Auxilium is the most usual term 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 Aids as proceeding of good will and benevolence The fourth Statute alledged on this part is that of 5. E. 2. c. 14. just in point of the matter in question 5. E. 2. cap. 14. Rot. Ordin and therefore I will set it down as I finde it Verbatim in the Record in the Tower Ensâ—ment novelles customes sont levies antients enhaunces come sur levies drapes vine aver du pois aut choses purquoy les Merchantes veynont pluis vilement meynes de bien menynent en la terre les Merchants estrangers demurront pluis longment que ils solâ—yent faier pur le quel dâ—moure le choses sont le pluis enhaunces que ils ne soloyeâ—t estre al dammage de roy de son people Nous ordoâ—omus que tout manners de male tolls levies puies de Coronement de Roy Ed. faier de Roy Henry soyent entirement oustes de tout estreints put tout jours nient contristeant le Chartre que le dict Roy Ed fist un Merchants aliens pur ceo que il fuit fait contra le grand Char. encâ—untre le Franchise de la City de Londres sans assent de Baronage c. Savant neque dont al Roy le custome de leynes peulx de quirs c. si aver les do et By this Law is recited That by the levying of new Customs and by the raising of old Traffique was destroyed and all things made dear And therefore all new Impositions and Customs were discharged Chariâ Mercatoriâ by which Custom that was encreased on Aliens was taken away and the reason alledged Because it was sans assent de Baronage and against the great Charter And this is further with this clause Saving to the King his Custom of Wooll Wooll-fells and Leather Si aver les do et Great wars have been raised against the credit of this Law in the Parliament House and Three things have been especially objected against it First That it is no Law for it was enforced upon the King by some of the Nobility that were too strong for him the Realm being then in tumult and mutiny about the quarrel of Peirce of Gaveston so never had the Kings free consent but he gave way unto it for fear of greater mischeif Secondly That in it self it is unjust as in taking away the Custom granted to the King by Charta Mercatoria 31. E. 1. and in making doubt whether the King should have the Custom of Woolls c. by those words Saving it to him Si avâ—r los do et The third Objection is That if it were a Law it is repealed To these I give particular Answers To the first That this Statute was made both at the instance of the King and people with a purpose and intention on all parts to settle things in a stay and order both in the Kings house and Commonwealth the King and his Nobles standing in good terms when this business was taken in hand and it was begun and ended with great solemnity and ceremony For the King is the third year of his reign gave Commission under his Great Seal to 32. Lords spiritual and temporal Com. 16. Mar. 3. E. 2. Rot. ordin 5 E. 2. of which there were eleven Bishops eight Earls and thirteen Barons they being as Committees of the higher House to devise Ordinances for the good government of his house and his Realm In which Commission he doth for the honor of Gods the good of him and of his Realm of his freewill grant to the Prelates Earls and Barons and others elected by the whole Kingdom full power to ordain the State of his house and Realm by such Ordinances as by them should be made to the honor of God the honor and profit of holy Church the honor of himself the profit of him and his people according to right and reason and the oath he made at his Coronation These joyning with others of discreet Commons in Parliament and taking every of them a solemn oath for their sincere demeanor in the business did make this and other Ordinances which were so well liked of by the King that after they were made he took an oath to observe them and caused them to be published in Pauls Church-yard by the Bishop of Salisbury by denouncing Excommunication against all that should wilfully infringe them Pullic 3. Kal. Oct. 5. E. 2. R t. ord Pat. 5. Oct. 5. E. 2. Rot. ordin And by his Letters Patents dated 5. Oct 5. regni sui did send them through the Realm to be published and from thenceforth to be observed thereby signifying his great liking and approbation of them after which they had the force and power of Laws given unto them in the Parliament in the fifth year of his reign The second Objection which is the injustness of the Law instanced in two points The taking away of Charta Mercatoria and the doubting of the Kings right to the Custom of Wooll-fells and Leather To the first of these I deny it to be unjust but to be according to the Law of England and liberty of the Kingdom for that Charter did contain in it divers grants of things which were not in the power of the King to grant without assent of Parliament the trial per medietatem linguae and other things tending to the alteration of the Law and burdening of the people and therefore that Charter never had his undoubted and setled force until it was confirmed by Act of Parliament but lay asleep almost twenty years together without being put in execution between 5 E. 2. and 27. E. 3. when it was confirmed for the doubt that is supposed to he made in the Statute of the Kings right to the Custom of Wooll Wooll-fells and Leather I take it there is no such doubt made For the words Saving the Kings right to the Custom of Woolls si aver les do et have this construction that is at such times as he ought to have it so the word si bath the signification of quando for it had been a folly to have made a Saving of that of the right whereof they had doubted neither is it likely but that they would have taken it away if it had not been lawful but there was no colour to doubt of the right of it for it was given by Act of Parliament and ever continued in force without challenge or exceptions to the lawfulness of it The third Objection is That this Statute is repealed To this I plead Nullum valet recordum If it be repealed it must be by Act of Parliament for unum quodque dissolvitur iisdem modis quibus est colligatum I and others have searched the Records of the Realm and endervoured
all rules and bounds of settled government and leave in the Subject no property of his own neither do you by this advance the Kings power and prerogative 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 in the time of Henry 6. Fortese de laudibus Leg. Aug. c. 9. His words are these in his Book De laudibus Legum Angliae cap. 9. Non potest Rex Angliae ad libitum leges mutare rognisui principatu namque nedum regali sed politico ipse dominatur Si regali tantum praeesses iis leges mutare posset tallagia quoque caetera onera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigore◠sed longè aliter potest Rex politicis imperans quia nec leges ipse sine subditorum assensu mutars poterit nec subjectum populum reuitentem onerare peregrinis impositionibus In which place I must interpret unto you that peregrina 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 which is the very thing in question Further in the thirty sixth Chapter Fortesc de laud. Leg. Ang. cap. 36. 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 eorum 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 Philip Comines Ph. Com. l 4. cap. 1. l. 5. cap. 8. that lived at that times 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 Diec. 1. E. 165. until the case in my L. Dier 1. 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 as in the book of 42. Ass pl. 5. 42. Aff. p. 9. 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
safely come into the Realm of England with their goods and Merchandizes and safely tarry and safely return paying the Subsides Customs and other profits reasonably due Upon the words of this Law was great advantage taken in this that besides Custom and Subsidy which comprehend all the certain and ordinary duties the King hath upon the wares and goods of Merchants there are other profits spoken of to be due These they affirm cannot be understood but of Impositions by the King without assent of Parliament To this I answer if they were not duties due to the King besides Custom and Subsidy which might satisfie the intention of these words this objection might have had some colour in it but it is plain that besides these two there are other profits due to the King upon Merchants goods as Scavage Tonage and the like And you shall finde a Petition in Parliament Rot. Par. 50. E. 3. nu 163. 50. E. 3. against the raising of these above the old rate The eighth Law is 15. E. 3. stat 2. c. 5. E. 3. Stat. 2. cap. 5. whereby it is enacted that every Merchant may freely buy and sell and pass the Sea with their Merchandizes of Wooll and all other things paying the Custom of old time used according to the Statute made in the last Parliament in Midlent which was the Stat. 14. E. 3. stat 2. cap. 2. This Law doth expresly exclude the novelty of Impositions The ninth Law is that 18. E. 3. stat 1. ca. 3. whereby it is enacted 18 E. 3. stat 1. c. 3 That the Sea be open to all manner of Merchants to pass with their Merchandizes where it shall please them The tenth is 27. E. 3. stat 2. c. 2. 27. E. 3. stat 2 cap. 2 for the assurance of Merchants-strangers and other the King doth will and grant for him and his Heirs that nothing shall be taken over the due Customs not taken of them to his use by colour of suit or in other manner against their wills The eleventh is 38. E. 3. cap. 2. 38 E. 3. cap. 2. that all manner of Merchants aliens and Denizens may buy and sell all manner of merchandizes and freely carry them out of the Realm paying the Customs and Subsidies thereof due The last is 22. H 8. cap. 8. by which it was enacted that Tables should be set up in Ports 22. H. 8. cap. 8. by which the certainty and very duty of every Custom Toll and Duty or sum of money to be demanded and required of Wares and Merchandizes shall and may plainly appear and be declared to the intent that nothing be exacted otherwise then in old time hath been used and accustomed By this late Law it appeareth that the judgment of the whole Parliament was at that time That nothing was due upon Wares and Merchandizes but that which which was certain and had been antiently due by which Impositions are excluded whose qualities are novelty and incertainty as being set on as present occasion moveth and proportioned for quantity and other circumstances as the will of the King directeth These are the Laws which I conceive most directly tend to the restraining the Kings of England from the exercise of that irregular power of imposing at the first offered by them to be put in execution yet not pressed as their right and never practised but upon opposition of the whole State and at last deserted and given over until of late as by that which followeth in the fourth place will appear My fourth and last assertion is Custom 4 That this practise of imposing without assent of Parliament is contra morem Majorum In this I will make an historical perlustration of the times past whereby I will discover and make known what passages have been in this business in this Kingdom and especially the high Court of Parliament for the space of 300 years and more last past since the beginning of the reign of E. 1 sithence which time and not before this Kingdom hath grown into the glory and reputation of foraigne traffique And as a worthy Gentleman of the Kings learned Councel made certaine considerations upon this question framed and strengthened out of the greatness of his wit and reason so I grounding my self upon the practice of former times which is the safest rule whereby to square the right both of King and people in this Common-wealth where their right is jus consuetudinarium a right that groweth by use and practice I will propose unto you certaine observations out of the action and experience of former times untill the raignes of the two late Queenes by which you may the better ground and frame your judgements in the determination of the right in this question My first observation is in point of circumstance that there never was any Imposition set but in time of actuall war and duplicatis vexillis they were set on very rarely and sparingly but for a short rime and that certaine and definite and upon some few commodities and that by the assent of the Merchants that were to beare the burthen In our time the occasion not so sensible the continuance to be perpetual the number many hundreds almost no kinde of Commodity spared I will give you some few Instances of these circumstances out of the Records themselves The maletole of Wooll set on by King ε. I. 22. E. 1. orig Scace Rent Thes which gave the occasion of the Stat. 25. yeare of his raigne was given by Merchants The Record saith Mercatores gratanter concesserunt in subsidium guerrae Regis 22. E. 1. men Scac. R. Thes T. Mich. Rot. parl 17. E. 3. nu 28. It further sheweth it was for his necessity of Warre which then was great also For the time of E. 3. there need not many instances for his whole raigne was almost an actuall warfare As in the sixt year of his raigne for his war in Scotland and Ireland In the thirteenth year of his raigne for his war in France severall Impositions were ser on In the seventeenth year of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Merchants Rot. parl 50. E. 3. nu 18. and it was in the time of VVar. In the twentieth yeare of King E. 3. it appeareth in the Record that the Imposition then put upon VVools was by the assent of Merchants for two years for the necessity the King had in his passage ovet the sea to recover his right and to defend the Realme My second observation is Never any Imposition was set on by the King out of Parliament but complaint was made of it in Parliament and not one that ever stood after suck complaint made but remedy was afforded for it Et quod Rex inconsulio fecit consulto revocavit his Soveraigne power controlled his subordinate In which it is a thing very notable that the King in no one Case
THE RIGHTS Of the People of England Concerning IMPOSITIONS Stated in a Learned Argument by Sir Henry Yelverton Knight and Baronet late one of the Justices of the Court of Common-pleas With a Remonstrance presented to the Kings most excellent Majesty by the Honorable House of Commons in the Parliament An. Dom. 1610. Annoque Regis Jac. 7. London Printed for William Leake and John Leake at the Crown in Fleetstreet betwixt the two Temple-Gates 1679. TO THE Courteous READER THis excellent Treatise of the no less worthy Author happily falling into my hands I instantly thought it my duty to make that publick which had given so much useful satisfaction to many learned and judicious in private remembring that antient Adage Bonum quò communius eò praestantius I hope it is needless to commend either the Reverend Author deceased the Treatise its use or stile since the Authority by which it is published is a sufficient argument of their known worth If thou kindly accept of his good meaning whose onely aim in the publishing hereof was the Common good it will be an encouragement to him and others to present to thy view what may hereafter fall into his hands worthy thy further perusal Thine J. B. 20. Maii. 1641. AT a Committee appointed by the Honourable House of Commons for examination of Books and of the licencing and suppressing of them c. It is Ordered That this Treatise be published in Print Sir Edward Deering Kt. and Baronet ☞ There is lately come forth An exact Abridgment of the Records in the Tower of London from the reign of King Edward the Second unto Richard the Third of all the Parliaments holden in each Kings reign and the several Acts in every Parliament together with the Names and Titles of all the Dukes Marquesses Earls Viscounts and Barons summoned to every of the said Parliaments Collected by Sir Robert Cotton Knight and Baronet And are to be sold by William Leak at the Crown in Fleetstreet betwixt the two Temple gates A Remonstrance delivered to His Majesty in writing after the inhibition given by Him to the Commons House of Parliament aswell by word of mouth as by Letters not to proceed in the examining his Right to Impose without assent of Parliament To the Kings most excellent Majesty Most gracious Sovereign WHereas we your Majesties most humble Subjects the Commons assembled in Parliament have received first by message and since by speech from your Majesty a command of restraint from debating in Parliament your Majesties right of Imposing upon your Subjects goods exported or imported out of or into this Realm yet allowing us to examine the grievance of these Impositions in regard of quantity time and other circumstances of disproportion thereto incident We your said humble Subjects nothing doubting but that your Majesty had no intent by that command to infringe the antient and fundamental right of the Liberty of Parliament in point of exact discussing of all matters concerning them and their possessions goods and rights whatsoever which yet we cannot but conceive to be done in effect by this command do with all humble duty make this Remonstrance unto your Majesty First We hold it an antient general and undoubted right of Parliament to debate freely all matters which do properly concern the Subject and his right or estate which freedom of debate being once fore-closed the essence of the liberty of Parliament is withthal dissolved And whereas in this case the Subjects right on the one side and your Majesties Prerogatives on the other cannot possibly be severed in debate of either We alledge that your Majesties Prerogatives of that kinde concerning directly the Subjects right and interest are daily handled and discussed in all Courts at Westminster and have been ever freely debated upon all fit occasions both in this and all other former Parliaments without restraint which being forbidden it is impossible for the Subject either to know or to maintain his Right and Propriety to his own Lands and Goods though never so just and manifest It may further please your most excellent Majefty to understand that we have no minde to impugn but a desire to inform our selves of your Highness Prerogative in that point which if ever is now most necessary to be known and though it were to no other purpose yet to satisfie the generality of your Majesties Subjects who finding themselves much grieved by these new Impositions do languish in much sorrow and discomfort These Reasons Dread Sovereign being the proper Reasons of Parliament do plead for the upholding of this our antient Right and Liberty Howbeit seeing it hath pleased your Majesty to insist upon that Judgment in the Exchequer as being direction sufficient for us without further examination Upon great desire of leaving your Majesty unsatisfied in no one point of one of our intents and proceedings We profess touching that Judgement that we neither do nor will take upon us to reverse it but our desire is to know the Reasons whereupon the same was grounded and the rather for that a general conceit is had That the Reasons of that Judgement may be extended much further even to the utter ruine of the antient liberty of this Kingdom and of your Subjects Right of propriety to their Goods and Lands Then for the Judgment it self being the first and last that ever was given in that kind for ought appearing unto us and being onely in one Case and against one man it can binde in law no other but that person and is also reversible by Writ of error granted heretofore by Act of Parliament and neither he nor any other Subject is debarred by it from trying his Right in the same or like cafe in any of your Majesties Courts of Record at Westminster Lastly We nothing doubt but our intended proceeding in a full examination of the right nature and measure of these new Impositions if this restraint had not come between should have been so orderly and so moderately carried and imployed to the manifold necessities of these times and given your Majesty so true a view of the state and right of your Subjects that it would have been much to your Majesties content and satisfaction which we most desire and removed all causes of fears and jealousies from the loyal hearts of your Subjects which is as it ought to be our careful endeavour Whereas contrariwise in that other way directed by your Majesty we cannot safely proceed without concluding for ever the right of the Subject which without due examination thereof we may not do We therefore your loyal and dutiful Commons not swerving from the approved steps of our Ancestors most humbly and instantly beseech your gracious Majesty that without offence to the same we may according to the undoubted Right and Liberty of Parliament proceed in our intended course of a full examination of these Impositions That so we may chearfully pass on to your Majesties business from which this stop hath by diversion
But the matter so depending in the ordinary Court of Justice a Writ came out of the Parliament and did adjourn it thither again where it gave occasion of a good Law to be made to prevent the like Grants and to make them void notwithstanding any Judgment given upon them and to make such Judgments also void The Statute is 9 E. 3. c. 1. And in the Parliament Rolls 9. E. 3. c. 1. Every Alien and Denizen may carry his Merchandise where it pleaseth him notwithstanding any Charter granted or Judgment thereupon 16 17. R. 2. 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 Judgment in the Exchequer and declares to the Kingdom that notwithstanding the great wonder made by some men nothing hath been done in this business by those that serve in the Parliament but in imitation of their worthy Predecessors in the like case In the second year of H. 4. the Commons shew that in the time of R. 2. by the means of John Waltham Bishop of Salisbury Treasurer of England wrongfully without authority of Parliament and by reason of a Judgemet given in the Exchequer 16 17. R. 2. by the Barons there against certain Merchants of Bristol and other places passage had been taken for Wines otherwise then 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 Judgment given in the Exchequer or other Ordinance made by the said Treasurer contrary to the antient usage which Petition the King granted and the Judgment thereupon became void and the prisage Wine hath been paid contrary to the Judgment ever since In 1. El. Dier 165. upon the complaint 1. El. Dier 265. made by the Merchants of the impositions set upon Cloth by Queen Mary by her absolute power without assent of Parliament The Cause was thought too weighty to be 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 year books for there is nothing of it Another Objection was this which was made in the last argument viz. That Custom is originally due by the Common Law of England it can then have no other ground or cause but meerly by the Kings royal Prerogative as a right and duty originally belonging to his Crown which if it be it must necessarily follow he may impose for that is but the exercising of that right To prove this was alleadged the case 39. E. 3.13 by which case it appeareth 39 E. 3.13 that King John had a Custom of eight pence on a Tun of Wine in the Port of Southampton but the Book doth not tell you that the King had it by prerogative and he might have it as well otherwise as by prescription or convention which shall rather be intended by reason of the certainty of the sum paied for if it were by prerogative he might take sometimes more sometimes less at his will the right being indefinite and the quantity limited onely by his own discretion A common person may have such a custom certain as 18. El. Dier 352. The Mayor of London hath the twentieth part of Salt brought into the City by Aliens 18 El. Dier 352 which is a great Imposition but is good by prescription originally and that received greater strength since by Acts of Parliament made for the confirmation of the Liberties and Customs of the City of London So it appeareth that John of Britain had Custom of the ships that arrived at his Port of Little Yarmouth Dier 43. worth twenty pounds per annum And these instances do inefer that a Custom may be otherwise then by prerogative and therefore it is no good argument to conclude the King had such a custom Therefore he had it by Prerogative The Book in 30. H. 8. Dier 43. 30 Hen. 8. Dier 43. was much pressed on this point which saith that Custom belonged to the King at Common Law and doth instance in Wooll Wooll-fells and Leather begun at the Common Law but abridged by the Statute of 14 E. 3. ca. 21. stat 1. 14 Ed. 3. c. 21. stat but this appeareth to be a great error and mistaking in the Book for we do finde that that Custom of Woolls Wooll-fells and Leather was begun by a Grant in Parliament as appeareth in Statute 15 E. 1. cap. 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 Earls Barons and all the Commonalty of the Land c. Novemb. 3. Ed. 1. The King recited in his Letter Patents That Prelati magnates ac tota communitas mercatorum Regni granted this new Custom 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 four pence in the pound over due Custom paid by Merchants Aliens according to the purport of the Charta mercatoria 31 E. 1. by meer right of Prerogative at the Common Law Rot. char 31. E. 1. num 42. in Turri 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 meerly void to binde in succession and yet the Merchants Aliens do 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 Custom 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 bind their successors in matters of Traffick For their contracts are not ruled by the Common Law of the Land but by the Law of Nations per legem Mercatoriam as the Book case is 3. Ed. 4.10 and there was a good consideration given them by the King for this encrease of Custom as discharge of prise Wines for two shillings the Tun and other Immunities which all Merchants Aliens hold and enjoy at this day by force of that contract made 21 E. 1. For a stranger paieth now but two shillings the Tun for prisage whereas it standeth an Englishman in much more so as the rule of commutative Justice maketh the contract available to the King against the Merchants because he parteth with part of his prisage to the Merchant and maketh it available to the Merchant against the King because he giveth him encrease of Custom above that is due by Law But the Statute of 27 E. 3. cap. 26. heretofore cited doth make this point clear without scruple 27 E.
3. cap. 26. which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of Custom 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 Custom by Prerogative you go directly against his meaning for it appeareth by that which presently followed this Grant that the King took this encrease of Custom by way of contract onely and not by way of Prerogative for the same year following he directeth his Writs to the Officers of his Ports reciting the contract made with the Aliens by Charta Mercatoria adding further that some Denizens were willing to pay the like Custom upon the same Immunities to them to be granted and cloth assign his Officers to gather it but with this clause Si gratanter absque coertion◠solvere voluerint ita quod aliquem Mercatorem de regno potestate nostrâ ad prastationes custumas hujusmodi invite solvendas nullatenùs distringatis Nothing can more plainly express that the Kings intention was not to demand this by way of Prerogative but by force of the contract If there were such a Prerogative in the Crown as of right to have Custom how cometh it to pass this Prerogative never yet had fruit or effect for this I can maintain That the King of England hath not one penny Custom or Imposition upon Merchandizes elder then the fourth year of Queen Mary that he holdeth not by Act of Parliament and by the peoples grant The eldest that he hath is that of Woolls Wooll-fells and Leather and that is by Act of Parliament as appeareth in the Statute 25 E. 1. cap. 7. the Tonnage and Poundage by Parliament in the first year of every Kings reign 25 E. 1. cap. 7. The Aliens encrease of Custom by Parliament 27 E. 3 cap. 26. 27. E. 3. cap 26. Then this Prerogative hath been much neglected that it was never called on to be put in execution untill now of late years Concerning the Statutes made for restraining our Kings Statute 3 from the exercise of this pretended Prerogative which is the third matter I stand upon Those that have maintained the Kings Prerogative in this point have endeavored to interpret those Statutes to extend onely to restrain him from imposing upon Wooll Wooll-fells and Leather which are staple commodities And the reason they give for this restraint more then for other goods is because the King by Statute is restrained to a Custom certain for those commodities as the half Mark a Sack of Wooll and half a Mark three hundred Wooll-fells and thirteen shillings four pence a Last of Leather and therefore great reason he should not exceed this Custom in these Commodities This Objection receiveth many Answers First it appeareth both by the express letter of divers of the Laws made in this point by the occasion that induced the making of the Laws and by the execution of them that all other Wares and Merchandises as well as those of the staple were within the purpose and intent of those Laws Secondly The reason alleadged why there should be restraint for the staple Commodities rather then for the other is mistaken for the Lords and Commons did grant to E. 1. by Act of Parliament the custom of the half Mark for Wooll Wooll-fels and Leather which was matter of meer grace and liberality and includeth no restraint in it but rather a favourable extention quite contrary to the sence of the Objection according to that rule of interpretation Gratiosa ampliari decet odiosa restringi And admit some Laws be made expresly to restrain impositions upon Wooll Wooll-fells and Leather by reason that the occasion of making such Laws was the actual imposing upon those goods at that time shall we not by good construction Secundum mentem extensivam legis extend this Law to other Wares and Merchandizes that are within the same mischief If we look to the reason of the Law we shall make no doubt of it for that is because the impositions were without assent of Parliament not because they were upon such and such Commodities Besides those Laws so made are declarativae juris antiqui non introductivae novi In the enumeration of those Statutes which I conceive make directly to this purpose I will endeavour rather to answer the Objections made against them then to enforce the sense and meaning of them which is very plain and open and needs no interpretation The first Statute enforced is Mag. Charta cap 30. made in the ninth year of H. 3. by which it is enacted that all Merchants shall have free egress and regress out of and into this Realm with their goods and merchandizes to buy and sell sine omnibus malis tolnetis per antiquas rectas consuetudines In which words we may infer that both the use and right of imposing are absolutely excluded and debarred for Consuetudo which in this case is to be taken for Vsage which is mos not improperly for Porterium a duty paid in money as our English word Custom in one sence doth signifie implieth a beginning and continuance by consent and will of the parties not by power and enforcement which cannot be a Custom and therefore it cannot be an Imposition for that ariseth meerly out of the will and power of their imposer and is against the will of him upon whose goods it is set But take Consuetudo either for Mos or Portorium the epithites with which it is qualified antiquum and rectum do describe it to be of that nature that it cannot be an Imposition for antiquum in legal construction is that which is time out of mind that is not an Imposition for then by continuance of time it should grow a right by prescription and were justifiable Rectum implieth a limited right which inferred there may be a wrong and exceeding of that right which is not in impositions for if there be a right in the King to impose the quantity time and other circumstances are in his discretion the right is illimited And if he set on never so great an Imposition there is as much right in it as if it be never so small the excess maketh it a burthen but not a wrong We may further observe that in the Statute Malum tolnetum which is evill Toll is set down by way of antithesis to antiqua and recta consuetudo by which is inferred that exactions upon Wares and Merchandizes not qualified with these two properties of antiquum and rectum are evill and unjust This is made more evident by a Record in the Tower of the sixteenth year of H. 3. which was a Mandat sent by the King to the Customers of his Ports for the execution of this Law made in 9 H. 3. whereby it is commanded Rot. clau◠16. H. 3◠ma◠Quod omnibus Mercatoribus in portum suum venientibus cum vinis aliis
to be eased of part because it was too great 36. E. 3. nu 26. Three shillings and four pence upon a sacke of VVool ibid. 38. E. 3 n. 26 21. E. 3. n. 11. 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. 25. 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 sought 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 seised 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 an 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 soit ordaine per Statute en cest present Parliament de touts ceux queux â—y en avant mittont ou font pur lour singuler profit novels Impositions per lour authoritie dâ—mesâ—n accrocheants al eux â—ny ul power de rien que soit establi en Parliament sans assent de Parliament que ils eyent judgement de viâ— 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 inference 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 Wool-fells 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 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 we 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 alleadged why they were not able to retain the King gave this for one that they had so often granted him Tonnage and Poundage upon Merchandizes by which it appeareth he took nothing of Merchants by imposition without grant for if he had no doubt they would not have stuck to have put him in minde of it But I pray consider what became of this motion of the Chancellor and Treasurer The proposition had depended in Parliament many years the effect was the people entreated the King to resume all grants he had made from the beginning of his reign untill that time being the twenty eighth year of his reign excepting such as were made upon consideration valuable that he might so enable himself by that mean by which he had impoverished himself and the whole Kingdom This took effect and the Statute of Resumptions was thereupon made the same year which Record because it is not in print and declareth these things with great gravity and authority I will set down the very Text of it so much as is material to our purpose Prayen your Commons in this your present Parliament assembled to consider That where your Chancellor of your Realm of England 28. H. 6. Stat. de Resumpt in Turri Lond. not printed your Treasurer of England and many other Lords of your Council by your high commandment to your said Commons at your Parliament holden last at Westminster shewed and declared the State of this your Realm which was that ye were indebted 372000. l. which is grievous and that your livelihood in yearly value was but 5000 l. And forasmuch as this 5000 l. to your high and notable State to be kept and to pay your said debts will not suffice Therefore that your high Estate may be releived And furthermore it was declared That your expences necessary to your houshold without all other ordinary charge came to 24000 l. yearly which exceedeth every year in expence necessary over your livelihood 19000 l. Also pleaseth it your Highness to consider that the Commons of your said Realm be as well willing to their power for the releiving of your Highness as ever was people to any King of your Progenitors that raigned in your said Realm of England But your said Commons been so impoverished what by taking victual to your houshould and other things in your said Realm and nought paid for it and the quinzime by your said Commons so often granted and by the grant of Tunnage and Poundage and by the grant of Subsidy upon Woolls and other grants to your Highness and other lack of execution of Justice that your said poor Commons be full nigh destroyed and if it should continue longer in such great charge it would not in any wise be had ne born Wherefore pleaseth it your Highness the premisses graciously to consider and that ye by the advice and assent of your Lords Spiritual and Temporal and by the authority of this your present Parliament for the consideration of your high Estate and in comfort and ease of your poor Commons would take resume seise and retain in your hands and possession all honours c. This was very plain dealing by the people with their King and this is the success of the demand of supply and support had in those days being required in point of gratification without any recompence or retribution for it Thus then we have cleared this point that between 50. E. 3. and 4. Mariae there was not one Imposition set without assent of Parliament Queen Mary in the fourth year of her reign upon the Wars with France set an Imposition upon Clothes for this consideration That the Custom of Woolls was decayed by reason for the most part they were made into Clothes which afforded little Custom for that which in Wooll paid for Custom and Subsidy 40 s. made into Cloth paid but 4 s. 4 d. To recompence this by an indifferent equality there was set upon a Cloth 5 s. 6 d. which Imposition did not make up the loss sustained in the Custom of Wooll by 13 s. 4 d. in 40 s. This was Justum but not Juste This religious Prince invironed with infinite troubles in the Church and Commonwealth and much impoverished by her devotion in renouncing the profits of the Church-lands that were in the Crown by the suppression was the first that made digression from the steps of her worthy Progenitors in putting on that Imposition without assent of Parliament for that very consideration of the loss of Custom by turning of Wooll to Clothing came into treaty in the 24. year of E. 3. when the art of Clothing began first to be much practised in this Kingdom and then in the recompence of the loss so sustained in the decay of Custom of Woolls there was set upon a Cloth by Act of Parliament above the olde Custom 14 d. for a Denizen and for an Alien 21 d. This is recited in a Record in the Exchequer 48. E. 3. Rot. 2. R. Thes in origin But I pray you examine how this Imposition of Queen Mary was digested by the people We see in the case of my Lord Dier 1. Eliz. sol 165. That the Merchant found great greif at it and made exclamation and suit to Queen Elizabeth to be unburdened of it Orig. in Scac. 48. E. 3. Rot. 2. R. Thes 1. Eliz. dier so 165. The very reason of their grief expressed in that case is because it was not set on by Parliament but by the Queens absolute power So that was the ground of that complaint the very point of right This cause was referred to all the Judges to report whether the Qu. might set on this Imposition without assent of Parliament They divers times had conference about it but have not yet made report for the King which is an infallible presumption that their opinions were not for him for it is a certain rule among us that if a question concerning the Kings Prerogative or his profit be referred to the Judges if their opinions be for the King it will be speedily published and it were indiscretion to conceal it but if there be no publication then we make no doubt but that their opinions are either against the King or at least they stick and give none for him The same Queen Mary upon restraint of bringing in of French Commodities occasioned by the then wars with France set an Imposition upon Gascoyn Wines which continueth yet So the Kingdom of England by the injustice of that Prince was clogged with these two heavy Impositions contrary to the right of the Kingdom and the Acts of her Progenitors Queen Elizabeth set on that upon sweet Wines which grew also upon the occasion of the troubles with Spain That upon
by all means to inform our selves of the truth herein we can find no Act of Parliament of repeal The truth is some Kings finding these Laws not to sort to their wills and humors have endeavoured to suppress them but they did never yet obtain a repeal of them by Act of Parliament But it is further urged That although there were no formal repeal of the Law yet it was never put in execution as a Law but even presently upon the making was rejected and use and practise went quite against is and for instance hereof a Record was vouched that E. 2 held himself so little bound by it as that in the 11. year of his reign he set an Imposition without assent of Parliament upon Wooll Wooll-fells Leather Wines Cloth Aver de pois and divers other kind of Merchandizes To this I answer that if it were true that a distinct and impotent King as he was did contrary to the Law doth this make the Law void and no Law But if we look into the whole Record and scan this action of E. 2. from the beginning of it unto the end we shall finde it a very good instance to prove the practice and execution both of this Law of 5. E. 2 and of that in 25. E 1. for it is true that E. 2. in the eleventh year of his reign did borrow of the Merchants a certain sum of money above the due Custom of Woolls Wooll-fells Wine Averdepois Leather and such other goods imported and exported but it appeareth by the Record he took it but for one year he took it by the advice and counsel of the Merchants and he took it per viam mutui as a loan Rot. Claus 11. E. 2. The direction of the Writ is Collectoribus mutui nobis per mercaetores alienigenas indigenas de certis rebus Merchandisis usque ad certum tempus faciendi This was done in good terms he did not claim it as his right but did borrow it which I do think is a good evidence against his right But what became of this the State would not abide it for all these fair shews And therefore afterwards the King sendeth out other Writs by which he dischargeth all Merchandizes of this Loan saving only Wooll Wooll-fells and Leather and for the Loan taken upon those Commodities it was limited to continue but until Michaelmas after and good security was given to the Merchants by the Customers to pay themselves by way of defalcation out of the Customs which should be due after Machaelmas those sums which were so borrowed of them The words of the Record are worth the observing Rot. fintum 11. E. 2. Cum pro expeditione guerrae Scotiae aliis arduis urgentibus necessitatibus nobis multipliciter incumbentibus pro quarum exoneratione quasi infinitam pecuniam refundere oportebit pecunia plurimum indigeamus in praesenti nuper pro eo quod exitus regni terrarum nostrarum simul cum pecunia nobis in subventione praemissorum tam per Clerum quam Communitatem regni nostri concessa ad sumptus pradictos cum fâ—stinatione qua expediret faciendos non sufficiunt exquirentes vias modos quibus possemus pecuniam habere commodius decentius pro praemissis de consilio advisamento quorundam mercatorum tam alienigenarum quam indigenarum viam invenimus infra script viz. And so setteth down the manner of the loan and the security for the payment of it This I take it was neither an Imposition nor a wrong in any respect Also by the first Record it appeareth that the Loan set on Wines Averdepois and such other Commodities besides Wooll Woll-fells and Leather were presently discharged by E 2. which sheweth they were taken to be within the intent of the Statute of 25 E. 1. The fifth Statute alledged on the behalf of the Subject is that 14. E. 3. Stat 1. c. 21. by which the Commons pray the King to take no more then the old Custom of the half Mark. 14. E. 3. Stat. 1. cap. 21. The King prayeth aid of the Commons for a time above the Custom upon his necessity of Wars And the conclusion is that by that Act the King doth grant that after the Feast of Pentecost twelve moneths following he will take no more of Woolls Wooll-fells and Leather but the old Custom and doth promise to charge set or assess upon the Custom but in manner as aforesaid The sixth Statute is 14. E. 3. Stat 2. cap 1. 14. E. 3. stat 2. c. 1 The King doth grant by way of Charter to the Prelats Earls Barons Commons Citizens Burgesses and Merchants that they be not from henceforth charged nor grieved to make any aid or sustain charge if it be not by the common consent of the Prelates Earls Barons and other great men and Commons of the Realm and that in Parliament These two Statutes grew upon an occasion of an Imposition set on Wooll by the King without assent of Parliament Little hath been objected against them but only to the first that it was obtained of grace and not upon instance of right which they gather out of the words of the Law which are The Commons pray the King that he would stablish that from henceforth no more then the old Custom be taken The like reason may be made against the King out of the same words in the same Law for the King in the same Act prayeth the Commons to give him an Imposition upon Woolls for a time above the old Custom but the Record of the Petitions exhibited in Parliament on which these two Laws are made cleareth the objection The first was delivered by the Lords in this form Rot. Par. 13. E. 3. num 5. Les grands volunt that the male toll set on Woolls newly be altogether abated and that the old Custom be held and that they may have this in point of Charter and by inrolment in Parliament This word volunt had been too high for a suit of grace and therefore must be intended of right The Commons Petition in form is somewhat humble but in effect and purpose is rough and stern The words are these Rot. Par. 13. E. 3. num 13. The Commons pray that the male toll of Woolls be taken as it was used in antient time which is now enhanced without the assent of the Commons and grandâ—s as we conceive and that if it be otherwise demanded that every one of the Commons may arrest them without being challenged According to these Petitions the first of these two Laws is by inrolment in Parliament the second is in form of a Charter the first doth express some special commodities The second doth reach generally at all The seventh Law directly touching this point 13. E. 3. stat 2.6.2 is that 14. E. 3. Stat. 2. cap. 1. The King doth grant according to the Great Charter that all Merchants Deniznes and foreigners may without let