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
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.
2. That no office of the Kings 34. E. 3. c. 2. or of his heires shall take any goods of any manner of person without the assent and good will of the party to whom the goods belonged The same is declared in many other statutes made against prisages and purveyances Neither have ever any Kings attempted to go plainly directly against that right but have devised certaine legall colours and shadowes for their wrongfull doing in that kind Commissions Loans or Privie Scales Benevolence which I doe find were of three sorts by way of Commission by way of Loan by way of Benevolence Commissions of another were the most insolent for they went out as it were by authority to levy ayd of the people upon great necessity of the Common wealth These were condemned in Parliament 21. E. 3. Num. 16. upon a grevious complaint made of the use of them by the Commons unto the King in Parliament wherein the people doe pray the King that he would be pleased to remember how at the parliament held the 17. year of his raign and at the last Parliament That is the Parliament it was then accorded and granted by their said Lord the King and his counsell that there should goe out no commissions out of chauncery for hobbeleries Archers and other charges to be levied upon the people if they were not granted in Parliament which ordinances were not observed by reason whereof the people were impoverished and decayed for which they prayed the King that he would be pleased to take pity of his people and the ordinances and grants made to his people in Parliament to affirme and hold And that if such Commissions goe out without assent of Parliament that the Commons which are grieved thereby may have writs of supersedeas according to the said Ordinance and that the people be not bound to obey them To this the Kings answer is Siul tiel imposition fuit fait per grand necessitie ceo del assent des Prelates Countes Barons aut grandes ausomes des Commons adonque presents Neant moins nostre Seignior le Royâ—ne voet que tiel imposition non duement fait soit treit in consequence eins voet que les ordinaunces dont cest petition fait mention soit bienment gardes The latest time that ever King attempted that course of exaction was 17. Stowes annals 17. H. 8. H. 8. upon the taking of the French King at Pavie by the forces of Charles the fifth Cardinall Wolsey having a purpose to put the King into a warre about that quarrell and finding his cophers empty advised this way to send out Commissions and by them to levie ayd of the people according to the value of their estate But this gave such discontent to the whole Realme that it caused in many places an actuall rebellion and the Cardinall being called to give an account of this bad advice did justifie this fact by the example of Joseph who advised Pharaoh to take the fifth part of his subjects goods But when hee saw that would not serve the turne he falsely laid it upon the Judges informing the King he did it by their advice being resolved by them of the lawfulnesse of the fact So you see that great Churchmen found more safety in matter of government of our Common-wealth in making a false report of a point of the Common-law than in a true text of the Scripture And if any Churchmen will endeavour by application of the text of Scripture to overthrow the ancient lawes and liberties of the Kingdome I would advise them to be admonished by the ill successe of the Cardinall in this particular action and by the miserable catastrophe of his whole life and fortunes Loans and Privie Seales Loanes and apprests were those which we call Privie Seales which though they were more moderate in shew yet being made against the good will of the parties were as injurious indeed as the other The Commons in Parliament Rot. pat 25. E. 3. num 16. 25. E. 3. Num. 16. made a grievous complaint to the King against the use of them and prayed that none from thenceforth should be compelled to make loans against their will and they gave this reason in their petition for that it is against reason and the franchise of the land and prayed that restitution might bee made to those that have made such loanes To this the Kings rescript was It pleaseth our Lord the King it be so Lastly came in those kinde of exactions Benevolence which were termed by the faire name of Benevolences but they became so odious as they gave the occasion of a good law to bee made against themselves and against all other shifts and devices by what new termes soever imposed upon the subjects the Law is 1. R. 3. cap. 2. and is thus 1 R. 3. c. 2. The King remembring how the Commons of this his Realme by nâ—â— and unlawfull inventions and inordinate covetise against the law of this Realme have beene put to great servitude and important charges and exactions and especially by a new imposition called a Benevolence enacteth by the advice c. That the Subjects and Commons of this land from henceforth shall in no wise be charged by any such charges or impositions called a Benevolence nor by such like thing But if you will deny that the King doth in this case tâ—ke the goods of his subject without his assent then you must fall upon mine other alternative proposition That the Kings Patent hath in this case the power of a law to alter property for how can he recover the imposed by a legall course of proceeding and by judgement in his Court but upon a title precedent him before the action brought which title must bee a property in the same imposed and how cometh he by that property but by his owne Letters Patents by which he declareth he will have that same as an imposition For the judgement giveth not the right but only doth manifest and declare it and giveth execution of it So in this point the question is whether the Kings Patent hath the force and power of the Law or not for if it bee not maintained that it hath it can never be concluded that he can transferre the property of his subjects goods to himselfe without the assent of them for quod meum est sine facto meo alterius fieri non potest And if you give this power to the Kings Patent you subject the law and take away all rules and bounds of setled government and leave in the subject no property of his owne neither doe you by this advance the Kings power and prerogative 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 Lawes are convertibilia coincidentia and whosoever can doe the one can doe the other
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
these they affirme cannot be understood but of Impositions by the King without assent of Parliament To this I answer if they were not duties due to the King besides Custome and Subsidie which might satisfie the intention of these words this objection might have had some colour in it but it is plaine that besides these two there are other profits due to the King upon Merchants goods as Scavage Tonage and the like And you shall finde a Petition in Parliament Rot. parl 50. E 3. nu 163. 50. E. 3 against the raising of these above the old rate The eight Law is E. 15. E. 3. stat 2. ta 5. 3. stat 2 ca. 5. whereby it is enacted that every Merchant may freely buy and sell and passe the sea with their Merchandizes of Wooll and all other things paying the Custome of old time used according to the Statute made the last Parliament in Midlent which was the stat 14. E. 3. stat 2. cap. 2. This Law doth expresly exclude the novelty of Impositions The ninth Law is that 18. 18. E. 3. stat 1. ca. 3. E. 3 stat 1. ca. 3. Whereby it is enacted that the sea be open to all manner Merchants to passe with their Merchandizes where it shall please them The tenth is 27. 27. E. 3. st 2. ca. 2. E. 3. stat 2. ca. 2. for the assurance of Merchant strangers and other the King doth will and grant for him his heires that nothing shall be taken over the due Customes nor taken of them to his use by colour of sale or in other manner against their wils The eleventh is 38. E. 3. ca. 2. 38 E. 3. ca. 2. that all manner Merchants aliens and denizens may buy and sell all manner of Merchandizes and freely carry them out of the Realm paying the Customes and Subsidies thereof due The last is 22. H. 8. ca. 8. 22. H. 8. ca. 8. by which it was enacted that Tables should be set up in ports by which the certainty and very duty of every custome toll and duty or summe of money to be demanded and required of wares and Merchandizes shall and may plainely appeare and be declared to the intent that nothing be exacted otherwise then in old time hath beene used and accustomed By this late Law it appeareth that the judgement of of the whole Parliament was at that time that nothing was due upon Wares and Merchandizes but that which was certaine and had beene anciently due by which Impositions are excluded whose qualities are novelty and incertainty as being set on as present occasion moveth and proportioned for quantity and other circumstances as the will of the King directeth These are the Lawes which I conceive most directly tend to the restraining the Kings of England from the exercise of that irregular power of imposing at the first offered by them to be put in execution yet not pressed as their right and never practised but upon opposition of the whole State and at last deserted and given over untill of late As by that which followeth in the fourth place will appeare My fourth and last assertion is Custome 4 that this practiseof imposing without assent of Parliament is contra morem Majorum In this I will make an historicall perlustration of the times past whereby I will discover and make knowne what passages have beene in this businesse in this Kingdome and especially in the high Court of Parliament for the space of 300 yeares and more last past since the beginning of the raigne of E. 1. sithence which time and not before this Kingdome hath growne into the glory and reputation of foraigne traffique And as a worthy Gentleman of the Kings â—earned Councell made certaine considerations upon this question framed and strengthened out of the greatnesse of his wit and reason so I grounding my selfe upon the practise of former times which is the safest rule whereâ—y to square the right both of King and people in this Common wealth where their right is jus consuetudinarium a right that groweth by use and practise I will propose unto you certaine observations out of the action and experience of former times untill the raignes of the two late Queenes by which you may the better ground and frame your judgements in the determination of the right in this question My first observation is in point of circumstance that there never was any Imposition set but in time of actuall war and duplicatis vexillis they were set on very rarely and sparingly but for a short time and that certaine and definite and upon some few commodities and that by the assent of the Merchants that were to beare the burthen In our time the occasion not so sensible the continuance to be perpetuall the number many hundreds almost no kinde of Commodity spared I will give you some few Instanof these circumstances ces out of the Records themselves The maletole of Wooll set on by King E. 22. E. 1. orig Scacc. Rent Thes 22. E. 1. mem Scac. R. Thes T. Mich. 1. which gave the occasion of the Stat. 25. yeare of his raigne was given by Merchants The Record saith Mercatores gratanter concesserunt in subsidium guerrae Regis It further sheweth it was for his necessity of warre which then was great also For the time of E. Rot. parl 17. E. 3. nu 28. 3. there need not many instances for his whole raigne was almost an actuall warfare As in the sixt year of his raigne for his warre in Scotland and Ireland In the thirteenth year of his raigne for his war in France severall Impositions were set on In the seventeenth yeare of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Merchants and it was in the time of Warre In the twentieth yeare of King E. 3. Rot. parl 20. E. 3. nu 18. it appeareth in the Record that the Imposition then put upon Wools was by the assent of Merchants for two yeares for the necessity the King had in his passage over the sea to recover his right and to defend the Realme My second observation is never any Imposition was set on by the King out of Parliament but complaint was made of it in Parliament and not one that ever stood after such complaint made but remedy was afforded for it Et quod Rex inconsultò fecit consulto revocavit his Soveraigne power controlled his subordinate In which it is a thing very notable that the King in no one Case ever claimed or so much as ever named his right or prerogative which no doubt would have been done if it had been thought due but gave satisfaction to the complaint by one of these three waies either by discharging them quite and making some good Law against them Secondly by intreating the people to hold them some short time by their favour Thirdly by waving his present possession and taking that of their
E. 4. cap. 1. 19. H. 7. cap. 21. The same thing enacted upon the like occasion 4. E. 4. c. 1.19 H. 7. c. 21. the importation of divers commodities forbidden as being prejudiciall to the manufactures within the Realme 6. H. 8 cap 12. 6. H. 8. cap. 12. The exportation of Norfolk woolls out of the Realme forbidden 26. H. 8. cap. 10. 26. H. 8. ca. 10. Power is given to the King to order and dispose of the traffique of merchants at his pleasure and the reason is given because otherwise the leagues and amities with forreigne Princes might bee impeached by reason of restraint made by divers statutes then standing on foote whereby it appeareth that it was not then taken to bee law that the King had an absolute power in himselfe to order and dispose of the course of traffique without helpe of a statute 2. E. 6. cap. 9. 2. E. 6. cap. 9.1 2. P. M. c. 5. Exportation of leather restrained 1. 2. Ph. Ma. The exportation of herring butter cheese and other victuals forbidden 18. Eliza. cap. 8. the exportation of tallow 18. El. cap. 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 doe so earnestly urge this argument the King may restraine traffique therefore may impose to prove better then they have done that the King may restraine traffique of his owne absolute power for as the naturall policy and constitution of our Common-wealth is wee may better say that is law which is de more gentis then that which floweth from the reason of any man guided by his generall notion and apprehension of power regall in genere not in individuo The last assault made against this right of the Kingdome was an objection grounded upon policy and matter of State as that it may so fall out that an imposition may beset by a forreigne 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 executed but stayed untill a Parliament may in the meane time prove vaine and idle and much damage may bee sustained that cannot afterwards be remedied This straine of policy maketh nothing to the point of right our rule is in this plaine Common-wealth of ours Oportet neminem esse sapientiorem legibus if there bee an inconvenience it is fitter to have it removed by a lawfull meanes than by an unlawfull but this is rather a mischiefe than an inconvenience that is a prejudice in present to some few but not hurtfull to the Common-wealth and it is more tolerable to suffer an hurt to some few for a short time than to give way to the breach and violation of the right of the whole Nation for that is the true inconvenience neither need it bee 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 bee the example of our ancestours in this very case and that in the time of one of the most politique Princes that ever reigned in this Kingdome 7. H. 7. cap. 7. 7. H. 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 Malmeseyes at Candy foure duckets of gold upon a But which in sterling was eighteene shillings the But. It was therefore enacted that every merchant stranger that brought Malmesey into this Kingdome should pay eighteene shillings the But over and above the due Custome used this imposition to indure untill they of Venice had set aside that of foure duckats the But upon the Englishmen Much hath beene learnedly uttered upon this argument in the maintenance of the peoples right and in answering that which hath beene pressed on the contrary but my meaning is not to expresse in this discourse all that hath or may bee said on either side but onely to make a remembrance somewhat larger of that which I my selfe offered as my symbolum towards the making up of this great reckoning of the Common-wealth which if it bee not well audited may in time cost the subjects of England very deare My hope is of others that laboured very worthily in this businesse that they will not suffer their paines to die and therefore I have forborne to enter into their province I will end with that saying of that true and honest Counsellour Philip Comines in his 5th booke the 18. chap. That it is more honourable for a King to say Ph. Comines l. 5. c. 18. I have so faithfull and obedient subjects that they deny me nothing I demand than to say I levie what me list and I have priviledges so to doe After the Kings right to impose had beene 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 Majestie this hereafter was concerning impositions THE policie and constitution of this your Majesties kingdome appropriates unto the Kings of this Realme with assent of Parliament as well the soveraigne power of making Lawes as that of raxing 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 kingdome as they have ever shewed themselves faithfull and loving to their Kings and ready to aide them in all their just occasions with voluntary contributions so have they been ever carefull to preserve their owne 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 impesitions 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 obtaine a speedy and full redresse without any claime made by the Kings of any power or prerogative in that point And though the Law of propriety be originall and carefully preserved by the common Lawes of this Realme which are as ancient as the Kingdome it selfe yet those famous Kings for the better contentment and assurance of their loving subjects agreed that this olde fundamentall 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 as may appeare by sundry Records of former times We therefore your Majesties most humble Commons assembled in Parliament following the example of this worthy care of our ancestors and out of our duty to those for whom we serve finding that your Majestie without advice and consent of your lords and Commons hath lately in time of peace set both greater impositions and farre more in number then any your noble ancestors did ever in time of Warre doe with all humility present this most just and necessary petition unto your Majestie that all impositions set without assent of Parliament may be quite abolished and taken away And that your Majestie likewise in imitation of your royall progenitors will be pleased that a Law in your time and during this Session of Parliament may be also made to declare that all impositions of any kinde set or to be set upon your people their goods or merchandizes save only by common consent in Parliament are and shall be voide Wherein your Majesty shall not only give your subjects great satisfaction in point of their right but also bring exceeding joy and comfort to them who now suffer partly through the abating of the price of native commodities and partly through the raising of all forraigne to the overthrow of Merchants and Shipping the causing of a generall dearth and decay of all wealth among your people who will be thereby no lesse discouraged then disabled to supply your Majestie when occasion shall require FINIS 20. Maii 1641. AT a Committee appointed by the honourable House of Commons for examination of Bookes and of the licencing and suppressing of them c. It is ordered that this Treatise be published in Print unlesse the Licencer shall shew good cause to the contrary EDVVARD DERING
concerned the right of our whole Nation of which every one of them hath exceeded the other by a gradation in waight and moment The first was the change of our name which was a point of honour The name of Britaine not admitted in legall proceedings wherein we shewed our selves not willing to leave that name by which our ancestors made our Nation famous yet have we lost it saving onely in those cases where our ancient and faithfull protector the Common Law doth reteine 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 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 owne part the lesse by how much the greater number should be among whom the Division was to be made Coke li 7. Câ—lâ—â—s 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 Virgil Aeneid l. 1 Dido's speech to Aeneas Tros Tyriusque mihi nullo discrimine habetur The third is the question now in hand which exceedeth the other two in importance and 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 consents 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 owne 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 neede not to speake for the Kings learned Counsell have with great honour and conscience in full Councell acknowledged them to be against the law Therefore I will apply my selfe to speake of impositions forreine 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 selfe 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 downe upon every kinde 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 kinde 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 Heareupon 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 warre did so affect our whole Nation and especially the great Councell of the Parliament being the representative body of the whole Common-wealth that neither the sunne did shine nor the rivers runne their courses untill it was taken off by the publick judgement of the whole State I thought it concerned me and other members of that Councell that were no lesse trusted for our countreys 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 kindes of goods but almost indefinite upon all and doe 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 successours 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 practise of forraine princes For this I will not take upon me to enter into the consideration of such great misteries of policie and governement but will only put you in minde of that I observe out of Tit. Tit. Liu. 8. Livius the Romane Hi storiographer Omnem divini humanique moris memoriam abolemus cum novâ peregrinâque 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 endevour to give satisfaction to such new objections as were made by the worthie and learned Counselor of the King that spake last in maintenance of his Maiesties Prerogative The case in termes is this Pat. Iuly 28. Iac. 6. The King by his Letters Patents before recited hath ordained willed and commanded that these new impositions contained in that booke of rates shal be for ever hereafter payd unto him his heires and successors upon paine of his displeasure Herevpon the question ariseth whether by this Edict and Ordinance so made by the King himselfe by his Letters Patents of his owne will and power absolute without assent of Parliament he be so 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 impositions 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
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
the King doth release that imposition of forty shillings which implyeth a right setled in him But to this I answer that it is no necessarie inference that wheresoever a release of right is for it is used for claime only or where possession was though wrongfull and that in majorem securitatem quia abundans cautela non nocet But in this case a release was very expedient and for some respect necessary to extinguish a right the King had in this imposition against the Marchants themselves For this imposition though it were not set on by assent of Parliament yet was it not set on by the Kings absolute power but was granted to him by the Merchants themselves who were to bee charged with it so the grievance was the violation of the right of the people in setting it on without their assent in Parliament not the dammage that grew by it for that did only touch the Merchants who could not justly complaine thereof because it was their own act and grant 22. E. 1. Origen in Scac. Rem Thes This appeareth by two notable records the one 22. E. 1. A writ to the Treasurer and Barons of the Exchequer in Ireland to discharge the Merchants there of impositions on Woolls in which the King reciteth Licet in subsidium Guerra Regis pro recuperandâ terrâ Vasconiâ mercatores gratanter concesserunt per biennium vel triennium si tantum duraverit Guerra de sacco lanae c. The other record is the Writ of publication that in 26. E. 1. went out after the Statute of 25. In 26. F. 1. mem Sca. Rem Thes in which Writ the King reciteth thus Cum nos ad instantiam Communitatis Regni nostri remiserimus custumam 40. s. nobis nuper in subsidium Guerrae noctrae contra Regem Franciae concessum c. A third objection made out of the body of the Statute by those which have argued on the contrary part was upon these words that the King would take no such things without common consent by which words they conceived the intention of the Law was limitted precisely to impositions set upon wooll and not on other commodities which are not such things but other And for this they alledge this reason That it was not probable when the complaint was only for an imposition on Wooll that the King would give a remedy for other things not spoken of for which there was no cause of complaint To this a full answer is given many wayes first out of the Saving in the Act which extends to other things than to Wooll as to Wooll-fells and Leather therefore the purview of the act by these words such things extendeth to more than the Wooll for there needs no Saving but for that which is contained in the purview Secondly the reason alledged that no more by likelihood should bee remedied but for Wooll because only that was complained of is false For the complaint of the Commons was not only for this imposition on Wooll but divers other burthens and grievances of the like nature And this will appeare if wee compare all the parts of the Law the one with the other for this Law is in the forme of a Charter written in French and beginneth Edward by the grace of God c. And is an entire grant and instrument without fractions sections and Chapters as it is now printed and containeth in it next before this last clause concerning the impositions on Woolls which in the printed Book is Cap. 6. That the King for no businesse from thenceforth will take no manner of aydes mises nor prises but by common assent This word mises in French signifieth properly impositions derived of the word mitto in Latine to put so the word such things is a conclusion to all the premises and hath relation not only to that which is made Cap. 7. by the Printer and concerneth the male toll of Woolls but to that precedent which is all otheraydes impositions and takings The Writ of publication of this Statute sant out to all parts in 26. Meâ—â— Sâ—ac in 26. E. 1. Rem Thes E. 1. maketh plaine this construction the words of it are Concedentes quod custumam illam velaliam sine voluntate vel communi assensu non capiamus These words vel aliam are indefinite and extend to any other whatsoever besides that of Woolls The Writ doth further discharge Merchants for the Commodities of Wooll-fells and Leather which are not complained of by name in the Statute and therefore the Law was intended to other impositions aswell as to those upon Woolls The objection made out of matter subsequent to the Statute was this that notwithstanding this Law of 25. E. 1. impositions that before the statute had bin set on other Merchandize than Woolls were still answered after the Statute and for instance of this was alledged that whereas 16. E. 1. an imposition of 4. s. 16. E 1. Orig. R. Thes the Tonn was set upon Wines brought into the Kingdome an accompt was made of this in th' exchequer in 26. E. 1. as by the records there appeareth by which it seemeth that the Law of 25. E. 1. was not taken to extend to wines and such other Commodities other than Woolls named in the Statute It is true such an imposition was set on by E. 1. in the sixteenth yeere of his raign and an accompt made for it 25. and 26. 25. 26. E. 1. de compt T. Mich. R. Thes But it appeareth by the record of the accompt that it was made for the time ended before the Statute made As from the eighteenth of May 16 E. 1. to 23 Jul. 22. E. 1. But there is no record that ever any accompt was made for any money received for that imposition for the time after the Statute made neither was it very willingly answered before for it appeareth by the record that it was ten yeere after the setting of it The third Satute alledged on the behalfe of the Subject is that 34. E. 1. ca. 1. the words are these 34. E. 1. ca. 1. No tallage or aide shall be taken or levied by us or our heires in our Realme without the good will and assent of our Arch-bishops Bishops Earles Barons Knights burgesses and other freemen of the land Against this was objected that this Statute was intended only upon the taxes impositions of things The word Auxilium makes it cleare that it is to be intended further then of things within the realme for tallagium is commonly intended of Domesticall taxes but auxilium is the most usuall terme for impositions upon goods imported and exported as by the acts of Parliament by which such impositions are given to the King in which they are called most commonly by the name of Aydes as proceeding of good will and benevolence The fourth Satute alledged on this part is that of 5. 5. E. 2. ca. 14 Rot. Ordiâ— E. 2. ca. 14. just in point of the
there punished and his Patent taken away and cancelled What impositions have been set on in the Kings time I need not expresse they are set downe particularly in the booke of rates that is in print they are not easily numbered the time for which they are raised is not short the Patent prefixed to that booke bearing date 28. â—uln 6. Iacobi will instruct you sufficiently in that point they be limited to the King his heires and successors which I suppose is the first estate of Fee simple of impositions that ever man read of My eighth and last observation is upon tunnage and poundage given to the King of this Realme upon Wares and Merchandizes exported and imported which is an imposition by act of Parliament and as it will appeare was given out of the peoples good will as a very gratification to the King to enjoyne him thereby from the desire of voluntary impositions and to conclude him by that gift in Parliament from attempting to take any other without assent of Parliament for after the ceasing of voluntary impositions these Parliamentary ones were frequent in the times of the King that succeeded but they were never given but for yeares with expresse caution how the money strould be besâ—owed As towards the defence of the Seas protection of traffique or some such other publique causes sometimes speciall sequestrators made by the act of Parliament by whose hands the money should be delivered As 5. 5. R. 2. Rot. Parl. 7. R. 2 n. 13.10 R. 2. n. 12. 7. R. 2. n. 12. R. 2. cap. 3. in a printed Statute The rates that were given were very variable sometimes ii s. tunnage and vi d. poundage as 7. R. 2. iii. s. tunnage and xii d. poundage 10. R. 2. which grants were not to endure the longest of them above a yeare xviii d. tunnage vi d. poundage in 17. R. 2. iii. s. tunnage and xii d. poundage granted to H. 4. in the thirteenth yeare of his raigne for a certaine time in which Statute there is this clause That this aide in time to come should not be taken an example to charge the Lords and Commons in manner of Subsidie unlesse it be by the wills of the Lords and Commons and that by a new grant to be made in full Parliament in time to come This clause in good and proper construction may be taken to be a very convention betweene the King and his people in Parliament that he should not from thenceforth nor any of his Successors set on impositions without assent of Parliament The like imposition was granted to H. 5. Rot. parl 1. H. 5. n. 17. in the first yeare of his raigne for a short time towards the defence of the Realme and safeguard of the Sea upon condition expressed in the act that the Merchants Denizens and estrangers comming into the Realme with their Merchandizes should be well and honestly used and handled paying the said Subsidie as in the time of his Father and his noble Progenitors Kings of England without oppression or extortion In the end of which act the Commons protested being bound by any grant in time to come for the purposes aforesaid H. 6. in the one and thirtieth yeare of his raigne Rot. parl 31. H 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Ma. c. 18. 1. El. c. 19. 1. Iac. c. 33. had tunnage and poundage given him for his life E. 4. had it given him the third yeare of his raigne as it appeareth in a Statute 12. E. 4. cap. 3. H. 8. in the sixth yeare of his raigne and all since in the first yeare of their raignes have had it given them for terme of their life and being now so certainly setled in it do reach further at that froÌ„ which they are in conscience and honour excluded by this voluntarie gratification For can any man give me a reason why the people should give this imposition of tunnage and poundage above the due custome upon all commodities if the King by his prerogative might set on impositions without assent of Parliament and were not that a weaâ—e action in a King to take that of his people as a benevolence from them with limitation of the same and in what it should be imployed and how they will be used for it and for what time he shall have it which he might justly take without their consents unclogged of these unpleasing incombrances The Statute of tunnage and poundage made in our times that are altogether inclined to flattery doe yet retaine in them certain shewes and rumors of those ancient liberties although indeed the substance be lost as in the Srat. 1. lac cap. 1. Iac. c. 33. 33. we declare that we trust and have sure confidence of his Majesties good will towards us in and for the keeping and sure defending of the Seas and that it will please his highnesse that all Merchants as well Denizens as Strangers comming into this Realme be well and honestly intreated and demeaned for such things whereof Subsidie is granted as they were in the time of the Kings Progenitors and Predecessors without oppression to them to be done By this clause as it now continueth the true intent of this Statute appeareth to be that there ought no other imposition be laid upon Merchants besides these given by this Statute and this intention hath been well interpreted by use and practise from the time of E. 3. to the time of Queene Mary as before is declared Thus much of this last reason made from observation and the action of our Nation I will answer now such maine objections as have been made against the peoples right and have not been touched by me obiter in my passage through this discourse That which hath been most insisted upon is this that the King by his prerogative Royall hath the custodie of the Havens and Ports of this Island being the very gates of this Kingdome that he in his royall function and office is only trusted with the keyes of these gates that he alone hath power to shut them and to open them when and to whom he in his Princely wisdome shall see good that by the Law of England he may restraine the persons of any from going out of the Land or from comming into it That he may of his owne power and discretion prohibite exportation and importation of goods and merchandizes and out of this prerogative and preheminence the power of imposing as being derivative doth arise and result For Cui quod maius est licet ei quod est minus licitum est So their reason briefly is this the King may restraine the passage of the person and of the goods therefore he may suffer them not to passe but sub modo paying such an imposition for his sufferance as he shall set upon them for the grounds and propositions laid in this objection I shall not be much against any one of them others of
them must be qualified ere they be confessed but the inference and argument made upon them I utterly deny for in it there is mutatio hypothesis and a transition from a thing of one nature to a thing of another As the premisses are of a power in the King only fiduciary and in point of trust and government the conclusion inferres a right of interest and gaine Admit the King hath Custodiam portuum yet hee hath but the custody which is trust and not Dominium utile He hath power to open and shut upon consideration of publike good to the people and State but not to make gaine and benefit by it The one is protection the other is expilation Portus sunt Publici The Ports in their owne nature are publike free for all to goe in and out yet for the common good this liberty is restrainable by the wisdome and policy of the Prince who is put in trust to discerne the times when this naturall liberty shall be restrained In 1. H. 7. fo 10. 1. H. 7.10 in the case of the Horentines for their Allome the Lord chiefe Justice Hussey doth write a Case that in the time of E. 4. a Legate from the Pope being at Calice to come into England it was resolved in full Councell as the booke saith before the Lords and Judges that he should not have licence to come into England unâ—esse he would take an oath at Calice that he would bring nothing with him that should be prejudiciall to the King and his Crowne The King by the Common Law may send his Writ Ne exeas regnum to any subject of the Realme but the surmise of the Writ is Quia datum est nobis intelligi quod tu versus partes exteras absque licentia nostra clam destinas te divertere quamplurima nobis coronae nostrae preiudicia prosequi Fitzh N. B. 85. b. Fitzh N. B. 85. b. So in point of government and Common good of the Realme he may restraine the person but to conclude therefore he may take money not to restraine is to sell government trust and common justice and most unworthy the divine office of a King But let us compare this power of the King in forraigne affaires with the like power he hath in Domestique government There is no question but that the King hath the custodie of the gates of all the Townes and Cities in England as well as all the Ports and Havens and upon consideration of the Weal publike may open and shut them at his pleasure As if the infection of the sicknesse be dangerous in places vicine to the City of London the King may command that none from those places shall come into the City May he therefore set an imposition upon those that he suffereth to come into the City So if by reason of infection he forbid the bringing of Wares and Merchandizes from some Cities or Townes in this Kingdome to any great Faire or Mart Shall he therefore restraine the bringing of Goods thither unlesse money be given him by way of imposition The King in his discretion in point of equity and for qualifying the rigour of the Law may enjoyne any of his Subjects by his Chauncellor from suing in his Court of Common Law May he therefore make a benefit by restraining all from suit in his Courts unlesse they pay him an imposition upon their suits 2. E. 3.7 In 2. E. 3. in the case of the Earle of Richmond before cited the King had granted unto the men of great Yarmouth that all the Ships that arrived at the Port of Yarmouth which consisted of three severail Ports great Yarmouth little Yarmouth and Gerneston should arrive all at great Yarmouth and at no other place within that Port. The lawfulnesse of this Patent being in question in the Kings Court it was reasoned in the Kings behalfe for the upholding of the graunt as it is now that the King had the custodie of the Port he might restrain Merchants from landing at all in his Kingdome Therefore out of the same power might appoint where and in what Haven they should land and in no other This Patent was demurred on in the Kings Bench as being granted against the Law but the Case depending was adjourned into Parliament for the weight and consequence of it and there the Patent was condemned 9. E. 3. cap. 1. and a Law made against such and the like graunts The Presidents that were vouched for maintenance of this power of restraint in the King were foure produced almost in so many hundred yeares Rot. parl 2. E. 1. n. 16. Rot. fin 2. E. 1. n. 17. Rot. claus 10. E. 3. dor 31. Rot. claus 17. H. 6. in dors whereof two were in the second yeare of E. 1. one in the tenth yeare of E. 3. another in the seventeenth yeere of H. 6. since which time wee heare of none but by Act of Parliament as they had beene usually and regularly before To these I will give answer out of themselves out of the common law out of divers statutes and out of the practise of the Common-wealth The restraint in the time of E. 1. the one of them was to forbid the carrying of wooll out of the Realme the other was to forbid all Traffique with the Flemings That of 10. E. 3. was to restraine the exportation of ship-timber out of the Realme That of 17. H. 6. to prohibite Traffique with the subjects of the Duke of Burgundy These presidents are rare yet they have in them inducements out of publique respects to the Common-wealth for the rule of Common law in this case I take it to bee as the reverend Judge Sir Anthony Fitzherbert holds it in his writ of Ne exeas regnum in Na. Br. Fitzh N. B. 85. that by the Common law any man may goe out of the Kingdome but the King may upon causes touching the good of the Common-wealth restraine any man from going by his Writ or Proclamation and if hee then goe it is a contempt This opinion of his is confirmed by the booke Dier 1. El. 165. Dier 13. El. 296. 1. Eliz. fol. 165. Dier 12. 13. Etiz Dier 296. In like manner if a subject of England be beyond sea and the King send to him to repaire home if hee doe it not his lands and goods shall bee seised for the contempt and this was the case of William de Brittain E. of Richmond 19. E. 2. 19. E. 2. Hee was sent by the King into Gascoine on a message and refused to returne for which contempt his goods chattels lands and tenements were seised into the Kings hands 2. 3. P. M. Dier 128. the Record is cited 2. 3. Ph. M. in my L. Dier fol. 128. B. and the law there held to bee so at that time upon a question moved in the Queenes behalfe against divers that being beyond the seas refused to returne upon commandment sent unto
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.