Selected quad for the lemma: england_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	bishop_n	time_n	year_n	3,298	5	4.6228	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A96413	The rights of the people concerning impositions, stated in a learned argument; with a remonstrance presented to the Kings most excellent Majesty, by the Honorable House of Commons, in the Parliament, An. Dom. 1610. Annoq; Regis Jac. 7. / By a late eminent judge of this nation.	Whitelocke, James, Sir, 1570-1632.; England and Wales. Parliament. House of Commons.	1659 (1659)	Wing W1995C; Thomason E1647_3; Thomason E2143_3	49,868	133

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 Judgement 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. 1. El. Dier 265. upon the complaint 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. 39 E. 3.13 E. 3.13 by which case it appeareth 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 hath 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 Kingrecited 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. Rot. char 31. E. 1. num 42. in Turri 1. by meer right of Prerogative at the Common Law for by that Grant of the Merchants he cannot hold it they being no Body Politick at the time of the Grant and therefore the Grant is 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 31 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. 27 E. 3. cap. 26. heretofore cited doth make this point clear without scruple 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 doth assign his Officers to gather it but with this clause Si gratanter absque coertione solvere voluerint ita quod aliquem Mercatorem de regno potestate nostrâ ad praestationes custumas hujusmodi invito 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. 25 E. 1. cap. 7. the Tonnage and Poundage by Parliament in the first year of every Kings reign 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 Portorium 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 inferreth 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. claus 16. H. 3. num Quod emnibus Mercatoribus in portum suum venientibus cum vinis aliis merchandizis scire faciant quod salvò securè in terram Angliae veniant cum vinis merchandizis