Patents of his own will and power absolute without assent of Parliament he be so lawfully intituled to that he doth impose as that thereby he doth alter the property of his subjects goods and is enabled to recover these impositions by course of Law I think he cannot and I ground my opinion upon these foure reasons 1. It is against the naturall frame and constitution of the policie of this kingdome which is jus publicum regni and so subverteth the fundamentall Law of the Realme and induceth a new forme of state and government 2. It is against the municipall Law of the Land which is jus privatum the Law of property and of private right 3 It is against divers Statutes made to restraine our King in this point 4. It is against the practice and action of our Common wealth contra morem majorum and this is the modestest rule to limit both Kings Prerogatives and Subjects Liberties Upon the first and fourth of these foure principal grounds I will more insist then upon the second and third both for that in their own nature they are a more proper matter for a Councel of State to the judgement of which I apply my discourse and they have not been enforced by others As also for that the other two as more fit for a barre and the Courts of ordinary justice have by some professors of the Law been already most leardnedly and exquisitely discussed For the first it will be admitted for a rule and ground of State that in every Common-wealth and government there be some rights of Soveraignty jurae Majestatis which regularly and of common right doe belong to the Soveraign power of that State unless Custome or the provisional ordinance of that State doe otherwise dispose of them which Soveraigne power is potestas suprema a power that can controule all other powers and cannot be controuled but by it self It will not be denied that the power of imposing hath so great a trust in It by reason of the mischiefes may grow to the Common-wealth by the abuses of it that it hath ever been ranked among those rights of Soveraign power Then is there no further question to be made but to examine where the Soveraigne power is in this Kingdome for there is the right of imposition The Soveraigne power is agreed to be in the King but in the King is a twofold power the one in Parliament as he is assisted with the consent of the whole State the other out of Parliament as he is sole and singular guided merely by his own will And if of these two powers in the King one is greater than the other and can direct and controule the other that is Suprema Potestas the Soveraigne power and the other is subordinata It will then be easily proved that the power of the King in Parliament is greater than his power out of Parliament and doth rule and controule it for if the King make a grant by his Letters Patents out of Parliament it bindeth him and his successors he cannot revoke it nor any of his Successours But by his power in Parliament he may defeate and avoyd it and therefore that is the greater power If a judgement be given in the Kings Bench by the King himselfe as may be and by the Law is intended a writ of Error to reverse this judgement may be sued before the King in Parliament which writ must be granted by the Chancellor upon bill indorsed by the King himself 1. H. 7.19 6. Lib. Intrac fol. 302. c. 1. as the book is 1 H 7.19.6 And the forme of the writ of Error is that it being directed to the Chiefe Justice of the Kings Bench Quia in recordo prâ—cessu ac etiam in redditione judicii lâ—quelae quae fuit in Curiâ nostrâ coram nobis Error intervenis manifestus ad grave damnum c. Nos errorem si quis fuerit modo debito corrigi pariibus praedictis plenam celerem justitiam fieri volentes in hâc parte vobis mandamus quòd Recordum processum loquelae illius cum omnibus ea tangentibus in praesens Parliamentum nostrum sub sigillio tuo distiâ—â—â—è apertèmittas hoc breve ut inspectis c. nâ—s de Consilto advisamento Domi norum spiritualium temporalâ—um ac Communitatis in Parliamento nostro praedicto existentis alterius pro errore illo corrigenâ—o fieri faciamus quâ—d de jure secundum legem consuetudinem Regni nostri Angliae fuerit faciendum So you see the Appeal is from the King out of the Parliament to the King in Parliament the writ is in his name the rectifying and correcting the errours is by him but with the assent of the Lords and Commons The booke is not so that the CoÌ„mons should meddle than which there can be no stronger evidence to prove that his power out of Parliament is subordinate to his power in Parliament for in Acts of Parliament be they lawes grounds or whatsoever whatsoever else the Act and power is the Kings but with the assent of the Lords and Commons which maketh it the most soveraigne and supreame power above all and controulable none Besides this right of imposing there be others in the Kingdome of the same nature As the power to make lawes the power of Naturalization the power of erection of arbitrary Government the power to judge without appeale the power to legitimate all which do belong to the King only in in Parliament Others there be of the same nature that the King may exercise out of Parliament which right is grown unto him in them more in those others by the use and practice of the Common-wealth as denization coynage making warr which power the King hath time out of minde practised without the gain-saying and murmuring of his subjects But these other powers before mentioned have ever been executed by him in Parliament and not otherwise but with the reluctation of the whole Kingdome Can any man give me a reason why the King can only in Parliament make lawes No man ever read any law whereby it was so ordained and yet no man ever read that any King practised the contrary Therefore it is the originall right of the Kingdome and the very natural constitution of our State and policy being one of the highest rights of Soveraigne power So it is in naturalization legitimation and the rest of that sort before recited It hath been alleaged that those which in this Cause have enforced their reasons from this Maxime of ours That the King cannot alter the Law have diverted from the question I say under favor they have not for that in effect is the very question now in hand for if he alone out of Parliament may impose he altereth the Law of England in one of these two maine fundamental points He must either take his Subjects goods from them without assent of the party which is against the Law or else he
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
3. cap. 26. which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of Custom by three pence in the pound which is by name mentioned in the Statute is now due by Act of Parliament If you will have the King hold this encrease of Custom by Prerogative you go directly against his meaning for it appeareth by that which presently followed this Grant that the King took this encrease of Custom by way of contract onely and not by way of Prerogative for the same year following he directeth his Writs to the Officers of his Ports reciting the contract made with the Aliens by Charta Mercatoria adding further that some Denizens were willing to pay the like Custom upon the same Immunities to them to be granted and cloth assign his Officers to gather it but with this clause Si gratanter absque coertion◠solvere voluerint ita quod aliquem Mercatorem de regno potestate nostrâ ad prastationes custumas hujusmodi invite solvendas nullatenùs distringatis Nothing can more plainly express that the Kings intention was not to demand this by way of Prerogative but by force of the contract If there were such a Prerogative in the Crown as of right to have Custom how cometh it to pass this Prerogative never yet had fruit or effect for this I can maintain That the King of England hath not one penny Custom or Imposition upon Merchandizes elder then the fourth year of Queen Mary that he holdeth not by Act of Parliament and by the peoples grant The eldest that he hath is that of Woolls Wooll-fells and Leather and that is by Act of Parliament as appeareth in the Statute 25 E. 1. cap. 7. the Tonnage and Poundage by Parliament in the first year of every Kings reign 25 E. 1. cap. 7. The Aliens encrease of Custom by Parliament 27 E. 3 cap. 26. 27. E. 3. cap 26. Then this Prerogative hath been much neglected that it was never called on to be put in execution untill now of late years Concerning the Statutes made for restraining our Kings Statute 3 from the exercise of this pretended Prerogative which is the third matter I stand upon Those that have maintained the Kings Prerogative in this point have endeavored to interpret those Statutes to extend onely to restrain him from imposing upon Wooll Wooll-fells and Leather which are staple commodities And the reason they give for this restraint more then for other goods is because the King by Statute is restrained to a Custom certain for those commodities as the half Mark a Sack of Wooll and half a Mark three hundred Wooll-fells and thirteen shillings four pence a Last of Leather and therefore great reason he should not exceed this Custom in these Commodities This Objection receiveth many Answers First it appeareth both by the express letter of divers of the Laws made in this point by the occasion that induced the making of the Laws and by the execution of them that all other Wares and Merchandises as well as those of the staple were within the purpose and intent of those Laws Secondly The reason alleadged why there should be restraint for the staple Commodities rather then for the other is mistaken for the Lords and Commons did grant to E. 1. by Act of Parliament the custom of the half Mark for Wooll Wooll-fels and Leather which was matter of meer grace and liberality and includeth no restraint in it but rather a favourable extention quite contrary to the sence of the Objection according to that rule of interpretation Gratiosa ampliari decet odiosa restringi And admit some Laws be made expresly to restrain impositions upon Wooll Wooll-fells and Leather by reason that the occasion of making such Laws was the actual imposing upon those goods at that time shall we not by good construction Secundum mentem extensivam legis extend this Law to other Wares and Merchandizes that are within the same mischief If we look to the reason of the Law we shall make no doubt of it for that is because the impositions were without assent of Parliament not because they were upon such and such Commodities Besides those Laws so made are declarativae juris antiqui non introductivae novi In the enumeration of those Statutes which I conceive make directly to this purpose I will endeavour rather to answer the Objections made against them then to enforce the sense and meaning of them which is very plain and open and needs no interpretation The first Statute enforced is Mag. Charta cap 30. made in the ninth year of H. 3. by which it is enacted that all Merchants shall have free egress and regress out of and into this Realm with their goods and merchandizes to buy and sell sine omnibus malis tolnetis per antiquas rectas consuetudines In which words we may infer that both the use and right of imposing are absolutely excluded and debarred for Consuetudo which in this case is to be taken for Vsage which is mos not improperly for Porterium a duty paid in money as our English word Custom in one sence doth signifie implieth a beginning and continuance by consent and will of the parties not by power and enforcement which cannot be a Custom and therefore it cannot be an Imposition for that ariseth meerly out of the will and power of their imposer and is against the will of him upon whose goods it is set But take Consuetudo either for Mos or Portorium the epithites with which it is qualified antiquum and rectum do describe it to be of that nature that it cannot be an Imposition for antiquum in legal construction is that which is time out of mind that is not an Imposition for then by continuance of time it should grow a right by prescription and were justifiable Rectum implieth a limited right which inferred there may be a wrong and exceeding of that right which is not in impositions for if there be a right in the King to impose the quantity time and other circumstances are in his discretion the right is illimited And if he set on never so great an Imposition there is as much right in it as if it be never so small the excess maketh it a burthen but not a wrong We may further observe that in the Statute Malum tolnetum which is evill Toll is set down by way of antithesis to antiqua and recta consuetudo by which is inferred that exactions upon Wares and Merchandizes not qualified with these two properties of antiquum and rectum are evill and unjust This is made more evident by a Record in the Tower of the sixteenth year of H. 3. which was a Mandat sent by the King to the Customers of his Ports for the execution of this Law made in 9 H. 3. whereby it is commanded Rot. clau◠16. H. 3◠ma◠Quod omnibus Mercatoribus in portum suum venientibus cum vinis aliis
Auxilium is the most usual term for impositions upon goods imported and exported as by the Acts of Parliament by which such impositions are given to the King in which they are called most commonly by the name of Aids as proceeding of good will and benevolence The fourth Statute alledged on this part is that of 5. E. 2. c. 14. just in point of the matter in question 5. E. 2. cap. 14. Rot. Ordin and therefore I will set it down as I finde it Verbatim in the Record in the Tower Ensâ—ment novelles customes sont levies antients enhaunces come sur levies drapes vine aver du pois aut choses purquoy les Merchantes veynont pluis vilement meynes de bien menynent en la terre les Merchants estrangers demurront pluis longment que ils solâ—yent faier pur le quel dâ—moure le choses sont le pluis enhaunces que ils ne soloyeâ—t estre al dammage de roy de son people Nous ordoâ—omus que tout manners de male tolls levies puies de Coronement de Roy Ed. faier de Roy Henry soyent entirement oustes de tout estreints put tout jours nient contristeant le Chartre que le dict Roy Ed fist un Merchants aliens pur ceo que il fuit fait contra le grand Char. encâ—untre le Franchise de la City de Londres sans assent de Baronage c. Savant neque dont al Roy le custome de leynes peulx de quirs c. si aver les do et By this Law is recited That by the levying of new Customs and by the raising of old Traffique was destroyed and all things made dear And therefore all new Impositions and Customs were discharged Chariâ Mercatoriâ by which Custom that was encreased on Aliens was taken away and the reason alledged Because it was sans assent de Baronage and against the great Charter And this is further with this clause Saving to the King his Custom of Wooll Wooll-fells and Leather Si aver les do et Great wars have been raised against the credit of this Law in the Parliament House and Three things have been especially objected against it First That it is no Law for it was enforced upon the King by some of the Nobility that were too strong for him the Realm being then in tumult and mutiny about the quarrel of Peirce of Gaveston so never had the Kings free consent but he gave way unto it for fear of greater mischeif Secondly That in it self it is unjust as in taking away the Custom granted to the King by Charta Mercatoria 31. E. 1. and in making doubt whether the King should have the Custom of Woolls c. by those words Saving it to him Si avâ—r los do et The third Objection is That if it were a Law it is repealed To these I give particular Answers To the first That this Statute was made both at the instance of the King and people with a purpose and intention on all parts to settle things in a stay and order both in the Kings house and Commonwealth the King and his Nobles standing in good terms when this business was taken in hand and it was begun and ended with great solemnity and ceremony For the King is the third year of his reign gave Commission under his Great Seal to 32. Lords spiritual and temporal Com. 16. Mar. 3. E. 2. Rot. ordin 5 E. 2. of which there were eleven Bishops eight Earls and thirteen Barons they being as Committees of the higher House to devise Ordinances for the good government of his house and his Realm In which Commission he doth for the honor of Gods the good of him and of his Realm of his freewill grant to the Prelates Earls and Barons and others elected by the whole Kingdom full power to ordain the State of his house and Realm by such Ordinances as by them should be made to the honor of God the honor and profit of holy Church the honor of himself the profit of him and his people according to right and reason and the oath he made at his Coronation These joyning with others of discreet Commons in Parliament and taking every of them a solemn oath for their sincere demeanor in the business did make this and other Ordinances which were so well liked of by the King that after they were made he took an oath to observe them and caused them to be published in Pauls Church-yard by the Bishop of Salisbury by denouncing Excommunication against all that should wilfully infringe them Pullic 3. Kal. Oct. 5. E. 2. R t. ord Pat. 5. Oct. 5. E. 2. Rot. ordin And by his Letters Patents dated 5. Oct 5. regni sui did send them through the Realm to be published and from thenceforth to be observed thereby signifying his great liking and approbation of them after which they had the force and power of Laws given unto them in the Parliament in the fifth year of his reign The second Objection which is the injustness of the Law instanced in two points The taking away of Charta Mercatoria and the doubting of the Kings right to the Custom of Wooll-fells and Leather To the first of these I deny it to be unjust but to be according to the Law of England and liberty of the Kingdom for that Charter did contain in it divers grants of things which were not in the power of the King to grant without assent of Parliament the trial per medietatem linguae and other things tending to the alteration of the Law and burdening of the people and therefore that Charter never had his undoubted and setled force until it was confirmed by Act of Parliament but lay asleep almost twenty years together without being put in execution between 5 E. 2. and 27. E. 3. when it was confirmed for the doubt that is supposed to he made in the Statute of the Kings right to the Custom of Wooll Wooll-fells and Leather I take it there is no such doubt made For the words Saving the Kings right to the Custom of Woolls si aver les do et have this construction that is at such times as he ought to have it so the word si bath the signification of quando for it had been a folly to have made a Saving of that of the right whereof they had doubted neither is it likely but that they would have taken it away if it had not been lawful but there was no colour to doubt of the right of it for it was given by Act of Parliament and ever continued in force without challenge or exceptions to the lawfulness of it The third Objection is That this Statute is repealed To this I plead Nullum valet recordum If it be repealed it must be by Act of Parliament for unum quodque dissolvitur iisdem modis quibus est colligatum I and others have searched the Records of the Realm and endervoured
by all means to inform our selves of the truth herein we can find no Act of Parliament of repeal The truth is some Kings finding these Laws not to sort to their wills and humors have endeavoured to suppress them but they did never yet obtain a repeal of them by Act of Parliament But it is further urged That although there were no formal repeal of the Law yet it was never put in execution as a Law but even presently upon the making was rejected and use and practise went quite against is and for instance hereof a Record was vouched that E. 2 held himself so little bound by it as that in the 11. year of his reign he set an Imposition without assent of Parliament upon Wooll Wooll-fells Leather Wines Cloth Aver de pois and divers other kind of Merchandizes To this I answer that if it were true that a distinct and impotent King as he was did contrary to the Law doth this make the Law void and no Law But if we look into the whole Record and scan this action of E. 2. from the beginning of it unto the end we shall finde it a very good instance to prove the practice and execution both of this Law of 5. E. 2 and of that in 25. E 1. for it is true that E. 2. in the eleventh year of his reign did borrow of the Merchants a certain sum of money above the due Custom of Woolls Wooll-fells Wine Averdepois Leather and such other goods imported and exported but it appeareth by the Record he took it but for one year he took it by the advice and counsel of the Merchants and he took it per viam mutui as a loan Rot. Claus 11. E. 2. The direction of the Writ is Collectoribus mutui nobis per mercaetores alienigenas indigenas de certis rebus Merchandisis usque ad certum tempus faciendi This was done in good terms he did not claim it as his right but did borrow it which I do think is a good evidence against his right But what became of this the State would not abide it for all these fair shews And therefore afterwards the King sendeth out other Writs by which he dischargeth all Merchandizes of this Loan saving only Wooll Wooll-fells and Leather and for the Loan taken upon those Commodities it was limited to continue but until Michaelmas after and good security was given to the Merchants by the Customers to pay themselves by way of defalcation out of the Customs which should be due after Machaelmas those sums which were so borrowed of them The words of the Record are worth the observing Rot. fintum 11. E. 2. Cum pro expeditione guerrae Scotiae aliis arduis urgentibus necessitatibus nobis multipliciter incumbentibus pro quarum exoneratione quasi infinitam pecuniam refundere oportebit pecunia plurimum indigeamus in praesenti nuper pro eo quod exitus regni terrarum nostrarum simul cum pecunia nobis in subventione praemissorum tam per Clerum quam Communitatem regni nostri concessa ad sumptus pradictos cum fâ—stinatione qua expediret faciendos non sufficiunt exquirentes vias modos quibus possemus pecuniam habere commodius decentius pro praemissis de consilio advisamento quorundam mercatorum tam alienigenarum quam indigenarum viam invenimus infra script viz. And so setteth down the manner of the loan and the security for the payment of it This I take it was neither an Imposition nor a wrong in any respect Also by the first Record it appeareth that the Loan set on Wines Averdepois and such other Commodities besides Wooll Woll-fells and Leather were presently discharged by E 2. which sheweth they were taken to be within the intent of the Statute of 25 E. 1. The fifth Statute alledged on the behalf of the Subject is that 14. E. 3. Stat 1. c. 21. by which the Commons pray the King to take no more then the old Custom of the half Mark. 14. E. 3. Stat. 1. cap. 21. The King prayeth aid of the Commons for a time above the Custom upon his necessity of Wars And the conclusion is that by that Act the King doth grant that after the Feast of Pentecost twelve moneths following he will take no more of Woolls Wooll-fells and Leather but the old Custom and doth promise to charge set or assess upon the Custom but in manner as aforesaid The sixth Statute is 14. E. 3. Stat 2. cap 1. 14. E. 3. stat 2. c. 1 The King doth grant by way of Charter to the Prelats Earls Barons Commons Citizens Burgesses and Merchants that they be not from henceforth charged nor grieved to make any aid or sustain charge if it be not by the common consent of the Prelates Earls Barons and other great men and Commons of the Realm and that in Parliament These two Statutes grew upon an occasion of an Imposition set on Wooll by the King without assent of Parliament Little hath been objected against them but only to the first that it was obtained of grace and not upon instance of right which they gather out of the words of the Law which are The Commons pray the King that he would stablish that from henceforth no more then the old Custom be taken The like reason may be made against the King out of the same words in the same Law for the King in the same Act prayeth the Commons to give him an Imposition upon Woolls for a time above the old Custom but the Record of the Petitions exhibited in Parliament on which these two Laws are made cleareth the objection The first was delivered by the Lords in this form Rot. Par. 13. E. 3. num 5. Les grands volunt that the male toll set on Woolls newly be altogether abated and that the old Custom be held and that they may have this in point of Charter and by inrolment in Parliament This word volunt had been too high for a suit of grace and therefore must be intended of right The Commons Petition in form is somewhat humble but in effect and purpose is rough and stern The words are these Rot. Par. 13. E. 3. num 13. The Commons pray that the male toll of Woolls be taken as it was used in antient time which is now enhanced without the assent of the Commons and grandâ—s as we conceive and that if it be otherwise demanded that every one of the Commons may arrest them without being challenged According to these Petitions the first of these two Laws is by inrolment in Parliament the second is in form of a Charter the first doth express some special commodities The second doth reach generally at all The seventh Law directly touching this point 13. E. 3. stat 2.6.2 is that 14. E. 3. Stat. 2. cap. 1. The King doth grant according to the Great Charter that all Merchants Deniznes and foreigners may without let
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
Allome was none it was rather a Monopoly to Master Smith the Customer of London for the ingrossing of all Allomes into his own hands for which priviledge he gave a voluntary Imposition upon that Commodity It was like the priviledge granted to John Pechey of the sweet Wines by E. 3. for which the Patentee was called into the Parliament House 50. E. 3. and was there punished and his Patent taken away and cancelled What Impositions have been set on in the Kings time I need not express they are set down particularly in the Book 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 book bearing date 28 Julii 6 Jacobi will instruct you sufficiently in that point they be limited to the King his Heirs and Successors which I suppose is the first estate of Free simple of Impositions that ever man read of My eighth and last Observation is upon Tunnage and Poundage given to the King of this Realm upon Wares and Merchandizes exported and imported which is an Imposition by Act of Parliament and as it will appear was given out of the peoples good will as a very gratification to the King to enjoyn 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 years with express caution how the money should be bestowed As towards the defence of the Seas protection of Traffick or some such other publick causes Sometimes special sequestrators made by Act of Parliament by whose hands the money should be delivered as 5. R. 2. cap. 3. in a printed Statute 5. R. 2. Rot. Par. 7. R. 2. n. 13.10 R. 2. n. 12.7 R. 2. n. 12. The Rates that were given were very variable sometimes 2 s. Tunnage and 6 d. Poundage as 7. R. 2. 3 s. Tunnage and 12 d Poundage 10. R. 2. which grants were not to endure the longest of them above a year 18 d. Tunnage 6 d. Poundage in 17. R. 2. 3 s. Tunnage and 12 d. Poundage granted to H. 4. in the thirteenth year of his reign for a certain time in which Statute there is this clause That this aide in time to come should not be taken for an example to charge the Lords and Commons in manner of Subsidy unless 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 between the King and his people in Parliament that he should not from thenceforh nor any of his Successors set on Impositions without assent of Parliament The like Imposition was granted to H. 5. Rot. Par. 1. H. 5. n. 17. in the the first year of his reign for a short time towards the defence of the Realm and safeguard of the Sea upon condition expressed in the Act that the Merchants Denizens and strangers coming into the Realm with their Merchandizes should be well and honestly used and handled paying the said Subsidy 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 year of his reign Rot. Par. 31. H. 6.12 E. 4. c. 3.6 H. 8. c. 12.1 E. 6. c. 13.1 Mar. c. 18.1 Eliz. c. 19.1 Jac. c. 33. had Tunnage and Pound age given him for his life E. 4. had it given him the third year of his reign as it appeareth in a Statute 12. E 4. cap. 3. H. 8. in the sixth year of his reign and all since in the first year of their reigns have had it given them for term of their life and being now so certainly setled do reach further at that from which they are in conscience and honor excluded by this voluntary gratification For can any man give me a reason why the people should give this Imposition of Tunnage and Poundage above the due Custom upon all Commodities if the King by his Prerogative might set on Impositions without assent of Parliament and were not that a weak 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 imploied 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 incumbrances The Statute of Tunnage and Poundage made in our times that are altogether inclined to flattery do yet retain in them certain shews and rumors of those antient Liberties although indeed the substance be lost 1. Jac. c. 33. as in the Statute 1. Jac. cap 32. 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 Highness that all Merchants as well Denizens as strangers coming into this Realm be well and honestly entreated and demeaned for such things whereof Subsidy 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 to be laid upon Merchants besides these given by this Statute and this intention hath been well interpreted by use and practice from the time of E. 3. to the time of Queen 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 main 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 Royal hath the custody of the Havens and Ports of this Island being the very gates of this Kingdom that he in his royal function and office is onely trusted with the keys of these gates that he alone hath power to shut them and to open them when and to whom he in his Princely wisdom shall see good that by the Law of England he may restrain the persons of any from going out of the Land or from coming into it That he may of his own power and discretion prohibit exportation and importation of goods and Merchandizes and out of his prerogative and preheminence the power of imposing as being derivative doth arise and result for Cui quod majus est licet ei quod est minus licitum est So their reason briefly is
Record is cited 2 2 3. P. M. Dier 128 3. Phil. Mar. in my L. Dier fol. 128. B. and the Law there held to be so at that time upon a question moved in the Queens behalf against divers that being beyond the Seas refused to return upon commandment sent unto them to that purpose The same is again for Law confirmed in the Dutchess of Suffolke Dier 2. El. 176. 5 R. 2. c. 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 go without licence except the Lords and other great men of the Realm Merchants and Souldiers So for the Merchants which are the people dealt withal in the business in hand the Common Law remaineth as it was before the Statute and so it was held 12. El. Dier 196. where the case was Dier 12. El. 196. An English Merchant being a Papist went over-sea and being there did settle himself to remain there for the enjoying the freedom of his conscience It was moved here in England that his going without licence should be a contempt because he 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 go out of the Kingdom when he would and therefore the secret intent of his going was not to be enquired after Sed lex inspicit quod verisimilius 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 Jac. c. 1 4. Jac. cap. 1. And all men whatsoever are now at liberty by the Common Law to pass out of the Realm There is onely against this inconvenient liberty a Proclamation dated at Westminster Proclam 9. Jul. 5. Jac. 9. Jul 5. Jac. 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 then 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 be wished that some firm Law might be 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 strenthened and confirmed by many notable Laws before recited 14. E. 3. st 2. c. 2. 15. E. 3. st 2. c. 5. 18. E. 3. st 1. c. 3. as 14. E. 2. stat 2. cap. 2. 15. E. 3 stat 2. cap. 5. 18 E. 3. stat 1. cap. 3. and divers other and therefore though it be admitted that the King may restrain persons and goods yet it may well be denied that he hath power of himself alone without assent of Parliament simply and indefinitely to restrain all traffique in general or to shut up all the Havens and Ports and to bar the vent and issuing of Wares and Merchandizes of the whole Kingdom as appeareth plainly that this hath been done this three hundred years or near thereabouts by Act of Parliament onely and that the Kingdom of England made this matter of Traffique so tender a case to deal in as that it hath ever held it a matter fit for the consultation of the great Council of the Kingdom and for no other In 11. E. 3. The exportation of Woolls was prohibited by Act of Parliament 11. E. 3. cap. 1. in which Statute there was this clause Untill that by the King and his Council it be thereof otherwise provided which power so given to the King to be used for the good of the Commonwealth gave occasion to him to abuse it to his profit and commodity by giving licences of transportation to all that would give forty shillings upon a Sack of Wooll above the due Custom This appeareth in the Records in the Exchequer 13. H. 3. R. Thes rot 2. 13. E 3. Rot. 2 Rem Thes I will describe the Record that you may perceive the ground of it the better Rex collectoribus Custumae in portu magnae Jermouth salutem Quia concessiâ—…us dilecto fideli nostro Hugoni de Wriothsley quod ipse viginti septem saccos lanae dimid de lanis suis propriis in portu praedicto carriare eas usque Antwerpe ad stapulans nostram ibidem ducere possit solvendo ibidem dilecto Clerico nostro Willielmo de Northwel custodi guarderoba nostrae 40s pro quolibet sacco pro custuma subsidio inde nobis debitis c. vobis mandamus quod praedict Hugon dictos viginti septem saccos lanae dimid in portu praedicto carriaere permittatis c. And another the same year Rex collectoribus custumae 13. E. 3. rot 12. R. Thes c. Cum nuper ordinaverimus quod passagium lanarum c. apertum existeret quod sigillum nostrum quod dicitur Coket quod prius claudi sub serra custodiri mandavimus apeâ—iretur apertum teneretur ideo vobis mandavimus quod sigillum praedictum in portu praedicto aperiri apertum teneri faciatis omnes illos qui hujusmodi lanas carriare ducere veline permittatis receptis prius ab iisdem viz de mercatoribus amp aliis indigenis 40 s. de quolibet sacco lanae Divers other such sales of Traffick occasioned by this Parliamentary restraint were made between 11. 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. st 2. c. 2. 15. E. 3. c. 5. st 2. 14 E. 3. stat 2. c. 2. 15. E. 3. cap. 5. stat 2. and this forty 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. E. 3. c. 21. st 1. st 2. c. 1. 14. 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 Traffick was done by Act of Parliament T will give one instance in the reign of every King 5. R. 2. c. 2. st 2. 5. R. 2. cap. 2. stat 2. For the passage of Wooll Wooll-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 H. 5. cap. 6 stat 2. For the restraint of Staple Commodities to places certain and for the Traffique of the Merchants of the west 27. H. 6. c. 1. 27. H. 6.
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
manifest and acknowledged by all yet if his own be detained from him by the King he hath no other Writ or Action to recover but a meer petition Supplicat Celsitudini c. So as if the word Petition to the King infer defect of right in the Petitioner there can be no case where the King can do the Subject wrong A second Objection out of the body of the Law is that the King doth release that imposition of forty shillings which implieth a right setled in him But to this I answer That it is no necessary inference wheresoever a release of right is for it is used for claim onely or where possession was though wrongful and that in majorem securitatem quia abundans cautela non nocet but in this case a Release was very expedient and for some respect necessary to extinguish a right the King had in this imposition against the Merchants themselves For this imposition though it were not set on by assent of Parliament yet was it not set on by the Kings absolute power but was granted to him by the Merchants themselves who were to be charged with it so the grievance was the violation of the right of the people in setting it on without their assent in Parliament not the damage that grew by it for that did onely touch the Merchants who could not justly complain thereof because it was their own act and grant This appeareth by two notable Records 22. E. 1. Origen in Scac. Rem Thes the one 22. E. 1. A Writ to the Treasurer and Barons of the Exchequer in Ireland to discharge the Merchants there of impositions on Woolls in which the King reciteth Licet in subsidium Guerrae Regis pro recuperandâ terrâ Vasconià mercatores gratanter concesserunt per biennium vel triennium si tantum duravit Guerra de sacco lanae c. The other Record is the Writ of publication In 26. E. 1. mem Scac. Rem Thes that in 26. E. 1. went out after the Statute of 25. in which Writ the King reciteth thus Cum nos ad instantiam Communitatis Regni nostri remiserimus custumam 40 s. nobis nuper in subsidium Guerrae noctrae contra Regem Franciae concessum c. A third Objection made out of the body of the Statute by those which have argued on the contrary part was upon these words that the King would take no such things without common consent by which words they conceived the intention of the Law was limited precisely to impositions set upon Wooll and not on other commodities which are not such things but other and for this they alledge this reason That it was not probable when the complaint was only for an imposition on Wooll that the King would give a remedy for other things not spoken of for which there was no cause of complaint To this a full answer is given many ways First out of the Saving in the Act which extends to other things then to Wooll as to Wooll-fells and Leather therefore the purview of the Act by these words such things extendeth to more then the Wooll for there needs no saving but for that which is contained in the purview Secondly The reason alledged that no more by likelihood should be remedied but for Wooll because onely that was complained of is false For the complaint of the Commons was not onely for this imposition on Wooll but divers other burthens and grievances of the like nature And this will appear if we compare all the parts of the Law the one with the other For this Law is in the form of a Charter written in French and beginneth Edward by the Grace of God c. and is an entire grant and Instrument without Fractions Sections and Chapters as it is now printed and containeth in it next before this last clause concerning the impositions on Woolls which in the printed Book is Cap. 6. That the King for no business from thenceforth will take no manner of aids mises nor prises but by common assent This word mises in French signifieth properly impositions derived of the word mitto in Latine to put so the word such things is a conclusion to all the premises and hath relation not onely to that which is made Cap. 7. by the Printer and concerneth the male toll of Woolls but to that precedent which is all other aids impositions and takings The Writ of publication of this Statute sent out to all parts in 26. E. 1. Mem. Scac. in 26. E. 1. Rem Thes maketh plain this construction the words of it are Concedentes quod custumam illam vel aliam sine voluntate vel communi assensu non capiamus These words vel aliam are indefinite and extend to any other whatsoever besides that of Woolls The Writ doth further discharge Merchants for the commodities of Wooll-fells and Leather which are not complained of by name in the Statute and therefore the Law was intended to other impositions as well as to those upon Woolls The Objedion made out of matter subsequent to the Statute was this that notwithstanding this Law of 25 E. 1. impositions that before the Statute had been set on other Merchandize then Woolls were still answered after the Statute and for instance of this was alledged 16. E. 1. Orig. R. Thes that whereas 16. E. 1. an imposition of 40 s. the Tun was set upon Wines brought into the Kingdom an accompt was made of this in the Exchequer in 26 E. 1. as by the Records there appeareth by which it seemeth that the Law of 25. E. 1 was not taken to extend to Wines and such other Commodities other then Woolls named in the Statute It is true such an imposition was se◠on by E. 1. in the sixteenth year of his reign 25 26 E. 1. de compt T. Mich. R. Thes and an accompt made for it 25 and 26. But it appeareth by the Record of the accompt that it was made for the time ended before the Statute made As from the eighteenth of May 16 E 1. to 23 Jul. 22. E. 1. But there is no Record that ever any accompt was made for any money received for that imposition for the time after the Statute made neither was it very willingly answered before for it appeareth by the Record that it was ten years after the setting of it The third Statute alledged on the behalf of the Subject is that 34. E. 1. c. 1. the words are these 34. E. 1. cap. 1. No tallage or aid shall be taken or levied by us or our heirs in our Realm without the good will and assent of our Arch-bishops Bishops Earls Barons Knights Burgesses and other freemen of the Land Against this was objected That this Statute was intended onely upon the Taxes and impositions of things The word Auxilium makes it clear that it is to be intended further then of things within the Realm for Tallagium is commonly intended of Domestical Taxes but
ever claimed or so much as ever named his right or prerogative which no doubt would have been done if it had been thought due but gave satisfaction to the complaint by one of these three waies Either by discharging them quite and making some good Law against them Secondly by intreating the people to hold them some short time by their favor Thirdly by waving his present possession and taking that of their gift by Act of Parliament as an aide which he had set on by his absolute power as an Imposition Instances of the first 25. E 1. 25. E. 1. ca. 7. the Impositions of Wools taken off and a Law made against it Rot. parl 38. E. 3. n. 26. and the King undertook for him and his successors to doe so no more 38. E. 3. cap. 2. 38 E. 3. 26. the Imposition of three shillings foure pence on a sacke of Wooll put off upon complaint 45. E. 3. cap. 4. and a Law made against it 18. E. 3. cap. 10. 11. R. 38 E. 3. ca. 2. the like Statute 45 ε. 3. c. 4. upon a com plaint of an Imposition on Wools made in Parliament 18. E. 3. cap. 3. l. 1 45. e. 3. n. 42. Rot. Parl. Instances of the second 21. E. 3. nu 11 a petition upon an Imposition of 2. s. upon a sacke of Weol 21. E. 3. n. 11. R. Parl. 2. s upon a tunne of VVine 25. E. 3. n. 22. rot Parl. and fix pence upon aver de pois all discharged presently saving the two shillings upon a sacke of Wool and for that intreated that it might stay till Easter following and so it did and was then taken away Instance of the third 25 E. 3 nu 22 the Commons made petition against an imposition of fourty shillings upon a sack of Wool granted to the King by the Merthants shewing that they ought not to be bound by their act The King did not claime right or justice but because his warres were great upon his request had it granted unto him for two yeeres by Act of Parliament and pretended no title of Prerogative neither was it ever spoken of My third observation is that our Kings have acknowledged that it is not their right Orig. in Scau 31. E. 1. R. Thes E. 1 in his Writs he sent to the Officers of his parts to levie three pence on the pound over the old custome of the Denizons as well as of the Aliens and to suffer the Denizons to enjoy those privileges the Aliens did enjoy by the payment of the encrease of Custome doth give this direction expresly That they should net cake it of Denizons against their will The words of the Record express it very fully Cum mercatores extranei alienigenae pro quibusdam libertatibus eis per nos concessis priscis nostris quibuscunque remissis nobis de bonis merchandisis suis quibuscunque infra regnum potestatem nostram adducend ulira antiquas custumus dare concesserint praestationes custumas subscriptas viz and so setteth down the increases and amongst the rest this three pence upon the pound and so proceedeth Ac quidam mercatores de regno nostro potestate nostra ut ipsis dictis libertatibus immunitatibus uti gaudere quod de prisis nostris quieti esse possint praestationes custumas hujusmodi de bonis merchandisis suis nobis solvere velint ut accepimus assignavimus vos c. ad custumas praestationis praedictas de mercatoribus de regno potestate nostra colligend qui eas gratanter sine coercione solvere voluerint Ita tamen quod aliquem mercatorem de dicto regno potestate nostra ad praestationes custumas hujusmodi nobis invito solvend nallatenus distringatis Surely if E. I. had claimed the prerogative of imposing he would never have given these cautions in the requiring of that which he had taken to be his due as that they should not exact it of any of his subjects that were not willing to pay it nor trouble nor distraine them for it In the twelfth yeere of E. 3. we finde the Record of certaine letters written from the King being then at Barwick in the Stottish Warres Rot. Alem. 12. E. 3. dorm 21. in turr unto the Archbishop of Canterburie in which letters the King seemeth to have a great confidence in the devotion of the Archbishop and therefore earnestly intreateth him to further his enterprises with his prayers to God and then addeth further Ad hoc pater cum populus regni nostri variis oneribus tallagiis impositionibus bactenus praegravetur quod dolenter referimus sed inevitabili necessitate compulsi de eisdem oneribus ipsum aahus relevare non valemus dictum populum ut tantam necessitatem nostram humiliter benigne patiatur caritative sustineat priorem quam penes nos concepit de cetere instanter in orationibus eleemosynis suis oneribus praedicts quae non ex malitia vel presumptione voluntaria ipsum gravant non obstantibus exhibeant caritatem indulgentiam muneribus aliis modis quibus secundum Deum videbitis piis exhortationibus inducatis nos peâ—es eundem excusetis speramus namque per Dei gratiam cujus manus cunctis indigentibus sola sufficiens largistua com probatur beneficiis compensatius dictum populum visitare consolari pro loco tempore opportunis The principall thing I note out of this Record upon the very point of this my third observation is that the King intending to excuse himself of the burthens by him laid on the people and to avoid the blemish of wrong and injustice in saying thereon saith they were not onera ex presumtione voluntaria that is burthens that he presumed to lay on at his owne will whereby he condemneth impositions without assent of Paliament which are onera ex voluntate Regis to proceed of presumption which doth clearly exclude clame of right and disproveth the lawfulness of the Act. But there are divers other notable passages in the Record worthy our marking As out of the word praegravantur used by the King wee may gather hee did accompt these Impositions a grievous burden to his people which sheweth his owne pity of them He saith further Dolentes râ—ferimus shewing his griefe and remorse at it inevitabili necessitate compulsi he did it constrained by unavoidable necessity shewing he was forced to it against his will by that which violateth and breaketh all law which inferreth he would not maintaine his action by law Adhuc relevare non valemus this insinuates he would ease them in good time caritatem exhiberent they should afford him charity in the bearing of them as if so be in point of justice or right they need not Penes eundem excusetis the Bishop should excuse him to the people By this he did clearly leave the point of justification
cap. 1. that is enacted in parliament which is contained in the Proclamation 17. H. 6. cited for a president that is because the Duke of Burgundy made an Ordinance whereby the Traffick of the English Nation was restrained that therefore the Englishment should not traffick with the Subjects of the Duke of Burgundy The same thing enacted upon the like occasion 4 E. 4. c. 1 19. H. 7. cap. 21. 4. E. 4. c. 1. 19. H. 7. c. 21. The importation of divers Commodities forbidden as being prejudicial to the Manufactures within the Realm 6. H. 8. cap. 12. 6 H. 8. cap. 12. The exportation of Norfolk Wools out of the Realm forbidden 26. H. 8 cap. 10. 26. H. 8. cap. 10. Power is given to the King to order and dispose of the Traffick of Merchants at his pleasure and the reason is given because otherwise the Leagues and Amities with foreign Princes might be impeached by reason of restraint made by divers statutes then standing on foot whereby it appeareth that it was not then taken to be Law that the King had an absolute power in himself to order and dispose of the course of Traffick without help of a Statute 2 E. 6. c. 9 2. E. 6. cap. 9. Exportation of Leather restrained 1 2. Ph. Mar. 1 2. P. M.c. 5. The exportation of Herring Butter Cheese and other Victuals forbidden 18. Eliz. cap. 8. The exportation of Tallow 18. El. c. 8 Raw Hides Leather So in all times no use of Proclamations in matters of this nature but Acts of Parliament still procured Wherefore in mine opinion it behoveth them that do so earnestly urge this argument the King may restrain Traffick therefore may impose to prove better then they have done that the King may restrain Traffick of his own absolute power For as the natural policy and constitution of our Commonwealth is we may better say that is Law which is de more gentis then that which floweth from the reason of any man guided by his general notion and apprehension of power regal in genere not in individuo The last assault made against the right of the Kingdom was an Objection grounded upon policy and matter of State as t he it may so fall out that an Imposition may be set by a foreign Prince that may wring our people in which case the counterpoise is to set on the like here upon the Subjects of that Prince which policy if it be not speedily execucuted but stayed until a Parliament may in the mean time prove vain and idle and much damage may be sustained that cannot afterwards be remedied This strain of policy maketh nothing to the point of right our rule is in this plain Commonwealth of ours Oportet neminem esse sapientiorem legibus If there be an inconvenience it is fitter to have it removed by a lawful means then by an unlawful But this is rather a mischief then an inconvenience that is a prejudice in present of some few but not hurtful to the Commonwealth And it is more tolerable to suffer an hurt to some few for a short time then to give way to the breach and violation of the right of the whole Nation For that is the true inconvenience neither need it be so difficult or tedious to have the consent of the Parliament if they were held as they ought or might be but our surest guide in this will be the example of our Ancestors in this very case and that in the time of one of the most politick Princes that ever reigned in this Kingdom 7. H. 7. cap. 7. 7. H. 7. cap. 7. you shall finde an Act of Parliament in which it was recited that the Venetians had set upon the English Merchants that laded Malmeseys at Candy four duckets of gold upon a But which in sterling is eighteen shillings the But. It was therefore enacted that every Merchant stranger that brought Malmsey into this Kingdom should pay eighteen shillings the But over and above the due Custom used this Imposition to endure until they of Venice had set aside that of four duckets the But upon the Englishmen Much hath been learnedly uttered upon this argument in the maintenance of the peoples right and in answering that which hath been pressed on the contrary but my meaning is not to express in this Disconrse all that hath or may be said on either side but onely to make a remembrance somewhat larger of that which I my self offered as my symbolum towards the making up of this great rekoning of the Commonwealth which if it be not well audited may in time cost the Subjects of England very dear My hope is of others that labored very worthily in this business that they will not suffer their pains to die and therefore I have forborn to enter into their Province I will end with that saying of that true and honest Counsellor Philip Comines in his fifth book the 18. chapter Ph. Com. l. 5 c. 18. That it is more honorable for a King to say I have so faithful and obedient Subjects that they deny me nothing I demand then to say I levy what me list and I have priviledges so to do After the Kings Right to Impose had been thorowly examined in Parliament and there determined not to be in him alone without assent of Parliament among other Petitions of grievance given unto his Majesty this hereafter was concerning Impositions THe policy and constitution of this your Majesties Kingdom appropriates unto the Kings of this Realm with assent of Parliament as well the soveraign power of making Laws as that of taxing or imposing upon the Subjects Goods or Merchandizes wherein they justly have such a propriety as may not without their consent be altered or changed This is the cause that the people of this Kingdom as they have ever shewed themselves faithful and loving to their Kings and ready to aid them in all their just occasions with voluntary contributions so have they been ever careful to preserve their own Liberties and Rights when any thing hath been come to prejudice or impeach the same And therefore when their Princes either occasioned by War or by their over-great bounty or by any other necessity have without consent of Parliament set on Impositions either within the Land or upon commodities exported or imported by the Merchants they have in open Parliament complained of it in that it was done without their consents and thereupon never failed to obtain a speedy and full redress without any claim made by the Kings of any Power or Prerogative in that point And though the Law of Propriety be originally and carefully preserved by the common Laws of this Realm which are as antient as the Kingdom it self yet those famous Kings for the better contentment and assurance of their loving Subjects agreed that this old fundamental Right should be further declared and established by Act of Parliament wherein it is provided that no