fourteene twelve yeeres her age of consent and nine yeeres capable to bee endowed a yeere and a day given to sue an appeale the like limitation of a yeere and day in very many other Cases In effect who reduced all the known grounds of the Common law to that certainty that now they are Because wee cannot tell how or when they began shall wee therfore conclude that they began by the kings absolute power and inferre that by the same reason they may bee changed at his pleasure If the king may increase his Fines upon the purchase of Originall writts which by the same reason hee may doe that hee may doe his Custome nay hee hath more colour for this then for that because there is no Statute against this hee might easily raise that revenue to the value of his Customes But no man can nor will I hope offer to mainteine it to bee lawfull You see the weakenesse and the dangerous consequence of this argument by comparing it to other cases of like nature To say the truth all these things began no man can say certainly when or how but by a tacit consent of king and people and the long approbation of time beyond the memory of any man and yet no man can directly affirm but that most of them might begin by Act of Parliament though now there bee no Records extant of such antient Parliaments The first Parliament was not kept 9 H. 3 though it be the first in our bookes If we will give credit to other Records and to our best Chroniclers The antiquity of Parliaments we shall heare and reade of divers Parliaments in the Reigne of King John and of his Predecessor Rich. 1. and in the Reign of H. 2. of two famous Parliaments one at Claringdon in Wiltshire the other at Gedington in North-Hamptonshire And although our Chronicles say that the first Parliament kept in this Realm was held 19 Aprilis 16 H. 1. yet I am of opinion that William the Conqueror held Parliaments for what can be else understood by these words Per commune consilium totius Regni nostri stabilitum fuit which I finde in Mr. Lamberts collection of the ancient Lawes of England in the beginning of the Lawes of W. the Conqueror Many of the Statutes of E. 1. have no other words Nay long before him in the yeere of our Lord 712. in the time of Inas King of the West-Saxons I assure my selfe there were Parliaments held and that of the three Estates as at this day as may appeare by these words in the beginning of the Lawes of King Inas in Mr. Lambert Suasu Instituto Episcoporum nostrorum omnium Senatorum nostrorum natu majorum populi nostri in frequentia magna And more plainly in the conclusion of some other of his Lawes Hoc factum fuit per commune consilium assensum Procerum Comitum omnium Sapientium Seniorum Populorum totius Regni per praeceptum Regis Inae which are the same in Latine which ours is in English By the King the Lords Spirituall and Temporall and the Commons VVhy might not the Custome upon Woolls be first granted at one of these Parliaments as well as to have it first begun by the Kings absolute power There is no more probability of the one than the other because most of the ancient Records were burnt in H. 2. time when the Exchequer was burnt shall we conclude therefore that there were neâ—er any such You see the weaknes of this Argument in all the points thereof I leave it and passe to another The King may say they restrain the passage of Merchants at his pleasure The second Argument that the King may totally restrain the importing and exporting of merchandizes therfore he may do it sub modo by laying of an Imposition answered which they prove by divers Records 2 E. 1. m. 18. Ro. Par. 2 E 1. m. 17. Ro. fin 31 E. 1. n. 44. Ro. Pat. 17 H. 6. Ro. Clo. in dorso Upon which they inferre that if he may restraine a Merchant that he shall not passe at all he may much more so restraine him that he shall not passe except he pay a certaine sum of money For this say they is lesse than totally to restraine him And Cui licet quod majus licet etiam quod minus Of this Argument my L. Dyer gave light in his case of Impositions 1 Eliz. and this hath been diversly inforced by all that have argued for Impositions In answer of which I will consider how farre the king may restrain the passage of Merchants and then will examine the consequence of the Argument For my part I think the king cannot restrain the passage of Merchants but for some speciall cause wherein to define certainly and resolutely to say for what causes he may and for what not I will not undertake Onely let me inform you that there is not one of these presidents vouched by them to prove the kings power to restraine but they are upon speciall reasons as by reason of Enmity with such a Nation from whence they are restrained or because such a Commodity may not be spared within the kingdome Besides they are not restraints from all places and of all manner of Merchandizes but from certain places onely and for certain sorts of Merchandizes And for my part I thinke that restraints in all these cases and of like nature are by the common-Common-Law left to the kings absolute power For if it were otherwise it should be in the power of a Merchant for a little private lucre to enrich the kings Enemies or to furnish them with munition to be imployed against the State or utterly to ruine the Common-wealth by carrying out a Commodity which may not be spared or by bringing in of some that may be hurtfull Nay which is more such may be the occasion that the king may I doubt not stop the passages of all Merchants from all places for a short time as upon the death of the late Queene it was put in practise to prevent Intelligence there may likewise be such necessary use of their ships as the want of them upon some sodaine attempts may be a cause of the overthrow of the whole State In such cases as these if the Common law did not give the King leave to restraine their passage by his absolute power it were very improvident in the highest points which cannot be imagined of so wise a law And yet the Kings of this Realme have alwayes been sparing in the practise of their absolute power in this point For there are little lesse then 30. Acts of Parliament touching the opening and shutting up of the passage of Merchants most of which as I conceive were made rather for the increase of punishment then for want of power in the King For the breach of a restraint by absolute commandment is punishable as all other contempts onely by Fine and Imprisonment and not by forfeiture of the Merchandizes
as in the president of the Wines An. 5. of Queene Mary vouched by me and is in some of those old presidents If it be otherwise I must confesse I know not the reason of the difference of this from other contempts You see that I have yeelded to their proposition That the King may by his absolute power restraine the passage ef Merchants and have therein granted more then their presidents prove But is the consequence good that because the King may restrain therefore he may impose upon such as passe First I denie that in our case there is any restraint at all as there was in the case of the French Wines by Queen Mary by her Proclamation going before the imposition For proofe of which I referre you to the Kings Letters Patents prefixed before the last Book of Rates by which instrument the impositions now complained of were altogether raised you shall finde it no other then a Declaration of the Kings pleasure so to have it and a course prescribed for levying of it But admitting that the very laying of an imposition did implie a restraint yet I denie the consequence Because the King may restraine totally that therefore he may restraine for a time or from certaine places or certaine commodities or certaine Merchants This indeed is a good Argument a majori ad minus But because he may restraine totally therefore that he may give passage for money is no good consequence For in our case there is no restraint at all but it is rather a passage for money If there be just occasion of a restraint the law giveth the King power to restraine but when Merchants may without hurt of the State have passage as in our case to enforce them to pay for that passage is in my opinion as unlawfull as to enforce any man whatsoever to pay for doing that which he may lawfully doe Merchants have as I may so say as good inheritance in their trade as any man in his lands and when it may stand with the good of the state that they may passe they ought to passe as freely without charge imposed on them as any man ought to hold his inheritance or any Artificer or other Tradesman ought to exercise their lawfull trades and means of living free from burdens to be laid on by the Kings absolute power if all others should be free and onely Merchants who adventure their persons and estates in so many dangers to bring us from farre places such things as without which we cannot subsist and to returne us profit for our superfluities should be subject to involuntarie burthens their estate were of all other mens most unhappy and slavish which of all other trades is indeed the noblest and most worthy to be cherished And here by the way I note that in all other Nations of the world where the Merchant is subject to impositions at the Kings pleasure the Landlord the Farmer the Artificer the very Plowman and all others are in like sort subject to Taxes and burdens when the King pleaseth The Merchant is not the man alone that is subject to Taxes and all other men free if in the frame of our Common wealth it were thought fit to free all other Trades and Professions from taxes much more ought it to be thought reasonable that our Merchants should be free and by all means possible incouraged in their Trade For our case is not as it is with other nations of the Continent we are Islanders and divided by the Sea from all the world and in that respect have such use of Merchants as we cannot live without them if therefore any should be free amongst us it should be the Merchant and not the quite contrary onely the Merchant charged and all others free Plato in his 8. book de Rep. is of opinion that the Merchant for his incouragement to trade should be free from all Custome whatsoever we seek only to be free of involuntary impositions But to return to the Argument of restraint from whence I am a little digressed if it be a good Argument that because the King may restraine in Toto he may restrain in Tanto It will not be denied unto me for it followeth necessarily that in cases where he cannot restraine in Toto he cannot restraine in Tanto But there is no man that will say that he may restraine the entrance and passage of all Merchants to and from all the parts of the world whatsoever without any limitation of time but the restraint to endure for ever and for all kinds of Merchandizes whatsoever of most necessary and common use to be brought into or carried out of the Realme There is no man I suppose will say That the Law hath given the King power to make so unreasonable a restraint as this for it were to give him a power to destroy merchandize and consequently to ruine the Common wealth Beside it were against the law of nations and of reason it self It cannot be imagined that any wise law in the world should allow it But if our Impositions as it is said doe implie a Restraint and that a restraint be always the forerunner of all Impositions Then such an unreasonable restraint as I have spoken of must needs be presupposed to have been the ground or fore-runner of our present imposition For in our impositions are not all the merchandizes of necessary and common use charged Are not all the Merchants Denizens and Strangers importing from any part or exporting to any part of the world subject to the charge is there any limitation of time but to endure for ever if I say such a restraint had been unlawfull which I suppose no man will denie then whatsoever implieth such a Restraint which our impositions doe is likewise unlawfull But the ill consequence of this their argument drawne from the Kings power of restraint will best appeare by comparing it to other cases I little doubt but the King upon some occasion may lawfully restraine the passage of all men through the gates of London as for the purpose when the Citie shall be besieged or in the time of an extreme plague Nay is it not by authoritie derived onely from him that the gates are shut every night Doth it follow therefore that because he may doe it upon some extraordinary occasion or at some time that he may shut up the passage for ever or that presupposing such a restraint by his absolute power he may lay an imposition upon every burthen of any thing brought in or carried out as the Duke of Florence and many other States in Italy and Germany doe or upon every man by the Poll that shall passe through the gates You see the weaknesse and danger of the consequence of this Argument and how it tends to justifie Impositions within the land And so I leave it and proceed to the next The Ports and Haven Townes of England are say they the Kings The third Argument that the Ports are the
THE LIBERTIE OF THE Subject AGAINST THE PRETENDED POWER OF IMPOSITIONS Maintained by an Argument in Parliament Ano. 7o. JACOB 1 Regis By WILLIAM HAKEVVIL of Lincolns Inne Esq LONDON Printed by R. H. An. Dom. 1641. To the Reader BEing very sensible of a great Injury lately done mee by the extreme false printing of a smal Treatise of my Composing stoln out without my consent and hearing accidentally that some part of this also had passed the Presse I thought good for the preventing of the like wrong to stay the forwardnesse of the printer untill I had reviewed and corrected it by mine owne Notes For my part I should have been contented altogether to have restrained it if I might But now seeing it must abroad I shall not bee ashamed to let it beare my name and owne the errors of it my self those of the Presse excepted though heretofore it had gayned so much reputation by some as it was attributed to a worthier Author Some there are yet surviving that heard this Argument about thirty yeeres since in the Commons-House of Parliament but it hath now extended it selfe beyond the probable proportion of a Speech or Argument by the insertion of many Records and Acts of Parliament more at large which at the delivery of it were but meerely quoted The Endeavour of it is to prove that the just Prerogative of our Kings never warranted them to raise monies at their pleasure by laying a charge on Merchandize to bee Exported or Imported without assent of Parliament But on the contrary the setled Lawes of the Land the Presidents of former Ages the Acts of our most necessitous and powerfull Princes and indeed every thing requisite to make the Truth apparent doe as it were unanimously consent to discharge us of this unjust and heavy Burthen And you shall see herein how the policy of active Princes hath by many waies attempted to undermine those Fortifications which the wisdom of our Ancestors hath raysed to maintaine themselves from this kinde of Assault You shall see with how great difficulty their prevailing was withstood And which is the glory of Truth you shall finde those designes which were laid to overthrow our Right mainly to make for the evidence and confirmation of it For whatever unjust Impositions were either exacted by a pretended lawfullnesse or set up by a commanding power were by complaint in Parliaments presently following taken down and remain on Record as witnesses against themselves unlawfull and against our Libertie These Reasons and Arguments of mine how meane soever those times wherein I urged them accepted favorably and since in their private passage in manuscripts were entertained in many judicious hands which made mee somwhat enlarge the conceit that before I had of them And now seeing necessitie enforceth mee to make them more publique I must adventure them to the censure of these nice times Beneficiall happily they may be to some prejudiciall I hope to none In which confidence having the leave of Authority they have likewise my leave to goe abroad Vale. W. H. The Contents 1 THat there was ever some Custome due to the King by the Common-Law folio 6. 2 That it was a sum certaine by the Common-Law folio 10. 3 That all the Revenues which the Common Law giveth to the King out of the interest of the Subject are certaine or reduceable to a certainty by some legall course and none left to the Kings pleasure folio 11. 4 The reasons why the Law requireth such certainty in those Revenues which the King hath out of the interest of the Subject folio 12. 5 Examples of Revenues given by the Common Law to the King out of the interest of the Subject and that they are all certaine folio 13. 6 Answer to an Objection that the King may lay Impositions upon extraordinary occasions folio 21. 7 Arguments drawne from the actions of our Kings that they had no power to impose folio 25. 8 Arguments drawn from the forbearance of our Kings to lay Impositions notwithstanding their urgent occasions folio 34. 9 The difference between the Presidents urged of Impositions laid by the antient Kings and those which are now laid folio 29. 10 A particular answer to the Imposition of 3d in the pound laid upon Merchant-strangers by Charta Mercatoria 31 Ed. 1. folio 42 43. 11 The urgent occasions which Ed 2. had to lay Impositions and yet how he forbore folio 48. 12 The severall policies used by Ed 3. for the introducing of the power of Imposing 1. Impositions taken by colour of a voluntary Grant from Merchants folio 49. 2 By way of dispensation wiih penall Lawes folio 59. 3 By way of Ordinance in Parliament folio 61. 4 By colour of a Loane by Merchants folio 64. 5 By Grants of Merchants for Liberties granted to them folio 65. 6 By expresse and direct commandement folio 66. with severall answeres to all these severall wayes 13 In what Statutes Impositions are mentioned after Edw. 3. time untill Qu. Maries and upon what occasions and how to be interpreted folio 73. 14 The signification of the words Imposition Toll Maletolt Custuma Consuetudo magna parva folio 73 103. 15 No Imposition laid from Edw. 3. time till Qu. Maries folio 78. 16 What urgent occasions all the Kings from Edw. 3. till Qu. Maries time had to lay Impositions and yet did it not Rich. 2. f. 79. Hen. 4. f. 82. Hen. 5. f. 84. Hen 6. f. 85. Edw. 4. f. 85. Hen. 7. f. 86. Hen 8. f. 89. Edw. 6 f 92. with a Corolary of all those times and occasions folio 92. 17 The Impositions laid by Q. Mary and how answered folio 93. 18 Admitting the Kings had power by the Common Law to lay Impositions yet how they are barred by Statutes folio 98. 19 Magna Charta cap. 30. urged against Impositions and the objection made against it answered 1 Objection That it extendeth onely to Merchant-strangers f. 100. 2 That it was made onely against Taxes within the Land f. 101. 3 That by the exception in the end of the Statute the Kings Prerogative is salved folio 111. 20 The Statute de Tallagio non concedendo urged with the answers to the objections made thereunto folio 113. The exposition of the words Tallage Ayde Subsidie folio 112 114. 21 The Statute of 25 Ed. 1. cap. 7. urged against Impositions and cleered from Objections 1 That it is against the excesse of Imposititions and not against the Right f. 115 116. 2 That it is onely a-against Impositions on Woolls folio 118. 22 The Statute of 14 Ed. 3. cap. 21. urged against Impositions and cleered from Objections 1 That it extendeth onely to Impositions within the Land and not upon merchandizes with an exposition of the word Charge folio 118 121. 23 Answers to the Reasons urged in maintenance of Impositions 1 That because it cannot appeare that the ancient Customes were set by Parliament therefore they were imposed by the King folio
125. The Antiquity of Parliaments folio 128. 24 Answer to the the second Reason urged for Impositions That the King may totally restraine importation and exportation and therefore may restraine sub modo by laying Impositions folio 124 125 c. 25 Answer to the third Reason That the Ports are the Kings and that he may open and shut them on what conditions he pleaseth folio 136. 26 Answer to the fourth Reason That the King is bound to protect Merchants and safeguard the Seas and that therefore he may lay moderate Impositions for raising of many to defray his charges folio 138. 27 Answer to the fifth objection That all forreign Princes have power to impose and if our King should not have the like it might be very inconvenient to this State ibid. 28 A summary Conclusion of the whole Argument folio 141. Mr. SPEAKER THe Question now in debate amongst us is Whether his M tie may by his Prerogative Royall without assent of Parliament at his own will and pleasure lay a new Charge or Imposition upon Merchandizes to be brought into or out of this Kingdome of England and enforce Merchants to pay the same I Must confesse that when this Point was first stirred mongst us and that wee not contented to seeke redresse for the excesse of the present Impositions resolved to proceed farther by calling his Majesties right of Imposing into question I was very sory for I saw we were then in a faire way to have obteined a very great abatement of the Impositions that now are and besides we had his Majesties promise never to lay any more but in Parliament time by the advice and free consent of his Subjects repayring hither from all parts of the Realme This hope of a present ease and gracious promise for the time to come gave me I confesse a full satisfaction especially seeing I was confidently perswaded that his Majesties right to impose was very cleere and not to be disputed and that therfore by drawing into question the right wee might give his Majesty just occasion to withdraw from us his gracious purpose of the present abatement as also his promise for the time to come For Syr when the Case of Bates who as you know was called into question for refusing to pay the Imposition laid upon Currans was argued in the Exchequer in which Case his Majesties right to Impose was solemnly disputed and there resolved for his Majesty I was then present at all the Arguments both at the Bar and at the Bench And I doe confesse that by the weighty and unanswerable reasons as I then conceived them of those grave and reverend Judges Flâ—ming Ch. Bar. Clarke Savil. sitting in their seate of Justice I was much perswaded but by those many records vouched by them I was altogether overcome and as it were vanquish't to yeeld to them for Syr Ratio suadet Anthoritas vincit But though I were then and when the Question was first moved in this house very confident yet as you shall perceive anon I was not very constant in that opinion for being amongst others imployed by this house to make search in the Exchequer for Records which by the practise of former ages might guide our judgements in this weighty point and having diligently collected the Arguments made in the Exchequer and not only so but compared my owne collections with Reports thereof made by divers other of my friends finding that some of the Records urged in those Arguments were untruly vouched and many misaplyed I then began to stagger in my opinion and presently fell to examine the weight of the Reasons which had been alledged which in my poore censure I found not of strength sufficient without the full concurrence of cleere Presidents of former times to maintaine the Judgement given or my Opinion grounded thereupon And therefore Syr In love to the truth I did forsake my former opinion as erroneous and do now embrace the contrary that is That his Majesty hath no right to impose and so am now become a convert Those Reasons that moved mee thus to change and the weakenesse which I discovered in the Reasons alledged against the opinion which I now hold I will with your patience open unto you and will therein follow the commandement of Christ to Peter Beeing converted seeke to convert my brethren As touching the Judgement in the Exchequer standing yet in force so often cast as a block in our way though I much reverence the persons of those yet living and the memory of those that are with God who gave the Judgement Yet seeing as I hope I shall bee able evidently to prove the same to bee against the great Charter of our Liberties I can esteeme no otherwise of it then the Statute of 25. Ed. 1. cap. 10. pronounceth of all such Judgements that is that it is void and to be held for nought Thus much I thought good to say by way of Preamble or Introduction to the matter now by your favors I will enter into the debate of the Question in handling of which I will purposely avoid the repetition of any thing that hath been spoken by any man that hath argued before as knowing in what presence I speake That I may the better convey my selfe through my Argument and be the better conceived of you that are to heare me I will divide that which I have to say into certain parts which I will prosecute in order First I hold it necessary to consider whether Custom were due to the king by the common-Common-Law Secondly admitting it to bee due by the common-Common-Law whether it were a summe certain not to be increased at the kings pleasure or otherwise Thirdly supposing that by the common-Common-Law the king might by way of imposition have increased his Custom at his owne will by his absolute power without assent in Parliament whether or no hee bee not bound to the contrary by Acts of Parliament In the handling of which part I will consider the strength of every Act of Parliament hitherto vouched to this purpose answering as I goe such objections as have been made against those Statutes by such as have mainteined that the king is not bound by them I will also add a Statute or two as yet not remembred by any Lastly I will discover unto you the weaknesse of such Reasons as have been made in maintenance of the Kings right to Impose in the prosecuting of which parts I will as occasion is offered give some answere to that which hath been last spoken as knowing it to be expected at my hands By Sir Robert Hitcham First then to consider Whether there were by the Common-Law any duty belonging to the King upon Merchandize to be caried into or out of the kingdom known by the name of Custom Though the mainteinance of Custome to be due by the Common-Law be a point of such consequence to them that mainteined the Kings right to Impose as without the upholding of which
their opinion as I conceive is not so much as colourably to be mainteined and that to maintein the same it be not at all necessary to induce my conclusion and although to admit it it may seem perhaps no good policy of Argument but rather a great disadvantage to me to admit that without which the contrary part cannot uphold their opinion and which being admitted cannot make any thing for me yet because we are here not as Arguers at the Bar but as Judges in a high-Court and that all our ends tend to the discovery of the truth I will therefore not only admit it but will maintein it as well as I can That Custom is due by the Common-Law I collect That there was ever some Custome due by the Common Law first by the name thereof for though at this day it bee and so hath beene for more then 350 yeeres as I shall have occasion more fully anon to open unto you called in our law-Latin Custuma yet in ancient time it had no other name here amongst us for I meane not to wander into forreign-learning then Consuetudo as may appeare by the Statute of Magna Charta cap. 30. Per rectas antiquas Consuetudines for I shall anon directly prove unto you that Consuetudo in that place is not to be understood a usage as hath been said but in that sence which I take it This name Consuetudo in the same sense is also found in many ancient Records brought into this house upon the late search That this name then Consuetudo which implies an approved continuance without a known beginning should by the Common-Law be given to this Revenue more then to any other Revenue belonging to the King nay that this terme which is the common and generall name to all common and approved usages of what nature or kinde soever should be applied to this dutie rather then to any other amongst all the ancient usages and Customes which the Common-Law imbraceth cannot but denote the great antiquity thereof and more then so the allowance and approbation thereof by the Common-Law for doubtlesse if beside the antiquity of this dutie the Common-Law had not also alowed the reasonablenesse of it and in a manner the necessity of it it would never have denoted it unto us by this name of excellency above all other Customes which require reasonablenes as well as antiquity Therfore doubtlesse this duty thus favored is a Childe of the Common-Law nay farther it is of the very essence of a Custome to have his only beginning by alowance of the Common-Law for that which beginneth by private contract of partie or by Act of Parliament dependeth not wholly upon the alowance of the Common-Law by one of which three waies all things considerable in Law have their commencements cannot bee called or bee a Custome in Name or Deede moreover considering that this Custome is not limited to any one place within the Realme wee shall so little neede to be curious in affirming it to bee due by the Common-Law as wee may boldly pronounce it to be part of the Common-Law it selfe Thus you see that the very name Consuetudo proves Custome to bee a dutie by Common-Law To this may bee added that Magna Charta cap. 30. which Statute was made little more then 150 yeeres after the Conquest termeth this not only Consuetudo which as I have said implies Antiquity beyond all remembrance of a beginning but Antiqua Consuetudo not onely Custome but old and ancient Custome And in comparison to this old Custome due at Common-Law the Custome upon Staple Commodities given or increased by act of Parliament 3 E. 1. not printed was called Nova Consuetudo Before the making of which Statute of 3 E. 1. you may further see that Custome was due For an 52. H. 3. in the Statute of the Exchequer printed you may read that the Collectors of the Custome of Wools were to yeeld their accompt twice every yeere into the Exchequer But that which most of all moveth me to beleeve that this duty was and is due by the Common-Law is this That in all Cases where the Common-Law putteth the King to sustaine Charge for the protection of the Subject it alwayes yeeldeth him out of the thing protected some gaine towards the maintenance of the Charge As for the protection of Wards Lunatiques and Ideots the profits of their Lands For the maintenance of the Courts of Justice it giveth him Fines for purchase of Originall writs and Fines pro licentia Concordandi which in supposition of Law are no other than Fines paid for not proceeding according to the surety by pledges put in upon purchase of the Originall and for troubling without cause the Kings Justices who are maintained in their places at the Kings charge There are many the like profits of Court given by the Common-Law to the King for the maintenance of his charge in the administring of Justice This observation which might be further proved by divers other instances in things of other nature maketh me to think that because the Common-Law expecteth that the King should protect Merchants in their Trades by maintaining repairing and fortifying the Havens at home by clearing the Sea of Pirates and Enemies in their passage and by maintaining Ambassadors abroad to treate with forreigne Princes upon all such occasions That it also giveth him out of Merchandizes exported and imported some profit for the sustentation of this publique charge otherwise were the Law very unreasonable and unjust So as to prove that by the Common-Law Custome is due to the King I shall need to say no more especially considering it hath not onely been yeelded to but proved by those which maintain a contrary Conclusion I will therefore proceed to my second Consideration Whether that profit upon Merchandizes which the common-Common-Law for these respects gave unto the King were a duty certaine not to be increased or inhaunced at the Kings will and pleasure without a common assent in Parliament Or otherwise Whether the Common Law hath left an absolute power in the King to demand in this case more or lesse at his owne pleasure and to compell his Subjects to pay it The resolving of which question will as I conceive make an end of this controversie between us for what are these Impositions which wee complaine of other than the enhauncing of the Custome by the Kings absolute pleasure That this duty given by the common-Common-Law as I have proved unto the King That Custome due by Common Law was a Sum certain was and is a duty certain not to be enhaunced by the King at his owne pleasure without assent Parliament I hope I shall be able cleerly to prove unto you In mainteinance of which I will use some Arguments of direct proofe and others of great presumption and probability And first I lay this as a ground which will not be denyed me by any man That the Common-Law of England as also all other wise
Lawes in the World delight in certainty and abandon incertainty as the mother of all debate and confusion than which nothing is more odious in Law And therfore the rule is Quod certum est retinendum est quod incertum est dimittendum nay further quod incertum est nihil est This is the censure of Law upon all the acts of men which fall under the judgment of the Law If then the Law so judge of the acts of men holding them for nought and voyde that are incertaine how much more then doth the Law require certainty in her own Acts which are to binde all men And if in any of the acts of Law certainty be to be specially expected most of all is it requisite that bounds of limitation and certainty be set between the King and his poor Subject between the mighty and the weak between the Lion and the Lamb. And if in any Case between the King and his Subject more than other this certainty be required most of all it is requisite in Cases where the Common-Law giveth the King a perpetuall profit or revenue to be raised out of the interest and property of his poor Subjects estate either in lands or goods If in all other things the Law as I have said and wherein I suppose you have yeelded to me doe require certainty and limitation and onely in this case where it is most requisite it hath omitted and neglected it we must conclude the Law to be most unreasonable improvident and contrary to it selfe which to say were to conclude it to be no Law Out of these grounds I may then in my opinion safely and with some confidence deduce and maintain this position That all the Revenue which the Common Law giveth to the King out of the interest of the Subject are certain or reduceable to a certainty by a legall course and none left to the Kings pleasure That the Common-Law of England giveth to the King as to the head of the Commonwealth no perpetuall revenue or matter of profit out of the interest or property of the Subject but it either limiteth a certainty therein at the first or otherwise hath so provided that if it be uncertaine in it selfe it is reduceable to a certainty onely by a legal course that is to say either by Parliament by Judges or Jury not by the Kings own absolute will and pleasure Though this Position be grounded upon those sure foundations out of which I have as you perceive drawn it and needs no farther proof yet because you shal see how plentiful the truth is in reasons to maintain it selfe I will further open unto you the particular reasons of this position which are these First the Law requireth certainty in matter of profit The Reasons why the Law requireth such certainty in those Revenues between the King and the poor Subject because to make any man Judge in his own case especially the mighty over the weake and that in a point of profit to him that judgeth were to leave a way open to oppression and bondage Secondly because by reducing it to a certainty the King may know what certainty to expect that so he may order his charge accordingly Thirdly that the Subject may know likewise what he is to pay that so he may know certainly what shall remaine to him as his own Finally that the King may not depend upon the good will of his Subject for his revenue seeing the Law expecteth he should beare the charge but may know in certainty what to claime as due to him and may accordingly compell the Subject to pay it and that the Subject may not be under the Kings absolute power to pay what the King pleaseth which may perhaps extend to the whole value of the Merchandize You see in generall how the Law by requiring certainty in matter of profit between the King and the Subject preventeth many mischeifes which would fall out if the Law were otherwise and therefore without more saying I might here conclude that Custome being due by the Common-Law was and is a sum certain not to be increased at the Kings pleasure by way of Imposition but because there are many other revenues due to the King by the Common-Law as well as Custome if they all or as many as we can call to minde shall fall out to bee as I have said summes certaine and not subject to bee increased at the kings will this will bee a forcible Argument that custome is likewise certain and not to be inhannced at the kings pleasure for this Argument drawne à simili is of great force and the most usuall of any other in debate of things doubtfull in Law Quae Legibus decisa non sunt Index ex his quae decisa sunt statuet de similibus ad similia procedat May it please you to consider in this respect other revenues which the Common-Law of this Land giveth the King Examples of Revenues given by the Cōmon-Law to the King out of the interest of the Subject that they are certaine and according to the rule to decide that which is in question by the same rule and measure by which other things of the same nature have been decided and ordered The Common-Law giveth the King a Fine for the purchase of an original writ Is it certaine it is and ever hath been if the debt or damages demanded amount to above forty pounds the Fine is and ever hath been sixe shil eight pence and no more if to a hundred pounds then ten shillings and no more May the King increase this Fine at his pleasure there is no man that will say he may There is a Fine due by the Common-Law pro Licentia concordandi is it not certainly known and so hath alwayes been to be the tenth part of the Land comprised in the writ of Covenant And is not also the Post-Fine thereupon due certainly known to be once and a halfe as much more as the Fine pro licentia concordandi or Pre-Fine As for example when the Pre-fine is ten shillings the Post-fine to be fifteen shillings and can the King demand any more of the Subject So likewise when in a writ of Right the Demandant alleadging the seisin of his Ancestor will not be compelled to prove the seisin alleaged is he not to tender to the King a summe certain of a demy-mark to have this benefit was it ever more or lesse or can it now be more if the King would these amongst many others are duties belonging to the King by the Common Law from the Subject for the maintaināce of his Charge in the administration of Justice which the Civilians call Vectigal Judiciarium There are also in divers other Cases duties certain belonging to the King by the Common-Law As for example the reliefe for an Earledome is certainly knowne to be a hundred pounds for a Barony a hundred markes for a Knights fee a hundred shillings all which in the Statute of
Magna Charta cap. are called old and ancicient duties this is Vectigal Patrimoniale of which sort I could produce many others all which have like certainty Nay there is one duty well known to us all which the Common-Law giveth to the King and is in his nature a Custome our very case in which the King is bound to a certainty which he cannot exceed and that is Prisage a duty given by the Common-Law to the King upon every shiploading of Wine brought into the kingdom by English Merchants and is one Tun of Wine before the Mast and another behinde I am unwilling to trouble you with any more particulars of this kinde but let any man shew me one particular to the contrary and I will then yeeld that my position being false in one may be in more But till my position hath been in this point infringed this generall concordance of the Law in all these particulars is argument enough for me without having aleadged other reasons to conclude that Custome being as all these are a revenue due to the King by the common-Common-Law arising out of the Property and interest of the Subject is as all these are limited and bounded by the common-Common-Law to a certainty which the King hath not power to increase Vbi eadem Ratio eadem Lex It may perhaps be here objected that the Ayd paid to the King upon the Knighting of his eldest Sonne or marriage of his eldest Daughter was by the common-Common-Law uncertaine and that the King did take more or lesse at his pleasure untill he was bound to the contrary by Statute To this I make divers answers Though it were indeed a summe uncertaine yet the Common-Law did in some sort give it a limitation for it is by a speciall name called Reasonable Ayd So as if the summe demanded doe exceed Reason it became from a Reasonable Ayd an unjust exaction Besides this revenue was a thing happening very rarely and therefore the certainty thereof not so much regarded by the Law and yet it is to be observed how the frame of this Common-wealth could not long indure incertainty even in this casuall Revenue but it was reduced to a certainty of twenty shillings upon a Knights fee and 20s. upon every twenty pounds Soccageland by the Stat. of West 1. cap. 35.3 Ed. 1. If in this casuall Revenue they were so carefull to be at a certainty to avoid unreasonable exactions as the words of the Statute are how much more carefull would they have been for the same cause to have reduced the great and annuall Revenue of the Custome to a certainty if they had not thought it to have been certaine by the Common-Law or limited by Statute-Law before that time made But Sir that which I rely upon for answer to this objection is this Reasonable Ayd was and is by the Common-Law due as well to meane Lords as to the King But meane Lords were not limited to a certainty otherwise than in generall that it must be reasonable as I have said therefore to limit the King any further was no reason And this answer may be given for all uncertaine Revenues belonging to the King the like of which mean Lords have of their Tenants for the incertainty of which there may also be given especiall reason because these duties first began by speciall contract and agreement between the Lord and the Tenant and not directly by operation of the Common Law and so were certain and uncertain as they did at first agree and therefore you may be pleased to remember how in laying my positiō I was wary to say That such revenues as are due to the King as to the head of the Common wealth by which I purposely excluded such revenues as are common to him with other mean Lords are alwayes certaine I am now according to promise and in maintenance of a second part of my position to shew you That where the Common-Law giveth the King a Revenue not certaine at the first that is alwayes reduceable to a certainty by a legal course as by act of Parliament Judges or Jury and not at the Kings pleasure Every man that by his tenure is bound to serve the King in his warres and faileth is to pay according to the quantity of his Tenure a fine by the name of Escuage this cannot be assessed but in Parliament Upon forfeitures for treason or otherwise to the King though it be a kinde of a certainty that the Law giveth in giving him all the estate of the party convict both in goods and Lands or in goods onely as the case is yet for reducing it to a more expresse certainty the Law requireth that it be found by Office Wayfe Stray Wreck Treasure-Trove and such like are no lesse certaine for the King hath the things themselves in kinde Fines for misdemeanors are alwayes assessed by the Judges Amercements in all cases are to be afferred by the Country and not to be assessed by the King though the forme of the Judgement be Et sit in misecordia Domini Regis in the Kings mercy pro contemptu predict Nay though for punishment of an offence it be by Statute-Law enacted that an offendor shall make Fine and Ransome at the Kings pleasure the Law even in this case which is as strong a case as may be will not leave the assessing of the Fine to the Kings pleasure to be by him rated privately in his Chamber but it must be solemnly and legally done in an open Court of Justice by the Judges who in all other cases are to judge between the King and his people where the interest or property of the Subject or any charge or burden upon them doth come in question as may be proved by the booke of 2 R. 3. fo 11. Insomuch that I am of opinion that if a Statute were made that the King might raise the Customes at his pleasure yet might it not be done as now it is by the Kings absolute power but by some other legall course of which the Common-Law doth take notice as in the case of the Fine and Ransome much lesse then will the Common-Law permit that it should depend upon the Kings absolute pleasure there being no such Statute in the case You have heard out of what grounds I first deduced this my position That the Law requireth certainty in matter of profit between the King and his people You have heard likewise the particular reasons of that position you have also heard what proofe I have made by particular cases of like nature to this in question and how I have applyed them to the point And so leaving the Judgement of the whole to your wisedomes who can best discerne whether the Argument be of weight I proceed to my second Reason which is drawne from the policy and frame of this Common-wealth and the providence of the Common-Law The which as it requires at the Subjects hands loyalty and obedience to their Soveraigne so doth it likewise
require at the hands of the Soveraigne protection and defence of the Subject against all wrongs and injuries whatsoever offered either by one Subject to another or by the Common Enemy to them all or any of them This Protection the Law considereth cannot be without a great charge to the King And because as Christ saith No man goeth to warre upon his owne charge the Common-Law therefore hath not onely given the King great Prerogatives and favours touching his own patrimony more I beleeve than any other Prince in the world hath but also hath for the sustentation of his great and necessary expences in the protection of his Subjects given him out of the interest and property of the Subject an ample and very honorable revenue in very many particular cases some of which I will call to your remembrance He receiveth out of the Subjects purse for wardships and the dependances thereupon as we have of late accounted about forty five thousand pounds by the yeare This is a Revenue which no other King of the world hath And as it appeares by the Statute of 14. E. 3. c. 1. It ought to be imployed in maintenance of the warres and so doubtlesse was the first institution of the Common-Law For the Lord hath the profit of the Wards lands to no other end than to maintain a man in the warre during the infancy of him who otherwise should serve in person He hath likewise all forfeitures upon Treason and Outlawry and upon penall Lawes Fines and Amerciaments Profits of Courts Treasure-Trove Prisage Butlerage Wreck and so many more as the very enumeration of the particulars would take up long time To what other end hath the common-Law thus provided for the maintenance of the Kings charge by all these wayes and meanes of raising profit out of the Interest and property of the Subjects estate in lands and goods but onely to this end That after these duties paid the poore Subject might hold and enjoy the rest of his estate to his owne use free and cleare from all other burdens whatsoever To what end hath the Law given a part to the King and left the rest to the Subject if that which is left be also at the Kings will to make his profit thereof as he pleaseth To give a small portion to him that may at his pleasure take more or all is a vain and an idle act which shal never be imputed to a wise Law But it may be objected that as the revenues are ordinary Answere to an objection that the King may lay Impositions in times of extraordinary occasions so are they by the Law provided onely for the susteyning of the kings ordinary charge and that if the Law have not taken further consideration and limmitted some certain course how upon sudden and extraordinary occasions the kings charge may bee susteined that there is yet no reason shewed to the contrary why the king may not upon such occasion take some extraordinary course for the raysing of money as by the laying of Impositions upon Merchandizes or by a tax within the Realme rather then the Common wealth for want thereof should perish or be indangered Sir Robert Hitcham And hereupon by the knight that last spake it was held that upon occasion of a sudden and unexpected war the King may not only lay impositions but levy a tax within the Realme without assent of Parliament which position in my opinion is very dangerous for to admit this were by consequence to bring us into bondage You say that upon occasion of suddaine warre the king may levy a Tax who shall be Judge between the king and his people of the occasion can it be tryed by any Legall course in our Law it cannot if then the king himselfe must be the sole Judge in this case will it not follow that the king may levie a taxe at his owne pleasure seeing his pleasure cannot be bounded by Law You see into what a mischiefe the admittance of one error hath drawne you But for a full answer to the objection I say that the providence of the Common-Law is such and so excellent as that for the defraying of the kings charge upon any occasions of a suddain warre it hath over and above all the ordinary Revenues which it giveth the king which in the time of warre cannot indeed but fall short made an excellent provision for Sir The warre must needs be either offensive or defensive Offensive must either be upon some Nation beyond the Seas or against the Scots or Welsh or other borderers within the Iland If it be an offensive warre upon some Nation beyond the Seas it cannot be a sudden Accident for it is the kings own act and he may and 't is fitting he should take deliberation and if it be a just and necessary warre he may crave and easily obtaine assistance of his Subjects by grant of Ayd in Parliament If an offensive warre upon some of his neighbors within the Continent of this Iland as the Scots or the Welsh which also cannot be sudden or unexpected to the king being his own act you know how politikely the kings of this Realme have provided by reserving Tenures by which many of their Subjects are bound to serve them in those warres in person at their owne charge Only a Defensive warre by invasion of forreign enemies may be sodain in which case the Law hath not left the king to warre upon his owne expence or to rely upon his ordinary Revenue but hath notably provided That every Subject within the Land high and low whether he hold of the king or not in case of forreign Invasion may be compelled at his own charge to serve the king in person as it appeares by the opinion of Justice Thirming in 7 H. 4. The reason of which in my opinion was to no other end than that the king might have no pretence whatsoever for the raising of money upon his Subjects at his owne pleasure without their common assent in Parliament I doe then conclude this Argument that seeing the common-Common-Law for maintenance of the Kings ordinary charge hath given him such an ample Revenue out of the interest and property of the Subject and provided also for sodaine occasions that in so doing it hath secluded and secured the rest of the Subjects estate from the Kings power and pleasure and consequently that the King hath not power upon any occasion at his pleasure to charge the estate of his Subjects by Impositions Tallages or Taxes for I hold them all in one degree or any other burden whatsoever without the Subjects free and voluntary assent and that in Parliament If it were otherwise you see how it were to the utter dissolution and destruction of that politike frame constitution of this Common-wealth which I have opened unto you and of that excellent wise providence of the Common-Law for the preserving of property and the avoydance of oppression These two Arguments used by me that
it to your judgement whether I maintaine my assertion or be not rather better then my word for the number The first Imposition by them alledged Urged by Flem. Clark Doderig is that of 16. Ed. 1. which as it appears by the Record was 4. shillings upon a Tun of Wine This indeed for ought I know to the contrary was a meere Imposition such as are now in question and yet if I did deny it and say that it was layd by assent of Parliament I know not how the contrary could be proved for though indeed the words of the Record are Cum Rex precipisset ut de singulis doliis vini caperentur 4. solidi it follows not that it was laid therefore only by the kings commandment for we see that even some Acts of Parliament in those auncient times though they were made by the full assent of all the three Estates yet they have these words in their preambles Rex precepit Rex vult But as for Recitalls of Acts of Parliament by the King in his Commissions and otherwise it was in those times usuall to say Cum nuper ordinaverimus and therefore notwithstanding the Recitall be Cum nuper Rex precipisset it is no cleere proof that therefore it was done onely by the Kings Commandement Neverthelesse I will I say admit this to be a meere Imposition and to be one of the number and indeed as this is the first they produce so is it their best only this amongst all the rest is not limited to indure for a time certain but give me leave I beseech you to open unto you with what circumstances this Imposition was accompanied and what followed of it and then I will leave you to judge who best are able how far the present Impositions may be justifyed by this The first circumstance to be observed in this Imposition is that it was laid immediately after the warre against Wales was ended and at the time when for the selling of the Estate of Gascoigne the king himself was in person enforced to undertake a voyage thither as may appeare by our Histories of those times which also may bee collected by the very words of the record which are these Cum Rex ante ultimum Recessum suum ab Anglia precepisset c. That as these times were troublesome they were also very chargeable to the king and did put him to try all meanes for the levying of money I shall not need to urge it it cannot be otherwise One other circumstance is this that this imposition laid in this time of great necessity was not as now upon all Merchandizes nor so much as in generall upon one kinde of Merchandize comming from all the parts of the world but onely upon such wines as were brought hither from two Towns in Gascoigne Bergerac and St. Emilians 16. E. 1.22 E. 1. in Scacario as may appear by the Records and it is probable that these Towns were then in revolt that the sooner to reduce them to obedience the King laid this burden upon their commodities thereby to hinder the vent of them Another circumstance is this that though that this Imposition were indeed laid without limitation of any time as touching the continuance thereof yet within six years following viz. 5. Decemb. a. 22. upon complaint of the Merchants the king released two shillings of the foure shillings as may appear by the Records of 22 E. 1. with which the Merchants not holding themselves contented the very same yeare within eight or nine months following viz. 23. Juliian 22. the whole Imposition was released as may appeare by a recitall in the accompt of one William Randall receiver of the Impost money entred an 26 E. 1. And within three years after the release viz an 25. there followed an act of Parliament against all Impositions in generall as when I come to shew you what Statutes there are in the point I shall I hope cleerly prove unto you In the meane time I will proceed to examine the rest The next president urged is an imposition of 40. shillings upon a sack of wooll laid by E. 1. an 21. For the proofe of which a record of the Exchequer of that year hath been vouched I must confesse I have not seen that Record but by another Record of the same Court an 26. E. 1. it is evident that the said Imposition was not raised by the kings absolute power but by grant and that also the same was in the time of warre and to endure but two or three yeare if the warre should so long continue as will best appear by the words of the Record Cum custuma 40s nobis in Subsidium guaerrae nostrae contra Regem Franciae de quolibet sacco lanae exeunte regnum nostrum percipiendum per biennium vel triennium si tantū durasset guerra illa nuper concess fuit c. By this you perceive by what means upon what occasion and with what limittation this imposition was laid if you will further know what followed of it May it please you to read the Printed Statute of an 21. E. 1. c. 7. where it is said that the more part of the Commonalty found themselves sore agreeved therewithall And by the same Statute not only that imposition of 40. shillings upon a sack of wooll which was the occasion of the great grief complaint was taken away but upon occasion thereof there was at the same time provision also made against all other impositions whatsoever as I say I hope I shall anon cleerly prove unto you Insomuch as this imposition of 40. shillings upon a sack of wooll ought to be so farre from being urged as a president for the present imposition and consequently of the grievance of the Common wealth which followes thereupon as that rather on the contrary part it may be thought to be the happiest accident in the consequence thereof that ever befell the Common wealth in this kinde For it was the occasion of the making of the first law that ever was made against impositions and other charges and burdens of that nature to be imposed by the kings absolute power without assent of Parliament And so I leave their second President Vouched by Fleming Clark Dodderidge Bacon Attorny Hobart and come to the third which in time was 31. of the same King E. 1. It is no other then that increase of Custome which by the Merchant strangers was granted to king Ed. 1. by that Charter now familiarly known unto us by the name of Charta Mercatoria which by all that have maintained his Majesties right to impose hath been stood upon and urged as an imposition by the kings absolute power but more especially hath Master Solicitor been strongly inforced with all the advantage possible for the mainteinance of his opinion Neverthelesse I doubt not but I shall give it a very full answer such as yet this objection hath not received though divers that have spoken before and
Plowdens argument against it in M. Tates hand but their resolution is no where to be found at least by Us It is very probable that if they had given judgement for the Queen it would not have beene kept close but howsoever the profit was too great to be taken from the Crowne and therfore it continues till this day Howsoever the reason in equity in the laying this Imposition upon Cloth may seeme to bee sound unto some men and so to allow of this Imposition as differing from ours yet for my part I hold it not so when I consider what course was taken by Ed. 3. upon the same occasion an 11. E. 3. c. 1. 2. It was enacted that no wooll should be caried out of England but by the Kings licence and that no man should weare Cloth other than such as should be made in England this Law tooke such effect as within ten yeeres the greatest part of the Wooll in England was made into Cloth and it became to be transported in such abundance by reason that there was no Custome at all due upon Cloth and the Custome and Subsidie upon Wools was very high that in the 21 yeere the King finding his Custome of Wools so much decreased doth seeke to remedy it not by imposing a new charge upon Cloth by his absolute power as Qu. Mary did but did it by assent of his Subjects in full Parliament as I collect partly by my L. Dyer in the place last mentioned but more fully by a recitall in a Record amongst us of 24. E 3. ro 13. orig de Scaccar to this effect That whereas the Customes and Subsidies due and granted upon Wools are much decreased because a great part of the Wooll of England is made into Cloth for which no Custome is due and whereas in consideration thereof at our Councel held the 21 yeere of our Reigne by the common assent of the Prelates Earles and Barons and others it was ordeined and accorded that 14d. by Denizens and 20d. by Strangers should be paid for every cloth of Assise c. made of English wooll and transported upon paine of forfeiture of the Clothes And so followeth an authority given to collect the same The next Imposition laid by Q. Mary was forty shillings upon a Tun of French wines imposed in the 5 yeere of her Reigne at which time there was first a Proclamation made that no wines at all should be brought from France being then in enmity with England upon paine of forfeiture of the Wines which by the way is a strange clause in a proclamation Immediately after this restraint there was an order made by the Qu. and her privy Counsell that such as would might bring in French wines notwithstanding the Proclamation paying forty shillings upon every Tun by the name of Impost as doth appeare by Record in the Rolls of Easter Terme 1 Eliz. in the office of the K. Remembrancer of the Exchequer in the case of one Germane Ciol German Ciols case against whom an Information was exhibited for not paying the said Imposition Whereunto taking it by way of Traverse that there is any Law of the Land by which he may be charged with Impost he pleads a licence made unto him an 1. 2. Ph. Mar. to import a certaine number of Tunnes of Wine within a certain time any restraint then made or afterwards to be made to the contrary notwithstanding Provided alwayes that the Custome Subsidie and other duties due and accustomed to be paid to the King and Queen were duly satisfied He shewes that for all Wines brought in by him during the life of Queen Mary he paid the Subsidie of Tonnage viz. three shillings for every Tun which was all that was due and accustomed to be paid Upon this plea a demurrer was joyned and judgement given thereupon against the Queen This Judgement hath been enforced in the maintenance of Impositions Whether or no it make not rather against them I leave to your censures Neere about the same time there were Impositions laid also by Queen Mary upon all French commodities whatsoever to be imported as may appeare by the Port-bookes of those times in the Exchequer which Impositions were received to the use of Queene Eliz. in the beginning of the 1 yeere of her Reign but ere the yeer ended they were all taken away as may appeare by the same Port-bookes which in my opinion is a great argument that they were not then held lawfull For Princes doe not so easily give over their hold in matters of profit if they be any way able to maintain it What hath hitherto upheld the Imposition upon Wines I know not except it be the great profit that comes by it to the Crown and because there was never any late Judgement given directly against Impositions You have hitherto heard what reason and direct proofe I have used Admitting the king had power by the cōmon-Lawe to lay Impositions yet hee is barred by Statutes to maintaine that by the Common Law the King cannot at his will increase his Custome by way of Imposition You have secondly heard what the practise of former ages hath been in this kinde till this day from which I have also drawn reasons of Inference that prove the Common-Law so to be But now admitting that by the Common-Law it had been cleere and without question that the King might at his will have laid Impositions and that also the same could have been cleerly proved by the practise of the ancient Kings yet I affirme that so stands the Law of England at this day by reason of Statutes directly in the point as the Kings power if ever he had any to impose is not onely limited but utterly taken away as I hope I shall be able evidently to prove notwithstanding any objection that hath been made against the interpretation of the Statutes to this sense The first Statute is in Magna Charta cap. 30. Magna Charta cap. 30. Enforced and the objections made against it answered The words are All Merchants if they were not openly prohibited before shall have their safe and sure conducts to enter and depart to goe and tarrie in the Realme as well by Land as by water to buy and sell without any evill tolls by the old and rightfull Customes except in the time of Warre And if they be of the Land making warre against us and be found in our Realme at the beginning of the warre they shall be attached without harme of body or goods untill it be knowne to us or our Justices how our Merchants be intreated there in the Land making war against us c. The Statute of which this is a branch is the most ancient Statute-Law we have wonne and sealed with the blood of our Ancestors so reverēced in former times that it hath been by Parliament provided that Transcripts thereof should be sent to all the Cathedrall Churches of England there to remaine that it should be twice every
Kings and that he may open them and shut them upon what conditions he pleaseth answered and in regard thereof he may open and shut them upon what conditions he pleaseth I answere I. That the Position that all the Ports are the Kings is not generally true For Subjects may also be owners of Ports as may appeare by the Patent Roll of 3. E. 1. M. 1. Parl. where you shall finde that King Ed. 1. granted to the Lords of Port Townes the forfeitures granted to him by Parliament for not duly paying the new Custome of the demy-Marke within every severall Port of theirs where the Merchandizes should happen to be imported or exported But admitting the truth of the position yet is the consequence as weake and dangerous as of any of the rest of their arguments For are not all the gates of Cities and Townes and all the Streets and Highwayes in England the Kings and as much subject to be open or shut at his pleasure as the Ports are Nay whensoever we speake of the Highway in any law businesse we call it via Regia the Kings Highway and the King in his Commissions speaking of London or any other Citie calls it Civitas nostra London or Civitas nostra Exon Doth it follow therefore that the King may lay Impositions upon every man or upon all Commodities that shall passe through any of these places Nay the gates of the Kings owne house for the purpose his Pallace of Westminster are his in a farre neerer degree then any of these may he therefore by his Proclamation impose upon every man that shall passe in or out at Westminster Hall doore a summe of money Doubtlesse he may not because the King is a person publike and his Subjects ought to have accesse to him as to the fountaine of Justice and to the Courts of Justice sitting by his authoritie I make little doubt but his Majestie may upon just occasion cause any of these passages to be shut as he may also the passage at the Havens But when the Passage may without danger to the State be open and that the Subjects may passe his Majestie may not then exact money for their passage For the law hath given the King power over these things for the good of the Common-wealth and not thereby to charge and burden the Subject If the King may not exact money for passage in and out of his Court gates because of the publikenesse of his Person Nor for passage through the gates of Cities much lesse may he for passage out at the Ports which are the great gates of the Kingdom and which the subject ought as freely to enjoy as the ayre or the water Another of their arguments is this The fourth argument that the King is bound at his owne charge to protect Merchants therefore it is necessary it should be in his power to lay moderate Impositions upon Merchandizes for raising of money to defray his charge Answered The king is bound to protect Merchants from spoile by the enemie he ought to fortifie the Havens that their ships may there abide in safety he ought if occasion be to send Ambassadors to forrein Princes to negotiate for them and many the like charges is the King by the Law to undergoe for the protection of his Merchants It is reason therefore that his expence be defraied out of the profit made by Merchants and consequently that he may impose upon Merchandize a moderate charge thereby to repay himself The consequence of this Argument is thus farre true The law expects that the King should protect Merchants therefore it alloweth him out of Merchandize a revenue for the maintenance of his charge which is the old Custome due as at first I said by the Common law But it is no good consequence The Fifth Argument that all forraine Princes have power to impose and if our King had not the like it might be very inconvenient to this State Answered that therefore he may take what he list no more then he may at his pleasure increase that old revenue which the law giveth him for protecting of Subjects in their suits or for protecting Wards c. Another Argument of theirs is this All other Princes of the world may impose upon merchandize at their pleasure and so may make our Merchandizes lesse vendible with them by laying an Imposition upon them to be paid by us when they are brought into their Territories whereby their owne Commodities of the same nature may be sold more to the gaine of their Merchants and our Merchant impoverished or driven from his Trade They may also lay Impositions upon our Merchants fetching Commodities from thence and leave their owne Merchants free from any Imposition in the same case by which their merchants shall reape all the profit by that commoditie in affording it better cheape to us here then we can fetch it and consequently our merchants shall be undone Many the like cases have been put to prove That if the King of England may not impose as other Princes may they shall be able at their pleasure to destroy our trading This I conceive was the same as now it is during all that time from Ed. 3. till Queen Mary and doubtlesse it could not but sometimes during that long space so fall out that forreine Princes did put their power in practise to our prejudice and yet we heare not of any Imposition laid by any of our Kings by their absolute power which may give any man assurance that they tooke some other course to meet with the inconvenience and in deed the meanes are divers which these our Kings used to prevent it First they were carefull in all their Leagues and Treaties with forrain Princes specially to provide for it as may appeare by the Records of the ancient Leagues Neither is there any League of late time that hath not had an Article for provision in this point which Leagues for the most part are upon oath on both parts And yet for further securitie our Kings have always had Ambassadors resident in the Courts of such forrain Princes to put them in minde of their Leagues if upon any occasion our Merchants have in that case happened to be never so little wronged by them if upon complaint of the Ambassador our merchants have not found redresse our Kings have held the League as broken and denounced Warre or seised all the goods of the same Princes Subjects within England and I dare say there have been more warres undertaken by our Princes against forrain nations onely for this cause then for any one other cause whatsoever Besides our Kings have in this case sometimes made use of that their Prerogative of restraint either by prohibiting our Merchants from carrying our Commodities into those parts where they are charged with Impositions that so by the want of our Commodities forraine Princes might be enforced to abate their Impositions laid upon them or by restraining the Merchants of forrain Princes to import or export commodities from hence By which meanes forraine Princes have been compelled to deale favourably with our Merchants for the good of their owne Subjects All these are lawfull and ordinary means to prevent or redresse the inconvenience which may grow by the Impositions of other Princes If all these ordinary means should happen to faile which can hardly so fall out and that the laying of Impositions be indeed the only means that is left to redresse the inconvenience why should not that be done by Act of Parliament as well in these times as it was in 7. H. 7. cap. 7. to take downe the Imposition of Foure Ducates upon a But of Malmsey imposed by the Venetians And as it was done by Queen Eliz. the 19. yeere of her Reigne to prevent the laying of Impositions by forraine Princes upon Salt-fish as may appeare by the printed Statutes of 19. Eliz. cap. 10. But as I have said the providence of the Prince and ordinary power of restraint may very well meet with the inconvenience These are the chiefe reasons made in maintenance of impositions the weaknesse of them and their dangerous consequence you cannot but perceive For by the same reasons Taxes within the Land may be as well proved to be lawfull On the contrary part you have heard the reasons against impositions fortified by many Records and Statutes in the point So as I conclude that Impositions neither in the time of warre or other the greatest necessitie or occasion that may be much lesse in the time of peace neither upon forraine nor inland Commodities of whatsoever nature be they never so superfluous or unnecessary neither upon Merchants Strangers nor Denizens may be laid by the Kings absolute power without assent of Parliament be it for never so short a time much lesse to endure for ever as ours Though this be now my opinion yet am not I so obstinate therein but if yet I heare better reason I will once againe change my minde in the meane while you see I had reason to alter my first opinion as being grounded upon very weak Reasons as now they appeare unto me And so I suppose they doe also unto you FINIS 7o. Julii 1641. AT a Committee of the Honorable House of Commons for Examination of books and of the Licensing and Suppressing of them c. It is Ordered That this Argument upon Impositions be forthwith published in print EDWARD DERING
of Certainty and this of the provision made by the Common-Law are in my poor opinion Arguments of direct proofe that the King cannot Impose I will now according to my division urge an Argument or two of Inference and presumption the rather because Arguments of this nature have been much enforced by those who have maintained the contrary opinion Sir Francis Bacon especially by Mr. Solicitor I call them Arguments of inference and yet in my opinion those which I shall urge are also of good proofe such as they are you shall judge of them They are drawne either from the actions or forbearances of the Kings of this Realme or from the actions and forbearances of the people First in the actions and forbearances of the Kings Arguments drawne from the actions of the Kings that they have no power to Impose I observe that all the Kings of this Realm since Hen. 3. have sought and obteined an increase of Custome more or lesse by the name of Subsidie of the gift of their Subjects in Parliament Nay some of them and those not the weakest in Spirit or power but the most couragious and potent in that whole ranke even that mighty and victorious Prince King Ed. 3. being to undertake a just and honorable warre than which there could not happen a better or juster occasion to have made use of his Prerogative of Imposing did neverthelesse at that time stoope so low in this point that he did in full assembly of the three States pray his Subjects to grant him a Reliefe in this kinde for the maintenance of his warre and that to endure but for a short time and further was well content to suffer his prayer in that behalfe to be entred of Record to the memory of all posterity And the succeeding Kings have also suffered the same to be printed as may appeare by the printed Statutes at large An. 14. Ed. 3. cap. 21. Is it likely that if any or all these Kings had thought they had had in them any lawfull power by just Prerogative to have laid Impositions at their pleasure that they would not rather have made use of that than have taken this course by act of Parliament so full of delay so prejudiciall to their Right so subject to the pleasure of their people who never undergoe Burdens but with murmuring and much unwillingnes Can there be any thing more hatefull to the high Spirit of a King than to subject himselfe to the pleasure of his people especially for matter of Reliefe and that by way of Prayer having lawfull power in his hands to relieve himselfe without being beholding to them If perhaps the Kings themselves were ignorant of this great Prerogative which cannot be imagined had they not alwaies about them wise Counsellors to assist them and such as for the procuring of favor to themselves would not have failed to have put them in minde of it Nay if they had known any such lawfull Prerogative had they not been bound in conscience so to have done What an oversight was it of King Ed. 3. and all his Counsell so much to prejudice his right in so beneficiall a Prerogative as to suffer him upon Record and that in Parliament to pray for that which he might have taken out of his absolute power Can there almost be a more direct disclaiming in the Right to compare great things with lesse if the Lord by matter of Record claime any thing of his villaine it is a disclaimer of the villenage The Kings of England have other noble and high Prerogatives I will only name two of them The making of warre and peace and the raising and abasing of Coyne at their pleasure Did they ever crave the assent of their Subjects in Parliament to make a warre Their advice indeed they have sometimes sought and their ayd for treasure to maintaine it The Prerogative of raising and abasing the value of money hath been oftentimes put in practise by them and sometimes strayned to such a height that the King might well suppose the Subjects could not but be much discontent therewith And yet never any King of this Realme did it by assent of Parliament which perhaps some one milde King among so many would have done and it may be would also have prayed his Subjects to yield thereto only to avoid the grudging of the people if the seeking of assent in Parliament had not been thought to have been prejudiciall to the absolute power of their Successors and yet as for some of these Kings it may be supposed they made little conscience to prejudice a Successor in one point that made no scruple totally to depose a Predecessor from his Throne and all his Regalities and to usurp it to themselves And so I proceed to my next Argument of Inference drawn from the actions of our Kings Some of the Kings of England as namely Ed. 2. Edward the 2. in the yeere of his Reigne and Ed. 3. in the 1. and 24. yeere of his Reigne as may appeare by the Records here amongst us were contented to accept an increase of their Custome by way of Loane from the Merchants and solemnly binde themselves to repay it againe Would any wise man in the world that thought he had but a colour of Right so much prejudice his himself as to borrow that which he might take without leave and binde himselfe to repay it If a poore man perhaps through feare might be enforced so farre to yeeld to a mighty adversary yet that a powerfull man should stoope so low to one much weaker than he nay that a King in a point of such consequence should so farre discend from his Greatnesse as to borrow of his poore Subject that which without being beholding to him he might obtein as his Right and binde himselfe to repay it againe I say it cannot with any reason be imagined but withall it must be concluded that a king that shall so doe doth not thinke that he hath so much as colour of Right to impose I will not much presse or enforce the actions of Ed. 2. who I confesse was but a weake Prince Edward the 3. But as for his Sonne and successor Ed. 3. there was not as I have said a stouter a wiser a more noble and couragious Prince than he and none more carefull to preserve the Rights of his Prerogative as may evidently appeare by all his answers in Parliament on any complaint of the Subject Besides never had king of this Realme more occasion than he to straine this Prerogative of imposing to the utmost For besides his excessive expence in the warres of France and Scotland he had also a continuall charge of many expensive children his wife Queene Philip had also for her maintenance a large allowance out of his Revenue but the dowry of Queen Isabell his mother who lived till about the 27. yeere of his Reigne was so great as it is reported by some writers that little more than the
third part of the certaine Revenue of the kingdome was left to him In so much as through these occasions of extraordinary expence and the diminution of his Revenue he was driven to such necessity as his Queen in the â—… yeere of his Reigne was enforced to pawne her Crowne and Jewels to procure money for him as may appeare by the Record of that yeere in the Office of the Clerke of the Pels Nay the king himselfe in these extremities was oftentimes driven to lay his Jewels to pawne for money And in An. 17. did also pledge his Crown for 4000. pound to certaine Merchants of Florence as by the Records of that yeere in the Office of the Lord Treasurers Remembrancer in the Exchequer is manifest By this you may see that this powerfull king wanted not urgent and just occasion if any occasion may be just to have put in practise his absolute power of Imposing and yet as you see it appeares of Record that in the midst of his great wants he tooke an increase of Custome by way of Loane and bound himselfe to repay it It may be here objected that he did lay Impositions What Impositions they were and how to be compared with the Impositions now in question I purpose to tell you when I come to ansâ—…r objections which I have referred to the end of my speech In the meane time I will goe on with my course and urge one Argument more drawne from the actions of our kings touching the increase of Custome A man would thinke that the taking of the increase of Custome by all the kings both one and other with the assent of their Subjects in Parliament and sometimes by way of Prayer and Intreaty for a short time nay the taking of it by way of Loane and binding themselves to repay it and that to have been done by the most powerfull kings in their greatest necessities were Argument enough that they did not beleeve they might justly claime it as their right by their absolute power And yet is not this all For some of them by name Ed. 1. Edward the 1. did not onely take it by assent in Parliament or by way of Loane but as one that buyes for his mony in the Market did give for it a reall and valuable consideration and that to Merchant-strangers of whom there was more colour to demand it as a duty than of his naturall Subjects In proofe of which I produce Charta Mercatoria made Anno 31. Ed. 1. whereby it is recited that in lieu of certaine liberties and immunities granted by the king to the Merchant-strangers as also for the release of Prisage they granted to the king an increase of Custom What were all the special liberties that were granted them I know not nor whether they continue but sure I am that by vertue of that Grant they are at this day free of Prisage paying onely 2s. upon a Tun of Wine by the name of Butlerage which they granted by the same Charter whereas English-men pay Prisage in specie viz. One Tun before the Mast and one Tun behinde And it is very worthy the observation how the same King E. 1. in the same yeer of his reign did command his Customers throughout England That whereas certain English Merchants were as he was informed of their own accords willing to pay him the like increase of Custome which the Merchant strangers had granted unto him so as they might enjoy the like liberties and benefits that neverthelesse they should not compell such English Merchants against their wils to pay it the words are worth the hearing Cum quidam Mercatores de regno potestate nostri ut ipsi dictis libertat having before recited Charta Mercatoria uti gandere de prisis nastris quieti esse possint praestationes Custumas hujusmodi de bonis mercandizis suis nobis dare solvere velint ut accepimus assignavimus vos ad praestationes Custumas praedictas de his qui praestationes Custumasillas gratanter absque cohercione solvere volnerint colligendum ad opus nostrum recipiendum ita tamen quod aliquem Mercatorem de dicto Regno nostro ad hujusmodi praestationes Custumas nobis invite solvendum nullatenus distringatis What stronger inference can there almost possibly be against the Kings absolute power of Imposing than this that he was contented and so specified to all his Officers of the Ports That if the Merchants did of their own accords pay more than their ancient Customes they should have consideration for it But if they themselves were not willing to pay more then they should not be compelled thereunto One other observation I draw from the actions of the kings touching the increase of their custome which is this that those kings which did lay Impositions which as I will shew you by and by was very rarely though it were never but in time of great necessity and but to indure for a short time yet they alwayes did it not with the advice alone of the Merchants as at this day but the Merchants did alwaies solemnly grant an increase of Custome and the kings were alwayes wary for the better justification of their actions to the people in their Commissions for collecting of Custome to recite not onely the great necessity which moved them to take an increase of Custome but also the grant of the Merchants as may appeare by the Records of which we have the copies amongst us I dare confidently say there is not above one or two at the most that are otherwise if the Impositions be of that nature which these are of which we complaine And yet these Impositions also by the grant of Merchants though raised upon never so great a necessitie of State and to indure but for a short time were always complained of by the Commons when they met in Parliament as may appeare amongst other Records by the Parliament Roll of 27. Ed. 3. No. 27. where in a Petition of the Commons exhibited to the King in Parliament are these words Les Commons monstrent coment que les Marchants dyent grant per eux sans assent de Parliament un subsidie de XLs. de sacc de Layn outre le droiturel male tout de demy marke Et prion que soit amend a rest Parliament Car est encounter reason que le Comialtie de lour biens soient per Marchants charges Which I English thus The Commons shew how the Merchants have granted by themselves wihout assent of Parliament â— Subsidie of 40s. upon a sack of Wooll over and above the rightfull custome of halfe a Marke and pray that it may be redressed at this Parliament for it is against reason that the Comminalty should be charged in their goods by Merchants with this agreeth the printed Statute of 36. Ed. 3. cap. 11. in the Statutes at large where you shall finde an expresse Provision against the raysing of Impositions upon Woolls by grant
of Merchants In which Petition I doe observe that the Parliament in those dayes did distinguish even as we now doe between Impositions laid by act of Parliament and Impositions laid only by the grant of Merchants acknowledging that Impositions laid by Parliament are onely lawfull and condemning all other as unlawfull for otherwise why should they tearme the demy-Marke which was laid by Act of Parliament 3. Ed. 1. Droiturel maletout a lawfull Imposition but with relation to the unlawfulnesse of these Impositions granted by Merchants which they then did complaine of Besides I observe that they say That it is against reason that Merchants should by their grant without assent in Parliament charge the whole Commonaltie by which it plainly appears that they complained not so much of the excesse or greatnesse of the Impositions as of the unlawfull manner of the raising of it by grant of merchants without assent in Parliament Hitherto I have according to my division drawne Arguments from that which our Kings have done and put in practise for the increase of their Custome I will now make some observations of their forbearance Arguments drawn from the forbearance of our Kings to lay Impositions not withstanding their great occasions to put this pretended power in practise considering the severall occasions of the times which I will prosecute in order First therefore in generall I observe that from the Conquest untill the Reign of Queen Mary being no lesse then 480. yeeres space whatsoever the occasions were whatsoever the disposition of the Kings were yet in the practise of this pretended Prerogative of Imposing the Kings have been so sparing as notwithstanding this curious search that hath been made wherein I suppose nothing that might make for the cleering of the Question hath escaped us it cannot be found or proved by matter of Record that six Impositions such as we now complaine of were laid by all those Kings who were in number 22. And those sixe if they were so many though they were unlawfull yet were they in some sort to be born withall First by reason they were very moderate Secondly that they were laid in the times of great and apparant necessitie and that they were to endure but for a yeer or two For none of them except onely that upon Wine laid 16. E. 1. lasted longer They were I say notwithstanding their unlawfulnesse yet in these other respects so farre to be borne withall as if the impositions which are now laid had been so qualified we should I suppose never have complained of them and yet not one of these few impositions laid in former times but was complained of and upon complaint taken away as may appear by the Records here amongst us How much more reason is there then that we should expect the like Justice now considering that not one Merchandise alone as then but very neere all the sorts and severall kindes of Merchandises that are are charged that not a moderate and easy charge is laid upon them but such as though we should confesse his Majesties absolut power to lay what he list yet we had just cause to complain of the excessivenesse of the Burden For first the rates of Merchandises for the Subsidies of Poundage and Tonnage are extreamly raysed a thing also though lawfull yet hath been rarely put in practise then comes the Impost upon the back of that and is as much as the Subsidie it selfe is in some few Merchandises 't is true the Impost is perhaps lesse then the Subsidy but 't is as true that in divers others the Impost is farre more Besides these Impositions were not laid in the time of warre but even then when we were at peace with all the world except perhaps there were some sparks of Rebellion in Ireland then not fully quenched Lastly these Impositions are not as those in former time were limited to endure for a yeere or two but are to come to his Majestie his Heires and Successors for ever as may appeare by his Majesties Letters Patents in print prefixed before the new book of Rates So as if those few Impositions laid in former times had been lawfull yet can they not by any means be a warrant or president for our present Impositions differing so far from them in all these points of consequence But if even those few so quallified as they were were complained of and taken away what shall we then say of ours so farre exceeding them in all the degrees of Irregularitie Besides if so few Presidents as five or six in so many yeers space and those in times of so great necessitie without any expresse Judgment in Law or good authoritie in approbation of them but accompanied with as many complaints against them be argument enough to prove the lawfulnesse of the act I dare undertake that as well taxes within the land as Impositions upon Merchandizes may be proved to be lawfull But to alledge the acts of kings in raysing a profit to themselves upon their Subjects to prove thereby their right is of all other arguments that are the weakest and so I leave it and call to minde that when I told you it could not be proved by the Records amongst us that from the Conquest to Queen Maries time there had been any more then sixe Impositions laid I did in that number limit my selfe to such Impositions as those are which we now complain of for I must confesse that in that space many more Impositions were laid but they were of a farre differing nature from ours differing I say not only in those circumstances by which I did even now compare the Impositions of these times to those five or six of former ages but in very essence and propertie insomuch as they may not properly be called Impositions and yet the frequent practise of them hath been objected and relyed upon as so many Presidents to prove the lawfulnesse of the Impositions now complayned of It behoveth me therefore that in maintenance of my assertion that so few Impositions have been laid as I have affirmed that I open unto you the difference betweene the one and the other which being done your selves will easily judge that the greater part make nothing towards the defence of these present Impositions For these Impositions which now are in question are no other then an increase of Custome at the Kings pleasure and commanded by him to be taken the passage being free and open to all men Those other which make such a great shew in number and are produced as so many Presidents in maintenance of these are no other then so many Dispensations or Licences for money to passe with Merchandizes prohibited by Act of Parliament to be exported as will evidently appeare by comparing the times and examining the Statutes I will therefore in this place as shortly as I can runne over those Presidents that have been or may be alledged by the contrary part out of those Records which are here amongst us and leave
These indeed and onely these are meer Impositions and may be aptly compared with these of our times Of this kind amongst all the Records of Edward the Thirds time I finde only two which I will truly open unto you The first is in the Twenty one of his Reigne where it appears that Lionell afterwards Duke of Clarence named upon the Record 21. Ed. 3 no 11 Ro. Parliam Lionell of Antwerp because I suppose he was there borne the Kings second sonne being then Guardian of England whilest the King his father was at the siege of Callice at a counsell by him held the same yeere which I take to be no other then the Privie Counsell assessed without assent of Parliament upon every sack of Wooll Two Shillings upon every Tun of Wine Two Shillings upon every Pound of Aver de poys of Merchandizes imported Poundage imposed Sixe pence This Imposition was I must confesse for ought I know to the contrary such as our present Impositions are I meane in that it was imposed onely and simply by the Kings absolute power and may in that respect be the Fourth of that number of Sixe which I told you were all that could be found in any degree like to ours ever to have been practised in this Commonwealth from the Conquest till Queene Maries time But though in the authoritie of imposing it be like yet in circumstances very materiall you shall finde an apparant difference between them First this Imposition is very moderate in the sum as you may perceive for it was but Two Shillings upon a sack whereas in 13. Ed. 3. forty Shillings upon a sack of wooll was usuall and sometimes fifty shillings Secondly it was to continue no longer then till Michaelmas following Thirdly it was laid in the time of a most chargeable warre and ordained to be imployed for the maintenance of Ships of warre at Sea for the safeguard of Merchants in their passage of which it is apparant there was at this instant very great necessitie for it was as I have said imposed then when King Ed. 3. lay at the siege of Callice Besides such as it was and so qualified as you perceive it was neverthelesse complained of in Parliament by a Petition from the Commons as may appeare be the Records of the same Parliament of 21. Ed. 3. To which Petition or complaint this answere was given That all the said Impositions were already taken away save only the Two Shillings upon a sack of Wooll which should last no longer then Easter and seeing the same was ordained for the safeguard of merchants in which there had been greater sums of money expended by the King then could be collected between that and Michaelmas therefore to continue the same till Easter he hoped it would not seem over-burdensome or grieveous unto them In the Parliament following viz. anno 22. the Commons pray that writs may bee directed to the Customers to forbeare at Easter next to take the two shillings upon a sack 22 E. 3. N 16. Ro. Par. according as it was granted at the last Parliament and that it be not any longer continued by the procurement of any Merchant The King answereth Let it cease at Easter as it was agreed the last Parliament Here you see it was absolutely taken away and therefore though it had wanted these qualifications and circumstances which I have observed it had yet it being a thing so publiquely condemned it ought to be of little force with you to justifie these present Impositions But that which I observe out of this last Record maketh me rather to incline that this Imposition was onely by way of dispensation then that it was an absolute Imposition such as Ours are For to what end I pray you should the Commons pray that it might not be any longer continued by the procurement of any Merchant except it were likely that Merchants for their benefit should pray the longer continuance thereof and what benefit can any imposition whatsoever bee to a Merchant except it bee by way of Dispensation to give him leave to trade where before such dispensation given he stood altogether restrained If then it be an Imposition by way of dispensation with a penall Statute of restraint then is it no president for our present impositions But whether or no it be a Dispensation or absolute Imposition I leave it to your judgements you have heard my observation And so I come to the next president in the times of Ed. 3. produced for maintenance of our Impositions 24 E. 3. N. 12. Orig. de Scac. which was in the 24 yeere of his Reigne the Record of which and that which followed thereupon I will without any inforcement at all open unto you and so leave it to your censures The King reciting that whereas the Spanyard and French had joyned in league to make Warre against him and that for the withstanding of his said adversaries as also for the safeguard of Merchants against Pirats he had ordained that certaine ships should be set forth and that for maintenance of the said Ships there should be paid by Merchants two shillings for every sack of Wooll two shillings for three hundred Woolfels foure shillings for a last of Lether a Scute of Gold or foure shil Poundage imposed for a tunne of Wine and six pence of the pound upon all other Merchandizes for one yeere following He commandeth his Customers to levy the same accordingly The very next yeere and Parliament following 25 Ed 3. No. 12 Rot Par. the Commons exhibite a Petition in Parliament against Impositions and other like charges without assent of Parliament To which answer is given that it is not the Kings intion they should be charged I have now gone through all the materiall Records here amongst us of the times of Ed. 3. in which though his reign were very long and by reason of his Warres and other excessive charge more occasion was given him to try the strength of this point of the Prerogative then ever any King before or since though oftentimes and by many politicke inventions as you have heard he attempted to establish this Prerogative of laying impositions without assent in Parliament yet can there not be produced in all his time any more then two Presidents of Impositions like to these of ours that is imposed by the Kings absolute authority and yet these two were also as you perceive qualified with such circumstances as if ours were such we should have held them tolerable though perhaps not lawfull yet they such as they were escaped not without being complained of and condemned also in Parliament as you have heard It may perhaps be that some one or two of these Impositions which were by assent or grant of Merchants in this time of Ed. 3. were in times when the passage was open and not restrained by act of Parliament and so to be compared to our impositions but whosoever shall by looking over the Statutes
and Records with never so much heed consider the times of opening and shutting of the Sea by Statutes shall finde it so intricate as hee shall bee very hardly able directly to say that at the time when any of these impositions were granted the passage was open If in my observation I had found any such I should have admitted it for an absolute imposition as I have done Charta Mercatoria which was by grant of Merchants For certainly as I have yeelded the grant of Merchants is in this case of no other effect then the declaration only of their assent and the Imposition resteth meerly upon the kings authority But I finde none such if any such could be produced you have heard how they have beene from time to time controlled in Parliament And so I passe from E. 3. to the times follow From the end of the Reign of E. 3. till the reign of Queen Mary who was the eleventh Prince of this Realme after Ed. 3. as Ed. 3. was the eleventh after the Conquest being the space of 170. yeers or thereabouts It hath been confessed by all those that have argued in maintenance of his Majesties Right to Impose that there hath not been found one Record that proves any one imposition to have been laid there are indeed in our printed bookes some three or foure Statutes during that time in which mention is made of Impositions but they are as I shall prove Impositions of another nature then those are which we complaine of and so make nothing at all to the proofe of his Majesties Right or if they were such as ours are yet are they no where found mentioned but with disgrace and to the end to be taken away which may be the reason that notwithstanding the great use that might have been made of three or foure Presidents of Impositions in these times for the patching up of a continuance of the practise which otherwise by this long discontinuance receives a great blemish those which argued for impositions did not take hold of these but chose rather to confesse that no Impositions at all were laid during all this time and labored to seek out the reasons of the discontinuance I will briefely shew you what Statutes they are during that time which mention impositions the first is 11 R. 2. cap. 9. 11 R. 2. cap. 9. Statutes in which there is mention made of Impositions after the end of Edw. the thirds raigne untill Queen Maries Ed. 3. No Imposition nor charge shall be put upon Wools Lether or Woolfels other than the Custome and Subsidie granted to the King this present Parliament and if any be the same shall be repealed and annulled as it was another time ordained by Statute saving alway to the King his ancient right If by this saving the pretended right of imposing should be excepted as was said in the Exchequer the saving should then be contrary to the body of the Act and therefore it must needs have some other interpretation that it may stand with the rest of the Act and not condemn the Law makers of so much want of discretion therefore doubtlesse this saving is no other then an exception of the ancient Right full Customes due upon those staple Commodities And for my part I am of opinion that the Statute was made not so much to take away any Imposition laid by this King R. 2. as out of a provident and prudent care in the Law makers proceeding from the fresh memory of the practise of Ed. 3. in this kinde For all those that were of this Parliament did live and were at mans age in Ed. 3. time and could not but well remember the grievousnes of his Impositions Besides I observe that they desire that no Imposition be laid by way of addition to the Subsidie upon Wools and Lether then granted It was never heard till of late that an Imposition upon any Merchandize was charged at the same time with a Subsidie and therefore without question this was no other then an aboundant provision by them wherein they were no more carefull then any wise man would be in the like case when they had of their own free wils given the King a liberall gift they were carefull not to be further charged by him The next Statute in these times where Impositions are found mentioned is 23 H. 6. cap. 18. 23 H. 6. cap. 18. By which it appeares that English Merchants being restrained from repayring to Gâ—scoigne and Guien to buy the Wines of that Country they were neverthelesse suffered to repaire thither paying certaine new Impositions which were demaÌ„ded of them Upon complaint hereof it was enacted that all English Merchants might freely passe into those parts and buy Wines there at their pleasure without any new Imposition or charge to be put upon them For that such Impositions were to the damage of Merchants and to the hinderance of all the Kings people if any were demanded by the King Officers the officers so demanding them should forfeit twenty pound besides treble damages to the party grieved That these Impositions were by way of dispensation with a Statute which restrained the repaire of English Merchants into those parts and not by the kings absolute power thereupon to ground an Imposition is evident by the Statutes in Print For from 27 Ed. 3. 27. E. 3. c. 6. 38. Ed. 3. c. 10 38 Ed. 3. cap. 42 E. 3. cap. 8. 43 E. 3. c. 12. till this 23 H. 6. there are five or sixe Statutes in Print to this purpose some more strict then other which continued in force till 23 H. 6. The reason of the restraint by Ed. 3. I suppose to have been because Gascoigne and Guien were then in his possession and he was desirous his Subjects the Merchants of those Countries should have the sole profit of their own Commodities and that they onely should import them into England and not the Merchants of England whatsoever the cause of the restraine was it is very cleer the restraint was by Statute and that this Imposition raised by way of Dispensation was condemned which neverthelesse suppose it had not been controled yet as I have said oftentimes it is in nature so farre differing from ours as the practise thereof will not so much as help to salve this long discontinuance The next mention of Impositions is found 1 R. 3. cap. 12. 1 R. 3. cap. 12. The words are the Subjects and Cominalty of this Realme shall not from henceforth be charged by any such charge or Imposition called a Benevolence nor by such like charge you perceive by the words of the Statute what Impositions are intended within that Statute The next mention of Impositions in these times I finde to be 7 H. 7. 7 H. 7. cap. 7. where a charge of eightteen shillings laid upon a But of Malmesie by Parliament is called an Imposition Another mention of Impositions I finde to be 12 H. 7. cap. 6. 12 H 7. cap.
6. In the preamble of the Statute the words are That every person ought to use himselfe to his most advantage without exaction Fine Imposition or contribution to be had or taken of him to or by any English person or persons Though some that have argued before me against Impositions have urged this Statute as making against our present Impositions yet for my part I am not of that opinion but upon perusing the Statute doe rather thinke that it extendeth only to impositions laid by the Merchants of London upon the Merchants of other Cities and Townes not incorporate into their Companies as will evidently appeare by the Statute so as notwithstanding this Statute that which I have averred and hath been yeelded to by the Kings Counsell that no Imposition was laid from Ed. 3. to Queene Maries reigne is not yet impeached There is yet one other Statute of later time in which mention is made of Impositions and that is 14. H. 8. 14. H. 8. cap. 4. cap. 4. The words are Every Subject borne in England and sworne to be Subjects of other Princes as long as they shall so abide Subjects to the other Princes shal pay such Customs Subsidies Tolls and other Impositions within this realme as Strangers doe I hold that this word Impositions in this place is used as a generall to all the particulars before mentioned and no otherwise and is no more in effect then charges a thing usuall in Statutes of this nature to adde generall words for the more securitie which I collect by the word other going next before it For to what end should it be said no other Impositions if those particulars first named were not contained within that generall word of Impositions This word other is a Relative and must needs be answered with words going before when there are no other words following Besides it is common in the Statutes and Records of Ed. 3. No Imposition upon woolls shall be laid but in Parliament By which it appears that a charge laid by Parliament may be called an Imposition which is very evident by a Statute made not above 28. yeeres before this I meane the Statute of 7. H. 7. cap. 7. 7 H 7. 7. which I spake of even now where a charge of Eighteen Shillings upon a Butt of Malmsey laid by that Act of Parliament is called an Imposition And as I have shewed you the word Imposition hath been applyed to all these severall Inventions used by Ed. 3. The signification of the words Maltolt and Imposition or Impost for the charging of Merchandizes Nay the word Maltolt which is Englished by Rastall an evill Toll as indeed it signifies and in that respect is of a farre harder sense then the word Imposition is used indifferently for a charge set by Parliament or a charge set by the Kings absolute power upon Merchandises Impositio derived from the verbe imponere is no other then the Act of laying on or imposing and therefore in my opinion Impositions are more properly by the Merchants called Imposts which signifieth the things Imposed But I shall not need any further to enforce this considering it hath so liberally been confessed by the Kings Counsell No Imposition laid from Ed. the Thirds time till Q. Maries that there is no Record or Statute from Ed. 3. till Queen Maries reigne that giveth any assurance that impositions or so much as any one Imposition was laid during all that space of above 170. yeers only it behoves me for further opening the truth to testifie that being one of those that were by you imployed to make search in the ancient custome Books of those times remaining in the Exchequer together with some of the best experienced Merchants of this house some of which had sate at the receipt of Custome wee had many meetings and spent many whole dayes in turning over the old Custome books and as carefully as we could did survey some books of every age and time But after all our search ended could not finde any one Imposition from the time of Ed. 3. till Queen Maries reigne to have been received by any Customer or Collector And if you please to give me leave to remember to you the passages of those times you cannot but marvell that none of all those Princes should so much as attempt to trie the strength of this so beneficiall a Prerogative so much practised by Ed. 3. and when you have heard their occasions and compared their other actions What great occasions all the Kings from Ed. 3. till Q. Ma. had to lay Impositions and yet did it not with their forbearance in this kinde you will I think conclude and say in your hearts that surely none of all those Kings had so much as any imagination that any such Prerogative belonged unto them as to raise money at their pleasure by laying a charge upon merchandizes to be exported or imported without assent in Parliament Richard the Second being the Grand-childe and next Successor of Ed. 3. Rich. 2. in whose times impositions of all sorts did so much rage had little lesse occasion then his Predecessor had For first he had little treasure left him and he was no sooner in his Throne but news was brought that the French had invaded the Realme they had burned Rye and Hastings in Sussex they had taken and possessed the I le of Wight they had besieged Winchelsey From the Northern parts That the Scots had burned Roxborough and were ready to overrunne all the North parts of England Being thus beset with warre on all sides doth his Counsell which in all likelyhood had most of them been of Counsell to his Grandfather advise him to raise money by impositions as his Grandfather had done for this course of raising money by way of Impositions was yet fresh in all their memories they do not but he taketh the ordinary course by calling a Parliament which for mainteinance of his charge in the war the second yeer of his reign granteth him a Fifteenth he calleth another Parliam and hath another Fifteenth granted the Fourth yeere of his reigne the warres increasing his necessities were such and so conceived by the Parliament as they granted him a most unusuall Taxe throughout the whole Kingdome upon every Ecclesiasticall person one and other Sixe shillings Eight pence upon every other man or woman within the Realm Foure pence which when it came to be levied caused though causelesly because it was legally granted that notorious Rebellion of which Wat Tyler was the Captaine This Taxe as it was levied not without that great Rebellion so questionlesse was it unwillingly yeelded to in Parliament and yet because there was no other course thought lawfull for the raising of treasure upon the Subjects goods then by their own assent in Parliament onely that course was thought fit to be practised which was such as ought to be obeyed From the 5. to the 18. yeere of his Reigne he obtained every other yeer
King to sustein any publique charge except it be by their own consent in Parliament I proceed from Ed. 4. to Hen. 7. Hen. 7. omitting Ed. 5. and Ric. 3. because of the shortnes of their Reignes Hen. 7. H. 7. had a Subsidy of Tunnage and Poundage granted to him for his life as may appear by the Parl. Roll 1 H. 7. which appeares no where in our printed books had indeed a more peaceable time than any of his Predecessors and yet he was not altogether free from troubles both within the Realme and from abroad But his naturall inclination was rather to embrace Peace he was so provident and politique in the gathering and storing up of Treasure as never any Prince of this Realme was therein to be compared to him He did himselfe take the accounts of his Revenues which I have seen under his own hand He had for his Assistants about him Empson and Dudley men learned in the Lawes and by all probability very canning in all the profitable points of the Prerogative men that that intended or studied little else than the advancing of their Masters profit men even till this day infamous for their wicked counsell in perswading that good King to lay such heavy Exactions and Burdens upon his people as he did If these men who in all likelihood should have best knowne the Kings right especially in so high a point of profit had but had the least notice of so profitable a Prerogative as this would they not have been at strife which of them should first have put the king in minde thereof Or if they had held it questionable would they not have put it to some triall Certainly there can be no cause imagined that should make them thus to forbeare but either they were utterly ignorant of any such Prerogative or that knowing such a thing to be claimed by some of the ancient kings especially by Ed. 3. they knew likewise that it was in the same times continually complained of in Parliament and alwayes condemned and that there were acts of Parliament directly against it and this is more probably to bee conceived of them being men of such searching spirits and so well studied in point of Prerogative then that they were ignorant of the practise of Ed. 3. considering also that they were nerer to those times by 120 yeers then wee are But that which most of all moves me herein is that there was in H. 7. time such an occasion offered of making use of this Prerogative as there could not possibly happen any other that might better have justified the laying of Impositions which was this The Venetians to the intent to drive our Merchants from fetching sweet wines at Candy that they might the better imploy their owne ships and Merchants did impose upon every But of Malmesey brought thence by English Merchants foure Duccats by which means the English wholly lost that Trade and the Venetians made the whole profit thereof This mischiefe was no other way better to be remedied than by imposing the like or a greater charge upon Merchants of Candy bringing Malmsey into England that so they of Candy not being able to afford them better cheape than the English the English might still fetch them from Candy as they had wont to doe I say there could not possibly be a more justifiable occasion of laying Impositions than this was And did this king so carefull in other things of preserving his Prerogative and most of all in matters that concerned his profit take hold of this occasion to lay an Imposition by his absolute power Nay rather though he saw it convenient and in a manner necessary yet he conceived it to be unlawfull so to doe and therefore did it not by his absolute power but by assent of Parliament as may appeare by the Statute of 7 Hen. 7. cap. 7. printed where in the preamble of the Act you shall see the occasion of the making of the Act to be as I have opened it unto you and you may perceive by the body of the Act that for the counterpoysing of the imposition of foure Duccats laid by the Venetians upon our Merchants there was imposed 18s. for a But of Malmesey upon their Merchants bringing it hither to last as long as the imposition of foure Duccats which as appeares by the Act came but to 18s. of our mony should endure It is not probable that this king considering his other actions would have suffered this to have been done by Parliament if he had thought he might have lawfully done it by his absolute power And therfore it cannot almost be gaine-said that in these times this pretended Prerogative of laying Impositions without assent of Parliament was held to be against Law Hen. 8. his sonne and successor Hen. 8. was so farre from the disposition of his father in this point of thrift and providence Hen. 8. had a Subsidie of Tunnage and Poundage grāted to him for his life the first yeare of his Reign as appeares by the Parl. Roll. as there was not in the whol ranke of our kings any one like to him for excessive prodigality the great riches stored up by his father with so much care and left unto him hee so sodainly consumed in Triumphs Maskes Mummeries Banquets pompous and braving Warres as was that of Turwin and Turney and in the satsfying of his lust as he was out of very necessity enforced to crave most unreasonable aids of his Subjects in Parliament such as never before had been granted which through very dread and feare were yeelded to him yet not so satisfied that no meanes for the raysing of money might bee neglected or unattempted in the 15 yeere of his Reigne by the councell of that proud Prelate Cardinall Woolsey hee spared not to send out Commissions into every shire throughout the whole Realme with privy instructions to the Commissioners how they should with most advantage behave themselves in perswading the people to contribute to the king the sixt part of their whole estates to bee paid presently either in money or plate whereupon followed extreme cursing weeping and exclamation against the king and his councell and the people were in point to rebell had not the king stayed the proceedings of the commissioners by his Letters Finding that this way would not serve his turne hee demanded a benevolence which not answering his expectation hee did the same yeere raise unto himselfe a great deale of treasure by abasing his gold Such things as these Princes never put in practise but when all other meanes faile them and yet hee went many degrees beyond this For in the 27. yeer of his reigne he suppressed above 370 Religious houses the yeerly value of whose revenues I have read to be no lesse than 32000l. per annum in those dayes and that of their goods sold at very low prises he made above 100000l. in present money About 4. yeares after he dissolved all the Monasteries Abbeies Priories
Nunneries and all other Religious houses of what kinde soever throughout England By which meanes and by the sale of their goods he gathered such a masse of Treasure as it might have been imagined that never any king of this Realme should have needed to have sought reliefe at his Subjects hands Yet he himselfe no longer than within 3. yeeres after following craved and obteined as may appeare by the Statutes of that time an excessive great Ayde by Parliament and yet the yeere following hee did also abase his coyne more then halfe in halfe such an abasement as never before or since was heard of and could not but bee very grievous to the people but because perhaps they held it lawfull so to doe they made no pubilque complaint thereof and it is worth the observing That though this Prerogative of abasing Coyne be a thing which trencheth as deepely into the privat interest of the Subject as the laying of Impositions for by this meanes a man that this day is worth in revenues a hundred pounds per an hee shall to morrow if the king be so pleased be worth but fifty or forty or lesse in reall value and though also the practise of this Prerogative hath not been forborne by any of the kings of this Realm and that some of them have used it very immoderately yet cannot there be found any one publique complaint that ever I have met withall upon Record against it as from time to time there have beene many against Impositions which argues that the Subject did make a difference between these two Prerogatives this of laying Impositions and that of abasing coyne thinking the one lawfull and the other not But to conclude my observations upon the actions of Hen. 8. The next yeere after this unconscionable abasement of his money hee craved a benevolence The yeere following he tooke the profits of all the Chantries Colledges and free Chappels c. during his life which ended the next yeere Can any man imagine that during this kings Reigne it was held lawfull or any such thing so much as dreamed of to rayse treasure by laying Impositions I will enforce it no farther but leave it to the judgement of any reasonable man that shall consider these things which I have remembred whether or no it bee likely Out of the time of his Sonne and Successor Ed. 6. Edw. 6. I can observe little because of the shortnesse of his Reigne but methinkes if his Governors had imagined that any such Prerogative had been due unto him they should not in honor have forborn the practise thereof for the supplying of the Kings great necessities and in stead thereof have craved of the Subjects that unacustomed and unreasonable Subsidy granted an 2. of a certaine sum of money upon every sheep and every Cloth within the Realme for 3. yeeres which afterwards for the unreasonablenes thereof was released I have now gone through in such sort as you have heard A Corolary or connexion of all the times before mentioned the times of all the Kings from Ed. 3. till Q. Maries Reigne during which time what can there be more imagined that might possibly have happened to have awakened Impositions if they had not been more than asleepe Neither the necessity of just and honorable warre nor the subtleties and curiositie of Peace nor the prodigality of some of these Kings for the better satisfying of their pleasures nor the covetousnesse of others nor the softnesse of some of their dispositions nor the nonage of others apt to be abused by evill Counsellors nor the dreadfull and fearefull awe in which some of them held their Subjects nor the assurance of the peoples extraordinary affection which might have emboldened some others nor the evill conscience of Vsurpers nor any other motive whatsoever which happened during this long time could revive them untill Q. Mary did at last raise them out of the grave after they had been so many yeeres dead and rotten The first Imposition that she layd Qu. Mary was that upon Cloth continued till this day which grew upon a speciall reason as may appeare by the printed booke of the rates of her Customes and Subsidies in the end whereof you shall finde a declaration expressing the losse susteined by reason of the difference between the Customes and Subsidies of Wool and cloth by which it appeares that a sack of Wool yeelded in custome six shillings eight pence and in Subsidie thirty three shillings foure pence that the custom upon a short cloth was fourteene-pence and that a sack of Wool did commonly make foure short clothes the custome of which was foure shillings eight pence so that the custome of Wool made into cloth was lesse then the Custome and Subsidie of so much Wool not cloathed In every sack in short clothes thirty five shillings foure-pence which difference was reduced to an equality by rating upon every short cloth ten shillings After this declaration made of the difference and of the rate which reduced both to an equality follow these words Which difference considered and the great losse susteined by Us in the same by reason that cloathing is much increased It is thought convenient by Us with the advice of our Councell towards the reliefe of the losse for to assesse upon the Clothes carried out by way of Merchandize some larger rate then heretofore hath been used and though it were reason to appoint such a rate as might recompence the full of the losse susteined yet upon divers considerations at this time Us and Our Councell moving Wee are pleased only to assesse upon every short-cloath by the name of custome six shillings eight pence c. I thought good to open this at large unto you that you might see upon what speciall reason of equity this Imposition was grounded and how it differeth from ours And it is worthy the observing how the Queene commandeth this increase of Custome to be yeelded unto her not as an Imposition or by the name of Impost but by the name of Custome because it cometh in lieu of the ancient Custome upon Wooll which is the reason that at this day it is demanded and paid by that name whereas no other new raised duty hath that priviledge but they are either called Subsidie of Tonnage or Poundage if they be raised by act of Parliament or Impost if by the Kings absolute power The name of Custome was anciently given to none but to Wools Wool-fells and Leather and upon this occasion to Cloth also This Imposition though grounded upon such equity as you have heard yet in Dyer 1 Eliz. fo 165. a. b. it was as appeares by my L. Dyer complayned of by the Merchants of London with great exclamation which are his words and suit to the Queen to be unburdoned of it because it was not granted in Parliament but assessed by Queen Mary of her absolute power whereupon there were divers assemblies and conferences of the Justices and others
sibi de Maletoltis quas faciet Rex As touching the word Toll Derivation of the word Toll which they say is to be understood of Toles for passages and for buying and selling in Faires and Markets it behoves me to say something of the derivation thereof the rather because it is very often used in our ancient Statutes and Records in the same sense as it is in this place and by the derivation thereof the naturall and true meaning of the word shall be best understood I hold it therefore to be derived from the Latine word Teolonium which signifies custome by cutting off the latter part of the word and retaining onely the first part Teol by contraction Toll of which manner of derivation there are infinite examples in our language the Latine Teolonium as saith Calvin in his Lexicon Juris Civilis is derived from the Greek Telos which signifies aswell Custom as it doth Finis Hence it is that the Customers are called in Latine Telonarii Thus you see that the genuine and primative signification of our word Toll is no other then Custome upon Merchandizes from the word Toll are come those two barbarours Latine words found in our Statutes and Records Toltum which is the word used in the Record of 16 H. 6. but even now vouched by me and Tolnetum the Originall word in the Statute now in question which I must confesse is also in our Law Latine used by us for Toll in the Market and Toll for passage as may appear by the Register and the Book of enetries But in this place Malum tolnetum properly signifies not a Toll in the common sence but an unlawfull charge laid by the King upon Merchandizes as an increase of Custome according to the Primitive signification which is evidently proved in that it is here opposed to old and rightfull Customes sine omnibus malis Tolnetis per certas antiquas consuetudines wherfore it ought so to have been translated for so it signifies without Impositions by the old and rightfull Custome This exposition and translation is further warranted by the use of the word Maletolt so often found in our ancient Statutes Records which without scruple is derived from the Latine Malum Tolnetum the very word of our Statute I finde it diversly written Maletout Maletolt Maletot and sometimes Maletent but I never finde it any where used in any other sence then for an Imposition by way of increase of Custome upon Merchandizes Sometimes indeed but that very rarely It is taken in the best sence for lawfull and rightfull Custome as the word Imposition sometimes is but then commonly it is accompanied with another word to free it from the worst sence as Droiturel Maletout c. That malis Tolnetis is in this place ought to be translated Impositions may be farther proved by that which I finde in a writer of the french History one Jean Serres who saies That in the time of Philip le Beau king of France which was about the time of Ed. 3. king of England there were rebellions in France because of Impositions laid by the K. which in those days they did saith he call Maletouts the very word then anciently used in Engl. for Impositions as may plentifully appeare by the Statutes and Records of H. 3. Ed. 1. Ed. 2. Ed. 3. The word Imposition for the word Imposition was not used in any French Record Statute or other for ought I have seene till Ed. 3. I finde it once used in Latine 12. Ed. 3. in the Letter which King Edward the Third writ to the Archbishop to excuse him to the people for laying Impositions and as all that Letter throughout is of an eloquent stile so as it seemeth he was carefull to avoid also that barbarous word Malum tolnetum though common and familiar and in stead thereof to use the pure Latine word Impositio Sylvius writing upon Tullies Oration for Marcus Fonteius where these words are used by Tully Imposuit vectigal saith Ita usitatum vulgo est ut vectigalia nova appellent Impositiones The word Vectigal in this place though in a generall sence it may be applyed to any revenew whatsoever yet with the Civill Lawyers it is by way of Excellence commonly used for Custom as may appear by Calvin in his Lexicon Vectigal quod Fisco vel Reipubl portorii nomine pendintur id est pro mercibus quae invehuntur vel evehuntur Sometimes they use to joyne with it for a more cleere distinction the word Portorium as a man would say the revenue of the Ports agreeable with which upon some Records of Henry the Thirds time I have found it to be called Exitus Portuum By this it is evident that Impositio in pure Latine and Imposition in English is the same with Maletolt in French and Malum tolnetum in our Law Latine and they doe all signifie a new increase of Custome and not any thing else Wherefore I conclude that these words sine malis Tolnetis in our present Statute are naturally and properly to be expounded and understood of Impositions and so ought to have been translated and not as they are and although the word Imposition it self as also the word Maletout and Malum tolnetum may be as I have confessed taken as well for a new increase of Custome by a lawfull means viz. by assent in Parliament as for an increase of Custome by the Kings absolute power which is unlawful yet by the words that immediately follow it is evident that this Statute doth onely intend unlawfull impositions that is impositions laid by the Kings absolute power without assent in Parliament otherwise would they not have been opposed to due and rightfull customes as by the words of the Statute they are But because there hath been some exception also taken to the exposition of the word Custom in that sence in which I take it that is for custome upon Merchandize for that the word in the Originall is Consuetudo The word Custom Custuma and Consuetudo expounded which signifies an usage and not Custuma which is the Latine word we now use for Custome upon Merchandize it behoves me therfore to say something touching these words Consetudo and Custuma for the cleering of this scruple This word Consuetudo in his first and proper signification doth I confesse signifie an usage or practise of a thing time out of minde but it is evident by the Records in the time of H. 3. and Ed. 1. this word in a more speciall manner was applied to all or most of the duties belonging to the Crowne by reason of Trade As Consuetudo aquae Thamesis Consuetudo piscis venientis ad vicum Pontis London Consuetudo quae vocatur Scavagium Consuetudo quae vocatur Gauge But yet more specially it was applyed to that dutie which we following the same rule because of the greatnesse of the Revenue doe likewise per Excellentiam call Custom This may appeare by the Pipe Roll
of 52. Hen. 3. this title Consuetudo Mercandizorum and by divers other Records of Hen. 3. times the Rolls and Records of the beginning of Ed. 1 doe likewise prove the same very evidently Insomuch that not onely that which in this kinde belongs to the King by the Common Law and by ancient prescription was called Consuetudo but in later time if any increase were of that dutie though it came not by prescription but by grant in Parliament or otherwise yet it still retained the name Consuetudo which by continuance of time came to be the proper name to that kinde of dutie howsoever it began And therefore in 3. Ed. 1. you shall finde that after the old custome of Woolls was increased to a demy-Marke by Act of Parliament yet the word consuetudo was neverthelesse still retained but with an addition For it was then called nova consuetudo Nay though the increase were by the Kings absolute authoritie and upon the matter a meere Imposition Yet the King in his Commission did alwayes call it consuetudo as in 16. Ed. 1. the Imposition of Foure Shillings upon a Tun of Wine is in the Kings Commission to collect it called consuetudo Neverthelesse I assure my self the people called it by some worse name as Maletolt or the like The severall applications of this word Consuetudo to all duties whatsoever belonging to the Crowne by reason of Trade is the reason as I conceive that the word is used in the plurall number in the Statute of Magna Charta per antiquas certas consuetudines that so they might bee secure against all unjust exactions upon Merchandizes whatsoever but as I have said the principall scope was to provide against Impositions and by reason also that the word Consuetudo was taken as well for Impositions as for rightfull Customes therefore to make all sure they insert the words antiquas rectas This word Consuetudo in this sense continued till about the twentieth yeere of Ed. 1. after which time I cannot call to minde that I have seene it upon any Record In stead and place thereof came in the word Custuma which I find first in Charta Mercatoria an 31. Ed. 1. where the increase of Custome by the grant of Merchant-strangers is called parva custuma that which before was called nova Consuetudo doth now begin to lose that name and to bee called magna Custuma which termes of magna Custuma intending thereby that increase made by Parliament anno 3. Ed. 1. upon the three staple commodities Wools Wooll-fells and Lether And parva Custuma intending thereby the increase granted by the Merchants-strangers an 31 Ed. 1. Custums are the termes used at this day by the Customers and by which they distinguish their entries This word Custuma I finde to have been also promiscuously used by E. 1. E. 2. and E. 3. in their Commissions and applyed as well to increase of Custome by way of Imposition or by acts of Parliament of those times as to ancient custome upon the Staple commodities but regularly none ought to be called Custuma but that which is due upon the Staple commodities and so is it used at this day except only cloath for if it bee laid by act of Parliament it is called a Subsidie if without assent of Parliament Impost You see in what sense the words malum Tolnetum and the word Consuetudo have been used in former times and are thereby able to judge how they ought to be understood in this present Statute which as I have said ought to have the most benign interpretation that the words may beare But it hath beene likewise objected that in this Statute there is a speciall clause of exception which leaveth the king at his liberty to lay what impositions he pleaseth The third objection against Magna Charta cap. 30. that by the Exception the Kings prerogative to lay Impositions is salved answered this Statute notwithstanding and that is the words in the beginning of the Statute All Merchants if they were not openly prohibited before shall have their passage c. which implies say they that if they be prohibited which rests wholly in the kings power then they are not to have benefit of this Stat. touching the freedome from impositions and they say farther that the very laying of impositions doth imply a restraint sub modo Though I purpose to speake more fully in answere of this objection when I come to shew you the weaknesse of the reasons alledged for Impositions yet I cannot forbeare in this place to speake a word or two in answere thereof having the Statute now before us Except they be prohibited they shall have free passage saith the Statute without paying Evill-toll This doth imply say they that if they be prohibited they may be compelled to pay Impositions but that cannot be necessarily concluded it implies indeede somewhat strongly that they may bee prohibited The Statute of 1 R. 2. cap. 12. inhibiteth the warden of the Fleete to deliver any prisoner out of execution unlesse it bee by writ or other commandment of the king It may be as strongly implied out of this Statute that the king may by his commandment without writ 4 5 P. M. fo 162. b. Dyer deliver a prisoner out of execution but the contrary hath alwaies been held The same objection is made and the same answere may be given to another exception in the latter end of this branch Except in the time of war I come to the second Statute against Impositions The second Statute against Impositions the Statute De Tallagio non cōcedendo expounded and cleered which is the Statute de Tallagio non concedendo touching the time of the making of which there is great variety of opinion for it is not for ought I could ever learne found any where upon Record Justice Rastall accounts it to have beene made 51 of H. 3. and with him agrees an old manuscript which I have seen It may well bee for in one of the Statutes you shall finde a pardon to Humfrey Earle of Boham Earle of Hertford and Essex Constable of England and to Roger Bygott Earle of Norfolke and Suffolk marshall of England who both lived in that time Tho. of Walsingham in his history of England saith it was made in the 25 yeere of Ed. 1. hee reciteth the Statute de verbo in verbum as it is in our printed bookes otherwise I should have thought he had meant another Statute against Impositions made indeede 25 Ed. 1 and found upon the Records of that yeere in our printed Statutes at large it is placed last of all the Statutes of E. 1. Though there be some disagreement about the time of the making of this Statute yet they all agree the occasion to be the laying of a great imposition upon Wool the words of Tho. Walsingham Auxit Rex tributum Lanae ad 40s. cum prius ultra dimidiam mercam non daretur tota autem comunitas
against Ale-houses is if not by the Common Law yet by the force of this law unlawfull For certainly quod prohibitum est una viae non debet alia permitti As for the words Ayde and Charge I have already proved that it was a terme by which Impositions were commonly called in those times That they were also called charges is evident by very many Records of those times The word Charge where complaint is made against them as 21. Ed. 3. Numb 11. Les commons prion qe la charge de 2â— sur sack de lane soit Ouste 21. Ed. 3. Num. 16. The Commons pray that no charge be set upon them without assent of Parliament The kings answere is if any Imposition be levyed unduely it shall bee taken away of this kinde there are very many Presidents so as if the precedent Petition had not assured us of the scope of this Lawe as it doth the very words themselves rightly understood would have made it cleere In the same Charter there is another clause as beneficiall as this to this effect All Merchants Denizens Forreins except those which be of our enmitie may without let safely come into the Relm of England with their goods and Merchandizes and safely tarry and safely returne paying the customes subsidies and other profits reasonably thereof due The objection to this clause is very obvious for what say they can these words Other profits reasonably due signifie other than Impositions for by the words going before Custome and Subsidies are expresly named and there is say they no other third profit upon Merchandize but Impositions and indeed this Statute they themselves have vouched in maintenance of Impositions To this objection it might serve for a full answer that there are other duties then Customes and Subsidies due upon the landing of wares for example Wharfage Cranage Scavage and such like the which with more probability I may conjecture to be intended by these words Other duties then they can conjecture it to bee meant of Impositions Sed in planis non opus est conjecturis The best expositors of this Act are those that lived in the same times and they doe cleerely expound this clause to be made against Impositions as may appeare by the Record of 21 E. 3. No. 29. for you shall there finde a Petition exhibited in Parliament by the Commons to bee relieved touching an Imposition upon Wools alledging for a reason of their Petition that every man ought freely to passe paying the antient custome as it was ordained by the kings Charter This Petition against Impositions was exhibited by the whole Parliament within six yeeres after the making of the Charter as may appeare by comparing the times and if they had not then thought that Impositions had been meant to have beene provided against by this Charter they would not certainly have made such a speciall reference thereunto In discovering the weakenesse of the reasons alledged in maintenance of Impositions Answers to the Reasons urged in maintenance of Impositions I shall not greatly neede to say any thing more then hath been said because the state of the question hath beene already so throughly opened unto you that whatsoever can with any colour of reason be said for Impositions may receive an answer out of that which hath beene spoken against them Neverthelesse I will in a few words recall to your memories their reasons and in as few apply the answers to them with some additions of mine owne that by laying both together in your view at one time the weakenesse of the one and strength of the other may the better appeare unto you It hath beene said that the old Custome of a Demi-marke upon a sack of VVool must have his beginning either by the kings absolute power The first argument That because it cannot appear that the ancient Customes were set by Parliament therefore they were imposed by the King answered or by a legall assent of the people which can bee no where but in Parliament and cannot but appeare of Record but because no such assent can be showne therefore they conclude that it began by the kings absolute power and inferre that the same power remaines still The substance of this argument is found in my Lord Dyer in the place cyted by me It was much inforced in the Exchequer but as touching the particular of the old Custome of a Demi-marke upon a sack and the other old custom upon Fels and Leather it is now no longer urged because it appeares expresly by divers Records of 3 E. 1. in the Tower That it was granted per les grandes et al prier des Comons et de les Merchants de tout Englaterre and by a Record of 25. E. 1. cap. 7. Stat. printed per Communitatem Regni nostri Angliae Ro. Pat. 3. E. 3. M. 1. Stat. 25. E. 1. c. 7. Ro. fin intus 3 E. 1. M. 24. which concurres also with the Statute of 25 E. 1. cap. 7. in print Saving to Us and our Heires the Customes of wools skins and leather granted heretofore by the Comminalty aforesaid The Pattent roll of 3 E. 1. which hath these words cum Prelati Magnates ac tota Comunitas Mercatorum Regni nostri nuper nobis concesserunt quandam novam consuetudinem 3. E. 1. M. 1. Ro. Par. viz. de quolibet sacco Lanae 6s 8d c. being something thing obscure are by the concurrence of all those other Records so cleerely expounded as there cannot be neither now is there any question made but that the Custome of a Demy-marke and the other old Customes which by my Lord Dyer and by all those who argued for or against Impositions in the Exchequer was held to bee due by the Common-Lawe was by grant in Parliament neverthelesse the strength of the argument they still retaine though the Demy-mark and those old Customes upon the staple commodities were by Act of Parliament yet say they before that increase by Parliament the king had Custome and no doubt a some certaine otherwise could not this increase be called nova consuetudo besides say they the Custome reduced to a certainty by 3 E. 1. is only upon three commodities wool skins and leather there are many other commodities which did likewise pay Custome How began that Custome say they if not by the kings absolute power and when was that power taken away I answere admit it were by the kings absolute power yet that the king hath cleerely discharged himself of that power by Act of Parliament I hope I have cleerely proved But this question How began the first Customs is best answered by another question How began the Fine for purchase of Originall VVrits the Fine pro licentia concordandi the certainty of prisage nay who reduced it first to certaintie that the tryall of issues should be by twelve Jurors no more nor no lesse that the full age of a man should bee accounted twenty one yeers of a woman