touching the repeal of Charta Mercatoria by King Edw. 2 and the remit all of divers Impositions by King Edw. 3 upon sundry Petitions of the Commons in Parliament and the punishment of divers Persons in Parliament for procuring Impositions to be set up 106 CHAP. XXVII The Answer to the third Objection 110 CHAP. XXVIII The fourth Objection that the Prerogative is bound or taken away by divers Acts of Parliament 129 CHAP. XXIX The Answer to the fourth Objection 131 CHAP. XXX The fifth Objection that Tonnage and Poundage were never taken but when the same was granted by Parliament 140 CHAP. XXXI The Answer to the fifth Objection 141 CHAP. XXXII The Conclusion 146 CHAP. XXXIII A Comparison of the Impositions set and taken in England by the Kings Prerogative with the Exceptions and Gabells in Forein States and Kingdoms whereby it will appear that the Subjects of the Crown of England do not bear so heavy a burthen by many degrees as the Subjects of other Nations do bear in this kind 147 AN ARGUMENT UP ON The Question of Imposition digested and divided into sundrie Chapters by one of His Majesties learned Counsel in IRELAND CHAP. I. The Exposition and meaning of certain words which do shew the true state of the Question THe Question it self is no more than this Whether the Impositions which the King â—f England hath laid and levied upon Merchandize by vertue of his Prerogative onely without Act of Parliament be lawful or warranted by the Law of England By the word Imposition we mean only such rates or sums of money as the King by Letters Patents under the Great Seal of England or Ireland hath set upon Merchandizes imported and exported and commanded the same to be paid and levied to His Majesties use over and above the Customes and Subsidies formerly due and payable for the same Merchandizes By the word Merchandizes we mean only such goods or Merchandizes as are transported over the Seas from one Realm or Dominion unto another to be sold or exchanged for reasonable gain or profit for upon the ingate or outgate of Commodities so crossing the Seas only Customes Subsidies and Impositions for Merchandizes are paid and taken and not for any Commodities carried too and fro by Sea and Land within one and the same Realm and Dominion By the Law of England we understand not only our customary Common Law and our Statutes of England which are Native and peculiar to our Nation only but such other Laws also as be common to other Nations as well as us have been received and used time out of mind by the Kings and people of England in divers cases and by such ancient usage are become the Lawes of England in such cases namely the generall Law of Nations and the Law-Merchant which is a branch of the Law the Imperial or Civil Law the Common or Ecclesiastical Law every of which Laws so far forth as the same have been received and used in England time out of mind may properly be said to be the Laws of England CHAP. II. Of the general Law of Nations or Jus Gentium and the force thereof in all Kingdoms that traffique and commerce is a principal subject of that Law and that it giveth power unto all Kings to take Customes and Impositions upon Merchandizes and that the Crown of England hath many Prerogatives annexed to it by the Law of Nations of which our Common Law taketh notice and doth admit and approve the same JUs Gentium or the generall Law of Nations is of equal force in all Kingdoms for all Kingdoms had their beginning by the Law of Nations therefore it standeth with good reason that the Law of Nations should be of force and of like force in all Kingdoms and for this cause in the Realms subject to the Crown of England the Law of Nations also is in force in such cases especially wherein the King himself or his Subjects have correspondence or commerce with other Nations who are not bound in those cases by the Municipall Laws of England Omnes populi saith Justinian qui legibus moribus reguntur partim suo proprio partim coÌ„muni omnium hominum jure utuntur nam quod quisque populus ipse sibi Ius constituit id ipsius proprium Civitatis est vocaturque jus Civile quod vero naturalis ratio inter omnes homines constituit id apud omnes homines plerumque custoditur vocaturque Jus gentium quasi quo jure omnes gentes utuntur and in the same place it is said Ius Gentium omni hominum generi coÌ„mune est exhoc Iure Gentium omnes pene contractus introducti sunt ut emptio venditio locatio conductio societas depositum mutuum c. And with this agreeth our Doctor and Student lib. 1. cap. 2. where it is said that Trade and Traffique is by the Law of Nations so that Commerce Trade Traffique for Merchandize between the people of several Nations and Kingdoms is a principal subject of the Law of Nations and therefore to that question that hath been made in England Whether the ancient Customes payable for Merchandizes did first grow due by our customary Common Law or Statute Law of England Why may I not answer that neither the Customary Law nor the Statute Law of England but the generall Law of Nations did first give these duties unto the Crown of England For as the Law of Nations was before Kings for Kings were made by the Law of Nations Ex jure Gentium Reges originem traxerunt saith Baldus So Kings were no sooner made by the Law of Nations but presently the same Law cum creatus fuerit Rex ei omnia regalia conceduntur competit omnibus Regibus jus imponendi quantum habet Begalia saith Baldus Vectigalia introduct a sunt à jure c. which is the Law of Nature or Nations Ideo non otiosased favoralia saith another Doctor did annex this Prerogative to their several Crowns Vectigalorigine ipsa jus Caesarum Regum partimoniale est saith another Inhaeret Sceptro saith another and therefore when our ancient British Kings took up Customes for Merchandizes transported into France as Strabo writeth Britanni vectigalia tollebant gravia earum rerum quas brevi trajectu in Galliam importabant Shall we presume they did it by Act of Parliament no for doubtlesse they did it by vertue of this Prerogative given unto them by the Law of Nations for Kings upon their first institution did greater things than this by their Prerogative without the consent of the people Vetusissima coronae jura ex singulari Regum decreto primitus orta saith a learned Doctor and at first saith Iustinian Arbitria Regum prolegibus fuere and so saith Halicarnassus lib. 3. Cicero offic. lib. 2. And truly as Customes and Impositions taken upon importations of Merchandizes being most properly called Vectigalia à mercibm evectis
it is binding so it is perpetuall and cannot be rejected as the Roman Civil Law is rejected in most of the Kingdoms in Europe in such cases as do arise within the body of every Kingdom In France Philip le Bell saith Bodin de Repub. lib. 2. cap. 8. when he erected the Courts of Parliament at Paris and Mountpelier did expresly declare That they should not be bound in their judgments by the rule of the Roman Civil Law and in erecting of all the Universities of France they are charged in their severall Charters not to revive the profession of the Civil and Common Law as of binding Laws in that Kingdom and therfore Earum non imperio sed ratione utimur saith another learned Doctor of France In Spain saith Bodin in the same place several Kings have made Edicts that no man upon pain of death should allege the Roman Civil Law as a binding Law in their Dominions And that Stephen King of Spain did forbid the publique pleading of the Civill Law As for England to omit what Pope Elutherius wrote in his Epistle to Lucius the first Christian Monarch of the Britains and whereof mention is made in Saint Edwards Laws de protestate Regia Ecclesiastica published in the time of 3 Hen. 8 petiistis saith he leges Romanas Caesaris vobis transmitti quibus in regno Britaniae uti voluistis leges Romanas Caesaris reprobare possumus legem Dei nequaquam c. In a Parliament holden in England 11 R. 2. when a course of proceedings in Criminal causes according to the Civil Law was propounded an answer was made by all the States assembled That the Realm of England neither had been informer times nor hereafter should be ruled and governed by the Civil Law Rot. Parliament 11 R. 2. in Archivis turris London and accordingly Chopinus the French Lawyer in his Book de Domino Franciae tit. 28. speaking of the Civil law hujus Romani juris saith he nullus apud Anglos usus sed ex veteri gentis instituto Britani reguntur legibus municipialibus quas illis majorum mores praescripserunt But this is to be understood of causes arising within the Land onely for all Marine and Sea causes which doe arise for the most part concerning Merch and Merchandizes crossing the seas our Kings have ever used the Roman Civil Law for the deciding determining therof as the Romans did use the Law of the Rhodians in those cases according to the memorable rescript of the Emperour Anthonius terram suis legibus Rhodiis Regi How be it now those Laws of the Rhodians are digested and incorporated into one body of the Civil Law the jurisdiction touching causes arising upon the Sea is committed by the King of England to his Admirall who in his Court of Admiralty doth proceed in those cases according to the rule of the Civil Law Now for the Rules of the Civill Law touching the power of Kings in laying Impositions upon Merchandizes the same are clear without question and observed without contradiction in all the nations of the world Regiitantum juris ac muneris est vectigalia imponere redditus seu vectigalia portus quae perveniant ex his quae in portum vel ex portu vehentur regalia sunt Rex qui non recognoscit superior em potest instituere nova vectigalia c. hoc est jus totius mundi totus mundus hoc jure utitur the D. Doctors who interpret the Imperiall Law have their Books full of these Rules And if it be objected That these rules of the Imperiall Law are onely intended of the Emperour a learned Civilian hath this position plus juris habet Rex in Regno quam Imperator in imperio quia Rex transmittit regnum ad successionem quod non facit imperator quiest tantum electionis c. Lastly when I speak of the rules of the Civil Law and make use thereof I do apply the same onely in cases of Merchandizes crossing the Seas which I do expresse by way of protestation that I may not be mistaken here and in other places where I cite the Text of the Imperiall Law as if I intended that Law to be of force in England generally as in other places CHAP. V. Of the Canon or Ecelesiastical Law and how far forth it doth examine and resolve this Question in cases of Conscience only THe Canon Law is received and admitted in England as a binding-Law in cases Ecclesiasticall which are indeed the proper Subjects of that Law But this question of Imposition is meerly Civil and therefore the Canon Law doth not handle it but in cases of Conscience only so indeed it doth examin and determine in what cases an absolute Prince may with a good conscience lay and demand new Impositions Decret. causae 24. Quaesti 3. Princeps potest indicere nova vectigalia and in Summa Summarum tit. degabellis exactionibus these rules and distinctions are laid down Quilibet Monarcha potest imponere novum vectigal quod tamen boni viri arbitrio moderaudum est potest Princeps imponere vectigal ultra conventiouem in duobus casibus i. quando redditus ejus non sufficiunt ad segimē boni cōmunis decentiam status ejus 2. quando non sufficiunt ex nova emergentia principes enim sunt à Deo instituti ut nō quaerant propria Lucra sed cōmunem utilitatem populorum lilia agri neque arant neque nent which may be applyed saith a French Monk to all Princes but espicially to the Kings of France because they bore the Lilies The Canonists do likewise allege the example of our Saviour who paid an Imposition of Poll-money and wrought a miracle to enable himself to do it that the Tribute-money which Christ commanded to be paid Date Caefari quae sunt Caesaris and the Custome which Saint Paul willeth every Christian to pay willingly reddite omnibus cui tributum cuivectigal were but Impositions raised by the Emperours Edict only without the consent of the people and yet Saint Paul requires obedience to Princes in that case not only for fear of the Princes displeasure but for conscience sake non solum propter iram sed propter conscientiam CHAP. VI That this Question of Imposition may be examined and decided as well by the rules of the Laws before mentioned as by the rules of our Municipiall Laws or Common Law of England FOrasmuch as the general Law of Nations which is and ought to be Law in all King doms and the Law Merchant is also a branch of that Law and likewise the Imperiall or Roman Law have been ever admitted had received by the Kings and people of England in causes concerning Merchants and Merchandizes and so are become the Law of the Land in those cases why should not this Question of Impositions be examined and decided by
loss which certain Merchants of London had sustained by an arrest made of their goods made by the Countesse of Flanders doth grant unto them all the Merchandizes whereof the Flemings were possest in England Rot. Pa. 3 E.1.m. 19. in Archivis turris London Whereupon the Lord Mayor of London did seize so much goods of the Flemish Merchants as amounted to 730. Marks and delivered the same to Thomas Debassing and other Merchants who had suffered loss by that arrest and in the same Roll of 3 Ed. 1. the Lord Mayor of London and Bailiffs of Southampton are commanded by the Kings Writ Quodomnes Mercatores Londienses ad partes Angliae accedentes per bona catalla sua distrin guantur sed in legem mercatoriā consueti dinem Regni ad satisfaciendum Mercatoribus Florentinis de pecuniis ipfi mutuo tradiderunt Willielmo Episcopo Leodiensi Here we see that Lex mercatoria which doth apparently differ from the ordinary Cōmon Law of this Kingdom is said to be Consuetudo Regni And lastly in a sute at the Common Law no mans Writing can be pleaded against him as his Act and Deed unlesse the same be sealed and delivered but in a sute between Merchants Bills of Lading Bills of Exchange being but Tickets without Seals Letters of advice and credences Policies of assurance Assignations of debts all which are of no force at the Common Law are of good credit and force by the Law Merchant Thus we see how Merchandizes do differ from other goods and Chattles in the eye of the Law and how the Law Merchant doth differ from the common Law of England and how the Common Law doth admit and allow thereof Our Parliaments likewise have not onely made extraordinary provision for the more speedy recovery of Debts due unto Merchants for their Merchandizes than is provided by our Common Law as appeareth by the Statute of Acton Burnell made the 11 Ed. 1. and the Statute de Mercatoribus made 13 Ed. 1. but also have course of proceedings in cases of Merchants differing from the course of our Common Law for by the Statute of 27 Ed. 3.cap 2 it is declared that the proceedings in causes of Merchants shall be from day to day and hour to hour according to the Law of the Staple and not according to the course of the Common Law and by another Article in the same Parliament that all Merchants comming to the Staple should be ruled according to the Law of Merchants touching all things comming to the Staple and not by the Common Law of the Land and by another Article that neither of the Benches nor any ordinary Judges of the Common Law shall have any Jurisdiction in those cases and lastly that the Law of Marque and Reprisall which is a branch of the Law Merchant shall be used as it had been used in times past So as the Parliament doth but declare the ancient Law and doth not introduce a new Law in those cases Untill I understood this difference between Merchandizes other goods and between the Law Merchant and the Common law of England I confess I did not a little marvell England being so rich and entertaining Traffique with all Nations of the World having so many fair Ports and so good Shipping the King of England also being the Lord of the Sea and also a principall part of his Royal Revenue consisting in duties payable for Merchandizes so as many Questions must of necessity arise in all ages touching Merchants and Merchandizes What should be the cause that in our Books of the Common Law of England there are to be found so few cases concerning Ships or Merchants or concerning Customes or Impositions payable for Merchandizes But now the reason thereof is apparent for the Common Law of the Land doth leave these cases to be ruled by another Law namely the Law Merchant which is a branch of the Law of Nations The Law Merchant as it is a part of the Law of Nature and Nations is universall and one and the same in all Countries in the World for as Ciccro saith of the Law of Nations Non orit alia lex Romae alia Athenis alia nune alia posthac sed omnes gentes omni tempore unalex eademque perpetua continebit c. So may we say of the Law Merchant there is not one Law in England another in France another in Spain another in Germany but the same rules of reason and the like proceedings of the Law Merchant are observed in every Nations for as our Chancellor of England affirmeth 13 E. 4. 9. That the proceedings of the Law Merchant ought to be according to the Law of Nature which is universall so say the Civilians of severall Nations The Italian Doctor saith In curia mercatorum naturalis aequitas praecipue expectanda ex aequo bono causas dirimendas esse The French man saith In curia mercatorum proceditur de mer a aequitate omissis solemnitatibus apicibus juris The Spaniard likewise saith Apices subtilitas juris non considerantur in foro mercatorio whereby it is manifest that causes concerning Merchants and Merchandizes are not wont to be decided by the peculiar and ordinary Laws of every Country but by the generall Law of Nature and Nations out of which resulteth this Conclusion Suppose it be admitted that by the positive Law of the land Taxes and Tallages may not be laid upon our goods within the land without an Act of Parliament yet by the Law of Nations and by the Law Merchant which are also the Law of England in cases of Merchandizes the King of England as well as other Kings may by vertue of his Prerogative without Act of Parliament lay Impositions upon Merchandizes crossing the Seas being goods whereupon the Law doth set another character than goods possessed in the land as is before expressed CHAP. IV. Of the Imperial or Civil Law and of the extent of the Iurisdiction thereof of what force it is at this day within the Monarchies of Europe and in what case it is received within the King of Englands Dominions and how it warranteth all Kings and Absolute Princes to lay Impositions upon Merchandizes WHen the City of Rome was Gentium Domina Civitas illa magna quae regnabat super Reges terrae The Roman Civil Law being communicated unto all the Subjects of that Empire became the Common Law as it were of the greatest part of the inhabited world yet the extent thereof was never so large as that of the general Law of Nature as it is noted by Cicero offic. lib. 2. Majores nosiri aliud jus Geutium aliud Civile jus esse voluerunt quod enim civile non idem continue Gentium quod autem idem civile esse debet whereby it is manifest that the Law of Nations is and ought to be a binding Law in all States and Countries as
the rules of those Laws so far forth as the same doth concern Merchants Merchandizes as well as by the rules of our Customary or Common Law of England especially be cause the rules of those other Laws are well known to the other Nations with whom we have commerce and to whō and from whom all Merchandizes are transported wheras the rules of our own Municipall Laws are only known within our Islands and if this Question may be decided either by the Laws of Nations or by the Law Merchant which is but a member thereof or by the Roman Civil Law we find this point clearly and absolutely determined and over-ruled by the rules of those Lawes viz. That all absolute Kings and Princes may set Impositions upon Merchandizes by their Prerogatives and thereupon we may conclude that since one Monarch hath as much power as another as Fortescue in his Book de Laudibus legum Angliae affirmeth the K. of England as well as any other King as the Emperour himself cum ipse omnes libertates habet in regno suo quas imperator vindicat in imperio As King William Rufus told the Arch-Bishop Anselm may by vertue of his Royal Prerogative annexed to his Crown and inherent to his Scepter lay Impositions upon Merchandizes exported or imported into any of his Kingdoms or Doninions CHAP. VII Of the Kings Prerogatives in general and that the same do consist in certain speciall points or cases reserved to the absolute power of the Crown when the Positive Law was first established and that the Canon Law of England doth acknowledge and submit it self to these Prerogatives BY the Law of Nature all things were cōmon and all persons equal there was neither Meum nor Tuum there was neither King nor Subject then came in the Law of Nations which did limit the Law of Nature and brought in property which brought in community of things which brought in Kings and Rulers which took away equality of persons for property caused Contracts Trade and Traffique which could not be ministred without a King or Magistrate so as the first and principal cause of making Kings was to maintain property and Contracts and Traffique and Commerce amongst men Hereupon by the same Law of Nations Tributes and Cust̄omes became due to the King or Prince to maintain him in his place of Government quasi Ministerii sui stipendia saith the School-man Deo Minister est tibi in bonum ideo tributa potestas saith Saint Paul and all these things namely Property and Contract and Kings and Customes were before any positive Law was made then came the positive Law and limited the Law of Nations whereas by the Law of Nations the King had an absolute and unlimited power in all matters whatsoever By the positive Law the King himself was pleased to limit and stint his absolute power and to tye himself to the ordinary rules of the Law in common and ordinary cases worthily and princely according to the Roman Emperour Dignissimum Principe Rex se allegatum legibus consiteri retaining and reserving notwithstanding in many points that absolute unlimited power which was given unto him by the Law of Nations and in these cases or points the Kings Prerogatives do consist so as the Kings Prerogatives were not granted unto him by the people but reserved by himself to himself when the positive Law was first established and the King doth exercise a double power viz. an absolute power or Merum Imperium when he doth use Prerogatives onely which is not bound by the positive Law and an ordinary power of Jurisdiction which doth co-operate with the Law whereby he doth minister Justice to the people according to the prescript rule of the positive Law as for example the King doth not condemn all Malefactors but by the rule of the positive Law but when the Malefactor is condemned by the Law he giveth him a pardon by his absolute Prerogative Again the King doth punish the breach of the Peace within the Land by the ordinary course of the Cōmon Law but he doth make War and Peace with Forreign Nations Quod pertinet ad liberum jus gladii as a Doctor speaketh by that absolute and unlimited power which the Law of Nations hath given unto him Again the King doth establish the Standard of Money by vertue of his Prerogative only for the Common Law doth give no rule touching the matter or form or value thereof but when those Monies are dispersed into the hands of the Subjects the same do become subject in respect of the property thereof to the ordinary rules of the Common Law Again the right of Free-hold and all Inheritance and all Contracts reall and personall arising within the Land are left to be decided by the positive Law of the Land but the Government and ordering of Traffique Trade and Commerce both within the Land and without doth rest in the Crown as a principall Prerogative wherein the King is like to Primum mobile which carrieth about all the inferiour Spheres in his superiour Course and yet doth suffer all the Planets underneath him to finish all their divers and particular courses or rather he doth imitate the Divine Majesty which in the Government of the world doth suffer things for the most part to passe according to the order and course of Nature yet many times doth shew his extraordinary power in working of miracles above Nature And truly as the King doth suffer the customary Law of England to have her course on the one side so doth the same Law yeeld submit and give way to the Kings Prerogative over the other and therefore in the 1 Hen. 7. fol. 23. there is a rule That every Custome is void in Law quae exaltat in praerogativum Regis which is an argument that the Kings Prerogative is more ancient than the customary Law of the Realm besides the power of the Kings Prerogative above the Common Law doth appear in this That whereas all privileges do flow and are derived from the Kings Prerogative and every privilege in one point or other privat communem legem yet the Common Law doth admit and allow of privileges granted by vertue of the King Prerogative CHAP. VIII Of the Kings Prerogative in the ordering and governing of all Trade and Traffique in Corporations Markets and Fairs within the Land and the Common Law doth acknowledge this Prerogative and submit it self there unto FIrst it is manifest that all Corporations of Cities and Boroughes within the Land were chiefly instituted for Trade and Commerce and not by the rule of Common Law no such Corporation can be made but by the Kings Charter for though there have been some Corporations which have been time out of mind yet the Law presumes that the same at first had their beginnings by the Grant of the King besides we find in divers ancient Charters made unto those Corporations a power granted unto the King to take de
upon Salt amounting to an exceeding great Revenue the Impost of Wines upon every Vessell carried into any walled Towns or Suburbs thereof and payable although it be transported thence again before it be sold la hault passage or de maine forrein for Merchandizes exported le traject forrene for Merchandizes imported la solid de Cinquants mil holmes imposed upon Cities walled Towns and the Suburbs onely and after layd upon Town and Country without distinction the common positions for provisions the tenthes paid by all Ecclesiasticall persons These and other Impositions of the like nature are layd and levied upon the Subjects of France by the absolute power and Prerogative of the King and though many of these were imposed at first upon extraordinary occasions and set but for a time yet the succeeding Princes have continued them from time to time and the most part of them made ordinary and perpetuall by King Lewis the 11. who was wont to say France was a Meadow which he could have mowed as often as he pleased In Spain there is an Imposition named Alcavala imposed as well upon the Nobility as the Commons which was first raised by Alphonsus the 12. to expell the Mores and for the expurgation of Algiers but afterwards it was made perpetuall and is now a principall part of the Royall Patrimony Gutturis de Gabellis Quaest. 174 this Imposition was at first but the twentieth part but afterwrds it was raised to the tenth of every mans Estate which doth far surmount the highest Impositions that ever were layd in England by the Kings Prerogative without Act of Parliament This Alcavala is an Imposition within the Land but the Impositions upon Merchandizes exported and imported are far higher especially upon Merchants Strangers for their common Impositions upon Strangers is five parts upon the hundred and in the year 1604 they imposed thirty of the hundred as is before declared and upon the Ingate of Indian Spices into Portugall the King of Spain doth lay the greatest rates that ever were set in Christendome although upon the outgate the rates are more moderate In Italy the Impositions and Gabells set upon every kind of thing by the States and Princes there are intolerable and innumerable Non mihi si Centum Linguae sunt oraque Centum Ferrea vox Italorum omnes numerare gabellas Cunct a gabellarum percurrere nomina possem Especially upon the great Towns and Teritories that are subject to the Great Duke of Tusknie where there is not any roots nor any herb nor the least thing that is necessary for the life of man that is bought and sold or brought into any Town but there is a Gabell or Imposition set upon it where no Inholder Baker Brewer or Artificer can exercise his Trade but the Great Duke will share with him in his gain by laying some Imposition upon him where no man can travell by Land or by Water but at every Bridge at every Ferry at every Wharf or Key at every Gate of a Town the Garbellor arrests him and is ready to strip him naked to search what goods he hath about him for which he ought to pay the Garbell In the Popes Territories the Impositions which His Holinesse doth lay upon his Subjects as a Temporall Prince are as many and as heavy as those that are levied by the Duke of Tuskanie in so much as when Sixtus Quintus had set an Imposition upon every thing that served for the use of mans life Pasquill made hast to dry his Shirt in the Sun fearing the Pope would set some Imposition upon the heat of the Sun miastingo saith he in the 16. sole sevenda I omit to speak of the Exactions of the Court of Rome in another kind which are infinite and which long lay heavie upon the Western Countries of Christendome untill of late years some Nations did free themselves thereof by rejecting the Yoke of the Bishop of Rome In the Seigniory of Venice the Gabells upon the Land were more moderate than in the other parts of Italy But that City being the Lady of the Adriatique Sea doth use by prescription a high Prerogative in laying Impositions upon all Merchandizes arriving within the Gulf Civitas Venetiorum saith Baltholus potest pro maritmeis mercibus Gabellas imponere quia est Civitas in Mari situata Veneti saith Baldus ex consuetudine sunt domini maris Adriatici possunt statuere super Gabellis maris wherein they observe a profitable and politique course for upon the Commodities of other Nations which are of goods in their Common-wealth they lay the easier Impositions sometimes five sometimes seven sometimes ten upon the hundred which doth exceed the highest Imposition in England five in the hundred at the least In the Low Countries the Impositions which they call Excizes paid by the Retaylors of Wines and other CoÌ„modities and not by the Merchant are the highest in Christendome and yet we perceive that people to thrive and grow rich withall for an improved high rent doth so quicken the industrie of the Farmer as he thriveth oftentimes better than his Neighbour who is a Free-holder and payeth no rent at all howbeit to draw Trade and to invite all Nations to Comerce with them so to make their Country a Staple Store house or Magizen of all Europe they do set but easie rates upon Merchandizes imported but when they once have gotten their coÌ„modities in to their hands if any Merchant will export the same again hee shall pay a greater Custome The Grand Seignior of Turkie doth impose sometimes ten in the hundred sometimes twenty in the hundred upon Merchant Strangers who Trade into the Levant and I could speak of his other Exactions and Impositions upon his Vassalls but that I think it not meet to compare that Regions Tyrant to the Princes and States of Christendome I may remember at last the Great Toll which the King of Denmark taketh of every Ship that passeth into the Sound taking advantage of a narrow Straight between Elsmore and Copman Haven whereas the King of England being the undoubted Lord of the Narrow Seas between Dover and Callis might take the like Toll if it pleased him and by the same right might participate of the great gain of Fishing which the Busses of Holland and Zeland do make yearly upon the Coasts of Great Britain Thus we see by this comparison that the King of England doth lay but his little Finger upon his Subjects when other Princes and States do lay theâ—â— heavy loins upon their people whâ—â—â—â—â—the reason of this difference froâ—â—â—hence commeth it assuredly not from a different Power or Prerogative for the King of England is as absolute a Monarch as any Emperor or King in the world and hath as many Prerogatives incident to his Crown whence then proceedeth it to what profitable cause may we ascribe it certainly to divers causes profitable and
invectis are the most ancient duties payable to the King so are the same grounded saith Bodin upon the greatest reason and equity in the world quid est enim rationi aequitati magis consentaneum quà m is qui in nostro territorio ex nostris questum facit principi nostro cujus permissu sub cujus protectione negotiatur aliquod perdat presolvat And this common reason and equity which is the ground of these duties payable for Merchandizes what is it else but the Law of Nations which is nothing else but that which common reason hath establisht amongst all men for the common good of all men and which all Nations have received and imbraced for their mutual benefit and commoditie Neither is this the onely Prerogative which the King of England hath by the Law of Nations habet Rex in regno suo saith Bracton alia privilegia de jure Gentium propria viz. Soreceum maris thesaurum insentum grossos pisces balenas sturgiones Wavias c. huiusmodi de jure Gentiune pertinent ad Coronam saith Stampford Prerogativa Regis fol. 37. 6. Adde hereunto the absolute power of the King to make War and Peace League and Truces to grant safe Conducts to pardon all Offenders to distribute all degrees of Honour and the like wherein the King hath sole and absolute power Merune imperium non mixtum and which Prerogative is as antient as the Crown and incident to the Crown by the Law of Nations Lastly for the proof that our Common Law doth acknowledge and prove the Law of Nations in most of these cases The Book 19 Edw. 4. 6. doth approve the Kings absolute power in making War Peace and Leagues and in 37 Edw. 6. 20. That part of the Law of Nations whereby the High Constable and Marshall of England do proceed in their Courts of War and Chivalrie is called the Law of the Land We finde also the Kings sole power in 11 Hen. 4. Rot. Parliament in Archivis turris London for Coyning of Money we have the case of Mines Com. 316. for safe conduct of Merchants and stop of Trades tempore guerrae and Letters of Reprisall we have 7 Edw. 4.19.2 R. 3.2 Magna Charta cap. 30. and the Register wherein we find Writs of Reprisall CHAP. III. Of the Law Merchant which is a branch of the Law of Nations and how it differs from our Common Law and how in the judgement of our Law Merchandizes do differ from other Goods Chattels which do not crosse the Seas and how the Common Law and Statute Law of England do admit and allow of the Law Merchant MErcaturavel Societas Mercatorum est magna Respublica saith Vlpian and therefore that Common-wealth of Merchants hath alwayes had a peculiar and proper Law to rule and govern it this Law is called the Law Merchant wherof the Laws of all Nations do take speciall knowledge first both the Common Law and Statute Law of England do take notice of the Law Merchant and do leave the causes of Merchants and Merchandizes to be decided by the rules of that Law for what saith the Book of 13 Edw. 4.9 10 A Merchant Stranger made sute before the Kings Privy council for certain Bailes of silk feloniously taken from him and it was moved that this matter might be determined by Common Law unto which motion the Lord Chancellor doth there answer This sute is brought by a Merchant who is not bound to sue according to the Law of the Land nor to tarry the tryal of twelve men nor other solemnity of the Law of the Land albeit the King hath jurisdiction of him within the Realm and may cause him to stand to his Judgement yet this must be according to the Law of Nature which some call the Law Merchant which is a Law universall throughout the word these are the words of that Book it is there resolved by all the Justices That if the Merchandizes of such a Merchant stranger be stollen and waved by the Felon the King himselfe shall not take those Merchandizes as waifes though in that case the goods of another person were lost by the Common Law of England Doth not this case make it manifest that in the judgement of our Common Law Merchandizes that crosse the Seas are goods of another nature quality and consideration than other goods and Chattels which are possessed within the Realm and do not crosse the Seas This learning is not common in our Books and therefore I think it meet to exemplifie this difference with more cases in this point If two Merchants be Joynt-Owners or Partners in Merchandizes which they have acquired by a Joynt-Contract in this case the one shall have an Action of Account against the other die legem mercatoriam saith the Register fol. 135. and F. N. 117. D. and yet by the rule of the Common Law if two men be joyntly possessed of other goods which are not Merchandizes the one shall not call the other to account for the same Again if two Merchants have a joynt Interest in Merchandizes if the own die the Survivor shall not have all but the Executor of the party deceased shall by the Law Merchant call the Survivour to an account for the moytie F.N. 117. D. whereas if there be two Joynts of other goods which are not Merchandizes the Survivor shall have all per jus accrescendi even by rule of the Common Law Again in an Action of Debt upon a simple Contract which is without Deed in writing the Defendant by the Common Law may wage his Law that is he may bar the Plantiff of his Action by taking an Oath that he doth not ow the Debt nor any part thereof and yet in Itin. Derby 2 Edw. 3. Iohn Crompton Merchant upon a Contract without Deed the Defendant would have waged his Law but was not permitted so to do and so Judgement was given against the said Defendant Again the goods of Ecclesiastical persons are discharged of Toll by the Common Law si non exerceat Marchandizas de eisdem saith the Register 259. a. for then their goods are charged being now become goods of another nature when the same are turned into Merchandizes so are the goods of the French Nobility discharged by Gabels and Impositions if they traffique not but if they traffique saith Bodin their goods are charged like other Merchandizes Again for goods wrongfully taken within the Land the Common Law giveth remedy against the Trespasser or the wrongfull Taker onely but if an English Merchant be spoiled of his Merchandizes upon the Sea or beyond the Sea by the Subject of another King the Register doth give him a Writ of Reprisall against all the Subjects of that Nation Regist. 122. 6. and 46 Hen. 3. we find a more brief cause of Justice for there the King in respect of the
principally to these causes following First our King of England hath alwayes gone before and beyond all other Kings in Christendome in many points of Magnificency and especially in this That they have alwayes had a more Rich and Royall Demean belonging to the Crown I mean more large and Royall Patrimony in Lands and Rents than ever any Christian King had before or now hath at this day for it is certain that the Revenues of other Princes and States do principally consist in such Gabells Impositions and Exactions as are before remembred and not in terr a firma not in such a Reall and Royall Patrimony as hath ever belonged to the Crown of England and therefoâ—â— other Kings being lesse able to â—â—â—ntain their Estates or more covetous in their own Nature have laid heavier Burthens upon their Subjects than ever the King of England hath layd or will do or hereafter hath need to do God be blessed for it the Kings of England have had the Princes Portion spoken of before in 45 of Ezekiel and therefore they had no need so to oppresse the people Again we may ascribe this difference to the bounty and noble nature of our Kings that they would never descend to those poor and sordid Exactions which other Princes States do take of their Subjects Sordidum putandum est aurum quod ex lachrimis oritur as a good Counseller told Vespasian Again we may ascribe it to the wisdom and policy of our Kings who would never follow the Counsell of Rehoboams younger Counsellers boni pastoris est oves tondere non diglubere as Tiberius the Emperor was wont to say Odi hortulanum saith Alexander qui ab radice olera excindit qui nimis emergit elicit sanguinem saith Solomon they well considered that the money levied by Taxes and Impositions is the blood of the people which is not to bee let out in any great quantity but to save the life as it were of the Common-wealth when she is sick indebted and in great danger Again it may be ascribed to their Piety and Religion which moved them to follow the counsell of the Divine Rule Deut. 17. where the King is warned not to multiply upon him much Gold and Silver for that indeed there doth seldome come good by great Treasure heapt up by a great Prince for it doth but nourish Pride and Ambition in him and stir him up many times to make an unjust Warre upon his Neighbours or if he leave it unto his Successers it makes them luxurious and vitious which draweth with it sometimes the ruin of the kingdome sed optimus certissimus thesaurus Principis est in loculis subditorum saith the learned Buterus in his Book against Machiavill let the King saith he have a care to maintain Religion and Justice and Peace in his Kingdom this will soon bring plenty with a continuall increase and make a rich and wealthy people then shall the King never want money to serve his just and necessary and honourable occasions for it is impossible the Soveraign should be poor when the Subjects are rich and untill occasions do arise the Coffers of his Subjects will be his best Exchequer they will be his Treasures they will be his Receivers his Tellers without fees or wages no bad Accomptant shall deceive him nor no Bankrupt Officer shall deceive him they will keep the Treasure of the Kingdom so frugally as no Importunate Courtier shall be able to withdraw the same from a Prince but that it shall still remain in store to supply the necessities of the Common wealth Lastly our Kings of England in their wisdoms well understood the natures and dispositions of their people and knowing them to be a free generous and noble Nation held them not fit to be beaten with Rehoboams Rod esteemed them too good to be whipt with Scorpions and therefore God be blessed we have not in England the Gabeller standing at every Towns end we have not a Publican in every Market we pay not a Gabell for every Bunch of Reddish or Branch of Rosemary sold in Cheap-side we have none of those Harpies which do swarm in other Countries we have no complaining in the streets as is said in the 144. Psalm and therefore I may well conclude with the conclusion of that Psalm Happy are the people that are in such a case blessed is the people that have the Lord for their God above in Heaven and King Iames for their King here upon Earth FINIS These Books following are printed for Henry Twyford and Partners and are to be sold at his Shop in Vine-Court Middle Temple THe Compleat Attorney or the Practick part of the Law A Learned Treatise of Wards and Liveries by Sir Iames Ley Knight The Life of the Apostle St. Paul Soliloquies Meditations and Prayers of St. Bonaventure The discontented Collonel by Sir Iohn Sucklin The European Mercury The humble Remonstranee of Sir Iohn Stawell Hebdomada Magna or the great Week of Christ's Passion Sir Robert Brooks Reading on the Statute of Limitations Kitchens Jurisdictions of Courts Leet Courts Baron c. Rich. Brownlow Esq Prothonotary to the Court of Common Pleas His Reports the first and second Part. Declarations and Pleadings English Judiciall Writs Plowdens Abridgment Abridgment of Lord Cook's Littleton Abridgement of Pulton's Statutes at large by Edmund Wingate Esq The Books of the drawing up of all manner of Judgments The Body of Law by Edmund Wingate Esq The Marrow of Law or the second part of the Faithfull Counsellor Office and duty of Executors in 8. Lay-mans Lawyer or the second part of the Practick part of the Law A Commentary on the Original Writs by William Hughes Esq Stevenson's Poems The Anabaptists Anatomised in a Dispute between Mr. Crag and Mr. Tombes Caesars Commentaries with Sir Clement Edmunds Observations The Compleat Clark and Scriveners guide being the exact Forms of all manner of Conveyances and Instruments now in use as they were Penned by Learned Counsel both Ancient and Modern The Counesse of Arundells Secrets in Physick and Chirurgery c. The History of the Troubles of Swethland and Poland Iustinian Dict. Stud. 1.lib.cap.2 Baldus Baldus Strabo Iustinian halicar. lib.3 Bracton stampford prà rogat Regis fol. 37.6 19 E. 4.6 37 E. 6.20 11 H. 4 Com. 316 7 E. 4.19.3 R. 3.2 Magna Charta cap.30 Vlpian 13 Edw. 4.9,10 Reg. fol.135 F. N.117 D. F. N.117 D. 2 E. 3 Regist. 259 a. Bodin Register 122 6. 46 Hen. 3 Rot. Pa. 3. E I.m. 19 in Archis turris London 3 Edw. 1 27 E. 3 Cap. 2 Cicero 13 E. 4.9 Lex Civilis Cicero offic. li 2 Bodin de repub. li.2.cap.8 Bodin Stephen King of Spain Pope Eluther II R. 2 Chopinns Rhodians The Canon Law Decret. cause 24 Quaest. 3 Canonists Poll-money St. Paul Fortescue 1H 7.fol.23 3 Edw. 1 pat m 21 F.N. 170 D. Register of Writs fol. 107 Custome and Toll Strabo 38 H. 8 Dyer 43. Edw. 1 Edw. 2. Edw. 3 Bates case de Currans in Sccio per Fleming chief Baron 3 Edw. 1. 3 Edw. 1 Rot. fin.memb.24 Statute 25 E. 1 Dyer 29. 30 H. 8.43 31 Fd 3.60 27 E. 3 Prizage and Butlerage 52 H. 3 31 Ed. 1 Gauger Alneger 14 Ed. 2 Customer Comtroller Searcher 25 E. 1 Ed. 2 11 E. 2 The Writ to his Collecttors of his Customs Collectors of his Customs Raimundus Lullius 1 Ed. 1 Rot. fin m. 30 in Archivis Turris Le Records 17 Ed 3. Rot. 308 in Sccio Angliae c 12 Ed. 3 Rot. Almaniae pars 1. numb. 3 31 Ed. 3 Rot. Parl. numb.24 13 Ed. 1 14 Ed. 3 Staple at Callis E. 3 R. 2 H. 4 H. 5 Dyer 165 12 Eliz. 12 Eliz. Letters Patents 28 Iuly 6. Iac. Bodin lib. 6 de repub. ca. 2 Caligula Appian Cicero 12 Ed. 4.cap.5 Virgil Plin. lib.19.cap.4 Tempore Edw. 3 2 Edw. 1 2 Edw. 3 10 Ed. 3 17 Hen. 4 Matthew Paris Histor. Magna p. 568. 10 Hen. 7 Stow Fitz Avowry 192.6 Rich. 2 protection 46 Rot. Scotiae nu 16 in Arch Turris Gen. 1 Baldus Strabo Stampford 19. Ass p.6 22. Ass p 93. 22 Ed. 4 4 Edw. 3 21 Ed. 3 16 Ri. 2 17 H. 6 Tempore Henry 8. The K. of Spain's Imposition in An. 1614. Magna Charta cap. 30 46 Ed. 3 I Edw. 3 Anno 40. Elizabeth Object 1 The Answer to the 1. Object Object 2 The Answer to the 2. Object Solomon Henry 7. Poeta Object 3 3 Edw. 2 5 Edw. 2. 13 Ed. 3 14 Ed. 3 12 Ed. 3 18 Ed. 3 22 Ed. 3 13 Ed. 3 Lord Latimer Richard Lions I. Peachy 50 Ed. 3. Rot. Parli numb. 33. 50 Ed. 3 Rot. Parl. num.191 in Arch. Turris Dyer 1 Eliz. fol.165 The Answer to Object 3 5 Edw. 2 Senatus Rome Solomon Iulius Caesar Augustus Caesar Edw. 1 Edw. 3 Nero Edw. 2 Rich. 2 Petitions are of divers kinds have divers Answers Mayletolt 3 Kings cap. 12 14 Ed. 3.cap.13 Anno 29 Ed. 3 6 Edw. 3 Rot. Parl. nu.4 13 Edw. 3 Rot. Parl. numb.5 18 Ed 3. Rot. Parl. nu.10.26 in Arch. Turris 28 Ed. 3. Rot. Parl. numb. 27. 38 Ed. 3. Rot. Parl. numb.26 6 Edw. 3 Rot. Parl. numb.4 Lionscase 50 Ed. 3 Rot. Parl. nu.17,18 Lord Latimers case Peachies Case 1 Eliz. Dyer fol.165 Object 4 The Answer to the forth Object Dyer 44. Statute of Northampton 2 Edw. 3 Object 5 The Answer to the 5. Object K. Ed. 4 Iulius Caesars Impositions Tiberius the Roman Emperor Caligula Vespasian The Imposition of France The Spanish Impositions Gutturis de gabellis Quaest. 174. The D. of Tuskanies Impositions The Impositions by the Pope Sixtus Quintus The Impositions of the Seigniory of Venice Baltholus Baidus The Impositions of the Low countries The Impositions of the Grand Seignior of Turkie The Impositions of Denmark Ezek. 45 Solomon Deut. 17 Buterus contra Machiavill Psa. 144