one aide or other in Parliament sometimes a taxe sometimes a Fifteenth sometimes a Subsidie of Tonnage Poundage In the eighteenth yeer he was inforced to go in person into Ireland to settle the state of that Country then in Rebelion all these troubles he had from abroade besides those famous Rebellions here at home which afterwards cast him out of his Seat yet did he never for all this attempt to lay impositions though he wanted not about him to put him in minde of his absolute power For Edward Strafford Bishop of Exeter Lord Chancellor of England in a Sermon made to the Parliament held anno 21. as our Chronicles report did publiquely maintaint that the King was not bound by any Law but was of himself absolute above Law and that to controle any of his actions was an offence worthy of Death at which Parliament all that were present came armed for fear of the King and the Parliament House it selfe was beset with 4000. Archers by his appointment I will speak no more of him then this though he were a King of a weak spirit yet did he not spare to practise upon his people the most grievous things that were Insomuch that he so farre discontented them that they deposed him by common consent in Parliament the onely desperate example of that kinde that our Histories doe afford or I hope ever shall His successor Henry the fourth Hen. 4. in respect he held the Crown by so weak a title had cause to give the people all the content he could possible and yet he was so oppressed with warrs on all sides from France and Scotland but especially by continuall and dangerous invasions made by the Welsh as without the aide of his people for the supply of his treasure it had not been possible for him to have held his Crown on his head and therefore he pressed his people so farre that in a Parliament held the fifth yeere of his reigne they yeelded to him so great and so unaccustomed a tax as that the grantors thereof as our Chroniclers say tooke speciall order that no memory thereof should remaine of record onely to avoide the president and yet the very next yeere following his wants were againe grown so great as his Subjects being assembled in Parliament to give him further ayde did resolve that there was no other way to supply his want then to take from the Clergie their temporall Lands and goods and to give them all to the King which being withstood by the Clergie a resumption of all the guifts of Ed. 3. and Ric. 2. was propounded at last after they had sate a whole yeere they gave him two Fifteenths at this time most of his Counsell and the great Officers of the Kingdome were Spirituall men had they not now if ever a just occasion given them to have put the King in minde of his Prerogative of laying impositions not onely to the intent to have diverted him from the harkning to that desperate motion that had been made against them to all their utter undoings but were they not also bound in duty and conscience in this time of so great necessitie seeing the Parliament knew not otherwise how to supplie the Kings wants to have advised him to have made use of his lawfull right of imposing by which means he might without troubling the Parliament quickly have raised great summes of money certainly it was not because they were ignorant of any such practise in former times For none of them that were then of the Counsell to Henry the Fourth but they lived in Ed. 3. time and most of them doubtlesse were in Ed. 3. time men of age and discretion But in all likelyhood as they knew that Edward the Third did lay impositions so likewise they knew that impositions had been from time to time in those daies condemned as unlawfull and were become hatefull to the people and onely for that reason they did forbeare to advise the King to take that course though the necessitie were never so great Another Prerogative as much concerning the interest of the Subject as this of Impositions namely the abasing of Coyne this King made no scruple at all to put in practise because he held it to be lawfull His Sonne and next Successor Hen. 5. who by his many victories over the French Hen. 5. and his noble disposition and behaviour towards his people was so farre beloved of them as never was King of this Realme more though the Kingdome were now by one degree of discent more firmely setled upon him then it was on his Father who usurped it though also his expence of treasure by reason of that great warre in France were as much as any king's of England ever were though he had troubles also from his Neighbours the Scots and within his owne Realme by Rebellions and lastly though he spared not for supplie of treasure to suppresse above a 100. Priories of Aliens yet neither out of the strength of his love with the people nor in his extreame necessity by reason of these honorable warres in France for the maintenance of which the people would willingly have undergone any burden which he would have laid upon them especially after the victory at Agencourt did he ever so much as attempt the laying of Impositions His Successor Hen. 6. Hen. 6. though indeed of a meek spirit yet he was so followed with troubles within the Realme and from abroad that he was inforced to crave such an extraordinary aide of his Subjects in Parliament as the levieing thereof was the cause of that famous Rebellion of Jack Cade in his time Besides in the 18 yeer of his Reign for the ease of his charge and supply of his wants all Grants by him made of any Lands Rents Annuities or Fees whatsoever since the first day of his Reigne were resumed and this is never yeelded to but in cases of extreame necessity As for Impositions notwithstanding his great wants he thought not of them Edw. 4. Edw. 4. that succeeded him was no lesse free from troubles for he was as you know driven to forsake his Kingdome and to live for a while like a banished man with the Duke of Burgundy He was also inforced in the 5 yeer of his Reign to make a Resumption and the same yeer to abase his Coyne And Comines observeth of him that he obteined a Subsidie of his Subjects in Parliament upon condition that he should himselfe in person undertake the war in France and that only to get the Subsidie he passed the Seas into France but presently returned without doing any thing What should such shifts as these have needed if he might without being beholding to his Subjects lawfully and without controll have raised Treasure by laying of Impositions It is well worth the remembring that which the same Comines speaking in commendation of the frame of this Common-wealth saith That this State is happy in that the people cannot be compelled by the
sibi de Maletoltis quas faciet Rex As touching the word Toll Derivation of the word Toll which they say is to be understood of Toles for passages and for buying and selling in Faires and Markets it behoves me to say something of the derivation thereof the rather because it is very often used in our ancient Statutes and Records in the same sense as it is in this place and by the derivation thereof the naturall and true meaning of the word shall be best understood I hold it therefore to be derived from the Latine word Teolonium which signifies custome by cutting off the latter part of the word and retaining onely the first part Teol by contraction Toll of which manner of derivation there are infinite examples in our language the Latine Teolonium as saith Calvin in his Lexicon Juris Civilis is derived from the Greek Telos which signifies aswell Custom as it doth Finis Hence it is that the Customers are called in Latine Telonarii Thus you see that the genuine and primative signification of our word Toll is no other then Custome upon Merchandizes from the word Toll are come those two barbarours Latine words found in our Statutes and Records Toltum which is the word used in the Record of 16 H. 6. but even now vouched by me and Tolnetum the Originall word in the Statute now in question which I must confesse is also in our Law Latine used by us for Toll in the Market and Toll for passage as may appear by the Register and the Book of enetries But in this place Malum tolnetum properly signifies not a Toll in the common sence but an unlawfull charge laid by the King upon Merchandizes as an increase of Custome according to the Primitive signification which is evidently proved in that it is here opposed to old and rightfull Customes sine omnibus malis Tolnetis per certas antiquas consuetudines wherfore it ought so to have been translated for so it signifies without Impositions by the old and rightfull Custome This exposition and translation is further warranted by the use of the word Maletolt so often found in our ancient Statutes Records which without scruple is derived from the Latine Malum Tolnetum the very word of our Statute I finde it diversly written Maletout Maletolt Maletot and sometimes Maletent but I never finde it any where used in any other sence then for an Imposition by way of increase of Custome upon Merchandizes Sometimes indeed but that very rarely It is taken in the best sence for lawfull and rightfull Custome as the word Imposition sometimes is but then commonly it is accompanied with another word to free it from the worst sence as Droiturel Maletout c. That malis Tolnetis is in this place ought to be translated Impositions may be farther proved by that which I finde in a writer of the french History one Jean Serres who saies That in the time of Philip le Beau king of France which was about the time of Ed. 3. king of England there were rebellions in France because of Impositions laid by the K. which in those days they did saith he call Maletouts the very word then anciently used in Engl. for Impositions as may plentifully appeare by the Statutes and Records of H. 3. Ed. 1. Ed. 2. Ed. 3. The word Imposition for the word Imposition was not used in any French Record Statute or other for ought I have seene till Ed. 3. I finde it once used in Latine 12. Ed. 3. in the Letter which King Edward the Third writ to the Archbishop to excuse him to the people for laying Impositions and as all that Letter throughout is of an eloquent stile so as it seemeth he was carefull to avoid also that barbarous word Malum tolnetum though common and familiar and in stead thereof to use the pure Latine word Impositio Sylvius writing upon Tullies Oration for Marcus Fonteius where these words are used by Tully Imposuit vectigal saith Ita usitatum vulgo est ut vectigalia nova appellent Impositiones The word Vectigal in this place though in a generall sence it may be applyed to any revenew whatsoever yet with the Civill Lawyers it is by way of Excellence commonly used for Custom as may appear by Calvin in his Lexicon Vectigal quod Fisco vel Reipubl portorii nomine pendintur id est pro mercibus quae invehuntur vel evehuntur Sometimes they use to joyne with it for a more cleere distinction the word Portorium as a man would say the revenue of the Ports agreeable with which upon some Records of Henry the Thirds time I have found it to be called Exitus Portuum By this it is evident that Impositio in pure Latine and Imposition in English is the same with Maletolt in French and Malum tolnetum in our Law Latine and they doe all signifie a new increase of Custome and not any thing else Wherefore I conclude that these words sine malis Tolnetis in our present Statute are naturally and properly to be expounded and understood of Impositions and so ought to have been translated and not as they are and although the word Imposition it self as also the word Maletout and Malum tolnetum may be as I have confessed taken as well for a new increase of Custome by a lawfull means viz. by assent in Parliament as for an increase of Custome by the Kings absolute power which is unlawful yet by the words that immediately follow it is evident that this Statute doth onely intend unlawfull impositions that is impositions laid by the Kings absolute power without assent in Parliament otherwise would they not have been opposed to due and rightfull customes as by the words of the Statute they are But because there hath been some exception also taken to the exposition of the word Custom in that sence in which I take it that is for custome upon Merchandize for that the word in the Originall is Consuetudo The word Custom Custuma and Consuetudo expounded which signifies an usage and not Custuma which is the Latine word we now use for Custome upon Merchandize it behoves me therfore to say something touching these words Consetudo and Custuma for the cleering of this scruple This word Consuetudo in his first and proper signification doth I confesse signifie an usage or practise of a thing time out of minde but it is evident by the Records in the time of H. 3. and Ed. 1. this word in a more speciall manner was applied to all or most of the duties belonging to the Crowne by reason of Trade As Consuetudo aquae Thamesis Consuetudo piscis venientis ad vicum Pontis London Consuetudo quae vocatur Scavagium Consuetudo quae vocatur Gauge But yet more specially it was applyed to that dutie which we following the same rule because of the greatnesse of the Revenue doe likewise per Excellentiam call Custom This may appeare by the Pipe Roll
Lawes in the World delight in certainty and abandon incertainty as the mother of all debate and confusion than which nothing is more odious in Law And therfore the rule is Quod certum est retinendum est quod incertum est dimittendum nay further quod incertum est nihil est This is the censure of Law upon all the acts of men which fall under the judgment of the Law If then the Law so judge of the acts of men holding them for nought and voyde that are incertaine how much more then doth the Law require certainty in her own Acts which are to binde all men And if in any of the acts of Law certainty be to be specially expected most of all is it requisite that bounds of limitation and certainty be set between the King and his poor Subject between the mighty and the weak between the Lion and the Lamb. And if in any Case between the King and his Subject more than other this certainty be required most of all it is requisite in Cases where the Common-Law giveth the King a perpetuall profit or revenue to be raised out of the interest and property of his poor Subjects estate either in lands or goods If in all other things the Law as I have said and wherein I suppose you have yeelded to me doe require certainty and limitation and onely in this case where it is most requisite it hath omitted and neglected it we must conclude the Law to be most unreasonable improvident and contrary to it selfe which to say were to conclude it to be no Law Out of these grounds I may then in my opinion safely and with some confidence deduce and maintain this position That all the Revenue which the Common Law giveth to the King out of the interest of the Subject are certain or reduceable to a certainty by a legall course and none left to the Kings pleasure That the Common-Law of England giveth to the King as to the head of the Commonwealth no perpetuall revenue or matter of profit out of the interest or property of the Subject but it either limiteth a certainty therein at the first or otherwise hath so provided that if it be uncertaine in it selfe it is reduceable to a certainty onely by a legal course that is to say either by Parliament by Judges or Jury not by the Kings own absolute will and pleasure Though this Position be grounded upon those sure foundations out of which I have as you perceive drawn it and needs no farther proof yet because you shal see how plentiful the truth is in reasons to maintain it selfe I will further open unto you the particular reasons of this position which are these First the Law requireth certainty in matter of profit The Reasons why the Law requireth such certainty in those Revenues between the King and the poor Subject because to make any man Judge in his own case especially the mighty over the weake and that in a point of profit to him that judgeth were to leave a way open to oppression and bondage Secondly because by reducing it to a certainty the King may know what certainty to expect that so he may order his charge accordingly Thirdly that the Subject may know likewise what he is to pay that so he may know certainly what shall remaine to him as his own Finally that the King may not depend upon the good will of his Subject for his revenue seeing the Law expecteth he should beare the charge but may know in certainty what to claime as due to him and may accordingly compell the Subject to pay it and that the Subject may not be under the Kings absolute power to pay what the King pleaseth which may perhaps extend to the whole value of the Merchandize You see in generall how the Law by requiring certainty in matter of profit between the King and the Subject preventeth many mischeifes which would fall out if the Law were otherwise and therefore without more saying I might here conclude that Custome being due by the Common-Law was and is a sum certain not to be increased at the Kings pleasure by way of Imposition but because there are many other revenues due to the King by the Common-Law as well as Custome if they all or as many as we can call to minde shall fall out to bee as I have said summes certaine and not subject to bee increased at the kings will this will bee a forcible Argument that custome is likewise certain and not to be inhannced at the kings pleasure for this Argument drawne à simili is of great force and the most usuall of any other in debate of things doubtfull in Law Quae Legibus decisa non sunt Index ex his quae decisa sunt statuet de similibus ad similia procedat May it please you to consider in this respect other revenues which the Common-Law of this Land giveth the King Examples of Revenues given by the Cōmon-Law to the King out of the interest of the Subject that they are certaine and according to the rule to decide that which is in question by the same rule and measure by which other things of the same nature have been decided and ordered The Common-Law giveth the King a Fine for the purchase of an original writ Is it certaine it is and ever hath been if the debt or damages demanded amount to above forty pounds the Fine is and ever hath been sixe shil eight pence and no more if to a hundred pounds then ten shillings and no more May the King increase this Fine at his pleasure there is no man that will say he may There is a Fine due by the Common-Law pro Licentia concordandi is it not certainly known and so hath alwayes been to be the tenth part of the Land comprised in the writ of Covenant And is not also the Post-Fine thereupon due certainly known to be once and a halfe as much more as the Fine pro licentia concordandi or Pre-Fine As for example when the Pre-fine is ten shillings the Post-fine to be fifteen shillings and can the King demand any more of the Subject So likewise when in a writ of Right the Demandant alleadging the seisin of his Ancestor will not be compelled to prove the seisin alleaged is he not to tender to the King a summe certain of a demy-mark to have this benefit was it ever more or lesse or can it now be more if the King would these amongst many others are duties belonging to the King by the Common Law from the Subject for the maintaināce of his Charge in the administration of Justice which the Civilians call Vectigal Judiciarium There are also in divers other Cases duties certain belonging to the King by the Common-Law As for example the reliefe for an Earledome is certainly knowne to be a hundred pounds for a Barony a hundred markes for a Knights fee a hundred shillings all which in the Statute of
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
third part of the certaine Revenue of the kingdome was left to him In so much as through these occasions of extraordinary expence and the diminution of his Revenue he was driven to such necessity as his Queen in the â—… yeere of his Reigne was enforced to pawne her Crowne and Jewels to procure money for him as may appeare by the Record of that yeere in the Office of the Clerke of the Pels Nay the king himselfe in these extremities was oftentimes driven to lay his Jewels to pawne for money And in An. 17. did also pledge his Crown for 4000. pound to certaine Merchants of Florence as by the Records of that yeere in the Office of the Lord Treasurers Remembrancer in the Exchequer is manifest By this you may see that this powerfull king wanted not urgent and just occasion if any occasion may be just to have put in practise his absolute power of Imposing and yet as you see it appeares of Record that in the midst of his great wants he tooke an increase of Custome by way of Loane and bound himselfe to repay it It may be here objected that he did lay Impositions What Impositions they were and how to be compared with the Impositions now in question I purpose to tell you when I come to ansâ—…r objections which I have referred to the end of my speech In the meane time I will goe on with my course and urge one Argument more drawne from the actions of our kings touching the increase of Custome A man would thinke that the taking of the increase of Custome by all the kings both one and other with the assent of their Subjects in Parliament and sometimes by way of Prayer and Intreaty for a short time nay the taking of it by way of Loane and binding themselves to repay it and that to have been done by the most powerfull kings in their greatest necessities were Argument enough that they did not beleeve they might justly claime it as their right by their absolute power And yet is not this all For some of them by name Ed. 1. Edward the 1. did not onely take it by assent in Parliament or by way of Loane but as one that buyes for his mony in the Market did give for it a reall and valuable consideration and that to Merchant-strangers of whom there was more colour to demand it as a duty than of his naturall Subjects In proofe of which I produce Charta Mercatoria made Anno 31. Ed. 1. whereby it is recited that in lieu of certaine liberties and immunities granted by the king to the Merchant-strangers as also for the release of Prisage they granted to the king an increase of Custom What were all the special liberties that were granted them I know not nor whether they continue but sure I am that by vertue of that Grant they are at this day free of Prisage paying onely 2s. upon a Tun of Wine by the name of Butlerage which they granted by the same Charter whereas English-men pay Prisage in specie viz. One Tun before the Mast and one Tun behinde And it is very worthy the observation how the same King E. 1. in the same yeer of his reign did command his Customers throughout England That whereas certain English Merchants were as he was informed of their own accords willing to pay him the like increase of Custome which the Merchant strangers had granted unto him so as they might enjoy the like liberties and benefits that neverthelesse they should not compell such English Merchants against their wils to pay it the words are worth the hearing Cum quidam Mercatores de regno potestate nostri ut ipsi dictis libertat having before recited Charta Mercatoria uti gandere de prisis nastris quieti esse possint praestationes Custumas hujusmodi de bonis mercandizis suis nobis dare solvere velint ut accepimus assignavimus vos ad praestationes Custumas praedictas de his qui praestationes Custumasillas gratanter absque cohercione solvere volnerint colligendum ad opus nostrum recipiendum ita tamen quod aliquem Mercatorem de dicto Regno nostro ad hujusmodi praestationes Custumas nobis invite solvendum nullatenus distringatis What stronger inference can there almost possibly be against the Kings absolute power of Imposing than this that he was contented and so specified to all his Officers of the Ports That if the Merchants did of their own accords pay more than their ancient Customes they should have consideration for it But if they themselves were not willing to pay more then they should not be compelled thereunto One other observation I draw from the actions of the kings touching the increase of their custome which is this that those kings which did lay Impositions which as I will shew you by and by was very rarely though it were never but in time of great necessity and but to indure for a short time yet they alwayes did it not with the advice alone of the Merchants as at this day but the Merchants did alwaies solemnly grant an increase of Custome and the kings were alwayes wary for the better justification of their actions to the people in their Commissions for collecting of Custome to recite not onely the great necessity which moved them to take an increase of Custome but also the grant of the Merchants as may appeare by the Records of which we have the copies amongst us I dare confidently say there is not above one or two at the most that are otherwise if the Impositions be of that nature which these are of which we complaine And yet these Impositions also by the grant of Merchants though raised upon never so great a necessitie of State and to indure but for a short time were always complained of by the Commons when they met in Parliament as may appeare amongst other Records by the Parliament Roll of 27. Ed. 3. No. 27. where in a Petition of the Commons exhibited to the King in Parliament are these words Les Commons monstrent coment que les Marchants dyent grant per eux sans assent de Parliament un subsidie de XLs. de sacc de Layn outre le droiturel male tout de demy marke Et prion que soit amend a rest Parliament Car est encounter reason que le Comialtie de lour biens soient per Marchants charges Which I English thus The Commons shew how the Merchants have granted by themselves wihout assent of Parliament â— Subsidie of 40s. upon a sack of Wooll over and above the rightfull custome of halfe a Marke and pray that it may be redressed at this Parliament for it is against reason that the Comminalty should be charged in their goods by Merchants with this agreeth the printed Statute of 36. Ed. 3. cap. 11. in the Statutes at large where you shall finde an expresse Provision against the raysing of Impositions upon Woolls by grant
this high authority of an Ordinance in Parliament the assent also of Merchants was usually joyned therewithall to make it have the cleerer passage with the Subject and further it was never but in the time of warre The first imposition of this kinde by way of Ordinance 7 Ed. 3. R 9. Orig. de Scac. which I finde amongst the Records was 7 E. 3. amongst the Originals of the Exchequer where it is said by way of recitall that the King considering how Merchants which make great gaine by trading ought aswell as others to assist him with treasure for his Warre especially considering how at their intreaty he had placed the staple in England Therefore at his Parliament held at Yorke by the Prelates Earls and Barons it was ordained that the Merchants should yeeld unto the King a Subsidie upon Merchandizes This Subsidie or rather Imposition thus solemnly ordained and in the times of so great necessity was no sooner established then revoked as may appeare by the words imediately following in the same Record whereupon the Merchants of their own accords yeelded and freely gave ten shillings upon a sack of Wooll as much upon three hundred Woolfels and twenty shillings upon last of Lether for a short time by way of Dispensation or Licence towards the maintenance of the Warre The like is found anno 20. E. 3. 20. Ed. 3. Nu. 18. Ro Parl. where the Commons complaining of an imposition of this kinde laid by the Prelates Earles and Barons in Parliament and by the agreement also of Merchants It was not denyed unto them but that their suit was just onely it was answered them that as yet it was not convenient to take it away For that the King had taken up great summes of money of divers Merchants for his present necessity to be repayed out of the said Subsidie and therefore it could not be as yet discharged without great damage to the King and the Merchants But the most materiall Record against Impositions by way of Ordinance is the yeere following where the King in excuse of impositions complained of answereth that they were laid in times of great necessity and by the assent of the Prelates Earles and Barons and other great men and some of the Commons then present neverthelesse his pleasure is that such impositions not duly laid be not drawn into consequence but taken away 21 E. 3. No. 17. There are some others of this kinde but never any that did abide the triall though they have allwayes been accompanied with all such circumstances as were most likely to give them passage without controllment as to be laid in the time of warre to be limited to a short time with consent of Merchants If the authoritie of an Ordinance in Parliament joyned with the assent of Merchants were in those dayes not of force sufficient to uphold Impositions much lesse will an Order of the King and his Counsell out of Parliament uphold them at this day especially after so many yeeres discontinuance Another invention to raise impositions Impositions raysed by way of Loane by Merchants practised by Ed. 3. and in former times was by way of a pretended or feined Loane from the Merchants of so much above the old custome upon Merchandise exported or imported which Loane was never repaid to the Merchant That this was an old practise may be collected by the president 12. of Ed. 2. already cited where the King promiseth that without fiction or delay he would repay them their money implying thereby that sometimes fiction had been used and doubtlesse that loane which was 11. Ed. 2. the very yeere before was such a fained Loane as I speake of for otherwise without question the King would not have released part of it as may appeare by that Record that he did For if the money be bona fide borrowed and truly intended to be repaid then doubtlesse the course is lawfull if otherwise I hold this kinde also as unlawfull as any of the rest Edward the Third did once or twice borrow in this kinde as may appeare by Records already cited to another purpose with which I will not againe trouble you There was yet another Device for raising of Impositions begun indeed by Ed. 1. and condemned in the time of Ed. 2. Impositions raised by grant of Merchants for Liberties granted to them but revived and much practised by Ed. 3. which was also by way of grant of Merchants and yet not altogether the same that I first observed to have been so much practised by Ed. 3. but is much more colourable and tollerable For whereas that was a grant or rather a meere guift without any thing granted back againe in lieu thereof this I now speake of is a solemne grant indeed made by Merchants of an increase of custome for liberties and freedoms and other valuable priviledges and exemptions granted unto them by the King that former was date nihil expectantes this is date dabitur vobis and indeed the recompence that the Merchants had by this Charter granted unto them made their grant to the King lesse subject to controll then otherwise without such recompence it would have been I mean the grant of Merchant strangers so often remembred amongst us by the name of Charta Mercatoria which though it were damned all the time of Ed. 2. from the third yeer of his reign yet was it revived by E. 3. Even that very yeer when he likewise deposed the King his father and usurped to himselfe his Crown For it appeares by the Records that he commanded the same to be levied the very first yeere of his Reigne 1. Ed. 3. Ro. Fin. What hath been said against this kind of Imposition I shall not need here againe to repeate only let me call to your remembrance how this Charter as needing a better prop then his owne strength and Validity in Law was in the same Kings Reigne confirmed by Parliament and onely by that strength continueth in force at this day You have heard five or sixe severall politique Inventions and Devises for the easie drawing on and sweetning of this yoak of Impositions all practised by this prudent and potent King Ed. 3. whose times were indeed so troublesom and his charge every way so excessive as it is no marvell that he left not any way unattempted to raise money without the assent of the Commons whom he always found unwillingly and hardly drawne to matters of charge One other way of Impositions he used Impositions laid by expresse and direct Commandment not coloured or masked under any such pretence or politick Invention as you have heard but plain and direct only his owne expresse commandment to his Officers to collect of every Merchant so much for such a commoditie exported or imported and to answere it into his Exchequer without any recitall in his Commissions of Grant Assent Guift Loane of Merchants Dispensation or Ordinance in Parliament or any other such colourable pretext whatsoever
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
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
Kings and that he may open them and shut them upon what conditions he pleaseth answered and in regard thereof he may open and shut them upon what conditions he pleaseth I answere I. That the Position that all the Ports are the Kings is not generally true For Subjects may also be owners of Ports as may appeare by the Patent Roll of 3. E. 1. M. 1. Parl. where you shall finde that King Ed. 1. granted to the Lords of Port Townes the forfeitures granted to him by Parliament for not duly paying the new Custome of the demy-Marke within every severall Port of theirs where the Merchandizes should happen to be imported or exported But admitting the truth of the position yet is the consequence as weake and dangerous as of any of the rest of their arguments For are not all the gates of Cities and Townes and all the Streets and Highwayes in England the Kings and as much subject to be open or shut at his pleasure as the Ports are Nay whensoever we speake of the Highway in any law businesse we call it via Regia the Kings Highway and the King in his Commissions speaking of London or any other Citie calls it Civitas nostra London or Civitas nostra Exon Doth it follow therefore that the King may lay Impositions upon every man or upon all Commodities that shall passe through any of these places Nay the gates of the Kings owne house for the purpose his Pallace of Westminster are his in a farre neerer degree then any of these may he therefore by his Proclamation impose upon every man that shall passe in or out at Westminster Hall doore a summe of money Doubtlesse he may not because the King is a person publike and his Subjects ought to have accesse to him as to the fountaine of Justice and to the Courts of Justice sitting by his authoritie I make little doubt but his Majestie may upon just occasion cause any of these passages to be shut as he may also the passage at the Havens But when the Passage may without danger to the State be open and that the Subjects may passe his Majestie may not then exact money for their passage For the law hath given the King power over these things for the good of the Common-wealth and not thereby to charge and burden the Subject If the King may not exact money for passage in and out of his Court gates because of the publikenesse of his Person Nor for passage through the gates of Cities much lesse may he for passage out at the Ports which are the great gates of the Kingdom and which the subject ought as freely to enjoy as the ayre or the water Another of their arguments is this The fourth argument that the King is bound at his owne charge to protect Merchants therefore it is necessary it should be in his power to lay moderate Impositions upon Merchandizes for raising of money to defray his charge Answered The king is bound to protect Merchants from spoile by the enemie he ought to fortifie the Havens that their ships may there abide in safety he ought if occasion be to send Ambassadors to forrein Princes to negotiate for them and many the like charges is the King by the Law to undergoe for the protection of his Merchants It is reason therefore that his expence be defraied out of the profit made by Merchants and consequently that he may impose upon Merchandize a moderate charge thereby to repay himself The consequence of this Argument is thus farre true The law expects that the King should protect Merchants therefore it alloweth him out of Merchandize a revenue for the maintenance of his charge which is the old Custome due as at first I said by the Common law But it is no good consequence The Fifth Argument that all forraine Princes have power to impose and if our King had not the like it might be very inconvenient to this State Answered that therefore he may take what he list no more then he may at his pleasure increase that old revenue which the law giveth him for protecting of Subjects in their suits or for protecting Wards c. Another Argument of theirs is this All other Princes of the world may impose upon merchandize at their pleasure and so may make our Merchandizes lesse vendible with them by laying an Imposition upon them to be paid by us when they are brought into their Territories whereby their owne Commodities of the same nature may be sold more to the gaine of their Merchants and our Merchant impoverished or driven from his Trade They may also lay Impositions upon our Merchants fetching Commodities from thence and leave their owne Merchants free from any Imposition in the same case by which their merchants shall reape all the profit by that commoditie in affording it better cheape to us here then we can fetch it and consequently our merchants shall be undone Many the like cases have been put to prove That if the King of England may not impose as other Princes may they shall be able at their pleasure to destroy our trading This I conceive was the same as now it is during all that time from Ed. 3. till Queen Mary and doubtlesse it could not but sometimes during that long space so fall out that forreine Princes did put their power in practise to our prejudice and yet we heare not of any Imposition laid by any of our Kings by their absolute power which may give any man assurance that they tooke some other course to meet with the inconvenience and in deed the meanes are divers which these our Kings used to prevent it First they were carefull in all their Leagues and Treaties with forrain Princes specially to provide for it as may appeare by the Records of the ancient Leagues Neither is there any League of late time that hath not had an Article for provision in this point which Leagues for the most part are upon oath on both parts And yet for further securitie our Kings have always had Ambassadors resident in the Courts of such forrain Princes to put them in minde of their Leagues if upon any occasion our Merchants have in that case happened to be never so little wronged by them if upon complaint of the Ambassador our merchants have not found redresse our Kings have held the League as broken and denounced Warre or seised all the goods of the same Princes Subjects within England and I dare say there have been more warres undertaken by our Princes against forrain nations onely for this cause then for any one other cause whatsoever Besides our Kings have in this case sometimes made use of that their Prerogative of restraint either by prohibiting our Merchants from carrying our Commodities into those parts where they are charged with Impositions that so by the want of our Commodities forraine Princes might be enforced to abate their Impositions laid upon them or by restraining the Merchants of forrain Princes to import or export commodities from hence By which meanes forraine Princes have been compelled to deale favourably with our Merchants for the good of their owne Subjects All these are lawfull and ordinary means to prevent or redresse the inconvenience which may grow by the Impositions of other Princes If all these ordinary means should happen to faile which can hardly so fall out and that the laying of Impositions be indeed the only means that is left to redresse the inconvenience why should not that be done by Act of Parliament as well in these times as it was in 7. H. 7. cap. 7. to take downe the Imposition of Foure Ducates upon a But of Malmsey imposed by the Venetians And as it was done by Queen Eliz. the 19. yeere of her Reigne to prevent the laying of Impositions by forraine Princes upon Salt-fish as may appeare by the printed Statutes of 19. Eliz. cap. 10. But as I have said the providence of the Prince and ordinary power of restraint may very well meet with the inconvenience These are the chiefe reasons made in maintenance of impositions the weaknesse of them and their dangerous consequence you cannot but perceive For by the same reasons Taxes within the Land may be as well proved to be lawfull On the contrary part you have heard the reasons against impositions fortified by many Records and Statutes in the point So as I conclude that Impositions neither in the time of warre or other the greatest necessitie or occasion that may be much lesse in the time of peace neither upon forraine nor inland Commodities of whatsoever nature be they never so superfluous or unnecessary neither upon Merchants Strangers nor Denizens may be laid by the Kings absolute power without assent of Parliament be it for never so short a time much lesse to endure for ever as ours Though this be now my opinion yet am not I so obstinate therein but if yet I heare better reason I will once againe change my minde in the meane while you see I had reason to alter my first opinion as being grounded upon very weak Reasons as now they appeare unto me And so I suppose they doe also unto you FINIS 7o. Julii 1641. AT a Committee of the Honorable House of Commons for Examination of books and of the Licensing and Suppressing of them c. It is Ordered That this Argument upon Impositions be forthwith published in print EDWARD DERING