there punished and his Patent taken away and cancelled What impositions have been set on in the Kings time I need not expresse they are set downe particularly in the booke of rates that is in print they are not easily numbered the time for which they are raised is not short the Patent prefixed to that booke bearing date 28. â—uln 6. Iacobi will instruct you sufficiently in that point they be limited to the King his heires and successors which I suppose is the first estate of Fee simple of impositions that ever man read of My eighth and last observation is upon tunnage and poundage given to the King of this Realme upon Wares and Merchandizes exported and imported which is an imposition by act of Parliament and as it will appeare was given out of the peoples good will as a very gratification to the King to enjoyne him thereby from the desire of voluntary impositions and to conclude him by that gift in Parliament from attempting to take any other without assent of Parliament for after the ceasing of voluntary impositions these Parliamentary ones were frequent in the times of the King that succeeded but they were never given but for yeares with expresse caution how the money strould be besâ—owed As towards the defence of the Seas protection of traffique or some such other publique causes sometimes speciall sequestrators made by the act of Parliament by whose hands the money should be delivered As 5. 5. R. 2. Rot. Parl. 7. R. 2 n. 13.10 R. 2. n. 12. 7. R. 2. n. 12. R. 2. cap. 3. in a printed Statute The rates that were given were very variable sometimes ii s. tunnage and vi d. poundage as 7. R. 2. iii. s. tunnage and xii d. poundage 10. R. 2. which grants were not to endure the longest of them above a yeare xviii d. tunnage vi d. poundage in 17. R. 2. iii. s. tunnage and xii d. poundage granted to H. 4. in the thirteenth yeare of his raigne for a certaine time in which Statute there is this clause That this aide in time to come should not be taken an example to charge the Lords and Commons in manner of Subsidie unlesse it be by the wills of the Lords and Commons and that by a new grant to be made in full Parliament in time to come This clause in good and proper construction may be taken to be a very convention betweene the King and his people in Parliament that he should not from thenceforth nor any of his Successors set on impositions without assent of Parliament The like imposition was granted to H. 5. Rot. parl 1. H. 5. n. 17. in the first yeare of his raigne for a short time towards the defence of the Realme and safeguard of the Sea upon condition expressed in the act that the Merchants Denizens and estrangers comming into the Realme with their Merchandizes should be well and honestly used and handled paying the said Subsidie as in the time of his Father and his noble Progenitors Kings of England without oppression or extortion In the end of which act the Commons protested being bound by any grant in time to come for the purposes aforesaid H. 6. in the one and thirtieth yeare of his raigne Rot. parl 31. H 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Ma. c. 18. 1. El. c. 19. 1. Iac. c. 33. had tunnage and poundage given him for his life E. 4. had it given him the third yeare of his raigne as it appeareth in a Statute 12. E. 4. cap. 3. H. 8. in the sixth yeare of his raigne and all since in the first yeare of their raignes have had it given them for terme of their life and being now so certainly setled in it do reach further at that froÌ„ which they are in conscience and honour excluded by this voluntarie gratification For can any man give me a reason why the people should give this imposition of tunnage and poundage above the due custome upon all commodities if the King by his prerogative might set on impositions without assent of Parliament and were not that a weaâ—e action in a King to take that of his people as a benevolence from them with limitation of the same and in what it should be imployed and how they will be used for it and for what time he shall have it which he might justly take without their consents unclogged of these unpleasing incombrances The Statute of tunnage and poundage made in our times that are altogether inclined to flattery doe yet retaine in them certain shewes and rumors of those ancient liberties although indeed the substance be lost as in the Srat. 1. lac cap. 1. Iac. c. 33. 33. we declare that we trust and have sure confidence of his Majesties good will towards us in and for the keeping and sure defending of the Seas and that it will please his highnesse that all Merchants as well Denizens as Strangers comming into this Realme be well and honestly intreated and demeaned for such things whereof Subsidie is granted as they were in the time of the Kings Progenitors and Predecessors without oppression to them to be done By this clause as it now continueth the true intent of this Statute appeareth to be that there ought no other imposition be laid upon Merchants besides these given by this Statute and this intention hath been well interpreted by use and practise from the time of E. 3. to the time of Queene Mary as before is declared Thus much of this last reason made from observation and the action of our Nation I will answer now such maine objections as have been made against the peoples right and have not been touched by me obiter in my passage through this discourse That which hath been most insisted upon is this that the King by his prerogative Royall hath the custodie of the Havens and Ports of this Island being the very gates of this Kingdome that he in his royall function and office is only trusted with the keyes of these gates that he alone hath power to shut them and to open them when and to whom he in his Princely wisdome shall see good that by the Law of England he may restraine the persons of any from going out of the Land or from comming into it That he may of his owne power and discretion prohibite exportation and importation of goods and merchandizes and out of this prerogative and preheminence the power of imposing as being derivative doth arise and result For Cui quod maius est licet ei quod est minus licitum est So their reason briefly is this the King may restraine the passage of the person and of the goods therefore he may suffer them not to passe but sub modo paying such an imposition for his sufferance as he shall set upon them for the grounds and propositions laid in this objection I shall not be much against any one of them others of
carry his Merchandise where it pleased him notwithstanding any Charter granted or judgment thereupon 16. 〈◊〉 Reâ— 1. And in the Parliament rolles 2. H. 4. num 109. we finde a notable record which gives warrant for the proceeding in Parliament in this manner as hath been in this Case notwithstanding the judgement in the Exchequer and declares to the Kingdome that notwithstanding the great wonder made by some men nothing hath been done in this businesse by those that serve in the Parliament but in imitation of their worthy predecessors in the very like case In the second yeere of H. 4. the Commons shew that in the time of R. 2. by the meanes of John Waltham Bishop of Salisbury Treasurer of England wrongfully without authority of Parliament and by reason of a judgement given in the Exchequer 16. 17. R. 2. by the Barons there against certaine Merchants of Bristow and other places passage had been taken for wines otherwise than in ancient times had been and therefore they prayed they might pay their prise wines in the manner they had used to pay notwithstanding any judgement given in the Exchequer or other ordinance made by the said Treasurer contrary to the ancient usage which petition the King granted and the judgement thereupon became voyde and the prisage wine hath been paid contrary to the judgement ever since In 1. 1. El. Dier 165. El. Dier 165. upon the complaint made by the Merchants of the impositions set upon cloth by Queene Mary by her absolute power without assent of Parliament the cause was thought too weighty to bee decided in any one Court but as it appeareth in the book it was referred to all the Judges of England who divers times had conference about it So it may well be there is nothing against it in our yeere books for there is nothing of it Another objection was this which was made in the last argument viz. That Custome is originally due by the common Law of England It can then have no other ground or cause but meerly by the Kings royall prerogative as a right and duty originally belonging to his Crowne which if it be it must necessarily follow he may impose for that is but the exercising of that right To prove this was alledged the case 39. 39 E. 3.13 E. 3.13 by which case it appeareth that King Iohn had a custome of eight pence on a tonn of wine in the part of South-hampton but the book doth not tell you that the King had it by prerogative and he might have it aswell otherwise as by prescription or convention which shall rather be intended by reason of the certainty of the summe paied for if it were by prerogative he might take sometimes more sometimes lesse at his will the right being indefinite and the quantity limitted onely by his owne Discretion 18. El Dier 352. A common person may have such a custome certaine as 18. El. Dier 352. the Maior of London hath the twentieth part of salt brought into the City by Aliens which is a great imposition but is good by prescription originally and hath received greater strength since by acts of Parliament made for the confirmation of the liberties and customes of the City of London So it appeareth Dier 43. that Iohn of Britaine had Custome of the ships that arrived at his port of little Yarmouth worth twenty pounds per an And these instances doe inferre that a Custome may bee otherwise then by prerogative and therefore it is no good argument to conclude the King had such a custome Therefore he had it by prerogative The booke in 30. H. 8. Dier 43. 30. Hen. 8. Dier 43. was much pressed on this point which sayeth that custome belonged to the King at Common Law and doth instance in wooll woll fells and leather begun at the Common Law but abridged by the Satute of 14. E. 3. ca. 21. stat 1. 14. Ed. 3. c. 21. statn r. but this appeareth to be a great errour and mistaking in the booke for we doe finde that that custome of woolls wooll-fells and Leather was begun by a grant in Parliament as appeareth in statute 15. E. 1. ca. 7. the words be Granted to us by the Commonalty aforesaid and the last mention before was that the King had granted to the Bishops Earles Barons and all the Commonalty of land c. Novem. 3. Ed. 1. the King recited in his letters patents That Prelati magnates actota Communitas mercatorum Regni granted this new custome And so the ground and motive of that opinion being false all grounded upon that must needs be erroneous It was objected that the King holdeth at this day the encrease of foure pence in the pound over due custome payd by Merchants Aliens according to the purport of the Charta mercatoria 31. E. 1. Rot. char 31. E. 1. nu 44. in Turri by meere right of prerogative at the Common Law for by that grant of the Merchants he cannot hold it they being no body politick at the time of the grant and therefore the grant is meerely voyd to binde in succession And yet the Merchants Aliens doe pay it at this day It is agreed that by the Common-law a contract with a number not incorporate bindeth not succession but we must take notice that they by whom that grant was made of the augmentation of Custome by three-pence in the pound and other encreases 31. E. 1. were Merchants aliens who by the law of Merchants and Nations may contract to binde their successours in matters of traffique for their contracts are not ruled by the Common law of the Land but by the law of Nations per â—egem Mercatoriam as the book case is 13. Ed. 4.10 and there was a good consideration given them by the King for this encrease of custome as discharge of prise Wines for two shillings the Tonn and other immunities which all Merchants aliens hold and enjoy at this day by force of that contract made 31. E. 1. For a stranger payeth now but two shillings the Tonn for prisage whereas it standeth an English man in much more so as the rule of commutative justice maketh the contract availeable to the King against the Merchants because he parteth with part of his prisage to the Merchant and maketh it availeable to the Merchant against the King because he giveth him encrease of custome above that is due by law 27. E. 3. c 26 But the statute of 27. E. 3. cap. 26. heretofore cited doth make this point cleare without scruple which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of custome by three-pence in the pound which is by name mentioned in the statute is now due by act of Parliament If you will have the King hold this encrease of custome by Prerogative you goe directly against his meaning for it appeareth by that which presently followed this grant that the King took this encrease of
custome by way of contract only and not by Prerogative for the same yeare following he directeth his writs to the officers of his ports reciting the contract made with the Aliens by Charta Mercatoria adding further that some Denizens were willing to pay the like custome upon the same immunities to them to be granted and doth assigne his officers to gather it but with this clause Si gratanter absque coertione solvere voluerint ita quod aliquem Mercatorem de regno potestate nostrâ ad praestationes custumas hujusmodi invito solvendas nullatenùs distringatis Nothing can more plainly expresse that the Kings intention was not to demand this by way of Prerogative but by force of the contract If there were such a Prerogative in the Crowne as of right to have custome how commeth it to passe this Prerogative never yet had fruit or effect for this I can maintaine that the King of England hath not one penny custome or imposition upon merchandizes elder than the fourth yeare of Queen Mary that hee holdeth not by act of Parliament and by the peoples grant The eldest that he hath is that of wools woolfells and lether and that is by act of Parliament as appeareth in the Statute 25. E. 1. cap. 7. 25. E. 1. c. 7. the tonnage and poundage by Parliament in the first yeare of every Kings reigne The Aliens encrease of custome by Parliament 27. E. 3. 27. E. 3. cap. 27. cap. 26. then this Prerogative hath been much neglected that it was never called on to be put in execution untill now of late yeares Concerning the statutes made for restraining our Kings from the exercise of this pretended Prerogative Statutes 3. which is the third matter I stand upon Those that have maintained the Kings Prerogative in this point have endeavoured to interpret those statutes to extend only to restraine him from imposing upon wool woolfells and lether which are staple commodities And the reason they give for this restraint more than for other goods is because the King by statute is restrained to a custome certaine for those commodities as the halfe mark a sack of wooll and halfe a mark three hundred woollfels and thirteene shillings foure pence a last of lether and therefore great reason he should not exceed this custome in these commodities This objection receiveth many answers First it appeareth both by the expresse letter of divers of the Lawes made in this point by the occasion that induced the making of the Lawes and by the execution of them that all other wares and merchandises aswell as those of the staple were within the purpose and intent of those Lawes Secondly the reason aleadged why there should be restraint for the staple commodities rather than for the other is mistaken for the Lords and Commons did grant to E. 1. by act of Parliament the custome of the halfe mark for wooll woolfels and lether which was matter of mere grace and liberality and includeth no restraint in it but rather a favourable extention quite contrary to the sense of the objection according to that rule of interpretation Gratiosa ampliari decet odiosa restringi And admit some Lawes be made expresly to restraine impositions upon wooll woollfels and lether by reason that the occasion of making such Lawes was the actuall imposing upon those goods at that time shall we not by good construction Secundum mentem extensivum legis extend this law to other wares and merchandizes that are within the same mischiefe If we look to the reason of the law we shall make no doubt of it for that is because the impositions were without assent of Parliament not because they were upon such and such commodities Besides those Lawes so made are declarativae juris antiqui non introductivae novi In the enumeration of those statutes which I conceive make directly to this purpose I will endeavour rather to answer the objections made against them than to enforce the sense and meaning of them which is very plaine and open and needs no interpretation The first statute enforced is Mag. charta cap. 30. made in the ninth yeare of H. 3. by which it is enacted that all Merchants shall have free egresse and regresse out of and into this Realme with their goods and merchandizes to buy and sell sine omnibus malis tolnetis per antiquas rectas consuetudines in which words we may inferre that both the use and right of imposing are absolutely excluded and debarred for Consuetudo which in this case is to be taken for Vsage which is mos not improperly for Portorium a duty paid in money as our English word Custome in one sense doth signifie implyeth a begining and continuance by consent and will of the parties not by power and enforcement which cannot be a custome and therefore it cannot be an imposition for that ariseth mercly out of the will and power of their imposer and is against the will of him upon whose goods it is set But take Consuetudo either for mos or portorium the epithetes with which it is qualified antiquum and rectum doe describe it to bee of that nature that it cannot be an imposition for antiquum in legall construction is that which is time out of minde that is not an imposition for then by continuance of time it should grow aright by prescription and were justifiable Rectum implyeth a limitted right which inferreth there may be a wrong and exceeding of that right which is not in impositions for if there be a right in the King to impose the quantity time and other circumstances are in his discretion the right is illimited And if he set on never so great an imposition there is as much right in it as if it be never so small the excesse maketh it a burthen but not a wrong We may further observe that in the statute malum tolnetum which is evill toll is set downe by way of antithesis to antiqua and recta consuetudo by which is inferred that exactions upon wares and merchandizes not qualified with these two properties of antiquum and rectum are evill and unjust This is made more evident by a Record in the Tower of the sixteenth yeare of H. 3. which was a mandat sent by the King to the Customers of his ports for the execution of this law made in 9. H. 3. Rot. claus 16. H. 3. num 20 whereby it is commanded Quod omnibus Mercatoribus in portum suum venientibus cum vinis aliis merchandizis scire faciant quod salvò securè in terram Angliae veniant cum vinis mercandizis suis faciendo inde rectas debitas consuetudines nec sibi timeant de malis tolnetis quae us faciat Rex vel in terrâ suâ fieri permittat By this record the word Consuetudo is interpreted to be mos not portorium otherwise it should have beene solvendo consuetudines not faciendo Also these
the Commons that an imposition of a peny was set upon wools for Tronage over and above the ancient due which was but a peny and so the subject was charged with two pence Also that a peny was exacted for Mesonage which was but an halfepeny which Impositions the Record doth expresse did amount to an hundred pounds a yeere This petty imposition was as much stood upon in point of right as the other great one of fourty shillings and was taken off upon complaint in Parliament without either justification or excuse for the smalnesse of it My sixth observation is that those which have advised the setting on of impositions without assent of Parliament have beene accused in Parliament for giving that advice as of a great offence in the State and have suffered sharpe censure and great disgrace by it Neither doe I finde that the quality of the person hath extenuated the blame as 50. E. 3. William L. Latimer Chamberlaine to the King and one of his private Councell was accused by the Commons in Parliament of divers deceits and extortions and misdeeds and among other things that hee had procured to bee set upon wooll wooll-fells and other merchandises new impositions to wit upon a sacke of wooll eleaven shillings which the L. Laâ—imer sought to excuse because hee had the consent and good liking of the merchants first But judgement was given against him that he should be committed to prison be fined and ransomed at the Kings will and be put from being of the Councell and this procuring of impositions to bee set on without assent of Parliament is expresly set downe in the entry of the judgement for one of the causes of his censure Richard Lyons a Fermor of the Customes in London the same yeere was accused in Parliament for the same offence Rot. parl 50. E. 3. n. 17 18 19 20. he pleaded hee did it by the Kings command and had answered the money to the Kings Chamber yet was condemned and adjudged in Parliament to be committed to prison and all his lands and goods were seifed into the Kings hand and at the last the hate against these authours of impositions grew so that 50. E. 3. in the same Parliament a petition was exhibited in Parliament to make this a capitall offence the Record is very short and therefore I will set it downe verbatim Item prie le dit Common que foit ordaine per statute en cest present parliament de touts ceux qux cy en avant mittont on font pur lour singuler profit novels impositions per lour authoritie demesn accrocheants al eux eny ul power de riens que soit establi en parliament sans assent de parliament que ils eyent judgement de vie member de forisfacture To this rough petition the King gave a milde and temperate answer Courge la Common ley come estoit al avant use My seventh observation is the cessation betweene 50. E. 3. after this censure in Parliament and 4. Mariae almost two hundred yeeres during which time no King did attempt to impose without assent of Parliament and yet we finde in the Parliament rolls that there was not one of those Kings that raigned in that time but had impositions granted him upon fit occasion by Act of Parliament upon all goods and merchandiles and at divers times during their Reignes sometimes more sometimes lesse upon the tonne and pound but ever for a time certaine and definite so the use of them was not given over but the power of imposing was so clearly and undoubtedly held to bee in the Parliament as no King went about to practise the contrary But to this cessation that was of great weight and credit in our evidence a colour was given by the other side to avert the inference made upon it against the Kings right that is that during that time there was so great a revenue grew to the Crowne by double Custome paid for all merchandises both in England and at Castis by reason of an Act of Parliament made 8. H. 4. which was that no goods should bee carried out of the Realme but to Calles and by reason that the merchants paid Custome both there and here for the same goods that in the seven and twentieth yeere of Henry the sixth the Custome of Callis was 68000. pounds the yeere a great summe if you consider the weight of money then what price it bare and by reason hereof Princes not delighting to charge their munnuting subjects but when need is being so amply supplied otherwise did not put that prerogative in practice To this I answer that if that were true that was urged it might bee some probable colour of the forbearance of imposing but I find it to be quite contrary and that by Record for there was no such restramt of all commodities not to bee transported to any place but Callis but onely wools wool-fells leather tinne and lead that were staple wares which by the stature 37. E. 3. were to be transported thither and not to any other place and the staple continued at that place for the most part from that time untill long after 27. H. â— but there was no double Custome paid both here and there by the same owner but the yeerly profits of the Customes of Callais at those tiems were so farre short of that which hath beene alleaged in 27. H. 6. that it appeareth in an Act of Parliament 27. 27. H. 3. ca. 2. H. 6. cap. 2. printed in the booke at large that the Commons doe complaine that whereas in the time of E. 3. the Custome of Callais was 68000. l. per annum at that time which was 27. H. 6. by reason of the ill usage of merchants it was fallen to bee but 12000. pounds the yeere so then there was great cause in that respect to have set on impositions by reason of that great abatement of Customes and yet it was not then offered to bee done without assent of Parliament But if you looke a little further into the extreme necessities of those times you shall finde there never was greater cause to have strained prerogatives for it appeareth in an Act of Parliament 28. H. 6. that it was then declared in Parliament by the Chancellour and Treasurer who demanded reliefe of the people for the King both for payment of his debts and for his yeerly livelihood that the King was then indebted 372000. pounds which now by the weight of money amounteth to above 1100000. pounds and that his ordinary expences was more than his yeerly revenue by 19000. pounds yeerly so if ever there was cause to put a King to his shifts it was then yet wee see they did not venture to put in practice this supposed prerogative It further appeareth in that statute that the people among those reasons they alleaged why they were not able to reteine the King gave this for one that they had so often granted him tonnage and poundage upon merchandises
this kingdome which is jus publicum regni and so subverteth the fundamentall Law of the Realme and induceth a new forme of state and government 2 It is against the municipall Law of the Land which is jus priuatum the Law of property and of private right 3 It is against Divers statutes made to restraine our King in this point 4 It is against the practice and action of our Common wealth contra morem majorum and this is the modestest rule to limit both Kings Prerogatives and subiects liberties Upon the first and fourth of these foure principall grounds I will more insist then upon the second and third both for that in their owne nature they are a more proper matter for a Councell of State to the judgement of which I apply my discourse and they have not beene enforced by others As also for that the other two as more fit for a barre and the Courts of ordinary justice have by some professors of the Law beene already most learnedly and exquisitely discussed For the first it will be admitted for a rule and ground of State that in every Common-wealth and government there be some rights of Sovereignty jura Majestatis which regularly and of common right doe belong to the Soveraign power of that State unlesse Custome or the provisionall ordinance of that State doe otherwise dispose of them which Soveraigne power is potestas suprema a power that can controule all other powers and cannot be controuled but by it selfe It will not be denied that the power of imposing hath so great a trust in it by reason of the mischiefes may grow to the Common-wealth by the abuses of it that it hath ever beene ranked among those rights of Soveraigne power Then is there no further question to be made but to examine where the Soveraigne power is in this Kingdome for there is the right of imposition The Soveraigne power is agreed to be in the King but in the King is a twofold power the one in Parliament as he is assisted with the consent of the whole State the other out of Parliament as he is sole and singular guided merely by his owne will And if of these two powers in the King one is greater than the other and can direct and controule the other that is Suprema Potestas the Soveraigne Power and the other is subordinata It will then be easily proved that the power of the King in Parliament is greater than his power out of Parliament and doth rule and controule it for if the King make a grant by his Letters Patents out of Parliament it bindeth him and his successours he cannot revoke it nor any of his successours But by his power in Parliament he may defeate and avoyd it and therefore that is the greater power If a judgement be given in the Kings Bench by the King himselfe as may be and by the Law is intended a writ of Errour to reverse this judgement may be sued before the King in Parliament which writ must be granted by the Chancellor upon bill indorsed by the King himselfe as the book is 1 H. 1 H. 7.19.6 7.19.6 And the forme of the writ of Error is that it being directed to the Chiefe Justice of the Kings Bench Lib. ntrac fol. 302. c. 1. Quia in recordo processu ac etiam in redditione judicii loquelae quae fuit in Curiâ nostrâ coram nobis Error intervenit manifestus ad grave damnum c. Nos errorem si quis fuerit modo debito corrigi partibus praedictis plenam celerem justitiam fieri volentes in hâc parte vobis mandamus quòd Recordum processum loquela illius cum omnibus ea tangentibus in praesens Parliamentum nostrum sub sigillo tuo distinctè apertè mittas hoc breve ut inspectis c. nos de Consilio advisamento Dominorum spiritualiū temporalium ac Communitatis in Parliamento nostro praedicto existentis ulterius pro errore illo corrigendo fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Angliae fuerit faciendum So you see the Appeale is from the King out of the Parliament to the King in Parliament the writ is in his name the rectifying and correcting the errours is by him The book is not so that the Cōmons should meddle but with the assent of the Lords and Commons than which there can be no stronger evidence to prove that his power out of Parliament is subordinate to his power in Parliament for in Acts of Parliament be they lawes grounds or whatsoever else the Act and power is the Kings but with the assent of the Lords and Commons which maketh it the most soveraigne and supreame power above all and controulable by none Besides this right of imposing there be others in the Kingdome of the same nature As the power to make lawes the power of Naturalization the power of erection of arbitrary government the power to judge without appeale the power to legitimate all which doe belong to the King only in Parliament Others there be of the same nature that the King may exercise out of Parliament which right is growne unto him in them more in those others by the use and practice of the Common-wealth as denization coynage making warre which power the King hath time out of minde practised without the gain-saying and murmuring of his subjects But these other powers before mentioned have ever beene executed by him in Parliament and not otherwise but with the reluctation of the whole Kingdome Can any man give me a reason why the King can only in Parliament make lawes No man ever read any law whereby it was so ordained and yet no man ever read that any King practised the contrary Therefore it is the originall right of the Kingdome and the very naturall constitution of our State and policy being one of the highest rights of soveraigne power So it is in naturalization legitimation and the rest of that sort before recited It hath been alleaged that those which in this Cause have enforced their reasons from this Maxime of ours That the King cannot alter the Law have diverted from the question I say under favor they have not for that in effect is the very question now in hand for if he alone out of Parliament may impose he altereth the Law of England in one of these two maine fundamentall points He must either take his Subjects goods from them without assent of the party which is against the Law or else he must give his owne Letters Pattents the force of a Law to alter the property of his subjects goods which is also against the Law That the King of England cannot take his subjects goods without their consent it need not be proved more then a principall it is jus indigena an old homeborne right declared to be Law by divers statutes of the Realme As in 34. E. 3. cap.
And this was the opinion of Sir Iohn Fortescue that reverend and honourable Judge a very learned professor of the Common Law and chiefe Justice of the Kings Bench Fortescu de laudibus Leg. Ang. cap. 9. in the time of Henry 6. â—â—s words are these in his book De laudibus Legum Angliae cap. 9. Non Potest Rex Angliae ad libitum leges mutare regni sui principatu namque nedum regali sed politico ipse dominatur Si regali tantum praeesset iis leges mutare posset tallagia quoque cateraonera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigorem sed longè aliter potest Rexpoliticis imperans quia nec leges ipse sine subditorum assensu mutare poterit nee Subjectum populum renitentem enerare peregrinis impositionibus In which place I must intepret unto you that peregrinae impositiones be not strange and unheard of impositions as was urged by the worthy gentleman that spake last but impositions upon traffique into and out of forrain Countreyes which is the very thing in question Fortescue de laud. Leg. Ang. cap. 36. further in the thirty sixth Chapter he sayeth of the King of England Neque Rex ibidem per se aut ministros suos tallagia Subsidiae aut alia quaevis onera imponit ligeis suis aut leges corum mutat velnovas condit sine concessione vel assensu totius regni sui in Parliamento So he maketh these two powers of making Law and imposing to be concomitant in the same hand and that the one of them is not without the other He giveth the same reason for this as we doe now but in other words because as he saith in England it is principatus mixtus politicus the King hath his Soveraigne power in Parliament assisted and strengthened with the consent of the whole kingdome and therefore these powers are to be exercised by him only in Parliament In other Countreyes they admit the ground of the Civil Law quod principi placuerit legis habet vigorem Because they have an absolute power to make Law they have also a power to impose which hath the force of a Law in transferring property Ph. Com. l 4 cap. 1. l 5. ca. 8. Philip Comynes that lived at that time in his fourth book the first chapter the fifth booke the eighth chapter taketh notice of this policie of England and commends it above all other States as setled in most security And further to our purpose layeth this ground That a King cannot take one penny from his Subjects without their consent but it is violence And you may there note the mischiefs that grew to the kingdome of France by the voluntary impositions first brought in by Charles the seventh and ever since continued and encreased to the utter impoverishment of the Common people the losse of their free Councell of three estates And if this power of imposing were quietly setled in our Kings considering what is the greatest use they make of assembling of Parliaments which is the supply of money I doe not see any likelihood to hope for often meetings in that kind because they would provide themselves by that other meanes And thus much for my first reason grounded upon the naturall constitution of the policie of our kingdome and the publike right of our nation 2. Com. Law For the point of Common Law which is my second Reason it hath been well debated and nothing left unspoken that can be sayd in it and therefore I will decline to speak of that which other men have well discussed and the rather for that there is nothing in our Law-book directly and in point of this matter neither is the word imposition found in them Dier 1. E. 165. untill the case in my L. Dier 1. Eliz. 165 for we shall finde this businesse of an higher strain and alwayes handled elsewhere as afterwards shall appeare yet I will offer some answers to such objections as have been made on the contrary in point of Common Law and have not been much stood upon by others to be answered The objections that have been made are these that from the first Book of the Law to the last no man ever read any thing against the Kings power of imposing No judgement was ever given against it in any of the Kings Courts at Westminster Other points of prerogative as high as this disputed and debated his excesse in them limited as in the book of 42. 42. Ass p. 5. Ass pl. 5. where the Judges took away a Commission from one that had power given by it to him under the great Seale to take ones person and to seise his goods before he was indicted 1. 2. E. Dier 175. So Master Scrogs case 1. 2. El. Dier 175. the power of the King in making a Commission to determine a question of right depending between two parties notably debated and ruled against the King that hee could not grant it To this I answer that causes of this nature of which the question now handled is have ever been taken to be of that extraordinary consequence in point of the Common right of the whole kingdome that the State would never trust any of the Courts of ordinary justice with the deciding of them but assumed the cognisance of them into the high Court of Parliament as the fittest place to decide matters 2. Ed. 3.7 so much concerning the whole body of the kingdome As 2. Ed. 3.7 it appeares that Ed. 1. had granted a Charter to the men of great Yarmouth that all the ships of Merchants comming to the port of Yarmouth should land their goods at their haven and not at any other haven at that port as at Garneston and little Yarmonth which were members of that port This was very inconvenient for the Merchants and a great hurt to traffique and therefore the Charter was questioned in the time of Ed. 2. and adjudged good by the Counsell but the parties not contented with this judgement in the second yeer of King E. 3. by an order in Parliament made upon a petition there exhibeted against this grant brought a Scire facias out of the Chancery returnable in the kings bench to question againe the lawfullnesse of the Patent and in that suit the cause was notably Debated and those reasons much insisted upon that have been enforced in this case As that of the Kings power in the custodie of the ports But the matter so depending in the ordinary Court of justice a Writ came out of the Parliament and did adjourne it thither againe where it gave occasion of a good Law to be made to prevent the like grants and to make them voyd notwithstanding any judgement given upon them and to make such judgements also void The Statute is 9. E. 3. c. 1. 9. E. 3. c. 1. everyal en and denizen may
matter in question and therefore I will set it downe as I finde it Verbatiâ—n in the record in the tower Ensement novelles customes sont levies ancients enhaunces come sur levies drapes vine aver du pcis aut choses purguoy les Merchants veynont pluis vilement meynes de bien menynont en la terre les Merchants estrangers de murront pluis longment que ils soloyent faier pur le quel demoure les choses sont le pluis enhaunces que ils ne Soloyent estre al dammage de roy de son people Nouâ— ordonomus que touts manners de male tolls levies puies de Coronement de Roy Ed. faier de Roy Henry 〈◊〉 â—â—â—irement oustes de tout estreints pur touts jours nient â—â—â—iristeant le Chartre que le dict Roy Ed. fist as Merchants aliens pur ceo que il fuit fait contra le grand Char. encountre le Franchise de la City de Londres sans assent de Baronage c. Savant neque dont al Roy le custome de leynes peulx de quirs c si aver les do et By this Law is recited that by the leving of new coustomes and by the raising of old traffique was destroyed and all things made deare And therefore all new impositions and customes were dscharged Chartâ mercatoriâ by which custome was encreased on aliens was taken away and the reason alledged Because it was sans assent de Baronage and against the great Charter And this is further which this clause Saving to the King his custome of wooll woll-fells and Lether Si aver les do et Great warres have been raised against the credit of this Law in the Parliament house and three things have been especially objected against it First that it is no Law for it was enforced upon the King by some of the nobility that were too strong for him the Realme being then in tumult and mutiny about the quarrell of Peirce of Gaveston so never had the Kings free consent but he gave way unto it for feare of greater mischiefe Secondly that in it selfe it is unjust as in taking away the custome granted to the King by Charta mercatoria 31. E. 1. and in making doubt whether the King should have the custome of wools c. by those words Saving it to him Si aner les do et The third objection is that if it were a Law it is repealed To these I give particular answers To the first that this statute was made both at the instance of the King and people with a purpose and intention on all parts to settle things in a stay and order both in the Kings house and Common-wealth the King and his nobles standing in good termes when this businesse was taken in hand and it was begun and ended with great solemnity and ceremony for the King in the third yeare of his reigne gave Commission under his great Seale to 32. Lords spirituall and temporall Com. 16. Mâ—r. 3. E. 2. Rot. ordin 5. E. 2. of which there were eleven Bishops eight Earles and thirteene Barons they being as Committees of the higher House to devise ordinances for the good government of of his house and his Realme In which Commission he doth for the honour of God the good of him and of his Realme of his freewill graunt to the Prelates Earles and Barons and others elected by the whole Kingdome full power to ordaine the State of his house and Realme by such ordinances as by them should bee made to the honour of God the honour and profit of holy Church the honour of himselfe the profit of him and his people according to right and reason and the oath hee made at his Coronation These joyning with others of discreet Commons in Parliament and taking every of them a solemn oath for their sincere demeanor in the businesse did make this and other ordinances which were so well liked of by the King that after they were made hee took an oath to observe them Pullic 3. Kal. Oct. 5. E. 2. Rot ordin Pâ—t 5. Oct. 5. E. 2. Rot. ordin and caused them to be published in Pauls Church-yard by the Bishop of Salisbury by denouncing excommunication against all that should wilfully infringe them And by his Letters Patents dated 5. Oct. 5. regni sui did send them through the Realme to be published and from thenceforth to be observed thereby signifying his great liking and approbation of them after which they had the force and power of Lawes given unto them in the Parliament in the fifth yeere of his raign The second obiection which is the injustnesse of the law instanced in two points the taking away of Charta mercatoria and the doubting of the Kings right to the custome of wolls woll-fells and Lether c. To the first of these I deny it to be unjust but to be according to the law of England and liberty of the Kingdome for that Charter did containe in it divers grants of things which were not in the power of the King to grant without assent of Parliament as the triall per medietatem linguae and other things tending to the alteration of the Law and burdening of the people and therefore that Charter never had his undoubted and setled force until it was confirmed by act of Parliament but lay asleep almost twenty yeers together without being put in execution between 5. E. 2. and 27. E. 3. when it was confirmed for the doubt that is supposed to be made in the statute of the Kings right to the custome of wooll wooll-fells and Lether I take it there is no such doubt made For the words Saving the kings right to the custome of woolls si aver les do et have this construction that is at such times as hee ought to have it so the word si hath the signification of quando for it had been a folly to have made a Saving of that of the right whereof they had doubted neither is it likely but that they would have taken it away if it had not been lawfull but there was no colour to doubt of the right of it for it was given by act of Parliament and ever continued in force without challenge or exception to the lawfullnesse of it The third objection is That this Statute is repealed To this I plead Nullum vale recordum If it be repealed it must be by Act of Parliament for unumquodque dissoluitur iâ—sdem modis quibus est colligatum I and others have searched the Records of the Realme and endeavoured by all means to informe our selves of the truth herein and we can finde no Act of Parliament of repeale The truth is some Kings finding these Lawes not to sort to their wills and humours have endevoured to suppresse them but they didnever yet obtaine a repeale of them by Act of Parliament But it is further urged That although there were no formall repeale of the Law yet it was
never put in execution as a Law but even presently upon the making was rejected and use and practise went quite against it And for instance hereof a Record was vouched that E. 2. held himselfe so little bound by it as that in the 11 yeare of his raigne he set an imposition without assent of Parliament upon Wooll Wooll-fels Leather Wines Cloth averde pois and divers other kinde of Merchandizes To this I answer that if it were true that a distinct and impotent King as he was did contrary to the Law doth this make the Law void and no Law But if wee looke into the whole Record and skanne this action of E. 2. from the beginning of it unto the end we shall finde it a very good instance to prove the practise and execution both of this Law of 5. E. 2. and of that in 25. E. 1. for it is true that E. 2. in the 11 yeare of his raigne did borrow of the Merchants a certaine summe of money above the due custome of Wooll Wooll-fels Wine averdepois Leather and such other goods imported and exported But it appeareth by the Record hee tooke it but for one yeare hee tooke it by the advise and counsell of the Merchants and he took it per viam mutui as a loane The direction of the Writ is Rot. claus 11. E 2. Collectoribus mutui nobis per mercatores alienigenas indigenas de certis rebus Merchandisis usque ad certum tempus faciendi This was done in good tearmes he did not claime it as his right but did borrow it which I doe thinke is a good evidence against his right But what became of this the State would not abide it for all these faire shewes And therefore afterwards the King sendeth out other Writs by which he dischargeth all merchandizes of this loan saving onely Wooll Wooll-fels and Leather and for the loane taken upon those commodities it was limitted to continue but untill Michaelmas after and good security was given to the Merchants by the Customers to pay themselves by way of defalcation out of the Customes which should be due after Michaelmas those summes which were so borrowed of them The words of the Record are worth the observing Rot. finium 11. E. 2. Cum pro expeditione guerrae Scotiae alijs arduis urgentibus necessitatibus nobis multipliciter incumbentibus pro quarum exoneratione quasi infinitam pecuniam refundere oportebit pecunia plurimum indigeamus in presenti nuper pro eo quod exitus regni terrarum nostrarum simul cumpecunia nobis in subventione praemissorum tam per Clerum quam Communitatem regni nostri concessa ad sumptus praedictos cum festinatione qua expediret faciendos non sufficiunt exquirentes vias modos quibus possemus pecuniam habere commodius decentius pro praemissis de consilio advisamento quorundam mercatorum tam alienigenarum quam indigenarum viam invenimus infra script viz. And so setteth down the manner of the loan and the security for the payment of it This I take it was neither an imposition nor a wrong in any respect Also by the first Record it appeareth that the loane set on Wines averdepois and such other commodities besides Wooll Wooll-fels and Leather were presently discharged by E. 2. which sheweth they were taken to be within the intent of the Statute of 25 E. 1. The fift Statute alledged on the behalfe of the subject is that 14. 14 E. 3. Stat. 1. ca. 21. E. 3. Stat. 1. ca. 21. by which the Commons pray the King to take no more then th' old custome of the halfe marke The King prayeth aide of the Commons for a time above the custome upon his necessity of warres And the conclusion is that by that Act the King doth grant that after the feast of Pentecost twelve moneths following he will take no more of Wools Wooll-fels Leather but the old Custome and doth promise to charge set or assesse upon the Custome but in manner as aforesaid The sixth Statute is 14. E. 3. Stat. 2. ca. 1. 14 E. 3. stat 2. ca. 1. The King doth grant by way of Charter to the Prelates Earles Barons Commons Citizens Burgesses and Merchants that they be not from thenceforth charged nor grieved to make any aide or sustaine charge if it be not by the common consent of the Prelates Earles Barons and other great men and Commons of the Realme and that in Parliament These two Statutes grew upon occasion of an Imposition set on Wooll by the King without assent of Parliament Little hath beene objected against them but onely to the first that it was obtained of grace and not upon instance of right which they gather out of the words of the Law which are The Commons pray the King that he would stablish that from henceforth no more but the old custome be taken The like reason may be made against the King out of the same words in the same Law for the King in the same Act prayeth the Commons to give him an Imposition upon Wools for a time above the old Custome but the Record of the Petitions exhibited in Parliament upon which these two Lawes are made cleareth the objection The first was delivered by the Lords in this forme Rot. paâ—l 13. E. 3. num 5. Les grands volunt that the maletoll set on Wools newly be altogether abated and that the old custome beheld and that they may have this in point of Charter and by inrollment in Parliament This word volunt had beene too high for a suit of grace and therefore must be intended of right The Commons Petition in forme is somewhat humble but in effect and purpose is rough and sterne Rot. parl 13. E. 3. nu 13. the words are these The Commons pray that the maletoll of Wools be taken as it was used in ancient time which is now enhaunced without the assent of the Commons and grandes as we conceive and that if it be otherwise demanded that every one of the Commons may arrest them without being challenged According to these Petitions the first of these two Lawes is by inrolment in Parliament the second is in forme of a Charter the first doth expresse some special commodities the second doth reach generally at all The seventh Law directly touching this point 14. E. 3. sâ—at 2. ca. 2. is that 14. E. 3. stat 2. ca. 2. The King doth grant according to the great Charter that all Merchants denizons and forrainers may without let safely come into the Realme of England with their goods and Merchandizes and safely tarry and safely returne paying the Subsidies customes and other profits reasonably due Upon the words of this Law was great advantage taken in this that besides custome and Subsidy which comprehend all the certaine ordinary duties the King hath upon the wares goods of Merchants there are other profits spoken of to be due
these they affirme cannot be understood but of Impositions by the King without assent of Parliament To this I answer if they were not duties due to the King besides Custome and Subsidie which might satisfie the intention of these words this objection might have had some colour in it but it is plaine that besides these two there are other profits due to the King upon Merchants goods as Scavage Tonage and the like And you shall finde a Petition in Parliament Rot. parl 50. E 3. nu 163. 50. E. 3 against the raising of these above the old rate The eight Law is E. 15. E. 3. stat 2. ta 5. 3. stat 2 ca. 5. whereby it is enacted that every Merchant may freely buy and sell and passe the sea with their Merchandizes of Wooll and all other things paying the Custome of old time used according to the Statute made the last Parliament in Midlent which was the stat 14. E. 3. stat 2. cap. 2. This Law doth expresly exclude the novelty of Impositions The ninth Law is that 18. 18. E. 3. stat 1. ca. 3. E. 3 stat 1. ca. 3. Whereby it is enacted that the sea be open to all manner Merchants to passe with their Merchandizes where it shall please them The tenth is 27. 27. E. 3. st 2. ca. 2. E. 3. stat 2. ca. 2. for the assurance of Merchant strangers and other the King doth will and grant for him his heires that nothing shall be taken over the due Customes nor taken of them to his use by colour of sale or in other manner against their wils The eleventh is 38. E. 3. ca. 2. 38 E. 3. ca. 2. that all manner Merchants aliens and denizens may buy and sell all manner of Merchandizes and freely carry them out of the Realm paying the Customes and Subsidies thereof due The last is 22. H. 8. ca. 8. 22. H. 8. ca. 8. by which it was enacted that Tables should be set up in ports by which the certainty and very duty of every custome toll and duty or summe of money to be demanded and required of wares and Merchandizes shall and may plainely appeare and be declared to the intent that nothing be exacted otherwise then in old time hath beene used and accustomed By this late Law it appeareth that the judgement of of the whole Parliament was at that time that nothing was due upon Wares and Merchandizes but that which was certaine and had beene anciently due by which Impositions are excluded whose qualities are novelty and incertainty as being set on as present occasion moveth and proportioned for quantity and other circumstances as the will of the King directeth These are the Lawes which I conceive most directly tend to the restraining the Kings of England from the exercise of that irregular power of imposing at the first offered by them to be put in execution yet not pressed as their right and never practised but upon opposition of the whole State and at last deserted and given over untill of late As by that which followeth in the fourth place will appeare My fourth and last assertion is Custome 4 that this practiseof imposing without assent of Parliament is contra morem Majorum In this I will make an historicall perlustration of the times past whereby I will discover and make knowne what passages have beene in this businesse in this Kingdome and especially in the high Court of Parliament for the space of 300 yeares and more last past since the beginning of the raigne of E. 1. sithence which time and not before this Kingdome hath growne into the glory and reputation of foraigne traffique And as a worthy Gentleman of the Kings â—earned Councell made certaine considerations upon this question framed and strengthened out of the greatnesse of his wit and reason so I grounding my selfe upon the practise of former times which is the safest rule whereâ—y to square the right both of King and people in this Common wealth where their right is jus consuetudinarium a right that groweth by use and practise I will propose unto you certaine observations out of the action and experience of former times untill the raignes of the two late Queenes by which you may the better ground and frame your judgements in the determination of the right in this question My first observation is in point of circumstance that there never was any Imposition set but in time of actuall war and duplicatis vexillis they were set on very rarely and sparingly but for a short time and that certaine and definite and upon some few commodities and that by the assent of the Merchants that were to beare the burthen In our time the occasion not so sensible the continuance to be perpetuall the number many hundreds almost no kinde of Commodity spared I will give you some few Instanof these circumstances ces out of the Records themselves The maletole of Wooll set on by King E. 22. E. 1. orig Scacc. Rent Thes 22. E. 1. mem Scac. R. Thes T. Mich. 1. which gave the occasion of the Stat. 25. yeare of his raigne was given by Merchants The Record saith Mercatores gratanter concesserunt in subsidium guerrae Regis It further sheweth it was for his necessity of warre which then was great also For the time of E. Rot. parl 17. E. 3. nu 28. 3. there need not many instances for his whole raigne was almost an actuall warfare As in the sixt year of his raigne for his warre in Scotland and Ireland In the thirteenth year of his raigne for his war in France severall Impositions were set on In the seventeenth yeare of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Merchants and it was in the time of Warre In the twentieth yeare of King E. 3. Rot. parl 20. E. 3. nu 18. it appeareth in the Record that the Imposition then put upon Wools was by the assent of Merchants for two yeares for the necessity the King had in his passage over the sea to recover his right and to defend the Realme My second observation is never any Imposition was set on by the King out of Parliament but complaint was made of it in Parliament and not one that ever stood after such complaint made but remedy was afforded for it Et quod Rex inconsultò fecit consulto revocavit his Soveraigne power controlled his subordinate In which it is a thing very notable that the King in no one Case ever claimed or so much as ever named his right or prerogative which no doubt would have been done if it had been thought due but gave satisfaction to the complaint by one of these three waies either by discharging them quite and making some good Law against them Secondly by intreating the people to hold them some short time by their favour Thirdly by waving his present possession and taking that of their
by which it appeareth hee tooke nothing of merchants by imposition without grant for if he had no doubt they would not have stucke to have put him in minde of it But I pray consider what became of this motion of the Chancellour and Treasurer the proposition had depended in Parliament many yeeres the effect was the people intreated the King to resume all grants he had made from the beginning of his Raigne untill that time being the twenty eight yeare of his raigne excepting such as were made upon consideration valuable that he might so enable himselfe by that meane by which he had impoverished himselfe and the whole Kingdome This tooke effect and the Statute of Resumptions was thereupon made the same yeare which Record because it is not in print and declareth these things with great gravity and authority I will set downe the very text of it so much as is materiall to our purpose Prayen your Commons in this your present Parliament assembled to consider 28. H. 6. Stat. de Resump inturri Lond. not printed That where your Chancellor of your Realme of England your Treasurer of England and many other Lords of your Councell by your high Commandement to your said Commons at your Parliament holden last at Westminster shewed and declared the State of this your Realm which was that ye were indebted 372000. l. which is grievous and that your livelihood in yearely value was but 5000. l. And forasmuch as this 5000. l. to your high and notable State to be kept and to pay your said debts will not suffice therefore that your high Estate may be relieved And furthermore it was declared that your expences necessary to your houshold without al other ordinary charge came to 24000. l. yearely which exceedeth every yeare in expence necessary over your livelihood 19000. l. Also pleaseth it your highnesse to consider that the Commons of your said Realme be as well willing to their power for the releeving of your Highnesse as ever was people to any King of your Progenitors that ever raigned in your said Realme of England but your said Commons been so impoverished what by taking victuall to your houshold and other things in your said Realme and nought paid for it and the quinzime by your said Commons so often granted and by the grant of tunnage and poundage and by the graunt of Subsidie upon Woolls and other graunts to your Highnesse and for lack of execution of justice that your said poore Commons be full nigh destroyed and if it should continue longer in such great charge it could not in any wise be had ne borne wherefore pleaseth it your Highnesse the premisses graciously to consider and that ye by the advice and assent of your Lords Spirituall and Temporall and by the authority of this your present Parliament for the consideration of your high Estate and in comfort and ease of your poore Commons would take resume seise and retaine in your hands and possession all honours c. This was very plaine dealing by the people with their King and this is the successe of the demaund of supply and support had in those daies being required in point of gratification without any recompence or retribution for it Thus then wee have cleared this point that betweene 50. E. 3. and 4. Mariae there was not one imposition fet without assent of Parliament Queene Mary in the fourth yeare of her raigne upon the wars with France set an Imposition upon Clothes for this consideration that the custome of Woolls was decayed by reason for the most past they were made into Clothes which affoorded little custome for that which in Wooll paid for custome and subsidie 40. s. made into Cloath paid but 4. s. 4. d. To recompence this by an indifferent equality there was set upon a Cloath 5. s. 6. d. which imposition did not make up the losse sustained in the custome of Wooll by 13. s. 4. d. in 40. s. This was Iustum but not Iustè This religious Prince invironed with infinite troubles in the Church and Common-wealth and much impoverished by her devotion in renouncing the profits of the Church lands that were in the Crowne by the suppression was the first that made digression from the steps of her worthy Progenitors in putting on that imposition without assent of Pasliament for that very consideration of the losse of custome by turning of Wooll to Clothing came into treatie in the 24. yeare of E. 3. when the art of clothing began first to be much practised in this Kingdome and then in the recompence of the losse so sustained in the decay of custome of Woolls there was set upon a Cloath by act of Parliament above the olde custome 14. d. for a Denizen and for an Alien 21. d. This is recited in a Record in the Exchequer 48. E. 3. rot 2. R. 〈◊〉 origin Orig. in Scacc. 48. E. 3. Ro. 2. R. Thes 1. El. Dyer so 165. But I pray you examine how this imposition of Queen Mary was digested by the people We see in the Case in my Lord Dier 1. Eli. fo 165. that the Merchant found great griefe at it and made exclamation and suit to Q. Eliz. to be unburdened of it The very reason of their griefe expressed in that case is because it was not set on by Parliament but by the Queenes absolute power So that was the ground of that complaint the very point of right This cause was referred to all the Judges to report whether the Queene might set on this imposition without assent of Pailiament They divers times had conference about it but have not yet made report for the King which is an infallible presumption that their opinions were not for him for it is a certain rule among us that if a question concerning the Kings prerogative or his profit be referred to the Judges if their opinions be for the King it will bee speedily published and it were indiscretion to conceale it but if there be no publication then we make no doubt but that their opinions are either against the King or at least they stick and give none for him The same Queene Mary upon restraint of bringing in of French commodities occasioned by the then wars with France set an imposition upon Gascoigne Wines which continueth yet So the kingdome of England by the injustice of that Prince was clogged with those two heavy impositions contrary to the right of the Kingdome and the acts of her Progenitors Queene Elizabeth set on that upon sweet Wines which grew also upon the occasion of the troubles with Spaine That upon Allome was none it was rather a Monopolie to Master Smith the Customer of London for the ingrossing of all Allomes into his owne hands for which priviledge he gave a voluntary imposition upon that commodity It was like the priviledge granted to Iohn Pechey of the sweet Wines by E. 3. for which the Patentee was called into the Parliament house 50. E. 3. and was
them must be qualified ere they be confessed but the inference and argument made upon them I utterly deny for in it there is mutatio hypothesis and a transition from a thing of one nature to a thing of another As the premisses are of a power in the King only fiduciary and in point of trust and government the conclusion inferres a right of interest and gaine Admit the King hath Custodiam portuum yet hee hath but the custody which is trust and not Dominium utile He hath power to open and shut upon consideration of publike good to the people and State but not to make gaine and benefit by it The one is protection the other is expilation Portus sunt Publici The Ports in their owne nature are publike free for all to goe in and out yet for the common good this liberty is restrainable by the wisdome and policy of the Prince who is put in trust to discerne the times when this naturall liberty shall be restrained In 1. H. 7. fo 10. 1. H. 7.10 in the case of the Horentines for their Allome the Lord chiefe Justice Hussey doth write a Case that in the time of E. 4. a Legate from the Pope being at Calice to come into England it was resolved in full Councell as the booke saith before the Lords and Judges that he should not have licence to come into England unâ—esse he would take an oath at Calice that he would bring nothing with him that should be prejudiciall to the King and his Crowne The King by the Common Law may send his Writ Ne exeas regnum to any subject of the Realme but the surmise of the Writ is Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clam destinas te divertere quamplurima nobis coronae nostrae preiudicia prosequi Fitzh N. B. 85. b. Fitzh N. B. 85. b. So in point of government and Common good of the Realme he may restraine the person but to conclude therefore he may take money not to restraine is to sell government trust and common justice and most unworthy the divine office of a King But let us compare this power of the King in forraigne affaires with the like power he hath in Domestique government There is no question but that the King hath the custodie of the gates of all the Townes and Cities in England as well as all the Ports and Havens and upon consideration of the Weal publike may open and shut them at his pleasure As if the infection of the sicknesse be dangerous in places vicine to the City of London the King may command that none from those places shall come into the City May he therefore set an imposition upon those that he suffereth to come into the City So if by reason of infection he forbid the bringing of Wares and Merchandizes from some Cities or Townes in this Kingdome to any great Faire or Mart Shall he therefore restraine the bringing of Goods thither unlesse money be given him by way of imposition The King in his discretion in point of equity and for qualifying the rigour of the Law may enjoyne any of his Subjects by his Chauncellor from suing in his Court of Common Law May he therefore make a benefit by restraining all from suit in his Courts unlesse they pay him an imposition upon their suits 2. E. 3.7 In 2. E. 3. in the case of the Earle of Richmond before cited the King had granted unto the men of great Yarmouth that all the Ships that arrived at the Port of Yarmouth which consisted of three severail Ports great Yarmouth little Yarmouth and Gerneston should arrive all at great Yarmouth and at no other place within that Port. The lawfulnesse of this Patent being in question in the Kings Court it was reasoned in the Kings behalfe for the upholding of the graunt as it is now that the King had the custodie of the Port he might restrain Merchants from landing at all in his Kingdome Therefore out of the same power might appoint where and in what Haven they should land and in no other This Patent was demurred on in the Kings Bench as being granted against the Law but the Case depending was adjourned into Parliament for the weight and consequence of it and there the Patent was condemned 9. E. 3. cap. 1. and a Law made against such and the like graunts The Presidents that were vouched for maintenance of this power of restraint in the King were foure produced almost in so many hundred yeares Rot. parl 2. E. 1. n. 16. Rot. fin 2. E. 1. n. 17. Rot. claus 10. E. 3. dor 31. Rot. claus 17. H. 6. in dors whereof two were in the second yeare of E. 1. one in the tenth yeare of E. 3. another in the seventeenth yeere of H. 6. since which time wee heare of none but by Act of Parliament as they had beene usually and regularly before To these I will give answer out of themselves out of the common law out of divers statutes and out of the practise of the Common-wealth The restraint in the time of E. 1. the one of them was to forbid the carrying of wooll out of the Realme the other was to forbid all Traffique with the Flemings That of 10. E. 3. was to restraine the exportation of ship-timber out of the Realme That of 17. H. 6. to prohibite Traffique with the subjects of the Duke of Burgundy These presidents are rare yet they have in them inducements out of publique respects to the Common-wealth for the rule of Common law in this case I take it to bee as the reverend Judge Sir Anthony Fitzherbert holds it in his writ of Ne exeas regnum in Na. Br. Fitzh N. B. 85. that by the Common law any man may goe out of the Kingdome but the King may upon causes touching the good of the Common-wealth restraine any man from going by his Writ or Proclamation and if hee then goe it is a contempt This opinion of his is confirmed by the booke Dier 1. El. 165. Dier 13. El. 296. 1. Eliz. fol. 165. Dier 12. 13. Etiz Dier 296. In like manner if a subject of England be beyond sea and the King send to him to repaire home if hee doe it not his lands and goods shall bee seised for the contempt and this was the case of William de Brittain E. of Richmond 19. E. 2. 19. E. 2. Hee was sent by the King into Gascoine on a message and refused to returne for which contempt his goods chattels lands and tenements were seised into the Kings hands 2. 3. P. M. Dier 128. the Record is cited 2. 3. Ph. M. in my L. Dier fol. 128. B. and the law there held to bee so at that time upon a question moved in the Queenes behalfe against divers that being beyond the seas refused to returne upon commandment sent unto