lawfully intituled to that he doth impose as that thereby he doth alter the property of his subjects goods and is enabled to recover these imposition by course of Law I think he cannot and I ground my opinion upon these foure reasons 1. It is against the naturall frame and constitution of the policie of this kingdome which is jus publicum regni and so subverteth the fundamentall Law of the Realme and induceth a new forme of state and government 2. It is against the municipall Law of the Land which is jus privatum the Law of property and of private right 3. It is against divers Statutes made to restraine our King in this point 4. It is against the practice and action of our Common wealth contra morem majorum and this is the modestest rule to limit both Kings Prerogatives and Subjects Liberties Upon the first and fourth of these foure principal grounds I will more insist then upon the second and third both for that in their own nature they are a more proper matter for a Councel of State to the judgement of which I apply my discourse and they have not been enforced by others As also for that the other two as more fit for a barre and the Courts of ordinary justice have by some professors of the Law been already most leardnedly and exquisitely discussed For the first it will be admitted for a rule and ground of State that in every Common-wealth and government there be some rights of Soveraignty jura Majestatis which regularly and of common right doe belong to the Soveraign power of that State unless Custome or the provisional ordinance of that State doe otherwise dispose of them which Soveraigne power is potestas suprema a power that can controule all other powers and cannot be controuled but by it self It will not be denied that the power of imposing hath so great a trust in It by reason of the mischiefes may grow to the Common-wealth by the abuses of it that it hath ever been ranked among those rights of Soveraign power Then is there no further question to be made but to examine where the Soveraigne power is in this Kingdome for there is the right of imposition The Soveraigne power is agreed to be in the King but in the King is a twofold power the one in Parliament as he is assisted with the consent of the whole State the other out of Parliament as he is sole and singular guided merely by his own will And if of these two powers in the King one is greater than the other and can direct and controule the other that is Suprema Potestas the Soveraigne power and the other is subordinata It will then be easily proved that the power of the King in Parliament is greater than his power out of Parliament and doth rule and controule it for if the King make a grant by his Letters Patents out of Parliament it bindeth him and his successors he cannot revoke it nor any of his Successours But by his power in Parliament he may defeate and avoyd it and therefore that is the greater power If a judgement be given in the Kings Bench by the King himselfe as may be and by the Law is intended a writ of Error to reverse this judgement may be sued before the King in Parliament which writ must be granted by the Chancellor upon bill indorsed by the King himself 1 H. 7.19 6. Lib. Intrac fol. 302. c. 1. as the book is 1 H 7.19.6 And the forme of the writ of Error is that it being directed to the Chiefe Justice of the Kings Bench Quia in recordo pricessu ac etiam in redditione judicii loquelae quae suit in Curiâ nostrâ coram nobis Error intervenit manifestus ad grave damnum c. Nos errorem si quis fuerit modo debito corrigi partibus praedictas plenam celerem justitiam fieri volentes in hà c parte vobis mandamus quòa Recordum processum loquelae illius cum omnibus ea tangentibus in praesens Parliamentum nostrum sub sigillio tuo distinâ—â—è apertè mittas hoc breve ut inspectis c. nos de Consilio advisamento Dominorum spiritualium temporalâ—um ac Communitatis in Parliamento nostro praedicto existentis ulterius pro errore illo corrigendo fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Angliae fuerit faciendum So you see the Appeal is from the King out of the Parliament to the King in Parliament the writ is in his name the rectifying and correcting the errours is by him but with the assent of the Lords and Commons The booke is not so that the CoÌ„mons should meddle than which there can be no stronger evidence to prove that his power out of Parliament is subordinate to his power in Parliament for in Acts of Parliament be they lawes grounds or whatsoever else the Act and power is the Kings but with the assent of the Lords and Commons which maketh it the most soveraigne and supreame power above all and controulable by none Besides this right of imposing there be others in the Kingdome of the same nature As the power to make lawes the power of Naturalization the power of erection of arbitrary Government the power to judge without appeale the power to legitimate all which do belong to the King only in in Parliament Others there be of the same nature that the King may exercise out of Parliament which right is grown unto him in them more in those others by the use and practice of the Common-wealth as denization coynage making warr which power the King hath time out of minde practised without the gain-saying and murmuring of his subjects But these other powers before mentioned have ever been executed by him in Parliament and not otherwise but with the reluctation of the whole Kingdome Can any man give me a reason why the King can only in Parliament make lawes No man ever read any law whereby it was so ordained and yet no man ever read that any King practised the contrary Therefore it is the originall right of the Kingdome and the very natural constitution of our State and policy being one of the highest rights of Soveraigne power So it is in naturalization legitimation and the rest of that sort before recited It hath been alleaged that those which in this Cause have enforced their reasons from this Maxime of ours That the King cannot alter the Law have diverted from the question I say under favor they have not for that in effect is the very question now in hand for if he alone out of Parliament may impose he altereth the Law of England in one of these two maine fundamental points He must either take his Subjects goods from them without assent of the party which is against the Law or else he must give his own Letters Pattents the force of a Law to alter the
advance the Kings power and prerogatjve Bracton l. 1. c. 8. but you make him no King for as Bracton saith Rex est ubi dominatur lex non voluntas So we see that the power of imposing and power of making Laws are convertibilia coincidentia and whosoever can do the one can do the other And this was the opinion of Sir John Fortescue that reverend and honorable Judge a very learned professor of the Common Law and Chief Justice of the Kings Bench Fortesc de laudibus Leg. Ang. c. 9. in the time of Henry 6. His words are these in his Book De laudibus Legum Angliae cap. 9. Non potest Rex Angliae ad libitum leges mutare regni sui principatu namque nedum regali sed politico ipse dominatur Si regali tantum praeesset iis leges mutare posset tallagia quoque caetera onera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigorem sed longè aliter potest Rex politicis imperans quia nec leges ipse sine subditorum assensu mutare poterit nec subjectum populum renitentem onerare peregrinis impositionibus In which place I must interpret unto you that peregrinae impositiones be not strange and unheard of impositions as was urged by the worthy Gentleman that spake last but impositions upon traffick into and out of forain Countries Fortesc de laud. Leg. Ang. cap. 36. which is the very thing in question Further in the thirty sixth Chapter he saith of the King of England Neque Rex ibidem per se aut ministros suos tallagia Subsidia aut alia quaevis onera imponit ligeis suis aut leges corum mutat vel novas condit sine concessione vel assensu totius regni sui in Parliamento So he maketh these two powers of making Law and imposing to be concomitant in the same hand and that the one of them is not without the other he giveth the same reason for this as we do now but in other words because as he saith in England it is principatus mixtus politicus the King hath his soveraign power in Parliament assisted and strengthened with the consent of the whole Kingdom and therefore these powers are to be exercised by him only in Parliament In other Countries they admit the ground of the Civil Law quod principi placuerit legis habet vigorem Because they have an absolute power to make Law they have also a power to impose which hath the force of a Law in transferring property Ph. Com. l 4. cap. 1. l. 5. cap. 8. Philip Comines that lived at that time in his fourth Book the first Chapter the fifth Book the eighth Chapter taketh notice of this policy of England and commends it above all other States as settled in most security And further to our purpose laieth this ground That a King cannot take one penny from his Subjects without their consent but it is violence And you may there note the mischiefs that grew to the Kingdom of France by the voluntary impositions first brought in by Charles the Seventh and ever since continued and encreased to the utter impoverishment of the Common people and the loss of their free Councel of three Estates And if this power of imposing were quietly setled in our Kings considering what the greatest use they make of assembling of Parliaments which is the supply of money I do not see any likelihood to hope for often meetings in that kind because they would provide themselves by that other means And thus much for my first reason grounded upon the natural constitution of the Policy of our Kingdom and the publike Right of our Nation 2 For the point of Common Law Com. Law which is my second reason it hath been well debated and nothing left unspoken that can be said in it and therefore I will decline to speak of that which other men have well discussed and the rather for that there is nothing in our Law-book directly and in point of this matter neither is the word imposition found in them until the case in my L. Dier 1. Diec. 1. E. 165. Eliz. 165. for we shall finde this business of an higher strain and alwaies handled elsewhere as afterwards shall appear yet I will offer some Answers to such Objections as have been made on the contrary in point of Common Law and have not been much stood upon by others to be answered The Objections that have been made are these That from the first Book of the Law to the last no man ever read any thing against the Kings power of imposing No Judgement was ever given against it in any of the Kings Courts at Westminster Other points of Prerogative as high as this disputed and debated his excess in them limited 42. Ass p. 9. as in the book of 42. Ass pl. 5. where the Judges took away a Commission from one that had power given by it to him under the great Seal to take ones person and to seise his goods before he was indicted So Master Scrogs case 1 2 E. Dier 175 1 2. El Dier 175 the power of the King in making a Commission to determine a question of right depending between two parties notably debated and ruled against the King that he could not grant it To this I answer That cases of this nature of which the question now handled is have ever been taken to be of that extraordinary consequence in point of the Common right of the whole Kingdom that the States would never trust any of the Courts of ordinary Justice with the deciding of them but assumed the cognisance of them unto the high Court of Parliament as the fittest place to decide matters so much concerning the whole body of the Kingdom as 2. Ed. 3.7 it appears that Ed. 1. had granted a Charter to the men of Great Yarmouth that all the ships of Merchants coming to the Port of Yarmouth should land their goods at their Haven and not at any other Haven at that Port as at Garneston and Little Yarmouth which were members of that Port. This was very inconvenient for the Merchants and a great hurt to Traffick and therefore the Charter was questioned in the time of Ed 2. and adjudged good by the Council But the parties not contented with this judgment in the second year of King E. 3. by an order in Parliament made upon a Petition there exhibited against this Grant brought a Scire facias out of the Chancery returnable in the Kings Bench to question again the lawfulness of the Patent and in that Suit the cause was notably debated and those Reasons much insisted upon that have been enforced in this case as that of the Kings power in the custody of the Ports But the matter so depending in the ordinary Court of Justice a Writ came out of the Parliament and did
Proclamation 17. H. 6. cited for a president that is because the Duke of Burgundy made an Ordinance whereby the Traffick of the English Nation was restrained that therefore the Englishmen should not traffick with the Subjects of the Duke of Burgundy The same thing enacted upon the like occasion 4. E. 4. c. 1. 19. H. 7. 4 E. 4. c. 1 19. H. 7. cap. 21. c. 21. The importation of divers Commodities forbidden as being prejudicial to the Manufactures within the Realm 6. H. 8. cap. 12. 6. H. 8. cap. 12. The exportation of Norfolk Woolls out of the Realm forbidden 26. H. 8 cap. 10. 26. H. 8. cap. 10. Power is given to the King to order and dispose of the Traffick of Merchants at his pleasure and the reason is given because otherwise the Leagues and Amities with foreign Princes might be impeached by reason of restraint made by divers statutes then standing on foot whereby it appeareth that it was not then taken to be Law that the King had an absolute power in himself to order and dispose of the course of Traffick without help of a Statute 2. E. 6. 2 E. 6. c. 9 cap. 9. Exportation of Leather restrained 1 1 2. P. M.c. 5. 2. Ph. Mar. The exportation of Herring Butter Cheese and other Victuals forbidden 18. Eliz. cap. 8. The exportation of Tallow 18. El. c. 8 Raw Hides Leather So in all times no use of Proclamations in matters of this nature but Acts of Parliament still procured Wherefore in mine opinion it behoveth them that do so earnestly urge this argument the King may restrain Traffick therefore may impose to prove better then they have done that the King may restrain Traffick of his own absolute power For as the natural policy and constitution of our Commonwealth is we may better say that is Law which is de more gentis then that which floweth from the reason of any man guided by his general notion and apprehension of power regal in genere not in individuo The last assault made against the right of the Kingdom was an Objection grounded upon policy and matter of State as that it may so fall out that an Imposition may be set by a foreign Prince that may wring our people in which case the counterpoise is to set on the like here upon the Subjects of that Prince which policy if it be not speedily execucuted but stayed until a Parliament may in the mean time prove vain and idle and much damage may be sustained that cannot afterwards be remedied This strain of policy maketh nothing to the point of right our rule is in this plain Commonwealth of ours Oportet neminem esse sapientiorem legibus If there be an inconvenience it is fitter to have it removed by a lawful means then by an unlawful But this is rather a mischief then an inconvenience that is a prejudice in present of some few but not hurtful to the Commonwealth And it is more tolerable to suffer an hurt to some few for a short time then to give way to the breach and violation of the right of the whole Nation For that is the true inconvenience neither need it be so difficult or tedious to have the consent of the Parliament if they were held as they ought or might be but our surest guide in this will be the example of our Ancestors in this very case and that in the time of one of the most politick Princes that ever reigned in this Kingdom 7. H. 7. 7. H. 7. cap. 7. cap. 7. you shall finde an Act of Parliament in which it was recited that the Venetians had set upon the English Merchants that laded Malmeseys at Candy four duckets of gold upon a But which in sterling is eighteen shillings the But. It was therefore enacted that every Merchant stranger that brought Malmsey into this Kingdom should pay eighteen shillings the But over and above the due Custom used this Imposition to endure until they of Venice had set aside that of four duckets the But upon the Englishmen Much hath been learnedly uttered upon this argument in the maintenance of the peoples right and in answering that which hath been pressed on the contrary but my meaning is not to express in this Discourse all that hath or may be said on either side but onely to make a remembrance somewhat larger of that which I my self offered as my symbolum towards the making up of this great rekoning of the Commonwealth which if it be not well audited may in time cost the Subjects of England very dear My hope is of others that labored very worthily in this business that they will not suffer their pains to die and therefore I have forborn to enter into their Province I will end with that saying of that true and honest Counsellor Philip Comines in his fifth book the 18. chapter Ph. Com. l. 5. c. 18. That it is more honorable for a King to say I have so faithful and obedient Subjects that they deny me nothing I demand then to say I levy what me list and I have priviledges so to do After the Kings Right to Impose had been thorowly examined in Parliament and there determined not to be in him alone without assent of Parliament among other Petitions of grievance given unto his Majesty this hereafter was concerning Impositions THe policy and constitution of this your Majesties Kingdom appropriates unto the Kings of this Realm with assent of Parliament as well the soveraign power of making Laws as that of taxing or imposing upon the Subjects Goods or Merchandizes wherein they justly have such a propriety as may not without their consent be altered or changed This is the cause that the people of this Kingdom as they have ever shewed themselves faithful and loving to their Kings and ready to aid them in all their just occasions with voluntary contributions so have they been ever careful to preserve their own Liberties and Rights when any thing hath been done to prejudice or impeach the same And therefore when their Princes either occasioned by War or by their over-great bounty or by any other necessity have without consent of Parliament set on Impositions either within the Land or upon Commodities exported or imported by the Merchants they have in open Parliament complained of it in that it was done without their consents and thereupon never failed to obtain a speedy and full redress without any claim made by the Kings of any Power or Prerogative in that point And though the Law of Propriety be originally and carefully preserved by the common Laws of this Realm which are as antient as the Kingdom it self yet those famous Kings for the better contentment and assurance of their loving Subjects agreed that this old fundamental Right should be further declared and established by Act of Parliament wherein it is provided that no such charge should ever be laid upon the people without their common consents
3. Phil. Mar. in my L. Dier fol. 128. B. and the Law there held to be so at that time upon a question moved in the Queens behalf against divers that being beyond the Seas refused to return upon commandment sent unto them to that purpose The same is again for Law confirmed in the Dutchess of Suffolke Case 2 Eliz. Dier 2. El. 176. 5 R. 2. c. 2 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 go without licence except the Lords and other great men of the Realm Merchants and Souldiers So for the Merchants which are the people dealt withal in the business in hand the Common Law remaineth as it was before the Statute Dier 12. El. 196. and so it was held 12. El. Dier 196. where the case was An English Merchant being a Papist went over-sea and being there did settle himself to remain there for the enjoying the freedom of his conscience It was moved here in England that his going without licence should be a contempt because he 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 go out of the Kingdom when he would and therefore the secret intent of his going was not to be enquired after Sed lex inspicit quod verisimilius 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. Jac. cap. 1. 4 Jac. c. 1 And all men whatsoever are now at liberty by the Common Law to pass out of the Realm There is onely against this inconvenient liberty a Proclamation dated at Westminster 9. Jul 5. Jac. Proclam 9. Jul. 5. Jac. 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 then 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 be wished that some firm Law might be 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 strenthened and confirmed by many notable Laws before recited as 14. E. 2. stat 2. cap. 2.15 E. 14. E. 3. st 2. c. 2.15 E. 3. st 2. c. 5.18 E. 3. st 1. c. 3. 3 stat 2. cap 5. 18 E. 3. stat 1. cap. 3. and divers other and therefore though it be admitted that the King may restrain persons and goods yet it may well be denied that he hath power of himself alone without assent of Parliament simply and indefinitely to restrain all traffique in general or to shut up all the Havens and Ports and to bar the vent and issuing of Wares and Merchandizes of the whole Kingdom as appeareth plainly that this hath been done this three hundred years or near thereabouts by Act of Parliament onely and that the Kingdom of England made this matter of Traffique so tender a case to deal in as that it hath ever held it a matter fit for the consultation of the great Council of the Kingdom and for no other In 11. 11. E. 3. cap. 1. E. 3. The exportation of Woolls was prohibited by Act of Parliament in which Statute there was this clause Untill that by the King and his Council it be thereof otherwise provided which power so given to the King to be used for the good of the Commonwealth gave occasion to him to abuse it to his profit and commodity by giving licences of transportation to all that would give forty shillings upon a Sack of Wooll above the due Custom This appeareth in the Records in the Exchequer 13. E 3. Rot. 2 Rem Thes 13. H. 3. R. Thes rot 2. I will describe the Record that you may perceive the ground of it the better Rex collectoribus Custumae in portu magnae Jermouth salutem Quia concessimus dilecto fideli nostro Hugoni de Wriothsley quod ipse viginti septem saccos lanae dimid de lanis suis propriis in portu praedicto carriare eas usque Antwerpe ad stapulam nostram ibidem ducere possit solvendo ibidem dilecto Clerico nostro Willielmo de Northwel custodi guarderobae nostrae 40 s. pro quolibet sacco pro custuma subsidio inde nobis debitis c. vobis mandamus quod praedict Hugon dictos viginti septem saccos lanae dimid in portu praedicto carriaere permittatis c. And another the same year 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 custodiri mandavimus ape iretur apertum teneretur ideo vobis mandavimus quod sigillum praedictum in portu praedicto aperiri apertum tenerifaciatis omnes illos qui hujusmodi lanas carriare ducere velint permittatis receptis prius ab iisdem viz. de mercatoribus aliis indigenis 40 s. de quolibet sacco lanae Divers other such sales of Traffick occasioned by this Parliamentary restraint were made between 11. E. 3. that the restraint was made and 14 E. 3. that this inconvenience being espied the Sea was opened by Statute 14. E. 3. st 2. c. 2. 15. E. 3. c. 5. st 2. and the restraint removed 14 E. 3. stat 2. c. 2. 15. E. 3. cap. 5. stat 2. and this forty 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. E. 3. c. 21. st 1. st 2. c. 1. 14. 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 Traffick was done by Act of Parliament I will give one instance in the reign of every King 5. R. 2. c. 2. st 2. 5. R. 2. cap. 2. stat 2. For the passage of Wooll Wooll-fells and Leather 6 H. 4. c. 4 2. H. 5. c. 6. st 2. 6. H. 4. cap. 4. For the Traffique and Commerce with Merchants Aliens 2. H. 5. cap. 6. stat 2. For the restraint of Staple Commodities to places certain and for the Traffique of the Merchants of the west 27. H. 6. cap. 1. 27. H. 6. c. 1. that is enacted in Parliament which is contained in the
shall ever according to our bounden duty pray for your Majesties long and happy reign over us The question is whether the King without assent of Parliament may set impositions upon the wares and goods of merchants exported and imported out of and into this Realme THree things have been debated in this Parliament that have much concerned the right of our whole Nation of which every one of them hath exceeded the other by a gradation in weight and moment The first was the change of our name which was a point of honour wherein we shewed our selves not willing to leave that name by which our ancestors made our Nation famous The name of Britaine not admitted in legall proceedings yet have we lost it saving onely in those cases where our ancient and faithfull Protector the Common Law doth retaine it The second was the union a question of greater moment for that concerned the freehold of our whole Nation not in so high a point as having or not having but in point of Division and participation that is whether we should enjoy the benefits and liberties of the kingdome our selves onely as we and our ancestors have done or admit our neighbour Nation to have equall right in them and so make our own part the less by how much the greater number should be among whom the Division was to be made Coke l. 7. Calvins case This was adjudged against us both Legally and Solemnly and therefore in that we rest hoping of that effect of this judgement which we read of in the Poet Tros Tyriusque mihi nullo discrimine habetur Virgil. Aen. l. 1. Dido's speech to Aeneas The third is the question now in hand which exceedeth the other two in importance consequence concerning the whole kingdome for it is a question of our very essence not what we shall be called nor how we shall divide that we have but whether we shall have any thing or nothing for if there be a right in the King to alter the property of that which is ours without our consent we are but tenants at his will of that which we have If it be in the King and Parliament Then have we propertie and are Tenants at our own will for that which is done in Parliament is done by all our wills and consents And this is the very state of the question which is proposed that is whether the King may impose without consent of Parliament Impositions are of two natures Forreine and Intestine Intestine be those which are raised within our land in the commerce and dealing that is at home within our selves and may aswell for that reason be so called as for that vescuntur intestinis Reipublicae They are fed and nourished with the consuming and wasting of the entralls of the Common wealth Against these I need not to speake for the Kings learned Councell have with great honour and conscience in full Councell acknowledged them to be against the law Therefore I will apply my self to speak of impositions forreigne being the single question now in hand and maintained on the Kings behalfe with great art and eloquence The inconvenience of these impositions to the Common-wealth that is how hurtfull they are to the Merchants in impoverishing them in their estates to the King in the increasing of his revenues by decay of traffique and to the whole people in making all commodities excessive deare is confessed by all and therefore need no debate The point of right is now only in question and of that I will speak with conscience and integrity rather desirous that the truth may be knowne and right be done than that the opinion of my self or any other may prevaile The occasion of this question was given by the book of rates lately set out affronted with the copy of Letters Patents dated July 28.6 Jac. In which book besides the rates is set down every kind of merchandise exported and imported for the true answering of subsidy to the King according to the Statute of Tonnage and Poundage In the first yeare of his reigne there is an addition of impositions upon all those kind of wares which within the book are expressed and the rate of the imposition as high and in some cases higher than the rate of the subsidy And this declared to be by authority of those Letters Patents Hereupon considering with my selfe that heretofore the setting on of one only imposition without assent of Parliament upon some one kinde of merchandise and that for a small time and upon urgent necessity of actuall war did so affect our whole Nation and especially the great Councel of the Parliament being the Representative body of the whole Common-wealth that neither the sun did shine nor the rivers run their courses until it was taken off by the publick judgment of the whole State I thought it concerned me and other members of that Councell that were no less trusted for our Countrey than those in former times and have their actions to guide and direct us to have the same care they had in preserving the right and liberties of the people having now more cause then they had for that the impositions now set on without assent of Parliament are not upon one or two speciall kinds of goods but almost indefinite upon all and do extend to the number of many hundreds as appeareth by that printed book of rates and are set in charge upon the whole kingdome as an inheritance to continue to the King his heires and successors for ever which limitation of estate in matter of impositions was never heard of nor read of before as I conceive The inducements expressed in these Letters Patents are much upon point of State and with reference to the rights and practice of fortaine Princes For this I will not take upon me to enter into the consideration of such great mysteries of policie and government but will only put you in minde of that I observe out of Tit. Tit. Liv. l. 8. Livius the Romane Historiographer Omnem divini humanique moris memoriam abolemus cum nova peregrinaque patriis priscis praeferimus To that which hath been spoken for the Kings Prerogative I will give answer to so much of it as I may conveniently in my passage through this debate wherein I will principally endeavor to give satisfaction to such new objections as were made by the worthie and learned Counsellor of the King that spake last in maintenance of his Majesties Prerogative The case in termes is this Pat. July 28. Iac. 6. The King by his Letters Patents before recited hath ordained willed and commanded that these new impositions contained in that book of rates shall be for ever hereafter payd unto him his Heires and Successors upon paine of his displeasure Hereupon the question ariseth whether by this Edict and Ordinance so made by the King himselfe by his Letters Patents of his own will and power absolute without assent of Parliament he be so
adjourn it thither again where it gave occasion of a good Law to be made to prevent the like Grants and to make them void notwithstanding any Judgment given upon them and to make such Judgments also void The Statute is 9 E. 3. c. 1. And in the Parliament Rolls 9. E. 3. c. 1. Every Alien and Denizen may carry his Merchandise where it pleaseth him notwithstanding any Charter granted or Judgment thereupon 16 17. R. 2. 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 Judgment in the Exchequer and declares to the Kingdom that notwithstanding the great wonder made by some men nothing hath been done in this business by those that serve in the Parliament but in imitation of their worthy Predecessors in the like case In the second year of H. 4. the Commons shew that in the time of R. 2. by the means 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 certain Merchants of Bristol and other places passage had been taken for Wines otherwise then 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 Judgment given in the Exchequer or other Ordinance made by the said Treasurer contrary to the antient usage which Petition the King granted and the Judgment thereupon became void and the prisage Wine hath been paid contrary to the Judgment ever since In 1. El. Dier 165. 1. El. Dier 265. upon the complaint made by the Merchants of the impositions set upon Cloth by Queen Mary by her absolute power without assent of Parliament The Cause was thought too weighty to be 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 year Books for there is nothing of it Another Objection was this which was made in the last argument viz. That Custom is originally due by the Common Law of England it can then have no other ground or cause but meerly by the Kings royal Prerogative as a right and duty originally belonging to his Crown which if it be it must necessarily follow he may impose for that is but the exercising of that right To prove this was alleadged the case 39. 39 E. 3.13 E. 3.13 by which case it appeareth that King John had a Custom of eight pence on a Tun of Wine in the Port of Southampton but the Book doth not tell you that the King had it by prerogative and he might have it as well otherwise as by prescription or convention which shall rather be intended by reason of the certainty of the sum paied for if it were by prerogative he might take sometimes more sometimes less at his will the right being indefinite and the quantity limited onely by his own discretion A common person may have such a custom certain as 18. El Dier 352. The Mayor of London hath the twentieth part of Salt brought into the City by Aliens 18 El. Dier 352 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 Customs of the City of London So it appeareth that John of Britain had Custom of the ships that arrived at his Port of Little Yarmouth Dier 43. worth twenty pounds per annum And these instances do inefer that a Custom may be otherwise then by prerogative and therefore it is no good argument to conclude the King had such a custom Therefore he had it by Prerogative The Book in 30. H. 8. Dier 43. 30 Hen. 8 Dier 43. was much pressed on this point which saith that Custom belonged to the King at Common Law and doth instance in Wooll Wooll-fells and Leather begun at the Common Law but abridged by the Statute of 14 E. 3. ca 21. stat 1. 14 Ed. 3. c. 21. stat but this appeareth to be a great error and mistaking in the Book for we do finde that that Custom of Woolls Wooll-fells and Leather was begun by a Grant in Parliament as appeareth in Statute 15 E. 1. cap. 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 Earls Barons and all the Commonalty of the Land c. Novemb. 3. Ed. 1. The Kingrecited in his Letter Patents That Prelati magnates ac tota communitas mercatorum Regni granted this new Custom 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 four pence in the pound over due Custom paid by Merchants Aliens according to the purport of the Charta mercatoria 31 E. Rot. char 31. E. 1. num 42. in Turri 1. by meer 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 meerly void to binde in succession and yet the Merchants Aliens do 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 Custom 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 bind their successors in matters of Traffick For their contracts are not ruled by the Common Law of the Land but by the Law of Nations per legem Mercatoriam as the Book case is 3. Ed. 4.10 and there was a good consideration given them by the King for this encrease of Custom as discharge of prise Wines for two shillings the Tun 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 paieth now but two shillings the Tun for prisage whereas it standeth an Englishman in much more so as the rule of commutative Justice maketh the contract available to the King against the Merchants because he parteth with part of his prisage to the Merchant and maketh it available to the Merchant against the King because he giveth him encrease of Custom above that is due by Law But the Statute of 27 E. 3. cap. 26. 27 E. 3. cap. 26. heretofore cited doth make this point clear without scruple which confirmeth the Charter of 31. E. 1. entirely and by that the encrease of Custom by three
suis faciendo inde rectas dubitas consuetudines nec sibi timeant de malis tolnetis quae iis faciat Rex vel in terrâ suá fieri permittat By this record the word Consutudo is interpreted to be mos not portorium otherwise it should have been solvendo consuetudines not faciendo Also these words entiquum rectum in the Statute in this Writ are rectum debitum which doth more enforce a certainty of right and duty which by no means 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 do plainly shew it was made for Aliens But if the State was so careful 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 as appeareth by the Statute of 2. 2. E. 3. cap. 9. E. 3. cap. 9. the words are that all Merchants Strangers and Princes may go and come with their merchandizes in England after the tenor of the great Charter and that Writs be thereupon sent to all the Sheriffs in England and to Mayors and Bayliffs of good Towns where need shall require A second Objection was made in the last Argument out of these words of the Statute of M. Char. that Merchants might freely traffique nisi publicè antea prohibiti fuerint by which was enforced that the King had power to restrain 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 Kingdom 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 been by Parliament But admit the King may make a restraint of traffique in part for some publick respect of the Commonwealth he doth this in point of protection as trusted by the Commonwealth to do that which is for the publick good of the Kingdom but if he use this trust to make a gain 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 main Objections The next Law is that notable Statute of E. 1. 25. E. 1. cap. 7. in the 25 year of his reign made upon the very point in question the words are these And forasmuch as the most part of the Commonalty of this Realm 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 We at their request have clearly released it and have granted for us and our Heirs that we shall not take such things without their common consent and good will saving to us and our Heirs the Customs 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 self some out of matter subsequent and following after the Law For matter precedent It was objected out of Thomas Walsingham Tho. Walsingham in E. 1. fo 71 72 73. edit per W. Camb. impres Francof 1603. an Historiographer of good credit that writ of that time when the Statute was made That in the Petition of grievances given to King E. 1. by the people in the 25 year of his reign upon which petition the Statute was made that they found themselves not grieved in point of right but in point of excess 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 express the cause of their grief that it was too heavy which is to be applied to the point of excess not of right To this I answer that if the words had been quia est 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 only positively affirm that the imposition de facto was intolerable for the greatness 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 clear by the general word precedent in the preamble of the Petition which doth evidently infer they grounded their complaint upon point of right not upon point of excess the words are these Tota terrae 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 dependency of that expressed in the preamble for the point of right But seeing we light upon History which though it be of small authority in a Law argument yet being the History of our own Realm hath fit and proper use in the common counsel of the Realm Matth Westm fo 430. Edit per 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 caetero tallagia usurparet voluntarias super his inductas exactiones de caetero quasi in irritum revocaret by which it appeareth that the point of the complaint was that the exactions laid on them were voluntary that is at the Kings will without assent of Parliament Out of the Law it self it hath much been pressed as first the Commons made petition to the King whereupon they infer out of the nature of the word petition that their proceeding was by way of grievance for the excess and inconvenience as a matter of grace not in course of justice for the wrong To this I answer That considering the quality of the parties to this action it being between the King and the Subject duty and good manners doth induce gentleness and humility of terms without blemish or diminution of the force of right It is according to the demeanor of Job cap. 9. v. 15. Job 9.15 Though I were just yet would I not answer but I would make supplication to my Judge But in our forms of Law be the right of the Subject never so clear manifest and acknowledged by all yet if his own be detained from him by the King he hath no
return paying the Subsides Customs and other profits reasonably due Upon the words of this Law was great advantage taken in this that besides Custom and Subsidy which comprehend all the certain and ordinary duties the King hath upon the wares and goods of Merchants there are other profits spoken of to be due These they affirm cannot be understood but of Impositions by the King without assent of Parliament To this I answer if they were not duties due to the King besides Custom and Subsidy which might satisfie the intention of these words this objection might have had some colour in it but it is plain that besides these two there are other profits due to the King upon Merchants goods as Scavage Tonage and the like And you shall finde a Petition in Parliament Rot. Par. 50. E. 3. nu 163. 50. E. 3. against the raising of these above the old rate The eighth Law is 15. E. 3. stat 2. c. 5 E. 3. Stat. 2. cap. 5. whereby it is enacted that every Merchant may freely buy and sell and pass the Sea with their Merchandizes of Wooll and all other things paying the Custom of old time used according to the Statute made in the last Parliament in Midlent which was the Stat. 14. E. 3. stat 2. cap. 2. This Law doth expresly exclude the novelty of Impositions The ninth Law is that 18. 18 E. 3. stat 1. c. 3 E. 3. stat 1. ca. 3. whereby it is enacted That the Sea be open to all manner of Merchants to pass with their Merchandizes where it shall please them The tenth is 27. E. 3. stat 2. c. 2 27. E. 3. stat 2 cap. 2 for the assurance of Merchants-strangers and other the King doth will and grant for him and his Heirs that nothing shall be taken over the due Customs not taken of them to his use by colour of suit or in other manner against their wills The eleventh is 38. E. 3. cap. 2. 38. E. 3. cap. 2. that all manner of Merchants aliens and Denizens may buy and sell all manner of merchandizes and freely carry them out of the Realm paying the Customs and Subsidies thereof due The last is 22. H. 8. cap. 8. 22. H. 8. cap. 8. by which it was enacted that Tables should be set up in Ports by which the certainty and very duty of every Custom Toll and Duty or sum of money to be demanded and required of Wares and Merchandizes shall and may plainly appear and be declared to the intent that nothing be exacted otherwise then in old time hath been used and accustomed By this late Law it appeareth that the judgment of the whole Parliament was at that time That nothing was due upon Wares and Merchandizes but that which which was certain and had been antiently due by which Impositions are excluded whose qualities are novelty and incertainty as being set on as present occasion moveth and proportioned for quantity and other circumstances as the will of the King directeth These are the Laws which I conceive most directly tend to the restraining the Kings of England from the exercise of that irregular power of imposing at the first offered by them to be put in execution yet not pressed as their right and never practised but upon opposition of the whole State and at last deserted and given over until of late as by that which followeth in the fourth place will appear My fourth and last assertion is Custom 4 That this practise of imposing without assent of Parliament is contra morem Majorum In this I will make an historical perlustration of the times past whereby I will discover and make known what passages have been in this business in this Kingdom and especially in the high Court of Parliament for the space of 300 years and more last past since the beginning of the reign of E. 1 sithence which time and not before this Kingdom hath grown into the glory and reputation of foraigne traffique And as a worthy Gentleman of the Kings learned Councel made certaine considerations upon this question framed and strengthened out of the greatness of his wit and reason so I grounding my self upon the practice of former times which is the safest rule whereby to square the right both of King and people in this Common-wealth where their right is jus consuetudinarium a right that groweth by use and practice I will propose unto you certaine observations out of the action and experience of former times untill the raignes of the two late Queenes by which you may the better ground and frame your judgements in the determination of the right in this question My first observation is in point of circumstance that there never was any Imposition set but in time of actuall war and duplicatis vexillis they were set on very rarely and sparingly but for a short time and that certaine and definite and upon some few commodities and that by the assent of the Merchants that were to beare the burthen In our time the occasion not so sensible the continuance to be perpetual the number many hundreds almost no kinde of Commodity spared I will give you some few Instances of these circumstances out of the Records themselves The maletole of Wooll set on by King E. 22. E. 1. orig Scacc. Rent Thes 22. E. 1. mem Scac. R. Thes T. Mich. Rot. parl 17. E. 3. nu 28. 1. which gave the occasion of the Stat. 25. yeare of his raigne was given by Merchants The Record saith Mercatores gratanter concesserunt in subsidium guerrae Regis It further sheweth it was for his necessity of Warre which then was great also For the time of F. 3. there need not many instances for his whole raigne was almost an actuall warfare As in the sixt year of his raigne for his war in Scotland and Ireland In the thirteenth year of his raigne for his war in France severall Impositions were set on In the seventeenth year of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Merchants Rot. parl 50. E. 3. nu 38. and it was in the time of VVar. In the twentieth yeare of King E. 3. it appeareth in the Record that the Imposition then put upon VVools was by the assent of Merchants for two years for the necessity the King had in his passage over the sea to recover his right and to defend the Realme My second observation is Never any Imposition was set on by the King out of Parliament but complaint was made of it in Parliament and not one that ever stood after such complaint made but remedy was afforded for it Et quod Rex inconsulto fecit consulto revocavit his Soveraigne power controlled his subordinate In which it is a thing very notable that the King in no one Case ever claimed or so much as ever named his right or prerogative which no doubt would have been
we see they did not venture to put in practice this supposed Prerogative It further appeareth in that Statute that the people among those reasons they alleadged why they were not able to retain the King gave this for one that they had so often granted him Tonnage and Poundage upon Merchandizes by which it appeareth he took nothing of Merchants by imposition without grant for if he had no doubt they would not have stuck to have put him in minde of it But I pray consider what became of this motion of the Chancellor and Treasurer The proposition had depended in Parliament many years the effect was the people entreated the King to resume all grants he had made from the beginning of his reign untill that time being the twenty eighth year of his reign excepting such as were made upon consideration valuable that he might so enable himself by that mean by which he had impoverished himself and the whole Kingdom This took effect and the Statute of Resumptions was thereupon made the same year which Record because it is not in print and declareth these things with great gravity and authority I will set down the very Text of it so much as is material to our purpose Prayen your Commons in this your present Parliament assembled to consider That where you Chancellor of your Realm of England 28. H. 6. Stat. de Resump in Turri Lond. not printed your Treasurer of England and many other Lords of your Council by your high commandment to your said Commons at your Parliament holden last at Westminster shewed and declared the State of this your Realm which was that ye were indebted 372000 l. which is grievous and that your livelihood in yearly value was but 5000 l. And forasmuch as this 5000 l. to your high and notable State to be kept and to pay your said debts will not suffice Therefore that your high Estate may be releived And furthermore it was declared That your expences necessary to your houshold without all other ordinary charge came to 24000 l. yearly which exceedeth every year in expence necessary over your livelihood 19000 l. Also pleaseth it your Highness to consider that the Commons of your said Realm be as well willing to their power for the releiving of your Highness as ever was people to any King of your Progenitors that raigned in your said Realm of England But your said Commons been so impoverished what by taking victual to your houshould and other things in your said Realm and nought paid for it and the quinzime by your said Commons so ofren granted and by the grant of Tunnage and Poundage and by the grant of Subsidy upon Woolls and other grants to your Highness and for lack of execution of Justice that your said poor Commons be full nigh destroyed and if it should continue longer in such great charge it would not in any wise be had ne born Wherefore pleaseth it your Highness the premisses graciously to consider and that ye by the advice and assent of your Lords Spiritual and Temporal and by the authority of this your present Parliament for the consideration of your high Estate and in comfort and ease of your poor Commons would take resume seise and retain in your hands and possession all honors c. This was very plain dealing by the people with their King and this is the success of the demand of supply and support had in those days being required in point of gratification without any recompence or retribution for it Thus then we have cleared this point that between 50. E. 3. and 4. Mariae there was not one Imposition set without assent of Parliament Queen Mary in the fourth year of her reign upon the Wars with France set an Imposition upon Clothes for this consideration That the Custom of Woolls was decayed by reason for the most part they were made into Clothes which afforded little Custom for that which in Wooll paid for Custom and Subsidy 40 s. made into Cloth paid but 4 s. 4 d. To recompence this by an indifferent equality there was set upon a Cloth 5 s. 6 d. which Imposition did not make up the loss sustained in the Custom of Wooll by 13 s. 4 d. in 40 s. This was Justum but not Juste This religious Prince invironed with infinite troubles in the Church and Commonwealth and much impoverished by her devotion in renouncing the profits of the Church-lands that were in the Crown by the suppression was the first that made digression from the steps of her worthy Progenitors in putting on that Imposition without assent of Parliament for that very consideration of the loss of Custom by turning of Wooll to Clothing came into treaty in the 24. year of E. 3. when the art of Clothing began first to be much practised in this Kingdom and then in the recompence of the loss so sustained in the decay of Custom of Woolls there was set upon a Cloth by Act of Parliament above the olde Custom 14 d. for a Denizen and for an Alien 21 d. This is recited in a Record in the Exchequer 48. E. 3. Rot. 2. R. Thes in origin But I pray you examine how this Imposition of Queen Mary was digested by the people We see in the case of my Lord Dier 1. Eliz. fol. 165. That the Merchant found great greif at it and made exclamation and suit to Queen Elizabeth to be unburdened of it Orig. in Scac. 48. E. 3. Rot. 2. R. Thes 1. Eliz. Dier fo 165. The very reason of their grief expressed in that case is because it was not set on by Parliament but by the Queens absolute power So that was the ground of that complaint the very point of right This cause was referred to all the Judges to report whether the Quimight fet on this Imposition without assent of Parliament They divers times had conference about it but have not yet made report for the King which is an infallible presumption that their opinions were not for him for it is a certain rule among us that if a question concerning the Kings Prerogative or his profit be referred to the Judges if their opinions be for the King it will be speedily published and it were indiscretion to conceal it but if there be no publication then we make no doubt but that their opinions are either against the King or at least they stick and give none for him The same Queen Mary upon restraint of bringing in of French Commodities occasioned by the then wars with France set an Imposition upon Gascoyn Wines which continueth yet So the Kingdom of England by the injustice of that Prince was clogged with these two heavy Impositions contrary to the right of the Kingdom and the Acts of her Progenitors Queen Elizabeth set on that upon sweet Wines which grew also upon the occasion of the troubles with Spain That upon Allome was none it was rather a Monopoly to Master Smith the Customer of London for the