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
words antiquum rectum in the statute in this writ are rectum debitum which doth more enforce a certainty of right and duty which by no meanes can be intended in impositions Objections against this law were made in the last argument First that it was made for Aliens this is true the words of the Law doe plainly shew it was made for Aliens but if the State was so carefull to provide for them shall we not judge that with Denizens it was so already and that this statute was made to extend that liberty by act of Parliament to Aliens which Denizens had by the Common law succeeding times did so conceive of it 2 E. 3. c. 9. as appeareth by the statute of 2. E. 3. cap. 9 the words are that all Merchants strangers and Princes may goe and come with their merchandizes in England after the tenor of the great Charter and that writs bee thereupon sent to all the Sheriffs in England and to Maiors and Bayliffs of good townes where need shall require A second objection was made in the last argument out of these words of the statute of M. Chart. that Merchants might freely traffique Nisi publicè antea prohibiti fuerint by which was enforced that the King had power to restraine and prohibit traffique therefore to impose It is agreed there may be a publick restraint of traffique upon respects of the common good of the kingdome but whether that which is called publica prohibitio in the statute be intended by the King alone or by act of Parliament is a question for such restraints have still beene by Parliament But admit the King may make a restraint of traffique in part for some publick respect of the common wealth he doth this in point of protection as trusted by the Common wealth to doe that which is for the publick good of the kingdome but if he use this trust to make a gaine and benefit by imposing that is a breach of the trust and a sale of government and protection But more of this shall be hereafter spoken in the answering of the maine objections The next law is that notable statute of E. 2â— E. 1. c. 7. 1. in the 28 yeare of his reigne made upon the very point in question the words are these And forasmuch as the more part of the Commonaltie of this Realme finde themselves sore grieved with the male toll of Woolls that is to wit a toll of forty shillings for every sack of Wooll and have petitioned to us for to release the same Wee at their request have clearly released it and have granted for us and our heires that wee shall not take such things without their common consent and good will saving to us and our heires the customes of Woolls Skins and Leather granted before by the Commonalty aforesaid Against the application of this Law to the question now in hand many objections were made some out of matter precedent to the Law some out of the Law it selfe some out of matter subsequent and following after the Law For matter precedent The Walsingham in E. 1. fo 71.72.73 edit per W. Cam den impres Francofurti 1603. It was objected out of Tho. Walsingham an Historiograper of good credit that Writ of that time when the Satute was made That in the petition of grievances given to King E. 1. by the people in the 25. yeere of his raigne upon which petition the statute was made that they found themselves not grieved in point of right but in point of excesse the words are Communitas sentit se gravatam de vectigali lanarum quod nimis est onerosum viz. de quolibet sacco 40. s. de lanâ fractâ septem marcas So they expresse the cause of their griefe that it was too heavie which is to bee applyed to the point of excesse not of right To this I answer that if the words had been quia ost nimis onerosum this construction might have been made out of them because the word quia had induced a declaration of the cause of that which was formerly affirmed but the words are quod nimis onerosum which doth onely positively affirme that the imposition de facto was intolerable for the greatnesse of it which doth not therefore admit that it is tolerable in respect of the right the King had to impose But this is made cleare by the generall word precedent in the preamble of the petition which doth evidently inferre they grounded their complaint upon point of right not upon point of of excesse the words are these Tota terra communitas sentit se valdè gravatam quia non tractantur secundum leges consuetudines terrae secundum quas tractari antecessores sui solebant habere sed voluntariè excluduntur After which preamble among the particulars this of forty shillings upon a sack of Wooll is ranked but with a dependencie of that expressed in the preamble for the point of right But seeing wee light upon History which though it bee of small authority in a Law argument yet being the History of our owne Realme hath fit and proper use in the common counsell of the Realme Matth. Westm fo 430. Edit pâ—r H. Savile mil. Francofurti 1601. I will pursue it a little further Out of Matth. Westm a Writer that lived much nearer the time of the Law made then Thomas Walsingham he saith That the Commons by their petitions required Ne Rex de coetero tallagia usurparet voluntarias super his inductas exactiones de coetero quasi in irritum revocaret by which it appeareth that the point of the complaint was that the exactions layd on them were voluntary that is at the Kings will without assent of Parliament Out of the Law it selfe it hath much been pressed as first the Commons made petition to the King wherupon they inferre out of the nature of the word petition that their proceeding was by way of grievance for the excesse and inconvenience as a matter of grace not in course of justice for the wrong To this I answer that considering the qualitie of the parties to this action it being betweene the King and the subject duty and good manners doth induce gentlenesse and humilitie of termes without blemish or diminution of the force of right It is according to the demeanor of Iob Iob. 5.15 cap. 9. v. 15. Though I were just yet would I not answer but I would make supplication to my judge But in our formes of Law be the right of the subject never so cleare manifest and acknowledged by all yet if his own be detained from him by the King he hath no other writ or action to recover but a meere petition Supplicat celsitudini c. So as if the word petition to the King inferre defect of right in the petitioner there can be no case where the King can doe the subject wrong A second objection out of the body of the Law is that
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
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.
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 to that purpose the same is againe for law confirmed in the Dutchesse of Suffolke Dier 2. El. 176.5 R. 2. cap. 2. case 2. Eliz. Dier 176. but the Common law was altered in this point by the statute of 5. R. 2. cap. 2. by which the passage of all people is defended that they may not goe without licence except the Lords and other great men of the Realme merchants and souldiers so for the merchants which are the people dealt withall in the businesse in hand the Common law remaineth as it was before the statute and so it was held 12. Dier 12. El. 196. El. Dier 196. where the case was An English merchant being a Papist went over sea and being there did settle himselfe to remaine there for enjoying the freedome of his conscience it was moved here in England that his going without licence should bee a contempt because hee went not to traffique as a merchant but for the cause of Religion it was resolved no such averment would be taken in this case for that the very calling and vocation of being a merchant did give him liberty to goe out of the Kingdome when hee would and therefore the secret intent of his going was not to bee enquired after Sed lex inspicit quod vertsimilius Therefore it was in this case held no contempt but at this day the law is as it was before 5. R. 2 cap 2. for that statute is repealed 4. Iac. 4. Iac. cap. 1. cap. 1. And all men whatsoever are now at liberty by the Common law to passe out of the Realme There is onely against this inconvenient liberty a Proclamation dated at Westminster 9. Iul. 5. Iac. Proclamatiâ— 9. lul 5. Iac. To the very same effect in point of restraint of passage with the statute of R. 2. So the subject is in this much the more at ease and liberty than he was before that his going over sea without licence doth not induce any forfeiture but onely incurreth the censure of a contempt and therefore it were to bee wished that some firme law might bee made in the case both for the execution of so good a point of policy and for the more quiet of the State in knowing the certainty of the punishment for the offence This liberty and freedom of merchants hath been strengthened and confirmed by many notable lawes before recited as 14. E. 3. st 2. c. 2.15 E. 3 st 2. c. 5.18 E. 3. st 1. c. 3. 14. E. 3. st 2. c. 2.15 E. 3. st 2. c. 5. 18. E. 3. st 1. c 3. and divers other and therefore though it bee admitted that the King may restraine persons and goods yet it may well bee denied that he hath power of himself alone without assent of Parliament simply and indefinitely to restraine all traffique in generall or to shut up all the havens and ports and to barre the vent and issuing of wares and merchandises of the whole Kingdome as appeareth plainely that this hath been done this three hundred yeersor near thereabouts by Act of Parliament onely and that the Kingdome of England made this matter of Traffique so tender a case to deale in as that it hath ever held it a matter fit for the consultation of the great Councell of the Kingdome and for no other In 11. E. 3. 11. E. 3. cap. 1. the exportation of wools was prohibited by Act of Parliament in which statute there was this clause untill that by the King and his Councell it bee thereof otherwise provided which power so given to the King to be used for the good of the Common-wealth gave occasion to him to abuse it to his profit and commodity by giving licences of transportation to all that would give fourty shillings upon a sacke of wooll above the due Custome This appeareth in the Records in the Exchequer 13. 13. E. 3. R. Thes rot 2. E. 3. Rot. 2. Ram. Thes I will describe the Record that you may perceive the ground of it the better Rex collectoribus Cuâ—tumae in portumâ—gnae Iermouth salutem Quia concessimus dilecto fidelâ—nostro Hugoni de Wriothsley quod ipse viginti saptem saccosâ—anae demid de lanis suis propriis in portu prae dicto cariare eas usque Antwerpe ad stapulam nostram ibidem ducere possit solvendo ibidem dilecto clerico nostro Willielmo de Northwell custodi guarderobae nostrae 40. s. pro quolibet saoco pro custuma subsidio inde nobis debitis c. vobis mandamus quod praedict Hugon dictos viginti septem saccos lanae dimid in portu praedicto cartare permittatis c. And another the same yeere 13. E. 3. rot 12. R. Thes Rex collectoribus custumae c. Cum nuper ordinaverimus quod passagium lanarum c. apertum existeret quod sigillum nostrum quod dicitur Coket quod prius claudi sub serra custodâ—â—â— mandavimus aperiretur apertum teneretur ideo vobis mandavimus quod sigillum praedictum in portu praedicto aperiri apertum teneri faciatis omnes illos qui hujusmodi lanas cariare ducere velint permittatis receptis prius ab iisdem viz. de mercatoribus aliis indigenis 40. s. de quolibet saeco â—anae Divers other such sales of traffique occasioned by this parliamentary restraint were made betweene 11. 14. E. 3. st 2. c. 2. 15. E. 3. c. 5. st 2. E. 3. that the restraint was made and 14. E. 3. that this inconvenience being espied the sea was opened by statute and the restraint removed 14. E. 3. stat 2. cap. 2. 15 E. 3. cap. 5. star 2. And this fourty shillings so exacted was complained of as an imposition in Parliament and the occasion and the effect were both taken away together by Act of Parliament 14. 14. E. 3. ce 21. st 1. stat 2. cap. 1. E. 3. stat 1. cap. 21. stat 2. cap. 1. It followed in all Kings times sithence the death of E. 3. that this opening and shutting of the havens restraining and enlarging of traffique was done by Act of Parliament I will give one instance in the Raigne of every King 5. R. 2. c. 2. st 2. 5. R. 2. cap. 2. stat 2. For the passage of wooll wool-fells and leather 6. H. 4. cap. 4. 6. H. 4. c. 4. 2. H. 5. c. 6. st 2. For the traffique and commerce with merchants aliens 2. H. 5. cap. 6. stat 2. For the restraint of staple commodities to places certaine and for the traffique of the merchants of the west 27. H. 6. cap. 1. 27. H. 6. cap. 1. that is enacted in Parliament which is contained in the Proclamation 17. H 6. cited for a president that is because the Duke of Burgundy made an ordinance whereby the traffique of the English Nation was restrained that therefore the Englishmen should not traffique with the subjects of the Duke of Burgundy 4.