advance the Kings power and prerogatjve Bracton l. 1. c. 8. but you make him no King for as Bracton saith Rex est ubi dominatur lex non voluntas So we see that the power of imposing and power of making Laws are convertibilia coincidentia and whosoever can do the one can do the other And this was the opinion of Sir John Fortescue that reverend and honorable Judge a very learned professor of the Common Law and Chief Justice of the Kings Bench Fortesc de laudibus Leg. Ang. c. 9. in the time of Henry 6. His 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 caetera onera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigorem sed longè aliter potest Rex politicis imperans quia nec leges ipse sine subditorum assensu mutare poterit nec subjectum populum renitentem onerare peregrinis impositionibus In which place I must interpret 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 traffick into and out of forain Countries Fortesc de laud. Leg. Ang. cap. 36. which is the very thing in question Further in the thirty sixth Chapter he saith of the King of England Neque Rex ibidem per se aut ministros suos tallagia Subsidia aut alia quaevis onera imponit ligeis suis aut leges corum mutat vel novas 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 do now but in other words because as he saith in England it is principatus mixtus politicus the King hath his soveraign power in Parliament assisted and strengthened with the consent of the whole Kingdom and therefore these powers are to be exercised by him only in Parliament In other Countries 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. cap. 8. Philip Comines that lived at that time in his fourth Book the first Chapter the fifth Book the eighth Chapter taketh notice of this policy of England and commends it above all other States as settled in most security And further to our purpose laieth 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 Kingdom 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 and the loss of their free Councel of three Estates And if this power of imposing were quietly setled in our Kings considering what the greatest use they make of assembling of Parliaments which is the supply of money I do not see any likelihood to hope for often meetings in that kind because they would provide themselves by that other means And thus much for my first reason grounded upon the natural constitution of the Policy of our Kingdom and the publike Right of our Nation 2 For the point of Common Law Com. Law which is my second reason it hath been well debated and nothing left unspoken that can be said 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 until the case in my L. Dier 1. Diec. 1. E. 165. Eliz. 165. for we shall finde this business of an higher strain and alwaies handled elsewhere as afterwards shall appear 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 excess in them limited 42. Ass p. 9. as in the book of 42. Ass pl. 5. where the Judges took away a Commission from one that had power given by it to him under the great Seal to take ones person and to seise his goods before he was indicted So Master Scrogs case 1 2 E. Dier 175 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 he could not grant it To this I answer That cases 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 Kingdom that the States would never trust any of the Courts of ordinary Justice with the deciding of them but assumed the cognisance of them unto the high Court of Parliament as the fittest place to decide matters so much concerning the whole body of the Kingdom as 2. Ed. 3.7 it appears that Ed. 1. had granted a Charter to the men of Great Yarmouth that all the ships of Merchants coming 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 Yarmouth which were members of that Port. This was very inconvenient for the Merchants and a great hurt to Traffick and therefore the Charter was questioned in the time of Ed 2. and adjudged good by the Council But the parties not contented with this judgment in the second year of King E. 3. by an order in Parliament made upon a Petition there exhibited against this Grant brought a Scire facias out of the Chancery returnable in the Kings Bench to question again the lawfulness 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 custody of the Ports But the matter so depending in the ordinary Court of Justice a Writ came out of the Parliament and did
we see they did not venture to put in practice this supposed Prerogative It further appeareth in that Statute that the people among those reasons they alleadged why they were not able to retain the King gave this for one that they had so often granted him Tonnage and Poundage upon Merchandizes by which it appeareth he took nothing of Merchants by imposition without grant for if he had no doubt they would not have stuck to have put him in minde of it But I pray consider what became of this motion of the Chancellor and Treasurer The proposition had depended in Parliament many years the effect was the people entreated the King to resume all grants he had made from the beginning of his reign untill that time being the twenty eighth year of his reign excepting such as were made upon consideration valuable that he might so enable himself by that mean by which he had impoverished himself and the whole Kingdom This took effect and the Statute of Resumptions was thereupon made the same year which Record because it is not in print and declareth these things with great gravity and authority I will set down the very Text of it so much as is material to our purpose Prayen your Commons in this your present Parliament assembled to consider That where you Chancellor of your Realm of England 28. H. 6. Stat. de Resump in Turri Lond. not printed your Treasurer of England and many other Lords of your Council by your high commandment 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 yearly 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 releived And furthermore it was declared That your expences necessary to your houshold without all other ordinary charge came to 24000 l. yearly which exceedeth every year in expence necessary over your livelihood 19000 l. Also pleaseth it your Highness to consider that the Commons of your said Realm be as well willing to their power for the releiving of your Highness as ever was people to any King of your Progenitors that raigned in your said Realm of England But your said Commons been so impoverished what by taking victual to your houshould and other things in your said Realm and nought paid for it and the quinzime by your said Commons so ofren granted and by the grant of Tunnage and Poundage and by the grant of Subsidy upon Woolls and other grants to your Highness and for lack of execution of Justice that your said poor Commons be full nigh destroyed and if it should continue longer in such great charge it would not in any wise be had ne born Wherefore pleaseth it your Highness the premisses graciously to consider and that ye by the advice and assent of your Lords Spiritual and Temporal and by the authority of this your present Parliament for the consideration of your high Estate and in comfort and ease of your poor Commons would take resume seise and retain in your hands and possession all honors c. This was very plain dealing by the people with their King and this is the success of the demand of supply and support had in those days being required in point of gratification without any recompence or retribution for it Thus then we have cleared this point that between 50. E. 3. and 4. Mariae there was not one Imposition set without assent of Parliament Queen Mary in the fourth year of her reign upon the Wars with France set an Imposition upon Clothes for this consideration That the Custom of Woolls was decayed by reason for the most part they were made into Clothes which afforded little Custom for that which in Wooll paid for Custom and Subsidy 40 s. made into Cloth paid but 4 s. 4 d. To recompence this by an indifferent equality there was set upon a Cloth 5 s. 6 d. which Imposition did not make up the loss sustained in the Custom of Wooll by 13 s. 4 d. in 40 s. This was Justum but not Juste This religious Prince invironed with infinite troubles in the Church and Commonwealth and much impoverished by her devotion in renouncing the profits of the Church-lands that were in the Crown by the suppression was the first that made digression from the steps of her worthy Progenitors in putting on that Imposition without assent of Parliament for that very consideration of the loss of Custom by turning of Wooll to Clothing came into treaty in the 24. year of E. 3. when the art of Clothing began first to be much practised in this Kingdom and then in the recompence of the loss so sustained in the decay of Custom of Woolls there was set upon a Cloth by Act of Parliament above the olde Custom 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. Thes in origin But I pray you examine how this Imposition of Queen Mary was digested by the people We see in the case of my Lord Dier 1. Eliz. fol. 165. That the Merchant found great greif at it and made exclamation and suit to Queen Elizabeth to be unburdened of it Orig. in Scac. 48. E. 3. Rot. 2. R. Thes 1. Eliz. Dier fo 165. The very reason of their grief expressed in that case is because it was not set on by Parliament but by the Queens 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 Quimight fet on this Imposition without assent of Parliament 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 be speedily published and it were indiscretion to conceal 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 Queen Mary upon restraint of bringing in of French Commodities occasioned by the then wars with France set an Imposition upon Gascoyn Wines which continueth yet So the Kingdom of England by the injustice of that Prince was clogged with these two heavy Impositions contrary to the right of the Kingdom and the Acts of her Progenitors Queen Elizabeth set on that upon sweet Wines which grew also upon the occasion of the troubles with Spain That upon Allome was none it was rather a Monopoly to Master Smith the Customer of London for the
lawfully intituled to that he doth impose as that thereby he doth alter the property of his subjects goods and is enabled to recover these imposition by course of Law I think he cannot and I ground my opinion upon these foure reasons 1. It is against the naturall frame and constitution of the policie of this kingdome which is jus publicum regni and so subverteth the fundamentall Law of the Realme and induceth a new forme of state and government 2. It is against the municipall Law of the Land which is jus privatum the Law of property and of private right 3. It is against divers Statutes made to restraine our King in this point 4. It is against the practice and action of our Common wealth contra morem majorum and this is the modestest rule to limit both Kings Prerogatives and Subjects Liberties Upon the first and fourth of these foure principal grounds I will more insist then upon the second and third both for that in their own nature they are a more proper matter for a Councel of State to the judgement of which I apply my discourse and they have not been enforced by others As also for that the other two as more fit for a barre and the Courts of ordinary justice have by some professors of the Law been already most leardnedly and exquisitely discussed For the first it will be admitted for a rule and ground of State that in every Common-wealth and government there be some rights of Soveraignty jura Majestatis which regularly and of common right doe belong to the Soveraign power of that State unless Custome or the provisional ordinance of that State doe otherwise dispose of them which Soveraigne power is potestas suprema a power that can controule all other powers and cannot be controuled but by it self It will not be denied that the power of imposing hath so great a trust in It by reason of the mischiefes may grow to the Common-wealth by the abuses of it that it hath ever been ranked among those rights of Soveraign power Then is there no further question to be made but to examine where the Soveraigne power is in this Kingdome for there is the right of imposition The Soveraigne power is agreed to be in the King but in the King is a twofold power the one in Parliament as he is assisted with the consent of the whole State the other out of Parliament as he is sole and singular guided merely by his own will And if of these two powers in the King one is greater than the other and can direct and controule the other that is Suprema Potestas the Soveraigne power and the other is subordinata It will then be easily proved that the power of the King in Parliament is greater than his power out of Parliament and doth rule and controule it for if the King make a grant by his Letters Patents out of Parliament it bindeth him and his successors he cannot revoke it nor any of his Successours But by his power in Parliament he may defeate and avoyd it and therefore that is the greater power If a judgement be given in the Kings Bench by the King himselfe as may be and by the Law is intended a writ of Error to reverse this judgement may be sued before the King in Parliament which writ must be granted by the Chancellor upon bill indorsed by the King himself 1 H. 7.19 6. Lib. Intrac fol. 302. c. 1. as the book is 1 H 7.19.6 And the forme of the writ of Error is that it being directed to the Chiefe Justice of the Kings Bench Quia in recordo pricessu ac etiam in redditione judicii loquelae quae suit in Curiâ nostrâ coram nobis Error intervenit manifestus ad grave damnum c. Nos errorem si quis fuerit modo debito corrigi partibus praedictas plenam celerem justitiam fieri volentes in hà c parte vobis mandamus quòa Recordum processum loquelae illius cum omnibus ea tangentibus in praesens Parliamentum nostrum sub sigillio tuo distinâ—â—è apertè mittas hoc breve ut inspectis c. nos de Consilio advisamento Dominorum spiritualium temporalâ—um ac Communitatis in Parliamento nostro praedicto existentis ulterius pro errore illo corrigendo fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Angliae fuerit faciendum So you see the Appeal is from the King out of the Parliament to the King in Parliament the writ is in his name the rectifying and correcting the errours is by him but with the assent of the Lords and Commons The booke is not so that the CoÌ„mons should meddle than which there can be no stronger evidence to prove that his power out of Parliament is subordinate to his power in Parliament for in Acts of Parliament be they lawes grounds or whatsoever else the Act and power is the Kings but with the assent of the Lords and Commons which maketh it the most soveraigne and supreame power above all and controulable by none Besides this right of imposing there be others in the Kingdome of the same nature As the power to make lawes the power of Naturalization the power of erection of arbitrary Government the power to judge without appeale the power to legitimate all which do belong to the King only in in Parliament Others there be of the same nature that the King may exercise out of Parliament which right is grown unto him in them more in those others by the use and practice of the Common-wealth as denization coynage making warr which power the King hath time out of minde practised without the gain-saying and murmuring of his subjects But these other powers before mentioned have ever been executed by him in Parliament and not otherwise but with the reluctation of the whole Kingdome Can any man give me a reason why the King can only in Parliament make lawes No man ever read any law whereby it was so ordained and yet no man ever read that any King practised the contrary Therefore it is the originall right of the Kingdome and the very natural constitution of our State and policy being one of the highest rights of Soveraigne power So it is in naturalization legitimation and the rest of that sort before recited It hath been alleaged that those which in this Cause have enforced their reasons from this Maxime of ours That the King cannot alter the Law have diverted from the question I say under favor they have not for that in effect is the very question now in hand for if he alone out of Parliament may impose he altereth the Law of England in one of these two maine fundamental points He must either take his Subjects goods from them without assent of the party which is against the Law or else he must give his own Letters Pattents the force of a Law to alter the
property of his Subjects goods which is also against the Law That the King of England cannot take his subjects goods without their consent it need not be proved more than a principle it is jus indigenae an old homeborne right declared to be Law by divers statutes of the Realme 34 E. 3. c. 2. As in 34. E. 3. cap 2. That no office of the Kings or of his heires shall take any goods of any manner of person without the assent and good will of the party to whom the goods belonged The same is declared in many other Statutes made against prisages and purveyances Neither have ever any Kings attempted to go plainly and directly against that right but have devised certaine legal colours and shadowes for their wrongfull doing in that kind which I doe find were of three sorts Commissions Loans or Privie Seales Benevolence by way of Commission by way of Loan by way of Benevolence Commissions of all other were the most insolent for they went out as it were by authority to levy ayd of the people upon great necessity of the Commonwealth These were condemned in Parliament 21 E. 3. Num. 16. upon a grevious complaint made of the use of them by the Commons unto the King in Parliament wherein the people doe pray the King that he would be pleased to remember how at the Parliament held the 17 year of his raign and at the last Parliament That is the Parliament it was then accorded and granted by their said Lord the King and his Councell that there should goe out no Commissions out of Chauncery for Hobbeleries Archers and other charges to be levied upon the people if they were not granted in Parliament which ordinances were not observed by reason whereof the people were impoverished aed decayed for which they prayed the King that he would be pleased to take pity of his people and the ordinances and grants made to his people in Parliament to affirme and hold And that if such Commissions goe out without assent of Parliament that the Commons which are grieved thereby may have writs of supersedeas according to the said Ordinance and that the people be not bound to obey them To this the Kings answer is Si ul tiel imposition fuit fait per grand necessitie ceo del assent des Prelates Countes Barons aut grandes ausomes des Commons adonque presents Neant moins nostre Seignior le Roy ne voet que tiel imposition non duement fait soit treit in consequence eins voet que les ordinances dont cest petition fait mention soit blenment garoes The last time that ever King attempted that course of exaction was 17 H. 8. Stowes annals 17. H. 8. upon the taking of the French King at Pavia by the forces of Charles the fifth Cardinal Wolsey having a purpose to put the King into a warre about that quarrell and finding his cophers empty advised this way to send out Commissions and by them to levie ayd of the people according to the value of their estate But this gave such discontent to the whole Realme that it caused in many places an actuall rebellion and the Cardinal being called to give an account of this bad advice did justifie this fact by the example ot Joseph who advised Pharaoh to take the fifth part of his subjects goods But when he saw that would not serve the turne he falsely laid it upon the Judges informing the King he did it by their advice being resolved by them of the lawfulness of the fact So you see that great Church-men found more safety in matter of government of our Commonwealth in making a false report of a point of the Common Law then in a true Text of the Scripture And if any Church men will endeavour by application of the Text of Scripture to overthrow the antient Law and Liberties of the Kingdom I would advise them to be admonished by the ill success of the Cardinal in this particular action and by the miserable catastrophe of his whole life and fortunes Loans and Privy Seals Loans and Apprests were those which we call Privy Seals which though they were more moderate in shew yet being made against the good will of the parties were as injurous indeed as the other The Commons in Parliament 25. E 3. Num. Rot. pat 25. E 3. num 16. 16. made a grievous complaint to the King against the use of them and prayed that none from thenceforth should be compelled to make Loans against their will and they gave this reason in their petition for that it is against reason and the franchise of the land and prayed that restitntion might be made to those that have made such Loans To this the Kings rescript was It pleaseth our Lord the King it be so Lastly Benevolence Came in those kinde of exactions which were termed by the fair name of Benevolences but they became so odious as they gave the occasion of a good Law to be made against themselves and against all other shifts and devices by what new terms soever imposed upon the Subjects 1 R. 3. c. 2 the Law is 1 R. 3. cap. 2 and is thus The King remembring how the Commons of this his Realm by new and unlawful inventions and inordinate covetise against the Law of this Realm have been put to great servitude and important charges and exactions and especially by a new Imposition called a Benevolence enacteth by the advise c. that the Subjects and Commons of this Land from henceforth shall in no wise be charged by any such charges or impositions called the Benevolence nor by such like thing But if you will deny that the King doth in this case take the goods of his Subject without his assent then you must other fall upon mine alternative proposition That the Kings Patent hath in this case the power of a Law to alter property for how can he recover the imposed by a legal course of proceeding and by judgment in his Court but upon a title precedent him before the action brought which title must be a property in the same imposed and how commeth he by that property but by his own Letters Patents by which he declareth he will have that same as an imposition For the Judgment giveth not the right but onely doth manifest and declare it and giveth execution of it So in this point the question is whether the Kings Patent hath the force and power of the Law or not for if it be not maintained that it hath it can never be concluded that he can transfer the property of his Subjects goods to himself without the assent of them for quod meum est sine facto meo alterius fieri non potest And if you give this power to the Kings Patent you subject the Law and take away all rules and bounds of settled government and leave in the Subject no property of his own neither do you by this
pence in the pound which is by name mentioned in the Statute is now due by Act of Parliament If you will have the King hold this encrease of Custom by Prerogative you go directly against his meaning for it appeareth by that which presently followed this Grant that the King took this encrease of Custom by way of contract onely and not by way of Prerogative for the same year following he directeth his Writs to the Officers of his Ports reciting the contract made with the Aliens by Charta Mercatoria adding further that some Denizens were willing to pay the like Custom upon the same Immunities to them to be granted and doth assign his Officers to gather it but with this clause Si gratanter absque coertione solvere voluerint ita quod aliquem Mercatorem de regno potestate nostrâ ad praestationes custumas hujusmodi invito solvendas nullatenùs distringatis Nothing can more plainly express that the Kings intention was not to demand this by way of Prerogative but by force of the contract If there were such a Prerogative in the Crown as of right to have Custom how cometh it to pass this Prerogative never yet had fruit or effect for this I can maintain That the King of England hath not one penny Custom or Imposition upon Merchandizes elder then the fourth year of Queen Mary that he holdeth not by Act of Parliament and by the peoples grant The eldest that he hath is that of Woolls Wooll-fells and Leather and that is by Act of Parliament as appeareth in the Statute 25 E. 1. cap. 7. 25 E. 1. cap. 7. the Tonnage and Poundage by Parliament in the first year of every Kings reign The Aliens encrease of Custom by Parliament 27 E. 3 cap. 26. 27. E. 3. cap 26. Then this Prerogative hath been much neglected that it was never called on to be put in execution untill now of late years Concerning the Statutes made for restraining our Kings Statute 3 from the exercise of this pretended Prerogative which is the third matter I stand upon Those that have maintained the Kings Prerogative in this point have endeavored to interpret those Statutes to extend onely to restrain him from imposing upon Wooll Wooll-fells and Leather which are staple commodities And the reason they give for this restraint more then for other goods is because the King by Statute is restrained to a Custom certain for those commodities as the half Mark a Sack of Wooll and half a Mark three hundred Wooll-fells and thirteen shillings four pence a Last of Leather and therefore great reason he should not exceed this Custom in these Commodities This Objection receiveth many Answers First it appeareth both by the express letter of divers of the Laws made in this point by the occasion that induced the making of the Laws and by the execution of them that all other Wares and Merchandises as well as those of the staple were within the purpose and intent of those Laws Secondly The reason alleadged why there should be restraint for the staple Commodities rather then for the other is mistaken for the Lords and Commons did grant to E. 1. by Act of Parliament the custom of the half Mark for Wooll Wooll-fels and Leather which was matter of meer grace and liberality and includeth no restraint in it but rather a favourable extention quite contrary to the sence of the Objection according to that rule of interpretation Gratiosa ampliari decet odiosa restringi And admit some Laws be made expresly to restrain impositions upon Wooll Wooll-fells and Leather by reason that the occasion of making such Laws was the actual imposing upon those goods at that time shall we not by good construction Secundum mentem extensivam legis extend this Law to other Wares and Merchandizes that are within the same mischief If we look to the reason of the Law we shall make no doubt of it for that is because the impositions were without assent of Parliament not because they were upon such and such Commodities Besides those Laws so made are declarativae juris antiqui non introductivae novi In the enumeration of those Statutes which I conceive make directly to this purpose I will endeavour rather to answer the Objections made against them then to enforce the sense and meaning of them which is very plain and open and needs no interpretation The first Statute enforced is Mag. Charta cap 30. made in the ninth year of H. 3. by which it is enacted that all Merchants shall have free egress and regress out of and into this Realm with their goods and merchandizes to buy and sell sine omnibus malis tolnetis per antiquas rectas consuetudines In which words we may infer that both the use and right of imposing are absolutely excluded and debarred for Consuetudo which in this case is to be taken for Vsage which is mos not improperly for Portorium a duty paid in money as our English word Custom in one sence doth signifie implieth a beginning and continuance by consent and will of the parties not by power and enforcement which cannot be a Custom and therefore it cannot be an Imposition for that ariseth meerly out of the will and power of their imposer and is against the will of him upon whose goods it is set But take Consuetudo either for Mos or Portorium the epithites with which it is qualified antiquum and rectum do describe it to be of that nature that it cannot be an Imposition for antiquum in legal construction is that which is time out of mind that is not an Imposition for then by continuance of time it should grow a right by prescription and were justifiable Rectum implieth a limited right which inferreth there may be a wrong and exceeding of that right which is not in impositions for if there be a right in the King to impose the quantity time and other circumstances are in his discretion the right is illimited And if he set on never so great an Imposition there is as much right in it as if it be never so small the excess maketh it a burthen but not a wrong We may further observe that in the Statute Malum tolnetum which is evill Toll is set down by way of antithesis to antiqua and recta consuetudo by which is inferred that exactions upon Wares and Merchandizes not qualified with these two properties of antiquum and rectum are evill and unjust This is made more evident by a Record in the Tower of the sixteenth year of H. 3. which was a Mandat sent by the King to the Customers of his Ports for the execution of this Law made in 9 H. 3. whereby it is commanded Rot. claus 16. H. 3. num Quod emnibus Mercatoribus in portum suum venientibus cum vinis aliis merchandizis scire faciant quod salvò securè in terram Angliae veniant cum vinis merchandizis
Parliament by which such impositions are given to the King in which they are called most commonly by the name of Aids as proceeding of good will and benevolence The fourth Statute alledged on this part is that of 5. 5. E. 2. cap. 14. Rot. Ordin E. 2. c. 14. just in point of the matter in question and therefore I will set it down as I finde it Verbatim in the Record in the Tower Ensement novelles customes sont levies antients enhaunces come sur levies drapes vine aver du pois aut choses purquoy les Merchantes veynont pluis vilement meynes de bien menynont en la terre les Merchants estrangers demurront pluis longment que ils soleyent faier pur le quel demoure le choses sont le pluis enhaunces que ils ne soloyent estre al dammage de roy de son people Nous ordonomus que tout manners de male tolls levies puies de Coronement de Roy Ed. faier de Roy Henry soyent entirement oustes de tout estreints put tout jours nient contristeant le Chartre que le dict Roy Ed fist us Merchants aliens pur ceo que il fuit fair 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 levying of new Customs and by the raising of old Traffique was destroyed and all things made dear And therefore all new Impositions and Customs were discharged Chartâ Mercatoriâ by which Custom that 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 with this clause Saving to the King his Custom of Wooll Wooll-fells and Leather Si aver les do et Great wars 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 Realm being then in tumult and mutiny about the quarrel of Peirce of Gaveston so never had the Kings free consent but he gave way unto it for fear of greater mischeif Secondly That in it self it is unjust as in taking away the Custom granted to the King by Charta Mercatoria 31. E. 1. and in making doubt whether the King should have the Custom of Woolls c. by those words Saving it to him Si aver 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 Commonwealth the King and his Nobles standing in good terms when this business was taken in hand and it was begun and ended with great solemnity and ceremony For the King in the third year of his reign gave Commission under his Great Seal to 32. Com. 16. Mar. 3. E. 2. Rot. ordin 5. E. 2. Lords spiritual and temporal of which there were eleven Bishops eight Earls and thirteen Barons they being as Committees of the higher House to devise Ordinances for the good government of his house and his Realm In which Commission he doth for the honor of God the good of him and of his Realm of his freewill grant to the Prelates Earls and Barons and others elected by the whole Kingdom full power to ordain the State of his house and Realm by such Ordinances as by them should be made to the honor of God the honor and profit of holy Church the honor of himself the profit of him and his people according to right and reason and the oath he 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 business did make this and other Ordinances which were so well liked of by the King that after they were made he took an oath to observe them 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 Pullic 3. Kal. Oct. 5. E. 2. Râ—t ord Pat. 5. Oct. 5. E. 2. Rot. ordin And by his Letters Patents dated 5. Oct 5. regni sui did send them through the Realm 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 Laws given unto them in the Parliament in the fifth year of his reign The second Objection which is the injustness of the Law instanced in two points The taking away of Charta Mercatoria and the doubting of the Kings right to the Custom of Wooll-fells and Leather 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 Kingdom for that Charter did contain in it divers grants of things which were not in the power of the King to grant without assent of Parliament the trial 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 years 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 Custom of Wooll Wooll-fells and Leather I take it there is no such doubt made For the words Saving the Kings right to the Custom of Woolls si aver les dort have this construction that is at such times as he 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 lawful 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 exceptions to the lawfulness of it The third Objection is That this Statute is repealed To this I plead Nullum valet recordum If it be repealed it must be by Act of Parliament for unum quodque dissolvitur iisdem modis quibus est colligatum I and others have searched the Records of the Realm and endervoured by all means to inform our selves of the truth herein we can find no Act of Parliament of repeal
The truth is some Kings finding these Laws not to sort to their wills and humors have endeavoured to suppress them but they did never yet obtain a repeal of them by Act of Parliament But it is further urged That although there were no formal repeal 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 himself so little bound by it as that in the 11. year of his reign he set an Imposition without assent of Parliament upon Wooll Wooll-fells Leather Wines Cloth Aver de pois and divers other kind 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 we look into the whole Record and scan this action of E. 2. from the beginning of it unto the end we shall finde it a very good instance to prove the practice 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 eleventh year of his reign did borrow of the Merchants a certain sum of money above the due Custom of Woolls Wooll-fells Wine Averdepois Leather and such other goods imported and exported but it appeareth by the Record he took it but for one year he took it by the advice and counsel of the Merchants and he took it per viam mutui as a loan Rot. claus 11. E. 2. The direction of the Writ is Collectoribus mutui nobis per mercatores alienigenas indigenas de certis rebus Merchandisis usque ad certum tempus faciendi This was done in good terms he did not claim it as his right but did borrow it which I do think is a good evidence against his right But what became of this the State would not abide it for all these fair shews And therefore afterwards the King sendeth out other Writs by which he dischargeth all Merchandizes of this Loan saving only Wooll Wooll-fells and Leather and for the Loan taken upon those Commodities it was limited to continne but until Michaelmas after and good security was given to the Merchants by the Customers to pay themselves by way of defalcation out of the Customs which should be due after Machaelmas those sums which were so borrowed of them Rot. finium 11. E. 2. The words of the Record are worth the observing Cum pro expeditione guerra Scotiae aliis arduis urgentibus necessitatibus nobis multipliciter incumbentibus pro quarum exoneratione quasi infinitam pecuniam refundere oporobit pecunia plurimum indigeamus in praesenti nuper pro eo quod exitus regni terrarum nostrarum simul cum pecunia 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 aavisamento 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 Loan set on Wines Averdepois and such other Commodities besides Wooll Woll-fells 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 fifth Statute alledged on the behalf of the Subject is that 14. E. 3. Stat 1. c. 21. 14. E. 3. Stat. 1. cap. 21. by which the Commons pray the King to take no more then the old Custom of the half Mark. The King prayeth aid of the Commons for a time above the Custom upon his necessity of Wars 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 Woolls Wooll-fells and Leather but the old Custom and doth promise to charge set or assess upon the Custom but in manner as aforesaid The sixth Statute is 14. E. 3. Stat 2. 14. E. 3. stat 2. c. 1 cap. 1. The King doth grant by way of Charter to the Prelats Earls Barons Commons Citizens Burgesses and Merchants that they be not from henceforth charged nor grieved to make any aid or sustain charge if it be not by the common consent of the Prelates Earls Barons and other great men and Commons of the Realm and that in Parliament These two Statutes grew upon an occasion of an Imposition set on Wooll by the King without assent of Parliament Little hath been objected against them but only 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 then the old Custom 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 Woolls for a time above the old Custom but the Record of the Petitions exhibited in Parliament on which these two Laws are made cleareth the objection The first was delivered by the Lords in this form Rot. Par. 13. E. 3. num 5. Les grands volunt that the male toll set on Woolls newly be altogether abated and that the old Custom be held and that they may have this in point of Charter and by inrolment in Parliament This word volunt had been too high for a fuit of grace and therefore must be intended of right The Commons Petition in form is somewhat humble but in effect and purpose is rough and stern The words are these Rot. Par. 13. E. 3. num 13. The Commons pray that the male toll of Woolls be taken as it was used in antient time which is now enhanced 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 Laws is by inrolment in Parliament the second is in form of a Charter the first doth express some special commodities The second doth reach generally at all The seventh Law directly touching this point is that 14. E. 3. Stat. 2. cap. 2. 13. E. 3. stat 2. c. 2 The King doth grant according to the Great Charter that all Merchants Denizens and foreigners may without let safely come into the Realm of England with their goods and Merchandizes and safely tarry and safely
return paying the Subsides Customs and other profits reasonably due Upon the words of this Law was great advantage taken in this that besides Custom and Subsidy which comprehend all the certain and ordinary duties the King hath upon the wares and goods of Merchants there are other profits spoken of to be due These they affirm cannot be understood but of Impositions by the King without assent of Parliament To this I answer if they were not duties due to the King besides Custom and Subsidy which might satisfie the intention of these words this objection might have had some colour in it but it is plain that besides these two there are other profits due to the King upon Merchants goods as Scavage Tonage and the like And you shall finde a Petition in Parliament Rot. Par. 50. E. 3. nu 163. 50. E. 3. against the raising of these above the old rate The eighth Law is 15. E. 3. stat 2. c. 5 E. 3. Stat. 2. cap. 5. whereby it is enacted that every Merchant may freely buy and sell and pass the Sea with their Merchandizes of Wooll and all other things paying the Custom of old time used according to the Statute made in the last Parliament in Midlent which was the Stat. 14. E. 3. stat 2. cap. 2. This Law doth expresly exclude the novelty of Impositions The ninth Law is that 18. 18 E. 3. stat 1. c. 3 E. 3. stat 1. ca. 3. whereby it is enacted That the Sea be open to all manner of Merchants to pass with their Merchandizes where it shall please them The tenth is 27. E. 3. stat 2. c. 2 27. E. 3. stat 2 cap. 2 for the assurance of Merchants-strangers and other the King doth will and grant for him and his Heirs that nothing shall be taken over the due Customs not taken of them to his use by colour of suit or in other manner against their wills The eleventh is 38. E. 3. cap. 2. 38. E. 3. cap. 2. that all manner of Merchants aliens and Denizens may buy and sell all manner of merchandizes and freely carry them out of the Realm paying the Customs and Subsidies thereof due The last is 22. H. 8. cap. 8. 22. H. 8. cap. 8. by which it was enacted that Tables should be set up in Ports by which the certainty and very duty of every Custom Toll and Duty or sum of money to be demanded and required of Wares and Merchandizes shall and may plainly appear and be declared to the intent that nothing be exacted otherwise then in old time hath been used and accustomed By this late Law it appeareth that the judgment of the whole Parliament was at that time That nothing was due upon Wares and Merchandizes but that which which was certain and had been antiently due by which Impositions are excluded whose qualities are novelty and incertainty as being set on as present occasion moveth and proportioned for quantity and other circumstances as the will of the King directeth These are the Laws which I conceive most directly tend to the restraining the Kings of England from the exercise of that irregular power of imposing at the first offered by them to be put in execution yet not pressed as their right and never practised but upon opposition of the whole State and at last deserted and given over until of late as by that which followeth in the fourth place will appear My fourth and last assertion is Custom 4 That this practise of imposing without assent of Parliament is contra morem Majorum In this I will make an historical perlustration of the times past whereby I will discover and make known what passages have been in this business in this Kingdom and especially in the high Court of Parliament for the space of 300 years and more last past since the beginning of the reign of E. 1 sithence which time and not before this Kingdom hath grown into the glory and reputation of foraigne traffique And as a worthy Gentleman of the Kings learned Councel made certaine considerations upon this question framed and strengthened out of the greatness of his wit and reason so I grounding my self upon the practice of former times which is the safest rule whereby to square the right both of King and people in this Common-wealth where their right is jus consuetudinarium a right that groweth by use and practice I will propose unto you certaine observations out of the action and experience of former times untill the raignes of the two late Queenes by which you may the better ground and frame your judgements in the determination of the right in this question My first observation is in point of circumstance that there never was any Imposition set but in time of actuall war and duplicatis vexillis they were set on very rarely and sparingly but for a short time and that certaine and definite and upon some few commodities and that by the assent of the Merchants that were to beare the burthen In our time the occasion not so sensible the continuance to be perpetual the number many hundreds almost no kinde of Commodity spared I will give you some few Instances of these circumstances out of the Records themselves The maletole of Wooll set on by King E. 22. E. 1. orig Scacc. Rent Thes 22. E. 1. mem Scac. R. Thes T. Mich. Rot. parl 17. E. 3. nu 28. 1. which gave the occasion of the Stat. 25. yeare of his raigne was given by Merchants The Record saith Mercatores gratanter concesserunt in subsidium guerrae Regis It further sheweth it was for his necessity of Warre which then was great also For the time of F. 3. there need not many instances for his whole raigne was almost an actuall warfare As in the sixt year of his raigne for his war in Scotland and Ireland In the thirteenth year of his raigne for his war in France severall Impositions were set on In the seventeenth year of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Merchants Rot. parl 50. E. 3. nu 38. and it was in the time of VVar. In the twentieth yeare of King E. 3. it appeareth in the Record that the Imposition then put upon VVools was by the assent of Merchants for two years for the necessity the King had in his passage over the sea to recover his right and to defend the Realme My second observation is Never any Imposition was set on by the King out of Parliament but complaint was made of it in Parliament and not one that ever stood after such complaint made but remedy was afforded for it Et quod Rex inconsulto fecit consulto revocavit his Soveraigne power controlled his subordinate In which it is a thing very notable that the King in no one Case ever claimed or so much as ever named his right or prerogative which no doubt would have been
shillings and four pence upon a sacke of VVool all taken off and no excuse made for the smalness for 21 E. 3. nu 11 two shillings a sacke two shillings tonnage and six pence poundage 50 E. 3. nu 163. R. Parl. 50. E. 3. nu 163. A great complaint was made in Parliament by the Commons that an imposition of a penny was set upon wools for Tonage over and above the ancient due which was but a penny and so the subject was charged with two pence Also that a penny was exacted for Mesonage which was but an halfe penny which Impositions the Record doth express did amount to an hundred pounds a yeere This petty imposition was as much stood upon in point of right as the other great one of fourty shillings and was taken off upon complaint in Parliament without either justification or excuse for the smalness of it My sixth observation is that those which have advised the setting on of impositions without assent of Parliament have been accused in Parliament forgiving that advice as of a great offence in the State and have suffered sharpe censure and great disgrace by it Neither doe I finde that the quality of the person hath extenuated the blame as 50. E. 3 William L. Latimer Chamberlaine to the King and one of his private Councell was accused by the Commons in Parliament of divers deceits and extortions and misdeeds and among other things that he had procured to be set upon Wooll Wooll-fells and other Merchandizes new Impositions to wit upon a sack of Wool eleven shillings which the L. Latimer fought to excuse because he had the consent and good liking of the Merchants first But judgment was given against him that he should be committed to prison be fined and ransomed at the Kings will and be put from being of the Council and this procuring of Impositions to be set on without assent of Parliament is expresly set down in the entry of the judgment for one of the causes of his censure Richard Lyons a Farmer of the Customs in London the same year was accused in Parliament for the same offence Rot. Par. 50. E. 3. n. 17 18 19 20. he pleaded he did it by the Kings command and had answered the money to the Kings Chamber Yet was condemned and adjudged in Parliament to be committed to Prison and all his Lands and Goods were feifed into the Kings hand and at the last the hate against these authors of Impositions grew so that 50. E. 3. in the same Parliament a petition was exhibited in Parliament to make this a capital offence The Record is very short and therefore I will set it down verbatim Item prie le dit Common que scit ordaine per Statute en cest present Parliament de touts ceux queux cy en avant mittont ou font pur lour singuler profit novels Impositions per lour authoritie demesn accrocheants al eux eny ul power de riens que soit establi en Parliament sans assent de Parliament que ils eyent judgement de vie member de forisfacture To this rough Petition the King gave a milde and temperate Answer Courre la Common ley come estoit al avant use My seventh Observation is the cessation between 50. E. 3. after this censure in Parliament and 4. Mariae almost two hundred years during which time no King did attempt to impose without assent of Parliament And yet we finde in the Parliament Rolls that there was not one of those Kings that reigned in that time but had Impositions granted him upon fit occasion by Act of Parliament upon all Goods and Merchandizes and at divers times during their reigns sometimes more sometimes less upon the Ton and pound but ever for a time certain and indefinite so the use of them was not given over but the power of Imposing was so clearly and undoubtedly held to be in the Parliament as no King went about to practice the contrary But to this cessation that was of great weight and credit in our evidence a colour was given by the other side to avert the inserence made upon it against the Kings right that is that during that time there was so great a Revenue grew to the Crown by double Custom paid for all Merchandizes both in England and at Callis by reason of an Act of Parliament made 8. H. 4. which was that no goods should be carried out of the Realm but to Callis and by reason that the Merchants paid Custom both there and here for the same goods that in the seven and twentieth year of Henry the sixth the Custom of Callis was 68000. pounds the year a great sum if you consider the weight of money then what price it bare and by reason hereof Princes not delighting to charge their murmuring Subjects but when need is being so amply supplied otherwise did not put that Prerogative in practice To this I Answer That if that were true that was urged it might be some probable colour of the forbearance of imposing but I finde it quite contrary and that by Record For there was no such restraint of all Commodities not to be transported to any place but Gallis but onely Woolls Woolfells Leather Tinn and Lead that were staple Wares which by the Statute 37 E. 3. were to be transported thither and not to any other place and the staple continued at that place for the most part from that time untill long after 27. H. 6. but there was no double Custom paid both here and there by the same owner but the yearly profits of the Customs of Callais at those times were so far short of that which hath been alledged in 27. H. 6. that it appeareth in an Act of Parliament 27. H. 6. cap. 2 printed in the book at large 27. H. 6. cap. 2. That the Commons do complain That whereas in the time of E. 3. the Custom of Callais was 68000 pounds per annum at that time which was 27. H. 6. by reason of the ill usage of Merchants it was fallen to be but 12000 pounds the year so then there was great cause in that respect to have set on Impositions by reason of that great abatement of Customs and yet it was not then offered to be done without assent of Parliament But if you look a little further into the extreme necessities of those times you shall finde there never was greater cause to have strained Prerogatives for it appeareth in an Act of Parliament 28. H. 6. that it was then declared in Parliament by the Chancellor and Treasurer who demanded relief of the people for the King both for payment of his debts and for his yearly livelioood that the King was then indebted 372000. pounds which now by the weight of money amounteth to above 1100000. pounds and that his ordinary expences were more then his yearly revenue by 19000. pounds yearly so if ever there was cause to put a King to his shifts it was then yet
ingrossing of all Allomes into his own hands for which priviledge he gave a voluntary Imposition upon that Commodity It was like the priviledge granted to John Pechey of the sweet Wines by E. 3. for which the Patentee was called into the Parliament House 50. E. 3. and was there punished and his Patent taken away and cancelled What Impositions have been set on in the Kings time I need not express they are set down particularly in the Book of Rates that is in print they are not easily numbered The time for which they are raised is not short the Patent prefixed to that book bearing date 28. Julii 6 Jacobi will instruct you sufficiently in that point they be limited to the King his Heirs and Successors which I suppose is the first estate of Fee simple of Impositions that ever man read of My eighth and last Observation is upon Tunnage and Poundage given to the King of this Realm upon Wares and Merchandizes exported and imported which is an Imposition by Act of Parliament and as it will appear was given out of the peoples good will as a very gratification to the King to enjoyn him thereby from the desire of voluntary Impositions and to conclude him by that gift in Parliament from attempting to take any other without assent of Parliament for after the ceasing of voluntary Impositions these Parliamentary ones were frequent in the times of the King that succeeded but they were never given but for years with express caution how the money should be bestowed As towards the defence of the Seas protection of Traffick or some such other publick causes Sometimes special sequestrators made by Act of Parliament by whose hands the money should be delivered as 5. R. 2. cap. 3. in a printed Statute 5. R. 2. Rot. Par. 7. R. 2. n. 13. 10. R. 2. n. 12. 7. R. 2. n. 12. The Rates that were given were very variable sometimes 2 s. Tunnage and 6 d. Poundage as 7. R. 2. 3 s. Tunnage and 12 d Poundage 10. R. 2. which grants were not to endure the longest of them above a year 18 d. Tunnage 6 d. Poundage in 17. R. 2.3 s. Tunnage and 12 d. Poundage granted to H. 4. in the thirteenth year of his reign for a certain time in which Statute there is this clause That this aide in time to come should not be taken for an example to charge the Lords and Commons in manner of Subsidy unless it be by the wills of the Lords and Commons and that by a new grant to be made in full Parliament in time to come This clause in good and proper construction may be taken to be a very convention between the King and his people in Parliament that he should not from thenceforh nor any of his Successors set on Impositions without assent of Parliament The like Imposition was granted to H. Rot. Par. 1. H. 5. n. 17. 5. in the the first year of his reign for a short time towards the defence of the Realm and safeguard of the Sea upon condition expressed in the Act that the Merchants Denizens and strangers coming into the Realm with their Merchandizes should be well and honestly used and handled paying the said Subsidy as in the time of his Father and his noble Progenitors Kings of England without oppression or extortion In the end of which Act the Commons protested being bound by any grant in time to come for the purposes aforesaid H. 6. Rot. Par. 31. H. 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Mar. c. 18. 1. Eliz. c. 19. 1. Jac. c. 33. in the one and thirtieth year of his reign had Tunnage and Poundage given him for his life E. 4. had it given him the third year of his reign as it appeareth in a Statute 12. E 4. cap. 3. H. 8. in the sixth year of his reign and all since in the first year of their reigns have had it given them for term of their life and being now so certainly setled do reach further at that from which they are in couscience and honor excluded by this voluntary gratification For can any man give me a reason why the people should give this Imposition of Tunnage and Poundage above the due Custom upon all Commodities if the King by his Prerogative might set on Impositions without assent of Parliament and were not that a weak action in a King to take that of his people as a benevolence from them with limitation of the same and in what it should be imploied and how they will be used for it and for what time he shall have it which he might justly take without their consents unclogged of these unpleasing incumbrances The Statute of Tunnage and Poundage made in our times that are altogether inclined to flattery do yet retain in them certain shews and rumors of those antient Liberties although indeed the substance be lost 1. Jac. c. 33. as in the Statute 1. Jac. cap 33. We declare that we trust and have sure confidence of his Majesties good will towards us in and for the keeping and sure defending of the Seas and that it will please his Highness that all Merchants as well Denizens as strangers coming into this Realm be well and honestly entreated and demeaned for such things whereof Subsidy is granted as they were in the time of the Kings Progenitors and Predecessors without oppression to them to be done By this clause as it now continueth the true intent of this Statute appeareth to be that there ought no other Imposition to be laid upon Merchants besides these given by this Statute and this intention hath been well interpreted by use and practice from the time of E. 3. to the time of Queen Mary as before is declared Thus much of this last reason made from observation and the action of our Nation I will answer now such main objections as have been made against the peoples right and have not been touched by me obiter in my passage through this discourse That which hath been most insisted upon is this that the King by his prerogative Royal hath the custody of the Havens and Ports of this Island being the very gates of this Kingdom that he in his royal function and office is onely trusted with the keys of these gates that he alone hath power to shut them and to open them when and to whom he in his Princely wisdom shall see good that by the Law of England he may restrain the persons of any from going out of the Land or from coming into it That he may of his own power and discretion prohibit exportation and importation of goods and Merchandizes and out of his prerogative and preheminence the power of imposing as being derivative doth arise and result for Cui quod majus est licet ei quod est minus licitum est So their reason briefly is this the King may restrain the passage of the person and of the
goods therefore he may suffer them not to pass but sub modo paying such an Imposition for his sufferance as he shall set upon them For the grounds and propositions laid in this objection I shall not be much against any one of them others of 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 premises are of a power in the King onely fiduciary and in point of trust and government the conclusion infers a right of interest and gain Admit the King had Custodiam portuum yet he 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 gain and benefit by it the one is protection the other is expilation The Ports in their own nature are publike Portus sunt Publici free for all to go in and out yet for the common good this liberty is restrainable by the wisdom and policy of the Prince who is put in trust to discern the times when this natural liberty shall be restrained In 1. H. 7. fol. 1. H. 7.10 10 in the case of the Florentines for their Allome the Lord Chief Justice Hujsey 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 Council as the Book saith before the Lords and Judges that he should not have licence to come into England unless he would take an Oath at Calice that he would bring nothing with him that should be prejudicial to the King and his Crown The King by the Common Law may send his Writ Ne exeas regnum to any Subject of the Realm but the surmise of the Writ is Quia datum est nohis intelligi quod tu versus partes exteras absque licentia nostra clam destinas te divertere quam plurima nobis coronae nostrae prejudicia prosequi Fitzh N. B. 85. b. Fitzh N. B 15. â—b So in point of Government and common good of the Realm he may restrain the person But to conclude therefore he may take money not to restrain 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 foraign affairs with the like power he hath in Domestick Government There is no question but that the King hath the custody of the gates of all the Towns 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 sickness 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 Towns in this Kingdom to any great Fare or Mart shall he therefore restrain the bringing of Goods thither unless money be given him by way of Imposition The King in his discretion in point of equity and for qualifying the rigor of the Law may enjoyn any of his Subjects by his Chancellor from suing in his Court of Common Law May he therefore make a benefit by restraining all from suit in his Courts unless they pay him an Imposition upon their Suits 2. E. 3.7 In 2. E. 3. in the case of the Earl 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 several Ports Great Yarmouth Little Yarmouth and Gerneston should arrive all at Great Yarmouth and at no other place within that Port. The lawfulness of this Patent being in question in the Kings Court it was reasoned in the Kings behalf for the upholding of the grant as it is now that the King had the custody of the Port he might restrain Merchants fron landing at all in his Kingdom Therefore out of the same power might appoint where and in what Haven they should land and no other The 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 grants The Presidents that were vouched for maintenance of this power of restraint in the King were four produced almost in so many hundred years Rot. Par. 2. E. 1. n. 16. Rot. fin 2. E. 1. n. 17. Ro. claus 10. E. 3. dor 31. Ro. claus 17. H. 6. in dors whereof two were in the second year of E. 1. one in the tenth year of E. 3. another in the seventeenth year of H. 6. since which time we hear of none but by Act of Parliament as they had been 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 practice of the Commonwealth The restaint in the time of E. 1. the one of them was to forbid the carrying of Wooll out of the Realm the other was to forbid all Traffick with the Flemings That of 10. E. 3. was to restrain the exportation of Ship-timber out of the Realm 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 be as the reverend Judge Sir Anthony Fitzherbert holds in his Writ of Ne exeas regnum in Nat. Fitzh N. B. 85. Br. that by the Common Law any man may go out of the Kingdom but the King may upon causes touching the good of the Commonwealth restrain any man from going by his Writ or Proclamation and if he then go it is a contempt This opinion of his is confirmed by the Book 1. Eliz. fol. 165. Dier 12. Dier 1. El. 165. Dier 13. El. 296. 13. Eliz. Dier 296. In like manner if a Subject of England be beyond sea and the King send to him to repair home if he do it not his Lands and goods shall be seised for the contempt and this was the case of William de Britain Earl of Richmond 19. E. 2. He was sent by the King into Gascoyne on a message 19. E. 2. and refused to return 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