advance the Kings power and prerogatjve Bracton l. 1. c. 8. but you make him no King for as Bracton saith Rex est ubi dominatur lex non voluntas So we see that the power of imposing and power of making Laws are convertibilia coincidentia and whosoever can do the one can do the other And this was the opinion of Sir John Fortescue that reverend and honorable Judge a very learned professor of the Common Law and Chief Justice of the Kings Bench Fortesc de laudibus Leg. Ang. c. 9. in the time of Henry 6. His 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 caetera onera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigorem sed longè aliter potest Rex politicis imperans quia nec leges ipse sine subditorum assensu mutare poterit nec subjectum populum renitentem onerare peregrinis impositionibus In which place I must interpret 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 traffick into and out of forain Countries Fortesc de laud. Leg. Ang. cap. 36. which is the very thing in question Further in the thirty sixth Chapter he saith of the King of England Neque Rex ibidem per se aut ministros suos tallagia Subsidia aut alia quaevis onera imponit ligeis suis aut leges corum mutat vel novas 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 do now but in other words because as he saith in England it is principatus mixtus politicus the King hath his soveraign power in Parliament assisted and strengthened with the consent of the whole Kingdom and therefore these powers are to be exercised by him only in Parliament In other Countries 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. cap. 8. Philip Comines that lived at that time in his fourth Book the first Chapter the fifth Book the eighth Chapter taketh notice of this policy of England and commends it above all other States as settled in most security And further to our purpose laieth 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 Kingdom 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 and the loss of their free Councel of three Estates And if this power of imposing were quietly setled in our Kings considering what the greatest use they make of assembling of Parliaments which is the supply of money I do not see any likelihood to hope for often meetings in that kind because they would provide themselves by that other means And thus much for my first reason grounded upon the natural constitution of the Policy of our Kingdom and the publike Right of our Nation 2 For the point of Common Law Com. Law which is my second reason it hath been well debated and nothing left unspoken that can be said 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 until the case in my L. Dier 1. Diec. 1. E. 165. Eliz. 165. for we shall finde this business of an higher strain and alwaies handled elsewhere as afterwards shall appear 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 excess in them limited 42. Ass p. 9. as in the book of 42. Ass pl. 5. where the Judges took away a Commission from one that had power given by it to him under the great Seal to take ones person and to seise his goods before he was indicted So Master Scrogs case 1 2 E. Dier 175 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 he could not grant it To this I answer That cases 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 Kingdom that the States would never trust any of the Courts of ordinary Justice with the deciding of them but assumed the cognisance of them unto the high Court of Parliament as the fittest place to decide matters so much concerning the whole body of the Kingdom as 2. Ed. 3.7 it appears that Ed. 1. had granted a Charter to the men of Great Yarmouth that all the ships of Merchants coming 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 Yarmouth which were members of that Port. This was very inconvenient for the Merchants and a great hurt to Traffick and therefore the Charter was questioned in the time of Ed 2. and adjudged good by the Council But the parties not contented with this judgment in the second year of King E. 3. by an order in Parliament made upon a Petition there exhibited against this Grant brought a Scire facias out of the Chancery returnable in the Kings Bench to question again the lawfulness 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 custody of the Ports But the matter so depending in the ordinary Court of Justice a Writ came out of the Parliament and did
so raised of them which sheweth that he claimed them not as due for then he needed not give recompence for them In the one and twentieth yeere of E. Rot. Parl 21. E. 3. n. 16. 3. a petition was exhibited in Parliament that Levies be not made by Commission so they be in this case nor other things laid upon the people unless they be granted in Parliament The Kings answer is If any such impositions were made it was by great necessity and with assent of the Prelates Barons and some of the Commons present yet he will not that such Impositions not duly made be drawne in consequence Here the King acknowledgeth an Imposition not to be duly made though with the consent of the Higher House and some of the Commons because it was not in full Parliament much rather he would have thought so if it had been 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 yeere of his reigne made a Speech to the Commons Sir John 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 entred upon the Parliament roll Rot. parl 7. E. 4. The Record begins Memorandum quod die veneris 3. die Parl. and then I will make a paraphrase upon it Iohn Say 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 own and not to charge my subjects but in great and urgent causes concerning more the VVeale 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 progenitors in time of need wherein I trust that yee Sirs and all the Commons of this my Land will be as tender and kinde unto me in such cases as heretofore any Commons have been to any of my progenitours And for the good will kindness and true hearts that yee have borne continued and shewed to me at all times heretofore I thanke you as heartily as I can also I trust yee will continue in time coming for which by the grace of God I shall be to you as good and gracious a King and reigne as righteously upon you as ever did any of my progenitors upon Commons of this my Realme in dayes past and shall also in time of need apply my person for the VVeale 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 we may observe first the Kings Protestation to live of his owne and not to charge his subjects by which I gather he did acknowledge a certain and distinct property of that which way his subjects from that which was his own which excludeth the right to impose at his will for if that be admitted the subjects property is proprietas precaria 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 between 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 than 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 be secundum morem majorum as heretofore had been done and borne by the Commons to his ancestours in time of need The third thing I observe is that he acknowledged these burdens did proceed out of their good will and kindness and not out of his right and prerogative out of these words that he trusted they would bee as tender and kinde to him in such cases as heretofore any Commons had been to his Progenitors And lastly wee may note the recompence promised by the King to his subjects for their good wills and kindness his goodness 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 right to lay burdens on his subjects at his own 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 principal cause of their complaint hath been expressed in those petitions that the impositions have been 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 shillings upon a sacke of Wooll two shillings upon a Tonne of Wine six pence upon aver de pois the cause of grievance expressed because it was done Sans assent de Commons 25 E. R. Pari. 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 be not in full Parliament and if any such grants be made they may he held as void 17 E 3. R. Parl. 17. E. 3. n. 28 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 less 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 shilling 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 n. 26 21. E. 3. n. 11. Three
shillings and four pence upon a sacke of VVool all taken off and no excuse made for the smalness for 21 E. 3. nu 11 two shillings a sacke 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 the Commons that an imposition of a penny was set upon wools for Tonage over and above the ancient due which was but a penny and so the subject was charged with two pence Also that a penny was exacted for Mesonage which was but an halfe penny which Impositions the Record doth express 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 smalness of it My sixth observation is that those which have advised the setting on of impositions without assent of Parliament have been accused in Parliament forgiving 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 he had procured to be set upon Wooll Wooll-fells and other Merchandizes new Impositions to wit upon a sack of Wool eleven shillings which the L. Latimer fought to excuse because he had the consent and good liking of the Merchants first But judgment 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 Council and this procuring of Impositions to be set on without assent of Parliament is expresly set down in the entry of the judgment for one of the causes of his censure Richard Lyons a Farmer of the Customs in London the same year was accused in Parliament for the same offence Rot. Par. 50. E. 3. n. 17 18 19 20. he pleaded he 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 feifed into the Kings hand and at the last the hate against these authors of Impositions grew so that 50. E. 3. in the same Parliament a petition was exhibited in Parliament to make this a capital offence The Record is very short and therefore I will set it down verbatim Item prie le dit Common que scit ordaine per Statute en cest present Parliament de touts ceux queux cy en avant mittont ou 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 Courre la Common ley come estoit al avant use My seventh Observation is the cessation between 50. E. 3. after this censure in Parliament and 4. Mariae almost two hundred years 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 reigned in that time but had Impositions granted him upon fit occasion by Act of Parliament upon all Goods and Merchandizes and at divers times during their reigns sometimes more sometimes less upon the Ton and pound but ever for a time certain and indefinite so the use of them was not given over but the power of Imposing was so clearly and undoubtedly held to be in the Parliament as no King went about to practice 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 inserence made upon it against the Kings right that is that during that time there was so great a Revenue grew to the Crown by double Custom paid for all Merchandizes both in England and at Callis by reason of an Act of Parliament made 8. H. 4. which was that no goods should be carried out of the Realm but to Callis and by reason that the Merchants paid Custom both there and here for the same goods that in the seven and twentieth year of Henry the sixth the Custom of Callis was 68000. pounds the year a great sum if you consider the weight of money then what price it bare and by reason hereof Princes not delighting to charge their murmuring 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 be some probable colour of the forbearance of imposing but I finde it quite contrary and that by Record For there was no such restraint of all Commodities not to be transported to any place but Gallis but onely Woolls Woolfells Leather Tinn and Lead that were staple Wares which by the Statute 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. 6. but there was no double Custom paid both here and there by the same owner but the yearly profits of the Customs of Callais at those times were so far short of that which hath been alledged in 27. H. 6. that it appeareth in an Act of Parliament 27. H. 6. cap. 2 printed in the book at large 27. H. 6. cap. 2. That the Commons do complain That whereas in the time of E. 3. the Custom of Callais was 68000 pounds per annum at that time which was 27. H. 6. by reason of the ill usage of Merchants it was fallen to be but 12000 pounds the year so then there was great cause in that respect to have set on Impositions by reason of that great abatement of Customs and yet it was not then offered to be done without assent of Parliament But if you look 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 Chancellor and Treasurer who demanded relief of the people for the King both for payment of his debts and for his yearly livelioood 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 were more then his yearly revenue by 19000. pounds yearly so if ever there was cause to put a King to his shifts it was then yet
ingrossing of all Allomes into his own hands for which priviledge he gave a voluntary Imposition upon that Commodity It was like the priviledge granted to John Pechey of the sweet Wines by E. 3. for which the Patentee was called into the Parliament House 50. E. 3. and was there punished and his Patent taken away and cancelled What Impositions have been set on in the Kings time I need not express they are set down particularly in the Book 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 book bearing date 28. Julii 6 Jacobi will instruct you sufficiently in that point they be limited to the King his Heirs 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 Realm upon Wares and Merchandizes exported and imported which is an Imposition by Act of Parliament and as it will appear was given out of the peoples good will as a very gratification to the King to enjoyn 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 years with express caution how the money should be bestowed As towards the defence of the Seas protection of Traffick or some such other publick causes Sometimes special sequestrators made by Act of Parliament by whose hands the money should be delivered as 5. R. 2. cap. 3. in a printed Statute 5. R. 2. Rot. Par. 7. R. 2. n. 13. 10. R. 2. n. 12. 7. R. 2. n. 12. The Rates that were given were very variable sometimes 2 s. Tunnage and 6 d. Poundage as 7. R. 2. 3 s. Tunnage and 12 d Poundage 10. R. 2. which grants were not to endure the longest of them above a year 18 d. Tunnage 6 d. Poundage in 17. R. 2.3 s. Tunnage and 12 d. Poundage granted to H. 4. in the thirteenth year of his reign for a certain time in which Statute there is this clause That this aide in time to come should not be taken for an example to charge the Lords and Commons in manner of Subsidy unless 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 between the King and his people in Parliament that he should not from thenceforh nor any of his Successors set on Impositions without assent of Parliament The like Imposition was granted to H. Rot. Par. 1. H. 5. n. 17. 5. in the the first year of his reign for a short time towards the defence of the Realm and safeguard of the Sea upon condition expressed in the Act that the Merchants Denizens and strangers coming into the Realm with their Merchandizes should be well and honestly used and handled paying the said Subsidy 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. Rot. Par. 31. H. 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Mar. c. 18. 1. Eliz. c. 19. 1. Jac. c. 33. in the one and thirtieth year of his reign had Tunnage and Poundage given him for his life E. 4. had it given him the third year of his reign as it appeareth in a Statute 12. E 4. cap. 3. H. 8. in the sixth year of his reign and all since in the first year of their reigns have had it given them for term of their life and being now so certainly setled do reach further at that from which they are in couscience and honor excluded by this voluntary gratification For can any man give me a reason why the people should give this Imposition of Tunnage and Poundage above the due Custom upon all Commodities if the King by his Prerogative might set on Impositions without assent of Parliament and were not that a weak 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 imploied 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 incumbrances The Statute of Tunnage and Poundage made in our times that are altogether inclined to flattery do yet retain in them certain shews and rumors of those antient Liberties although indeed the substance be lost 1. Jac. c. 33. as in the Statute 1. Jac. cap 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 Highness that all Merchants as well Denizens as strangers coming into this Realm be well and honestly entreated and demeaned for such things whereof Subsidy 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 to be laid upon Merchants besides these given by this Statute and this intention hath been well interpreted by use and practice from the time of E. 3. to the time of Queen 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 main 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 Royal hath the custody of the Havens and Ports of this Island being the very gates of this Kingdom that he in his royal function and office is onely trusted with the keys of these gates that he alone hath power to shut them and to open them when and to whom he in his Princely wisdom shall see good that by the Law of England he may restrain the persons of any from going out of the Land or from coming into it That he may of his own power and discretion prohibit exportation and importation of goods and Merchandizes and out of his prerogative and preheminence the power of imposing as being derivative doth arise and result for Cui quod majus est licet ei quod est minus licitum est So their reason briefly is this the King may restrain the passage of the person and of the
Proclamation 17. H. 6. cited for a president that is because the Duke of Burgundy made an Ordinance whereby the Traffick of the English Nation was restrained that therefore the Englishmen should not traffick with the Subjects of the Duke of Burgundy The same thing enacted upon the like occasion 4. E. 4. c. 1. 19. H. 7. 4 E. 4. c. 1 19. H. 7. cap. 21. c. 21. The importation of divers Commodities forbidden as being prejudicial to the Manufactures within the Realm 6. H. 8. cap. 12. 6. H. 8. cap. 12. The exportation of Norfolk Woolls out of the Realm forbidden 26. H. 8 cap. 10. 26. H. 8. cap. 10. Power is given to the King to order and dispose of the Traffick of Merchants at his pleasure and the reason is given because otherwise the Leagues and Amities with foreign Princes might be impeached by reason of restraint made by divers statutes then standing on foot whereby it appeareth that it was not then taken to be Law that the King had an absolute power in himself to order and dispose of the course of Traffick without help of a Statute 2. E. 6. 2 E. 6. c. 9 cap. 9. Exportation of Leather restrained 1 1 2. P. M.c. 5. 2. Ph. Mar. The exportation of Herring Butter Cheese and other Victuals forbidden 18. Eliz. cap. 8. The exportation of Tallow 18. El. c. 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 do so earnestly urge this argument the King may restrain Traffick therefore may impose to prove better then they have done that the King may restrain Traffick of his own absolute power For as the natural policy and constitution of our Commonwealth is we may better say that is Law which is de more gentis then that which floweth from the reason of any man guided by his general notion and apprehension of power regal in genere not in individuo The last assault made against the right of the Kingdom was an Objection grounded upon policy and matter of State as that it may so fall out that an Imposition may be set by a foreign 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 execucuted but stayed until a Parliament may in the mean time prove vain and idle and much damage may be sustained that cannot afterwards be remedied This strain of policy maketh nothing to the point of right our rule is in this plain Commonwealth of ours Oportet neminem esse sapientiorem legibus If there be an inconvenience it is fitter to have it removed by a lawful means then by an unlawful But this is rather a mischief then an inconvenience that is a prejudice in present of some few but not hurtful to the Commonwealth And it is more tolerable to suffer an hurt to some few for a short time then to give way to the breach and violation of the right of the whole Nation For that is the true inconvenience neither need it be 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 be the example of our Ancestors in this very case and that in the time of one of the most politick Princes that ever reigned in this Kingdom 7. H. 7. 7. H. 7. cap. 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 Malmeseys at Candy four duckets of gold upon a But which in sterling is eighteen shillings the But. It was therefore enacted that every Merchant stranger that brought Malmsey into this Kingdom should pay eighteen shillings the But over and above the due Custom used this Imposition to endure until they of Venice had set aside that of four duckets the But upon the Englishmen Much hath been learnedly uttered upon this argument in the maintenance of the peoples right and in answering that which hath been pressed on the contrary but my meaning is not to express in this Discourse all that hath or may be said on either side but onely to make a remembrance somewhat larger of that which I my self offered as my symbolum towards the making up of this great rekoning of the Commonwealth which if it be not well audited may in time cost the Subjects of England very dear My hope is of others that labored very worthily in this business that they will not suffer their pains to die and therefore I have forborn to enter into their Province I will end with that saying of that true and honest Counsellor Philip Comines in his fifth book the 18. chapter Ph. Com. l. 5. c. 18. That it is more honorable for a King to say I have so faithful and obedient Subjects that they deny me nothing I demand then to say I levy what me list and I have priviledges so to do After the Kings Right to Impose had been 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 Majesty this hereafter was concerning Impositions THe policy and constitution of this your Majesties Kingdom appropriates unto the Kings of this Realm with assent of Parliament as well the soveraign power of making Laws as that of taxing 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 Kingdom as they have ever shewed themselves faithful and loving to their Kings and ready to aid them in all their just occasions with voluntary contributions so have they been ever careful to preserve their own 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 Impositions 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 obtain a speedy and full redress without any claim made by the Kings of any Power or Prerogative in that point And though the Law of Propriety be originally and carefully preserved by the common Laws of this Realm which are as antient as the Kingdom it self yet those famous Kings for the better contentment and assurance of their loving Subjects agreed that this old fundamental 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
other Writ or Action to recover but a meer petition Supplicat Colsitudini c. So as if the word Petition to the King infer defect of right in the Petitioner there can be no case where the King can do the Subject wrong A second Objection out of the body of the Law is that the King doth release that imposition of forty shillings which implieth a right setled in him But to this I answer That it is no necessary inference wheresoever a release of right is for it is used for claim onely or where possession was though wrongful 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 Merchants 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 be 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 damage that grew by it for that did onely touch the Merchants who could not justly complain thereof because it was their own act and grant This appeareth by two notable Records 22. E. 1. Origen in Scac. Rem Thes 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 subsiaium Guerrae Regis pro recuperandâ terrâ Vasconià mercatores gratanter concesserunt per biennium vel triennium si tantum duravit Guerra de sacco lanae c. In 26. E. 1. mem Scac. Rem Thes The other Record is the Writ of publication that in 26. E. 1. went out after the Statute of 25. in which Writ the King reciteth thus Cum nos ad instantiam Communitaetis Regni nostri remiserimus custumam 40 s. nobis nuper in subsidium Guerrae noctrae contrae 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 limited 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 ways First out of the Saving in the Act which extends to other things then to Wooll as to Wooll-fells and Leather therefore the purview of the Act by these words such things extendeth to more then 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 be remedied but for Wooll because onely that was complained of is false For the complaint of the Commons was not onely for this imposition on Wooll but divers other burthens and grievances of the like nature And this will appear if we compare all the parts of the Law the one with the other For this Law is in the form 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 business from thenceforth will take no manner of aids 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 onely to that which is made Cap. 7. by the Printer and concerneth the male toll of Woolls but to that precedent which is all other aids impositions and takings The Writ of publication of this Statute sent out to all parts in 26. E. 1. Mem. Scac. in 26. E. 1. Rem Thes maketh plain this construction the words of it are Concedentes quod custumam illam vel aliam 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 as well 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 been set on other Merchandize then Woolls were still answered after the Statute and for instance of this was alledged 16. E. 1. Orig. R. Thes that whereas 16. E. 1. an imposition of 40 s. the Tun was set upon Wines brought into the Kingdom an accompt was made of this in the 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 then Woolls named in the Statute It is true such an imposition was set on by E. 1. in the sixteenth year of his reign 25 26 E. 1. de compt T. Mich. R. Thes and an accompt made for it 25. and 26. 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 years after the setting of it The third Statute alledged on the behalf of the Subject is that 34. E. 1. c. 1. 34. E. 1. cap. 1. the words are these No tallage or aid shall be taken or levied by us or our heirs in our Realm without the good will and assent of our Arch-bishops Bishops Earls Barons Knights Burgesses and other freemen of the Land Against this was objected That this Statute was intended onely upon the Taxes and impositions of things The word Auxilium makes it clear that it is to be intended further then of things within the Realm for Tallagium is commonly intended of Domestical Taxes but Auxilium is the most usual term for impositions upon goods imported and exported as by the Acts of
goods therefore he may suffer them not to pass 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 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 premises are of a power in the King onely fiduciary and in point of trust and government the conclusion infers a right of interest and gain Admit the King had Custodiam portuum yet he 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 gain and benefit by it the one is protection the other is expilation The Ports in their own nature are publike Portus sunt Publici free for all to go in and out yet for the common good this liberty is restrainable by the wisdom and policy of the Prince who is put in trust to discern the times when this natural liberty shall be restrained In 1. H. 7. fol. 1. H. 7.10 10 in the case of the Florentines for their Allome the Lord Chief Justice Hujsey 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 Council as the Book saith before the Lords and Judges that he should not have licence to come into England unless he would take an Oath at Calice that he would bring nothing with him that should be prejudicial to the King and his Crown The King by the Common Law may send his Writ Ne exeas regnum to any Subject of the Realm but the surmise of the Writ is Quia datum est nohis intelligi quod tu versus partes exteras absque licentia nostra clam destinas te divertere quam plurima nobis coronae nostrae prejudicia prosequi Fitzh N. B. 85. b. Fitzh N. B 15. â—b So in point of Government and common good of the Realm he may restrain the person But to conclude therefore he may take money not to restrain 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 foraign affairs with the like power he hath in Domestick Government There is no question but that the King hath the custody of the gates of all the Towns 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 sickness 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 Towns in this Kingdom to any great Fare or Mart shall he therefore restrain the bringing of Goods thither unless money be given him by way of Imposition The King in his discretion in point of equity and for qualifying the rigor of the Law may enjoyn any of his Subjects by his Chancellor from suing in his Court of Common Law May he therefore make a benefit by restraining all from suit in his Courts unless they pay him an Imposition upon their Suits 2. E. 3.7 In 2. E. 3. in the case of the Earl 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 several Ports Great Yarmouth Little Yarmouth and Gerneston should arrive all at Great Yarmouth and at no other place within that Port. The lawfulness of this Patent being in question in the Kings Court it was reasoned in the Kings behalf for the upholding of the grant as it is now that the King had the custody of the Port he might restrain Merchants fron landing at all in his Kingdom Therefore out of the same power might appoint where and in what Haven they should land and no other The 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 grants The Presidents that were vouched for maintenance of this power of restraint in the King were four produced almost in so many hundred years Rot. Par. 2. E. 1. n. 16. Rot. fin 2. E. 1. n. 17. Ro. claus 10. E. 3. dor 31. Ro. claus 17. H. 6. in dors whereof two were in the second year of E. 1. one in the tenth year of E. 3. another in the seventeenth year of H. 6. since which time we hear of none but by Act of Parliament as they had been 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 practice of the Commonwealth The restaint in the time of E. 1. the one of them was to forbid the carrying of Wooll out of the Realm the other was to forbid all Traffick with the Flemings That of 10. E. 3. was to restrain the exportation of Ship-timber out of the Realm 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 be as the reverend Judge Sir Anthony Fitzherbert holds in his Writ of Ne exeas regnum in Nat. Fitzh N. B. 85. Br. that by the Common Law any man may go out of the Kingdom but the King may upon causes touching the good of the Commonwealth restrain any man from going by his Writ or Proclamation and if he then go it is a contempt This opinion of his is confirmed by the Book 1. Eliz. fol. 165. Dier 12. Dier 1. El. 165. Dier 13. El. 296. 13. Eliz. Dier 296. In like manner if a Subject of England be beyond sea and the King send to him to repair home if he do it not his Lands and goods shall be seised for the contempt and this was the case of William de Britain Earl of Richmond 19. E. 2. He was sent by the King into Gascoyne on a message 19. E. 2. and refused to return 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