THE LIBERTY OF THE Subject: AGAINST THE PRETENDED POWER OF IMPOSITIONS. Maintained by an Argument in Parliament Ano. 7o. JACOB 1 Regis. By WILLIAM HAKEWIL of Lincoln's Inn Esq. LONDON, Printed by R. H. An. Dom. 1641. To the Reader. BEing very sensible of a great Injury lately done me, by the extreme false printing of a small Treatise of my Composing, stolen out without my consent, and hearing accidentally that some part of this also had passed the Press, I thought good for the preventing of the like wrong to stay the forwardness of the printer until I had reviewed and corrected it by mine own Notes. For my part, I should have been contented altogether to have restrained it, if I might, But now seeing it must abroad, I shall not be ashamed to let it bear my name, and own the errors of it myself (those of the Press excepted) though heretofore it had gained so much reputation by some, as it was attributed to a worthier Author. Some there are yet surviving that heard this Argument about thirty years since in the Commons-House of Parliament, but it hath now extended itself beyond the probable proportion of a Speech or Argument, by the insertion of many Records and Acts of Parliament more at large, which at the delivery of it, were but merely quoted. The Endeavour of it is to prove that the just Prerogative of our Kings never warranted them to raise moneys at their pleasure, by laying a charge on Merchandise to be Exported or Imported, without assent of Parliament. But, on the contrary, the settled Laws of the Land, the Precedents of former Ages, the Acts of our most necessitous and powerful Princes, and indeed every thing requisite to make the Truth apparent, do as it were unanimously consent to discharge us of this unjust and heavy Burden. And you shall see herein how the policy of active Princes hath by many ways attempted to undermine those Fortifications which the wisdom of our Ancestors hath raised to maintain themselves from this kind of Assault. You shall see with how great difficulty their prevailing was withstood: And (which is the glory of Truth) you shall find those designs which were laid to overthrow our Right, mainly to make for the evidence and confirmation of it. For, whatever unjust Impositions were either exacted by a pretended lawfulness, or set up by a commanding power, were by complaint in Parliaments presently following taken down, and remain on Record as (witnesses against themselves) unlawful, and against our Liberty. These Reasons and Arguments of mine (how mean soever) those times wherein I urged them, accepted favourably; and since, in their private passage in manuscripts, were entertained in many judicious hands, which made me somewhat enlarge the conceit that before I had of them; And now seeing necessity enforceth me to make them more public, I must adventure them to the censure of these nice times. Beneficial (happily) they may be to some, prejudicial I hope to none: In which confidence (having the leave of Authority) they have likewise my leave to go abroad. Vale. W. H. The Contents. 1 THat there was ever some Custom due to the King by the Common-Law. folio 6. 2 That it was a sum certain by the Common-Law. folio 10. 3 That all the Revenues which the Common Law giveth to the King (out of the interest of the Subject) are certain, or reduceable to a certainty by some legal course, and none left to the King's pleasure. folio 11. 4 The reasons why the Law requireth such certainty in those Revenues which the King hath out of the interest of the Subject. folio 12. 5 Examples of Revenues given by the Common Law to the King, out of the interest of the Subject, and that they are all certain. folio 13. 6 Answer to an Objection, that the King may lay Impositions upon extraordinary occasions. folio 21. 7 Arguments drawn from the actions of our Kings, that they had no power to impose. folio 25. 8 Arguments drawn from the forbearance of our Kings to lay Impositions, notwithstanding their urgent occasions. folio 34. 9 The difference between the Precedents urged, of Impositions laid by the ancient Kings, and those which are now laid. folio 29. 10 A particular answer to the Imposition of 3d in the pound, laid upon Merchant-strangers by Charta Mercatoria, 31, Ed. 1. folio 42, 43. 11 The urgent occasions which Ed 2. had to lay Impositions, and yet how he forbore. folio 48. 12 The several policies used by Ed 3. for the introducing of the power of Imposing: 1. Impositions taken by colour of a voluntary Grant from Merchants, folio 49. 2 By way of dispensation with penal Laws, folio 59 3 By way of Ordinance in Parliament, folio 61. 4 By colour of a Loane by Merchants, folio 64. 5 By Grants of Merchants for Liberties granted to them, folio 65. 6 By express and direct commandment, folio 66. with several answers to all these several ways. 13 In what Statutes Impositions are mentioned after Edw. 3. time, until Qu. Mary's; and upon what occasions, and how to be interpreted. folio 73. 14 The signification of the words Imposition, Toll, Maletolt, Custuma & Consuetudo magna & parva. folio 73, 103. 15 No Imposition laid from Edw. 3. time till Qu. Mary's. folio 78. 16 What urgent occasions all the Kings from Edw. 3. till Qu. Mary's time, had to lay Impositions, and yet did it not. Rich. 2. f. 79. Hen. 4. f. 82. Hen. 5. f. 84. Hen 6. f. 85. Edw. 4. f. 85. Hen. 7. f. 86. Hen 8. f. 89. Edw. 6 f 92. with a corollary of all those times and occasions. folio 92. 17 The Impositions laid by Q. Mary, and how answered. folio 93. 18 Admitting the Kings had power by the Common Law to lay Impositions, yet how they are barred by Statutes. folio 98. 19 Magna Charta, cap. 30. urged against Impositions, and the objection made against it, answered. 1 Objection, That it extendeth only to Merchant-strangers, f. 100 2 That it was made only against Taxes within the Land, f. 101. 3 That by the exception in the end of the Statute, the King's Prerogative is salved. folio 111. 20 The Statute de Tallagio non concedendo urged, with the answers to the objections made thereunto, folio 113. The exposition of the words Tallage, Aid, Subsidy. folio 112, 114. 21 The Statute of 25 Ed. 1. cap. 7. urged against Impositions, and cleared from Objections: 1 That it is against the excess of Imposititions, and not against the Right, f. 115, 116. 2 That it is only against Impositions on Wools. folio 118. 22 The Statute of 14 Ed. 3. cap. 21. urged against Impositions, and cleared from Objections: 1 That it extendeth only to Impositions within the Land, and not upon merchandizes, with an exposition of the word Charge. folio 118, 121. 23 Answers to the Reasons urged in maintenance of Impositions: 1 That because it cannot appear that the ancient Customs were set by Parliament, therefore they were imposed by the King. folio 125. The Antiquity of Parliaments. folio 128. 24 Answer to the the second Reason urged for Impositions, That the King may totally restrain importation and exportation, and therefore may restrain sub modo by laying Impositions. folio 124, 125, etc. 25 Answer to the third Reason, That the Ports are the Kings, and that he may open and shut them on what conditions he pleaseth. folio 136. 26 Answer to the fourth Reason, That the King is bound to protect Merchants, and safeguard the Seas, and that therefore he may lay moderate Impositions, for raising of many to defray his charges. folio 138. 27 Answer to the fifth objection, That all foreign Princes have power to impose; and if our King should not have the like, it might be very inconvenient to this State. ibid. 28 A summary Conclusion of the whole Argument. folio 141. Mr. SPEAKER: THe Question now in debate amongst us, is, Whether his M tie. may, by his Prerogative Royal (without assent of Parliament) at his own will and pleasure, lay a new Charge or Imposition upon Merchandizes, to be brought into, or out of this Kingdom of England; and enforce Merchants to pay the same. I Must confess, that when this Point was first stirred mongst us, and that we, not contented to seek redress for the excess of the present Impositions, resolved to proceed farther, by calling his Majesty's right of Imposing into question, I was very sorry: for I saw we were then in a fair way to have obtained a very great abatement of the Impositions that now are; and besides, we had his Majesty's promise never to lay any more but in Parliament time, by the advice and free consent of his Subjects, repairing hither from all parts of the Realm; This hope of a present ease, and gracious promise for the time to come, gave me (I confess) a full satisfaction; especially, seeing I was confidently persuaded that his Majesty's right to impose was very clear and not to be disputed, and that therefore by drawing into question the right, we might give his Majesty just occasion to withdraw from us his gracious purpose of the present abatement, as also his promise for the time to come: For Sir, when the Case of Bates (who as you know was called into question for refusing to pay the Imposition laid upon Currans) was argued in the Exchequer, in which Case his Majesty's right to Impose, was solemnly disputed (and there resolved for his Majesty) I was then present at all the Arguments both at the Bar and at the Bench; And I do confess that by the weighty and unanswerable reasons (as I then conceived them) of those grave and reverend Judges, Fl●ming Ch. Bar. Clarke. Savil. sitting in their seat of Justice, I was much persuaded; but by those many records vouched by them, I was altogether overcome, and as it were vanquished to yield to them; for Sir, Ratio suadet, Anthoritas vincit: But though I were then, and when the Question was first moved in this house, very confident, yet as you shall perceive anon, I was not very constant in that opinion; for being (amongst others) employed by this house to make search in the Exchequer for Records, which (by the practice of former ages) might guide our judgements in this weighty point, and having diligently collected the Arguments made in the Exchequer, and not only so, but compared my own collections with Reports thereof made by divers other of my friends, & finding that some of the Records urged in those Arguments were untruly vouched (and many misaplyed) I then began to stagger in my opinion, and presently fell to examine the weight of the Reasons which had been alleged, which in my poor censure, I found not of strength sufficient (without the full concurrence of clear Precedents of former times) to maintain the Judgement given, or my Opinion grounded thereupon: And therefore (Sir) In love to the truth I did forsake my former opinion as erroneous, and do now embrace the contrary, that is, That his Majesty hath no right to impose, and so am now become a convert. Those Reasons that moved me thus to change, and the weakness which I discovered in the Reasons alleged against the opinion which I now hold; I will, with your patience, open unto you, and will therein follow the commandment of Christ to Peter. Being converted, seek to convert my brethren, As touching the Judgement in the Exchequer standing yet in force, so often cast as a block in our way, though I much reverence the persons of those yet living, and the memory of those that are with God, who gave the Judgement: Yet seeing (as I hope I shall be able evidently to prove) the same to be against the great Charter of our Liberties, I can esteem no otherwise of it then the Statute of 25. Ed. 1. cap. 10. pronounceth of all such Judgements, that is; that it is void and to be held for nought. Thus much I thought good to say by way of Preamble or Introduction to the matter: now (by your favours) I will enter into the debate of the Question; in handling of which I will purposely avoid the repetition of any thing that hath been spoken by any man that hath argued before, as knowing in what presence I speak. That I may the better convey myself through my Argument, and be the better conceived of you that are to hear me, I will divide that which I have to say into certain parts, which I will prosecute in order. First, I hold it necessary to consider whether Custom were due to the king by the Common-Law. Secondly, admitting it to be due by the Common-Law, whether it were a sum certain, not to be increased at the king's pleasure, or otherwise. Thirdly, supposing that by the Common-Law the king might, by way of imposition, have increased his Custom at his own will, by his absolute power, without assent in Parliament, whether or no he be not bound to the contrary by Acts of Parliament; In the handling of which part, I will consider the strength of every Act of Parliament hitherto vouched to this purpose, answering, as I go, such objections as have been made against those Statutes by such as have maintained that the king is not bound by them. I will also add a Statute or two as yet not remembered by any. Lastly, I will discover unto you the weakness of such Reasons as have been made in maintenance of the King's right to Impose; in the prosecuting of which parts I will (as occasion is offered) give some answer to that which hath been last spoken; as knowing it to be expected at my hands. By Sir Robert Hitcham. First then to consider Whether there were by the Common-Law any duty belonging to the King upon Merchandise to be carried into or out of the kingdom, known by the name of Custom. Though the maintenance of Custom to be due by the Common-Law be a point of such consequence to them that maintained the King's right to Impose, as without the upholding of which their opinion (as I conceive) is not so much as colourably to be maintained, and that to maintain the same it be not at all necessary to induce my conclusion; and although to admit it, it may seem perhaps no good policy of Argument, but rather a great disadvantage to me to admit that, without which the contrary part cannot uphold their opinion, and which being admitted cannot make any thing for me; yet because we are here not as Arguers at the Bar, but as Judges in a high-Court, and that all our ends tend to the discovery of the truth: I will therefore not only admit it, but will maintain it as well as I can. That Custom is due by the Common-Law I collect, That there was ever some Custom due by the Common Law. first by the name thereof, for though at this day it be (and so hath been for more than 350 years as I shall have occasion more fully anon to open unto you) called in our law-Latin Custuma, yet in ancient time it had no other name here amongst us (for I mean not to wander into forreign-learning) then Consuetudo, as may appear by the Statute of Magna Charta cap. 30. Per rectas & antiquas Consuetudines (for I shall anon directly prove unto you that Consuetudo in that place is not to be understood, a usage, as hath been said; but in that sense which I, take it.) This name Consuetudo in the same sense is also found in many ancient Records brought into this house upon the late search; That this name than Consuetudo, which implies an approved continuance without a known beginning should by the Common-Law be given to this Revenue more than to any other Revenue belonging to the King; nay, that this term which is the common and general name to all common and approved usages, of what nature or kind soever should be applied to this duty rather than to any other amongst all the ancient usages and Customs which the Common-Law embraceth, cannot but denote the great antiquity thereof, and more than so, the allowance and approbation thereof by the Common-Law; for doubtless, if, beside the antiquity of this duty, the Common-Law had not also allowed the reasonableness of it, and in a manner the necessity of it, it would never have denoted it unto us by this name of excellency above all other Customs which require reasonableness as well as antiquity: Therefore doubtless this duty, thus favoured, is a Child of the Common-Law; nay farther, it is of the very essence of a Custom to have his only beginning by allowance of the Common-Law; for that which beginneth by private contract of party, or by Act of Parliament, & dependeth not wholly upon the allowance of the Common-Law (by one of which three ways, all things considerable in Law, have their commencements) cannot be called or be a Custom, in Name or Deed; moreover considering that this Custom is not limited to any one place within the Realm, we shall so little need to be curious in affirming it to be due by the Common-Law, as we may boldly pronounce it to be part of the Common-Law itself. Thus you see that the very name Consuetudo proves Custom to be a duty by Common-Law: To this may be added that Magna Charta cap. 30. which (Statute was made little more than 150 years after the Conquest) termeth this not only Consuetudo (which as I have said, implies Antiquity beyond all remembrance of a beginning) but Antiqua Consuetudo; not only Custom, but old and ancient Custom. And in comparison to this old Custom due at Common-Law, the Custom upon Staple Commodities, given or increased by act of Parliament, 3 E. 1. not printed, was called Nova Consuetudo: Before the making of which Statute of 3 E. 1. you may further see, that Custom was due: For an. 52. H. 3. in the Statute of the Exchequer, printed, you may read, that the Collectors of the Custom of Wools were to yield their account twice every year into the Exchequer. But that which most of all moveth me to believe that this duty was and is due by the Common-Law, is this; That in all Cases where the Common-Law putteth the King to sustain Charge for the protection of the Subject, it always yields him out of the thing protected some gain towards the maintenance of the Charge: As for the protection of Wards, Lunatics, and Idiots, the profits of their Lands; For the maintenance of the Courts of Justice, it giveth him Fines for purchase of Original writs, and Fines pro licentia Concordandi, which in supposition of Law are no other than Fines paid for not proceeding according to the surety by pledges, put in upon purchase of the Original; and for troubling without cause the King's Justices, who are maintained in their places at the King's charge: There are many the like profits of Court given by the Common-Law to the King for the maintenance of his charge in the administering of Justice. This observation, which might be further proved by divers other instances in things of other nature, maketh me to think, that because the Common-Law expecteth that the King should protect Merchants in their Trades, by maintaining, repairing, and fortifying the Havens at home; by clearing the Sea of Pirates and Enemies in their passage; and by maintaining Ambassadors abroad to treat with foreign Princes upon all such occasions: That it also giveth him out of Merchandizes exported and imported, some profit for the sustentation of this public charge; otherwise were the Law very unreasonable and unjust. So as to prove that by the Common-Law Custom is due to the King, I shall need to say no more; especially considering it hath not only been yielded to, but proved by those which maintain a contrary Conclusion. I will therefore proceed to my second Consideration: Whether that profit upon Merchandizes, which the Common-Law for these respects gave unto the King, were a duty certain, not to be increased or enhanced at the Kings will and pleasure, without a common assent in Parliament? Or otherwise, Whether the Common Law hath left an absolute power in the King, to demand in this case more or less at his own pleasure, and to compel his Subjects to pay it? The resolving of which question will as I conceive, make an end of this controversy between us; for what are these Impositions which we complain of, other than the enhancing of the Custom by the King's absolute pleasure? That this duty given by the Common-Law (as I have proved) unto the King, That Custom due by Common Law, was a Sum certain. was and is a duty certain, not to be enhanced by the King at his own pleasure, without assent Parliament, I hope I shall be able clearly to prove unto you: In maintenance of which, I will use some Arguments of direct proof, and others of great presumption and probability. And first, I lay this as a ground which will not be denied me by any man; That the Common-Law of England (as also all other wise Laws in the World) delight in certainty, and abandon incertainty, as the mother of all debate and confusion, than which nothing is more odious in Law: And therefore the rule is, Quod certum est retinendum est, quod incertum est dimittendum; nay further, quod incertum est nihil est: This is the censure of Law upon all the acts of men which fall under the judgement of the Law. If then the Law so judge of the acts of men, holding them for nought and void that are incertain; how much more than doth the Law require certainty in her own Acts, which are to bind all men: And if in any of the acts of Law certainty be to be specially expected, most of all is it requisite that bounds of limitation and certainty be set between the King and his poor Subject, between the mighty and the weak, between the Lion and the Lamb. And if in any Case between the King and his Subject more than other, this certainty be required, most of all it is requisite in Cases where the Common-Law giveth the King a perpetual profit or revenue to be raised out of the interest and property of his poor Subjects estate, either in lands or goods. If in all other things the Law (as I have said, and wherein I suppose you have yielded to me) do require certainty and limitation, and only in this case where it is most requisite, it hath omitted and neglected it, we must conclude the Law to be most unreasonable, improvident, and contrary to itself; which to say, were to conclude it to be no Law. Out of these grounds I may then in my opinion safely and with some confidence deduce and maintain this position; That all the Revenue; which the Common Law giveth to the King out of the interest of the Subject are certain, or reduceable to a certainty by a legal course: and none left to the King's pleasure. That the Common-Law of England giveth to the King, as to the head of the Commonwealth, no perpetual revenue or matter of profit out of the interest or property of the Subject, but it either limiteth a certainty therein at the first, or otherwise hath so provided, that if it be uncertain in itself, it is reduceable to a certainty only by a legal course, that is to say, either by Parliament, by Judges, or Jury; & not by the Kings own absolute will and pleasure. Though this Position be grounded upon those sure foundations out of which I have (as you perceive) drawn it, and needs no farther proof: yet because you shall see how plentiful the truth is in reasons to maintain itself, I will further open unto you the particular reasons of this position, which are these: First, the Law requireth certainty in matter of profit, The Reasons why the Law requireth such certainty in those Revenues. between the King and the poor Subject, because to make any man Judge in his own case, especially the mighty over the weak, and that in a point of profit to him that judgeth, were to leave a way open to oppression and bondage. Secondly, because by reducing it to a certainty, the King may know what certainty to expect; that so he may order his charge accordingly. Thirdly, that the Subject may know likewise what he is to pay, that so he may know certainly what shall remain to him as his own. Finally, that the King may not depend upon the good will of his Subject for his revenue, seeing the Law expecteth he should bear the charge, but may know in certainty what to claim as due to him, and may accordingly compel the Subject to pay it; and that the Subject may not be under the King's absolute power to pay what the King pleaseth, which may perhaps extend to the whole value of the Merchandise. You see in general, how the Law by requiring certainty in matter of profit between the King and the Subject, preventeth many mischiefs which would fall out if the Law were otherwise; and therefore without more saying, I might here conclude, that Custom being due by the Common-Law, was and is a sum certain, not to be increased at the King's pleasure by way of Imposition: but because there are many other revenues due to the King by the Common-Law, as well as Custom; if they all, or as many as we can call to mind, shall fall out to be (as I have said) sums certain and not subject to be increased at the kings will, this will be a forcible Argument, that custom is likewise certain and not to be inhannced at the king's pleasure; for, this Argument drawn à simili is of great force, and the most usual of any other in debate of things doubtful in Law. Quae Legibus decisa non sunt Index ex his quae decisa sunt statuet, & de similibus ad similia procedat. May it please you to consider in this respect other revenues which the Common-Law of this Land giveth the King; Examples of Revenues given by the Common-law to the King, out of the interest of the Subject; that they are certain. and according to the rule, to decide that which is in question by the same rule and measure by which other things of the same nature have been decided and ordered. The Common-Law giveth the King a Fine for the purchase of an original writ; Is it certain? it is, and ever hath been; if the debt or damages demanded amount to above forty pounds, the Fine is, and ever hath been six shil. eight pence, and no more: if to a hundred pounds, than ten shillings, and no more: May the King increase this Fine at his pleasure? there is no man that will say he may. There is a Fine due by the Common-Law, pro Licentia concordandi; is it not certainly known, and so hath always been, to be the tenth part of the Land comprised in the writ of Covenant? And is not also the Post-Fine thereupon due certainly known to be once and a half as much more as the Fine pro licentia concordandi, or Pre-Fine? As for example, when the Pre-fine is ten shillings, the Post-fine to be fifteen shillings: and can the King demand any more of the Subject? So likewise, when in a writ of Right, the Demandant alleging the seisin of his Ancestor, will not be compelled to prove the seisin alleged, is he not to tender to the King a sum certain of a demy-mark, to have this benefit? was it ever more or less? or can it now be more if the King would? these, amongst many others, are duties belonging to the King by the Common Law from the Subject, for the maintenance of his Charge in the administration of Justice, which the Civilians call Vectigal Judiciarium. There are also in divers other Cases duties certain, belonging to the King by the Common-Law: As for example; the relief for an Earldom is certainly known to be a hundred pounds; for a Barony a hundred marks; for a Knights fee a hundred shillings: all which in the Statute of Magna Charta, cap. are called old and ancicient duties: this is Vectigal Patrimoniale; of which sort I could produce many others, all which have like certainty. Nay, there is one duty well known to us all, which the Common-Law giveth to the King; and is in his nature a Custom (our very case) in which the King is bound to a certainty which he cannot exceed; and that is Prisage, a duty given by the Common-Law to the King, upon every shiploading of Wine brought into the kingdom by English Merchants; and is one Tun of Wine before the Mast, and another behind. I am unwilling to trouble you with any more particulars of this kind: but let any man show me one particular to the contrary, and I will then yield, that my position being false in one, may be in more: But till my position hath been in this point infringed, this general concordance of the Law in all these particulars, is argument enough for me, without having aleadged other reasons, to conclude, that Custom being as all these are, a revenue due to the King by the Common-Law, arising out of the Property and interest of the Subject, is (as all these are) limited and bounded by the Common-Law to a certainty, which the King hath not power to increase: Vbi eadem Ratio, eadem Lex. It may perhaps be here objected, that the Aid paid to the King upon the Knighting of his eldest Son, or marriage of his eldest Daughter, was by the Common-Law uncertain; and that the King did take more or less at his pleasure, until he was bound to the contrary by Statute. To this I make divers answers: Though it were indeed a sum uncertain, yet the Common-Law did in some sort give it a limitation; for it is by a special name called Reasonable Aid: So as if the sum demanded do exceed Reason, it became from a Reasonable Aid an unjust exaction. Besides, this revenue was a thing happening very rarely, and therefore the certainty thereof not so much regarded by the Law: and yet it is to be observed how the frame of this Commonwealth could not long endure incertainty even in this casual Revenue; but it was reduced to a certainty of twenty shillings upon a Knight's fee, and 20s. upon every twenty pounds Soccageland, by the Stat. of West. 1. cap. 35.3. Ed. 1. If in this casual Revenue they were so careful to be at a certainty, to avoid unreasonable exactions (as the words of the Statute are) how much more careful would they have been, for the same cause to have reduced the great and annual Revenue of the Custom to a certainty, if they had not thought it to have been certain by the Common-Law, or limited by Statute-Law before that time made? But (Sir) that which I rely upon for answer to this objection, is this: Reasonable Aid was and is by the Common-Law due as well to mean Lords as to the King: But mean Lords were not limited to a certainty, otherwise than in general, that it must be reasonable, as I have said; therefore to limit the King any further, was no reason: And this answer may be given for all uncertain Revenues belonging to the King, the like of which mean Lords have of their Tenants; for the incertainty of which there may also be given especial reason, because these duties first began by special contract and agreement between the Lord and the Tenant, and not directly by operation of the Common Law, and so were certain and uncertain as they did at first agree: and therefore you may be pleased to remember, how in laying my position I was wary to say, That such revenues as are due to the King as to the head of the Common wealth (by which I purposely excluded such revenues as are common to him with other mean Lords) are always certain. I am now according to promise, and in maintenance of a second part of my position, to show you, That where the Common-Law giveth the King a Revenue not certain at the first, that is always reduceable to a certainty by a legal course, as by act of Parliament, Judges, or Jury, and not at the King's pleasure. Every man that by his tenure is bound to serve the King in his wars, and faileth, is to pay according to the quantity of his Tenure, a fine by the name of Escuage; this cannot be assessed but in Parliament: Upon forfeitures for treason, or otherwise, to the King; though it be a kind of a certainty that the Law giveth, in giving him all the estate of the party convict, both in goods and Lands, or in goods only, as the case is; yet for reducing it to a more express certainty, the Law requireth that it be found by Office. waif, Stray, Wreck, Treasure-Trove, and such like, are no less certain; for the King hath the things themselves in kind. Fines for misdemeanours are always assessed by the Judges, Amercements in all cases are to be afferred by the Country, and not to be assessed by the King, though the form of the Judgement be, Et sit in misecordia Domini Regis, in the King's mercy pro contemptu predict. Nay, though for punishment of an offence it be by Statute-Law enacted, that an offendor shall make Fine and Ransom at the King's pleasure, the Law even in this case (which is as strong a case as may be) will not leave the assessing of the Fine to the King's pleasure, to be by him rated privately in his Chamber; but it must be solemnly and legally done in an open Court of Justice by the Judges, who in all other cases are to judge between the King and his people, where the interest or property of the Subject, or any charge or burden upon them doth come in question, as may be proved by the book of 2 R. 3. fo. 11. Insomuch that I am of opinion, that if a Statute were made, that the King might raise the Customs at his pleasure, yet might it not be done as now it is, by the King's absolute power, but by some other legal course, of which the Common-Law doth take notice; as in the case of the Fine and Ransom: much less than will the Common-Law permit, that it should depend upon the King's absolute pleasure, there being no such Statute in the case. You have heard out of what grounds I first deduced this my position, That the Law requireth certainty in matter of profit between the King and his people. You have heard likewise the particular reasons of that position: you have also heard what proof I have made by particular cases of like nature to this in question; and how I have applied them to the point: And so leaving the Judgement of the whole to your wisdoms, who can best discern whether the Argument be of weight, I proceed to my second Reason, which is drawn from the policy and frame of this Commonwealth, and the providence of the Common-Law: The which, as it requires at the Subject's hands loyalty and obedience to their Sovereign; so doth it likewise require at the hands of the Sovereign, protection and defence of the Subject against all wrongs and injuries whatsoever offered either by one Subject to another, or by the Common Enemy to them all, or any of them. This Protection, the Law considereth, cannot be without a great charge to the King; And because, as Christ saith, No man goeth to war upon his own charge; the Common-Law therefore hath not only given the King great Prerogatives and favours touching his own patrimony, more (I believe) than any other Prince in the world hath; but also hath, for the sustentation of his great and necessary expenses in the protection of his Subjects, given him out of the interest and property of the Subject an ample, and very honourable revenue in very many particular cases, some of which I will call to your remembrance. He receiveth out of the Subjects purse for wardships and the dependences thereupon, as we have of late accounted, about forty five thousand pounds by the year. This is a Revenue which no other King of the world hath: And as it appears by the Statute of 14. E. 3. c. 1. It ought to be employed in maintenance of the wars; and so doubtless was the first institution of the Common-Law: For the Lord hath the profit of the Wards lands to no other end, than to maintain a man in the war during the infancy of him who otherwise should serve in person. He hath likewise all forfeitures upon Treason and Outlawry, and upon penal Laws, Fines and Amerciaments, Profits of Courts, Treasure-Trove, Prisage, Butlerage, Wreck, and so many more, as the very enumeration of the particulars would take up long time. To what other end hath the common-Law thus provided for the maintenance of the King's charge, by all these ways and means of raising profit out of the Interest and property of the Subjects estate in lands and goods, but only to this end, That after these duties paid, the poor Subject might hold and enjoy the rest of his estate to his own use, free and clear from all other burdens whatsoever? To what end hath the Law given a part to the King, and left the rest to the Subject, if that which is left be also at the Kings will, to make his profit thereof as he pleaseth? To give a small portion to him that may at his pleasure take more, or all, is a vain and an idle act; which shall never be imputed to a wise Law. But it may be objected that as the revenues are ordinary, Answer to an objection, that the King may lay Impositions in times of extraordinary occasions. so are they by the Law provided only for the sustaining of the kings ordinary charge; and that if the Law have not taken further consideration and limited some certain course, how upon sudden and extraordinary occasions the king's charge may be sustained, that there is yet no reason showed to the contrary, why the king may not upon such occasion take some extraordinary course for the raising of money, as by the laying of Impositions upon Merchandizes, or by a tax within the Realm, rather than the Common wealth for want thereof, should perish or be endangered. Sir Robert Hitcham. And hereupon by the knight that last spoke, it was held that upon occasion of a sudden and unexpected war, the King may not only lay impositions, but levy a tax within the Realm, without assent of Parliament, which position in my opinion is very dangerous; for to admit this were by consequence to bring us into bondage. You say that upon occasion of sudden war the king may levy a Tax; who shall be Judge between the king and his people of the occasion? can it be tried by any Legal course in our Law? it cannot: if then, the king himself must be the sole Judge in this case, will it not follow that the king may levy a tax at his own pleasure, seeing his pleasure cannot be bounded by Law? You see into what a mischief the admittance of one error hath drawn you. But for a full answer to the objection, I say, that the providence of the Common-Law is such, and so excellent, as that for the defraying of the kings charge upon any occasions of a sudden war, it hath, over and above all the ordinary Revenues which it giveth the king (which in the time of war cannot indeed but fall short) made an excellent provision; for (Sir) The war must needs be either offensive or defensive: Offensive, must either be upon some Nation beyond the Seas, or against the Scots, or Welsh, or other borderers within the Island: If it be an offensive war upon some Nation beyond the Seas, it cannot be a sudden Accident, for it is the kings own act; and he may, and 'tis fitting he should take deliberation; and if it be a just and necessary war, he may crave, and easily obtain assistance of his Subjects, by grant of Aid in Parliament: If an offensive war upon some of his neighbours within the Continent of this Island, as the Scots, or the Welsh, which also cannot be sudden or unexpected to the king, being his own act; you know how politicly the kings of this Realm have provided, by reserving Tenors, by which many of their Subjects are bound to serve them in those wars in person, at their own charge: Only a Defensive war, by invasion of foreign enemies, may be sudden: in which case the Law hath not left the king to war upon his own expense, or to rely upon his ordinary Revenue, but hath notably provided, That every Subject within the Land, high and low, whether he hold of the king or not, in case of foreign Invasion may be compelled at his own charge to serve the king in person, as it appears by the opinion of Justice Thirming, in 7 H. 4. The reason of which, in my opinion, was to no other end, than that the king might have no pretence whatsoever for the raising of money upon his Subjects at his own pleasure, without their common assent in Parliament. I do then conclude this Argument, that seeing the Common-Law for maintenance of the King's ordinary charge, hath given him such an ample Revenue out of the interest and property of the Subject, and provided also for sudden occasions; that in so doing it hath secluded and secured the rest of the Subjects estate from the King's power and pleasure; and consequently, that the King hath not power upon any occasion at his pleasure to charge the estate of his Subjects by Impositions, Tallages, or Taxes (for I hold them all in one degree) or any other burden whatsoever, without the Subjects free and voluntary assent, and that in Parliament: If it were otherwise, you see how it were to the utter dissolution and destruction of that politic frame & constitution of this Commonwealth, which I have opened unto you; and of that excellent wise providence of the Common-Law, for the preserving of property, and the avoidance of oppression. These two Arguments used by me, that of Certainty, and this of the provision made by the Common-Law, are in my poor opinion, Arguments of direct proof, that the King cannot Impose. I will now, according to my division, urge an Argument or two of Inference and presumption; the rather, because Arguments of this nature have been much enforced by those who have maintained the contrary opinion, Sir Francis Bacon. (especially by Mr. Solicitor:) I call them Arguments of inference, and yet in my opinion, those which I shall urge are also of good proof; such as they are, you shall judge of them. They are drawn either from the actions or forbearances of the Kings of this Realm, or, from the actions and forbearances of the people. First, in the actions and forbearances of the Kings, Arguments drawn from the actions of the Kings, that they have no power to Impose. I observe, that all the Kings of this Realm since Hen. 3. have sought and obtained an increase of Custom, more or less, by the name of Subsidy, of the gift of their Subjects in Parliament: Nay, some of them, and those not the weakest in Spirit, or power, but the most courageous and potent in that whole rank, even that mighty and victorious Prince, King Ed. 3. being to undertake a just and honourable war, than which there could not happen a better or juster occasion to have made use of his Prerogative of Imposing, did nevertheless at that time stoop so low in this point, that he did in full assembly of the three States, pray his Subjects to grant him a Relief in this kind for the maintenance of his war, and that to endure but for a short time; and further, was well content to suffer his prayer in that behalf to be entered of Record to the memory of all posterity: And the succeeding Kings have also suffered the same to be printed, as may appear by the printed Statutes at large, An. 14. Ed. 3. cap. 21. Is it likely, that if any or all these Kings had thought they had had in them any lawful power by just Prerogative to have laid Impositions at their pleasure, that they would not rather have made use of that, than have taken this course by act of Parliament, so full of delay, so prejudicial to their Right, so subject to the pleasure of their people, who never undergo Burdens but with murmuring and much unwillingness: Can there be any thing more hateful to the high Spirit of a King, than to subject himself to the pleasure of his people, especially for matter of Relief, and that by way of Prayer, having lawful power in his hands to relieve himself without being beholding to them? If perhaps the Kings themselves were ignorant of this great Prerogative, which cannot be imagined; had they not always about them wise Counsellors to assist them, and such as for the procuring of favour to themselves would not have failed to have put them in mind of it? Nay, if they had known any such lawful Prerogative, had they not been bound in conscience so to have done? What an oversight was it of King Ed. 3. and all his Counsel, so much to prejudice his right in so beneficial a Prerogative; as to suffer him upon Record, and that in Parliament, to pray for that which he might have taken out of his absolute power? Can there almost be a more direct disclaiming in the Right, (to compare great things with less) if the Lord by matter of Record claim any thing of his villain, it is a disclaimer of the villainage. The Kings of England have other noble and high Prerogatives; I will only name two of them, The making of war and peace, and the raising and abasing of Coin at their pleasure: Did they ever crave the assent of their Subjects in Parliament to make a war? Their advice indeed they have sometimes sought, and their aid for treasure to maintain it. The Prerogative of raising and abasing the value of money hath been oftentimes put in practice by them, and sometimes strained to such a height, that the King might well suppose the Subjects could not but be much discontent therewith: And yet never any King of this Realm did it by assent of Parliament, which perhaps some one mild King among so many would have done, and it may be, would also have prayed his Subjects to yield thereto, only to avoid the grudging of the people, if the seeking of assent in Parliament had not been thought to have been prejudicial to the absolute power of their Successors: and yet, as for some of these Kings, it may be supposed, they made little conscience to prejudice a Successor in one point, that made no scruple totally to depose a Predecessor from his Throne, and all his Regalities, and to usurp it to themselves. And so I proceed to my next Argument of Inference drawn from the actions of our Kings. Some of the Kings of England, as namely; Ed. 2. Edward the 2. in the year of his Reign, and Ed. 3. in the 1. and 24. year of his Reign, as may appear by the Records here amongst us, were contented to accept an increase of their Custom by way of Loane from the Merchants, and solemnly bind themselves to repay it again. Would any wise man in the world, that thought he had but a colour of Right, so much prejudice his himself, as to borrow that which he might take without leave, and bind himself to repay it. If a poor man perhaps through fear might be enforced so fare to yield to a mighty adversary, yet that a powerful man should stoop so low to one much weaker than he; nay, that a King, in a point of such consequence, should so fare descend from his Greatness, as to borrow of his poor Subject that which without being beholding to him he might obtain as his Right; and bind himself to repay it again: I say, it cannot with any reason be imagined; but withal it must be concluded, that a king that shall so do, doth not think that he hath so much as colour of Right to impose. I will not much press or enforce the actions of Ed. 2. who (I confess) was but a weak Prince; Edward the 3. But as for his Son and successor, Ed. 3. there was not (as I have said) a stouter, a wiser, a more noble and courageous Prince than he, and none more careful to preserve the Rights of his Prerogative, as may evidently appear by all his answers in Parliament, on any complaint of the Subject. Besides, never had king of this Realm more occasion than he to strain this Prerogative of imposing to the utmost: For besides his excessive expense in the wars of France and Scotland, he had also a continual charge of many expensive children, his wife Queen Philip had also for her maintenance a large allowance out of his Revenue; but the dowry of Queen Isabella his mother (who lived till about the 27. year of his Reign) was so great, as it is reported by some writers, that little more than the third part of the certain Revenue of the kingdom was left to him: In so much, as through these occasions of extraordinary expense, and the diminution of his Revenue, he was driven to such necessity, as his Queen in the ●… year of his Reign, was enforced to pawn her Crown and Jewels to procure money for him, as may appear by the Record of that year in the Office of the Clerk of the Pels. Nay, the king himself in these extremities, was oftentimes driven to lay his Jewels to pawn for money: And in An. 17. did also pledge his Crown for 4000 pound, to certain Merchants of Florence, as by the Records of that year, in the Office of the Lord Treasurer's Remembrancer in the Exchequer, is manifest. By this you may see, that this powerful king wanted not urgent and just occasion (if any occasion may be just) to have put in practise his absolute power of Imposing; and yet, as you see, it appears of Record, that in the midst of his great wants he took an increase of Custom by way of Loane, and bound himself to repay it. It may be here objected, that he did lay Impositions. What Impositions they were, and how to be compared with the Impositions now in question, I purpose to tell you, when I come to ans●…r objections, which I have referred to the end of my speech: In the mean time I will go on with my course, and urge one Argument more, drawn from the actions of our kings, touching the increase of Custom. A man would think, that the taking of the increase of Custom by all the kings, both one and other, with the assent of their Subjects in Parliament, and sometimes by way of Prayer and Entreaty, for a short time; nay, the taking of it by way of Loane, and binding themselves to repay it; and that to have been done by the most powerful kings, in their greatest necessities, were Argument enough that they did not believe they might justly claim it as their right by their absolute power. And yet is not this all: For, some of them, by name, Ed. 1. Edward the 1. did not only take it by assent in Parliament, or by way of Loane, but (as one that buys for his money in the Market) did give for it a real and valuable consideration, and that to Merchant-strangers, of whom there was more colour to demand it as a duty, than of his natural Subjects. In proof of which I produce Charta Mercatoria, made Anno 31. Ed. 1. whereby it is recited, that in lieu of certain liberties and immunities granted by the king to the Merchant-strangers, as also for the release of Prisage, they granted to the king an increase of Custom. What were all the special liberties that were granted them, I know not, nor whether they continue; but sure I am, that by virtue of that Grant they are at this day free of Prisage, paying only 2s. upon a Tun of Wine, by the name of Butlerage, which they granted by the same Charter: whereas Englishmen pay Prisage in specie, viz. One Tun before the Mast, and one Tun behind. And it is very worthy the observation, how the same King, E. 1. in the same year of his reign did command his Customers throughout England, That whereas certain English Merchants were, as he was informed, of their own accords willing to pay him the like increase of Custom which the Merchant strangers had granted unto him, so as they might enjoy the like liberties and benefits; that nevertheless they should not compel such English Merchants, against their wills, to pay it: the words are worth the hearing: Cum quidam Mercatores de regno & potestate nostri, ut ipsi dictis libertat. (having before recited Charta Mercatoria) uti & gandere, & de prisis nastris quieti esse possint; praestationes & Custumas hujusmodi, de bonis & mercandizis suis nobis dare & solvere velint; ut accepimus, assignavimus vos ad praestationes & Custumas praedictas, de his qui praestationes & Custumasillas gratanter & absque cohercione solvere volnerint, colligendum, & ad opus nostrum recipiendum; ita tamen quod aliquem Mercatorem de dicto Regno nostro ad hujusmodi praestationes & Custumas nobis invite solvendum nullatenus distringatis. What stronger inference can there almost possibly be against the King's absolute power of Imposing, than this: that he was contented, and so specified to all his Officers of the Ports, That if the Merchants did of their own accords pay more than their ancient Customs, they should have consideration for it; But if they themselves were not willing to pay more, than they should not be compelled thereunto. One other observation I draw from the actions of the kings touching the increase of their custom, which is this, that those kings which did lay Impositions (which as I will show you by and by, was very rarely) though it were never but in time of great necessity, and but to endure for a short time; yet they always did it, not with the advice alone of the Merchants, as at this day, but the Merchants did always solemnly grant an increase of Custom; and the kings were always wary, for the better justification of their actions to the people, in their Commissions for collecting of Custom, to recite not only the great necessity which moved them to take an increase of Custom, but also the grant of the Merchants, as may appear by the Records, of which we have the copies amongst us; I dare confidently say, there is not above one or two at the most that are otherwise, if the Impositions be of that nature which these are of which we complain; And yet these Impositions also, by the grant of Merchants, though raised upon never so great a necessity of State, and to endure but for a short time, were always complained of by the Commons, when they met in Parliament, as may appear amongst other Records, by the Parliament Roll of 27. Ed. 3. No. 27. where in a Petition of the Commons, exhibited to the King in Parliament, are these words, Les Commons monstrent comment que les Merchants dyent grant per eux sans assent de Parliament, un subsidy the XLs. de sacc. de Lain, outre le droiturel male tout de demi mark. Et prion que soit amend a rest Parliament. Car est encounter reason, que le Comialtie de lour biens soient per Merchants charges; Which I English thus, The Commons show how the Merchants have granted by themselves, wihout assent of Parliament, ● Subsidy of 40s. upon a sack of Wool, over and above the rightful custom of half a Mark, and pray that it may be redressed at this Parliament; for it is against reason that the Commonalty should be charged in their goods by Merchants: with this agreeth the printed Statute of 36. Ed. 3. cap. 11. in the Statutes at large, where you shall find an express Provision against the raising of Impositions upon Wools, by grant of Merchants, In which Petition I do observe, that the Parliament in those days did distinguish, even as we now do, between Impositions laid by act of Parliament, and Impositions laid only by the grant of Merchants, acknowledging that Impositions laid by Parliament, are only lawful, and condemning all other as unlawful, for otherwise why should they term the demy-Marke, which was laid by Act of Parliament. 3. Ed. 1. (Droiturel maletout) a lawful Imposition: but with relation to the unlawfulness of these Impositions granted by Merchants, which they then did complain of; Besides, I observe that they say, That it is against reason, that Merchants should by their grant, without assent in Parliament, charge the whole Commonalty, by which it plainly appears, that they complained not so much of the excess or greatness of the Impositions, as of the unlawful manner of the raising of it by grant of merchants, without assent in Parliament. Hitherto I have, according to my division, drawn Arguments from that which our Kings have done, and put in practice for the increase of their Custom. I will now make some observations of their forbearance, Arguments drawn from the forbearance of our Kings, to lay Impositions not withstanding their great occasions. to put this pretended power in practice, considering the several occasions of the times, which I will prosecute in order. First therefore in general, I observe, that from the Conquest, until the Reign of Queen Mary, being no less than 480. year's space, (whatsoever the occasions were) whatsoever the disposition of the Kings were, yet in the practice of this pretended Prerogative of Imposing the Kings have been so sparing, as notwithstanding, this curious search, that hath been made (wherein I suppose nothing that might make for the clearing of the Question, hath escaped us) it cannot be found or proved by matter of Record, that six Impositions (such as we now complain of) were laid by all those Kings (who were in number 22. And those six (if they were so many) though they were unlawful, yet were they in some sort to be born withal. First, by reason they were very moderate; Secondly, that they were laid in the times of great and apparent necessity, and that they were to endure but for a year or two; For none of them, except only that upon Wine, laid 16. E. 1. lasted longer. They were (I say) notwithstanding their unlawfulness) yet in these other respects, so fare to be borne withal, as if the impositions which are now laid, had been so qualified, we should I suppose, never have complained of them; and yet not one of these few impositions laid in former times, but was complained of, and upon complaint taken away, as may appear by the Records here amongst us: How much more reason is there then, that we should expect the like Justice now? considering that not one Merchandise alone, as then, but very near all the sorts and several kinds of Merchandises that are, are charged; that not a moderate and easy charge is laid upon them, but such, as though we should confess his Majesty's absolute power, to lay what he list, yet we had just cause to complain of the excessiveness of the Burden: For first, the rates of Merchandises, for the Subsidies of Poundage and Tonnage, are extremely raised (a thing also though lawful, yet hath been rarely put in practice) then comes the Impost upon the back of that, and is as much as the Subsidy itself is; in some few Merchandises, 'tis true, the Impost is perhaps less than the Subsidy, but 'tis as true, that in divers others, the Impost is fare more. Besides, these Impositions were not laid in the time of war, but even then when we were at peace with all the world, except perhaps there were some sparks of Rebellion in Ireland, than not fully quenched. Lastly these Impositions are not (as those in former time were) limited to endure for a year or two, but are to come to his Majesty, his Heirs and Successors for ever, as may appear by his Majesty's Letters Patents in print, prefixed before the new book of Rates. So as if those few Impositions laid in former times, had been lawful, yet can they not by any means be a warrant or precedent for our present Impositions, differing so far from them in all these points of consequence. But if even those few, so qualified as they were, were complained of and taken away, what shall we then say of ours, so fare exceeding them in all the degrees of Irregularity; Besides, if so few Precedents, as five or six in so many years space, and those in times of so great necessity, without any express Judgement in Law; or good authority in approbation of them, but accompanied with as many complaints against them, be argument enough to prove the lawfulness of the act, I dare undertake, that as well taxes within the land, as Impositions upon Merchandizes may be proved to be lawful: But to allege the acts of kings, in raising a profit to themselves upon their Subjects, to prove thereby their right, is of all other arguments that are, the weakest, and so I leave it, and call to mind, that when I told you, it could not be proved by the Records amongst us, that from the Conquest to Queen Mary's time, there had been any more than six Impositions laid; I did in that number, limit myself to such Impositions as those are which we now complain of, for I must confess, that in that space, many more Impositions were laid, but they were of a fare differing nature from ours, differing I say, not only in those circumstances, by which I did even now compare the Impositions of these times to those five or six of former ages, but in very essence and property, insomuch as they may not properly be called Impositions, and yet the frequent practice of them hath been objected and relied upon, as so many Precedents, to prove the lawfulness of the Impositions now complained of: It behoveth me therefore, that in maintenance of my assertion, that so few Impositions have been laid, as I have affirmed, that I open unto you the difference between the one and the other, which being done, yourselves will easily judge that the greater part make nothing towards the defence of these present Impositions; For these Impositions which now are in question, are no other than an increase of Custom, at the King's pleasure, and commanded by him to be taken, the passage being free and open to all men. Those other which make such a great show in number, and are produced as so many Precedents in maintenance of these, are no other than so many Dispensations or Licences for money, to pass with Merchandizes prohibited by Act of Parliament to be exported, as will evidently appear by comparing the times, and examining the Statutes. I will therefore in this place, as shortly as I can, run over those Precedents that have been, or may be alleged by the contrary part, out of those Records which are here amongst us, and leave it to your judgement, whether I maintain my assertion, or be not rather better than my word for the number. The first Imposition by them alleged, Urged by Flem. Clark. Doderig. is that of 16. Ed. 1. which as it appears by the Record, was 4. shillings upon a Tun of Wine. This indeed, for aught I know to the contrary, was a mere Imposition, such as are now in question; and yet if I did deny it, and say that it was laid by assent of Parliament, I know not how the contrary could be proved, for though indeed the words of the Record are (Cum Rex precipisset, ut de singulis doliis vini caperentur 4. solidi) it follows not that it was laid therefore only by the king's commandment, for we see that even some Acts of Parliament, in those ancient times, though they were made by the full assent of all the three Estates, yet they have these words in their preambles, (Rex precepit: Rex vult.) But as for recitals of Acts of Parliament by the King, in his Commissions, and otherwise, it was in those times usual to say, (Cum nuper ordinaverimus) and therefore notwithstanding the Recital be (Cum nuper Rex precipisset) it is no clear proof, that therefore it was done only by the King's Commandment. Nevertheless I will, I say, admit this to be a mere Imposition, and to be one of the number, and indeed, as this is the first they produce, so is it their best, only this (amongst all the rest) is not limited to endure for a time certain: but give me leave (I beseech you) to open unto you, with what circumstances this Imposition was accompanied, and what followed of it, and then I will leave you to judge (who best are able) how far the present Impositions may be justified by this; The first circumstance to be observed in this Imposition, is that it was laid immediately after the war against Wales was ended, and at the time, when for the selling of the Estate of Gascoigne, the king himself was in person enforced to undertake a voyage thither, as may appear by our Histories of those times, which also may be collected by the very words of the record which are these, Cum Rex ante ultimum Recessum suum ab Anglia precepisset, etc. That as these times were troublesome, they were also very chargeable to the king, and did put him to try all means for the levying of money, I shall not need to urge it, it cannot be otherwise. One other circumstance is this, that this imposition laid in this time of great necessity was not, as now, upon all Merchandizes, nor so much as in general upon one kind of Merchandise, coming from all the parts of the world, but only upon such wines as were brought hither from two Towns in Gascoigne, Bergerac. and St. Emilians, 16. E. 1.22. E. 1. in Scacario. as may appear by the Records, and it is probable that these Towns were then in revolt, & that the sooner to reduce them to obedience, the King laid this burden upon their commodities, thereby to hinder the vent of them. Another circumstance is this, that though that this Imposition were indeed laid without limitation of any time, as touching the continuance thereof, yet within six years following, viz. 5. Decemb. a. 22. upon complaint of the Merchants the king released two shillings of the four shillings, as may appear by the Records of 22 E. 1. with which the Merchants not holding themselves contented, the very same year within eight or nine months following, viz. 23. Juliian. 22. the whole Imposition was released, as may appear by a recital in the account of one William Randall receiver of the Impost money entered, an. 26 E. 1. And within three years after the release, viz, an. 25. there followed an act of Parliament against all Impositions in general, as when I come to show you what Statutes there are, in the point, I shall I hope clearly prove unto you; In the mean time I will proceed to examine the rest. The next precedent urged is an imposition of 40. shillings upon a sack of wool laid by E. 1. an. 21. For the proof of which, a record of the Exchequer of that year hath been vouched. I must confess I have not seen that Record, but by another Record of the same Court, a. 26. E. 1. it is evident that the said Imposition was not raised by the king's absolute power, but by grant, and that also the same was in the time of war, and to endure but two or three year, if the war should so long continue, as will best appear by the words of the Record. Cum custuma 40 nobis in Subsidium guaerrae nostrae contra Regem Franciae de quolibet sacco lanae exeunte regnum nostrum percipiendum per biennium vel triennium si tantum durasset guerra illa nuper concess. fuit, etc. By this you perceive, by what means, upon what occasion, and with what limittation this imposition was laid: if you will further know, what followed of it, May it please you to read the Printed Statute of an. 21. E. 1. c. 7. where it is said that the more part of the Commonalty found themselves sore aggrieved therewithal; And by the same Statute, not only that imposition of 40. shillings upon a sack of wool, which was the occasion of the great grief & complaint was taken away; but upon occasion thereof, there was at the same time provision also made, against all other impositions whatsoever, as I say, I hope I shall anon clearly prove unto you, Insomuch as this imposition of 40. shillings upon a sack of wool, aught to be so fare from being urged as a precedent for the present imposition and consequently of the grievance of the Common wealth which follows thereupon, as that rather on the contrary part it may be thought to be the happiest accident in the consequence thereof, that ever befell the Common wealth in this kind. For it was the occasion of the making of the first law that ever was made against impositions, and other charges and burdens of that nature to be imposed by the king's absolute power without assent of Parliament. And so I leave their second Precedent, Vouched by Fleming, Clark, Dodderidge, Bacon, Attorney Hobart. and come to the third, which in time was 31. of the same King E. 1. It is no other than that increase of Custom, which by the Merchant strangers was granted to king Ed. 1. by that Charter now familiarly known unto us by the name of Charta Mercatoria, which by all that have maintained his Majesty's right to impose, hath been stood upon and urged, as an imposition by the king's absolute power; but more especially hath Master Solicitor been strongly enforced with all the advantage possible for the maintenance of his opinion. Nevertheless I doubt not but I shall give it a very full answer, such as yet this objection hath not received, though divers that have spoken before, and some this day, have undertaken to clear it; wherein I will arrogate nothing to myself, but leave it wholly to your censure. It hath been said by Master Solicitor, that though this increase of Custom may seem to some, to proceed from the grant of Merchants, yet that this grant of theirs was to no other purpose, nor had other effect, then only thereby to declare their assent; For that, that those which did grant were no Corporation or body in the estimation of Law, and so could not bind any but themselves alone, and not such as should succeed them. And that it was only the authority of the king's pleasure to accept and take this increase of Custom that gave it life at the first and strength to continue as an Imposition till this very day. For even at this day saith he, the 3. pence upon the pound granted by the said Charter, is paid by the Merchant's strangers, and they likewise enjoy some privileges granted by the said Charter. And it was further by him observed; that notwithstanding all the Statutes that have been urged against impositions, yet this imposition hath continually stood and hath never been denied to be paid by any man; And that therefore it is likely that no man till now ever conceived that these Statutes were made against impositions upon Merchandizes, but were rather to be understood to extend only to impositions within the Realm. To this objection, 27. E. 3. No. 27 13 E. 3. c. 26. I make this Answer, that it is indeed true, that the grant of Merchants in this case, cannot bind the whole Common wealth; as I have heretofore proved by the Petition exhibited in Parliament by the Commons 27 Ed. 3. No. 27. and by a Statute of 36 E. 3. c. 26. And therefore I cannot but confess that this increase of custom may very truly be called an imposition, For that indeed it did at first take strength, only by the king's pleasure to accept it (as hath been said) and not by the grant of the Merchants, admitting it therefore to be a mere imposition; Let us consider with what extraordinary circumstances it is accompanied. First (as you may perceive by the Record itself, and as it hath partly been said already, the King took it not without yielding recompense for it; For the Merchant's strangers, by submitting themselves unto this charge, obtained divers liberties and immunities from the King, by the same Charter, amongst which freedom from Prisage is one which at this day they enjoy, In which respect this imposition is in some sort tolerable, though not at all Lawful. Another considerable circumstance, and difference from our present Impositions is this, that it was a composition made by the King with Merchant strangers, which though it be by strictness of our common law, not of force to bind in perpetuity; yet how fare by the Civil Law this doth bind strangers, which are governed by these laws, is not so easily decided, and this may be a good colour to uphold it. These special reasons, though they may well serve the turn, to make an evident difference betwixt this, and our present impositions, and so consequently to avoid the conclusion, drawn from the Precedent, and may also seem colourable, and particular reasons to uphold the Imposition itself; yet is not this that which I mean to rely upon for Answer; For even this Imposition, in recompense of which the King parted with so large privileges and benefits, and which because it concerned only merchant strangers, did neither in the burden thereof, nor in the precedent, so directly touch the English, yet in the detestation, as it seems of all impositions of what nature or kind soever, and upon what pretext or colour soever they were grounded, I say, even this imposition also was complained of in Parliament within few years following; and upon complaint, taken away, as may appear by the close Roll of 3. Ed. 2. Membrana 23. Where you shall find enrolled a Supersede as, commanding that the new Custom, granted by the Merchant strangers (reciting the particulars, as they are contained in Charta Mercatoria) shall cease at the King's pleasure, and this is there said to be yielded to at the request of the Commons which cannot be but in Parliament; but because the renewing of it again rested at the King's pleasure, therefore within two years after, by a public Ordinance made by the principal Prelates, Earls and Barons, and other great men of the Kingdom, authorised by the King's Commission, dated the 16. of May, the same third year of his reign, the Charter itself was declared to be utterly void, For that it was hurtful to the Commonwealth, against Magna Charta, and made without assent in Parliament; and not only that Charter, but all other new Customs or Impositions whatsoever, imposed since the Coronation of Ed. 1. till that time were also taken away, saving only the old custom upon Wool, Wooll-felts, and Leather, And further it was ordained, That if any man should presume to take any more than the ancient custom rightfully due, and should be thereof convict, he should answer to the party greeved his Costs and Damages, be imprisoned according to the quantity of his offence, and be further punished, as an offender against Magna Charta, according to the discretion of the Justices. Ro. ordinationum 5. Ed. 2. in the Tower. Though the force and authority of this Ordinance, may perhaps be doubted and blemished because it was made by the Barons, at the time when they had the better hand of the King, as hath been in part objected, yet you see that they deliver not their censures, without alleging also their reasons; 37. E. 3.20. and this their Ordinance is no more in effect, then that which was thought fit by all the Commons in the Parliament of 5. Ed. 2. before mentioned. But it hath been yet further said, that notwithstanding this Ordinance, the imposition doth nevertheless continue in force, and is at this day paid by the Merchant strangers, and that therefore in likely hood, the ordinance prevailed not against it. 'tis true that at this day the Merchant stranger doth pay three pence more in the pound for Subsidy of poundage, than the English doth, and that by virtue of Charta Mercatoria: But let me tell you that Charta Mercatoria in itself, had not strength and virtue sufficient to subsist for so long a time: It was as I have said suspended by the king himself, a. 3. condemned by the ordinance of 5 E. 2 and had at this day been of no more force, than it was all the time of Ed. 2. after 3o. that is, of none at all; had it not been confirmed by act of Parliament an. 36. Ed. 3. cap. This was only that which protected Charta Mercatoria against all those Statutes made against impositions, and that hath kept it in life till this day; And this indeed (I mean an act of Parliament) is the only means that our Law acknowledgeth, for the laying or establishing of impositions, and without which they cannot long last. You have now heard opened three of those six precedents, which are most relied upon for mantenance of these present impositions which are all that have been urged, or can be found to have been practised from the Conquest till the reign of Ed. 3. during which time there are as you see, as many public acts in opposition of them, which are of so much the more force in that they are the Legal regular Acts of great Counsels, whereas on the contrary part, those three impositions were the acts of powerful King's wills, in the times of extreme necessity, As for Ed. 2. Edw. 2. his successor, there hath not been one Imposition alleged to have been laid by him of one kind or other. Nay all the records touching this business found in his time being only four make directly against them. The first is anno 3. which was (as you have heard) a release at the Kings will, upon complaint of the Commons, of the Impositions raised by Charta Mercatoria. The second was the Ordinance made an. 5. declaring Charta Mercatoria, and all other impositions to be void, and inflicting punishment upon such as should demand any. The third was, an. 11. which is a Supersede as to discharge certain commodities from yielding an increase of Custom granted by Merchants, by way of loan, which in great probability the King would never have released, but upon complaint; the rather I think so, because as the Record recites, it was granted in a time of great necessity. The fourth is, anno 12. and is much of the same nature, the recital of which contains some very observable things, which I will open unto you: It shows first in very effectual words the greatness of the King's wants, and the causes thereof, the words are, Cum pro expeditione guerrae nostrae Scotiae, & aliis arduis necessitatibus nobis multipliciter incumbentibus, pro quarum exoneratione quasi infinitam pecuniam profundere oportebit, pecunia plurimum indigeamus in presenti; ac insuper, pro eo quod exitus Regni & terrae nostrae simul cum pecunia nobis in subventionem praemissorum tam pro Clerum quam pro Comunitatem Regni nostri concessa ad sumptus predictos cum festinationem qua expediret faciend. non sufficiunt: Here was cause, (if any cause may possibly be just) for the King presently to put in practise his Prerogative of Impositions, his expense by reason of a necessary War in Scotland was so great, as the whole Revenue of the kingdom, together with an aid which had been lately granted him, could not with that expedition that was requisite supply his present want, doth he for all this make use of his Prerogative of imposing? or doth he hastily for want of advised proceed, take some other course prejudicial to his right? No, the record further says, that he enquired by all ways and means how he might most commodiously and fitly levy money for these occasions. After which advised deliberation, the course at last resolved upon, was not by absolute power to lay Impositions, which of all other courses (if it had been lawful, had been the most speedy and beneficial) but a course more justifiable; which was, that Merchants should be called together, and that they should be entreated to lend the King upon every sack of wool 10. shillings and upon every last of Leather 5. shillings, above the ancient custom, and that for their security of true repayment, without fiction or delay, which are the words of the Record, (whereby it seems that only a pretence of a Loane and repayment had been before that time used to colour Impositions, commandment should be given to the Customers to certify into the Exchequer, the names of every particular Merchant, that should so lend unto the King, that they might accordingly receive full satisfaction. And 'tis worth the observing, that this Loane was for no longer time, Then from April, till October following; thus much is warranted by the Record: So as you see that in all this time of this King, Ed. 2. Impositions were not only altogether forborn even in the times of his greatest necessity, but they were also condemned as unjust and utterly unlawful. We come now to the reign of King Ed. 3. Ed. 3. in whose time there was no practice or means, that by the policy of man could be thought on to bring the people under this yoke of Impositions, without assent of Parliament, but it was by him attempted: Insomuch, as I have in my observation out of the Records collected no less than five or six several ways all of them very colourable, which in his time were put in practice for the raising of impositions, and yet none of them but was resisted by Parliament and condemned. That which was most usual with him was that Merchants should grant to pay him so much upon every Commodity exported or imported by way of increase of Custom; Impositions by way of Grant of Merchants. this seems not unreasonable, for that every man might grant of his own what he listed, and this also to make it more colourable was never attempted, but in the time of war: And yet as it hath been pastly said already, this was always held unlawful, as may appear by the Record of 17 E. 3. 17 E. 3. No. 27. Ro. Parl. where the Commons in Parliament say that it is a great mischief, and against reason, that they should be enforced to pay the dearer for Commodities, by reason of a charge upon Merchandizes, by the grant of Merchants, anno 25. Edw. 3. 25 E. 3. No. 22. Ro. Parl. the which is a charge to the people, though none to the Merchant; the Commons reciting, that whereas Merchants have granted a new increase of Custom to the King, pray that Commissions to collect such new increase of Custom, by singular grant of Merchants be not awarded, anno 36 Ed. 3. cap. 11. (Amongst the printed Statutes) Grants of Subsidies upon Wools by Merchants without assent of Parliament are declared to be void, which act was made upon a Petition of the Commons in anno 36 Ed. 3. desiring a Law to be made to the same effect. If impositions raised by the Grant of Merchants, 36 E. 3. No 26. Ro. Parl. (which I suppose to have been by some public and solemn instrument, under the hands and seals of the principal Merchants of all the great Towns of England, being called together for that purpose; were not of force in this behalf) much less, was their bare assent without any such solemnity, which also was a course in practice in the days of Ed. 3. And was also used in the laying of these present impositions, which we now complain of. Another means of raising impositions used by Ed. 3. was by way of dispensation for money with some Statute in force, Impositions by way of Dispensation with a penal Law. which restrained the passage of Merchants; most of his impositions of one kind or other, laid after 11. were of this nature, for anno 11. cap. 1. amongst the printed Statutes, you shall find it enacted, that no man upon pain of Death, loss of Lands, and Goods should export Wools: Stat 11. Ed. 3. cap. 1. immediately after the making of this Statute Impositions, by way of Dispensations for money, came to be so frequent and burdensome that the very year following the King being in person to undertake a War in Scotland, and for the raising of treasure having laid heavy impositions in this kind, which he perceived to be very burdensome to the people; he wrote to the Archbishop of Canterbury (his Letter is extant upon Record) to this effect; that whereas the people were much burdened with divers charges, tallages, 12 E. 3. No. 22. Ro. Aleman. and impositions (which he could not mention but with much grief) but being enforced by inevitable necessity could not as yet ease the people of them, he required the Archbishop to exhort the people patiently and humbly to bear the burden for a while, and to excuse him towards the people, hoping he should ere long recompense his said people, and give them comfort in due time. His necessities were nevertheless so great, and this means of raising money was so colourable (seeing no man was compelled to pay that did not himself desire to be dispensed with, for the breach of a penal Law, by which his life, goods and lands were forfeited) as he spared not to lay on load in this kind; Insomuch as you shall find that in An. 13. he took for dispensations to pass only to Antwerp of Englishmen 40. 13 Ed. 3. Orig. de Scac. Ro. 3. & 12. shillings upon a sack of Wool, 40. shilllings upon 300. Wooll-fells, and 4. pound upon a Last of Leather; Of strangers 3. pound upon a Sack of Wool, 3. pound upon 300. Wooll-fells, and 6. pound for a Last of Leather, whereas the ancient and due custom was no more than 6. shillings upon a sack of Wool, the like upon 300. Wooll-fells, and 13. shillings 4. pence upon a Last of Leather; 13 Ed. 3. no. 5. Ro. Parliam. Immediately hereupon, even this very year, was this complained of in Parliament, and a Petition exibited by the Lords and Commons, that it might be enacted, that this Maletolt or Imposition, because it was taken without assent of Parliament, might be taken away, and that a Law might be made, that no such charge might be laid, but by assent of Parliament: And they further prayed, that they might have a Charter under the great Seal, confirmed and enroled in Parliament, to the same effect, which was performed the next Parliament, as may appear by the Statutes printed, where, An. 14. Ed. 3. cap. 21. 14. Ed 3. cap. 21. you shall see an act of Parliament to this effect, and that a most effectual one. And immediately after, follows the Charter to the same effect, of both which I shall have more occasion to speak hereafter; But such were the King's wants, that even in the mean time, between the petition, and the making of the act, he could not forbear to raise money by this means, For in An. 14, the Eleventh day of March, 14. Ed. 3. Ro. 3. orig. de Scac. in the end of which month the next Parliament began (as may appear by the Preamble to the Statutes of that Parliament) he took by way of dispensation, 40. shillings upon a sack of Wool, when it should be safely landed at Brussels, and 40. shillings at the port within England, which was indeed an intolerable charge: but the better to colour it, the King in his Commissions for collection thereof, pretended that the Merchants had been humble suitors to him, that the passage for Wools might be open till Whitsuntide following, and that to obtain the same, they had of their free wills offered to give him the said sums, as may appear by the recital, in the beginning of the said Record. In further prevention of this mischief, Stat. 27. E. 3. cap. 2. in an Act of Parliament printed, made An. 27. Ed. 3. cap. 2. there was a special provision made against all Licenses to Transport: Nevertheless as it may be collected by a Record of the same year, the King raised 40. Orig. de Scac. 27. E. 3. Ro. 7. shillings upon a sack of Wool, 40. shillings upon 300. Wooll-fells, and 4. Pound upon a Last of Leather, by the same means (I mean by way of dispensation.) For though indeed it be recited to be granted by Merchants, yet was it not otherwise granted by them, then for Licenses to transport, For at that time the Staple of Wool was in England, as may appear by the printed Statute of 27. Ed. 3. cap. 1. & 2. 27 Ed 3. cap. 1. &. 2. And here I think it fit to make this observation in general, that whereas in some other of the Records of Ed. 3. there is mention made of Impositions upon Wools, granted by Merchants, because the passage of Wools was in those days so often restrained by Statute, as may appear by very many printed Statutes of that time, it is very likely that these grants of Merchants, were also for dispensations to transport, Yet you shall find an act of Parlia. for free passage. An. 15. Ed. 3. as appears that this of 27. was, and it may well be, that some of the Statutes, being but temporary, were not committed to the Press; This kind of Imposition, by way of dispensation, I find not to have been at all practised from 27. till 39 where without any colouring of the matter, with pretence of the grant or gift of Merchants, or any recital of suit made by Merchants, to have the passage open, as usually in former times, 39 Ed. 3. Ro. 2. Orig. Scacario. but plainly and aptly the King recites, That whereas English Merchants were by Act of Parliament restrained to transport Wools, Nevertheless, upon advice with his Counsel, he thought fit to give leave that such as would, might transport Wolls, paying 46. shillings 8. pence upon a sack, which the King commandeth to be levied. This Imposition lasted a very little while, For the next Parliament following, the Subjects granted to the King a Subsidy, upon Wools, Wooll-fells, and Leather, to endure for a very short time; and yet, as it appears by the words of the Record, the King doth thank his people for it, with all his heart: at which time, for the maintenance of his wars in Scotland, he obtaineth the continuance thereof for two years, at the end of which two years, 43. Ed. 3.9 & 10 Ro. Parl. he further obtaineth, in Parliament, a continuance of the same from Michaelmas following, for three years, for the supply of treasure for the war. Two years following, viz. in An. 45. Num. 42. Rl. o. Parliam. the Commons doubting, as it seemeth, that the King had secretly concluded to increase (by way of Imposition) this Subsidy, which was yielded to in Parliament, and granted for three years, made a conditional petition, that if any Imposition be laid upon Wools, Wooll-fells, or Leather, more than the Subsidy granted in Parliament, that it may be taken away: the King answereth, That if any be laid since the Statute, it shall be taken away; and then follows the printed Statute, An. 45. Ed. 3. cap. 4. That no Impositions be laid upon Wools, wooll-fells, or Leather; which is the first place where I find Impositions named in our printed Books; I find them first named upon my Latin Record, 12. Ed. 3. in the King's Letter to the Archbishop: and first upon any Record in French, not printed, An. 21. Ed. 3. Num. 16. Ro. Parliament. But to proceed: about a year following this Parliament of 45. (near which time, the Subsidy granted, An. 43. 46. Ed. 3. Nu. 10. Ro. Parl. for three years, was expired) there was another Subsidy of Forty three shillings four pence upon a sack of wool, as much upon Twelve score Wooll-fells, and Five pounds upon a Last of Leather, above the ancient customs, granted in Parliament, for the maintenance of the war in Guienne, to endure for two years; For which, the King likewise gave thanks. The next year following, the Subsidy granted the last Parliament, 46. Ed. 3. Nu. 12 Ro. Parl. was continued from Michaelmas, for a year, without any condition, and for the next year, upon condition (amongst other things) That no Imposition be laid during the two years, 48. E. 3. Ro. 2. Orig. de Scac. and that the money levied, be employed upon the wars. In the next year following, the King took, as by the grant of Merchants, upon a sack of Wool, of Denizens Fifty shillings, and of strangers four Marks; upon 240. Wooll-fells, of Denizens Fifty shillings, and of Strangers Four Marks, and upon every Last of Leather, of Denizens Five pounds, and of Strangers Eight Marks; Though this Record pretendeth nothing but the grant of Merchants, yet it is upon the matter no other than a dispensation for so much money, For at this time, the passage was not open, other then to Calais, where the staple than was, as may appear by the two Records of 38. Ed. 3. Ro. Parl. & 50. Ed. 3. Num. 24. And yet you may see how hateful, even these Impositions, by way of Dispensation (which are fare more tolerable than our present Impositions) were in those days: For within two years following, one Richard Lions, 3 5●… 1●…●… Farmer of the Customs (amongst other things laid to his charge) was accused in Parliament for setting or procuring to be set, new impositions (not showing of what nature) without assent of Parliament, and was adjudged to forfeit his Goods and Lands; 50 E. 3. N. Ro. Parl. but more particularly the Lord Latymer, Lord Chamberlain of England, was expressly accused, that he combined with Richard Lions and others, who for their own profit, had procured and Counselled the King to grant many Licences for the transporting of great quantities of Wool beyond the Seas, other then to the Staple at Calais, against divers Ordinances and Commandments to the contrary, and had put upon Wools and Woolfells new impositions; Here you see that the device of Dispensations for money, had the name of an Imposition in those days, though indeed it be not in its nature a mere imposition, or at least not such a one as those are which we complain of: But such as it was, you see how from time to time it hath been condemned, and how it is reckoned up amongst the most heinous faults of those two great offenders, who though perhaps they were condemned also for other offences, yet the laying of these to their charge, did show the great hate generally conceived against impositions of this kind; I might here further add in proof of the invalidity of these Dispensations, that certain Merchants having obtained some of these, and having also the advantage of the King's Proclamation to dispense with the Statute, which restrained their passage, yet they never thought themselves secure from this punishment of the Statute, till they were provided for by Act of Parliament, as may appear by a Statute printed, anno 35 Ed. 3. cap. 21. To allege therefore any of this kind, thereby to prove the lawfulness of ours cannot but argue a weak cause. For first (as I have said) there is fare more reason and colour for these, then for ours; for in this case no man was compelled to pay, that did it not to avoid a greater mischief, for by paying the Imposition, he was free from a grievous punishment for breach of a penal Law, which restrained his passage; whereas in our case a charge is laid upon him for exercising his lawful Trade, where no Statute Law, or Common Law is to the contrary, but rather both the one and the other make for him. But it may be here objected, that the King may Lawfully restrain, the breach of which restraint, is a contempt and against Law, and that to impose doth imply a restraint upon a penalty. Suppose it were so, yet if in case where the restraint is not only by the King, but the whole Estate assembled in Parliament, for some urgent cause it be unlawful to give Licence for money (as you perceive it is) how much more is it so, where the restraint is for no other purpose then to raise an imposition as in our case; but of this more largely hereafter. Another devise of raising impositions without assent of the Commons in Parliament, Impositions raised by way of Ordinance in Parliament practised by Ed. 3. was by way of Ordinance, which indeed is in the next degree of strength unto a Statute. For it is a Constitution made by the king himself, and all the Prelates, Earls, and Barons, not at the Counsel Table, or in the King's Chamber; but sitting solemnly in Parliament, and hath also the like solemnity of enrolment that a Statute hath, only it is enroled in a Roll by itself, which hath the name of the Roll of the Ordinances; But the only essential difference between this and an Act of Parliament, is, that this hath not the assent of the Commons. Some Ordinances have had that estimation amongst us, that they have at this day; the force of Statutes as the Ordinance of Merton, made 20 Hen. 3. (which though it were no other than an Ordinance made by the King, the Prelates, Earls, and Barons, without assent of the Commons, yet hath it by continuance of time gotten not only the strength, but the name also of a Statute. There be some others of this by nature, and we find it usual, that the names of Statutes and Ordinances, have been Indifferently and confusedly used, to express the one or the other. So as there was not any other more probable devise or invention to have brought the people under the yoke of Imposition, without their own assent, than was this, by the way of Ordinance; Nay to add yet a further strength to this high authority of an Ordinance in Parliament, the assent also of Merchants was usually joined therewithal, to make it have the clearer passage with the Subject; and further it was never, but in the time of war. The first imposition of this kind by way of Ordinance, 7 Ed. 3. R 9 Orig. de Scac. which I find amongst the Records was 7 E. 3. amongst the Originals of the Exchequer, where it is said by way of recital, that the King considering how Merchants (which make great gain by trading) ought aswell as others to assist him with treasure for his War, especially considering how at their entreaty he had placed the staple in England: Therefore at his Parliament held at York, by the Prelates, Earls and Barons, it was ordained that the Merchants should yield unto the King a Subsidy upon Merchandizes: This Subsidy or rather Imposition, thus solemnly ordained, and in the times of so great necessity, was no sooner established then revoked, as may appear by the words immediately following in the same Record, whereupon the Merchants of their own accords yielded, and freely gave ten shillings upon a sack of Wool, as much upon three hundred Woolfels, and twenty shillings upon last of Leather, for a short time by way of Dispensation or Licence towards the maintenance of the War. The like is found, anno 20. E. 3. 20. Ed. 3. Nu. 18. Ro Parl. where the Commons complaining of an imposition of this kind, laid by the Prelates, Earls, and Barons in Parliament, and by the agreement also of Merchants; It was not denied unto them, but that their suit was just; only it was answered them, that as yet it was not convenient to take it away; For that the King had taken up great sums of money of divers Merchants, for his present necessity, to be repaid out of the said Subsidy, and therefore it could not be as yet discharged without great damage to the King and the Merchants. But the most material Record against Impositions by way of Ordinance, is the year following, where the King in excuse of impositions complained of, answereth that they were laid in times of great necessity, and by the assent of the Prelates, Earls and Barons, and other great men, and some of the Commons then present, nevertheless his pleasure is, that such impositions not duly laid, be not drawn into consequence, but taken away 21 E. 3. No. 17. There are some others of this kind, but never any that did abide the trial, though they have always been accompanied with all such circumstances, as were most likely to give them passage without controlment, as to be laid in the time of war, to be limited to a short time, with consent of Merchants. If the authority of an Ordinance in Parliament, joined with the assent of Merchants, were in those days not of force sufficient to uphold Impositions, much less will an Order of the King and his Counsel out of Parliament, uphold them at this day, especially after so many years discontinuance. Another invention to raise impositions, Impositions raised by way of Loane by Merchants. practised by Ed. 3. and in former times, was by way of a pretended or feigned Loane from the Merchants, of so much above the old custom upon Merchandise exported or imported, which Loane was never repaid to the Merchant. That this was an old practice, may be collected by the precedent, 12. of Ed. 2. already cited, where the King promiseth, that without fiction, or delay, he would repay them their money, implying thereby, that sometimes fiction had been used, and doubtless that loan which was 11. Ed. 2. the very year before, was such a feigned Loane as I speak of, for otherwise (without question) the King would not have released part of it, as may appear by that Record that he did; For if the money be, bona fide, borrowed, and truly intended to be repaid, then doubtless the course is lawful; if otherwise, I hold this kind also as unlawful as any of the rest. Edward the Third did once or twice borrow in this kind, as may appear by Records already cited to another purpose, with which I will not again trouble you. There was yet another Device for raising of Impositions (begun indeed by Ed. 1.) and condemned in the time of Ed. 2. Impositions raised by grant of Merchants, for Liberties granted to them. but revived, and much practised by Ed. 3. which was also by way of grant of Merchants, and yet not altogether the same that I first observed to have been so much practised by Ed. 3. but is much more colourable and tolerable. For whereas that was a grant, or rather a mere gift, without any thing granted back again in lieu thereof; this I now speak of, is a solemn grant indeed, made by Merchants, of an increase of custom, for liberties and freedoms, and other valuable privileges, and exemptions, granted unto them by the King: that former was, date nihil expectantes; this is, date & dabitur vobis, and indeed the recompense that the Merchants had by this Charter granted unto them, made their grant to the King less subject to control, than otherwise without such recompense it would have been; I mean the grant of Merchant strangers, so often remembered amongst us, by the name of Charta Mercatoria, which though it were damned all the time of Ed. 2. from the third year of his reign, yet was it revived by E. 3. (Even that very year, when he likewise deposed the King his father, and usurped to himself his Crown.) For it appears by the Records, that he commanded the same to be levied the very first year of his Reign. 1. Ed. 3. Ro. Fin. What hath been said against this kind of Imposition, I shall not need here again to repeat, only let me call to your remembrance, how this Charter, as needing a better prop than his own strength, and Validity in Law, was in the same King's Reign confirmed by Parliament, and only by that strength continueth in force at this day. You have heard five or six several politic Inventions and Devises for the easy drawing on, and sweetening of this yoke of Impositions, all practised by this prudent and potent King, Ed. 3. whose times were indeed so troublesome, and his charge every way so excessive, as it is no marvel, that he left not any way unattempted, to raise money, without the assent of the Commons, whom he always found unwillingly and hardly drawn to matters of charge. One other way of Impositions he used, Impositions laid by express and direct Commandment. not coloured or masked under any such pretence, or politic Invention, as you have heard, but plain and direct, only his own express commandment to his Officers, to collect of every Merchant so much for such a commodity, exported or imported, and to answer it into his Exchequer, without any recital in his Commissions, of Grant, Assent, Gift, Loane of Merchants, Dispensation, or Ordinance in Parliament, or any other such colourable pretext whatsoever. These indeed, and only these are mere Impositions, and may be aptly compared with these of our times; Of this kind, amongst all the Records of Edward the Thirds time, I find only two, which I will truly open unto you; The first is in the Twenty one of his Reign, where it appears that Lionel afterwards Duke of Clarence, named upon the Record, 21. Ed. 3 not 11 Ro. Parliam. Lionel of Antwerp, because I suppose, he was there borne, the King's second son being then Guardian of England, whilst the King his father was at the siege of Calais, at a counsel by him held the same year, which I take to be no other than the Privy Counsel, assessed without assent of Parliament, upon every sack of Wool Two Shillings, upon every Tun of Wine Two Shillings, upon every Pound of Aver de boys of Merchandizes imported, Poundage imposed. Six pence. This Imposition was, I must confess (for aught I know to the contrary) such as our present Impositions are, I mean, in that it was imposed only, and simply by the King's absolute power, and may in that respect be the Fourth (of that number of Six) which I told you were all that could be found in any degree like to ours, ever to have been practised in this Commonwealth, from the Conquest, till Queen Mary's time. But though in the authority of imposing, it be like, yet in circumstances very material, you shall find an apparent difference between them. First, this Imposition is very moderate in the sum, as you may perceive, for it was but Two Shillings upon a sack, whereas in 13. Ed. 3. forty Shillings upon a sack of wool was usual, and sometimes fifty shillings. Secondly, it was to continue no longer then till Michaelmas following. Thirdly, it was laid in the time of a most chargeable war, and ordained to be employed for the maintenance of Ships of war at Sea, for the safeguard of Merchants in their passage, of which it is apparent, there was at this instant very great necessity; for it was (as I have said) imposed then, when King Ed. 3. lay at the siege of Calais. Besides, such as it was, and so qualified as you perceive, it was nevertheless complained of in Parliament, by a Petition from the Commons, as may appear be the Records of the same Parliament of 21. Ed. 3. To which Petition or complaint, this answer was given, That all the said Impositions were already taken away, save only the Two Shillings upon a sack of Wool, which should last no longer than Easter, and seeing the same was ordained for the safeguard of merchants, in which there had been greater sums of money expended by the King, then could be collected between that and Michaelmas, therefore to continue the same till Easter, he hoped it would not seem over-burdensome or grievous unto them. In the Parliament following, viz. anno 22. the Commons pray that writs may be directed to the Customers to forbear at Easter next to take the two shillings upon a sack, 22 E. 3. N 16. Ro. Par. according as it was granted at the last Parliament, and that it be not any longer continued by the procurement of any Merchant. The King answereth, Let it cease at Easter, as it was agreed the last Parliament. Here you see it was absolutely taken away, and therefore though it had wanted these qualifications and circumstances which I have observed it had, yet it being a thing so publicly condemned, it ought to be of little force with you to justify these present Impositions. But that which I observe out of this last Record, maketh me rather to incline that this Imposition was only by way of dispensation, then that it was an absolute Imposition, such as Ours are. For to what end (I pray you) should the Commons pray that it might not be any longer continued by the procurement of any Merchant, except it were likely that Merchants for their benefit should pray the longer continuance thereof; and what benefit can any imposition whatsoever be to a Merchant except it be by way of Dispensation to give him leave to trade where before such dispensation given, he stood altogether restrained. If then it be an Imposition by way of dispensation with a penal Statute of restraint, then is it no precedent for our present impositions. But whether or no it be a Dispensation or absolute Imposition I leave it to your judgements; you have heard my observation. And so I come to the next precedent in the times of Ed. 3. produced for maintenance of our Impositions, 24 E. 3. N. 12. Orig. de Scac. which was in the 24 year of his Reign, the Record of which and that which followed thereupon, I will without any enforcement at all, open unto you, and so leave it to your censures. The King reciting, that whereas the Spaniard and French had joined in league to make War against him, and that for the withstanding of his said adversaries, as also for the safeguard of Merchants against Pirates, he had ordained that certain ships should be set forth; and that for maintenance of the said Ships, there should be paid by Merchants two shillings for every sack of Wool, two shillings for three hundred Woolfels, four shillings for a last of Leather, a Scute of Gold, or four shil. Poundage imposed. for a ton of Wine, and six pence of the pound upon all other Merchandizes for one year following. He commandeth his Customers to levy the same accordingly. The very next year and Parliament following, 25 Ed 3. No. 12 Rot Par. the Commons exhibit a Petition in Parliament against Impositions and other like charges, without assent of Parliament: To which answer is given that, it is not the King's intion they should be charged. I have now gone through all the material Records here amongst us, of the times of Ed. 3. in which, though his reign were very long, and by reason of his Wars, and other excessive charge, more occasion was given him to try the strength of this point of the Prerogative, than ever any King before or since; though oftentimes, and by many politic inventions (as you have heard) he attempted to establish this Prerogative, of laying impositions without assent in Parliament; yet can there not be produced in all his time, any more than two Precedents of Impositions like to these of ours; (that is) imposed by the King's absolute authority: and yet these two were also, as you perceive, qualified with such circumstances, as if ours were such, we should have held them tolerable though perhaps not lawful, yet they, such as they were, escaped not without being complained of, and condemned also in Parliament, as you have heard. It may perhaps be that some one or two of these Impositions which were by assent or grant of Merchants, in this time of Ed. 3. were in times when the passage was open, and not restrained by act of Parliament, and so to be compared to our impositions: but whosoever shall by looking over the Statutes and Records with never so much heed consider the times of opening and shutting of the Sea by Statutes, shall find it so intricate, as he shall be very hardly able directly to say, that at the time when any of these impositions were granted, the passage was open. If in my observation I had found any such, I should have admitted it for an absolute imposition, as I have done Charta Mercatoria, which was by grant of Merchants; For certainly (as I have yielded) the grant of Merchants is in this case of no other effect, than the declaration only of their assent; and the Imposition resteth merely upon the king's authority: But I find none such, if any such could be produced, you have heard how they have been from time to time controlled in Parliament. And so I pass from E. 3. to the times follow. From the end of the Reign of E. 3. till the reign of Queen Mary, who was the eleventh Prince of this Realm, after Ed. 3. (as Ed. 3. was the eleventh after the Conquest) being the space of 170. years or thereabouts. It hath been confessed by all those that have argued in maintenance of his Majesties Right to Impose, that there hath not been found one Record that proves any one imposition to have been laid; there are indeed in our printed books some three or four Statutes during that time, in which mention is made of Impositions, but they are (as I shall prove) Impositions of another nature than those are which we complain of; and so make nothing at all to the proof of his Majesties Right: or if they were such as ours are, yet are they no where found mentioned but with disgrace, and to the end to be taken away, which may be the reason, that notwithstanding the great use that might have been made of three or four Precedents of Impositions in these times, for the patching up of a continuance of the practice, which otherwise by this long discontinuance receives a great blemish: those which argued for impositions did not take hold of these, but chose rather to confess that no Impositions at all were laid during all this time, and laboured to seek out the reasons of the discontinuance. I will briefly show you what Statutes they are, during that time which, mention impositions, the first is, 11 R. 2. cap. 9 11 R. 2. cap. 9 Statutes in which there is mention made of Impositions after the end of Edw. the thirds reign until Queen Maries Ed. 3. No Imposition nor charge shall be put upon Wools, Leather, or Woolfels, other than the Custom and Subsidy granted to the King this present Parliament, and if any be, the same shall be repealed and annulled, as it was another time ordained by Statute, saving always to the King his ancient right. If by this saving the pretended right of imposing should be excepted (as was said in the Exchequer) the saving should then be contrary to the body of the Act, and therefore it must needs have some other interpretation, that it may stand with the rest of the Act, and not condemn the Law makers of so much want of discretion: therefore doubtless this (saving) is no other than an exception of the ancient Right, full Customs, due upon those staple Commodities. And for my part I am of opinion that the Statute was made, not so much to take away any Imposition laid by this King R. 2. as out of a provident and prudent care in the Law makers, proceeding from the fresh memory of the practice of Ed. 3. in this kind; For all those that were of this Parliament, did live and were at man's age in Ed. 3. time, and could not but well remember the grievousness of his Impositions: Besides, I observe that they desire, that no Imposition be laid by way of addition to the Subsidy, upon Wools and Leather then granted: It was never heard till of late, that an Imposition upon any Merchandise, was charged at the same time with a Subsidy, and therefore without question, this was no other than an abundant provision by them wherein they were no more careful than any wise man would be in the like case; when they had of their own free wils given the King a liberal gift, they were careful not to be further charged by him. The next Statute in these times, where Impositions are found mentioned is, 23 H. 6. cap. 18. 23 H. 6. cap. 18. By which it appears that English Merchants being restrained from repairing to G●scoigne and Guien, to buy the Wines of that Country, they were nevertheless suffered to repair thither paying certain new Impositions, which were demanded of them. Upon complaint hereof, it was enacted that all English Merchants might freely pass into those parts, and buy Wines there at their pleasure without any new Imposition or charge to be put upon them; For that such Impositions were to the damage of Merchants, and to the hindrance of all the King's people: if any were demanded by the King Officers, the officers so demanding them should forfeit twenty pound, besides triple damages to the party grieved. That these Impositions were by way of dispensation with a Statute, which restrained the repair of English Merchants into those parts, and not by the king's absolute power, thereupon to ground an Imposition, is evident by the Statutes in Print. For from 27 Ed. 3. 27. E. 3. c. 6. 38. Ed. 3. c. 10 & 38 Ed. 3. cap. 42 E. 3. cap. 8. 43 E. 3. c. 12. till this 23 H. 6. there are five, or six Statutes in Print to this purpose some more strict than other, which continued in force till 23 H. 6. The reason of the restraint by Ed. 3. I suppose to have been because Gascoigne and Guien were then in his possession, and he was desirous his Subjects, the Merchants of those Countries should have the sole profit of their own Commodities; and that they only should import them into England, and not the Merchants of England: whatsoever the cause of the restrain was, it is very clear the restraint was by Statute, and that this Imposition raised by way of Dispensation was condemned, which nevertheless (suppose it had not been controlled) yet as I have said oftentimes, it is in nature so fare differing from ours, as the practice thereof will not so much as help to salve this long discontinuance. The next mention of Impositions is found, 1 R. 3. cap. 12. 1 R. 3. cap. 12. The words are, the Subjects and Cominalty of this Realm shall not from henceforth be charged by any such charge or Imposition called a Benevolence, nor by such like charge; you perceive by the words of the Statute, what Impositions are intended within that Statute. The next mention of Impositions in these times, I find to be, 7 H. 7. 7 H. 7. cap. 7. where a charge of eightteen shillings, laid upon a But of Malmesy by Parliament is called an Imposition. Another mention of Impositions, I find to be 12 H. 7. cap. 6. 12 H: 7. cap. 6. In the preamble of the Statute; the words are, That every person ought to use himself to his most advantage without exaction, Fine, Imposition or contribution to be had, or taken of him, to, or by any English person, or persons. Though some that have argued before me against Impositions have urged this Statute, as making against our present Impositions, yet for my part, I am not of that opinion, but upon perusing the Statute, do rather think, that it extendeth only to impositions laid by the Merchants of London, upon the Merchants of other Cities and Towns not incorporate into their Companies, as will evidently appear by the Statute: so as notwithstanding this Statute, that which I have averred, and hath been yielded to by the King's Counsel, that no Imposition was laid from Ed. 3. to Queen Mary's reign, is not yet impeached. There is yet one other Statute of later time, in which mention is made of Impositions, and that is, 14. H. 8. 14. H. 8. cap. 4. cap. 4. The words are, Every Subject borne in England, and sworn to be Subjects of other Princes, as long as they shall so abide Subjects to the other Princes, shall pay such Customs, Subsidies, Tolls, and other Impositions, within this realm, as Strangers do. I hold that this word Impositions, in this place is used as a general to all the particulars before mentioned, and no otherwise, and is no more in effect then charges, a thing usual in Statutes of this nature, to add general words for the more security, which I collect by the word (other) going next before it, For to what end should it be said, no (other) Impositions, if those particulars first named, were not contained within that general word of Impositions. This word (other) is a Relative, and must needs be answered with words going before, when there are no other words following. Besides, it is common in the Statutes and Records of Ed. 3. No Imposition upon wools shall be laid, but in Parliament, By which it appears, that a charge laid by Parliament, may be called an Imposition, which is very evident by a Statute made not above 28. years before this, I mean the Statute of 7. H. 7. cap. 7. 7 H 7. 7. which I spoke of even now, where a charge of Eighteen Shillings upon a Butt of Malmsey, laid by that Act of Parliament, is called an Imposition; And as I have showed you, the word Imposition hath been applied to all these several Inventions, used by Ed. 3. The signification of the words Maltolt, and Imposition, or Impost. for the charging of Merchandizes, Nay, the word Maltolt, which is Englished by Rastall, an evil Toll (as indeed it signifies) and in that respect, is of a fare harder sense than the word Imposition) is used indifferently for a charge set by Parliament, or a charge set by the King's absolute power upon Merchandises. Impositio derived from the verb imponere, is no other than the Act of laying on, or imposing, and therefore in my opinion, Impositions are more properly by the Merchants called Imposts which signifieth the things Imposed. But I shall not need any further to enforce this, considering it hath so liberally been confessed by the King's Counsel, No Imposition laid from Ed. the Thirds time, till Q. Mary's. that there is no Record or Statute from Ed. 3. till Queen Mary's reign, that giveth any assurance that impositions, or so much as any one Imposition was laid, during all that space of above 170. years, only it behoves me for further opening the truth, to testify, that being one of those that were by you employed to make search in the ancient custom Books of those times, remaining in the Exchequer, together with some of the best experienced Merchants of this house, some of which had sat at the receipt of Custom, we had many meetings, and spent many whole days in turning over the old Custom books, and as carefully as we could, did survey some books of every age and time; But after all our search ended, could not find any one Imposition from the time of Ed. 3. till Queen Mary's reign, to have been received by any Customer or Collector. And if you please to give me leave to remember to you the passages of those times, you cannot but marvel, that none of all those Princes should so much as attempt to try the strength of this so beneficial a Prerogative, so much practised by Ed. 3. and when you have heard their occasions, and compared their other actions, What great occasions all the Kings from Ed. 3. till Q. Ma. had to lay Impositions, and yet did it not. with their forbearance in this kind, you will, I think, conclude, and say in your hearts, that surely none of all those Kings had so much as any imagination, that any such Prerogative belonged unto them, as to raise money at their pleasure, by laying a charge upon merchandizes, to be exported or imported without assent in Parliament. Richard the Second, being the Grandchild and next Successor of Ed. 3. Rich. 2. (in whose times impositions of all sorts did so much rage) had little less occasion than his Predecessor had: For first, he had little treasure left him, and he was no sooner in his Throne, but news was brought that the French had invaded the Realm, they had burned Rye and Hastings in Sussex, they had taken, and possessed the I'll of Wight, they had besieged Winchelsey: From the Northern parts, That the Scots had burned Roxborough, and were ready to overrun all the North parts of England. Being thus beset with war on all sides, doth his Counsel (which in all likelihood, had most of them been of Counsel to his Grandfather) advise him to raise money by impositions, as his Grandfather had done (for this course of raising money by way of Impositions, was yet fresh in all their memories?) they do not, but he taketh the ordinary course, by calling a Parliament, which for maintenance of his charge in the war, the second year of his reign, granteth him a Fifteenth; he calleth another Parliam. and hath another Fifteenth granted, the Fourth year of his reign, the wars increasing, his necessities were such, and so conceived by the Parliament, as they granted him a most unusual Tax throughout the whole Kingdom, upon every Ecclesiastical person, one and other, Six shillings Eight pence, upon every other man or woman within the Realm, Four pence, which when it came to be levied, caused (though causelessly, because it was legally granted) that notorious Rebellion of which Wat Tyler was the Captain. This Tax as it was levied not without that great Rebellion, so questionless was it unwillingly yielded to in Parliament; and yet because there was no other course thought lawful for the raising of treasure upon the Subject's goods, then by their own assent in Parliament, only that course was thought fit to be practised, which was such as ought to be obeyed. From the 5. to the 18. year of his Reign, he obtained every other year one aid or other in Parliament; sometimes a tax, sometimes a Fifteenth, sometimes a Subsidy of Tonnage & Poundage: In the eighteenth year, he was enforced to go in person into Ireland, to settle the state of that Country then in Rebelion: all these troubles he had from abroad besides those famous Rebellions here at home, which afterwards cast him out of his Seat; yet did he never for all this attempt to lay impositions, though he wanted not about him, to put him in mind of his absolute power: For Edward Strafford, Bishop of Exeter, Lord Chancellor of England, in a Sermon made to the Parliament held, anno 21. as our Chronicles report, did publicly maintaint that the King was not bound by any Law; but was of himself absolute & above Law, and that to control any of his actions was an offence worthy of Death, at which Parliament all that were present came armed for fear of the King; and the Parliament House itself was beset with 4000 Archers by his appointment. I will speak no more of him then this; though he were a King of a weak spirit, yet did he not spare to practise upon his people the most grievous things that were; Insomuch that he so fare discontented them that they deposed him by common consent in Parliament, the only desperate example of that kind, that our Histories do afford, or I hope ever shall. His successor Henry the fourth, Hen. 4. in respect he held the Crown by so weak a title, had cause to give the people all the content he could possible, and yet he was so oppressed with wars on all sides, from France and Scotland, but especially by continual and dangerous invasions made by the Welsh, as without the aid of his people for the supply of his treasure; it had not been possible for him to have held his Crown on his head, and therefore he pressed his people so fare, that in a Parliament held the fifth year of his reign, they yielded to him so great and so unaccustomed a tax, as that the grantors thereof, as our Chroniclers say, took special order that no memory thereof should remain of record only to avoid the precedent; and yet the very next year following, his wants were again grown so great as his Subjects being assembled in Parliament to give him further aid, did resolve that there was no other way to supply his want, then to take from the Clergy their temporal Lands and goods, and to give them all to the King, which being withstood by the Clergy, a resumption of all the gifts of Ed. 3. and Ric. 2. was propounded: at last (after they had sat a whole year) they gave him two Fifteenths; at this time, most of his Counsel, and the great Officers of the Kingdom were Spiritual men; had they not now, (if ever) a just occasion given them to have put the King in mind of his Prerogative of laying impositions, not only to the intent to have diverted him from the harkening to that desperate motion that had been made against them to all their utter undo, but were they not also bound in duty and conscience, in this time of so great necessity (seeing the Parliament knew not otherwise how to supply the King's wants) to have advised him to have made use of his lawful right of imposing, by which means, he might, without troubling the Parliament, quickly have raised great sums of money: certainly it was not because they were ignorant of any such practice in former times, For none of them that were then of the Counsel to Henry the Fourth, but they lived in Ed. 3. time, and most of them doubtless, were in Ed. 3. time men of age and discretion; But in all likelihood as they knew that Edward the Third did lay impositions, so likewise they knew that impositions had been from time to time, in those days condemned as unlawful, and were become hateful to the people, and only for that reason, they did forbear to advise the King to take that course, though the necessity were never so great. Another Prerogative, as much concerning the interest of the Subject, as this of Impositions, namely the abasing of Coin, this King made no scruple at all to put in practice, because he held it to be lawful. His Son, and next Successor, Hen. 5. who by his many victories over the French, Hen. 5. and his noble disposition and behaviour towards his people, was so fare beloved of them, as never was King of this Realm more, though the Kingdom were now, by one degree of descent, more firmly settled upon him than it was on his Father (who usurped it) though also his expense of treasure, by reason of that great war in France, were as much, as any kings of England ever were, though he had troubles also from his Neighbours the Scots, and within his own Realm, by Rebellions: and lastly, though he spared not for supply of treasure, to suppress above a 100 Priories of Aliens; yet neither out of the strength of his love with the people, nor in his extreme necessity, by reason of these honourable wars in France, for the maintenance of which, the people would willingly have undergone any burden which he would have laid upon them, especially after the victory at Agincourt, did he ever so much as attempt the laying of Impositions. His Successor Hen. 6. Hen. 6. (though indeed of a meek spirit) yet he was so followed with troubles within the Realm, and from abroad, that he was enforced to crave such an extraordinary aid of his Subjects in Parliament, as the levieing thereof was the cause of that famous Rebellion of Jack Cade in his time. Besides, in the 18 year of his Reign, for the ease of his charge and supply of his wants, all Grants by him made of any Lands, Rents, Annuities, or Fees whatsoever, since the first day of his Reign, were resumed: and this is never yielded to, but in cases of extreme necessity. As for Impositions, notwithstanding his great wants, he thought not of them. Edw. 4. Edw. 4. that succeeded him, was no less free from troubles; for he was (as you know) driven to forsake his Kingdom, and to live for a while like a banished man with the Duke of Burgundy; He was also enforced in the 5 year of his Reign to make a Resumption; and the same year to abase his Coin: And Comines observeth of him, that he obtained a Subsidy of his Subjects in Parliament, upon condition that he should himself in person undertake the war in France; and, that only to get the Subsidy, he passed the Seas into France, but presently returned without doing any thing. What should such shifts as these have needed, if he might (without being beholding to his Subjects) lawfully, and without control have raised Treasure by laying of Impositions? It is well worth the remembering, that which the same Comines (speaking in commendation of the frame of this Commonwealth) saith; That this State is happy, in that the people cannot be compelled by the King to sustain any public charge, except it be by their own consent in Parliament. I proceed from Ed. 4. to Hen. 7. Hen. 7. (omitting Ed. 5. and Ric. 3. because of the shortness of their Reigns.) Hen. 7. H. 7. had a Subsidy of Tonnage and Poundage granted to him for his life, as may appear by the Parl. Roll 1 H. 7. which appears no where in our printed books. had indeed a more peaceable time than any of his Predecessors; and yet he was not altogether free from troubles both within the Realm, and from abroad: But his natural inclination was rather to embrace Peace; he was so provident and politic in the gathering and storing up of Treasure, as never any Prince of this Realm was therein to be compared to him: He did himself take the accounts of his Revenues, (which I have seen under his own hand:) He had for his Assistants about him, Empson and Dudley, men learned in the Laws, and by all probability, very canning in all the profitable points of the Prerogative; men that that intended or studied little else than the advancing of their Master's profit; men even till this day infamous for their wicked counsel, in persuading that good King to lay such heavy Exactions and Burdens upon his people, as he did: If these men who in all likelihood should have best known the King's right (especially in so high a point of profit) had but had the least notice of so profitable a Prerogative as this, would they not have been at strife which of them should first have put the king in mind thereof? Or if they had held it questionable, would they not have put it to some trial? Certainly there can be no cause imagined that should make them thus to forbear, but either they were utterly ignorant of any such Prerogative, or, that knowing such a thing to be claimed by some of the ancient kings (especially by Ed. 3.) they knew likewise that it was in the same times continually complained of in Parliament, and always condemned; and that there were acts of Parliament directly against it, and this is more probably to be conceived of them being men of such searching spirits, and so well studied in point of Prerogative, then that they were ignorant of the practice of Ed. 3. considering also that they were nearer to those times by 120 years then we are. But that which most of all moves me herein is that there was in H. 7. time such an occasion offered of making use of this Prerogative, as there could not possibly happen any other that might better have justified the laying of Impositions; which was this: The Venetians, to the intent to drive our Merchants from fetching sweet wines at Candy, that they might the better employ their own ships and Merchants, did impose upon every But of Malmsey brought thence by English Merchants four Ducats, by which means the English wholly lost that Trade, and the Venetians made the whole profit thereof: This mischief was no other way better to be remedied, than by imposing the like, or a greater charge upon Merchants of Candy bringing Malmsey into England; that so they of Candy not being able to afford them better cheap than the English, the English might still fetch them from Candy as they had wont to do. I say, there could not possibly be a more justifiable occasion of laying Impositions, than this was: And did this king (so careful in other things of preserving his Prerogative, and most of all in matters that concerned his profit) take hold of this occasion to lay an Imposition by his absolute power? Nay rather, though he saw it convenient, and in a manner necessary, yet he conceived it to be unlawful so to do; and therefore did it not by his absolute power, but by assent of Parliament, as may appear by the Statute of 7 Hen. 7. cap. 7. printed; where, in the preamble of the Act, you shall see the occasion of the making of the Act to be as I have opened it unto you: and you may perceive by the body of the Act, that for the counterpoising of the imposition of four Ducats laid by the Venetians upon our Merchants, there was imposed 18s. for a But of Malmsey, upon their Merchants bringing it hither, to last as long as the imposition of four Ducats (which, as appears by the Act, came but to 18s. of our money) should endure. It is not probable that this king, considering his other actions, would have suffered this to have been done by Parliament, if he had thought he might have lawfully done it by his absolute power? And therefore it cannot almost be gainsaid, that in these times this pretended Prerogative of laying Impositions without assent of Parliament was held to be against Law. Hen. 8. his son and successor, Hen. 8. was so fare from the disposition of his father, in this point of thrift and providence, Hen. 8. had a Subsidy of Tonnage and Poundage granted to him for his life, the first year of his Reign, as appears by the Parl. Roll. as there was not in the whole rank of our kings any one like to him, for excessive prodigality; the great riches stored up by his father, with so much care, and left unto him, he so suddenly consumed in Triumphs, Masks, Mummeries, Banquets, pompous and braving Wars, as was that of Turwin and Turney, and in the satsfying of his lust, as he was out of very necessity enforced to crave most unreasonable aids of his Subjects in Parliament, such as never before had been granted, which through very dread and fear were yielded to him; yet not so satisfied, that no means for the raising of money might be neglected or unattempted, in the 15 year of his Reign, by the council of that proud Prelate Cardinal Woolsey, he spared not to send out Commissions into every shire throughout the whole Realm, with privy instructions to the Commissioners, how they should with most advantage behave themselves, in persuading the people to contribute to the king the sixth part of their whole estates, to be paid presently, either in money or plate, whereupon followed extreme cursing, weeping and exclamation against the king and his council, and the people were in point to rebel had not the king stayed the proceed of the commissioners by his Letters. Finding that this way would not serve his turn, he demanded a benevolence, which not answering his expectation, he did the same year raise unto himself a great deal of treasure by abasing his gold. Such things as these Princes never put in practice but when all other means fail them, and yet he went many degrees beyond this: For, in the 27. year of his reign he suppressed above 370 Religious houses, the yearly value of whose revenues I have read to be no less than 32000l. per annum in those days: and that of their goods (sold at very low prizes) he made above 100000l. in present money. About 4. years after he dissolved all the Monasteries, abbeys, Priories, Nunneries, and all other Religious houses of what kind soever throughout England. By which means, and by the sale of their goods he gathered such a mass of Treasure, as it might have been imagined that never any king of this Realm should have needed to have sought relief at his Subjects hands: Yet he himself, no longer than within 3. years after following, craved and obtained (as may appear by the Statutes of that time) an excessive great Aid by Parliament, and yet the year following he did also abase his coin, more than half in half, such an abasement as never before or since was heard of, and could not but be very grievous to the people; but because perhaps they held it lawful so to do, they made no pubilque complaint thereof; and it is worth the observing, That though this Prerogative of abasing Coin be a thing which trencheth as deeply into the private interest of the Subject as the laying of Impositions; for, by this means a man, that this day is worth in revenues a hundred pounds per an. he shall to morrow, if the king be so pleased, be worth but fifty or forty, or less, in real value; and though also the practice of this Prerogative hath not been forborn by any of the kings of this Realm, and that some of them have used it very immoderately, yet cannot there be found any one public complaint, that ever I have met withal, upon Record against it, as from time to time there have been many against Impositions, which argues that the Subject did make a difference between these two Prerogatives; this, of laying Impositions; and that, of abasing coin; thinking the one lawful and the other not. But to conclude my observations upon the actions of Hen. 8. The next year after this unconscionable abasement of his money, he craved a benevolence. The year following he took the profits of all the Chantries, Colleges and free Chapels, etc. during his life, which ended the next year: Can any man imagine that during this kings Reign it was held lawful (or any such thing so much as dreamt of) to raise treasure by laying Impositions; I will enforce it no farther, but leave it to the judgement of any reasonable man that shall consider these things which I have remembered, whether or no it be likely. Out of the time of his Son and Successor Ed. 6. Edw. 6. I can observe little, because of the shortness of his Reign; but methinks, if his Governors had imagined that any such Prerogative had been due unto him, they should not in honour have forborn the practice thereof for the supplying of the King's great necessities, and in stead thereof have craved of the Subjects that unaccustomed and unreasonable Subsidy, granted an. 2. of a certain sum of money upon every sheep and every Cloth within the Realm, for 3. years; which afterwards for the unreasonableness thereof was released. I have now gone through in such sort as you have heard, A corollary or connexion of all the times before mentioned. the times of all the Kings from Ed. 3. till Q. Mary's Reign: during which time what can there be more imagined, that might possibly have happened to have awakened Impositions, if they had not been more than asleep? Neither the necessity of just and honourable war, nor the subtleties and curiosity of Peace, nor the prodigality of some of these Kings for the better satisfying of their pleasures, nor the covetousness of others, nor the softness of some of their dispositions, nor the nonage of others apt to be abused by evil Counsellors, nor the dreadful and fearful awe in which some of them held their Subjects, nor the assurance of the people's extraordinary affection, which might have emboldened some others; nor the evil conscience of Usurpers, nor any other motive whatsoever which happened during this long time, could revive them; until Q. Mary did at last raise them out of the grave, after they had been so many years dead and rotten. The first Imposition that she laid, Qu. Marry. was that upon Cloth, continued till this day, which grew upon a special reason, as may appear by the printed book of the rates of her Customs and Subsidies; in the end whereof you shall find a declaration expressing the loss sustained by reason of the difference between the Customs and Subsidies of Wool and cloth, by which it appears that a sack of Wool yielded in custom six shillings eight pence, and in Subsidy thirty three shillings four pence; that the custom upon a short cloth was fourteene-pences, and that a sack of Wool did commonly make four short clothes, the custom of which was four shillings eight pence; so that the custom of Wool made into cloth, was less than the Custom and Subsidy of so much Wool not clothed; In every sack in short clothes thirty five shillings fourpences: which difference was reduced to an equality by rating upon every short cloth ten shillings: After this declaration made of the difference and of the rate which reduced both to an equality, follow these words; Which difference considered, and the great loss sustained by Us in the same, by reason that clothing is much increased, It is thought convenient by Us, with the advice of our Council, towards the relief of the loss, for to assess upon the Clothes carried out, by way of Merchandise, some larger rate than heretofore hath been used, and though it were reason to appoint such a rate as might recompense the full of the loss sustained, yet upon divers considerations, at this time, Us and Our Council moving, We are pleased only to assess upon every short-cloath, by the name of custom, six shillings eight pence, etc. I thought good to open this at large unto you that you might see upon what special reason of equity this Imposition was grounded, and how it differeth from ours: And it is worthy the observing, how the Queen commandeth this increase of Custom to be yielded unto her, not as an Imposition, or by the name of Impost, but by the name of Custom, because it cometh in lieu of the ancient Custom upon Wool, which is the reason that at this day it is demanded and paid by that name; whereas no other new raised duty hath that privilege; but they are either called Subsidy of Tonnage or Poundage, if they be raised by act of Parliament; or Impost, if by the King's absolute power. The name of Custom was anciently given to none but to Wools, Woolfells, and Leather; and upon this occasion, to Cloth also. This Imposition, though grounded upon such equity as you have heard, yet in Dyer, 1 Eliz. fo. 165. a. & b. it was, as appears by my L. Dyer, complained of by the Merchants of London, with great exclamation (which are his words) and suit to the Queen to be unburdoned of it, because it was not granted in Parliament, but assessed by Queen Mary of her absolute power: whereupon there were divers assemblies and conferences of the Justices and others, Plowdens' argument against it, in M. Tates hand. but their resolution is not where to be found, at least by Us; It is very probable that if they had given judgement for the Queen, it would not have been kept close, but howsoever the profit was too great to be taken from the Crown and therefore it continues till this day. Howsoever the reason in equity in the laying this Imposition upon Cloth may seem to be sound unto some men, and so to allow of this Imposition as differing from ours, yet for my part, I hold it not so, when I consider what course was taken by Ed. 3. upon the same occasion, an. 11. E. 3. c. 1. & 2. It was enacted, that no wool should be carried out of England, but by the King's licence; and that no man should wear Cloth, other than such as should be made in England: this Law took such effect, as within ten years the greatest part of the Wool in England was made into Cloth; and it became to be transported in such abundance, by reason that there was no Custom at all due upon Cloth, and the Custom and Subsidy upon Wools was very high, that in the 21 year, the King finding his Custom of Wools so much decreased, doth seek to remedy it, not by imposing a new charge upon Cloth by his absolute power, as Qu. Mary did, but did it by assent of his Subjects in full Parliament, as I collect partly by my L. Dyer in the place last mentioned, but more fully by a recital in a Record amongst us, of 24. E 3. ro. 13. orig de Scaccar. to this effect: That whereas the Customs and Subsidies due and granted upon Wools are much decreased, because a great part of the Wool of England is made into Cloth, for which no Custom is due; and whereas in consideration thereof, at our Council held the 21 year of our Reign, by the common assent of the Prelates, Earls and Barons, and others, it was ordained and accorded, that 14d. by Denizens, and 20d. by Strangers should be paid for every cloth of Assize, etc. made of English wool, and transported; upon pain of forfeiture of the Clothes: And so followeth an authority given to collect the same. The next Imposition laid by Q. Mary, was forty shillings upon a Tun of French wines, imposed in the 5 year of her Reign: at which time there was first a Proclamation made, that no wines at all should be brought from France, being then in enmity with England, upon pain of forfeiture of the Wines; (which, by the way, is a strange clause in a proclamation.) Immediately after this restraint there was an order made by the Qu. and her privy Counsel, that such as would might bring in French wines, notwithstanding the Proclamation, paying forty shillings upon every Tun by the name of Impost, as doth appear by Record in the Rolls of Easter Term, 1 Eliz. in the office of the K. Remembrancer of the Exchequer, in the case of one German Ciol, German Ciols case. against whom an Information was exhibited for not paying the said Imposition: Whereunto, taking it by way of Traverse, that there is any Law of the Land by which he may be charged with Impost, he pleads a licence made unto him, a. 1. & 2. Ph. & Mar. to import a certain number of Tons of Wine within a certain time, any restraint then made, or afterwards to be made to the contrary, notwithstanding; Provided always, that the Custom, Subsidy, and other duties due and accustomed to be paid to the King and Queen, were duly satisfied; He shows, that for all Wines brought in by him during the life of Queen Mary, he paid the Subsidy of Tonnage, viz. three shillings for every Tun, which was all that was due and accustomed to be paid: Upon this plea a demurrer was joined, and judgement given thereupon against the Queen; This Judgement hath been enforced in the maintenance of Impositions: Whether or no it make not rather against them, I leave to your censures. near about the same time there were Impositions laid also by Queen Mary upon all French commodities whatsoever to be imported, as may appear by the Port-bookes of those times in the Exchequer; which Impositions were received to the use of Queen Eliz. in the beginning of the 1 year of her Reign, but ere the year ended they were all taken away, as may appear by the same Port-bookes; which in my opinion is a great argument that they were not then held lawful: For, Princes do not so easily give over their hold in matters of profit, if they be any way able to maintain it. What hath hitherto upheld the Imposition upon Wines, I know not, except it be the great profit that comes by it to the Crown, and because there was never any late Judgement given directly against Impositions. You have hitherto heard what reason and direct proof I have used, Admitting the king had power by the common-lawe to lay Impositions, yet he is barred by Statutes. to maintain, that by the Common Law the King cannot at his will increase his Custom by way of Imposition: You have, secondly, heard what the practice of former ages hath been in this kind, till this day; from which I have also drawn reasons of Inference, that prove the Common-Law so to be. But now, admitting that by the Common-Law it had been clear and without question, that the King might at his will have laid Impositions and that also the same could have been clearly proved by the practice of the ancient Kings, yet I affirm, that so stands the Law of England at this day (by reason of Statutes directly in the point) as the King's power, if ever he had any to impose, is not only limited, but utterly taken away, as I hope I shall be able evidently to prove, notwithstanding any objection that hath been made against the interpretation of the Statutes to this sense. The first Statute is in Magna Charta, cap. 30. Magna Charta cap. 30. Enforced, and the objections made against it, answered. The words are; All Merchants, if they were not openly prohibited before, shall have their safe and sure conducts, to enter and departed, to go and tarry in the Realm as well by Land as by water, to buy and sell without any evil tolls, by the old and rightful Customs (except in the time of War.) And if they be of the Land making war against us, and be found in our Realm at the beginning of the war, they shall be attached without harm of body, or goods, until it be known to us, or our Justices, how our Merchants be entreated there in the Land making war against us, etc. The Statute of which this is a branch, is the most ancient Statute-Law we have, won and sealed with the blood of our Ancestors; so reverenced in former times, that it hath been by Parliament provided, that Transcripts thereof should be sent to all the Cathedral Churches of England, there to remain; that it should be twice every year publicly read before the people; that likewise twice every year there should be excommunication solemnly denounced to the breakers thereof; that all Statutes and all Judgements given against it shall be held as void; that it should be received and allowed as the Common-Law, by all such as have the administration of Justice; 25 E. 1 cap. 1.2.3.4. and it hath been no less than 29 times solemnly confirmed in Parliament: I will therefore with so much the more care endeavour to free this Law from all the objections that have been made against it. The first objection doth tend to the diminishing of the extent of this Statute, The first objection, that it extendeth only to Merchant-strangers, answered. as touching the persons whom it may concern; for it hath been collected out of the latter words of the Statute, that it should extend only to Merchants-Aliens, and not to Denizens. First, it is improbable that the makers of the Law should be more careful to provide for the indemnity of Merchant-strangers than of English; except perhaps they might imagine that English Merchants were already sufficiently provided for by the Common-Law: If that were their reason (as there could be no other that I can imagine) it doth as much maintain my opinion, as if they had been contained within the Statute. Again, the words are general: All Merchants; and, Qui omnes dixerit, nullos excipit. Besides, the Statute is a beneficial Law; in which case particular and special words do always admit a general extent: And therefore, to restrain general words, as the Objectors would, is against all reason, and rule of Law. As for the latter words, 'tis true, they do indeed extend only to Merchant-strangers; but the sense of the first sentence is perfect without this: and as long as no absurdity nor contradiction doth follow by interpreting the first words to extend to all Merchants in general, and the latter only to Merchant-strangers, the most ample and beneficial construction is ever the best, as in all other Statutes of this nature. But this objection is, in my opinion, clearly removed by 2. Statutes made by Ed. 3. in declaration of this very clause: The first is, 2 Ed. 3. c. 8. the words are, All merchants, Strangers and Privies may go and come with their merchandizes into England, after the tenure of the Great Charter. I take it, that Privies in this place, being the very word that is found in the Original, which is in French, aught to be understood Denizens; for, otherwise I suppose it would have been joined to the word [Strangers] by a conjunction disjunctive, which is usual where the words are of one sense; and not by a copulative, as here it is. Besides, I take the word [Privy] to be derived from the Latin, Privatus, which signifieth a particular property; as res privata, a man's own private estate: so, mercatores privati, our own Merchants. That Merchant-strangers should be first named, is common in Statutes and Records. The next Statute explaining this of magna Charta, is, 14 Ed. 3. c. 2. The words are, Whereas it is contained in the Great Charter, that all Merchants shall have safe conduct, etc. We grant that all Merchants, Denizens and Forreins, may freely pass, etc. which I take to be no other than a mere declaration of Magna Charta. The second Objection made against this branch of Magna Charta, The second Objection. That Magna Charta cap 30. was made only against Taxes within the Land, answered. is, That the meaning thereof was to secure the Merchants, not from a new increase of Custom to be imposed by the King, to be paid at their entrance or going out of the Ports, such as our Impositions are; but from certain petty exactions, as Tolls and such like, which were then usually demanded of them within the Land, by the Towns through which they were to pass and where they sold their Merchandise; for the farther remedy of which there were afterwards divers Statutes made which do evidently manifest that such was the mischief, and they do the rather make this collection because of the words, buy and sell without evil tolts; For, say they, Impositions are not paid upon the buying and selling of Merchandise, but when they are to ship or unship: they take hold of the word Toll, which properly is an exaction for passage within the land, or for sale in markets or fairs. These objections, notwithstanding I hold it somewhat clear that the meaning of this Statute was principally to secure Merchants touching Impositions. My first argument is drawn ab Authoritate, from the authority of the wisest and most sage men in greatest places and offices within this kingdom, in the times wherein they lived, and who also could so much the better judge of the true meaneng of this Statute in that they lived so near the time of the making thereof, even in the beginning of the reign of the next King (save one) to him that made this Statute: I mean those who made the Ordinance in 5. Ed. 2. heretofore divers times mentioned by me, who in alleging their reason against Charta Mercatoria, do amongst other things say that the same was made against Magna Charta; What was the cause of the grief conceived against Charta Mercatoria, other than the Impositions by colour thereof, laid upon foreign commodities; It appears by the Ordinance, that was the only cause: if then Charta Mercatoria were by them adjudged to be against Magna Charta, only because by colour thereof, new Impositions were raised, without assent of Parliament, it is evident, that they interpreted the Statute of Magna Charta to be made against impositions; if they had thought it to have extended only to petty tolls and exactions within the land, as is objected, then could it not have extended to Charta Mercatoria. As for the words Buy and Sell, without any manner of evil Toll; I deny not but the words may perhaps have that sense, which hath been collected out of them, viz. that in buying and selling, they should be free also from unjust exactions within the land. But I say further, that these words, without any manner of Evil Toll, by the old and rightful Customs, do extend not only to the next precedent words (Buy and sell) but also to the former words, Enter and return, and more principally to them then to any other; For to have provided that they should be free from those petty exactions of tolls in Markets, and for passing through Cities and Towns, and to leave them subject to Impositions, to be laid on at the King's pleasure, had been but a slender security. This exposition of mine is confirmed by a Record here amongst us, of 16. Hen. 3. no longer than seven years after the making of this Statute. By which it appears, that the King commanded his Officers, at the Ports, to signify to all Merchants, that they might with safety enter into his kingdom, paying the rightful and ancient customs, Nec timeant sibi de Maletoltis quas faciet Rex. As touching the word Toll, Derivation of the word Toll. which they say is to be understood of Tolls for passages, and for buying and selling in Fairs and Markets, it behoves me to say something of the derivation thereof, the rather because it is very often used in our ancient Statutes and Records in the same sense, as it is in this place; and by the derivation thereof the natural and true meaning of the word shall be best understood; I hold it therefore to be derived from the Latin word Teolonium, which signifies custom, by cutting off the latter part of the word, and retaining only the first part Teol, by contraction Toll, of which manner of derivation, there are infinite examples in our language, the Latin Teolonium (as saith Calvin in his Lexicon Juris Civilis) is derived from the Greek Telos, which signifies aswell Custom as it doth Finis: Hence it is that the Customers are called in Latin Telonarii. Thus you see that the genuine, and primative signification of our word Toll, is no other than Custom upon Merchandizes: from the word Toll are come those two barbarous Latin words found in our Statutes, and Records, Toltum, which is the word used in the Record of 16 H. 6. but even now vouched by me; and Tolnetum, the Original word in the Statute now in question, which I must confess is also in our Law Latin used by us for Toll in the Market, and Toll for passage, as may appear by the Register, and the Book of enetries. But in this place, Malum tolnetum properly signifies not a Toll in the common sense, but an unlawful charge laid by the King upon Merchandizes, as an increase of Custom, according to the Primitive signification, which is evidently proved in that it is here opposed to old and rightful Customs; sine omnibus malis Tolnetis per certas & antiquas consuetudines; wherefore it ought so to have been translated, for so it signifies, without Impositions, by the old and rightful Custom: This exposition and translation is further warranted by the use of the word Maletolt, so often found in our ancient Statutes & Records, which without scruple is derived from the Latin, Malum Tolnetum, the very word of our Statute; I find it diversely written, Maletout, Maletolt, Maletot, and sometimes Maletent, but I never find it any where used in any other sense then for an Imposition by way of increase of Custom upon Merchandizes: Sometimes indeed but that very rarely, It is taken in the best sense for lawful and rightful Custom, as the word Imposition sometimes is, but then commonly it is accompanied with another word to free it from the worst sense, as Droiturel Maletout, etc. That malis Tolnetis is in this place ought to be translated Impositions, may be farther proved by that which I find in a writer of the french History, one Jean Serres, who says, That in the time of Philip le Beau king of France, which was about the time of Ed. 3. king of England, there were rebellions in France because of Impositions laid by the K. which in those days, they did, saith he, call Maletouts, the very word then anciently used in Engl. for Impositions, as may plentifully appear by the Statutes and Records of H. 3. Ed. 1. Ed. 2. & Ed. 3. The word Imposition. for the word Imposition was not used in any French Record, Statute or other, for aught I have seen, till Ed. 3. I find it once used in Latin, 12. Ed. 3. in the Letter which King Edward the Third writ to the Archbishop, to excuse him to the people, for laying Impositions, and as all that Letter throughout, is of an eloquent stile, so as it seemeth he was careful to avoid also that barbarous word, Malum tolnetum, though common and familiar, and in stead thereof, to use the pure Latin word Impositio. Silvius writing upon Tully's Oration for Marcus Fonteius, where these words are used by Tully, Imposuit vectigal, (saith) Ita usitatum vulgo est ut vectigalia nova appellent Impositiones. The word Vectigal, in this place, though in a general sense it may be applied to any revenue whatsoever, yet with the Civil Lawyers, it is by way of Excellence, commonly used for Custom, as may appear by Calvin in his Lexicon, Vectigal quod Fisco vel Reipubls. portorii nomine pendintur, id est, pro mercibus quae invehuntur vel evehuntur, Sometimes they use to join with it for a more clear distinction, the word Portorium, as a man would say, the revenue of the Ports, agreeable with which, upon some Records of Henry the Thirds time, I have found it to be called, Exitus Portuum. By this it is evident, that Impositio in pure Latin, and Imposition in English, is the same with Maletolt in French, and Malum tolnetum in our Law Latin; and they do all signify a new increase of Custom, and not any thing else; Wherefore I conclude, that these words, sine malis Tolnetis, in our present Statute, are naturally and properly to be expounded, and understood of Impositions, and so ought to have been translated, and not as they are; and although the word Imposition itself, as also the word Maletout, and Malum tolnetum may be (as I have confessed) taken as well for a new increase of Custom, by a lawful means (viz.) by assent in Parliament: as for an increase of Custom by the King's absolute power, which is unlawful, yet by the words that immediately follow, it is evident that this Statute doth only intent unlawful impositions, that is, impositions laid by the King's absolute power, without assent in Parliament, otherwise would they not have been opposed to due and rightful customs, as by the words of the Statute they are. But because there hath been some exception also taken to the exposition of the word Custom in that sense in which I take it (that is) for custom upon Merchandise, for that the word in the Original is Consuetudo, The word Custom, Custuma, and Consuetudo expounded. which signifies an usage, and not Custuma, which is the Latin word we now use for Custom upon Merchandise; it behoves me therefore to say something touching these words, Consetudo, and Custuma, for the clearing of this scruple. This word Consuetudo in his first and proper signification, doth, I confess, signify an usage, or practise of a thing time out of mind, but it is evident by the Records in the time of H. 3. and Ed. 1. this word in a more special manner, was applied to all, or most of the duties belonging to the Crown, by reason of Trade, As Consuetudo aquae Thamesis, Consuetudo piscis venientis ad vicum Pontis London, Consuetudo quae vocatur Scavagium, Consuetudo quae vocatur Gage, But yet more specially it was applied to that duty, which we following the same rule, because of the greatness of the Revenue, do likewise per Excellentiam, call Custom; This may appear by the Pipe Roll of 52. Hen. 3. this title Consuetudo Mercandizorum, and by divers other Records of Hen. 3. times, the Rolls and Records of the beginning of Ed. 1, do likewise prove the same very evidently, Insomuch, that not only that which in this kind belongs to the King by the Common Law, and by ancient prescription, was called Consuetudo; but in later time, if any increase were of that duty, though it came not by prescription, but by grant in Parliament, or otherwise, yet it still retained the name Consuetudo, which by continuance of time, came to be the proper name to that kind of duty howsoever it began; And therefore in 3. Ed. 1. you shall find that after the old custom of Wools was increased to a demy-Marke by Act of Parliament, yet the word consuetudo was nevertheless still retained, but with an addition, For it was then called nova consuetudo. Nay, though the increase were by the King's absolute authority, and upon the matter, a mere Imposition, Yet the King in his Commission did always call it consuetudo, as in 16. Ed. 1. the Imposition of Four Shillings upon a Tun of Wine, is in the King's Commission to collect it, called consuetudo. Nevertheless, I assure myself, the people called it by some worse name, as Maletolt or the like. The several applications of this word Consuetudo to all duties whatsoever belonging to the Crown by reason of Trade, is the reason as I conceive that the word is used in the plural number in the Statute of Magna Charta, per antiquas & certas consuetudines, that so they might be secure against all unjust exactions upon Merchandizes whatsoever; but as I have said, the principal scope was to provide against Impositions, and by reason also that the word Consuetudo was taken as well for Impositions as for rightful Customs, therefore to make all sure, they insert the words antiquas & rectas. This word Consuetudo in this sense continued till about the twentieth year of Ed. 1. after which time I cannot call to mind that I have seen it upon any Record: In stead and place thereof came in the word Custuma, which I find first in Charta Mercatoria an. 31. Ed. 1. where the increase of Custom by the grant of Merchant-strangers is called parva custuma, & that which before was called nova Consuetudo doth now begin to lose that name, and to be called magna Custuma, which terms of magna Custuma, intending thereby that increase made by Parliament, anno 3. Ed. 1. upon the three staple commodities, Wools, Wooll-fells, and Leather: And parva Custuma, intending thereby the increase granted by the Merchants-strangers, an. 31 Ed. 1. Custums. are the terms used at this day by the Customers, and by which they distinguish their entries. This word Custuma I find to have been also promiscuously used by E. 1. E. 2. and E. 3. in their Commissions, and applied as well to increase of Custom by way of Imposition, or by acts of Parliament of those times, as to ancient custom upon the Staple commodities; but regularly none ought to be called Custuma but that which is due upon the Staple commodities, and so is it used at this day, except only cloth; for, if it be laid by act of Parliament, it is called a Subsidy; if without assent of Parliament Impost. You see in what sense the words malum Tolnetum, and the word Consuetudo have been used in former times, and are thereby able to judge how they ought to be understood in this present Statute which, as I have said, aught to have the most benign interpretation that the words may bear. But it hath been likewise objected that in this Statute there is a special clause of exception which leaveth the king at his liberty to lay what impositions he pleaseth, The third objection against Magna Charta, cap. 30. that by the Exception the King's prerogative to lay Impositions is salved, answered. this Statute notwithstanding, and that is the words in the beginning of the Statute. All Merchants (if they were not openly prohibited before) shall have their passage, etc. which implies, say they, that if they be prohibited (which rests wholly in the king's power) than they are not to have benefit of this Stat. touching the freedom from impositions; and they say farther, that the very laying of impositions doth imply a restraint sub modo. Though I purpose to speak more fully in answer of this objection when I come to show you the weakness of the reasons alleged for Impositions, yet I cannot forbear in this place to speak a word or two in answer thereof, having the Statute now before us: Except they be prohibited they shall have free passage (saith the Statute) without paying Evill-toll; This doth imply, say they, that if they be prohibited they may be compelled to pay Impositions; but that cannot be necessarily concluded; it implies indeed somewhat strongly, that they may be prohibited. The Statute of 1 R. 2. cap. 12. inhibiteth the warden of the Fleet to deliver any prisoner out of execution, unless it be by writ or other commandment of the king. It may be as strongly implied out of this Statute that the king may, by his commandment without writ, 4 & 5 P. & M. foe. 162. b. Dyer. deliver a prisoner out of execution; but the contrary hath always been held. The same objection is made, and the same answer may be given to another exception in the latter end of this branch, Except in the time of war. I come to the second Statute against Impositions, The second Statute against Impositions, the Statute De Tallagio non concedendo, expounded and cleared. which is the Statute de Tallagio non concedendo, touching the time of the making of which there is great variety of opinion; for it is not, for aught I could ever learn, found any where upon Record; Justice Rastall accounts it to have been made 51 of H. 3. and with him agrees an old manuscript which I have seen: It may well be, for in one of the Statutes you shall find a pardon to Humphrey Earl of Boham Earl of Hertford and Essex, Constable of England, and to Roger Bygott Earl of Norfolk and Suffolk marshal of England, who both lived in that time. Tho. of Walsingham in his history of England, saith it was made in the 25 year of Ed. 1. he reciteth the Statute de verbo in verbum as it is in our printed books, otherwise I should have thought he had meant another Statute against Impositions made indeed 25 Ed. 1 and found upon the Records of that year, in our printed Statutes at large, it is placed last of all the Statutes of E. 1. Though there be some disagreement about the time of the making of this Statute, yet they all agree the occasion to be the laying of a great imposition upon Wool, the words of Tho. Walsingham, Auxit Rex tributum Lanae ad 40s. cum prius ultra dimidiam mercam non daretur tota autem comunitas sentit se gravatam de vectigali Lana enim Angliae fere extendit ad medietatem valoris terrae & vectigal ad quintam partem terrae. The Custom of Wools as you perceive was in those days esteemed to be the fift part of the value of the whole land; it followeth, in him, that upon complaint the Subject at last obtained the Statute I now speak of, the words of which are, No Tallage or Aid shall be raised or set by Us or our Heirs in Our Realm, without the assent and good will of Archbishops, Earls, Barons, Knights, Burgesses, and other Freemen of the Land, after these general words, by way of provision against all manner of burdens whatsoever to be laid in time to come, without assent of Parliament, followeth in the next branch, save one especial provision for the taking away of the imposition then in demand upon Wools, which latter clause, as it doth clearly show the cause of their present grief to be the same which our Chronicles say it was, so doth it likewise make it evident what it was which they sought to be secured of for the times to come; neither are the words themselves so obscure, by reason of the generalty of them, but that they also without knowing the occasion of the making of the law do directly point at Impositions; for, though indeed the word Tallage be (as I conceive) to be understood only of charges within the Land, Tallage. yet the word Aid extendeth to all charges of what nature soever; Aids. nay, that even Impositions themselves have been called Aids or Subsidies (which is all one) is evident by almost all the Records of the Exchequer here amongst us, especially by those of Ed. 3. time; in which, wheresoever you find any mention made by the King, in his Commissions, of an imposition raised by him, he ever calls it Subsidium or Auxilium; Subsidies. So likewise in the printed Statute of 36 Ed. 3. cap. 11. you shall find that the Imposition by grant of Merchants there mentioned is called a Subsidy or Aid: This exposition of the word Aid, concurring with the occasion of the making of the Statute, doth in my opinion strongly enforce this Statute against Impositions; and 'tis to be observed that in this Stat. there is no saving or exception of the kings ancient Right, which (as our Chronicles say) was a point principally insisted upon at the making of this Law, earnestly pressed by the Subject to be without that clause, and for a long while stood upon by the king, but at last yielded unto in such sort as you have heard. The next Statute against Impositions is 25 Ed. 1. cap. 7. The third Statute against Impositions, 25 Ed. 1. cap. 7. cleared from objections. the words are, Forasmuch as the more part of the Cominalty hath found themselves sore aggrieved with the Maletolt of Wools, viz. a toll of 40 for every sack of Wool, and have made petition to be released of the same, We at their requests have clearly released it, and have granted for Us and our Heirs, that We shall take no such, things without their common assent and good will, saving to Us and our Heirs the custom of Wools, Skins and Leather granted before by the Cominalty aforesaid. I might, in enforcing this Statute, rely upon a rule of Law for the exposition of Statutes of this nature, Omnis Impositio est odiosa, ideo stricta contra Impositiones, & large ad favorem gravatorum interpretanda est lex contra Impositiones data, but there shall not need any such construction; for the words are in themselves very clear. The Law consisteth of three parts; the first is the kings grant of a petition made by the Commons, for the releasing of an Imposition of 40 upon a sack of Wool, then in demand; when the present grief was ended, the next care was to prevent the like mischief in all times to come; It therefore follows, And We have granted for Us and Our Heirs that We shall take no such thing without their common assent, which is the second part of the law; The saving in the end is the third part. Against this general provision, two objections have been made. The first objection, that this Statute is only against the excess of the Impositions then laid, and not against the right of Imposing, answered. First, that the words No such things are to be understood only of the burdensomeness and excess of Impositions, and not otherwise. No such things (that is, say they) No such grievous Impositions as this present Imposition is. It had been a poor security for times to come, to have left it to interpretation, whether or no, Impositions which might happen to be laid in after ages be as grievous as the Imposition complained of in this time? by comparing one with the other; 'tis so uncertain a computation, as no man (when he thinks throughly of it) can imagine that men, worthy to sit at the making of Laws, should suffer such a thing to pass them. Who can certainly say whether our Impositions be more or less grievous than the rate of 40 upon a sack of Wool: Beside, how easily had this Law been to have been deluded by abating only 12d, or but 1d in the next Imposition; for, if it be but a penny less, it is No such Imposition, for the burden; Therefore it must needs be expounded of the quality and very nature of the thing complained of, 26 Ed. 1. Interbrevia ret●rn. de Term. Mich. in Scac. in offic. Rem. Thesaurar. ibidem. and not of the quantity. No such thing (that is) No such thing as this is (that is to say) an Imposition: But that which will clear this objection is a Proclamation made the very next year after the making of this Act, in which the king reciting this Act, in stead of these words, We will take No such thing, useth these words Nullam aliam Custumam sine communi consensu Capiemus, not only No such, but no other: By which you may see that the words were then interpreted in that sense in which I do now interpret them. But admitting, say they, The second objection, that is only against Impositions upon Wool, answered. that it be so to be expounded that the king will lay No other Imposition without assent in Parliament, that is to be vuderstood, say they, No other Imposition upon, Wools, and not otherwise; which is their second objection. It were a very strict construction for a Statute of so beneficial an intent as this is so to restrain it; if there were no other words in the Statute that did enlarge the exposition, But by the words following it is most evident that the scope of this Law is more liberal than so, and that the king's intent was for ever to secure his Subjects against all charges of this nature, I mean Impositions, not upon Wools only but upon any other Merchandise whatsoever, which I collect from laying all the parts of the Law together. The Petition for present ease is to be released only of the Maletolt of four shillings upon a sack of Wool, which is yielded to: The security for the time to come, is, We will take no such thing: The saving which followeth that, is, Saving the Custom of Wools, Woolfells, and Leather. I observe, the saving extends not to wools alone, as the Petition doth, but also to Wooll-fells and Leather, by express name; by which it is evident, that the security for the time to come is of a larger extent than to stretch only to Wools, as hath been objected: For else, to what end should Wooll-fells and Leather be excepted in the saving, if they had not been contained in the general words, no such thing. An exception cannot be but of a thing contained in former words: If therefore the grant would have extended to Wooll-fells, if they had not been specially excepted; then do I conclude by the same reason, that it doth extend to all other Merchandizes not excepted; for the words are general. And so I leave this Law cleared of all objections, and very full against Impositions. The next Statute made against them, is, 14 Ed. 3. The fourth Statute urged against Impositions, 14 E 3. cap. 11. cleared from objections. cap. 21. By the first part of which Law you may perceive, that whereas the Commons had prayed the King not to take of Wools, Wooll-fells, Leather, Tyn, or Led any more than the ancient Custom, the King prayed them to grant him forty shillings upon a sack of Wool for a year and a half, which they granted: whereupon the King, by way of Retribution, and in answer of their Petition, as touching the Wool causeth it to be enacted for their Security in time to come, That neither he nor his heirs would demand, assess, nor take more custom of a sack of Wool than six shillings eight pence: And so likewise upon Wools and Leather, no more than the ancient custom, without assent of Parliament. All this while there is no answer given touching the Tyn and Led mentioned in the Petition; upon which, as it appears, the King had also laid Impositions: But there do follow certain general words by which, not only Tyn and Led, but all other Commodities whatsoever are freed from Impositions: The words are, The King promised in the presence of his Earls, Barons, and others of his Parliament, no more to charge, set, or assess upon the Custom, but in manner aforesaid. Except these words do extend to Led and Tyn, to free them from Impositions for times to come, as well as wools, wooll-fells, and Leather are freed by the former special words, their Petition touching Tyn and Lead is no way answered: And if they do extend to Tyn and Led, by reason of the generalty of the words, they do by the same reason extend to all commodities: For what more liberal words can there be than these; That the King will not charge, set, or assess upon the custom: these words, the custom, being words indefinite, are (you know) equivalent to an Universal, according to the rule, Indefinitum aequipollet universali: And although the King do but promise, yet I doubt not but in this case his promise is a Law: And it is worth the observing, that the Lords do in very extraordinary and unusual manner solemnly undertake, as much as in them lieth, that they shall procure the King to hold the same, and that they shall in no wise assent to the contrary, if it be not by the assent of the Prelates, Earls, Barons and Commons, and that in full Parliament; and for the greater surety, and to give cause to eschew all counsel to the contrary of this Ordinance, the Prelates have promised to give sentence upon them that counsel against the same in any point; which are the very words of the Statute in print. The Statute of 14 Ed. 3. cap. 21. was yielded unto by the King, 13. Ed. 4. no. 5. Ro. Par. upon a Petition exhibited the Parliament before, both by the Lords and the Commons, praying that a Law might be made against Impositions, as may appear by the Records of the 13 year of Ed. 3. at which time they likewise prayed, that the King would be pleased to grant them a Charter to the same effect, to be enrolled in Parliament: The Statute you have heard; the Charter followeth in our printed books immediately after the Statute, where the King (in the preamble thereof) reciting the great gift that he had given him at the same Parliament, that is to say, the 9th Fleece, 9th Sheep, & 9th Lamb throughout the Kingdom, which indeed, was a very extraordinary great gift; and therefore his grant, in regard thereof, is to be intended so much more beneficially) doth in lieu thereof, for him and his heirs, grant to his Subjects in these words; From henceforth they shall not be charged, nor grieved, to make any aid, or to sustain charge, if it be not by the Common assent of the Prelates, Earls, Barons and other great men, and the Commons of our said realm of England, and that in Parliament. It hath been objected, that these words, Aid and Charge, are to be understood of Charges within the Land, such as are Taxes and Tallages, An Objection that the stat. of 14 Ed. 3. An. 21 extendeth only to Impositions within the land and not to Imposition upon Merchandizes, is answered. and not of Impositions upon Merchandizes; And this is the only Objection made, or indeed can be made against this Statute; For the clearing of which, I can say no more than already I have proved by matter of Record for the opening of the sense of this Statute, viz. That this Charter, and the last Statute were made upon a Petition exhibited in Parliament, for a law and Charter to be made against Impositions upon Merchandizes. And therefore that conjecture of theirs, that it should extend only to Taxes, and not to Impositions, cannot but fall to the ground, especially since there is not in the Petition, any mention at all of Taxes or Tallages, or of any other charge or aid but impositions only, than which there cannot almost be a clearer proof, then that this Law being made upon this Petition, is to be expounded against Impositions; which, if this Petition had not been extant, would with no less clearness have been proved by considering the mischief at the time of the making of this law, which was not Tallage or Taxes, but those heavy Impositions of Four pound, and five pound upon a sack of Wool, by way of dispensation with the Statute of 11. E. 3. cap. 1. of which I have formerly made mention. So as this Statute, being made in the first intention against dispensations for money, with a penal law, though the occasion were particular, yet (the words being general) I hold that with reason it may be extended against all dispensations, with penal laws for money: in particular, I hold, that the raising of money by dispensations, with the Statutes against Alehouses, is (if not by the Common Law) yet by the force of this law, unlawful, For certainly, quod prohibitum est una viae, non debet alia permitti. As for the words Aid and Charge, I have already proved that it was a term by which Impositions were commonly called in those times; That they were also called charges is evident by very many Records of those times, The word Charge. where complaint is made against them, as 21. Ed. 3. Numb. 11. Les commons prion qe la charge de 2●. sur sack de lane soit Ouste, 21. Ed. 3. Num. 16. The Commons pray that no charge be set upon them without assent of Parliament. The king's answer is, if any Imposition be levied unduly it shall be taken away; of this kind there are very many Precedents, so as if the precedent Petition had not assured us of the scope of this Law as it doth, the very words themselves, rightly understood, would have made it clear. In the same Charter there is another clause as beneficial as this, to this effect, All Merchant's Denizens & Forreins (except those which be of our enmity) may without let safely come into the Relm of England with their goods and Merchandizes, and safely tarry, and safely return, paying the customs, subsidies and other profits reasonably thereof due. The objection to this clause is very obvious, for what (say they) can these words, Other profits reasonably due signify other than Impositions; for, by the words going before, Custom and Subsidies are expressly named, and there is (say they) not other third profit upon Merchandise but Impositions, and indeed this Statute they themselves have vouched in maintenance of Impositions. To this objection it might serve for a full answer, that there are other duties than Customs and Subsidies due upon the landing of wares; for example Wharfage, Cranage, Scavage and such like, the which with more probability I may conjecture to be intended by these words, Other duties, than they can conjecture it to be meant of Impositions, Said in planis non opus est conjecturis. The best expositors of this Act are those that lived in the same times, and they do clearly expound this clause to be made against Impositions, as may appear by the Record of 21 E. 3. No. 29. for you shall there find a Petition exhibited in Parliament by the Commons to be relieved touching an Imposition upon Wools, alleging for a reason of their Petition, that every man ought freely to pass paying the ancient custom as it was ordained by the king's Charter. This Petition against Impositions was exhibited by the whole Parliament, within six years after the making of the Charter, as may appear by comparing the times, and if they had not then thought that Impositions had been meant to have been provided against by this Charter, they would not certainly have made such a special reference thereunto. In discovering the weakness of the reasons alleged in maintenance of Impositions, Answers to the Reasons urged in maintenance of Impositions I shall not greatly need to say any thing more than hath been said, because the state of the question hath been already so throughly opened unto you, that whatsoever can with any colour of reason be said for Impositions, may receive an answer out of that which hath been spoken against them: Nevertheless, I will in a few words recall to your memories their reasons, and in as few apply the answers to them, with some additions of mine own, that by laying both together in your view at one time, the weakness of the one, and strength of the other may the better appear unto you. It hath been said that the old Custom of a Demi-marke upon a sack of Wool must have his beginning either by the king's absolute power, The first argument, That because it cannot appear that the ancient Customs were set by Parliament, therefore they were imposed by the King, answered or by a legal assent of the people, which can be no where but in Parliament, and cannot but appear of Record; but because no such assent can be shown, therefore they conclude that it began by the king's absolute power, and infer that the same power remains still. The substance of this argument is found in my Lord Dyer in the place cited by me; It was much enforced in the Exchequer: but as touching the particular of the old Custom of a Demi-marke upon a sack, and the other old custom upon Fels and Leather, it is now no longer urged because it appears expressly by divers Records of 3 E. 1. in the Tower, That it was granted per les grandes et all prier des Comons et de les Merchants de tout Englaterre, and by a Record of 25. E. 1. cap. 7. Stat. printed, per Communitatem Regni nostri Angliae, Ro. Pat. 3. E. 3. M. 1. Stat. 25. E. 1. c. 7. Ro. fin. intus 3 E. 1. M. 24. which concurres also with the Statute of 25 E. 1. cap. 7. in print. Saving to Us and our Heirs the Customs of wools, skins and leather granted heretofore by the Commonalty aforesaid. The Patent roll of 3 E. 1. which hath these words cum Prelati Magnates ac tota Comunitas Mercatorum Regni nostri nuper nobis concesserunt quandam novam consuetudinem, 3. E. 1. M. 1. Ro. Par. viz. de quolibet sacco Lanae 6 8d, etc. being something thing obscure are by the concurrence of all those other Records so clearly expounded, as there cannot be, neither now is there, any question made but that the Custom of a Demy-marke, and the other old Customs, which by my Lord Dyer, and by all those who argued for, or against Impositions in the Exchequer, was held to be due by the Common-Lawe, was by grant in Parliament; nevertheless the strength of the argument they still retain, though the Demy-mark and those old Customs upon the staple commodities were by Act of Parliament, yet (say they) before that increase by Parliament the king had Custom, and no doubt a some certain, otherwise could not this increase be called nova consuetudo; besides (say they) the Custom reduced to a certainty by 3 E. 1. is only upon three commodities, wool, skins, and leather: there are many other commodities which did likewise pay Custom; How began that Custom (say they) if not by the king's absolute power? and when was that power taken away? I answer, admit it were by the king's absolute power, yet that the king hath clearly discharged himself of that power by Act of Parliament, I hope I have clearly proved: But this question, How began the first Customs? is best answered by another question, How began the Fine for purchase of Original Writs? the Fine pro licentia concordandi? the certainty of prisage? nay, who reduced it first to certainty that the trial of issues should be by twelve Jurors, no more nor no less? that the full age of a man should be accounted twenty one years? of a woman fourteen, twelve years her age of consent, and nine years capable to be endowed? a year and a day given to sue an appeal, the like limitation of a year and day in very many other Cases? In effect, who reduced all the known grounds of the Common law to that certainty that now they are? Because we cannot tell how or when they began, shall we therefore conclude that they began by the king's absolute power, and infer, that by the same reason, they may be changed at his pleasure? If the king may increase his Fines upon the purchase of Original writts (which by the same reason he may do, that he may do his Custom, nay, he hath more colour for this then for that, because there is no Statute against this) he might easily raise that revenue to the value of his Customs: But no man can, nor will I hope offer to maintain it to be lawful. You see the weakness and the dangerous consequence of this argument, by comparing it to other cases of like nature. To say the truth, all these things began no man can say certainly when or how, but by a tacit consent of king and people, and the long approbation of time beyond the memory of any man, and yet no man can directly affirm but that most of them might begin by Act of Parliament, though now there be no Records extant of such ancient Parliaments. The first Parliament was not kept 9 H. 3 though it be the first in our books. If we will give credit to other Records, and to our best Chroniclers, The antiquity of Parliaments we shall hear and read of divers Parliaments in the Reign of King John, and of his Predecessor Rich. 1. and in the Reign of H. 2. of two famous Parliaments, one at Claringdon in Wiltshire, the other at Gedington in North-Hamptonshire: And although our Chronicles say, that the first Parliament kept in this Realm was held 19 Aprilis, 16 H. 1. yet I am of opinion, that William the Conqueror held Parliaments; for what can be else understood by these words, Per commune consilium totius Regni nostri stabilitum fuit, which I find in Mr. Lambert's collection of the ancient Laws of England, in the beginning of the Laws of W. the Conqueror: Many of the Statutes of E. 1. have no other words: Nay, long before him, in the year of our Lord 712. in the time of Inas King of the Westsaxons, I assure myself there were Parliaments held, and that of the three Estates, as at this day; as may appear by these words in the beginning of the Laws of King Inas, in Mr. Lambert: Suasu & Instituto Episcoporum nostrorum omnium, Senatorum nostrorum, & natu majorum populi nostri in frequentia magna: And more plainly in the conclusion of some other of his Laws; Hoc factum fuit per commune consilium & assensum Procerum, Comitum, & omnium Sapientium, Seniorum, & Populorum totius Regni, & per praeceptum Regis Inae, which are the same in Latin which ours is in English, By the King, the Lords Spiritual and Temporal, and the Commons. Why might not the Custom upon Wools be first granted at one of these Parliaments, as well as to have it first begun by the King's absolute power? There is no more probability of the one than the other: because most of the ancient Records were burnt in H. 2. time, when the Exchequer was burnt, shall we conclude therefore that there were ne●er any such? You see the weakness of this Argument in all the points thereof. I leave it, and pass to another. The King may (say they) restrain the passage of Merchants at his pleasure, The second Argument, that the King may totally restrain the importing and exporting of merchandizes, therefore he may do it sub modo by laying of an Imposition, answered. which they prove by divers Records; 2 E. 1. m. 18. Ro. Par. 2 E 1. m. 17. Ro. fin. 31 E. 1. n. 44. Ro. Pat. 17 H. 6. Ro. Clo. in dorso: Upon which they infer, that if he may restrain a Merchant that he shall not pass at all, he may much more so restrain him that he shall not pass except he pay a certain sum of money: For this (say they) is less than totally to restrain him; And (Cui licet quod majus, licet etiam quod minus.) Of this Argument my L. Dyer gave light in his case of Impositions, 1 Eliz. and this hath been diversely enforced by all that have argued for Impositions. In answer of which I will consider how fare the king may restrain the passage of Merchants; and then will examine the consequence of the Argument. For my part, I think the king cannot restrain the passage of Merchants, but for some special cause; wherein to define certainly and resolutely, to say for what causes he may, and for what not, I will not undertake: Only let me inform you, that there is not one of these precedents vouched by them to prove the king's power to restrain, but they are upon special reasons; as by reason of Enmity with such a Nation from whence they are restrained, or because such a Commodity may not be spared within the kingdom: Besides, they are not restraints from all places, and of all manner of Merchandizes, but from certain places only, and for certain sorts of Merchandizes: And for my part I think that restraints in all these cases, and of like nature, are by the Common-Law left to the kings absolute power; For if it were otherwise, it should be in the power of a Merchant, for a little private lucre, to enrich the king's Enemies, or to furnish them with munition to be employed against the State, or utterly to ruin the Commonwealth, by carrying out a Commodity which may not be spared, or by bringing in of some that may be hurtful. Nay (which is more) such may be the occasion, that the king may, I doubt not, stop the passages of all Merchants from all places for a short time, as upon the death of the late Queen it was put in practice, to prevent Intelligence: there may likewise be such necessary use of their ships, as the want of them, upon some sudden attempts, may be a cause of the overthrow of the whole State. In such cases as these, if the Common law did not give the King leave to restrain their passage by his absolute power, it were very improvident in the highest points, which cannot be imagined of so wise a law; And yet the Kings of this Realm have always been sparing in the practice of their absolute power in this point, For there are little less than 30. Acts of Parliament, touching the opening and shutting up of the passage of Merchants, most of which, as I conceive, were made rather for the increase of punishment, then for want of power in the King, For the breach of a restraint by absolute commandment, is punishable, as all other contempts, only by Fine and Imprisonment, and not by forfeiture of the Merchandizes, as in the precedent of the Wines, An. 5. of Queen Mary, vouched by me, and is in some of those old precedents. If it be otherwise, I must confess I know not the reason of the difference of this from other contempts. You see that I have yielded to their proposition, That the King may by his absolute power restrain the passage of Merchants, and have therein granted, more than their precedents prove; But is the consequence good, that because the King may restrain, therefore he may impose upon such as pass? First I deny that in our case there is any restraint at all, as there was in the case of the French Wines, by Queen Mary, by her Proclamation going before the imposition. For proof of which, I refer you to the King's Letters Patents prefixed before the last Book of Rates, by which instrument, the impositions now complained of, were altogether raised, you shall find it no other than a Declaration of the King's pleasure so to have it, and a course prescribed for levying of it; But admitting that the very laying of an imposition, did imply a restraint, yet I deny the consequence, Because the King may restrain totally, that therefore he may restrain for a time, or from certain places, or certain commodities, or certain Merchants. This indeed is a good Argument, a majori ad minus. But because he may restrain totally, therefore that he may give passage for money, is no good consequence; For in our case, there is no restraint at all, but it is rather a passage for money. If there be just occasion of a restraint, the law giveth the King power to restrain; but when Merchants may without hurt of the State, have passage, as in our case, to enforce them to pay for that passage, is in my opinion, as unlawful as to enforce any man whatsoever, to pay for doing that which he may lawfully do; Merchants have (as I may so say) as good inheritance in their trade, as any man in his lands, and when it may stand with the good of the state, that they may pass, they ought to pass as freely without charge imposed on them, as any man ought to hold his inheritance, or any Artificer, or other Tradesman ought to exercise their lawful trades, and means of living, free from burdens to be laid on by the King's absolute power; if all others should be free, and only Merchants, (who adventure their persons and estates in so many dangers, to bring us from fare places, such things, as without which we cannot subsist, and to return us profit for our superfluities) should be subject to involuntary burdens, their estate were of all other men's most unhappy and slavish, which of all other trades, is indeed the noblest, and most worthy to be cherished. And here by the way I note, that in all other Nations of the world, where the Merchant is subject to impositions at the King's pleasure, the Landlord, the Farmer, the Artificer, the very Ploughman, and all others are in like sort subject to Taxes and burdens, when the King pleaseth, The Merchant is not the man alone that is subject to Taxes, and all other men free: if in the frame of our Common wealth, it were thought fit to free all other Trades and Professions from taxes, much more ought it to be thought reasonable, that our Merchants should be free, and by all means possible, encouraged in their Trade: For our case is not, as it is with other nations of the Continent; we are Islanders, and divided by the Sea, from all the world, and in that respect, have such use of Merchants, as we cannot live without them; if therefore any should be free amongst us, it should be the Merchant, and not the quite contrary, only the Merchant charged, and all others free: Plato in his 8. book de Rep. is of opinion, that the Merchant for his encouragement to trade, should be free from all Custom whatsoever, we seek only to be free of involuntary impositions. But to return to the Argument of restraint, from whence I am a little digressed; if it be a good Argument, that because the King may restrain in Toto, he may restrain in Tanto; It will not be denied unto me (for it followeth necessarily) that in cases where he cannot restrain in Toto, he cannot restrain in Tanto: But there is no man that will say that he may restrain the entrance and passage of all Merchants, to and from all the parts of the world whatsoever, without any limitation of time, but the restraint to endure for ever, and for all kinds of Merchandizes whatsoever, of most necessary and common use, to be brought into, or carried out of the Realm; There is no man I suppose will say, That the Law hath given the King power to make so unreasonable a restraint as this; for it were to give him a power to destroy merchandise, and consequently, to ruin the Common wealth, Beside, it were against the law of nations, and of reason itself; It cannot be imagined, that any wise law in the world should allow it. But if our Impositions (as it is said) do imply a Restraint, and that a restraint be always the forerunner of all Impositions, Then such an unreasonable restraint, as I have spoken of, must needs be presupposed to have been the ground or forerunner of our present imposition, For in our impositions, are not all the merchandizes of necessary and common use charged? Are not all the Merchant's Denizens and Strangers, importing from any part, or exporting to any part of the world, subject to the charge? is there any limitation of time, but to endure for ever? if I say such a restraint had been unlawful, which I suppose no man will deny, than whatsoever implieth such a Restraint (which our impositions do) is likewise unlawful; But the ill consequence of this their argument drawn from the King's power of restraint, will best appear by comparing it to other cases. I little doubt but the King upon some occasion, may lawfully restrain the passage of all men through the gates of London; as for the purpose, when the City shall be besieged, or in the time of an extreme plague; Nay is it not by authority derived only from him, that the gates are shut every night? Doth it follow therefore, that because he may do it upon some extraordinary occasion, or at some time that he may shut up the passage for ever? or that presupposing such a restraint by his absolute power, he may lay an imposition upon every burden of any thing brought in, or carried out, as the Duke of Florence, and many other States in Italy and Germany do, or upon every man by the Poll, that shall pass through the gates? You see the weakness and danger of the consequence of this Argument, and how it tends to justify Impositions within the land. And so I leave it, and proceed to the next. The Ports and Haven Towns of England, are (say they) the Kings, The third Argument, that the Ports are the Kings, and that he may open them, and shut them upon what conditions he pleaseth, answered. and in regard thereof, he may open and shut them upon what conditions he pleaseth; I answer, I. That the Position, that all the Ports are the Kings, is not generally true; For Subjects may also be owners of Ports, as may appear by the Patent Roll of 3. E. 1. M. 1. Parl. where you shall find, that King Ed. 1. granted to the Lords of Port Towns, the forfeitures granted to him by Parliament, for not duly paying the new Custom of the demy-Marke within every several Port, of theirs, where the Merchandizes should happen to be imported or exported. But admitting the truth of the position, yet is the consequence as weak and dangerous, as of any of the rest of their arguments; For are not all the gates of Cities and Towns, and all the Streets and Highways in England the Kings, and as much subject to be open or shut at his pleasure, as the Ports are? Nay, whensoever we speak of the Highway in any law business, we call it via Regia, the King's Highway, and the King in his Commissions, speaking of London, or any other City, calls it Civitas nostra, London, or Civitas nostra Exon; Doth it follow therefore, that the King may lay Impositions upon every man, or upon all Commodities that shall pass through any of these places? Nay the gates of the Kings own house (for the purpose, his Palace of Westminster) are his in a fare nearer degree than any of these, may he therefore by his Proclamation impose upon every man that shall pass in or out at Westminster Hall door a sum of money? Doubtless he may not; because the King is a person public, and his Subjects ought to have access to him, as to the fountain of Justice, and to the Courts of Justice, sitting by his authority; I make little doubt, but his Majesty may upon just occasion, cause any of these passages to be shut, as he may also the passage at the Havens; But when the Passage may without danger to the State, be open, and that the Subjects may pass, his Majesty may not then exact money for their passage; For the law hath given the King power over these things, for the good of the Commonwealth, and not thereby to charge and burden the Subject; If the King may not exact money for passage in and out of his Court gates, because of the publicness of his Person; Nor for passage through the gates of Cities, much less may he for passage out at the Ports, which are the great gates of the Kingdom, and which the subject ought as freely to enjoy, as the air or the water. Another of their arguments is this, The fourth argument that the King is bound at his own charge, to protect Merchants, & therefore it is necessary it should be in his power to lay moderate Impositions upon Merchandizes for raising of money to defray his charge; Answered. The king is bound to protect Merchants from spoil by the enemy, he ought to fortify the Havens, that their ships may there abide in safety; he ought, if occasion be, to send Ambassadors to foreign Princes, to negotiate for them, and many the like charges is the King by the Law to undergo for the protection of his Merchants. It is reason therefore that his expense be defrayed out of the profit made by Merchants, and consequently, that he may impose upon Merchandise a moderate charge, thereby to repay himself. The consequence of this Argument is thus fare true, The law expects that the King should protect Merchants, therefore it alloweth him out of Merchandise a revenue for the maintenance of his charge, which is the old Custom due (as at first I said) by the Common law, But it is no good consequence, The Fifth Argument that all foreign Princes have power to impose, and if our King had not the like, it might be very inconvenient to this State. Answered. that therefore he may take what he list, no more than he may at his pleasure increase that old revenue, which the law giveth him for protecting of Subjects in their suits, or for protecting Wards, etc. Another Argument of theirs is this, All other Princes of the world may impose upon merchandise at their pleasure, and so may make our Merchandizes less vendible with them, by laying an Imposition upon them, to be paid by us, when they are brought into their Territories, whereby their own Commodities of the same nature, may be sold more to the gain of their Merchants, and our Merchant impoverished, or driven from his Trade; They may also lay Impositions upon our Merchants, fetching Commodities from thence, and leave their own Merchants free from any Imposition in the same case, by which their merchants shall reap all the profit by that commodity, in affording it better cheap to us here, than we can fetch it, and consequently our merchants shall be undone, Many the like cases have been put to prove, That if the King of England may not impose, as other Princes may, they shall be able at their pleasure to destroy our trading; This I conceive was the same as now it is, during all that time from Ed. 3. till Queen Mary, and doubtless it could not but sometimes (during that long space) so fall out, that foreign Princes did put their power in practice to our prejudice, and yet we hear not of any Imposition laid by any of our Kings, by their absolute power, which may give any man assurance, that they took some other course to meet with the inconvenience, and in deed, the means are divers, which these our Kings used to prevent it. First they were careful in all their Leagues and Treaties with foreign Princes, specially to provide for it, as may appear by the Records of the ancient Leagues: Neither is there any League of late time, that hath not had an Article for provision in this point; which Leagues for the most part, are upon oath on both parts. And yet for further security, our Kings have always had Ambassadors resident in the Courts of such foreign Princes, to put them in mind of their Leagues, if upon any occasion our Merchants have in that case happened to be never so little wronged by them, & if upon complaint of the Ambassador, our merchants have not found redress, our Kings have held the League as broken, and denounced War, or seized all the goods of the same Prince's Subjects within England; and I dare say there have been more wars undertaken by our Princes, against foreign nations, only for this cause, then for any one other cause whatsoever. Besides, our Kings have in this case sometimes made use of that their Prerogative of restraint, either by prohibiting our Merchants from carrying our Commodities into those parts, where they are charged with Impositions, that so by the want of our Commodities, foreign Princes might be enforced to abate their Impositions laid upon them, or by restraining the Merchants of foreign Princes to import or export commodities from hence; By which means foreign Princes have been compelled to deal favourably with our Merchants for the good of their own Subjects; All these are lawful and ordinary means to prevent or redress the inconvenience which may grow by the Impositions of other Princes: If all these ordinary means should happen to fail, which can hardly so fall out, and that the laying of Impositions be indeed the only means that is left to redress the inconvenience, why should not that be done by Act of Parliament as well in these times, as it was in 7. H. 7. cap. 7. to take down the Imposition of Four Ducats upon a But of Malmsey, imposed by the Venetians, And as it was done by Queen Eliz. the 19 year of her Reign, to prevent the laying of Impositions by foreign Princes upon Saltfish, as may appear by the printed Statutes of 19 Eliz. cap. 10. But as I have said, the providence of the Prince, and ordinary power of restraint may very well meet with the inconvenience. These are the chief reasons made in maintenance of impositions, the weakness of them, and their dangerous consequence, you cannot but perceive; For by the same reasons, Taxes within the Land, may be as well proved to be lawful. On the contrary part, you have heard the reasons against impositions fortified by many Records and Statutes in the point; So as I conclude, that Impositions, neither in the time of war, or other the greatest necessity or occasion that may be (much less in the time of peace) neither upon foreign, nor inland Commodities of whatsoever nature, be they never so superfluous or unnecessary, neither upon Merchants, Strangers nor Denizens, may be laid by the King's absolute power, without assent of Parliament, be it for never so short a time, much less to endure for ever, as ours. Though this be now my opinion, yet am not I so obstinate therein, but if yet I hear better reason, I will once again change my mind; in the mean while, you see I had reason to alter my first: opinion, as being grounded upon very weak Reasons, as now they appear unto me. And so I suppose they do also unto you. FINIS. 7ᵒ. Julii 1641. AT a Committee of the Honourable House of Commons, for Examination of books, and of the Licensing, and Suppressing of them, etc. It is Ordered, That this Argument upon Impositions, be forthwith published in print. EDWARD DERING.