THE CASE OF THE MERCHANTS OF LONDON, In reference to the Arrears of Excise, Stated and Examined.  
Printed in the Year, 1662.   

The Case of the Merchants of London, in reference to the Arrears of Excise, Stated and Examined.  
THe Excise of all Imported commodities by the several pretended Acts and Ordinances of Excise, made in the times of the late Usurping Powers, was always charged upon the first Buyer of the Commodity, and not upon the Merchant Importer. It being contrary both to the Nature of this Duty, and to the Intention of the Imposers themselves, that the Merchant should be any wise charged therewith. Forasmuch as an Excise in its proper definition is a Tax intended to be imposed upon so much only of the Commodities and Merchandizes of any Nation, as comes to Actual consumption within itself, which in the hand of the Merchant is not discernible: But when it is bought from the Merchant by the Shopkeeper, or Retailer, it is always to be supposed to be for Domestic consumption and use.  
And for this Special reason as well as for that it would have been a burden both too heavy for the Merchant to undergo to pay both Custom and Excise, before he can fallen his Commodity, and subject to great trouble and confusion, by reason of his exportation of much of the same Commodity again. The Powers that first Imposed this Tax, did lay the same upon the first Buyer, and not upon the Merchant, as by the several Schedules of those Goods, which by the said Acts and Ordinances, were made Exciseable, may fully appear. But for that by compliance between the Merchant and the first Buyer, the State (as they then called it) was subject to be much Defrauded of the said Duties, by the clandestine sale and delivery of Goods without the knowledge or cognizance of the Officers appointed to receive the same; Thereupon besides the penalties in such case enacted to be inflicted both upon the Buyer and Seller in case of such clandestine sale and delivery of Goods, it was thought fit for the better prevention of such frauds to hold the Merchant-Importer to an annual Account for the quantity only of his Goods Imported, whereby to discover how, and to whom he had disposed them.  
And therefore by an Article in that pretended Act made in the year, 1649. for the settlement of the Excise, it was enacted among other things, viz. Article 17. That no Merchant or Importer of Goods or Merchandise from beyond the Seas, should Land or cause the same, or any part thereof, to be Landed or put on shore, before due entry were made thereof under his hand with the Officer of Excise (in that behalf appointed) at the Custom-house of the same Port where the Goods were first Imported; and that under a severe penalty.  
And it was the duty of this Officer daily to deliver into the Excise Office, all such Entries as he received; which were there fairly registered by way of Account, under every Merchants particular head, and the Account again discharged still as the Goods came to be sold. And it was penal for any Merchant to sell or deliver any Goods without a ticket from the Excise office. And likewise to the end that such discovery as aforesaid, might be the better made, and the Merchant's Import Account examined for that purpose, by another Article of the same Act, viz. Article 25. The Commissioners and Sub-Commissioners of Excise in their respective Divisions, had power, once in twelve Months, or oftener, if they saw cause, to summon every Merchant in their respective Divisions to give an Account, under his hand, of what Foreign Goods Exciseable, he had then in his hands: which Account, if he refused or neglected to give in, by the space of 28 days, it was Enacted (by way of punishment, for such his Neglect) That he should be liable to pay the full Excise for all such Goods as he then stood charged with by his Entries in the Books of the Excise Office, which were not before discharged by Sales and Deliveries, for which Tickets had been given out of the Office, and accordingly should be adjudged to pay the same.  
Which Judgement had two apparent operations (though never rightly understood by most of those that were to put the same in execution) that is to say:  
First, that it made him liable to pay the Excise himself for all such Goods as then stood undischarged in his Account, as aforesaid, which otherways for the reason's  he had not been liable to.  
And secondly, That it excluded him from all allowances for Goods exported again, or remaining in his hands, or for Leakage, Waste, Tret and Tare, and the like, which otherwise were to be allowed.  
And in execution of this Judgement, the Commissioners had a special power given them by the same Article to warn him to pay in such Sum, as the Excise amounted unto by the said Judgement; which if he did not do within 14. days after such warning, they were further empowered to levy double the value upon his Goods and Chattels by way of Distress, and for want of sufficient Distress to Imprison his person.  
But if within 28. days after summons, the Merchant gave in such Account of his Rest, than the Commissioners being first satisfied of the truth of such Rest, had power to adjust his Accounts without demanding any Excise of him for any of the said Goods, other than for such as by the said Account should be discovered to have been sold and delivered by him to the first Buyer without notice given to the Office. In the casting up of which, the Merchant was likewise to have allowance for the waste and leakage of Wines, Oils, and the like, as by the very next Article of the same Act appears.  
And this was all that the Merchant-Importer was concerned in as to point of payment; but it was not where said, either in that, or any other of those pretended Acts, or Ordinances, for the Excise, that the Duty should Originally lie upon the Merchant. So then, it is clear, That even in the time of those usurping Powers, when those pretended Acts and Ordinances were supposed to be in full force, the Merchant-Importer could not way come to be charged with the payment of any Excise, but either by Judgement upon his Default, which was in the nature of a Penalty, or by an Account actually agreed upon, adjusted and stated on both sides.  
But upon his Majesty's most happy restauration and return to the possession and exercise of his Royal Power and Dignity, all those pretended Acts and Ordinances, and all proceed thereupon fell to the ground, and became utterly void of themselves, as not being made by any legal Authority whatsoever.  
Nevertheless, in the Parliament begun at West-minster, the 25th day of April, in the 12th year of his Majesty's reign, two Acts were made for continuing the Imposition of Excise: the one from the 24th of June, 1660. to the 20th day of August in the same year; and the other from the said 20th day of August to the 25th of December following. By both which Acts it was enacted among other things, that the said Imposition, together with all Arrears thereof, should be continued to be collected, levied and paid during those respective Periods according unto, and after, the same Rates, Rules, and Proportions, and upon the same Goods and Commodities, as the same was payable and collected the said 25th day of April, 1660. With a Proviso nevertheless, That all sorts of Oils, Wines, Tobacco's of the English Plantations, Silks, Linens, and divers other Commodities therein particularly named, should after, the 24th July, 1660. be wholly discharged of the duty of Excise.  
By virtue of these two Acts, and during the time of their being in force, the Commissioners of Excise for the time then being, supposing that the Powers given them by the said pretended Act of the year 1649. were thereby continued; did summon in divers Merchants of the City of London, to give in an Account of their respective Rests, according to the Article above mentioned, some of whom did accordingly appear, and gave in such Accounts; but the said Commissioners never proceeded to any adjustment with any of those, but left their Accounts depending, when the Excise upon foreign Goods fell. But divers other of the said Merchants committed default, and never gave in any Rest at all; and against these it is said, the Commissioners of Excise proceeded according to the said 25th Article, and made up their Accounts, as they stood charged in the Books of Excise by their Entries, and against every default, or most of them entered Judgement for the Sum, and made Demand thereof, but proceeded no further, as to the levying either the single or the double value of the said sums, or any of them, upon the refusers or neglecters of payment.  
But there were many other Merchants, that were never summoned at all to give in any Account of their Rest, and so fell not either within the one, or the other of the two former capacities; that is to say, had neither Judgements passed against them by the Commissioners of Excise, nor Accounts depending, when the Excise of Foreign Goods ceased.  
So then the Merchants of London, as to this case of pretended Arrears of Excise, are to be considered in these three capacities, viz.  
Those against whom Judgement was entered, upon default of giving in their Rests.  
Those who gave in their Rests, and had their Accounts depending unadjusted.  
And those that were never summoned at all, before the ceasing of the Foreign Excise.  
Since which time, viz. in this present Parliament an Act is made for vesting the Arrears of the Excise and New-Impost in general in his Majesty. Whereby among other things, his Majesty is enabled to sue for, and recover the same of every person and persons, their Heirs, Executors, and Administrators, having Assets, who are any way accountable for the same, as if the same Duties of Excise had been lawfully Imposed, and as if the several pretended Acts and Ordinances imposing the same had been good and legal Acts of Parliament, and had in express words granted the same to the King.  
And it having been suggested, that there are vast Arrears of Excise standing out in the hands of the Merchants of London, which by virtue of this Act are now recoverable to his Majesty, and thereupon several Informations being exhibited against several of the said Merchants within every of the said three capacities; Lest the apprehension of so great a sum to be raised by this means should divert or delay the Parliaments intentions in providing for his Majesty's supply otherwise. It will not be amiss to examine first, whether all, or any of the said Merchants can be chargeable with any such Arrears at all.  
And secondly, admitting them not only chargeable, but that the Arrears were actually recovered, of what value they will be like to be in his Majesty's purse.  
As to the Merchants of the two last capacities, viz. those whose Account were depending, and those who never were summoned; I suppose, it will be easily granted from what hath been before truly stated, that neither originally as Importers, nor by any Act, ordefault of their own, nor by any Account stated before the ceasing of the Foreign Duty, they were answerable for any Excise at all. And then the question concerning those two sorts will only be, Whether the Act by which his Majesty is invested as aforesaid, hath since made them accountable for the same, or not.  
And it is humbly conceived, it hath not: For although his Majesty be thereby invested, with all Arrears of Excise in general words, yet it is so far from making any person accountable for the same, that was not accountable before; that it rather restrains the power it gives his Majesty, to recover such Arrears to such person or persons only, who at the time of the passing of the said Act were accountable for the same. Neither doth it make or declare any thing an Arrear of Excise, that was not then an Arrear by some of the former pretended Laws of Excise. And although Informations may possibly be exhibited against some of both these two sorts, as well as against the other; yet it is to be supposed, that this hath proceeded either of the mistake of those who certified them Debtors, or else perhaps of design to endure them for fear of trouble, to come in and submit to an Account, which by the Law they are not now liable unto.  
The only remaining question therefore, in which there is any seeming doubt, or difficulty, will be concerning those against whom for default of giving in an Account of their respective Rests, Judgements have been actually passed and enregistered in the Office of Excise before the Excise of Foreign Goods fell to the ground, viz. Whether the respective sums of Money thereby adjudged against them, shall be accounted such Sums or Debts of Excise as are intended in the said Act of Investure. And if they shall, and that nothing be to be pleaded in bar of his Majesty's demand thereof, upon what evidence they shall be recoverable.  
That no Excise was originally chargeable upon the Merchant by virtue of his Entries at the Custom-house, hath been already shown, and I suppose, will not be denied; it being always payable by the first Buyer, and not by the Importer. It will follow then, that if any of those sums, so adjudged, be due, they must be due by virtue of the Judgements themselves, or not at all. And then the validity of those Judgements will be to be examined. Now to make a Judgement good and valid in Law;  
First, there must be some Law, Custom, or Statute in force at the time of the passing thereof, upon which it must be grounded. Secondly, The Judges must be rightly and duly constituted, and must have sufficient Authority and Jurisdiction of the thing upon which the Judgement is made. And thirdly, the Judgement itself must be matter of Record, against which, no Averrment can be, and if it be defective in any of these, the Judgement is utterly void and null.  
But that the pretended Judgements above mentioned are defective in all three, I conceive it will not be hard to manifest. For first, it will not be denied, but that all those pretended Acts and Ordinances for the setting up and establishing of an Excise in the times of the usurping Powers, and amongst the rest, th●t of the 14th of August, 1649. (upon which the said Judgement must be grounded if upon any were in themselves void ab in itio: And could have no legal force, especially after his majesty's happy restauration, unless they had been set up and made valid by Act of Parliament, which I conceive under favour, they never were.  
For although it be true, that in the Parliament begun at Westminster the 25th day of April, 1660. two shorts Acts were made for the continuance of the Excise, the one from the 24 t● day of June, 1660. to the 20th of Aug. following, and the other from thence to the 25th of Decemb. following; in both which it was enacted, That the said Imposition together with all Arrears thereof should continue to be collected and paid according unto and after the rates, rules, and proportions, as the same was payable and collected the 25 ●h day of April, 1660. yet, under correction, I conceive, that those words did not set up, nor make valid the said pretended Act of the 14th of Aug. 1649, nor any other of those pretended Acts or Ordinances, for that no Act or Statute can be continued, confirmed, or revived, (much less originally set up and made an Act, being none before) without special words to that purpose. And in this particular, if it should be admitted, that the words, Rates, Rules, and Proportions, should intent a setting up of those pretended Acts themselves, it must follow, they must be either entirely set up that is to say, the whole Acts in the very words they are penned, or but in part. If entirely, than that part of the said Act of the 14th of Aug. 1649. which obliged all Commissioners, & Sub-commissioners, to take an Oath to be true and faithful to the Commonwealth of England, as it stood then pretended to be established without a King or House of Lords, & many other like absurdities had been by consequence thereby likewise established, which no body will be so weak as to admit.  
But if it shall be said, That they were set up but in part, than those particular parts so intended to be set up, must have been specially mentioned and distinguished, which here they were not. I conclude therefore, that neither in part, nor in the whole, any of the said pretended Acts or Ordinances were thereby put in force. And if so, the whole force of the 25 Article of the 14th Aug. 1649. upon which the said Judgements were grounded was at the time of the passing of the said Judgement utterly void and of none effect. And the Merchant-Importer not being originally chargeable either by his Entries, or otherwise, with the payment of any Excise for his Goods, could not by any Judgement grounded upon that Act be made liable thereunto.  
And as to the second, which concerns the Authority of the said pretended Judges it will likewise follow, that that was none at all, as to point of giving Judgement upon any default: for in the first of the two Acts of Parliament above mentioned, no persons at all are constituted Commissioners for the Excise. And by the second, though Nathaniel Manton, and others therein named, are appointed Commissioners, yet they have thereby no other power given them, but only to collect and receive the said duties according to the former rates and rules, without any Authority at all to put any of the said pretended Acts or Ordinances in execution in case of offence or disobedience to the same.  
And as to the last point, viz. Whether the said Judgements be matter of Record or not, I shall need to say little, unless any man shall first show me by what Act or Statute, the said Nathaniel Manton, and the rest of the Gentlemen in the said Act named, are constituted a Court of Record, or that they had ancient Jurisdiction by the Common Law; until When, I conceive, I may save both myself and the Reader the trouble of that Argument.  
Now for the value of these supposed Arrears to his Majesty, if they were Justly recoverable (as I conceive they are not) it will be found, upon examination, to be very small and inconsiderable, and not worthy so great an Odium and discontent, as the very attempt of enforcing the Merchant to pay them, hath already provoked. For although I have heard they have been represented to amount to, at least, an hundred and fifty thousand pounds, yet it is to be considered, that the estimate thereof is taken only from the Books of the late Excise Office, as they stand charged with the Merchant's Entries, before any adjustment made: Upon which,  
First, no allowance is yet given them for goods Exported by the Merchant again, which will be found to be very great quantities.  
Secondly, there are thousands of Entries that will be utterly disowned, by the persons upon whose particular Accounts they are put, it being a most usual and common practice, in those days, for one Merchant to enter Goods in another man's name, sometimes by consent between them, and sometimes without consent, which was done on purpose to confound Accounts, and render it impossible for the Commissioners ever to prove them, and consequently to make any true Judgement upon them.  
Thirdly, there have been no allowances yet made upon those Accounts for Leakage, or Wast of the Commodity; which in Wines, Oils, Vinegers, Brandies, and such like, hath been very great, especially in Wines, the Merchant being always charged in the Excise Office, with the entire quantity, or contents of the number of Cask Entered without any allowance for out'ts, Leakage, or other Deductions, which are always allowed upon payment of the Customs. And the greatest part of those pretended Arrears, at least the greatest sums, are pretended to be due from the Wine-Merchants.  
Fourthly, during some part of that very time for which those Accounts are to be made up, the Excise was by an Act of the same Usurping Powers themselves, that set it up, in effect, wholly thrown down again or at least suspended. For on the 11 th'. of October, 1659. the Rump-Parliament, which was restored to their sitting but in May then preceding, foreseeing they should be outed again by Lambert (as within two days after they were) to prevent him from raising Money to pay his Army, made an Act, by which it was declared High-Treason to levy Customs, or Excise, or any other Tax upon the people. And during all the time of that Exclusion, until their second restitution (which was about two Months or more the Excise was understood on all hands to be quite down, and all Commodities were bought and sold Duty-free. And a very great part of those very Goods, for the Excise whereof the Merchant now stands charged in Arrear, were bought and sold within that very time.  
Fiftly, it appears not what quantities of the same Goods, the Merchant had remaining upon his hands unsold, at the time when the Excise of Foreign Commodities fell; all which several particulars must be allowed and deducted, in case the Merchant were liable to pay the rest (as indeed he is not.) And then this great bulk of Merchant's Arrears, of which so great a noise hath been made, will appear to be but a Cuckoo, whose body in the feathers seems to be as big as a Kite, but being pulled, is not so big as a Sparrow.  
To manifest which yet a little further, it is most true in fact, that divers Merchants standing charged, according to the Books of the Excise Office, with very great sums, in pretended Arrear, having been, by the Exchequer process lately sent against them, frighted into a submission to Account, in the Excise Office, have come off and cleared the whole for half as many shillings, as they stood Charged with pounds.  
Which several particulars are offered to public consideration by a Wellwisher, as well to his Majesty's Revenue, at to the Merchants of London, with no other Design; but, First, that the opinion of the Justness and Recoverableness of so great a sum (as these Arrears have been noised to be) may not so far be relied upon, as to prejudice his Majesty in point of provision otherwise, now a Parliament is sitting, and hath the Revenue in consideration.  
And, Secondly, that in case any endeavours shall be used (as is reported there are) to procure any Act, or crowd in any Clause, or Proviso, into any Act, that shall look back upon the Mercants-Importers, to declare or make them liable to Account, for matters so long passed; or to make them liable to the payment of that as an Arrear, which they were never liable to pay even in the Usurping times, as a Duty; it may be considered by those to whom it shall appertain, Whether it will be at all for his Majesty's service; or agreeable to equity and right reason, seeing the whole matter will be Ex post facto: and that the discouragements upon Trade are already too Many.  
FINIS.