Plowdens argument against it in M. Tates hand but their resolution is no where to be found at least by Us It is very probable that if they had given judgement for the Queen it would not have beene kept close but howsoever the profit was too great to be taken from the Crowne and therfore it continues till this day Howsoever the reason in equity in the laying this Imposition upon Cloth may seeme to bee sound unto some men and so to allow of this Imposition as differing from ours yet for my part I hold it not so when I consider what course was taken by Ed. 3. upon the same occasion an 11. E. 3. c. 1. 2. It was enacted that no wooll should be caried out of England but by the Kings licence and that no man should weare Cloth other than such as should be made in England this Law tooke such effect as within ten yeeres the greatest part of the Wooll in England was made into Cloth and it became to be transported in such abundance by reason that there was no Custome at all due upon Cloth and the Custome and Subsidie upon Wools was very high that in the 21 yeere the King finding his Custome of Wools so much decreased doth seeke to remedy it not by imposing a new charge upon Cloth by his absolute power as Qu. Mary did but did it by assent of his Subjects in full Parliament as I collect partly by my L. Dyer in the place last mentioned but more fully by a recitall in a Record amongst us of 24. E 3. ro 13. orig de Scaccar to this effect That whereas the Customes and Subsidies due and granted upon Wools are much decreased because a great part of the Wooll of England is made into Cloth for which no Custome is due and whereas in consideration thereof at our Councel held the 21 yeere of our Reigne by the common assent of the Prelates Earles and Barons and others it was ordeined and accorded that 14d. by Denizens and 20d. by Strangers should be paid for every cloth of Assise c. made of English wooll and transported upon paine of forfeiture of the Clothes And so followeth an authority given to collect the same The next Imposition laid by Q. Mary was forty shillings upon a Tun of French wines imposed in the 5 yeere of her Reigne at which time there was first a Proclamation made that no wines at all should be brought from France being then in enmity with England upon paine of forfeiture of the Wines which by the way is a strange clause in a proclamation Immediately after this restraint there was an order made by the Qu. and her privy Counsell that such as would might bring in French wines notwithstanding the Proclamation paying forty shillings upon every Tun by the name of Impost as doth appeare by Record in the Rolls of Easter Terme 1 Eliz. in the office of the K. Remembrancer of the Exchequer in the case of one Germane Ciol German Ciols case against whom an Information was exhibited for not paying the said Imposition Whereunto taking it by way of Traverse that there is any Law of the Land by which he may be charged with Impost he pleads a licence made unto him an 1. 2. Ph. Mar. to import a certaine number of Tunnes of Wine within a certain time any restraint then made or afterwards to be made to the contrary notwithstanding Provided alwayes that the Custome Subsidie and other duties due and accustomed to be paid to the King and Queen were duly satisfied He shewes that for all Wines brought in by him during the life of Queen Mary he paid the Subsidie of Tonnage viz. three shillings for every Tun which was all that was due and accustomed to be paid Upon this plea a demurrer was joyned and judgement given thereupon against the Queen This Judgement hath been enforced in the maintenance of Impositions Whether or no it make not rather against them I leave to your censures Neere about the same time there were Impositions laid also by Queen Mary upon all French commodities whatsoever to be imported as may appeare by the Port-bookes of those times in the Exchequer which Impositions were received to the use of Queene Eliz. in the beginning of the 1 yeere of her Reign but ere the yeer ended they were all taken away as may appeare by the same Port-bookes which in my opinion is a great argument that they were not then held lawfull For Princes doe not so easily give over their hold in matters of profit if they be any way able to maintain it What hath hitherto upheld the Imposition upon Wines I know not except it be the great profit that comes by it to the Crown and because there was never any late Judgement given directly against Impositions You have hitherto heard what reason and direct proofe I have used Admitting the king had power by the cōmon-Lawe to lay Impositions yet hee is barred by Statutes to maintaine that by the Common Law the King cannot at his will increase his Custome by way of Imposition You have secondly heard what the practise of former ages hath been in this kinde till this day from which I have also drawn reasons of Inference that prove the Common-Law so to be But now admitting that by the Common-Law it had been cleere and without question that the King might at his will have laid Impositions and that also the same could have been cleerly proved by the practise of the ancient Kings yet I affirme that so stands the Law of England at this day by reason of Statutes directly in the point as the Kings power if ever he had any to impose is not onely limited but utterly taken away as I hope I shall be able evidently to prove notwithstanding any objection that hath been made against the interpretation of the Statutes to this sense The first Statute is in Magna Charta cap. 30. Magna Charta cap. 30. Enforced and the objections made against it answered The words are All Merchants if they were not openly prohibited before shall have their safe and sure conducts to enter and depart to goe and tarrie in the Realme as well by Land as by water to buy and sell without any evill tolls by the old and rightfull Customes except in the time of Warre And if they be of the Land making warre against us and be found in our Realme at the beginning of the warre they shall be attached without harme of body or goods untill it be knowne to us or our Justices how our Merchants be intreated there in the Land making war against us c. The Statute of which this is a branch is the most ancient Statute-Law we have wonne and sealed with the blood of our Ancestors so reverēced in former times that it hath been by Parliament provided that Transcripts thereof should be sent to all the Cathedrall Churches of England there to remaine that it should be twice every
These indeed and onely these are meer Impositions and may be aptly compared with these of our times Of this kind amongst all the Records of Edward the Thirds time I finde only two which I will truly open unto you The first is in the Twenty one of his Reigne where it appears that Lionell afterwards Duke of Clarence named upon the Record 21. Ed. 3 no 11 Ro. Parliam Lionell of Antwerp because I suppose he was there borne the Kings second sonne being then Guardian of England whilest the King his father was at the siege of Callice at a counsell by him held the same yeere which I take to be no other then the Privie Counsell assessed without assent of Parliament upon every sack of Wooll Two Shillings upon every Tun of Wine Two Shillings upon every Pound of Aver de poys of Merchandizes imported Poundage imposed Sixe pence This Imposition was I must confesse for ought I know to the contrary such as our present Impositions are I meane in that it was imposed onely and simply by the Kings absolute power and may in that respect be the Fourth of that number of Sixe which I told you were all that could be found in any degree like to ours ever to have been practised in this Commonwealth from the Conquest till Queene Maries time But though in the authoritie of imposing it be like yet in circumstances very materiall you shall finde an apparant difference between them First this Imposition is very moderate in the sum as you may perceive for it was but Two Shillings upon a sack whereas in 13. Ed. 3. forty Shillings upon a sack of wooll was usuall and sometimes fifty shillings Secondly it was to continue no longer then till Michaelmas following Thirdly it was laid in the time of a most chargeable warre and ordained to be imployed for the maintenance of Ships of warre at Sea for the safeguard of Merchants in their passage of which it is apparant there was at this instant very great necessitie for it was as I have said imposed then when King Ed. 3. lay at the siege of Callice Besides such as it was and so qualified as you perceive it was neverthelesse complained of in Parliament by a Petition from the Commons as may appeare be the Records of the same Parliament of 21. Ed. 3. To which Petition or complaint this answere was given That all the said Impositions were already taken away save only the Two Shillings upon a sack of Wooll which should last no longer then Easter and seeing the same was ordained for the safeguard of merchants in which there had been greater sums of money expended by the King then could be collected between that and Michaelmas therefore to continue the same till Easter he hoped it would not seem over-burdensome or grieveous unto them In the Parliament following viz. anno 22. the Commons pray that writs may bee directed to the Customers to forbeare at Easter next to take the two shillings upon a sack 22 E. 3. N 16. Ro. Par. according as it was granted at the last Parliament and that it be not any longer continued by the procurement of any Merchant The King answereth Let it cease at Easter as it was agreed the last Parliament Here you see it was absolutely taken away and therefore though it had wanted these qualifications and circumstances which I have observed it had yet it being a thing so publiquely condemned it ought to be of little force with you to justifie these present Impositions But that which I observe out of this last Record maketh me rather to incline that this Imposition was onely by way of dispensation then that it was an absolute Imposition such as Ours are For to what end I pray you should the Commons pray that it might not be any longer continued by the procurement of any Merchant except it were likely that Merchants for their benefit should pray the longer continuance thereof and what benefit can any imposition whatsoever bee to a Merchant except it bee by way of Dispensation to give him leave to trade where before such dispensation given he stood altogether restrained If then it be an Imposition by way of dispensation with a penall Statute of restraint then is it no president for our present impositions But whether or no it be a Dispensation or absolute Imposition I leave it to your judgements you have heard my observation And so I come to the next president in the times of Ed. 3. produced for maintenance of our Impositions 24 E. 3. N. 12. Orig. de Scac. which was in the 24 yeere of his Reigne the Record of which and that which followed thereupon I will without any inforcement at all open unto you and so leave it to your censures The King reciting that whereas the Spanyard and French had joyned in league to make Warre against him and that for the withstanding of his said adversaries as also for the safeguard of Merchants against Pirats he had ordained that certaine ships should be set forth and that for maintenance of the said Ships there should be paid by Merchants two shillings for every sack of Wooll two shillings for three hundred Woolfels foure shillings for a last of Lether a Scute of Gold or foure shil Poundage imposed for a tunne of Wine and six pence of the pound upon all other Merchandizes for one yeere following He commandeth his Customers to levy the same accordingly The very next yeere and Parliament following 25 Ed 3. No. 12 Rot Par. the Commons exhibite a Petition in Parliament against Impositions and other like charges without assent of Parliament To which answer is given that it is not the Kings intion they should be charged I have now gone through all the materiall Records here amongst us of the times of Ed. 3. in which though his reign were very long and by reason of his Warres and other excessive charge more occasion was given him to try the strength of this point of the Prerogative then ever any King before or since though oftentimes and by many politicke inventions as you have heard he attempted to establish this Prerogative of laying impositions without assent in Parliament yet can there not be produced in all his time any more then two Presidents of Impositions like to these of ours that is imposed by the Kings absolute authority and yet these two were also as you perceive qualified with such circumstances as if ours were such we should have held them tolerable though perhaps not lawfull yet they such as they were escaped not without being complained of and condemned also in Parliament as you have heard It may perhaps be that some one or two of these Impositions which were by assent or grant of Merchants in this time of Ed. 3. were in times when the passage was open and not restrained by act of Parliament and so to be compared to our impositions but whosoever shall by looking over the Statutes
Nunneries and all other Religious houses of what kinde soever throughout England By which meanes and by the sale of their goods he gathered such a masse of Treasure as it might have been imagined that never any king of this Realme should have needed to have sought reliefe at his Subjects hands Yet he himselfe no longer than within 3. yeeres after following craved and obteined as may appeare by the Statutes of that time an excessive great Ayde by Parliament and yet the yeere following hee did also abase his coyne more then halfe in halfe such an abasement as never before or since was heard of and could not but bee very grievous to the people but because perhaps they held it lawfull so to doe they made no pubilque complaint thereof and it is worth the observing That though this Prerogative of abasing Coyne be a thing which trencheth as deepely into the privat interest of the Subject as the laying of Impositions for by this meanes a man that this day is worth in revenues a hundred pounds per an hee shall to morrow if the king be so pleased be worth but fifty or forty or lesse in reall value and though also the practise of this Prerogative hath not been forborne by any of the kings of this Realm and that some of them have used it very immoderately yet cannot there be found any one publique complaint that ever I have met withall upon Record against it as from time to time there have beene many against Impositions which argues that the Subject did make a difference between these two Prerogatives this of laying Impositions and that of abasing coyne thinking the one lawfull and the other not But to conclude my observations upon the actions of Hen. 8. The next yeere after this unconscionable abasement of his money hee craved a benevolence The yeere following he tooke the profits of all the Chantries Colledges and free Chappels c. during his life which ended the next yeere Can any man imagine that during this kings Reigne it was held lawfull or any such thing so much as dreamed of to rayse treasure by laying Impositions I will enforce it no farther but leave it to the judgement of any reasonable man that shall consider these things which I have remembred whether or no it bee likely Out of the time of his Sonne and Successor Ed. 6. Edw. 6. I can observe little because of the shortnesse of his Reigne but methinkes if his Governors had imagined that any such Prerogative had been due unto him they should not in honor have forborn the practise thereof for the supplying of the Kings great necessities and in stead thereof have craved of the Subjects that unacustomed and unreasonable Subsidy granted an 2. of a certaine sum of money upon every sheep and every Cloth within the Realme for 3. yeeres which afterwards for the unreasonablenes thereof was released I have now gone through in such sort as you have heard A Corolary or connexion of all the times before mentioned the times of all the Kings from Ed. 3. till Q. Maries Reigne during which time what can there be more imagined that might possibly have happened to have awakened Impositions if they had not been more than asleepe Neither the necessity of just and honorable warre nor the subtleties and curiositie of Peace nor the prodigality of some of these Kings for the better satisfying of their pleasures nor the covetousnesse of others nor the softnesse of some of their dispositions nor the nonage of others apt to be abused by evill Counsellors nor the dreadfull and fearefull awe in which some of them held their Subjects nor the assurance of the peoples extraordinary affection which might have emboldened some others nor the evill conscience of Vsurpers nor any other motive whatsoever which happened during this long time could revive them untill Q. Mary did at last raise them out of the grave after they had been so many yeeres dead and rotten The first Imposition that she layd Qu. Mary was that upon Cloth continued till this day which grew upon a speciall reason as may appeare by the printed booke of the rates of her Customes and Subsidies in the end whereof you shall finde a declaration expressing the losse susteined by reason of the difference between the Customes and Subsidies of Wool and cloth by which it appeares that a sack of Wool yeelded in custome six shillings eight pence and in Subsidie thirty three shillings foure pence that the custom upon a short cloth was fourteene-pence and that a sack of Wool did commonly make foure short clothes the custome of which was foure shillings eight pence so that the custome of Wool made into cloth was lesse then the Custome and Subsidie of so much Wool not cloathed In every sack in short clothes thirty five shillings foure-pence which difference was reduced to an equality by rating upon every short cloth ten shillings After this declaration made of the difference and of the rate which reduced both to an equality follow these words Which difference considered and the great losse susteined by Us in the same by reason that cloathing is much increased It is thought convenient by Us with the advice of our Councell towards the reliefe of the losse for to assesse upon the Clothes carried out by way of Merchandize some larger rate then heretofore hath been used and though it were reason to appoint such a rate as might recompence the full of the losse susteined yet upon divers considerations at this time Us and Our Councell moving Wee are pleased only to assesse upon every short-cloath by the name of custome six shillings eight pence c. I thought good to open this at large unto you that you might see upon what speciall reason of equity this Imposition was grounded and how it differeth from ours And it is worthy the observing how the Queene commandeth this increase of Custome to be yeelded unto her not as an Imposition or by the name of Impost but by the name of Custome because it cometh in lieu of the ancient Custome upon Wooll which is the reason that at this day it is demanded and paid by that name whereas no other new raised duty hath that priviledge but they are either called Subsidie of Tonnage or Poundage if they be raised by act of Parliament or Impost if by the Kings absolute power The name of Custome was anciently given to none but to Wools Wool-fells and Leather and upon this occasion to Cloth also This Imposition though grounded upon such equity as you have heard yet in Dyer 1 Eliz. fo 165. a. b. it was as appeares by my L. Dyer complayned of by the Merchants of London with great exclamation which are his words and suit to the Queen to be unburdoned of it because it was not granted in Parliament but assessed by Queen Mary of her absolute power whereupon there were divers assemblies and conferences of the Justices and others
fourteene twelve yeeres her age of consent and nine yeeres capable to bee endowed a yeere and a day given to sue an appeale the like limitation of a yeere and day in very many other Cases In effect who reduced all the known grounds of the Common law to that certainty that now they are Because wee cannot tell how or when they began shall wee therfore conclude that they began by the kings absolute power and inferre that by the same reason they may bee changed at his pleasure If the king may increase his Fines upon the purchase of Originall writts which by the same reason hee may doe that hee may doe his Custome nay hee hath more colour for this then for that because there is no Statute against this hee might easily raise that revenue to the value of his Customes But no man can nor will I hope offer to mainteine it to bee lawfull You see the weakenesse and the dangerous consequence of this argument by comparing it to other cases of like nature To say the truth all these things began no man can say certainly when or how but by a tacit consent of king and people and the long approbation of time beyond the memory of any man and yet no man can directly affirm but that most of them might begin by Act of Parliament though now there bee no Records extant of such antient Parliaments The first Parliament was not kept 9 H. 3 though it be the first in our bookes If we will give credit to other Records and to our best Chroniclers The antiquity of Parliaments we shall heare and reade of divers Parliaments in the Reigne of King John and of his Predecessor Rich. 1. and in the Reign of H. 2. of two famous Parliaments one at Claringdon in Wiltshire the other at Gedington in North-Hamptonshire And although our Chronicles say that the first Parliament kept in this Realm was held 19 Aprilis 16 H. 1. yet I am of opinion that William the Conqueror held Parliaments for what can be else understood by these words Per commune consilium totius Regni nostri stabilitum fuit which I finde in Mr. Lamberts collection of the ancient Lawes of England in the beginning of the Lawes of W. the Conqueror Many of the Statutes of E. 1. have no other words Nay long before him in the yeere of our Lord 712. in the time of Inas King of the West-Saxons I assure my selfe there were Parliaments held and that of the three Estates as at this day as may appeare by these words in the beginning of the Lawes of King Inas in Mr. Lambert Suasu Instituto Episcoporum nostrorum omnium Senatorum nostrorum natu majorum populi nostri in frequentia magna And more plainly in the conclusion of some other of his Lawes Hoc factum fuit per commune consilium assensum Procerum Comitum omnium Sapientium Seniorum Populorum totius Regni per praeceptum Regis Inae which are the same in Latine which ours is in English By the King the Lords Spirituall and Temporall and the Commons VVhy might not the Custome upon Woolls be first granted at one of these Parliaments as well as to have it first begun by the Kings absolute power There is no more probability of the one than the other because most of the ancient Records were burnt in H. 2. time when the Exchequer was burnt shall we conclude therefore that there were neâ—er any such You see the weaknes of this Argument in all the points thereof I leave it and passe to another The King may say they restrain the passage of Merchants at his pleasure The second Argument that the King may totally restrain the importing and exporting of merchandizes therfore he may do it sub modo by laying of an Imposition answered which they prove by divers Records 2 E. 1. m. 18. Ro. Par. 2 E 1. m. 17. Ro. fin 31 E. 1. n. 44. Ro. Pat. 17 H. 6. Ro. Clo. in dorso Upon which they inferre that if he may restraine a Merchant that he shall not passe at all he may much more so restraine him that he shall not passe except he pay a certaine sum of money For this say they is lesse than totally to restraine him And Cui licet quod majus licet etiam quod minus Of this Argument my L. Dyer gave light in his case of Impositions 1 Eliz. and this hath been diversly inforced by all that have argued for Impositions In answer of which I will consider how farre the king may restrain the passage of Merchants and then will examine the consequence of the Argument For my part I think the king cannot restrain the passage of Merchants but for some speciall cause wherein to define certainly and resolutely to say for what causes he may and for what not I will not undertake Onely let me inform you that there is not one of these presidents vouched by them to prove the kings power to restraine but they are upon speciall reasons as by reason of Enmity with such a Nation from whence they are restrained or because such a Commodity may not be spared within the kingdome Besides they are not restraints from all places and of all manner of Merchandizes but from certain places onely and for certain sorts of Merchandizes And for my part I thinke that restraints in all these cases and of like nature are by the Common-Law left to the kings absolute power For if it were otherwise it should be in the power of a Merchant for a little private lucre to enrich the kings Enemies or to furnish them with munition to be imployed against the State or utterly to ruine the Common-wealth by carrying out a Commodity which may not be spared or by bringing in of some that may be hurtfull Nay which is more such may be the occasion that the king may I doubt not stop the passages of all Merchants from all places for a short time as upon the death of the late Queene it was put in practise to prevent Intelligence there may likewise be such necessary use of their ships as the want of them upon some sodaine attempts may be a cause of the overthrow of the whole State In such cases as these if the Common law did not give the King leave to restraine their passage by his absolute power it were very improvident in the highest points which cannot be imagined of so wise a law And yet the Kings of this Realme have alwayes been sparing in the practise of their absolute power in this point For there are little lesse then 30. Acts of Parliament touching the opening and shutting up of the passage of Merchants most of which as I conceive were made rather for the increase of punishment then for want of power in the King For the breach of a restraint by absolute commandment is punishable as all other contempts onely by Fine and Imprisonment and not by forfeiture of the Merchandizes
of Certainty and this of the provision made by the Common-Law are in my poor opinion Arguments of direct proofe that the King cannot Impose I will now according to my division urge an Argument or two of Inference and presumption the rather because Arguments of this nature have been much enforced by those who have maintained the contrary opinion Sir Francis Bacon especially by Mr. Solicitor I call them Arguments of inference and yet in my opinion those which I shall urge are also of good proofe such as they are you shall judge of them They are drawne either from the actions or forbearances of the Kings of this Realme or from the actions and forbearances of the people First in the actions and forbearances of the Kings Arguments drawne from the actions of the Kings that they have no power to Impose I observe that all the Kings of this Realm since Hen. 3. have sought and obteined an increase of Custome more or lesse by the name of Subsidie of the gift of their Subjects in Parliament Nay some of them and those not the weakest in Spirit or power but the most couragious and potent in that whole ranke even that mighty and victorious Prince King Ed. 3. being to undertake a just and honorable warre than which there could not happen a better or juster occasion to have made use of his Prerogative of Imposing did neverthelesse at that time stoope so low in this point that he did in full assembly of the three States pray his Subjects to grant him a Reliefe in this kinde for the maintenance of his warre and that to endure but for a short time and further was well content to suffer his prayer in that behalfe to be entred of Record to the memory of all posterity And the succeeding Kings have also suffered the same to be printed as may appeare by the printed Statutes at large An. 14. Ed. 3. cap. 21. Is it likely that if any or all these Kings had thought they had had in them any lawfull power by just Prerogative to have laid Impositions at their pleasure that they would not rather have made use of that than have taken this course by act of Parliament so full of delay so prejudiciall to their Right so subject to the pleasure of their people who never undergoe Burdens but with murmuring and much unwillingnes Can there be any thing more hatefull to the high Spirit of a King than to subject himselfe to the pleasure of his people especially for matter of Reliefe and that by way of Prayer having lawfull power in his hands to relieve himselfe without being beholding to them If perhaps the Kings themselves were ignorant of this great Prerogative which cannot be imagined had they not alwaies about them wise Counsellors to assist them and such as for the procuring of favor to themselves would not have failed to have put them in minde of it Nay if they had known any such lawfull Prerogative had they not been bound in conscience so to have done What an oversight was it of King Ed. 3. and all his Counsell so much to prejudice his right in so beneficiall a Prerogative as to suffer him upon Record and that in Parliament to pray for that which he might have taken out of his absolute power Can there almost be a more direct disclaiming in the Right to compare great things with lesse if the Lord by matter of Record claime any thing of his villaine it is a disclaimer of the villenage The Kings of England have other noble and high Prerogatives I will only name two of them The making of warre and peace and the raising and abasing of Coyne at their pleasure Did they ever crave the assent of their Subjects in Parliament to make a warre Their advice indeed they have sometimes sought and their ayd for treasure to maintaine it The Prerogative of raising and abasing the value of money hath been oftentimes put in practise by them and sometimes strayned to such a height that the King might well suppose the Subjects could not but be much discontent therewith And yet never any King of this Realme did it by assent of Parliament which perhaps some one milde King among so many would have done and it may be would also have prayed his Subjects to yield thereto only to avoid the grudging of the people if the seeking of assent in Parliament had not been thought to have been prejudiciall to the absolute power of their Successors and yet as for some of these Kings it may be supposed they made little conscience to prejudice a Successor in one point that made no scruple totally to depose a Predecessor from his Throne and all his Regalities and to usurp it to themselves And so I proceed to my next Argument of Inference drawn from the actions of our Kings Some of the Kings of England as namely Ed. 2. Edward the 2. in the yeere of his Reigne and Ed. 3. in the 1. and 24. yeere of his Reigne as may appeare by the Records here amongst us were contented to accept an increase of their Custome by way of Loane from the Merchants and solemnly binde themselves to repay it againe Would any wise man in the world that thought he had but a colour of Right so much prejudice his himself as to borrow that which he might take without leave and binde himselfe to repay it If a poore man perhaps through feare might be enforced so farre to yeeld to a mighty adversary yet that a powerfull man should stoope so low to one much weaker than he nay that a King in a point of such consequence should so farre discend from his Greatnesse as to borrow of his poore Subject that which without being beholding to him he might obtein as his Right and binde himselfe to repay it againe I say it cannot with any reason be imagined but withall it must be concluded that a king that shall so doe doth not thinke that he hath so much as colour of Right to impose I will not much presse or enforce the actions of Ed. 2. who I confesse was but a weake Prince Edward the 3. But as for his Sonne and successor Ed. 3. there was not as I have said a stouter a wiser a more noble and couragious Prince than he and none more carefull to preserve the Rights of his Prerogative as may evidently appeare by all his answers in Parliament on any complaint of the Subject Besides never had king of this Realme more occasion than he to straine this Prerogative of imposing to the utmost For besides his excessive expence in the warres of France and Scotland he had also a continuall charge of many expensive children his wife Queene Philip had also for her maintenance a large allowance out of his Revenue but the dowry of Queen Isabell his mother who lived till about the 27. yeere of his Reigne was so great as it is reported by some writers that little more than the
King to sustein any publique charge except it be by their own consent in Parliament I proceed from Ed. 4. to Hen. 7. Hen. 7. omitting Ed. 5. and Ric. 3. because of the shortnes of their Reignes Hen. 7. H. 7. had a Subsidy of Tunnage and Poundage granted to him for his life as may appear by the Parl. Roll 1 H. 7. which appeares no where in our printed books had indeed a more peaceable time than any of his Predecessors and yet he was not altogether free from troubles both within the Realme and from abroad But his naturall inclination was rather to embrace Peace he was so provident and politique in the gathering and storing up of Treasure as never any Prince of this Realme was therein to be compared to him He did himselfe take the accounts of his Revenues which I have seen under his own hand He had for his Assistants about him Empson and Dudley men learned in the Lawes and by all probability very canning in all the profitable points of the Prerogative men that that intended or studied little else than the advancing of their Masters profit men even till this day infamous for their wicked counsell in perswading that good King to lay such heavy Exactions and Burdens upon his people as he did If these men who in all likelihood should have best knowne the Kings right especially in so high a point of profit had but had the least notice of so profitable a Prerogative as this would they not have been at strife which of them should first have put the king in minde thereof Or if they had held it questionable would they not have put it to some triall Certainly there can be no cause imagined that should make them thus to forbeare but either they were utterly ignorant of any such Prerogative or that knowing such a thing to be claimed by some of the ancient kings especially by Ed. 3. they knew likewise that it was in the same times continually complained of in Parliament and alwayes condemned and that there were acts of Parliament directly against it and this is more probably to bee conceived of them being men of such searching spirits and so well studied in point of Prerogative then that they were ignorant of the practise of Ed. 3. considering also that they were nerer to those times by 120 yeers then wee are But that which most of all moves me herein is that there was in H. 7. time such an occasion offered of making use of this Prerogative as there could not possibly happen any other that might better have justified the laying of Impositions which was this The Venetians to the intent to drive our Merchants from fetching sweet wines at Candy that they might the better imploy their owne ships and Merchants did impose upon every But of Malmesey brought thence by English Merchants foure Duccats by which means the English wholly lost that Trade and the Venetians made the whole profit thereof This mischiefe was no other way better to be remedied than by imposing the like or a greater charge upon Merchants of Candy bringing Malmsey into England that so they of Candy not being able to afford them better cheape than the English the English might still fetch them from Candy as they had wont to doe I say there could not possibly be a more justifiable occasion of laying Impositions than this was And did this king so carefull in other things of preserving his Prerogative and most of all in matters that concerned his profit take hold of this occasion to lay an Imposition by his absolute power Nay rather though he saw it convenient and in a manner necessary yet he conceived it to be unlawfull so to doe and therefore did it not by his absolute power but by assent of Parliament as may appeare by the Statute of 7 Hen. 7. cap. 7. printed where in the preamble of the Act you shall see the occasion of the making of the Act to be as I have opened it unto you and you may perceive by the body of the Act that for the counterpoysing of the imposition of foure Duccats laid by the Venetians upon our Merchants there was imposed 18s. for a But of Malmesey upon their Merchants bringing it hither to last as long as the imposition of foure Duccats which as appeares by the Act came but to 18s. of our mony should endure It is not probable that this king considering his other actions would have suffered this to have been done by Parliament if he had thought he might have lawfully done it by his absolute power And therfore it cannot almost be gaine-said that in these times this pretended Prerogative of laying Impositions without assent of Parliament was held to be against Law Hen. 8. his sonne and successor Hen. 8. was so farre from the disposition of his father in this point of thrift and providence Hen. 8. had a Subsidie of Tunnage and Poundage grāted to him for his life the first yeare of his Reign as appeares by the Parl. Roll. as there was not in the whol ranke of our kings any one like to him for excessive prodigality the great riches stored up by his father with so much care and left unto him hee so sodainly consumed in Triumphs Maskes Mummeries Banquets pompous and braving Warres as was that of Turwin and Turney and in the satsfying of his lust as he was out of very necessity enforced to crave most unreasonable aids of his Subjects in Parliament such as never before had been granted which through very dread and feare were yeelded to him yet not so satisfied that no meanes for the raysing of money might bee neglected or unattempted in the 15 yeere of his Reigne by the councell of that proud Prelate Cardinall Woolsey hee spared not to send out Commissions into every shire throughout the whole Realme with privy instructions to the Commissioners how they should with most advantage behave themselves in perswading the people to contribute to the king the sixt part of their whole estates to bee paid presently either in money or plate whereupon followed extreme cursing weeping and exclamation against the king and his councell and the people were in point to rebell had not the king stayed the proceedings of the commissioners by his Letters Finding that this way would not serve his turne hee demanded a benevolence which not answering his expectation hee did the same yeere raise unto himselfe a great deale of treasure by abasing his gold Such things as these Princes never put in practise but when all other meanes faile them and yet hee went many degrees beyond this For in the 27. yeer of his reigne he suppressed above 370 Religious houses the yeerly value of whose revenues I have read to be no lesse than 32000l. per annum in those dayes and that of their goods sold at very low prises he made above 100000l. in present money About 4. yeares after he dissolved all the Monasteries Abbeies Priories
of 52. Hen. 3. this title Consuetudo Mercandizorum and by divers other Records of Hen. 3. times the Rolls and Records of the beginning of Ed. 1 doe likewise prove the same very evidently Insomuch that not onely that which in this kinde belongs to the King by the Common Law and by ancient prescription was called Consuetudo but in later time if any increase were of that dutie though it came not by prescription but by grant in Parliament or otherwise yet it still retained the name Consuetudo which by continuance of time came to be the proper name to that kinde of dutie howsoever it began And therefore in 3. Ed. 1. you shall finde that after the old custome of Woolls was increased to a demy-Marke by Act of Parliament yet the word consuetudo was neverthelesse still retained but with an addition For it was then called nova consuetudo Nay though the increase were by the Kings absolute authoritie and upon the matter a meere Imposition Yet the King in his Commission did alwayes call it consuetudo as in 16. Ed. 1. the Imposition of Foure Shillings upon a Tun of Wine is in the Kings Commission to collect it called consuetudo Neverthelesse I assure my self the people called it by some worse name as Maletolt or the like The severall applications of this word Consuetudo to all duties whatsoever belonging to the Crowne by reason of Trade is the reason as I conceive that the word is used in the plurall number in the Statute of Magna Charta per antiquas certas consuetudines that so they might bee secure against all unjust exactions upon Merchandizes whatsoever but as I have said the principall scope was to provide against Impositions and by reason also that the word Consuetudo was taken as well for Impositions as for rightfull Customes therefore to make all sure they insert the words antiquas rectas This word Consuetudo in this sense continued till about the twentieth yeere of Ed. 1. after which time I cannot call to minde that I have seene it upon any Record In stead and place thereof came in the word Custuma which I find first in Charta Mercatoria an 31. Ed. 1. where the increase of Custome by the grant of Merchant-strangers is called parva custuma that which before was called nova Consuetudo doth now begin to lose that name and to bee called magna Custuma which termes of magna Custuma intending thereby that increase made by Parliament anno 3. Ed. 1. upon the three staple commodities Wools Wooll-fells and Lether And parva Custuma intending thereby the increase granted by the Merchants-strangers an 31 Ed. 1. Custums are the termes used at this day by the Customers and by which they distinguish their entries This word Custuma I finde to have been also promiscuously used by E. 1. E. 2. and E. 3. in their Commissions and applyed as well to increase of Custome by way of Imposition or by acts of Parliament of those times as to ancient custome upon the Staple commodities but regularly none ought to be called Custuma but that which is due upon the Staple commodities and so is it used at this day except only cloath for if it bee laid by act of Parliament it is called a Subsidie if without assent of Parliament Impost You see in what sense the words malum Tolnetum and the word Consuetudo have been used in former times and are thereby able to judge how they ought to be understood in this present Statute which as I have said ought to have the most benign interpretation that the words may beare But it hath beene likewise objected that in this Statute there is a speciall clause of exception which leaveth the king at his liberty to lay what impositions he pleaseth The third objection against Magna Charta cap. 30. that by the Exception the Kings prerogative to lay Impositions is salved answered this Statute notwithstanding and that is the words in the beginning of the Statute All Merchants if they were not openly prohibited before shall have their passage c. which implies say they that if they be prohibited which rests wholly in the kings power then they are not to have benefit of this Stat. touching the freedome from impositions and they say farther that the very laying of impositions doth imply a restraint sub modo Though I purpose to speake more fully in answere of this objection when I come to shew you the weaknesse of the reasons alledged for Impositions yet I cannot forbeare in this place to speake a word or two in answere thereof having the Statute now before us Except they be prohibited they shall have free passage saith the Statute without paying Evill-toll This doth imply say they that if they be prohibited they may be compelled to pay Impositions but that cannot be necessarily concluded it implies indeede somewhat strongly that they may bee prohibited The Statute of 1 R. 2. cap. 12. inhibiteth the warden of the Fleete to deliver any prisoner out of execution unlesse it bee by writ or other commandment of the king It may be as strongly implied out of this Statute that the king may by his commandment without writ 4 5 P. M. fo 162. b. Dyer deliver a prisoner out of execution but the contrary hath alwaies been held The same objection is made and the same answere may be given to another exception in the latter end of this branch Except in the time of war I come to the second Statute against Impositions The second Statute against Impositions the Statute De Tallagio non cōcedendo expounded and cleered which is the Statute de Tallagio non concedendo touching the time of the making of which there is great variety of opinion for it is not for ought I could ever learne found any where upon Record Justice Rastall accounts it to have beene made 51 of H. 3. and with him agrees an old manuscript which I have seen It may well bee for in one of the Statutes you shall finde a pardon to Humfrey Earle of Boham Earle of Hertford and Essex Constable of England and to Roger Bygott Earle of Norfolke and Suffolk marshall of England who both lived in that time Tho. of Walsingham in his history of England saith it was made in the 25 yeere of Ed. 1. hee reciteth the Statute de verbo in verbum as it is in our printed bookes otherwise I should have thought he had meant another Statute against Impositions made indeede 25 Ed. 1 and found upon the Records of that yeere in our printed Statutes at large it is placed last of all the Statutes of E. 1. Though there be some disagreement about the time of the making of this Statute yet they all agree the occasion to be the laying of a great imposition upon Wool the words of Tho. Walsingham Auxit Rex tributum Lanae ad 40s. cum prius ultra dimidiam mercam non daretur tota autem comunitas
yeere publikely read before the people that likewise twice every yeere there should be excommunication solemnly denounced to the breakers thereof that all Statutes and all Judgements given against it shal be held as void that it should be received and allowed as the Common-Law by all such as have the administration of Justice 25 E. 1 cap. 1.2.3.4 and it hath been no lesse than 29 times solemnly confirmed in Parliament I will therefore with so much the more care endeavor to free this Law from all the objections that have been made against it The first objection doth tend to the diminishing of the extent of this Statute The first objection that it extendeth only to Merchant-strangers answered as touching the persons whom it may concerne for it hath been collected out of the latter words of the Statute that it should extend onely to Merchants-Aliens and not to Denizens First it is improbable that the makers of the Law should be more carefull to provide for the indempnity of Merchant-strangers than of English except perhaps they might imagine that English Merchants were already sufficiently provided for by the Common-Law If that were their reason as there could be no other that I can imagine it doth as much maintaine my opinion as if they had been conteined within the Statute Again the words are generall All Merchants and Qui omnes dixerit nullos excipit Besides the Statute is a beneficiall Law in which case particular and speciall words doe alwayes admit a generall extent And therefore to restraine generall words as the Objectors would is against all reason and rule of Law As for the latter words 't is true they doe indeed extend onely to Merchant-strangers but the sense of the first sentence is perfect without this and as long as no absurdity nor contradiction doth follow by interpreting the first words to extend to all Merchants in generall and the latter onely to Merchant-strangers the most ample and beneficiall construction is ever the best as in all other Statutes of this nature But this objection is in my opinion cleerly removed by 2. Statutes made by Ed. 3. in declaration of this very clause The first is 2 Ed. 3. c. 8. the words are All merchants Strangers and Privies may goe and come with their merchandizes into England after the tenure of the Great Charter I take it that Privies in this place being the very word that is found in the Originall which is in French ought to be understood Denizens for otherwise I suppose it would have been joyned to the word Strangers by a conjunction disjunctive which is usuall where the words are of one sense and not by a copulative as here it is Besides I take the word Privy to be derived from the Latine Privatus which signifieth a particular property as res privata a mans owne private estate so mercatores privati our own Merchants That Merchant-strangers should be first named is common in Statutes and Records The next Statute explaining this of magna Charta is 14 Ed. 3. c. 2. The words are VVhereas it is conteined in the Great Charter that all Merchants shall have safe conduct c. VVee grant that all Merchants Denizens and Forreins may freely passe c. which I take to be no other than a meere declaration of Magna Charta The second Objection made against this branch of Magna Charta The second Objection That Magna Charta cap 30. was made only against Taxes within the Land answered is That the meaning thereof was to secure the Merchants not from a new increase of Custome to be imposed by the King to be paid at their entrance or going out of the Ports such as our Impositions are but from certaine petty exactions as Tolls and such like which were then usually demanded of them within the Land by the Townes through which they were to passe and where they sold their Merchandize for the farther remedy of which there were afterwards divers Statutes made which doe evidently manifest that such was the mischiefe and they doe the rather make this collection because of the words buy and sell without evill tolts For say they Impositions are not paid upon the buying and selling of Merchandize but when they are to ship or unship they take hold of the word Toll which properly is an exaction for passage within the land or for sale in markets or faires These objections notwithstanding I hold it somewhat cleere that the meaning of this Statute was principally to secure Merchants touching Impositions My first argument is drawn ab Authoritate from the authority of the wisest and most sage men in greatest places and offices within this kingdom in the times wherein they lived and who also could so much the better judge of the true meaneng of this Statute in that they lived so neere the time of the making thereof even in the beginning of the reigne of the next King save one to him that made this Statute I meane those who made the Ordinance in 5. Ed. 2. heretofore divers times mentioned by me who in alledging their reason against Charta Mercatoria doe amongst other things say that the same was made against Magna Charta What was the cause of the griefe conceived against Charta Mercatoria other then the Impositions by colour thereof laid upon forraine commodities It appeares by the Ordinance that was the onely cause if then Charta Mercatoria were by them adjudged to be against Magna Charta only because by colour thereof new Impositions were raised without assent of Parliament it is evident that they interpreted the Statute of Magna Charta to be made against impositions if they had thought it to have extended onely to petty tolls and exactions within the land as is objected then could it not have extended to Charta Mercatoria As for the words Buy and Sell without any manner of evill Toll I denie not but the words may perhaps have that sense which hath been collected out of them viz. that in buying and selling they should be free also from unjust exactions within the land But I say further that these words without any manner of Evill Toll by the old and rightfull Customes do extend not onely to the next precedent words Buy and sell but also to the former words Enter and returne and more principally to them then to any other For to have provided that they should be free from those petty exactions of tolls in Markets and for passing through Cities and Townes and to leave them subject to Impositions to be laid on at the Kings pleasure had been but a slender securitie This exposition of mine is confirmed by a Record here amongst us of 16. Hen. 3. no longer then seven yeers after the making of this Statute By which it appeares that the King commanded his Officers at the Ports to signifie to all Merchants that they might with safetie enter into his kingdom paying the rightfull and ancient customes Nec timeant