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book_n	call_v	king_n	year_n	3,080	5	4.8170	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A96414	A learned and necessary argument to prove that each subject hath a propriety in his goods shewing also the extent of the kings prerogative in impositions upon the goods of merchants exported and imported out of and into this kingdome : together with a remonstrance presented to the Kings Most Excellent Majesty by the Honourable House of Commons in the Parliament holden anno dom. 1610, annoq[ue] regis Jacobi, 7 / by a late learned judge of this kingdome.	Whitelocke, James, Sir, 1570-1632.; England and Wales. Parliament. House of Commons.	1641 (1641)	Wing W1995aA; ESTC R42765	49,132	72

concerned the right of our whole Nation of which every one of them hath exceeded the other by a gradation in waight and moment The first was the change of our name which was a point of honour The name of Britaine not admitted in legall proceedings wherein we shewed our selves not willing to leave that name by which our ancestors made our Nation famous yet have we lost it saving onely in those cases where our ancient and faithfull protector the Common Law doth reteine it The second was the union a question of greater moment for that concerned the freehold of our whole Nation not in so high a point as having or not having but in point of Division participation that is whether we should enjoy the benefits and liberties of the kingdome our selves onely as we and our ancestors have done or admit our neighbour Nation to have equall right in them and so make our owne part the lesse by how much the greater number should be among whom the Division was to be made Coke li 7. C●l●●s case This was adjudged against us both Legally and solemnly and therefore in that we rest hoping of that effect of this judgement which we read of in the Poet Virgil Aeneid l. 1 Dido's speech to Aeneas Tros Tyriusque mihi nullo discrimine habetur The third is the question now in hand which exceedeth the other two in importance and consequence concerning the whole kingdome for it is a question of our very essence not what we shall be called nor how we shall divide that we have but whether we shall have any thing or nothing for if there be a right in the King to alter the property of that which is ours without our consents we are but tenants at his will of that which we have If it be in the King and Parliament Then have we propertie and are tenants at our owne will for that which is done in Parliament is done by all our wills and consents And this is the very state of the question which is proposed that is whether the King may impose without consent of Parliament Impositions are of two natures Forreine and Intestine Intestine be those which are raised within our land in the commerce and dealing that is at home within our selves and may aswell for that reason be so called as for that vescuntur intestinis Reipublicae They are fed and nourished with the consuming and wasting of the entralls of the Common wealth Against these I neede not to speake for the Kings learned Counsell have with great honour and conscience in full Councell acknowledged them to be against the law Therefore I will apply my selfe to speake of impositions forreine being the single question now in hand and maintained on the Kings behalfe with great art and eloquence The inconvenience of these impositions to the Common-wealth that is how hurtfull they are to the Merchants in impoverishing them in their estates to the King in the increasing of his revenues by decay of traffique and to the whole people in making all commodities excessive deare is confessed by all and therefore need no debate The point of right is now only in question and of that I will speak with conscience and integrity rather desirous that the truth may be knowne and right be done than that the opinion of my selfe or any other may prevaile The occasion of this question was given by the book of rates lately set out affronted with the copy of Letters Patents dated July 28.6 Jac. In which book besides the rates is set downe upon every kinde of merchandise exported and imported for the true answering of subsidy to the King according to the Statute of tonnage and poundage In the first yeare of his reigne there is an addition of impositions upon all those kinde of wares which within the book are expressed and the rate of the imposition as high and in some cases higher than the rate of the subsidy And this declared to be by authority of those Letters Patents Heareupon considering with my selfe that heretofore the setting on of one only imposition without assent of Parliament upon some one kinde of merchandise and that for a small time and upon urgent necessity of actuall warre did so affect our whole Nation and especially the great Councell of the Parliament being the representative body of the whole Common-wealth that neither the sunne did shine nor the rivers runne their courses untill it was taken off by the publick judgement of the whole State I thought it concerned me and other members of that Councell that were no lesse trusted for our countreys than those in former times and have their actions to guide and direct us to have the same care they had in preserving the right and liberties of the people having now more cause then they had for that the impositions now set on without assent of Parliament are not upon one or two speciall kindes of goods but almost indefinite upon all and doe extend to the number of many hundreds as appeareth by that printed book of rates and are set in charge upon the whole kingdome as an inheritance to continue to the King his heires and successours for ever which limitation of estate in matter of impositions was never heard of nor read of before as I conceive The inducements expressed in these Letters Patents are much upon point of State and with reference to the rights and practise of forraine princes For this I will not take upon me to enter into the consideration of such great misteries of policie and governement but will only put you in minde of that I observe out of Tit. Tit. Liu. 8. Livius the Romane Hi storiographer Omnem divini humanique moris memoriam abolemus cum novâ peregrinâque patriis priscis praeferimus To that which hath been spoken for the Kings Prerogative I will give answer to so much of it as I may conveniently in my passage through this debate wherein I will principally endevour to give satisfaction to such new objections as were made by the worthie and learned Counselor of the King that spake last in maintenance of his Maiesties Prerogative The case in termes is this Pat. Iuly 28. Iac. 6. The King by his Letters Patents before recited hath ordained willed and commanded that these new impositions contained in that booke of rates shal be for ever hereafter payd unto him his heires and successors upon paine of his displeasure Herevpon the question ariseth whether by this Edict and Ordinance so made by the King himselfe by his Letters Patents of his owne will and power absolute without assent of Parliament he be so lawfully intituled to that he doth impose as that thereby he doth alter the property of his subjects goods and is enabled to recover these impositions by course of Law I think he cannot and I ground my opinion upon these foure reasons 1 It is against the naturall frame and constitution of the policie of

carry his Merchandise where it pleased him notwithstanding any Charter granted or judgment thereupon 16. 〈◊〉 Re● 1. And in the Parliament rolles 2. H. 4. num 109. we finde a notable record which gives warrant for the proceeding in Parliament in this manner as hath been in this Case notwithstanding the judgement in the Exchequer and declares to the Kingdome that notwithstanding the great wonder made by some men nothing hath been done in this businesse by those that serve in the Parliament but in imitation of their worthy predecessors in the very like case In the second yeere of H. 4. the Commons shew that in the time of R. 2. by the meanes of John Waltham Bishop of Salisbury Treasurer of England wrongfully without authority of Parliament and by reason of a judgement given in the Exchequer 16. 17. R. 2. by the Barons there against certaine Merchants of Bristow and other places passage had been taken for wines otherwise than in ancient times had been and therefore they prayed they might pay their prise wines in the manner they had used to pay notwithstanding any judgement given in the Exchequer or other ordinance made by the said Treasurer contrary to the ancient usage which petition the King granted and the judgement thereupon became voyde and the prisage wine hath been paid contrary to the judgement ever since In 1. 1. El. Dier 165. El. Dier 165. upon the complaint made by the Merchants of the impositions set upon cloth by Queene Mary by her absolute power without assent of Parliament the cause was thought too weighty to bee decided in any one Court but as it appeareth in the book it was referred to all the Judges of England who divers times had conference about it So it may well be there is nothing against it in our yeere books for there is nothing of it Another objection was this which was made in the last argument viz. That Custome is originally due by the common Law of England It can then have no other ground or cause but meerly by the Kings royall prerogative as a right and duty originally belonging to his Crowne which if it be it must necessarily follow he may impose for that is but the exercising of that right To prove this was alledged the case 39. 39 E. 3.13 E. 3.13 by which case it appeareth that King Iohn had a custome of eight pence on a tonn of wine in the part of South-hampton but the book doth not tell you that the King had it by prerogative and he might have it aswell otherwise as by prescription or convention which shall rather be intended by reason of the certainty of the summe paied for if it were by prerogative he might take sometimes more sometimes lesse at his will the right being indefinite and the quantity limitted onely by his owne Discretion 18. El Dier 352. A common person may have such a custome certaine as 18. El. Dier 352. the Maior of London hath the twentieth part of salt brought into the City by Aliens which is a great imposition but is good by prescription originally and hath received greater strength since by acts of Parliament made for the confirmation of the liberties and customes of the City of London So it appeareth Dier 43. that Iohn of Britaine had Custome of the ships that arrived at his port of little Yarmouth worth twenty pounds per an And these instances doe inferre that a Custome may bee otherwise then by prerogative and therefore it is no good argument to conclude the King had such a custome Therefore he had it by prerogative The booke in 30. H. 8. Dier 43. 30. Hen. 8. Dier 43. was much pressed on this point which sayeth that custome belonged to the King at Common Law and doth instance in wooll woll fells and leather begun at the Common Law but abridged by the Satute of 14. E. 3. ca. 21. stat 1. 14. Ed. 3. c. 21. statn r. but this appeareth to be a great errour and mistaking in the booke for we doe finde that that custome of woolls wooll-fells and Leather was begun by a grant in Parliament as appeareth in statute 15. E. 1. ca. 7. the words be Granted to us by the Commonalty aforesaid and the last mention before was that the King had granted to the Bishops Earles Barons and all the Commonalty of land c. Novem. 3. Ed. 1. the King recited in his letters patents That Prelati magnates actota Communitas mercatorum Regni granted this new custome And so the ground and motive of that opinion being false all grounded upon that must needs be erroneous It was objected that the King holdeth at this day the encrease of foure pence in the pound over due custome payd by Merchants Aliens according to the purport of the Charta mercatoria 31. E. 1. Rot. char 31. E. 1. nu 44. in Turri by meere right of prerogative at the Common Law for by that grant of the Merchants he cannot hold it they being no body politick at the time of the grant and therefore the grant is meerely voyd to binde in succession And yet the Merchants Aliens doe pay it at this day It is agreed that by the Common-law a contract with a number not incorporate bindeth not succession but we must take notice that they by whom that grant was made of the augmentation of Custome by three-pence in the pound and other encreases 31. E. 1. were Merchants aliens who by the law of Merchants and Nations may contract to binde their successours in matters of traffique for their contracts are not ruled by the Common law of the Land but by the law of Nations per ●egem Mercatoriam as the book case is 13. Ed. 4.10 and there was a good consideration given them by the King for this encrease of custome as discharge of prise Wines for two shillings the Tonn and other immunities which all Merchants aliens hold and enjoy at this day by force of that contract made 31. E. 1. For a stranger payeth now but two shillings the Tonn for prisage whereas it standeth an English man in much more so as the rule of commutative justice maketh the contract availeable to the King against the Merchants because he parteth with part of his prisage to the Merchant and maketh it availeable to the Merchant against the King because he giveth him encrease of custome above that is due by law 27. E. 3. c 26 But the statute of 27. E. 3. cap. 26. heretofore cited doth make this point cleare without scruple which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of custome by three-pence in the pound which is by name mentioned in the statute is now due by act of Parliament If you will have the King hold this encrease of custome by Prerogative you goe directly against his meaning for it appeareth by that which presently followed this grant that the King took this encrease of

there punished and his Patent taken away and cancelled What impositions have been set on in the Kings time I need not expresse they are set downe particularly in the booke of rates that is in print they are not easily numbered the time for which they are raised is not short the Patent prefixed to that booke bearing date 28. ●uln 6. Iacobi will instruct you sufficiently in that point they be limited to the King his heires and successors which I suppose is the first estate of Fee simple of impositions that ever man read of My eighth and last observation is upon tunnage and poundage given to the King of this Realme upon Wares and Merchandizes exported and imported which is an imposition by act of Parliament and as it will appeare was given out of the peoples good will as a very gratification to the King to enjoyne him thereby from the desire of voluntary impositions and to conclude him by that gift in Parliament from attempting to take any other without assent of Parliament for after the ceasing of voluntary impositions these Parliamentary ones were frequent in the times of the King that succeeded but they were never given but for yeares with expresse caution how the money strould be bes●owed As towards the defence of the Seas protection of traffique or some such other publique causes sometimes speciall sequestrators made by the act of Parliament by whose hands the money should be delivered As 5. 5. R. 2. Rot. Parl. 7. R. 2 n. 13.10 R. 2. n. 12. 7. R. 2. n. 12. R. 2. cap. 3. in a printed Statute The rates that were given were very variable sometimes ii s. tunnage and vi d. poundage as 7. R. 2. iii. s. tunnage and xii d. poundage 10. R. 2. which grants were not to endure the longest of them above a yeare xviii d. tunnage vi d. poundage in 17. R. 2. iii. s. tunnage and xii d. poundage granted to H. 4. in the thirteenth yeare of his raigne for a certaine time in which Statute there is this clause That this aide in time to come should not be taken an example to charge the Lords and Commons in manner of Subsidie unlesse it be by the wills of the Lords and Commons and that by a new grant to be made in full Parliament in time to come This clause in good and proper construction may be taken to be a very convention betweene the King and his people in Parliament that he should not from thenceforth nor any of his Successors set on impositions without assent of Parliament The like imposition was granted to H. 5. Rot. parl 1. H. 5. n. 17. in the first yeare of his raigne for a short time towards the defence of the Realme and safeguard of the Sea upon condition expressed in the act that the Merchants Denizens and estrangers comming into the Realme with their Merchandizes should be well and honestly used and handled paying the said Subsidie as in the time of his Father and his noble Progenitors Kings of England without oppression or extortion In the end of which act the Commons protested being bound by any grant in time to come for the purposes aforesaid H. 6. in the one and thirtieth yeare of his raigne Rot. parl 31. H 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Ma. c. 18. 1. El. c. 19. 1. Iac. c. 33. had tunnage and poundage given him for his life E. 4. had it given him the third yeare of his raigne as it appeareth in a Statute 12. E. 4. cap. 3. H. 8. in the sixth yeare of his raigne and all since in the first yeare of their raignes have had it given them for terme of their life and being now so certainly setled in it do reach further at that frō which they are in conscience and honour excluded by this voluntarie gratification For can any man give me a reason why the people should give this imposition of tunnage and poundage above the due custome upon all commodities if the King by his prerogative might set on impositions without assent of Parliament and were not that a wea●e action in a King to take that of his people as a benevolence from them with limitation of the same and in what it should be imployed and how they will be used for it and for what time he shall have it which he might justly take without their consents unclogged of these unpleasing incombrances The Statute of tunnage and poundage made in our times that are altogether inclined to flattery doe yet retaine in them certain shewes and rumors of those ancient liberties although indeed the substance be lost as in the Srat. 1. lac cap. 1. Iac. c. 33. 33. we declare that we trust and have sure confidence of his Majesties good will towards us in and for the keeping and sure defending of the Seas and that it will please his highnesse that all Merchants as well Denizens as Strangers comming into this Realme be well and honestly intreated and demeaned for such things whereof Subsidie is granted as they were in the time of the Kings Progenitors and Predecessors without oppression to them to be done By this clause as it now continueth the true intent of this Statute appeareth to be that there ought no other imposition be laid upon Merchants besides these given by this Statute and this intention hath been well interpreted by use and practise from the time of E. 3. to the time of Queene Mary as before is declared Thus much of this last reason made from observation and the action of our Nation I will answer now such maine objections as have been made against the peoples right and have not been touched by me obiter in my passage through this discourse That which hath been most insisted upon is this that the King by his prerogative Royall hath the custodie of the Havens and Ports of this Island being the very gates of this Kingdome that he in his royall function and office is only trusted with the keyes of these gates that he alone hath power to shut them and to open them when and to whom he in his Princely wisdome shall see good that by the Law of England he may restraine the persons of any from going out of the Land or from comming into it That he may of his owne power and discretion prohibite exportation and importation of goods and merchandizes and out of this prerogative and preheminence the power of imposing as being derivative doth arise and result For Cui quod maius est licet ei quod est minus licitum est So their reason briefly is this the King may restraine the passage of the person and of the goods therefore he may suffer them not to passe but sub modo paying such an imposition for his sufferance as he shall set upon them for the grounds and propositions laid in this objection I shall not be much against any one of them others of

by which it appeareth hee tooke nothing of merchants by imposition without grant for if he had no doubt they would not have stucke to have put him in minde of it But I pray consider what became of this motion of the Chancellour and Treasurer the proposition had depended in Parliament many yeeres the effect was the people intreated the King to resume all grants he had made from the beginning of his Raigne untill that time being the twenty eight yeare of his raigne excepting such as were made upon consideration valuable that he might so enable himselfe by that meane by which he had impoverished himselfe and the whole Kingdome This tooke effect and the Statute of Resumptions was thereupon made the same yeare which Record because it is not in print and declareth these things with great gravity and authority I will set downe the very text of it so much as is materiall to our purpose Prayen your Commons in this your present Parliament assembled to consider 28. H. 6. Stat. de Resump inturri Lond. not printed That where your Chancellor of your Realme of England your Treasurer of England and many other Lords of your Councell by your high Commandement to your said Commons at your Parliament holden last at Westminster shewed and declared the State of this your Realm which was that ye were indebted 372000. l. which is grievous and that your livelihood in yearely value was but 5000. l. And forasmuch as this 5000. l. to your high and notable State to be kept and to pay your said debts will not suffice therefore that your high Estate may be relieved And furthermore it was declared that your expences necessary to your houshold without al other ordinary charge came to 24000. l. yearely which exceedeth every yeare in expence necessary over your livelihood 19000. l. Also pleaseth it your highnesse to consider that the Commons of your said Realme be as well willing to their power for the releeving of your Highnesse as ever was people to any King of your Progenitors that ever raigned in your said Realme of England but your said Commons been so impoverished what by taking victuall to your houshold and other things in your said Realme and nought paid for it and the quinzime by your said Commons so often granted and by the grant of tunnage and poundage and by the graunt of Subsidie upon Woolls and other graunts to your Highnesse and for lack of execution of justice that your said poore Commons be full nigh destroyed and if it should continue longer in such great charge it could not in any wise be had ne borne wherefore pleaseth it your Highnesse the premisses graciously to consider and that ye by the advice and assent of your Lords Spirituall and Temporall and by the authority of this your present Parliament for the consideration of your high Estate and in comfort and ease of your poore Commons would take resume seise and retaine in your hands and possession all honours c. This was very plaine dealing by the people with their King and this is the successe of the demaund of supply and support had in those daies being required in point of gratification without any recompence or retribution for it Thus then wee have cleared this point that betweene 50. E. 3. and 4. Mariae there was not one imposition fet without assent of Parliament Queene Mary in the fourth yeare of her raigne upon the wars with France set an Imposition upon Clothes for this consideration that the custome of Woolls was decayed by reason for the most past they were made into Clothes which affoorded little custome for that which in Wooll paid for custome and subsidie 40. s. made into Cloath paid but 4. s. 4. d. To recompence this by an indifferent equality there was set upon a Cloath 5. s. 6. d. which imposition did not make up the losse sustained in the custome of Wooll by 13. s. 4. d. in 40. s. This was Iustum but not Iustè This religious Prince invironed with infinite troubles in the Church and Common-wealth and much impoverished by her devotion in renouncing the profits of the Church lands that were in the Crowne by the suppression was the first that made digression from the steps of her worthy Progenitors in putting on that imposition without assent of Pasliament for that very consideration of the losse of custome by turning of Wooll to Clothing came into treatie in the 24. yeare of E. 3. when the art of clothing began first to be much practised in this Kingdome and then in the recompence of the losse so sustained in the decay of custome of Woolls there was set upon a Cloath by act of Parliament above the olde custome 14. d. for a Denizen and for an Alien 21. d. This is recited in a Record in the Exchequer 48. E. 3. rot 2. R. 〈◊〉 origin Orig. in Scacc. 48. E. 3. Ro. 2. R. Thes 1. El. Dyer so 165. But I pray you examine how this imposition of Queen Mary was digested by the people We see in the Case in my Lord Dier 1. Eli. fo 165. that the Merchant found great griefe at it and made exclamation and suit to Q. Eliz. to be unburdened of it The very reason of their griefe expressed in that case is because it was not set on by Parliament but by the Queenes absolute power So that was the ground of that complaint the very point of right This cause was referred to all the Judges to report whether the Queene might set on this imposition without assent of Pailiament They divers times had conference about it but have not yet made report for the King which is an infallible presumption that their opinions were not for him for it is a certain rule among us that if a question concerning the Kings prerogative or his profit be referred to the Judges if their opinions be for the King it will bee speedily published and it were indiscretion to conceale it but if there be no publication then we make no doubt but that their opinions are either against the King or at least they stick and give none for him The same Queene Mary upon restraint of bringing in of French commodities occasioned by the then wars with France set an imposition upon Gascoigne Wines which continueth yet So the kingdome of England by the injustice of that Prince was clogged with those two heavy impositions contrary to the right of the Kingdome and the acts of her Progenitors Queene Elizabeth set on that upon sweet Wines which grew also upon the occasion of the troubles with Spaine That upon Allome was none it was rather a Monopolie to Master Smith the Customer of London for the ingrossing of all Allomes into his owne hands for which priviledge he gave a voluntary imposition upon that commodity It was like the priviledge granted to Iohn Pechey of the sweet Wines by E. 3. for which the Patentee was called into the Parliament house 50. E. 3. and was