THE RIGHTS Of the People of England, Concerning IMPOSITIONS. Stated in a Learned Argument; by Sir Henry Yeluerton Knight and Baronet, late one of the Justices of the Court of Common-pleas. With a Remonstrance presented to the Kings most excellent Majesty, by the Honourable House of Commons, in the Parliament, An. Dom. 1610. Annoque Regis Jac. 7. London, Printed for William Leake and John Leake, at the Crown in Fleetstreet, betwixt the two Temple-Gates, 1679. TO THE Courteous READER. THis excellent Treatise of the no less worthy Author, happily falling into my hands, I instantly thought it my duty to make that public, which had given so much useful satisfaction to many learned, and judicious, in private; remembering that ancient Adage, Bonum quò communius, eò praestantius I hope it is needless to commend either the Reverend Author deceased, the Treatise, its use, or stile; since the Authority by which it is published, is a sufficient argument of their known worth. If thou kindly accept of his good meaning, whose only aim in the publishing hereof was the Common good, it will be an encouragement to him (and others) to present to thy view, what may hereafter fall into his hands worthy thy further perusal. Thine; J. B. 20. Maii. 1641. AT a Committee appointed by the Honourable House of Commons, for examination of Books, and of the licensing and suppressing of them, etc. It is Ordered, That this Treatise be published in Print. Sir Edward Deering, Kt. and Baronet. ☞ There is lately come forth, An exact Abridgement of the Records in the Tower of London, from the reign of King Edward the Second, unto Richard the Third, of all the Parliaments holden in each King's reign, and the several Acts in every Parliament, together with the Names and Titles of all the Dukes, Marquesses, Earls, Viscounts and Barons summoned to every of the said Parliaments. Collected by Sir Robert Cotton, Knight and Baronet. And are to be sold by William Leak at the Crown in Fleetstreet, betwixt the two Temple gates. A Remonstrance delivered to His Majesty in writing, after the inhibition given by Him to the Commons House of Parliament, aswell by word of mouth, as by Letters, not to proceed in the examining his Right to Impose without assent of Parliament. To the Kings most excellent Majesty. Most gracious Sovereign, WHereas we your Majesty's most humble Subjects, the Commons assembled in Parliament, have received first by message, and since by speech from your Majesty a command of restraint, from debating in Parliament your Majesty's right of Imposing upon your Subjects goods exported, or imported out of, or into this Realm; yet allowing us to examine the grievance of these Impositions in regard of quantity, time, and other circumstances of disproportion thereto incident: We your said humble Subjects nothing doubting but that your Majesty had no intent by that command to infringe the ancient and fundamental right of the Liberty of Parliament in point of exact discussing of all matters concerning them, and their possessions, goods, and rights whatsoever, which yet we cannot but conceive to be done in effect by this command, do with all humble duty make this Remonstrance unto your Majesty. First, We hold it an ancient, general and undoubted right of Parliament, to debate freely all matters which do properly concern the Subject, and his right or estate; which freedom of debate being once foreclosed, the essence of the liberty of Parliament is withthal dissolved. And whereas in this case the Subjects right on the one side, and your Majesty's Prerogatives on the other, cannot possibly be severed in debate of either: We allege that your Majesty's Prerogatives of that kind concerning directly the Subjects right and interest, are daily handled and discussed in all Courts at Westminster, and have been ever freely debated upon all fit occasions, both in this and all other former Parliaments, without restraint; which being forbidden, it is impossible for the Subject, either to know, or to maintain his Right and Propriety to his own Lands and Goods, though never so just and manifest. It may further please your most excellent Majefty to understand, that we have no mind to impugn, but a desire to inform ourselves of your Highness' Prerogative in that point, which (if ever) is now most necessary to be known; and though it were to no other purpose, yet to satisfy the generality of your Majesty's Subjects, who finding themselves much grieved by these new Impositions, do languish in much sorrow and discomfort. These Reasons (Dread Sovereign) being the proper Reasons of Parliament, do plead for the upholding of this our ancient Right and Liberty. Howbeit seeing it hath pleased your Majesty to insist upon that Judgement in the Exchequer, as being direction sufficient for us without further examination: Upon great desire of leaving your Majesty unsatisfied in no one point of one of our intents and proceed, We profess touching that Judgement, that we neither do nor will take upon us to reverse it; but our desire is to know the Reasons whereupon the same was grounded; and the rather for that a general conceit is had, That the Reasons of that Judgement may be extended much further, even to the utter ruin of the ancient liberty of this Kingdom, and of your Subjects Right of propriety to their Goods and Lands. Then for the Judgement itself, being the first and last that ever was given in that kind (for aught appearing unto us,) and being only in one Case, and against one man, it can bind in law no other, but that person; and is also reversible by Writ of error granted heretofore by Act of Parliament; and neither he nor any other Subject is debarred by it, from trying his Right in the same or like case, in any of your Majesty's Courts of Record at Westminster. Lastly, We nothing doubt, but our intended proceeding in a full examination of the right, nature, and measure of these new Impositions (if this restraint had not come between) should have been so orderly and so moderately carried and employed to the manifold necessities of these times, and given your Majesty so true a view of the state and right of your Subjects, that it would have been much to your Majesty's content and satisfaction, (which we most desire,) and removed all causes, of fears and jealousies from the loyal hearts of your Subjects, which is (as it ought to be) our careful endeavour: Whereas contrariwise in that other way directed by your Majesty, we cannot safely proceed without concluding for ever the right of the Subject, which without due examination thereof we may not do. We therefore your loyal and dutiful Commons, not swerving from the approved steps of our Ancestors, most humbly and instantly beseech your gracious Majesty, that without offence to the same, we may according to the undoubted Right and Liberty of Parliament, proceed in our intended course of a full examination of these Impositions; That so we may cheerfully pass on to your Majesty's business, from which this stop hath by diversion so long withheld us. And we your Majesty's most humble, faithful, and loyal Subjects, shall ever (according to our bounden duty) pray for your Majesty's long and happy reign over us. The question is, whether the King without assent of Parliament, may set impositions upon the wares and goods of merchants exported, and imported, out of, and into this Realm. THree things have been debated in this Parliament, that have much concerned the right of our whole Nation, of which every one of them hath exceeded the other by a gradation in weight and moment. The first, was the change of our name, which was a point of honour, wherein we shown ourselves not willing to leave that name, by which our ancestors made our Nation famous: The name of Britain not admitted in legal proceed. yet have we lost it, saving only in those cases where our ancient and faithful Protector, the Common Law doth retain it. The second was the union; a question of greater moment, for that concerned the freehold of our whole Nation, not in so high a point as having, or not having; but in point of Division and participation, that is, whether we should enjoy the benefits and liberties of the kingdom ourselves only as we and our ancestors have done, or admit our neighbour Nation to have equal right in them, and so make our own part the less, by how much the greater number should be among whom the Division was to be made. This 〈◊〉 〈◊〉 against us both Legally and Solem●●●●nd therefore in that we rest, Coke l. 7 calvin's case. h●ping of ●●●t effect of this judgement which we r●●● of in the Poet, Tros Tyriusque mihi nullo discrimine habetur. Virgil. Aen. l. 1. Dido's speech to Aeneas. The third is the question now in hand, which exceedeth the other two in importance & consequence, concerning the whole kingdom; for it is a question of our very essence, not what we shall be called, nor how we shall divide that we have, but whether we shall have any thing or nothing: for if there be a right in the King to alter the property of that which is ours without our consent, we are but tenants at his will of that which we have If it be in the King and Parliament, Then have we property and are Tenants at our own will: for that which is done in Parliament, is done by all our wills and consents. And this is the very state of the question which is proposed, that is, whether the King may impose without consent of Parliament. Impositions are of two natures, Foreign, and Intestine. Intestine, be those which are raised within our land in the commerce and dealing that is at home within ourselves, and may aswell for that reason be so called, as for that vescuntur intestini● Reipublicae, They are fed and nourished with the consuming and wasting of the entrails of the Common wealth. Against these I need not to speak; for the King's learned Council have with great honour and conscience in full Council acknowledged them to be against the law. Therefore I will apply myself to speak of impositions foreign, being the single question now in hand, and maintained on the King's behalf with great art and eloquence. The inconvenience of these impositions to the Commonwealth, that is, how hurtful they are to the Merchants, in impoverishing them in their estates; to the King in the increasing of his revenues by decay of traffic, and to the whole people in making all commodities excessive dear, is confessed by all, and therefore need no debate. The point of right is now only in question, and of that I will speak with conscience and integrity, rather desirous that the truth may be known, and right be done, than that the opinion of myself or any other may prevail. The occasion of this question was given by the book of rates lately set our, affronted with the copy of Letters Patents, dated July 28. 6. Jac. In which book, besides the rates, is set down every kind of merchandise, exported and imported for the true answering of subsidy to the King, according to the Statute of Tonnage and Poundage. In the first year of his reign there is an addition of impositions upon all those kind of wares, which within the book are expressed, and the rate of the imposition as high and in some cases higher than the rate of the subsidy: And this declared to be by authority of those Letters Patents. Hereupon considering with myself, that heretofore the setting on of one only imposition without assent of Parliament, upon some one kind of merchandise, and that for a small time, and upon urgent necessity of actual war, did so affect our whole Nation, and especially the great Council of the Parliament, being the Representative body of the whole Commonwealth, that neither the sun did shine, nor the rivers run their courses until it was taken off by the public judgement of the whole State. I thought it concerned me, and other members of that Council, that were no less trusted for our Country, than those in former times, and have their actions to guide and direct us, to have the same care they had in preserving the right and liberties of the people, having now more cause than they had, for that the impositions now set on without assent of Parliament, are not upon one or two special kinds of goods, but almost indefinite upon all, and do extend to the number of many hundreds, as appeareth by that printed book of rates, and are set in charge upon the whole kingdom as an inheritance to continue to the King, his heirs and successors for ever: which limitation of estate in matter of impositions was never heard of, nor read of before, as I conceive. The inducements expressed in these Letters Patents are much upon point of State, and with reference to the rights and practice of foreign Princes; For this I will not take upon me to enter into the consideration of such great mysteries of policy, and government, but will only put you in mind of that I observe out of Tit. Livius the Roman Historiographer: Tit. Liv. l. 8. Omnem divini humanique moris memoriam abolemus, cum nova peregrinaque patriis & priscis praeferimus. To that which hath been spoken for the King's Prerogative, I will give answer to so much of it as I may conveniently in my passage through this debate: wherein I will principally endeavour to give satisfaction to such new objections as were made by the worthy and learned Counsellor of the King that spoke last, in maintenance of his Majesty's Prerogative. The case in terms is this: The King by his Letters Patents before recited, Pat. July 28. jac. 6. hath ordained willed, and commanded that these new impositions contained in that book of rates shall be for ever hereafter paid unto him, his Heirs, and Successors, upon pain of his displeasure: Hereupon the question ariseth whether by this Edict and Ordinance so made by the King himself, by his Letters Patents of his own will and power absolute, without assent of Parliament, he be so lawfully entitled to that he doth impose, as that thereby he doth alter the property of his subjects goods, and is enabled to recover these impositions by course of Law. I think he cannot; and I ground my opinion upon these four reasons. 1. It is against the natural frame and constitution of the policy of this kingdom, which is jus publicum regni, and so subverteth the fundamental Law of the Realm, and induceth a new form of state and government. 2. It is against the municipal Law of the Land which is jus privatum, the Law of property and of private right. 3 It is against divers Statutes made to restrain our King in this point. 4. It is against the practice and action of our Common wealth, contra morem majorum; and this is the modestest rule to limit both King's Prerogatives, and Subjects Liberties. Upon the first, and fourth of these four principal grounds I will more insist then upon the second and third, both for that in their own nature they are a more proper matter for a Council of State, to the judgement of which I apply my discourse (and they have not been enforced by others:) As also for that the other two (as more fit for a bar, and the Courts of ordinary justice) have by some professors of the Law been already most leardnedly and tightly discussed. For the first: it will be admitted for a rule, and ground of State, that in every Commonwealth and government there be some rights of Sovereignty, jurae Majestatis, which regularly, and of common right do belong to the Sovereign power of that State; unless Custom, or the provisional ordinance of that State do otherwise dispose of them: which Sovereign power is potestas suprema, a power that can control all other powers, and cannot be controlled but by itself It will not be denied that the power of imposing hath so great a trust in It, by reason of the mischiefs may grow to the Commonwealth by the abuses of it, that it hath ever been ranked among those rights of Sovereign power. Then is there no further question to be made but to examine where the Sovereign power is in this Kingdom; for there is the right of imposition. The Sovereign power is agreed to be in the King: but in the King is a twofold power; the one in Parliament, as he is assisted with the consent of the whole State; the other out of Parliament as he is sole, and singular, guided merely by his own will. And if of these two powers in the King, one is greater than the other, and can direct and control the other; that is Suprema Potestas, the Sovereign power, and the other is subordinata. It will then be easily proved, that the power of the King in Parliament is greater than his power out of Parliament, and doth rule and control it; for if the King make a grant by his Letters Patents out of Parliament, it bindeth him and his successors, he cannot revoke it, nor any of his Successors; But by his power in Parliament he may defeat and avoid it; and therefore that is the greater power. If a judgement be given in the King's Bench, by the King himself (as may be, and by the Law is intended) a writ of Error, to reverse this judgement, may be sued before the King in Parliament, which writ must be granted by the Chancellor, upon bill endorsed by the King himself, 1. H. 7.19 6. Lib. Intrac. fol. 302. c. 1. as the book is 1 H, 7.19.6. And the form of the writ of Error is, that it being directed to the Chief Justice of the King's Bench; Quia in recordo & pr●cessu, ac etiam in redditione judicii l●quelae, quae fuit in Curiâ nostrâ coram nobis, Error intervenis manifestus ad grave damnum, etc. Nos errorem (si quis fuerit) modo debito corrigi, & pariibus praedictis plenam & celerem justitiam fieri volentes, in hâc parte vobis mandamus, quòd Recordum & processum loquelae illius cum omnibus ea tangentibus, in praesens Parliamentum nostrum sub sigillio tuo disti●●●è & apertèmittas & hoc breve, ut inspectis, etc. n●s de Consilto & advisamento Domi norum spiritualium & temporal●um, ac Communitatis in Parliamento nostro praedicto existentis, alterius pro errore illo corrigen●o fieri faciamus qu●d de jure & secundum legem & consuetudinem Regni nostri Angliae fuerit faciendum. So you see the Appeal is from the King out of the Parliament, to the King in Parliament; the writ is in his name; the rectifying and correcting the errors is by him, but with the assent of the Lords and Commons, The book is not so, that the Commons should meddle than which there can be no stronger evidence to prove, that his power out of Parliament is subordinate to his power in Parliament; for in Acts of Parliament, be they laws, grounds, or whatsoever whatsoever else, the Act and power is the Kings, but with the assent of the Lords and Commons, which maketh it the most sovereign and supreme power above all, and controulable none. Besides this right of imposing, there be others in the Kingdom of the same nature: As the power to make laws; the power of Naturalisation; the power of erection of arbitrary Government; the power to judge without appeal; the power to legitimate: all which do belong to the King only in in Parliament. Others there be of the same nature, that the King may exercise out of Parliament, which right is grown unto him in them, more in those others by the use and practice of the Commonwealth: as denization, coinage, making war: which power the King hath time out of mind practised, without the gainsaying and murmuring of his subjects: But these other powers before mentioned have ever been executed by him in Parliament, and not otherwise, but with the reluctation of the whole Kingdom. Can any man give me a reason, why the King can only in Parliament make laws? No man ever read any law whereby it was so ordained; and yet no man ever read that any King practised the contrary: Therefore it is the original right of the Kingdom, and the very natural constitution of our State and policy, being one of the highest rights of Sovereign power: So it is in naturalisation, legitimation, and the rest of that sort before recited: It hath been alleged that those which in this Cause have enforced their reasons from this Maxim of ours (That the King cannot alter the Law) have diverted from the question. I say under favour they have not; for that in effect is the very question now in hand; for if he alone out of Parliament may impose, he altereth the Law of England in one of these two main fundamental points. He must either take his Subjects goods from them, without assent of the party, which is against the Law; or else he must give his own Letters Patents the force of a Law, to alter the property of his Subjects goods, which is also against the Law. That the King of England cannot take his subjects goods, without their consent it need not be proved more than a principle. it is jus indigena, an old home-born right, declared to be Law by divers statutes of the Realm: 34 E. 3. c. 2. As in 3●. E. 3. cap 2. That no office of the Kings, or of his heirs, shall take any goods of any manner of person without the assent and good will of the party, to whom the goods belonged. The same is declared in many other Statutes made against prisages and purveyances. Neither have ever any Kings attempted to go plainly and directly against that right, but have devised certain legal colours and shadows for their wrongful doing in that kind, which I do find were of three sorts: Commissions, Loans or Privy Seals, Benevolence. by way of Commission; by way of Loan; by way of Benevolence Commission of all other were the most insolent; for they went out (as it were by authority to levy aid of the people upon great necessity of the commonwealth.) These were condemned in Parliament. 21 E. 3. Num. 16 upon a grievous complaint made of the use of them by the Commons, unto the King in Parliament: wherein the people do pray the King, that he would be pleased to remember how at the Parliament held the 17 year of his reign, and at the last Parliament, That is, the Parliament. it was then accorded, and granted by their said Lord the King and his Council, that there should go out no Commissions out of Chancery for Hobbeleries, Archers, and other charges to believed upon the people, if they were not granted in Parliament; which ordinances were not observed by reason whereof the people were impoverished acd decayed, for which they prayed the King that he would be pleased to take pity of his people, and the ordinances and grants made to his people in Parliament to affirm and hold; And that if such Commissions go out without assent or Parliament, that the Commons, which are grieved thereby, may have writs of supersedeas, according to the said Ordinance, and that the people be not bound to obey them. To this the King's answer is. Si ul tiel imposition fuit fait per grand necessitis, & ceo del assent des Prelates, Counies, Barons, & aut grandes & ausomes des Commons adonque presents, Neant moins nostre Seignior le Roy ne voet que tiel imposition non duement fait, soit treit in consequence, eins voet que les ordinances dont cest petition fait mention soit bienment guards. The last time that ever King attempted the course of exaction was 17 H. 8. Stows annals. 17. H. 8. upon the taking of the French King at Pavia, by the forces of Charles the fifth: Cardinal Wolsey having a purpose to put the King into a war about that quarrel, and finding a war about that quarrel, and finding his coffers empty, advised this way, to send out Commissions, and by them to levy aid of the people, according to the value of their estate; But this gave such discontent to the whole Realm, that it caused in many places an actual rebellion: and the Cardinal being called to give an account of this bad advice, did justify this fact by the example of Joseph, who advised Pharaoh to take the fifth part of his subjects goods: But when he saw that would not serve the turn, he falsely laid it upon the Judges, informing the King, he did it by their advice, being resolved by them of the lawfulness of the fact. So you see that great Churchmen found more safety in matter of government of our Commonwealth, in making a false report of a point of the Common Law, then in a true Text of the Scripture. And if any Church men will endeavour by application of the Text of Scripture, to overthrow the ancient Laws and Liberties of the Kingdom, I would advise them to be admonished by the ill success of the Cardinal, in this particular action, and by the miserable catastrophe of his whole life and fortunes. Loans and Privy Seals. Loans and Apprests were those which we call Privy Seals, which though they were more moderate in show, yet being made against the good will of the parties, were as injurous indeed as the other. The Commons in Parliament, Rot. pat. 25. E. 3. num. 16. 25. E 3. Num. 16. made a grievous complaint to the King against the use of them, and prayed, that none from thenceforth should be compelled to make Loans against their will, and they gave this reason, in their petition for that it is against reason, and the franchise of the land, and prayed that restitution might be made to those that have made such Loans. To this the King's rescript was; It pleaseth our Lord the King it be so. Lastly, Benevolence. Came in those kind of exactions, which were termed by the fair name of Benevolences; but they became so odious, as they gave the occasion of a good Law to be made against themselves, and against all other shifts, and devices, by what new terms soever imposed upon the Subjects: 1 R. 3. c. 2 the Law is, 1 R. 3. cap. 2 and is thus; The King remembering how the Commons of this his Realm, by new and unlawful inventions, and inordinate covetise, against the Law of this Realm, have been put to great servitude and important charges and exactions, and especially by a new Imposition called a Benevolence, enacteth by the advice, etc. that the Subjects and Commons of this Land from henceforth shall in no wise be charged by any such charges, or impositions called the Benevolence, nor by such like thing. But if you will deny, that the King doth in this case take the goods of his Subject without his assent, than you must other fall upon mine alternative proposition, That the King's Patent hath in this case the power of a Law, to alter property; for how can he recover the imposed by a legal course of proceeding, and by judgement in his Court, but upon a title precedent him, before the action brought; which title must be a property in the same imposed? and how cometh he by that property, but by his own Letters Patents, by which he declareth he will have that same as an imposition? For the Judgement giveth not the right, but only doth manifest and declare it, and giveth execution of it: So in this point the question is, whether the King's Patent hath the force and power of the Law, or not; for if it be not maintained that it hath, it can never be concluded that he can transfer the property of his Subjects goods to himself, without the assent of them; for quod meum est, sine facto meo alterius fieri non potest. And if you give this power to the King's Patent, you subject the Law, and take away all rules and bounds of settled government, and leave in the Subject no property of his own, neither do you by this advance the King's power and prerogative, Bracton, l. 1. c. 8. but you make him no King; for as Bracton saith, Rex est ubi dominatur lex, non voluntas. So we see that the power of imposing, and power of making Laws are convertibilia & coincidentia; and whosoever can do the one, can do the other; And this was the opinion of Sir John Fortescue that reverend and honourable Judge, a very learned professor of the Common Law, and Chief Justice of the King's Bench, in the time of Henry 6. Fortese. de laudibus Leg. Aug. c. 9 His words are these in his Book, De laudibus Legum Angliae, cap. 9 Non potest Rex Angliae ad libitum leges mutare rognisui; principatu namque nedum regali, sed & politico ipse dominatur: Si regali tantum praeesses iis, leges mutare posset; tallagia quoque, & caetera onera imponere, ipsis inconsultis, quale dominium leges civiles indicant, cum dicunt quod principi placuerit, legis habet vigorens; sed longè aliter potest Rex politicis imperans, quia nec leges ipse sine subditorum assensu mutars poterit, nec subjectum populum revitentem onerare peregrinis impositionibus. In which place I must interpret unto you, that peregrina impositiones be not strange and unheard of impositions, as was urged by the worthy Gentleman that spoke last; but impositions upon traffic into, and out of foreign Countries, which is the very thing in question: Further in the thirty sixth Chapter, Fortesc. de laud. Leg. Ang. cap. 36. he saith of the King of England, Neque Rex ibidem per se aut ministros suos tallagia, Subsidia, aut alia quaevis onera imponit ligeis suis, aut leges eorum mutat, vel novas conduit, sine concessione vel assensu totius regni sui in Parliamento. So he maketh these two powers of making Law, and imposing to be concomitant in the same hand, and that the one of them is not without the other; he giveth the same reason for this, as we do now, but in other words, because (as he saith) in England it is principatus mixtus, & politicus, the King hath his sovereign power in Parliament, assisted and strengthened with the consent of the whole Kingdom; and therefore these powers are to be exercised by him only in Parliament. In other Countries they admit the ground of the Civil Law, quod principi placuerit, legis habet vigorem; Because they have an absolute power to make Law, they have also a power to impose, which hath the force of a Law in transferring property. Philip Comines, Ph. Com. l 4. cap. 1. l. 5. cap. 8. that lived at that times, in his fourth Book, the first Chapter, the fifth Book the eighth Chapter, taketh notice of this policy of England, and commends it above all other States, as settled in most security: And further to our purpose layeth this ground, That a King cannot take one penny from his Subjects without their consent, but it is violence. And you may there note the mischiefs that grew to the Kingdom of France, by the voluntary impositions first brought in by Charles the Seventh, and ever since continued, and increased to the utter impoverishment of the Common people, and the loss of their free Council of three Estates: And if this power of imposing were quietly settled in our Kings, considering what the greatest use they make of assembling of Parliaments, which is the supply of money, I do not see any likelihood to hope for often meetings in that kind, because they would provide themselves by that other means. And thus much for my first reason grounded upon the natural constitution of the Policy of our Kingdom, and the public Right of our Nation. 2. For the point of Common Law, Com. Law. which is my second reason, it hath been well debated, and nothing left unspoken that can be said in it; and therefore I will decline to speak of that, which other men have well discussed, and the rather, for that there is nothing in our Law-book directly, and in point of this matter; neither is the word (imposition) found in them, Diec. 1. E. 165. until the case in my L. Dier. 1. Eliz. 165. for we shall find this business of an higher strain, and always handled elsewhere, as afterwards shall appear: yet I will offer some Answers to such Objections as have been made on the contrary in point of Common Law, and have not been much stood upon by others to be answered. The Objections that have been made are these; That from the first Book of the Law to the last, no man ever read any thing against the King's power of imposing: No Judgement was ever given against it, in any of the King's Courts at Westminster: Other points of Prerogative as high as this, disputed and debated, his excess in them limited, as in the book of 42. Ass. pl. 5. 42. Aff. p. 9 where the Judges took away a Commission from one that had power given by it to him under the great Seal, to take one's person, and to seize his goods before he was indicted: So Master Scrogs case. 1, & 2 E. Dier. 175 1. & 2. El Dier. 175 the power of the King in making a Commission to determine a question of right, depending between two parties notably debated, and ruled against the King, that he could not grant it. To this I answer, That cases of this nature (of which the question now handled is) have ever been taken to be of that extraordinary consequence, in point of the Common right of the whole Kingdom, that the States would never trust any of the Courts of ordinary Justice with the deciding of them; but assumed the cognisance of them unto the high Court of Parliament, as the fittest place to decide matters so much concerning the whole body of the Kingdom, as 2. Ed. 3.7. it appears that Ed. 1. had granted a Charter to the men of Great Yarmouth, that all the ships of Merchants, coming to the Port of Yarmouth, should land their goods at their Haven, and not at any other Haven at that Port, as at Garneston, and Little Yarmouth, which were members of that Port. This was very inconvenient for the Merchants, and a great hurt to Traffic, and therefore the Charter was questioned in the time of Ed. 2. and adjudged good by the Council: But the parties not contented with this judgement, in the second year of King E. 3. by an order in Parliament made upon a Petition there exhibited against this Grant, brought a Scire facias out of the Chancery returnable in the King's Bench, to question again the lawfulness of the Patent, and in that Suit the cause was notably debated, and those Reasons much insisted upon that have been enforced in this case; as that of the King's power in the custody of the Ports: But the matter so depending in the ordinary Court of Justice, a Writ came out of the Parliament, and did adjourn it thither again; where it gave occasion of a good Law to be made to prevent the like Grants, and to make them void notwithstanding any Judgement given upon them, and to make such Judgements also void. The Statute is, 9: E. 3. c. 1. And in the Parliament Rolls, 9 E. 3. c. 1. Every Alien and Denizen may carry his Merchandise where it pleaseth him, notwithstanding any Charter granted, or Judgement thereupon. 16, & 17. R. 2. 2 H. 4. num 109. we find a notable Record, which gives warrant for the proceeding in Parliament, in this manner as hath been in this Case, notwithstanding the Judgement in the Exchequer, and declares to the Kingdom, that notwithstanding the great wonder made by some men, nothing hath been done in this business by those that serve in the Parliament, but in imitation of their worthy Predecessors in the like case. In the second year of H. 4. the Commons show that in the time of R. 2. by the means of John Waltham, Bishop of Salisbury, Treasurer of England wrongfully, without authority of Parliament, and by reason of a Judgemet given in the Exchequer, 16 & 17. R. 2. by the Barons there, against certain Merchants of Bristol, and other places, passage had been taken for Wines otherwise then in ancient times had been, and therefore they prayed, they might pay their prize Wines in the manner they had used to pay, notwithstanding any Judgement given in the Exchequer, or other Ordinance made by the said Treasurer, contrary to the ancient usage; which Petition the King granted, and the Judgement thereupon became void, and the prisage Wine hath been paid contrary to the Judgement ever since. In 1. El. Dier. 165. upon the complaint, 1. El. Dier. 265. made by the Merchants, of the impositions set upon Cloth by Queen Mary by her absolute power▪ without assent of Parliament; The Cause was thought too weighty to be decided in any one Court; but (as it appeareth in the Book) it was referred to all the Judges of England, who divers times had conference about it. So it may well be, there is nothing against it in our year books, for there is nothing of it. Another Objection was this, which was made in the last argument, viz. That Custom is originally due by the Common Law of England; it can then have no other ground or cause, but merely by the King's royal Prerogative, as a right and duty originally belonging to his Crown: which if it be, it must necessarily follow he may impose, for that is but the exercising of that right. To prove this was alleged the case 39 E. 3.13. by which case it appeareth, 39 E. 3.13. that King John had a Custom of eight pence on a Tun of Wine in the Port of Southampton, but the Book doth not tell you that the King had it by prerogative, and he might have it as well otherwise; as by prescription, or convention, which shall rather be intended, by reason of the certainty of the sum paid; for if it were by prerogative, he might take sometimes more, sometimes less at his will, the right being indefinite, and the quantity limited only by his own discretion. A common person may have such a custom certain, as 18. El. Dier. 352. The Mayor of London hath the twentieth part of Salt brought into the City by Aliens, 18 El. Dier. 352 which is a great Imposition, but is good by prescription originally, and that received greater strength since, by Acts of Parliament made for the confirmation of the Liberties and Customs of the City of London. So it appeareth that John of Britain had Custom of the ships that arrived at his Port of Little Yarmouth, Dier. 43. worth twenty pounds per annum. And these instances do inefer, that a Custom may be otherwise then by prerogative, and therefore it is no good argument to conclude, the King had such a custom, Therefore he had it by Prerogative. The Book in 30. H. 8. Dier. 43. 30 Hen. 8. Dier. 43. was much pressed on this point, which saith that Custom belonged to the King at Common Law, and doth instance in Wool, Wooll-fells, and Leather begun at the Common Law, but abridged by the Statute of 14 E. 3. ca 21. stat. 1. 14 Ed. 3. c. 21. stat. but this appeareth to be a great error, and mistaking in the Book; for we do find that that Custom of Wools, Wooll-fells and Leather was begun by a Grant in Parliament, as appeareth in Statute 15 E. 1. cap. 7. The words be granted to us by the Commonalty aforesaid; and the last mention before was that the King had granted to the Bishops, Earls, Barons, and all the Commonalty of the Land, etc. Novemb. 3. Ed. 1. The King recited in his Letter Patents, That Prelati, magnates ac tota communitas mercatorum Regni, granted this new Custom. And so the ground and motive of that opinion being false, all grounded upon that must needs be erroneous. It was objected, That the King holdeth at this day the increase of four pence in the pound, over due Custom, paid by Merchant's Aliens according to the purport of the Charta mercatoria 31 E. 1. by mere right of Prerogative at the Common Law; Rot. char. 31. E. 1. num. 42. in Turri. for by that Grant of the Merchants he cannot hold it, they being no Body Politic at the time of the Grant; and therefore the Grant is merely void to bind in succession, and yet the Merchant's Aliens do pay it at this day. It is agreed, That by the Common Law a contract with a number not incorporate, bindeth not succession; but we must take notice, that they by whom that Grant was made, of the augmentation of Custom, by three pence in the pound, and other increases, 31. E. 1. were Merchants Aliens, who by the Law of Merchants, and Nations may contract to bind their successors in matters of Traffic: For their contracts are not ruled by the Common Law of the Land, but by the Law of Nations, & per legem Mercatoriam. as the Book case is, 3. Ed. 4.10. and there was a good consideration given them by the King for this increase of Custom: as discharge of prize Wines for two shillings the Tun, and other Immunities, which all Merchants Aliens hold and enjoy at this day, by force of that contract made, 21 E. 1. For a stranger payeth now but two shillings the Tun for prisage, whereas it standeth an Englishman in much more; so as the rule of commutative Justice maketh the contract available to the King against the Merchants, because he parteth with part of his prisage to the Merchant, and maketh it available to the Merchant against the King, because he giveth him increase of Custom above that is due by Law. But the Statute of 27 E. 3. cap. 26. heretofore cited doth make this point clear without scruple, 27 E. 3. cap. 26. which confirmeth the Charter of 31. E. 1. entirely, and by that the increase of Custom by three pence in the pound, which is by name mentioned in the Statute, is now due by Act of Parliament. If you will have the King hold this increase of Custom by Prerogative, you go directly against his meaning; for it appeareth by that which presently followed this Grant, that the King took this increase of Custom by way of contract only, and not by way of Prerogative; for the same year following he directeth his Writs to the Officers of his Ports reciting the contract made with the Aliens by Charta Mercatoria, adding further that some Denizens were willing to pay the like Custom, upon the same Immunities to them to be granted, and cloth assign his Officers to gather it, but with this clause, Si gratanter & absque coertion● solvere voluerint, ita quod aliquem Mercatorem de regno & potestate nostrâ ad prastationes & custumas hujusmodi invite solvendas nullatenùs distringatis. Nothing can more plainly express, that the King's intention was not to demand this by way of Prerogative, but by force of the contract. If there were such a Prerogative in the Crown, as of right to have Custom, how cometh it to pass this Prerogative never yet had fruit or effect? for this I can maintain, That the King of England hath not one penny Custom or Imposition upon Merchandizes, elder than the fourth year of Queen Mary; that he holdeth not by Act of Parliament, and by the people's grant: The eldest that he hath is that of Wools, Wooll-fells and Leather, and that is by Act of Parliament, as appeareth in the Statute 25 E. 1. cap. 7. the Tonnage and Poundage by Parliament in the first year of every King's reign. 25 E. 1. cap. 7. The Aliens increase of Custom by Parliament 27 E. 3 cap. 26. 27. E. 3. cap 26. Then this Prerogative hath been much neglected, that it was never called on to be put in execution, until now of late years. Concerning the Statutes made for restraining our Kings, Statute 3 from the exercise of this pretended Prerogative, which is the third matter I stand upon: Those that have maintained the King's Prerogative in this point, have endeavoured to interpret those Statutes, to extend only to restrain him from imposing upon Wool, Wooll-fells, and Leather, which are staple commodities: And the reason they give for this restraint more than for other goods, is because the King, by Statute, is restrained to a Custom certain for those commodities, as the half Mark a Sack of Wool, and half a Mark three hundred Wooll-fells and thirteen shillings four pence a Last of Leather; and therefore great reason he should not exceed this Custom in these Commodities. This Objection receiveth many Answers: First it appeareth both by the express letter of divers of the Laws made in this point, by the occasion that induced the making of the Laws, and by the execution of them, that all other Wares and Merchandises, as well as those of the staple, were within the purpose and intent of those Laws: Secondly. The reason alleged why there should be restraint for the staple Commodities, rather than for the other, is mistaken; for the Lords and Commons did grant to E. 1. by Act of Parliament the custom of the half Mark for Wool, Woollfels, and Leather, which was matter of mere grace and liberality, and includeth no restraint in it, but rather a favourable extension, quite contrary to the sense of the Objection; according to that rule of interpretation, Gratiosa ampliari decet, odiosa restringi. And admit some Laws be made expressly to restrain impositions upon Wool, Wooll-fells, and Leather, by reason that the occasion of making such Laws was the actual imposing, upon those goods at that time, shall we not by good construction, Secundum mentem extensivam legis, extend this Law to other Wares and Merchandizes that are within the same mischief? If we look to the reason of the Law, we shall make no doubt of it; for that is because the impositions were without assent of Parliament, not because they were upon such, and such Commodities. Besides those Laws so made are declarativae juris antiqui, non introductivae novi. In the enumeration of those Statutes, which I conceive make directly to this purpose, I will endeavour rather to answer the Objections made against them, then to enforce the sense and meaning of them, which is very plain and open, and needs no interpretation. The first Statute enforced is, Mag. Charta cap 30. made in the ninth year of H. 3. by which it is enacted, that all Merchants shall have free egress and regress, out of, and into this Realm, with their goods and merchandizes, to buy, and sell, sine omnibus malis tolnetis per antiquas & rectas consuetudines: In which words we may infer, that both the use and right of imposing are absolutely excluded, and debarred; for Consuetudo, which in this case is to be taken for Usage, which is mos (not improperly for. Porterium, a duty paid in money, as our English word Custom, in one sense doth signify) implieth a beginning, and continuance by consent, and will of the parties, not by power and enforcement, which cannot be a Custom; and therefore it cannot be an Imposition: for that ariseth merely out of the will and power of their imposer, and is against the will of him upon whose goods it is set: But take Consuetudo either for Mos or Portorium, the epithets with which it is qualified, antiquum, and rectum, do describe it to be of that nature, that it cannot be an Imposition: for antiquum, in legal construction, is that which is time out of mind, that is not an Imposition: for then by continuance of time it should grow a right by prescription, and were justifiable: Rectum implieth a limited right. which inferred) there may be a wrong, and exceeding of that right which is not in impositions: for if there be a right in the King to impose, the quantity, time, and other circumstances are in his discretion; the right is illimited: And if he set on never so great an Imposition, there is as much right in it, as if it be never so small: the excess maketh it a burden, but not a wrong. We may further observe, that in the Statute, Malum tolnetum, which is evil Toll, is set down by way of antithesis to antiqua, and recta consuetudo; by which is inferred, that exactions upon Wares and Merchandizes, not qualified with these two properties of antiquum and rectum, are evil and unjust. This is made more evident by a Record in the Tower of the sixteenth year of H. 3. which was a Mandate sent by the King to the Customers of his Ports for the execution of this Law made in 9 H. 3. whereby it is commanded, Rot. clau● 16. H. 3● ma●. Quod omnibus Mercatoribus in portum suum venientibus cum vinis, & aliis merchandizis, scire faciant, quod saluò & securè in terram Angliae veniant cum vinis & merchandizis suis, faciendo: inde rectas & dubitas consuetudines, nec sibi timeant de malis tolnetis, quae iis faciat Rex, vel in terra sua fieri permittat, By this record the word Consutudo is interpreted to be mos, not portorium; otherwise it should have been solvendo consuetudines, not faciendo. Also these words antiquum & rectum in the Statute in this Writ are rectum & debitum, which doth more enforce a certainty of right and duty, which by no means can be intended in impositions. Objections against this Law were made in the last Argument. First, That it was made for Aliens: This is true; the words of the Law do plainly show it was made for Aliens: But if the State was so careful to provide for them, shall we not judge that with Denizens it was so already? And that this Statute was made to extend that liberty by Act of Parliament to Aliens, which Denizens had by the Common Law, succeeding times did so conceive of it, as appeareth by the Statute of 2. E. 3. cap. 9 the words are, 2. E. 3. cap. 9 that all Merchants, Strangers and Princes may go and come with their merchandizes in England after the tenor of the great Charter, and that Writs be thereupon sent to all the Sheriffs in England, and to Mayors and Bailiffs of good Towns, where need shall require. A second Objection was made in the last Argument, out of these words of the Statute of M. Char. that Merchants might freely traffic, nisi publicè antea prohibiti fuerint: by which was enforced, that the King had power to restrain and prohibit Traffic; therefore to impose. It is agreed, there may be a public restraint of traffic upon respects of the common good of the Kingdom; but whether that which is called publica prohibitio in the Statute, be intended by the King alone, or by Act of Parliament, is a question: For such restraints have still been by Parliament. But admit the King may make a restraint of traffic in part for some public respect of the Commonwealth, he doth this in point of protection, as trusted by the Commonwealth, to do that which is for the public good of the Kingdom; but if he use this trust to make a gain and benefit by imposing, that is a breach or the trust, and a sale of government and protection. But more of this shall be hereafter spoken in the answering of the main Objections. The next Law is that notable Statute of E. in the 25 year of his reign, made upon the very point in question; 25. E. 1. cap. 7. the words are these And forasmuch as he most part of the Commonalty of this Realm find themselves sore grieved with the male toll of Wools, that is, to wit, a toll of forty shillings for every sack of Wool, and have petitioned to us for to release the same; We at their request have clearly released it, and have granted for us and our Heirs, that we shall not take such things, without their common consent and good will, saving to us and our Heirs the Customs of Wools, Skins, and Leather granted before by the Commonalty aforesaid. Against the application of this Law, to the question now in hand, many Objections were made; some out of matter precedent to the Law, some out of the Law itself, some out of matter subsequent and following after the Law: For matter precedent; It was objected out of Thomas Walsingham, Tho. Walsingham in E. 1. fo. 71, 72, 73. edit. per W. Camb. impres. Francof. 1603. an Historiographer of good credit, that writ of that time when the Statute was made, That in the Petition of grievances given to King E. 1. by the people in the 25 year of his reign, upon which petition the Statute was made, that they found themselves not grieved in point of right, but in point of excess; the words are, Communitas sentit se gravatam de vectigali lanarum, quod nimis est onerosum. viz. de quolibet sacco 40 s. & de lanâ fractâ septem marcas; so they express the cause of their grief, that it was too heavy; which is to be applied to the point of excess, not of right. To this I answer, that if the words had been (quia est nimis onerosum) this construction might have been made out of them; because the word (quia) had induced a declaration of the cause of that which was formerly affirmed: but the words are (quod nimis onerosum) which doth only positively affirm that the imposition, de facto, was intolerable for the greatness of it, which doth not therefore admit that it is tolerable, in respect of the right the King had to impose. But this is made clear by the general word precedent in the preamble of the Petition, which doth evidently infer, they grounded their complaint upon point of right, not upon point of excess; the words are these, Tota terrae communitas sentit se valdè gravatam, quia non tractantur secundum leges & consuetudines terrae, secundum quas tractari antecessores sui solebant habere. seà voluntariè excluduntur. After which preamble, among the particulars, this of fort; shillings upon a sack of Wool is ranked, but with a dependency of that expressed in the preamble, for the point of right. But seeing we light upon History, which though it be of small authority in a Law argument, yet being the History of our own Realm, hath fit and proper use in the common counsel of the Realm, I will pursue it a little further. Matth Westm. so. 430. Edit. per H. Savile mil. Francofurti 1601. Out of Matth. Westm. a Writer that lived much nearer the time of the Law made, than Thomas Walsingham, he saith, That the Commons by their petitions required, Ne Rex de caetero tallagia usurparet, & voluntarias super his inductas exactiones de caetero quasi in irritum revocaret; by which it appeareth, that the point of the complaint was, that the exactions laid on them were voluntary, that is, at the Kings will, without assent of Parliament. Out of the Law it, self it hath much been pressed, as first the Commons made petition to the King, whereupon they infer out of the nature of the word (petition) that their proceeding was by way of grievance, for the excess and inconvenience, as a matter of grace, not in course of justice for the wrong. To this I answer, That considering the quality of the parties to this action, it being between the King and the Subject, duty and good manners doth induce gentleness and humility of terms, without blemish or diminution of the force of right. It is according to the demeanour of Job, cap. 9 v. 15. Job. 9.15 Though I were just, yet would I not answer, but I would make supplication to my Judge. But in our forms of Law, be the right of the Subject never so clear, manifest, and acknowledged by all; yet if his own be detained from him by the King, he hath no other Writ or Action to recover, but a mere petition, Supplicat Celsitudini, etc. So as if the word Petition to the King infer defect of right in the Petitioner, there can be no case where the King can do the Subject wrong. A second Objection out of the body of the Law is, that the King doth release that imposition of forty shillings, which implieth a right settled in him. But to this I answer, That it is no necessary inference, wheresoever a release of right is: for it is used for claim only, or where possession was, though wrongful, and that in majorem securitatem, quia abundans cautela non nocet; but in this case, a Release was very expedient, and for some respect necessary, to extinguish a right the King had in this imposition against the Merchants themselves: For this imposition, though it were not set on by assent of Parliament, yet was it not set on by the King's absolute power; but was granted to him by the Merchants themselves who were to be charged with it: so the grievance was the violation of the right of the people, in setting it on without their assent in Parliament, not the damage that grew by it; for that did only touch the Merchants, who could not justly complain thereof, because it was their own act and grant. This appeareth by two notable Records, 22. E. 1. Origen. in Scac. Rem. Thes. the one 22. E. 1. A Writ to the Treasurer and Barons of the Exchequer in Ireland, to discharge the Merchants there of impositions on Wools; in which the King reciteth, Licet in subsidium Guerrae Regis pro recuperandâ terrâ Vasconià, mercatores gratanter concesserunt per biennium vel triennium, si tantum duravit Guerra, de sacco lanae, etc. The other Record is the Writ of publication, In 26. E. 1. mem. Scac. Rem. Thes. that in 26. E. 1. went out after the Statute of 25. in which Writ the King reciteth thus, Cum nos ad instantiam Communitatis Regni nostri remiserimus custumam 40 s. nobis nuper in subsidium Guerrae noctrae contra Regem Franciae concessum. etc. A third Objection made out of the body of the Statute, by those which have argued on the contrary part, was upon these words, that the King would take (no such things) without common consent; by which words they conceived the intention of the Law was limited precisely to impositions set upon Wool, and not on other commodities, which are not such things, but other: and for this they allege this reason. That it was not probable when the complaint was only for an imposition on Wool, that the King would give a remedy for other things not spoken of, for which there was no cause of complaint. To this a full answer is given many ways: First, out of the (Saving) in the Act, which extends to other things then to Wool, as to Wooll-fells and Leather; therefore the purview of the Act by these words (such things) extendeth to more than the Wool; for there needs no saving; but for that which is contained in the purview. Secondly, The reason alleged, that no more by likelihood should be remedied but for Wool, because only that was complained of, is false: For the complaint of the Commons was not only for this imposition on Wool, but divers other burdens and grievances of the like nature. And this will appear if we compare all the parts of the Law, the one with the other: For this Law is in the form of a Charter written in French, and beginneth, Edward by the Grace of God, etc. and is an entire grant, and Instrument without Fractions, Sections, and Chapters, as it is now printed, and containeth in it, next before this last clause concerning the impositions on Wools, which in the printed Book is Cap. 6. That the King, for no business from thenceforth, will take no manner of aids, mises, nor prizes, but by common assent. This word (mises) in French signifieth properly impositions, derived of the word mitto, in Latin (too put) so the word (such things) is a conclusion to all the premises, and hath relation not only to that which is made, Cap. 7. by the Printer, and concerneth the male toll of Wools; but to that precedent which is (all other aids) impositions, and take. The Writ of publication of this Statute sent out to all parts in 26. E. 1. Mem. Scac. in 26. E. 1. Rem. Thes. maketh plain this construction; the words of it are, Concedentes quod custumam illam vel aliam, sine voluntate vel communi assensu non capiamus: These words (vel aliam) are indefinite, and extend to any other whatsoever, besides that of Wools. The Writ doth further discharge Merchants for the commodities of Wooll-fells and Leather, which are not complained of by name in the Statute; and therefore the Law was intended to other impositions as well as to those upon Wools. The Objedion made out of matter subsequent to the Statute was this, that notwithstanding this Law of 25 E. 1. impositions that before the Statute had been set on other Merchandise than Wools, were still answered after the Statute; and for instance of this, was alleged, 16. E. 1. Orig. R. Thes. that whereas 16. E. 1. an imposition of 40 s. the Tun was set upon Wines brought into the Kingdom, an account was made of this in the Exchequer in 26 E. 1. as by the Records there appeareth; by which it seemeth that the Law of 25. E. 1 was not taken to extend to Wines, and such other Commodities, other than Wools named in the Statute It is true, such an imposition was se● on by E. 1. in the sixteenth year of his reign, 25, & 26 E. 1. de count. T. Mich. R. Thes. and an account made for it 25 and 26. But it appeareth by the Record of the account, that it was made for the time ended before the Statute made▪ As from the eighteenth of May, 16 E 1. to 23 Jul. 22. E. 1. But there is no Record, that ever any account was made for any money received for that imposition for the time after the Statute made; neither was it very willingly answered before; for it appeareth by the Record that it was ten years after the setting of it. The third Statute alleged on the behalf of the Subject is that 34. E. 1. c. 1. the words are these, 34. E. 1. cap. 1. No tallage or aid shall be taken or levied by us, or our heirs in our Realm, without the good will and assent of our Archbishops, Bishops, Earls, Barons, Knights, Burgesses, and other freemen of the Land. Against this was objected, That this Statute was intended only upon the Taxes and impositions of things; The word Auxilium makes it clear, that it is to be intended further than of things within the Realm; for Tallagium is commonly intended of Domestical Taxes, but Auxilium is the most usual term for impositions upon goods imported and exported, as by the Acts of Parliament by which such impositions are given to the King in which they are called most commonly by the name of Aids, as proceeding of good will and benevolence. The fourth Statute alleged on this part is that of 5. E. 2. c. 14. just in point of the matter in question; 5. E. 2. cap. 14. Rot. Ordin. and therefore I will set it down as I find it Verbatim in the Record in the Tower, Ens●ment novelles customes sont levies, & ancients enhaunces come sur levies drapes, vine, aver du pois, & aut choses purquoy les Merchantes veynont pluis vilement, & meynes de bien, menynent en la terre, & les Merchants estrangers demurront pluis longment que ils sol●yent fair, pur le quel d●moure le choses sont le pluis enhaunces' que ils ne soloye●t estre, all damage de roy, & de son people. Nous ordo●omus que tout manners de male tolls levies puies de Coronement de Roy Ed. fair de Roy Henry soyent entirement oustes, & de tout estreints put tout jours, nient contristeant le Chartre que le dict Roy Ed fist un Merchant's aliens, pur ceo que il fuit fait contra le grand Char. & enc●untre le Franchise de la City de Londres, & sans assent de Baronage, etc. Savant neque dont al Roy le custome de leynes, peulx, & de quirs, etc. si aver les do't. By this Law is recited That by the levying of new Customs, and by the raising of old, Traffic was destroyed, and all things made dear; And therefore all new Impositions and Customs were discharged Chariâ Mercatoriâ, by which Custom that was increased on Aliens, was taken away, and the reason alleged; Because it was sans assent de Baronage, and against the great Charter. And this is further with this clause, Saving to the King his Custom of Wool, Wooll-fells and Leather, Si aver les do't. Great wars have been raised against the credit of this Law in the Parliament House, and Three things have been especially objected against it: First, That it is no Law; for it was enforced upon the King, by some of the Nobility that were too strong for him, the Realm being then in tumult and mutiny about the quarrel of Peirce of Gaveston, so never had the King's free consent; but he gave way unto it for fear of greater mischief. Secondly, That in itself it is unjust, as in taking away the Custom granted to the King by Charta Mercatoria, 31. E. 1. and in making doubt whether the King should have the Custom of Wools, etc. by those words, Saving it to him, Si av●r los do't. The third Objection is, That if it were a Law, it is repealed. To these I give particular Answers. To the first: That this Statute was made both at the instance of the King and people with a purpose and intention on all parts to settle things in a stay and order both in the King's house and Commonwealth; the King and his Nobles standing in good terms, when this business was taken in hand; and it was begun and ended with great solemnity and ceremony: For the King is the third year of his reign gave Commission under his Great Seal to 32. Lords spiritual and temporal; Com. 16. Mar. 3. E. 2. Rot. ordin. 5 E. 2. ; of which there were eleven Bishops eight Earls and thirteen Barons; they being as Committees of the higher House to devise Ordinances for the good government of his house and his Realm. In which Commission he doth for the honour of Gods, the good of him, and of his Realm, of his freewill grant to the Prelates, Earls, and Barons, and others elected by the whole Kingdom, full power to ordain the State of his house and Realm by such Ordinances as by them should be made, to the honour of God, the honour and profit of holy Church, the honour of himself, the profit of him and his people, according to right and reason, and the oath he made at his Coronation. These joining with others of discreet Commons in Parliament, and taking every of them a solemn oath for their sincere demeanour in the business, did make this and other Ordinances, which were so well liked of by the King, that after they were made, he took an oath to observe them, and caused them to be published in Paul's Churchyard by the Bishop of Salisbury, by denouncing Excommunication against all that should wilfully infringe them: Pullic. 3. Kal. Oct. 5. E. 2. R t. ord. Pat. 5. Oct. 5. E. 2. Rot. ordin. And by his Letters Patents dated 5. Oct 5. regni sui. did send them through the Realm to be published, and from thenceforth to be observed, thereby signifying his great liking and approbation of them; after which they had the force and power of Laws given unto them in the Parliament, in the fifth year of his reign. The second Objection, which is the injustness of the Law, instanced in two points; The taking away of Charta Mercatoria, and the doubting of the King's right to the Custom of Wooll-fells, and Leather, &. To the first of these, I deny it to be unjust, but to be according to the Law of England, and liberty of the Kingdom: for that Charter did contain in it divers grants of things which were not in the power of the King to grant without assent of Parliament; the trial per medietatem linguae, and other things tending to the alteration of the Law, and burdening of the people; and therefore that Charter never had his undoubted and settled force, until it was confirmed by Act of Parliament, but lay asleep almost twenty years together, without being put in execution, between 5, E. 2. and 27. E. 3. when it was confirmed; for the doubt that is supposed to he made in the Statute of the King's right to the Custom of Wool, Wooll-fells and Leather, I take it, there is no such doubt made: For the words (Saving the King's right to the Custom of Wools, si aver les do't) have this construction, that is, at such times as he ought to have it: so the word (si) bathe the signification of (quando) for it had been a folly to have made a Saving of that, of the right whereof they had doubted, neither is it likely but that they would have taken it away, if it had not been lawful; but there was no colour to doubt of the right of it, for it was given by Act of Parliament, and ever continued in force without challenge or exceptions to the lawfulness of it. The third Objection is, That this Statute is repealed: To this I plead, Nullum valet recordum. If it be repealed, it must be by Act of Parliament, for unum quodque dissolvitur iisdem modis quibus est colligatum: I and others have searched the Records of the Realm, and endervoured by all means to inform ourselves of the truth herein, & we can find no Act of Parliament of repeal: The truth is, some Kings finding these Laws not to sort to their wills and humours, have endeavoured to suppress them, but they did never yet obtain a repeal of them by Act of Parliament. But it is further urged, That although there were no formal repeal of the Law, yet it was never put in execution as a Law, but even presently upon the making was rejected, and use and practice went quite against is: and for instance hereof, a Record was vouched that E. 2 held himself so little bound by it, as that in the 11. year of his reign he set an Imposition without assent of Parliament upon Wool, Wooll-fells, Leather, Wines, Cloth. Aver de pois, and divers other kind of Merchandizes. To this I answer, that if it were true, that a distinct and impotent King, as he was, did contrary to the Law, doth this make the Law void, and no Law? But if we look into the whole Record, and scan this action of E. 2. from the beginning of it unto the end, we shall find it a very good instance to prove the practice and execution both of this Law of 5. E. 2: and of that in 25. E 1. for it is true that E. 2. in the eleventh year of his reign did borrow of the Merchants a certain sum of money above the due Custom of Wools, Wooll-fells, Wine, Averdepois, Leather, and such other goods imported and exported; but it appeareth by the Record, he took it but for one year; he took it by the advice and counsel of the Merchants, and he took it per viam mutui, as a loan. Rot. Claus. 11. E. 2. The direction of the Writ is, Collectoribus mutui nobis per mercaetores alienigenas & indigenas de certis rebus & Merchandisis usque ad certum tempus faciendi. This was done in good terms, he did not claim it as his right, but did borrow it, which I do think is a good evidence against his right: But what became of this? the State would not abide it, for all these fair shows. And therefore afterwards the King sendeth out other Writs by which he dischargeth all Merchandizes of this Loan, saving only Wool, Wooll-fells, and Leather; and for the Loan taken upon those Commodities, it was limited to continue but until Michaelmas after, and good security was given to the Merchants by the Customers to pay themselves by way of defalcation out of the Customs which should be due after Machaelmas, those sums which were so borrowed of them. The words of the Record are worth the observing, Rot. fintum 11. E. 2. Cum pro expeditione guerrae Scotiae, & aliis arduis & urgentibus necessitatibus nobis multipliciter incumbentibus, pro quarum exoneratione quasi infinitam pecuniam refundere oportebit, pecunia plurimum indigeamus in praesenti, & nuper pro eo quod exitus regni & terrarum nostrarum simul cum pecunia nobis in subventione praemissorum tam per Clerum quam Communitatem regni nostri concessa ad sumptus pradictos cum f●stinatione qua expediret faciendos, non sufficiunt, exquirentes vias & modos quibus possemus pecuniam habere commodius & decentius pro praemissis, de consilio & advisamento quorundam mercatorum tam alienigenarum quam indigenarum viam invenimus infra script. viz. And so setteth down the manner of the loan, and the security for the payment of it: This (I take it) was neither an Imposition nor a wrong in any respect. Also by the first Record it appeareth, that the Loan set on Wines, Averdepois, and such other Commodities, besides Wool, Wollfells and Leather, were presently discharged by E 2. which showeth they were taken to be within the intent of the Statute of 25 E. 1. The fifth Statute alleged on the behalf of the Subject is that 14. E. 3. Stat 1. c. 21. by which the Commons pray the King to take no more than the old Custom of the half Mark. 14. E. 3. Stat. 1. cap. 21. The King prayeth aid of the Commons for a time above the Custom upon his necessity of Wars: And the conclusion is, that by that Act the King doth grant that after the Feast of Pentecost, twelve months following, he will take no more of Wools, Wooll-fells and Leather, but the old Custom, and doth promise to charge, set, or assess upon the Custom but in manner as aforesaid. The sixth Statute is 14. E. 3. Stat 2. cap 1. 14. E. 3. stat. 2. c. 1 The King doth grant by way of Charter to the Prelates, Earls, Barons, Commons, Citizens, Burgesses and Merchants, that they be not from henceforth charged nor grieved to make any aid or sustain charge, if it be not by the common consent of the Prelates, Earls, Barons, and other great men, and Commons of the Realm, and that in Parliament. These two Statutes grew upon an occasion of an Imposition set on Wool by the King without assent of Parliament: Little hath been objected against them, but only to the first, that it was obtained of grace, and not upon instance of right, which they gather out of the words of the Law, which are, The Commons pray the King that he would establish, that from henceforth no more than the old Custom be taken. The like reason may be made against the King out of the same words in the same Law: for the King in the same Act prayeth the Commons to give him an Imposition upon Wools for a time above the old Custom: but the Record of the Petitions exhibited in Parliament▪ on which these two Laws are made, cleareth the objection. The first was delivered by the Lords in this form, Rot. Par. 13. E. 3. num. 5. Les grands volunt, that the male toll set on Wools newly, be altogether abated, and that the old Custom be held, and that they may have this in point of Charter, and by inrolment in Parliament. This word (volunt) had been too high for a suit of grace, and therefore must be intended of right. The Commons Petition in form is somewhat humble, but in effect and purpose is rough and stern: The words are these, Rot. Par. 13. E. 3. num. 13. The Commons pray that the male toll of Wools be taken as it was used in ancient time, which is now enhanced without the assent of the Commons, and (grand●s) as we conceive, and that if it be otherwise demanded, that every one of the Commons may arrest them without being challenged. According to these Petitions, the first of these two Laws is by inrolment in Parliament: the second is in form of a Charter; the first doth express some special commodities: The second doth reach generally at all. The seventh Law directly touching this point, 13. E. 3. stat. 2.6.2 is that 14. E. 3. Stat. 2. cap. 1. The King doth grant according to the Great Charter, that all Merchants, Deniznes and foreigners may without let safely come into the Realm of England with their goods and Merchandizes, and safely tarry, and safely return, paying the Subsides, Customs and other profits reasonably due. Upon the words of this Law, was great advantage taken, in this, that besides Custom and Subsidy, which comprehend all the certain and ordinary duties the King hath upon the wares and goods of Merchants, there are other profits spoken of to be due: These they affirm cannot be understood but of Impositions by the King without assent of Parliament. To this I answer; if they were not duties due to the King besides Custom and Subsidy, which might satisfy the intention of these words, this objection might have had some colour in it; but it is plain that besides these two, there are other profits due to the King upon Merchant's goods, as Scavage, Tonage, and the like. And you shall find a Petition in Parliament, Rot. Par. 50. E. 3. nu. 163. 50. E. 3. against the raising of these above the old rate. The eighth Law is, 15. E. 3. stat. 2. c. 5. E. 3. Stat. 2. cap. 5. whereby it is enacted that every Merchant may freely buy and sell, and pass the Sea with their Merchandizes of Wool and all other things, paying the Custom of old time used, according to the Statute made in the last Parliament in Midlent, which was the Stat. 14. E. 3. stat. 2. cap. 2. This Law doth expressly exclude the novelty of Impositions. The ninth Law is that 18. E. 3. stat. 1. ca 3. whereby it is enacted, 18 E. 3. stat. 1. c. 3 That the Sea be open to all manner of Merchants to pass with their Merchandizes where it shall please them The tenth is, 27. E. 3. stat. 2. c. 2. 27. E. 3. stat. 2, cap. 2 for the assurance of Merchants-strangers and other, the King doth will and grant for him and his Heirs, that nothing shall be taken over the due Customs, not taken of them to his use by colour of suit, or in other manner against their wills. The eleventh is, 38. E. 3. cap. 2. 38 E. 3. cap. 2. that all manner of Merchant's aliens and Denizens may buy and sell all manner of merchandizes, and freely carry them out of the Realm, paying the Customs and Subsidies thereof due. The last is 22. H 8. cap. 8. by which it was enacted that Tables should be set up in Ports, 22. H. 8. cap. 8. by which the certainty and very duty of every Custom, Toll, and Duty, or sum of money to be demanded and required of Wares and Merchandizes shall and may plainly appear and be declared, to the intent that nothing be exacted otherwise then in old time hath been used and accustomed. By this late Law it appeareth that the judgement of the whole Parliament was at that time. That nothing was due upon Wares and Merchandizes, but that which which was certain▪ and had been anciently due, by which Impositions are excluded, whose qualities are novelty and incertainty, as being set on as present occasion moveth, and proportioned for quantity and other circumstances, as the will of the King directeth. These are the Laws which I conceive most directly tend to the restraining the Kings of England from the exercise of that irregular power of imposing, at the first offered by them to be put in execution, yet not pressed as their right, and never practised but upon opposition of the whole State, and at last deserted and given over until of late; as by that which followeth in the fourth place will appear. My fourth and last assertion is, Custom 4 That this practice of imposing without assent of Parliament, is contra morem Majorum. In this I will make an historical perlustration of the times past, whereby I will discover and make known what passages have been in this business in this Kingdom, and especially the high Court of Parliament for the space of 300 years and more last past, since the beginning of the reign of E. 1 since which time, and not before, this Kingdom hath grown into the glory and reputation of foreign traffic. And as a worthy Gentleman of the King's learned Council, made certain considerations upon this question, framed and strengthened out of the greatness of his wit and reason: so I grounding myself upon the practice of former times, which is the safest rule whereby to square the right both of King and people in this Commonwealth, where their right is jus consuetudinarium, a right that groweth by use and practice, I will propose unto you certain observations out of the action and experience of former times until the reigns of the two late Queens▪ by which you may the better ground and frame your judgements in the determination of the right in this question. My first observation is in point of circumstance, that there never was any Imposition set, but in time of actual war, and duplicatis vexillis: they were set on very rarely and sparingly, but for a short rhyme, and that certain and definite, and upon some few commodities, and that by the assent of the Merchants that were to bear the burden. In our time the occasion not so sensible, the continuance to be perpetual, the number many hundreds, almost no kind of Commodity spared. I will give you some few Instances of these circumstances out of the Records themselves. The maletole of Wool set on by King ε. I. 22. E. 1. orig. Scace. Rent. Thes. which gave the occasion of the Stat. 25. year of his reign, was given by Merchants. The Record saith, Mercatores gratanter concesserunt in subsidium guerrae Regis. 22. E. 1. men. Scac. R. Thes. T. Mich. Rot. parl. 17. E. 3. nu 28. It further showeth, it was for his necessity of War, which then was great also. For the time of E. 3. there need not many instances; for his whole reign was almost an actual warfare; As in the sixth year of his reign for his war in Scotland and Ireland. In the thirteenth year of his reign for his war in France, several Impositions were sir on In the seventeenth year of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sack of Wool by the grant of Merchants, Rot. parl. 50. E. 3. nu. 18. and it was in the time of War. In the twentieth year of King E. 3. it appeareth in the Record, that the Imposition then put upon wools, was by the assent of Merchants for two years, for the necessity the King had in his passage ovet the sea, to recover his right, and to defend the Realm. My second observation is, Never any Imposition was set on by the King out of Parliament, but complaint was made of it in Parliament; and not one that ever stood after suck complaint made, but remedy was afforded for it; Et quod Rex inconsulio fecit, consulto revocavit. his Sovereign power controlled his subordinate. In which it is a thing very notable, that the King in no one Case ever claimed, or so much as ever named his right or prerogative, which no doubt would have been done, if it had been thought due, but gave satisfaction to the complaint by one of these three ways; Either by discharging them quite, and making some good Law against them. Secondly, by entreating the people to hold them some short time by their favour. Thirdly, by waving his present possession, and taking that of their gift by Act of Parliament, as an aid which he had set on by his absolute power as an Imposition. Instances of the first 25. E, 1. 25. E. 1. ca 7. the Impositions of Wools taken off, and a Law made against it, Rot. parl. 38. E. 3. n. 26. and the King undertook for him and his successors to do so no more: 38. E. 3. cap. 2. 38 E. 3. 26. the Imposition of three shillings four pence on a sack of Wool put off upon complaint, 45. E. 3. cap. 4. and a Law made against it, 18. E. 3. cap. 10. 11. R. 38 E. 3. ca 2. the like Statute 45 ε. 3. c. 4. upon a come plaint of an Imposition on Wools made in Parliament, 18. E. 3. cap. 3. l. 1 45. e. 3. n. 42. Rot. Parl. Instances of the second 21. E. 3. nu. 11 a petition upon an Imposition of 2. s. upon a sack of Weol, 21. E. 3. n. 11. R. Parl. 2. s upon a ton of Wine, 25. E. 3. n. 22. rot. Parl. and fix pence upon aver de pois, all discharged presently, saving the two shillings upon a sack of Wool, and for that entreated that it might stay till Easter following, and so it did, and was then taken away. Instance of the third. 25 E. 3 nu. 22 the Commons made petition against an imposition of forty shillings upon a sack of Wool granted to the King by the Merthants, showing that they ought not to be bound by their act. The King did not claim right or justice, but because his wars were great, upon his request had it granted unto him for two years by Act of Parliament, and pretended no title of Prerogative, neither was it ever spoken of. My third observation is that our Kings have acknowledged that it is not their right. Orig. in Scau. 31. E. 1. R. Thes. E. 1 in his Writs he sent to the Officers of his parts to levy three pence on the pound over the old custom, of the Denizens as well as of the Aliens, and to suffer the Denizens to enjoy those privileges the Aliens did enjoy by the payment of the increase of Custom, doth give this direction expressly. That they should net cake it of Denizens against their will. The words of the Record express it very fully, Cum mercatores extranei & alienigenae pro quibusdam libertatibus eis per nos concessis & priscis nostris quibuscunque remissis, nobis de bonis & merchandisis suis quibuscunque infra regnum & potestatem nostram adducend ulira antiquas custumus dare concesserint praestationes & custumas subscriptas viz and so setteth down the increases and amongst the rest this three pence upon the pound, and so proceedeth, Ac quidam mercatores de regno nostro & potestate nostra, ut ipsis dictis libertatibus & immunitatibus uti & gaudere, & quod de prisis nostris quieti esse possint, praestationes & custumas hujusmodi de bonis & merchandisis suis nobis solvere velint, ut accepimus; assignavimus vos. etc. ad custumas & praestationis praedictas de mercatoribus de regno & potestate nostra colligend. qui eas gratanter & sine coercione solvere voluerint. Ita tamen quod aliquem mercatorem de dicto regno & potestate nostra ad praestationes & custumas hujusmodi nobis invito solvend. nallatenus distringatis. Surely if E. I. had claimed the prerogative of imposing. he would never have given these cautions in the requiring of that which he had taken to be his due, as that they should not exact it of any of his subjects that were not willing to pay it, nor trouble nor distrain them for it. In the twelfth year of E. 3. we find the Record of certain letters written from the King being then at Barwick in the Stottish Wars, Rot. Alem. 12. E. 3. dorm. 21. in turr- unto the Archbishop of Canterbury, in which letters the King seemeth to have a great confidence in the devotion of the Archbishop, and therefore earnestly intreateth him to further his enterprises with his prayers to God, and then addeth further; Ad hoc pater, cum populus regni nostri variis oneribus, tallagiis & impositionibus bactenus praegravetur (quod dolenter referimus) sed inevitabili necessitate compulsi de eisdem oneribus ipsum aahus relevare non valemus dictum populum, ut tantam necessitatem nostram humiliter & benign patiatur & caritative sustineat, & priorem (quam penes nos concepit de cetere instanter in orationibus & eleemosynis suis, oneribus praedicts, quae non ex malitia vel presumptione voluntaria ipsum gravant, non obstantibus) exhibeant caritatem, indulgentiam muneribus & aliis modis, quibus secundum Deum videbitis piis exhortationibus inducatis, & nos pe●es eundem excusetis; speramus namque per Dei gratiam, cujus manus cunctis indigentibus sola sufficiens, & largistua come. probatur, beneficiis compensatius dictum populum visitare & consolari pro loco & tempore opportunis. The principal thing I note out of this Record upon the very point of this my third observation, is, that the King intending to excuse himself of the burdens by him laid on the people, and to avoid the blemish of wrong and injustice in saying thereon, saith they were not onera ex presumtione voluntaria, that is, burdens that he presumed to lay on at his own will, whereby he condemneth impositions without assent of Parliament, which are (onera ex voluntate Regis) to proceed of presumption, which doth clearly exclude claim of right, and disproveth the lawfulness of the Act. But there are divers other notable passages in the Record worthy our marking; As out of the word (praegravantur) used by the King we may gather he did account these Impositions a grievous. burden to his people, which showeth his own pity of them. He saith further, Dolentes r●ferimus, showing his grief and remorse at it, & inevitabili necessitate compulsi, he did it constrained by unavoidable necessity, showing he was forced to it against his will; by that which violateth and breaketh all law which inferreth, he would not maintain his action by law; Adhuc relevare non valemus; this insinuates, he would ease them in good time; caritatem exhiberent, they should afford him charity in the bearing of them, as if so be in point of justice or right they need not, Penes eundem excusetis, the Bishop should excuse him to the people. By this he did clearly leave the point of justification and so of right: lastly he promises he would visit and comfort them beneficiis compensativis, would give them recompense for those sums he had so raised of them; which showeth that he claimed them not as due, for than he needed not give recompense for them. In the one and twentieth year of E. 3. a petition was exhibited in Parliament, Rot. Parl 21. E. 3. n. 16. that Levies be not made by Commission (so they be in this case) nor other things laid upon the people unless they be granted in Parliament. The King's answer is, If any such impositions were made, it was by great necessity, and with assent of the Prelates, Barons▪ and some of the Commons present; yet he will not that such Impositions not duly made be drawn in consequent. Here the King acknowledgeth an Imposition not to be duly made, though with the consent of the Higher House, and some of the Commons, because it was not in full Parliament: much rather he would have thought so, if it had been by the King a loan. King E. 4. (that was a rough and warlike Prince, and was more beholding to his sword in the recovery of his right to the Crown then to the affection of the people) at a Parliament held the seventh year of his reign made a Speech to the Commons, Sir John Say being then Speaker, in which Speech is contained very notable matter, and very pertinent to our purpose; and because the Record is not in print, I will set down the King's Speech verbatim as it is entered upon the Parliament roll, Rot. parl. 7. E. 4. The Record gins, Memorandum quoth die veneris. 3. die Parl. and then I will make a paraphrase upon it; john Say, and ye Sirs come to this my Court of Parliament for the Commons of this my Realm; The cause why I have called and summoned this my present Parliament, is, that I purpose to live upon mine own, and not to charge my subjects but in great and urgent causes, concerning more the Weal of themselves, and also the defence of them and of this my Realm, rather than mine own pleasure, as heretofore by Commons of this Land hath been done, and borne unto my progenitors in time of need; wherein I trust that ye Sirs, and all the Commons of this my Land will be as tender and kind unto me in such cases as heretofore any Commons have been to any of my progenitors. And for the good will, kindness, and true hearts that ye have borne, continued, and shown to me at all times heretofore, I thank you as hearty as I can: also I trust ye will continue in time coming; for which by the grace of God I shall be to you as good and gracious a King, and reign as righteously upon you as ever did any of my progenitors upon Commons of this my Realm in days past, and shall also in time of need apply my person for the Weal and defence of you, and of this my Realm, not sparing my body nor life for any jeopardy that might happen to the same. Out of this we may observe first the King's Protestation to live of his own, and not to charge his subjects; by which I gather he did acknowledge a certain and distinct property of that which way his subjects from that which was his own, which excludeth the right to impose at his will; for if that be admitted, the subjects property is proprietas precari●●, not certain how much of his is his own: for that is his which the King will leave him; for there is no limit or restraint of the quantity, the right being admitted, but only the Kings will. The second thing I observe is this, that in charging of his subjects he would confine himself between these two bounds; the one, it should be in great and urgent causes concerning more the Weal of them, and the defence of them and his Realm, than his own pleasure▪ wherein he condemneth those occasions that grew upon excess of private expense by over great bounty, or otherwise, and admitteth only such as grow by reason of wars, or other such like public causes concerning the whole State: the other bound or limit is, that those burdens should be secundum morem majorum, as heretofore had been done and borne by the Commons to his ancestors in time of need. The third thing I observe is, that he acknowledged these burdens did proceed out of their good will and kindness, and not out of his right and prerogative; out of these words, that he trusted they would be as tender and kind to him in such cases as heretofore any Commons had been to his Progenitors: And lastly we may note the recompense promised by the King to his subjects, for their good wills and kindness, his goodness and grace, his just and righteous government; the jeopardy of his body and life for their Weal and defence▪ Did this King assume to himself a right to lay burdens on his subjects at his own will without their assents, that offered to buy them at his need with the price of his blood, the most sacred relic in the kingdom? My fourth observation is that in all petitions exhibited by the Commons in Parliament, against Impositions, the very knot of their grief and the principal cause of their complaint hath been expressed in those petitions, that the impositions have been without assent of Parliament: by which is necessarily inferred, that their grief was in point of right, not of burden. In 11. Rot. parl. 21. E. 3 nu. 11. E 3. nu: 11 the complaint of the Imposition of two shillings upon a sack of Wool, two shillings upon a Ton of Wine, six pence upon aver de pois, the cause of grievance expressed because it was done Sans assent de Commons. 25 E. 3. n. 22. R. Parl. 25, E. 3. n. 22. In a petition the Commons complain that an imposition upon Wools was set by the consent of the merchants; they pray that Commissions be not made upon such singular grants, if they be not in full Parliament; and if any such grants be made, they may he held as void. 17 E 3. n. 28. The Commons in their petition inform the King, R. Parl. 17. E. 3. n. 28 it is against reason they should be charged with impositions set on by assent of Merchants, and not in Parliament. My fifth observation is, that whensoever any petition was exhibited against impositions, there was never any respect had of the quantity, but they were ever entirely abated, as well where they were small, as where they were great; no request ever made to make them less when they were great, nor excuse made of their ease when they were exceeding small; which showeth that it was not the point of burden or excess was respected in their complaint, but the point of mere right. 25 E. 3. nu. 22. Forty shilling set an imposition upon a sack of Wool, R. Parl. 25. E. 3. nu. 22. upon complaint, all taken off, and no fuit to be eased of part because it was too great. 36. E. 3. nu. 26. Three shillings and four pence upon a sack of Wool, ibid. 38. E. 3 n. 26 21. E. 3. n. 11. all taken off, and no excuse made for the smallness; for 21 E 3. nu. 11 two shillings a sack two shillings tonnage, and six pence poundage. 50 E. 3. nu. 163. R. Parl. 25. E. 3. nu. 163. A great complaint was made in Parliament by the Commons that an imposition of a penny was set upon wools for Tonage over and above the ancient due which was but a penny, and so the subject was charged with two pence. Also that a penny was exacted for Mesonage, which was but an half penny; which Impositions the Record doth express did amount to an hundred pounds a year. This petty imposition was as much stood upon in point of right, as the other great one of forty shillings, and was taken off upon complaint in Parliament, without either justification or excuse for the smallness of it. My sixth observation is, that those which have advised the setting on of impositions without assent of Parliament, have been accused in Parliament forgiving that advice, as of a great offence in the State, and have suffered sharp censure and great disgrace by it. Neither do I find that the quality of the person hath extenuated the blame, as 50. E. 3 William L. Latimer Chamberlain to the King, and one of his private Council, was accused by the Commons in Parliament of divers deceits and extortions and misdeeds, and among other things, that he had procured to be set upon Wool▪ Wooll-fells and other Merchandizes, new Impositions, to wit; upon a sack of Wool eleven shillings; which the L. Latimer sought to excuse; because he had the consent and good liking of the Merchants first: But judgement was given against him that he should be committed to prison, be fined and ransomed at the Kings will, and be put from being of the Council; and this procuring of Impositions to be set on without assent of Parliament is expressly set down in the entry of the judgement for one of the causes of his censure. Richard Lions a Farmer of the Customs in London the same year was accused in Parliament for the same offence; Rot. Par. 50. E. 3. n. 17, 18.19, 20. he pleaded, he did it by the King's command, and had answered the money to the King's Chamber: Yet was condemned and adjudged in Parliament to be committed to Prison, and all his Lands and Goods were seized into the King's hand; and at the last the hate against these authors of Impositions grew so that 50. E. 3. in the same Parliament, an petition was exhibited in Parliament to make this a capital offence; The Record is very short, and therefore I will set it down verbatim. Item prie le dit Common que soit ordain per Statute en cest present Parliament de touts ceux queux ●y en avant mittont ou font pur lour singular profit novels Impositions per lour authority d●mes●n accrocheants all eux ●ny ul power de rien que soit establi en Parliament, sans assent de Parliament, que ils eyent judgement de vi● & member, & de forisfacture. To this rough Petition the King gave a mild and temperate Answer, Courre lafoy Common ley come estoit al avant use. My seventh Observation is, the cessation between 50. E. 3. after this censure in Parliament, and 4. Mariae almost two hundred years, during which time no King did attempt to impose without assent of Parliament: And yet we find in the Parliament Rolls, that there was not one of those Kings that reigned in that time, but had Impositions granted him upon fit occasion by Act of Parliament upon all Goods and Merchandizes, and at divers times during their reigns, sometimes more, sometimes less upon the Tun and pound, but ever for a time certain, and indefinite; so the use of them was not given over, but the power of imposing was so clearly and undoubtedly held to be in the Parliament, as no King went about to practise the contrary. But to this cessation that was of great weight and credit in our evidence, a colour was given by the other side to avert the inference made upon it, against the King's right, that is that during that time there was so great a Revenue grew to the Crown by double Custom paid for all Merchandizes both in England and at Calais, by reason of an Act of Parliament made 8. H 4. which was, that no goods should be carried out of the Realm but to Calais, and by reason that the Merchants paid Custom both there and here for the same goods, that in the seven and twentieth year of Henry the sixth, the Custom of Calais was 68000. pounds the year, a great sum, if you consider the weight of money then, what price it bare, and by reason hereof Princes not delighting to charge their murmuring Subjects but when need is, being so amply supplied otherwise, did not put that Prerogative in practice. To this I Answer, That if that were true that was urged, it might be some probable colour of the forbearance of imposing; but I find it quite contrary, and that by Record: For there was no such restraint of all Commodities not to be transported to any place but Gallis, but only Wools, Woolfells, Leather, Tinn, and Led that were staple Wares, which by the Statute, 37, E. 3. were to be transported thither, and not to any other place, and the staple continued at that place for the most part from that time until long after, 27. H. 6. but there was no double Custom paid both here and there by the same owner: Callais at those times were so far short of that which hath been alleged in 27. H. 6. that it appeareth in an Act of Parliament, 27. H. 6. cap. 2 printed in the book at large, 27. H. 6. cap. 2. That the Commons do complain, That whereas in the time of E. 3. the Custom of Callais was 68000 pounds per annum, at that time, which was 27. H. 6. by reason of the ill usage of Merchants, it was fallen to be but 12000 pounds the year; so then there was great cause in that respect to have set on Impositions by reason of that great abatement of Customs, and yet it was not then offered to be done without assent of Parliament. But if you look a little further into the extreme necessities of those times, you shall find there never was greater cause to have strained Prerogatives; for it appeareth in an Act of Parliament 28. H. 6. that it was then declared in Parliament by the Chancellor and Treasurer, who demanded relief of the people for the King, both for payment of his debts, and for his yearly livelioood, that the King was then indebted 372000. pounds, which now by the weight of money amounteth to above 1100000. pounds, and that his ordinary expenses were more than his yearly revenue by 19000. pounds yearly: so if ever there was cause to put a King to his shifts, it was then; yet we see they did not venture to put in practice this supposed Prerogative. It further appeareth in that Statute that the people among those reasons they alleged why they were not able to retain the King, gave this for one, that they had so often granted him Tonnage and Poundage upon Merchandizes, by which it appeareth he took nothing of Merchants by imposition without grant; for if he had, no doubt they would not have stuck to have put him in mind of it. But I pray consider what became of this motion of the Chancellor and Treasurer: The proposition had depended in Parliament many years; the effect was, the people entreated the King to resume all grants he had made from the beginning of his reign until that time, being the twenty eighth year of his reign, excepting such as were made upon consideration valuable, that he might so enable himself by that mean by which he had impoverished himself and the whole Kingdom: This took effect, and the Statute of Resumptions was thereupon made the same year, which Record because it is not in print, and declareth these things with great gravity and authority: I will set down the very Text of it, so much as is material to our purpose. Prayen your Commons in this your present Parliament assembled to consider, That where your Chancellor of your Realm of England, 28. H. 6. Stat. de Resumpt. in Turri Lond. not printed. your Treasurer of England, and many other Lords of your Council, by your high commandment to your said Commons, at your Parliament holden last at Westminster, showed and declared the State of this your Realm, which was that ye were indebted 372000. l. which is grievous, and that your livelihood in yearly value was but 5000 l. And forasmuch as this 5000 l. to your high and notable State to be kept, and to pay your said debts, will not suffice: Therefore that your high Estate may be relieved. And furthermore it was declared. That your expenses necessary to your household without all other ordinary charge came to 24000 l. yearly, which exceedeth every year in expense necessary over your livelihood 19000 l. Also pleaseth it your Highness to consider, that the Commons of your said Realm be as well willing to their power, for the relieving of your Highness, as ever was people to any King of your Progenitors that reigned in your said Realm of England: But your said Commons been so impoverished, what by taking victual to your household, and other things in your said Realm, and nought paid for it, and the quinzime by your said Commons so often granted, and by the grant of Tonnage and Poundage, and by the grant of Subsidy upon Wools, and other grants to your Highness, and other lack of execution of Justice, that your said poor Commons be full nigh destroyed; and if it should continue longer in such great charge, it would not in any wise be had, ne born: Wherefore pleaseth it your Highness, the premises graciously to consider, and that ye by the advice and assent of your Lords Spiritual and Temporal, and by the authority of this your present Parliament, for the consideration of your high Estate, and in comfort and ease of your poor Commons, would take, resume, seize and retain in your hands and possession all honours, etc. This was very plain dealing by the people with their King, and this is the success of the demand of supply and support had in those days, being required in point of gratification, without any recompense or retribution for it. Thus than we have cleared this point, that between 50. E. 3. and 4. Mariae, there was not one Imposition set without assent of Parliament. Queen Marry in the fourth year of her reign, upon the Wars with France, set an Imposition upon Clothes for this consideration, That the Custom of Wools was decayed, by reason for the most part they were made into Clothes, which afforded little Custom; for that which in Wool, paid for Custom and Subsidy 40 s. made into Cloth paid but 4 s. 4 d. To recompense this by an indifferent equality, there was set upon a Cloth 5 s. 6 d. which Imposition did not make up the loss sustained in the Custom of Wool, by 13 s. 4 d. in 40 s. This was Justum, but not Just. This religious Prince environed with infinite troubles in the Church and Commonwealth, and much impoverished by her devotion, in renouncing the profits of the Church-lands that were in the Crown by the suppression, was the first that made digression from the steps of her worthy Progenitors, in putting on that Imposition without assent of Parliament; for that very consideration of the loss of Custom, by turning of Wool to Clothing, came into treaty in the 24. year of E. 3. when the art of Clothing began first to be much practised in this Kingdom, and then in the recompense of the loss so▪ sustained in the decay of Custom of Wools, there was set upon a Cloth by Act of Parliament above the old Custom, 14 d. for a Denizen, and for an Alien 21 d. This is recited in a Record in the Exchequer, 48. E. 3. Rot. 2. R. Thes in origin. But I pray you examine how this Imposition of Queen Mary was digested by the people. We see in the case of my Lord Dier, 1. Eliz. solemnising 165. That the Merchant found great grief at it, and made exclamation and suit to Queen Elizabeth to be unburdened of it: Orig. in Scac. 48. E. 3. Rot. 2. R. Thes 1. Eliz. dier so. 165. The very reason of their grief expressed in that case is, because it was not set on by Parliament, but by the Queen's absolute power; So that was the ground of that complaint, the very point of right. This cause was referred to all the Judges, to report whether the Qu. might set on this Imposition without assent of Parliament: They divers times had conference about it, but have not yet made report for the King; which is an infallible presumption, that their opinions were not for him; for it is a certain rule among us, that if a question concerning the King's Prerogative, or his profit, be referred to the Judges, if their opinions be for the King, it will be speedily published, and it were indiscretion to conceal it; but if there be no publication, than we make no doubt, but that their opinions are either against the King, or at least they stick, and give none for him. The same Queen Mary upon restraint of bringing in of French Commodities occasioned by the then wars with France, set an Imposition upon Gascoyn Wines, which continueth yet: So the Kingdom of England by the injustice of that Prince was clogged with these two heavy Impositions contrary to the right of the Kingdom, and the Acts of her Progenitors Queen Elizabeth set on that upon sweet Wines, which grew also upon the occasion of the troubles with Spain. That upon Allome was none, it was rather a Monopoly to Master Smith the Customer of London, for the engrossing of all Allomes into his own hands, for which privilege he gave a voluntary Imposition upon that Commodity: It was like the privilege granted to John Pechey of the sweet Wines by E. 3. for which the Patentee was called into the Parliament House, 50. E. 3. and was there punished, and his Patent taken away and canceled. What Impositions have been set on in the King's time, I need not express, they are set down particularly in the Book of Rates that is in print; they are not easily numbered: The time for which they are raised is not short; the Patent prefixed to that book bearing date 28 Julii, 6 Jacobi, will instruct you sufficiently in that point; they be limited to the King, his Heirs and Successors: which I suppose is the first estate of Free simple of Impositions that ever man read of. My eighth and last Observation is upon Tonnage and Poundage given to the King of this Realm, upon Wares and Merchandizes exported and imported, which is an Imposition by Act of Parliament, and as it will appear, was given out of the people's good will, as a very gratification to the King, to enjoin him thereby from the desire of voluntary Impositions, and to conclude him by that gift in Parliament from attempting to take any other without assent of Parliament; for after the ceasing of voluntary Impositions, these Parliamentary ones were frequent in the times of the King that succeeded; but they were never given but for years, with express caution how the money should be bestowed, As towards the defence of the Seas, protection of Traffic, or some such other public causes: Sometimes special sequestrators made by Act of Parliament, by whose hands the money should be delivered, as 5. R. 2. cap. 3. in a printed Statute. 5. R. 2. Rot. Par. 7. R. 2. n. 13.10. R. 2. n. 12.7 R. 2. n. 12. The Rates that were given were very variable, sometimes 2 s. Tonnage, and 6 d. Poundage as 7. R. 2. 3 s. Tonnage, and 12 d, Poundage, 10. R. 2. which grants were not to endure, the longest of them above a year; 18 d. Tonnage, 6 d. Poundage; in 17. R. 2. 3 s. Tonnage and 12 d. Poundage granted to H. 4. in the thirteenth year of his reign for a certain time, in which Statute there is this clause, That this aid in time to come should not be taken for an example to charge the Lords and Commons in manner of Subsidy, unless it be by the wills of the Lords and Commons, and that by a new grant to be made in full Parliament in time to come. This clause in good and proper construction may be taken to be a very convention between the King and his people in Parliament, that he should not from thenceforh, nor any of his Successors set on Impositions without assent of Parliament. The like Imposition was granted to H. 5. Rot. Par. 1. H. 5. n. 17. in the the first year of his reign for a short time towards the defence of the Realm, and safeguard of the Sea, upon condition expressed in the Act, that the Merchant's Denizens, and strangers coming into the Realm with their Merchandizes, should be well and honestly used and handled, paying the said Subsidy, as in the time of his Father, and his noble Progenitors Kings of England, without oppression or extortion: In the end of which Act the Commons protested, being bound by any grant in time to come, for the purposes aforesaid. H. 6. in the one and thirtieth year of his reign, Rot. Par. 31. H. 6.12 E. 4. c. 3.6. H. 8. c. 12.1. E. 6. c. 13.1. Mar. c. 18.1. Eliz. c. 19.1. Jac. c. 33. had Tonnage and Pound age given him for his life. E. 4. had it given him the third year of his reign, as it appeareth in a Statute 12. E 4. cap. 3. H. 8. in the sixth year of his reign, and all since in the first year of their reigns have had it given them for term of their life, and being now so certainly settled, do reach further at that, from which they are in conscience and honour excluded, by this voluntary gratification: For can any man give me a reason, why the people should give this Imposition of Tonnage and Poundage above the due Custom upon all Commodities, if the King by his Prerogative might set on Impositions without assent of Parliament? and were not that a weak action in a King, to take that of his people as a benevolence from them, with limitation of the same, and in what it should be employed, and how they will be used for it, and for what time he shall have it, which he might justly take without their consents, unclogged of these unpleasing encumbrances? The Statute of Tonnage and Poundage made in our times, that are altogether inclined to flattery, do yet retain in them certain shows and rumours of those ancient Liberties, although indeed the substance be lost, 1. Jac. c. 33. as in the Statute 1. Jac. cap 32. We declare that we trust, and have sure confidence of his Majesty's good will towards us, in and for the keeping, and sure defending of the Seas, and that it will please his Highness, that all Merchants, as well Denizens as strangers coming into this Realm, be well and honestly entreated and demeaned for such things whereof Subsidy is granted, as they were in the time of the King's Progenitors and Predecessors, without oppression to them to be done. By this clause, as it now continueth, the true intent of this Statute appeareth to be, that there ought not other Imposition to be laid upon Merchants besides these given by this Statute, and this intention hath been well interpreted by use and practice from the time of E. 3. to the time of Queen Mary, as before is declared. Thus much of this last reason made from observation, and the action of our Nation. I will answer now such main objections as have been made against the people's right, and have not been touched by me obiter in my passage through this discourse. That which hath been most insisted upon is this, that the King by his prerogative Royal hath the custody of the Havens and Ports of this Island, being the very gates of this Kingdom; that he in his royal function and office is only trusted with the keys of these gates; that he alone hath power to shut them, and to open them when, and to whom he in his Princely wisdom shall see good: that by the Law of England he may restrain the persons of any from going out of the Land, or from coming into it: That he may of his own power and discretion prohibit exportation and importation of goods and Merchandizes; and out of his prerogative and pre-eminence, the power of imposing, as being derivative, doth arise and result: for Cui quod majus est, licet, & ei quod est minus licitum est: So their reason briefly is this; the King may restrain the passage of the person, and of the goods; therefore he may suffer them not to pass, but sub mode, paying such an Imposition for his sufferance, as he shall set upon them: For the grounds and propositions laid in this objection, I shall not be much against any one of them others of them must be qualified ere they be confessed; but the inference and argument made upon them, I utterly deny; for in it there is mutatio hypothesis, and a transition from a thing of one nature to a thing of another: As the premises are of a power in the King only fiduciary, and in point of trust and government, the conclusion infers a right of interest and gain; Admit the King had Custodiam portuum; yet he hath but the custody, which is trust, and not Dominium utile; he hath power to open and shut upon consideration of public good to the people and State, but not to make gain and benefit by it; the one is protection, the other is expilation. The Ports in their own nature are public, Portus sunt Publici. free for all to go in and out; yet for the common good this liberty is restrainable by the wisdom and policy of the Prince, who is put in trust to discern the times when this natural liberty shall be restrained. 1 H. 7.10 In 1. H. 7. fol. 10 in the case of the Florentines for their Allome, the Lord Chief Justice Hussey doth write a Case, that in the time of E. 4. a Legate from the Pope being at Calais to come into England, it was resolved in full Council (as the Book saith) before the Lords and Judges that he should not have licence to come into England unless he would take an Oath at Calais, that he would bring nothing with him that should be prejudicial to the King and his Crown. The King by the Common Law may send his Writ, Ne exeas regnum, to any Subject of the Realm; but the surmise of the Writ is, Quia datum est nohis intelligi, quod tu versus partes exteras absque licentia nostra clam destinas te divertere; & quam plurim● nobis & coronae nostrae prejudicia prosequi, Fitzh. N. B. 85. b. So in point of Government, Fitzh. N. B 15. ●b. and common good of the Realm, he may restrain the person: But to conclude, therefore he may take money, not to restrain, is to fell Government, trust and common Justice, and most unworthy the divine Office of a King. But let us compare this power of the King in foreign affairs, with the like power he hath in Domestic Government. There is no question but that the King hath the custody of the gates of all the Towns and Cities in England, as well as all the Ports and Havens and upon consideration of the Weal public may open and shut them at his pleasure; as if the infection of the sickness be dangerous in places vicine to the City of London, the King may command that none from those places shall come into the City: May he therefore set an Imposition upon those that he suffereth to come into the City? So, if by reason of infection he forbidden the bringing of Wares and Merchandizes from some Cities or Towns in this Kingdom to any great Fare or Mart, shall he therefore restrain the bringing of Goods thither, unless money be given him by way of Imposition? The King in his discretion in point of equity, and for qualifying the rigour of the Law, may enjoin any of his Subjects by his Chancellor from suing in his Court of Common Law: May he therefore make a benefit by restraining all from suit in his Courts, unless they pay him an Imposition upon their Suits? In 2. E. 3. in the case of the Earl of Richmond before-cited, 2. E. 3.7. the King had granted unto the men of great Yarmouth, that all the Ships that arrived at the Port of Yarmouth, which consisted of three several Ports, Great Yarmouth, Little Yarmouth, and Gerneston, should arrive all at Great Yarmouth, and at no other place within that Port. The lawfulness of this Patent being in question in the King's Court, it was reasoned in the King's behalf for the upholding of the grant, as it is now, that the King had the custody of the Port, he might restrain Merchants from landing at all in his Kingdom: Therefore out of the same power might appoint where, and in what Haven they should land, and no other: This Patent was demurred on in the King's Bench, as being granted against the Law; but the Case depending, was adjourned into Parliament for the weight and consequence of it, and there the Patent was condemned, and a Law made against such and the like grants. 9 E. 3. cap. 1. The Precedents that were vouched for maintenance of this power of restraint in the King, were four produced almost in so many hundred years, Rot. Par. 2. E. 1. n. 16. Rot. fin. 2. E. 1. n. 17. Ro. claus. 10. E. 3. dor. 31. Ro. claus. 17. H. 6. in dors. whereof two were in the second year of E. 1. one in the tenth year of E. 3. another in the seventeenth year of H. 6. since which time we hear of none but by Act of Parliament, as they had been usually and regularly before. To these I will give answer out of themselves, out of the common Law, out of divers Statutes, and out of the practice of the Commonwealth. The restaint in the time of E. 1. the one of them was to forbid the carrying of Wool out of the Realm, the other was to forbid all Traffic with the Flemings. That of 10. E. 3. was to restrain the exportation of Ship-timber out of the Realm. That of 17. H. 6. to prohibit Traffic with the Subjects of the Duke of Burgundy. These precedents are rare, yet they have in them inducements out of public respects to the Commonwealth; for the rule of Common Law in this case, I take it to be as the reverend Judge Sir Anthony Fitzherbert holds in his Writ of Ne exeas regnum in Nat. Br. that by the Common Law any man may go out of the Kingdom, Fitzh. N. B. 85. but the King may upon causes touching the good of the Commonwealth restrain any man from going by his Writ or Proclamation, and if he then go▪ it is a contempt. This opinion of his is confirmed by the Book, Dier. 1. El. 165. Dier. 13. El. 296. Eliz. fol. 165. Dier. 12. &. 13. Eliz. Dier. 296. In like manner if a Subject of England be beyond sea, and the King send to him to repair home, if he do it not, his Lands and goods shall be seized for the contempt; and this was the case of William de Britain Earl of Richmond, 19 E. 2. He was sent by the King into Gascoigne on a message, 19 E. 2. and refused to return, for which contempt his Goods, Chattels, Lands and Tenements were seized into the King's hands: The Record is cited 2, 2, & 3. P. & M. Dier. 128 & 3. Phil. & Mar. in my L. Dier. fol. 128. B. and the Law there held to be so at that time upon a question moved in the Queen's behalf against divers that being beyond the Seas refused to return upon commandment sent unto them to that purpose: The same is again for Law confirmed in the Duchess of Suffolk, Dier. 2. El. 176. 5 R. 2. c. 2 Case 2 Eliz. Dier. 176. But the Common Law was altered in this point by the Statute of 5. R. 2. cap. 2. by which the passage of all people is defended that they may not go without licence, except the Lords and other great men of the Realm, Merchants, and Soldiers: So for the Merchants, which are the people dealt withal, in the business in hand, the Common Law remaineth as it was before the Statute, and so it was held, 12. El. Dier. 196. where the case was, Dier. 12. El. 196. An English Merchant being a Papist went over-sea, and being there, did settle himself to remain there, for the enjoying the freedom of his conscience: It was moved here in England, that his going without licence should be a contempt, because he went not to traffic as a Merchant, but for the cause of Religion: It was resolved, no such averment would be taken in this case, for that the very calling and vocation of being a Merchant did give him liberty to go out of the Kingdom when he would, and therefore the secret intent of his going was not to be enquired after, Sed lex inspicit quod verisimilius. Therefore it was in this case held no contempt, but at this day the Law is as it was before, 5. R. 2. cap. 2. for that Statute is repealed, 4 Jac. c. 1 4. Jac. cap. 1. And all men whatsoever are now at liberty by the Common Law to pass out of the Realm. There is only against this inconvenient liberty a Proclamation dated at Westminster, Proclam. 9 Jul. 5. Jac. 9 Jul▪ 5. Jac. To the very same effect in point of restraint of passage with the Statute of R. 2. So the Subject is in this much the more at ease and liberty than he was before: That his going over-sea without licence doth not induce any forfeiture, but only incurreth the censure of a contempt and therefore it were to be wished that some firm Law might be made in the case, both for the execution of so good a point of policy, and for the more quiet of the State, in knowing the certainty of the punishment for the offence. This liberty and freedom of Merchants hath been strengthened and confirmed by many notable Laws before recited, 14. E. 3. st. 2. c. 2. 15. E. 3. st. 2. c. 5. 18. E. 3. st. 1. c. 3. as 14. E. 2. stat 2. cap. 2. 15. E. 3 stat. 2. cap. 5. 18 E. 3. stat. 1. cap. 3. and divers other, and therefore though it be admitted that the King may restrain persons and goods, yet it may well be denied, that he hath power of himself alone without assent of Parliament simply and indefinitely to restrain all traffic in general, or to shut up all the Havens and Ports, and to bar the vent and issuing of Wares and Merchandizes of the whole Kingdom, as appeareth plainly that this hath been done this three hundred years, or near thereabouts by Act of Parliament only, and that the Kingdom of England made this matter of Traffic so tender a case to deal in, as that it hath ever held it a matter fit for the consultation of the great Council of the Kingdom, and for no other. In 11. E. 3. The exportation of Wools was prohibited by Act of Parliament, 11. E. 3. cap. 1. in which Statute there was this clause, Until that by the King and his Council it be thereof otherwise provided: which power so given to the King to be used for the good of the Commonwealth, gave occasion to him to abuse it to his profit and commodity, by giving licences of transportation to all that would give forty shillings upon a Sack of Wool above the due Custom. This appeareth in the Records in the Exchequer, 13. H. 3. R. Thes rot. 2. 13. E▪ 3. Rot. 2 Rem. Thes. I will describe the Record that you may perceive the ground of it the better, Rex collectoribus Custumae in portu magnae Jermouth salutem. Quia concessi●…us dilecto & fideli nostro Hugoni de Wriothsley, quod ipse viginti & septem saccos lanae & dimid. de lanis suis propriis in portu praedicto carriare▪ & eas usque Antwerpe ad stapulans nostram ibidem ducere possit, solvendo ibidem dilecto Clerico nostro Willielmo de Northwel custodi guarderoba nostrae 40s. pro quolibet sacco pro custuma & subsidio inde nobis debitis, etc. vobis mandamus quod praedict. Hugon. dictos viginti septem saccos lanae & dimid. in portu praedicto carriaere permittatis, etc. And another the same year▪ Rex collectoribus custumae, 13. E. 3. rot. 12. R. Thes. etc. Cum nuper ordinaverimus quod passagium lanarum, etc. apertum existeret, & quod sigillum nostrum quod dicitur Coket, quod prius claudi & sub serra custodiri mandavimus ape●iretur, & apertum teneretur. ideo vobis mandavimus quod sigillum praedictum in portu praedicto aperiri, & apertum teneri faciatis▪ & omnes illos qui hujusmodi lanas carriare & ducere veline permittatis, receptis prius ab iisdem, viz de mercatoribus amp; aliis indigenis 40 s. de quolibet sacco lanae. Divers other such sales of Traffic occasioned by this Parliamentary restraint were made between 11. E. 3. that the restraint was made, and 14: E. 3. that this inconvenience being espied, the Sea was opened by Statute, and the restraint removed, 14 E. 3. st. 2. c. 2. 15. E. 3. c. 5. st. 2. 14 E. 3. stat 2. c. 2. 15. E. 3. cap. 5. stat 2. and this forty shillings so exacted was complained of as an Imposition in Parliament, and the occasion and the effect were both taken away together by Act of Parliament, 14. E. 3. c. 21. st. 1. st. 2. c. 1. 14. E. 3. stat. 1. cap. 21. & stat. 2. cap. 1. It followed in all King's times since the death of E. 3. that this opening and shutting of the Havens, restraining and enlarging of Traffic was done by Act of Parliament. 'twill give one instance in the reign of every King, 5. R. 2. c. 2. st. 2. 5. R. 2. cap. 2. stat. 2. For the passage of Wool, Wooll-fells, and Leather. 6. H. 4. cap. 4. 6 H. 4. c. 4 2. H. 5. c. 6. st. 2. For the Traffic and Commerce with Merchant's Aliens, H. 5. cap. 6 stat. 2. For the restraint of Staple Commodities to places certain, and for the Traffic of the Merchants of the west, 27. H. 6. c. 1. 27. H. 6. cap. 1. that is enacted in parliament which is contained in the Proclamation, 17. H. 6. cited for a precedent, that is, because the Duke of Burgundy made an Ordinance whereby the Traffic of the English Nation was restrained, that therefore the Englishment should not traffic with the Subjects of the Duke of Burgundy. The same thing enacted upon the like occasion, 4 E. 4. c. 1 19 H. 7. cap. 21. 4. E. 4. c. 1. 19 H. 7. c. 21. The importation of divers Commodities forbidden as being prejudicial to the Manufactures within the Realm, 6. H. 8. cap. 12. 6 H. 8. cap. 12. The exportation of Norfolk Wools out of the Realm forbidden, 26. H. 8 cap. 10. 26. H. 8. cap. 10. Power is given to the King to order and dispose of the Traffic of Merchants at his pleasure, and the reason is given, because otherwise the Leagues and Amity's with foreign Princes might be impeached by reason of restraint made by divers statutes then standing on foot, whereby it appeareth that it was not then taken to be Law, that the King had an absolute power in himself to order and dispose of the course of Traffic without help of a Statute. 2 E. 6. c. 9 2. E. 6. cap. 9 Exportation of Leather restrained, 1, & 2. Ph. & Mar. 1, & 2. P. & M.c. 5. The exportation of Herring, Butter, Cheese, and other Victuals forbidden, 18. Eliz. cap. 8. The exportation of Tallow, 18. El. c. 8 Raw Hides Leather. So in all times no use of Proclamations in matters of this nature, but Acts of Parliament still procured: Wherefore in mine opinion it behoveth them that do so earnestly urge this argument, (the King may restrain Traffic, therefore may impose,) to prove better than they have done, that the King may restrain Traffic of his own absolute power: For as the natural policy and constitution of our Commonwealth is, we may better say, that is Law which is de more gentis, then that which floweth from the reason of any man guided by his general notion and apprehension of power regal, in genere, not in individuo. The last assault made against the right of the Kingdom, was an Objection grounded upon policy, and matter of State, as t he it may so fall out that an Imposition may be set by a foreign Prince that may wring our people, in which case the counterpoise is, to set on the like here upon the Subjects of that Prince, which policy, if it be not speedily execucuted, but stayed until a Parliament, may in the mean time prove vain and idle, and much damage may be sustained that cannot afterwards be remedied. This strain of policy maketh nothing to the point of right; our rule is in this plain Commonwealth of ours. Oportet neminem esse sapientiorem legibus: If there be an inconvenience, it is fit to have it removed by a lawful means, then by an unlawful: But this is rather a mischief then an inconvenience, that is a prejudice in present of some few, but not hurtful to the Commonwealth: And it is more tolerable to suffer an hurt to some few for a short time, then to give way to the breach and violation of the right of the whole Nation: For that is the true inconvenience; neither need it be so difficult or tedious to have the consent of the Parliament, if they were held as they ought, or might be; but our surest guide in this will be the example of our Ancestors in this very case, and that in the time of one of the most politic Princes that ever reigned in this Kingdom, 7. H. 7. cap. 7. 7. H. 7. cap. 7. you shall find an Act of Parliament, in which it was recited that the Venetians had set upon the English Merchants that laded Malmeseys at Candy four ducats of gold upon a But, which in sterling is eighteen shillings the But. It was therefore enacted that every Merchant stranger that brought Malmsey into this Kingdom should pay eighteen shillings the But over and above the due Custom used; this Imposition to endure until they of Venice had set aside that of four ducats the But upon the Englishmen. Much hath been learnedly uttered upon this argument in the maintenance of the people's right, and in answering that which hath been pressed on the contrary; but my meaning is not to express in this Discourse all that hath or may be said on either side, but only to make a remembrance somewhat larger of that which I myself offered as my symbolum towards the making up of this great reckoning of the Commonwealth, which if it be not well audited, may in time cost the Subjects of England very dear. My hope is of others that laboured very worthily in this business, that they will not suffer their pains to die, and therefore I have forborn to enter into their Province. I will end with that saying of that true and honest Counsellor Philip Comines in his fifth book, the 18. chapter, Ph. Com. l. 5 c. 18. That it is more honourable for a King to say, I have so faithful and obedient Subjects, that they deny me nothing I demand, then to say, I levy what me list, and I have privileges so to do. After the Kings Right to Impose had been thoroughly examined in Parliament, and there determined not to be in him alone, without assent of Parliament, among other Petitions of grievance given unto his Majesty, this hereafter was concerning Impositions. THe policy and constitution of this your Majesty's Kingdom, appropriates unto the Kings of this Realm, with assent of Parliament, as well the sovereign power of making Laws, as that of taxing or imposing upon the Subject's Goods or Merchandizes, wherein they justly have such a propriety, as may not without their consent be altered or changed: This is the cause that the people of this Kingdom, as they have ever showed themselves faithful and loving to their Kings, and ready to aid them in all their just occasions with voluntary contributions: so have they been ever careful to preserve their own Liberties and Rights, when any thing hath been come to prejudice or impeach the same: And therefore when their Princes, either occasioned by War, or by their overgreat bounty, or by any other necessity, have without consent of Parliament set on Impositions either within the Land, or upon commodities exported or imported by the Merchants, they have in open Parliament complained of it, in that it was done without their consents, and thereupon never failed to obtain a speedy and full redress, without any claim made by the Kings of any Power or Prerogative in that point. And though the Law of Propriety be originally and carefully preserved by the common Laws of this Realm, which are as ancient as the Kingdom itself, yet those famous Kings for the better contentment and assurance of their loving Subjects, agreed that this old fundamental Right should be further declared and established by Act of Parliament, wherein it is provided that no such charge should ever be laid upon the people without their common consents, as may appear by sundry Records of former times. We therefore your Majesty's most humble Commons assembled in Parliament, following the example of this worthy care of our Ancestors, and out of our duty to those for whom we serve, finding that your Majesty without advice and consent of your Lords and Commons, hath lately in time of peace set both greater Impositions, and far more in number then any your noble Ancestors did ever in time of War, do with all humility present this most just and necessary Petition unto your Majesty, That all Impositions set without assent of Parliament, may be quite abolished, and taken away; And that your Majesty likewise in imitation of your royal Progenitors will be pleased, that a Law in your time, and during this Session of Parliament may be also made to declare that all Impositions of any kind set, or to be set upon your people, their Goods, or Merchandizes, save only by common consent in Parliament, are and shall be void: Wherein your Majesty shall not only give your Subjects great satisfaction in point of their Right, but also bring exceeding joy and comfort to them who now suffer, partly through the abating of the price of native Commondities, and partly through the raising of all foreign, to the overthrow of Merchants and Shipping, the causing a general dearth, and decay of all wealth among your people, who will be thereby no less discourage then disabled to supply your Majesty when occasion shall require. FINIS. Books Printed or sold by William Leak, at the sign of the Crown in Fleetstreet between the two Temple gates. YOrks Heraldry, Fol. A Bible of a very fair large Roman Letter. 4. Orlando Furioso. fol. Perkins on the Laws of England. wilkinson's Office of Sheriffs. Parson's Law. Mirror of Justice. Topics in the Laws of England. Dellamans' use of the Horizontal Quadrant. Wilbeys second Set of Music, 3, 4, 5, and 6 parts. Corderius in English. Dr. Fulks Meteors, with Observations. Malthus Fireworks. Nyes Gunnery and Fireworks. Cato Major with Annotations. Mel Heliconium, by Alexander Ross. Nosce te ipsum, by Sir John Davis Animadversions on Lillys Grammar. The History of Vienna and Paris. The History of Lazarillo de Tormes the witty Spaniard. Hero and Leander, by George Chapman, and Christopher Marlowe. The Posing of the Accidence. Guilliams Heraldry. fol. Herbert's Travels. fol. Man become guilty, by John Francis Senalt, and Englished by Henry Earl of Monmouth. Aula Lucis, or the house of light. Christ's Passion, A Tragedy written by the most learned Hugo Grotius, and Englished by Geo Sand. Mathematical Recreations, with the general Horological Ring and the double Horizontal Dyal, by William Oughtre. The Garden of Eden, or an accurate description of Flowers and Fruit, by Sir Hugh Plat. Solitary Devotions with man in glory, by the most reverend and holy Father Anselm. Archbishop of Canterbury. Book of Martyrs. fol. Adam's on Peter, fol. Willet on Genesis and Exodus. fol. Elton on the Colossians. fol. The several opinions of sundry learned Antiquaries, viz. Mr. Justice Doddridge, Mr. Ager, Francis Tate, William Cambden, and Joseph Holland, touching the Antiquity, Power, Order, State, Manner, persons and Proceed of the high Court of Parliament in England. The Idiot, in four Book. Exercitatio Scholastica. The Life and Reign of Hen. 8. by the Lord Herbert. France painted to the life, the second Edition. 8. Sken de signification verborum. 4. The Fort Royal of Holy Scripture, by J. H. the third Edition. 8. Calais learned Readins on the Stat. 21. Hen. 8. chap. 5. of Showers. PLAYS, Philaster. The wedding. The Holleder. The Merchant of Venice. The strange discovery. Mails Tragedy. King and no King. Othello, the Moor of Venice. The grateful Servant. FINIS.