matter in question and therefore I will set it downe as I finde it Verbatiâ—n in the record in the tower Ensement novelles customes sont levies ancients enhaunces come sur levies drapes vine aver du pcis aut choses purguoy les Merchants veynont pluis vilement meynes de bien menynont en la terre les Merchants estrangers de murront pluis longment que ils soloyent faier pur le quel demoure les choses sont le pluis enhaunces que ils ne Soloyent estre al dammage de roy de son people Nouâ— ordonomus que touts manners de male tolls levies puies de Coronement de Roy Ed. faier de Roy Henry 〈◊〉 â—â—â—irement oustes de tout estreints pur touts jours nient â—â—â—iristeant le Chartre que le dict Roy Ed. fist as Merchants aliens pur ceo que il fuit fait contra le grand Char. encountre 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 leving of new coustomes and by the raising of old traffique was destroyed and all things made deare And therefore all new impositions and customes were dscharged Chartâ mercatoriâ by which custome 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 which this clause Saving to the King his custome of wooll woll-fells and Lether Si aver les do et Great warres 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 Realme being then in tumult and mutiny about the quarrell of Peirce of Gaveston so never had the Kings free consent but he gave way unto it for feare of greater mischiefe Secondly that in it selfe it is unjust as in taking away the custome granted to the King by Charta mercatoria 31. E. 1. and in making doubt whether the King should have the custome of wools c. by those words Saving it to him Si aner les do et The third objection is that if it were a Law it is repealed To these I give particular answers To the first that this statute was made both at the instance of the King and people with a purpose and intention on all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 Common-wealth the King and his nobles standing in good termes when this businesse was taken in hand and it was begun and ended with great solemnity and ceremony for the King in the third yeare of his reigne gave Commission under his great Seale to 32. Lords spirituall and temporall Com. 16. Mâ—r. 3. E. 2. Rot. ordin 5. E. 2. of which there were eleven Bishops eight Earles and thirteene Barons they being as Committees of the higher House to devise ordinances for the good government of of his house and his Realme In which Commission he doth for the honour of God the good of him and of his Realme of his freewill graunt to the Prelates Earles and Barons and others elected by the whole Kingdome full power to ordaine the State of his house and Realme by such ordinances as by them should bee made to the honour of God the honour and profit of holy Church the honour of himselfe the profit of him and his people according to right and reason and the oath hee 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 businesse did make this and other ordinances which were so well liked of by the King that after they were made hee took an oath to observe them Pullic 3. Kal. Oct. 5. E. 2. Rot ordin Pâ—t 5. Oct. 5. E. 2. Rot. ordin 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 And by his Letters Patents dated 5. Oct. 5. regni sui did send them through the Realme 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 Lawes given unto them in the Parliament in the fifth yeere of his raign The second obiection which is the injustnesse of the law instanced in two points the taking away of Charta mercatoria and the doubting of the Kings right to the custome of wolls woll-fells and Lether c. To the first of these I deny it to be unjust but to be according to the law of England and liberty of the Kingdome for that Charter did containe in it divers grants of things which were not in the power of the King to grant without assent of Parliament as the triall 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 yeers 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 be made in the statute of the Kings right to the custome of wooll wooll-fells and Lether I take it there is no such doubt made For the words Saving the kings right to the custome of woolls si aver les do et have this construction that is at such times as hee ought to have it so the word si hath 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 lawfull 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 exception to the lawfullnesse of it The third objection is That this Statute is repealed To this I plead Nullum vale recordum If it be repealed it must be by Act of Parliament for unumquodque dissoluitur iâ—sdem modis quibus est colligatum I and others have searched the Records of the Realme and endeavoured by all means to informe our selves of the truth herein and we can finde no Act of Parliament of repeale The truth is some Kings finding these Lawes not to sort to their wills and humours have endevoured to suppresse them but they didnever yet obtaine a repeale of them by Act of Parliament But it is further urged That although there were no formall repeale 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 it And for instance hereof a Record was vouched that E. 2. held himselfe so little bound by it as that in the 11 yeare of his raigne he set an imposition without assent of Parliament upon Wooll Wooll-fels Leather Wines Cloth averde pois and divers other kinde 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 wee looke into the whole Record and skanne this action of E. 2. from the beginning of it unto the end we shall finde it a very good instance to prove the practise 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 11 yeare of his raigne did borrow of the Merchants a certaine summe of money above the due custome of Wooll Wooll-fels Wine averdepois Leather and such other goods imported and exported But it appeareth by the Record hee tooke it but for one yeare hee tooke it by the advise and counsell of the Merchants and he took it per viam mutui as a loane The direction of the Writ is Rot. claus 11. E 2. Collectoribus mutui nobis per mercatores alienigenas indigenas de certis rebus Merchandisis usque ad certum tempus faciendi This was done in good tearmes he did not claime it as his right but did borrow it which I doe thinke is a good evidence against his right But what became of this the State would not abide it for all these faire shewes And therefore afterwards the King sendeth out other Writs by which he dischargeth all merchandizes of this loan saving onely Wooll Wooll-fels and Leather and for the loane taken upon those commodities it was limitted to continue but untill Michaelmas after and good security was given to the Merchants by the Customers to pay themselves by way of defalcation out of the Customes which should be due after Michaelmas those summes which were so borrowed of them The words of the Record are worth the observing Rot. finium 11. E. 2. Cum pro expeditione guerrae Scotiae alijs arduis urgentibus necessitatibus nobis multipliciter incumbentibus pro quarum exoneratione quasi infinitam pecuniam refundere oportebit pecunia plurimum indigeamus in presenti nuper pro eo quod exitus regni terrarum nostrarum simul cumpecunia nobis in subventione praemissorum tam per Clerum quam Communitatem regni nostri concessa ad sumptus praedictos cum festinatione 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 loane set on Wines averdepois and such other commodities besides Wooll Wooll-fels 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 fift Statute alledged on the behalfe of the subject is that 14. 14 E. 3. Stat. 1. ca. 21. E. 3. Stat. 1. ca. 21. by which the Commons pray the King to take no more then th' old custome of the halfe marke The King prayeth aide of the Commons for a time above the custome upon his necessity of warres 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 Wools Wooll-fels Leather but the old Custome and doth promise to charge set or assesse upon the Custome but in manner as aforesaid The sixth Statute is 14. E. 3. Stat. 2. ca. 1. 14 E. 3. stat 2. ca. 1. The King doth grant by way of Charter to the Prelates Earles Barons Commons Citizens Burgesses and Merchants that they be not from thenceforth charged nor grieved to make any aide or sustaine charge if it be not by the common consent of the Prelates Earles Barons and other great men and Commons of the Realme and that in Parliament These two Statutes grew upon occasion of an Imposition set on Wooll by the King without assent of Parliament Little hath beene objected against them but onely 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 but the old custome 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 Wools for a time above the old Custome but the Record of the Petitions exhibited in Parliament upon which these two Lawes are made cleareth the objection The first was delivered by the Lords in this forme Rot. paâ—l 13. E. 3. num 5. Les grands volunt that the maletoll set on Wools newly be altogether abated and that the old custome beheld and that they may have this in point of Charter and by inrollment in Parliament This word volunt had beene too high for a suit of grace and therefore must be intended of right The Commons Petition in forme is somewhat humble but in effect and purpose is rough and sterne Rot. parl 13. E. 3. nu 13. the words are these The Commons pray that the maletoll of Wools be taken as it was used in ancient time which is now enhaunced without the assent of the Commons and grandes 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 Lawes is by inrolment in Parliament the second is in forme of a Charter the first doth expresse some special commodities the second doth reach generally at all The seventh Law directly touching this point 14. E. 3. sâ—at 2. ca. 2. is that 14. E. 3. stat 2. ca. 2. The King doth grant according to the great Charter that all Merchants denizons and forrainers may without let safely come into the Realme of England with their goods and Merchandizes and safely tarry and safely returne paying the Subsidies customes and other profits reasonably due Upon the words of this Law was great advantage taken in this that besides custome and Subsidy which comprehend all the certaine ordinary duties the King hath upon the wares goods of Merchants there are other profits spoken of to be due
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. Rot. part 38. E. 3. n. 36. the Imposition of Wools taken off and a Law made against it and the King undertooke for him and his successors to doe so no more 38. E. 3.26 38. E. 3. cap. 2.45 E. 3. cap. 4.17 E. 3. cap. 10 11. R. 18. E. 3. cap. 3. st 1.21 E. 3. n. 11. R. Parl. the Impostion of three shillings foure pence on a sacke of Wooll put off upon complaint and a Law made against it 38. E. 3. ca. 2. the like Statute 45. E. 3. c. 4. upon a complaint of an Imposition on Wools made in Parliament 45. E. 3. n. 42. Rot. Parl. Instances of the second 21. E. 3. nu 11. a petition upon an Imposition of 2. s. upon a sacke of wooll 2. s. upon a tunne of wine and six pence upon aver de pois all discharged presently saving the two shillings upon a sacke of wooll and for that intreated that it might stay till Easter following and so it did and was then taken away 25. E. 3. n. 22. rot parl Instance of the third 25. E. 3. nu 22. the Commons made petition against an imposition of fourty shillings upon a sacke of wooll granted to the King by the merchants shewing that they ought not to be bound by their act The King did not claime right or justifie 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 not take it of Denizons against their will The words of the Record expresse it very fully Cum mercatores extranei alienigenae pro quibusdam libertatibus eis per nos concessis prisis nostris quibuscunqueremissis nobis de bonis merchandisis suis quibuscunque infra regnum potestatem nostram adducend ultra antiquas custumas dare concesserint praestationes custumas subscriptas viz. and so fetteth downe 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 praestationes 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 nullatenus distringatis Surely if E. 1. had claimed the prerogative of imposing hee would never have given these cautions in the requiring of that which hee 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. Ret. Alem. 12. E. 3. dorne 22. in turr wee finde the Record of certaine letters written from the King being then at Barwick in the Scottish warres unto the Archbishop of Canterburie in which letters the King seemeth to have a great confidence in the devotion of the Archbishop and therefore earnestly intreateth him to further his enterprises with his prayers to God and then addeth further Ad hoc pater cum populus regni nostri variis oneribus tallagiis impositionibus hactenus praegravetur quod dolenter referimus sed inevitabili necessitate compulsi de eisdem oneribus ipsum adhuc relevare non valemus dictum populum ut tantam necessitatem nostram humiliter benigne patiatur canitative sustineat priorem quam penes nos concepit de cetero instanter in orationibus eleemosynis suis oneribus praedictis quae non ex malitia vel presumptione voluntaria ipsum gravant non obstantibus exhibeant caritatem indulgentiam muncribus aliis modis quibus secundum Deum videbitis piis exhortationibus inducatis nos penes eundem excusitis speramus namquesper Dei gratiam cujus manus cunctis indigentibus sola sufficiens largiflua comprobatur beneficiis compensatius dictum populum visitare consolari pro loco temporeopportunis 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 himselfe of the burthens by him laid on the people and to avoid the blemish of wrong and injustice in laying thereon saith they were not onera ex presumptione voluntaria that is burthens that he presumed to lay on at his owne will whereby hee condemneth impositions without assent of Parliament which are onera ex voluntate Regis to proceed of presumption which doth clearly exclude claime of right and disproveth the lawfulnesse 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 Hee saith further Dolentes referimus shewing his griefe and remorse at it inevitabili necessitate compulsi hee did it constrained by unavoidable necessity shewing hee was forced to it against his will by that which violateth and breaketh all law which inferreth hee would not maintaine his action by law Adhuc relevare non valemus this insinuates hee would ease them in good time caritatem exhiberent they should afford him charity in the bearing of them as if so bee in point of justice or right they need not Penes cundem excusetis the Bishop should excuse him to the people By this he did clearly leave the point of justification and so of right lastly hee promiseth hee would visite and comfort them beneficâ—s compensativis would give them recompence for those summes he had so raised of them which shewed that hee claimed them not as due for then hee needed not give recompence for them In the one and twentieth yeere of E. Rot. Parl. 21. E 3. n. 16. 3. a petition was exhibited in Parliament that Levies be not made by Commission so they bee in this case nor other things laid
E. 4. cap. 1. 19. H. 7. cap. 21. The same thing enacted upon the like occasion 4. E. 4. c. 1.19 H. 7. c. 21. the importation of divers commodities forbidden as being prejudiciall to the manufactures within the Realme 6. H. 8 cap 12. 6. H. 8. cap. 12. The exportation of Norfolk woolls out of the Realme forbidden 26. H. 8. cap. 10. 26. H. 8. ca. 10. Power is given to the King to order and dispose of the traffique of merchants at his pleasure and the reason is given because otherwise the leagues and amities with forreigne Princes might bee impeached by reason of restraint made by divers statutes then standing on foote whereby it appeareth that it was not then taken to bee law that the King had an absolute power in himselfe to order and dispose of the course of traffique without helpe of a statute 2. E. 6. cap. 9. 2. E. 6. cap. 9.1 2. P. M. c. 5. Exportation of leather restrained 1. 2. Ph. Ma. The exportation of herring butter cheese and other victuals forbidden 18. Eliza. cap. 8. the exportation of tallow 18. El. cap. 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 doe so earnestly urge this argument the King may restraine traffique therefore may impose to prove better then they have done that the King may restraine traffique of his owne absolute power for as the naturall policy and constitution of our Common-wealth is wee may better say that is law which is de more gentis then that which floweth from the reason of any man guided by his generall notion and apprehension of power regall in genere not in individuo The last assault made against this right of the Kingdome was an objection grounded upon policy and matter of State as that it may so fall out that an imposition may beset by a forreigne 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 executed but stayed untill a Parliament may in the meane time prove vaine and idle and much damage may bee sustained that cannot afterwards be remedied This straine of policy maketh nothing to the point of right our rule is in this plaine Common-wealth of ours Oportet neminem esse sapientiorem legibus if there bee an inconvenience it is fitter to have it removed by a lawfull meanes than by an unlawfull but this is rather a mischiefe than an inconvenience that is a prejudice in present to some few but not hurtfull to the Common-wealth and it is more tolerable to suffer an hurt to some few for a short time than to give way to the breach and violation of the right of the whole Nation for that is the true inconvenience neither need it bee 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 bee the example of our ancestours in this very case and that in the time of one of the most politique Princes that ever reigned in this Kingdome 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 Malmeseyes at Candy foure duckets of gold upon a But which in sterling was eighteene shillings the But. It was therefore enacted that every merchant stranger that brought Malmesey into this Kingdome should pay eighteene shillings the But over and above the due Custome used this imposition to indure untill they of Venice had set aside that of foure duckats the But upon the Englishmen Much hath beene learnedly uttered upon this argument in the maintenance of the peoples right and in answering that which hath beene pressed on the contrary but my meaning is not to expresse in this discourse all that hath or may bee said on either side but onely to make a remembrance somewhat larger of that which I my selfe offered as my symbolum towards the making up of this great reckoning of the Common-wealth which if it bee not well audited may in time cost the subjects of England very deare My hope is of others that laboured very worthily in this businesse that they will not suffer their paines to die and therefore I have forborne to enter into their province I will end with that saying of that true and honest Counsellour Philip Comines in his 5th booke the 18. chap. That it is more honourable for a King to say Ph. Comines l. 5. c. 18. I have so faithfull and obedient subjects that they deny me nothing I demand than to say I levie what me list and I have priviledges so to doe After the Kings right to impose had beene 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 Majestie this hereafter was concerning impositions THE policie and constitution of this your Majesties kingdome appropriates unto the Kings of this Realme with assent of Parliament as well the soveraigne power of making Lawes as that of raxing 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 kingdome as they have ever shewed themselves faithfull and loving to their Kings and ready to aide them in all their just occasions with voluntary contributions so have they been ever carefull to preserve their owne liberties and rights when any thing hath been done 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 impesitions 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 obtaine a speedy and full redresse without any claime made by the Kings of any power or prerogative in that point And though the Law of propriety be originall and carefully preserved by the common Lawes of this Realme which are as ancient as the Kingdome it selfe yet those famous Kings for the better contentment and assurance of their loving subjects agreed that this olde fundamentall right should be further declared and established by act of Parliament wherein it is provided that no such charge should ever be laid upon the people without their common consents as may appeare 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 Majestie without advice and consent of your lords and Commons hath lately in time of peace set both greater impositions and farre more in number then any your noble ancestors did ever in time of Warre doe with all humility present this most just and necessary petition unto your Majestie that all impositions set without assent of Parliament may be quite abolished and taken away And that your Majestie likewise in imitation of your royall 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 only by common consent in Parliament are and shall be voide Wherein your Majesty shall not only 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 commodities and partly through the raising of all forraigne to the overthrow of Merchants and Shipping the causing of a generall dearth and decay of all wealth among your people who will be thereby no lesse discouraged then disabled to supply your Majestie when occasion shall require FINIS 20. Maii 1641. AT a Committee appointed by the honourable House of Commons for examination of Bookes and of the licencing and suppressing of them c. It is ordered that this Treatise be published in Print unlesse the Licencer shall shew good cause to the contrary EDVVARD DERING
carry his Merchandise where it pleased him notwithstanding any Charter granted or judgment thereupon 16. 〈◊〉 Reâ— 1. And in the Parliament rolles 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 judgement in the Exchequer and declares to the Kingdome that notwithstanding the great wonder made by some men nothing hath been done in this businesse by those that serve in the Parliament but in imitation of their worthy predecessors in the very like case In the second yeere of H. 4. the Commons shew that in the time of R. 2. by the meanes of John Waltham Bishop of Salisbury Treasurer of England wrongfully without authority of Parliament and by reason of a judgement given in the Exchequer 16. 17. R. 2. by the Barons there against certaine Merchants of Bristow and other places passage had been taken for wines otherwise than 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 judgement given in the Exchequer or other ordinance made by the said Treasurer contrary to the ancient usage which petition the King granted and the judgement thereupon became voyde and the prisage wine hath been paid contrary to the judgement ever since In 1. 1. El. Dier 165. El. Dier 165. upon the complaint made by the Merchants of the impositions set upon cloth by Queene Mary by her absolute power without assent of Parliament the cause was thought too weighty to bee 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 yeere books for there is nothing of it Another objection was this which was made in the last argument viz. That Custome is originally due by the common Law of England It can then have no other ground or cause but meerly by the Kings royall prerogative as a right and duty originally belonging to his Crowne which if it be it must necessarily follow he may impose for that is but the exercising of that right To prove this was alledged the case 39. 39 E. 3.13 E. 3.13 by which case it appeareth that King Iohn had a custome of eight pence on a tonn of wine in the part of South-hampton but the book doth not tell you that the King had it by prerogative and he might have it aswell otherwise as by prescription or convention which shall rather be intended by reason of the certainty of the summe paied for if it were by prerogative he might take sometimes more sometimes lesse at his will the right being indefinite and the quantity limitted onely by his owne Discretion 18. El Dier 352. A common person may have such a custome certaine as 18. El. Dier 352. the Maior of London hath the twentieth part of salt brought into the City by Aliens which is a great imposition but is good by prescription originally and hath received greater strength since by acts of Parliament made for the confirmation of the liberties and customes of the City of London So it appeareth Dier 43. that Iohn of Britaine had Custome of the ships that arrived at his port of little Yarmouth worth twenty pounds per an And these instances doe inferre that a Custome may bee otherwise then by prerogative and therefore it is no good argument to conclude the King had such a custome Therefore he had it by prerogative The booke in 30. H. 8. Dier 43. 30. Hen. 8. Dier 43. was much pressed on this point which sayeth that custome belonged to the King at Common Law and doth instance in wooll woll fells and leather begun at the Common Law but abridged by the Satute of 14. E. 3. ca. 21. stat 1. 14. Ed. 3. c. 21. statn r. but this appeareth to be a great errour and mistaking in the booke for we doe finde that that custome of woolls wooll-fells and Leather was begun by a grant in Parliament as appeareth in statute 15. E. 1. ca. 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 Earles Barons and all the Commonalty of land c. Novem. 3. Ed. 1. the King recited in his letters patents That Prelati magnates actota Communitas mercatorum Regni granted this new custome 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 foure pence in the pound over due custome payd by Merchants Aliens according to the purport of the Charta mercatoria 31. E. 1. Rot. char 31. E. 1. nu 44. in Turri by meere right of prerogative at the Common Law for by that grant of the Merchants he cannot hold it they being no body politick at the time of the grant and therefore the grant is meerely voyd to binde in succession And yet the Merchants Aliens doe 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 Custome 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 binde their successours in matters of traffique for their contracts are not ruled by the Common law of the Land but by the law of Nations per â—egem Mercatoriam as the book case is 13. Ed. 4.10 and there was a good consideration given them by the King for this encrease of custome as discharge of prise Wines for two shillings the Tonn and other immunities which all Merchants aliens hold and enjoy at this day by force of that contract made 31. E. 1. For a stranger payeth now but two shillings the Tonn for prisage whereas it standeth an English man in much more so as the rule of commutative justice maketh the contract availeable to the King against the Merchants because he parteth with part of his prisage to the Merchant and maketh it availeable to the Merchant against the King because he giveth him encrease of custome above that is due by law 27. E. 3. c 26 But the statute of 27. E. 3. cap. 26. heretofore cited doth make this point cleare without scruple which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of custome 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 custome by Prerogative you goe directly against his meaning for it appeareth by that which presently followed this grant that the King took this encrease of
custome by way of contract only and not by Prerogative for the same yeare 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 custome upon the same immunities to them to be granted and doth assigne his officers to gather it but with this clause Si gratanter absque coertione solvere voluerint ita quod aliquem Mercatorem de regno potestate nostrâ ad praestationes custumas hujusmodi invito solvendas nullatenùs distringatis Nothing can more plainly expresse 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 Crowne as of right to have custome how commeth it to passe this Prerogative never yet had fruit or effect for this I can maintaine that the King of England hath not one penny custome or imposition upon merchandizes elder than the fourth yeare of Queen Mary that hee holdeth not by act of Parliament and by the peoples grant The eldest that he hath is that of wools woolfells and lether and that is by act of Parliament as appeareth in the Statute 25. E. 1. cap. 7. 25. E. 1. c. 7. the tonnage and poundage by Parliament in the first yeare of every Kings reigne The Aliens encrease of custome by Parliament 27. E. 3. 27. E. 3. cap. 27. cap. 26. then this Prerogative hath been much neglected that it was never called on to be put in execution untill now of late yeares Concerning the statutes made for restraining our Kings from the exercise of this pretended Prerogative Statutes 3. which is the third matter I stand upon Those that have maintained the Kings Prerogative in this point have endeavoured to interpret those statutes to extend only to restraine him from imposing upon wool woolfells and lether which are staple commodities And the reason they give for this restraint more than for other goods is because the King by statute is restrained to a custome certaine for those commodities as the halfe mark a sack of wooll and halfe a mark three hundred woollfels and thirteene shillings foure pence a last of lether and therefore great reason he should not exceed this custome in these commodities This objection receiveth many answers First it appeareth both by the expresse letter of divers of the Lawes made in this point by the occasion that induced the making of the Lawes and by the execution of them that all other wares and merchandises aswell as those of the staple were within the purpose and intent of those Lawes Secondly the reason aleadged why there should be restraint for the staple commodities rather than for the other is mistaken for the Lords and Commons did grant to E. 1. by act of Parliament the custome of the halfe mark for wooll woolfels and lether which was matter of mere grace and liberality and includeth no restraint in it but rather a favourable extention quite contrary to the sense of the objection according to that rule of interpretation Gratiosa ampliari decet odiosa restringi And admit some Lawes be made expresly to restraine impositions upon wooll woollfels and lether by reason that the occasion of making such Lawes was the actuall imposing upon those goods at that time shall we not by good construction Secundum mentem extensivum legis extend this law to other wares and merchandizes that are within the same mischiefe 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 Lawes 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 than to enforce the sense and meaning of them which is very plaine and open and needs no interpretation The first statute enforced is Mag. charta cap. 30. made in the ninth yeare of H. 3. by which it is enacted that all Merchants shall have free egresse and regresse out of and into this Realme with their goods and merchandizes to buy and sell sine omnibus malis tolnetis per antiquas rectas consuetudines in which words we may inferre 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 Portorium a duty paid in money as our English word Custome in one sense doth signifie implyeth a begining and continuance by consent and will of the parties not by power and enforcement which cannot be a custome and therefore it cannot be an imposition for that ariseth mercly 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 epithetes with which it is qualified antiquum and rectum doe describe it to bee of that nature that it cannot be an imposition for antiquum in legall construction is that which is time out of minde that is not an imposition for then by continuance of time it should grow aright by prescription and were justifiable Rectum implyeth a limitted right which inferreth 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 excesse maketh it a burthen but not a wrong We may further observe that in the statute malum tolnetum which is evill toll is set downe 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 yeare 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. Rot. claus 16. H. 3. num 20 whereby it is commanded Quod omnibus Mercatoribus in portum suum venientibus cum vinis aliis merchandizis scire faciant quod salvò securè in terram Angliae veniant cum vinis mercandizis suis faciendo inde rectas debitas consuetudines nec sibi timeant de malis tolnetis quae us faciat Rex vel in terrâ suâ fieri permittat By this record the word Consuetudo is interpreted to be mos not portorium otherwise it should have beene 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 meanes 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 doe plainly shew it was made for Aliens but if the State was so carefull 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 2 E. 3. c. 9. as appeareth by the statute of 2. E. 3. cap. 9 the words are that all Merchants strangers and Princes may goe and come with their merchandizes in England after the tenor of the great Charter and that writs bee thereupon sent to all the Sheriffs in England and to Maiors and Bayliffs of good townes where need shall require A second objection was made in the last argument out of these words of the statute of M. Chart. that Merchants might freely traffique Nisi publicè antea prohibiti fuerint by which was enforced that the King had power to restraine 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 kingdome 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 beene by Parliament But admit the King may make a restraint of traffique in part for some publick respect of the common wealth he doth this in point of protection as trusted by the Common wealth to doe that which is for the publick good of the kingdome but if he use this trust to make a gaine and benefit by imposing that is a breach of the trust and a sale of government and protection But more of this shall be hereafter spoken in the answering of the maine objections The next law is that notable statute of E. 2â— E. 1. c. 7. 1. in the 28 yeare of his reigne made upon the very point in question the words are these And forasmuch as the more part of the Commonaltie of this Realme 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 Wee at their request have clearly released it and have granted for us and our heires that wee shall not take such things without their common consent and good will saving to us and our heires the customes 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 selfe some out of matter subsequent and following after the Law For matter precedent The Walsingham in E. 1. fo 71.72.73 edit per W. Cam den impres Francofurti 1603. It was objected out of Tho. Walsingham an Historiograper of good credit that Writ of that time when the Satute was made That in the petition of grievances given to King E. 1. by the people in the 25. yeere of his raigne upon which petition the statute was made that they found themselves not grieved in point of right but in point of excesse 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 expresse the cause of their griefe that it was too heavie which is to bee applyed to the point of excesse not of right To this I answer that if the words had been quia ost 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 onely positively affirme that the imposition de facto was intolerable for the greatnesse 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 cleare by the generall word precedent in the preamble of the petition which doth evidently inferre they grounded their complaint upon point of right not upon point of of excesse the words are these Tota terra communitas sentit se valdè gravatam quia non tractantur secundum leges consuetudines terrae secundum quas tractari antecessores sui solebant habere sed voluntariè excluduntur After which preamble among the particulars this of forty shillings upon a sack of Wooll is ranked but with a dependencie of that expressed in the preamble for the point of right But seeing wee light upon History which though it bee of small authority in a Law argument yet being the History of our owne Realme hath fit and proper use in the common counsell of the Realme Matth. Westm fo 430. Edit pâ—r H. Savile mil. Francofurti 1601. I will pursue it a little further Out of Matth. Westm a Writer that lived much nearer the time of the Law made then Thomas Walsingham he saith That the Commons by their petitions required Ne Rex de coetero tallagia usurparet voluntarias super his inductas exactiones de coetero quasi in irritum revocaret by which it appeareth that the point of the complaint was that the exactions layd on them were voluntary that is at the Kings will without assent of Parliament Out of the Law it selfe it hath much been pressed as first the Commons made petition to the King wherupon they inferre out of the nature of the word petition that their proceeding was by way of grievance for the excesse and inconvenience as a matter of grace not in course of justice for the wrong To this I answer that considering the qualitie of the parties to this action it being betweene the King and the subject duty and good manners doth induce gentlenesse and humilitie of termes without blemish or diminution of the force of right It is according to the demeanor of Iob Iob. 5.15 cap. 9. v. 15. Though I were just yet would I not answer but I would make supplication to my judge But in our formes of Law be the right of the subject never so cleare 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 meere petition Supplicat celsitudini c. So as if the word petition to the King inferre defect of right in the petitioner there can be no case where the King can doe 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 implyeth a right setled in him But to this I answer that it is no necessarie inference that wheresoever a release of right is for it is used for claime only or where possession was though wrongfull 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 Marchants 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 bee 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 dammage that grew by it for that did only touch the Merchants who could not justly complaine thereof because it was their own act and grant 22. E. 1. Origen in Scac. Rem Thes This appeareth by two notable records 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 Guerra Regis pro recuperandâ terrâ Vasconiâ mercatores gratanter concesserunt per biennium vel triennium si tantum duraverit Guerra de sacco lanae c. The other record is the Writ of publication that in 26. E. 1. went out after the Statute of 25. In 26. F. 1. mem Sca. Rem Thes 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 limitted 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 wayes first out of the Saving in the Act which extends to other things than to Wooll as to Wooll-fells and Leather therefore the purview of the act by these words such things extendeth to more than 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 bee remedied but for Wooll because only that was complained of is false For the complaint of the Commons was not only for this imposition on Wooll but divers other burthens and grievances of the like nature And this will appeare if wee compare all the parts of the Law the one with the other for this Law is in the forme 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 businesse from thenceforth will take no manner of aydes 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 only to that which is made Cap. 7. by the Printer and concerneth the male toll of Woolls but to that precedent which is all otheraydes impositions and takings The Writ of publication of this Statute sant out to all parts in 26. Meâ—â— Sâ—ac in 26. E. 1. Rem Thes E. 1. maketh plaine this construction the words of it are Concedentes quod custumam illam velaliam 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 aswell as to those upon Woolls The objection made out of matter subsequent to the Statute was this that notwithstanding this Law of 25. E. 1. impositions that before the statute had bin set on other Merchandize than Woolls were still answered after the Statute and for instance of this was alledged that whereas 16. E. 1. an imposition of 4. s. 16. E 1. Orig. R. Thes the Tonn was set upon Wines brought into the Kingdome an accompt was made of this in th' 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 than Woolls named in the Statute It is true such an imposition was set on by E. 1. in the sixteenth yeere of his raign and an accompt made for it 25. and 26. 25. 26. E. 1. de compt T. Mich. R. Thes 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 yeere after the setting of it The third Satute alledged on the behalfe of the Subject is that 34. E. 1. ca. 1. the words are these 34. E. 1. ca. 1. No tallage or aide shall be taken or levied by us or our heires in our Realme without the good will and assent of our Arch-bishops Bishops Earles Barons Knights burgesses and other freemen of the land Against this was objected that this Statute was intended only upon the taxes impositions of things The word Auxilium makes it cleare that it is to be intended further then of things within the realme for tallagium is commonly intended of Domesticall taxes but auxilium is the most usuall terme 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 Aydes as proceeding of good will and benevolence The fourth Satute alledged on this part is that of 5. 5. E. 2. ca. 14 Rot. Ordiâ— E. 2. ca. 14. just in point of the
the Commons that an imposition of a peny was set upon wools for Tronage over and above the ancient due which was but a peny and so the subject was charged with two pence Also that a peny was exacted for Mesonage which was but an halfepeny which Impositions the Record doth expresse 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 smalnesse of it My sixth observation is that those which have advised the setting on of impositions without assent of Parliament have beene accused in Parliament for giving 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 hee had procured to bee set upon wooll wooll-fells and other merchandises new impositions to wit upon a sacke of wooll eleaven shillings which the L. Laâ—imer sought to excuse because hee had the consent and good liking of the merchants first But judgement 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 Councell and this procuring of impositions to bee set on without assent of Parliament is expresly set downe in the entry of the judgement for one of the causes of his censure Richard Lyons a Fermor of the Customes in London the same yeere was accused in Parliament for the same offence Rot. parl 50. E. 3. n. 17 18 19 20. he pleaded hee 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 seifed into the Kings hand and at the last the hate against these authours of impositions grew so that 50. E. 3. in the same Parliament a petition was exhibited in Parliament to make this a capitall offence the Record is very short and therefore I will set it downe verbatim Item prie le dit Common que foit ordaine per statute en cest present parliament de touts ceux qux cy en avant mittont on font pur lour singuler profit novels impositions per lour authoritie demesn accrocheants al eux eny ul power de riens que soit establi en parliament sans assent de parliament que ils eyent judgement de vie member de forisfacture To this rough petition the King gave a milde and temperate answer Courge la Common ley come estoit al avant use My seventh observation is the cessation betweene 50. E. 3. after this censure in Parliament and 4. Mariae almost two hundred yeeres 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 raigned in that time but had impositions granted him upon fit occasion by Act of Parliament upon all goods and merchandiles and at divers times during their Reignes sometimes more sometimes lesse upon the tonne and pound but ever for a time certaine and definite so the use of them was not given over but the power of imposing was so clearly and undoubtedly held to bee in the Parliament as no King went about to practise 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 Crowne by double Custome paid for all merchandises both in England and at Castis by reason of an Act of Parliament made 8. H. 4. which was that no goods should bee carried out of the Realme but to Calles and by reason that the merchants paid Custome both there and here for the same goods that in the seven and twentieth yeere of Henry the sixth the Custome of Callis was 68000. pounds the yeere a great summe if you consider the weight of money then what price it bare and by reason hereof Princes not delighting to charge their munnuting 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 bee some probable colour of the forbearance of imposing but I find it to be quite contrary and that by Record for there was no such restramt of all commodities not to bee transported to any place but Callis but onely wools wool-fells leather tinne and lead that were staple wares which by the stature 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. â— but there was no double Custome paid both here and there by the same owner but the yeerly profits of the Customes of Callais at those tiems were so farre short of that which hath beene alleaged in 27. H. 6. that it appeareth in an Act of Parliament 27. 27. H. 3. ca. 2. H. 6. cap. 2. printed in the booke at large that the Commons doe complaine that whereas in the time of E. 3. the Custome of Callais was 68000. l. per annum at that time which was 27. H. 6. by reason of the ill usage of merchants it was fallen to bee but 12000. pounds the yeere so then there was great cause in that respect to have set on impositions by reason of that great abatement of Customes and yet it was not then offered to bee done without assent of Parliament But if you looke 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 Chancellour and Treasurer who demanded reliefe of the people for the King both for payment of his debts and for his yeerly livelihood 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 was more than his yeerly revenue by 19000. pounds yeerly so if ever there was cause to put a King to his shifts it was then yet wee see they did not venture to put in practice this supposed prerogative It further appeareth in that statute that the people among those reasons they alleaged why they were not able to reteine the King gave this for one that they had so often granted him tonnage and poundage upon merchandises
there punished and his Patent taken away and cancelled What impositions have been set on in the Kings time I need not expresse they are set downe particularly in the booke of rates that is in print they are not easily numbered the time for which they are raised is not short the Patent prefixed to that booke bearing date 28. â—uln 6. Iacobi will instruct you sufficiently in that point they be limited to the King his heires and successors which I suppose is the first estate of Fee simple of impositions that ever man read of My eighth and last observation is upon tunnage and poundage given to the King of this Realme upon Wares and Merchandizes exported and imported which is an imposition by act of Parliament and as it will appeare was given out of the peoples good will as a very gratification to the King to enjoyne him thereby from the desire of voluntary impositions and to conclude him by that gift in Parliament from attempting to take any other without assent of Parliament for after the ceasing of voluntary impositions these Parliamentary ones were frequent in the times of the King that succeeded but they were never given but for yeares with expresse caution how the money strould be besâ—owed As towards the defence of the Seas protection of traffique or some such other publique causes sometimes speciall sequestrators made by the act of Parliament by whose hands the money should be delivered As 5. 5. R. 2. Rot. Parl. 7. R. 2 n. 13.10 R. 2. n. 12. 7. R. 2. n. 12. R. 2. cap. 3. in a printed Statute The rates that were given were very variable sometimes ii s. tunnage and vi d. poundage as 7. R. 2. iii. s. tunnage and xii d. poundage 10. R. 2. which grants were not to endure the longest of them above a yeare xviii d. tunnage vi d. poundage in 17. R. 2. iii. s. tunnage and xii d. poundage granted to H. 4. in the thirteenth yeare of his raigne for a certaine time in which Statute there is this clause That this aide in time to come should not be taken an example to charge the Lords and Commons in manner of Subsidie unlesse it be by the wills of the Lords and Commons and that by a new grant to be made in full Parliament in time to come This clause in good and proper construction may be taken to be a very convention betweene the King and his people in Parliament that he should not from thenceforth nor any of his Successors set on impositions without assent of Parliament The like imposition was granted to H. 5. Rot. parl 1. H. 5. n. 17. in the first yeare of his raigne for a short time towards the defence of the Realme and safeguard of the Sea upon condition expressed in the act that the Merchants Denizens and estrangers comming into the Realme with their Merchandizes should be well and honestly used and handled paying the said Subsidie as in the time of his Father and his noble Progenitors Kings of England without oppression or extortion In the end of which act the Commons protested being bound by any grant in time to come for the purposes aforesaid H. 6. in the one and thirtieth yeare of his raigne Rot. parl 31. H 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Ma. c. 18. 1. El. c. 19. 1. Iac. c. 33. had tunnage and poundage given him for his life E. 4. had it given him the third yeare of his raigne as it appeareth in a Statute 12. E. 4. cap. 3. H. 8. in the sixth yeare of his raigne and all since in the first yeare of their raignes have had it given them for terme of their life and being now so certainly setled in it do reach further at that froÌ„ which they are in conscience and honour excluded by this voluntarie gratification For can any man give me a reason why the people should give this imposition of tunnage and poundage above the due custome upon all commodities if the King by his prerogative might set on impositions without assent of Parliament and were not that a weaâ—e action in a King to take that of his people as a benevolence from them with limitation of the same and in what it should be imployed and how they will be used for it and for what time he shall have it which he might justly take without their consents unclogged of these unpleasing incombrances The Statute of tunnage and poundage made in our times that are altogether inclined to flattery doe yet retaine in them certain shewes and rumors of those ancient liberties although indeed the substance be lost as in the Srat. 1. lac cap. 1. Iac. c. 33. 33. we declare that we trust and have sure confidence of his Majesties good will towards us in and for the keeping and sure defending of the Seas and that it will please his highnesse that all Merchants as well Denizens as Strangers comming into this Realme be well and honestly intreated and demeaned for such things whereof Subsidie is granted as they were in the time of the Kings Progenitors and Predecessors without oppression to them to be done By this clause as it now continueth the true intent of this Statute appeareth to be that there ought no other imposition be laid upon Merchants besides these given by this Statute and this intention hath been well interpreted by use and practise from the time of E. 3. to the time of Queene Mary as before is declared Thus much of this last reason made from observation and the action of our Nation I will answer now such maine objections as have been made against the peoples right and have not been touched by me obiter in my passage through this discourse That which hath been most insisted upon is this that the King by his prerogative Royall hath the custodie of the Havens and Ports of this Island being the very gates of this Kingdome that he in his royall function and office is only trusted with the keyes of these gates that he alone hath power to shut them and to open them when and to whom he in his Princely wisdome shall see good that by the Law of England he may restraine the persons of any from going out of the Land or from comming into it That he may of his owne power and discretion prohibite exportation and importation of goods and merchandizes and out of this prerogative and preheminence the power of imposing as being derivative doth arise and result For Cui quod maius est licet ei quod est minus licitum est So their reason briefly is this the King may restraine the passage of the person and of the goods therefore he may suffer them not to passe but sub modo paying such an imposition for his sufferance as he shall set upon them for the grounds and propositions laid in this objection I shall not be much against any one of them others of
them to that purpose the same is againe for law confirmed in the Dutchesse of Suffolke Dier 2. El. 176.5 R. 2. cap. 2. case 2. Eliz. Dier 176. but the Common law was altered in this point by the statute of 5. R. 2. cap. 2. by which the passage of all people is defended that they may not goe without licence except the Lords and other great men of the Realme merchants and souldiers so for the merchants which are the people dealt withall in the businesse in hand the Common law remaineth as it was before the statute and so it was held 12. Dier 12. El. 196. El. Dier 196. where the case was An English merchant being a Papist went over sea and being there did settle himselfe to remaine there for enjoying the freedome of his conscience it was moved here in England that his going without licence should bee a contempt because hee went not to traffique as a merchant but for the cause of Religion it was resolved no such averment would be taken in this case for that the very calling and vocation of being a merchant did give him liberty to goe out of the Kingdome when hee would and therefore the secret intent of his going was not to bee enquired after Sed lex inspicit quod vertsimilius Therefore it was in this case held no contempt but at this day the law is as it was before 5. R. 2 cap 2. for that statute is repealed 4. Iac. 4. Iac. cap. 1. cap. 1. And all men whatsoever are now at liberty by the Common law to passe out of the Realme There is onely against this inconvenient liberty a Proclamation dated at Westminster 9. Iul. 5. Iac. Proclamatiâ— 9. lul 5. Iac. To the very same effect in point of restraint of passage with the statute of R. 2. So the subject is in this much the more at ease and liberty than he was before that his going over sea without licence doth not induce any forfeiture but onely incurreth the censure of a contempt and therefore it were to bee wished that some firme law might bee made in the case both for the execution of so good a point of policy and for the more quiet of the State in knowing the certainty of the punishment for the offence This liberty and freedom of merchants hath been strengthened and confirmed by many notable lawes before recited as 14. E. 3. st 2. c. 2.15 E. 3 st 2. c. 5.18 E. 3. st 1. c. 3. 14. E. 3. st 2. c. 2.15 E. 3. st 2. c. 5. 18. E. 3. st 1. c 3. and divers other and therefore though it bee admitted that the King may restraine persons and goods yet it may well bee denied that he hath power of himself alone without assent of Parliament simply and indefinitely to restraine all traffique in generall or to shut up all the havens and ports and to barre the vent and issuing of wares and merchandises of the whole Kingdome as appeareth plainely that this hath been done this three hundred yeersor near thereabouts by Act of Parliament onely and that the Kingdome of England made this matter of Traffique so tender a case to deale in as that it hath ever held it a matter fit for the consultation of the great Councell of the Kingdome and for no other In 11. E. 3. 11. E. 3. cap. 1. the exportation of wools was prohibited by Act of Parliament in which statute there was this clause untill that by the King and his Councell it bee thereof otherwise provided which power so given to the King to be used for the good of the Common-wealth gave occasion to him to abuse it to his profit and commodity by giving licences of transportation to all that would give fourty shillings upon a sacke of wooll above the due Custome This appeareth in the Records in the Exchequer 13. 13. E. 3. R. Thes rot 2. E. 3. Rot. 2. Ram. Thes I will describe the Record that you may perceive the ground of it the better Rex collectoribus Cuâ—tumae in portumâ—gnae Iermouth salutem Quia concessimus dilecto fidelâ—nostro Hugoni de Wriothsley quod ipse viginti saptem saccosâ—anae demid de lanis suis propriis in portu prae dicto cariare eas usque Antwerpe ad stapulam nostram ibidem ducere possit solvendo ibidem dilecto clerico nostro Willielmo de Northwell custodi guarderobae nostrae 40. s. pro quolibet saoco pro custuma subsidio inde nobis debitis c. vobis mandamus quod praedict Hugon dictos viginti septem saccos lanae dimid in portu praedicto cartare permittatis c. And another the same yeere 13. E. 3. rot 12. R. Thes Rex collectoribus custumae c. Cum nuper ordinaverimus quod passagium lanarum c. apertum existeret quod sigillum nostrum quod dicitur Coket quod prius claudi sub serra custodâ—â—â— mandavimus aperiretur apertum teneretur ideo vobis mandavimus quod sigillum praedictum in portu praedicto aperiri apertum teneri faciatis omnes illos qui hujusmodi lanas cariare ducere velint permittatis receptis prius ab iisdem viz. de mercatoribus aliis indigenis 40. s. de quolibet saeco â—anae Divers other such sales of traffique occasioned by this parliamentary restraint were made betweene 11. 14. E. 3. st 2. c. 2. 15. E. 3. c. 5. st 2. E. 3. that the restraint was made and 14. E. 3. that this inconvenience being espied the sea was opened by statute and the restraint removed 14. E. 3. stat 2. cap. 2. 15 E. 3. cap. 5. star 2. And this fourty shillings so exacted was complained of as an imposition in Parliament and the occasion and the effect were both taken away together by Act of Parliament 14. 14. E. 3. ce 21. st 1. stat 2. cap. 1. E. 3. stat 1. cap. 21. stat 2. cap. 1. It followed in all Kings times sithence the death of E. 3. that this opening and shutting of the havens restraining and enlarging of traffique was done by Act of Parliament I will give one instance in the Raigne of every King 5. R. 2. c. 2. st 2. 5. R. 2. cap. 2. stat 2. For the passage of wooll wool-fells and leather 6. H. 4. cap. 4. 6. H. 4. c. 4. 2. H. 5. c. 6. st 2. For the traffique and commerce with merchants aliens 2. H. 5. cap. 6. stat 2. For the restraint of staple commodities to places certaine and for the traffique of the merchants of the west 27. H. 6. cap. 1. 27. H. 6. 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 traffique of the English Nation was restrained that therefore the Englishmen should not traffique with the subjects of the Duke of Burgundy 4.