this kingdome which is jus publicum regni and so subverteth the fundamentall Law of the Realme and induceth a new forme of state and government 2 It is against the municipall Law of the Land which is jus priuatum the Law of property and of private right 3 It is against Divers statutes made to restraine our King in this point 4 It is against the practice and action of our Common wealth contra morem majorum and this is the modestest rule to limit both Kings Prerogatives and subiects liberties Upon the first and fourth of these foure principall grounds I will more insist then upon the second and third both for that in their owne nature they are a more proper matter for a Councell of State to the judgement of which I apply my discourse and they have not beene enforced by others As also for that the other two as more fit for a barre and the Courts of ordinary justice have by some professors of the Law beene already most learnedly and exquisitely discussed For the first it will be admitted for a rule and ground of State that in every Common-wealth and government there be some rights of Sovereignty jura Majestatis which regularly and of common right doe belong to the Soveraign power of that State unlesse Custome or the provisionall ordinance of that State doe otherwise dispose of them which Soveraigne power is potestas suprema a power that can controule all other powers and cannot be controuled but by it selfe It will not be denied that the power of imposing hath so great a trust in it by reason of the mischiefes may grow to the Common-wealth by the abuses of it that it hath ever beene ranked among those rights of Soveraigne power Then is there no further question to be made but to examine where the Soveraigne power is in this Kingdome for there is the right of imposition The Soveraigne power is agreed to be in the King but in the King is a twofold power the one in Parliament as he is assisted with the consent of the whole State the other out of Parliament as he is sole and singular guided merely by his owne will And if of these two powers in the King one is greater than the other and can direct and controule the other that is Suprema Potestas the Soveraigne Power and the other is subordinata It will then be easily proved that the power of the King in Parliament is greater than his power out of Parliament and doth rule and controule it for if the King make a grant by his Letters Patents out of Parliament it bindeth him and his successours he cannot revoke it nor any of his successours But by his power in Parliament he may defeate and avoyd it and therefore that is the greater power If a judgement be given in the Kings Bench by the King himselfe as may be and by the Law is intended a writ of Errour to reverse this judgement may be sued before the King in Parliament which writ must be granted by the Chancellor upon bill indorsed by the King himselfe as the book is 1 H. 1 H. 7.19.6 7.19.6 And the forme of the writ of Error is that it being directed to the Chiefe Justice of the Kings Bench Lib. ntrac fol. 302. c. 1. Quia in recordo processu ac etiam in redditione judicii loquelae quae fuit in Curiâ nostrâ coram nobis Error intervenit manifestus ad grave damnum c. Nos errorem si quis fuerit modo debito corrigi partibus praedictis plenam celerem justitiam fieri volentes in hâc parte vobis mandamus quòd Recordum processum loquela illius cum omnibus ea tangentibus in praesens Parliamentum nostrum sub sigillo tuo distinctè apertè mittas hoc breve ut inspectis c. nos de Consilio advisamento Dominorum spiritualiū temporalium ac Communitatis in Parliamento nostro praedicto existentis ulterius pro errore illo corrigendo fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Angliae fuerit faciendum So you see the Appeale is from the King out of the Parliament to the King in Parliament the writ is in his name the rectifying and correcting the errours is by him The book is not so that the Cōmons should meddle but with the assent of the Lords and Commons than which there can be no stronger evidence to prove that his power out of Parliament is subordinate to his power in Parliament for in Acts of Parliament be they lawes grounds or whatsoever else the Act and power is the Kings but with the assent of the Lords and Commons which maketh it the most soveraigne and supreame power above all and controulable by none Besides this right of imposing there be others in the Kingdome of the same nature As the power to make lawes the power of Naturalization the power of erection of arbitrary government the power to judge without appeale the power to legitimate all which doe belong to the King only in Parliament Others there be of the same nature that the King may exercise out of Parliament which right is growne unto him in them more in those others by the use and practice of the Common-wealth as denization coynage making warre which power the King hath time out of minde practised without the gain-saying and murmuring of his subjects But these other powers before mentioned have ever beene executed by him in Parliament and not otherwise but with the reluctation of the whole Kingdome Can any man give me a reason why the King can only in Parliament make lawes No man ever read any law whereby it was so ordained and yet no man ever read that any King practised the contrary Therefore it is the originall right of the Kingdome and the very naturall constitution of our State and policy being one of the highest rights of soveraigne power So it is in naturalization legitimation and the rest of that sort before recited It hath been alleaged that those which in this Cause have enforced their reasons from this Maxime of ours That the King cannot alter the Law have diverted from the question I say under favor they have not for that in effect is the very question now in hand for if he alone out of Parliament may impose he altereth the Law of England in one of these two maine fundamentall points He must either take his Subjects goods from them without assent of the party which is against the Law or else he must give his owne Letters Pattents the force of a Law to alter the property of his subjects goods which is also against the Law That the King of England cannot take his subjects goods without their consent it need not be proved more then a principall it is jus indigena an old homeborne right declared to be Law by divers statutes of the Realme As in 34. E. 3. cap.
the Commons that an imposition of a peny was set upon wools for Tronage over and above the ancient due which was but a peny and so the subject was charged with two pence Also that a peny was exacted for Mesonage which was but an halfepeny which Impositions the Record doth expresse did amount to an hundred pounds a yeere This petty imposition was as much stood upon in point of right as the other great one of fourty shillings and was taken off upon complaint in Parliament without either justification or excuse for the smalnesse of it My sixth observation is that those which have advised the setting on of impositions without assent of Parliament have beene accused in Parliament for giving that advice as of a great offence in the State and have suffered sharpe censure and great disgrace by it Neither doe I finde that the quality of the person hath extenuated the blame as 50. E. 3. William L. Latimer Chamberlaine to the King and one of his private Councell was accused by the Commons in Parliament of divers deceits and extortions and misdeeds and among other things that hee had procured to bee set upon wooll wooll-fells and other merchandises new impositions to wit upon a sacke of wooll eleaven shillings which the L. Laâ—imer sought to excuse because hee had the consent and good liking of the merchants first But judgement was given against him that he should be committed to prison be fined and ransomed at the Kings will and be put from being of the Councell and this procuring of impositions to bee set on without assent of Parliament is expresly set downe in the entry of the judgement for one of the causes of his censure Richard Lyons a Fermor of the Customes in London the same yeere was accused in Parliament for the same offence Rot. parl 50. E. 3. n. 17 18 19 20. he pleaded hee did it by the Kings command and had answered the money to the Kings Chamber yet was condemned and adjudged in Parliament to be committed to prison and all his lands and goods were seifed into the Kings hand and at the last the hate against these authours of impositions grew so that 50. E. 3. in the same Parliament a petition was exhibited in Parliament to make this a capitall offence the Record is very short and therefore I will set it downe verbatim Item prie le dit Common que foit ordaine per statute en cest present parliament de touts ceux qux cy en avant mittont on font pur lour singuler profit novels impositions per lour authoritie demesn accrocheants al eux eny ul power de riens que soit establi en parliament sans assent de parliament que ils eyent judgement de vie member de forisfacture To this rough petition the King gave a milde and temperate answer Courge la Common ley come estoit al avant use My seventh observation is the cessation betweene 50. E. 3. after this censure in Parliament and 4. Mariae almost two hundred yeeres during which time no King did attempt to impose without assent of Parliament and yet we finde in the Parliament rolls that there was not one of those Kings that raigned in that time but had impositions granted him upon fit occasion by Act of Parliament upon all goods and merchandiles and at divers times during their Reignes sometimes more sometimes lesse upon the tonne and pound but ever for a time certaine and definite so the use of them was not given over but the power of imposing was so clearly and undoubtedly held to bee in the Parliament as no King went about to practise the contrary But to this cessation that was of great weight and credit in our evidence a colour was given by the other side to avert the inference made upon it against the Kings right that is that during that time there was so great a revenue grew to the Crowne by double Custome paid for all merchandises both in England and at Castis by reason of an Act of Parliament made 8. H. 4. which was that no goods should bee carried out of the Realme but to Calles and by reason that the merchants paid Custome both there and here for the same goods that in the seven and twentieth yeere of Henry the sixth the Custome of Callis was 68000. pounds the yeere a great summe if you consider the weight of money then what price it bare and by reason hereof Princes not delighting to charge their munnuting subjects but when need is being so amply supplied otherwise did not put that prerogative in practice To this I answer that if that were true that was urged it might bee some probable colour of the forbearance of imposing but I find it to be quite contrary and that by Record for there was no such restramt of all commodities not to bee transported to any place but Callis but onely wools wool-fells leather tinne and lead that were staple wares which by the stature 37. E. 3. were to be transported thither and not to any other place and the staple continued at that place for the most part from that time untill long after 27. H. â— but there was no double Custome paid both here and there by the same owner but the yeerly profits of the Customes of Callais at those tiems were so farre short of that which hath beene alleaged in 27. H. 6. that it appeareth in an Act of Parliament 27. 27. H. 3. ca. 2. H. 6. cap. 2. printed in the booke at large that the Commons doe complaine that whereas in the time of E. 3. the Custome of Callais was 68000. l. per annum at that time which was 27. H. 6. by reason of the ill usage of merchants it was fallen to bee but 12000. pounds the yeere so then there was great cause in that respect to have set on impositions by reason of that great abatement of Customes and yet it was not then offered to bee done without assent of Parliament But if you looke a little further into the extreme necessities of those times you shall finde there never was greater cause to have strained prerogatives for it appeareth in an Act of Parliament 28. H. 6. that it was then declared in Parliament by the Chancellour and Treasurer who demanded reliefe of the people for the King both for payment of his debts and for his yeerly livelihood that the King was then indebted 372000. pounds which now by the weight of money amounteth to above 1100000. pounds and that his ordinary expences was more than his yeerly revenue by 19000. pounds yeerly so if ever there was cause to put a King to his shifts it was then yet wee see they did not venture to put in practice this supposed prerogative It further appeareth in that statute that the people among those reasons they alleaged why they were not able to reteine the King gave this for one that they had so often granted him tonnage and poundage upon merchandises
them must be qualified ere they be confessed but the inference and argument made upon them I utterly deny for in it there is mutatio hypothesis and a transition from a thing of one nature to a thing of another As the premisses are of a power in the King only fiduciary and in point of trust and government the conclusion inferres a right of interest and gaine Admit the King hath Custodiam portuum yet hee hath but the custody which is trust and not Dominium utile He hath power to open and shut upon consideration of publike good to the people and State but not to make gaine and benefit by it The one is protection the other is expilation Portus sunt Publici The Ports in their owne nature are publike free for all to goe in and out yet for the common good this liberty is restrainable by the wisdome and policy of the Prince who is put in trust to discerne the times when this naturall liberty shall be restrained In 1. H. 7. fo 10. 1. H. 7.10 in the case of the Horentines for their Allome the Lord chiefe Justice Hussey doth write a Case that in the time of E. 4. a Legate from the Pope being at Calice to come into England it was resolved in full Councell as the booke saith before the Lords and Judges that he should not have licence to come into England unâ—esse he would take an oath at Calice that he would bring nothing with him that should be prejudiciall to the King and his Crowne The King by the Common Law may send his Writ Ne exeas regnum to any subject of the Realme but the surmise of the Writ is Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clam destinas te divertere quamplurima nobis coronae nostrae preiudicia prosequi Fitzh N. B. 85. b. Fitzh N. B. 85. b. So in point of government and Common good of the Realme he may restraine the person but to conclude therefore he may take money not to restraine is to sell government trust and common justice and most unworthy the divine office of a King But let us compare this power of the King in forraigne affaires with the like power he hath in Domestique government There is no question but that the King hath the custodie of the gates of all the Townes and Cities in England as well as all the Ports and Havens and upon consideration of the Weal publike may open and shut them at his pleasure As if the infection of the sicknesse be dangerous in places vicine to the City of London the King may command that none from those places shall come into the City May he therefore set an imposition upon those that he suffereth to come into the City So if by reason of infection he forbid the bringing of Wares and Merchandizes from some Cities or Townes in this Kingdome to any great Faire or Mart Shall he therefore restraine the bringing of Goods thither unlesse money be given him by way of imposition The King in his discretion in point of equity and for qualifying the rigour of the Law may enjoyne any of his Subjects by his Chauncellor from suing in his Court of Common Law May he therefore make a benefit by restraining all from suit in his Courts unlesse they pay him an imposition upon their suits 2. E. 3.7 In 2. E. 3. in the case of the Earle of Richmond before cited the King had granted unto the men of great Yarmouth that all the Ships that arrived at the Port of Yarmouth which consisted of three severail Ports great Yarmouth little Yarmouth and Gerneston should arrive all at great Yarmouth and at no other place within that Port. The lawfulnesse of this Patent being in question in the Kings Court it was reasoned in the Kings behalfe for the upholding of the graunt as it is now that the King had the custodie of the Port he might restrain Merchants from landing at all in his Kingdome Therefore out of the same power might appoint where and in what Haven they should land and in no other This Patent was demurred on in the Kings Bench as being granted against the Law but the Case depending was adjourned into Parliament for the weight and consequence of it and there the Patent was condemned 9. E. 3. cap. 1. and a Law made against such and the like graunts The Presidents that were vouched for maintenance of this power of restraint in the King were foure produced almost in so many hundred yeares Rot. parl 2. E. 1. n. 16. Rot. fin 2. E. 1. n. 17. Rot. claus 10. E. 3. dor 31. Rot. claus 17. H. 6. in dors whereof two were in the second yeare of E. 1. one in the tenth yeare of E. 3. another in the seventeenth yeere of H. 6. since which time wee heare of none but by Act of Parliament as they had beene usually and regularly before To these I will give answer out of themselves out of the common law out of divers statutes and out of the practise of the Common-wealth The restraint in the time of E. 1. the one of them was to forbid the carrying of wooll out of the Realme the other was to forbid all Traffique with the Flemings That of 10. E. 3. was to restraine the exportation of ship-timber out of the Realme That of 17. H. 6. to prohibite Traffique with the subjects of the Duke of Burgundy These presidents are rare yet they have in them inducements out of publique respects to the Common-wealth for the rule of Common law in this case I take it to bee as the reverend Judge Sir Anthony Fitzherbert holds it in his writ of Ne exeas regnum in Na. Br. Fitzh N. B. 85. that by the Common law any man may goe out of the Kingdome but the King may upon causes touching the good of the Common-wealth restraine any man from going by his Writ or Proclamation and if hee then goe it is a contempt This opinion of his is confirmed by the booke Dier 1. El. 165. Dier 13. El. 296. 1. Eliz. fol. 165. Dier 12. 13. Etiz Dier 296. In like manner if a subject of England be beyond sea and the King send to him to repaire home if hee doe it not his lands and goods shall bee seised for the contempt and this was the case of William de Brittain E. of Richmond 19. E. 2. 19. E. 2. Hee was sent by the King into Gascoine on a message and refused to returne for which contempt his goods chattels lands and tenements were seised into the Kings hands 2. 3. P. M. Dier 128. the Record is cited 2. 3. Ph. M. in my L. Dier fol. 128. B. and the law there held to bee so at that time upon a question moved in the Queenes behalfe against divers that being beyond the seas refused to returne upon commandment sent unto
E. 4. cap. 1. 19. H. 7. cap. 21. The same thing enacted upon the like occasion 4. E. 4. c. 1.19 H. 7. c. 21. the importation of divers commodities forbidden as being prejudiciall to the manufactures within the Realme 6. H. 8 cap 12. 6. H. 8. cap. 12. The exportation of Norfolk woolls out of the Realme forbidden 26. H. 8. cap. 10. 26. H. 8. ca. 10. Power is given to the King to order and dispose of the traffique of merchants at his pleasure and the reason is given because otherwise the leagues and amities with forreigne Princes might bee impeached by reason of restraint made by divers statutes then standing on foote whereby it appeareth that it was not then taken to bee law that the King had an absolute power in himselfe to order and dispose of the course of traffique without helpe of a statute 2. E. 6. cap. 9. 2. E. 6. cap. 9.1 2. P. M. c. 5. Exportation of leather restrained 1. 2. Ph. Ma. The exportation of herring butter cheese and other victuals forbidden 18. Eliza. cap. 8. the exportation of tallow 18. El. cap. 8. raw hides leather So in all times no use of Proclamations in matters of this nature but Acts of Parliament still procured wherefore in mine opinion it behoveth them that doe so earnestly urge this argument the King may restraine traffique therefore may impose to prove better then they have done that the King may restraine traffique of his owne absolute power for as the naturall policy and constitution of our Common-wealth is wee may better say that is law which is de more gentis then that which floweth from the reason of any man guided by his generall notion and apprehension of power regall in genere not in individuo The last assault made against this right of the Kingdome was an objection grounded upon policy and matter of State as that it may so fall out that an imposition may beset by a forreigne Prince that may wring our people in which case the counterpoise is to set on the like here upon the subjects of that Prince which policy if it be not speedily executed but stayed untill a Parliament may in the meane time prove vaine and idle and much damage may bee sustained that cannot afterwards be remedied This straine of policy maketh nothing to the point of right our rule is in this plaine Common-wealth of ours Oportet neminem esse sapientiorem legibus if there bee an inconvenience it is fitter to have it removed by a lawfull meanes than by an unlawfull but this is rather a mischiefe than an inconvenience that is a prejudice in present to some few but not hurtfull to the Common-wealth and it is more tolerable to suffer an hurt to some few for a short time than to give way to the breach and violation of the right of the whole Nation for that is the true inconvenience neither need it bee so difficult or tedious to have the consent of the Parliament if they were held as they ought or might be but our surest guide in this will bee the example of our ancestours in this very case and that in the time of one of the most politique Princes that ever reigned in this Kingdome 7. H. 7. cap. 7. 7. H. 7. cap. 7. You shall finde an Act of Parliament in which it was recited that the Venetians had set upon the English merchants that laded Malmeseyes at Candy foure duckets of gold upon a But which in sterling was eighteene shillings the But. It was therefore enacted that every merchant stranger that brought Malmesey into this Kingdome should pay eighteene shillings the But over and above the due Custome used this imposition to indure untill they of Venice had set aside that of foure duckats the But upon the Englishmen Much hath beene learnedly uttered upon this argument in the maintenance of the peoples right and in answering that which hath beene pressed on the contrary but my meaning is not to expresse in this discourse all that hath or may bee said on either side but onely to make a remembrance somewhat larger of that which I my selfe offered as my symbolum towards the making up of this great reckoning of the Common-wealth which if it bee not well audited may in time cost the subjects of England very deare My hope is of others that laboured very worthily in this businesse that they will not suffer their paines to die and therefore I have forborne to enter into their province I will end with that saying of that true and honest Counsellour Philip Comines in his 5th booke the 18. chap. That it is more honourable for a King to say Ph. Comines l. 5. c. 18. I have so faithfull and obedient subjects that they deny me nothing I demand than to say I levie what me list and I have priviledges so to doe After the Kings right to impose had beene thorowly examined in Parliament and there determined not to be in him alone without assent of Parliament among other Petitions of grievance given unto his Majestie this hereafter was concerning impositions THE policie and constitution of this your Majesties kingdome appropriates unto the Kings of this Realme with assent of Parliament as well the soveraigne power of making Lawes as that of raxing or imposing upon the subjects goods or merchandizes wherein they justly have such a propriety as may not without their consent be altered or changed This is the cause that the people of this kingdome as they have ever shewed themselves faithfull and loving to their Kings and ready to aide them in all their just occasions with voluntary contributions so have they been ever carefull to preserve their owne liberties and rights when any thing hath been done to prejudice or impeach the same And therefore when their Princes either occasioned by war or by their over great bounty or by any other necessity have without consent of Parliament set on impesitions either within the Land or upon commodities exported or imported by the Merchants they have in open Parliament complained of it in that it was done without their consents and thereupon never failed to obtaine a speedy and full redresse without any claime made by the Kings of any power or prerogative in that point And though the Law of propriety be originall and carefully preserved by the common Lawes of this Realme which are as ancient as the Kingdome it selfe yet those famous Kings for the better contentment and assurance of their loving subjects agreed that this olde fundamentall right should be further declared and established by act of Parliament wherein it is provided that no such charge should ever be laid upon the people without their common consents as may appeare by sundry Records of former times We therefore your Majesties most humble Commons assembled in Parliament following the example of this worthy care of our ancestors and out of our duty to those for whom we serve finding that your Majestie without advice and consent of your lords and Commons hath lately in time of peace set both greater impositions and farre more in number then any your noble ancestors did ever in time of Warre doe with all humility present this most just and necessary petition unto your Majestie that all impositions set without assent of Parliament may be quite abolished and taken away And that your Majestie likewise in imitation of your royall progenitors will be pleased that a Law in your time and during this Session of Parliament may be also made to declare that all impositions of any kinde set or to be set upon your people their goods or merchandizes save only by common consent in Parliament are and shall be voide Wherein your Majesty shall not only give your subjects great satisfaction in point of their right but also bring exceeding joy and comfort to them who now suffer partly through the abating of the price of native commodities and partly through the raising of all forraigne to the overthrow of Merchants and Shipping the causing of a generall dearth and decay of all wealth among your people who will be thereby no lesse discouraged then disabled to supply your Majestie when occasion shall require FINIS 20. Maii 1641. AT a Committee appointed by the honourable House of Commons for examination of Bookes and of the licencing and suppressing of them c. It is ordered that this Treatise be published in Print unlesse the Licencer shall shew good cause to the contrary EDVVARD DERING
And this was the opinion of Sir Iohn Fortescue that reverend and honourable Judge a very learned professor of the Common Law and chiefe Justice of the Kings Bench Fortescu de laudibus Leg. Ang. cap. 9. in the time of Henry 6. â—â—s words are these in his book De laudibus Legum Angliae cap. 9. Non Potest Rex Angliae ad libitum leges mutare regni sui principatu namque nedum regali sed politico ipse dominatur Si regali tantum praeesset iis leges mutare posset tallagia quoque cateraonera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigorem sed longè aliter potest Rexpoliticis imperans quia nec leges ipse sine subditorum assensu mutare poterit nee Subjectum populum renitentem enerare peregrinis impositionibus In which place I must intepret unto you that peregrinae impositiones be not strange and unheard of impositions as was urged by the worthy gentleman that spake last but impositions upon traffique into and out of forrain Countreyes which is the very thing in question Fortescue de laud. Leg. Ang. cap. 36. further in the thirty sixth Chapter he sayeth of the King of England Neque Rex ibidem per se aut ministros suos tallagia Subsidiae aut alia quaevis onera imponit ligeis suis aut leges corum mutat velnovas condit sine concessione vel assensu totius regni sui in Parliamento So he maketh these two powers of making Law and imposing to be concomitant in the same hand and that the one of them is not without the other He giveth the same reason for this as we doe now but in other words because as he saith in England it is principatus mixtus politicus the King hath his Soveraigne power in Parliament assisted and strengthened with the consent of the whole kingdome and therefore these powers are to be exercised by him only in Parliament In other Countreyes they admit the ground of the Civil Law quod principi placuerit legis habet vigorem Because they have an absolute power to make Law they have also a power to impose which hath the force of a Law in transferring property Ph. Com. l 4 cap. 1. l 5. ca. 8. Philip Comynes that lived at that time in his fourth book the first chapter the fifth booke the eighth chapter taketh notice of this policie of England and commends it above all other States as setled in most security And further to our purpose layeth this ground That a King cannot take one penny from his Subjects without their consent but it is violence And you may there note the mischiefs that grew to the kingdome of France by the voluntary impositions first brought in by Charles the seventh and ever since continued and encreased to the utter impoverishment of the Common people the losse of their free Councell of three estates And if this power of imposing were quietly setled in our Kings considering what is the greatest use they make of assembling of Parliaments which is the supply of money I doe not see any likelihood to hope for often meetings in that kind because they would provide themselves by that other meanes And thus much for my first reason grounded upon the naturall constitution of the policie of our kingdome and the publike right of our nation 2. Com. Law For the point of Common Law which is my second Reason it hath been well debated and nothing left unspoken that can be sayd in it and therefore I will decline to speak of that which other men have well discussed and the rather for that there is nothing in our Law-book directly and in point of this matter neither is the word imposition found in them Dier 1. E. 165. untill the case in my L. Dier 1. Eliz. 165 for we shall finde this businesse of an higher strain and alwayes handled elsewhere as afterwards shall appeare yet I will offer some answers to such objections as have been made on the contrary in point of Common Law and have not been much stood upon by others to be answered The objections that have been made are these that from the first Book of the Law to the last no man ever read any thing against the Kings power of imposing No judgement was ever given against it in any of the Kings Courts at Westminster Other points of prerogative as high as this disputed and debated his excesse in them limited as in the book of 42. 42. Ass p. 5. Ass pl. 5. where the Judges took away a Commission from one that had power given by it to him under the great Seale to take ones person and to seise his goods before he was indicted 1. 2. E. Dier 175. So Master Scrogs case 1. 2. El. Dier 175. the power of the King in making a Commission to determine a question of right depending between two parties notably debated and ruled against the King that hee could not grant it To this I answer that causes of this nature of which the question now handled is have ever been taken to be of that extraordinary consequence in point of the Common right of the whole kingdome that the State would never trust any of the Courts of ordinary justice with the deciding of them but assumed the cognisance of them into the high Court of Parliament as the fittest place to decide matters 2. Ed. 3.7 so much concerning the whole body of the kingdome As 2. Ed. 3.7 it appeares that Ed. 1. had granted a Charter to the men of great Yarmouth that all the ships of Merchants comming to the port of Yarmouth should land their goods at their haven and not at any other haven at that port as at Garneston and little Yarmonth which were members of that port This was very inconvenient for the Merchants and a great hurt to traffique and therefore the Charter was questioned in the time of Ed. 2. and adjudged good by the Counsell but the parties not contented with this judgement in the second yeer of King E. 3. by an order in Parliament made upon a petition there exhibeted against this grant brought a Scire facias out of the Chancery returnable in the kings bench to question againe the lawfullnesse of the Patent and in that suit the cause was notably Debated and those reasons much insisted upon that have been enforced in this case As that of the Kings power in the custodie of the ports But the matter so depending in the ordinary Court of justice a Writ came out of the Parliament and did adjourne it thither againe where it gave occasion of a good Law to be made to prevent the like grants and to make them voyd notwithstanding any judgement given upon them and to make such judgements also void The Statute is 9. E. 3. c. 1. 9. E. 3. c. 1. everyal en and denizen may
carry his Merchandise where it pleased him notwithstanding any Charter granted or judgment thereupon 16. 〈◊〉 Reâ— 1. And in the Parliament rolles 2. H. 4. num 109. we finde a notable record which gives warrant for the proceeding in Parliament in this manner as hath been in this Case notwithstanding the judgement in the Exchequer and declares to the Kingdome that notwithstanding the great wonder made by some men nothing hath been done in this businesse by those that serve in the Parliament but in imitation of their worthy predecessors in the very like case In the second yeere of H. 4. the Commons shew that in the time of R. 2. by the meanes of John Waltham Bishop of Salisbury Treasurer of England wrongfully without authority of Parliament and by reason of a judgement given in the Exchequer 16. 17. R. 2. by the Barons there against certaine Merchants of Bristow and other places passage had been taken for wines otherwise than in ancient times had been and therefore they prayed they might pay their prise wines in the manner they had used to pay notwithstanding any judgement given in the Exchequer or other ordinance made by the said Treasurer contrary to the ancient usage which petition the King granted and the judgement thereupon became voyde and the prisage wine hath been paid contrary to the judgement ever since In 1. 1. El. Dier 165. El. Dier 165. upon the complaint made by the Merchants of the impositions set upon cloth by Queene Mary by her absolute power without assent of Parliament the cause was thought too weighty to bee decided in any one Court but as it appeareth in the book it was referred to all the Judges of England who divers times had conference about it So it may well be there is nothing against it in our yeere books for there is nothing of it Another objection was this which was made in the last argument viz. That Custome is originally due by the common Law of England It can then have no other ground or cause but meerly by the Kings royall prerogative as a right and duty originally belonging to his Crowne which if it be it must necessarily follow he may impose for that is but the exercising of that right To prove this was alledged the case 39. 39 E. 3.13 E. 3.13 by which case it appeareth that King Iohn had a custome of eight pence on a tonn of wine in the part of South-hampton but the book doth not tell you that the King had it by prerogative and he might have it aswell otherwise as by prescription or convention which shall rather be intended by reason of the certainty of the summe paied for if it were by prerogative he might take sometimes more sometimes lesse at his will the right being indefinite and the quantity limitted onely by his owne Discretion 18. El Dier 352. A common person may have such a custome certaine as 18. El. Dier 352. the Maior of London hath the twentieth part of salt brought into the City by Aliens which is a great imposition but is good by prescription originally and hath received greater strength since by acts of Parliament made for the confirmation of the liberties and customes of the City of London So it appeareth Dier 43. that Iohn of Britaine had Custome of the ships that arrived at his port of little Yarmouth worth twenty pounds per an And these instances doe inferre that a Custome may bee otherwise then by prerogative and therefore it is no good argument to conclude the King had such a custome Therefore he had it by prerogative The booke in 30. H. 8. Dier 43. 30. Hen. 8. Dier 43. was much pressed on this point which sayeth that custome belonged to the King at Common Law and doth instance in wooll woll fells and leather begun at the Common Law but abridged by the Satute of 14. E. 3. ca. 21. stat 1. 14. Ed. 3. c. 21. statn r. but this appeareth to be a great errour and mistaking in the booke for we doe finde that that custome of woolls wooll-fells and Leather was begun by a grant in Parliament as appeareth in statute 15. E. 1. ca. 7. the words be Granted to us by the Commonalty aforesaid and the last mention before was that the King had granted to the Bishops Earles Barons and all the Commonalty of land c. Novem. 3. Ed. 1. the King recited in his letters patents That Prelati magnates actota Communitas mercatorum Regni granted this new custome And so the ground and motive of that opinion being false all grounded upon that must needs be erroneous It was objected that the King holdeth at this day the encrease of foure pence in the pound over due custome payd by Merchants Aliens according to the purport of the Charta mercatoria 31. E. 1. Rot. char 31. E. 1. nu 44. in Turri by meere right of prerogative at the Common Law for by that grant of the Merchants he cannot hold it they being no body politick at the time of the grant and therefore the grant is meerely voyd to binde in succession And yet the Merchants Aliens doe pay it at this day It is agreed that by the Common-law a contract with a number not incorporate bindeth not succession but we must take notice that they by whom that grant was made of the augmentation of Custome by three-pence in the pound and other encreases 31. E. 1. were Merchants aliens who by the law of Merchants and Nations may contract to binde their successours in matters of traffique for their contracts are not ruled by the Common law of the Land but by the law of Nations per â—egem Mercatoriam as the book case is 13. Ed. 4.10 and there was a good consideration given them by the King for this encrease of custome as discharge of prise Wines for two shillings the Tonn and other immunities which all Merchants aliens hold and enjoy at this day by force of that contract made 31. E. 1. For a stranger payeth now but two shillings the Tonn for prisage whereas it standeth an English man in much more so as the rule of commutative justice maketh the contract availeable to the King against the Merchants because he parteth with part of his prisage to the Merchant and maketh it availeable to the Merchant against the King because he giveth him encrease of custome above that is due by law 27. E. 3. c 26 But the statute of 27. E. 3. cap. 26. heretofore cited doth make this point cleare without scruple which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of custome by three-pence in the pound which is by name mentioned in the statute is now due by act of Parliament If you will have the King hold this encrease of custome by Prerogative you goe directly against his meaning for it appeareth by that which presently followed this grant that the King took this encrease of
the King doth release that imposition of forty shillings which implyeth a right setled in him But to this I answer that it is no necessarie inference that wheresoever a release of right is for it is used for claime only or where possession was though wrongfull and that in majorem securitatem quia abundans cautela non nocet But in this case a release was very expedient and for some respect necessary to extinguish a right the King had in this imposition against the Marchants themselves For this imposition though it were not set on by assent of Parliament yet was it not set on by the Kings absolute power but was granted to him by the Merchants themselves who were to bee charged with it so the grievance was the violation of the right of the people in setting it on without their assent in Parliament not the dammage that grew by it for that did only touch the Merchants who could not justly complaine thereof because it was their own act and grant 22. E. 1. Origen in Scac. Rem Thes This appeareth by two notable records the one 22. E. 1. A writ to the Treasurer and Barons of the Exchequer in Ireland to discharge the Merchants there of impositions on Woolls in which the King reciteth Licet in subsidium Guerra Regis pro recuperandâ terrâ Vasconiâ mercatores gratanter concesserunt per biennium vel triennium si tantum duraverit Guerra de sacco lanae c. The other record is the Writ of publication that in 26. E. 1. went out after the Statute of 25. In 26. F. 1. mem Sca. Rem Thes in which Writ the King reciteth thus Cum nos ad instantiam Communitatis Regni nostri remiserimus custumam 40. s. nobis nuper in subsidium Guerrae noctrae contra Regem Franciae concessum c. A third objection made out of the body of the Statute by those which have argued on the contrary part was upon these words that the King would take no such things without common consent by which words they conceived the intention of the Law was limitted precisely to impositions set upon wooll and not on other commodities which are not such things but other And for this they alledge this reason That it was not probable when the complaint was only for an imposition on Wooll that the King would give a remedy for other things not spoken of for which there was no cause of complaint To this a full answer is given many wayes first out of the Saving in the Act which extends to other things than to Wooll as to Wooll-fells and Leather therefore the purview of the act by these words such things extendeth to more than the Wooll for there needs no Saving but for that which is contained in the purview Secondly the reason alledged that no more by likelihood should bee remedied but for Wooll because only that was complained of is false For the complaint of the Commons was not only for this imposition on Wooll but divers other burthens and grievances of the like nature And this will appeare if wee compare all the parts of the Law the one with the other for this Law is in the forme of a Charter written in French and beginneth Edward by the grace of God c. And is an entire grant and instrument without fractions sections and Chapters as it is now printed and containeth in it next before this last clause concerning the impositions on Woolls which in the printed Book is Cap. 6. That the King for no businesse from thenceforth will take no manner of aydes mises nor prises but by common assent This word mises in French signifieth properly impositions derived of the word mitto in Latine to put so the word such things is a conclusion to all the premises and hath relation not only to that which is made Cap. 7. by the Printer and concerneth the male toll of Woolls but to that precedent which is all otheraydes impositions and takings The Writ of publication of this Statute sant out to all parts in 26. Meâ—â— Sâ—ac in 26. E. 1. Rem Thes E. 1. maketh plaine this construction the words of it are Concedentes quod custumam illam velaliam sine voluntate vel communi assensu non capiamus These words vel aliam are indefinite and extend to any other whatsoever besides that of Woolls The Writ doth further discharge Merchants for the Commodities of Wooll-fells and Leather which are not complained of by name in the Statute and therefore the Law was intended to other impositions aswell as to those upon Woolls The objection made out of matter subsequent to the Statute was this that notwithstanding this Law of 25. E. 1. impositions that before the statute had bin set on other Merchandize than Woolls were still answered after the Statute and for instance of this was alledged that whereas 16. E. 1. an imposition of 4. s. 16. E 1. Orig. R. Thes the Tonn was set upon Wines brought into the Kingdome an accompt was made of this in th' exchequer in 26. E. 1. as by the records there appeareth by which it seemeth that the Law of 25. E. 1. was not taken to extend to wines and such other Commodities other than Woolls named in the Statute It is true such an imposition was set on by E. 1. in the sixteenth yeere of his raign and an accompt made for it 25. and 26. 25. 26. E. 1. de compt T. Mich. R. Thes But it appeareth by the record of the accompt that it was made for the time ended before the Statute made As from the eighteenth of May 16 E. 1. to 23 Jul. 22. E. 1. But there is no record that ever any accompt was made for any money received for that imposition for the time after the Statute made neither was it very willingly answered before for it appeareth by the record that it was ten yeere after the setting of it The third Satute alledged on the behalfe of the Subject is that 34. E. 1. ca. 1. the words are these 34. E. 1. ca. 1. No tallage or aide shall be taken or levied by us or our heires in our Realme without the good will and assent of our Arch-bishops Bishops Earles Barons Knights burgesses and other freemen of the land Against this was objected that this Statute was intended only upon the taxes impositions of things The word Auxilium makes it cleare that it is to be intended further then of things within the realme for tallagium is commonly intended of Domesticall taxes but auxilium is the most usuall terme for impositions upon goods imported and exported as by the acts of Parliament by which such impositions are given to the King in which they are called most commonly by the name of Aydes as proceeding of good will and benevolence The fourth Satute alledged on this part is that of 5. 5. E. 2. ca. 14 Rot. Ordiâ— E. 2. ca. 14. just in point of the
upon the people unlesse they bee granted in Parliament The Kings answer is If any such impositions were made it was by great necessity and with the astent of the Prelates Barons and some of the Commons present yet hee will not that such Impositions not duly made bee drawne in consequence Here the King acknowledgeth an Imposition not to bee duly made though with the consent of the Higher House and some of the Commons because it was not in full Parliament much rather hee would have thought so if it had beene by the King alone King E. 4. that was a rough and warlike Prince and was more beholding to his sword in the recovery of his right to the Crowne then to the affection of the people at a Parliament held the seventh yeer of his reigne made a Speech to the Commons Sir Iohn Say being then Speaker in which speech is contained very notable matter and very pertinent to our purpose and because the Record is not in print I will set downe the Kings speech verbatim as it is entered upon the Parliament roll and then I will make a paraphrase upon it Iohn Say Rot. parl 7. E. 4. The record begins Memorandumâ— quod die veneru 3. die Parl. and ye Sirs come to this my Court of Parliament for the Commons of this my Realme The cause why I have cald and summoned this my present Parliament is that I purpose to live upon mine owne and not to charge my subjects but in great and urgent causes concerning more the Weale of themselves and also the defence of them and of this my Realme rather than mine owne pleasure as heretofore by Commons of this Land hath beene done and borne unto my progenitours in time of need wherein I trust that yee Sirs and all the Commons of this my Land will bee as tender and kinde unto mee in such cases as heretofore any Commons have beene to any of my progenitours And for the good will kindenesse and true hearts that yee have borne continued and shewed to mee at all times heretofore I thanke you as heartily as I can also I trust yee will continue in time comming for which by the grace of God I shall bee to you as good and gracious a King and reigne as righteously upon you as ever did any of my progenitours upon Commons of this my Realme in dayes past and shall also in time of need apply my person for the Weale and defence of you and of this my Realme not sparing my body nor life for any jeopardy that might happen to the same Out of this wee may observe first the Kings Protestation to live of his owne and not to charge his subjects by which I gather hee did acknowledge a certain and distinct property of that which was his subjects from that which was his owne which excludeth the right to impose at his will for if that be admitted the subjects property is proprietas prâ—caria not certaine how much of his is his owne for that is his which the King will leave him for there is no limit or restraint of the quantity the right being admitted but onely the Kings will The second thing I observe is this that in charging of his subjects he would confine himselfe betweene these two bounds the one it should bee in great and urgent causes concerning more the Weale of them and the defence of them and his Realme that his owne pleasure wherein he condemneth those occasions that grew upon excesse of private expence by over great bounty or otherwise and admitteth onely such as grow by reason of warres or other such like publique causes concerning the whole State the other bound or limit is that those burdens should bee secundum morem majorum as heretofore had beene done and borne by the Commons to his ancestours in time of need The third thing I observe is that hee acknowledged these burdens did proceed out of their good will and kindenesse and not out of his right and prerogative out of these words that hee trusted they would bee as tender and kinde to him in such cases as heretofore any Commons had beene to his progenitours And lastly wee may note the recompence promised by the King to his subjects for their good wils and kindenesse his goodnesse and grace his just and righteous government the jeopardy of his body and life for their Weale and defence Did this King assume to himselfe a â—ight to lay burdens on his subjects at his owne will without their assents that offered to buy them at his need with the price of his blood the most sacred relique in the Kingdome My fourth observation is that in all petitions exhibited by the Commons in Parliament against Impositions the very knot of their griefe and the principall cause of their complaint hath beene expressed in those petitions that the impositions have beene without assent of Parliament by which is necessarily inferred that their griefe was in point of right not of burden In 11. Rot. parl 21. E. 3. nu 11. E. 3. nu 11. the complaint of the Imposition of two shilling upon a sacke of wooll two shillings upon a tonne of wine sixe pence upon aver de pois the cause of grievance expressed because it was done Sans assent de Commons 25 E. R. Parl. 25. E. 3. n. 22. 3. n. 22. In a petition the Commons complaine that an imposition upon wools was set by the consent of the merchants they pray that Commissions bee not made upon such singular grants if they bee not in full Parliament and if any such grants bee made they may bee held as void 17 E. 3. n. 28. R. Parl. 17. E. 3. n. 28. The Commons in their petition informe the King it is against reason they should be charged with impositions set on by assent of merchants and not in Parliament My fifth observation is that whensoever any petition was exhibited against impositions there was never any respect had of the quantity but they were ever intirely abated as well where they were small as where they were great no request ever made to make them lesse when they were great nor excuse made of their ease when they were exceeding small which sheweth that it was not the point of burden or excesse was respected in their complaint but the point of meere right 25. E. 3. nu 22. R. Parl. 25. E. 3. nu 22. Fourty shillings set an imposition upon a sacke of wooll upon complaint all taken off and no suit to be eased of part because it was too great 36. E. 3. nu 26. ibid. 38. E. 3. nu 26. Three shillings and four pence upon a sacke of wooll all taken off and no excuse made for the smalnesse for 21. E. 3. nu 11. two shillings a sacke 21. E. 3. n. 11. two shillings tonnage and six pence poundage 50. E 3. nu 163. R. Parl. 50. E. 3. nu 163. A great complaint was made in Parliament by
there punished and his Patent taken away and cancelled What impositions have been set on in the Kings time I need not expresse they are set downe particularly in the booke of rates that is in print they are not easily numbered the time for which they are raised is not short the Patent prefixed to that booke bearing date 28. â—uln 6. Iacobi will instruct you sufficiently in that point they be limited to the King his heires and successors which I suppose is the first estate of Fee simple of impositions that ever man read of My eighth and last observation is upon tunnage and poundage given to the King of this Realme upon Wares and Merchandizes exported and imported which is an imposition by act of Parliament and as it will appeare was given out of the peoples good will as a very gratification to the King to enjoyne him thereby from the desire of voluntary impositions and to conclude him by that gift in Parliament from attempting to take any other without assent of Parliament for after the ceasing of voluntary impositions these Parliamentary ones were frequent in the times of the King that succeeded but they were never given but for yeares with expresse caution how the money strould be besâ—owed As towards the defence of the Seas protection of traffique or some such other publique causes sometimes speciall sequestrators made by the act of Parliament by whose hands the money should be delivered As 5. 5. R. 2. Rot. Parl. 7. R. 2 n. 13.10 R. 2. n. 12. 7. R. 2. n. 12. R. 2. cap. 3. in a printed Statute The rates that were given were very variable sometimes ii s. tunnage and vi d. poundage as 7. R. 2. iii. s. tunnage and xii d. poundage 10. R. 2. which grants were not to endure the longest of them above a yeare xviii d. tunnage vi d. poundage in 17. R. 2. iii. s. tunnage and xii d. poundage granted to H. 4. in the thirteenth yeare of his raigne for a certaine time in which Statute there is this clause That this aide in time to come should not be taken an example to charge the Lords and Commons in manner of Subsidie unlesse it be by the wills of the Lords and Commons and that by a new grant to be made in full Parliament in time to come This clause in good and proper construction may be taken to be a very convention betweene the King and his people in Parliament that he should not from thenceforth nor any of his Successors set on impositions without assent of Parliament The like imposition was granted to H. 5. Rot. parl 1. H. 5. n. 17. in the first yeare of his raigne for a short time towards the defence of the Realme and safeguard of the Sea upon condition expressed in the act that the Merchants Denizens and estrangers comming into the Realme with their Merchandizes should be well and honestly used and handled paying the said Subsidie as in the time of his Father and his noble Progenitors Kings of England without oppression or extortion In the end of which act the Commons protested being bound by any grant in time to come for the purposes aforesaid H. 6. in the one and thirtieth yeare of his raigne Rot. parl 31. H 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Ma. c. 18. 1. El. c. 19. 1. Iac. c. 33. had tunnage and poundage given him for his life E. 4. had it given him the third yeare of his raigne as it appeareth in a Statute 12. E. 4. cap. 3. H. 8. in the sixth yeare of his raigne and all since in the first yeare of their raignes have had it given them for terme of their life and being now so certainly setled in it do reach further at that froÌ„ which they are in conscience and honour excluded by this voluntarie gratification For can any man give me a reason why the people should give this imposition of tunnage and poundage above the due custome upon all commodities if the King by his prerogative might set on impositions without assent of Parliament and were not that a weaâ—e action in a King to take that of his people as a benevolence from them with limitation of the same and in what it should be imployed and how they will be used for it and for what time he shall have it which he might justly take without their consents unclogged of these unpleasing incombrances The Statute of tunnage and poundage made in our times that are altogether inclined to flattery doe yet retaine in them certain shewes and rumors of those ancient liberties although indeed the substance be lost as in the Srat. 1. lac cap. 1. Iac. c. 33. 33. we declare that we trust and have sure confidence of his Majesties good will towards us in and for the keeping and sure defending of the Seas and that it will please his highnesse that all Merchants as well Denizens as Strangers comming into this Realme be well and honestly intreated and demeaned for such things whereof Subsidie is granted as they were in the time of the Kings Progenitors and Predecessors without oppression to them to be done By this clause as it now continueth the true intent of this Statute appeareth to be that there ought no other imposition be laid upon Merchants besides these given by this Statute and this intention hath been well interpreted by use and practise from the time of E. 3. to the time of Queene Mary as before is declared Thus much of this last reason made from observation and the action of our Nation I will answer now such maine objections as have been made against the peoples right and have not been touched by me obiter in my passage through this discourse That which hath been most insisted upon is this that the King by his prerogative Royall hath the custodie of the Havens and Ports of this Island being the very gates of this Kingdome that he in his royall function and office is only trusted with the keyes of these gates that he alone hath power to shut them and to open them when and to whom he in his Princely wisdome shall see good that by the Law of England he may restraine the persons of any from going out of the Land or from comming into it That he may of his owne power and discretion prohibite exportation and importation of goods and merchandizes and out of this prerogative and preheminence the power of imposing as being derivative doth arise and result For Cui quod maius est licet ei quod est minus licitum est So their reason briefly is this the King may restraine the passage of the person and of the goods therefore he may suffer them not to passe but sub modo paying such an imposition for his sufferance as he shall set upon them for the grounds and propositions laid in this objection I shall not be much against any one of them others of