common consent in Parliament are and shall be void Wherein your Majesty shall not onely give your Subjects great satisfaction in point of their Right but also bring exceeding joy and comfort to them who now suffer partly through the abating of the price of native Commondities and partly through the raising of all foreign to the overthrow of Merchants and Shipping the causing a general dearth and decay of all wealth among your people who will be thereby no less discourage then disabled to supply your Majesty when occasion shall require FINIS Books Printed or sold by William Leak at the sign of the Crown in Fleetstreet between the two Temple gates YOrks Heraldry Fol. A Bible of a very fair large Roman Letter 4. Orlando Furioso fol. Perkins on the Laws of England Wilkinsons Office of Sheriffs Parsons Law Mirror of Justice Topicks in the Laws of England Dellamans use of the Horizontal Quadrant Wilbeys second Set of Musick 3 4 5 and 6 parts Corderius in English Dr. Fulks Meteors with Observations Malthus Fire-works Nyes Gunnery and Fire-works Cato Major with Annotations Mel Heliconium by Alexander Ross Nosce te ipsum by Sir John Davis Animadversions on Lillys Grammer The History of Vienna and Paris The History of Lazarillo de Tormes the witty Spaniard Hero and Leander by George Chapman and Christopher Marlow The Posing of the Accidence Guilliams Heraldry fol. Herberts Travels fol. Man become guilty by John Francis Senalt and Englished by Henry Earl of Monmouth Aula Lucis or the house of light Christs Passion A Tragedy written by the most learned Hugo Grotius and Englished by Geo Sand. Mathematical Recreations with the general Horological Ringe and the double Horizontal Dyal by William Oughtre The Garden of Eden or an accurate description of Flowers and Fruit by Sir Hugh Plat. Solitary Devotions with man in glory by the most reverend and holy Father Anselm Arch-Bishop of Canterbury Book of Martyrs fol. Adams on Peter fol. Willet on Genesis and Exodus fol. Elton on the Colossians fol. The several opinions of sundry learned Antiquaries viz. Mr. Justice Doddridge Mr. Ager Francis Tate William Cambden and Joseph Holland touching the Antiquity Power Order State Manner persons and Proceedings of the high Court of Parliament in England The Idiot in four Book Exercitatio Scholastica The Life and Reign of Hen. 8. by the Lord Herbert France painted to the life the second Edition 8. Sken de signification verborum 4. The Fort Royal of Holy Scripture by J. H. the third Edition 8. Callis learned Readings on the Stat. 21. Hen. 8. chap. 5. of Shewers PLAYES Philaster The wedding The Holleder The Merchant of Venice The strange discovery Mails Tragedy King and no King Othello the Moor of Venice The grateful Servant FINIS
THE RIGHTS Of the People of England Concerning IMPOSITIONS Stated in a Learned Argument by Sir Henry Yelverton Knight and Baronet late one of the Justices of the Court of Common-pleas With a Remonstrance presented to the Kings most excellent Majesty by the Honorable House of Commons in the Parliament An. Dom. 1610. Annoque Regis Jac. 7. London Printed for William Leake and John Leake at the Crown in Fleetstreet betwixt the two Temple-Gates 1679. TO THE Courteous READER THis excellent Treatise of the no less worthy Author happily falling into my hands I instantly thought it my duty to make that publick which had given so much useful satisfaction to many learned and judicious in private remembring that antient Adage Bonum quò communius eò praestantius I hope it is needless to commend either the Reverend Author deceased the Treatise its use or stile since the Authority by which it is published is a sufficient argument of their known worth If thou kindly accept of his good meaning whose onely aim in the publishing hereof was the Common good it will be an encouragement to him and others to present to thy view what may hereafter fall into his hands worthy thy further perusal Thine J. B. 20. Maii. 1641. AT a Committee appointed by the Honourable House of Commons for examination of Books and of the licencing and suppressing of them c. It is Ordered That this Treatise be published in Print Sir Edward Deering Kt. and Baronet ☞ There is lately come forth An exact Abridgment of the Records in the Tower of London from the reign of King Edward the Second unto Richard the Third of all the Parliaments holden in each Kings reign and the several Acts in every Parliament together with the Names and Titles of all the Dukes Marquesses Earls Viscounts and Barons summoned to every of the said Parliaments Collected by Sir Robert Cotton Knight and Baronet And are to be sold by William Leak at the Crown in Fleetstreet betwixt the two Temple gates A Remonstrance delivered to His Majesty in writing after the inhibition given by Him to the Commons House of Parliament aswell by word of mouth as by Letters not to proceed in the examining his Right to Impose without assent of Parliament To the Kings most excellent Majesty Most gracious Sovereign WHereas we your Majesties most humble Subjects the Commons assembled in Parliament have received first by message and since by speech from your Majesty a command of restraint from debating in Parliament your Majesties right of Imposing upon your Subjects goods exported or imported out of or into this Realm yet allowing us to examine the grievance of these Impositions in regard of quantity time and other circumstances of disproportion thereto incident We your said humble Subjects nothing doubting but that your Majesty had no intent by that command to infringe the antient and fundamental right of the Liberty of Parliament in point of exact discussing of all matters concerning them and their possessions goods and rights whatsoever which yet we cannot but conceive to be done in effect by this command do with all humble duty make this Remonstrance unto your Majesty First We hold it an antient general and undoubted right of Parliament to debate freely all matters which do properly concern the Subject and his right or estate which freedom of debate being once fore-closed the essence of the liberty of Parliament is withthal dissolved And whereas in this case the Subjects right on the one side and your Majesties Prerogatives on the other cannot possibly be severed in debate of either We alledge that your Majesties Prerogatives of that kinde concerning directly the Subjects right and interest are daily handled and discussed in all Courts at Westminster and have been ever freely debated upon all fit occasions both in this and all other former Parliaments without restraint which being forbidden it is impossible for the Subject either to know or to maintain his Right and Propriety to his own Lands and Goods though never so just and manifest It may further please your most excellent Majefty to understand that we have no minde to impugn but a desire to inform our selves of your Highness Prerogative in that point which if ever is now most necessary to be known and though it were to no other purpose yet to satisfie the generality of your Majesties Subjects who finding themselves much grieved by these new Impositions do languish in much sorrow and discomfort These Reasons Dread Sovereign being the proper Reasons of Parliament do plead for the upholding of this our antient Right and Liberty Howbeit seeing it hath pleased your Majesty to insist upon that Judgment in the Exchequer as being direction sufficient for us without further examination Upon great desire of leaving your Majesty unsatisfied in no one point of one of our intents and proceedings We profess touching that Judgement that we neither do nor will take upon us to reverse it but our desire is to know the Reasons whereupon the same was grounded and the rather for that a general conceit is had That the Reasons of that Judgement may be extended much further even to the utter ruine of the antient liberty of this Kingdom and of your Subjects Right of propriety to their Goods and Lands Then for the Judgment it self being the first and last that ever was given in that kind for ought appearing unto us and being onely in one Case and against one man it can binde in law no other but that person and is also reversible by Writ of error granted heretofore by Act of Parliament and neither he nor any other Subject is debarred by it from trying his Right in the same or like cafe in any of your Majesties Courts of Record at Westminster Lastly We nothing doubt but our intended proceeding in a full examination of the right nature and measure of these new Impositions if this restraint had not come between should have been so orderly and so moderately carried and imployed to the manifold necessities of these times and given your Majesty so true a view of the state and right of your Subjects that it would have been much to your Majesties content and satisfaction which we most desire and removed all causes of fears and jealousies from the loyal hearts of your Subjects which is as it ought to be our careful endeavour Whereas contrariwise in that other way directed by your Majesty we cannot safely proceed without concluding for ever the right of the Subject which without due examination thereof we may not do We therefore your loyal and dutiful Commons not swerving from the approved steps of our Ancestors most humbly and instantly beseech your gracious Majesty that without offence to the same we may according to the undoubted Right and Liberty of Parliament proceed in our intended course of a full examination of these Impositions That so we may chearfully pass on to your Majesties business from which this stop hath by diversion
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
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
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
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
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
and so of right lastly he promâ—seth he would visit and comfort them beneficiis compensativis would give them recompence for those summes he had so raised of them which sheweth that he claimed them not as due for then he needed not give recompence for them In the one and twentieth yeere of E. 3. a petition was exhibited in Parliament Rot. Parl 21. E. 3. n. 16. that Levies be not made by Commission so they be in this case nor other things laid upon the people unless they be granted in Parliament The Kings answer is If any such impositions were made it was by great necessity and with assent of the Prelates Barons and some of the Commons present yet he will not that such Impositions not duly made be drawne in consequente Here the King acknowledgeth an Imposition not to be duly made though with the consent of the Higher House and some of the Commons because it was not in full Parliament much rather he would have thought so if it had been by the King a lone King E. 4. that was a rough and warlike Prince and was more beholding to his sword in the recovery of his right to the Crowne then to the affection of the people at a Parliament held the seventh yeere of his reigne made a Speech to the Commons Sir John Say being then Speaker in which Speech is contained very notable matter and very pertinent to our purpose and because the Record is not in print I will set downe the Kings Speech verbatim as it is entred upon the Parliament roll Rot. parl 7. E. 4. The Record begins Memorandum quod die veneris 3. die Parl. and then I will make a paraphrase upon it Iohn Say and ye Sirs come to this my Court of Parliament for the Commons of this my Realme The cause why I have cald and summoned this my present Parliament is that I purpose to live upon mine own and not to charge my subjects but in great and urgent causes concerning more the VVeale of themselves and also the defence of them and of this my Realme rather than mine owne pleasure as heretofore by Commons of this Land hath beene done and borne unto my progenitors in time of need wherein I trust that yee Sirs and all the Commons of this my Land will be as tender and kinde unto me in such cases as heretofore any Commons have been to any of my progenitours And for the good will kindness and true hearts that yee have borne continued and shewed to me at all times heretofore I thanke you as heartily as I can also I trust yee will continue in time coming for which by the grace of God I shall be to you as good and gracious a King and reigne as righteously upon you as ever did any of my progenitors upon Commons of this my Realme in dayes past and shall also in time of need apply my person for the VVeale and defence of you and of this my Realme not sparing my body nor life for any jeopardy that might happen to the same Out of this we may observe first the Kings Protestation to live of his owne and not to charge his subjects by which I gather he did acknowledge a certain and distinct property of that which way his subjects from that which was his own which excludeth the right to impose at his will for if that be admitted the subjects property is proprietas precariâ—â— not certaine how much of his is his owne for that is his which the King will leave him for there is no limit or restraint of the quantity the right being admitted but onely the Kings will The second thing I observe is this that in charging of his subjects he would confine himselfe between these two bounds the one it should bee in great and urgent causes concerning more the Weale of them and the defence of them and his Realme than his owne pleasure wherein he condemneth those occasions that grew upon excesse of private expence by over great bounty or otherwise and admitteth onely such as grow by reason of warres or other such like publique causes concerning the whole State the other bound or limit is that those burdens should be secundum morem majorum as heretofore had been done and borne by the Commons to his ancestours in time of need The third thing I observe is that he acknowledged these burdens did proceed out of their good will and kindness and not out of his right and prerogative out of these words that he trusted they would bee as tender and kinde to him in such cases as heretofore any Commons had been to his Progenitors And lastly wee may note the recompence promised by the King to his subjects for their good wills and kindness his goodness and grace his just and righteous government the jeopardy of his body and life for their Weale and defence Did this King assume to himselfe a right to lay burdens on his subjects at his own will without their assents that offered to buy them at his need with the price of his blood the most sacred relique in the kingdome My fourth observation is that in all petitions exhibited by the Commons in Parliament against Impositions the very knot of their griefe and the principal cause of their complaint hath been expressed in those petitions that the impositions have been without assent of Parliament by which is necessarily inferred that their griefe was in point of right not of burden In 11. Rot. parl 21. E. 3 nu 11. E 3. nu 11 the complaint of the Imposition of two shillings upon a sacke of Wooll two shillings upon a Tonne of Wine six pence upon aver de pois the cause of grievance expressed because it was done Sans assent de Commons 25 E. 3. n. 22. R. Parl. 25 E. 3. n. 22. In a petition the Commons complaine that an imposition upon Wools was set by the consent of the merchants they pray that Commissions bee not made upon such singular grants if they be not in full Parliament and if any such grants be made they may he held as void 17 E 3. n. 28. The Commons in their petition informe the King R. Parl. 17. E. 3. n. 28 it is against reason they should be charged with impositions set on by assent of Merchants and not in Parliament My fifth observation is that whensoever any petition was exhibited against impositions there was never any respect had of the quantity but they were ever intirely abated as well where they were small as where they were great no request ever made to make them less when they were great nor excuse made of their ease when they were exceeding small which sheweth that it was not the point of burden or excesse was respected in their complaint but the point of meere right 25 E. 3. nu 22. Fourty shilling set an imposition upon a sacke of Wooll R. Parl. 25. E. 3. nu 22. upon complaint all taken off and no fuit
to be eased of part because it was too great 36. E. 3. nu 26. Three shillings and four pence upon a sacke of VVool ibid. 38. E. 3 n. 26 21. E. 3. n. 11. all taken off and no excuse made for the smalness for 21 E 3. nu 11 two shillings a sacke two shillings tonnage and six pence poundage 50 E. 3. nu 163. R. Parl. 25. E. 3. nu 163. A great complaint was made in Parliament by the Commons that an imposition of a penny was set upon wools for Tonage over and above the ancient due which was but a penny and so the subject was charged with two pence Also that a penny was exacted for Mesonage which was but an halfe penny which Impositions the Record doth express did amount to an hundred pounds a yeere This petty imposition was as much stood upon in point of right as the other great one of fourty shillings and was taken off upon complaint in Parliament without either justification or excuse for the smalness of it My sixth observation is that those which have advised the setting on of impositions without assent of Parliament have been accused in Parliament forgiving that advice as of a great offence in the State and have suffered sharpe censure and great disgrace by it Neither doe I finde that the quality of the person hath extenuated the blame as 50. E. 3 William L. Latimer Chamberlaine to the King and one of his private Councell was accused by the Commons in Parliament of divers deceits and extortions and misdeeds and among other things that he had procured to be set upon Wooll Wooll-fells and other Merchandizes new Impositions to wit upon a sack of Wool eleven shillings which the L. Latimer sought to excuse because he had the consent and good liking of the Merchants first But judgment was given against him that he should be committed to prison be fined and ransomed at the Kings will and be put from being of the Council and this procuring of Impositions to be set on without assent of Parliament is expresly set down in the entry of the judgment for one of the causes of his censure Richard Lyons a Farmer of the Customs in London the same year was accused in Parliament for the same offence Rot. Par. 50. E. 3. n. 17 18.19 20. he pleaded he did it by the Kings command and had answered the money to the Kings Chamber Yet was condemned and adjudged in Parliament to be committed to Prison and all his Lands and Goods were seised into the Kings hand and at the last the hate against these authors of Impositions grew so that 50. E. 3. in the same Parliament an petition was exhibited in Parliament to make this a capital offence The Record is very short and therefore I will set it down verbatim Item prie le dit Common que soit ordaine per Statute en cest present Parliament de touts ceux queux â—y en avant mittont ou font pur lour singuler profit novels Impositions per lour authoritie dâ—mesâ—n accrocheants al eux â—ny ul power de rien que soit establi en Parliament sans assent de Parliament que ils eyent judgement de viâ— member de forisfacture To this rough Petition the King gave a milde and temperate Answer Courre la Common ley come estoit al avant use My seventh Observation is the cessation between 50. E. 3. after this censure in Parliament and 4. Mariae almost two hundred years during which time no King did attempt to impose without assent of Parliament And yet we finde in the Parliament Rolls that there was not one of those Kings that reigned in that time but had Impositions granted him upon fit occasion by Act of Parliament upon all Goods and Merchandizes and at divers times during their reigns sometimes more sometimes less upon the Ton and pound but ever for a time certain and indefinite so the use of them was not given over but the power of imposing was so clearly and undoubtedly held to be in the Parliament as no King went about to practice the contrary But to this cessation that was of great weight and credit in our evidence a colour was given by the other side to avert the inference made upon it against the Kings right that is that during that time there was so great a Revenue grew to the Crown by double Custom paid for all Merchandizes both in England and at Callis by reason of an Act of Parliament made 8. H 4. which was that no goods should be carried out of the Realm but to Callis and by reason that the Merchants paid Custom both there and here for the same goods that in the seven and twentieth year of Henry the sixth the Custom of Callis was 68000. pounds the year a great sum if you consider the weight of money then what price it bare and by reason hereof Princes not delighting to charge their murmuring Subjects but when need is being so amply supplied otherwise did not put that Prerogative in practice To this I Answer That if that were true that was urged it might be some probable colour of the forbearance of imposing but I finde it quite contrary and that by Record For there was no such restraint of all Commodities not to be transported to any place but Gallis but onely Woolls Wool-fells Leather Tinn and Lead that were staple Wares which by the Statute 37 E. 3. were to be transported thither and not to any other place and the staple continued at that place for the most part from that time untill long after 27. H. 6. but there was no double Custom paid both here and there by the same owner Callais at those times were so far short of that which hath been alledged in 27. H. 6. that it appeareth in an Act of Parliament 27. H. 6. cap. 2 printed in the book at large 27. H. 6. cap. 2. That the Commons do complain That whereas in the time of E. 3. the Custom of Callais was 68000 pounds per annum at that time which was 27. H. 6. by reason of the ill usage of Merchants it was fallen to be but 12000 pounds the year so then there was great cause in that respect to have set on Impositions by reason of that great abatement of Customs and yet it was not then offered to be done without assent of Parliament But if you look a little further into the extreme necessities of those times you shall finde there never was greater cause to have strained Prerogatives for it appeareth in an Act of Parliament 28. H. 6. that it was then declared in Parliament by the Chancellor and Treasurer who demanded relief of the people for the King both for payment of his debts and for his yearly livelioood that the King was then indebted 372000. pounds which now by the weight of money amounteth to above 1100000. pounds and that his ordinary expences were more then his yearly revenue by 19000. pounds