against Ale-houses is if not by the Common Law yet by the force of this law unlawfull For certainly quod prohibitum est una viae non debet alia permitti As for the words Ayde and Charge I have already proved that it was a terme by which Impositions were commonly called in those times That they were also called charges is evident by very many Records of those times The word Charge where complaint is made against them as 21. Ed. 3. Numb 11. Les commons prion qe la charge de 2â— sur sack de lane soit Ouste 21. Ed. 3. Num. 16. The Commons pray that no charge be set upon them without assent of Parliament The kings answere is if any Imposition be levyed unduely it shall bee taken away of this kinde there are very many Presidents so as if the precedent Petition had not assured us of the scope of this Lawe as it doth the very words themselves rightly understood would have made it cleere In the same Charter there is another clause as beneficiall as this to this effect All Merchants Denizens Forreins except those which be of our enmitie may without let safely come into the Relm of England with their goods and Merchandizes and safely tarry and safely returne paying the customes subsidies and other profits reasonably thereof due The objection to this clause is very obvious for what say they can these words Other profits reasonably due signifie other than Impositions for by the words going before Custome and Subsidies are expresly named and there is say they no other third profit upon Merchandize but Impositions and indeed this Statute they themselves have vouched in maintenance of Impositions To this objection it might serve for a full answer that there are other duties then Customes and Subsidies due upon the landing of wares for example Wharfage Cranage Scavage and such like the which with more probability I may conjecture to be intended by these words Other duties then they can conjecture it to bee meant of Impositions Sed in planis non opus est conjecturis The best expositors of this Act are those that lived in the same times and they doe cleerely expound this clause to be made against Impositions as may appeare by the Record of 21 E. 3. No. 29. for you shall there finde a Petition exhibited in Parliament by the Commons to bee relieved touching an Imposition upon Wools alledging for a reason of their Petition that every man ought freely to passe paying the antient custome as it was ordained by the kings Charter This Petition against Impositions was exhibited by the whole Parliament within six yeeres after the making of the Charter as may appeare by comparing the times and if they had not then thought that Impositions had been meant to have beene provided against by this Charter they would not certainly have made such a speciall reference thereunto In discovering the weakenesse of the reasons alledged in maintenance of Impositions Answers to the Reasons urged in maintenance of Impositions I shall not greatly neede to say any thing more then hath been said because the state of the question hath beene already so throughly opened unto you that whatsoever can with any colour of reason be said for Impositions may receive an answer out of that which hath beene spoken against them Neverthelesse I will in a few words recall to your memories their reasons and in as few apply the answers to them with some additions of mine owne that by laying both together in your view at one time the weakenesse of the one and strength of the other may the better appeare unto you It hath beene said that the old Custome of a Demi-marke upon a sack of VVool must have his beginning either by the kings absolute power The first argument That because it cannot appear that the ancient Customes were set by Parliament therefore they were imposed by the King answered or by a legall assent of the people which can bee no where but in Parliament and cannot but appeare of Record but because no such assent can be showne therefore they conclude that it began by the kings absolute power and inferre that the same power remaines still The substance of this argument is found in my Lord Dyer in the place cyted by me It was much inforced in the Exchequer but as touching the particular of the old Custome of a Demi-marke upon a sack and the other old custom upon Fels and Leather it is now no longer urged because it appeares expresly by divers Records of 3 E. 1. in the Tower That it was granted per les grandes et al prier des Comons et de les Merchants de tout Englaterre and by a Record of 25. E. 1. cap. 7. Stat. printed per Communitatem Regni nostri Angliae Ro. Pat. 3. E. 3. M. 1. Stat. 25. E. 1. c. 7. Ro. fin intus 3 E. 1. M. 24. which concurres also with the Statute of 25 E. 1. cap. 7. in print Saving to Us and our Heires the Customes of wools skins and leather granted heretofore by the Comminalty aforesaid The Pattent roll of 3 E. 1. which hath these words cum Prelati Magnates ac tota Comunitas Mercatorum Regni nostri nuper nobis concesserunt quandam novam consuetudinem 3. E. 1. M. 1. Ro. Par. viz. de quolibet sacco Lanae 6s 8d c. being something thing obscure are by the concurrence of all those other Records so cleerely expounded as there cannot be neither now is there any question made but that the Custome of a Demy-marke and the other old Customes which by my Lord Dyer and by all those who argued for or against Impositions in the Exchequer was held to bee due by the Common-Lawe was by grant in Parliament neverthelesse the strength of the argument they still retaine though the Demy-mark and those old Customes upon the staple commodities were by Act of Parliament yet say they before that increase by Parliament the king had Custome and no doubt a some certaine otherwise could not this increase be called nova consuetudo besides say they the Custome reduced to a certainty by 3 E. 1. is only upon three commodities wool skins and leather there are many other commodities which did likewise pay Custome How began that Custome say they if not by the kings absolute power and when was that power taken away I answere admit it were by the kings absolute power yet that the king hath cleerely discharged himself of that power by Act of Parliament I hope I have cleerely proved But this question How began the first Customs is best answered by another question How began the Fine for purchase of Originall VVrits the Fine pro licentia concordandi the certainty of prisage nay who reduced it first to certaintie that the tryall of issues should be by twelve Jurors no more nor no lesse that the full age of a man should bee accounted twenty one yeers of a woman
THE LIBERTIE OF THE Subject AGAINST THE PRETENDED POWER OF IMPOSITIONS Maintained by an Argument in Parliament Ano. 7o. JACOB 1 Regis By WILLIAM HAKEVVIL of Lincolns Inne Esq LONDON Printed by R. H. An. Dom. 1641. To the Reader BEing very sensible of a great Injury lately done mee by the extreme false printing of a smal Treatise of my Composing stoln out without my consent and hearing accidentally that some part of this also had passed the Presse I thought good for the preventing of the like wrong to stay the forwardnesse of the printer untill I had reviewed and corrected it by mine owne Notes For my part I should have been contented altogether to have restrained it if I might But now seeing it must abroad I shall not bee ashamed to let it beare my name and owne the errors of it my self those of the Presse excepted though heretofore it had gayned so much reputation by some as it was attributed to a worthier Author Some there are yet surviving that heard this Argument about thirty yeeres since in the Commons-House of Parliament but it hath now extended it selfe beyond the probable proportion of a Speech or Argument by the insertion of many Records and Acts of Parliament more at large which at the delivery of it were but meerely quoted The Endeavour of it is to prove that the just Prerogative of our Kings never warranted them to raise monies at their pleasure by laying a charge on Merchandize to bee Exported or Imported without assent of Parliament But on the contrary the setled Lawes of the Land the Presidents of former Ages the Acts of our most necessitous and powerfull Princes and indeed every thing requisite to make the Truth apparent doe as it were unanimously consent to discharge us of this unjust and heavy Burthen And you shall see herein how the policy of active Princes hath by many waies attempted to undermine those Fortifications which the wisdom of our Ancestors hath raysed to maintaine themselves from this kinde of Assault You shall see with how great difficulty their prevailing was withstood And which is the glory of Truth you shall finde those designes which were laid to overthrow our Right mainly to make for the evidence and confirmation of it For whatever unjust Impositions were either exacted by a pretended lawfullnesse or set up by a commanding power were by complaint in Parliaments presently following taken down and remain on Record as witnesses against themselves unlawfull and against our Libertie These Reasons and Arguments of mine how meane soever those times wherein I urged them accepted favorably and since in their private passage in manuscripts were entertained in many judicious hands which made mee somwhat enlarge the conceit that before I had of them And now seeing necessitie enforceth mee to make them more publique I must adventure them to the censure of these nice times Beneficiall happily they may be to some prejudiciall I hope to none In which confidence having the leave of Authority they have likewise my leave to goe abroad Vale. W. H. The Contents 1 THat there was ever some Custome due to the King by the Common-Law folio 6. 2 That it was a sum certaine by the Common-Law folio 10. 3 That all the Revenues which the Common Law giveth to the King out of the interest of the Subject are certaine or reduceable to a certainty by some legall course and none left to the Kings pleasure folio 11. 4 The reasons why the Law requireth such certainty in those Revenues which the King hath out of the interest of the Subject folio 12. 5 Examples of Revenues given by the Common Law to the King out of the interest of the Subject and that they are all certaine folio 13. 6 Answer to an Objection that the King may lay Impositions upon extraordinary occasions folio 21. 7 Arguments drawne from the actions of our Kings that they had no power to impose folio 25. 8 Arguments drawn from the forbearance of our Kings to lay Impositions notwithstanding their urgent occasions folio 34. 9 The difference between the Presidents urged of Impositions laid by the antient Kings and those which are now laid folio 29. 10 A particular answer to the Imposition of 3d in the pound laid upon Merchant-strangers by Charta Mercatoria 31 Ed. 1. folio 42 43. 11 The urgent occasions which Ed 2. had to lay Impositions and yet how he forbore folio 48. 12 The severall policies used by Ed 3. for the introducing of the power of Imposing 1. Impositions taken by colour of a voluntary Grant from Merchants folio 49. 2 By way of dispensation wiih penall Lawes folio 59. 3 By way of Ordinance in Parliament folio 61. 4 By colour of a Loane by Merchants folio 64. 5 By Grants of Merchants for Liberties granted to them folio 65. 6 By expresse and direct commandement folio 66. with severall answeres to all these severall wayes 13 In what Statutes Impositions are mentioned after Edw. 3. time untill Qu. Maries and upon what occasions and how to be interpreted folio 73. 14 The signification of the words Imposition Toll Maletolt Custuma Consuetudo magna parva folio 73 103. 15 No Imposition laid from Edw. 3. time till Qu. Maries folio 78. 16 What urgent occasions all the Kings from Edw. 3. till Qu. Maries time had to lay Impositions and yet did it not Rich. 2. f. 79. Hen. 4. f. 82. Hen. 5. f. 84. Hen 6. f. 85. Edw. 4. f. 85. Hen. 7. f. 86. Hen 8. f. 89. Edw. 6 f 92. with a Corolary of all those times and occasions folio 92. 17 The Impositions laid by Q. Mary and how answered folio 93. 18 Admitting the Kings had power by the Common Law to lay Impositions yet how they are barred by Statutes folio 98. 19 Magna Charta cap. 30. urged against Impositions and the objection made against it answered 1 Objection That it extendeth onely to Merchant-strangers f. 100. 2 That it was made onely against Taxes within the Land f. 101. 3 That by the exception in the end of the Statute the Kings Prerogative is salved folio 111. 20 The Statute de Tallagio non concedendo urged with the answers to the objections made thereunto folio 113. The exposition of the words Tallage Ayde Subsidie folio 112 114. 21 The Statute of 25 Ed. 1. cap. 7. urged against Impositions and cleered from Objections 1 That it is against the excesse of Imposititions and not against the Right f. 115 116. 2 That it is onely a-against Impositions on Woolls folio 118. 22 The Statute of 14 Ed. 3. cap. 21. urged against Impositions and cleered from Objections 1 That it extendeth onely to Impositions within the Land and not upon merchandizes with an exposition of the word Charge folio 118 121. 23 Answers to the Reasons urged in maintenance of Impositions 1 That because it cannot appeare that the ancient Customes were set by Parliament therefore they were imposed by the King folio
125. The Antiquity of Parliaments folio 128. 24 Answer to the the second Reason urged for Impositions That the King may totally restraine importation and exportation and therefore may restraine sub modo by laying Impositions folio 124 125 c. 25 Answer to the third Reason That the Ports are the Kings and that he may open and shut them on what conditions he pleaseth folio 136. 26 Answer to the fourth Reason That the King is bound to protect Merchants and safeguard the Seas and that therefore he may lay moderate Impositions for raising of many to defray his charges folio 138. 27 Answer to the fifth objection That all forreign Princes have power to impose and if our King should not have the like it might be very inconvenient to this State ibid. 28 A summary Conclusion of the whole Argument folio 141. Mr. SPEAKER THe Question now in debate amongst us is Whether his M tie may by his Prerogative Royall without assent of Parliament at his own will and pleasure lay a new Charge or Imposition upon Merchandizes to be brought into or out of this Kingdome of England and enforce Merchants to pay the same I Must confesse that when this Point was first stirred mongst us and that wee not contented to seeke redresse for the excesse of the present Impositions resolved to proceed farther by calling his Majesties right of Imposing into question I was very sory for I saw we were then in a faire way to have obteined a very great abatement of the Impositions that now are and besides we had his Majesties promise never to lay any more but in Parliament time by the advice and free consent of his Subjects repayring hither from all parts of the Realme This hope of a present ease and gracious promise for the time to come gave me I confesse a full satisfaction especially seeing I was confidently perswaded that his Majesties right to impose was very cleere and not to be disputed and that therfore by drawing into question the right wee might give his Majesty just occasion to withdraw from us his gracious purpose of the present abatement as also his promise for the time to come For Syr when the Case of Bates who as you know was called into question for refusing to pay the Imposition laid upon Currans was argued in the Exchequer in which Case his Majesties right to Impose was solemnly disputed and there resolved for his Majesty I was then present at all the Arguments both at the Bar and at the Bench And I doe confesse that by the weighty and unanswerable reasons as I then conceived them of those grave and reverend Judges Flâ—ming Ch. Bar. Clarke Savil. sitting in their seate of Justice I was much perswaded but by those many records vouched by them I was altogether overcome and as it were vanquish't to yeeld to them for Syr Ratio suadet Anthoritas vincit But though I were then and when the Question was first moved in this house very confident yet as you shall perceive anon I was not very constant in that opinion for being amongst others imployed by this house to make search in the Exchequer for Records which by the practise of former ages might guide our judgements in this weighty point and having diligently collected the Arguments made in the Exchequer and not only so but compared my owne collections with Reports thereof made by divers other of my friends finding that some of the Records urged in those Arguments were untruly vouched and many misaplyed I then began to stagger in my opinion and presently fell to examine the weight of the Reasons which had been alledged which in my poore censure I found not of strength sufficient without the full concurrence of cleere Presidents of former times to maintaine the Judgement given or my Opinion grounded thereupon And therefore Syr In love to the truth I did forsake my former opinion as erroneous and do now embrace the contrary that is That his Majesty hath no right to impose and so am now become a convert Those Reasons that moved mee thus to change and the weakenesse which I discovered in the Reasons alledged against the opinion which I now hold I will with your patience open unto you and will therein follow the commandement of Christ to Peter Beeing converted seeke to convert my brethren As touching the Judgement in the Exchequer standing yet in force so often cast as a block in our way though I much reverence the persons of those yet living and the memory of those that are with God who gave the Judgement Yet seeing as I hope I shall bee able evidently to prove the same to bee against the great Charter of our Liberties I can esteeme no otherwise of it then the Statute of 25. Ed. 1. cap. 10. pronounceth of all such Judgements that is that it is void and to be held for nought Thus much I thought good to say by way of Preamble or Introduction to the matter now by your favors I will enter into the debate of the Question in handling of which I will purposely avoid the repetition of any thing that hath been spoken by any man that hath argued before as knowing in what presence I speake That I may the better convey my selfe through my Argument and be the better conceived of you that are to heare me I will divide that which I have to say into certain parts which I will prosecute in order First I hold it necessary to consider whether Custom were due to the king by the Common-Law Secondly admitting it to bee due by the Common-Law whether it were a summe certain not to be increased at the kings pleasure or otherwise Thirdly supposing that by the Common-Law the king might by way of imposition have increased his Custom at his owne will by his absolute power without assent in Parliament whether or no hee bee not bound to the contrary by Acts of Parliament In the handling of which part I will consider the strength of every Act of Parliament hitherto vouched to this purpose answering as I goe such objections as have been made against those Statutes by such as have mainteined that the king is not bound by them I will also add a Statute or two as yet not remembred by any Lastly I will discover unto you the weaknesse of such Reasons as have been made in maintenance of the Kings right to Impose in the prosecuting of which parts I will as occasion is offered give some answere to that which hath been last spoken as knowing it to be expected at my hands By Sir Robert Hitcham First then to consider Whether there were by the Common-Law any duty belonging to the King upon Merchandize to be caried into or out of the kingdom known by the name of Custom Though the mainteinance of Custome to be due by the Common-Law be a point of such consequence to them that mainteined the Kings right to Impose as without the upholding of which
require at the hands of the Soveraigne protection and defence of the Subject against all wrongs and injuries whatsoever offered either by one Subject to another or by the Common Enemy to them all or any of them This Protection the Law considereth cannot be without a great charge to the King And because as Christ saith No man goeth to warre upon his owne charge the Common-Law therefore hath not onely given the King great Prerogatives and favours touching his own patrimony more I beleeve than any other Prince in the world hath but also hath for the sustentation of his great and necessary expences in the protection of his Subjects given him out of the interest and property of the Subject an ample and very honorable revenue in very many particular cases some of which I will call to your remembrance He receiveth out of the Subjects purse for wardships and the dependances thereupon as we have of late accounted about forty five thousand pounds by the yeare This is a Revenue which no other King of the world hath And as it appeares by the Statute of 14. E. 3. c. 1. It ought to be imployed in maintenance of the warres and so doubtlesse was the first institution of the Common-Law For the Lord hath the profit of the Wards lands to no other end than to maintain a man in the warre during the infancy of him who otherwise should serve in person He hath likewise all forfeitures upon Treason and Outlawry and upon penall Lawes Fines and Amerciaments Profits of Courts Treasure-Trove Prisage Butlerage Wreck and so many more as the very enumeration of the particulars would take up long time To what other end hath the common-Law thus provided for the maintenance of the Kings charge by all these wayes and meanes of raising profit out of the Interest and property of the Subjects estate in lands and goods but onely to this end That after these duties paid the poore Subject might hold and enjoy the rest of his estate to his owne use free and cleare from all other burdens whatsoever To what end hath the Law given a part to the King and left the rest to the Subject if that which is left be also at the Kings will to make his profit thereof as he pleaseth To give a small portion to him that may at his pleasure take more or all is a vain and an idle act which shal never be imputed to a wise Law But it may be objected that as the revenues are ordinary Answere to an objection that the King may lay Impositions in times of extraordinary occasions so are they by the Law provided onely for the susteyning of the kings ordinary charge and that if the Law have not taken further consideration and limmitted some certain course how upon sudden and extraordinary occasions the kings charge may bee susteined that there is yet no reason shewed to the contrary why the king may not upon such occasion take some extraordinary course for the raysing of money as by the laying of Impositions upon Merchandizes or by a tax within the Realme rather then the Common wealth for want thereof should perish or be indangered Sir Robert Hitcham And hereupon by the knight that last spake it was held that upon occasion of a sudden and unexpected war the King may not only lay impositions but levy a tax within the Realme without assent of Parliament which position in my opinion is very dangerous for to admit this were by consequence to bring us into bondage You say that upon occasion of suddaine warre the king may levy a Tax who shall be Judge between the king and his people of the occasion can it be tryed by any Legall course in our Law it cannot if then the king himselfe must be the sole Judge in this case will it not follow that the king may levie a taxe at his owne pleasure seeing his pleasure cannot be bounded by Law You see into what a mischiefe the admittance of one error hath drawne you But for a full answer to the objection I say that the providence of the Common-Law is such and so excellent as that for the defraying of the kings charge upon any occasions of a suddain warre it hath over and above all the ordinary Revenues which it giveth the king which in the time of warre cannot indeed but fall short made an excellent provision for Sir The warre must needs be either offensive or defensive Offensive must either be upon some Nation beyond the Seas or against the Scots or Welsh or other borderers within the Iland If it be an offensive warre upon some Nation beyond the Seas it cannot be a sudden Accident for it is the kings own act and he may and 't is fitting he should take deliberation and if it be a just and necessary warre he may crave and easily obtaine assistance of his Subjects by grant of Ayd in Parliament If an offensive warre upon some of his neighbors within the Continent of this Iland as the Scots or the Welsh which also cannot be sudden or unexpected to the king being his own act you know how politikely the kings of this Realme have provided by reserving Tenures by which many of their Subjects are bound to serve them in those warres in person at their owne charge Only a Defensive warre by invasion of forreign enemies may be sodain in which case the Law hath not left the king to warre upon his owne expence or to rely upon his ordinary Revenue but hath notably provided That every Subject within the Land high and low whether he hold of the king or not in case of forreign Invasion may be compelled at his own charge to serve the king in person as it appeares by the opinion of Justice Thirming in 7 H. 4. The reason of which in my opinion was to no other end than that the king might have no pretence whatsoever for the raising of money upon his Subjects at his owne pleasure without their common assent in Parliament I doe then conclude this Argument that seeing the Common-Law for maintenance of the Kings ordinary charge hath given him such an ample Revenue out of the interest and property of the Subject and provided also for sodaine occasions that in so doing it hath secluded and secured the rest of the Subjects estate from the Kings power and pleasure and consequently that the King hath not power upon any occasion at his pleasure to charge the estate of his Subjects by Impositions Tallages or Taxes for I hold them all in one degree or any other burden whatsoever without the Subjects free and voluntary assent and that in Parliament If it were otherwise you see how it were to the utter dissolution and destruction of that politike frame constitution of this Common-wealth which I have opened unto you and of that excellent wise providence of the Common-Law for the preserving of property and the avoydance of oppression These two Arguments used by me that
it to your judgement whether I maintaine my assertion or be not rather better then my word for the number The first Imposition by them alledged Urged by Flem. Clark Doderig is that of 16. Ed. 1. which as it appears by the Record was 4. shillings upon a Tun of Wine This indeed for ought I know to the contrary was a meere Imposition such as are now in question and yet if I did deny it and say that it was layd by assent of Parliament I know not how the contrary could be proved for though indeed the words of the Record are Cum Rex precipisset ut de singulis doliis vini caperentur 4. solidi it follows not that it was laid therefore only by the kings commandment for we see that even some Acts of Parliament in those auncient times though they were made by the full assent of all the three Estates yet they have these words in their preambles Rex precepit Rex vult But as for Recitalls of Acts of Parliament by the King in his Commissions and otherwise it was in those times usuall to say Cum nuper ordinaverimus and therefore notwithstanding the Recitall be Cum nuper Rex precipisset it is no cleere proof that therefore it was done onely by the Kings Commandement Neverthelesse I will I say admit this to be a meere Imposition and to be one of the number and indeed as this is the first they produce so is it their best only this amongst all the rest is not limited to indure for a time certain but give me leave I beseech you to open unto you with what circumstances this Imposition was accompanied and what followed of it and then I will leave you to judge who best are able how far the present Impositions may be justifyed by this The first circumstance to be observed in this Imposition is that it was laid immediately after the warre against Wales was ended and at the time when for the selling of the Estate of Gascoigne the king himself was in person enforced to undertake a voyage thither as may appeare by our Histories of those times which also may bee collected by the very words of the record which are these Cum Rex ante ultimum Recessum suum ab Anglia precepisset c. That as these times were troublesome they were also very chargeable to the king and did put him to try all meanes for the levying of money I shall not need to urge it it cannot be otherwise One other circumstance is this that this imposition laid in this time of great necessity was not as now upon all Merchandizes nor so much as in generall upon one kinde of Merchandize comming from all the parts of the world but onely upon such wines as were brought hither from two Towns in Gascoigne Bergerac and St. Emilians 16. E. 1.22 E. 1. in Scacario as may appear by the Records and it is probable that these Towns were then in revolt that the sooner to reduce them to obedience the King laid this burden upon their commodities thereby to hinder the vent of them Another circumstance is this that though that this Imposition were indeed laid without limitation of any time as touching the continuance thereof yet within six years following viz. 5. Decemb. a. 22. upon complaint of the Merchants the king released two shillings of the foure shillings as may appear by the Records of 22 E. 1. with which the Merchants not holding themselves contented the very same yeare within eight or nine months following viz. 23. Juliian 22. the whole Imposition was released as may appeare by a recitall in the accompt of one William Randall receiver of the Impost money entred an 26 E. 1. And within three years after the release viz an 25. there followed an act of Parliament against all Impositions in generall as when I come to shew you what Statutes there are in the point I shall I hope cleerly prove unto you In the meane time I will proceed to examine the rest The next president urged is an imposition of 40. shillings upon a sack of wooll laid by E. 1. an 21. For the proofe of which a record of the Exchequer of that year hath been vouched I must confesse I have not seen that Record but by another Record of the same Court an 26. E. 1. it is evident that the said Imposition was not raised by the kings absolute power but by grant and that also the same was in the time of warre and to endure but two or three yeare if the warre should so long continue as will best appear by the words of the Record Cum custuma 40s nobis in Subsidium guaerrae nostrae contra Regem Franciae de quolibet sacco lanae exeunte regnum nostrum percipiendum per biennium vel triennium si tantū durasset guerra illa nuper concess fuit c. By this you perceive by what means upon what occasion and with what limittation this imposition was laid if you will further know what followed of it May it please you to read the Printed Statute of an 21. E. 1. c. 7. where it is said that the more part of the Commonalty found themselves sore agreeved therewithall And by the same Statute not only that imposition of 40. shillings upon a sack of wooll which was the occasion of the great grief complaint was taken away but upon occasion thereof there was at the same time provision also made against all other impositions whatsoever as I say I hope I shall anon cleerly prove unto you Insomuch as this imposition of 40. shillings upon a sack of wooll ought to be so farre from being urged as a president for the present imposition and consequently of the grievance of the Common wealth which followes thereupon as that rather on the contrary part it may be thought to be the happiest accident in the consequence thereof that ever befell the Common wealth in this kinde For it was the occasion of the making of the first law that ever was made against impositions and other charges and burdens of that nature to be imposed by the kings absolute power without assent of Parliament And so I leave their second President Vouched by Fleming Clark Dodderidge Bacon Attorny Hobart and come to the third which in time was 31. of the same King E. 1. It is no other then that increase of Custome which by the Merchant strangers was granted to king Ed. 1. by that Charter now familiarly known unto us by the name of Charta Mercatoria which by all that have maintained his Majesties right to impose hath been stood upon and urged as an imposition by the kings absolute power but more especially hath Master Solicitor been strongly inforced with all the advantage possible for the mainteinance of his opinion Neverthelesse I doubt not but I shall give it a very full answer such as yet this objection hath not received though divers that have spoken before and
some this day have undertaken to cleere it wherein I will arrogate nothing to my selfe but leave it wholly to your censure It hath been said by Master Solicitor that though this increase of Custome may seem to some to proceed from the grant of Merchants yet that this grant of theirs was to no other purpose nor had other effect then only thereby to declare their assent For that that those which did grant were no Corporation or body in the estimation of Law and so could not binde any but themselves alone and not such as should succeed them And that it was only the authority of the kings pleasure to accept and take this increase of Custome that gave it life at the first and strength to continue as an Imposition till this very day For even at this day saith he the 3. pence upon the pound granted by the said Charter is paid by the Merchants strangers and they likewise enjoy some priviledges granted by the said Charter And it was further by him observed that notwithstanding all the Statutes that have been urged against impositions yet this imposition hath continually stood and hath never been denyed to be paid by any man And that therefore it is likely that no man till now ever conceived that these Statutes were made against impositions upon Merchandizes but were rather to be understood to extend onely to impositions within the Realme To this objection 27. E. 3. No. 27 13 E. 3. c. 26. I make this Answer that it is indeed true that the grant of Merchants in this case cannot binde the whole Common wealth as I have heretofore proved by the Petition exhibited in Parliament by the Commons 27 Ed. 3. No. 27. and by a Statute of 36 E. 3. c. 26. And therefore I cannot but confesse that this increase of custome may very truely be called an imposition For that indeed it did at first take strength onely by the kings pleasure to accept it as hath been said and not by the grant of the Merchants admitting it therefore to be a meer imposition Let us consider with what extraordinary circumstances it is accompanied First as you may perceive by the Record it self and as it hath partly been said already the King took it not without yeelding recompence for it For the Merchants strangers by submitting themselves unto this charge obtained divers liberties and immunities from the King by the same Charter amongst which freedome from Prisage is one which at this day they enjoy In which respect this imposition is in some sort tollerable though not at all Lawfull Another considerable circumstance and difference from our present Impositions is this that it was a composition made by the King with Merchant strangers which though it be by strictnesse of our common law not of force to binde in perpetuitie yet how farre by the Civill Law this doth binde strangers which are governed by these lawes is not so easily decided and this may be a good colour to uphold it These speciall reasons though they may well serve the turne to make an evident difference betwixt this and our present impositions and so consequently to avoid the conclusion drawn from the President and may also seem colourable and particular reasons to uphold the Imposition it self yet is not this that which I mean to relie upon for Answer For even this Imposition in recompence of which the King parted with so large priviledges and benefits and which because it concerned only merchant strangers did neither in the burden thereof nor in the president so directly touch the English yet in the detestation as it seems of all impositions of what nature or kiude soever and upon what pretext or colour soever they were grounded I say even this imposition also was complained of in Parliament within few yeeres following and upon complaint taken away as may appeare by the close Roll of 3. Ed. 2. Membrana 23. Where you shall finde inrolled a Supersede as commanding that the new Custome granted by the Merchant strangers reciting the particulars as they are contained in Charta Mercatoria shall cease at the Kings pleasure and this is there said to be yeelded to at the request of the Commons which cannot be but in Parliament but because the renewing of it again rested at the Kings pleasure therefore within two yeeres after by a publike Ordinance made by the principall Prelates Earles and Barons and other great men of the Kingdome authorised by the Kings Commission dated the 16. of May the same third yeere of his reigne the Charter it selfe was declared to be utterly void For that it was hurtfull to the Commonwealth against Magna Charta and made without assent in Parliament and not only that Charter but all other new Customes or Impositions whatsoever imposed since the Coronation of Ed. 1. till that time were also taken away saving onely the old custome upon Wooll Wooll-felts and Leather And further it was ordained That if any man should presume to take any more then the auncient custom rightfully due and should be thereof convict he should answere to the partie greeved his Costs and Dammages be imprisoned according to the quantitie of his offence and be further punished as an offender against Magna Charta according to the discretion of the Justices Ro. ordinationum 5. Ed. 2. in the Tower Though the force and authoritie of this Ordinance may perhaps be doubted and blemished because it was made by the Barons at the time when they had the better hand of the King as hath been in part objected yet you see that they deliver not their censures without alledging also their reasons 37. E. 3.20 and this their Ordinance is no more in effect then that which was thought fit by all the Commons in the Parliament of 5. Ed. 2. before mentioned But it hath been yet further said that notwithstanding this Ordinance the imposition doth neverthelesse continue in force and is at this day paid by the Merchant strangers and that therefore in likely hood the ordinance prevailed not against it T is true that at this day the Merchant stranger doth pay three pence more in the pound for Subsidie of poundage then the English doth and that by vertue of Charta Mercatoria But let me tell you that Charta Mercatoria in it selfe had not strength and vertue sufficient to subsist for so long a time It was as I have said suspended by the king himself an 3. condemned by the ordinance of 5 E. 2 and had at this day been of no more force then it was all the time of Ed. 2. after 3o. that is of none at all had it not been confirmed by act of Parliament an 36. Ed. 3. cap. This was onely that which protected Charta Mercatoria against all those Statutes made against impositions and that hath kept it in life till this day And this indeed I mean an act of Parliament is the only means that our Law acknowledgeth for the laying or establishing
of impositions and without which they cannot long last You have now heard opened three of those six presidents which are most relied upon for mantenance of these present impositions which are all that have been urged or can be found to have been practised from the Conquest till the reigne of Ed. 3. during which time there are as you see as many publique acts in opposition of them which are of so much the more force in that they are the Legall regular Acts of great Counsells whereas on the contrary part those three impositions were the acts of powerfull Kings wills in the times of extream necessity As for Ed. 2. Edw. 2. his successor there hath not been one Imposition alledged to have been laid by him of one kinde or other Nay all the records touching this businesse found in his time being onely foure make directly against them The first is anno 3. which was as you have heard a release at the Kings will upon complaint of the Commons of the Impositions raised by Charta Mercatoria The second was the Ordinance made an 5. declaring Charta Mercatoria and all other impositions to be void and inflicting punishment upon such as should demand any The third was an 11. which is a Supersede as to discharge certain cōmodities from yeelding an increase of Custome granted by Merchants by way of loane which in great probability the King would never have released but upon complaint the rather I think so because as the Record recites it was granted in a time of great necessity The fourth is anno 12. and is much of the same nature the recitall of which containes some very observable things which I will open unto you It shewes first in very effectuall words the greatnesse of the Kings wants and the causes thereof the words are Cum pro expeditione guerrae nostrae Scotiae aliis arduis necessitatibus nobis multipliciter incumbentibus pro quarum exoneratione quasi infinitam pecuniam profundere oportebit pecunia plurimum indigeamus in presenti ac insuper pro eo quod exitus Regni terrae nostrae simul cum pecunia nobis in subventionem praemissorum tam pro Clerum quam pro Comunitatem Regni nostri concessa ad sumptus predictos cum festinationem qua expediret faciend non sufficiunt Here was cause if any cause may possibly be just for the King presently to put in practise his Prerogative of Impositions his expence by reason of a necessary Warre in Scotland was so great as the whole Revenue of the kingdome together with an ayd which had been lately granted him could not with that expedition that was requisite supply his present want doth hee for all this make use of his Prerogative of imposing or doth hee hastily for want of advised proceedings take some other course prejudiciall to his right No the record further sayes that he enquired by all wayes and meanes how he might most commodiously and fitly levy money for these occasions After which advised deliberation the course at last resolved upon was not by absolute power to lay Impositions which of all other courses if it had been lawfull had been the most speedy and beneficiall but a course more justifiable which was that Merchants should be called together and that they should be intreated to lend the King upon every sack of wooll 10. shillings and upon every last of Lether 5. shillings above the ancient custome and that for their security of true repayment without fiction or delay which are the words of the Record whereby it seems that onely a pretence of a Loane and repayment had been before that time used to colour Impositions commandment should be given to the Customers to certifie into the Exchequer the names of every particular Merchant that should so lend unto the King that they might accordingly receive full satisfaction And t is worth the observing that this Loane was for no longer time Then from Aprill till October following thus much is warranted by the Record So as you see that in all this time of this King Ed. 2. Impositions were not only altogether forborn even in the times of his greatest necessity but they were also condemned as unjust and utterly unlawfull We come now to the reigne of King Ed. 3. Ed. 3. in whose time there was no practise or meanes that by the policy of man could be thought on to bring the people under this yoke of Impositions without assent of Parliament but it was by him attempted Insomuch as I have in my observation out of the Records collected no lesse then five or six severall waies all of them very colourable which in his time were put in practise for the raising of impositions and yet none of them but was resisted by Parliament and condemned That which was most usuall with him was that Merchants should grant to pay him so much upon every Commodity exported or imported by way of increase of Custome Impositions by way of Grant of Merchants this seems not unreasonable for that every man might grant of his own what he listed and this also to make it more colourable was never attempted but in the time of warre And yet as it hath been pastly said already this was alwayes held unlawfull as may appeare by the Record of 17 E. 3. 17 E. 3. No. 27. Ro. Parl. where the Commons in Parliament say that it is a great mischiefe and against reason that they should be enforced to pay the deerer for Commodities by reason of a charge upon Merchandizes by the grant of Merchants anno 25. Edw. 3. 25 E. 3. No. 22. Ro. Parl. the which is a charge to the people though none to the Merchant the Commons reciting that whereas Merchants have granted a new increase of Custome to the King pray that Commissions to collect such new increase of Custome by singuler grant of Merchants be not awarded anno 36 Ed. 3. cap. 11. Amongst the printed Statutes Grants of Subsidies upon Woolls by Merchants without assent of Parliament are declared to be void which act was made upon a Petition of the Commons in anno 36 Ed. 3. desiring a Law to be made to the same effect If impositions raised by the Grant of Merchants 36 E. 3. No 26. Ro. Parl. which I suppose to have been by some publike and solemne instrument under the hands and seals of the principall Merchants of all the great Towns of England being called together for that purpose were not of force in this behalf much lesse was their bare assent without any such solemnity which also was a course in practise in the dayes of Ed. 3. And was also used in the laying of these present impositions which wee now complaine of Another meanes of raising impositions used by Ed. 3. was by way of dispensation for money with some Statute in force Impositions by way of Dispensation with a penal Law which restrained the passage of Merchants most of his
impositions of one kinde or other laid after 11. were of this nature for anno 11. cap. 1. amongst the printed Statutes you shall finde it enacted that no man upon paine of Death losse of Lands and Goods should export Wools Stat 11. Ed. 3. cap. 1. imediately after the making of this Statute Impositions by way of Dispensations for money came to be so frequent and burdensome that the very yeere following the King being in person to undertake a Warre in Scotland and for the raising of treasure having laid heavy impositions in this kinde which he perceived to be very burdensome to the people he wrote to the Arch-bishop of Canterbury his Letter is extant upon Record to this effect that whereas the people were much burdened with divers charges tallages 12 E. 3. No. 22. Ro. Aleman and impositions which he could not mention but with much griefe but being enforced by inevitable necessity could not as yet ease the people of them he required the Arch-bishop to exhort the people patiently and humbly to beare the burden for a while and to excuse him towards the people hoping he should ere long recompence his said people and give them comfort in due time His necessities were neverthelesse so great and this means of raising money was so colourable seeing no man was compelled to pay that did not himself desire to be dispensed with for the breach of a penall Law by which his life goods and lands were forfeited as he spared not to lay on load in this kinde Insomuch as you shall finde that in An. 13. he took for dispensations to passe only to Antwerp of English-men 40. 13 Ed. 3. Orig. de Scac. Ro. 3. 12. shillings upon a sack of Wooll 40. shilllings upon 300. Wooll-fells and 4. pound upon a Last of Leather Of strangers 3. pound upon a Sack of Wooll 3. pound upon 300. Wooll-fells and 6. pound for a Last of Leather whereas the ancient and due custome was no more then 6. shillings upon a sack of Wooll the like upon 300. Wooll-fells and 13. shillings 4. pence upon a Last of Leather 13 Ed. 3. no. 5. Ro. Parliam Immediately hereupon even this very yeere was this complained of in Parliament and a Petition exibited by the Lords and Cōmons that it might be enacted that this Maletolt or Imposition because it was taken without assent of Parliament might be taken away and that a Law might be made that no such charge might be laid but by assent of Parliament And they further prayed that they might have a Charter under the great Seal confirmed and enrolled in Parliament to the same effect which was performed the next Parliament as may appeare by the Statutes printed where An. 14. Ed. 3. cap. 21. 14. Ed 3. cap. 21. you shall see an act of Parliament to this effect and that a most effectuall one And immediately after follows the Charter to the same effect of both which I shall have more occasion to speak hereafter But such were the Kings wants that even in the meane time between the petition and the making of the act he could not forbeare to raise money by this meanes For in An. 14 the Eleventh day of March 14. Ed. 3. Ro. 3. orig de Scac. in the end of which moneth the next Parliament began as may appeare by the Preamble to the Statutes of that Parliament he tooke by way of dispensation 40. shillings upon a sack of Wooll when it should be safely landed at Bruxells and 40. shillings at the port within England which was indeed an intollerable charge but the better to colour it the King in his Commissions for collection thereof pretended that the Merchants had been humble suiters to him that the passage for Woolls might be open till Whitsontide following and that to obtaine the same they had of their free wills offered to give him the said summes as may appeare by the recitall in the beginning of the said Record In further prevention of this mischiefe Stat. 27. E. 3. cap. 2. in an Act of Parliament printed made An. 27. Ed. 3. cap. 2. there was a speciall provision made against all Licenses to Transport Neverthelesse as it may be collected by a Record of the same yeere the King raised 40. Orig. de Scac. 27. E. 3. Ro. 7. shillings upon a sack of Wooll 40. shillings upon 300. Wooll-fells and 4. Pound upon a Last of Leather by the same means I meane by way of dispensation For though indeed it be recited to be granted by Merchants yet was it no otherwise granted by them then for Licenses to transport For at that time the Staple of Wooll was in England as may appeare by the printed Statute of 27. Ed. 3. cap. 1. 2. 27 Ed 3. cap. 1. 2. And here I thinke it fit to make this observation in generall that whereas in some other of the Records of Ed. 3. there is mention made of Impositions upon Woolls granted by Merchants because the passage of Woolls was in those daies so often restrained by Statute as may appeare by very many printed Statutes of that time it is very likely that these grants of Merchants were also for dispensations to transport Yet you shall finde an act of Parlia for free passage An. 15. Ed. 3. as appears that this of 27. was and it may well be that some of the Statutes being but temporary were not committed to the Presse This kinde of Imposition by way of dispensation I finde not to have been at all practised from 27. till 39. where without any colouring of the matter with pretence of the grant or guift of Merchants or any recitall of suite made by Merchants to have the passage open as usually in former times 39. Ed. 3. Ro. 2. Orig. Scacario but plainly and aptly the King recites That whereas English Merchants were by Act of Parliament restrained to transport Woolls Neverthelesse upon advice with his Counsell he thought fit to give leave that such as would might transport Wolls paying 46. shillings 8. pence upon a sacke which the King commandeth to be levied This Imposition lasted a very little while For the next Parliament following the Subjects granted to the King a Subsidie upon Woolls Wooll-fells and Leather to endure for a very short time and yet as it appears by the words of the Record the King doth thank his people for it with all his heart at which time for the maintenance of his warres in Scotland he obtaineth the continuance thereof for two yeeres at the end of which two yeers 43. Ed. 3.9 10 Ro. Parl. he further obtaineth in Parliament a continuance of the same from Michaelmas following for three yeeres for the supplie of treasure for the warre Two yeers following viz. in An. 45. Num. 42. Rl. o. Parliam the Commons doubting as it seemeth that the King had secretly concluded to increase by way of Imposition this Subsidie which was
yeelded to in Parliament and granted for three yeeres made a conditionall petition that if any Imposition be laid upon Woolls Wooll-fells or Leather more then the Subsidie granted in Parliament that it may be taken away the King answereth That if any be laid since the Statute it shall be taken away and then follows the printed Statute An. 45. Ed. 3. cap. 4. That no Impositions be laid upon Woolls wooll-fells or Leather which is the first place where I finde Impositions named in our printed Books I finde them first named upon my Latine Record 12. Ed. 3. in the Kings Letter to the Archbishop and first upon any Record in French not printed An. 21. Ed. 3. Num. 16. Ro. Parliament But to proceed about a yeere following this Parliament of 45. neere which time the Subsidie granted An. 43. 46. Ed. 3. Nu. 10. Ro. Parl. for three yeeres was expired there was another Subsidie of Forty three shillings foure pence upon a sack of wooll as much upon Twelve score Wooll-fells and Five pounds upon a Last of Leather above the ancient customes granted in Parliament for the maintainance of the warre in Guyen to endure for two yeers For which the King likewise gave thanks The next yeer following the Subsidie granted the last Parliament 46. Ed. 3. Nu. 12 Ro. Parl. was continued from Michaelmas for a yeere without any condition and for the next yeere upon condition amongst other things That no Imposition be laid during the two yeeres 48. E. 3. Ro. 2. Orig. de Scac. and that the money levied be imployed upon the warres In the next yeere following the King took as by the grant of Merchants upon a sack of Wooll of Denizens Fifty shillings and of strangers foure Marks upon 240. Wooll-fells of Denizens Fifty shillings and of Strangers Foure Marks and upon every Last of Leather of Denizens Five pounds and of Strangers Eight Marks Though this Record pretendeth nothing but the grant of Merchants yet it is upon the matter no other then a dispensation for so much money For at this time the passage was not open other then to Callice where the staple then was as may appeare by the two Records of 38. Ed. 3. Ro. Parl. 50. Ed. 3. Num. 24. And yet you may see how hatefull even these Impositions by way of Dispensation which are farre more tollerable then our present Impositions were in those dayes For within two yeeres following one Richard Lions 3 5â—… 1â—…â—… Farmer of the Customes amongst other things laid to his charge was accused in Parliament for setting or procuring to be set new impositions not shewing of what nature without assent of Parliament and was adjudged to forfeit his Goods and Lands 50 E. 3. N. Ro. Parl. but more particularly the Lord Latymer Lord Chamberlaine of England was expresly accused that he combined with Richard Lions and others who for their own profit had procured and Counselled the King to grant many Licences for the transporting of great quantities of Wooll beyond the Seas other then to the Staple at Callice against divers Ordinances and Commandements to the contrary and had put upon Wools and Wool-fells new impositions Here you see that the device of Dispensations for money had the name of an Imposition in those dayes though indeed it be not in its nature a meere imposition or at least not such a one as those are which we complain of But such as it was you see how from time to time it hath beene condemned and how it is reckoned up amongst the most hainous faults of those two great offenders who though perhaps they were condemned also for other offences yet the laying of these to their charge did shew the great hate generally conceived against impositions of this kinde I might here further adde in proofe of the invalidity of these Dispensations that certain Merchants having obtained some of these and having also the advantage of the Kings Proclamation to dispense with the Statute which restrained their passage yet they never thought themselves secure from ths punishment of the Statute till they were provided for by Act of Parliament as may appeare by a Statute printed anno 35 Ed. 3. cap. 21. To alledge therefore any of this kind thereby to prove the lawfulnes of ours cannot but argue a weak cause For first as I have said there is farre more reason and colour for these then for ours for in this case no man was compelled to pay that did it not to avoide a greater mischeife for by paying the Imposition he was free from a grieveous punishment for breach of a penall Law which restrained his passage whereas in our case a charge is laid upon him for exercising his lawfull Trade where no Statute Law or Common Law is to the contrary but rather both the one and the other make for him But it may bee here objected that the King may Lawfully restraine the breach of which restraint is a contempt and against Law and that to impose doth imply a restraint upon a penalty Suppose it were so yet if in case where the restraint is not onely by the King but the whole Estate assembled in Parliament for some urgent cause it be unlawfull to give License for money as you perceive it is how much more is it so where the restraint is for no other purpose then to raise an imposition as in our case but of this more largely hereafter Another devise of raising impositions without assent of the Commons in Parliament Impositions raised by way of Ordinance in Parliament practised by Ed. 3. was by way of Ordinance which indeed is in the next degree of strength unto a Statute For it is a Constitution made by the king himselfe and all the Prelates Earls and Barons not at the Counsell Table or in the Kings Chamber but sitting solemnly in Parliament and hath also the like solemnity of inrolement that a Statute hath onely it is enrolled in a Roll by it selfe which hath the name of the Roll of the Ordinances But the only essentiall difference between this and an Act of Parliament is that this hath not the assent of the Commons Some Ordinances have had that estimation amongst us that they have at this day the force of Statutes as the Ordinance of Merton made 20 Hen. 3. which though it were no other then an Ordinance made by the King the Prelates Earls and Barons without assent of the Commons yet hath it by continuance of time gotten not onely the strength but the name also of a Statute There be some others of this by nature and we finde it usuall that the names of Statutes and Ordinances have been Indifferently and confusedly used to expresse the one or the other So as there was not any other more probable devise or invention to have brought the people under the yoake of Imposition without their own assent then was this by the way of Ordinance Nay to adde yet a further strength to
These indeed and onely these are meer Impositions and may be aptly compared with these of our times Of this kind amongst all the Records of Edward the Thirds time I finde only two which I will truly open unto you The first is in the Twenty one of his Reigne where it appears that Lionell afterwards Duke of Clarence named upon the Record 21. Ed. 3 no 11 Ro. Parliam Lionell of Antwerp because I suppose he was there borne the Kings second sonne being then Guardian of England whilest the King his father was at the siege of Callice at a counsell by him held the same yeere which I take to be no other then the Privie Counsell assessed without assent of Parliament upon every sack of Wooll Two Shillings upon every Tun of Wine Two Shillings upon every Pound of Aver de poys of Merchandizes imported Poundage imposed Sixe pence This Imposition was I must confesse for ought I know to the contrary such as our present Impositions are I meane in that it was imposed onely and simply by the Kings absolute power and may in that respect be the Fourth of that number of Sixe which I told you were all that could be found in any degree like to ours ever to have been practised in this Commonwealth from the Conquest till Queene Maries time But though in the authoritie of imposing it be like yet in circumstances very materiall you shall finde an apparant difference between them First this Imposition is very moderate in the sum as you may perceive for it was but Two Shillings upon a sack whereas in 13. Ed. 3. forty Shillings upon a sack of wooll was usuall and sometimes fifty shillings Secondly it was to continue no longer then till Michaelmas following Thirdly it was laid in the time of a most chargeable warre and ordained to be imployed for the maintenance of Ships of warre at Sea for the safeguard of Merchants in their passage of which it is apparant there was at this instant very great necessitie for it was as I have said imposed then when King Ed. 3. lay at the siege of Callice Besides such as it was and so qualified as you perceive it was neverthelesse complained of in Parliament by a Petition from the Commons as may appeare be the Records of the same Parliament of 21. Ed. 3. To which Petition or complaint this answere was given That all the said Impositions were already taken away save only the Two Shillings upon a sack of Wooll which should last no longer then Easter and seeing the same was ordained for the safeguard of merchants in which there had been greater sums of money expended by the King then could be collected between that and Michaelmas therefore to continue the same till Easter he hoped it would not seem over-burdensome or grieveous unto them In the Parliament following viz. anno 22. the Commons pray that writs may bee directed to the Customers to forbeare at Easter next to take the two shillings upon a sack 22 E. 3. N 16. Ro. Par. according as it was granted at the last Parliament and that it be not any longer continued by the procurement of any Merchant The King answereth Let it cease at Easter as it was agreed the last Parliament Here you see it was absolutely taken away and therefore though it had wanted these qualifications and circumstances which I have observed it had yet it being a thing so publiquely condemned it ought to be of little force with you to justifie these present Impositions But that which I observe out of this last Record maketh me rather to incline that this Imposition was onely by way of dispensation then that it was an absolute Imposition such as Ours are For to what end I pray you should the Commons pray that it might not be any longer continued by the procurement of any Merchant except it were likely that Merchants for their benefit should pray the longer continuance thereof and what benefit can any imposition whatsoever bee to a Merchant except it bee by way of Dispensation to give him leave to trade where before such dispensation given he stood altogether restrained If then it be an Imposition by way of dispensation with a penall Statute of restraint then is it no president for our present impositions But whether or no it be a Dispensation or absolute Imposition I leave it to your judgements you have heard my observation And so I come to the next president in the times of Ed. 3. produced for maintenance of our Impositions 24 E. 3. N. 12. Orig. de Scac. which was in the 24 yeere of his Reigne the Record of which and that which followed thereupon I will without any inforcement at all open unto you and so leave it to your censures The King reciting that whereas the Spanyard and French had joyned in league to make Warre against him and that for the withstanding of his said adversaries as also for the safeguard of Merchants against Pirats he had ordained that certaine ships should be set forth and that for maintenance of the said Ships there should be paid by Merchants two shillings for every sack of Wooll two shillings for three hundred Woolfels foure shillings for a last of Lether a Scute of Gold or foure shil Poundage imposed for a tunne of Wine and six pence of the pound upon all other Merchandizes for one yeere following He commandeth his Customers to levy the same accordingly The very next yeere and Parliament following 25 Ed 3. No. 12 Rot Par. the Commons exhibite a Petition in Parliament against Impositions and other like charges without assent of Parliament To which answer is given that it is not the Kings intion they should be charged I have now gone through all the materiall Records here amongst us of the times of Ed. 3. in which though his reign were very long and by reason of his Warres and other excessive charge more occasion was given him to try the strength of this point of the Prerogative then ever any King before or since though oftentimes and by many politicke inventions as you have heard he attempted to establish this Prerogative of laying impositions without assent in Parliament yet can there not be produced in all his time any more then two Presidents of Impositions like to these of ours that is imposed by the Kings absolute authority and yet these two were also as you perceive qualified with such circumstances as if ours were such we should have held them tolerable though perhaps not lawfull yet they such as they were escaped not without being complained of and condemned also in Parliament as you have heard It may perhaps be that some one or two of these Impositions which were by assent or grant of Merchants in this time of Ed. 3. were in times when the passage was open and not restrained by act of Parliament and so to be compared to our impositions but whosoever shall by looking over the Statutes
6. In the preamble of the Statute the words are That every person ought to use himselfe to his most advantage without exaction Fine Imposition or contribution to be had or taken of him to or by any English person or persons Though some that have argued before me against Impositions have urged this Statute as making against our present Impositions yet for my part I am not of that opinion but upon perusing the Statute doe rather thinke that it extendeth only to impositions laid by the Merchants of London upon the Merchants of other Cities and Townes not incorporate into their Companies as will evidently appeare by the Statute so as notwithstanding this Statute that which I have averred and hath been yeelded to by the Kings Counsell that no Imposition was laid from Ed. 3. to Queene Maries reigne is not yet impeached There is yet one other Statute of later time in which mention is made of Impositions and that is 14. H. 8. 14. H. 8. cap. 4. cap. 4. The words are Every Subject borne in England and sworne to be Subjects of other Princes as long as they shall so abide Subjects to the other Princes shal pay such Customs Subsidies Tolls and other Impositions within this realme as Strangers doe I hold that this word Impositions in this place is used as a generall to all the particulars before mentioned and no otherwise and is no more in effect then charges a thing usuall in Statutes of this nature to adde generall words for the more securitie which I collect by the word other going next before it For to what end should it be said no other Impositions if those particulars first named were not contained within that generall word of Impositions This word other is a Relative and must needs be answered with words going before when there are no other words following Besides it is common in the Statutes and Records of Ed. 3. No Imposition upon woolls shall be laid but in Parliament By which it appears that a charge laid by Parliament may be called an Imposition which is very evident by a Statute made not above 28. yeeres before this I meane the Statute of 7. H. 7. cap. 7. 7 H 7. 7. which I spake of even now where a charge of Eighteen Shillings upon a Butt of Malmsey laid by that Act of Parliament is called an Imposition And as I have shewed you the word Imposition hath been applyed to all these severall Inventions used by Ed. 3. The signification of the words Maltolt and Imposition or Impost for the charging of Merchandizes Nay the word Maltolt which is Englished by Rastall an evill Toll as indeed it signifies and in that respect is of a farre harder sense then the word Imposition is used indifferently for a charge set by Parliament or a charge set by the Kings absolute power upon Merchandises Impositio derived from the verbe imponere is no other then the Act of laying on or imposing and therefore in my opinion Impositions are more properly by the Merchants called Imposts which signifieth the things Imposed But I shall not need any further to enforce this considering it hath so liberally been confessed by the Kings Counsell No Imposition laid from Ed. the Thirds time till Q. Maries that there is no Record or Statute from Ed. 3. till Queen Maries reigne that giveth any assurance that impositions or so much as any one Imposition was laid during all that space of above 170. yeers only it behoves me for further opening the truth to testifie that being one of those that were by you imployed to make search in the ancient custome Books of those times remaining in the Exchequer together with some of the best experienced Merchants of this house some of which had sate at the receipt of Custome wee had many meetings and spent many whole dayes in turning over the old Custome books and as carefully as we could did survey some books of every age and time But after all our search ended could not finde any one Imposition from the time of Ed. 3. till Queen Maries reigne to have been received by any Customer or Collector And if you please to give me leave to remember to you the passages of those times you cannot but marvell that none of all those Princes should so much as attempt to trie the strength of this so beneficiall a Prerogative so much practised by Ed. 3. and when you have heard their occasions and compared their other actions What great occasions all the Kings from Ed. 3. till Q. Ma. had to lay Impositions and yet did it not with their forbearance in this kinde you will I think conclude and say in your hearts that surely none of all those Kings had so much as any imagination that any such Prerogative belonged unto them as to raise money at their pleasure by laying a charge upon merchandizes to be exported or imported without assent in Parliament Richard the Second being the Grand-childe and next Successor of Ed. 3. Rich. 2. in whose times impositions of all sorts did so much rage had little lesse occasion then his Predecessor had For first he had little treasure left him and he was no sooner in his Throne but news was brought that the French had invaded the Realme they had burned Rye and Hastings in Sussex they had taken and possessed the I le of Wight they had besieged Winchelsey From the Northern parts That the Scots had burned Roxborough and were ready to overrunne all the North parts of England Being thus beset with warre on all sides doth his Counsell which in all likelyhood had most of them been of Counsell to his Grandfather advise him to raise money by impositions as his Grandfather had done for this course of raising money by way of Impositions was yet fresh in all their memories they do not but he taketh the ordinary course by calling a Parliament which for mainteinance of his charge in the war the second yeer of his reign granteth him a Fifteenth he calleth another Parliam and hath another Fifteenth granted the Fourth yeere of his reigne the warres increasing his necessities were such and so conceived by the Parliament as they granted him a most unusuall Taxe throughout the whole Kingdome upon every Ecclesiasticall person one and other Sixe shillings Eight pence upon every other man or woman within the Realm Foure pence which when it came to be levied caused though causelesly because it was legally granted that notorious Rebellion of which Wat Tyler was the Captaine This Taxe as it was levied not without that great Rebellion so questionlesse was it unwillingly yeelded to in Parliament and yet because there was no other course thought lawfull for the raising of treasure upon the Subjects goods then by their own assent in Parliament onely that course was thought fit to be practised which was such as ought to be obeyed From the 5. to the 18. yeere of his Reigne he obtained every other yeer
King to sustein any publique charge except it be by their own consent in Parliament I proceed from Ed. 4. to Hen. 7. Hen. 7. omitting Ed. 5. and Ric. 3. because of the shortnes of their Reignes Hen. 7. H. 7. had a Subsidy of Tunnage and Poundage granted to him for his life as may appear by the Parl. Roll 1 H. 7. which appeares no where in our printed books had indeed a more peaceable time than any of his Predecessors and yet he was not altogether free from troubles both within the Realme and from abroad But his naturall inclination was rather to embrace Peace he was so provident and politique in the gathering and storing up of Treasure as never any Prince of this Realme was therein to be compared to him He did himselfe take the accounts of his Revenues which I have seen under his own hand He had for his Assistants about him Empson and Dudley men learned in the Lawes and by all probability very canning in all the profitable points of the Prerogative men that that intended or studied little else than the advancing of their Masters profit men even till this day infamous for their wicked counsell in perswading that good King to lay such heavy Exactions and Burdens upon his people as he did If these men who in all likelihood should have best knowne the Kings right especially in so high a point of profit had but had the least notice of so profitable a Prerogative as this would they not have been at strife which of them should first have put the king in minde thereof Or if they had held it questionable would they not have put it to some triall Certainly there can be no cause imagined that should make them thus to forbeare but either they were utterly ignorant of any such Prerogative or that knowing such a thing to be claimed by some of the ancient kings especially by Ed. 3. they knew likewise that it was in the same times continually complained of in Parliament and alwayes condemned and that there were acts of Parliament directly against it and this is more probably to bee conceived of them being men of such searching spirits and so well studied in point of Prerogative then that they were ignorant of the practise of Ed. 3. considering also that they were nerer to those times by 120 yeers then wee are But that which most of all moves me herein is that there was in H. 7. time such an occasion offered of making use of this Prerogative as there could not possibly happen any other that might better have justified the laying of Impositions which was this The Venetians to the intent to drive our Merchants from fetching sweet wines at Candy that they might the better imploy their owne ships and Merchants did impose upon every But of Malmesey brought thence by English Merchants foure Duccats by which means the English wholly lost that Trade and the Venetians made the whole profit thereof This mischiefe was no other way better to be remedied than by imposing the like or a greater charge upon Merchants of Candy bringing Malmsey into England that so they of Candy not being able to afford them better cheape than the English the English might still fetch them from Candy as they had wont to doe I say there could not possibly be a more justifiable occasion of laying Impositions than this was And did this king so carefull in other things of preserving his Prerogative and most of all in matters that concerned his profit take hold of this occasion to lay an Imposition by his absolute power Nay rather though he saw it convenient and in a manner necessary yet he conceived it to be unlawfull so to doe and therefore did it not by his absolute power but by assent of Parliament as may appeare by the Statute of 7 Hen. 7. cap. 7. printed where in the preamble of the Act you shall see the occasion of the making of the Act to be as I have opened it unto you and you may perceive by the body of the Act that for the counterpoysing of the imposition of foure Duccats laid by the Venetians upon our Merchants there was imposed 18s. for a But of Malmesey upon their Merchants bringing it hither to last as long as the imposition of foure Duccats which as appeares by the Act came but to 18s. of our mony should endure It is not probable that this king considering his other actions would have suffered this to have been done by Parliament if he had thought he might have lawfully done it by his absolute power And therfore it cannot almost be gaine-said that in these times this pretended Prerogative of laying Impositions without assent of Parliament was held to be against Law Hen. 8. his sonne and successor Hen. 8. was so farre from the disposition of his father in this point of thrift and providence Hen. 8. had a Subsidie of Tunnage and Poundage grāted to him for his life the first yeare of his Reign as appeares by the Parl. Roll. as there was not in the whol ranke of our kings any one like to him for excessive prodigality the great riches stored up by his father with so much care and left unto him hee so sodainly consumed in Triumphs Maskes Mummeries Banquets pompous and braving Warres as was that of Turwin and Turney and in the satsfying of his lust as he was out of very necessity enforced to crave most unreasonable aids of his Subjects in Parliament such as never before had been granted which through very dread and feare were yeelded to him yet not so satisfied that no meanes for the raysing of money might bee neglected or unattempted in the 15 yeere of his Reigne by the councell of that proud Prelate Cardinall Woolsey hee spared not to send out Commissions into every shire throughout the whole Realme with privy instructions to the Commissioners how they should with most advantage behave themselves in perswading the people to contribute to the king the sixt part of their whole estates to bee paid presently either in money or plate whereupon followed extreme cursing weeping and exclamation against the king and his councell and the people were in point to rebell had not the king stayed the proceedings of the commissioners by his Letters Finding that this way would not serve his turne hee demanded a benevolence which not answering his expectation hee did the same yeere raise unto himselfe a great deale of treasure by abasing his gold Such things as these Princes never put in practise but when all other meanes faile them and yet hee went many degrees beyond this For in the 27. yeer of his reigne he suppressed above 370 Religious houses the yeerly value of whose revenues I have read to be no lesse than 32000l. per annum in those dayes and that of their goods sold at very low prises he made above 100000l. in present money About 4. yeares after he dissolved all the Monasteries Abbeies Priories
of 52. Hen. 3. this title Consuetudo Mercandizorum and by divers other Records of Hen. 3. times the Rolls and Records of the beginning of Ed. 1 doe likewise prove the same very evidently Insomuch that not onely that which in this kinde belongs to the King by the Common Law and by ancient prescription was called Consuetudo but in later time if any increase were of that dutie though it came not by prescription but by grant in Parliament or otherwise yet it still retained the name Consuetudo which by continuance of time came to be the proper name to that kinde of dutie howsoever it began And therefore in 3. Ed. 1. you shall finde that after the old custome of Woolls was increased to a demy-Marke by Act of Parliament yet the word consuetudo was neverthelesse still retained but with an addition For it was then called nova consuetudo Nay though the increase were by the Kings absolute authoritie and upon the matter a meere Imposition Yet the King in his Commission did alwayes call it consuetudo as in 16. Ed. 1. the Imposition of Foure Shillings upon a Tun of Wine is in the Kings Commission to collect it called consuetudo Neverthelesse I assure my self the people called it by some worse name as Maletolt or the like The severall applications of this word Consuetudo to all duties whatsoever belonging to the Crowne by reason of Trade is the reason as I conceive that the word is used in the plurall number in the Statute of Magna Charta per antiquas certas consuetudines that so they might bee secure against all unjust exactions upon Merchandizes whatsoever but as I have said the principall scope was to provide against Impositions and by reason also that the word Consuetudo was taken as well for Impositions as for rightfull Customes therefore to make all sure they insert the words antiquas rectas This word Consuetudo in this sense continued till about the twentieth yeere of Ed. 1. after which time I cannot call to minde that I have seene it upon any Record In stead and place thereof came in the word Custuma which I find first in Charta Mercatoria an 31. Ed. 1. where the increase of Custome by the grant of Merchant-strangers is called parva custuma that which before was called nova Consuetudo doth now begin to lose that name and to bee called magna Custuma which termes of magna Custuma intending thereby that increase made by Parliament anno 3. Ed. 1. upon the three staple commodities Wools Wooll-fells and Lether And parva Custuma intending thereby the increase granted by the Merchants-strangers an 31 Ed. 1. Custums are the termes used at this day by the Customers and by which they distinguish their entries This word Custuma I finde to have been also promiscuously used by E. 1. E. 2. and E. 3. in their Commissions and applyed as well to increase of Custome by way of Imposition or by acts of Parliament of those times as to ancient custome upon the Staple commodities but regularly none ought to be called Custuma but that which is due upon the Staple commodities and so is it used at this day except only cloath for if it bee laid by act of Parliament it is called a Subsidie if without assent of Parliament Impost You see in what sense the words malum Tolnetum and the word Consuetudo have been used in former times and are thereby able to judge how they ought to be understood in this present Statute which as I have said ought to have the most benign interpretation that the words may beare But it hath beene likewise objected that in this Statute there is a speciall clause of exception which leaveth the king at his liberty to lay what impositions he pleaseth The third objection against Magna Charta cap. 30. that by the Exception the Kings prerogative to lay Impositions is salved answered this Statute notwithstanding and that is the words in the beginning of the Statute All Merchants if they were not openly prohibited before shall have their passage c. which implies say they that if they be prohibited which rests wholly in the kings power then they are not to have benefit of this Stat. touching the freedome from impositions and they say farther that the very laying of impositions doth imply a restraint sub modo Though I purpose to speake more fully in answere of this objection when I come to shew you the weaknesse of the reasons alledged for Impositions yet I cannot forbeare in this place to speake a word or two in answere thereof having the Statute now before us Except they be prohibited they shall have free passage saith the Statute without paying Evill-toll This doth imply say they that if they be prohibited they may be compelled to pay Impositions but that cannot be necessarily concluded it implies indeede somewhat strongly that they may bee prohibited The Statute of 1 R. 2. cap. 12. inhibiteth the warden of the Fleete to deliver any prisoner out of execution unlesse it bee by writ or other commandment of the king It may be as strongly implied out of this Statute that the king may by his commandment without writ 4 5 P. M. fo 162. b. Dyer deliver a prisoner out of execution but the contrary hath alwaies been held The same objection is made and the same answere may be given to another exception in the latter end of this branch Except in the time of war I come to the second Statute against Impositions The second Statute against Impositions the Statute De Tallagio non cōcedendo expounded and cleered which is the Statute de Tallagio non concedendo touching the time of the making of which there is great variety of opinion for it is not for ought I could ever learne found any where upon Record Justice Rastall accounts it to have beene made 51 of H. 3. and with him agrees an old manuscript which I have seen It may well bee for in one of the Statutes you shall finde a pardon to Humfrey Earle of Boham Earle of Hertford and Essex Constable of England and to Roger Bygott Earle of Norfolke and Suffolk marshall of England who both lived in that time Tho. of Walsingham in his history of England saith it was made in the 25 yeere of Ed. 1. hee reciteth the Statute de verbo in verbum as it is in our printed bookes otherwise I should have thought he had meant another Statute against Impositions made indeede 25 Ed. 1 and found upon the Records of that yeere in our printed Statutes at large it is placed last of all the Statutes of E. 1. Though there be some disagreement about the time of the making of this Statute yet they all agree the occasion to be the laying of a great imposition upon Wool the words of Tho. Walsingham Auxit Rex tributum Lanae ad 40s. cum prius ultra dimidiam mercam non daretur tota autem comunitas
Magna Charta cap. are called old and ancicient duties this is Vectigal Patrimoniale of which sort I could produce many others all which have like certainty Nay there is one duty well known to us all which the Common-Law giveth to the King and is in his nature a Custome our very case in which the King is bound to a certainty which he cannot exceed and that is Prisage a duty given by the Common-Law to the King upon every shiploading of Wine brought into the kingdom by English Merchants and is one Tun of Wine before the Mast and another behinde I am unwilling to trouble you with any more particulars of this kinde but let any man shew me one particular to the contrary and I will then yeeld that my position being false in one may be in more But till my position hath been in this point infringed this generall concordance of the Law in all these particulars is argument enough for me without having aleadged other reasons to conclude that Custome being as all these are a revenue due to the King by the Common-Law arising out of the Property and interest of the Subject is as all these are limited and bounded by the Common-Law to a certainty which the King hath not power to increase Vbi eadem Ratio eadem Lex It may perhaps be here objected that the Ayd paid to the King upon the Knighting of his eldest Sonne or marriage of his eldest Daughter was by the Common-Law uncertaine and that the King did take more or lesse at his pleasure untill he was bound to the contrary by Statute To this I make divers answers Though it were indeed a summe uncertaine yet the Common-Law did in some sort give it a limitation for it is by a speciall name called Reasonable Ayd So as if the summe demanded doe exceed Reason it became from a Reasonable Ayd an unjust exaction Besides this revenue was a thing happening very rarely and therefore the certainty thereof not so much regarded by the Law and yet it is to be observed how the frame of this Common-wealth could not long indure incertainty even in this casuall Revenue but it was reduced to a certainty of twenty shillings upon a Knights fee and 20s. upon every twenty pounds Soccageland by the Stat. of West 1. cap. 35.3 Ed. 1. If in this casuall Revenue they were so carefull to be at a certainty to avoid unreasonable exactions as the words of the Statute are how much more carefull would they have been for the same cause to have reduced the great and annuall Revenue of the Custome to a certainty if they had not thought it to have been certaine by the Common-Law or limited by Statute-Law before that time made But Sir that which I rely upon for answer to this objection is this Reasonable Ayd was and is by the Common-Law due as well to meane Lords as to the King But meane Lords were not limited to a certainty otherwise than in generall that it must be reasonable as I have said therefore to limit the King any further was no reason And this answer may be given for all uncertaine Revenues belonging to the King the like of which mean Lords have of their Tenants for the incertainty of which there may also be given especiall reason because these duties first began by speciall contract and agreement between the Lord and the Tenant and not directly by operation of the Common Law and so were certain and uncertain as they did at first agree and therefore you may be pleased to remember how in laying my positiō I was wary to say That such revenues as are due to the King as to the head of the Common wealth by which I purposely excluded such revenues as are common to him with other mean Lords are alwayes certaine I am now according to promise and in maintenance of a second part of my position to shew you That where the Common-Law giveth the King a Revenue not certaine at the first that is alwayes reduceable to a certainty by a legal course as by act of Parliament Judges or Jury and not at the Kings pleasure Every man that by his tenure is bound to serve the King in his warres and faileth is to pay according to the quantity of his Tenure a fine by the name of Escuage this cannot be assessed but in Parliament Upon forfeitures for treason or otherwise to the King though it be a kinde of a certainty that the Law giveth in giving him all the estate of the party convict both in goods and Lands or in goods onely as the case is yet for reducing it to a more expresse certainty the Law requireth that it be found by Office Wayfe Stray Wreck Treasure-Trove and such like are no lesse certaine for the King hath the things themselves in kinde Fines for misdemeanors are alwayes assessed by the Judges Amercements in all cases are to be afferred by the Country and not to be assessed by the King though the forme of the Judgement be Et sit in misecordia Domini Regis in the Kings mercy pro contemptu predict Nay though for punishment of an offence it be by Statute-Law enacted that an offendor shall make Fine and Ransome at the Kings pleasure the Law even in this case which is as strong a case as may be will not leave the assessing of the Fine to the Kings pleasure to be by him rated privately in his Chamber but it must be solemnly and legally done in an open Court of Justice by the Judges who in all other cases are to judge between the King and his people where the interest or property of the Subject or any charge or burden upon them doth come in question as may be proved by the booke of 2 R. 3. fo 11. Insomuch that I am of opinion that if a Statute were made that the King might raise the Customes at his pleasure yet might it not be done as now it is by the Kings absolute power but by some other legall course of which the Common-Law doth take notice as in the case of the Fine and Ransome much lesse then will the Common-Law permit that it should depend upon the Kings absolute pleasure there being no such Statute in the case You have heard out of what grounds I first deduced this my position That the Law requireth certainty in matter of profit between the King and his people You have heard likewise the particular reasons of that position you have also heard what proofe I have made by particular cases of like nature to this in question and how I have applyed them to the point And so leaving the Judgement of the whole to your wisedomes who can best discerne whether the Argument be of weight I proceed to my second Reason which is drawne from the policy and frame of this Common-wealth and the providence of the Common-Law The which as it requires at the Subjects hands loyalty and obedience to their Soveraigne so doth it likewise
of Certainty and this of the provision made by the Common-Law are in my poor opinion Arguments of direct proofe that the King cannot Impose I will now according to my division urge an Argument or two of Inference and presumption the rather because Arguments of this nature have been much enforced by those who have maintained the contrary opinion Sir Francis Bacon especially by Mr. Solicitor I call them Arguments of inference and yet in my opinion those which I shall urge are also of good proofe such as they are you shall judge of them They are drawne either from the actions or forbearances of the Kings of this Realme or from the actions and forbearances of the people First in the actions and forbearances of the Kings Arguments drawne from the actions of the Kings that they have no power to Impose I observe that all the Kings of this Realm since Hen. 3. have sought and obteined an increase of Custome more or lesse by the name of Subsidie of the gift of their Subjects in Parliament Nay some of them and those not the weakest in Spirit or power but the most couragious and potent in that whole ranke even that mighty and victorious Prince King Ed. 3. being to undertake a just and honorable warre than which there could not happen a better or juster occasion to have made use of his Prerogative of Imposing did neverthelesse at that time stoope so low in this point that he did in full assembly of the three States pray his Subjects to grant him a Reliefe in this kinde for the maintenance of his warre and that to endure but for a short time and further was well content to suffer his prayer in that behalfe to be entred of Record to the memory of all posterity And the succeeding Kings have also suffered the same to be printed as may appeare by the printed Statutes at large An. 14. Ed. 3. cap. 21. Is it likely that if any or all these Kings had thought they had had in them any lawfull power by just Prerogative to have laid Impositions at their pleasure that they would not rather have made use of that than have taken this course by act of Parliament so full of delay so prejudiciall to their Right so subject to the pleasure of their people who never undergoe Burdens but with murmuring and much unwillingnes Can there be any thing more hatefull to the high Spirit of a King than to subject himselfe to the pleasure of his people especially for matter of Reliefe and that by way of Prayer having lawfull power in his hands to relieve himselfe without being beholding to them If perhaps the Kings themselves were ignorant of this great Prerogative which cannot be imagined had they not alwaies about them wise Counsellors to assist them and such as for the procuring of favor to themselves would not have failed to have put them in minde of it Nay if they had known any such lawfull Prerogative had they not been bound in conscience so to have done What an oversight was it of King Ed. 3. and all his Counsell so much to prejudice his right in so beneficiall a Prerogative as to suffer him upon Record and that in Parliament to pray for that which he might have taken out of his absolute power Can there almost be a more direct disclaiming in the Right to compare great things with lesse if the Lord by matter of Record claime any thing of his villaine it is a disclaimer of the villenage The Kings of England have other noble and high Prerogatives I will only name two of them The making of warre and peace and the raising and abasing of Coyne at their pleasure Did they ever crave the assent of their Subjects in Parliament to make a warre Their advice indeed they have sometimes sought and their ayd for treasure to maintaine it The Prerogative of raising and abasing the value of money hath been oftentimes put in practise by them and sometimes strayned to such a height that the King might well suppose the Subjects could not but be much discontent therewith And yet never any King of this Realme did it by assent of Parliament which perhaps some one milde King among so many would have done and it may be would also have prayed his Subjects to yield thereto only to avoid the grudging of the people if the seeking of assent in Parliament had not been thought to have been prejudiciall to the absolute power of their Successors and yet as for some of these Kings it may be supposed they made little conscience to prejudice a Successor in one point that made no scruple totally to depose a Predecessor from his Throne and all his Regalities and to usurp it to themselves And so I proceed to my next Argument of Inference drawn from the actions of our Kings Some of the Kings of England as namely Ed. 2. Edward the 2. in the yeere of his Reigne and Ed. 3. in the 1. and 24. yeere of his Reigne as may appeare by the Records here amongst us were contented to accept an increase of their Custome by way of Loane from the Merchants and solemnly binde themselves to repay it againe Would any wise man in the world that thought he had but a colour of Right so much prejudice his himself as to borrow that which he might take without leave and binde himselfe to repay it If a poore man perhaps through feare might be enforced so farre to yeeld to a mighty adversary yet that a powerfull man should stoope so low to one much weaker than he nay that a King in a point of such consequence should so farre discend from his Greatnesse as to borrow of his poore Subject that which without being beholding to him he might obtein as his Right and binde himselfe to repay it againe I say it cannot with any reason be imagined but withall it must be concluded that a king that shall so doe doth not thinke that he hath so much as colour of Right to impose I will not much presse or enforce the actions of Ed. 2. who I confesse was but a weake Prince Edward the 3. But as for his Sonne and successor Ed. 3. there was not as I have said a stouter a wiser a more noble and couragious Prince than he and none more carefull to preserve the Rights of his Prerogative as may evidently appeare by all his answers in Parliament on any complaint of the Subject Besides never had king of this Realme more occasion than he to straine this Prerogative of imposing to the utmost For besides his excessive expence in the warres of France and Scotland he had also a continuall charge of many expensive children his wife Queene Philip had also for her maintenance a large allowance out of his Revenue but the dowry of Queen Isabell his mother who lived till about the 27. yeere of his Reigne was so great as it is reported by some writers that little more than the
and Records with never so much heed consider the times of opening and shutting of the Sea by Statutes shall finde it so intricate as hee shall bee very hardly able directly to say that at the time when any of these impositions were granted the passage was open If in my observation I had found any such I should have admitted it for an absolute imposition as I have done Charta Mercatoria which was by grant of Merchants For certainly as I have yeelded the grant of Merchants is in this case of no other effect then the declaration only of their assent and the Imposition resteth meerly upon the kings authority But I finde none such if any such could be produced you have heard how they have beene from time to time controlled in Parliament And so I passe from E. 3. to the times follow From the end of the Reign of E. 3. till the reign of Queen Mary who was the eleventh Prince of this Realme after Ed. 3. as Ed. 3. was the eleventh after the Conquest being the space of 170. yeers or thereabouts It hath been confessed by all those that have argued in maintenance of his Majesties Right to Impose that there hath not been found one Record that proves any one imposition to have been laid there are indeed in our printed bookes some three or foure Statutes during that time in which mention is made of Impositions but they are as I shall prove Impositions of another nature then those are which we complaine of and so make nothing at all to the proofe of his Majesties Right or if they were such as ours are yet are they no where found mentioned but with disgrace and to the end to be taken away which may be the reason that notwithstanding the great use that might have been made of three or foure Presidents of Impositions in these times for the patching up of a continuance of the practise which otherwise by this long discontinuance receives a great blemish those which argued for impositions did not take hold of these but chose rather to confesse that no Impositions at all were laid during all this time and labored to seek out the reasons of the discontinuance I will briefely shew you what Statutes they are during that time which mention impositions the first is 11 R. 2. cap. 9. 11 R. 2. cap. 9. Statutes in which there is mention made of Impositions after the end of Edw. the thirds raigne untill Queen Maries Ed. 3. No Imposition nor charge shall be put upon Wools Lether or Woolfels other than the Custome and Subsidie granted to the King this present Parliament and if any be the same shall be repealed and annulled as it was another time ordained by Statute saving alway to the King his ancient right If by this saving the pretended right of imposing should be excepted as was said in the Exchequer the saving should then be contrary to the body of the Act and therefore it must needs have some other interpretation that it may stand with the rest of the Act and not condemn the Law makers of so much want of discretion therefore doubtlesse this saving is no other then an exception of the ancient Right full Customes due upon those staple Commodities And for my part I am of opinion that the Statute was made not so much to take away any Imposition laid by this King R. 2. as out of a provident and prudent care in the Law makers proceeding from the fresh memory of the practise of Ed. 3. in this kinde For all those that were of this Parliament did live and were at mans age in Ed. 3. time and could not but well remember the grievousnes of his Impositions Besides I observe that they desire that no Imposition be laid by way of addition to the Subsidie upon Wools and Lether then granted It was never heard till of late that an Imposition upon any Merchandize was charged at the same time with a Subsidie and therefore without question this was no other then an aboundant provision by them wherein they were no more carefull then any wise man would be in the like case when they had of their own free wils given the King a liberall gift they were carefull not to be further charged by him The next Statute in these times where Impositions are found mentioned is 23 H. 6. cap. 18. 23 H. 6. cap. 18. By which it appeares that English Merchants being restrained from repayring to Gâ—scoigne and Guien to buy the Wines of that Country they were neverthelesse suffered to repaire thither paying certaine new Impositions which were demaÌ„ded of them Upon complaint hereof it was enacted that all English Merchants might freely passe into those parts and buy Wines there at their pleasure without any new Imposition or charge to be put upon them For that such Impositions were to the damage of Merchants and to the hinderance of all the Kings people if any were demanded by the King Officers the officers so demanding them should forfeit twenty pound besides treble damages to the party grieved That these Impositions were by way of dispensation with a Statute which restrained the repaire of English Merchants into those parts and not by the kings absolute power thereupon to ground an Imposition is evident by the Statutes in Print For from 27 Ed. 3. 27. E. 3. c. 6. 38. Ed. 3. c. 10 38 Ed. 3. cap. 42 E. 3. cap. 8. 43 E. 3. c. 12. till this 23 H. 6. there are five or sixe Statutes in Print to this purpose some more strict then other which continued in force till 23 H. 6. The reason of the restraint by Ed. 3. I suppose to have been because Gascoigne and Guien were then in his possession and he was desirous his Subjects the Merchants of those Countries should have the sole profit of their own Commodities and that they onely should import them into England and not the Merchants of England whatsoever the cause of the restraine was it is very cleer the restraint was by Statute and that this Imposition raised by way of Dispensation was condemned which neverthelesse suppose it had not been controled yet as I have said oftentimes it is in nature so farre differing from ours as the practise thereof will not so much as help to salve this long discontinuance The next mention of Impositions is found 1 R. 3. cap. 12. 1 R. 3. cap. 12. The words are the Subjects and Cominalty of this Realme shall not from henceforth be charged by any such charge or Imposition called a Benevolence nor by such like charge you perceive by the words of the Statute what Impositions are intended within that Statute The next mention of Impositions in these times I finde to be 7 H. 7. 7 H. 7. cap. 7. where a charge of eightteen shillings laid upon a But of Malmesie by Parliament is called an Imposition Another mention of Impositions I finde to be 12 H. 7. cap. 6. 12 H 7. cap.
sentit se gravatam de vectigali Lana enim Angliae fere extendit ad medietatem valoris terrae vectigal ad quintam partem terrae The Custome of Wools as you perceive was in those dayes esteemed to bee the fift part of the value of the whol land it followeth in him that upon complaint the Subject at last obteined the Statute I now speake of the words of which are No Tallage or Ayde shall bee raysed or set by Vs or our Heires in Our Realm without the assent and good will of Arch-bishops Earles Barons Knights Burgesses and other Freemen of the Land after these generall words by way of provision against all manner of burthens whatsoever to bee laid in time to come without assent of Parliament followeth in the next branch save one especiall provision for the taking away of the imposition then in demand upon Wools which latter clause as it doth cleerely shew the cause of their present griefe to bee the same which our Chronicles say it was so doth it likewise make it evident what it was which they sought to be secured of for the times to come neither are the words themselves so obscure by reason of the generalty of them but that they also without knowing the occasion of the making of the law doe directly point at Impositions for though indeede the word Tallage be as I conceive to bee understood only of charges within the Land Tallage yet the word Ayde extendeth to all charges of what nature soever Aydes nay that even Impositions themselves have beene called Aydes or Subsidies which is all one is evident by almost all the Records of the Exchequor here amongst us especially by those of Ed. 3. time in which wheresoever you finde any mention made by the King in his Commissions of an imposition raised by him hee ever calls it Subsidium or Auxilium Subsidies So likewise in the printed Statute of 36 Ed. 3. cap. 11. you shall finde that the Imposition by grant of Merchants there mentioned is called a Subsidie or Ayde This exposition of the word Ayde concurring with the occasion of the making of the Statute doth in my opinion strongly enforce this Statute against Impositions and 't is to bee observed that in this Stat. there is no saving or exception of the kings antient Right which as our Chronicles say was a point principally insisted upon at the making of this Law earnestly pressed by the Subject to bee without that clause and for a long while stood upon by the king but at last yeelded unto in such sort as you have heard The next Statute against Impositions is 25 Ed. 1. cap. 7. The third Statute against Impositions 25 Ed. 1. cap. 7. cleered from objections the words are Forasmuch as the more part of the Cominalty hath found themselves sore agrieved with the Male-tolt of Wools viz. a toll of 40s for every sack of Wool and have made petition to bee released of the same Wee at their requests have cleerely released it and have granted for Vs and our Heires that Wee shall take no such things without their common assent and good will saving to Vs and our Heires the custome of Wools Skins and Leather granted before by the Cominalty aforesaid I might in enforcing this Statute rely upon a rule of Law for the exposition of Statutes of this nature Omnis Impositio est odiosa ideo stricta contra Impositiones large ad favorem gravatorum interpretanda est lex contra Impositiones data but there shall not need any such favorable construction for the words are in themselves very cleere The Law consisteth of three parts the first is the kings grant of a petition made by the Commons for the releasing of an Imposition of 40s upon a sack of Wool then in demand when the present grief was ended the next care was to prevent the like mischiefe in all times to come It therfore folowes And Wee have granted for Vs and Our Heires that Wee shall take no such thing without their common assent which is the second part of the law The saving in the end is the third part Against this generall provision two objections have beene made The first objection that this Statute is only against the excesse of the Impositions then laid and not against the right of Imposing answered First that the words No such things are to be understood only of the burthensomnesse and excesse of Impositions and not otherwise No such things that is say they No such grievous Impositions as this present Imposition is It had beene a poore security for times to come to have left it to interpretation whether or no Impositions which might happen to be laid in after ages be as grievous as the Imposition complained of in this time by comparing one with the other 't is so uncertain a computation as no man when hee thinks throughly of it can imagine that men worthy to sit at the making of Laws should suffer such a thing to passe them Who can certainly say whether our Impositions bee more or lesse grievous then the rate of 40s upon a sack of Wool Beside how easily had this Lawe beene to have beene deluded by abating only 12d or but 1d in the next Imposition for if it be but a penny lesse it is No such Imposition for the burden Therefore it must needes bee expounded of the quality and very nature of the thing complained of 26 Ed. 1. Interbrevia retâ—rn de Term. Mich. in Scac. in offic Rem Thesaurar ibidem and not of the quantity No such thing that is No such thing as this is that is to say an Imposition But that which will cleere this objection is a Proclamation made the very next yeer after the making of this Act in which the king reciting this Act in stead of these words Wee will take No such thing useth these words Nullam aliam Custumam sine communi consensu Capiemus not only No such but no other By which you may see that the words were then interpreted in that sence in which I doe now interpret them But admitting say they The second objection that is only against Impositions upon Wool answered that it bee so to bee expounded that the king will lay No other Imposition without assent in Parliament that is to be uuderstood say they No other Imposition upon Wools and not otherwise which is their second objection It were a very strict construction for a Statute of so beneficiall an intent as this is so to restraine it if there were no other words in the Statute that did inlarge the exposition But by the words following it is most evident that the scope of this Law is more liberall then so and that the kings intent was for ever to secure his Subjects against all charges of this nature I meane Impositions not upon Wools only but upon any other Merchandize whatsoever which I collect from laying all the parts of the
fourteene twelve yeeres her age of consent and nine yeeres capable to bee endowed a yeere and a day given to sue an appeale the like limitation of a yeere and day in very many other Cases In effect who reduced all the known grounds of the Common law to that certainty that now they are Because wee cannot tell how or when they began shall wee therfore conclude that they began by the kings absolute power and inferre that by the same reason they may bee changed at his pleasure If the king may increase his Fines upon the purchase of Originall writts which by the same reason hee may doe that hee may doe his Custome nay hee hath more colour for this then for that because there is no Statute against this hee might easily raise that revenue to the value of his Customes But no man can nor will I hope offer to mainteine it to bee lawfull You see the weakenesse and the dangerous consequence of this argument by comparing it to other cases of like nature To say the truth all these things began no man can say certainly when or how but by a tacit consent of king and people and the long approbation of time beyond the memory of any man and yet no man can directly affirm but that most of them might begin by Act of Parliament though now there bee no Records extant of such antient Parliaments The first Parliament was not kept 9 H. 3 though it be the first in our bookes If we will give credit to other Records and to our best Chroniclers The antiquity of Parliaments we shall heare and reade of divers Parliaments in the Reigne of King John and of his Predecessor Rich. 1. and in the Reign of H. 2. of two famous Parliaments one at Claringdon in Wiltshire the other at Gedington in North-Hamptonshire And although our Chronicles say that the first Parliament kept in this Realm was held 19 Aprilis 16 H. 1. yet I am of opinion that William the Conqueror held Parliaments for what can be else understood by these words Per commune consilium totius Regni nostri stabilitum fuit which I finde in Mr. Lamberts collection of the ancient Lawes of England in the beginning of the Lawes of W. the Conqueror Many of the Statutes of E. 1. have no other words Nay long before him in the yeere of our Lord 712. in the time of Inas King of the West-Saxons I assure my selfe there were Parliaments held and that of the three Estates as at this day as may appeare by these words in the beginning of the Lawes of King Inas in Mr. Lambert Suasu Instituto Episcoporum nostrorum omnium Senatorum nostrorum natu majorum populi nostri in frequentia magna And more plainly in the conclusion of some other of his Lawes Hoc factum fuit per commune consilium assensum Procerum Comitum omnium Sapientium Seniorum Populorum totius Regni per praeceptum Regis Inae which are the same in Latine which ours is in English By the King the Lords Spirituall and Temporall and the Commons VVhy might not the Custome upon Woolls be first granted at one of these Parliaments as well as to have it first begun by the Kings absolute power There is no more probability of the one than the other because most of the ancient Records were burnt in H. 2. time when the Exchequer was burnt shall we conclude therefore that there were neâ—er any such You see the weaknes of this Argument in all the points thereof I leave it and passe to another The King may say they restrain the passage of Merchants at his pleasure The second Argument that the King may totally restrain the importing and exporting of merchandizes therfore he may do it sub modo by laying of an Imposition answered which they prove by divers Records 2 E. 1. m. 18. Ro. Par. 2 E 1. m. 17. Ro. fin 31 E. 1. n. 44. Ro. Pat. 17 H. 6. Ro. Clo. in dorso Upon which they inferre that if he may restraine a Merchant that he shall not passe at all he may much more so restraine him that he shall not passe except he pay a certaine sum of money For this say they is lesse than totally to restraine him And Cui licet quod majus licet etiam quod minus Of this Argument my L. Dyer gave light in his case of Impositions 1 Eliz. and this hath been diversly inforced by all that have argued for Impositions In answer of which I will consider how farre the king may restrain the passage of Merchants and then will examine the consequence of the Argument For my part I think the king cannot restrain the passage of Merchants but for some speciall cause wherein to define certainly and resolutely to say for what causes he may and for what not I will not undertake Onely let me inform you that there is not one of these presidents vouched by them to prove the kings power to restraine but they are upon speciall reasons as by reason of Enmity with such a Nation from whence they are restrained or because such a Commodity may not be spared within the kingdome Besides they are not restraints from all places and of all manner of Merchandizes but from certain places onely and for certain sorts of Merchandizes And for my part I thinke that restraints in all these cases and of like nature are by the Common-Law left to the kings absolute power For if it were otherwise it should be in the power of a Merchant for a little private lucre to enrich the kings Enemies or to furnish them with munition to be imployed against the State or utterly to ruine the Common-wealth by carrying out a Commodity which may not be spared or by bringing in of some that may be hurtfull Nay which is more such may be the occasion that the king may I doubt not stop the passages of all Merchants from all places for a short time as upon the death of the late Queene it was put in practise to prevent Intelligence there may likewise be such necessary use of their ships as the want of them upon some sodaine attempts may be a cause of the overthrow of the whole State In such cases as these if the Common law did not give the King leave to restraine their passage by his absolute power it were very improvident in the highest points which cannot be imagined of so wise a law And yet the Kings of this Realme have alwayes been sparing in the practise of their absolute power in this point For there are little lesse then 30. Acts of Parliament touching the opening and shutting up of the passage of Merchants most of which as I conceive were made rather for the increase of punishment then for want of power in the King For the breach of a restraint by absolute commandment is punishable as all other contempts onely by Fine and Imprisonment and not by forfeiture of the Merchandizes