come in and out of his Streams and Ports with their Ships and Merchandizes Podagium in Mari debet solvi sicut in terra si sit impositum per dominum Maris saith Baldus and the rights belonging to the Lord of the Sea saith another Doctor are Ius navigandi jus piscandi jus imponendi vectigalia pro utroque Again the Kings of England have the like Prerogative in the government of Trade and Comerce belonging to this Kingdome as other Princes and States have within their Dominions he must of necessity have the like absolute power as they all have to lay Impositions upon Merchandizes imported and exported otherwise he cannot possible hold the ballance of Trade upright or perserve an equality of Traffique between his own Subjects and the Subjects of Forein Princes and consequently it will lye in the power of our Neighbours to drain and draw away all our wealth in a short time or else to overthrow all Trade and Comerce between us and them at their pleasure and we shall have no means to encounter or avoid the mischief for their Princes having sole power to impose will have the sole making and managing of the Market between their Subjects and us and consequently may set what price they please upon all Merchandizes enforcing us to sell our Commodities cheap and buy their Commodities dear onely by this advantage of laying Impositions And therefore the King of England must of necessity have the same absolute power to lay Impositions upon Merchādizes as other Princes have as well ut evitetur absurdum as to prevent the ruin of the Common-wealth by the equall ballancing of Trade Comerce between his Subjects and the Subjects of Forein Princes Upon this reason when the Duke of Venice in the time of Q. Eliz. as is before expressed had laid an Imposition of one Ducket upon a 100 li. weight of Currans carried out of his Dominions by any English Merchant the Queen by speciall Patent in the twelfth year of the Reign did enable the Merchants which did Trade into the Levant to levie five shillings and six pence upon every 100 livre. weight of Currans brought into England by any Merchant Stranger Upon the like reason when in the time of King Hen. 8. the Emperor and the French King had raised the valuation of their monies both so high as there grew not only an inequality of Trade between their Subjects and the Subjects of England but our monies standing at their former values were carried out of the Realm in great quantities The King in the 24 year of his Reign granted a Commission unto Cadinall Woolsey to enhance the values of English monies likewise by that means to set ballance of trade even again and to keep our monies within the Realm Upon the same reason of State when the King of Spain that now is in the year 1614. had laid an Imposition of thirty upon the hundred on all Merchandizes imported and exported by Strangers the French King Hen. 4. was quickly sensible of it and did forthwith impose the like in his Kingdom then it followed of necessity that other Nations should follow and imitate them whereby it came to passe that Comerce of Merchants generally throughout Christendome began to decay which being perceived by these two great Princes they agreed to take away those excessive Impositions upon severall Treaties between them and the Italians and after between them and the English and the Dutch Briefly we find examples in all ages that whensoever by reason of Warre or for any other cause any Forein Prince gave the least impediment to Merchants in their Trade our Princes gave the like entertainment to their Merchants again This is declared in Magna Charta cap. 30. where it is plainly expressed what entertainment the Merchants of all Nations should expect in England Habeant Salvum securum conductum saith the Charter Praeterquam in tempore guerrae si fuerint de terra contra nos guerrina then as our Merchants are used with them so shall their Merchants be used with us 46 Edw. 3. The Countesse of Flanders having arrested the goods of the English Merchants there the King in recompence of their losses granted unto them all the goods of the Flemings in England whereof there is a notable Record mentioned before 1 Edw. 3. pat m 19. in Arch. Turris There are many other examples of mutuall embarments of Trade between the Flemings us and also between us and the French men during our Wars with France which I omit I will recite onely one president in the 40 year of Queen Elizabeth at which times the Merchants of the Haunce Towns having by sinister information procured the Emperour to banish our English Merchants out of the Empire the Queen by her speciall Commission did authorize the Mayor and Sheriffs of London to repair to the Still-yard being the Hostell of the Haunces to seize that House into her Majesties hands and there to give warning to the Merchants of the Haunce Towns to forbear Traffique with any of her Subjects in England and to depart the Realm upon that very day which was assigned to our Merchants to depart out of the Empire Lastly for the ordering and government of Trade among our own Merchants in Forein Countries and at home our Kings by their Prerogatives have instituted divers Societies and Companies of Merchants as the Company of Merchant Adventures the Muscovia Company the Turkie Company the East India Company c. all which are created upholden and ruled by the Kings Charter only whereupon I may conclude that the Kings of England having the same power in governing and ballancing Trade as other Princes have may justly execute the same power as well by laying Impositions upon Merchandizes as by the other means which are before expressed CHAP. XXII Of the several objections that are made against the Kings Prerogative in laying Impositions upon Merchandizes and the several Answers thereunto THE first Objection touching the property which all free Subjects have in their goods First it is objected that under a Royal Monarchy where the Prince doth govern by a positive Law the Subjects have a property in their Goods and inheritance in their Lands Ad Reges potestas omnium pertinet ad singulos proprietas So as the King hath no such Prerogative say they whereby he may take away the Lands or Goods of a Subject without his consent unless it be in a case of Forfeiture And therefore though Samuel foretold the people when they desired a King Hoc erit Ius Regis tollere agros vestros vineas oliveta dare servis suis Yet Ahab though he were a wicked King did not claim that Prerogative when he coveted Naboths Vineyard neither did he enter into it untill Naboth by false witnesses was condemned and stoned to death for blasphemy and then he took it for a lawfull Escheat but when the King doth
or Vessell of Wine vented by others was also fined and imprisoned and made satisfaction to the parties grieved 50 Edw. 3. Rot. Parli numb. 33. and more than this a Bill was preferred by the Commons in this Parliament that such as should set new Impositions should have Judgement of life and member 50 Edw. 3 Rot. Parliament num 191. in Arch. Turris These examples strook such a terrour at that time as from the time of King Edw. 3. till the Reign of Queen Mary being a hundred and fifty years and upwards there was no man found that would advise the King of England to set or levie any Impositions upon Merchandizes by Prerogative and therefore we find no Imposition laid upō Merchandizes all that space of time Queen Mary indeed began to set on foot this Prerogative again and laid an Imposition of three shillings and eight pence upon every Cloth transported out of the Kingdome but what doth the Lord Dyer report 1 Eliz. f.165 the Merchants of London saith he found themselves greatly grieved and made exclamation and sute to Queen Elizabeth to be disburthened of that Imposition because it was not granted by Parliament but assessed by Queen Mary her absolute power these frequent Petitions complaints and exclamations these suspensions and remitalls of Impositions are good arguments say they against the right of this Prerogative CHAP. XXI The Answer to the third Objection THis Objection consisteth of several parts and shall recieve an Answer consisting of divers parts the first part of this answer King Edw. 1. being a prudent and resolute Prince did not onely impose the three pence upon the pound upon Merchant Strangers by his Charta Mercatoria but justified and maintained that Imposition during his life True it is that after his death King Edw. 2. it was repealed as is before objected but whose Act was this by whom was this Ordinance made which did repeal this Charter not by the King and his Parliament but by certain rebellious Barons who took upon them the Government of the Realm and called themselves Ordainers Wherefore King Edw. 3. in the first year of his Reign did revive that Charter and commanded by his Writ that the Customes and Duties therein contained should be collected and levied to his use He maketh mention of these Ordinances of 5 Edw. 2. and saith the same were made per quosdā Magnates and not by the King as appeareth by the Record 1 Edw. 3. Rot. fin memb. 30. in Arch. Turris which in another place before I have recited by which Record it likewise appeareth that those Ordinances 5 Edw. 2. were before that time repealed and made void and therefore that which was done in that time of that unfortunate Prince over-ruled by his unruly Barons is not to be urged and used as an example especially since they that urge this repeal of Charta Mercatoria might if they would find any thing which makes against their contradicting humour find in the said Roll of Ordinance made in 5 Edw. 2. divers Arcles wherein those Ordainers did wrong and wound the Prerogative in matter of greater importance than in the repeal of that Charter for they might have found among the same Ordinances these things ordained First that the King should not make gifts of Lands Rents Franhises Wards or Escheats without the consent of the Ordainers Secondly that all gifts and grants formerly made by the King not only of Land and other things in England but in Gasconie Ireland and Scotland should be resumed and made void Thirdly that the King should not depart out of the Realm nor make Warre without the assent of his Barons and of his Parliament That because the King was misguided and counselled by evill Counsellers it was ordained that all his Counsel should be renewed and new Officers and Servants appointed for him These traiterous Ordinances were made against the King at that time and therefore it is a shame that any part of these Ordinances should be made an argument against the right of the Crown in laying Impositions upon Merchandizes for with the same reasons they might argue the King had no right to grant his Lands Rents Wards or Escheats that he might not go out of the Realm nor make Warre nor choose his own Counsellers or Servants without an Act of Parliament and it is manifest that those factious Barons did cause the King to forego the said Impositions rather ad faciendum populum and to gratifie the Cōmons and to draw them to their party than for the good of the Cōmon-wealth for if they had been good Counsellers they would have done as the Senate of Rome did when Nero in a glorious humor to please the people would needs have discharged at once all Customes and Impositions the Senate gave him thanks for his favour towards the people but utterly diswaded him so to doe telling him that in so doing he would ruine the state of the Common-wealth for indeed no Common-wealth can stand without these duties they are Nervi they are succus sanguis Reipublicae and therefore no Cōmon-wealth was ever without them but the imaginary Common-wealths of Plato and Sir Thomas More for they doe both agree for in the Common-wealths of which they dream there was nothing to be paid for Merchandizes exported and imported But to return to King Edw. 2. what followed upon the Repeal of Charta Mercatoria and the discharge of Impositions which King Edw. 1. established was not that poor Prince King Edw. 2. enforced to take up great sums of money of his Merchants by way of loan which he never repaid again 11 Edw. 2. Rot. fin m. 12. whereby the Merchants received a greater detriment than if they had made a double payment of Customes and Impositions which the King had discharged and therefore the example of this weak Prince doth make but a weak argument against the right of the Crown in laying Impositions upon Merchandizes and here I think it fit to observe that they were all wise and worthy Princes which are spoken of in former ages to have laid Impositions upon Merchandizes namely Solomon in the Holy Land Iulius Caesar and Augustus Caesar in the Empire King Ed. 1. and King Ed. 3. in England but on the other part they which released all Customes and Impositions were but weak Princes and destroyed themselves and the Common-wealth wherein they lived namely Nero in the Empire of Rome King Edw. 2 and King Rich. 2. with us and truly by the rule of our Common Law the King cannot if he would release all Subsides and Aids of his Subjects that they should be for ever discharged of all Subsidies to be given to the Crown such a grant were made void and against the Law Secondly touching the Petitions exhibited to the King in sundry Parliaments against Impositions laid by that King upon Merchandizes upon view of the Record wherein these Petitions are contained with
touching the repeal of Charta Mercatoria by King Edw. 2 and the remit all of divers Impositions by King Edw. 3 upon sundry Petitions of the Commons in Parliament and the punishment of divers Persons in Parliament for procuring Impositions to be set up 106 CHAP. XXVII The Answer to the third Objection 110 CHAP. XXVIII The fourth Objection that the Prerogative is bound or taken away by divers Acts of Parliament 129 CHAP. XXIX The Answer to the fourth Objection 131 CHAP. XXX The fifth Objection that Tonnage and Poundage were never taken but when the same was granted by Parliament 140 CHAP. XXXI The Answer to the fifth Objection 141 CHAP. XXXII The Conclusion 146 CHAP. XXXIII A Comparison of the Impositions set and taken in England by the Kings Prerogative with the Exceptions and Gabells in Forein States and Kingdoms whereby it will appear that the Subjects of the Crown of England do not bear so heavy a burthen by many degrees as the Subjects of other Nations do bear in this kind 147 AN ARGUMENT UP ON The Question of Imposition digested and divided into sundrie Chapters by one of His Majesties learned Counsel in IRELAND CHAP. I. The Exposition and meaning of certain words which do shew the true state of the Question THe Question it self is no more than this Whether the Impositions which the King â—f England hath laid and levied upon Merchandize by vertue of his Prerogative onely without Act of Parliament be lawful or warranted by the Law of England By the word Imposition we mean only such rates or sums of money as the King by Letters Patents under the Great Seal of England or Ireland hath set upon Merchandizes imported and exported and commanded the same to be paid and levied to His Majesties use over and above the Customes and Subsidies formerly due and payable for the same Merchandizes By the word Merchandizes we mean only such goods or Merchandizes as are transported over the Seas from one Realm or Dominion unto another to be sold or exchanged for reasonable gain or profit for upon the ingate or outgate of Commodities so crossing the Seas only Customes Subsidies and Impositions for Merchandizes are paid and taken and not for any Commodities carried too and fro by Sea and Land within one and the same Realm and Dominion By the Law of England we understand not only our customary Common Law and our Statutes of England which are Native and peculiar to our Nation only but such other Laws also as be common to other Nations as well as us have been received and used time out of mind by the Kings and people of England in divers cases and by such ancient usage are become the Lawes of England in such cases namely the generall Law of Nations and the Law-Merchant which is a branch of the Law the Imperial or Civil Law the Common or Ecclesiastical Law every of which Laws so far forth as the same have been received and used in England time out of mind may properly be said to be the Laws of England CHAP. II. Of the general Law of Nations or Jus Gentium and the force thereof in all Kingdoms that traffique and commerce is a principal subject of that Law and that it giveth power unto all Kings to take Customes and Impositions upon Merchandizes and that the Crown of England hath many Prerogatives annexed to it by the Law of Nations of which our Common Law taketh notice and doth admit and approve the same JUs Gentium or the generall Law of Nations is of equal force in all Kingdoms for all Kingdoms had their beginning by the Law of Nations therefore it standeth with good reason that the Law of Nations should be of force and of like force in all Kingdoms and for this cause in the Realms subject to the Crown of England the Law of Nations also is in force in such cases especially wherein the King himself or his Subjects have correspondence or commerce with other Nations who are not bound in those cases by the Municipall Laws of England Omnes populi saith Justinian qui legibus moribus reguntur partim suo proprio partim coÌ„muni omnium hominum jure utuntur nam quod quisque populus ipse sibi Ius constituit id ipsius proprium Civitatis est vocaturque jus Civile quod vero naturalis ratio inter omnes homines constituit id apud omnes homines plerumque custoditur vocaturque Jus gentium quasi quo jure omnes gentes utuntur and in the same place it is said Ius Gentium omni hominum generi coÌ„mune est exhoc Iure Gentium omnes pene contractus introducti sunt ut emptio venditio locatio conductio societas depositum mutuum c. And with this agreeth our Doctor and Student lib. 1. cap. 2. where it is said that Trade and Traffique is by the Law of Nations so that Commerce Trade Traffique for Merchandize between the people of several Nations and Kingdoms is a principal subject of the Law of Nations and therefore to that question that hath been made in England Whether the ancient Customes payable for Merchandizes did first grow due by our customary Common Law or Statute Law of England Why may I not answer that neither the Customary Law nor the Statute Law of England but the generall Law of Nations did first give these duties unto the Crown of England For as the Law of Nations was before Kings for Kings were made by the Law of Nations Ex jure Gentium Reges originem traxerunt saith Baldus So Kings were no sooner made by the Law of Nations but presently the same Law cum creatus fuerit Rex ei omnia regalia conceduntur competit omnibus Regibus jus imponendi quantum habet Begalia saith Baldus Vectigalia introduct a sunt à jure c. which is the Law of Nature or Nations Ideo non otiosased favoralia saith another Doctor did annex this Prerogative to their several Crowns Vectigalorigine ipsa jus Caesarum Regum partimoniale est saith another Inhaeret Sceptro saith another and therefore when our ancient British Kings took up Customes for Merchandizes transported into France as Strabo writeth Britanni vectigalia tollebant gravia earum rerum quas brevi trajectu in Galliam importabant Shall we presume they did it by Act of Parliament no for doubtlesse they did it by vertue of this Prerogative given unto them by the Law of Nations for Kings upon their first institution did greater things than this by their Prerogative without the consent of the people Vetusissima coronae jura ex singulari Regum decreto primitus orta saith a learned Doctor and at first saith Iustinian Arbitria Regum prolegibus fuere and so saith Halicarnassus lib. 3. Cicero offic. lib. 2. And truly as Customes and Impositions taken upon importations of Merchandizes being most properly called Vectigalia à mercibm evectis
the rules of those Laws so far forth as the same doth concern Merchants Merchandizes as well as by the rules of our Customary or Common Law of England especially be cause the rules of those other Laws are well known to the other Nations with whom we have commerce and to whō and from whom all Merchandizes are transported wheras the rules of our own Municipall Laws are only known within our Islands and if this Question may be decided either by the Laws of Nations or by the Law Merchant which is but a member thereof or by the Roman Civil Law we find this point clearly and absolutely determined and over-ruled by the rules of those Lawes viz. That all absolute Kings and Princes may set Impositions upon Merchandizes by their Prerogatives and thereupon we may conclude that since one Monarch hath as much power as another as Fortescue in his Book de Laudibus legum Angliae affirmeth the K. of England as well as any other King as the Emperour himself cum ipse omnes libertates habet in regno suo quas imperator vindicat in imperio As King William Rufus told the Arch-Bishop Anselm may by vertue of his Royal Prerogative annexed to his Crown and inherent to his Scepter lay Impositions upon Merchandizes exported or imported into any of his Kingdoms or Doninions CHAP. VII Of the Kings Prerogatives in general and that the same do consist in certain speciall points or cases reserved to the absolute power of the Crown when the Positive Law was first established and that the Canon Law of England doth acknowledge and submit it self to these Prerogatives BY the Law of Nature all things were cōmon and all persons equal there was neither Meum nor Tuum there was neither King nor Subject then came in the Law of Nations which did limit the Law of Nature and brought in property which brought in community of things which brought in Kings and Rulers which took away equality of persons for property caused Contracts Trade and Traffique which could not be ministred without a King or Magistrate so as the first and principal cause of making Kings was to maintain property and Contracts and Traffique and Commerce amongst men Hereupon by the same Law of Nations Tributes and Cust̄omes became due to the King or Prince to maintain him in his place of Government quasi Ministerii sui stipendia saith the School-man Deo Minister est tibi in bonum ideo tributa potestas saith Saint Paul and all these things namely Property and Contract and Kings and Customes were before any positive Law was made then came the positive Law and limited the Law of Nations whereas by the Law of Nations the King had an absolute and unlimited power in all matters whatsoever By the positive Law the King himself was pleased to limit and stint his absolute power and to tye himself to the ordinary rules of the Law in common and ordinary cases worthily and princely according to the Roman Emperour Dignissimum Principe Rex se allegatum legibus consiteri retaining and reserving notwithstanding in many points that absolute unlimited power which was given unto him by the Law of Nations and in these cases or points the Kings Prerogatives do consist so as the Kings Prerogatives were not granted unto him by the people but reserved by himself to himself when the positive Law was first established and the King doth exercise a double power viz. an absolute power or Merum Imperium when he doth use Prerogatives onely which is not bound by the positive Law and an ordinary power of Jurisdiction which doth co-operate with the Law whereby he doth minister Justice to the people according to the prescript rule of the positive Law as for example the King doth not condemn all Malefactors but by the rule of the positive Law but when the Malefactor is condemned by the Law he giveth him a pardon by his absolute Prerogative Again the King doth punish the breach of the Peace within the Land by the ordinary course of the Cōmon Law but he doth make War and Peace with Forreign Nations Quod pertinet ad liberum jus gladii as a Doctor speaketh by that absolute and unlimited power which the Law of Nations hath given unto him Again the King doth establish the Standard of Money by vertue of his Prerogative only for the Common Law doth give no rule touching the matter or form or value thereof but when those Monies are dispersed into the hands of the Subjects the same do become subject in respect of the property thereof to the ordinary rules of the Common Law Again the right of Free-hold and all Inheritance and all Contracts reall and personall arising within the Land are left to be decided by the positive Law of the Land but the Government and ordering of Traffique Trade and Commerce both within the Land and without doth rest in the Crown as a principall Prerogative wherein the King is like to Primum mobile which carrieth about all the inferiour Spheres in his superiour Course and yet doth suffer all the Planets underneath him to finish all their divers and particular courses or rather he doth imitate the Divine Majesty which in the Government of the world doth suffer things for the most part to passe according to the order and course of Nature yet many times doth shew his extraordinary power in working of miracles above Nature And truly as the King doth suffer the customary Law of England to have her course on the one side so doth the same Law yeeld submit and give way to the Kings Prerogative over the other and therefore in the 1 Hen. 7. fol. 23. there is a rule That every Custome is void in Law quae exaltat in praerogativum Regis which is an argument that the Kings Prerogative is more ancient than the customary Law of the Realm besides the power of the Kings Prerogative above the Common Law doth appear in this That whereas all privileges do flow and are derived from the Kings Prerogative and every privilege in one point or other privat communem legem yet the Common Law doth admit and allow of privileges granted by vertue of the King Prerogative CHAP. VIII Of the Kings Prerogative in the ordering and governing of all Trade and Traffique in Corporations Markets and Fairs within the Land and the Common Law doth acknowledge this Prerogative and submit it self there unto FIrst it is manifest that all Corporations of Cities and Boroughes within the Land were chiefly instituted for Trade and Commerce and not by the rule of Common Law no such Corporation can be made but by the Kings Charter for though there have been some Corporations which have been time out of mind yet the Law presumes that the same at first had their beginnings by the Grant of the King besides we find in divers ancient Charters made unto those Corporations a power granted unto the King to take de
omnibus rebus venalibus within their Liberties certain sums of Money viz. delibra piperis so much de libra zinziberis so much de quolibet panno c. for murage or towards the reparation of their Walls which is nothing else but an Imposition laid by the Kings Charter to maintain those Cities Boroughs wherein Trade and Traffique is maintained wee find such a Charter granted to Nottingham 3 Edw. 1. pat m. 21. in Arch. turris London The like is granted to Cloneniell and to some other Towns in Ireland F.N. 170. B. We find a Patent granted to a Burrough in England to take for five years a certain sum of Money of every Passenger toward the paving of the same Town Again no Fair or Market may bee holden within the Realm neither can a multitude of Subjects assemble themselves together to that end without a speciall Warrant or Grant of the King and when a Subject hath a Grant of a Fair he hath a Court of Py-powder incident thereunto wherein the proceeding in Summary de plano from hour to hour as in the Court of Merchants And for the Government of all Fairs and Markets especially touching Weights and Measures the Standard whereof was first established by the Kings Ordinance to whom the establishing of the Standard Monies which is mensura publica omnium rerum commut abilium is also reserved as a speciall Commoditie Besides in every Fair and Market where things are bought by retail for the necessary use of the Buyer and not to sell the same again as Merchandizes in another Market for that is regrating and unlawfull by the rule of the Common Law There is a Toll taken which is nothing else but an Imposition laid upon the Buyer and that that Toll was originally imposed by the Kings Prerogative it is manifest in this that the ancient Tenants of the Crown namely the Tenants in ancient Demeasne are discharged of Toll in all Markets and Fairs and that the King by Charter hath discharged divers other persons of Toll as appeareth in the Register of Writs and Pitz. Na. Brevium where we find divers Writs essend quiet de Theolneo But this discharge of Toll is onely for things bought for necessary use of the Buyer and for Merchandizes for the Tenants in ancient Demeasne are discharged of Toll for such things only as are for their provisions or manurance of their lands and in the Writ which dischargeth the goods of Ecclesiasticall persons of this Toll there is this clause dummodo non faciat Merchandiz as de iisdem as is before declared Lastly the Kings Prerogative in the Ordering and Government of Trade within the Realm doth appear in that notable Charter granted to the Abbot of Westminster recited in the Register of Writs fol. 107. wherein the King doth grant to the Abbot and his Successors to hold a Fair at Westminster for thirty two dayes together with a prohibition that no man should buy or sell within seven miles of that Fair during that time CHAP. IX That the King hath another Prerogative in the Government in the Trade of Merchandizes crossing the Seas differening from the Prerogative which he useth and ordereth in Trade and Traffique in Markets and Fairs within the Land and of the difference between Custome and Toll by the rules of the Common Law TOuching Merchandizes crossing the Seas outward and inward the same are of another quality and the Law hath another consideration thereof than it hath of such things as are bought and sold in Fairs and Markets within the Land as is before expressed and therefore the duties payable upon the exportation and importation of Merchandizes have another name being called Customes and not Toll and are also paid in another manner for Customes must be paid before the Merchandizes be discharged and brought to Land whereas toll is not paiable but for goods brought into the Fair or Market Again Custome must be paid whether the Merchandizes be sold or not but Toll is not due but for goods bought and sold in the Market Again Custom is alwayes paid by the Merchant who selleth or intendeth to sell his Merchandizes in grosse but Toll is ever paid by the party who buyeth some Commodity for his proper use and provision by retail Lastly if Customes be not paid or agreed for before the Merchandizes be discharged and brought to Land the Merchandizes are ipso facto forfeited and may presently be seized to the use of the King but if Toll be not paid the thing sold is not forfeited only it may be distrained and detained till the Toll bee paid or an Action upon the Case may be brought for the Toll These differences between Custome and Toll do apparently prove that Merchandizes for which Customes are paid do differ from other goods sold in the Markets and Fairs for which Toll is taken and that the Trade of Merchandizes crossing the Seas and the Trade that is used in Markets and Fairs are ordered by different Prerogatives and as the Tolls of severall kinds which are taken in Markets Fairs and Towns Corporate were first imposed by vertue of that Prerogative whereby the King ordereth all Trade within the Land so by vertue of that other Prerogative whereby the King governeth the Trade of Merchandizes crossing the Seas the Crown of England ever since the first institution of the Monarchy hath from time to time raised and received out of Merchandizes Customes and Impositions of divers Nature and Natures according to the diversities of Merchandizes exported and imported and the divers occasions and necessities of the comercion CHAP. X. Of the ancient duty called Custome payable for our principall Commodities exported and that it was originally an Imposition THE ancient duties payable for Merchandizes were but of two kinds and known by two names Customes and Prizes Customes were paid for Homebred and Native Commodities exported and Prizes were taken out of Forreign Commodities imported The Native Cōmodities out of which Custome was paid were Wooll Wooll-fells and Leather and this Custome did consist of rertain rates or sums of Mony imposed by the King upon those Merchandizes exported which rates were raised and reduced higher or lower from time to time as occasion did arise for although in the time of King Edw. 1.the Customes payable for those Commodities were reduced to this certainty viz. to a demi mark for every Sack of Wooll a demi mark for every three hundred Wooll-fells and a mark for every last of Leather which we call now the great and ancient Custome ab initio non fuit sic these were not the rates from the beginning for not long before that time there was a greater and more ancient Custome paid for the exportation of those Commodities Britanni saith Strabo vectigalia tollebant gravia earum rerum quas brevi trajectu in Galliam importabant this was Magna Customa in the time of the Britans and though the certain rates thereof doth not appear yet
over and above the duties payable by Denizens for the same commodities which grant being made by the Merchants of every Nation not being incorporated and made a body politick is in respect of them of no force of the rule of the common Law until the Kings charter made it good and maintained it untill it was confirmed by Parliament 27 Edw. 3. which was fifty years after the date of the Charter upon the matter these duties payable by Merchant Strangers were onely Impositions raised and established by the Kings charter which Charter being made in England was after wards established exemplised under the Great Seal of England and transmitted into Ireland with a special Writ directed to the Officers of the Customes there to levy three pence of the pound and other duties mentioned in that Charter as appeareth in the Red Book of the Exchequer there by vertue of which Writ onely without Act of parliament the three pence of the pound and other duties were levied and paid to the Crown in Ireland CHAP. XII Of the ancient Customes payable for Wines called Prizage and Butlerage THe most ancient Custome payable for Wines is Prizage which is not any sum of Money but two Tunns of Wine in specie out of every Ship freighted with twenty Tun the one to be taken before the Mast and the other behind the Mast of the Ship and the price which the King himself did limit to pay was twenty shillings onely for every Tun as appeareth by an ancient Record of 52 Hen. 3. whereby we may conjecture what easie rates the King gave for the prizes of other Merchandizes This Custome of Prizage was meerly an Imposition for it could not be granted by the Merchants of Forreign Nations being no body politique as is before declared neither is there any Act of Parliament wherby our own Merchants did ever grant it unto the Crown This duty of Prizage was remitted unto the Stranger by the Charter of 31 Edw. 1. before mentioned and in lieu thereof by vertue of the same Charter the King before mentioned receiveth two shillings for every Tun of Wine brought in by Strangers which we now call Butlerage but Prizage is paid in Specie by all our own Merchants at this day the Citizens of London only excepted who having remissiō of Prizage by a special charge were charged with a new Imposition called Gauge viz. de quolibet dolio 1 d. de vinis venientibus London which was accounted Forreign Magno Rot. An. 1 Edw. 1. in the Office of the Pipe at Westminster the last of these Impositions which by the continuance have gotten the name of Custome was laid and imposed three hundred years since and have ever since been approved and are now maintained by the Common Law of England as the lawfull and ancient Inheritance of the Crown CHAP. XIII Of the ancient Officers which our Kings have created by vertue of their Prerogatives to search and over-see all sorts of Merchandizes and to collect the duties payable for the same AS our ancient Kings by vertue of their Prerogative without Parliament have laid the Customes or Impositions before expressed upon all sorts of Merchandizes exported and imported so by the same Prerogative have they ordained severall sorts of Officers to search and over-see those Merchandizes on which they had laid those Impositions namely the Gauger of Wines a high Officer is as ancient as the Imposition of the Gauge it self before mentioned the Alneger of the cloths which is more ancient than any Act of Parliament that makes mention of the cloths for there is a Record of 14 Edw. 2. in Archivis turris which speaketh of the Alneger the Packer of Woolls the Garbellor of spices besides the Officer of the Customes viz. the Customer Comtroller and Searcher all which Officers have ever taken Fees of Merthants both Denizens and Aliens not by grant of the Merchants or Act of Parliament but by vertue of their severall Patents granted from the King CHAP. XIV Of other Impositions besides the ancient Customes before mentioned laid upon Merchandizes by severall Kings and Queens since the Conquest some of which Impositions have been discontinued or remitted and some of them are continued and paid at this day and first of the Imposition set by King Edw. 1. over and besides the Customes spoken of before IT appeareth in the Record of the Exchequer of England That in 16 Edw. 1. an Imposition of four shillings was laid upon every Tun of Wine brought into England from certain Towns in Gascogine and Spain and at this day answered and compted for duty for the space of ten years untill the 26 Edw. 1. when it was remitted but during the Kings pleasure only it appeareth likewise 25 Edw. 1. by the Charter of the confirmation then made of the Great Charter that King Edw. 1. had for divers years before set and laid an Imposition of fourty shillings upon every Sack of Wooll exported which ad instantiam Communitatis he was pleased to remit which remittall was of meer Grace upon the Petition of the Commons after that Imposition had been laid many years before and it is to be noted that this Imposition of fourty shillings upon a Sack of Wooll was taken and levied above twenty years together after the new Imposition of the demi mark upon a Sack of Wooll which was set and established for that begun in 3 Edw. 1. and this Imposition of fourty shillings continued till 25 Edw. 1. which is a strong argument that the first establishment of the demi mark was not by a binding Act of Parliament with a Negative voice that no other duties should be taken for those Merchandizes as was surmized but was only a mitigation or reducement of a greater Custome paid before which was done of meer Grace upon some reason of State at that time CHAP. XV Of the Imposition set and taken by King Edward the second KIng Edward the second in the beginning of his Reign did as well take the ancient as the new Custome upon Wooll Wooll-fells and Leather which ancient Custom must needs be intended an ancient Imposition over and besides the demi mark which was then called the new Custome and this appeareth by a Record in the Tower 3 Ed. 2. Claus. memb. 16. where the King directeth his Writ collectoribus suis tam antiquae quam novae customae lanarum pellium corriorum and requireth them to pay certain Debts of his Fathers King Edward 1. out of their old and new Customes and a hundred thousand pound pro damnis occasione retardationis solutionis debitis c. and howbeit afterwards he being a weak Prince and misguided by ill Counsell and over-ruled by his unruly Barons was driven first to suspend the payments of his Customes of three pence the pound and other duties contained in Charta Mercatoria during pleasure only as appeareth by his Writs of Supersedeas directed to the Collectors of his
they had the same right the same prerogative and absolute power that their Predecessors had but because they found other means to make other profit upon transporting of Merchandizes and that in another manner and in so high measure as the trade of Merchandizes in those daies could hardly bear any greater charge without danger of overthrowing all Trade and Comerce And therefore those Princes did in their wisdomes forbear to lay any further Impositions by their Prerogatives For these Kings who reigned after King Edw. 3. who conquered Callis in France and before Queen Mary lost Callis had two principal waies and meanes to raise extraordinary profits upon Merchandizes but proceeding from one cause namely from establishing the Staple at Callis for King Edw. 3. some few yeares before his death did by his Prerogative in point of Government without Act of Parliament erect a Staple at his Town of Callis and did ordain and command that all the Merchandizes exported out of England Wales and Ireland by any Merchant Denison or Alien should presently be carried to the Staple at Callis and to no other place beyond the Seas This Staple at Callis was first setled and fixed there by an Ordinance which the King made by virtue of his Prerogative and absolute power in the government of Trade and Comerce without Act of Parliament And if this Ordinance so made had been thought unlawful and against the liberty of the Subject it would never have been approved and confirmed by the Judgements of so many Parliaments in the times of Rich 2. Hen. 4. Hen. 5. and Edw 4. Neither could there have been such heavy penalties layd by those Parliaments upon the transgressors of those Ordinances Insomuch as in the time of King Henry the sixth it was made Felony to Transport any Merchandizes to any part beyond the Seas but to Callis onely Now the Staple of Callis being thus established there did arise a double profit to the Crown for transportieg of Merchandizes over and above the ancient Customes and other Subsidies granted by Parliament First it came to pass that the Customs and Subsidies for Merchandizes transported out of England Wales and Ireland which before was single and payd but once that is upon the outgate after the establishing of the Staple at Callis the duties for the same Merchandizes became double at the least and for the most part treble and were ever payd twice and for the most part thrice namely once upon the outgate in the Ports of England Wales and Ireland secondly upon the ingate at Callis and because all the commodities brought into Callis could not be vented into the main Land there but the greatest part was to be exported again by Sea into higher or lower Germany and other the North East Countries and some into Spain and Italy and the Ilands of the Levant there did arise a third payment of Customes and Subsidies for so much of their commodities as were exported again cut of Callis by meanes whereof the Customes and Subsidies did amount to threescore thousand or threescore and ten thousand pounds sterling per annum in the latter times of King Edw. 3. and during the reign of Rich. 2. Hen. 4. Hen. 5. and the beginning of the reign of Hen. 6. as appears by the Records of the Exchequer of England which according to the valuation of Moneys at this day the ounce of Silver being now raised from two shillings to five shillings do make two hundred thousand pound sterling per annum which doth equal or surmount all the Customes Subsidies and Impositions received at this day though that plenty of money and price of all things and consequently the expences of the Crown be exceedingly increased in these times And albeit the breach of Amity between the Crown of England and the Duke of Burgundy who was the Lord of the Lower Germany in the weak and unfortunate time of King Hen. 6. did cause a stop of Trade between us and that Country into which the greatest part of our Staple wares especially Wooll and Cloth were vented and uttered and was likewise the cause of loss of all our Territories in France except Callis and all the Merchandizes thereof whereby the Customes and other duties payable for Merchandizes were in the time of that unhappy Prince withdrawn and diminished to a low proportion yet afterwards upon the Mariage of Margaret Sister to King E. 4. unto the Lord Duke of Burgundy as that in honour of the English Wooll which brought so much Gold into his Country he instituted the Order of the Golden Fleece and thereupon the Customes Subsidies and Impositions were raised again to so high a Revenue as our Kings could not well in policy strain that strength of profit upon Merchandizes any higher Secondly albeit the Staple established at Callis being first established by an order made by the Kings Prerogative and absolute power was afterwards approved and confirmed by sundry Acts of Parliament yet did the King by another Prerogative retain a power to dispence with that Ordinance and those Acts of Parliament and to give license to such and so many Merchants as himself thought fit to export any Merchandizes out of England Wales and Ireland unto any other parts beyond the Seas besides à non obstante of the first Ordinance and of the Statutes which did establish the Staple at Callis By virtue of this Prerogative and power the several Kings who had Callis in their possessions did grant so many Licences to Merchants as well Aliens as Denizens to transport our Staple commodities immediately into other places without coming to Callis for which Licenses whereof there are an incredible number found in the Records of England the Merchants payd so dear for their commodities especially the Genoeses and the Venetians and other Merchants of the Levant as by the profits made of those Licences did amount to double the value of those Customes and Subsidies payable for exportation thereof and thereof those Princes as they had the less need so had they no reason at all to charge the Trade of Merchandizes with any other or greater Impositions In these two points before expressed doe consist the principal cause why the Princes of England who succeeded King Edw. 3. who won Callis untill the reign of Queen Mary who lost Callis did not directly use their Prerogative in setting any other Impositions upon Merchandizes above the ancient Customes and Subsidies granted by Parliament For it is to be observed that most part of those Princes who reigned after K. Edw. 3. and before Queen Mary had the Subsidy of Tonnage and Poundage granted unto them by Parliament which being added to the gain of the Staple of Callis did augment not a little the profit layd upon Merchandizes And may be a reason likewise why those Kings did forbear to lay any other Impositions by their Prerogative We may adde hereunto other reasons First Rich. 2. was a Minor and over-ruled by the great Princes of the
upon Salt amounting to an exceeding great Revenue the Impost of Wines upon every Vessell carried into any walled Towns or Suburbs thereof and payable although it be transported thence again before it be sold la hault passage or de maine forrein for Merchandizes exported le traject forrene for Merchandizes imported la solid de Cinquants mil holmes imposed upon Cities walled Towns and the Suburbs onely and after layd upon Town and Country without distinction the common positions for provisions the tenthes paid by all Ecclesiasticall persons These and other Impositions of the like nature are layd and levied upon the Subjects of France by the absolute power and Prerogative of the King and though many of these were imposed at first upon extraordinary occasions and set but for a time yet the succeeding Princes have continued them from time to time and the most part of them made ordinary and perpetuall by King Lewis the 11. who was wont to say France was a Meadow which he could have mowed as often as he pleased In Spain there is an Imposition named Alcavala imposed as well upon the Nobility as the Commons which was first raised by Alphonsus the 12. to expell the Mores and for the expurgation of Algiers but afterwards it was made perpetuall and is now a principall part of the Royall Patrimony Gutturis de Gabellis Quaest. 174 this Imposition was at first but the twentieth part but afterwrds it was raised to the tenth of every mans Estate which doth far surmount the highest Impositions that ever were layd in England by the Kings Prerogative without Act of Parliament This Alcavala is an Imposition within the Land but the Impositions upon Merchandizes exported and imported are far higher especially upon Merchants Strangers for their common Impositions upon Strangers is five parts upon the hundred and in the year 1604 they imposed thirty of the hundred as is before declared and upon the Ingate of Indian Spices into Portugall the King of Spain doth lay the greatest rates that ever were set in Christendome although upon the outgate the rates are more moderate In Italy the Impositions and Gabells set upon every kind of thing by the States and Princes there are intolerable and innumerable Non mihi si Centum Linguae sunt oraque Centum Ferrea vox Italorum omnes numerare gabellas Cunct a gabellarum percurrere nomina possem Especially upon the great Towns and Teritories that are subject to the Great Duke of Tusknie where there is not any roots nor any herb nor the least thing that is necessary for the life of man that is bought and sold or brought into any Town but there is a Gabell or Imposition set upon it where no Inholder Baker Brewer or Artificer can exercise his Trade but the Great Duke will share with him in his gain by laying some Imposition upon him where no man can travell by Land or by Water but at every Bridge at every Ferry at every Wharf or Key at every Gate of a Town the Garbellor arrests him and is ready to strip him naked to search what goods he hath about him for which he ought to pay the Garbell In the Popes Territories the Impositions which His Holinesse doth lay upon his Subjects as a Temporall Prince are as many and as heavy as those that are levied by the Duke of Tuskanie in so much as when Sixtus Quintus had set an Imposition upon every thing that served for the use of mans life Pasquill made hast to dry his Shirt in the Sun fearing the Pope would set some Imposition upon the heat of the Sun miastingo saith he in the 16. sole sevenda I omit to speak of the Exactions of the Court of Rome in another kind which are infinite and which long lay heavie upon the Western Countries of Christendome untill of late years some Nations did free themselves thereof by rejecting the Yoke of the Bishop of Rome In the Seigniory of Venice the Gabells upon the Land were more moderate than in the other parts of Italy But that City being the Lady of the Adriatique Sea doth use by prescription a high Prerogative in laying Impositions upon all Merchandizes arriving within the Gulf Civitas Venetiorum saith Baltholus potest pro maritmeis mercibus Gabellas imponere quia est Civitas in Mari situata Veneti saith Baldus ex consuetudine sunt domini maris Adriatici possunt statuere super Gabellis maris wherein they observe a profitable and politique course for upon the Commodities of other Nations which are of goods in their Common-wealth they lay the easier Impositions sometimes five sometimes seven sometimes ten upon the hundred which doth exceed the highest Imposition in England five in the hundred at the least In the Low Countries the Impositions which they call Excizes paid by the Retaylors of Wines and other CoÌ„modities and not by the Merchant are the highest in Christendome and yet we perceive that people to thrive and grow rich withall for an improved high rent doth so quicken the industrie of the Farmer as he thriveth oftentimes better than his Neighbour who is a Free-holder and payeth no rent at all howbeit to draw Trade and to invite all Nations to Comerce with them so to make their Country a Staple Store house or Magizen of all Europe they do set but easie rates upon Merchandizes imported but when they once have gotten their coÌ„modities in to their hands if any Merchant will export the same again hee shall pay a greater Custome The Grand Seignior of Turkie doth impose sometimes ten in the hundred sometimes twenty in the hundred upon Merchant Strangers who Trade into the Levant and I could speak of his other Exactions and Impositions upon his Vassalls but that I think it not meet to compare that Regions Tyrant to the Princes and States of Christendome I may remember at last the Great Toll which the King of Denmark taketh of every Ship that passeth into the Sound taking advantage of a narrow Straight between Elsmore and Copman Haven whereas the King of England being the undoubted Lord of the Narrow Seas between Dover and Callis might take the like Toll if it pleased him and by the same right might participate of the great gain of Fishing which the Busses of Holland and Zeland do make yearly upon the Coasts of Great Britain Thus we see by this comparison that the King of England doth lay but his little Finger upon his Subjects when other Princes and States do lay theâ—â— heavy loins upon their people whâ—â—â—â—â—the reason of this difference froâ—â—â—hence commeth it assuredly not from a different Power or Prerogative for the King of England is as absolute a Monarch as any Emperor or King in the world and hath as many Prerogatives incident to his Crown whence then proceedeth it to what profitable cause may we ascribe it certainly to divers causes profitable and
Ius Imponendi Vectigalia OR The Learning touching CUSTOMS Tonnage Poundage And Impositions on MERCHANDIZES ASSERTED As well from the Rules of the Common and Civil Law As of Generall Reason and Policy OF STATE By Sir JOHN DAVIS Knight c. The Second Edition LONDON Printed for Henry Twyford in Vine-Court Middle Temple MDCLIX TO THE KINGS Most Excellent MAJESTIE THis Question SIR Concerning your Majesties Prerogative in laying Impositions upō Merchandizes ought not to have been made or moved at all howbeit it hath been stirred and debated in Parliament it is now become an Argument of such Dignity and Importance as the best-able amongst your Servants learned in the Law may well imploy their best learning in the discussing thereof For my part though I find myself unable to handle this Noble Question as the weight and worthinesse requireth yet have I upon sundry occasions arising from the course of my service collected such notes and drawn together such materials as may be of use in the building of a Fortresse in the defence of this Prerogative and sure I am that if your Majestie will vouchsafe to cast your eye upon these Collections that your Judgment will make a far better use and application thereof than I who have gathered the same can posible do these little sparks of knowledge being taken into your Majesties consideration wil instantly multiply and arise into a flame and so give a great light for clearing of this Question This learning within my hand is but a Spade in your Majesties hand will become a Scepter I have onely like the poor Indian digged up the Oare of Mine which being brought into the Kings Mint and refined there becomes part of the royall Treasure For the Argument it self it will hardly receive any Ornament Ornari res ipsa negat contenta doceri The best light I can give it is Lucidws ordo by breaking it into Capita rerum and casting it into a plain and naturall method it is somewhat long and in Multiloquio non deest peccatum saith Solomon it is also mixt with some reasons of State wherein a common Lawyer may easily make a Solaecism yet such as it is my zeal to advance your Majesties Service hath moved me to present it to your Majesty with all humbleness and with some hope that this dutifull pains shall purchase a pardon for the errours therein committed By your Majesties unprofitable Servant and humble Subject Iohn Davies THE CONTENTS Of this BOOK CHAP. I. THe Exposition and meaning of certain words which do shew the true state of the Question page 1 CHAP. II. Of the general Law of Nations or Jus Gentium and the force thereof in all Kingdoms that traffique and commerce is a principal subject of that Law and that it giveth power unto all Kings to take Customes and Impositions upon Merchandizes and that the Crown of England hath many Prerogatives annexed to it by the Law of Nations of which our Common Law taketh notice and doth admit and approve the same 4 CHAP. III. Of the Law Merchant which is a branch of the Law of Nations and how it differs from our Common Law and how in the judgement of our Law Merchandizes do differ from other Goods Chattels which do not crosse the Seas and how the Common Law and Statute Law of England do admit and allow of the Law Merchant 10 CHAP. IV. Of the Imperial or Civil Law and of the extent of the Iurisdiction thereof of what force it is at this day within the Monarchies of Europe and in what case it is received within the King of Englands Dominions and how it warranteth all Kings and Absolute Princes to lay Impositions upon Merchandizes 20 CHAP. V. Of the Canon or Ecclesiastical Law and how far forth it doth examine and resolve this Question in cases of Conscience only 25 CHAP. VI That this Question of Imposition may be examined and decided as well by the rules of the Laws before mentioned as by the rules of our Municipiall Laws or Common Law of England 27 CHAP. VII Of the Kings Prerogatives in general and that the same do consist in certain speciall points or cases reserved to the absolute power of the Crown when the Positive Law was first established and that the Cōmon Law of England doth acknowledge and submit it self to those Prerogatives 29 CHAP. VIII Of the Kings Prerogative in the ordering and governing of all Trade and Traffique in Corporations Markets and Fairs within the Land and the Common Law doth acknowledge this Prerogative and submit it self there unto 34 CHAP. IX That the King hath another Prerogative in the Government in the Trade of Merchandizes crossing the Seas differing from the Prerogative which he useth and ordereth in Trade and Traffique in Markets an Fairs within the Land and of the difference between Custome and Toll by the rules of the Common Law 38 CHAP. X. Of the ancient duty called Custome payable for our principall Commodities exported and that it was originally an Imposition 41 CHAP. XI Of the ancient duties called Prizes taken out of Forein goods imported except Wines and the petty-Customes of three pence of the pound were accepted by King Edw. 1. in lieu of Prizes 46 CHAP. XII Of the ancient Customes payable for Wines called Prizoge and Butlerage 50 CHAP. XIII Of the ancient Officers which our Kings have created by vertue of their Prerogatives to search and over-see all sorts of Merchandizes and to collect the duties payable for the same 52 CHAP. XIV Of other Impositions besides the ancient Customes before mentioned laid upon Merchandizes by severall Kings and Queens since the Conquest some of which Impositions have been discontinued or remitted and some of them are continued and paid at this day and first of the Imposition set by King Edw. 1. over and besides the Customes spoken of before 53 CHAP. XV Of the Imposition set and taken by King Edward the second 55 CHAP. XVI Of the Impositions laid and levied upon Merchandizes by King Edw. 3 57 CHAP. XVII Of the Profits raised unto the Crown out of Merchandizes during the reigns of several Kings who succeeded K. Edw. 3 untill the reign of Queen Mary 62 CHAP. XVIII That Queen Mary did use her Prerogative in laying Impositions upon Merchandizes 70 CHAP. XIX That Queen Elizabeth also used her Prerogative in laying Impositions upon Merchandizes 71 CHAP XX That our Soveraign Lord King James hath by virtue of the same Prerogative without Act of Parliament layd several Impositions upon Merchandizes 73 CHAP. XXI The general reasons whereupon this Prerogative is grounded 76 CHAP. XXII Of the several Objections that are made against the Kings Prerogative in laying Impositions upon Merchandizes and the soveral Answers thereunto 94 CHAP. XXIII The Answer to the first Objection 96 CHAP. XXIV Of the second Objection touching the uncertainty and unbounded largenesse of this Prerogative 99 CHAP. XXV The Answer to the second Objection 101 CHAP. XXVI The third Objection
invectis are the most ancient duties payable to the King so are the same grounded saith Bodin upon the greatest reason and equity in the world quid est enim rationi aequitati magis consentaneum quà m is qui in nostro territorio ex nostris questum facit principi nostro cujus permissu sub cujus protectione negotiatur aliquod perdat presolvat And this common reason and equity which is the ground of these duties payable for Merchandizes what is it else but the Law of Nations which is nothing else but that which common reason hath establisht amongst all men for the common good of all men and which all Nations have received and imbraced for their mutual benefit and commoditie Neither is this the onely Prerogative which the King of England hath by the Law of Nations habet Rex in regno suo saith Bracton alia privilegia de jure Gentium propria viz. Soreceum maris thesaurum insentum grossos pisces balenas sturgiones Wavias c. huiusmodi de jure Gentiune pertinent ad Coronam saith Stampford Prerogativa Regis fol. 37. 6. Adde hereunto the absolute power of the King to make War and Peace League and Truces to grant safe Conducts to pardon all Offenders to distribute all degrees of Honour and the like wherein the King hath sole and absolute power Merune imperium non mixtum and which Prerogative is as antient as the Crown and incident to the Crown by the Law of Nations Lastly for the proof that our Common Law doth acknowledge and prove the Law of Nations in most of these cases The Book 19 Edw. 4. 6. doth approve the Kings absolute power in making War Peace and Leagues and in 37 Edw. 6. 20. That part of the Law of Nations whereby the High Constable and Marshall of England do proceed in their Courts of War and Chivalrie is called the Law of the Land We finde also the Kings sole power in 11 Hen. 4. Rot. Parliament in Archivis turris London for Coyning of Money we have the case of Mines Com. 316. for safe conduct of Merchants and stop of Trades tempore guerrae and Letters of Reprisall we have 7 Edw. 4.19.2 R. 3.2 Magna Charta cap. 30. and the Register wherein we find Writs of Reprisall CHAP. III. Of the Law Merchant which is a branch of the Law of Nations and how it differs from our Common Law and how in the judgement of our Law Merchandizes do differ from other Goods Chattels which do not crosse the Seas and how the Common Law and Statute Law of England do admit and allow of the Law Merchant MErcaturavel Societas Mercatorum est magna Respublica saith Vlpian and therefore that Common-wealth of Merchants hath alwayes had a peculiar and proper Law to rule and govern it this Law is called the Law Merchant wherof the Laws of all Nations do take speciall knowledge first both the Common Law and Statute Law of England do take notice of the Law Merchant and do leave the causes of Merchants and Merchandizes to be decided by the rules of that Law for what saith the Book of 13 Edw. 4.9 10 A Merchant Stranger made sute before the Kings Privy council for certain Bailes of silk feloniously taken from him and it was moved that this matter might be determined by Common Law unto which motion the Lord Chancellor doth there answer This sute is brought by a Merchant who is not bound to sue according to the Law of the Land nor to tarry the tryal of twelve men nor other solemnity of the Law of the Land albeit the King hath jurisdiction of him within the Realm and may cause him to stand to his Judgement yet this must be according to the Law of Nature which some call the Law Merchant which is a Law universall throughout the word these are the words of that Book it is there resolved by all the Justices That if the Merchandizes of such a Merchant stranger be stollen and waved by the Felon the King himselfe shall not take those Merchandizes as waifes though in that case the goods of another person were lost by the Common Law of England Doth not this case make it manifest that in the judgement of our Common Law Merchandizes that crosse the Seas are goods of another nature quality and consideration than other goods and Chattels which are possessed within the Realm and do not crosse the Seas This learning is not common in our Books and therefore I think it meet to exemplifie this difference with more cases in this point If two Merchants be Joynt-Owners or Partners in Merchandizes which they have acquired by a Joynt-Contract in this case the one shall have an Action of Account against the other die legem mercatoriam saith the Register fol. 135. and F. N. 117. D. and yet by the rule of the Common Law if two men be joyntly possessed of other goods which are not Merchandizes the one shall not call the other to account for the same Again if two Merchants have a joynt Interest in Merchandizes if the own die the Survivor shall not have all but the Executor of the party deceased shall by the Law Merchant call the Survivour to an account for the moytie F.N. 117. D. whereas if there be two Joynts of other goods which are not Merchandizes the Survivor shall have all per jus accrescendi even by rule of the Common Law Again in an Action of Debt upon a simple Contract which is without Deed in writing the Defendant by the Common Law may wage his Law that is he may bar the Plantiff of his Action by taking an Oath that he doth not ow the Debt nor any part thereof and yet in Itin. Derby 2 Edw. 3. Iohn Crompton Merchant upon a Contract without Deed the Defendant would have waged his Law but was not permitted so to do and so Judgement was given against the said Defendant Again the goods of Ecclesiastical persons are discharged of Toll by the Common Law si non exerceat Marchandizas de eisdem saith the Register 259. a. for then their goods are charged being now become goods of another nature when the same are turned into Merchandizes so are the goods of the French Nobility discharged by Gabels and Impositions if they traffique not but if they traffique saith Bodin their goods are charged like other Merchandizes Again for goods wrongfully taken within the Land the Common Law giveth remedy against the Trespasser or the wrongfull Taker onely but if an English Merchant be spoiled of his Merchandizes upon the Sea or beyond the Sea by the Subject of another King the Register doth give him a Writ of Reprisall against all the Subjects of that Nation Regist. 122. 6. and 46 Hen. 3. we find a more brief cause of Justice for there the King in respect of the
loss which certain Merchants of London had sustained by an arrest made of their goods made by the Countesse of Flanders doth grant unto them all the Merchandizes whereof the Flemings were possest in England Rot. Pa. 3 E.1.m. 19. in Archivis turris London Whereupon the Lord Mayor of London did seize so much goods of the Flemish Merchants as amounted to 730. Marks and delivered the same to Thomas Debassing and other Merchants who had suffered loss by that arrest and in the same Roll of 3 Ed. 1. the Lord Mayor of London and Bailiffs of Southampton are commanded by the Kings Writ Quodomnes Mercatores Londienses ad partes Angliae accedentes per bona catalla sua distrin guantur sed in legem mercatoriā consueti dinem Regni ad satisfaciendum Mercatoribus Florentinis de pecuniis ipfi mutuo tradiderunt Willielmo Episcopo Leodiensi Here we see that Lex mercatoria which doth apparently differ from the ordinary Cōmon Law of this Kingdom is said to be Consuetudo Regni And lastly in a sute at the Common Law no mans Writing can be pleaded against him as his Act and Deed unlesse the same be sealed and delivered but in a sute between Merchants Bills of Lading Bills of Exchange being but Tickets without Seals Letters of advice and credences Policies of assurance Assignations of debts all which are of no force at the Common Law are of good credit and force by the Law Merchant Thus we see how Merchandizes do differ from other goods and Chattles in the eye of the Law and how the Law Merchant doth differ from the common Law of England and how the Common Law doth admit and allow thereof Our Parliaments likewise have not onely made extraordinary provision for the more speedy recovery of Debts due unto Merchants for their Merchandizes than is provided by our Common Law as appeareth by the Statute of Acton Burnell made the 11 Ed. 1. and the Statute de Mercatoribus made 13 Ed. 1. but also have course of proceedings in cases of Merchants differing from the course of our Common Law for by the Statute of 27 Ed. 3.cap 2 it is declared that the proceedings in causes of Merchants shall be from day to day and hour to hour according to the Law of the Staple and not according to the course of the Common Law and by another Article in the same Parliament that all Merchants comming to the Staple should be ruled according to the Law of Merchants touching all things comming to the Staple and not by the Common Law of the Land and by another Article that neither of the Benches nor any ordinary Judges of the Common Law shall have any Jurisdiction in those cases and lastly that the Law of Marque and Reprisall which is a branch of the Law Merchant shall be used as it had been used in times past So as the Parliament doth but declare the ancient Law and doth not introduce a new Law in those cases Untill I understood this difference between Merchandizes other goods and between the Law Merchant and the Common law of England I confess I did not a little marvell England being so rich and entertaining Traffique with all Nations of the World having so many fair Ports and so good Shipping the King of England also being the Lord of the Sea and also a principall part of his Royal Revenue consisting in duties payable for Merchandizes so as many Questions must of necessity arise in all ages touching Merchants and Merchandizes What should be the cause that in our Books of the Common Law of England there are to be found so few cases concerning Ships or Merchants or concerning Customes or Impositions payable for Merchandizes But now the reason thereof is apparent for the Common Law of the Land doth leave these cases to be ruled by another Law namely the Law Merchant which is a branch of the Law of Nations The Law Merchant as it is a part of the Law of Nature and Nations is universall and one and the same in all Countries in the World for as Ciccro saith of the Law of Nations Non orit alia lex Romae alia Athenis alia nune alia posthac sed omnes gentes omni tempore unalex eademque perpetua continebit c. So may we say of the Law Merchant there is not one Law in England another in France another in Spain another in Germany but the same rules of reason and the like proceedings of the Law Merchant are observed in every Nations for as our Chancellor of England affirmeth 13 E. 4. 9. That the proceedings of the Law Merchant ought to be according to the Law of Nature which is universall so say the Civilians of severall Nations The Italian Doctor saith In curia mercatorum naturalis aequitas praecipue expectanda ex aequo bono causas dirimendas esse The French man saith In curia mercatorum proceditur de mer a aequitate omissis solemnitatibus apicibus juris The Spaniard likewise saith Apices subtilitas juris non considerantur in foro mercatorio whereby it is manifest that causes concerning Merchants and Merchandizes are not wont to be decided by the peculiar and ordinary Laws of every Country but by the generall Law of Nature and Nations out of which resulteth this Conclusion Suppose it be admitted that by the positive Law of the land Taxes and Tallages may not be laid upon our goods within the land without an Act of Parliament yet by the Law of Nations and by the Law Merchant which are also the Law of England in cases of Merchandizes the King of England as well as other Kings may by vertue of his Prerogative without Act of Parliament lay Impositions upon Merchandizes crossing the Seas being goods whereupon the Law doth set another character than goods possessed in the land as is before expressed CHAP. IV. Of the Imperial or Civil Law and of the extent of the Iurisdiction thereof of what force it is at this day within the Monarchies of Europe and in what case it is received within the King of Englands Dominions and how it warranteth all Kings and Absolute Princes to lay Impositions upon Merchandizes WHen the City of Rome was Gentium Domina Civitas illa magna quae regnabat super Reges terrae The Roman Civil Law being communicated unto all the Subjects of that Empire became the Common Law as it were of the greatest part of the inhabited world yet the extent thereof was never so large as that of the general Law of Nature as it is noted by Cicero offic. lib. 2. Majores nosiri aliud jus Geutium aliud Civile jus esse voluerunt quod enim civile non idem continue Gentium quod autem idem civile esse debet whereby it is manifest that the Law of Nations is and ought to be a binding Law in all States and Countries as
it is binding so it is perpetuall and cannot be rejected as the Roman Civil Law is rejected in most of the Kingdoms in Europe in such cases as do arise within the body of every Kingdom In France Philip le Bell saith Bodin de Repub. lib. 2. cap. 8. when he erected the Courts of Parliament at Paris and Mountpelier did expresly declare That they should not be bound in their judgments by the rule of the Roman Civil Law and in erecting of all the Universities of France they are charged in their severall Charters not to revive the profession of the Civil and Common Law as of binding Laws in that Kingdom and therfore Earum non imperio sed ratione utimur saith another learned Doctor of France In Spain saith Bodin in the same place several Kings have made Edicts that no man upon pain of death should allege the Roman Civil Law as a binding Law in their Dominions And that Stephen King of Spain did forbid the publique pleading of the Civill Law As for England to omit what Pope Elutherius wrote in his Epistle to Lucius the first Christian Monarch of the Britains and whereof mention is made in Saint Edwards Laws de protestate Regia Ecclesiastica published in the time of 3 Hen. 8 petiistis saith he leges Romanas Caesaris vobis transmitti quibus in regno Britaniae uti voluistis leges Romanas Caesaris reprobare possumus legem Dei nequaquam c. In a Parliament holden in England 11 R. 2. when a course of proceedings in Criminal causes according to the Civil Law was propounded an answer was made by all the States assembled That the Realm of England neither had been informer times nor hereafter should be ruled and governed by the Civil Law Rot. Parliament 11 R. 2. in Archivis turris London and accordingly Chopinus the French Lawyer in his Book de Domino Franciae tit. 28. speaking of the Civil law hujus Romani juris saith he nullus apud Anglos usus sed ex veteri gentis instituto Britani reguntur legibus municipialibus quas illis majorum mores praescripserunt But this is to be understood of causes arising within the Land onely for all Marine and Sea causes which doe arise for the most part concerning Merch and Merchandizes crossing the seas our Kings have ever used the Roman Civil Law for the deciding determining therof as the Romans did use the Law of the Rhodians in those cases according to the memorable rescript of the Emperour Anthonius terram suis legibus Rhodiis Regi How be it now those Laws of the Rhodians are digested and incorporated into one body of the Civil Law the jurisdiction touching causes arising upon the Sea is committed by the King of England to his Admirall who in his Court of Admiralty doth proceed in those cases according to the rule of the Civil Law Now for the Rules of the Civill Law touching the power of Kings in laying Impositions upon Merchandizes the same are clear without question and observed without contradiction in all the nations of the world Regiitantum juris ac muneris est vectigalia imponere redditus seu vectigalia portus quae perveniant ex his quae in portum vel ex portu vehentur regalia sunt Rex qui non recognoscit superior em potest instituere nova vectigalia c. hoc est jus totius mundi totus mundus hoc jure utitur the D. Doctors who interpret the Imperiall Law have their Books full of these Rules And if it be objected That these rules of the Imperiall Law are onely intended of the Emperour a learned Civilian hath this position plus juris habet Rex in Regno quam Imperator in imperio quia Rex transmittit regnum ad successionem quod non facit imperator quiest tantum electionis c. Lastly when I speak of the rules of the Civil Law and make use thereof I do apply the same onely in cases of Merchandizes crossing the Seas which I do expresse by way of protestation that I may not be mistaken here and in other places where I cite the Text of the Imperiall Law as if I intended that Law to be of force in England generally as in other places CHAP. V. Of the Canon or Ecelesiastical Law and how far forth it doth examine and resolve this Question in cases of Conscience only THe Canon Law is received and admitted in England as a binding-Law in cases Ecclesiasticall which are indeed the proper Subjects of that Law But this question of Imposition is meerly Civil and therefore the Canon Law doth not handle it but in cases of Conscience only so indeed it doth examin and determine in what cases an absolute Prince may with a good conscience lay and demand new Impositions Decret. causae 24. Quaesti 3. Princeps potest indicere nova vectigalia and in Summa Summarum tit. degabellis exactionibus these rules and distinctions are laid down Quilibet Monarcha potest imponere novum vectigal quod tamen boni viri arbitrio moderaudum est potest Princeps imponere vectigal ultra conventiouem in duobus casibus i. quando redditus ejus non sufficiunt ad segimē boni cōmunis decentiam status ejus 2. quando non sufficiunt ex nova emergentia principes enim sunt à Deo instituti ut nō quaerant propria Lucra sed cōmunem utilitatem populorum lilia agri neque arant neque nent which may be applyed saith a French Monk to all Princes but espicially to the Kings of France because they bore the Lilies The Canonists do likewise allege the example of our Saviour who paid an Imposition of Poll-money and wrought a miracle to enable himself to do it that the Tribute-money which Christ commanded to be paid Date Caefari quae sunt Caesaris and the Custome which Saint Paul willeth every Christian to pay willingly reddite omnibus cui tributum cuivectigal were but Impositions raised by the Emperours Edict only without the consent of the people and yet Saint Paul requires obedience to Princes in that case not only for fear of the Princes displeasure but for conscience sake non solum propter iram sed propter conscientiam CHAP. VI That this Question of Imposition may be examined and decided as well by the rules of the Laws before mentioned as by the rules of our Municipiall Laws or Common Law of England FOrasmuch as the general Law of Nations which is and ought to be Law in all King doms and the Law Merchant is also a branch of that Law and likewise the Imperiall or Roman Law have been ever admitted had received by the Kings and people of England in causes concerning Merchants and Merchandizes and so are become the Law of the Land in those cases why should not this Question of Impositions be examined and decided by
because the same were gravia vectigalia in those dayes we may easily beleeve that Custome to have been greater than the demi mark for a Sack of Wooll Again the Statute of Magna Charta which was as ancient as King Iohn speaketh of ancient Customs payable for Merchandizes and the Book of 29 Edw. 3. maketh mention of ancient Customes granted to King Iohn in the Town of Southampton which doubtlesse were other Customes than that of the demi mark c. for that in the Record of the Tower 3 Edw. 1. Rot. sin 24. Rot. Patent of the same year m. 9. the demi mark which was first established by the Kings Letters Patents is called Nova Custuma and this was a diminution of the ancient Custome saith the Book of 30 H. 8. Dyer 43. Again when the same King Edw. 1. had by his Writ onely without Act of Parliament established the Custome of the demi mark c. in Ireland in all the Customers Accounts which are found in the Pipe-Rolls in the time of Edw. 1. Edw. 2. Edw. 3. in that Realm it is also called Nova Custuma which importeth as much as a new Imposition for Imposition is a new name and hath been of use but of late years whereas every new charge laid upon Merchandizes in ancient times was called Nova Custuma as the Lord chief Baron Fleming observed in his Argument in Bates Case of Currans in the Exchequor of England but because this Custome of a demi mark was a reducement made by King Edw. 1. of the great and ancient Custome to that proportion which was then thought reasonable as after upon sundry Petitions of the Commons was allowed by the succeeding Princes it obtained in tract of time the name of the great and ancient Custome this Custome of demi mark was not granted to the King by Parliament but reduced to that rate by the King by the prayer of the CoÌ„mons as is expressed in the Record of 3 Edw. 1. fin memb. 24. for albeit the Charter for confirmation of Magna Charta made in 25 Edw. 1. doth recite That the demi mark was granted by the Cominaltie yet is there no Act of P. printed or recorded wherein that grant of the Cominaltie doth appear neither can it stand with the rule of reason that the demi mark being a diminution of the ancient Custome should proceed from the grant of the Cominalty to the King for the King would never have accepted of such a grant as did diminish his Revenue neither had it been thank-worthy or acceptable and therefore the King having a Negative voice would never have given his assent to such a grant in Parliament but it is to be presumed that this diminution of the ancient Custome was made in Parliament and not by Parliament and that by prayer of the Commons as the Record of 3 Edw. 1. Rot. fin memb. 24. testifieth the King was then well pleased for that time to draw down the ancient Custome to that rate and the people did willingly yeeld and consent to the payment thereof and this I take to be the true interpretation of the Charter or Statute made in 25 Edw. 1. And therefore because we find no Act of Parliament whereby the people did originally grant the great and ancient Customes to the King and because we find it was uncertain and subject to diminution and alteration we may conclude that it was but an imposition laid by the King from time to time by vertue of his Prerogative without any grant from the Cominalty of the Realm who can make no grant but by Act of Parliament in truth it were absurd to affâ—rme that the great and ancient Custome imposed upon Native commodities of the Kingdom was first granted by Act of Parliament since it cannot be imagined that ever those commodities did passe out of the Kingdom without Custome being equal in time with the first Scepter and since the Scepter was established many hundred years before the people were called to be in Parliament besides the very name of Custome doth note and argue that it began before any Act of Parliament was made for that it signifieth a duty payable or accustomable to be paid time out of mind which in presumption of Law is before any Record wherefore the rules in the Lord Dyers Book are good Law viz. The King hath an Estate of Inheritance in the Custome payable for Merchandizes as being a Prerogative annexed to his Crown And again 30 Hen 8. 43. Custome is an Inheritance in the King by the Common Law and not given by any Statute CHAP. XI Of the ancient duties called Prizes taken out of Forreign goods imported except Wines and the petty-Customes of three pence of the pound were accepted by King Edw. 1. in lieu of Prizes FOr the Forreign commodities which are brought into England our Kings in ancient times did not take any Rates or Customes or Sums of Money but took such part of the severall commodities in specie as they thought fit for their proper use paying for that they took a price as themselves did likewise think fit and reasonable which was called the Kings price this Prerogative is proved by the rule of the Imperiall Law Rex nonrecognoscens superiorem potest è India in propria causa and also by the rule which is given 31 Edw. 3. 60. where the Bishop of Norwich having forfeited to the King thirty Talents of Beasants of Gold because the quantity and value thereof was uncertain it was adjudged that the Kings House should set down of what quantity and value every Talent should be and that the same should be paid accordingly and by the same Prerogative whensoever any Subject is to pay a Fine or Ransome unto the King for a contempt The King himself doth limit and set the Fine or Ransome at his own will or pleasure The Forreign commodities thus taken by the King in Spain at his own price were called Prizes but because these prizes were many times grievances to the Merchants and brought little or nothing to the Kings Coffers That prudent Prince Edw. 1. by that famous Charter called Charta Mercatoria made in the 31 year of his reign did remit unto all Merchant Strangers their prizes and did grant quod de caetero super mercimonia Merchandizas vel bona ipsorum per ipsum Regem vel Ministros suos nullos nulla appretiatio vel estimatio apponeretur quod nulla prisa vel arrestatio ratione prisae inde fieret c. and the Charter doth further recite That for the remission of these prizes the Merchants Strangers did grant unto the King three pence upon the pound now called the petty-custome out of all Forreign Merchandizes imported except Wines and for our Native commodities exported they would pay for every Sack of Wooll four pence and for every three hundred Wooll-fells six shillings and four pence and for every last of Leather a demi mark
Blood who would not suffer him to use his Prerogative Secondly that during the Wars of Lancaster and York there was no fit time to make use of that Prerogative while both parties did strive to win the favour of the people Thirdly that King Hen. 7. had much ado to settle himself in the quiet possession of the Kingdome after those troubles Fourthly that King H. 8. had such a mass of Treasure left him by his Father and did so inrich himself by dissolution of Abbyes as he had no need to make use of this Prerogative Fiftly that K. E. 6. was also a Minor and that his chiefest Council did more contend to advance their own houses than the Kings profit CHAP. XVIII That Queen Mary did use her Frerogative in laying Impositions upon Merchandizes QUeen Mary in whose time the Town of Callis was lost and consequently the benefit of the Staple at Callis was lost did by her absolute power as appeareth by the Report of the Lord Dyer 1 Eliz. Dyer 165. raise an Imposition upon Clothes viz. six shillings and eight pence upon every Cloth over and above all Customes and Subsidies True it is that the Merchants petition'd to be disburthened of this Imposition which was referred to the consideration of the Justices and others whereupon they had many assemblies and conference as that Book reporteth And albeit the Resolution of the Judges in that behalf be not found in that book it is to be presumed That they adjudged the Imposition to be just and lawfull because it was continued and answered during all the Reign of Queen Mary This Queen Mary likewise by her Preroonely layd and Imposition of four Marks upon every Tun of French Wines over and above the Prizage and Buttlerage which during her life time was payd without contradiction CHAP. XIX That Queen Elizabeth alsoused her Prerogative in laying Impositions upon Merchandizes QUeen Elizabeth also by virtue of the same Prerogative did not only continue the Impositions layd by Queen Mary upon Cloths and French Wines but did raise other Impositions of sundry sorts of Merchandizes by the same absolute power namely upon every Tun of sweet Wines upon every Tun of Rhenish Wines upon every Kental of Allom which during the time of the prudent Princess were payd and received without question Besides the same Queen upon complaint made unto her in the twelfth year of her Reign That the State of Venice did impose one Ducket upon every hundred of Currans exported out of their Dominions by the Merchants of England did by her Letters Patents grant unto the English Merchants who traded into the Levant That they only and their Assigns might bring Currans into England The English Merchants having this privilege did take five shillings and six pence upon every hundred waight of Currans brought into England by Strangers which was duly payd although it was taken by the Merchants by virtue of their privilege only of sortiori yet it ought to have been payd if it had been payable to the Queen her self as the Lord Chief Baron Fleming did observe in his Argument of Bates's case of Currans in the Court of Exchequer in England CHAP. XX That our Soveraign Lord King James hath by virtue of the same Prerogative without Act of Parliament layd several Impositions upon Merchandizes HIS Majesty likewise when he came to be King of England finding his Crown to be seized of this Prerogative and finding withall the necessary charge of the Crown exceedingly to increase did for the supportation thereof not onely continue the Impositions layd by Queen Mary and Queen Elizabeth but also layd new Impositions upon sundry sorts of Merchandizes over and above all Customes and Subsidies formerly due and payable for the same And these are the Impositions now the principal of these is twelve pence upon the pound or a second poundage set upon Merchandizes as well exported as imported by Letters Patents 28. Iuly in the sixth year of his Majesties Reign but how is it set and imposed surely with such moderation and limitations and such receptations full of grace and favour as no Monarch or State in the world did ever impart to their Subjects the like in the like case for besides other gracious clauses contained in the same Letters Patents All commodities serving either for food or sustenance of the Kings people or seting the poor on work or for munition or defence of the Realm or for maintainance of Navigation or which especially tends to the enriching of a Kingdome are excepted and discharged by this Imposition As for the special Impositions which his Majesty hath set upon certain forrein commodities as Currans Logwood Tobacco c. As touching the first of these the Imposition hath been adjudged lawful in the Court of Exchequer of England And for the other commodities they are of such nature as no man ever made question but that the Impositions set upon them were lawful Besides these Impositions layd in England his Majesty by his Prerogative onely since the beginning of his Reign received the Impost of Wines in Ireland and hath likewise to make equality of Trade in that Realm layd an Imposition of twelve pence on the pound of all other Merchandizes imported and exported out of the Ports of Dublin Waterford Drogheda and Galway the Citizens of which Cities and Townes are exempted and discharged of Poundage granted by Act of Parliament there which Imposition was never impugned in Ireland but hath since the setting thereof been levied and payd without contradiction And that wee see how long the Crown of England hath been seised of this Prerogative in laying Impositions upon Merchandizes and how the same hath been put in practice by the most prudent Princes since the Conquest CHAP. XXI The general reasons whereupon this Prerogative is grounded ALthough it be a matter of difficulty and doth savour withall of curiosity and presumption to search a reason for every Prerogative that is incident to the Crown for Sacrilegii est disputare de Principis facto saith the Imperial Law and Scrutator Majestal is opprimitur à gloria saith the Wise man Yet the reasons whereupon this Prerogative is grounded are so many and manifest as it were not amiss to collect the principal of them rather for the confirmation than the satisfaction of such as have moved this question touching the lawfulness of Impositions layd by his Majesty upon Merchandizes First the King is the Fountain of all Justice and therefore the first reason drawn from the Kings charge in doing Justice and procuring Justice to be done to Merchants not onely distributive Justice wherein consisteth Praemium and Paena but cōmutative Justice is also derived from the King Now his Majesty doth exercise commutative Justice chiefly in the ordering and government of Trade and Comerce wherein hee is to doe Justice or to procure Justice to be done to his Subjects who do make contracts real and personal within the Land But to his Merchants that
power to shut and open the fame at his pleasure Again all the Ports of the Kingdome are the Kings not onely the Cinque-Ports which have a special Warden appointed by the King but the rest of the Ports are also his and many of them bear a mark of the Kings Inheritance in their Additions as Linn Regis Waymouth Melcombe Regis Pool Regis for the King is Custos totius Angliae Regni as the four Seas are the Walls of the Kingdom so the Havens and Creeks are the Gates and Posterns of it They are Ostia they are Ianua Regni and we find two Ports in Italy called by those names the one at the mouth of Tiber the other corruptly called Genoa but the true name thereof is Ianua And as the Havens are Ianua Regni the King himself is Ianus and hath power to open and shut them at his pleasure Omnia sunt nostra clausa patentque manu Saith Ianus in the Poet And again Modo namque patulchus idem modo sacrifico Clusius ore vocor The King of England hath ever had this Prerogative incident to his Crown to shut and open the Ports when it pleased him as appeareth by many Records especially by the Parliament Rolls in the time of King Edw. 3. wherein are found many Petitions that the Sea might be open which during that Kings time was often shut by virtue of his Prerogative only and never fully opened again but when the King layd an Imposition upon Merchandizes And this Prerogative of Custody of the Ports and of shutting and opening the same is reserved unto the Crown upon an excellent reason For Trade and Comerce is not fit to be holden with all persons neither are all things fit to be imported or exported For such persons as are enemies to the Crown come to discover Arcana Regni such persons as come to corrupt Religion or the manners of the people such persons as under colour of Merchandizes come to set up Monopolies or a dry Exchange to drain or draw away our commodities or money out of the Kingdom are not fit to enter in at the Gates of the Kingdome And again such commodities as the Kingdom cannot spare as Corn in time of dearth and such as may advantage our Enemies and hurt us in time of Warre as Horses Armor Gunpowder c. are not fit to be exported out of the Realm And Poysons Heretical books and other things which are apparently hurtfull to the people are not to be imported and therefore the Prerogative of opening and shutting the Ports is accompanied with another absolute power of stoping and imbarring of Trade Comerce sometimes generally sometimes between us and particular Nations and sometimes for particular Merchandizes only whereof there are many presidents and examples both in Records and Histories of our Nation 2 Edw. 1. Rot. Parliament m. 18. in Archivis Turris 2 Edw. 3. Rot. fin m. 17 ibid. 10 Edw. 3. Chaunc m. 3. in dorso ibid. 17 Hen. 6. Sccio Angliae Matthew Paris Hist. Magna P. 568. 10 Hen. 7 Stow. And this Prerogative of imbarring Trade doth result out of the undoubted Prerogative which the King hath to make Peace and War with Forein Nations for open War is no sooner denounced but all Trade of Merchandize is stopt and imbarred between the Nations which are ingaged in the Warre durante bello inter Reges Christianos merces quascunque exportare vetamur ne Regni arcana serutentur saith a Doctor of the Imperiall Law whereupon wee make this Argument That since the King hath absolute power of shut the Ports and stop Trade it standeth with as good reason that he shold have the like power to lay reasonable Impositions upon Merchandizes for opening of the Ports and for giving of freedome of Trade again he that may doe the more may doe the lesse Non debet ei cui id quod majus est id quod minus est non licere saith the Rule of the Law hee that may prohibit Merchants not to Trade or passe may dispence with that prohibition and give them leave to go and Traffique sub modo Again the King of England is Dominus Maris which floweth about the Island as divers ancient Books and Records do testifie as Fitz Avowry 192. 6 Rich. 2. protection 46. Rot. Scotiae m. 16. in Arch. Turris And he is Lord of the Sea not only quoad protectionem jurisdictionem sed quoad proprietatem and this is our Neptunes trident for God gave unto man as well the Dominion of the Sea as of the Earth where it is said Gen. 1. replete terram subjicite eam dominamini piscibus maris c. and in Psal. 8. Omnia Subjecit pedibus ejus Pisces maris quicquid perambulat Semitas maris And therefore Baldus affirmeth de jure Gentium distincta esse dominia in mare sicut in terra arida and again mare attribuitur terrae Circunstanti Hence it is though there be but one Ocean in respect wherof the whole Earth is quasi insula saith Strabo yet is there Mare Gallicum Sardicum Creticum AEgypticum oceanus Britanicus Germanicus c. which particular names do note a propriety in the Princes and States who are Lords of the Land adjoyning Hence it is that our Common Law doth give unto ourKing all the land which is gained from the Sea which Stampford in the Book of the Kings Prerogative doth affirm to belong to the King de jure Gentium quia Mare seu particula Maris est de Territorio illius Civitatis vel Regni cui magis appropinquat saith one learned Doctor Mare se extendit cum aquae flnt mensurabiles saith another hence it is that all navigable Rivers as the River of Thames and the River of Lee and divers others are called in our Books the Kings Streams 19. Ass p.6 Dyer 117 a because cause such Rivers are arms of the Sea so far as the Sea doth flow in them 22. Ass. p. 93. and lastly hence it is that by the Common Law the King may prohibit all Subjects whatsoever to passe over the Seas without his licence and to that end in 22 Edw. 4. the King commanded the Warden of the Cinque Ports and the Bailifs of all other Ports of the Kingdom that they should not suffer any Man Ship or Boat to passe beyond the Seas quousque Rex illud mandaverit and the like Commandments were given 4 Edw. 3. 21 Edw. 3. 16 Rich. 2. 17 Hen. 6. If therefore the king hath such an absolute Interest in the Ports and in the Sea and in all Navigable Rivers wherein the Kings Ports are situated for the main part why should he not have the like absolute power to limit and prescribe unto Merchants what duties they shall pay and upon what terms and conditions they shall passe to and fro upon the Seas and
lay an Imposition upon Merchandizes without the consent of the Merchants and doth cause the Officers of his Customes to take and levie the same it seems sat they they take away the goods of the Subject without his consent and without cause of forfeiture which is not warranted either by Law of Nations which brought in property nor by the Law of the Land which doth maintain property CHAP. XXIII The Answer to the first Objection TO this Objection we answer That the King doth not take the Land or Goods of any without his consent but here we must distinguish there is a particular and expresse consent and there is an implicit and general consent when a man doth give his Goods or surrender his Lands to the King by deed enrolled or when in Parliament which representeth the body of the whole Realm and wherein everyman doth give his consent either by himself or his Deputy A subsidy is granted to the King there is an expresse consent but when subjects who live under a Royall Monarchy do submit themselves to the obedience of that Law of that Monarchy whatsoever the Law doth give to that Monarch the subjects who take the benefit of the Law in other things and doe live under the protection of the Law doe agree to that which the Law gives by an implicit and general consent and therefore there are many cases where the King doth lawfully take the goods of a Subject without his particular expresse consent though the same be not forfeited for any crime or contempt of the Owner If a Theef do steal my goods and waive them the King may lawfully take those goods without my particular consent and without any fault or forfeiture of mine but in regard I live under the Law which giveth such wayves unto the King he taketh not the same without my implicit consent so if my Horse kill a man the King may lawfully take my Horse a Deodand without my fault or consent in particular but in that I have consented to the obedience of the law which giveth all Deodands to the King he taketh not my Horse without the implicit or generall consent of mine In the time of War the King doth take my House to build a Fort or doth build a Bulwark upon my Land he doth me no wrong though he doth it without my consent for my implicit consent doth concur with it for that I being a member of the Common-weal cannot but consent to all Acts of necessity tending to the preservation of the Common-wealth So if the King doth grant me a Fair or Market with a power to take a reasonable Toll If a man will buy any thing in my Fair or Market I may take Toll of him though I give no particular consent to the grant because the Law whereunto every Subject doth give consent and obedience doth warrant the taking of Toll in every Market and Fair granted by the King So it is in case of Impositions the Law doth warrant the Kings Prerogative to impose upon Merchandizes as is before declared and therefore though the Merchants give not their particular consents to the laying of these Impositions yet in regard they live under the protection and obedience of the Law which submits it self to this Prerogative and allow and approve the same it cannot be said that the King doth take these Impositions of them without their implicit and generall consent CHAP. XXIV Of the second objection touching the uncertainty and unbounded largenesse of this Prerogative THe second Objection is against the uncertainty and unlimited largenesse of this Prerogative for in other cases they say where the King taketh the goods of a Subject by his Prerogative there is a certainty what he may take as in the case of way vs he may take onely the goods wayved and no more In case of Deodand he may take only the thing that causeth the death of a man and no more In case of wreck he may take only the goods that are wreckt and no more In case of Wardship of Land holden in Capite the King may take the profits of the Land till the Heir sues his Livery and no longer In case where the King hath Annum Diem vastum hee may retain of the Lands of the Felon attainted which are holden of other Lords for a year and a day and no longer In all these cases there is a certainty what the King shall have and how long he shall have it but in case of Imposition the quantity or rate thereof high or low is left to the Kings own will or pleasure so as if he should be mis-led as many Princes have been with evill Counsell he might with his Prerogative doe hurt the Cōmon-wealth by laying too heavy burthens upon his Subjects for though hetherto his Majesty hath imposed upon Merchandizes only twelve pence on the pound over and above the ancient Custome and the Subsidies granted by Parliament yet this Prerogative being unlimitted he may hereafter say they set five shillings or ten shillings upon the pound if it please him and so undoe the Merchants or discontinue and overthrow all Trade and Comerce CHAP. XXV The Answer to the second Objection TO this Objection the fittest answer is That it is an undutifull Objection and withall too busie too bold and too presumptuous for it is an Objection against the wisdome of the King in point of Government and against the bounty and goodnesse of the King towards his people the Text of the Civil Law cited before doth call it a kind of Sacrilege to dispute of Princes Judgments or Actions and for the Law of England sure I am that it trusteth the Wisdome and Judgement of the King alone in matter of greater importance than in laying of Impositions or setting of rates upon Merchandizes Is not the Kings wisdome only trusted with the absolute power of making War and Peace with forein Nations whereby hee may when hee pleaseth interrupt all Trade of Merchandizing Is not the King alone trusted with the like power of making and decrying of monies which is the onely Medium of all Traffique and Comerce Is not he solely and without limitation trusted with the nomination and creation of all Judges and Magistrates who are to give Judgement in cases concerning the Liberties Lands and Lives of all his Subjects hath not he a sole and unlimited power to pardon all Malefactors to dispence with all penal Laws to distribute all Honours to grant to whom he pleaseth Protections Denizations Exemptions not only from Juries but from all other Services of the Common-wealth and yet these Prerogatives if the same be not used with judgement and moderation may prove prejudicial to the Common-wealth as well as the laying of Impositions upon Merchandizes Shall therefore any undutifull Subject make these conclusions The King may have a continuall Warre with Forein States and Princes and so continually corrupt all courses of Merchandizes Ergo he shall lose his
forbear to use their Prerogative in that kind for those other notable and true causes which are before at large expressed in the seventeenth Chapter Lastly touching the Imposition of six shillings and eight pence upon every Cloth laid by Queen Mary after the losse of Callis she held the same with a new Imposition upon French Wines without any question during her life and albeit complaint were made against the Imposition set upon Cloaths unto Queen Elizabeth upon her first entry as it is usuall for the people to complain of burthens and charges upon every change of Government Yet we find that after the Conference of the Judges spoken of by my Lord Dyer 1 Eliz. f. 165. Dyer though their resolution be not their reported Queen Elizabeth did continue that Imposition and also the Impost upon French Wines as being lawfull set for the space of fourty four years without any further contradiction besides Queen Elizabeth did raise divers other new Impositions as is before declared whereunto there was never made any opposition during her Reign and which His Majesty that now is hath received without any question for the space of fifteen years and thus much may suffice for answer to the several points in the third Objection CHAP. XXVIII The fourth Objection that the Prerogative is bound or taken away by divers Acts of Parliament FOurthly It is objected That though it were granted and admitted that the King de jure communi hath a rightful Prerogative to lay Impositions upon Merchandizes yet that power say they is restrained and taken away by sundry Acts of Parliament First the Statute of Magna Charta cap. 30. doth give safe conduct and free passage to all Merchants to buy and sell absque aliquibus malis tolnetis per antiquas rectas consuctudines Secondly by the Act or Charrer of confirmation in 25 Edw. 3. The King doth release a Mayltolt of fourty shillings upon a Sack of Wooll and doth grant for him and His Heirs unto the Commons that he shall not take such things without the Commons consent or good will and in the same Act or Charter reciting that wheras divers people of the Realm were in fear that the Aids and Taxes which they had given to the King before that time was towards his War and other businesses of their own grant and good will might turn to a bondage of them and their heirs because in time to come they might be found in the Rolls and were likewise grieved for Prizes taken throught the Realm The King doth grant for him and his Heirs That he will not draw such Ayds Taxes or Prizes into a Custome for any thing that had been done before that time be it by Roll or any other president that may bee found Thirdly by the Statute 14 Edw. 3. cap. 12. the King doth grant that all Merchants Denizens and Aliens may freely come into the Realm with their goods and Merchandizes and freely tary there and safely return paying their Customes Subsidies and profits thereof reasonably due Fourthly by the Statute 11 Rich. 2. cap. 9. it is enacted That no Imposition or Charge be put upō Wools Wooll-fells or Leather other than the Custome or Subsidie granted to the King in that Parliament if any be the same to be adnulled and repealed saving to the King his ancient right there are other Acts of Parliament containing the same sence and substance but these principally have been singled out and cited as specially Statutes restraining and taking away the Kings Prerogative in laying Impositions upon Merchandizes CHAP. XXIX The Answer to the fourth Objection TO this Objection first I answer That this being a Prerogative in point of Government as well as in point of profit it cānot be restrained or bound by Act of Parliament it cannot be limited by any certain or fixt Rule of Law no more than the course of a Pilot upon the Sea who must turn the Helme or bear higher or lower sail according to the wind and weather and therefore it may be properly said That the Kings Prerogative in this point is as strong as Samson it cannot be bound for though an Act of Parliament be made to restrain it and the King doth give his consent unto it as Samson was bound with his own consent yet if the Philistins come that is if any just or important occasion do arise it cannot hold or restrain the Prerogative it will be as thred and broken as easie as the bonds of Samson and again Ius imponendi vectigalia inhaeret sceptro saith the Law Imperiall quod Sceptro inhaeret non potest tolli nisi sublato Sceptro The Kings Prerogatives are the Sun-beams of his Crown and as inseparable from it as the Sun-beams from the Sun The Kings Crown must be taken from his head before his Prerogative can be taken away from him Samsons hair must be cut off before his courage can be any jot abated Hence it is that the Kings Act nor any Act of Parliament can give away his Prerogative for in his own Act the King cannot release a tenure in Capite nor grant it to any Subject Dyer 44. If the King grant Land to I.S. to hold as freely as the King himselfe holds his Crown he shall hold his Land still of the King in Capite and if he Alien it hee shall pay a Fine for the tenure is vested in the King by his Prerogative saith the Book 14 Hen. 6. 12. and therefore when King Edw. 3. did grant unto the Black Prince his eldest Son the Dutchy of Cornwall una cum omnibus wardis maritagiis releviis c. non obstante Prerogativa Regis the Prince could not seize a Ward that held of the Kings Ward who held in Capite of the King because it belonged to the King by his Prerogative 34 Ass. pl. 25. whereby it is manifest that the King by his own Grant cannot sever his Prerogative from the Crown nor communicate any part thereof to any one not to the Prince his eldest Son and in this case of Tenure it was resolved in the last Assembly of Parliament in England That no Act of Parliament could be framed by the wit of man whereby all Tenures of the Crown might be extinguished neither can any Act of Parliament in the flat Negative take away the Kings Prerogative in the affirmative The King hath a Prerogative in the affirmation that he may pardon all Malefactors There is a Statute made at Northampton 2 Edw. 3. That no Charter of pardon for killing a man shold thence forth be granted but in one case where one man killeth another in his own defence by misfortune Hath this Statute so bound the Prerogative as no man ever since hath been pardoned for killing a man but in the cases before mentioned The King hath a Prerogative in point of Government to make choice of the Sheriff in every County there is a Statute made 28 Edw. 3 cap. 7. That
no man shall be Sheriff two years together and that no Commission shall be granted or renew'd for the year following to him that hath been Sheriff the year before Was the Kings Prerogative bound by this Statute when hee granted the Sheriffwick of Northumberland to the Earle of Northumberland during his life with non obstante of that Statute 2 Hen. 7. fol. 6. Again the King hath no ancient and absolute power to grant dispensation for holding Ecclesiastical Benefices in CoÌ„mendum There is a Statute made 7 Edw. 3 in Ireland whereby it is enacted and declared that the Kings dispensation in this case shall be utterly void if it be not by Act of Parliament did this Statute so derogate from the Kings Prerogative and so restrain it that he might not only by his Letters Patents Grant CoÌ„mendamus before the Statute of 28 Hen. 8. in this Realm assuredly the Kings dispensation non obstante the Statute would have taken away the force thereof as if no such Law had ever been made There are manyother cases of like nature which I omit as for the particular Statutes before recited the words thereof are too generall to bind or restrain this Prerogative in laying Impositions upon Merchandizes First that Statute of Magna Charta doth give safe conduct to all Merchants to come and go and to tarry within the Realm and to buy and sell their Merchandizes sine malis tolneâ—is per antiqnas rectas consuetudines How do these generall words restrain the Kings Prerogative in this Case for the ancient Common Law of the Land which is the Common Custome of the Realm doth warrant and approve the Kings Prerogative in laying Impositions upon Merchandizes as before I have fully and clearly proved then a reasonable Imposition laid by the King is Antiqua rect a consuetudo warranted and approved by the Great Charter Secondly albeit King Edw. 1. by Act or Charter of confirmation of Charta Mercatoria made in Anno 25. of his Reign doth release the Maletolt of fourty shillings upon a Sack of Wooll and doth grant for him and his heirs that he will take no such thing without the assent and good will of the Commons That word such doth not absolutely bind the Kings Prerog. that he shall lay no Imposition at all for it is to be intended such in quantity such in excess for foury shillings at that time was as much as six pound at this day which the scarcity of money in those dayes being considered and compared with the plenty of money at this day might then be said to be a great burthen and yet this strong band doth not bind K. Ed. 3. his Grand-child but that notwithstanding this Charter or Act of Parliament he took these things in greater quantities sometimes fourty shillings sometimes fifty shillings upon a Sack of Wooll when the Philistins came upon him that is when the Wars of France and other urgent occasions did presse him to it as to the other Article contained in the Act or Charter of 25 Edw. 3. where it is said the people did fear left the Aids and Taxes granted of their good will to the King might turn to a bondage to them and their heires when the same in time to come should be found in the Rolls and the King did grant for him and his heirs That he would not draw such Ayds and Taxes into a Custome that Act in this point restraineth not the Kings Prerogative in setting Impositions upon Merchandizes for it speaketh only of Ayds and Taxes willingly granted by the people in Parliament therefore I marvell that this Article was ever objected or used as an argument against Impositions and whereâ—â— the King doth grant that such Ayds shall not be drawn into a Custome such words are usuall in the preambles of Acts of Subsidies where the grant is large and extraordinary viz. That it may not be drawn into an example that it may not be a president in future times and yet succeeding Parliaments have not forborn to grant as large Subsidies as formerly were granted Thirdly the Statute of 14 Edw. 3. cap. 12. doth rather maintain the Kings Prerogative in this case than any way impugne or impeach it for by that Law free passage is granted to all Merchants paying the Customes Subsidies and profits thereof reasonably due Now certain it is that all duties payable to the King for Merchandizes are of three kinds only Customes which are these ancient and certain duties wherein the Crown hath no Inheritance as is before expressed Subsidies which are granted by Act of Parliament and Impositions which are raised from time to time by the Kings Prerogative onely we find not a fourth kind and therefore the word Profits must needs be taken for Impositions Fourthly the Statue of 11 Rich. 2 cap. 9. though it provide in expresse terms that no Imposition or Charge be layd upon Wooll Wooll-fells or Leather other than the Custome or Subsidy granted in that Parliament yet it saveth alwayes to the King his ancient rights this was as turbulent a Parliament as ever was holden in England and yet was the Kings Right acknowledged though the unruly Lords and Commons did in a manner force his Assent to limit his Prerogative at that time Lastly if these Acts had absolutely bound the Kings Prerogative and had been observed literally and punctually untill this time the King should onely have had at this day the Demi mark for our own Staple Wares and perhaps the three pence Custome for Forein Commodities and no more What an inconvenience what an absurdity had this been at this day when all Forein Princes have raised their Customes to an exceeding height when as I have noted before the necessary expences of the Crown are so much encreased when the prizes of all Commodities are so much enhanced when there is so great a plenty of money in this part of the World when the Kings Revenue within the Land is so much improved Is it fit that Duties payable for Merchandizes should stand at a stay and keep the old rates without augmentation CHAP. XXX The fifth Objection that Tonnage and Poundage were never taken but when the same was granted by Parliament FIftly it is objected That the Subsidies of Tonnage and Poundage were never taken by any King of England but when the same were granted by Act of Parliament which is an Argument say they that the King could never take those duties but by his absolute power for if his Prerogative could have imposed those rates of it self what need was there of an Act of Parliament why should the King have expected the consent of the Commons cum Dominus eis opus habet and when the Exchequor were so empty as the Jewells of the Crown were layd to pawn by some of those Kings who were glad to take these Subsidies by Acts of Parliament CHAP. XXXI The Answer to the fifth Objection THe Answer to this Objection is twofold First
That which is objected is not true for Tonnage and Poundage have been taken by the Kings Prerogative without Act of Parliament Secondly If it had been true it is no Argument against the Kings Prerogative in this point for what is Tonnage but a certain sum of money payable for every Tun of VVine imported did not King Edw. 3 by force of his Charter Mercatoria without Act of Parliament take two shillings for every Tun of VVine imported by Strangers did not the same King set a new Imposition of Gauge viz. upon every Tun of VVine brought into London as is before expressed and are not the severall Impositions of VVines taken by His Majesty in England and Ireland a kind of Tonnage being nothing else but extraordinary rates imposed upon ever Tun of VVine and levied and taken by the Kings Prerogative Again was not the three pence upon the pound imposed by King Edw. 1. by his Charta Mercatoria a kind of Poundage and well nigh as great an Imposition as twelve of the pound granted at this day by Act of Parliament if we consider the Standard of Monies in the time of King Edw. 1. when a peny sterling did contain as much or more pure Silver as the three pence sterling doth contain at this day but admit that no Tonnage or Poundage had ever been taken but by grant in Parliament yet it is no Argument but that the King might impose the like or the same by his Prerogative for three particular reasons The first because these Subsidies were granted for maintainance of the Navy Royall the charges whereof were grown so great in the time of King Edw. 4. as appeareth by the Act of Tonnage and Poundage granted in the 12 year of that Kings Reign that it sufficed not nor in time to come was like to suffice or defray the charge of the Crown in keeping the Sea these are the words of that Act if then in the time of King Edw. 4. the Subsidy of Tonnage being three shillings upon a Tun of VVine brought in by Denizens and six shillings upon a tun brought in by Strangers and the Subsidy of Poundage or of twelve pence of the pound upon other Cōmodities was not then sufficient to bear the charge of the Royall Navy which was not comparable by many degrees in strength and beauty and multitude of Ships to the Kings Navie at this day Doth it stand with reason that the Crown should be stinted or limited ever after to take no more than those poor Subsidies granted at that time that the King should wait for a Parliament and pray an ayde of the Commons for a competent means to maintain the Walls of the Kingdom when by the Common Law of the Realm he may grant Letters Patents for Murage to maintain the Walls of a Corporate Town If any unexpected necessity should arise for repairing of the Navy Royall and making a Navall War should the King expect a Parliament for a greater Subsidy to bee granted by the Commons before he should rigge and make ready his Ships perhaps a Kingdom might be lost in the mean time as if a Pilot sitting at the Helm and seeing a sudden gust of wind would over-set the Ship or perceiving her to be running on a Rock should forbear to turn the Helm or cause the Sail to be stricken untill he had consulted with the Mariners or Passengers and demanded their consent or counsell in the businesse the Pilot himself with his Mariners and Passengers might be cast away before they were agreed what course to take Secondly these Subsidies of Tonnage and Poundage were first granted by Act of Parliament in the time of the Civill VVars between the two great Houses of Lancaster and York when the severall Kings were loath to make use of their Prerogatives but were glad to please their people and loath to impose any charge upon them but by common consent in those troublesome times Thirdly Kings and Princes oftentimes of their own noble nature and sometimes in policy do accept that of their Subjects as a gift which they might exact take as a duty and therefore our most potent and politique Kings have ordained and accepted many things in Parliament which they might have done in their private Chambers by their own prerogative without any other Ceremony who ever made doubt of the Kings Prerogative in establishing the Standard of monies and yet how many Acts of Parliament do we find touching Monies in the times of King E. 1. and King Edw. 2 the Kings Prerotative in making establishing Marshall Law was never yet in question yet are there Acts of Parliament touching Musters departures of Souldiers without their Captains Licences or the like The King only doth give Honours and places of precedency yet King Hen. 8. made an Act of Parliament whereby he rancked the great Offices of the Crown in their severall places as well in Council as in Parliament No man ever doubted but the King being the Fountain of Justice may erect Courts of Justice by his Prerogative yet we find the Court of Augmentations and the Court of VVards erected by Act of Parliament Lastly in the time of Edw. 2. we find an Act of Declaration of the principall Prerogatives of the Crown of England were most undoubted and clear yet His Majesty was pleased in his first Parliament to accept of an Act of Recognition CHAP. XXXII The Conclusion BY these reasons and demonstrations which are before expressed it is evident that the King of England by vertue of an ancient Prerogative inherent to the Crown and Scepter may justly and lawfully set Impositions upon Merchandizes and may limit and rate the quantity and proportion thereof by his own wisdom and discretion without Act of Parliament and this Prerogative is warranted and approved by the generall Law of Nations and the Law Merchant which is a principall branch of the Law of Nations by the Imperial Law the Ecclesiasticall Law and by the rule of the Common Law of England and by the practice of the most prudent Kings and Queens of England since the Conquest and that this Prerogative is grounded upon many excellent reasons and that the severall Objections made against this Prerogative are but shadows and colours of reason and clearly removed and washed away by the severall Answers thereunto CHAP. XXXIII A comparison of the Impositions set and taken in England by the Kings Prerogative with the Exceptions and Gabells in Forein States and Kingdoms whereby it will appear that the subjects of the Crown of England do not bear so heavy a burthen by many degrees as the Subjects of other Nations do bear in this kind ALbeit indeed the King of England being no Emperor and having all Imperiall Rights within his own Kingdoms hath and ever had as absolute a Prerogative Imponere vectigalia or to lay Impositions as the Emperor of Rome or Germany or any other King Prince or State in the world now have or ever had yet let
it be truly said for the honor of the Crown of England That His Majesty that now is and all his Noble Progenitors have used and put in practice this Prerogative with more moderation and favor toward the people than any Forein State or Prince in the world have besides and that in three respects First the King of England doth make use of this Prerogative only in laying Impositions upon Merchandizes crossing the Seas upon such onely and not upon any other goods which are bought and sold within the Land neither doth he by his absolute power alone impose any Tax upon Lands or Capita hominum or Capita animalium or upon other things innumerable whereof there are strange presidents and examples both Ancient and Modern in other Countries Secondly the King doth not charge all Merchandizes crossing the Seas with this Imposition now in question for in the Letters Patent whereby the Imposition of twelve pence in the pound over and above the Subsidie of Poundage is laid and limited divers kinds of Commodities are excepted especially such as serve for food and subsistance of the Kings people for setting the poor on work for maintainance of Navigation and other things of like nature as before is declared Thirdly the Impositions which are laid by the Kings of England upon Merchandizes are not so high as the Impositions and Exactions set and taken by other Princes and States for the highest Imposition in Ireland is but twelve pence upon the pound or but a single Poundage which is but five in the hundred and is the lowest rate in Christendome at this day and in England there is added but twelve pence in the pound more which is but ten pound upon the hundred pound and yet divers sorts of Merchandizes as I said before are excepted and discharged of that Imposition of the second Imposition of twelve pence But on the other side let us see the practice of other Princes and States in laying Impositions and how far they have extended and strained their Prerogative in that point beyond and above the Impositions in England I will begin with the Romans when they had gained the Monarchy of the World so as all Kingly power did rest in their Emperor First Iulius Caesar laid the first Imposition upon Forein Merchandizes saith Suctonius peregrinarum mercium portaria primus instituit and that Imposition was Octava rerum pars which was more by a fifth part than our highest Imposition in England for it is two shillings and six pence upon the pound Next Augustus Caesar about the time of our Saviours Birth sent out an Edict whereby he did tax all the world and this Tax was Capitatio or an Imposition super capita hominum though the quantity thereof doth not appear but the poll-money which our Saviour did pay and wrought a miracle it seemeth to be an high Imsition for the peeces of money taken out of the Fishes mouth which is called didrachma or stater is said to bee worth two shillings and six pence sterling which being given for himself and Peter da illis pro me et te shews that fifteen pence sterling was given for a Poll which must needs amount to an infinite thing if it were collected over all the World then subject to the Roman Emperor Tiberius the Roman Emperor who succeeded Augustus took the hundred part of all things bought and sold within the Empire which perhaps was an Imposition of greater value and profit than the other Caligula the Emperor layd an Imposition upon all Sutes in Law and took the fourth part of the value of the value of the thing sued for and set a pain upon the Plaintiff if he compounded or were Non-suted without his Licence He likewise imposed a number of Sesterii upon every Marriage contracted or made within the whole Empire Vespasian in meaner and more homelier matters took by way of Imposition a part of every poor Labourers wages and part of every Beggers alms he set likewise an Imposition upon Vrine and pleased himself with this Apothegm Dulcis odor lucri ex re qualibet Severus the Emperor did impose upon the dishonest gains of the Stews and took part of the Prostitutes there as the Bishop of Rome doth at this day all the Emperors before Trajan took the twentieth part of all Legacies and Lands descended as things which came unlooked for and as a cleer gain and therfore the Heirs and Legatories might easily spare a part to the Emperor and Nicephorus one of the Emperors of the East did not onely take sumaria tributa Smoke-money out of every Chimney but he layd an Imposition upon every mans Estate that grew suddenly rich upon a presumption that hee had found a Treasury which did belong to the Emperor by Prerogative With a little more search I might find out other Impositions of severall kinds set by the ancient Emperors upon the heads of Beasts upon the tiles of Houses and the like I might adde hereunto the Impositions set by Lorrain upon every pane of Glasse in Windows but these may suffice how high they strained and how far they extended their Prerogatives in this point of Impositions Secondly the Roman Empire being over-come by the Gothes and Vandalls and other barbarous Nations and thereby broken into Kingdomes and Free States their passed divers ages before these Monarchies could be well setled and before peace bred plenty any plenty bred civility and before Trade Traffique Comerce and Intercourse could be established between these States and Kingdoms and therefore while these States and Kingdoms were yet but poor and while there was a generall scarcity of Gold and Silver in these parts of the World and so for want of money there was but little Trade and Traffique among the people either at home or broad Kings and Princes did not neither could they make that use of their Prerogative in laying Impositions as they had done in those latter times since all Arts and Sciences have been encreased all Commodities improved and the Riches of the East and West Indies have been transported into this Hemisphere But now let us see whether the Kings and Princes of other Countries round about us at this day make not a far more profitable use of their Prerogatives in laying Impositions upon their people than the King of England doth albeit his Kingly power be full as large as any of theirs In France the most richest and ancientest of the Neighbour Kingdoms the Impositions not onely upon Merchandizes crossing the Seas but also upon Lands Goods persons of men within the Realm are so many in number and in name so divers as it is a pain to name and collect them all and therefore it must needs be a more painfull thing for the people of that Kingdom to bear them all La tallie le tallon les aids les aquavalentes les equi pollentes les cruces or augmentations of divers kinds le hop benevolence la Cabelle
principally to these causes following First our King of England hath alwayes gone before and beyond all other Kings in Christendome in many points of Magnificency and especially in this That they have alwayes had a more Rich and Royall Demean belonging to the Crown I mean more large and Royall Patrimony in Lands and Rents than ever any Christian King had before or now hath at this day for it is certain that the Revenues of other Princes and States do principally consist in such Gabells Impositions and Exactions as are before remembred and not in terr a firma not in such a Reall and Royall Patrimony as hath ever belonged to the Crown of England and therefoâ—â— other Kings being lesse able to â—â—â—ntain their Estates or more covetous in their own Nature have laid heavier Burthens upon their Subjects than ever the King of England hath layd or will do or hereafter hath need to do God be blessed for it the Kings of England have had the Princes Portion spoken of before in 45 of Ezekiel and therefore they had no need so to oppresse the people Again we may ascribe this difference to the bounty and noble nature of our Kings that they would never descend to those poor and sordid Exactions which other Princes States do take of their Subjects Sordidum putandum est aurum quod ex lachrimis oritur as a good Counseller told Vespasian Again we may ascribe it to the wisdom and policy of our Kings who would never follow the Counsell of Rehoboams younger Counsellers boni pastoris est oves tondere non diglubere as Tiberius the Emperor was wont to say Odi hortulanum saith Alexander qui ab radice olera excindit qui nimis emergit elicit sanguinem saith Solomon they well considered that the money levied by Taxes and Impositions is the blood of the people which is not to bee let out in any great quantity but to save the life as it were of the Common-wealth when she is sick indebted and in great danger Again it may be ascribed to their Piety and Religion which moved them to follow the counsell of the Divine Rule Deut. 17. where the King is warned not to multiply upon him much Gold and Silver for that indeed there doth seldome come good by great Treasure heapt up by a great Prince for it doth but nourish Pride and Ambition in him and stir him up many times to make an unjust Warre upon his Neighbours or if he leave it unto his Successers it makes them luxurious and vitious which draweth with it sometimes the ruin of the kingdome sed optimus certissimus thesaurus Principis est in loculis subditorum saith the learned Buterus in his Book against Machiavill let the King saith he have a care to maintain Religion and Justice and Peace in his Kingdom this will soon bring plenty with a continuall increase and make a rich and wealthy people then shall the King never want money to serve his just and necessary and honourable occasions for it is impossible the Soveraign should be poor when the Subjects are rich and untill occasions do arise the Coffers of his Subjects will be his best Exchequer they will be his Treasures they will be his Receivers his Tellers without fees or wages no bad Accomptant shall deceive him nor no Bankrupt Officer shall deceive him they will keep the Treasure of the Kingdom so frugally as no Importunate Courtier shall be able to withdraw the same from a Prince but that it shall still remain in store to supply the necessities of the Common wealth Lastly our Kings of England in their wisdoms well understood the natures and dispositions of their people and knowing them to be a free generous and noble Nation held them not fit to be beaten with Rehoboams Rod esteemed them too good to be whipt with Scorpions and therefore God be blessed we have not in England the Gabeller standing at every Towns end we have not a Publican in every Market we pay not a Gabell for every Bunch of Reddish or Branch of Rosemary sold in Cheap-side we have none of those Harpies which do swarm in other Countries we have no complaining in the streets as is said in the 144. Psalm and therefore I may well conclude with the conclusion of that Psalm Happy are the people that are in such a case blessed is the people that have the Lord for their God above in Heaven and King Iames for their King here upon Earth FINIS These Books following are printed for Henry Twyford and Partners and are to be sold at his Shop in Vine-Court Middle Temple THe Compleat Attorney or the Practick part of the Law A Learned Treatise of Wards and Liveries by Sir Iames Ley Knight The Life of the Apostle St. Paul Soliloquies Meditations and Prayers of St. Bonaventure The discontented Collonel by Sir Iohn Sucklin The European Mercury The humble Remonstranee of Sir Iohn Stawell Hebdomada Magna or the great Week of Christ's Passion Sir Robert Brooks Reading on the Statute of Limitations Kitchens Jurisdictions of Courts Leet Courts Baron c. Rich. Brownlow Esq Prothonotary to the Court of Common Pleas His Reports the first and second Part. Declarations and Pleadings English Judiciall Writs Plowdens Abridgment Abridgment of Lord Cook's Littleton Abridgement of Pulton's Statutes at large by Edmund Wingate Esq The Books of the drawing up of all manner of Judgments The Body of Law by Edmund Wingate Esq The Marrow of Law or the second part of the Faithfull Counsellor Office and duty of Executors in 8. Lay-mans Lawyer or the second part of the Practick part of the Law A Commentary on the Original Writs by William Hughes Esq Stevenson's Poems The Anabaptists Anatomised in a Dispute between Mr. Crag and Mr. Tombes Caesars Commentaries with Sir Clement Edmunds Observations The Compleat Clark and Scriveners guide being the exact Forms of all manner of Conveyances and Instruments now in use as they were Penned by Learned Counsel both Ancient and Modern The Counesse of Arundells Secrets in Physick and Chirurgery c. The History of the Troubles of Swethland and Poland Iustinian Dict. Stud. 1.lib.cap.2 Baldus Baldus Strabo Iustinian halicar. lib.3 Bracton stampford prà rogat Regis fol. 37.6 19 E. 4.6 37 E. 6.20 11 H. 4 Com. 316 7 E. 4.19.3 R. 3.2 Magna Charta cap.30 Vlpian 13 Edw. 4.9,10 Reg. fol.135 F. N.117 D. F. N.117 D. 2 E. 3 Regist. 259 a. Bodin Register 122 6. 46 Hen. 3 Rot. Pa. 3. E I.m. 19 in Archis turris London 3 Edw. 1 27 E. 3 Cap. 2 Cicero 13 E. 4.9 Lex Civilis Cicero offic. li 2 Bodin de repub. li.2.cap.8 Bodin Stephen King of Spain Pope Eluther II R. 2 Chopinns Rhodians The Canon Law Decret. cause 24 Quaest. 3 Canonists Poll-money St. Paul Fortescue 1H 7.fol.23 3 Edw. 1 pat m 21 F.N. 170 D. Register of Writs fol. 107 Custome and Toll Strabo 38 H. 8 Dyer 43. Edw. 1 Edw. 2. Edw. 3 Bates case de Currans in Sccio per Fleming chief Baron 3 Edw. 1. 3 Edw. 1 Rot. fin.memb.24 Statute 25 E. 1 Dyer 29. 30 H. 8.43 31 Fd 3.60 27 E. 3 Prizage and Butlerage 52 H. 3 31 Ed. 1 Gauger Alneger 14 Ed. 2 Customer Comtroller Searcher 25 E. 1 Ed. 2 11 E. 2 The Writ to his Collecttors of his Customs Collectors of his Customs Raimundus Lullius 1 Ed. 1 Rot. fin m. 30 in Archivis Turris Le Records 17 Ed 3. Rot. 308 in Sccio Angliae c 12 Ed. 3 Rot. Almaniae pars 1. numb. 3 31 Ed. 3 Rot. Parl. numb.24 13 Ed. 1 14 Ed. 3 Staple at Callis E. 3 R. 2 H. 4 H. 5 Dyer 165 12 Eliz. 12 Eliz. Letters Patents 28 Iuly 6. Iac. Bodin lib. 6 de repub. ca. 2 Caligula Appian Cicero 12 Ed. 4.cap.5 Virgil Plin. lib.19.cap.4 Tempore Edw. 3 2 Edw. 1 2 Edw. 3 10 Ed. 3 17 Hen. 4 Matthew Paris Histor. Magna p. 568. 10 Hen. 7 Stow Fitz Avowry 192.6 Rich. 2 protection 46 Rot. Scotiae nu 16 in Arch Turris Gen. 1 Baldus Strabo Stampford 19. Ass p.6 22. Ass p 93. 22 Ed. 4 4 Edw. 3 21 Ed. 3 16 Ri. 2 17 H. 6 Tempore Henry 8. The K. of Spain's Imposition in An. 1614. Magna Charta cap. 30 46 Ed. 3 I Edw. 3 Anno 40. Elizabeth Object 1 The Answer to the 1. Object Object 2 The Answer to the 2. Object Solomon Henry 7. Poeta Object 3 3 Edw. 2 5 Edw. 2. 13 Ed. 3 14 Ed. 3 12 Ed. 3 18 Ed. 3 22 Ed. 3 13 Ed. 3 Lord Latimer Richard Lions I. Peachy 50 Ed. 3. Rot. Parli numb. 33. 50 Ed. 3 Rot. Parl. num.191 in Arch. Turris Dyer 1 Eliz. fol.165 The Answer to Object 3 5 Edw. 2 Senatus Rome Solomon Iulius Caesar Augustus Caesar Edw. 1 Edw. 3 Nero Edw. 2 Rich. 2 Petitions are of divers kinds have divers Answers Mayletolt 3 Kings cap. 12 14 Ed. 3.cap.13 Anno 29 Ed. 3 6 Edw. 3 Rot. Parl. nu.4 13 Edw. 3 Rot. Parl. numb.5 18 Ed 3. Rot. Parl. nu.10.26 in Arch. Turris 28 Ed. 3. Rot. Parl. numb. 27. 38 Ed. 3. Rot. Parl. numb.26 6 Edw. 3 Rot. Parl. numb.4 Lionscase 50 Ed. 3 Rot. Parl. nu.17,18 Lord Latimers case Peachies Case 1 Eliz. Dyer fol.165 Object 4 The Answer to the forth Object Dyer 44. Statute of Northampton 2 Edw. 3 Object 5 The Answer to the 5. Object K. Ed. 4 Iulius Caesars Impositions Tiberius the Roman Emperor Caligula Vespasian The Imposition of France The Spanish Impositions Gutturis de gabellis Quaest. 174. The D. of Tuskanies Impositions The Impositions by the Pope Sixtus Quintus The Impositions of the Seigniory of Venice Baltholus Baidus The Impositions of the Low countries The Impositions of the Grand Seignior of Turkie The Impositions of Denmark Ezek. 45 Solomon Deut. 17 Buterus contra Machiavill Psa. 144