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
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
they had the same right the same prerogative and absolute power that their Predecessors had but because they found other means to make other profit upon transporting of Merchandizes and that in another manner and in so high measure as the trade of Merchandizes in those daies could hardly bear any greater charge without danger of overthrowing all Trade and Comerce And therefore those Princes did in their wisdomes forbear to lay any further Impositions by their Prerogatives For these Kings who reigned after King Edw. 3. who conquered Callis in France and before Queen Mary lost Callis had two principal waies and meanes to raise extraordinary profits upon Merchandizes but proceeding from one cause namely from establishing the Staple at Callis for King Edw. 3. some few yeares before his death did by his Prerogative in point of Government without Act of Parliament erect a Staple at his Town of Callis and did ordain and command that all the Merchandizes exported out of England Wales and Ireland by any Merchant Denison or Alien should presently be carried to the Staple at Callis and to no other place beyond the Seas This Staple at Callis was first setled and fixed there by an Ordinance which the King made by virtue of his Prerogative and absolute power in the government of Trade and Comerce without Act of Parliament And if this Ordinance so made had been thought unlawful and against the liberty of the Subject it would never have been approved and confirmed by the Judgements of so many Parliaments in the times of Rich 2. Hen. 4. Hen. 5. and Edw 4. Neither could there have been such heavy penalties layd by those Parliaments upon the transgressors of those Ordinances Insomuch as in the time of King Henry the sixth it was made Felony to Transport any Merchandizes to any part beyond the Seas but to Callis onely Now the Staple of Callis being thus established there did arise a double profit to the Crown for transportieg of Merchandizes over and above the ancient Customes and other Subsidies granted by Parliament First it came to pass that the Customs and Subsidies for Merchandizes transported out of England Wales and Ireland which before was single and payd but once that is upon the outgate after the establishing of the Staple at Callis the duties for the same Merchandizes became double at the least and for the most part treble and were ever payd twice and for the most part thrice namely once upon the outgate in the Ports of England Wales and Ireland secondly upon the ingate at Callis and because all the commodities brought into Callis could not be vented into the main Land there but the greatest part was to be exported again by Sea into higher or lower Germany and other the North East Countries and some into Spain and Italy and the Ilands of the Levant there did arise a third payment of Customes and Subsidies for so much of their commodities as were exported again cut of Callis by meanes whereof the Customes and Subsidies did amount to threescore thousand or threescore and ten thousand pounds sterling per annum in the latter times of King Edw. 3. and during the reign of Rich. 2. Hen. 4. Hen. 5. and the beginning of the reign of Hen. 6. as appears by the Records of the Exchequer of England which according to the valuation of Moneys at this day the ounce of Silver being now raised from two shillings to five shillings do make two hundred thousand pound sterling per annum which doth equal or surmount all the Customes Subsidies and Impositions received at this day though that plenty of money and price of all things and consequently the expences of the Crown be exceedingly increased in these times And albeit the breach of Amity between the Crown of England and the Duke of Burgundy who was the Lord of the Lower Germany in the weak and unfortunate time of King Hen. 6. did cause a stop of Trade between us and that Country into which the greatest part of our Staple wares especially Wooll and Cloth were vented and uttered and was likewise the cause of loss of all our Territories in France except Callis and all the Merchandizes thereof whereby the Customes and other duties payable for Merchandizes were in the time of that unhappy Prince withdrawn and diminished to a low proportion yet afterwards upon the Mariage of Margaret Sister to King E. 4. unto the Lord Duke of Burgundy as that in honour of the English Wooll which brought so much Gold into his Country he instituted the Order of the Golden Fleece and thereupon the Customes Subsidies and Impositions were raised again to so high a Revenue as our Kings could not well in policy strain that strength of profit upon Merchandizes any higher Secondly albeit the Staple established at Callis being first established by an order made by the Kings Prerogative and absolute power was afterwards approved and confirmed by sundry Acts of Parliament yet did the King by another Prerogative retain a power to dispence with that Ordinance and those Acts of Parliament and to give license to such and so many Merchants as himself thought fit to export any Merchandizes out of England Wales and Ireland unto any other parts beyond the Seas besides à non obstante of the first Ordinance and of the Statutes which did establish the Staple at Callis By virtue of this Prerogative and power the several Kings who had Callis in their possessions did grant so many Licences to Merchants as well Aliens as Denizens to transport our Staple commodities immediately into other places without coming to Callis for which Licenses whereof there are an incredible number found in the Records of England the Merchants payd so dear for their commodities especially the Genoeses and the Venetians and other Merchants of the Levant as by the profits made of those Licences did amount to double the value of those Customes and Subsidies payable for exportation thereof and thereof those Princes as they had the less need so had they no reason at all to charge the Trade of Merchandizes with any other or greater Impositions In these two points before expressed doe consist the principal cause why the Princes of England who succeeded King Edw. 3. who won Callis untill the reign of Queen Mary who lost Callis did not directly use their Prerogative in setting any other Impositions upon Merchandizes above the ancient Customes and Subsidies granted by Parliament For it is to be observed that most part of those Princes who reigned after K. Edw. 3. and before Queen Mary had the Subsidy of Tonnage and Poundage granted unto them by Parliament which being added to the gain of the Staple of Callis did augment not a little the profit layd upon Merchandizes And may be a reason likewise why those Kings did forbear to lay any other Impositions by their Prerogative We may adde hereunto other reasons First Rich. 2. was a Minor and over-ruled by the great Princes of the
people we find in 6 Edw. 3 Rot. Parliament numb. 4. 13 Ed. 3. Rot. Parliament numb. 5. 18 Edw. 3. Rot. Parliament numb.10.26.in Arch. Turris In 28 Edw. 3. Rot. Parliament numb. 26. The Commons complain of an excessive Imposition upon Wooll-fells and desire that the old Custome might he paid The Kings Answer is the old Custome ought not to be withdrawn In 38 Edw. 3. Rot. Parliament numb. 26. The Commons desire that an Imposition of three shillings and four pence upon every Sack of Wooll at Callis and all unreasonable Impositions bee repealed The Kings answer unto this is It pleaseth the King that all unreasonable Impositions be repealed like unto this is that answer which is contained in the Parliament Rolls of 6 Edw. 3. numb. 4. in Arch. Turris When Petition was made for remittall of Impositions I shall saith the King assesse no such Tallages in time to come but in manner as it hath been in time of mine Ancestors and ought to be by reason Can any wit of man pick any Arguments out of these Answers against the right of the Crown in setting Impositiout upon Merchandizes Lastly in 13 Edw. 3. Rot. Parliament numb. 13. the Commons pray that the Maletolts of Wooll may be taken as it was used in former times being then enhaunsed without the Assent of the Commons To this Petition there is no answer found of Record the King is silent and gives no answer at all which doubtless the King had not refused to do if the Petition had been exhibited in point of right and not in point of favour Thirdly touching the punishing of the persons before mentioned for procuring of new Impositions to be set upon Merchandizes we are to consider two circumstances first the time when and next the causes wherefore these persons were called in question The time when these persons were called to account was a Parliament holden in 50 Edw. 3. the last year of that Kings Reign at which time that great and renowned Prince who had been formerly assisted by a most wise and politique Councell was become weak and stupid and almost in despair through sicknesse age melancholy conceipted upon the death of his eldest Son the Black Prince and suffered himself to be â—ll-governed by a Woman called Alice Perrey and her Favourite the Lord Latimer upon which occasion and advantage the Commons grew more bold than they were wont to be in former Parliaments and therefore if ought had been done in that Parliament which might prejudice the Kings Prerogative it is â—ot to be urged as an example or presiâ—ent in these times but in truth the â—auses for which these persons were cenâ—ured do rather approve the right of the Crown in laying Impositions than any way disaffirm the same First Richard â—ions a Farmer of the Customes was accused in this Parliament by the Commons that he had set and procured to be set upon Wooll and other Merchandizes certain new Impositions without assent of Parliament converting the same to his own use without controule the High Treasurer not being acquainted therewith the said Richard assuming to himself in divers things as a King 50 Edw. 3. Rot. Parliament numb. 17 18 19 20. This was his Accusation and though his answer were that he set those Impositions by the Kings Commandment yet did he shew no Warrant for it and therefore was justly punished with fine ransome disfranchisment and imprisonment But how may this insolency and misdemeanour of a Subject be an argument against the right or Prerogative of the King Lions a Merchant of his own head cannot set Impositions upon Merchandizes Ergo King Edw. 3. a Monarch of his royall Authority cannot do it what an absurd argument were this as if a man should say it were High Treason in a Subject to Coyn money Ergo the King himself cannot do it or cause it to bee done besides the accusation it self doth imply that the King hath power to impose upon Merchandizes because Lions is charged being a Subject to take upon him as a King in divers things namely in setting of ImpositioÌ„s as if they should have said a King may do it but not a Subject according to the rules of the Imperial Law Solus Princeps instituit vectigalia Regni tantum juris muneris est indicere vectialia imponere vectigalia maximi Imperii est inferior a Principe non potest imponere and the like And the Bill exhibited by the Commons in this Parliament 50 Edw. 3. Rot. Parliament 191. praying that those that should set new Impositions by their own Authority encroaching unto themselves Royal Power might have Judgement of life and member seemeth to be grounded upon good reason and doth prove it is a Mark of Soveraignty and Royall Power to set Impositions and therefore if a Subject of his own head of his own authority wil presume to do it he is worthy to dye for it and yet this Bill did receive but a general answer viz. Let the Common Law run as it hath been used heretofore Touching the Lord Latimers censure he had not only upon his own head and authority set sundry Impositions upon Merchandizes at Callis where the Staple there was much decayed but he was charged with sundry other misdemeanors mentioned in the said Roll namely that he brought in divers Tallies and Tickets whereby the King was indebted unto his Souldiers and Pensioners for which he gave little or nothing to the parties and yet had an entire allowance in the Exchequer to the great damage of the King and scandall of the Court that he had also deceived the King of the pay and wages which he had sent unto his Souldiers in Britain that he had sold a great quantity of the Kings provisions for his Army there and converted the same to his own use and that he had delivered up the Town of Saint Saviours in Normandy and the Town and Fort of Betherell in Britainy not without suspition of Corruption and Treason How can the Lord Latimers censure for these deceits and misdemeanors make an argument against the right of the Crown in laying Impositions upon Merchandizes And the like may be said of the punishment of Iohn Peachy who having got a Patent that none should sell sweet Wines within the City of London but himself his Deputies and Assignes by colour thereof did extort three shillings and four pence out of every Pipe or Vessell of sweet Wine sold by others within the City Shall this extortion committed by a Subject by colour of a Patent where perhaps the Patent doth not warrant it be objected as an argument that the King himself might not lay the like Imsition upon every Pipe or Vessel by vertue of his Prerogative therefore the punishment of these persons was not the cause that for an 150. yeares after that no Impositions were layd upon Merchandizes by Prerogative but the Princes who succeeded Edw. 3. untill Queen Mary did
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
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
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
trade and traffique with Forrein Nations and to Strangers that trade traffick with us for the Administration of coÌ„mutative Justice within the Land the King receiveth sundry profits which grew first by way of Imposition A man cannot recover a Debt in the Kings Court but first he payeth the King a Fine for his first Process Land cannot be conveighed by a Common Recovery but a Fine for the Original must be payd to the King Neither can Land be passed from one to another by Fine in the Kings Court but the Kings Silver must be payd pro licentia concordandi Adde hereunto the profit of the Seals in all the Kings Courts for all manner of Writs And yet the King in Charta magna did promise Nulli negabimus nulli vendemus Iustitiam vel rectum but the Kings taking of these and the like Duties is no breach of the great Charter for that the same was imposed by the King long before the Charter was made and taken ut Ministerii sui stipendia as the Schoolman speaketh and withall to recompence the charge of the Crown in maintaining the Court of Justice See Bodin lib. 6. de Repub. cap. 2. where hee speaketh of the like profit made upon the Process in France And shews that the antient Romans did the like And the Emperour Caligula took the fortieth penny of that which was demanded in every several Civil Action If then such profits be taken for the King in his Courts of Justice within the Land towards the charge which he sustaineth in the maintainance of these Courts and the Offices thereof which duties were at first limitted and imposed by the King himself without any Act of Parliament for who ever heard of an Act of Parliament whereby the same were granted Is there not as good reason why the charge of the King in doing Justice and procuring Justice to be done unto Merchants whose residence and comerce is for the most part out of the Land should be recompenced out of Merchandizes imported and exported not according to the will of the Merchant and pleasure of the people out proportionable according to the Kings charge which being best known to himself it is most meet that the recompence should be limitted by himself Touching the charge of the King in doing and appointing Justice to be done to Merchants Are not all Leagues Truces and Treaties of State with Forein Princes wherein the publique Trade and Comerce of Merchants are ever included concluded and made at the Kings charge Did not the Kings Council of State and high Court of Chancery give more speedy hearing to the causes of Merchants than to the causes of other Subjects Doth not the King maintain a Court of Admiralty for deciding of Marine causes which doe for the most part concern Merchants Doth he not bear the charge of several Leâ—ger Ambassadors in Italy in Spain in France in the Low Countries in Turkie whose principal Negotiation doth consist in procuring Justice to be done to our Merchants And if our Merchants doe suffer wrong in any Forein Country by reason of any defective neglect in doing Justice there doth not the King by his Prerogative grant them Letters of Mart or Reprisal that they may right themselves which is a Species justi Belli as the Civilians call it And if the injury done to the Merchants bee multiplyed and continued with a high hand Is it not the Kings Office to denounce and prosecute War against such a people as doth refuse to doe Justice unto his Merchants For this cause the Romans began the first Punick War saith Appian Cicero in his Oration pro Lege Manlia affirmeth Populum Romanum saepe Mercatoribus Injuria suis tractata bella gessisse Briefly the plenty of Money being greater in this Age than ever was there by reason of so many Millions of Gold and Silver brought from the Indies into Europe and the price of all Merchandizes being withall greatly enhanced and the charges and expences of Princes exceedingly encreased is it meet or just that the King at this day should be stinted or bound to that old Demimark onely for Native commodities or the three pence of the pound for the Forein commodities which Edw. 1. was content to accept of four hundred years since or a single poundage onely which in the time of King Edw. 4. was not sufficient to maintain the necessary charges of keeping the Sea as the Acts of Parliament 12 Edw. 4. cap. 5. which granteth that Subsidy to the King reciteth all the Kings charge in supporting the Trade of Merchants being unlimited and infinite And shall the duties payable for Merchandizes be stinted and restrained to such a proportion only as the Subject shall bee pleased to grant unto him Assuredly if the King had not a Prerogative of his own absolute power without Act of Parliament to increase the duties payable for Merchandizes at this day a Merchants Counting-house would be richer than the Kings Exchequer and the Subject who may live privately and moderate his expences and yet raise the Fines of his Coppy-holds and Rents of his Demeans without controlement would be in better case than the King who by reason of the Majesty of his Estate cannot abridge his charges and yet should have no power of himself without leave of his Subjects to increase his Revenue Again the King is not only at charge in doing of Justice to his Merchants at home and in procuring Justice to bee done to them abroad but the doth withall maintain a Royall Navy of Ships the best the fairest the strongest in the world at this day to protect all Merchants from spoyl and Piracy on the sea In the maintainance of this Navy the King doth expend more Treasure than the whole Revenue of some of his Predecessors did amount to And he doth not onely secure Merchants by Sea but he gives them safe conduct by Land also as appeareth by the great Charter So as they may well give our King that title which Virgil gives to the King of Bees Ille operum custos And seeing Merchants are most likely resembled to those Industrious creatures because they bring the hony to the Kings Hives to wit to his Havens and Ports where they and their Merchandizes bee protected and reserved why should they not imitate the Bees in observing their King and in making him partaker of the fruit of their labours Neither is it a new thing or an invention of this Age to lay Impositions upon Merchants for their Wastage and Protection at Sea for Plinius tels us lib. 19 cap 4. Merces praetiosae ut ex India Arabia Ethiopia tuto in Europam à Mercatoribus conveherentur necessariò classem parandam esse adversas Piraticas incursiones inde maritimi exercitus habendi causa vectigal rubri maris institutum A third reason drawn from the Interest the King hath in the parts of the Kingdom and the custody thereof which giveth him
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
come in and out of his Streams and Ports with their Ships and Merchandizes Podagium in Mari debet solvi sicut in terra si sit impositum per dominum Maris saith Baldus and the rights belonging to the Lord of the Sea saith another Doctor are Ius navigandi jus piscandi jus imponendi vectigalia pro utroque Again the Kings of England have the like Prerogative in the government of Trade and Comerce belonging to this Kingdome as other Princes and States have within their Dominions he must of necessity have the like absolute power as they all have to lay Impositions upon Merchandizes imported and exported otherwise he cannot possible hold the ballance of Trade upright or perserve an equality of Traffique between his own Subjects and the Subjects of Forein Princes and consequently it will lye in the power of our Neighbours to drain and draw away all our wealth in a short time or else to overthrow all Trade and Comerce between us and them at their pleasure and we shall have no means to encounter or avoid the mischief for their Princes having sole power to impose will have the sole making and managing of the Market between their Subjects and us and consequently may set what price they please upon all Merchandizes enforcing us to sell our Commodities cheap and buy their Commodities dear onely by this advantage of laying Impositions And therefore the King of England must of necessity have the same absolute power to lay Impositions upon Merchādizes as other Princes have as well ut evitetur absurdum as to prevent the ruin of the Common-wealth by the equall ballancing of Trade Comerce between his Subjects and the Subjects of Forein Princes Upon this reason when the Duke of Venice in the time of Q. Eliz. as is before expressed had laid an Imposition of one Ducket upon a 100 li. weight of Currans carried out of his Dominions by any English Merchant the Queen by speciall Patent in the twelfth year of the Reign did enable the Merchants which did Trade into the Levant to levie five shillings and six pence upon every 100 livre. weight of Currans brought into England by any Merchant Stranger Upon the like reason when in the time of King Hen. 8. the Emperor and the French King had raised the valuation of their monies both so high as there grew not only an inequality of Trade between their Subjects and the Subjects of England but our monies standing at their former values were carried out of the Realm in great quantities The King in the 24 year of his Reign granted a Commission unto Cadinall Woolsey to enhance the values of English monies likewise by that means to set ballance of trade even again and to keep our monies within the Realm Upon the same reason of State when the King of Spain that now is in the year 1614. had laid an Imposition of thirty upon the hundred on all Merchandizes imported and exported by Strangers the French King Hen. 4. was quickly sensible of it and did forthwith impose the like in his Kingdom then it followed of necessity that other Nations should follow and imitate them whereby it came to passe that Comerce of Merchants generally throughout Christendome began to decay which being perceived by these two great Princes they agreed to take away those excessive Impositions upon severall Treaties between them and the Italians and after between them and the English and the Dutch Briefly we find examples in all ages that whensoever by reason of Warre or for any other cause any Forein Prince gave the least impediment to Merchants in their Trade our Princes gave the like entertainment to their Merchants again This is declared in Magna Charta cap. 30. where it is plainly expressed what entertainment the Merchants of all Nations should expect in England Habeant Salvum securum conductum saith the Charter Praeterquam in tempore guerrae si fuerint de terra contra nos guerrina then as our Merchants are used with them so shall their Merchants be used with us 46 Edw. 3. The Countesse of Flanders having arrested the goods of the English Merchants there the King in recompence of their losses granted unto them all the goods of the Flemings in England whereof there is a notable Record mentioned before 1 Edw. 3. pat m 19. in Arch. Turris There are many other examples of mutuall embarments of Trade between the Flemings us and also between us and the French men during our Wars with France which I omit I will recite onely one president in the 40 year of Queen Elizabeth at which times the Merchants of the Haunce Towns having by sinister information procured the Emperour to banish our English Merchants out of the Empire the Queen by her speciall Commission did authorize the Mayor and Sheriffs of London to repair to the Still-yard being the Hostell of the Haunces to seize that House into her Majesties hands and there to give warning to the Merchants of the Haunce Towns to forbear Traffique with any of her Subjects in England and to depart the Realm upon that very day which was assigned to our Merchants to depart out of the Empire Lastly for the ordering and government of Trade among our own Merchants in Forein Countries and at home our Kings by their Prerogatives have instituted divers Societies and Companies of Merchants as the Company of Merchant Adventures the Muscovia Company the Turkie Company the East India Company c. all which are created upholden and ruled by the Kings Charter only whereupon I may conclude that the Kings of England having the same power in governing and ballancing Trade as other Princes have may justly execute the same power as well by laying Impositions upon Merchandizes as by the other means which are before expressed CHAP. XXII Of the several objections that are made against the Kings Prerogative in laying Impositions upon Merchandizes and the several Answers thereunto THE first Objection touching the property which all free Subjects have in their goods First it is objected that under a Royal Monarchy where the Prince doth govern by a positive Law the Subjects have a property in their Goods and inheritance in their Lands Ad Reges potestas omnium pertinet ad singulos proprietas So as the King hath no such Prerogative say they whereby he may take away the Lands or Goods of a Subject without his consent unless it be in a case of Forfeiture And therefore though Samuel foretold the people when they desired a King Hoc erit Ius Regis tollere agros vestros vineas oliveta dare servis suis Yet Ahab though he were a wicked King did not claim that Prerogative when he coveted Naboths Vineyard neither did he enter into it untill Naboth by false witnesses was condemned and stoned to death for blasphemy and then he took it for a lawfull Escheat but when the King doth
lay an Imposition upon Merchandizes without the consent of the Merchants and doth cause the Officers of his Customes to take and levie the same it seems sat they they take away the goods of the Subject without his consent and without cause of forfeiture which is not warranted either by Law of Nations which brought in property nor by the Law of the Land which doth maintain property CHAP. XXIII The Answer to the first Objection TO this Objection we answer That the King doth not take the Land or Goods of any without his consent but here we must distinguish there is a particular and expresse consent and there is an implicit and general consent when a man doth give his Goods or surrender his Lands to the King by deed enrolled or when in Parliament which representeth the body of the whole Realm and wherein everyman doth give his consent either by himself or his Deputy A subsidy is granted to the King there is an expresse consent but when subjects who live under a Royall Monarchy do submit themselves to the obedience of that Law of that Monarchy whatsoever the Law doth give to that Monarch the subjects who take the benefit of the Law in other things and doe live under the protection of the Law doe agree to that which the Law gives by an implicit and general consent and therefore there are many cases where the King doth lawfully take the goods of a Subject without his particular expresse consent though the same be not forfeited for any crime or contempt of the Owner If a Theef do steal my goods and waive them the King may lawfully take those goods without my particular consent and without any fault or forfeiture of mine but in regard I live under the Law which giveth such wayves unto the King he taketh not the same without my implicit consent so if my Horse kill a man the King may lawfully take my Horse a Deodand without my fault or consent in particular but in that I have consented to the obedience of the law which giveth all Deodands to the King he taketh not my Horse without the implicit or generall consent of mine In the time of War the King doth take my House to build a Fort or doth build a Bulwark upon my Land he doth me no wrong though he doth it without my consent for my implicit consent doth concur with it for that I being a member of the Common-weal cannot but consent to all Acts of necessity tending to the preservation of the Common-wealth So if the King doth grant me a Fair or Market with a power to take a reasonable Toll If a man will buy any thing in my Fair or Market I may take Toll of him though I give no particular consent to the grant because the Law whereunto every Subject doth give consent and obedience doth warrant the taking of Toll in every Market and Fair granted by the King So it is in case of Impositions the Law doth warrant the Kings Prerogative to impose upon Merchandizes as is before declared and therefore though the Merchants give not their particular consents to the laying of these Impositions yet in regard they live under the protection and obedience of the Law which submits it self to this Prerogative and allow and approve the same it cannot be said that the King doth take these Impositions of them without their implicit and generall consent CHAP. XXIV Of the second objection touching the uncertainty and unbounded largenesse of this Prerogative THe second Objection is against the uncertainty and unlimited largenesse of this Prerogative for in other cases they say where the King taketh the goods of a Subject by his Prerogative there is a certainty what he may take as in the case of way vs he may take onely the goods wayved and no more In case of Deodand he may take only the thing that causeth the death of a man and no more In case of wreck he may take only the goods that are wreckt and no more In case of Wardship of Land holden in Capite the King may take the profits of the Land till the Heir sues his Livery and no longer In case where the King hath Annum Diem vastum hee may retain of the Lands of the Felon attainted which are holden of other Lords for a year and a day and no longer In all these cases there is a certainty what the King shall have and how long he shall have it but in case of Imposition the quantity or rate thereof high or low is left to the Kings own will or pleasure so as if he should be mis-led as many Princes have been with evill Counsell he might with his Prerogative doe hurt the Cōmon-wealth by laying too heavy burthens upon his Subjects for though hetherto his Majesty hath imposed upon Merchandizes only twelve pence on the pound over and above the ancient Custome and the Subsidies granted by Parliament yet this Prerogative being unlimitted he may hereafter say they set five shillings or ten shillings upon the pound if it please him and so undoe the Merchants or discontinue and overthrow all Trade and Comerce CHAP. XXV The Answer to the second Objection TO this Objection the fittest answer is That it is an undutifull Objection and withall too busie too bold and too presumptuous for it is an Objection against the wisdome of the King in point of Government and against the bounty and goodnesse of the King towards his people the Text of the Civil Law cited before doth call it a kind of Sacrilege to dispute of Princes Judgments or Actions and for the Law of England sure I am that it trusteth the Wisdome and Judgement of the King alone in matter of greater importance than in laying of Impositions or setting of rates upon Merchandizes Is not the Kings wisdome only trusted with the absolute power of making War and Peace with forein Nations whereby hee may when hee pleaseth interrupt all Trade of Merchandizing Is not the King alone trusted with the like power of making and decrying of monies which is the onely Medium of all Traffique and Comerce Is not he solely and without limitation trusted with the nomination and creation of all Judges and Magistrates who are to give Judgement in cases concerning the Liberties Lands and Lives of all his Subjects hath not he a sole and unlimited power to pardon all Malefactors to dispence with all penal Laws to distribute all Honours to grant to whom he pleaseth Protections Denizations Exemptions not only from Juries but from all other Services of the Common-wealth and yet these Prerogatives if the same be not used with judgement and moderation may prove prejudicial to the Common-wealth as well as the laying of Impositions upon Merchandizes Shall therefore any undutifull Subject make these conclusions The King may have a continuall Warre with Forein States and Princes and so continually corrupt all courses of Merchandizes Ergo he shall lose his