THree things have been de­bated in this Parliament, that have much concer­ned the right of our whole Nation, of which every one of them hath exceed­ed the other by a gradation in weight and moment.

The first, was the change of our name, which was a point of honour, wherein we shewed our selves not willing to leave [Page 2]that name, by which our ancestors made our Nation famous: The name of Britaine not ad­mitted in legall proceed­ings. yet have we lost it, saving onely in those cases where our ancient and faithfull Protector, the Com­mon Law doth retaine it.

The second was the union; a question of greater moment, for that concerned the freehold of our whole Nation, not in so high a point as having, or not having; but in point of Division and participation, that is, whether we should enjoy the be­nefits and liberties of the kingdome our selves onely as we and our ancestors have done, or admit our neighbour Nation to have equall right in them, and so make our own part the less, by how much the greater number should be among whom the Di­vision was to be made. Coke l. 7. Calvins case. This was adjudged against us both Legally and Solemnly, and therefore in that we rest, hoping of that effect of this judgement which we read of in the Poet, ‘Tros Tyriusque mihi nullo discrimine habe­tur. Virgil. Aen. l. 1. Dido's speech to Aeneas.’

The third is the question now in hand, which exceedeth the other two in impor­tance [Page 3]& consequence, concerning the whole kingdome; for it is a question of our very essence, not what we shall be called, nor how we shall divide that we have, but whether we shall have any thing or no­thing: for if there be a right in the King to alter the property of that which is ours without our consent, we are but te­nants at his will of that which we have. If it be in the King and Parliament, Then have we propertie, and are Tenants at our own will: for that which is done in Parliament, is done by all our wills and consents. And this is the very state of the question which is proposed, that is, whether the King may impose without consent of Parliament.

Impositions are of two natures, Forreine, and Intestine.

Intestine, be those which are raised within our land in the commerce and deal­ing that is at home within our selves, and may aswell for that reason be so call­ed, as for that vescuntur intestinis Rei­publicae, They are fed and nourished with the consuming and wasting of the entralls of the Common wealth. Against these I need not to speake; for the [Page 4]Kings learned Councell have with great honour and conscience in full Councell acknowledged them to be against the law.

Therefore I will apply my self to speak of impositions forreigne, being the single question now in hand, and maintained on the Kings behalfe with great art and eloquence.

The inconvenience of these impositi­ons to the Common-wealth, that is, how hurtfull they are to the Merchants, in impoverishing them in their estates; to the King in the increasing of his reve­nues by decay of traffique, and to the whole people in making all commodities excessive deare, is confessed by all, and therefore need no debate. The point of right is now only in question, and of that I will speak with conscience and integrity, rather desirous that the truth may be knowne, and right be done, than that the opinion of my self or any other may prevaile.

The occasion of this question was given by the book of rates lately set out, affronted with the copy of Letters Pa­tents, dated July 28.6. Jac. In [Page 5]which book, besides the rates, is set down every kind of merchandise, ex­ported and imported, for the true answer­ing of subsidy to the King, according to the Statute of Tonnage and Poundage.

In the first yeare of his reigne there is an addition of impositions upon all those kind of wares, which within the book are expressed, and the rate of the impo­sition as high and in some cases higher than the rate of the subsidy: And this de­clared to be by authority of those Letters Patents. Hereupon considering with my selfe, that heretofore the setting on of one only imposition without assent of Parliament, upon some one kinde of mer­chandise, and that for a small time, and upon urgent necessity of actuall war, did so affect our whole Nation, and especially the great Councel of the Parliament, be­ing the Representative body of the whole Common-wealth, that neither the sun did shine, nor the rivers run their courses until it was taken off by the publick judg­ment of the whole State.

I thought it concerned me, and other members of that Councell, that were no less trusted for our Countrey, [Page 6]than those in former times, and have their actions to guide and direct us, to have the same care they had in preserving the right and liberties of the people, having now more cause then they had, for that the impositions now set on without assent of Parliament, are not upon one or two speciall kinds of goods, but almost inde­finite upon all, and do extend to the num­ber of many hundreds, as appeareth by that printed book of rates, and are set in charge upon the whole kingdome as an inheritance to continue to the King, his heires and successors for ever: which limitation of estate in matter of impositi­ons was never heard of, nor read of be­fore, as I conceive.

The inducements expressed in these Letters Patents are much upon point of State, and with reference to the rights and practice of fortaine Princes; For this I will not take upon me to enter into the consideration of such great mysteries of policie, and government, but will only put you in minde of that I observe out of Tit. Tit. Liv. l. 8. Livius the Romane Historiographer: ‘Om­nem divini humanique moris memoriam abolemus, cum nova peregrinaque patriis & priscis praeferimus.’

To that which hath been spoken for the Kings Prerogative, I will give answer to so much of it as I may conveniently in my passage through this debate: where­in I will principally endeavor to give sa­tisfaction to such new objections as were made by the worthie and learned Coun­sellor of the King that spake last, in main­tenance of his Majesties Prerogative.

The case in termes is this: Pat. July 28. Iac. 6. The King by his Letters Patents before recited, hath ordained willed, and commanded that these new impositions contained in that book of rates shall be for ever hereafter payd unto him, his Heires, and Successors, upon paine of his displeasure: Hereupon the question ariseth whether by this Edict and Ordinance so made by the King himselfe, by his Letters Patents of his own will and power absolute, without assent of Parliament, he be so lawfully intitu­led to that he doth impose, as that there­by he doth alter the property of his sub­jects goods, and is enabled to recover these imposition, by course of Law.

I think he cannot; and I ground my opinion upon these foure reasons.

1. It is against the naturall frame and [Page 8]constitution of the policie of this king­dome, which is jus publicum regni, and so subverteth the fundamentall Law of the Realme, and induceth a new forme of state and government.

2. It is against the municipall Law of the Land, which is jus privatum, the Law of property and of private right.

3. It is against divers Statutes made to restraine our King in this point.

4. It is against the practice and action of our Common wealth, contra morem majorum; and this is the modestest rule to limit both Kings Prerogatives, and Subjects Liberties.

Upon the first, and fourth of these foure principal grounds I will more insist then upon the second and third, both for that in their own nature they are a more proper matter for a Councel of State, to the judgement of which I apply my discourse (and they have not been en­forced by others:) As also for that the other two (as more fit for a barre, and the Courts of ordinary justice) have by some professors of the Law been already most leardnedly and exquisitely dis­cussed.

For the first: it will be admitted for a rule, and ground of State, that in e­very Common-wealth and government there be some rights of Soveraignty, jura Majestatis, which regularly, and of common right doe belong to the So­veraign power of that State; unless Cust­ome, or the provisional ordinance of that State doe otherwise dispose of them: which Soveraigne power is potestas supre­ma, a power that can controule all o­ther powers, and cannot be controuled but by it self

It will not be denied that the power of imposing hath so great a trust in It, by reason of the mischiefes may grow to the Common-wealth by the abuses of it, that it hath ever been ranked among those rights of Soveraign power.

Then is there no further question to be made but to examine where the So­veraigne power is in this Kingdome; for there is the right of imposition.

The Soveraigne power is agreed to be in the King: but in the King is a two­fold power; the one in Parliament, as he is assisted with the consent of the whole State; the other out of Parliament as he [Page 10]is sole, and singular, guided merely by his own will. And if of these two powers in the King, one is greater than the other, and can direct and controule the other; that is Suprema Potestas, the Soveraigne power, and the other is subordinata.

It will then be easily proved, that the power of the King in Parliament is greater than his power out of Parliament, and doth rule and controule it; for if the King make a grant by his Letters Patents out of Parliament, it bindeth him and his successors, he cannot revoke it, nor any of his Successours; But by his power in Parliament he may defeate and avoyd it; and therefore that is the greater power.

If a judgement be given in the Kings Bench, by the King himselfe (as may be, and by the Law is intended) a writ of Error, to reverse this judgement, may be sued before the King in Parliament, which writ must be granted by the Chan­cellor, upon bill indorsed by the King himself, 1 H. 7.19 6. Lib. In­trac. fol. 302. c. 1. as the book is 1 H, 7.19.6. And the forme of the writ of Error is, that it being directed to the Chiefe Justice of the Kings Bench, ‘ Quia in recordo & pri­cessu, [Page 11]ac etiam in redditione judicii loquelae, quae suit in Curiâ nostrâ coram nobis, Er­ror intervenit manifestus ad grave dam­num, &c. Nos errorem (si quis fuerit) modo debito corrigi, & partibus praedictas plenam & celerem justitiam fieri volentes, in hàc parte vobis mandamus, quòa Re­cordum & processum loquelae illius cum om­nibus ea tangentibus, in praesens Parlia­mentum nostrum sub sigillio tuo distin [...]è & apertè mittas & hoc breve, ut inspectis, &c. nos de Consilio & advisamento Dominorum spiritualium & temporal [...]um, ac Communitatis in Parliamento nostro prae­dicto existentis, ulterius pro errore illo cor­rigendo fieri faciamus quod de jure & se­cundum legem & consuetudinem Regni nostri Angliae fuerit faciendum.’ So you see the Appeal is from the King out of the Parliament, to the King in Parliament; the writ is in his name; the rectifying and correcting the errours is by him, but with the assent of the Lords and Com­mons, The booke is not so, that the Cōmons should meddle. than which there can be no stron­ger evidence to prove, that his power out of Parliament is subordinate to his power in Parliament; for in Acts of Par­liament, be they lawes, grounds, or what­soever [Page 12]else, the Act and power is the Kings, but with the assent of the Lords and Commons, which ma­keth it the most soveraigne and su­preame power above all, and controul­able by none. Besides this right of im­posing, there be others in the Kingdome of the same nature: As the power to make lawes; the power of Naturalization; the power of erection of arbitrary Go­vernment; the power to judge with­out appeale; the power to legitimate: all which do belong to the King only in in Parliament. Others there be of the same nature, that the King may exercise out of Parliament, which right is grown unto him in them, more in those o­thers by the use and practice of the Common-wealth: as denization, coy­nage, making warr: which power the King hath time out of minde practised, without the gain-saying and murmu­ring of his subjects: But these other powers before mentioned have ever been executed by him in Parliament, and not otherwise, but with the reluctation of the whole Kingdome.

Can any man give me a reason, why [Page 13]the King can only in Parliament make lawes? No man ever read any law whereby it was so ordained; and yet no man ever read that any King practised the contrary: Therefore it is the origi­nall right of the Kingdome, and the very natural constitution of our State and policy, being one of the highest rights of Soveraigne power: So it is in natu­ralization, legitimation, and the rest of that sort before recited.

It hath been alleaged that those which in this Cause have enforced their reasons from this Maxime of ours (That the King cannot alter the Law) have diverted from the question.

I say under favor they have not; for that in effect is the very question now in hand; for if he alone out of Parlia­ment may impose, he altereth the Law of England in one of these two maine fundamental points. He must either take his Subjects goods from them, with­out assent of the party, which is against the Law; or else he must give his own Letters Pattents the force of a Law, to alter the property of his Subjects goods, which is also against the Law.

That the King of England cannot take his subjects goods, without their consent, it need not be proved more than a princi­ple; it is jus indigenae, an old homeborne right, declared to be Law by divers sta­tutes of the Realme: 34 E. 3. c. 2. As in 34. E. 3. cap 2. That no office of the Kings, or of his heires, shall take any goods of any man­ner of person without the assent and good will of the party, to whom the goods belonged. The same is declared in many other Statutes made against prisages and purveyances. Neither have ever any Kings attempted to go plainly and di­rectly against that right, but have de­vised certaine legal colours and shadowes for their wrongfull doing in that kind, which I doe find were of three sorts: Com­missions, Loans or Privie Seales, Benevo­lence. by way of Commission; by way of Loan; by way of Benevolence Commissions of all other were the most insolent; for they went out (as it were by authority to levy ayd of the people upon great ne­cessity of the Commonwealth.) These were condemned in Parliament. 21 E. 3. Num. 16. upon a grevious complaint made of the use of them by the Commons, unto the King in Parliament: wherein [Page 15]the people doe pray the King, that he would be pleased to remember how at the Parliament held the 17 year of his raign, and at the last Parliament, That is, the Par­liament. it was then accorded, and granted by their said Lord the King and his Councell, that there should goe out no Commissions out of Chauncery for Hobbeleries, Archers, and other charges to be levied upon the people, if they were not granted in Par­liament; which ordinances were not observed: by reason whereof the people were impoverished aed decayed, for which they prayed the King that he would be pleased to take pity of his people, and the ordinances and grants made to his people in Parliament to affirme and hold; And that if such Commissions goe out without assent of Parliament, that the Commons, which are grieved thereby, may have writs of supersedeas, according to the said Ordinance, and that the people be not bound to obey them.

To this the Kings answer is.

The last time that ever King attemp­ted that course of exaction was 17 H. 8. Stowes annals. 17. H. 8. upon the taking of the French King at Pavia, by the forces of Charles the fifth: Cardinal Wolsey having a purpose to put the King into a warre about that quarrell, and finding his cophers empty, advised this way, to send out Com­missions, and by them to levie ayd of the people, according to the value of their estate; But this gave such discon­tent to the whole Realme, that it caused in many places an actuall rebellion: and the Cardinal being called to give an account of this bad advice, did justifie this fact by the example ot Joseph, who advised Pharaoh to take the fifth part of his subjects goods: But when he saw that would not serve the turne, [Page 17]he falsely laid it upon the Judges, inform­ing the King, he did it by their advice, being resolved by them of the lawfulness of the fact. So you see that great Church­men found more safety in matter of go­vernment of our Commonwealth, in making a false report of a point of the Common Law, then in a true Text of the Scripture. And if any Church men will endeavour by application of the Text of Scripture, to overthrow the antient Law and Liberties of the Kingdom, I would advise them to be admonished by the ill success of the Cardinal, in this particular action, and by the miserable catastrophe of his whole life and fortunes.

Loans and Pri­vy Seals. Loans and Apprests were those which we call Privy Seals, which though they were more moderate in shew, yet being made against the good will of the parties, were as injurous indeed as the other. The Commons in Parliament, 25. E 3. Num. Rot. pat. 25. E 3. num. 16. 16. made a grievous complaint to the King against the use of them, and prayed, that none from thenceforth should be compelled to make Loans against their will, and they gave this reason, in their pe­tition for that it is against reason, and the [Page 18]franchise of the land, and prayed that re­stitntion might be made to those that have made such Loans.

To this the Kings rescript was; It pleaseth our Lord the King it be so.

Lastly, Benevo­lence. Came in those kinde of exacti­ons, which were termed by the fair name of Benevolences; but they became so odi­ous, as they gave the occasion of a good Law to be made against themselves, and against all other shifts, and devices, by what new terms soever imposed upon the Subjects: 1 R. 3. c. 2 the Law is, 1 R. 3. cap. 2 and is thus; The King remembring how the Commons of this his Realm, by new and unlawful inventions, and inordinate co­vetise, against the Law of this Realm, have been put to great servitude and im­portant charges and exactions, and espe­cially by a new Imposition called a Bene­volence, enacteth by the advise, &c. that the Subjects and Commons of this Land from henceforth shall in no wise be char­ged by any such charges, or impositions called the Benevolence, nor by such like thing.

But if you will deny, that the King doth in this case take the goods of his [Page 19]Subject without his assent, then you must other fall upon mine alternative propositi­on, That the Kings Patent hath in this case the power of a Law, to alter property; for how can he recover the imposed by a legal course of proceeding, and by judg­ment in his Court, but upon a title pre­cedent him, before the action brought, which title must be a property in the same imposed? and how commeth he by that property, but by his own Letters Patents, by which he declareth he will have that same as an imposition? For the Judgment giveth not the right, but onely doth ma­nifest and declare it, and giveth executi­on of it: So in this point the question is, whether the Kings Patent hath the force and power of the Law, or not; for if it be not maintained that it hath, it can never be concluded that he can trans­fer the property of his Subjects goods to himself, without the assent of them; for quod meum est, sine facto meo alterius fi­eri non potest. And if you give this power to the Kings Patent, you subject the Law, and take away all rules and bounds of settled government, and leave in the Sub­ject no property of his own, neither do [Page 20]you by this advance the Kings power and prerogatjve, Bracton, l. 1. c. 8. but you make him no King; for as Bracton saith, ‘ Rex est ubi domina­tur lex, non voluntas.’

So we see that the power of imposing, and power of making Laws are convertibi­lia & coincidentia; and whosoever can do the one, can do the other; And this was the opinion of Sir John Fortescue that re­verend and honorable Judge, a very learned professor of the Common Law, and Chief Justice of the Kings Bench, Fortesc. de laudi­bus Leg. Ang. c. 9. in the time of Henry 6. His words are these in his Book, ‘ De laudibus Legum Angliae, cap. 9. Non potest Rex Angliae ad libitum leges mutare regni sui; principatu namque nedum regali, sed & politico ipse domina­tur: Si regali tantum praeesset iis, leges mutare posset; tallagia quoque, & caetera onera imponere, ipsis inconsultis, quale do­minium leges civiles indicant, cum dicunt quod principi placuerit, legis habet vigo­rem; sed longè aliter potest Rex politicis imperans, quia nec leges ipse sine subdito­rum assensu mutare poterit, nec subjectum populum renitentem onerare peregrinis im­positionibus.’ In which place I must inter­pret unto you, that peregrinae impositiones [Page 21]be not strange and unheard of impositi­ons, as was urged by the worthy Gentle­man that spake last; but impositions up­on traffick into, and out of forain Coun­tries, Fortesc. de laud. Leg. Ang. cap. 36. which is the very thing in questi­on: Further in the thirty sixth Chapter, he saith of the King of England, ‘Neque Rex ibidem per se aut ministros suos talla­gia, Subsidia, aut alia quaevis onera impo­nit ligeis suis, aut leges corum mutat, vel novas condit, sine concessione vel assensu to­tius regni sui in Parliamento.’ So he maketh these two powers of making Law, and imposing to be concomitant in the same hand, and that the one of them is not without the other; he giveth the same reason for this, as we do now, but in other words, because (as he saith) in England it is ‘ principatus mixtus, & po­liticus,’ the King hath his soveraign pow­er in Parliament, assisted and strengthen­ed with the consent of the whole King­dom; and therefore these powers are to be exercised by him only in Parliament. In other Countries they admit the ground of the Civil Law, quod principi placuerit, legis habet vigorem; Because they have an absolute power to make Law, they [Page 22]have also a power to impose, which hath the force of a Law in transferring pro­perty. Ph. Com. l 4. cap. 1. l. 5. cap. 8. Philip Comines, that lived at that time, in his fourth Book, the first Chap­ter, the fifth Book the eighth Chapter, taketh notice of this policy of England, and commends it above all other States, as settled in most security: And further to our purpose laieth this ground, That a King cannot take one penny from his Subjects without their consent, but it is violence. And you may there note the mischiefs that grew to the Kingdom of France, by the voluntary impositions first brought in by Charles the Seventh, and ever since continued, and encreased to the utter impoverishment of the Com­mon people, and the loss of their free Councel of three Estates: And if this power of imposing were quietly setled in our Kings, considering what the greatest use they make of assembling of Parliaments, which is the supply of mo­ney, I do not see any likelihood to hope for often meetings in that kind, because they would provide themselves by that other means. And thus much for my first reason grounded upon the natural consti­tution [Page 23]of the Policy of our Kingdom, and the publike Right of our Nation.

2 For the point of Common Law, Com. Law. which is my second reason, it hath been well debated, and nothing left unspoken that can be said in it; and therefore I will decline to speak of that, which other men have well discussed, and the rather, for that there is nothing in our Law-book directly, and in point of this matter; neither is the word (imposition) found in them, until the case in my L. Dier. 1. Diec. 1. E. 165. Eliz. 165. for we shall finde this business of an higher strain, and alwaies handled elsewhere, as afterwards shall appear: yet I will offer some Answers to such Ob­jections as have been made on the con­trary in point of Common Law, and have not been much stood upon by others to be answered.

The Objections that have been made are these; That from the first Book of the Law to the last, no man ever read any thing against the Kings power of im­posing: No Judgement was ever given against it, in any of the Kings Courts at Westminster: Other points of Prerogative as high as this, disputed and debated, his [Page 24]excess in them limited, 42. Ass. p. 9. as in the book of 42. Ass. pl. 5. where the Judges took a­way a Commission from one that had power given by it to him under the great Seal, to take ones person, and to seise his goods before he was indicted: So Master Scrogs case. 1, & 2 E. Dier. 175 1, & 2. El Dier. 175 the power of the King in making a Com­mission to determine a question of right, depending between two parties notably debated, and ruled against the King, that he could not grant it.

To this I answer, That cases of this na­ture (of which the question now handled is) have ever been taken to be of that extraordinary consequence, in point of the Common right of the whole King­dom, that the States would never trust any of the Courts of ordinary Justice with the deciding of them; but assumed the cognisance of them unto the high Court of Parliament, as the fittest place to decide matters so much concerning the whole body of the Kingdom, as 2. Ed. 3.7. it appears that Ed. 1. had granted a Charter to the men of Great Yarmouth, that all the ships of Merchants, coming to the Port of Yarmouth, should land [Page 25]their goods at their Haven, and not at any other Haven at that Port, as at Garne­ston, and Little Yarmouth, which were members of that Port. This was very in­convenient for the Merchants, and a great hurt to Traffick, and therefore the Charter was questioned in the time of Ed 2. and adjudged good by the Coun­cil: But the parties not contented with this judgment, in the second year of King E. 3. by an order in Parliament made upon a Petition there exhibited against this Grant, brought a Scire facias out of the Chancery returnable in the Kings Bench, to question again the lawfulness of the Patent, and in that Suit the cause was notably debated, and those Reasons much insisted upon that have been enfor­ced in this case; as that of the Kings power in the custody of the Ports: But the matter so depending in the ordinary Court of Justice, a Writ came out of the Parliament, and did adjourn it thither again; where it gave occasion of a good Law to be made to prevent the like Grants, and to make them void notwith­standing any Judgment given upon them, and to make such Judgments also void. [Page 26]The Statute is, 9: E. 3. c. 1. And in the Parliament Rolls, 9. E. 3. c. 1. Every Alien and Denizen may carry his Mer­chandise where it pleaseth him, not­withstanding any Charter granted, or Judgment thereup­on. 16, & 17. R. 2. 2 H. 4. num 109. we finde a notable Record, which gives warrant for the proceeding in Parliament, in this man­ner as hath been in this Case, notwithstanding the Judgment in the Exchequer, and declares to the Kingdom, that not­withstanding the great wonder made by some men, nothing hath been done in this business by those that serve in the Parliament, but in imitation of their wor­thy Predecessors in the like case. In the second year of H. 4. the Commons shew that in the time of R. 2. by the means of John Waltham, Bishop of Salisbury, Trea­surer of England, wrongfully, without au­thority of Parliament, and by reason of a Judgement given in the Exchequer, 16, & 17. R. 2. by the Barons there, against certain Merchants of Bristol, and other places, passage had been taken for Wines otherwise then in ancient times had been, and therefore they prayed, they might pay their prise Wines in the manner they had used to pay, notwithstanding any [Page 27]Judgment given in the Exchequer, or o­ther Ordinance made by the said Treasu­rer, contrary to the antient usage; which Petition the King granted, and the Judg­ment thereupon became void, and the prisage Wine hath been paid contrary to the Judgment ever since.

In 1. El. Dier. 165. 1. El. Di­er. 265. upon the com­plaint, made by the Merchants, of the impositions set upon Cloth by Queen Mary by her absolute power without assent of Parliament; The Cause was thought too weighty to be decided in any one Court; but (as it appeareth in the Book) it was referred to all the Judges of England, who divers times had conference about it. So it may well be, there is nothing against it in our year Books, for there is nothing of it.

Another Objection was this, which was made in the last argument, viz. That Custom is originally due by the Com­mon Law of England; it can then have no other ground or cause, but meerly by the Kings royal Prerogative, as a right and duty originally belonging to his Crown: which if it be, it must necessari­ly follow he may impose, for that is but [Page 28]the exercising of that right. To prove this was alleadged the case 39. 39 E. 3.13. E. 3.13. by which case it appeareth, that King John had a Custom of eight pence on a Tun of Wine in the Port of South­ampton, but the Book doth not tell you that the King had it by prerogative, and he might have it as well otherwise; as by prescription, or convention, which shall rather be intended, by reason of the certainty of the sum paied; for if it were by prerogative, he might take some­times more, sometimes less at his will, the right being indefinite, and the quantity limited onely by his own discretion. A common person may have such a custom certain, as 18. El Dier. 352. The Mayor of London hath the twentieth part of Salt brought into the City by Aliens, 18 El. Dier. 352 which is a great Imposition, but is good by prescription originally, and hath re­ceived greater strength since, by Acts of Parliament made for the confirmati­on of the Liberties and Customs of the City of London. So it appeareth that John of Britain had Custom of the ships that arrived at his Port of Little Yarmouth, Dier. 43. worth twenty pounds per annum. And [Page 29]these instances do inefer, that a Custom may be otherwise then by prerogative, and therefore it is no good argument to conclude, the King had such a custom, Therefore he had it by Prerogative.

The Book in 30. H. 8. Dier. 43. 30 Hen. 8 Dier. 43. was much pressed on this point, which saith that Custom belonged to the King at Common Law, and doth instance in Wooll, Wooll-fells, and Leather begun at the Common Law, but abridged by the Statute of 14 E. 3. ca 21. stat. 1. 14 Ed. 3. c. 21. stat. but this appeareth to be a great error, and mi­staking in the Book; for we do finde that that Custom of Woolls, Wooll-fells and Leather was begun by a Grant in Parliament, as appeareth in Statute 15 E. 1. cap. 7. The words be granted to us by the Commonalty aforesaid; and the last mention before was that the King had granted to the Bishops, Earls, Barons, and all the Commonalty of the Land, &c. Novemb. 3. Ed. 1. The Kingrecited in his Letter Patents That Prelati, magnates ac tota communitas mercatorum Regni, granted this new Custom. And so the ground and motive of that opinion be­ing false all grounded upon that must needs be erroneous.

It was objected, That the King hold­eth at this day the encrease of four pence in the pound, over due Custom, paid by Merchants Aliens according to the pur­port of the Charta mercatoria 31 E. Rot. char. 31. E. 1. num. 42. in Turri. 1. by meer right of Prerogative at the Com­mon Law; for by that Grant of the Merchants he cannot hold it, they being no Body Politick at the time of the Grant; and therefore the Grant is meer­ly void to binde in succession, and yet the Merchants Aliens do pay it at this day.

It is agreed, That by the Common Law a contract with a number not in­corporate, bindeth not succession; but we must take notice, that they by whom that Grant was made, of the augmenta­tion of Custom, by three pence in the pound, and other encreases, 31. E. 1. were Merchants Aliens, who by the Law of Merchants, and Nations may contract to bind their successors in matters of Traf­fick: For their contracts are not ruled by the Common Law of the Land, but by the Law of Nations, & per legem Mercatoriam, as the Book case is, 3. Ed. 4.10. and there was a good considera­tion [Page 31]given them by the King for this en­crease of Custom: as discharge of prise Wines for two shillings the Tun, and o­ther Immunities, which all Merchants A­liens hold and enjoy at this day, by force of that contract made, 31 E. 1. For a stranger paieth now but two shillings the Tun for prisage, whereas it standeth an Englishman in much more; so as the rule of commutative Justice maketh the contract available to the King against the Merchants, because he parteth with part of his prisage to the Merchant, and maketh it available to the Merchant a­gainst the King, because he giveth him en­crease of Custom above that is due by Law. But the Statute of 27 E. 3. cap. 26. 27 E. 3. cap. 26. here­tofore cited doth make this point clear without scruple, which confirmeth the Charter of 31. E. 1. entirely, and by that the encrease of Custom by three pence in the pound, which is by name mentioned in the Statute, is now due by Act of Parlia­ment.

If you will have the King hold this encrease of Custom by Prerogative, you go directly against his meaning; for it appeareth by that which presently fol­lowed [Page 32]this Grant, that the King took this encrease of Custom by way of contract onely, and not by way of Prerogative; for the same year following he directeth his Writs to the Officers of his Ports, re­citing the contract made with the Aliens by Charta Mercatoria, adding further that some Denizens were willing to pay the like Custom, upon the same Immunities to them to be granted, and doth assign his Officers to gather it, but with this clause, ‘ Si gratanter & absque coertione solvere voluerint, ita quod aliquem Mer­catorem de regno & potestate nostrâ ad praestationes & custumas hujusmodi invito solvendas nullatenùs distringatis.’ Nothing can more plainly express, that the Kings intention was not to demand this by way of Prerogative, but by force of the con­tract. If there were such a Prerogative in the Crown, as of right to have Cu­stom, how cometh it to pass this Prero­gative never yet had fruit or effect? for this I can maintain, That the King of England hath not one penny Custom or Imposition upon Merchandizes, elder then the fourth year of Queen Mary; that he holdeth not by Act of Parliament, [Page 33]and by the peoples grant: The eldest that he hath is that of Woolls, Wooll-fells and Leather, and that is by Act of Parliament, as appeareth in the Statute 25 E. 1. cap. 7. 25 E. 1. cap. 7. the Tonnage and Poundage by Parlia­ment in the first year of every Kings reign.

The Aliens encrease of Custom by Par­liament 27 E. 3 cap. 26. 27. E. 3. cap 26. Then this Prero­gative hath been much neglected, that it was never called on to be put in executi­on, untill now of late years.

Concerning the Statutes made for re­straining our Kings, Statute 3 from the exercise of this pretended Prerogative, which is the third matter I stand upon: Those that have maintained the Kings Prero­gative in this point, have endeavored to interpret those Statutes, to extend onely to restrain him from imposing upon Wooll, Wooll-fells, and Leather, which are staple commodities: And the reason they give for this restraint more then for other goods, is because the King, by Sta­tute, is restrained to a Custom certain for those commodities, as the half Mark a Sack of Wooll, and half a Mark three hundred Wooll-fells and thirteen shil­lings [Page 34]four pence a Last of Leather; and therefore great reason he should not ex­ceed this Custom in these Commodi­ties.

This Objection receiveth many An­swers: First it appeareth both by the ex­press letter of divers of the Laws made in this point, by the occasion that induced the making of the Laws, and by the exe­cution of them, that all other Wares and Merchandises, as well as those of the staple, were within the purpose and in­tent of those Laws: Secondly The rea­son alleadged why there should be re­straint for the staple Commodities, ra­ther then for the other, is mistaken; for the Lords and Commons did grant to E. 1. by Act of Parliament the custom of the half Mark for Wooll, Wooll-fels, and Leather, which was matter of meer grace and liberality, and includeth no restraint in it, but rather a favourable extention, quite contrary to the sence of the Ob­jection; according to that rule of inter­pretation, Gratiosa ampliari decet, odiosa restringi. And admit some Laws be made expresly to restrain impositions upon Wooll, Wooll-fells, and Leather, by rea­son [Page 35]that the occasion of making such Laws was the actual imposing, upon those goods at that time, shall we not by good construction, Secundum mentem extensi­vam legis, extend this Law to other Wares and Merchandizes that are with­in the same mischief? If we look to the reason of the Law, we shall make no doubt of it; for that is because the im­positions were without assent of Parlia­ment, not because they were upon such, and such Commodities. Besides those Laws so made are declarativae juris anti­qui, non introductivae novi.

In the enumeration of those Statutes, which I conceive make directly to this purpose, I will endeavour rather to an­swer the Objections made against them, then to enforce the sense and meaning of them, which is very plain and open, and needs no interpretation. The first Statute enforced is, Mag. Charta cap 30. made in the ninth year of H. 3. by which it is en­acted, that all Merchants shall have free egress and regress, out of, and into this Realm, with their goods and merchan­dizes, to buy, and sell, ‘ sine omnibus malis tolnetis per antiquas & rectas [Page 36]consuetudines:’ In which words we may infer, that both the use and right of im­posing are absolutely excluded, and de­barred; for Consuetudo, which in this case is to be taken for Ʋsage, which is mos (not improperly for Portorium, a duty paid in money, as our English word Custom, in one sence doth signifie) implieth a beginning, and continuance by consent, and will of the parties, not by power and enforcement, which can­not be a Custom; and therefore it can­not be an Imposition: for that ariseth meerly out of the will and power of their imposer, and is against the will of him upon whose goods it is set: But take Con­suetudo either for Mos or Portorium, the epithites with which it is qualified, anti­quum, and rectum, do describe it to be of that nature, that it cannot be an Imposition: for antiquum, in legal con­struction, is that which is time out of mind, that is not an Imposition: for then by continuance of time it should grow a right by prescription, and were justifiable: Rectum implieth a limited right, which inferreth there may be a wrong, and exceeding of that right which [Page 37]is not in impositions: for if there be a right in the King to impose, the quanti­ty, time, and other circumstances are in his discretion; the right is illimited: And if he set on never so great an Im­position, there is as much right in it, as if it be never so small: the excess maketh it a burthen, but not a wrong.

We may further observe, that in the Statute, Malum tolnetum, which is evill Toll, is set down by way of antithesis to antiqua, and recta consuetudo; by which is inferred, that exactions upon Wares and Merchandizes, not qualified with these two properties of antiquum and rectum, are evill and unjust. This is made more evident by a Record in the Tower of the sixteenth year of H. 3. which was a Mandat sent by the King to the Custo­mers of his Ports for the execution of this Law made in 9 H. 3. whereby it is commanded, Rot. claus 16. H. 3. num. ‘ Quod emnibus Merca­toribus in portum suum venientibus cum vinis, & aliis merchandizis, scire faciant, quod salvò & securè in terram Angliae veniant cum vinis & merchandizis suis, faciendo inde rectas & dubitas consue­tudines, [Page 38]nec sibi timeant de malis tolnetis, quae iis faciat Rex, vel in terrâ suá fieri per­mittat.’ By this record the word Consu­tudo is interpreted to be mos, not porto­rium; otherwise it should have been sol­vendo consuetudines, not faciendo. Also these words entiquum & rectum in the Statute in this Writ are rectum & debi­tum, which doth more enforce a cer­tainty of right and duty, which by no means can be intended in imposi­tions.

Objections against this Law were made in the last Argument. First, That it was made for Aliens: This is true; the words of the Law do plainly shew it was made for Aliens: But if the State was so careful to provide for them shall we not judge that with Denizens it was so already? And that this Statute was made to extend that liberty by Act of Parliament to Aliens, which Denizens had by the Common Law, succeeding times did so conceive of it, as appeareth by the Statute of 2. 2. E. 3. cap. 9. E. 3. cap. 9. the words are, that all Merchants, Stran­gers and Princes may go and come with their merchandizes in England after the [Page 39]tenor of the great Charter, and that Writs be thereupon sent to all the Sheriffs in England, and to Mayors and Bayliffs of good Towns, where need shall re­quire.

A second Objection was made in the last Argument, out of these words of the Statute of M. Char. that Merchants might freely traffique, ‘ nisi publicè an­tea prohibiti fuerint:’ by which was en­forced, that the King had power to re­strain and prohibit Traffique; there­fore to impose. It is agreed, there may be a publick restraint of traffique upon respects of the common good of the King­dom; but whether that which is called publica prohibitio in the Statute, be in­tended by the King alone, or by Act of Par­liament, is a question: For such restraints have still been by Parliament. But ad­mit the King may make a restraint of traffique in part for some publick re­spect of the Commonwealth, he doth this in point of protection, as trusted by the Commonwealth, to do that which is for the publick good of the Kingdom; but if he use this trust to make a gain and benefit by imposing, [Page 40]that is a breach of the trust, and a sale of government and protection. But more of this shall be hereafter spoken in the answering of the main Objections.

The next Law is that notable Statute of E. 1. 25. E. 1. cap. 7. in the 25 year of his reign, made upon the very point in question; the words are these. And forasmuch as the most part of the Commonalty of this Realm finde themselves sore grieved with the male toll of Woolls, that is, to wit, a toll of forty shillings for every sack of Wooll, and have petitioned to us for to release the same; We at their request have clearly released it, and have granted for us and our Heirs, that we shall not take such things, with­out their common consent and good will, saving to us and our Heirs the Customs of Woolls, Skins, and Lea­ther granted before by the Commo­nalty aforesaid.

Against the application of this Law, to the question now in hand, many Objections were made; some out of matter precedent to the Law, some out of the Law it self, some out of matter subsequent and following after [Page 41]the Law: For matter precedent; It was objected out of Thomas Walsing­ham, Tho. Wal­singham in E. 1. fo. 71, 72, 73. edit. per W. Camb. impres. Francof. 1603. an Historiographer of good cre­dit, that writ of that time when the Statute was made, That in the Petition of grievances given to King E. 1. by the people in the 25 year of his reign, upon which petition the Statute was made, that they found themselves not grieved in point of right, but in point of excess; the words are, ‘ Communitas sentit se gra­vatam de vectigali lanarum, quod nimis est onerosum. viz. de quolibet sacco 40 s. & de lanâ fractâ septem marcas;’ so they ex­press the cause of their grief, that it was too heavy; which is to be applied to the point of excess, not of right.

To this I answer, that if the words had been (quia est nimis onerosum) this con­struction might have been made out of them; because the word (quia) had induced a declaration of the cause of that which was formerly affirmed: but the words are (quod nimis onerosum) which doth on­ly positively affirm that the imposition, de facto, was intolerable for the greatness of it, which doth not therefore admit that it is tolerable, in respect of the right the [Page 42]King had to impose. But this is made clear by the general word precedent in the preamble of the Petition which doth evidently infer, they grounded their complaint upon point of right, not up­on point of excess; the words are these, ‘ Tota terrae communitas sentit se valdè gravatam, quia non tractantur secundum leges & consuetudines terrae, secundum quas tractari antecessores sui solebant ha­bere, sed voluntariè excluduntur.’ After which preamble, among the particulars, this of forty shillings upon a sack of Wooll is ranked, but with a dependency of that expressed in the preamble for the point of right. But seeing we light upon History, which though it be of small authority in a Law argument yet being the History of our own Realm, hath fit and proper use in the common counsel of the Realm, Matth Westm. fo. 430. Edit. per H. Savile mil. Franco­furti 1601. I will pursue it a little further. Out of Matth. Westm. a Writer that lived much nearer the time of the Law made, then Thomas Walsingham, he saith, That the Commons by their petiti­ons required, ‘ Ne Rex de caetero tallagia usurparet, & voluntarias super his in­ductas exactiones de caetero quasi in irri­tum [Page 43]revocaret;’ by which it appeareth, that the point of the complaint was, that the exactions laid on them were volun­tary, that is, at the Kings will, without assent of Parliament. Out of the Law it, self it hath much been pressed, as first the Commons made petition to the King, whereupon they infer out of the nature of the word (petition) that their pro­ceeding was by way of grievance, for the excess and inconvenience, as a matter of grace, not in course of justice for the wrong

To this I answer, That considering the quality of the parties to this action, it being between the King and the Sub­ject, duty and good manners doth in­duce gentleness and humility of terms, without blemish or diminution of the force of right. It is according to the de­meanor of Job, cap. 9. v. 15. Job 9.15 ‘ Though I were just, yet would I not answer, but I would make supplication to my Judge.’ But in our forms of Law, be the right of the Subject never so clear, manifest, and ac­knowledged by all; yet if his own be detained from him by the King, he hath no other Writ or Action to recover, but [Page 44]a meer petition, Supplicat Colsitudini, &c. So as if the word Petition to the King in­fer defect of right in the Petitioner, there can be no case where the King can do the Subject wrong.

A second Objection out of the body of the Law is that the King doth release that imposition of forty shillings, which implieth a right setled in him. But to this I answer, That it is no necessary infer­ence, wheresoever a release of right is: for it is used for claim onely, or where possession was, though wrongful, and that in majorem securitatem, quia a­bundans cautela non nocet; but in this case, a Release was very expedient, and for some respect necessary, to extinguish a right the King had in this imposition a­gainst the Merchants themselves: For this imposition, though it were not set on by assent of Parliament, yet was it not set on by the Kings absolute power; but was granted to him by the Merchants themselves who were to be charged with it: so the grievance was the violati­on of the right of the people, in setting it on without their assent in Parliament, not the damage that grew by it; for [Page 45]that did onely touch the Merchants, who could not justly complain thereof, because it was their own act and grant. This ap­peareth by two notable Records, 22. E. 1. Origen. in Scac. Rem. Thes. the one 22. E. 1. A Writ to the Treasurer and Ba­rons of the Exchequer in Ireland, to discharge the Merchants there of impo­sitions on Woolls; in which the King re­citeth, ‘ Licet in subsiaium Guerrae Regis pro recuperandâ terrâ Vasconià, mercato­res gratanter concesserunt per biennium vel triennium, si tantum duravit Guerra, de sacco lanae, &c.’ In 26. E. 1. mem. Scac. Rem. Thes. The other Record is the Writ of publication, that in 26. E. 1. went out after the Statute of 25. in which Writ the King reciteth thus, ‘ Cum nos ad instantiam Communitaetis Regni nostri re­miserimus custumam 40 s. nobis nuper in subsidium Guerrae noctrae contrae Regem Franciae concessum &c.’ A third Objecti­on made out of the body of the Statute, by those which have argued on the con­trary part, was upon these words, that the King would take (no such things) without common consent; by which words they conceived the intention of the Law was limited precisely to imposi­tions set upon Wooll, and not on other [Page 46]commodities, which are not such things, but other: and for this they alledge this reason, That it was not probable when the complaint was only for an imposition on Wooll, that the King would give a re­medy for other things not spoken of, for which there was no cause of complaint.

To this a full answer is given many ways: First, out of the (Saving) in the Act, which extends to other things then to Wooll, as to Wooll-fells and Leather; therefore the purview of the Act by these words (such things) extendeth to more then the Wooll; for there needs no saving, but for that which is contained in the purview. Secondly, The reason alledged, that no more by likelihood should be re­medied but for Wooll, because onely that was complained of, is false: For the complaint of the Commons was not onely for this imposition on Wooll, but divers other burthens and grievances of the like nature. And this will appear if we compare all the parts of the Law, the one with the other: For this Law is in the form of a Charter written in French, and beginneth, Edward by the Grace of God, &c. and is an entire grant, [Page 47]and Instrument without Fractions, Se­ctions, and Chapters, as it is now print­ed, and containeth in it, next before this last clause concerning the impositi­ons on Woolls, which in the printed Book is Cap. 6. That the King, for no bu­siness, from thenceforth, will take no man­ner of aids, mises, nor prises, but by common assent. This word (mises) in French signifieth properly impositions, derived of the word mitto, in Latine (to put) so the word (such things) is a con­clusion to all the premises, and hath re­lation not onely to that which is made, Cap. 7. by the Printer, and concerneth the male toll of Woolls; but to that pre­cedent which is (all other aids) imposi­tions, and takings.

The Writ of publication of this Sta­tute sent out to all parts in 26. E. 1. Mem. Scac. in 26. E. 1. Rem. Thes. ma­keth plain this construction; the words of it are, ‘ Concedentes quod custumam il­lam vel aliam, sine voluntate vel com­muni assensu non capiamus:’ These words (vel aliam) are indefinite, and extend to any other whatsoever, besides that of Woolls. The Writ doth further dis­charge Merchants for the commodities of [Page 48]Wooll-fells, and Leather, which are not complained of by name in the Statute; and therefore the Law was intended to other impositions as well as to those upon Woolls.

The Objection made out of matter sub­sequent to the Statute was this, that not­withstanding this Law of 25 E. 1. im­positions that before the Statute had been set on other Merchandize then Woolls, were still answered after the Sta­tute; and for instance of this, was al­ledged, 16. E. 1. Orig. R. Thes. that whereas 16. E. 1. an impo­sition of 40 s. the Tun was set upon Wines brought into the Kingdom, an accompt was made of this in the Exchequer in 26. E. 1. as by the Records there appear­eth; by which it seemeth that the Law of 25. E. 1 was not taken to extend to Wines, and such other Commodities, o­ther then Woolls named in the Statute. It is true, such an imposition was set on by E. 1. in the sixteenth year of his reign, 25, & 26 E. 1. de compt. T. Mich. R. Thes. and an accompt made for it 25. and 26. But it appeareth by the Record of the accompt, that it was made for the time ended before the Statute made: As from the eighteenth of May, 16. [Page 49] E 1. to 23 Jul. 22. E. 1. But there is no Record, that ever any accompt was made for any money received for that imposi­tion for the time after the Statute made; neither was it very willingly answered before; for it appeareth by the Record that it was ten years after the setting of it.

The third Statute alledged on the be­half of the Subject is that 34. E. 1. c. 1. 34. E. 1. cap. 1. the words are these, No tallage or aid shall be taken or levied by us, or our heirs in our Realm, without the good will and assent of our Arch-bishops, Bishops, Earls, Barons, Knights, Burgesses, and other freemen of the Land. Against this was objected, That this Statute was in­tended onely upon the Taxes and impo­sitions of things; The word Auxilium makes it clear, that it is to be intended further then of things within the Realm; for Tallagium is commonly intended of Domestical Taxes, but Auxilium is the most usual term for impositions upon goods imported and exported, as by the Acts of Parliament by which such impo­sitions are given to the King in which they are called most commonly by the [Page 50]name of Aids, as proceeding of good will and benevolence.

The fourth Statute alledged on this part is that of 5. 5. E. 2. cap. 14. Rot. Or­din. E. 2. c. 14. just in point of the matter in question; and therefore I will set it down as I finde it Verbatim in the Record in the Tower, ‘ Ensement novelles customes sont levies, & antients enhaunces come sur levies drapes, vine, aver du pois, & aut choses purquoy les Merchantes veynont pluis vilement, & meynes de bien, menynont en la terre, & les Merchants estrangers demurront pluis longment que ils soleyent faier, pur le quel demoure le choses sont le pluis enhaunces que ils ne soloyent estre, al dammage de roy, & de son people. Nous ordonomus que tout manners de male tolls levies puies de Coronement de Roy Ed. faier de Roy Henry soyent entirement oustes, & de tout estreints put tout jours, nient contristeant le Chartre que le dict Roy Ed fist us Mer­chants aliens, pur ceo que il fuit fair con­tra le grand. Char. & encountre le Fran­chise de la City de Londres, & sans assent de Baronage, &c. Savant neque dont al Roy le custome de leynes, peulx, & de quirs, &c. si aver les doet.’

By this Law is recited. That by the levying of new Customs, and by the rais­ing of old, Traffique was destroyed, and all things made dear; And therefore all new Impositions and Customs were dis­charged Chartâ Mercatoriâ, by which Custom that was encreased on Aliens, was taken away, and the reason alledged; Because it was sans assent de Baronage, and against the great Charter. And this is further with this clause, Saving to the King his Custom of Wooll, Wooll­fells and Leather, Si aver les doet. Great wars have been raised against the credit of this Law in the Parliament House and Three things have been especially object­ed against it:

First, That it is no Law; for it was en­forced upon the King, by some of the Nobility that were too strong for him, the Realm being then in tumult and mu­tiny about the quarrel of Peirce of Gave­ston, so never had the Kings free con­sent; but he gave way unto it for fear of greater mischeif.

Secondly, That in it self it is unjust, as in taking away the Custom granted to the King by Charta Mercatoria, 31. [Page 52] E. 1. and in making doubt whether the King should have the Custom of Woolls, &c. by those words, Saving it to him, Si aver les doet.

The third Objection is, That if it were a Law, it is repealed.

To these I give particular Answers.

To the first: That this Statute was made both at the instance of the King and people, with a purpose and intenti­on on all parts to settle things in a stay and order, both in the Kings house and Commonwealth; the King and his Nobles standing in good terms, when this busi­ness was taken in hand; and it was be­gun and ended with great solemnity and ceremony: For the King in the third year of his reign gave Commission un­der his Great Seal to 32. Com. 16. Mar. 3. E. 2. Rot. ordin. 5. E. 2. Lords spiritual and temporal; of which there were e­leven Bishops eight Earls and thirteen Barons; they being as Committees of the higher House to devise Ordinances for the good government of his house and his Realm. In which Commission he doth for the honor of God, the good of him, [Page 53]and of his Realm, of his freewill grant to the Prelates, Earls, and Barons, and others elected by the whole Kingdom, full power to ordain the State of his house and Realm by such Ordinances as by them should be made, to the honor of God, the honor and profit of ho­ly Church, the honor of himself, the profit of him and his people, according to right and reason, and the oath he made at his Coronation.

These joyning with others of discreet Commons in Parliament, and taking e­very of them a solemn oath for their sin­cere demeanor in the business, did make this and other Ordinances, which were so well liked of by the King, that after they were made, he took an oath to observe them, and caused them to be published in Pauls Church-yard by the Bishop of Salisbury, by denouncing Excommunication against all that should wilfully infringe them: Pullic. 3. Kal. Oct. 5. E. 2. R [...]t. ord. Pat. 5. Oct. 5. E. 2. Rot. ordin. And by his Let­ters Patents dated 5. Oct 5. regni sui, did send them through the Realm to be pub­lished, and from thenceforth to be obser­ved, thereby signifying his great liking and approbation of them; after which [Page 54]they had the force and power of Laws given unto them in the Parliament, in the fifth year of his reign.

The second Objection, which is the injustness of the Law, instanced in two points; The taking away of Charta Mercatoria, and the doubting of the Kings right to the Custom of Wooll­fells, and Leather, &c. To the first of these, I deny it to be unjust, but to be ac­cording to the Law of England, and li­berty of the Kingdom: for that Charter did contain in it divers grants of things which were not in the power of the King to grant without assent of Parliament; the trial per medietatem linguae, and other things tending to the alteration of the Law, and burdening of the people; and therefore that Charter never had his un­doubted and setled force, until it was confirmed by Act of Parliament, but lay asleep almost twenty years together, without being put in execution, between 5, E. 2. and 27. E. 3. when it was con­firmed; for the doubt that is supposed to be made in the Statute of the Kings right to the Custom of Wooll, Wooll-fells and Leather, I take it, there is no such doubt [Page 55]made: For the words (Saving the Kings right to the Custom of Woolls, si aver les dort) have this construction, that is, at such times as he ought to have it: so the word (si) hath the signification of (quando) for it had been a folly to have made a Saving of that, of the right where­of they had doubted, neither is it likely but that they would have taken it away, if it had not been lawful; but there was no colour to doubt of the right of it, for it was given by Act of Parliament, and ever continued in force without chal­lenge or exceptions to the lawfulness of it.

The third Objection is, That this Sta­tute is repealed: To this I plead, Nullum valet recordum. If it be repealed, it must be by Act of Parliament, for unum quod­que dissolvitur iisdem modis quibus est col­ligatum: I and others have searched the Records of the Realm, and endervoured by all means to inform our selves of the truth herein, & we can find no Act of Par­liament of repeal: The truth is, some Kings finding these Laws not to sort to their wills and humors have endeavoured to suppress them, but they did never yet ob­tain [Page 56]a repeal of them by Act of Parliament.

But it is further urged, That although there were no formal repeal of the Law, yet it was never put in execution as a Law, but even presently upon the making was rejected, and use and practise went quite against it: and for instance hereof, a Record was vouched that E. 2 held himself so little bound by it, as that in the 11. year of his reign he set an Im­position without assent of Parliament up­on Wooll, Wooll-fells, Leather, Wines, Cloth, Aver de pois, and divers other kind of Merchandizes. To this I answer, that if it were true, that a distinct and impo­tent King, as he was, did contrary to the Law, doth this make the Law void, and no Law? But if we look into the whole Record, and scan this action of E. 2. from the beginning of it unto the end, we shall finde it a very good instance to prove the practice and execution both of this Law of 5. E. 2: and of that in 25. E. 1. for it is true that E. 2. in the eleventh year of his reign did borrow of the Merchants a cer­tain sum of money above the due Custom of Woolls, Wooll-fells, Wine, Averdepois, Leather, and such other goods imported [Page 57]and exported; but it appeareth by the Record, he took it but for one year; he took it by the advice and coun­sel of the Merchants, and he took it per viam mutui, as a loan. Rot. claus. 11. E. 2. The direction of the Writ is, ‘ Collectoribus mutui nobis per mercatores alienigenas & indigenas de cer­tis rebus & Merchandisis usque ad certum tempus faciendi.’ This was done in good terms, he did not claim it as his right, but did borrow it, which I do think is a good evidence against his right: But what became of this? the State would not abide it, for all these fair shews. And therefore afterwards the King sendeth out other Writs by which he dischargeth all Merchandizes of this Loan, saving on­ly Wooll, Wooll-fells, and Leather; and for the Loan taken upon those Commo­dities, it was limited to continne but until Michaelmas after, and good security was given to the Merchants by the Custo­mers to pay themselves by way of defal­cation out of the Customs which should be due after Machaelmas, those sums which were so borrowed of them. Rot. fi­nium 11. E. 2. The words of the Record are worth the ob­serving, ‘ Cum pro expeditione guerra Sco­tiae, [Page 58]& aliis arduis & urgentibus necessi­tatibus nobis multipliciter incumbentibus, pro quarum exoneratione quasi infinitam pe­cuniam refundere oporobit, pecunia pluri­mum indigeamus in praesenti, & nuper pro eo quod exitus regni & terrarum nostra­rum simul cum pecunia nobis in subven­tione praemissorum tam per Clerum quam Communitatem regni nostri concessa ad sumptus praedictos cum festinatione qua ex­pediret faciendos, non sufficiunt, exquiren­tes vias & modos quibus possemus pecuni­am habere commodius & decentius pro prae­missis, de consilio & aavisamento quorun­dam mercatorum tam alienigenarum quam indigenarum viam invenimus infra script. viz.’ And so setteth down the manner of the loan, and the security for the payment of it: This (I take it) was neither an Imposition nor a wrong in any respect. Also by the first Record it appeareth, that the Loan set on Wines, Averdepois, and such other Commodities, besides Wooll, Woll-fells and Leather, were pre­sently discharged by E. 2. which sheweth they were taken to be within the intent of the Statute of 25 E. 1.

The fifth Statute alledged on the behalf [Page 59]of the Subject is that 14. E. 3. Stat 1. c. 21. 14. E. 3. Stat. 1. cap. 21. by which the Commons pray the King to take no more then the old Custom of the half Mark. The King prayeth aid of the Commons for a time above the Cu­stom upon his necessity of Wars. And the conclusion is, that by that Act the King doth grant that after the Feast of Pentecost, twelve moneths following, he will take no more of Woolls, Wooll-fells and Leather, but the old Custom, and doth promise to charge, set, or assess upon the Custom but in manner as aforesaid.

The sixth Statute is 14. E. 3. Stat 2. 14. E. 3. stat. 2. c. 1 cap. 1. The King doth grant by way of Charter to the Prelats, Earls, Barons, Com­mons, Citizens, Burgesses and Merchants, that they be not from henceforth charged nor grieved to make any aid or sustain charge, if it be not by the common consent of the Prelates, Earls, Barons, and other great men, and Commons of the Realm, and that in Parliament.

These two Statutes grew upon an occa­sion of an Imposition set on Wooll by the King without assent of Parliament: Little hath been objected against them, but only to the first, that it was obtained of grace, [Page 60]and not upon instance of right, which they gather out of the words of the Law, which are, The Commons pray the King that he would stablish, that from hence­forth no more then the old Custom be ta­ken. The like reason may be made against the King out of the same words in the same Law: for the King in the same Act prayeth the Commons to give him an Imposition upon Woolls for a time above the old Cu­stom: but the Record of the Petitions ex­hibited in Parliament on which these two Laws are made, cleareth the objection.

The first was delivered by the Lords in this form, Rot. Par. 13. E. 3. num. 5. Les grands volunt, that the male toll set on Woolls newly, be altogether a­bated, and that the old Custom be held, and that they may have this in point of Charter, and by inrolment in Parliament. This word (volunt) had been too high for a fuit of grace, and therefore must be in­tended of right. The Commons Petition in form is somewhat humble, but in effect and purpose is rough and stern: The words are these, Rot. Par. 13. E. 3. num. 13. The Commons pray that the male toll of Woolls be taken as it was used in antient time, which is now enhanced without the assent of the Com­mons, [Page 61]and (grandes) as we conceive, and that if it be otherwise demanded, that e­very one of the Commons may arrest them without being challenged. Accord­ing to these Petitions, the first of these two Laws is by inrolment in Parliament: the second is in form of a Charter; the first doth express some special commodities: The second doth reach generally at all.

The seventh Law directly touching this point, is that 14. E. 3. Stat. 2. cap. 2. 13. E. 3. stat. 2. c. 2 The King doth grant according to the Great Charter, that all Merchants, Deni­zens and foreigners may without let safe­ly come into the Realm of England with their goods and Merchandizes, and safely tarry, and safely return, paying the Sub­sides, Customs and other profits reason­ably due. Upon the words of this Law, was great advantage taken, in this, that besides Custom and Subsidy, which com­prehend all the certain and ordinary du­ties the King hath upon the wares and goods of Merchants, there are other pro­fits spoken of to be due: These they affirm cannot be understood but of Impositions by the King without assent of Parliament.

To this I answer; if they were not du­ties [Page 62]due to the King besides Custom and Subsidy, which might satisfie the intenti­on of these words, this objection might have had some colour in it; but it is plain that besides these two, there are other profits due to the King upon Mer­chants goods, as Scavage, Tonage, and the like.

And you shall finde a Petition in Par­liament, Rot. Par. 50. E. 3. nu. 163. 50. E. 3. against the raising of these above the old rate.

The eighth Law is, 15. E. 3. stat. 2. c. 5 E. 3. Stat. 2. cap. 5. whereby it is enacted that every Merch­ant may freely buy and sell, and pass the Sea with their Merchandizes of Wooll and all other things, paying the Custom of old time used, according to the Sta­tute made in the last Parliament in Mid­lent, which was the Stat. 14. E. 3. stat. 2. cap. 2. This Law doth expresly exclude the novelty of Impositions.

The ninth Law is that 18. 18 E. 3. stat. 1. c. 3 E. 3. stat. 1. ca. 3. whereby it is enacted, That the Sea be open to all manner of Merchants to pass with their Merchandizes where it shall please them.

The tenth is, 27. E. 3. stat. 2. c. 2 27. E. 3. stat. 2, cap. 2 for the assurance of Merchants-strangers and o­ther, [Page 63]the King doth will and grant for him and his Heirs, that nothing shall be taken over the due Customs, not taken of them to his use by colour of suit, or in o­ther manner against their wills.

The eleventh is, 38. E. 3. cap. 2. 38. E. 3. cap. 2. that all manner of Merchants aliens and Deni­zens may buy and sell all manner of mer­chandizes, and freely carry them out of the Realm, paying the Customs and Subsi­dies thereof due.

The last is 22. H. 8. cap. 8. 22. H. 8. cap. 8. by which it was enacted that Tables should be set up in Ports, by which the certainty and very duty of every Custom, Toll, and Duty, or sum of money to be demanded and requi­red of Wares and Merchandizes shall and may plainly appear and be declared, to the intent that nothing be exacted other­wise then in old time hath been used and accustomed.

By this late Law it appeareth that the judgment of the whole Parliament was at that time, That nothing was due upon Wares and Merchandizes, but that which which was certain: and had been antiently due, by which Impositions are excluded, whose qualities are novel­ty [Page 64]and incertainty, as being set on, as present occasion moveth, and proportioned for quantity and other circumstances, as the will of the King di­recteth.

These are the Laws which I conceive most directly tend to the restraining the Kings of England from the exercise of that irregular power of imposing, at the first offered by them to be put in execu­tion, yet not pressed as their right, and never practised but upon opposition of the whole State, and at last deserted and given over until of late; as by that which followeth in the fourth place will ap­pear.

My fourth and last assertion is, Custom 4 That this practise of imposing without assent of Parliament, is contra morem Majorum. In this I will make an historical perlustrati­on of the times past, whereby I will dis­cover and make known what passages have been in this business in this King­dom, and especially in the high Court of Parliament for the space of 300 years and more last past, since the beginning of the reign of E. 1 sithence which time, and not before, this Kingdom hath grown into [Page 65]the glory and reputation of foraigne traffique. And as a worthy Gentleman of the Kings learned Councel, made cer­taine considerations upon this question, framed and strengthened out of the greatness of his wit and reason: so I grounding my self upon the practice of former times, which is the safest rule whereby to square the right both of King and people in this Common-wealth, where their right is jus consuetudinarium, a right that groweth by use and practice, I will propose unto you certaine obser­vations out of the action and experi­ence of former times untill the raignes of the two late Queenes: by which you may the better ground and frame your judgements in the determination of the right in this question.

My first observation is in point of cir­cumstance, that there never was any Im­position set, but in time of actuall war, and duplicatis vexillis: they were set on very rarely and sparingly, but for a short time, and that certaine and definite, and upon some few commodities, and that by the assent of the Merchants that were to beare the burthen. In our [Page 66]time the occasion not so sensible, the continuance to be perpetual, the number many hundreds, almost no kinde of Com­modity spared. I will give you some few Instances of these circumstances out of the Records themselves.

The maletole of Wooll set on by King E. 22. E. 1. orig. Scacc. Rent. Thes. 22. E. 1. mem. Scac. R. Thes. T. Mich. Rot. parl. 17. E. 3.. nu 28. 1. which gave the occasion, of the Stat. 25. yeare of his raigne, was gi­ven by Merchants. The Record saith, ‘ Mercatores gratanter concesserunt in sub­sidium guerrae Regis.’ It further sheweth, it was for his necessity of Warre, which then was great also.

For the time of F. 3. there need not many instances; for his whole raigne was almost an actuall warfare; As in the sixt year of his raigne for his war in Scotland and Ireland. In the thirteenth year of his raigne for his war in France, severall Impositions were set on

In the seventeenth year of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Mer­chants, Rot. parl. 50. E. 3. nu. 38. and it was in the time of VVar.

In the twentieth yeare of King E. 3. it appeareth in the Record, that the Im­position [Page 67]then put upon VVools, was by the assent of Merchants for two years, for the necessity the King had in his passage over the sea, to recover his right, and to defend the Realme.

My second observation is, Never any Imposition was set on by the King out of Parliament, but complaint was made of it in Parliament; and not one that ever stood after such complaint made, but remedy was afforded for it; Et quod Rex inconsulto fecit, consulto revo­cavit, his Soveraigne power controlled his subordinate. In which it is a thing very notable, that the King in no one Case ever claimed, or so much as ever named his right or prerogative, which no doubt would have been done, if it had been thought due, but gave satisfaction to the complaint by one of these three waies; Either by discharging them quite, and making some good Law against them.

Secondly, by intreating the people to hold them some short time by their favor.

Thirdly, by waving his present possessi­on, and taking that of their gift by Act [Page 68]of Parliament, as an aide which he had set on by his absolute power as an Impo­sition.

Instances of the first 25. 25. E. 1. ca. 7. Rot. parl. 38. E. 3. n. 26. 38. E. 3. cap. 2. 45. E. 3. cap. 4. 18. E. 3. cap. 10, 11. R. 18. E. 3. cap. 3. l. 1 21. E. 3. n. 11. R. Parl. 25. E. 3. n. 22. rot. Parl. E, 1. the Impositions of Wools taken off, and a Law made against it, and the King un­dertook for him and his successors to doe so no more: 38 E. 3.26. the Impositi­on of three shillings foure pence on a sacke of Wooll put off upon complaint, and a Law made against it, 38 E. 3. ca. 2. the like Statute 45 E. 3. c. 4. upon a com­plaint of an Imposition on Wools made in Parliament, 45. E. 3. n. 42. Rot. Parl.

Instances of the second 21. E. 3. nu. 11. a petition upon an Imposition of 2. s. upon a sacke of Wool, 2. s upon a tunne of VVine, and six pence upon aver de pois, all discharged presently, saving the two shillings upon a sacke of Wool, and for that intreated that it might stay till Easter following, and so it did, and was then taken away.

Instance of the third 25 E. 3. nu. 22. the Commons made petition against an imposition of fourty shillings upon a sack of Wool granted to the King by the Mer­chants, shewing that they ought not to [Page 69]be bound by their act. The King did not claime right or justice, but because his warres were great, upon his request had it granted unto him for two yeeres by Act of Parliament, and pretended no title of Prerogative, neither was it ever spoken of.

My third observation is that our Kings have acknowledged that it is not their right. E. Orig. in Scau. 31. E. 1. R. Thes. 1 in his Writs he sent to the Officers of his parts to levie three pence on the pound over the old custome, or the Denizons as well as of the Aliens, and to suffer the Denizons to enjoy those pri­vileges the Aliens did enjoy by the pay­ment of the encrease of Custome, doth give this direction expresly. That they should not take it of Denizons against their will. The words of the Record ex­press it very fully, ‘ Cum mercatores extra­nei & alienigenae pro quibusdam liberta­tibus eis per nos concessis & priscis nostris quibuscunque remissis, nobis de bonis & merchandisis suis quibuscunque infra reg­num & potestatem nostram adducend. ultra antiquas custumas dare concesserint prae­stationes & custumas subscriptas, viz’ and so setteth down the increases, and amongst [Page 70]the rest this three pence upon the pound, and so proceedeth, ‘ Ac quidam mercato­res de regno nostro & potestate nostra, ut ipsis dictis libertatibus & immunitatibus uti & gaudere, & quod de prisis nostris quieti esse possiut, praestationes & custumas hujusmodi de bonis & merchandisis suis no­bis solvere velint, ut accepimus, assignavi­mus vos, &c. ad custumas & praestationis praedictas de mercatoribus de regno & po­testate nostra colligend. qui eas gratanter & sine coercione solvere voluerint. Ita tamen quod aliquem mercatorem de dicto regno & potestate nostra ad praestationes & custumas hujusmodi nobis invito sol­vend. nallatenus distringatis.’ Surely if E. 1. had claimed the prerogative of imposing, he would never have given these cautions in the requiring of that which he had taken to be his due, as that they should not exact it of any of his subjects that were not willing to pay it, nor trouble nor distraine them for it.

In the twelfth yeere of E. 3. we finde the Record of certaine letters written from the King being then at Barwick in the Scottish Warres, Rot. Alem. 12. E. 3. dorm. 21. in turr▪ unto the Arch­bishop of Canterburie, in which letters [Page 71]the King seemeth to have a great con­fidence in the devotion of the Arch­bishop, and therefore earnestly in­treateth him to further his enterprises with his prayers to God, and then addeth further;

The principall thing I note out of this Record upon the very point of this my third observation, is that the King in­tending to excuse himself of the burthens by him laid on the people, and to avoid the blemish of wrong and injustice in laying thereon, saith they were not onera ex presumptione voluntaria, that is, bur­thens that he presumed to lay on at his owne will, whereby he condemneth im­positions without assent of Paliament, which are (onera ex voluntate Regis) to proceed of presumption, which doth clearly exclude clame of right, and dis­proveth the lawfulness of the Act. But there are divers other notable passages in the Record worthy our marking; As out of the word (praegravantur) used by the King wee may gather hee did ac­compt these Impositions a grievous bur­den to his people, which sheweth his owne pity of them. He saith further, Do­lentes referimus, shewing his griefe and remorse at it, & inevitabili necessitate compnlsi, he did it constrained by una­voidable necessity, shewing he was for­ced to it against his will, by that which violateth and breaketh all law which [Page 73]inferreth, he would not maintaine his action by law; Adhuc relevare non va­lemus; this insinuates, he would ease them in good time; caritatem exhibereut, they should afford him charity in the bearing of them, as if so be in point of justice or right they need not, Penes eun­dem excusetis, the Bishop should excuse him to the people. By this he did clear­ly leave the point of justification and so of right: lastly he promiseth he would visit and comfort them beneficiis compensativis, would give them recom­pence for those summes he had so raised of them; which sheweth that he claim­ed them not as due, for then he needed not give recompence for them.

In the one and twentieth yeere of E. Rot. Parl 21. E. 3. n. 16. 3. a petition was exhibited in Parliament, that Levies be not made by Commission (so they be in this case) nor other things laid upon the people unless they be gran­ted in Parliament. The Kings answer is, If any such impositions were made, it was by great necessity, and with assent of the Prelates, Barons and some of the Com­mons present; yet he will not that such Impositions not duly made be drawne [Page 74]in consequence. Here the King acknow­ledgeth an Imposition not to be duly made, though with the consent of the Higher House, and some of the Com­mons, because it was not in full Parlia­ment: much rather he would have thought so, if it had been by the King alone.

King E. 4. (that was a rough and warlike Prince, and was more beholding to his sword in the recovery of his right to the Crowne then to the affection of the people) at a Parliament held the seventh yeere of his reigne made a Speech to the Commons, Sir John Say being then Speaker, in which Speech is contained very notable matter, and very pertinent to our purpose; and be­cause the Record is not in print, I will set downe the Kings Speech verbatim as it is entred upon the Parliament roll, Rot. parl. 7. E. 4. The Re­cord be­gins, Me­moran­dum quod die vene­ris. 3. die Parl. and then I will make a paraphrase upon it; ‘ Iohn Say, and ye Sirs come to this my Court of Parliament for the Commons of this my Realme; The cause why I have cald and summoned this my present Par­liament, is, that I purpose to live upon mine own, and not to charge my subjects [Page 75]but in great and urgent causes, concern­ing more the VVeale of themselves, and also the defence of them and of this my Realme, rather than mine owne plea­sure, as heretofore by Commons of this Land hath beene done, and borne unto my progenitors in time of need; wherein I trust that yee Sirs, and all the Commons of this my Land will be as tender and kinde unto me in such cases as heretofore any Com­mons have been to any of my proge­nitours. And for the good will, kind­ness, and true hearts that yee have borne, continued, and shewed to me at all times heretofore, I thanke you as heartily as I can: also I trust yee will continue in time coming; for which by the grace of God I shall be to you as good and gracious a King, and reigne as righteously upon you as ever did any of my progenitors upon Commons of this my Realme in dayes past, and shall also in time of need apply my person for the VVeale and defence of you, and of this my Realme, not spa­ring my body nor life for any jeo­pardy that might happen to the same.’

Out of this we may observe first the Kings Protestation to live of his owne, and not to charge his subjects; by which I gather he did acknowledge a certain and distinct property of that which way his subjects from that which was his own, which excludeth the right to impose at his will; for if that be admitted, the subjects property is proprietas precaria, not certaine how much of his is his owne: for that is his which the King will leave him; for there is no limit or restraint of the quantity, the right being admitted, but onely the Kings will.

The second thing I observe is this, that in charging of his subjects he would con­fine himselfe between these two bounds; the one, it should bee in great and ur­gent causes concerning more the Weale of them, and the defence of them and his Realme, than his owne pleasure; wherein he condemneth those occasions that grew upon excesse of private ex­pence by over great bounty, or other­wise, and admitteth onely such as grow by reason of warres, or other such like publique causes concerning the whole [Page 77]State: the other bound or limit is, that those burdens should be secundum mo­rem majorum, as heretofore had been done and borne by the Commons to his ancestours in time of need.

The third thing I observe is, that he acknowledged these burdens did pro­ceed out of their good will and kind­ness, and not out of his right and prerogative; out of these words, that he trusted they would bee as ten­der and kinde to him in such cases as heretofore any Commons had been to his Progenitors: And lastly wee may note the recompence promised by the King to his subjects, for their good wills and kindness, his goodness and grace, his just and righteous govern­ment; the jeopardy of his body and life for their Weale and defence Did this King assume to himselfe a right to lay burdens on his subjects at his own will without their assents, that offered to buy them at his need with the price of his blood, the most sacred relique in the kingdome?

My fourth observation is that in all petitions exhibited by the Commons [Page 78]in Parliament, against Impositions, the very knot of their griefe and the prin­cipal cause of their complaint hath been expressed in those petitions; that the im­positions have been without assent of Parliament: by which is necessarily in­ferred, that their griefe was in point of right, not of burden.

In 11. Rot. parl. 21. E. 3. nu. 11. E. 3. nu. 11 the complaint of the Imposition of two shillings upon a sacke of Wooll, two shillings upon a Tonne of Wine, six pence upon aver de pois, the cause of grievance expressed because it was done Sans assent de Com­mons.

25 E. R. Pari. 25, E. 3. n. 22. 3. n. 22. In a petition the Com­mons complaine that an imposition upon Wools was set by the consent of the merchants; they pray that Commissi­ons bee not made upon such singular grants, if they be not in full Parliament; and if any such grants be made, they may he held as void.

17 E 3. R. Parl. 17. E. 3. n. 28 n. 28. The Commons in their petition informe the King, it is against reason they should be charged with im­positions set on by assent of Merchants, and not in Parliament.

My fifth observation is, that when­soever any petition was exhibited against impositions, there was never any re­spect had of the quantity, but they were ever intirely abated, as well where they were small, as where they were great; no request ever made to make them less when they were great, nor excuse made of their ease when they were exceeding small; which sheweth that it was not the point of bur­den or excesse was respected in their complaint, but the point of meere right.

25 E. 3. nu. 22. R. Parl. 25. E. 3. nu. 22. Fourty shilling set an imposition upon a sacke of Wooll, upon complaint, all taken off, and no suit to be eased of part because it was too great.

36. E. 3. nu. 26. ibid. 38. E. 3 n. 26 21. E. 3. n. 11. Three shillings and four pence upon a sacke of VVool, all taken off, and no excuse made for the smalness; for 21 E. 3. nu. 11 two shil­lings a sacke, two shillings tonnage, and six pence poundage.

50 E. 3. nu. 163. R. Parl. 50. E. 3. nu. 163. A great complaint was made in Parliament by the Com­mons that an imposition of a penny [Page 80]was set upon wools for Tonage over and above the ancient due which was but a penny, and so the subject was charged with two pence.

Also that a penny was exacted for Mesonage, which was but an halfe pen­ny; which Impositions the Record doth express did amount to an hundred pounds a yeere.

This petty imposition was as much stood upon in point of right, as the other great one of fourty shillings, and was taken off upon complaint in Parlia­ment, without either justification or ex­cuse for the smalness of it.

My sixth observation is, that those which have advised the setting on of impositions without assent of Parlia­ment, have been accused in Parliament forgiving that advice, as of a great offence in the State, and have suffered sharpe censure and great disgrace by it.

Neither doe I finde that the quality of the person hath extenuated the blame, as 50. E. 3 William L. Latimer Cham­berlaine to the King, and one of his private Councell, was accused by the Commons in Parliament of divers [Page 81]deceits and extortions and misdeeds, and among other things, that he had procu­red to be set upon Wooll, Wooll-fells and other Merchandizes, new Impositions, to wit, upon a sack of Wool eleven shillings, which the L. Latimer fought to excuse, because he had the consent and good liking of the Merchants first: But judg­ment was given against him that he should be committed to prison, be fined and ransomed at the Kings will, and be put from being of the Council; and this procuring of Impositions to be set on without assent of Parliament is expresly set down in the entry of the judgment for one of the causes of his censure.

Richard Lyons a Farmer of the Cu­stoms in London the same year was accu­sed in Parliament for the same offence; Rot. Par. 50. E. 3. n. 17, 18, 19, 20. he pleaded, he did it by the Kings com­mand, and had answered the money to the Kings Chamber: Yet was condemn­ed and adjudged in Parliament to be com­mitted to Prison, and all his Lands and Goods were feifed into the Kings hand; and at the last the hate against these authors of Impositions grew so that 50. E. 3. in the same Parliament, a peti­tion [Page 82]was exhibited in Parliament to make this a capital offence; The Record is very short, and therefore I will set it down verbatim. ‘Item prie le dit Com­mon que scit ordaine per Statute en cest pre­sent Parliament de touts ceux queux cy en avant mittont ou font pur lour sin­guler profit novels Impositions per lour au­thoritie demesn accrocheants al eux eny ul power de riens que soit establi en Parlia­ment, sans assent de Parliament, que ils eyent judgement de vie & member, & de forisfacture.’ To this rough Petition the King gave a milde and temperate Answer, ‘ Courre la Common ley come estoit al a­vant use.’

My seventh Observation is, the ces­sation between 50. E. 3. after this cen­sure in Parliament, and 4. Mariae almost two hundred years, during which time no King did attempt to impose without assent of Parliament: And yet we finde in the Parliament Rolls, that there was not one of those Kings that reigned in that time, but had Impositions granted him upon fit occasion by Act of Parlia­ment upon all Goods and Merchandizes, and at divers times during their reigns, [Page 83]sometimes more, sometimes less upon the Ton and pound, but ever for a time cer­tain, and indefinite; so the use of them was not given over, but the power of Im­posing was so clearly and undoubtedly held to be in the Parliament, as no King went about to practice the contrary.

But to this cessation that was of great weight and credit in our evidence, a co­lour was given by the other side to avert the inserence made upon it, against the Kings right, that is, that during that time there was so great a Revenue grew to the Crown by double Custom paid for all Merchandizes both in England and at Callis, by reason of an Act of Parliament made 8. H. 4. which was, that no goods should be carried out of the Realm but to Callis, and by reason that the Merchants paid Custom both there and here for the same goods, that in the seven and twen­tieth year of Henry the sixth, the Custom of Callis was 68000. pounds the year, a great sum, if you consider the weight of money then, what price it bare, and by reason hereof Princes not delighting to charge their murmuring Subjects but when need is, being so amply supplied [Page 84]otherwise, did not put that Prerogative in practice. To this I Answer, That if that were true that was urged, it might be some probable colour of the forbear­ance of imposing; but I finde it quite contrary, and that by Record: For there was no such restraint of all Com­modities not to be transported to any place but Gallis, but onely Woolls, Wool­fells, Leather, Tinn, and Lead, that were staple Wares, which by the Statute, 37, E. 3. were to be transported thither, and not to any other place, and the staple continued at that place for the most part from that time untill long after, 27. H. 6. but there was no double Custom paid both here and there by the same owner: but the yearly profits of the Customs of Callais at those times were so far short of that which hath been alledged in 27. H. 6. that it appeareth in an Act of Par­liament, 27. H. 6. cap. 2 printed in the book at large, 27. H. 6. cap. 2. That the Commons do complain, That whereas in the time of E. 3. the Custom of Callais was 68000 pounds per annum, at that time, which was 27. H. 6. by reason of the ill usage of Merchants, it was fallen to be but [Page 85]12000 pounds the year; so then there was great cause in that respect to have set on Impositions by reason of that great abatement of Customs, and yet it was not then offered to be done without as­sent of Parliament. But if you look a little further into the extreme necessities of those times, you shall finde there ne­ver was greater cause to have strained Prerogatives; for it appeareth in an Act of Parliament 28. H. 6. that it was then declared in Parliament by the Chan­cellor and Treasurer, who demanded re­lief of the people for the King. both for payment of his debts, and for his yearly livelioood, that the King was then in­debted 372000. pounds, which now by the weight of money amounteth to a­bove 1100000. pounds, and that his ordinary expences were more then his yearly revenue by 19000. pounds yearly: so if ever there was cause to put a King to his shifts, it was then; yet we see they did not venture to put in practice this supposed Prerogative. It further ap­peareth in that Statute that the people among those reasons they alleadged why they were not able to retain the King, [Page 86]gave this for one, that they had so often granted him Tonnage and Poundage up­on Merchandizes, by which it appeareth he took nothing of Merchants by impo­sition without grant; for if he had, no doubt they would not have stuck to have put him in minde of it. But I pray con­sider what became of this motion of the Chancellor and Treasurer: The propo­sition had depended in Parliament many years; the effect was, the people entrea­ted the King to resume all grants he had made from the beginning of his reign untill that time, being the twenty eighth year of his reign, excepting such as were made upon consideration valuable, that he might so enable himself by that mean by which he had impoverished him­self and the whole Kingdom: This took effect, and the Statute of Resumptions was thereupon made the same year, which Record because it is not in print, and declareth these things with great gravity and authority: I will set down the very Text of it, so much as is mate­rial to our purpose.

Prayen your Commons in this your present Parliament assembled to consi­der, [Page 87]That where you Chancellor of your Realm of England, 28. H. 6. Stat. de Resump. in Turri Lond. not printed. your Treasurer of England, and many other Lords of your Council, by your high command­ment to your said Commons, at your Parliament holden last at Westminster, shewed and declared the State of this your Realm, which was that ye were indebted 372000 l. which is grievous, and that your livelihood in yearly va­lue was but 5000 l. And forasmuch as this 5000 l. to your high and notable State to be kept, and to pay your said debts, will not suffice: Therefore that your high Estate may be releived. And furthermore it was declared. That your expences necessary to your hous­hold without all other ordinary charge came to 24000 l. yearly, which exceed­eth every year in expence necessary over your livelihood 19000 l. Also pleaseth it your Highness to consider, that the Commons of your said Realm be as well willing to their power, for the re­leiving of your Highness, as ever was people to any King of your Progeni­tors that raigned in your said Realm of England: But your said Commons been [Page 88]so impoverished, what by taking victual to your houshould, and other things in your said Realm, and nought paid for it, and the quinzime by your said Commons so ofren granted, and by the grant of Tunnage and Poundage, and by the grant of Subsidy upon Woolls, and o­ther grants to your Highness, and for lack of execution of Justice, that your said poor Commons be full nigh destroy­ed; and if it should continue longer in such great charge, it would not in any wise be had, ne born: Wherefore pleas­eth it your Highness, the premisses gra­ciously to consider, and that ye by the advice and assent of your Lords Spiri­tual and Temporal, and by the authori­ty of this your present Parliament, for the consideration of your high Estate, and in comfort and ease of your poor Commons, would take, resume, seise and retain in your hands and possession all honors, &c.

This was very plain dealing by the people with their King, and this is the success of the demand of supply and sup­port had in those days, being required in point of gratification, without any re­compence [Page 89]or retribution for it. Thus then we have cleared this point, that be­tween 50. E. 3. and 4. Mariae, there was not one Imposition set without assent of Parliament.

Queen Mary in the fourth year of her reign, upon the Wars with France, set an Imposition upon Clothes for this con­sideration, That the Custom of Woolls was decayed, by reason for the most part they were made into Clothes, which af­forded little Custom; for that which in Wooll, paid for Custom and Subsidy 40 s. made into Cloth paid but 4 s. 4 d. To recompence this by an indifferent e­quality, there was set upon a Cloth 5 s. 6 d. which Imposition did not make up the loss sustained in the Custom of Wooll, by 13 s. 4 d. in 40 s. This was Justum, but not Juste. This religious Prince in­vironed with infinite troubles in the Church and Commonwealth, and much impoverished by her devotion, in re­nouncing the profits of the Church-lands that were in the Crown by the suppres­sion, was the first that made digression from the steps of her worthy Progenitors, in putting on that Imposition without as­sent [Page 90]of Parliament; for that very consi­deration of the loss of Custom, by turn­ing of Wooll to Clothing, came into treaty in the 24. year of E. 3. when the art of Clothing began first to be much practised in this Kingdom, and then in the recompence of the loss so, sustained in the decay of Custom of Woolls, there was set upon a Cloth by Act of Parlia­ment above the olde Custom, 14 d. for a Denizen, and for an Alien 21 d. This is recited in a Record in the Exchequer, 48. E. 3. Rot. 2. R. Thes. in origin. But I pray you examine how this Imposition of Queen Mary was digested by the people. We see in the case of my Lord Dier, 1. Eliz. fol. 165. That the Merchant found great greif at it, and made exclamation and suit to Queen Elizabeth to be unbur­dened of it: Orig. in Scac. 48. E. 3. Rot. 2. R. Thes 1. Eliz. Dier fo. 165. The very reason of their grief expressed in that case is, because it was not set on by Parliament, but by the Queens absolute power; So that was the ground of that complaint, the very point of right.

This cause was referred to all the Judges, to report whether the Quimight fet on this Imposition without assent [Page 91]of Parliament: They divers times had conference about it, but have not yet made report for the King; which is an in­fallible presumption, that their opinions were not for him; for it is a certain rule among us, that if a question concerning the Kings Prerogative, or his profit, be referred to the Judges, if their opinions be for the King, it will be speedily pub­lished, and it were indiscretion to con­ceal it; but if there be no publication, then we make no doubt, but that their o­pinions are either against the King, or at least they stick, and give none for him.

The same Queen Mary upon restraint of bringing in of French Commodities occasioned by the then wars with France, set an Imposition upon Gascoyn Wines, which continueth yet: So the Kingdom of England by the injustice of that Prince was clogged with these two heavy Impo­sitions contrary to the right of the King­dom, and the Acts of her Progenitors

Queen Elizabeth set on that upon sweet Wines, which grew also upon the occasion of the troubles with Spain. That upon Allome was none, it was ra­ther [Page 92]a Monopoly to Master Smith the Customer of London, for the ingrossing of all Allomes into his own hands, for which priviledge he gave a voluntary Imposition upon that Commodity: It was like the priviledge granted to John Pechey of the sweet Wines by E. 3. for which the Patentee was called into the Parliament House, 50. E. 3. and was there punished, and his Patent taken away and cancelled.

What Impositions have been set on in the Kings time, I need not express, they are set down particularly in the Book of Rates that is in print; they are not easily numbered: The time for which they are raised is not short; the Patent prefixed to that book bearing date 28. Julii, 6 Jacobi, will instruct you sufficiently in that point, they be limited to the King, his Heirs and Successors: which I suppose is the first estate of Fee simple of Imposi­tions that ever man read of.

My eighth and last Observation is up­on Tunnage and Poundage given to the King of this Realm, upon Wares and Merchandizes exported and imported, which is an Imposition by Act of Parli­ament, [Page 93]and as it will appear, was given out of the peoples good will, as a very gratification to the King, to enjoyn him thereby from the desire of voluntary Impositions, and to conclude him by that gift in Parliament from attempting to take any other without assent of Par­liament; for after the ceasing of voluntary Impositions, these Parliamentary ones were frequent in the times of the King that succeeded; but they were never given but for years, with express cauti­on how the money should be bestowed, As towards the defence of the Seas, pro­tection of Traffick, or some such other publick causes: Sometimes special se­questrators made by Act of Parliament, by whose hands the money should be delivered, as 5. R. 2. cap. 3. in a printed Statute. 5. R. 2. Rot. Par. 7. R. 2. n. 13. 10. R. 2. n. 12. 7. R. 2. n. 12. The Rates that were given were very variable, sometimes 2 s. Tunnage, and 6 d. Poundage as 7. R. 2. 3 s. Tun­nage, and 12 d, Poundage, 10. R. 2. which grants were not to endure, the longest of them above a year; 18 d. Tunnage, 6 d. Poundage; in 17. R. 2.3 s. Tun­nage and 12 d. Poundage granted to H. 4. in the thirteenth year of his reign for a [Page 94]certain time, in which Statute there is this clause, That this aide in time to come should not be taken for an example to charge the Lords and Commons in manner of Subsidy, unless it be by the wills of the Lords and Commons, and that by a new grant to be made in full Parliament in time to come. This clause in good and proper construction may be taken to be a very convention between the King and his people in Parliament, that he should not from thenceforh, nor any of his Successors set on Impositions without assent of Parliament. The like Imposition was granted to H. Rot. Par. 1. H. 5. n. 17. 5. in the the first year of his reign for a short time towards the defence of the Realm, and safeguard of the Sea, upon condition ex­pressed in the Act, that the Merchants Denizens, and strangers coming into the Realm with their Merchandizes, should be well and honestly used and handled, paying the said Subsidy, as in the time of his Father, and his noble Pro­genitors Kings of England, without op­pression or extortion: In the end of which Act the Commons protested, being bound by any grant in time to come, for the pur­poses aforesaid.

H. 6. Rot. Par. 31. H. 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Mar. c. 18. 1. Eliz. c. 19. 1. Jac. c. 33. in the one and thirtieth year of his reign, had Tunnage and Poundage given him for his life. E. 4. had it given him the third year of his reign, as it appeareth in a Statute 12. E 4. cap. 3. H. 8. in the sixth year of his reign, and all since in the first year of their reigns have had it given them for term of their life, and being now so certainly setled, do reach further at that, from which they are in couscience and honor excluded, by this voluntary gratification: For can any man give me a reason, why the peo­ple should give this Imposition of Tun­nage and Poundage above the due Cu­stom upon all Commodities, if the King by his Prerogative might set on Impositi­ons without assent of Parliament? and were not that a weak action in a King, to take that of his people as a benevo­lence from them, with limitation of the same, and in what it should be imploied, and how they will be used for it, and for what time he shall have it, which he might justly take without their consents, unclogged of these unpleasing incum­brances?

The Statute of Tunnage and Poundage [Page 96]made in our times, that are altogether inclined to flattery, do yet retain in them certain shews and rumors of those antient Liberties, although indeed the substance be lost, 1. Jac. c. 33. as in the Statute 1. Jac. cap 33. We declare that we trust, and have sure confidence of his Majesties good will towards us, in and for the keeping, and sure defending of the Seas, and that it will please his Highness, that all Merchants, as well Denizens as stran­gers coming into this Realm, be well and honestly entreated and demeaned for such things whereof Subsidy is granted, as they were in the time of the Kings Progenitors and Predecessors, without oppression to them to be done. By this clause, as it now continueth, the true intent of this Statute appeareth to be, that there ought no other Imposition to be laid upon Merchants besides these given by this Statute, and this intention hath been well interpreted by use and practice from the time of E. 3. to the time of Queen Mary, as before is de­clared.

Thus much of this last reason made from observation, and the action of [Page 97]our Nation. I will answer now such main objections as have been made against the peoples right, and have not been touch­ed by me obiter in my passage through this discourse.

That which hath been most insisted up­on is this, that the King by his prero­gative Royal hath the custody of the Ha­vens and Ports of this Island, being the very gates of this Kingdom; that he in his royal function and office is onely trusted with the keys of these gates; that he alone hath power to shut them, and to open them when, and to whom he in his Princely wisdom shall see good: that by the Law of England he may restrain the persons of any from going out of the Land, or from coming into it: That he may of his own power and discretion pro­hibit exportation and importation of goods and Merchandizes; and out of his prerogative and preheminence, the power of imposing, as being derivative, doth arise and result: for Cui quod majus est, licet, & ei quod est minus licitum est: So their reason briefly is this; the King may restrain the passage of the person, and of the goods; therefore he may suffer [Page 98]them not to pass, but sub modo, paying such an Imposition for his sufferance, as he shall set upon them: For the grounds and propositions laid in this ob­jection, I shall not be much against any one of them, others of them must be qua­lified ere they be confessed; but the infer­ence and argument made upon them, I ut­terly deny; for in it there is mutatio hy­pothesis, and a transition from a thing of one nature to a thing of another: As the premises are of a power in the King onely fiduciary, and in point of trust and government, the conclusion infers a right of interest and gain; Admit the King had Custodiam portuum; yet he hath but the custody, which is trust, and not Dominium utile; he hath power to open and shut upon consideration of pub­like good to the people and State, but not to make gain and benefit by it; the one is protection, the other is expilation. The Ports in their own nature are pub­like, Portus sunt Pub­lici. free for all to go in and out; yet for the common good this liberty is restrain­able by the wisdom and policy of the Prince, who is put in trust to discern the times when this natural liberty shall be [Page 99]restrained. In 1. H. 7. fol. 1. H. 7.10 10 in the case of the Florentines for their Allome, the Lord Chief Justice Hujsey doth write a Case, that in the time of E. 4. a Legate from the Pope being at Calice to come into England, it was resolved in full Coun­cil (as the Book saith) before the Lords and Judges that he should not have li­cence to come into England unless he would take an Oath at Calice, that he would bring nothing with him that should be prejudicial to the King and his Crown.

The King by the Common Law may send his Writ, Ne exeas regnum, to any Subject of the Realm; but the surmise of the Writ is, ‘ Quia datum est nohis intel­ligi, quod tu versus partes exteras absque licentia nostra clam destinas te divertere, & quam plurima nobis & coronae nostrae prejudicia prosequi,’ Fitzh. N. B. 85. b. Fitzh. N. B 15. [...]b. So in point of Government, and common good of the Realm, he may restrain the person: But to conclude, therefore he may take money, not to restrain, is to sell Government, trust and common Ju­stice, and most unworthy the divine Of­fice of a King. But let us compare this [Page 100]power of the King in foraign affairs, with the like power he hath in Domestick Go­vernment. There is no question but that the King hath the custody of the gates of all the Towns and Cities in England, as well as all the Ports and Havens, and upon consideration of the Weal publike may open and shut them at his pleasure; as if the infection of the sickness be dan­gerous in places vicine to the City of Lon­don, the King may command that none from those places shall come into the City: May he therefore set an Impositi­on upon those that he suffereth to come into the City? So, if by reason of in­fection he forbid the bringing of Wares and Merchandizes from some Cities or Towns in this Kingdom to any great Fare or Mart, shall he therefore restrain the bringing of Goods thither, unless mo­ney be given him by way of Impositi­on?

The King in his discretion in point of equity, and for qualifying the rigor of the Law, may enjoyn any of his Sub­jects by his Chancellor from suing in his Court of Common Law: May he there­fore make a benefit by restraining all [Page 101]from suit in his Courts, unless they pay him an Imposition upon their Suits? 2. E. 3.7. In 2. E. 3. in the case of the Earl of Rich­mond before-cited, the King had granted unto the men of great Yarmouth, that all the Ships that arrived at the Port of Yarmouth, which consisted of three se­veral Ports, Great Yarmouth, Little Yar­mouth, and Gerneston, should arrive all at Great Yarmouth, and at no other place within that Port. The lawfulness of this Patent being in question in the Kings Court, it was reasoned in the Kings be­half for the upholding of the grant, as it is now, that the King had the custody of the Port, he might restrain Merchants fron landing at all in his Kingdom: Therefore out of the same power might appoint where, and in what Haven they should land, and no other: The Patent was demurred on in the Kings Bench, as being granted against the Law; but the Case depending, was adjourned into Par­liament for the weight and consequence of it, and there the Patent was condemn­ed, 9. E. 3. cap. 1. and a Law made against such and the like grants.

The Presidents that were vouched for [Page 102]maintenance of this power of restraint in the King, were four produced almost in so many hundred years, Rot. Par. 2. E. 1. n. 16. Rot. fin. 2. E. 1. n. 17. Ro. claus. 10. E. 3. dor. 31. Ro. claus. 17. H. 6. in dors. whereof two were in the second year of E. 1. one in the tenth year of E. 3. another in the seventeenth year of H. 6. since which time we hear of none but by Act of Par­liament, as they had been usually and re­gularly before. To these I will give an­swer out of themselves, out of the com­mon Law, out of divers Statutes, and out of the practice of the Commonwealth. The restaint in the time of E. 1. the one of them was to forbid the carrying of Wooll out of the Realm, the other was to forbid all Traffick with the Flemings. That of 10. E. 3. was to restrain the ex­portation of Ship-timber out of the Realm. That of 17. H. 6. to prohibite Traffique with the Subjects of the Duke of Burgundy. These presidents are rare, yet they have in them inducements out of publique respects to the Common­wealth; for the rule of Common Law in this case, I take it to be as the rever­end Judge Sir Anthony Fitzherbert holds in his Writ of Ne exeas regnum in Nat. Fitzh. N. B. 85. Br. that by the Common Law [Page 103]any man may go out of the Kingdom, but the King may upon causes touching the good of the Commonwealth restrain any man from going by his Writ or Procla­mation, and if he then go, it is a con­tempt. This opinion of his is confirmed by the Book, 1. Eliz. fol. 165. Dier. 12. Dier. 1. El. 165. Dier. 13. El. 296. & 13. Eliz. Dier. 296. In like manner if a Subject of England be beyond sea, and the King send to him to repair home, if he do it not, his Lands and goods shall be seised for the contempt; and this was the case of William de Britain Earl of Richmond, 19. E. 2. He was sent by the King into Gascoyne on a message, 19. E. 2. and re­fused to return, for which contempt his Goods, Chattels, Lands and Tenements were seised into the Kings hands: 2, & 3. P. & M. Dier. 128 The Record is cited 2, & 3. Phil. & Mar. in my L. Dier. fol. 128. B. and the Law there held to be so at that time upon a question moved in the Queens behalf a­gainst divers that being beyond the Seas refused to return upon commandment sent unto them to that purpose: The same is again for Law confirmed in the Dutchess of Suffolke, Case 2 Eliz. Dier. 2. El. 176. 5 R. 2. c. 2 Dier. 176. But the Common Law was [Page 104]altered in this point by the Statute of 5. R. 2. cap. 2. by which the passage of all people is defended that they may not go without licence, except the Lords and other great men of the Realm, Merch­ants, and Souldiers: So for the Merch­ants, which are the people dealt withal, in the business in hand, the Common Law remaineth as it was before the Sta­tute, Dier. 12. El. 196. and so it was held, 12. El. Dier. 196. where the case was. An English Merchant being a Papist went over-sea, and being there, did settle himself to remain there, for the enjoying the freedom of his conscience: It was mo­ved here in England, that his going without licence should be a contempt, because he went not to traffique as a Merchant, but for the cause of Religi­on: It was resolved, no such averment would be taken in this case, for that the very calling and vocation of being a Merchant did give him liberty to go out of the Kingdom when he would, and therefore the secret intent of his go­ing was not to be enquired after; Sed lex inspicit quod verisimilius. There­fore it was in this case held no contempt, [Page 105]but at this day the Law is as it was be­fore, 5. R. 2. cap. 2. for that Statute is re­pealed, 4. Jac. cap. 1. 4 Jac. c. 1 And all men what­soever are now at liberty by the Com­mon Law to pass out of the Realm. There is onely against this inconvenient liberty a Proclamation dated at West­minster, 9. Jul 5. Jac. Proclam. 9. Jul. 5. Jac. To the very same effect in point of restraint of passage with the Statute of R. 2. So the Subject is in this much the more at ease and li­berty then he was before: That his go­ing over-sea without licence doth not induce any forfeiture, but onely incur­reth the censure of a contempt and there­fore it were to be wished that some firm Law might be made in the case, both for the execution of so good a point of po­licy, and for the more quiet of the State, in knowing the certainty of the punish­ment for the offence.

This liberty and freedom of Merch­ants hath been strenthened and confirm­ed by many notable Laws before reci­ted, as 14. E. 2. stat 2. cap. 2.15. E. 14. E. 3. st. 2. c. 2.15. E. 3. st. 2. c. 5.18. E. 3. st. 1. c. 3. 3 stat. 2. cap 5. 18 E. 3. stat. 1. cap. 3. and divers other, and therefore though it be admitted that the King may restrain [Page 106]persons and goods, yet it may well be denied, that he hath power of himself a­lone without assent of Parliament simply and indefinitely to restrain all traffique in general, or to shut up all the Havens and Ports, and to bar the vent and issuing of Wares and Merchandizes of the whole Kingdom, as appeareth plainly that this hath been done this three hundred years, or near thereabouts by Act of Parlia­ment onely, and that the Kingdom of England made this matter of Traffique so tender a case to deal in, as that it hath ever held it a matter fit for the consulta­tion of the great Council of the Kingdom, and for no other.

In 11. 11. E. 3. cap. 1. E. 3. The exportation of Woolls was prohibited by Act of Parliament, in which Statute there was this clause, Un­till that by the King and his Council it be thereof otherwise provided: which power so given to the King to be used for the good of the Commonwealth, gave occasion to him to abuse it to his profit and commodity, by giving licences of transportation to all that would give forty shillings upon a Sack of Wooll a­bove the due Custom. This appeareth in [Page 107]the Records in the Exchequer, 13. E 3. Rot. 2 Rem. Thes. 13. H. 3. R. Thes. rot. 2. I will describe the Re­cord that you may perceive the ground of it the better, ‘ Rex collectoribus Custumae in portu magnae Jermouth salutem. Quia concessimus dilecto & fideli nostro Hugoni de Wriothsley, quod ipse viginti & septem saccos lanae & dimid. de lanis suis propriis in portu praedicto carriare, & eas usque Antwerpe ad stapulam nostram ibidem ducere possit, solvendo ibidem dilecto Cleri­co nostro Willielmo de Northwel custodi guarderobae nostrae 40 s. pro quolibet sacco pro custuma & subsidio inde nobis debitis, &c. vobis mandamus quod praedict. Hu­gon. dictos viginti septem saccos lanae & di­mid. in portu praedicto carriaere permitta­tis, &c.’ And another the same year. 13. E. 3. rot. 12. R. Thes. ‘ Rex collectoribus custumae, &c. Cum nuper or­dinaverimus quod passagium lanarum, &c. apertum existeret, & quod sigillum nostrum quod dicitur Coket, quod prius claudi & sub serra custodiri mandavimus ape iretur, & apertum teneretur, ideo vo­bis mandavimus quod sigillum praedictum in portu praedicto aperiri, & apertum tene­rifaciatis, & omnes illos qui hujusmodi lanas carriare & ducere velint permittatis, [Page 108]receptis prius ab iisdem, viz. de mercatori­bus & aliis indigenis 40 s. de quolibet sac­co lanae.’ Divers other such sales of Traf­fick occasioned by this Parliamentary re­straint were made between 11. E. 3. that the restraint was made, and 14: E. 3. that this inconvenience being espied, the Sea was opened by Statute, 14. E. 3. st. 2. c. 2. 15. E. 3. c. 5. st. 2. and the restraint removed, 14 E. 3. stat 2. c. 2. 15. E. 3. cap. 5. stat 2. and this forty shillings so exacted was complained of as an Imposition in Parliament, and the occasion and the ef­fect were both taken away together by Act of Parliament, 14. E. 3. c. 21. st. 1. st. 2. c. 1. 14. E. 3. stat. 1. cap. 21. & stat. 2. cap. 1.

It followed in all Kings times sithence the death of E. 3. that this opening and shutting of the Havens, restraining and enlarging of Traffick was done by Act of Parliament.

I will give one instance in the reign of every King, 5. R. 2. c. 2. st. 2. 5. R. 2. cap. 2. stat. 2. For the passage of Wooll, Wooll-fells, and Lea­ther, 6 H. 4. c. 4 2. H. 5. c. 6. st. 2. 6. H. 4. cap. 4. For the Traffique and Commerce with Merchants Aliens, 2. H. 5. cap. 6. stat. 2. For the restraint of Staple Commodities to places certain, and for the Traffique of the Merchants of the [Page 109]west. 27. H. 6. cap. 1. 27. H. 6. c. 1. that is enacted in Parliament which is contained in the Pro­clamation, 17. H. 6. cited for a president, that is, because the Duke of Burgundy made an Ordinance whereby the Traffick of the English Nation was restrained, that therefore the Englishmen should not traffick with the Subjects of the Duke of Burgundy. The same thing enacted upon the like occasion, 4. E. 4. c. 1. 19. H. 7. 4 E. 4. c. 1 19. H. 7. cap. 21. c. 21. The importation of divers Com­modities forbidden as being prejudicial to the Manufactures within the Realm, 6. H. 8. cap. 12. 6. H. 8. cap. 12. The exportation of Nor­folk Woolls out of the Realm forbidden, 26. H. 8 cap. 10. 26. H. 8. cap. 10. Power is given to the King to order and dispose of the Traffick of Merchants at his pleasure, and the rea­son is given, because otherwise the Leagues and Amities with foreign Princes might be impeached by reason of re­straint made by divers statutes then stand­ing on foot, whereby it appeareth that it was not then taken to be Law, that the King had an absolute power in himself to order and dispose of the course of Traffick without help of a Statute. 2. E. 6. 2 E. 6. c. 9 cap. 9. Exportation of Leather restrained, [Page 110]1, 1, & 2. P. & M.c. 5. & 2. Ph. & Mar. The exportation of Herring, Butter, Cheese, and other Victuals forbidden, 18. Eliz. cap. 8. The exportation of Tallow, 18. El. c. 8 Raw Hides, Lea­ther. So in all times no use of Proclama­tions in matters of this nature, but Acts of Parliament still procured: Where­fore in mine opinion it behoveth them that do so earnestly urge this argument, (the King may restrain Traffick, there­fore may impose,) to prove better then they have done, that the King may re­strain Traffick of his own absolute pow­er: For as the natural policy and con­stitution of our Commonwealth is, we may better say, that is Law which is de more gentis, then that which floweth from the reason of any man guided by his ge­neral notion and apprehension of power regal, in genere, not in indivi­duo.

The last assault made against the right of the Kingdom, was an Objection grounded upon policy, and matter of State, as that it may so fall out that an Imposition may be set by a foreign Prince that may wring our people, in which case the counterpoise is, to set on the like [Page 111]here upon the Subjects of that Prince, which policy, if it be not speedily execu­cuted, but stayed until a Parliament, may in the mean time prove vain and idle, and much damage may be sustained that can­not afterwards be remedied.

This strain of policy maketh nothing to the point of right; our rule is in this plain Commonwealth of ours, Oportet neminem esse sapientiorem legibus: If there be an inconvenience, it is fitter to have it removed by a lawful means, then by an unlawful: But this is rather a mis­chief then an inconvenience, that is a pre­judice in present of some few, but not hurtful to the Commonwealth: And it is more tolerable to suffer an hurt to some few for a short time, then to give way to the breach and violation of the right of the whole Nation: For that is the true inconvenience; neither need it be so dif­ficult or tedious to have the consent of the Parliament, if they were held as they ought, or might be; but our surest guide in this will be the example of our An­cestors in this very case, and that in the time of one of the most politick Princes that ever reigned in this Kingdom, 7. H. 7. 7. H. 7. cap. 7. [Page 112] cap. 7. you shall finde an Act of Parlia­ment, in which it was recited that the Venetians had set upon the English Merchants that laded Malmeseys at Can­dy four duckets of gold upon a But, which in sterling is eighteen shillings the But. It was therefore enacted that every Merchant stranger that brought Malmsey into this Kingdom should pay eighteen shillings the But over and above the due Custom used; this Imposition to endure until they of Venice had set aside that of four duckets the But upon the English­men.

Much hath been learnedly uttered up­on this argument in the maintenance of the peoples right, and in answering that which hath been pressed on the contra­ry; but my meaning is not to express in this Discourse all that hath or may be said on either side, but onely to make a re­membrance somewhat larger of that which I my self offered as my symbolum towards the making up of this great re­koning of the Commonwealth, which if it be not well audited, may in time cost the Subjects of England very dear. My hope is of others that labored very wor­thily [Page 113]in this business, that they will not suffer their pains to die, and therefore I have forborn to enter into their Pro­vince. I will end with that saying of that true and honest Counsellor Philip Comines in his fifth book, the 18. chapter, Ph. Com. l. 5. c. 18. ‘ That it is more honorable for a King to say, I have so faithful and obedient Subjects, that they deny me nothing I demand, then to say, I levy what me list, and I have pri­viledges so to do.’