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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A96413	The rights of the people concerning impositions, stated in a learned argument; with a remonstrance presented to the Kings most excellent Majesty, by the Honorable House of Commons, in the Parliament, An. Dom. 1610. Annoq; Regis Jac. 7. / By a late eminent judge of this nation.	Whitelocke, James, Sir, 1570-1632.; England and Wales. Parliament. House of Commons.	1659 (1659)	Wing W1995C; Thomason E1647_3; Thomason E2143_3	49,868	133

ingrossing of all Allomes into his own hands for which priviledge he gave a voluntary Imposition upon that Commodity It was like the priviledge granted to John Pechey of the sweet Wines by E. 3. for which the Patentee was called into the Parliament House 50. E. 3. and was there punished and his Patent taken away and cancelled What Impositions have been set on in the Kings time I need not express they are set down particularly in the Book of Rates that is in print they are not easily numbered The time for which they are raised is not short the Patent prefixed to that book bearing date 28. Julii 6 Jacobi will instruct you sufficiently in that point they be limited to the King his Heirs and Successors which I suppose is the first estate of Fee simple of Impositions that ever man read of My eighth and last Observation is upon Tunnage and Poundage given to the King of this Realm upon Wares and Merchandizes exported and imported which is an Imposition by Act of Parliament and as it will appear was given out of the peoples good will as a very gratification to the King to enjoyn him thereby from the desire of voluntary Impositions and to conclude him by that gift in Parliament from attempting to take any other without assent of Parliament for after the ceasing of voluntary Impositions these Parliamentary ones were frequent in the times of the King that succeeded but they were never given but for years with express caution how the money should be bestowed As towards the defence of the Seas protection of Traffick or some such other publick causes Sometimes special sequestrators made by Act of Parliament by whose hands the money should be delivered as 5. R. 2. cap. 3. in a printed Statute 5. R. 2. Rot. Par. 7. R. 2. n. 13. 10. R. 2. n. 12. 7. R. 2. n. 12. The Rates that were given were very variable sometimes 2 s. Tunnage and 6 d. Poundage as 7. R. 2. 3 s. Tunnage and 12 d Poundage 10. R. 2. which grants were not to endure the longest of them above a year 18 d. Tunnage 6 d. Poundage in 17. R. 2.3 s. Tunnage and 12 d. Poundage granted to H. 4. in the thirteenth year of his reign for a certain time in which Statute there is this clause That this aide in time to come should not be taken for an example to charge the Lords and Commons in manner of Subsidy unless it be by the wills of the Lords and Commons and that by a new grant to be made in full Parliament in time to come This clause in good and proper construction may be taken to be a very convention between the King and his people in Parliament that he should not from thenceforh nor any of his Successors set on Impositions without assent of Parliament The like Imposition was granted to H. Rot. Par. 1. H. 5. n. 17. 5. in the the first year of his reign for a short time towards the defence of the Realm and safeguard of the Sea upon condition expressed in the Act that the Merchants Denizens and strangers coming into the Realm with their Merchandizes should be well and honestly used and handled paying the said Subsidy as in the time of his Father and his noble Progenitors Kings of England without oppression or extortion In the end of which Act the Commons protested being bound by any grant in time to come for the purposes aforesaid H. 6. Rot. Par. 31. H. 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Mar. c. 18. 1. Eliz. c. 19. 1. Jac. c. 33. in the one and thirtieth year of his reign had Tunnage and Poundage given him for his life E. 4. had it given him the third year of his reign as it appeareth in a Statute 12. E 4. cap. 3. H. 8. in the sixth year of his reign and all since in the first year of their reigns have had it given them for term of their life and being now so certainly setled do reach further at that from which they are in couscience and honor excluded by this voluntary gratification For can any man give me a reason why the people should give this Imposition of Tunnage and Poundage above the due Custom upon all Commodities if the King by his Prerogative might set on Impositions without assent of Parliament and were not that a weak action in a King to take that of his people as a benevolence from them with limitation of the same and in what it should be imploied and how they will be used for it and for what time he shall have it which he might justly take without their consents unclogged of these unpleasing incumbrances The Statute of Tunnage and Poundage made in our times that are altogether inclined to flattery do yet retain in them certain shews and rumors of those antient Liberties although indeed the substance be lost 1. Jac. c. 33. as in the Statute 1. Jac. cap 33. We declare that we trust and have sure confidence of his Majesties good will towards us in and for the keeping and sure defending of the Seas and that it will please his Highness that all Merchants as well Denizens as strangers coming into this Realm be well and honestly entreated and demeaned for such things whereof Subsidy is granted as they were in the time of the Kings Progenitors and Predecessors without oppression to them to be done By this clause as it now continueth the true intent of this Statute appeareth to be that there ought no other Imposition to be laid upon Merchants besides these given by this Statute and this intention hath been well interpreted by use and practice from the time of E. 3. to the time of Queen Mary as before is declared Thus much of this last reason made from observation and the action of our Nation I will answer now such main objections as have been made against the peoples right and have not been touched by me obiter in my passage through this discourse That which hath been most insisted upon is this that the King by his prerogative Royal hath the custody of the Havens and Ports of this Island being the very gates of this Kingdom that he in his royal function and office is onely trusted with the keys of these gates that he alone hath power to shut them and to open them when and to whom he in his Princely wisdom shall see good that by the Law of England he may restrain the persons of any from going out of the Land or from coming into it That he may of his own power and discretion prohibit exportation and importation of goods and Merchandizes and out of his prerogative and preheminence the power of imposing as being derivative doth arise and result for Cui quod majus est licet ei quod est minus licitum est So their reason briefly is this the King may restrain the passage of the person and of the

goods therefore he may suffer them not to pass but sub modo paying such an Imposition for his sufferance as he shall set upon them For the grounds and propositions laid in this objection I shall not be much against any one of them others of them must be qualified ere they be confessed but the inference and argument made upon them I utterly deny for in it there is mutatio hypothesis and a transition from a thing of one nature to a thing of another As the premises are of a power in the King onely fiduciary and in point of trust and government the conclusion infers a right of interest and gain Admit the King had Custodiam portuum yet he hath but the custody which is trust and not Dominium utile he hath power to open and shut upon consideration of publike good to the people and State but not to make gain and benefit by it the one is protection the other is expilation The Ports in their own nature are publike Portus sunt Publici free for all to go in and out yet for the common good this liberty is restrainable by the wisdom and policy of the Prince who is put in trust to discern the times when this natural liberty shall be restrained In 1. H. 7. fol. 1. H. 7.10 10 in the case of the Florentines for their Allome the Lord Chief Justice Hujsey doth write a Case that in the time of E. 4. a Legate from the Pope being at Calice to come into England it was resolved in full Council as the Book saith before the Lords and Judges that he should not have licence to come into England unless he would take an Oath at Calice that he would bring nothing with him that should be prejudicial to the King and his Crown The King by the Common Law may send his Writ Ne exeas regnum to any Subject of the Realm but the surmise of the Writ is Quia datum est nohis intelligi quod tu versus partes exteras absque licentia nostra clam destinas te divertere quam plurima nobis coronae nostrae prejudicia prosequi Fitzh N. B. 85. b. Fitzh N. B 15. ●b So in point of Government and common good of the Realm he may restrain the person But to conclude therefore he may take money not to restrain is to sell Government trust and common Justice and most unworthy the divine Office of a King But let us compare this power of the King in foraign affairs with the like power he hath in Domestick Government There is no question but that the King hath the custody of the gates of all the Towns and Cities in England as well as all the Ports and Havens and upon consideration of the Weal publike may open and shut them at his pleasure as if the infection of the sickness be dangerous in places vicine to the City of London the King may command that none from those places shall come into the City May he therefore set an Imposition upon those that he suffereth to come into the City So if by reason of infection he forbid the bringing of Wares and Merchandizes from some Cities or Towns in this Kingdom to any great Fare or Mart shall he therefore restrain the bringing of Goods thither unless money be given him by way of Imposition The King in his discretion in point of equity and for qualifying the rigor of the Law may enjoyn any of his Subjects by his Chancellor from suing in his Court of Common Law May he therefore make a benefit by restraining all from suit in his Courts unless they pay him an Imposition upon their Suits 2. E. 3.7 In 2. E. 3. in the case of the Earl of Richmond before-cited the King had granted unto the men of great Yarmouth that all the Ships that arrived at the Port of Yarmouth which consisted of three several Ports Great Yarmouth Little Yarmouth and Gerneston should arrive all at Great Yarmouth and at no other place within that Port. The lawfulness of this Patent being in question in the Kings Court it was reasoned in the Kings behalf for the upholding of the grant as it is now that the King had the custody of the Port he might restrain Merchants fron landing at all in his Kingdom Therefore out of the same power might appoint where and in what Haven they should land and no other The Patent was demurred on in the Kings Bench as being granted against the Law but the Case depending was adjourned into Parliament for the weight and consequence of it and there the Patent was condemned 9. E. 3. cap. 1. and a Law made against such and the like grants The Presidents that were vouched for maintenance of this power of restraint in the King were four produced almost in so many hundred years Rot. Par. 2. E. 1. n. 16. Rot. fin 2. E. 1. n. 17. Ro. claus 10. E. 3. dor 31. Ro. claus 17. H. 6. in dors whereof two were in the second year of E. 1. one in the tenth year of E. 3. another in the seventeenth year of H. 6. since which time we hear of none but by Act of Parliament as they had been usually and regularly before To these I will give answer out of themselves out of the common Law out of divers Statutes and out of the practice of the Commonwealth The restaint in the time of E. 1. the one of them was to forbid the carrying of Wooll out of the Realm the other was to forbid all Traffick with the Flemings That of 10. E. 3. was to restrain the exportation of Ship-timber out of the Realm That of 17. H. 6. to prohibite Traffique with the Subjects of the Duke of Burgundy These presidents are rare yet they have in them inducements out of publique respects to the Common-wealth for the rule of Common Law in this case I take it to be as the reverend Judge Sir Anthony Fitzherbert holds in his Writ of Ne exeas regnum in Nat. Fitzh N. B. 85. Br. that by the Common Law any man may go out of the Kingdom but the King may upon causes touching the good of the Commonwealth restrain any man from going by his Writ or Proclamation and if he then go it is a contempt This opinion of his is confirmed by the Book 1. Eliz. fol. 165. Dier 12. Dier 1. El. 165. Dier 13. El. 296. 13. Eliz. Dier 296. In like manner if a Subject of England be beyond sea and the King send to him to repair home if he do it not his Lands and goods shall be seised for the contempt and this was the case of William de Britain Earl of Richmond 19. E. 2. He was sent by the King into Gascoyne on a message 19. E. 2. and refused to return for which contempt his Goods Chattels Lands and Tenements were seised into the Kings hands 2 3. P. M. Dier 128 The Record is cited 2

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