touching the repeal of Charta Mercatoria by King Edw. 2 and the remit all of divers Impositions by King Edw. 3 upon sundry Petitions of the Commons in Parliament and the punishment of divers Persons in Parliament for procuring Impositions to be set up 106 CHAP. XXVII The Answer to the third Objection 110 CHAP. XXVIII The fourth Objection that the Prerogative is bound or taken away by divers Acts of Parliament 129 CHAP. XXIX The Answer to the fourth Objection 131 CHAP. XXX The fifth Objection that Tonnage and Poundage were never taken but when the same was granted by Parliament 140 CHAP. XXXI The Answer to the fifth Objection 141 CHAP. XXXII The Conclusion 146 CHAP. XXXIII A Comparison of the Impositions set and taken in England by the Kings Prerogative with the Exceptions and Gabells in Forein States and Kingdoms whereby it will appear that the Subjects of the Crown of England do not bear so heavy a burthen by many degrees as the Subjects of other Nations do bear in this kind 147 AN ARGUMENT UP ON The Question of Imposition digested and divided into sundrie Chapters by one of His Majesties learned Counsel in IRELAND CHAP. I. The Exposition and meaning of certain words which do shew the true state of the Question THe Question it self is no more than this Whether the Impositions which the King â—f England hath laid and levied upon Merchandize by vertue of his Prerogative onely without Act of Parliament be lawful or warranted by the Law of England By the word Imposition we mean only such rates or sums of money as the King by Letters Patents under the Great Seal of England or Ireland hath set upon Merchandizes imported and exported and commanded the same to be paid and levied to His Majesties use over and above the Customes and Subsidies formerly due and payable for the same Merchandizes By the word Merchandizes we mean only such goods or Merchandizes as are transported over the Seas from one Realm or Dominion unto another to be sold or exchanged for reasonable gain or profit for upon the ingate or outgate of Commodities so crossing the Seas only Customes Subsidies and Impositions for Merchandizes are paid and taken and not for any Commodities carried too and fro by Sea and Land within one and the same Realm and Dominion By the Law of England we understand not only our customary Common Law and our Statutes of England which are Native and peculiar to our Nation only but such other Laws also as be common to other Nations as well as us have been received and used time out of mind by the Kings and people of England in divers cases and by such ancient usage are become the Lawes of England in such cases namely the generall Law of Nations and the Law-Merchant which is a branch of the Law the Imperial or Civil Law the Common or Ecclesiastical Law every of which Laws so far forth as the same have been received and used in England time out of mind may properly be said to be the Laws of England CHAP. II. Of the general Law of Nations or Jus Gentium and the force thereof in all Kingdoms that traffique and commerce is a principal subject of that Law and that it giveth power unto all Kings to take Customes and Impositions upon Merchandizes and that the Crown of England hath many Prerogatives annexed to it by the Law of Nations of which our Common Law taketh notice and doth admit and approve the same JUs Gentium or the generall Law of Nations is of equal force in all Kingdoms for all Kingdoms had their beginning by the Law of Nations therefore it standeth with good reason that the Law of Nations should be of force and of like force in all Kingdoms and for this cause in the Realms subject to the Crown of England the Law of Nations also is in force in such cases especially wherein the King himself or his Subjects have correspondence or commerce with other Nations who are not bound in those cases by the Municipall Laws of England Omnes populi saith Justinian qui legibus moribus reguntur partim suo proprio partim coÌ„muni omnium hominum jure utuntur nam quod quisque populus ipse sibi Ius constituit id ipsius proprium Civitatis est vocaturque jus Civile quod vero naturalis ratio inter omnes homines constituit id apud omnes homines plerumque custoditur vocaturque Jus gentium quasi quo jure omnes gentes utuntur and in the same place it is said Ius Gentium omni hominum generi coÌ„mune est exhoc Iure Gentium omnes pene contractus introducti sunt ut emptio venditio locatio conductio societas depositum mutuum c. And with this agreeth our Doctor and Student lib. 1. cap. 2. where it is said that Trade and Traffique is by the Law of Nations so that Commerce Trade Traffique for Merchandize between the people of several Nations and Kingdoms is a principal subject of the Law of Nations and therefore to that question that hath been made in England Whether the ancient Customes payable for Merchandizes did first grow due by our customary Common Law or Statute Law of England Why may I not answer that neither the Customary Law nor the Statute Law of England but the generall Law of Nations did first give these duties unto the Crown of England For as the Law of Nations was before Kings for Kings were made by the Law of Nations Ex jure Gentium Reges originem traxerunt saith Baldus So Kings were no sooner made by the Law of Nations but presently the same Law cum creatus fuerit Rex ei omnia regalia conceduntur competit omnibus Regibus jus imponendi quantum habet Begalia saith Baldus Vectigalia introduct a sunt à jure c. which is the Law of Nature or Nations Ideo non otiosased favoralia saith another Doctor did annex this Prerogative to their several Crowns Vectigalorigine ipsa jus Caesarum Regum partimoniale est saith another Inhaeret Sceptro saith another and therefore when our ancient British Kings took up Customes for Merchandizes transported into France as Strabo writeth Britanni vectigalia tollebant gravia earum rerum quas brevi trajectu in Galliam importabant Shall we presume they did it by Act of Parliament no for doubtlesse they did it by vertue of this Prerogative given unto them by the Law of Nations for Kings upon their first institution did greater things than this by their Prerogative without the consent of the people Vetusissima coronae jura ex singulari Regum decreto primitus orta saith a learned Doctor and at first saith Iustinian Arbitria Regum prolegibus fuere and so saith Halicarnassus lib. 3. Cicero offic. lib. 2. And truly as Customes and Impositions taken upon importations of Merchandizes being most properly called Vectigalia à mercibm evectis
loss which certain Merchants of London had sustained by an arrest made of their goods made by the Countesse of Flanders doth grant unto them all the Merchandizes whereof the Flemings were possest in England Rot. Pa. 3 E.1.m. 19. in Archivis turris London Whereupon the Lord Mayor of London did seize so much goods of the Flemish Merchants as amounted to 730. Marks and delivered the same to Thomas Debassing and other Merchants who had suffered loss by that arrest and in the same Roll of 3 Ed. 1. the Lord Mayor of London and Bailiffs of Southampton are commanded by the Kings Writ Quodomnes Mercatores Londienses ad partes Angliae accedentes per bona catalla sua distrin guantur sed in legem mercatoriā consueti dinem Regni ad satisfaciendum Mercatoribus Florentinis de pecuniis ipfi mutuo tradiderunt Willielmo Episcopo Leodiensi Here we see that Lex mercatoria which doth apparently differ from the ordinary Cōmon Law of this Kingdom is said to be Consuetudo Regni And lastly in a sute at the Common Law no mans Writing can be pleaded against him as his Act and Deed unlesse the same be sealed and delivered but in a sute between Merchants Bills of Lading Bills of Exchange being but Tickets without Seals Letters of advice and credences Policies of assurance Assignations of debts all which are of no force at the Common Law are of good credit and force by the Law Merchant Thus we see how Merchandizes do differ from other goods and Chattles in the eye of the Law and how the Law Merchant doth differ from the common Law of England and how the Common Law doth admit and allow thereof Our Parliaments likewise have not onely made extraordinary provision for the more speedy recovery of Debts due unto Merchants for their Merchandizes than is provided by our Common Law as appeareth by the Statute of Acton Burnell made the 11 Ed. 1. and the Statute de Mercatoribus made 13 Ed. 1. but also have course of proceedings in cases of Merchants differing from the course of our Common Law for by the Statute of 27 Ed. 3.cap 2 it is declared that the proceedings in causes of Merchants shall be from day to day and hour to hour according to the Law of the Staple and not according to the course of the Common Law and by another Article in the same Parliament that all Merchants comming to the Staple should be ruled according to the Law of Merchants touching all things comming to the Staple and not by the Common Law of the Land and by another Article that neither of the Benches nor any ordinary Judges of the Common Law shall have any Jurisdiction in those cases and lastly that the Law of Marque and Reprisall which is a branch of the Law Merchant shall be used as it had been used in times past So as the Parliament doth but declare the ancient Law and doth not introduce a new Law in those cases Untill I understood this difference between Merchandizes other goods and between the Law Merchant and the Common law of England I confess I did not a little marvell England being so rich and entertaining Traffique with all Nations of the World having so many fair Ports and so good Shipping the King of England also being the Lord of the Sea and also a principall part of his Royal Revenue consisting in duties payable for Merchandizes so as many Questions must of necessity arise in all ages touching Merchants and Merchandizes What should be the cause that in our Books of the Common Law of England there are to be found so few cases concerning Ships or Merchants or concerning Customes or Impositions payable for Merchandizes But now the reason thereof is apparent for the Common Law of the Land doth leave these cases to be ruled by another Law namely the Law Merchant which is a branch of the Law of Nations The Law Merchant as it is a part of the Law of Nature and Nations is universall and one and the same in all Countries in the World for as Ciccro saith of the Law of Nations Non orit alia lex Romae alia Athenis alia nune alia posthac sed omnes gentes omni tempore unalex eademque perpetua continebit c. So may we say of the Law Merchant there is not one Law in England another in France another in Spain another in Germany but the same rules of reason and the like proceedings of the Law Merchant are observed in every Nations for as our Chancellor of England affirmeth 13 E. 4. 9. That the proceedings of the Law Merchant ought to be according to the Law of Nature which is universall so say the Civilians of severall Nations The Italian Doctor saith In curia mercatorum naturalis aequitas praecipue expectanda ex aequo bono causas dirimendas esse The French man saith In curia mercatorum proceditur de mer a aequitate omissis solemnitatibus apicibus juris The Spaniard likewise saith Apices subtilitas juris non considerantur in foro mercatorio whereby it is manifest that causes concerning Merchants and Merchandizes are not wont to be decided by the peculiar and ordinary Laws of every Country but by the generall Law of Nature and Nations out of which resulteth this Conclusion Suppose it be admitted that by the positive Law of the land Taxes and Tallages may not be laid upon our goods within the land without an Act of Parliament yet by the Law of Nations and by the Law Merchant which are also the Law of England in cases of Merchandizes the King of England as well as other Kings may by vertue of his Prerogative without Act of Parliament lay Impositions upon Merchandizes crossing the Seas being goods whereupon the Law doth set another character than goods possessed in the land as is before expressed CHAP. IV. Of the Imperial or Civil Law and of the extent of the Iurisdiction thereof of what force it is at this day within the Monarchies of Europe and in what case it is received within the King of Englands Dominions and how it warranteth all Kings and Absolute Princes to lay Impositions upon Merchandizes WHen the City of Rome was Gentium Domina Civitas illa magna quae regnabat super Reges terrae The Roman Civil Law being communicated unto all the Subjects of that Empire became the Common Law as it were of the greatest part of the inhabited world yet the extent thereof was never so large as that of the general Law of Nature as it is noted by Cicero offic. lib. 2. Majores nosiri aliud jus Geutium aliud Civile jus esse voluerunt quod enim civile non idem continue Gentium quod autem idem civile esse debet whereby it is manifest that the Law of Nations is and ought to be a binding Law in all States and Countries as
they had the same right the same prerogative and absolute power that their Predecessors had but because they found other means to make other profit upon transporting of Merchandizes and that in another manner and in so high measure as the trade of Merchandizes in those daies could hardly bear any greater charge without danger of overthrowing all Trade and Comerce And therefore those Princes did in their wisdomes forbear to lay any further Impositions by their Prerogatives For these Kings who reigned after King Edw. 3. who conquered Callis in France and before Queen Mary lost Callis had two principal waies and meanes to raise extraordinary profits upon Merchandizes but proceeding from one cause namely from establishing the Staple at Callis for King Edw. 3. some few yeares before his death did by his Prerogative in point of Government without Act of Parliament erect a Staple at his Town of Callis and did ordain and command that all the Merchandizes exported out of England Wales and Ireland by any Merchant Denison or Alien should presently be carried to the Staple at Callis and to no other place beyond the Seas This Staple at Callis was first setled and fixed there by an Ordinance which the King made by virtue of his Prerogative and absolute power in the government of Trade and Comerce without Act of Parliament And if this Ordinance so made had been thought unlawful and against the liberty of the Subject it would never have been approved and confirmed by the Judgements of so many Parliaments in the times of Rich 2. Hen. 4. Hen. 5. and Edw 4. Neither could there have been such heavy penalties layd by those Parliaments upon the transgressors of those Ordinances Insomuch as in the time of King Henry the sixth it was made Felony to Transport any Merchandizes to any part beyond the Seas but to Callis onely Now the Staple of Callis being thus established there did arise a double profit to the Crown for transportieg of Merchandizes over and above the ancient Customes and other Subsidies granted by Parliament First it came to pass that the Customs and Subsidies for Merchandizes transported out of England Wales and Ireland which before was single and payd but once that is upon the outgate after the establishing of the Staple at Callis the duties for the same Merchandizes became double at the least and for the most part treble and were ever payd twice and for the most part thrice namely once upon the outgate in the Ports of England Wales and Ireland secondly upon the ingate at Callis and because all the commodities brought into Callis could not be vented into the main Land there but the greatest part was to be exported again by Sea into higher or lower Germany and other the North East Countries and some into Spain and Italy and the Ilands of the Levant there did arise a third payment of Customes and Subsidies for so much of their commodities as were exported again cut of Callis by meanes whereof the Customes and Subsidies did amount to threescore thousand or threescore and ten thousand pounds sterling per annum in the latter times of King Edw. 3. and during the reign of Rich. 2. Hen. 4. Hen. 5. and the beginning of the reign of Hen. 6. as appears by the Records of the Exchequer of England which according to the valuation of Moneys at this day the ounce of Silver being now raised from two shillings to five shillings do make two hundred thousand pound sterling per annum which doth equal or surmount all the Customes Subsidies and Impositions received at this day though that plenty of money and price of all things and consequently the expences of the Crown be exceedingly increased in these times And albeit the breach of Amity between the Crown of England and the Duke of Burgundy who was the Lord of the Lower Germany in the weak and unfortunate time of King Hen. 6. did cause a stop of Trade between us and that Country into which the greatest part of our Staple wares especially Wooll and Cloth were vented and uttered and was likewise the cause of loss of all our Territories in France except Callis and all the Merchandizes thereof whereby the Customes and other duties payable for Merchandizes were in the time of that unhappy Prince withdrawn and diminished to a low proportion yet afterwards upon the Mariage of Margaret Sister to King E. 4. unto the Lord Duke of Burgundy as that in honour of the English Wooll which brought so much Gold into his Country he instituted the Order of the Golden Fleece and thereupon the Customes Subsidies and Impositions were raised again to so high a Revenue as our Kings could not well in policy strain that strength of profit upon Merchandizes any higher Secondly albeit the Staple established at Callis being first established by an order made by the Kings Prerogative and absolute power was afterwards approved and confirmed by sundry Acts of Parliament yet did the King by another Prerogative retain a power to dispence with that Ordinance and those Acts of Parliament and to give license to such and so many Merchants as himself thought fit to export any Merchandizes out of England Wales and Ireland unto any other parts beyond the Seas besides à non obstante of the first Ordinance and of the Statutes which did establish the Staple at Callis By virtue of this Prerogative and power the several Kings who had Callis in their possessions did grant so many Licences to Merchants as well Aliens as Denizens to transport our Staple commodities immediately into other places without coming to Callis for which Licenses whereof there are an incredible number found in the Records of England the Merchants payd so dear for their commodities especially the Genoeses and the Venetians and other Merchants of the Levant as by the profits made of those Licences did amount to double the value of those Customes and Subsidies payable for exportation thereof and thereof those Princes as they had the less need so had they no reason at all to charge the Trade of Merchandizes with any other or greater Impositions In these two points before expressed doe consist the principal cause why the Princes of England who succeeded King Edw. 3. who won Callis untill the reign of Queen Mary who lost Callis did not directly use their Prerogative in setting any other Impositions upon Merchandizes above the ancient Customes and Subsidies granted by Parliament For it is to be observed that most part of those Princes who reigned after K. Edw. 3. and before Queen Mary had the Subsidy of Tonnage and Poundage granted unto them by Parliament which being added to the gain of the Staple of Callis did augment not a little the profit layd upon Merchandizes And may be a reason likewise why those Kings did forbear to lay any other Impositions by their Prerogative We may adde hereunto other reasons First Rich. 2. was a Minor and over-ruled by the great Princes of the
Blood who would not suffer him to use his Prerogative Secondly that during the Wars of Lancaster and York there was no fit time to make use of that Prerogative while both parties did strive to win the favour of the people Thirdly that King Hen. 7. had much ado to settle himself in the quiet possession of the Kingdome after those troubles Fourthly that King H. 8. had such a mass of Treasure left him by his Father and did so inrich himself by dissolution of Abbyes as he had no need to make use of this Prerogative Fiftly that K. E. 6. was also a Minor and that his chiefest Council did more contend to advance their own houses than the Kings profit CHAP. XVIII That Queen Mary did use her Frerogative in laying Impositions upon Merchandizes QUeen Mary in whose time the Town of Callis was lost and consequently the benefit of the Staple at Callis was lost did by her absolute power as appeareth by the Report of the Lord Dyer 1 Eliz. Dyer 165. raise an Imposition upon Clothes viz. six shillings and eight pence upon every Cloth over and above all Customes and Subsidies True it is that the Merchants petition'd to be disburthened of this Imposition which was referred to the consideration of the Justices and others whereupon they had many assemblies and conference as that Book reporteth And albeit the Resolution of the Judges in that behalf be not found in that book it is to be presumed That they adjudged the Imposition to be just and lawfull because it was continued and answered during all the Reign of Queen Mary This Queen Mary likewise by her Preroonely layd and Imposition of four Marks upon every Tun of French Wines over and above the Prizage and Buttlerage which during her life time was payd without contradiction CHAP. XIX That Queen Elizabeth alsoused her Prerogative in laying Impositions upon Merchandizes QUeen Elizabeth also by virtue of the same Prerogative did not only continue the Impositions layd by Queen Mary upon Cloths and French Wines but did raise other Impositions of sundry sorts of Merchandizes by the same absolute power namely upon every Tun of sweet Wines upon every Tun of Rhenish Wines upon every Kental of Allom which during the time of the prudent Princess were payd and received without question Besides the same Queen upon complaint made unto her in the twelfth year of her Reign That the State of Venice did impose one Ducket upon every hundred of Currans exported out of their Dominions by the Merchants of England did by her Letters Patents grant unto the English Merchants who traded into the Levant That they only and their Assigns might bring Currans into England The English Merchants having this privilege did take five shillings and six pence upon every hundred waight of Currans brought into England by Strangers which was duly payd although it was taken by the Merchants by virtue of their privilege only of sortiori yet it ought to have been payd if it had been payable to the Queen her self as the Lord Chief Baron Fleming did observe in his Argument of Bates's case of Currans in the Court of Exchequer in England CHAP. XX That our Soveraign Lord King James hath by virtue of the same Prerogative without Act of Parliament layd several Impositions upon Merchandizes HIS Majesty likewise when he came to be King of England finding his Crown to be seized of this Prerogative and finding withall the necessary charge of the Crown exceedingly to increase did for the supportation thereof not onely continue the Impositions layd by Queen Mary and Queen Elizabeth but also layd new Impositions upon sundry sorts of Merchandizes over and above all Customes and Subsidies formerly due and payable for the same And these are the Impositions now the principal of these is twelve pence upon the pound or a second poundage set upon Merchandizes as well exported as imported by Letters Patents 28. Iuly in the sixth year of his Majesties Reign but how is it set and imposed surely with such moderation and limitations and such receptations full of grace and favour as no Monarch or State in the world did ever impart to their Subjects the like in the like case for besides other gracious clauses contained in the same Letters Patents All commodities serving either for food or sustenance of the Kings people or seting the poor on work or for munition or defence of the Realm or for maintainance of Navigation or which especially tends to the enriching of a Kingdome are excepted and discharged by this Imposition As for the special Impositions which his Majesty hath set upon certain forrein commodities as Currans Logwood Tobacco c. As touching the first of these the Imposition hath been adjudged lawful in the Court of Exchequer of England And for the other commodities they are of such nature as no man ever made question but that the Impositions set upon them were lawful Besides these Impositions layd in England his Majesty by his Prerogative onely since the beginning of his Reign received the Impost of Wines in Ireland and hath likewise to make equality of Trade in that Realm layd an Imposition of twelve pence on the pound of all other Merchandizes imported and exported out of the Ports of Dublin Waterford Drogheda and Galway the Citizens of which Cities and Townes are exempted and discharged of Poundage granted by Act of Parliament there which Imposition was never impugned in Ireland but hath since the setting thereof been levied and payd without contradiction And that wee see how long the Crown of England hath been seised of this Prerogative in laying Impositions upon Merchandizes and how the same hath been put in practice by the most prudent Princes since the Conquest CHAP. XXI The general reasons whereupon this Prerogative is grounded ALthough it be a matter of difficulty and doth savour withall of curiosity and presumption to search a reason for every Prerogative that is incident to the Crown for Sacrilegii est disputare de Principis facto saith the Imperial Law and Scrutator Majestal is opprimitur à gloria saith the Wise man Yet the reasons whereupon this Prerogative is grounded are so many and manifest as it were not amiss to collect the principal of them rather for the confirmation than the satisfaction of such as have moved this question touching the lawfulness of Impositions layd by his Majesty upon Merchandizes First the King is the Fountain of all Justice and therefore the first reason drawn from the Kings charge in doing Justice and procuring Justice to be done to Merchants not onely distributive Justice wherein consisteth Praemium and Paena but cōmutative Justice is also derived from the King Now his Majesty doth exercise commutative Justice chiefly in the ordering and government of Trade and Comerce wherein hee is to doe Justice or to procure Justice to be done to his Subjects who do make contracts real and personal within the Land But to his Merchants that
or Vessell of Wine vented by others was also fined and imprisoned and made satisfaction to the parties grieved 50 Edw. 3. Rot. Parli numb. 33. and more than this a Bill was preferred by the Commons in this Parliament that such as should set new Impositions should have Judgement of life and member 50 Edw. 3 Rot. Parliament num 191. in Arch. Turris These examples strook such a terrour at that time as from the time of King Edw. 3. till the Reign of Queen Mary being a hundred and fifty years and upwards there was no man found that would advise the King of England to set or levie any Impositions upon Merchandizes by Prerogative and therefore we find no Imposition laid upō Merchandizes all that space of time Queen Mary indeed began to set on foot this Prerogative again and laid an Imposition of three shillings and eight pence upon every Cloth transported out of the Kingdome but what doth the Lord Dyer report 1 Eliz. f.165 the Merchants of London saith he found themselves greatly grieved and made exclamation and sute to Queen Elizabeth to be disburthened of that Imposition because it was not granted by Parliament but assessed by Queen Mary her absolute power these frequent Petitions complaints and exclamations these suspensions and remitalls of Impositions are good arguments say they against the right of this Prerogative CHAP. XXI The Answer to the third Objection THis Objection consisteth of several parts and shall recieve an Answer consisting of divers parts the first part of this answer King Edw. 1. being a prudent and resolute Prince did not onely impose the three pence upon the pound upon Merchant Strangers by his Charta Mercatoria but justified and maintained that Imposition during his life True it is that after his death King Edw. 2. it was repealed as is before objected but whose Act was this by whom was this Ordinance made which did repeal this Charter not by the King and his Parliament but by certain rebellious Barons who took upon them the Government of the Realm and called themselves Ordainers Wherefore King Edw. 3. in the first year of his Reign did revive that Charter and commanded by his Writ that the Customes and Duties therein contained should be collected and levied to his use He maketh mention of these Ordinances of 5 Edw. 2. and saith the same were made per quosdā Magnates and not by the King as appeareth by the Record 1 Edw. 3. Rot. fin memb. 30. in Arch. Turris which in another place before I have recited by which Record it likewise appeareth that those Ordinances 5 Edw. 2. were before that time repealed and made void and therefore that which was done in that time of that unfortunate Prince over-ruled by his unruly Barons is not to be urged and used as an example especially since they that urge this repeal of Charta Mercatoria might if they would find any thing which makes against their contradicting humour find in the said Roll of Ordinance made in 5 Edw. 2. divers Arcles wherein those Ordainers did wrong and wound the Prerogative in matter of greater importance than in the repeal of that Charter for they might have found among the same Ordinances these things ordained First that the King should not make gifts of Lands Rents Franhises Wards or Escheats without the consent of the Ordainers Secondly that all gifts and grants formerly made by the King not only of Land and other things in England but in Gasconie Ireland and Scotland should be resumed and made void Thirdly that the King should not depart out of the Realm nor make Warre without the assent of his Barons and of his Parliament That because the King was misguided and counselled by evill Counsellers it was ordained that all his Counsel should be renewed and new Officers and Servants appointed for him These traiterous Ordinances were made against the King at that time and therefore it is a shame that any part of these Ordinances should be made an argument against the right of the Crown in laying Impositions upon Merchandizes for with the same reasons they might argue the King had no right to grant his Lands Rents Wards or Escheats that he might not go out of the Realm nor make Warre nor choose his own Counsellers or Servants without an Act of Parliament and it is manifest that those factious Barons did cause the King to forego the said Impositions rather ad faciendum populum and to gratifie the Cōmons and to draw them to their party than for the good of the Cōmon-wealth for if they had been good Counsellers they would have done as the Senate of Rome did when Nero in a glorious humor to please the people would needs have discharged at once all Customes and Impositions the Senate gave him thanks for his favour towards the people but utterly diswaded him so to doe telling him that in so doing he would ruine the state of the Common-wealth for indeed no Common-wealth can stand without these duties they are Nervi they are succus sanguis Reipublicae and therefore no Cōmon-wealth was ever without them but the imaginary Common-wealths of Plato and Sir Thomas More for they doe both agree for in the Common-wealths of which they dream there was nothing to be paid for Merchandizes exported and imported But to return to King Edw. 2. what followed upon the Repeal of Charta Mercatoria and the discharge of Impositions which King Edw. 1. established was not that poor Prince King Edw. 2. enforced to take up great sums of money of his Merchants by way of loan which he never repaid again 11 Edw. 2. Rot. fin m. 12. whereby the Merchants received a greater detriment than if they had made a double payment of Customes and Impositions which the King had discharged and therefore the example of this weak Prince doth make but a weak argument against the right of the Crown in laying Impositions upon Merchandizes and here I think it fit to observe that they were all wise and worthy Princes which are spoken of in former ages to have laid Impositions upon Merchandizes namely Solomon in the Holy Land Iulius Caesar and Augustus Caesar in the Empire King Ed. 1. and King Ed. 3. in England but on the other part they which released all Customes and Impositions were but weak Princes and destroyed themselves and the Common-wealth wherein they lived namely Nero in the Empire of Rome King Edw. 2 and King Rich. 2. with us and truly by the rule of our Common Law the King cannot if he would release all Subsides and Aids of his Subjects that they should be for ever discharged of all Subsidies to be given to the Crown such a grant were made void and against the Law Secondly touching the Petitions exhibited to the King in sundry Parliaments against Impositions laid by that King upon Merchandizes upon view of the Record wherein these Petitions are contained with
no man shall be Sheriff two years together and that no Commission shall be granted or renew'd for the year following to him that hath been Sheriff the year before Was the Kings Prerogative bound by this Statute when hee granted the Sheriffwick of Northumberland to the Earle of Northumberland during his life with non obstante of that Statute 2 Hen. 7. fol. 6. Again the King hath no ancient and absolute power to grant dispensation for holding Ecclesiastical Benefices in CoÌ„mendum There is a Statute made 7 Edw. 3 in Ireland whereby it is enacted and declared that the Kings dispensation in this case shall be utterly void if it be not by Act of Parliament did this Statute so derogate from the Kings Prerogative and so restrain it that he might not only by his Letters Patents Grant CoÌ„mendamus before the Statute of 28 Hen. 8. in this Realm assuredly the Kings dispensation non obstante the Statute would have taken away the force thereof as if no such Law had ever been made There are manyother cases of like nature which I omit as for the particular Statutes before recited the words thereof are too generall to bind or restrain this Prerogative in laying Impositions upon Merchandizes First that Statute of Magna Charta doth give safe conduct to all Merchants to come and go and to tarry within the Realm and to buy and sell their Merchandizes sine malis tolneâ—is per antiqnas rectas consuetudines How do these generall words restrain the Kings Prerogative in this Case for the ancient Common Law of the Land which is the Common Custome of the Realm doth warrant and approve the Kings Prerogative in laying Impositions upon Merchandizes as before I have fully and clearly proved then a reasonable Imposition laid by the King is Antiqua rect a consuetudo warranted and approved by the Great Charter Secondly albeit King Edw. 1. by Act or Charter of confirmation of Charta Mercatoria made in Anno 25. of his Reign doth release the Maletolt of fourty shillings upon a Sack of Wooll and doth grant for him and his heirs that he will take no such thing without the assent and good will of the Commons That word such doth not absolutely bind the Kings Prerog. that he shall lay no Imposition at all for it is to be intended such in quantity such in excess for foury shillings at that time was as much as six pound at this day which the scarcity of money in those dayes being considered and compared with the plenty of money at this day might then be said to be a great burthen and yet this strong band doth not bind K. Ed. 3. his Grand-child but that notwithstanding this Charter or Act of Parliament he took these things in greater quantities sometimes fourty shillings sometimes fifty shillings upon a Sack of Wooll when the Philistins came upon him that is when the Wars of France and other urgent occasions did presse him to it as to the other Article contained in the Act or Charter of 25 Edw. 3. where it is said the people did fear left the Aids and Taxes granted of their good will to the King might turn to a bondage to them and their heires when the same in time to come should be found in the Rolls and the King did grant for him and his heirs That he would not draw such Ayds and Taxes into a Custome that Act in this point restraineth not the Kings Prerogative in setting Impositions upon Merchandizes for it speaketh only of Ayds and Taxes willingly granted by the people in Parliament therefore I marvell that this Article was ever objected or used as an argument against Impositions and whereâ—â— the King doth grant that such Ayds shall not be drawn into a Custome such words are usuall in the preambles of Acts of Subsidies where the grant is large and extraordinary viz. That it may not be drawn into an example that it may not be a president in future times and yet succeeding Parliaments have not forborn to grant as large Subsidies as formerly were granted Thirdly the Statute of 14 Edw. 3. cap. 12. doth rather maintain the Kings Prerogative in this case than any way impugne or impeach it for by that Law free passage is granted to all Merchants paying the Customes Subsidies and profits thereof reasonably due Now certain it is that all duties payable to the King for Merchandizes are of three kinds only Customes which are these ancient and certain duties wherein the Crown hath no Inheritance as is before expressed Subsidies which are granted by Act of Parliament and Impositions which are raised from time to time by the Kings Prerogative onely we find not a fourth kind and therefore the word Profits must needs be taken for Impositions Fourthly the Statue of 11 Rich. 2 cap. 9. though it provide in expresse terms that no Imposition or Charge be layd upon Wooll Wooll-fells or Leather other than the Custome or Subsidy granted in that Parliament yet it saveth alwayes to the King his ancient rights this was as turbulent a Parliament as ever was holden in England and yet was the Kings Right acknowledged though the unruly Lords and Commons did in a manner force his Assent to limit his Prerogative at that time Lastly if these Acts had absolutely bound the Kings Prerogative and had been observed literally and punctually untill this time the King should onely have had at this day the Demi mark for our own Staple Wares and perhaps the three pence Custome for Forein Commodities and no more What an inconvenience what an absurdity had this been at this day when all Forein Princes have raised their Customes to an exceeding height when as I have noted before the necessary expences of the Crown are so much encreased when the prizes of all Commodities are so much enhanced when there is so great a plenty of money in this part of the World when the Kings Revenue within the Land is so much improved Is it fit that Duties payable for Merchandizes should stand at a stay and keep the old rates without augmentation CHAP. XXX The fifth Objection that Tonnage and Poundage were never taken but when the same was granted by Parliament FIftly it is objected That the Subsidies of Tonnage and Poundage were never taken by any King of England but when the same were granted by Act of Parliament which is an Argument say they that the King could never take those duties but by his absolute power for if his Prerogative could have imposed those rates of it self what need was there of an Act of Parliament why should the King have expected the consent of the Commons cum Dominus eis opus habet and when the Exchequor were so empty as the Jewells of the Crown were layd to pawn by some of those Kings who were glad to take these Subsidies by Acts of Parliament CHAP. XXXI The Answer to the fifth Objection THe Answer to this Objection is twofold First
That which is objected is not true for Tonnage and Poundage have been taken by the Kings Prerogative without Act of Parliament Secondly If it had been true it is no Argument against the Kings Prerogative in this point for what is Tonnage but a certain sum of money payable for every Tun of VVine imported did not King Edw. 3 by force of his Charter Mercatoria without Act of Parliament take two shillings for every Tun of VVine imported by Strangers did not the same King set a new Imposition of Gauge viz. upon every Tun of VVine brought into London as is before expressed and are not the severall Impositions of VVines taken by His Majesty in England and Ireland a kind of Tonnage being nothing else but extraordinary rates imposed upon ever Tun of VVine and levied and taken by the Kings Prerogative Again was not the three pence upon the pound imposed by King Edw. 1. by his Charta Mercatoria a kind of Poundage and well nigh as great an Imposition as twelve of the pound granted at this day by Act of Parliament if we consider the Standard of Monies in the time of King Edw. 1. when a peny sterling did contain as much or more pure Silver as the three pence sterling doth contain at this day but admit that no Tonnage or Poundage had ever been taken but by grant in Parliament yet it is no Argument but that the King might impose the like or the same by his Prerogative for three particular reasons The first because these Subsidies were granted for maintainance of the Navy Royall the charges whereof were grown so great in the time of King Edw. 4. as appeareth by the Act of Tonnage and Poundage granted in the 12 year of that Kings Reign that it sufficed not nor in time to come was like to suffice or defray the charge of the Crown in keeping the Sea these are the words of that Act if then in the time of King Edw. 4. the Subsidy of Tonnage being three shillings upon a Tun of VVine brought in by Denizens and six shillings upon a tun brought in by Strangers and the Subsidy of Poundage or of twelve pence of the pound upon other Cōmodities was not then sufficient to bear the charge of the Royall Navy which was not comparable by many degrees in strength and beauty and multitude of Ships to the Kings Navie at this day Doth it stand with reason that the Crown should be stinted or limited ever after to take no more than those poor Subsidies granted at that time that the King should wait for a Parliament and pray an ayde of the Commons for a competent means to maintain the Walls of the Kingdom when by the Common Law of the Realm he may grant Letters Patents for Murage to maintain the Walls of a Corporate Town If any unexpected necessity should arise for repairing of the Navy Royall and making a Navall War should the King expect a Parliament for a greater Subsidy to bee granted by the Commons before he should rigge and make ready his Ships perhaps a Kingdom might be lost in the mean time as if a Pilot sitting at the Helm and seeing a sudden gust of wind would over-set the Ship or perceiving her to be running on a Rock should forbear to turn the Helm or cause the Sail to be stricken untill he had consulted with the Mariners or Passengers and demanded their consent or counsell in the businesse the Pilot himself with his Mariners and Passengers might be cast away before they were agreed what course to take Secondly these Subsidies of Tonnage and Poundage were first granted by Act of Parliament in the time of the Civill VVars between the two great Houses of Lancaster and York when the severall Kings were loath to make use of their Prerogatives but were glad to please their people and loath to impose any charge upon them but by common consent in those troublesome times Thirdly Kings and Princes oftentimes of their own noble nature and sometimes in policy do accept that of their Subjects as a gift which they might exact take as a duty and therefore our most potent and politique Kings have ordained and accepted many things in Parliament which they might have done in their private Chambers by their own prerogative without any other Ceremony who ever made doubt of the Kings Prerogative in establishing the Standard of monies and yet how many Acts of Parliament do we find touching Monies in the times of King E. 1. and King Edw. 2 the Kings Prerotative in making establishing Marshall Law was never yet in question yet are there Acts of Parliament touching Musters departures of Souldiers without their Captains Licences or the like The King only doth give Honours and places of precedency yet King Hen. 8. made an Act of Parliament whereby he rancked the great Offices of the Crown in their severall places as well in Council as in Parliament No man ever doubted but the King being the Fountain of Justice may erect Courts of Justice by his Prerogative yet we find the Court of Augmentations and the Court of VVards erected by Act of Parliament Lastly in the time of Edw. 2. we find an Act of Declaration of the principall Prerogatives of the Crown of England were most undoubted and clear yet His Majesty was pleased in his first Parliament to accept of an Act of Recognition CHAP. XXXII The Conclusion BY these reasons and demonstrations which are before expressed it is evident that the King of England by vertue of an ancient Prerogative inherent to the Crown and Scepter may justly and lawfully set Impositions upon Merchandizes and may limit and rate the quantity and proportion thereof by his own wisdom and discretion without Act of Parliament and this Prerogative is warranted and approved by the generall Law of Nations and the Law Merchant which is a principall branch of the Law of Nations by the Imperial Law the Ecclesiasticall Law and by the rule of the Common Law of England and by the practice of the most prudent Kings and Queens of England since the Conquest and that this Prerogative is grounded upon many excellent reasons and that the severall Objections made against this Prerogative are but shadows and colours of reason and clearly removed and washed away by the severall Answers thereunto CHAP. XXXIII A comparison of the Impositions set and taken in England by the Kings Prerogative with the Exceptions and Gabells in Forein States and Kingdoms whereby it will appear that the subjects of the Crown of England do not bear so heavy a burthen by many degrees as the Subjects of other Nations do bear in this kind ALbeit indeed the King of England being no Emperor and having all Imperiall Rights within his own Kingdoms hath and ever had as absolute a Prerogative Imponere vectigalia or to lay Impositions as the Emperor of Rome or Germany or any other King Prince or State in the world now have or ever had yet let