Customes 3 E. 2. Claus. memb. 16. and after that by an Ordinance made 5 Edw. 2. utterly to repeal that Charter and to abloish all other Impositions raised or levied since the coronation of his Father Ed. 1. except the customes of the demi mark not withstanding after that again Anno 11. of his Reign when he wanted Money for his Expedition into Scotland exquirentes vias saith he in his Writ to the collectors of his customes at London Rot. fin memb. 12. in Archivis turris quibus possemus pecuniam habere commodius decentius tandem de consilio advisamento quorundam mercatorum inveniemus subscriptum which was that he should receive by way of loan forsooth which never was repaid a greater increase of custom upon all merchandizes imported and exported for it is expressed in the VVrit that praeter incrementum de lanis coriis pellibus lanutis which was a third part more than the demi mark viz. twenty shillings for every Noble the King was to receive for every coloured cloth worth three pound sterling a Noble for every other cloath worth fourty shillings four shillings for every peece of Scarlet a Mark for every Tun of VVine five shillings for all Forreign commodities called Averdepois two shillings the pound all which sums of Mony he commandeth the Collectors of his customes to collect to his use upon their Merchandizes which levy or collection though it bear the name of a loan being not made by authority of Parliament nor with the consent of the whole cominalty but taken up by the Kings VVrit onely was nothing else but an Imposition laid upon Merchandizes by the Kings Prerogative CHAP. XVI Of the Impositions laid and levied upon Merchandizes by King Edward 3. KIng Edward the third reigned a full Jubilee of years for he dyed in the fiftieth year of his reign and during all this time as there lay upon him a continuall charge for the continuance of his VVars so was he continually supplied with his customs and Impositions which he had laid upon Merchandizes whereof he was so great a husband by reason of his good husbandryspent such huge sums of Money as there went a report in those dayes that Raimundus Lullius the famous Alchimist did make that Elixer for him whereas his improving of those duties which were paid for Merchandizes was the true Philosophers Stone which did enrich him and enable him to spend so many Millions in his VVars in France In the first year of his reign by his wit only without Act of Parliament he gave new life to Charta Mercatoria made by Edw. 1. and repealed by Edw. 2. or rather by unruly Barons for the words of the Writ are That the customes and duties payable by the Charter praetextu ordinationum per quosdam magnates in regno nostro factos ad tempus aliquod cessarunt jam adnullatis diciis ordinationibus colligi debent levari sicut tempore dicti Avi nostri c. 1 Edw. 1. Rot. fin memb. 39. in Archivis turris Afterwards the Records of this Kings time do plentifully declare That he by vertue of his Prerogative without Act of Parliament laid many great Impositions and raised extraordinary profit upon Merchandizes though not alwayes after one manner yet all the means he used may be reduced unto three kinds Sometimes he did impose certain rates or sums of Money upon Merchandizes as fourty shillings upon a Sack of Wooll with a ratable proportion upon other commodities for levying whereof hee only sent out his Writs to the Collectors of his Customes in every Port and this kind of Imposition being of the nature of the Impositions now in question was more usuall and frequent than any other in this Kings reign as appeareth by sundry Records in the Exchequer and in the Tower of London 17 E. 3. Rot. 308. in Sccio Angliae 21 E. 3. Rot. Parliament numb. 11 in Arch. turris 24 F. 3. Rot. 12. Sccio Angliae 25 E. 3. Rot. Parliament 11 22. in Arch. turris 27 E. 3. Rot. 7. in Sccio Angliae 30 E. 3. Rot. 10. Sccio Angliae 38 E. 3. Rot. Parliament numb. 26. in Arch. turris 40 E. 3. Rot. 7 Sccio Angliae 50 E. 3. Rot. Parliament numb. 163 in Arch. turris At other times he sent out Commissions to take up great quantities of Wooll and other commodities at a low price set by himself and transported the same beyond the Seas where he made the best profit thereof for payment of the wages of his Army there as appeareth by a speciall Record in the Tower 12 E. 3. Rot. Almaniae pars 1. numb. 3. in dorso These taking prizes of English Merchandizes are the first I find in any Record for the Kings provision of Houshold is of another nature But the King took these Woolls in point of Prerogative as his Predecessors were wont to take prizes of all Forein commodities untill King E. 1. did remit all prizes to Merchant Strangers by Charta Mercatoria as is before expressed and also such of English Merchants as would pay the customes restrained by that Charter were offered the like immunition from prizes 31 Ed. 3. Rot. Parliament numb. 24. But our English Merchants refused the benefit of that Charter and therefore the King it seemeth was at liberty to take prizes of them as well as Strangers The King did many times shut up all the Ports and stop all Trade and then granted licences to all particular persons to transport Wool and other commodities for which licences he took fourty shillings sometimes fifty shillings for a Sack of Wool and the like rate for other Merchandizes and this is manifest by these Records 13 Ed. 3. Rot. 2. in Sccio Angliae 14 Edw. 3. Rot. Parliament in Arch. Turris Thus did this warlike and politique Prince King Edw. 3. by his Prerogative without Act of Parliament lay sundry Impositions and charges upon all sorts of Merchandizes and although upon Petition of his Subjects in Parliament when they granted him other Aids and Subsidies of greater value than these his Impositions he did many times remit and release those Impositions yet did he often times renew the same or impose the like again when the Aide or Subsidy granted in recompence was spent as shall be shew'd more particularly when I com to answer the Objections which have been against His Majesties rightfull prerogative in laying Impositions upon Merchandizes CHAP. XVII Of the Profits raised unto the Crown out of Merchandizes during the reigns of several Kings who succeeded K. Edw. 3. untill the reign of Queen Mary TRue it is that during the reign of these Princes we finde no Impositions directly set upon Merchandizes by their absolute power or prerogative but they did not forbear to lay Impositions directly for that they wanted right so to doe or because they doubted of their right in that behalf for they well knew
or Vessell of Wine vented by others was also fined and imprisoned and made satisfaction to the parties grieved 50 Edw. 3. Rot. Parli numb. 33. and more than this a Bill was preferred by the Commons in this Parliament that such as should set new Impositions should have Judgement of life and member 50 Edw. 3 Rot. Parliament num 191. in Arch. Turris These examples strook such a terrour at that time as from the time of King Edw. 3. till the Reign of Queen Mary being a hundred and fifty years and upwards there was no man found that would advise the King of England to set or levie any Impositions upon Merchandizes by Prerogative and therefore we find no Imposition laid upō Merchandizes all that space of time Queen Mary indeed began to set on foot this Prerogative again and laid an Imposition of three shillings and eight pence upon every Cloth transported out of the Kingdome but what doth the Lord Dyer report 1 Eliz. f.165 the Merchants of London saith he found themselves greatly grieved and made exclamation and sute to Queen Elizabeth to be disburthened of that Imposition because it was not granted by Parliament but assessed by Queen Mary her absolute power these frequent Petitions complaints and exclamations these suspensions and remitalls of Impositions are good arguments say they against the right of this Prerogative CHAP. XXI The Answer to the third Objection THis Objection consisteth of several parts and shall recieve an Answer consisting of divers parts the first part of this answer King Edw. 1. being a prudent and resolute Prince did not onely impose the three pence upon the pound upon Merchant Strangers by his Charta Mercatoria but justified and maintained that Imposition during his life True it is that after his death King Edw. 2. it was repealed as is before objected but whose Act was this by whom was this Ordinance made which did repeal this Charter not by the King and his Parliament but by certain rebellious Barons who took upon them the Government of the Realm and called themselves Ordainers Wherefore King Edw. 3. in the first year of his Reign did revive that Charter and commanded by his Writ that the Customes and Duties therein contained should be collected and levied to his use He maketh mention of these Ordinances of 5 Edw. 2. and saith the same were made per quosdā Magnates and not by the King as appeareth by the Record 1 Edw. 3. Rot. fin memb. 30. in Arch. Turris which in another place before I have recited by which Record it likewise appeareth that those Ordinances 5 Edw. 2. were before that time repealed and made void and therefore that which was done in that time of that unfortunate Prince over-ruled by his unruly Barons is not to be urged and used as an example especially since they that urge this repeal of Charta Mercatoria might if they would find any thing which makes against their contradicting humour find in the said Roll of Ordinance made in 5 Edw. 2. divers Arcles wherein those Ordainers did wrong and wound the Prerogative in matter of greater importance than in the repeal of that Charter for they might have found among the same Ordinances these things ordained First that the King should not make gifts of Lands Rents Franhises Wards or Escheats without the consent of the Ordainers Secondly that all gifts and grants formerly made by the King not only of Land and other things in England but in Gasconie Ireland and Scotland should be resumed and made void Thirdly that the King should not depart out of the Realm nor make Warre without the assent of his Barons and of his Parliament That because the King was misguided and counselled by evill Counsellers it was ordained that all his Counsel should be renewed and new Officers and Servants appointed for him These traiterous Ordinances were made against the King at that time and therefore it is a shame that any part of these Ordinances should be made an argument against the right of the Crown in laying Impositions upon Merchandizes for with the same reasons they might argue the King had no right to grant his Lands Rents Wards or Escheats that he might not go out of the Realm nor make Warre nor choose his own Counsellers or Servants without an Act of Parliament and it is manifest that those factious Barons did cause the King to forego the said Impositions rather ad faciendum populum and to gratifie the Cōmons and to draw them to their party than for the good of the Cōmon-wealth for if they had been good Counsellers they would have done as the Senate of Rome did when Nero in a glorious humor to please the people would needs have discharged at once all Customes and Impositions the Senate gave him thanks for his favour towards the people but utterly diswaded him so to doe telling him that in so doing he would ruine the state of the Common-wealth for indeed no Common-wealth can stand without these duties they are Nervi they are succus sanguis Reipublicae and therefore no Cōmon-wealth was ever without them but the imaginary Common-wealths of Plato and Sir Thomas More for they doe both agree for in the Common-wealths of which they dream there was nothing to be paid for Merchandizes exported and imported But to return to King Edw. 2. what followed upon the Repeal of Charta Mercatoria and the discharge of Impositions which King Edw. 1. established was not that poor Prince King Edw. 2. enforced to take up great sums of money of his Merchants by way of loan which he never repaid again 11 Edw. 2. Rot. fin m. 12. whereby the Merchants received a greater detriment than if they had made a double payment of Customes and Impositions which the King had discharged and therefore the example of this weak Prince doth make but a weak argument against the right of the Crown in laying Impositions upon Merchandizes and here I think it fit to observe that they were all wise and worthy Princes which are spoken of in former ages to have laid Impositions upon Merchandizes namely Solomon in the Holy Land Iulius Caesar and Augustus Caesar in the Empire King Ed. 1. and King Ed. 3. in England but on the other part they which released all Customes and Impositions were but weak Princes and destroyed themselves and the Common-wealth wherein they lived namely Nero in the Empire of Rome King Edw. 2 and King Rich. 2. with us and truly by the rule of our Common Law the King cannot if he would release all Subsides and Aids of his Subjects that they should be for ever discharged of all Subsidies to be given to the Crown such a grant were made void and against the Law Secondly touching the Petitions exhibited to the King in sundry Parliaments against Impositions laid by that King upon Merchandizes upon view of the Record wherein these Petitions are contained with
touching the repeal of Charta Mercatoria by King Edw. 2 and the remit all of divers Impositions by King Edw. 3 upon sundry Petitions of the Commons in Parliament and the punishment of divers Persons in Parliament for procuring Impositions to be set up 106 CHAP. XXVII The Answer to the third Objection 110 CHAP. XXVIII The fourth Objection that the Prerogative is bound or taken away by divers Acts of Parliament 129 CHAP. XXIX The Answer to the fourth Objection 131 CHAP. XXX The fifth Objection that Tonnage and Poundage were never taken but when the same was granted by Parliament 140 CHAP. XXXI The Answer to the fifth Objection 141 CHAP. XXXII The Conclusion 146 CHAP. XXXIII A Comparison of the Impositions set and taken in England by the Kings Prerogative with the Exceptions and Gabells in Forein States and Kingdoms whereby it will appear that the Subjects of the Crown of England do not bear so heavy a burthen by many degrees as the Subjects of other Nations do bear in this kind 147 AN ARGUMENT UP ON The Question of Imposition digested and divided into sundrie Chapters by one of His Majesties learned Counsel in IRELAND CHAP. I. The Exposition and meaning of certain words which do shew the true state of the Question THe Question it self is no more than this Whether the Impositions which the King â—f England hath laid and levied upon Merchandize by vertue of his Prerogative onely without Act of Parliament be lawful or warranted by the Law of England By the word Imposition we mean only such rates or sums of money as the King by Letters Patents under the Great Seal of England or Ireland hath set upon Merchandizes imported and exported and commanded the same to be paid and levied to His Majesties use over and above the Customes and Subsidies formerly due and payable for the same Merchandizes By the word Merchandizes we mean only such goods or Merchandizes as are transported over the Seas from one Realm or Dominion unto another to be sold or exchanged for reasonable gain or profit for upon the ingate or outgate of Commodities so crossing the Seas only Customes Subsidies and Impositions for Merchandizes are paid and taken and not for any Commodities carried too and fro by Sea and Land within one and the same Realm and Dominion By the Law of England we understand not only our customary Common Law and our Statutes of England which are Native and peculiar to our Nation only but such other Laws also as be common to other Nations as well as us have been received and used time out of mind by the Kings and people of England in divers cases and by such ancient usage are become the Lawes of England in such cases namely the generall Law of Nations and the Law-Merchant which is a branch of the Law the Imperial or Civil Law the Common or Ecclesiastical Law every of which Laws so far forth as the same have been received and used in England time out of mind may properly be said to be the Laws of England CHAP. II. Of the general Law of Nations or Jus Gentium and the force thereof in all Kingdoms that traffique and commerce is a principal subject of that Law and that it giveth power unto all Kings to take Customes and Impositions upon Merchandizes and that the Crown of England hath many Prerogatives annexed to it by the Law of Nations of which our Common Law taketh notice and doth admit and approve the same JUs Gentium or the generall Law of Nations is of equal force in all Kingdoms for all Kingdoms had their beginning by the Law of Nations therefore it standeth with good reason that the Law of Nations should be of force and of like force in all Kingdoms and for this cause in the Realms subject to the Crown of England the Law of Nations also is in force in such cases especially wherein the King himself or his Subjects have correspondence or commerce with other Nations who are not bound in those cases by the Municipall Laws of England Omnes populi saith Justinian qui legibus moribus reguntur partim suo proprio partim coÌ„muni omnium hominum jure utuntur nam quod quisque populus ipse sibi Ius constituit id ipsius proprium Civitatis est vocaturque jus Civile quod vero naturalis ratio inter omnes homines constituit id apud omnes homines plerumque custoditur vocaturque Jus gentium quasi quo jure omnes gentes utuntur and in the same place it is said Ius Gentium omni hominum generi coÌ„mune est exhoc Iure Gentium omnes pene contractus introducti sunt ut emptio venditio locatio conductio societas depositum mutuum c. And with this agreeth our Doctor and Student lib. 1. cap. 2. where it is said that Trade and Traffique is by the Law of Nations so that Commerce Trade Traffique for Merchandize between the people of several Nations and Kingdoms is a principal subject of the Law of Nations and therefore to that question that hath been made in England Whether the ancient Customes payable for Merchandizes did first grow due by our customary Common Law or Statute Law of England Why may I not answer that neither the Customary Law nor the Statute Law of England but the generall Law of Nations did first give these duties unto the Crown of England For as the Law of Nations was before Kings for Kings were made by the Law of Nations Ex jure Gentium Reges originem traxerunt saith Baldus So Kings were no sooner made by the Law of Nations but presently the same Law cum creatus fuerit Rex ei omnia regalia conceduntur competit omnibus Regibus jus imponendi quantum habet Begalia saith Baldus Vectigalia introduct a sunt à jure c. which is the Law of Nature or Nations Ideo non otiosased favoralia saith another Doctor did annex this Prerogative to their several Crowns Vectigalorigine ipsa jus Caesarum Regum partimoniale est saith another Inhaeret Sceptro saith another and therefore when our ancient British Kings took up Customes for Merchandizes transported into France as Strabo writeth Britanni vectigalia tollebant gravia earum rerum quas brevi trajectu in Galliam importabant Shall we presume they did it by Act of Parliament no for doubtlesse they did it by vertue of this Prerogative given unto them by the Law of Nations for Kings upon their first institution did greater things than this by their Prerogative without the consent of the people Vetusissima coronae jura ex singulari Regum decreto primitus orta saith a learned Doctor and at first saith Iustinian Arbitria Regum prolegibus fuere and so saith Halicarnassus lib. 3. Cicero offic. lib. 2. And truly as Customes and Impositions taken upon importations of Merchandizes being most properly called Vectigalia à mercibm evectis
loss which certain Merchants of London had sustained by an arrest made of their goods made by the Countesse of Flanders doth grant unto them all the Merchandizes whereof the Flemings were possest in England Rot. Pa. 3 E.1.m. 19. in Archivis turris London Whereupon the Lord Mayor of London did seize so much goods of the Flemish Merchants as amounted to 730. Marks and delivered the same to Thomas Debassing and other Merchants who had suffered loss by that arrest and in the same Roll of 3 Ed. 1. the Lord Mayor of London and Bailiffs of Southampton are commanded by the Kings Writ Quodomnes Mercatores Londienses ad partes Angliae accedentes per bona catalla sua distrin guantur sed in legem mercatoriā consueti dinem Regni ad satisfaciendum Mercatoribus Florentinis de pecuniis ipfi mutuo tradiderunt Willielmo Episcopo Leodiensi Here we see that Lex mercatoria which doth apparently differ from the ordinary Cōmon Law of this Kingdom is said to be Consuetudo Regni And lastly in a sute at the Common Law no mans Writing can be pleaded against him as his Act and Deed unlesse the same be sealed and delivered but in a sute between Merchants Bills of Lading Bills of Exchange being but Tickets without Seals Letters of advice and credences Policies of assurance Assignations of debts all which are of no force at the Common Law are of good credit and force by the Law Merchant Thus we see how Merchandizes do differ from other goods and Chattles in the eye of the Law and how the Law Merchant doth differ from the common Law of England and how the Common Law doth admit and allow thereof Our Parliaments likewise have not onely made extraordinary provision for the more speedy recovery of Debts due unto Merchants for their Merchandizes than is provided by our Common Law as appeareth by the Statute of Acton Burnell made the 11 Ed. 1. and the Statute de Mercatoribus made 13 Ed. 1. but also have course of proceedings in cases of Merchants differing from the course of our Common Law for by the Statute of 27 Ed. 3.cap 2 it is declared that the proceedings in causes of Merchants shall be from day to day and hour to hour according to the Law of the Staple and not according to the course of the Common Law and by another Article in the same Parliament that all Merchants comming to the Staple should be ruled according to the Law of Merchants touching all things comming to the Staple and not by the Common Law of the Land and by another Article that neither of the Benches nor any ordinary Judges of the Common Law shall have any Jurisdiction in those cases and lastly that the Law of Marque and Reprisall which is a branch of the Law Merchant shall be used as it had been used in times past So as the Parliament doth but declare the ancient Law and doth not introduce a new Law in those cases Untill I understood this difference between Merchandizes other goods and between the Law Merchant and the Common law of England I confess I did not a little marvell England being so rich and entertaining Traffique with all Nations of the World having so many fair Ports and so good Shipping the King of England also being the Lord of the Sea and also a principall part of his Royal Revenue consisting in duties payable for Merchandizes so as many Questions must of necessity arise in all ages touching Merchants and Merchandizes What should be the cause that in our Books of the Common Law of England there are to be found so few cases concerning Ships or Merchants or concerning Customes or Impositions payable for Merchandizes But now the reason thereof is apparent for the Common Law of the Land doth leave these cases to be ruled by another Law namely the Law Merchant which is a branch of the Law of Nations The Law Merchant as it is a part of the Law of Nature and Nations is universall and one and the same in all Countries in the World for as Ciccro saith of the Law of Nations Non orit alia lex Romae alia Athenis alia nune alia posthac sed omnes gentes omni tempore unalex eademque perpetua continebit c. So may we say of the Law Merchant there is not one Law in England another in France another in Spain another in Germany but the same rules of reason and the like proceedings of the Law Merchant are observed in every Nations for as our Chancellor of England affirmeth 13 E. 4. 9. That the proceedings of the Law Merchant ought to be according to the Law of Nature which is universall so say the Civilians of severall Nations The Italian Doctor saith In curia mercatorum naturalis aequitas praecipue expectanda ex aequo bono causas dirimendas esse The French man saith In curia mercatorum proceditur de mer a aequitate omissis solemnitatibus apicibus juris The Spaniard likewise saith Apices subtilitas juris non considerantur in foro mercatorio whereby it is manifest that causes concerning Merchants and Merchandizes are not wont to be decided by the peculiar and ordinary Laws of every Country but by the generall Law of Nature and Nations out of which resulteth this Conclusion Suppose it be admitted that by the positive Law of the land Taxes and Tallages may not be laid upon our goods within the land without an Act of Parliament yet by the Law of Nations and by the Law Merchant which are also the Law of England in cases of Merchandizes the King of England as well as other Kings may by vertue of his Prerogative without Act of Parliament lay Impositions upon Merchandizes crossing the Seas being goods whereupon the Law doth set another character than goods possessed in the land as is before expressed CHAP. IV. Of the Imperial or Civil Law and of the extent of the Iurisdiction thereof of what force it is at this day within the Monarchies of Europe and in what case it is received within the King of Englands Dominions and how it warranteth all Kings and Absolute Princes to lay Impositions upon Merchandizes WHen the City of Rome was Gentium Domina Civitas illa magna quae regnabat super Reges terrae The Roman Civil Law being communicated unto all the Subjects of that Empire became the Common Law as it were of the greatest part of the inhabited world yet the extent thereof was never so large as that of the general Law of Nature as it is noted by Cicero offic. lib. 2. Majores nosiri aliud jus Geutium aliud Civile jus esse voluerunt quod enim civile non idem continue Gentium quod autem idem civile esse debet whereby it is manifest that the Law of Nations is and ought to be a binding Law in all States and Countries as
because the same were gravia vectigalia in those dayes we may easily beleeve that Custome to have been greater than the demi mark for a Sack of Wooll Again the Statute of Magna Charta which was as ancient as King Iohn speaketh of ancient Customs payable for Merchandizes and the Book of 29 Edw. 3. maketh mention of ancient Customes granted to King Iohn in the Town of Southampton which doubtlesse were other Customes than that of the demi mark c. for that in the Record of the Tower 3 Edw. 1. Rot. sin 24. Rot. Patent of the same year m. 9. the demi mark which was first established by the Kings Letters Patents is called Nova Custuma and this was a diminution of the ancient Custome saith the Book of 30 H. 8. Dyer 43. Again when the same King Edw. 1. had by his Writ onely without Act of Parliament established the Custome of the demi mark c. in Ireland in all the Customers Accounts which are found in the Pipe-Rolls in the time of Edw. 1. Edw. 2. Edw. 3. in that Realm it is also called Nova Custuma which importeth as much as a new Imposition for Imposition is a new name and hath been of use but of late years whereas every new charge laid upon Merchandizes in ancient times was called Nova Custuma as the Lord chief Baron Fleming observed in his Argument in Bates Case of Currans in the Exchequor of England but because this Custome of a demi mark was a reducement made by King Edw. 1. of the great and ancient Custome to that proportion which was then thought reasonable as after upon sundry Petitions of the Commons was allowed by the succeeding Princes it obtained in tract of time the name of the great and ancient Custome this Custome of demi mark was not granted to the King by Parliament but reduced to that rate by the King by the prayer of the CoÌ„mons as is expressed in the Record of 3 Edw. 1. fin memb. 24. for albeit the Charter for confirmation of Magna Charta made in 25 Edw. 1. doth recite That the demi mark was granted by the Cominaltie yet is there no Act of P. printed or recorded wherein that grant of the Cominaltie doth appear neither can it stand with the rule of reason that the demi mark being a diminution of the ancient Custome should proceed from the grant of the Cominalty to the King for the King would never have accepted of such a grant as did diminish his Revenue neither had it been thank-worthy or acceptable and therefore the King having a Negative voice would never have given his assent to such a grant in Parliament but it is to be presumed that this diminution of the ancient Custome was made in Parliament and not by Parliament and that by prayer of the Commons as the Record of 3 Edw. 1. Rot. fin memb. 24. testifieth the King was then well pleased for that time to draw down the ancient Custome to that rate and the people did willingly yeeld and consent to the payment thereof and this I take to be the true interpretation of the Charter or Statute made in 25 Edw. 1. And therefore because we find no Act of Parliament whereby the people did originally grant the great and ancient Customes to the King and because we find it was uncertain and subject to diminution and alteration we may conclude that it was but an imposition laid by the King from time to time by vertue of his Prerogative without any grant from the Cominalty of the Realm who can make no grant but by Act of Parliament in truth it were absurd to affâ—rme that the great and ancient Custome imposed upon Native commodities of the Kingdom was first granted by Act of Parliament since it cannot be imagined that ever those commodities did passe out of the Kingdom without Custome being equal in time with the first Scepter and since the Scepter was established many hundred years before the people were called to be in Parliament besides the very name of Custome doth note and argue that it began before any Act of Parliament was made for that it signifieth a duty payable or accustomable to be paid time out of mind which in presumption of Law is before any Record wherefore the rules in the Lord Dyers Book are good Law viz. The King hath an Estate of Inheritance in the Custome payable for Merchandizes as being a Prerogative annexed to his Crown And again 30 Hen 8. 43. Custome is an Inheritance in the King by the Common Law and not given by any Statute CHAP. XI Of the ancient duties called Prizes taken out of Forreign goods imported except Wines and the petty-Customes of three pence of the pound were accepted by King Edw. 1. in lieu of Prizes FOr the Forreign commodities which are brought into England our Kings in ancient times did not take any Rates or Customes or Sums of Money but took such part of the severall commodities in specie as they thought fit for their proper use paying for that they took a price as themselves did likewise think fit and reasonable which was called the Kings price this Prerogative is proved by the rule of the Imperiall Law Rex nonrecognoscens superiorem potest è India in propria causa and also by the rule which is given 31 Edw. 3. 60. where the Bishop of Norwich having forfeited to the King thirty Talents of Beasants of Gold because the quantity and value thereof was uncertain it was adjudged that the Kings House should set down of what quantity and value every Talent should be and that the same should be paid accordingly and by the same Prerogative whensoever any Subject is to pay a Fine or Ransome unto the King for a contempt The King himself doth limit and set the Fine or Ransome at his own will or pleasure The Forreign commodities thus taken by the King in Spain at his own price were called Prizes but because these prizes were many times grievances to the Merchants and brought little or nothing to the Kings Coffers That prudent Prince Edw. 1. by that famous Charter called Charta Mercatoria made in the 31 year of his reign did remit unto all Merchant Strangers their prizes and did grant quod de caetero super mercimonia Merchandizas vel bona ipsorum per ipsum Regem vel Ministros suos nullos nulla appretiatio vel estimatio apponeretur quod nulla prisa vel arrestatio ratione prisae inde fieret c. and the Charter doth further recite That for the remission of these prizes the Merchants Strangers did grant unto the King three pence upon the pound now called the petty-custome out of all Forreign Merchandizes imported except Wines and for our Native commodities exported they would pay for every Sack of Wooll four pence and for every three hundred Wooll-fells six shillings and four pence and for every last of Leather a demi mark
over and above the duties payable by Denizens for the same commodities which grant being made by the Merchants of every Nation not being incorporated and made a body politick is in respect of them of no force of the rule of the common Law until the Kings charter made it good and maintained it untill it was confirmed by Parliament 27 Edw. 3. which was fifty years after the date of the Charter upon the matter these duties payable by Merchant Strangers were onely Impositions raised and established by the Kings charter which Charter being made in England was after wards established exemplised under the Great Seal of England and transmitted into Ireland with a special Writ directed to the Officers of the Customes there to levy three pence of the pound and other duties mentioned in that Charter as appeareth in the Red Book of the Exchequer there by vertue of which Writ onely without Act of parliament the three pence of the pound and other duties were levied and paid to the Crown in Ireland CHAP. XII Of the ancient Customes payable for Wines called Prizage and Butlerage THe most ancient Custome payable for Wines is Prizage which is not any sum of Money but two Tunns of Wine in specie out of every Ship freighted with twenty Tun the one to be taken before the Mast and the other behind the Mast of the Ship and the price which the King himself did limit to pay was twenty shillings onely for every Tun as appeareth by an ancient Record of 52 Hen. 3. whereby we may conjecture what easie rates the King gave for the prizes of other Merchandizes This Custome of Prizage was meerly an Imposition for it could not be granted by the Merchants of Forreign Nations being no body politique as is before declared neither is there any Act of Parliament wherby our own Merchants did ever grant it unto the Crown This duty of Prizage was remitted unto the Stranger by the Charter of 31 Edw. 1. before mentioned and in lieu thereof by vertue of the same Charter the King before mentioned receiveth two shillings for every Tun of Wine brought in by Strangers which we now call Butlerage but Prizage is paid in Specie by all our own Merchants at this day the Citizens of London only excepted who having remissiō of Prizage by a special charge were charged with a new Imposition called Gauge viz. de quolibet dolio 1 d. de vinis venientibus London which was accounted Forreign Magno Rot. An. 1 Edw. 1. in the Office of the Pipe at Westminster the last of these Impositions which by the continuance have gotten the name of Custome was laid and imposed three hundred years since and have ever since been approved and are now maintained by the Common Law of England as the lawfull and ancient Inheritance of the Crown CHAP. XIII Of the ancient Officers which our Kings have created by vertue of their Prerogatives to search and over-see all sorts of Merchandizes and to collect the duties payable for the same AS our ancient Kings by vertue of their Prerogative without Parliament have laid the Customes or Impositions before expressed upon all sorts of Merchandizes exported and imported so by the same Prerogative have they ordained severall sorts of Officers to search and over-see those Merchandizes on which they had laid those Impositions namely the Gauger of Wines a high Officer is as ancient as the Imposition of the Gauge it self before mentioned the Alneger of the cloths which is more ancient than any Act of Parliament that makes mention of the cloths for there is a Record of 14 Edw. 2. in Archivis turris which speaketh of the Alneger the Packer of Woolls the Garbellor of spices besides the Officer of the Customes viz. the Customer Comtroller and Searcher all which Officers have ever taken Fees of Merthants both Denizens and Aliens not by grant of the Merchants or Act of Parliament but by vertue of their severall Patents granted from the King CHAP. XIV Of other Impositions besides the ancient Customes before mentioned laid upon Merchandizes by severall Kings and Queens since the Conquest some of which Impositions have been discontinued or remitted and some of them are continued and paid at this day and first of the Imposition set by King Edw. 1. over and besides the Customes spoken of before IT appeareth in the Record of the Exchequer of England That in 16 Edw. 1. an Imposition of four shillings was laid upon every Tun of Wine brought into England from certain Towns in Gascogine and Spain and at this day answered and compted for duty for the space of ten years untill the 26 Edw. 1. when it was remitted but during the Kings pleasure only it appeareth likewise 25 Edw. 1. by the Charter of the confirmation then made of the Great Charter that King Edw. 1. had for divers years before set and laid an Imposition of fourty shillings upon every Sack of Wooll exported which ad instantiam Communitatis he was pleased to remit which remittall was of meer Grace upon the Petition of the Commons after that Imposition had been laid many years before and it is to be noted that this Imposition of fourty shillings upon a Sack of Wooll was taken and levied above twenty years together after the new Imposition of the demi mark upon a Sack of Wooll which was set and established for that begun in 3 Edw. 1. and this Imposition of fourty shillings continued till 25 Edw. 1. which is a strong argument that the first establishment of the demi mark was not by a binding Act of Parliament with a Negative voice that no other duties should be taken for those Merchandizes as was surmized but was only a mitigation or reducement of a greater Custome paid before which was done of meer Grace upon some reason of State at that time CHAP. XV Of the Imposition set and taken by King Edward the second KIng Edward the second in the beginning of his Reign did as well take the ancient as the new Custome upon Wooll Wooll-fells and Leather which ancient Custom must needs be intended an ancient Imposition over and besides the demi mark which was then called the new Custome and this appeareth by a Record in the Tower 3 Ed. 2. Claus. memb. 16. where the King directeth his Writ collectoribus suis tam antiquae quam novae customae lanarum pellium corriorum and requireth them to pay certain Debts of his Fathers King Edward 1. out of their old and new Customes and a hundred thousand pound pro damnis occasione retardationis solutionis debitis c. and howbeit afterwards he being a weak Prince and misguided by ill Counsell and over-ruled by his unruly Barons was driven first to suspend the payments of his Customes of three pence the pound and other duties contained in Charta Mercatoria during pleasure only as appeareth by his Writs of Supersedeas directed to the Collectors of his
they had the same right the same prerogative and absolute power that their Predecessors had but because they found other means to make other profit upon transporting of Merchandizes and that in another manner and in so high measure as the trade of Merchandizes in those daies could hardly bear any greater charge without danger of overthrowing all Trade and Comerce And therefore those Princes did in their wisdomes forbear to lay any further Impositions by their Prerogatives For these Kings who reigned after King Edw. 3. who conquered Callis in France and before Queen Mary lost Callis had two principal waies and meanes to raise extraordinary profits upon Merchandizes but proceeding from one cause namely from establishing the Staple at Callis for King Edw. 3. some few yeares before his death did by his Prerogative in point of Government without Act of Parliament erect a Staple at his Town of Callis and did ordain and command that all the Merchandizes exported out of England Wales and Ireland by any Merchant Denison or Alien should presently be carried to the Staple at Callis and to no other place beyond the Seas This Staple at Callis was first setled and fixed there by an Ordinance which the King made by virtue of his Prerogative and absolute power in the government of Trade and Comerce without Act of Parliament And if this Ordinance so made had been thought unlawful and against the liberty of the Subject it would never have been approved and confirmed by the Judgements of so many Parliaments in the times of Rich 2. Hen. 4. Hen. 5. and Edw 4. Neither could there have been such heavy penalties layd by those Parliaments upon the transgressors of those Ordinances Insomuch as in the time of King Henry the sixth it was made Felony to Transport any Merchandizes to any part beyond the Seas but to Callis onely Now the Staple of Callis being thus established there did arise a double profit to the Crown for transportieg of Merchandizes over and above the ancient Customes and other Subsidies granted by Parliament First it came to pass that the Customs and Subsidies for Merchandizes transported out of England Wales and Ireland which before was single and payd but once that is upon the outgate after the establishing of the Staple at Callis the duties for the same Merchandizes became double at the least and for the most part treble and were ever payd twice and for the most part thrice namely once upon the outgate in the Ports of England Wales and Ireland secondly upon the ingate at Callis and because all the commodities brought into Callis could not be vented into the main Land there but the greatest part was to be exported again by Sea into higher or lower Germany and other the North East Countries and some into Spain and Italy and the Ilands of the Levant there did arise a third payment of Customes and Subsidies for so much of their commodities as were exported again cut of Callis by meanes whereof the Customes and Subsidies did amount to threescore thousand or threescore and ten thousand pounds sterling per annum in the latter times of King Edw. 3. and during the reign of Rich. 2. Hen. 4. Hen. 5. and the beginning of the reign of Hen. 6. as appears by the Records of the Exchequer of England which according to the valuation of Moneys at this day the ounce of Silver being now raised from two shillings to five shillings do make two hundred thousand pound sterling per annum which doth equal or surmount all the Customes Subsidies and Impositions received at this day though that plenty of money and price of all things and consequently the expences of the Crown be exceedingly increased in these times And albeit the breach of Amity between the Crown of England and the Duke of Burgundy who was the Lord of the Lower Germany in the weak and unfortunate time of King Hen. 6. did cause a stop of Trade between us and that Country into which the greatest part of our Staple wares especially Wooll and Cloth were vented and uttered and was likewise the cause of loss of all our Territories in France except Callis and all the Merchandizes thereof whereby the Customes and other duties payable for Merchandizes were in the time of that unhappy Prince withdrawn and diminished to a low proportion yet afterwards upon the Mariage of Margaret Sister to King E. 4. unto the Lord Duke of Burgundy as that in honour of the English Wooll which brought so much Gold into his Country he instituted the Order of the Golden Fleece and thereupon the Customes Subsidies and Impositions were raised again to so high a Revenue as our Kings could not well in policy strain that strength of profit upon Merchandizes any higher Secondly albeit the Staple established at Callis being first established by an order made by the Kings Prerogative and absolute power was afterwards approved and confirmed by sundry Acts of Parliament yet did the King by another Prerogative retain a power to dispence with that Ordinance and those Acts of Parliament and to give license to such and so many Merchants as himself thought fit to export any Merchandizes out of England Wales and Ireland unto any other parts beyond the Seas besides à non obstante of the first Ordinance and of the Statutes which did establish the Staple at Callis By virtue of this Prerogative and power the several Kings who had Callis in their possessions did grant so many Licences to Merchants as well Aliens as Denizens to transport our Staple commodities immediately into other places without coming to Callis for which Licenses whereof there are an incredible number found in the Records of England the Merchants payd so dear for their commodities especially the Genoeses and the Venetians and other Merchants of the Levant as by the profits made of those Licences did amount to double the value of those Customes and Subsidies payable for exportation thereof and thereof those Princes as they had the less need so had they no reason at all to charge the Trade of Merchandizes with any other or greater Impositions In these two points before expressed doe consist the principal cause why the Princes of England who succeeded King Edw. 3. who won Callis untill the reign of Queen Mary who lost Callis did not directly use their Prerogative in setting any other Impositions upon Merchandizes above the ancient Customes and Subsidies granted by Parliament For it is to be observed that most part of those Princes who reigned after K. Edw. 3. and before Queen Mary had the Subsidy of Tonnage and Poundage granted unto them by Parliament which being added to the gain of the Staple of Callis did augment not a little the profit layd upon Merchandizes And may be a reason likewise why those Kings did forbear to lay any other Impositions by their Prerogative We may adde hereunto other reasons First Rich. 2. was a Minor and over-ruled by the great Princes of the
trade and traffique with Forrein Nations and to Strangers that trade traffick with us for the Administration of coÌ„mutative Justice within the Land the King receiveth sundry profits which grew first by way of Imposition A man cannot recover a Debt in the Kings Court but first he payeth the King a Fine for his first Process Land cannot be conveighed by a Common Recovery but a Fine for the Original must be payd to the King Neither can Land be passed from one to another by Fine in the Kings Court but the Kings Silver must be payd pro licentia concordandi Adde hereunto the profit of the Seals in all the Kings Courts for all manner of Writs And yet the King in Charta magna did promise Nulli negabimus nulli vendemus Iustitiam vel rectum but the Kings taking of these and the like Duties is no breach of the great Charter for that the same was imposed by the King long before the Charter was made and taken ut Ministerii sui stipendia as the Schoolman speaketh and withall to recompence the charge of the Crown in maintaining the Court of Justice See Bodin lib. 6. de Repub. cap. 2. where hee speaketh of the like profit made upon the Process in France And shews that the antient Romans did the like And the Emperour Caligula took the fortieth penny of that which was demanded in every several Civil Action If then such profits be taken for the King in his Courts of Justice within the Land towards the charge which he sustaineth in the maintainance of these Courts and the Offices thereof which duties were at first limitted and imposed by the King himself without any Act of Parliament for who ever heard of an Act of Parliament whereby the same were granted Is there not as good reason why the charge of the King in doing Justice and procuring Justice to be done unto Merchants whose residence and comerce is for the most part out of the Land should be recompenced out of Merchandizes imported and exported not according to the will of the Merchant and pleasure of the people out proportionable according to the Kings charge which being best known to himself it is most meet that the recompence should be limitted by himself Touching the charge of the King in doing and appointing Justice to be done to Merchants Are not all Leagues Truces and Treaties of State with Forein Princes wherein the publique Trade and Comerce of Merchants are ever included concluded and made at the Kings charge Did not the Kings Council of State and high Court of Chancery give more speedy hearing to the causes of Merchants than to the causes of other Subjects Doth not the King maintain a Court of Admiralty for deciding of Marine causes which doe for the most part concern Merchants Doth he not bear the charge of several Leâ—ger Ambassadors in Italy in Spain in France in the Low Countries in Turkie whose principal Negotiation doth consist in procuring Justice to be done to our Merchants And if our Merchants doe suffer wrong in any Forein Country by reason of any defective neglect in doing Justice there doth not the King by his Prerogative grant them Letters of Mart or Reprisal that they may right themselves which is a Species justi Belli as the Civilians call it And if the injury done to the Merchants bee multiplyed and continued with a high hand Is it not the Kings Office to denounce and prosecute War against such a people as doth refuse to doe Justice unto his Merchants For this cause the Romans began the first Punick War saith Appian Cicero in his Oration pro Lege Manlia affirmeth Populum Romanum saepe Mercatoribus Injuria suis tractata bella gessisse Briefly the plenty of Money being greater in this Age than ever was there by reason of so many Millions of Gold and Silver brought from the Indies into Europe and the price of all Merchandizes being withall greatly enhanced and the charges and expences of Princes exceedingly encreased is it meet or just that the King at this day should be stinted or bound to that old Demimark onely for Native commodities or the three pence of the pound for the Forein commodities which Edw. 1. was content to accept of four hundred years since or a single poundage onely which in the time of King Edw. 4. was not sufficient to maintain the necessary charges of keeping the Sea as the Acts of Parliament 12 Edw. 4. cap. 5. which granteth that Subsidy to the King reciteth all the Kings charge in supporting the Trade of Merchants being unlimited and infinite And shall the duties payable for Merchandizes be stinted and restrained to such a proportion only as the Subject shall bee pleased to grant unto him Assuredly if the King had not a Prerogative of his own absolute power without Act of Parliament to increase the duties payable for Merchandizes at this day a Merchants Counting-house would be richer than the Kings Exchequer and the Subject who may live privately and moderate his expences and yet raise the Fines of his Coppy-holds and Rents of his Demeans without controlement would be in better case than the King who by reason of the Majesty of his Estate cannot abridge his charges and yet should have no power of himself without leave of his Subjects to increase his Revenue Again the King is not only at charge in doing of Justice to his Merchants at home and in procuring Justice to bee done to them abroad but the doth withall maintain a Royall Navy of Ships the best the fairest the strongest in the world at this day to protect all Merchants from spoyl and Piracy on the sea In the maintainance of this Navy the King doth expend more Treasure than the whole Revenue of some of his Predecessors did amount to And he doth not onely secure Merchants by Sea but he gives them safe conduct by Land also as appeareth by the great Charter So as they may well give our King that title which Virgil gives to the King of Bees Ille operum custos And seeing Merchants are most likely resembled to those Industrious creatures because they bring the hony to the Kings Hives to wit to his Havens and Ports where they and their Merchandizes bee protected and reserved why should they not imitate the Bees in observing their King and in making him partaker of the fruit of their labours Neither is it a new thing or an invention of this Age to lay Impositions upon Merchants for their Wastage and Protection at Sea for Plinius tels us lib. 19 cap 4. Merces praetiosae ut ex India Arabia Ethiopia tuto in Europam à Mercatoribus conveherentur necessariò classem parandam esse adversas Piraticas incursiones inde maritimi exercitus habendi causa vectigal rubri maris institutum A third reason drawn from the Interest the King hath in the parts of the Kingdom and the custody thereof which giveth him
Prerogative of making War or Peace when himself in wisdom shall think fit so to do The King may decry all monies of Gold and Silver in Bullion and establish a Standard of Copper or Leather therefore he shall coyn no monies without the consent of the people The King may if he please break up all the Prisons pardon all Offenders and so give impunity to all Offenders Ergo he shall pardon no Malefactors by Act of Parliament These are found absurd or rather wicked conclusions à posse ad esse is an absurd Argument but à posse nolle nobile est The Law presumes the King to be so noble and so wise that all Acts done by him or in his Name during his Infancy are of as good force in Law as if the Law had bin done in his ripest years The Law presumes the King to be most just in all his actions therfore it hath these rules the Prerogative of the King can do no wrong the King can commit no disseisin the King can make no discontinuance and the like Cor Regis in manu Domini saith Solomon and therefore the Law presumeth that God will ever direct him to that which is just is it not then too much curiosity to instruct where the Law trusteth and too much presumption to presume against the presūption of the Law especially in the time of such a King who is the wisest and justest the most religious and most gracious King that ever reigned in Europe Can any man imagine that so great a Master in the Art of Government the most prudent King of great Britain Ireland the two greatest Islands in this Hemisphere and seated most commodiously for Traffique which all the World knowing that the duties paid unto him for Merchandizes are the most certain settled and assured and withall the best and richest part of his Revenues at this day will lay heavier Impositions upon Merchandizes than they are able to bear and so destroy all Trade and Comerce When King Hen. 7. his most prudent Predecessor did lend money to his Merchants to maintain Traffique will he for a little extraordinary profit for the time present pluck up at once the Root and dry up the Fountain of this Revenue for the time to come it is unprobable it is uncredible it is impossible But suppose that this is credible that the King should lay such heavy Impositions upon Merchandizes as all Merchants should refuse to Traffique who should lose most by that the King or his people assuredly hee should suffer an exceeding great losse in his Customes but we that are of the Commons should save by it having all things necessary for the Life of man within the Land which is Terra suis contenta bonis non indiga mercis We should spare these vain expences which we now make upon Forein Commodities namely Cloath of Gold Cloath of Silver Silks Spices Wines and many other superfluous unnecessary things which doe nourish Pride and Luxury Riot and Excesse amongst us which corrupt our manners and in the end will be the ruin of the Common-wealth I may therefore conclude this point That since the King hath power by his Prerogative to lay Impositions upon Merchandizes he hath also a power coincident thereunto to limit and rate the proportion and quantity thereof according to his own wisdom reasons of State from time to time for either the King must set down the rates or the people or the King and people both by Act of Parliament but if the people will not assent or agree to a reasonable limitation thereof in Parliament shall the King lose those Royal Duties which all other Kings do take by vertue of their Prerogative it were most unreasonable absurd and unjust CHAP. XXVI The third objection touching the repeal of Charta Mercatoria by King Edw. 2. and the remitall of divers Impositions by king Edw. 3. upon sundry Petitions of the commons in Parliament and the punishment of divers Persons in Parliament for procurtng Impositions to be set up THirdly it is objected that this Prerogative of laying Impositions upon Merchandizes hath never at any time been set a foot and used by any of His Majesties Progenitors but it hath been contradicted and upon Petitions of the people such Impositions have been suspended remitted and abolished first King Edw. 1. say they in the 31 year of his Reign did by his Charter called Mercatoria spoken of before lay the Imposition of three pence in the pound now called the petty-Custome with an increase of other duties upon Merchandizes imported by Strangers howbeit this Imposition stood not above seven years by vertue of that Charter but it was discontinued and quite taken way for in 3 Edw. 2. the Charter it self was suspended by the Kings Writ 3 Edw. 2. Claus. m. 23. in Arch. Iurris and 5 Edw. 2. it was utterly repealed by a solemn Ordinance of State Rot. Ordina 3 Edw. 2 in Arch. Turris Secondly King Edw. 3. did at sundry times during his Reign lay severall Impositions upon Woolls and other Staple commodities sometimes fourty shillings sometimes fifty shillings upon a Sack of Wooll and other the like rates upon Merchandizes yet could he never fix nor settle the same upon His Subjects for upon sundry Petitions of the Commons in Parliament who found themselves grieved therewith these Impositions were from time to time remitted 13 Edw. 3. Rot. Parliament in Arch. Turris 14 Edw. 3. cap. 21. 17 Ed 3. Rot. Parliament numb. 12. 12 Ed. 3. Rot. Parliament numb. 11. Again the same King many times did shut up all the Ports and thereby restrained the exportation of Merchandizes then would he take great sums of Money to grant licences to transport which proved as great a charge as Impositions and yet upon sundry complaints of the people in Parliament the Sea was set open and liberty of Trade permitted again Stat. 18 Edw. 3. cap. 3. 22 Edw. 3. Rot. Parliament numb. 8. in Arch. Turris 13 Edw. 3. in Sccio Angliae Rot. 12. 13 Edw. 3. Rot. Parliament numb. 5. in Arch. Turris Lastly in the last year of this Kings Reign divers persons were accused and punished in Parliament for procuring new Impositions to bee set upon Merchandizes namely the Lord Latimer who albeit he were a Noble man and a Privy Counsellor to the King yet was he fined committed to the Mafhalsce and put out of the Council 50 Edw. 3. Rot. Parliament nu 34 in Arch. Turris Richard Lions likewise a Citizen of London and Farmer of the Customes an Instrument of the L. Latimers in raising the new Impositions was fined ransomed and imprisoned and put from the Franchise of the Citie 50 Edw. 3. Rot. Parliament numb. 17. in Arch. Turris And one Iohn Peachy who had gotten a Monoply of Sweet Wines by Letters Patents and by colour thereof had extorted three shillings and four pence out of every Pipe
forbear to use their Prerogative in that kind for those other notable and true causes which are before at large expressed in the seventeenth Chapter Lastly touching the Imposition of six shillings and eight pence upon every Cloth laid by Queen Mary after the losse of Callis she held the same with a new Imposition upon French Wines without any question during her life and albeit complaint were made against the Imposition set upon Cloaths unto Queen Elizabeth upon her first entry as it is usuall for the people to complain of burthens and charges upon every change of Government Yet we find that after the Conference of the Judges spoken of by my Lord Dyer 1 Eliz. f. 165. Dyer though their resolution be not their reported Queen Elizabeth did continue that Imposition and also the Impost upon French Wines as being lawfull set for the space of fourty four years without any further contradiction besides Queen Elizabeth did raise divers other new Impositions as is before declared whereunto there was never made any opposition during her Reign and which His Majesty that now is hath received without any question for the space of fifteen years and thus much may suffice for answer to the several points in the third Objection CHAP. XXVIII The fourth Objection that the Prerogative is bound or taken away by divers Acts of Parliament FOurthly It is objected That though it were granted and admitted that the King de jure communi hath a rightful Prerogative to lay Impositions upon Merchandizes yet that power say they is restrained and taken away by sundry Acts of Parliament First the Statute of Magna Charta cap. 30. doth give safe conduct and free passage to all Merchants to buy and sell absque aliquibus malis tolnetis per antiquas rectas consuctudines Secondly by the Act or Charrer of confirmation in 25 Edw. 3. The King doth release a Mayltolt of fourty shillings upon a Sack of Wooll and doth grant for him and His Heirs unto the Commons that he shall not take such things without the Commons consent or good will and in the same Act or Charter reciting that wheras divers people of the Realm were in fear that the Aids and Taxes which they had given to the King before that time was towards his War and other businesses of their own grant and good will might turn to a bondage of them and their heirs because in time to come they might be found in the Rolls and were likewise grieved for Prizes taken throught the Realm The King doth grant for him and his Heirs That he will not draw such Ayds Taxes or Prizes into a Custome for any thing that had been done before that time be it by Roll or any other president that may bee found Thirdly by the Statute 14 Edw. 3. cap. 12. the King doth grant that all Merchants Denizens and Aliens may freely come into the Realm with their goods and Merchandizes and freely tary there and safely return paying their Customes Subsidies and profits thereof reasonably due Fourthly by the Statute 11 Rich. 2. cap. 9. it is enacted That no Imposition or Charge be put upō Wools Wooll-fells or Leather other than the Custome or Subsidie granted to the King in that Parliament if any be the same to be adnulled and repealed saving to the King his ancient right there are other Acts of Parliament containing the same sence and substance but these principally have been singled out and cited as specially Statutes restraining and taking away the Kings Prerogative in laying Impositions upon Merchandizes CHAP. XXIX The Answer to the fourth Objection TO this Objection first I answer That this being a Prerogative in point of Government as well as in point of profit it cānot be restrained or bound by Act of Parliament it cannot be limited by any certain or fixt Rule of Law no more than the course of a Pilot upon the Sea who must turn the Helme or bear higher or lower sail according to the wind and weather and therefore it may be properly said That the Kings Prerogative in this point is as strong as Samson it cannot be bound for though an Act of Parliament be made to restrain it and the King doth give his consent unto it as Samson was bound with his own consent yet if the Philistins come that is if any just or important occasion do arise it cannot hold or restrain the Prerogative it will be as thred and broken as easie as the bonds of Samson and again Ius imponendi vectigalia inhaeret sceptro saith the Law Imperiall quod Sceptro inhaeret non potest tolli nisi sublato Sceptro The Kings Prerogatives are the Sun-beams of his Crown and as inseparable from it as the Sun-beams from the Sun The Kings Crown must be taken from his head before his Prerogative can be taken away from him Samsons hair must be cut off before his courage can be any jot abated Hence it is that the Kings Act nor any Act of Parliament can give away his Prerogative for in his own Act the King cannot release a tenure in Capite nor grant it to any Subject Dyer 44. If the King grant Land to I.S. to hold as freely as the King himselfe holds his Crown he shall hold his Land still of the King in Capite and if he Alien it hee shall pay a Fine for the tenure is vested in the King by his Prerogative saith the Book 14 Hen. 6. 12. and therefore when King Edw. 3. did grant unto the Black Prince his eldest Son the Dutchy of Cornwall una cum omnibus wardis maritagiis releviis c. non obstante Prerogativa Regis the Prince could not seize a Ward that held of the Kings Ward who held in Capite of the King because it belonged to the King by his Prerogative 34 Ass. pl. 25. whereby it is manifest that the King by his own Grant cannot sever his Prerogative from the Crown nor communicate any part thereof to any one not to the Prince his eldest Son and in this case of Tenure it was resolved in the last Assembly of Parliament in England That no Act of Parliament could be framed by the wit of man whereby all Tenures of the Crown might be extinguished neither can any Act of Parliament in the flat Negative take away the Kings Prerogative in the affirmative The King hath a Prerogative in the affirmation that he may pardon all Malefactors There is a Statute made at Northampton 2 Edw. 3. That no Charter of pardon for killing a man shold thence forth be granted but in one case where one man killeth another in his own defence by misfortune Hath this Statute so bound the Prerogative as no man ever since hath been pardoned for killing a man but in the cases before mentioned The King hath a Prerogative in point of Government to make choice of the Sheriff in every County there is a Statute made 28 Edw. 3 cap. 7. That
no man shall be Sheriff two years together and that no Commission shall be granted or renew'd for the year following to him that hath been Sheriff the year before Was the Kings Prerogative bound by this Statute when hee granted the Sheriffwick of Northumberland to the Earle of Northumberland during his life with non obstante of that Statute 2 Hen. 7. fol. 6. Again the King hath no ancient and absolute power to grant dispensation for holding Ecclesiastical Benefices in CoÌ„mendum There is a Statute made 7 Edw. 3 in Ireland whereby it is enacted and declared that the Kings dispensation in this case shall be utterly void if it be not by Act of Parliament did this Statute so derogate from the Kings Prerogative and so restrain it that he might not only by his Letters Patents Grant CoÌ„mendamus before the Statute of 28 Hen. 8. in this Realm assuredly the Kings dispensation non obstante the Statute would have taken away the force thereof as if no such Law had ever been made There are manyother cases of like nature which I omit as for the particular Statutes before recited the words thereof are too generall to bind or restrain this Prerogative in laying Impositions upon Merchandizes First that Statute of Magna Charta doth give safe conduct to all Merchants to come and go and to tarry within the Realm and to buy and sell their Merchandizes sine malis tolneâ—is per antiqnas rectas consuetudines How do these generall words restrain the Kings Prerogative in this Case for the ancient Common Law of the Land which is the Common Custome of the Realm doth warrant and approve the Kings Prerogative in laying Impositions upon Merchandizes as before I have fully and clearly proved then a reasonable Imposition laid by the King is Antiqua rect a consuetudo warranted and approved by the Great Charter Secondly albeit King Edw. 1. by Act or Charter of confirmation of Charta Mercatoria made in Anno 25. of his Reign doth release the Maletolt of fourty shillings upon a Sack of Wooll and doth grant for him and his heirs that he will take no such thing without the assent and good will of the Commons That word such doth not absolutely bind the Kings Prerog. that he shall lay no Imposition at all for it is to be intended such in quantity such in excess for foury shillings at that time was as much as six pound at this day which the scarcity of money in those dayes being considered and compared with the plenty of money at this day might then be said to be a great burthen and yet this strong band doth not bind K. Ed. 3. his Grand-child but that notwithstanding this Charter or Act of Parliament he took these things in greater quantities sometimes fourty shillings sometimes fifty shillings upon a Sack of Wooll when the Philistins came upon him that is when the Wars of France and other urgent occasions did presse him to it as to the other Article contained in the Act or Charter of 25 Edw. 3. where it is said the people did fear left the Aids and Taxes granted of their good will to the King might turn to a bondage to them and their heires when the same in time to come should be found in the Rolls and the King did grant for him and his heirs That he would not draw such Ayds and Taxes into a Custome that Act in this point restraineth not the Kings Prerogative in setting Impositions upon Merchandizes for it speaketh only of Ayds and Taxes willingly granted by the people in Parliament therefore I marvell that this Article was ever objected or used as an argument against Impositions and whereâ—â— the King doth grant that such Ayds shall not be drawn into a Custome such words are usuall in the preambles of Acts of Subsidies where the grant is large and extraordinary viz. That it may not be drawn into an example that it may not be a president in future times and yet succeeding Parliaments have not forborn to grant as large Subsidies as formerly were granted Thirdly the Statute of 14 Edw. 3. cap. 12. doth rather maintain the Kings Prerogative in this case than any way impugne or impeach it for by that Law free passage is granted to all Merchants paying the Customes Subsidies and profits thereof reasonably due Now certain it is that all duties payable to the King for Merchandizes are of three kinds only Customes which are these ancient and certain duties wherein the Crown hath no Inheritance as is before expressed Subsidies which are granted by Act of Parliament and Impositions which are raised from time to time by the Kings Prerogative onely we find not a fourth kind and therefore the word Profits must needs be taken for Impositions Fourthly the Statue of 11 Rich. 2 cap. 9. though it provide in expresse terms that no Imposition or Charge be layd upon Wooll Wooll-fells or Leather other than the Custome or Subsidy granted in that Parliament yet it saveth alwayes to the King his ancient rights this was as turbulent a Parliament as ever was holden in England and yet was the Kings Right acknowledged though the unruly Lords and Commons did in a manner force his Assent to limit his Prerogative at that time Lastly if these Acts had absolutely bound the Kings Prerogative and had been observed literally and punctually untill this time the King should onely have had at this day the Demi mark for our own Staple Wares and perhaps the three pence Custome for Forein Commodities and no more What an inconvenience what an absurdity had this been at this day when all Forein Princes have raised their Customes to an exceeding height when as I have noted before the necessary expences of the Crown are so much encreased when the prizes of all Commodities are so much enhanced when there is so great a plenty of money in this part of the World when the Kings Revenue within the Land is so much improved Is it fit that Duties payable for Merchandizes should stand at a stay and keep the old rates without augmentation CHAP. XXX The fifth Objection that Tonnage and Poundage were never taken but when the same was granted by Parliament FIftly it is objected That the Subsidies of Tonnage and Poundage were never taken by any King of England but when the same were granted by Act of Parliament which is an Argument say they that the King could never take those duties but by his absolute power for if his Prerogative could have imposed those rates of it self what need was there of an Act of Parliament why should the King have expected the consent of the Commons cum Dominus eis opus habet and when the Exchequor were so empty as the Jewells of the Crown were layd to pawn by some of those Kings who were glad to take these Subsidies by Acts of Parliament CHAP. XXXI The Answer to the fifth Objection THe Answer to this Objection is twofold First
That which is objected is not true for Tonnage and Poundage have been taken by the Kings Prerogative without Act of Parliament Secondly If it had been true it is no Argument against the Kings Prerogative in this point for what is Tonnage but a certain sum of money payable for every Tun of VVine imported did not King Edw. 3 by force of his Charter Mercatoria without Act of Parliament take two shillings for every Tun of VVine imported by Strangers did not the same King set a new Imposition of Gauge viz. upon every Tun of VVine brought into London as is before expressed and are not the severall Impositions of VVines taken by His Majesty in England and Ireland a kind of Tonnage being nothing else but extraordinary rates imposed upon ever Tun of VVine and levied and taken by the Kings Prerogative Again was not the three pence upon the pound imposed by King Edw. 1. by his Charta Mercatoria a kind of Poundage and well nigh as great an Imposition as twelve of the pound granted at this day by Act of Parliament if we consider the Standard of Monies in the time of King Edw. 1. when a peny sterling did contain as much or more pure Silver as the three pence sterling doth contain at this day but admit that no Tonnage or Poundage had ever been taken but by grant in Parliament yet it is no Argument but that the King might impose the like or the same by his Prerogative for three particular reasons The first because these Subsidies were granted for maintainance of the Navy Royall the charges whereof were grown so great in the time of King Edw. 4. as appeareth by the Act of Tonnage and Poundage granted in the 12 year of that Kings Reign that it sufficed not nor in time to come was like to suffice or defray the charge of the Crown in keeping the Sea these are the words of that Act if then in the time of King Edw. 4. the Subsidy of Tonnage being three shillings upon a Tun of VVine brought in by Denizens and six shillings upon a tun brought in by Strangers and the Subsidy of Poundage or of twelve pence of the pound upon other Cōmodities was not then sufficient to bear the charge of the Royall Navy which was not comparable by many degrees in strength and beauty and multitude of Ships to the Kings Navie at this day Doth it stand with reason that the Crown should be stinted or limited ever after to take no more than those poor Subsidies granted at that time that the King should wait for a Parliament and pray an ayde of the Commons for a competent means to maintain the Walls of the Kingdom when by the Common Law of the Realm he may grant Letters Patents for Murage to maintain the Walls of a Corporate Town If any unexpected necessity should arise for repairing of the Navy Royall and making a Navall War should the King expect a Parliament for a greater Subsidy to bee granted by the Commons before he should rigge and make ready his Ships perhaps a Kingdom might be lost in the mean time as if a Pilot sitting at the Helm and seeing a sudden gust of wind would over-set the Ship or perceiving her to be running on a Rock should forbear to turn the Helm or cause the Sail to be stricken untill he had consulted with the Mariners or Passengers and demanded their consent or counsell in the businesse the Pilot himself with his Mariners and Passengers might be cast away before they were agreed what course to take Secondly these Subsidies of Tonnage and Poundage were first granted by Act of Parliament in the time of the Civill VVars between the two great Houses of Lancaster and York when the severall Kings were loath to make use of their Prerogatives but were glad to please their people and loath to impose any charge upon them but by common consent in those troublesome times Thirdly Kings and Princes oftentimes of their own noble nature and sometimes in policy do accept that of their Subjects as a gift which they might exact take as a duty and therefore our most potent and politique Kings have ordained and accepted many things in Parliament which they might have done in their private Chambers by their own prerogative without any other Ceremony who ever made doubt of the Kings Prerogative in establishing the Standard of monies and yet how many Acts of Parliament do we find touching Monies in the times of King E. 1. and King Edw. 2 the Kings Prerotative in making establishing Marshall Law was never yet in question yet are there Acts of Parliament touching Musters departures of Souldiers without their Captains Licences or the like The King only doth give Honours and places of precedency yet King Hen. 8. made an Act of Parliament whereby he rancked the great Offices of the Crown in their severall places as well in Council as in Parliament No man ever doubted but the King being the Fountain of Justice may erect Courts of Justice by his Prerogative yet we find the Court of Augmentations and the Court of VVards erected by Act of Parliament Lastly in the time of Edw. 2. we find an Act of Declaration of the principall Prerogatives of the Crown of England were most undoubted and clear yet His Majesty was pleased in his first Parliament to accept of an Act of Recognition CHAP. XXXII The Conclusion BY these reasons and demonstrations which are before expressed it is evident that the King of England by vertue of an ancient Prerogative inherent to the Crown and Scepter may justly and lawfully set Impositions upon Merchandizes and may limit and rate the quantity and proportion thereof by his own wisdom and discretion without Act of Parliament and this Prerogative is warranted and approved by the generall Law of Nations and the Law Merchant which is a principall branch of the Law of Nations by the Imperial Law the Ecclesiasticall Law and by the rule of the Common Law of England and by the practice of the most prudent Kings and Queens of England since the Conquest and that this Prerogative is grounded upon many excellent reasons and that the severall Objections made against this Prerogative are but shadows and colours of reason and clearly removed and washed away by the severall Answers thereunto CHAP. XXXIII A comparison of the Impositions set and taken in England by the Kings Prerogative with the Exceptions and Gabells in Forein States and Kingdoms whereby it will appear that the subjects of the Crown of England do not bear so heavy a burthen by many degrees as the Subjects of other Nations do bear in this kind ALbeit indeed the King of England being no Emperor and having all Imperiall Rights within his own Kingdoms hath and ever had as absolute a Prerogative Imponere vectigalia or to lay Impositions as the Emperor of Rome or Germany or any other King Prince or State in the world now have or ever had yet let
Ius Imponendi Vectigalia OR The Learning touching CUSTOMS Tonnage Poundage And Impositions on MERCHANDIZES ASSERTED As well from the Rules of the Common and Civil Law As of Generall Reason and Policy OF STATE By Sir JOHN DAVIS Knight c. The Second Edition LONDON Printed for Henry Twyford in Vine-Court Middle Temple MDCLIX TO THE KINGS Most Excellent MAJESTIE THis Question SIR Concerning your Majesties Prerogative in laying Impositions upō Merchandizes ought not to have been made or moved at all howbeit it hath been stirred and debated in Parliament it is now become an Argument of such Dignity and Importance as the best-able amongst your Servants learned in the Law may well imploy their best learning in the discussing thereof For my part though I find myself unable to handle this Noble Question as the weight and worthinesse requireth yet have I upon sundry occasions arising from the course of my service collected such notes and drawn together such materials as may be of use in the building of a Fortresse in the defence of this Prerogative and sure I am that if your Majestie will vouchsafe to cast your eye upon these Collections that your Judgment will make a far better use and application thereof than I who have gathered the same can posible do these little sparks of knowledge being taken into your Majesties consideration wil instantly multiply and arise into a flame and so give a great light for clearing of this Question This learning within my hand is but a Spade in your Majesties hand will become a Scepter I have onely like the poor Indian digged up the Oare of Mine which being brought into the Kings Mint and refined there becomes part of the royall Treasure For the Argument it self it will hardly receive any Ornament Ornari res ipsa negat contenta doceri The best light I can give it is Lucidws ordo by breaking it into Capita rerum and casting it into a plain and naturall method it is somewhat long and in Multiloquio non deest peccatum saith Solomon it is also mixt with some reasons of State wherein a common Lawyer may easily make a Solaecism yet such as it is my zeal to advance your Majesties Service hath moved me to present it to your Majesty with all humbleness and with some hope that this dutifull pains shall purchase a pardon for the errours therein committed By your Majesties unprofitable Servant and humble Subject Iohn Davies THE CONTENTS Of this BOOK CHAP. I. THe Exposition and meaning of certain words which do shew the true state of the Question page 1 CHAP. II. Of the general Law of Nations or Jus Gentium and the force thereof in all Kingdoms that traffique and commerce is a principal subject of that Law and that it giveth power unto all Kings to take Customes and Impositions upon Merchandizes and that the Crown of England hath many Prerogatives annexed to it by the Law of Nations of which our Common Law taketh notice and doth admit and approve the same 4 CHAP. III. Of the Law Merchant which is a branch of the Law of Nations and how it differs from our Common Law and how in the judgement of our Law Merchandizes do differ from other Goods Chattels which do not crosse the Seas and how the Common Law and Statute Law of England do admit and allow of the Law Merchant 10 CHAP. IV. Of the Imperial or Civil Law and of the extent of the Iurisdiction thereof of what force it is at this day within the Monarchies of Europe and in what case it is received within the King of Englands Dominions and how it warranteth all Kings and Absolute Princes to lay Impositions upon Merchandizes 20 CHAP. V. Of the Canon or Ecclesiastical Law and how far forth it doth examine and resolve this Question in cases of Conscience only 25 CHAP. VI That this Question of Imposition may be examined and decided as well by the rules of the Laws before mentioned as by the rules of our Municipiall Laws or Common Law of England 27 CHAP. VII Of the Kings Prerogatives in general and that the same do consist in certain speciall points or cases reserved to the absolute power of the Crown when the Positive Law was first established and that the Cōmon Law of England doth acknowledge and submit it self to those Prerogatives 29 CHAP. VIII Of the Kings Prerogative in the ordering and governing of all Trade and Traffique in Corporations Markets and Fairs within the Land and the Common Law doth acknowledge this Prerogative and submit it self there unto 34 CHAP. IX That the King hath another Prerogative in the Government in the Trade of Merchandizes crossing the Seas differing from the Prerogative which he useth and ordereth in Trade and Traffique in Markets an Fairs within the Land and of the difference between Custome and Toll by the rules of the Common Law 38 CHAP. X. Of the ancient duty called Custome payable for our principall Commodities exported and that it was originally an Imposition 41 CHAP. XI Of the ancient duties called Prizes taken out of Forein goods imported except Wines and the petty-Customes of three pence of the pound were accepted by King Edw. 1. in lieu of Prizes 46 CHAP. XII Of the ancient Customes payable for Wines called Prizoge and Butlerage 50 CHAP. XIII Of the ancient Officers which our Kings have created by vertue of their Prerogatives to search and over-see all sorts of Merchandizes and to collect the duties payable for the same 52 CHAP. XIV Of other Impositions besides the ancient Customes before mentioned laid upon Merchandizes by severall Kings and Queens since the Conquest some of which Impositions have been discontinued or remitted and some of them are continued and paid at this day and first of the Imposition set by King Edw. 1. over and besides the Customes spoken of before 53 CHAP. XV Of the Imposition set and taken by King Edward the second 55 CHAP. XVI Of the Impositions laid and levied upon Merchandizes by King Edw. 3 57 CHAP. XVII Of the Profits raised unto the Crown out of Merchandizes during the reigns of several Kings who succeeded K. Edw. 3 untill the reign of Queen Mary 62 CHAP. XVIII That Queen Mary did use her Prerogative in laying Impositions upon Merchandizes 70 CHAP. XIX That Queen Elizabeth also used her Prerogative in laying Impositions upon Merchandizes 71 CHAP XX That our Soveraign Lord King James hath by virtue of the same Prerogative without Act of Parliament layd several Impositions upon Merchandizes 73 CHAP. XXI The general reasons whereupon this Prerogative is grounded 76 CHAP. XXII Of the several Objections that are made against the Kings Prerogative in laying Impositions upon Merchandizes and the soveral Answers thereunto 94 CHAP. XXIII The Answer to the first Objection 96 CHAP. XXIV Of the second Objection touching the uncertainty and unbounded largenesse of this Prerogative 99 CHAP. XXV The Answer to the second Objection 101 CHAP. XXVI The third Objection
Blood who would not suffer him to use his Prerogative Secondly that during the Wars of Lancaster and York there was no fit time to make use of that Prerogative while both parties did strive to win the favour of the people Thirdly that King Hen. 7. had much ado to settle himself in the quiet possession of the Kingdome after those troubles Fourthly that King H. 8. had such a mass of Treasure left him by his Father and did so inrich himself by dissolution of Abbyes as he had no need to make use of this Prerogative Fiftly that K. E. 6. was also a Minor and that his chiefest Council did more contend to advance their own houses than the Kings profit CHAP. XVIII That Queen Mary did use her Frerogative in laying Impositions upon Merchandizes QUeen Mary in whose time the Town of Callis was lost and consequently the benefit of the Staple at Callis was lost did by her absolute power as appeareth by the Report of the Lord Dyer 1 Eliz. Dyer 165. raise an Imposition upon Clothes viz. six shillings and eight pence upon every Cloth over and above all Customes and Subsidies True it is that the Merchants petition'd to be disburthened of this Imposition which was referred to the consideration of the Justices and others whereupon they had many assemblies and conference as that Book reporteth And albeit the Resolution of the Judges in that behalf be not found in that book it is to be presumed That they adjudged the Imposition to be just and lawfull because it was continued and answered during all the Reign of Queen Mary This Queen Mary likewise by her Preroonely layd and Imposition of four Marks upon every Tun of French Wines over and above the Prizage and Buttlerage which during her life time was payd without contradiction CHAP. XIX That Queen Elizabeth alsoused her Prerogative in laying Impositions upon Merchandizes QUeen Elizabeth also by virtue of the same Prerogative did not only continue the Impositions layd by Queen Mary upon Cloths and French Wines but did raise other Impositions of sundry sorts of Merchandizes by the same absolute power namely upon every Tun of sweet Wines upon every Tun of Rhenish Wines upon every Kental of Allom which during the time of the prudent Princess were payd and received without question Besides the same Queen upon complaint made unto her in the twelfth year of her Reign That the State of Venice did impose one Ducket upon every hundred of Currans exported out of their Dominions by the Merchants of England did by her Letters Patents grant unto the English Merchants who traded into the Levant That they only and their Assigns might bring Currans into England The English Merchants having this privilege did take five shillings and six pence upon every hundred waight of Currans brought into England by Strangers which was duly payd although it was taken by the Merchants by virtue of their privilege only of sortiori yet it ought to have been payd if it had been payable to the Queen her self as the Lord Chief Baron Fleming did observe in his Argument of Bates's case of Currans in the Court of Exchequer in England CHAP. XX That our Soveraign Lord King James hath by virtue of the same Prerogative without Act of Parliament layd several Impositions upon Merchandizes HIS Majesty likewise when he came to be King of England finding his Crown to be seized of this Prerogative and finding withall the necessary charge of the Crown exceedingly to increase did for the supportation thereof not onely continue the Impositions layd by Queen Mary and Queen Elizabeth but also layd new Impositions upon sundry sorts of Merchandizes over and above all Customes and Subsidies formerly due and payable for the same And these are the Impositions now the principal of these is twelve pence upon the pound or a second poundage set upon Merchandizes as well exported as imported by Letters Patents 28. Iuly in the sixth year of his Majesties Reign but how is it set and imposed surely with such moderation and limitations and such receptations full of grace and favour as no Monarch or State in the world did ever impart to their Subjects the like in the like case for besides other gracious clauses contained in the same Letters Patents All commodities serving either for food or sustenance of the Kings people or seting the poor on work or for munition or defence of the Realm or for maintainance of Navigation or which especially tends to the enriching of a Kingdome are excepted and discharged by this Imposition As for the special Impositions which his Majesty hath set upon certain forrein commodities as Currans Logwood Tobacco c. As touching the first of these the Imposition hath been adjudged lawful in the Court of Exchequer of England And for the other commodities they are of such nature as no man ever made question but that the Impositions set upon them were lawful Besides these Impositions layd in England his Majesty by his Prerogative onely since the beginning of his Reign received the Impost of Wines in Ireland and hath likewise to make equality of Trade in that Realm layd an Imposition of twelve pence on the pound of all other Merchandizes imported and exported out of the Ports of Dublin Waterford Drogheda and Galway the Citizens of which Cities and Townes are exempted and discharged of Poundage granted by Act of Parliament there which Imposition was never impugned in Ireland but hath since the setting thereof been levied and payd without contradiction And that wee see how long the Crown of England hath been seised of this Prerogative in laying Impositions upon Merchandizes and how the same hath been put in practice by the most prudent Princes since the Conquest CHAP. XXI The general reasons whereupon this Prerogative is grounded ALthough it be a matter of difficulty and doth savour withall of curiosity and presumption to search a reason for every Prerogative that is incident to the Crown for Sacrilegii est disputare de Principis facto saith the Imperial Law and Scrutator Majestal is opprimitur à gloria saith the Wise man Yet the reasons whereupon this Prerogative is grounded are so many and manifest as it were not amiss to collect the principal of them rather for the confirmation than the satisfaction of such as have moved this question touching the lawfulness of Impositions layd by his Majesty upon Merchandizes First the King is the Fountain of all Justice and therefore the first reason drawn from the Kings charge in doing Justice and procuring Justice to be done to Merchants not onely distributive Justice wherein consisteth Praemium and Paena but cōmutative Justice is also derived from the King Now his Majesty doth exercise commutative Justice chiefly in the ordering and government of Trade and Comerce wherein hee is to doe Justice or to procure Justice to be done to his Subjects who do make contracts real and personal within the Land But to his Merchants that
lay an Imposition upon Merchandizes without the consent of the Merchants and doth cause the Officers of his Customes to take and levie the same it seems sat they they take away the goods of the Subject without his consent and without cause of forfeiture which is not warranted either by Law of Nations which brought in property nor by the Law of the Land which doth maintain property CHAP. XXIII The Answer to the first Objection TO this Objection we answer That the King doth not take the Land or Goods of any without his consent but here we must distinguish there is a particular and expresse consent and there is an implicit and general consent when a man doth give his Goods or surrender his Lands to the King by deed enrolled or when in Parliament which representeth the body of the whole Realm and wherein everyman doth give his consent either by himself or his Deputy A subsidy is granted to the King there is an expresse consent but when subjects who live under a Royall Monarchy do submit themselves to the obedience of that Law of that Monarchy whatsoever the Law doth give to that Monarch the subjects who take the benefit of the Law in other things and doe live under the protection of the Law doe agree to that which the Law gives by an implicit and general consent and therefore there are many cases where the King doth lawfully take the goods of a Subject without his particular expresse consent though the same be not forfeited for any crime or contempt of the Owner If a Theef do steal my goods and waive them the King may lawfully take those goods without my particular consent and without any fault or forfeiture of mine but in regard I live under the Law which giveth such wayves unto the King he taketh not the same without my implicit consent so if my Horse kill a man the King may lawfully take my Horse a Deodand without my fault or consent in particular but in that I have consented to the obedience of the law which giveth all Deodands to the King he taketh not my Horse without the implicit or generall consent of mine In the time of War the King doth take my House to build a Fort or doth build a Bulwark upon my Land he doth me no wrong though he doth it without my consent for my implicit consent doth concur with it for that I being a member of the Common-weal cannot but consent to all Acts of necessity tending to the preservation of the Common-wealth So if the King doth grant me a Fair or Market with a power to take a reasonable Toll If a man will buy any thing in my Fair or Market I may take Toll of him though I give no particular consent to the grant because the Law whereunto every Subject doth give consent and obedience doth warrant the taking of Toll in every Market and Fair granted by the King So it is in case of Impositions the Law doth warrant the Kings Prerogative to impose upon Merchandizes as is before declared and therefore though the Merchants give not their particular consents to the laying of these Impositions yet in regard they live under the protection and obedience of the Law which submits it self to this Prerogative and allow and approve the same it cannot be said that the King doth take these Impositions of them without their implicit and generall consent CHAP. XXIV Of the second objection touching the uncertainty and unbounded largenesse of this Prerogative THe second Objection is against the uncertainty and unlimited largenesse of this Prerogative for in other cases they say where the King taketh the goods of a Subject by his Prerogative there is a certainty what he may take as in the case of way vs he may take onely the goods wayved and no more In case of Deodand he may take only the thing that causeth the death of a man and no more In case of wreck he may take only the goods that are wreckt and no more In case of Wardship of Land holden in Capite the King may take the profits of the Land till the Heir sues his Livery and no longer In case where the King hath Annum Diem vastum hee may retain of the Lands of the Felon attainted which are holden of other Lords for a year and a day and no longer In all these cases there is a certainty what the King shall have and how long he shall have it but in case of Imposition the quantity or rate thereof high or low is left to the Kings own will or pleasure so as if he should be mis-led as many Princes have been with evill Counsell he might with his Prerogative doe hurt the Cōmon-wealth by laying too heavy burthens upon his Subjects for though hetherto his Majesty hath imposed upon Merchandizes only twelve pence on the pound over and above the ancient Custome and the Subsidies granted by Parliament yet this Prerogative being unlimitted he may hereafter say they set five shillings or ten shillings upon the pound if it please him and so undoe the Merchants or discontinue and overthrow all Trade and Comerce CHAP. XXV The Answer to the second Objection TO this Objection the fittest answer is That it is an undutifull Objection and withall too busie too bold and too presumptuous for it is an Objection against the wisdome of the King in point of Government and against the bounty and goodnesse of the King towards his people the Text of the Civil Law cited before doth call it a kind of Sacrilege to dispute of Princes Judgments or Actions and for the Law of England sure I am that it trusteth the Wisdome and Judgement of the King alone in matter of greater importance than in laying of Impositions or setting of rates upon Merchandizes Is not the Kings wisdome only trusted with the absolute power of making War and Peace with forein Nations whereby hee may when hee pleaseth interrupt all Trade of Merchandizing Is not the King alone trusted with the like power of making and decrying of monies which is the onely Medium of all Traffique and Comerce Is not he solely and without limitation trusted with the nomination and creation of all Judges and Magistrates who are to give Judgement in cases concerning the Liberties Lands and Lives of all his Subjects hath not he a sole and unlimited power to pardon all Malefactors to dispence with all penal Laws to distribute all Honours to grant to whom he pleaseth Protections Denizations Exemptions not only from Juries but from all other Services of the Common-wealth and yet these Prerogatives if the same be not used with judgement and moderation may prove prejudicial to the Common-wealth as well as the laying of Impositions upon Merchandizes Shall therefore any undutifull Subject make these conclusions The King may have a continuall Warre with Forein States and Princes and so continually corrupt all courses of Merchandizes Ergo he shall lose his
their answers made by the King thereunto it is evident that neither the Petitions of the people nor the Kings answers thereunto do disprove this right of the Crown to lay Impositions upon Merchandizes for Petitions do not of necessity prove or suppose the Petitioners have received wrong Petitions are of divers kinds 1. There are Petitions of Grace which do not insist upon any right but upon meer Grace and Favour 2. There are Petitions of Right wherein the Petitioner doth set forth a pretended right and yet perhaps upon examination it is found that they have no right at all and commonly they ask more than their right is Iniquum petas ut aequum feras 3. There are Petitions Armatae when a company of Rebels armed against the Crown do yet preferre their Petitions but with an intent to effect their desire whether it be right or wrong if their Petitions be not granted Et stricto supplicat ense petens many of their armed Petitions were exhibited during the Barons Wars during the Wars of Lancaster and York and in sundry popular comotions since the Conquest but these Petitions which we speak of were made by the Commons or by some factious Spirits in the name of the Commons in sundry Parliaments holden during the Reign of King Edw. 3. howbeit if wee look upon the form of these Petitions we shall find there is nothing sought but Grace and Favour and if we consider the Kings answers though many of them be very gracious we shall find him therein much reserved and withall circumspect not to prejudice or conclude his Prerogative in point of right the form of these Petitions was for most part but thus The Commons pray that the Imsitions or Maletolt of fourty shillings upon every Sack of Wooll may cease or be taken away and that the Custome of the demi mark may onely be taken Or thus The Cōmons pray that the passage of the Sea may be open to all manner of Merchants and Merchandizes as it had been in former times herein we find no claim or challenge of right but a modest prayer of Grace and Favour unlesse the word Mayletolt may seem to imply a wrong because some do conceive that the word doth signifie an evil Toll wheras indeed the word doth signifie Toll-money for Mayle in old French is a small peece of money and therefore the rents taken by force in the Borders of Scotland was called Blackmayle and the word Mayletolt in some of our old Statutes is taken in bonam partem which speaks of Droiturell Mayletolts But in what form doth Edw. 3. make his Answers to those Petitions in divers formes according to the diversity of the occasions reasons of State but alwayes in a gentle and gracious manner sometime he granteth the Petition in part onely for a certain time or after a certain time expired that his people may know that as he receiveth part of the Petition so he might have rejected the whole if he might have been so pleased sometimes he granted the whole Petition yet not absolutely but conditionally that hee may receive a greater recompence but wheresoever he doth franckly yeeld to remit any Imposition we find in the same Record a Subsidy granted unto him of far greater value and profit than the Imposition by him remitted wherein we perceive that he followed the wise counsell of Roabohams old Counsellers given in the like case of Impositions 3 Kings cap. 12. Se hodie obedieris populo huic petitioni eorum cesseris locutusque diebus c. Sometimes he gives a generall or doubtfull answer and sometimes hee is silent and gives no answer at all so as he doth never bind nor conclude himself by any of those answers to those Petitions but with such reservation as he might still make use of his Prerogative in laying Impositions upon Merchandizes to demonstrate this point more plainly it were not amiss out of many Records which I have seen and whereof I have the Copies transcribed out of the Records themselves with mine own hands to select and set down some of those Answers in any of the kinds aforesaid In 14 Edw. 3. cap. 21. the Cōmons pray the King that he would grant an Act of Parliament that no more Custome should bee taken for a Sack of Wool but a demi mark nor for Lead nor Tin nor Leather nor Wooll-fells but the old Customes This Petition is general and extending to all Staple Comodities without exceptions of persons or limitation of times but what is the Kings answer That from the Feast of Pentecost which commeth unto a year neither he nor his Heirs shall take of any Englishman for a Sack of Wooll more Custome than the half Mark upon Wooll-fells and Leather no more than the old Custome Here this Petition is granted but in part First in respect of the persons for Englishmen only are favoured and Strangers are omitted Secondly onely in respect of the Commodities for Wooll-fells and Leather onely are exempted and Tin and Lead remain to be charged as before Thirdly in respect of the time for the King continueth his Impositions formerly laid for a year and more notwithstanding that Petition But let us see withall what the King did gain in Parliament upon yeelding to the peoples Petition but in part in the first Sessions of this Parliament it was granted that every man who should ship Woolls over the Seas should find Sureties to bring in upon his first return for every Sack of Wooll two Marks of Silver Plate or Bullion and to deliver it to the Kings Executors and in the next Sessions there was granted unto him the nineth Fleece the nineth Lamb and the nineth Sheaf of Corn throughout the Realm which the people did often times redeem with a gift of twenty thousand Sacks of Wool Here we see the fruit that the King made by following of Rehoboams old Counsellers yet out of this grant and remission made by the King who can draw an Argument against the Kings right in laying Impositions upon Merchandizes Again 29 Edw. 3. when there lay an Imposition of fourty shillings upon a Sack of Wooll above the old Customes A Conferrence was had between the Lords and Commons in the White Chamber at Westmin where after a short Parliament saith the Record 29 Edw. 3. Rol. Parliament numb. 11. in Arch. Turris It was concluded that the King should have a greater Subsidie out of Wooll Wooll-fells and Leather for six years so as during that time the King did lay no other Impositions or Charge upon the Commons Here is a conditionall agreement between the King and the poople and here the King doth remit his power of Imposition for a recompence of greater value And this is a strong Argument That the King had right to impose otherwise the people would never have bought their freedom from Impositions at so high a rate or price The like conditionall agreement between the King and the
upon Salt amounting to an exceeding great Revenue the Impost of Wines upon every Vessell carried into any walled Towns or Suburbs thereof and payable although it be transported thence again before it be sold la hault passage or de maine forrein for Merchandizes exported le traject forrene for Merchandizes imported la solid de Cinquants mil holmes imposed upon Cities walled Towns and the Suburbs onely and after layd upon Town and Country without distinction the common positions for provisions the tenthes paid by all Ecclesiasticall persons These and other Impositions of the like nature are layd and levied upon the Subjects of France by the absolute power and Prerogative of the King and though many of these were imposed at first upon extraordinary occasions and set but for a time yet the succeeding Princes have continued them from time to time and the most part of them made ordinary and perpetuall by King Lewis the 11. who was wont to say France was a Meadow which he could have mowed as often as he pleased In Spain there is an Imposition named Alcavala imposed as well upon the Nobility as the Commons which was first raised by Alphonsus the 12. to expell the Mores and for the expurgation of Algiers but afterwards it was made perpetuall and is now a principall part of the Royall Patrimony Gutturis de Gabellis Quaest. 174 this Imposition was at first but the twentieth part but afterwrds it was raised to the tenth of every mans Estate which doth far surmount the highest Impositions that ever were layd in England by the Kings Prerogative without Act of Parliament This Alcavala is an Imposition within the Land but the Impositions upon Merchandizes exported and imported are far higher especially upon Merchants Strangers for their common Impositions upon Strangers is five parts upon the hundred and in the year 1604 they imposed thirty of the hundred as is before declared and upon the Ingate of Indian Spices into Portugall the King of Spain doth lay the greatest rates that ever were set in Christendome although upon the outgate the rates are more moderate In Italy the Impositions and Gabells set upon every kind of thing by the States and Princes there are intolerable and innumerable Non mihi si Centum Linguae sunt oraque Centum Ferrea vox Italorum omnes numerare gabellas Cunct a gabellarum percurrere nomina possem Especially upon the great Towns and Teritories that are subject to the Great Duke of Tusknie where there is not any roots nor any herb nor the least thing that is necessary for the life of man that is bought and sold or brought into any Town but there is a Gabell or Imposition set upon it where no Inholder Baker Brewer or Artificer can exercise his Trade but the Great Duke will share with him in his gain by laying some Imposition upon him where no man can travell by Land or by Water but at every Bridge at every Ferry at every Wharf or Key at every Gate of a Town the Garbellor arrests him and is ready to strip him naked to search what goods he hath about him for which he ought to pay the Garbell In the Popes Territories the Impositions which His Holinesse doth lay upon his Subjects as a Temporall Prince are as many and as heavy as those that are levied by the Duke of Tuskanie in so much as when Sixtus Quintus had set an Imposition upon every thing that served for the use of mans life Pasquill made hast to dry his Shirt in the Sun fearing the Pope would set some Imposition upon the heat of the Sun miastingo saith he in the 16. sole sevenda I omit to speak of the Exactions of the Court of Rome in another kind which are infinite and which long lay heavie upon the Western Countries of Christendome untill of late years some Nations did free themselves thereof by rejecting the Yoke of the Bishop of Rome In the Seigniory of Venice the Gabells upon the Land were more moderate than in the other parts of Italy But that City being the Lady of the Adriatique Sea doth use by prescription a high Prerogative in laying Impositions upon all Merchandizes arriving within the Gulf Civitas Venetiorum saith Baltholus potest pro maritmeis mercibus Gabellas imponere quia est Civitas in Mari situata Veneti saith Baldus ex consuetudine sunt domini maris Adriatici possunt statuere super Gabellis maris wherein they observe a profitable and politique course for upon the Commodities of other Nations which are of goods in their Common-wealth they lay the easier Impositions sometimes five sometimes seven sometimes ten upon the hundred which doth exceed the highest Imposition in England five in the hundred at the least In the Low Countries the Impositions which they call Excizes paid by the Retaylors of Wines and other CoÌ„modities and not by the Merchant are the highest in Christendome and yet we perceive that people to thrive and grow rich withall for an improved high rent doth so quicken the industrie of the Farmer as he thriveth oftentimes better than his Neighbour who is a Free-holder and payeth no rent at all howbeit to draw Trade and to invite all Nations to Comerce with them so to make their Country a Staple Store house or Magizen of all Europe they do set but easie rates upon Merchandizes imported but when they once have gotten their coÌ„modities in to their hands if any Merchant will export the same again hee shall pay a greater Custome The Grand Seignior of Turkie doth impose sometimes ten in the hundred sometimes twenty in the hundred upon Merchant Strangers who Trade into the Levant and I could speak of his other Exactions and Impositions upon his Vassalls but that I think it not meet to compare that Regions Tyrant to the Princes and States of Christendome I may remember at last the Great Toll which the King of Denmark taketh of every Ship that passeth into the Sound taking advantage of a narrow Straight between Elsmore and Copman Haven whereas the King of England being the undoubted Lord of the Narrow Seas between Dover and Callis might take the like Toll if it pleased him and by the same right might participate of the great gain of Fishing which the Busses of Holland and Zeland do make yearly upon the Coasts of Great Britain Thus we see by this comparison that the King of England doth lay but his little Finger upon his Subjects when other Princes and States do lay theâ—â— heavy loins upon their people whâ—â—â—â—â—the reason of this difference froâ—â—â—hence commeth it assuredly not from a different Power or Prerogative for the King of England is as absolute a Monarch as any Emperor or King in the world and hath as many Prerogatives incident to his Crown whence then proceedeth it to what profitable cause may we ascribe it certainly to divers causes profitable and