by which it appeareth hee tooke nothing of merchants by imposition without grant for if he had no doubt they would not have stucke to have put him in minde of it But I pray consider what became of this motion of the Chancellour and Treasurer the proposition had depended in Parliament many yeeres the effect was the people intreated the King to resume all grants he had made from the beginning of his Raigne untill that time being the twenty eight yeare of his raigne excepting such as were made upon consideration valuable that he might so enable himselfe by that meane by which he had impoverished himselfe and the whole Kingdome This tooke effect and the Statute of Resumptions was thereupon made the same yeare which Record because it is not in print and declareth these things with great gravity and authority I will set downe the very text of it so much as is materiall to our purpose Prayen your Commons in this your present Parliament assembled to consider 28. H. 6. Stat. de Resump inturri Lond. not printed That where your Chancellor of your Realme of England your Treasurer of England and many other Lords of your Councell by your high Commandement to your said Commons at your Parliament holden last at Westminster shewed and declared the State of this your Realm which was that ye were indebted 372000. l. which is grievous and that your livelihood in yearely value was but 5000. l. And forasmuch as this 5000. l. to your high and notable State to be kept and to pay your said debts will not suffice therefore that your high Estate may be relieved And furthermore it was declared that your expences necessary to your houshold without al other ordinary charge came to 24000. l. yearely which exceedeth every yeare in expence necessary over your livelihood 19000. l. Also pleaseth it your highnesse to consider that the Commons of your said Realme be as well willing to their power for the releeving of your Highnesse as ever was people to any King of your Progenitors that ever raigned in your said Realme of England but your said Commons been so impoverished what by taking victuall to your houshold and other things in your said Realme and nought paid for it and the quinzime by your said Commons so often granted and by the grant of tunnage and poundage and by the graunt of Subsidie upon Woolls and other graunts to your Highnesse and for lack of execution of justice that your said poore Commons be full nigh destroyed and if it should continue longer in such great charge it could not in any wise be had ne borne wherefore pleaseth it your Highnesse the premisses graciously to consider and that ye by the advice and assent of your Lords Spirituall and Temporall and by the authority of this your present Parliament for the consideration of your high Estate and in comfort and ease of your poore Commons would take resume seise and retaine in your hands and possession all honours c. This was very plaine dealing by the people with their King and this is the successe of the demaund of supply and support had in those daies being required in point of gratification without any recompence or retribution for it Thus then wee have cleared this point that betweene 50. E. 3. and 4. Mariae there was not one imposition fet without assent of Parliament Queene Mary in the fourth yeare of her raigne upon the wars with France set an Imposition upon Clothes for this consideration that the custome of Woolls was decayed by reason for the most past they were made into Clothes which affoorded little custome for that which in Wooll paid for custome and subsidie 40. s. made into Cloath paid but 4. s. 4. d. To recompence this by an indifferent equality there was set upon a Cloath 5. s. 6. d. which imposition did not make up the losse sustained in the custome of Wooll by 13. s. 4. d. in 40. s. This was Iustum but not Iustè This religious Prince invironed with infinite troubles in the Church and Common-wealth and much impoverished by her devotion in renouncing the profits of the Church lands that were in the Crowne by the suppression was the first that made digression from the steps of her worthy Progenitors in putting on that imposition without assent of Pasliament for that very consideration of the losse of custome by turning of Wooll to Clothing came into treatie in the 24. yeare of E. 3. when the art of clothing began first to be much practised in this Kingdome and then in the recompence of the losse so sustained in the decay of custome of Woolls there was set upon a Cloath by act of Parliament above the olde custome 14. d. for a Denizen and for an Alien 21. d. This is recited in a Record in the Exchequer 48. E. 3. rot 2. R. 〈◊〉 origin Orig. in Scacc. 48. E. 3. Ro. 2. R. Thes 1. El. Dyer so 165. But I pray you examine how this imposition of Queen Mary was digested by the people We see in the Case in my Lord Dier 1. Eli. fo 165. that the Merchant found great griefe at it and made exclamation and suit to Q. Eliz. to be unburdened of it The very reason of their griefe expressed in that case is because it was not set on by Parliament but by the Queenes absolute power So that was the ground of that complaint the very point of right This cause was referred to all the Judges to report whether the Queene might set on this imposition without assent of Pailiament They divers times had conference about it but have not yet made report for the King which is an infallible presumption that their opinions were not for him for it is a certain rule among us that if a question concerning the Kings prerogative or his profit be referred to the Judges if their opinions be for the King it will bee speedily published and it were indiscretion to conceale it but if there be no publication then we make no doubt but that their opinions are either against the King or at least they stick and give none for him The same Queene Mary upon restraint of bringing in of French commodities occasioned by the then wars with France set an imposition upon Gascoigne Wines which continueth yet So the kingdome of England by the injustice of that Prince was clogged with those two heavy impositions contrary to the right of the Kingdome and the acts of her Progenitors Queene Elizabeth set on that upon sweet Wines which grew also upon the occasion of the troubles with Spaine That upon Allome was none it was rather a Monopolie to Master Smith the Customer of London for the ingrossing of all Allomes into his owne hands for which priviledge he gave a voluntary imposition upon that commodity It was like the priviledge granted to Iohn Pechey of the sweet Wines by E. 3. for which the Patentee was called into the Parliament house 50. E. 3. and was
And this was the opinion of Sir Iohn Fortescue that reverend and honourable Judge a very learned professor of the Common Law and chiefe Justice of the Kings Bench Fortescu de laudibus Leg. Ang. cap. 9. in the time of Henry 6. â—â—s words are these in his book De laudibus Legum Angliae cap. 9. Non Potest Rex Angliae ad libitum leges mutare regni sui principatu namque nedum regali sed politico ipse dominatur Si regali tantum praeesset iis leges mutare posset tallagia quoque cateraonera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigorem sed longè aliter potest Rexpoliticis imperans quia nec leges ipse sine subditorum assensu mutare poterit nee Subjectum populum renitentem enerare peregrinis impositionibus In which place I must intepret unto you that peregrinae impositiones be not strange and unheard of impositions as was urged by the worthy gentleman that spake last but impositions upon traffique into and out of forrain Countreyes which is the very thing in question Fortescue de laud. Leg. Ang. cap. 36. further in the thirty sixth Chapter he sayeth of the King of England Neque Rex ibidem per se aut ministros suos tallagia Subsidiae aut alia quaevis onera imponit ligeis suis aut leges corum mutat velnovas condit sine concessione vel assensu totius regni sui in Parliamento So he maketh these two powers of making Law and imposing to be concomitant in the same hand and that the one of them is not without the other He giveth the same reason for this as we doe now but in other words because as he saith in England it is principatus mixtus politicus the King hath his Soveraigne power in Parliament assisted and strengthened with the consent of the whole kingdome and therefore these powers are to be exercised by him only in Parliament In other Countreyes they admit the ground of the Civil Law quod principi placuerit legis habet vigorem Because they have an absolute power to make Law they have also a power to impose which hath the force of a Law in transferring property Ph. Com. l 4 cap. 1. l 5. ca. 8. Philip Comynes that lived at that time in his fourth book the first chapter the fifth booke the eighth chapter taketh notice of this policie of England and commends it above all other States as setled in most security And further to our purpose layeth this ground That a King cannot take one penny from his Subjects without their consent but it is violence And you may there note the mischiefs that grew to the kingdome of France by the voluntary impositions first brought in by Charles the seventh and ever since continued and encreased to the utter impoverishment of the Common people the losse of their free Councell of three estates And if this power of imposing were quietly setled in our Kings considering what is the greatest use they make of assembling of Parliaments which is the supply of money I doe not see any likelihood to hope for often meetings in that kind because they would provide themselves by that other meanes And thus much for my first reason grounded upon the naturall constitution of the policie of our kingdome and the publike right of our nation 2. Com. Law For the point of Common Law which is my second Reason it hath been well debated and nothing left unspoken that can be sayd in it and therefore I will decline to speak of that which other men have well discussed and the rather for that there is nothing in our Law-book directly and in point of this matter neither is the word imposition found in them Dier 1. E. 165. untill the case in my L. Dier 1. Eliz. 165 for we shall finde this businesse of an higher strain and alwayes handled elsewhere as afterwards shall appeare yet I will offer some answers to such objections as have been made on the contrary in point of Common Law and have not been much stood upon by others to be answered The objections that have been made are these that from the first Book of the Law to the last no man ever read any thing against the Kings power of imposing No judgement was ever given against it in any of the Kings Courts at Westminster Other points of prerogative as high as this disputed and debated his excesse in them limited as in the book of 42. 42. Ass p. 5. Ass pl. 5. where the Judges took away a Commission from one that had power given by it to him under the great Seale to take ones person and to seise his goods before he was indicted 1. 2. E. Dier 175. So Master Scrogs case 1. 2. El. Dier 175. the power of the King in making a Commission to determine a question of right depending between two parties notably debated and ruled against the King that hee could not grant it To this I answer that causes of this nature of which the question now handled is have ever been taken to be of that extraordinary consequence in point of the Common right of the whole kingdome that the State would never trust any of the Courts of ordinary justice with the deciding of them but assumed the cognisance of them into the high Court of Parliament as the fittest place to decide matters 2. Ed. 3.7 so much concerning the whole body of the kingdome As 2. Ed. 3.7 it appeares that Ed. 1. had granted a Charter to the men of great Yarmouth that all the ships of Merchants comming to the port of Yarmouth should land their goods at their haven and not at any other haven at that port as at Garneston and little Yarmonth which were members of that port This was very inconvenient for the Merchants and a great hurt to traffique and therefore the Charter was questioned in the time of Ed. 2. and adjudged good by the Counsell but the parties not contented with this judgement in the second yeer of King E. 3. by an order in Parliament made upon a petition there exhibeted against this grant brought a Scire facias out of the Chancery returnable in the kings bench to question againe the lawfullnesse of the Patent and in that suit the cause was notably Debated and those reasons much insisted upon that have been enforced in this case As that of the Kings power in the custodie of the ports But the matter so depending in the ordinary Court of justice a Writ came out of the Parliament and did adjourne it thither againe where it gave occasion of a good Law to be made to prevent the like grants and to make them voyd notwithstanding any judgement given upon them and to make such judgements also void The Statute is 9. E. 3. c. 1. 9. E. 3. c. 1. everyal en and denizen may
carry his Merchandise where it pleased him notwithstanding any Charter granted or judgment thereupon 16. 〈◊〉 Reâ— 1. And in the Parliament rolles 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 judgement in the Exchequer and declares to the Kingdome that notwithstanding the great wonder made by some men nothing hath been done in this businesse by those that serve in the Parliament but in imitation of their worthy predecessors in the very like case In the second yeere of H. 4. the Commons shew that in the time of R. 2. by the meanes 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 certaine Merchants of Bristow and other places passage had been taken for wines otherwise than 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 judgement given in the Exchequer or other ordinance made by the said Treasurer contrary to the ancient usage which petition the King granted and the judgement thereupon became voyde and the prisage wine hath been paid contrary to the judgement ever since In 1. 1. El. Dier 165. El. Dier 165. upon the complaint made by the Merchants of the impositions set upon cloth by Queene Mary by her absolute power without assent of Parliament the cause was thought too weighty to bee 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 yeere books for there is nothing of it Another objection was this which was made in the last argument viz. That Custome is originally due by the common Law of England It can then have no other ground or cause but meerly by the Kings royall prerogative as a right and duty originally belonging to his Crowne which if it be it must necessarily follow he may impose for that is but the exercising of that right To prove this was alledged the case 39. 39 E. 3.13 E. 3.13 by which case it appeareth that King Iohn had a custome of eight pence on a tonn of wine in the part of South-hampton but the book doth not tell you that the King had it by prerogative and he might have it aswell otherwise as by prescription or convention which shall rather be intended by reason of the certainty of the summe paied for if it were by prerogative he might take sometimes more sometimes lesse at his will the right being indefinite and the quantity limitted onely by his owne Discretion 18. El Dier 352. A common person may have such a custome certaine as 18. El. Dier 352. the Maior of London hath the twentieth part of salt brought into the City by Aliens 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 customes of the City of London So it appeareth Dier 43. that Iohn of Britaine had Custome of the ships that arrived at his port of little Yarmouth worth twenty pounds per an And these instances doe inferre that a Custome may bee otherwise then by prerogative and therefore it is no good argument to conclude the King had such a custome Therefore he had it by prerogative The booke in 30. H. 8. Dier 43. 30. Hen. 8. Dier 43. was much pressed on this point which sayeth that custome belonged to the King at Common Law and doth instance in wooll woll fells and leather begun at the Common Law but abridged by the Satute of 14. E. 3. ca. 21. stat 1. 14. Ed. 3. c. 21. statn r. but this appeareth to be a great errour and mistaking in the booke for we doe finde that that custome of woolls wooll-fells and Leather was begun by a grant in Parliament as appeareth in statute 15. E. 1. ca. 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 Earles Barons and all the Commonalty of land c. Novem. 3. Ed. 1. the King recited in his letters patents That Prelati magnates actota Communitas mercatorum Regni granted this new custome 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 foure pence in the pound over due custome payd by Merchants Aliens according to the purport of the Charta mercatoria 31. E. 1. Rot. char 31. E. 1. nu 44. in Turri by meere 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 meerely voyd to binde in succession And yet the Merchants Aliens doe 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 Custome 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 binde their successours in matters of traffique for their contracts are not ruled by the Common law of the Land but by the law of Nations per â—egem Mercatoriam as the book case is 13. Ed. 4.10 and there was a good consideration given them by the King for this encrease of custome as discharge of prise Wines for two shillings the Tonn 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 payeth now but two shillings the Tonn for prisage whereas it standeth an English man in much more so as the rule of commutative justice maketh the contract availeable to the King against the Merchants because he parteth with part of his prisage to the Merchant and maketh it availeable to the Merchant against the King because he giveth him encrease of custome above that is due by law 27. E. 3. c 26 But the statute of 27. E. 3. cap. 26. heretofore cited doth make this point cleare without scruple which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of custome 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 custome by Prerogative you goe directly against his meaning for it appeareth by that which presently followed this grant that the King took this encrease of
matter in question and therefore I will set it downe as I finde it Verbatiâ—n in the record in the tower Ensement novelles customes sont levies ancients enhaunces come sur levies drapes vine aver du pcis aut choses purguoy les Merchants veynont pluis vilement meynes de bien menynont en la terre les Merchants estrangers de murront pluis longment que ils soloyent faier pur le quel demoure les choses sont le pluis enhaunces que ils ne Soloyent estre al dammage de roy de son people Nouâ— ordonomus que touts manners de male tolls levies puies de Coronement de Roy Ed. faier de Roy Henry 〈◊〉 â—â—â—irement oustes de tout estreints pur touts jours nient â—â—â—iristeant le Chartre que le dict Roy Ed. fist as Merchants aliens pur ceo que il fuit fait contra le grand Char. encountre le Franchise de la City de Londres sans assent de Baronage c. Savant neque dont al Roy le custome de leynes peulx de quirs c si aver les do et By this Law is recited that by the leving of new coustomes and by the raising of old traffique was destroyed and all things made deare And therefore all new impositions and customes were dscharged Chartâ mercatoriâ by which custome was encreased on aliens was taken away and the reason alledged Because it was sans assent de Baronage and against the great Charter And this is further which this clause Saving to the King his custome of wooll woll-fells and Lether Si aver les do et Great warres have been raised against the credit of this Law in the Parliament house and three things have been especially objected against it First that it is no Law for it was enforced upon the King by some of the nobility that were too strong for him the Realme being then in tumult and mutiny about the quarrell of Peirce of Gaveston so never had the Kings free consent but he gave way unto it for feare of greater mischiefe Secondly that in it selfe it is unjust as in taking away the custome granted to the King by Charta mercatoria 31. E. 1. and in making doubt whether the King should have the custome of wools c. by those words Saving it to him Si aner les do et The third objection is that if it were a Law it is repealed To these I give particular answers To the first that this statute was made both at the instance of the King and people with a purpose and intention on all parts to settle things in a stay and order both in the Kings house and Common-wealth the King and his nobles standing in good termes when this businesse was taken in hand and it was begun and ended with great solemnity and ceremony for the King in the third yeare of his reigne gave Commission under his great Seale to 32. Lords spirituall and temporall Com. 16. Mâ—r. 3. E. 2. Rot. ordin 5. E. 2. of which there were eleven Bishops eight Earles and thirteene Barons they being as Committees of the higher House to devise ordinances for the good government of of his house and his Realme In which Commission he doth for the honour of God the good of him and of his Realme of his freewill graunt to the Prelates Earles and Barons and others elected by the whole Kingdome full power to ordaine the State of his house and Realme by such ordinances as by them should bee made to the honour of God the honour and profit of holy Church the honour of himselfe the profit of him and his people according to right and reason and the oath hee made at his Coronation These joyning with others of discreet Commons in Parliament and taking every of them a solemn oath for their sincere demeanor in the businesse did make this and other ordinances which were so well liked of by the King that after they were made hee took an oath to observe them Pullic 3. Kal. Oct. 5. E. 2. Rot ordin Pâ—t 5. Oct. 5. E. 2. Rot. ordin and caused them to be published in Pauls Church-yard by the Bishop of Salisbury by denouncing excommunication against all that should wilfully infringe them And by his Letters Patents dated 5. Oct. 5. regni sui did send them through the Realme to be published and from thenceforth to be observed thereby signifying his great liking and approbation of them after which they had the force and power of Lawes given unto them in the Parliament in the fifth yeere of his raign The second obiection which is the injustnesse of the law instanced in two points the taking away of Charta mercatoria and the doubting of the Kings right to the custome of wolls woll-fells and Lether c. To the first of these I deny it to be unjust but to be according to the law of England and liberty of the Kingdome for that Charter did containe in it divers grants of things which were not in the power of the King to grant without assent of Parliament as the triall per medietatem linguae and other things tending to the alteration of the Law and burdening of the people and therefore that Charter never had his undoubted and setled force until it was confirmed by act of Parliament but lay asleep almost twenty yeers together without being put in execution between 5. E. 2. and 27. E. 3. when it was confirmed for the doubt that is supposed to be made in the statute of the Kings right to the custome of wooll wooll-fells and Lether I take it there is no such doubt made For the words Saving the kings right to the custome of woolls si aver les do et have this construction that is at such times as hee ought to have it so the word si hath the signification of quando for it had been a folly to have made a Saving of that of the right whereof they had doubted neither is it likely but that they would have taken it away if it had not been lawfull but there was no colour to doubt of the right of it for it was given by act of Parliament and ever continued in force without challenge or exception to the lawfullnesse of it The third objection is That this Statute is repealed To this I plead Nullum vale recordum If it be repealed it must be by Act of Parliament for unumquodque dissoluitur iâ—sdem modis quibus est colligatum I and others have searched the Records of the Realme and endeavoured by all means to informe our selves of the truth herein and we can finde no Act of Parliament of repeale The truth is some Kings finding these Lawes not to sort to their wills and humours have endevoured to suppresse them but they didnever yet obtaine a repeale of them by Act of Parliament But it is further urged That although there were no formall repeale of the Law yet it was
never put in execution as a Law but even presently upon the making was rejected and use and practise went quite against it And for instance hereof a Record was vouched that E. 2. held himselfe so little bound by it as that in the 11 yeare of his raigne he set an imposition without assent of Parliament upon Wooll Wooll-fels Leather Wines Cloth averde pois and divers other kinde of Merchandizes To this I answer that if it were true that a distinct and impotent King as he was did contrary to the Law doth this make the Law void and no Law But if wee looke into the whole Record and skanne this action of E. 2. from the beginning of it unto the end we shall finde it a very good instance to prove the practise and execution both of this Law of 5. E. 2. and of that in 25. E. 1. for it is true that E. 2. in the 11 yeare of his raigne did borrow of the Merchants a certaine summe of money above the due custome of Wooll Wooll-fels Wine averdepois Leather and such other goods imported and exported But it appeareth by the Record hee tooke it but for one yeare hee tooke it by the advise and counsell of the Merchants and he took it per viam mutui as a loane The direction of the Writ is Rot. claus 11. E 2. Collectoribus mutui nobis per mercatores alienigenas indigenas de certis rebus Merchandisis usque ad certum tempus faciendi This was done in good tearmes he did not claime it as his right but did borrow it which I doe thinke is a good evidence against his right But what became of this the State would not abide it for all these faire shewes And therefore afterwards the King sendeth out other Writs by which he dischargeth all merchandizes of this loan saving onely Wooll Wooll-fels and Leather and for the loane taken upon those commodities it was limitted to continue but untill Michaelmas after and good security was given to the Merchants by the Customers to pay themselves by way of defalcation out of the Customes which should be due after Michaelmas those summes which were so borrowed of them The words of the Record are worth the observing Rot. finium 11. E. 2. Cum pro expeditione guerrae Scotiae alijs arduis urgentibus necessitatibus nobis multipliciter incumbentibus pro quarum exoneratione quasi infinitam pecuniam refundere oportebit pecunia plurimum indigeamus in presenti nuper pro eo quod exitus regni terrarum nostrarum simul cumpecunia nobis in subventione praemissorum tam per Clerum quam Communitatem regni nostri concessa ad sumptus praedictos cum festinatione qua expediret faciendos non sufficiunt exquirentes vias modos quibus possemus pecuniam habere commodius decentius pro praemissis de consilio advisamento quorundam mercatorum tam alienigenarum quam indigenarum viam invenimus infra script viz. And so setteth down the manner of the loan and the security for the payment of it This I take it was neither an imposition nor a wrong in any respect Also by the first Record it appeareth that the loane set on Wines averdepois and such other commodities besides Wooll Wooll-fels and Leather were presently discharged by E. 2. which sheweth they were taken to be within the intent of the Statute of 25 E. 1. The fift Statute alledged on the behalfe of the subject is that 14. 14 E. 3. Stat. 1. ca. 21. E. 3. Stat. 1. ca. 21. by which the Commons pray the King to take no more then th' old custome of the halfe marke The King prayeth aide of the Commons for a time above the custome upon his necessity of warres And the conclusion is that by that Act the King doth grant that after the feast of Pentecost twelve moneths following he will take no more of Wools Wooll-fels Leather but the old Custome and doth promise to charge set or assesse upon the Custome but in manner as aforesaid The sixth Statute is 14. E. 3. Stat. 2. ca. 1. 14 E. 3. stat 2. ca. 1. The King doth grant by way of Charter to the Prelates Earles Barons Commons Citizens Burgesses and Merchants that they be not from thenceforth charged nor grieved to make any aide or sustaine charge if it be not by the common consent of the Prelates Earles Barons and other great men and Commons of the Realme and that in Parliament These two Statutes grew upon occasion of an Imposition set on Wooll by the King without assent of Parliament Little hath beene objected against them but onely to the first that it was obtained of grace and not upon instance of right which they gather out of the words of the Law which are The Commons pray the King that he would stablish that from henceforth no more but the old custome be taken The like reason may be made against the King out of the same words in the same Law for the King in the same Act prayeth the Commons to give him an Imposition upon Wools for a time above the old Custome but the Record of the Petitions exhibited in Parliament upon which these two Lawes are made cleareth the objection The first was delivered by the Lords in this forme Rot. paâ—l 13. E. 3. num 5. Les grands volunt that the maletoll set on Wools newly be altogether abated and that the old custome beheld and that they may have this in point of Charter and by inrollment in Parliament This word volunt had beene too high for a suit of grace and therefore must be intended of right The Commons Petition in forme is somewhat humble but in effect and purpose is rough and sterne Rot. parl 13. E. 3. nu 13. the words are these The Commons pray that the maletoll of Wools be taken as it was used in ancient time which is now enhaunced without the assent of the Commons and grandes as we conceive and that if it be otherwise demanded that every one of the Commons may arrest them without being challenged According to these Petitions the first of these two Lawes is by inrolment in Parliament the second is in forme of a Charter the first doth expresse some special commodities the second doth reach generally at all The seventh Law directly touching this point 14. E. 3. sâ—at 2. ca. 2. is that 14. E. 3. stat 2. ca. 2. The King doth grant according to the great Charter that all Merchants denizons and forrainers may without let safely come into the Realme of England with their goods and Merchandizes and safely tarry and safely returne paying the Subsidies customes and other profits reasonably due Upon the words of this Law was great advantage taken in this that besides custome and Subsidy which comprehend all the certaine ordinary duties the King hath upon the wares goods of Merchants there are other profits spoken of to be due
them must be qualified ere they be confessed but the inference and argument made upon them I utterly deny for in it there is mutatio hypothesis and a transition from a thing of one nature to a thing of another As the premisses are of a power in the King only fiduciary and in point of trust and government the conclusion inferres a right of interest and gaine Admit the King hath Custodiam portuum yet hee hath but the custody which is trust and not Dominium utile He hath power to open and shut upon consideration of publike good to the people and State but not to make gaine and benefit by it The one is protection the other is expilation Portus sunt Publici The Ports in their owne nature are publike free for all to goe in and out yet for the common good this liberty is restrainable by the wisdome and policy of the Prince who is put in trust to discerne the times when this naturall liberty shall be restrained In 1. H. 7. fo 10. 1. H. 7.10 in the case of the Horentines for their Allome the Lord chiefe Justice Hussey doth write a Case that in the time of E. 4. a Legate from the Pope being at Calice to come into England it was resolved in full Councell as the booke saith before the Lords and Judges that he should not have licence to come into England unâ—esse he would take an oath at Calice that he would bring nothing with him that should be prejudiciall to the King and his Crowne The King by the Common Law may send his Writ Ne exeas regnum to any subject of the Realme but the surmise of the Writ is Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clam destinas te divertere quamplurima nobis coronae nostrae preiudicia prosequi Fitzh N. B. 85. b. Fitzh N. B. 85. b. So in point of government and Common good of the Realme he may restraine the person but to conclude therefore he may take money not to restraine is to sell government trust and common justice and most unworthy the divine office of a King But let us compare this power of the King in forraigne affaires with the like power he hath in Domestique government There is no question but that the King hath the custodie of the gates of all the Townes and Cities in England as well as all the Ports and Havens and upon consideration of the Weal publike may open and shut them at his pleasure As if the infection of the sicknesse be dangerous in places vicine to the City of London the King may command that none from those places shall come into the City May he therefore set an imposition upon those that he suffereth to come into the City So if by reason of infection he forbid the bringing of Wares and Merchandizes from some Cities or Townes in this Kingdome to any great Faire or Mart Shall he therefore restraine the bringing of Goods thither unlesse money be given him by way of imposition The King in his discretion in point of equity and for qualifying the rigour of the Law may enjoyne any of his Subjects by his Chauncellor from suing in his Court of Common Law May he therefore make a benefit by restraining all from suit in his Courts unlesse they pay him an imposition upon their suits 2. E. 3.7 In 2. E. 3. in the case of the Earle of Richmond before cited the King had granted unto the men of great Yarmouth that all the Ships that arrived at the Port of Yarmouth which consisted of three severail Ports great Yarmouth little Yarmouth and Gerneston should arrive all at great Yarmouth and at no other place within that Port. The lawfulnesse of this Patent being in question in the Kings Court it was reasoned in the Kings behalfe for the upholding of the graunt as it is now that the King had the custodie of the Port he might restrain Merchants from landing at all in his Kingdome Therefore out of the same power might appoint where and in what Haven they should land and in no other This Patent was demurred on in the Kings Bench as being granted against the Law but the Case depending was adjourned into Parliament for the weight and consequence of it and there the Patent was condemned 9. E. 3. cap. 1. and a Law made against such and the like graunts The Presidents that were vouched for maintenance of this power of restraint in the King were foure produced almost in so many hundred yeares Rot. parl 2. E. 1. n. 16. Rot. fin 2. E. 1. n. 17. Rot. claus 10. E. 3. dor 31. Rot. claus 17. H. 6. in dors whereof two were in the second yeare of E. 1. one in the tenth yeare of E. 3. another in the seventeenth yeere of H. 6. since which time wee heare of none but by Act of Parliament as they had beene usually and regularly before To these I will give answer out of themselves out of the common law out of divers statutes and out of the practise of the Common-wealth The restraint in the time of E. 1. the one of them was to forbid the carrying of wooll out of the Realme the other was to forbid all Traffique with the Flemings That of 10. E. 3. was to restraine the exportation of ship-timber out of the Realme That of 17. H. 6. to prohibite Traffique with the subjects of the Duke of Burgundy These presidents are rare yet they have in them inducements out of publique respects to the Common-wealth for the rule of Common law in this case I take it to bee as the reverend Judge Sir Anthony Fitzherbert holds it in his writ of Ne exeas regnum in Na. Br. Fitzh N. B. 85. that by the Common law any man may goe out of the Kingdome but the King may upon causes touching the good of the Common-wealth restraine any man from going by his Writ or Proclamation and if hee then goe it is a contempt This opinion of his is confirmed by the booke Dier 1. El. 165. Dier 13. El. 296. 1. Eliz. fol. 165. Dier 12. 13. Etiz Dier 296. In like manner if a subject of England be beyond sea and the King send to him to repaire home if hee doe it not his lands and goods shall bee seised for the contempt and this was the case of William de Brittain E. of Richmond 19. E. 2. 19. E. 2. Hee was sent by the King into Gascoine on a message and refused to returne for which contempt his goods chattels lands and tenements were seised into the Kings hands 2. 3. P. M. Dier 128. the Record is cited 2. 3. Ph. M. in my L. Dier fol. 128. B. and the law there held to bee so at that time upon a question moved in the Queenes behalfe against divers that being beyond the seas refused to returne upon commandment sent unto