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 waight and moment.

The first, was the change of our name, which was a point of honour, The name of Britaine not admit­ted in le­gall pro­ceedings. wherein we shewed our selves not willing to leave that name, by which our ancestors made our Na­tion famous: yet have we lost it, saving onely in those cases where our ancient and faithfull protector, the Common Law doth reteine 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 & 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 owne part the lesse, by how much the greater number should be a­mong whom the Division was to be made. Coke li 7. C [...]l [...]s 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: Virgil Aeneid. l. 1, Dido's speech to Aeneas. ‘Tros Tyriusque mihi nullo discrimine habetur.’

The third is the question now in hand, which exceedeth the other two in importance and consequence, concerning [Page 6]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 consents, 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 owne 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 neede not to speake; for the Kings learned Counsell have with great honour and con­science in full Councell acknowledged them to be against the law.

Therefore I will apply my selfe to speake of impositions forreine, 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 Common­wealth, 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 selfe, 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 which book, besides the [Page 7]rates, is set downe upon every kinde 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 kinde 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. Heare­upon 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 warre, did so affect our whole Nation, and especially the great Councell of the Parliament, being the representative body of the whole Common-wealth; that neither the sunne did shine, nor the rivers runne their courses, untill it was taken off by the publick judgement of the whole State. I thought it concerned me, and other members of that Councell, that were no lesse trusted for our countreys, 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 kindes of goods, but almost indefinite upon all, and doe 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 succes­sours 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 practise of forraine princes; For this I will not take up­on me to enter into the consideration of such great miste­ries of policie, and governement, but will only put you in minde of that I observe out of Tit. Tit. Liu. 8. Livius the Romane Hi storiographer: Omnem divini, humanique moris memoriam [Page 8]abolemus, cum novâ peregrinâque 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 endevour to give satisfaction to such new objections, as were made by the worthie and learned Counselor of the King that spake last, in maintenance of his Maiesties Prerogative.

The case in termes is this: Pat. Iuly 28. Iac. 6. The King by his Letters Patents before recited hath ordained, willed, and commanded that these new impositions contained in that booke of rates shal­be for ever hereafter payd unto him, his heires, and successors, upon paine of his displeasure: Herevpon the question ariseth whether by this Edict and Ordinance so made by the King himselfe, by his Letters Patents of his owne 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 impositions 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 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 priuatum, 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 subiects liberties.

Upon the first, and fourth of these foure principall grounds I will more insist then upon the second and third, both for that in their owne nature they are a more proper matter for a Councell of State, to the judgement of which I apply my discourse (and they have not beene enforced by others:) As also for that the other two (as more fit for a barre, and [Page 9]the Courts of ordinary justice) have by some professors of the Law beene already most learnedly, 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 Sovereignty, jura Majestatis, which regularly, and of common right doe belong to the Soveraign power of that State; unlesse Custome, or the provisionall 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 selfe.

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 beene ranked among those rights of Soveraigne 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 is sole, and singular guided merely by his owne 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 successours, 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 Errour, to reverse this judgement, may be sued before the King in Parliament, which writ must be granted by the [Page 10]Chancellor, upon bill indorsed by the King himselfe, as the book is 1 H. 1 H. 7.19.6 7.19.6. And the forme of the writ of Error is, that it being directed to the Chiefe Justice of the Kings Bench, Lib. ntrac. fol. 302. c. 1. Quia in recordo & processu, ac etiam in redditione ju­dicii loquelae, quae fuit in Curiâ nostrâ coram nobis, Error in­tervenit manifestus ad grave damnum, &c. Nos errorem (si quis fuerit) modo debito corrigi, & partibus praedictis plenam & celerem justitiam fieri volentes, in hâc parte vobis manda­mus, quòd Recordum & processum loquela illius cum omnibus ea tangentibus, in praesens Parliamentum nostrum sub sigillo tuo distinctè & apertè mittas, & hoc breve, ut inspectis, &c. nos de Consilio & advisamento Dominorum spiritualiū & tempora­lium, 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 Appeale 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, The book is not so, that the Cōmons should meddle. but with the assent of the Lords, and Commons, 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 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 doe belong to the King only in Parliament. O­thers there be of the same nature, that the King may exercise out of Parliament, which right is growne unto him in them, more in those others by the use and practice of the Common-wealth: as denization, coynage, making warre: 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 beene [Page 11]executed by him in Parliament, and not otherwise, but with the reluctation of the whole Kingdome.

Can any man give me a reason, why 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 naturall 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 fundamentall 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 owne 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 then a principall; it is jus indigena an old homeborne right, declared to be Law by divers statutes of the Realme: As in 34. E. 3. cap. 2. That no office of the Kings, 34. E. 3. c. 2. 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 & directly against that right; but have devised certaine legall colours and shadowes for their wrongfull doing in that kind, Commissi­ons, Loans or Privie Scales, Be­nevolence which I doe find were of three sorts: by way of Commission; by way of Loan; by way of Benevolence. Commissions of another were the most insolent; for they went out (as it were by authority to levy ayd of the people upon great necessity of the Common wealth) These were condemned in Parliament 21. E. 3. [Page 12] Num. 16. upon a grevious complaint made of the use of them by the Commons, unto the King in Parliament: wherein 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 counsell, 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 and 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 latest time that ever King attempted that course of exaction was 17. Stowes an­nals. 17. H. 8. H. 8. upon the taking of the French King at Pavie, by the forces of Charles the fifth: Cardinall 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 Cardinall being called to give an account of this bad advice, did justi­fie this fact by the example of Joseph, who advised Pharaoh [Page 13]to take the fifth part of his subjects goods: But when hee saw that would not serve the turne, he falsely laid it upon the Judges, informing the King, he did it by their advice, being resolved by them of the lawfulnesse of the fact. So you see that great Churchmen found more safety in matter of government of our Common-wealth, in making a false report of a point of the Common-law, than in a true text of the Scripture. And if any Churchmen will endeavour by application of the text of Scripture, to overthrow the ancient lawes, and liberties of the Kingdome, I would ad­vise them to be admonished by the ill successe of the Car­dinall, in this particular action, and by the miserable cata­strophe of his whole life and fortunes. Loans and Privie Seales.

Loanes, and apprests were those, which we call Privie Seales, which though they were more moderate in shew, yet being made against the good will of the parties, were as injurious indeed as the other. The Commons in Parliament, Rot. pat. 25. E. 3. num. 16. 25. E. 3. Num. 16. made a grievous complaint to the King against the use of them, and prayed, that none from thenceforth should be compelled to make loans against their will, and they gave this reason in their petition: for that it is against reason, and the franchise of the land, and prayed that restitution might bee made, to those that have made such loanes.

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

Lastly, came in those kinde of exactions, Benevo­lence. which were termed by the faire name of Benevolences; but they became so odious, as they gave the occasion of a good law to bee made against themselves, and against all other shifts, and devices, by what new termes soever imposed upon the sub­jects: the Law is 1. R. 3. cap. 2. and is thus: 1 R. 3. c. 2. The King re­membring how the Commons of this his Realme, by n [...] and unlawfull inventions, and inordinate covetise, against the law of this Realme, have beene put to great servitude, and important charges and exactions, and especially by a new imposition called a Benevolence, enacteth by the ad­vice &c. That the Subjects and Commons of this land from [Page 14]henceforth shall in no wise be charged by any such charges, or impositions called a Benevolence, nor by such like thing.

But if you will deny, that the King doth in this case t [...]ke the goods of his subject without his assent, then you must fall upon mine other 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 legall course of proceeding, and by judgement in his Court, but upon a title precedent him, before the action brought, which title must bee a property in the same imposed? and how cometh he by that property, but by his owne Letters Pa­tents, by which he declareth he will have that same as an imposition? For the judgement giveth not the right, but only doth manifest and declare it, and giveth execution of it: So in this point, the question is, whether the Kings Patent hath the force and power of the Law, or not: for if it bee not maintained that it hath, it can never be concluded, that he can transferre the property of his subjects goods to himselfe, 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 setled govern­ment, and leave in the subject no property of his owne, neither doe you by this advance the Kings power and pre­rogative, Bracton l. 1. c. 8. but you make him no King; for as Bracton saith, Rex est ubi dominatur lex, non voluntas.

So we see that the power of imposing, and power of ma­king Lawes are convertibilia & coincidentia; and whosoever can doe the one, can doe the other; And this was the opi­nion of Sir Iohn Fortescue that reverend and honourable Judge, a very learned professor of the Common Law, and chiefe Justice of the Kings Bench, Fortescu de laudibus Leg. Ang. cap. 9. in the time of Henry 6. [...]s 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, & cateraonera imponere, ipsis inconsultis, quale dominium leges civiles indicant, cum dicunt quod principi pla­cuerit, [Page 15]legis habet vigorem; sed longè aliter potest Rexpoliticis imperans, quia nec leges ipse sine subditorum assensu mutare po­terit, nee Subjectum populum renitentem enerare peregrinis impositionibus. In which place I must intepret unto you, that peregrinae impositiones be not strange and unheard of impositi­ons, as was urged by the worthy gentleman that spake last; but impositions upon traffique into, and out of forrain Coun­treyes, which is the very thing in question: Fortescue de laud. Leg. Ang. cap. 36. further in the thirty sixth Chapter, he sayeth, of the King of England, Neque Rex ibidem per se, aut ministros suos tallagia, Subsidiae, aut alia quaevis onera imponit ligeis suis, aut leges corum mutat, velnovas 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 doe now, but in other words, because (as he saith) in England it is principatus mix­tus, & politicus, the King hath his Soveraigne power in Par­liament, assisted and strengthened with the consent of the whole kingdome: and therefore these powers are to be ex­ercised by him only in Parliament. In other Countreyes they admit the ground of the Civil Law, quod principi pla­cuerit, legis habet vigorem; Because they have an absolute power to make Law, they have also a power to impose, which hath the force of a Law in transferring property. Ph. Com. l 4 cap. 1. l 5. ca. 8. Philip Comynes, that lived at that time, in his fourth book the first chapter, the fifth booke, the eighth chapter, taketh notice of this policie of England, and commends it above all other States, as setled in most security: And further to our purpose layeth this ground, That a King cannot take one penny from his Subjects without their consent, but it is violence. And you may there note the mischiefs that grew to the king­dome 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, & the losse of their free Councell of three estates: And if this power of imposing were quietly setled in our Kings, conside­ring what is the greatest use they make of assembling of Par­liaments, [Page 16]which is the supply of money, I doe not see any likelihood to hope for often meetings in that kind; because they would provide themselves by that other meanes. And thus much for my first reason grounded upon the naturall constitution of the policie of our kingdome, and the publike right of our nation.

2. Com. Law. For the point of Common Law, which is my second Reason, it hath been well debated, and nothing left unspo­ken that can be sayd 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, Dier. 1. E. 165. untill the case in my L. Dier, 1. Eliz. 165: for we shall finde this businesse of an higher strain, and al­wayes handled elsewhere, as afterwards shall appeare: 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 excesse in them limited, as in the book of 42. 42. Ass. p. 5. Ass. pl. 5. where the Judges took away a Com­mission from one, that had power given by it to him under the great Seale, to take ones person, and to seise his goods before he was indicted. 1. & 2. E. Dier. 175. So Master Scrogs case, 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 hee could not grant it.

To this I answer, that causes 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 kingdome, that the State would never trust any of the Courts of ordinary justice with the deciding of them; but assumed the cognisance of them into the high Court of [Page 17]Parliament, as the fittest place to decide matters, 2. Ed. 3.7. so much concerning the whole body of the kingdome, As 2. Ed. 3.7. it appeares, that Ed. 1. had granted a Charter to the men of great Yarmouth, that all the ships of Merchants, comming to the port of Yarmouth, should land their goods at their haven, and not at any other haven at that port, as at Garneston, and little Yarmonth, which were members of that port This was very inconvenient for the Merchants, and a great hurt to traffique, and therefore the Charter was questioned in the time of Ed. 2. and adjudged good by the Counsell: but the parties not contented with this judgement, in the second yeer of King E. 3. by an order in Parliament made upon a petition there exhibeted against this grant, brought a Scire facias out of the Chancery returnable in the kings bench, to question againe the lawfullnesse 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 custodie of the ports: But the matter so depending in the ordinary Court of justice, a Writ came out of the Parliament, and did adjourne it thi­ther againe, where it gave occasion of a good Law to be made, to prevent the like grants, and to make them voyd notwithstanding any judgement given upon them, and to make such judgements also void. The Statute is, 9. E. 3. c. 1. 9. E. 3. c. 1. everyal en and deni­zen may carry his Merchan­dise where it pleased him, not­withstan­ding any Charter granted or judgment thereup­on. 16. & [...] Re [...]. 1. And in the Parliament rolles, 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 judgement in the Exchequer, and declares to the Kingdome, that notwithstanding the great wonder made by some men, nothing hath been done in this businesse by those that serve in the Parliament, but in imitation of their worthy predecessors in the very like case. In the second yeere of H. 4. the Commons shew that in the time of R. 2. by the meanes 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 cer­taine Merchants of Bristow, and other places, passage had [Page 18]been taken for wines, otherwise than 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 judgement given in the Exchequer, or other ordinance made by the said Treasurer, contrary to the ancient usage; which petition the King granted, and the judgement there­upon became voyde, and the prisage wine hath been paid contrary to the judgement ever since.

In 1. 1. El. Dier 165. El. Dier. 165. upon the complaint, made by the Mer­chants, of the impositions set upon cloth by Queene Mary by her absolute power, without assent of Parliament; the cause was thought too weighty to bee 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 yeere books, for there is nothing of it.

Another objection was this, which was made in the last argument, viz. That Custome is originally due by the com­mon Law of England, It can then have no other ground or cause; but meerly by the Kings royall prerogative, as a right and duty originally belonging to his Crowne: which if it be, it must necessarily follow he may impose, for that is but the exercising of that right. To prove this was alledged the case 39. 39 E. 3.13. E. 3.13. by which case it appeareth, that King Iohn had a custome of eight pence on a tonn of wine in the part of South-hampton, but the book doth not tell you that the King had it by prerogative, and he might have it aswell otherwise: as by prescription, or convention, which shall rather be intended, by reason of the certainty of the summe paied; for if it were by prerogative, he might take some­times more, sometimes lesse at his will, the right being inde­finite, and the quantity limitted onely by his owne Discre­tion. 18. El Dier 352. A common person may have such a custome certaine, as, 18. El. Dier 352. the Maior of London hath the twen­tieth part of salt brought into the City by Aliens, 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 [Page 19]customes of the City of London. So it appeareth, Dier 43. that Iohn of Britaine had Custome of the ships that arrived at his port of little Yarmouth, worth twenty pounds per an. And these instances doe inferre, that a Custome may bee otherwise then by prerogative, and therefore it is no good argument to conclude, the King had such a custome, Therefore he had it by prerogative.

The booke in 30. H. 8. Dier 43. 30. Hen. 8. Dier 43. was much pressed on this point, which sayeth that custome belonged to the King at Common Law, and doth instance in wooll, woll fells, and leather begun at the Common Law, but abridged by the Satute of 14. E. 3. ca. 21. stat. 1. 14. Ed. 3. c. 21. statn. r. but this appeareth to be a great errour, and mistaking in the booke; for we doe finde that that custome of woolls, wooll-fells, and Leather was begun by a grant in Parlia­ment, as appeareth in statute 15. E. 1. ca. 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, Earles, Barons, and all the Commonalty of land, &c. Novem. 3. Ed. 1. the King recited in his let­ters patents, That Prelati magnates actota Communitas mer­catorum Regni, granted this new custome. 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 foure pence in the pound, over due custome, payd by Merchants Aliens according to the purport of the Charta mercatoria 31. E. 1. Rot. char. 31. E. 1. nu. 44. in Turri by meere 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 meerely voyd to binde in succession, And yet the Merchants Ali­ens doe 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 Custome, by three-pence in the pound, and other encreases, 31. E. 1. were [Page 20]Merchants aliens, who by the law of Merchants, and Nations may contract to binde their successours in mat­ters of traffique: for their contracts are not ruled by the Common law of the Land, but by the law of Nations, & per [...]egem Mercatoriam, as the book case is, 13. Ed. 4.10. and there was a good consideration given them by the King for this encrease of custome: as discharge of prise Wines for two shillings the Tonn, 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 payeth now but two shillings the Tonn for pri­sage, whereas it standeth an English man in much more: so as the rule of commutative justice maketh the contract availeable to the King against the Merchants, because he parteth with part of his prisage to the Merchant, and maketh it availeable to the Merchant against the King, because he giveth him encrease of custome above that is due by law. 27. E. 3. c 26 But the statute of 27. E. 3. cap. 26. here­tofore cited doth make this point cleare without scruple, which confirmeth the Charter of 31. E. 1. entirely, and by that the encrease of custome 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 custome by Prerogative, you goe directly against his meaning; for it appeareth by that which presently followed this grant, that the King took this encrease of custome by way of contract only, and not by Prerogative; for the same yeare 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 custome, upon the same immunities to them to be granted, and doth assigne 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 expresse, that the Kings inten­tion [Page 21]was not to demand this by way of Prerogative, but by force of the contract. If there were such a Preroga­tive in the Crowne as of right to have custome; how commeth it to passe, this Prerogative never yet had fruit or effect? for this I can maintaine, that the King of Eng­land hath not one penny custome, or imposition upon merchandizes elder than the fourth yeare of Queen Mary; that hee holdeth not by act of Parliament, and by the peoples grant: The eldest that he hath is that of wools, woolfells, and lether, and that is by act of Parliament, as appeareth in the Statute 25. E. 1. cap. 7. 25. E. 1. c. 7. the tonnage and poundage by Parliament in the first yeare of every Kings reigne.

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

Concerning the statutes made for restraining our Kings, from the exercise of this pretended Prerogative, Statutes 3. which is the third matter I stand upon: Those that have maintained the Kings Prerogative in this point, have en­deavoured to interpret those statutes, to extend only to restraine him from imposing upon wool, woolfells, and lether, which are staple commodities: And the reason they give for this restraint, more than for other goods, is be­cause the King, by statute, is restrained to a custome cer­taine for those commodities, as the halfe mark a sack of wooll, and halfe a mark three hundred woollfels, and thirteene shillings foure pence a last of lether; and there­fore great reason he should not exceed this custome in these commodities.

This objection receiveth many answers: First it ap­peareth both by the expresse letter of divers of the Lawes made in this point by the occasion that induced the ma­king of the Lawes, and by the execution of them, that all other wares and merchandises, aswell as those of the staple, were within the purpose and intent of those Lawes: Secondly, the reason aleadged, why there should be re­straint [Page 22]for the staple commodities, rather than for the other, is mistaken; for the Lords and Commons did grant to E. 1. by act of Parliament the custome of the halfe mark for wooll, woolfels, and lether, which was matter of mere grace and liberality, and includeth no re­straint in it, but rather a favourable extention, quite con­trary to the sense of the objection; according to that rule of interpretation, Gratiosa ampliari decet, odiosa restringi. And admit some Lawes be made expresly to restraine im­positions upon wooll, woollfels, and lether, by reason that the occasion of making such Lawes was the actuall im­posing, upon those goods at that time, shall we not by good construction, Secundum mentem extensivum legis, extend this law to other wares and merchandizes, that are within the same mischiefe? 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 Lawes 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, than to en­force the sense and meaning of them, which is very plaine and open, and needs no interpretation. The first sta­tute enforced is, Mag. charta cap. 30. made in the ninth yeare of H. 3. by which it is enacted, that all Merchants shall have free egresse, and regresse, out of, and into this Realme, with their goods and merchandizes, to buy, and sell, sine omnibus malis tolnetis per antiquas, & rectas con­suetudines: in which words we may inferre, 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 Custome, in one sense doth signifie) implyeth a begining, and continuance by consent, and will of the parties, not by power, and enforcement which cannot be a custome; [Page 23]and therefore it cannot be an imposition: for that ariseth mercly 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 epithetes with which it is qualified antiquum, and rectum, doe describe it to bee of that nature, that it cannot be an imposition: for antiquum, in legall construction, is that which is time out of minde, that is not an imposition: for then, by continuance of time, it should grow aright by prescription, and were justifiable: Rectum implyeth a limitted right, which inferreth, there may be a wrong and exceeding of that right, which is not in impositions: for if there be a right in the King to impose, the quantity, time, and other circumstances are in his discretion; the right is illimited: And if he set on never so great an imposition, there is as much right in it, as if it be never so small: the excesse maketh it a burthen, but not a wrong.

We may further observe, that in the statute, malum tol­netum, which is evill toll, is set downe 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 yeare 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. Rot. claus. 16. H. 3. num. 20 whereby it is commanded, Quod omnibus Mercatoribus in portum suum venientibus cum vinis, & aliis merchandi­zis scire faciant, quod salvò & securè in terram Angliae veniant cum vinis & mercandizis suis, faciendo inde rectas & debitas consuetudines, nec sibi timeant de malis tolnetis, quae us faciat Rex, vel in terrâ suâ fieri permittat. By this record the word Consuetudo is interpreted to be mos, not portorium, otherwise it should have beene solvendo consuetudines, not faciendo. Also these words antiquum & rectum in the statute in this writ are rectum & debitum, which doth more enforce a certainty of right and duty, [Page 24]which by no meanes 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 doe plainly shew it was made for Aliens: but if the State was so carefull 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, 2 E. 3. c. 9. as appeareth by the statute of 2. E. 3. cap. 9, the words are, that all Merchants, strangers, and Princes may goe and come with their merchandizes in England, after the tenor of the great Charter, and that writs bee thereupon sent to all the Sheriffs in England, and to Maiors, and Bayliffs of good townes where need shall require.

A second objection was made in the last argument, out of these words of the statute of M. Chart. that Mer­chants might freely traffique, Nisi publicè antea prohi­biti fuerint: by which was enforced, that the King had power to restraine 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 king­dome; 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 beene by Parliament. But admit the King may make a restraint of traffique in part, for some publick re­spect of the common wealth, he doth this in point of protection, as trusted by the Common wealth, to doe that which is for the publick good of the kingdome; but if he use this trust to make a gaine and benefit by impo­sing, 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 maine objections.

The next law is that notable statute of E. 2 [...]. E. 1. c. 7. 1. in the 28 yeare of his reigne made upon the very point in question: the words are these; And forasmuch as the more part [Page 25]of the Commonaltie of this Realme 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; Wee at their request have clearly released it, and have gran­ted for us and our heires, that wee shall not take such things, without their common consent and good will, saving to us and our heires the customes 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 selfe, some out of matter subsequent and following after the Law: For matter precedent; The Wal­singham in E. 1. fo. 71.72.73. edit. per W. Cam den impres. Francofur­ti. 1603. It was ob­jected out of Tho. Walsingham an Historiograper of good credit, that Writ of that time when the Satute was made, That in the petition of grievances given to King E. 1. by the people in the 25. yeere of his raigne, upon which petition the statute was made, that they found themselves not grie­ved in point of right, but in point of excesse; 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 expresse the cause of their griefe, that it was too heavie; which is to bee applyed to the point of excesse, not of right.

To this I answer, that if the words had been (quia ost 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 onely positively affirme that the imposition, de facto, was intolerable for the greatnesse of it, which doth not there­fore admit that it is tolerable, in respect of the right the King had to impose. But this is made cleare by the ge­nerall word precedent in the preamble of the petition, which doth evidently inferre, they grounded their com­plaint upon point of right, not upon point of of excesse; the words are these, Tota terra communitas sentit se valdè gravatam, quia non tractantur secundum leges, & consuetu­dines [Page 26]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 dependencie of that expressed in the preamble, for the point of right. But seeing wee light upon History, which though it bee of small authority in a Law argument; yet being the History of our owne Realme, hath fit and proper use in the common counsell of the Realme, Matth. Westm. fo. 430. Edit. p [...]r 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 coetero tallagia usurparet, & voluntarias super his inductas exactiones de coetero quasi in irritum revocaret; by which it appeareth, that the point of the complaint was, that the exactions layd on them were vo­luntary, that is, at the Kings will, without assent of Parliament. Out of the Law it selfe, it hath much been pressed, as first the Commons made petition to the King, wherupon they inferre out of the nature of the word (peti­tion) that their proceeding was by way of grievance, for the excesse and inconvenience, as a matter of grace, not in course of justice for the wrong.

To this I answer, that considering the qualitie of the parties to this action, it being betweene the King and the subject; duty and good manners doth induce gen­tlenesse and humilitie of termes, without blemish, or dimi­nution of the force of right. It is according to the demea­nor of Iob, Iob. 5.15. cap. 9. v. 15. Though I were just, yet would I not answer, but I would make supplication to my judge. But in our formes of Law, be the right of the subject never so cleare, manifest, and acknowledged by all; yet if his own be detained from him by the King, he hath no other writ or action to recover, but a meere petition, Suppli­cat celsitudini, &c. So as if the word petition to the King inferre defect of right in the petitioner; there can be no case where the King can doe the subject wrong.

A second objection out of the body of the Law is, that [Page 27]the King doth release that imposition of forty shillings, which implyeth a right setled in him. But to this I an­swer, that it is no necessarie inference, that wheresoever a release of right is: for it is used for claime only, or where possession was, though wrongfull, 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 Marchants 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 bee 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 dammage that grew by it; for that did only touch the Merchants, who could not justly complaine thereof, because it was their own act and grant. 22. E. 1. O­rigen. in Scac. Rem. Thes. This appeareth by two nota­ble records, 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 subsidium Guerra Regis pro recu­perandâ terrâ Vasconiâ, mercatores gratanter concesserunt per biennium vel triennium, si tantum duraverit Guerra, de sacco lanae, &c. The other record is the Writ of publication that in 26. E. 1. went out after the Statute of 25. In 26. F. 1. mem. Sca. Rem. Thes. in which Writ the King reciteth thus, Cum nos ad instantiam Com­munitatis Regni nostri remiserimus custumam 40. s. nobis nuper in subsidium Guerrae noctrae contra Regem Franciae con­cessum, &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 limitted precisely to impositions set upon wooll, and not on other 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 [Page 28]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 wayes: first out of the (Saving) in the Act, which extends to other things than to Wooll, as to Wooll-fells and Leather; therefore the purview of the act by these words (such things) extendeth to more than 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 bee remedied, but for Wooll; because only that was complained of, is false: For the complaint of the Commons was not only for this imposition on Wooll; but divers other burthens and grievances of the like nature. And this will appeare if wee compare all the parts of the Law. the one with the other: for this Law is in the forme of a Charter written in French, and beginneth, Edward by the grace of God, &c. And is an entire grant, and instrument without fractions, sections, and Chapters, as it is now printed, and con­taineth in it, next before this last clause concerning the impositions on Woolls, which in the printed Book is Cap. 6. That the King, for no businesse from thenceforth, will take no manner of aydes, 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 only to that which is made Cap. 7. by the Printer, and concerneth the male toll of Woolls; but to that precedent which is (all otheraydes) impositions, and takings.

The Writ of publication of this Statute sant out to all parts in 26. Me [...]. S [...]ac in 26. E. 1. Rem. Thes. E. 1. maketh plaine this construction, the words of it are, Concedentes quod custumam illam velaliam, 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 29]Wooll-fells, and Leather, which are not complained of by name in the Statute; and therefore the Law was inten­ded to other impositions, aswell 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 bin set on other Merchandize than Woolls, were still answered after the Statute; and for instance of this was alledged, that whereas 16. E. 1. an imposition of 4. s. 16. E 1. Orig. R. Thes. the Tonn was set upon Wines brought into the Kingdome, an accompt was made of this in th' exchequer in 26. E. 1. as by the re­cords there appeareth; by which it seemeth that the Law of 25. E. 1. was not taken to extend to wines, and such other Commodities, other than Woolls named in the Statute. It is true, such an imposition was set on by E. 1. in the sixteenth yeere of his raign, and an accompt made for it 25. and 26. 25. & 26. E. 1. de compt. T. Mich. R. Thes. 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 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 yeere af­ter the setting of it.

The third Satute alledged on the behalfe of the Sub­ject is that 34. E. 1. ca. 1. the words are these, 34. E. 1. ca. 1. No tallage or aide shall be taken or levied by us, or our heires in our Realme, without the good will and assent of our Arch-bishops, Bishops, Earles, Barons, Knights, burges­ses, and other freemen of the land. Against this was objected, that this Statute was intended only upon the taxes & impositions of things; The word Auxilium makes it cleare, that it is to be intended further then of things within the realme; for tallagium is commonly intended of Domesticall taxes, but auxilium is the most usuall terme for impositions upon goods imported and expor­ted, [Page 30]as by the acts of Parliament by which such impositi­ons are given to the King, in which they are called most commonly by the name of Aydes, as proceeding of good will and benevolence.

The fourth Satute alledged on this part is that of 5. 5. E. 2. ca. 14 Rot. Ordi [...]. E. 2. ca. 14. just in point of the matter in question; and therefore I will set it downe as I finde it Ʋerbati [...]n in the record in the tower, Ensement novelles customes sont levies, & ancients enhaunces come sur levies drapes, vine, aver du pcis, & aut choses purguoy les Merchants veynont pluis vilement, & meynes de bien, menynont en la terre, & les Merchants estrangers de murront pluis longment que ils soloyent faier, pur le quel demoure les choses sont le pluis enhaunces que ils ne Soloyent estre, al dammage de roy, & de son people. Nou [...] ordonomus que touts manners de male tolls levies puies de Coronement de Roy Ed. faier de Roy Henry [...] [...]irement oustes, & de tout estreints pur touts jours, nient [...]iristeant le Chartre que le dict Roy Ed. fist as Merchants aliens, pur ceo que il fuit fait 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 leving of new coustomes, and by the raising of old, traffique was de­stroyed, and all things made deare; And therefore all new impositions and customes were dscharged Chartâ mercatoriâ, by which custome 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 which this clause, Saving to the King his custome of wooll, woll-fells and Lether, Si aver les doet. Great warres 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 Realme being then in tumult and mutiny about the [Page 31]quarrell of Peirce of Gaveston, so never had the Kings free consent; but he gave way unto it for feare of greater mischiefe: Secondly, that in it selfe it is unjust, as in ta­king away the custome granted to the King by Charta mercatoria 31. E. 1. and in making doubt whether the King should have the custome of wools, &c. by those words, Saving it to him, Si aner 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 Common-wealth: the King and his nobles standing in good termes, when this busi­nesse was taken in hand; and it was begun and ended with great solemnity and ceremony: for the King in the third yeare of his reigne gave Commission under his great Seale to 32. Lords spirituall and temporall; Com. 16. M [...]r. 3. E. 2. Rot. or­din. 5. E. 2. of which there were eleven Bishops, eight Earles, and thirteene Barons; they being as Committees of the higher House to devise ordinances, for the good government of of his house and his Realme. In which Commission he doth for the honour of God, the good of him, and of his Realme, of his freewill graunt to the Prelates, Earles, and Barons, and others elected by the whole Kingdome, full power to ordaine the State of his house and Realme by such ordinances, as by them should bee made, to the honour of God, the honour and profit of holy Church, the honour of himselfe, the profit of him and his peo­ple, according to right and reason, and the oath hee 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 businesse, did make this and other ordinances, which were so well liked of by the King, that after they were made, hee took an oath to observe [Page 32]them, Pullic. 3. Kal. Oct. 5. E. 2. Rot ordin. P [...]t. 5. Oct. 5. E. 2. Rot. ordin. and caused them to be published in Pauls Church­yard by the Bishop of Salisbury, by denouncing excom­munication, against all that should wilfully infringe them: And by his Letters Patents dated 5. Oct. 5. regni sui, did send them through the Realme to be published, and from thenceforth to be observed, thereby signifying his great liking and approbation of them; after which they had the force and power of Lawes given unto them in the Parliament, in the fifth yeere of his raign.

The second obiection, which is the injustnesse of the law, instanced in two points; the taking away of Charta mercatoria, and the doubting of the Kings right to the custome of wolls, woll-fells and Lether, &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 Kingdome: for that Charter did containe in it divers grants of things, which were not in the power of the King to grant, without assent of Parliament; as the triall 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 yeers 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 custome of wooll, wooll-fells, and Le­ther I take it there is no such doubt made: For the words (Saving the kings right to the custome of woolls si aver les doet) have this construction, that is, at such times as hee 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 lawfull; 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 exception to the lawfullnesse of it.

The third objection is, That this Statute is repealed: To this I plead, Nullum vale recordum. If it be repealed it must be by Act of Parliament, for unumquod (que) dissoluitur i [...]s­dem modis quibus est colligatum: I and others have searched the Records of the Realme, and endeavoured by all means to informe our selves of the truth herein, and we can finde no Act of Parliament of repeale: The truth is, some Kings finding these Lawes not to sort to their wills and humours, have endevoured to suppresse them, but they didnever yet obtaine a repeale of them by Act of Parliament.

But it is further urged, That although there were no formall repeale 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 himselfe so little bound by it, as that in the 11 yeare of his raigne he set an imposition without assent of Parlia­ment upon Wooll, Wooll-fels, Leather, Wines, Cloth, aver­de pois, and divers other kinde 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 wee looke into the whole Record, and skanne this action of E. 2. from the beginning of it, unto the end, we shall finde it a very good instance to prove the practise 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 11 yeare of his raigne did borrow of the Mer­chants a certaine summe of money above the due custome of Wooll, Wooll-fels, Wine, averdepois, Leather, and such other goods imported and exported; But it appeareth by the Record, hee tooke it but for one yeare; hee tooke it by the advise and counsell of the Merchants: and he took it per viam mutui. as a loane. The direction of the Writ is, Rot. claus. 11. E 2. Collectoribus mutui nobis per mercatores alienigenas & in­digenas de certis rebus & Merchandisis usque ad certum tem­pus faciendi. This was done in good tearmes, he did not claime it as his right, but did borrow it, which I doe thinke is a good evidence against his right: But what be­came [Page 34]of this? the State would not abide it, for all these faire shewes. And therefore afterwards the King sendeth out other Writs by which he dischargeth all merchandizes of this loan, saving onely Wooll, Wooll-fels, and Leather, and for the loane taken upon those commodities, it was limitted to continue but untill Michaelmas after, and good security was given to the Merchants by the Custo­mers to pay themselves by way of defalcation out of the Customes which should be due after Michaelmas, those summes which were so borrowed of them. The words of the Record are worth the observing, Rot. finium 11. E. 2. Cum pro expedi­tione guerrae Scotiae, & alijs arduis & urgentibus necessitatibus nobis multipliciter incumbentibus, pro quarum exoneratione quasi infinitam pecuniam refundere oportebit, pecunia plurimum indigeamus in presenti, & nuper pro eo quod exitus regni & ter­rarum nostrarum simul cumpecunia 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 & advisamento quorundam mercatorum tam alieni­genarum quam indigenarum viam invenimus infra script, viz. And so setteth down the manner of the loan, and the secu­rity for the payment of it: This (I take it) was neither an imposition, nor a wrong in any respect. Also by the first Record it appeareth, that the loane set on Wines, averdepois, and such other commodities, besides Wooll, Wooll-fels 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 fift Statute alledged on the behalfe of the subject is that 14. 14 E. 3. Stat. 1. ca. 21. E. 3. Stat. 1. ca. 21. by which the Commons pray the King to take no more then th'old custome of the halfe marke. The King prayeth aide of the Commons for a time above the custome upon his necessity of warres. 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 Wools, Wooll-fels & Leather, [Page 35]but the old Custome, and doth promise to charge, set, or assesse upon the Custome but in manner as aforesaid.

The sixth Statute is 14. E. 3. Stat. 2. ca. 1. 14 E. 3. stat. 2. ca. 1. The King doth grant by way of Charter to the Prelates, Earles, Barons, Commons, Citizens, Burgesses and Merchants, that they be not from thenceforth charged nor grieved to make any aide or sustaine charge, if it be not by the common consent of the Prelates, Earles, Barons, and other great men, and Commons of the Realme, and that in Parlia­ment.

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

The first was delivered by the Lords in this forme, Rot. pa [...]l. 13. E. 3. num. 5. Les grands volunt, that the maletoll set on Wools newly, be altogether abated, and that the old custome beheld, and that they may have this in point of Charter, and by inroll­ment in Parliament. This word (volunt) had beene too high for a suit of grace, and therefore must be intended of right. The Commons Petition in forme, is somewhat humble, but in effect and purpose is rough and sterne: Rot. parl. 13. E. 3. nu. 13. the words are these, The Commons pray that the maletoll of Wools be taken as it was used in ancient time, which is now enhaunced without the assent of the Commons, 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, [Page 36]the first of these two Lawes, is by inrolment in Parlia­ment: the second is in forme of a Charter: the first doth expresse some special commodities: the second doth reach generally at all.

The seventh Law directly touching this point, 14. E. 3. s [...]at. 2. ca. 2. is that 14. E. 3. stat. 2. ca. 2. The King doth grant according to the great Charter, that all Merchants denizons, and forrai­ners may without let safely come into the Realme of Eng­land with their goods and Merchandizes, and safely tarry, and safely returne, paying the Subsidies, customes and other profits reasonably due. Upon the words of this Law, was great advantage taken, in this, that besides cu­stome and Subsidy, which comprehend all the certaine & ordinary duties, the King hath upon the & wares & goods of Merchants, there are other profits spoken of to be due: these they affirme cannot be understood but of Impositi­ons by the King without assent of Parliament.

To this I answer; if they were not duties due to the King besides, Custome and Subsidie, which might satisfie the intention of these words, this objection might have had some colour in it; but it is plaine 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. parl. 50. E 3. nu. 163. 50. E. 3 against the raising of these above the old rate.

The eight Law is E. 15. E. 3. stat. 2. ta. 5. 3. stat. 2 ca. 5. whereby it is en­acted that every Merchant may freely buy and sell, and passe the sea with their Merchandizes of Wooll and all other things, paying the Custome of old time used, accor­ding to the Statute made 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. ca. 3. E. 3 stat. 1. ca. 3. Whereby it is enacted that the sea be open to all manner Merchants to passe with their Merchandizes where it shall please them.

The tenth is 27. 27. E. 3. st. 2. ca. 2. E. 3. stat. 2. ca. 2. for the assurance of Merchant strangers and other, the King doth will and [Page 37]grant for him & his heires that nothing shall be taken over the due Customes, nor taken of them to his use by colour of sale, or in other manner against their wils.

The eleventh is 38. E. 3. ca. 2. 38 E. 3. ca. 2. that all manner Mer­chants aliens and denizens may buy and sell all manner of Merchandizes, and freely carry them out of the Realm, paying the Customes and Subsidies thereof due.

The last is 22. H. 8. ca. 8. 22. H. 8. ca. 8. by which it was enacted that Tables should be set up in ports, by which the certainty and very duty of every custome, toll, and duty or summe of money to be demanded and required of wares and Merchandizes shall and may plainely appeare and be de­clared, to the intent that nothing be exacted otherwise then in old time hath beene used and accustomed.

By this late Law it appeareth that the judgement of of the whole Parliament was at that time, that nothing was due upon Wares and Merchandizes, but that which was certaine, and had beene anciently due, by which Im­positions are excluded, whose qualities are novelty and in­certainty, as being set on, as present occasion moveth, and proportioned for quantity and other circumstances, as the will of the King directeth.

These are the Lawes 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 untill of late, As by that which followeth in the fourth place will appeare.

My fourth and last assertion is, Custome 4 that this practiseof im­posing without assent of Parliament, is contra morem Ma­jorum. In this I will make an historicall perlustration of the times past, whereby I will discover and make knowne what passages have beene in this businesse in this King­dome, and especially in the high Court of Parliament for the space of 300 yeares and more last past, since the be­ginning of the raigne of E. 1. sithence which time, and [Page 38]not before this Kingdome hath growne into the glory and reputation of foraigne traffique. And as a worthy Gen­tleman of the Kings [...]earned Councell, made certaine considerations upon this question, framed and strengthe­ned out of the greatnesse of his wit and reason: so I grounding my selfe upon the practise of former times, which is the safest rule where [...]y 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 practise, 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 time the occasion not so sensible, the continuance to be perpetuall, the number many hundreds, almost no kinde of Commodity spared. I will give you some few Instan­of these circumstances ces 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. 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 E. Rot. parl. 17. E. 3. nu. 28. 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 warre in Scotland and Ireland. In the thirteenth year of his raigne for his war in France, severall Impositions were set on.

In the seventeenth yeare of E. 3. the Record in the Tower, mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Merchants, [Page 39]and it was in the time of Warre.

In the twentieth yeare of King E. 3. Rot. parl. 20. E. 3. nu. 18. it appeareth in the Record, that the Imposition then put upon Wools, was by the assent of Merchants for two yeares, 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 inconsultò 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 favour. Thirdly, by waving his present possession, and taking that of their gift by Act of Parliament, as an aide which he had set on by his absolute power as an Im­position.

Instances of the first 25. E. 1. 25. E. 1. ca. 7. Rot. part. 38. E. 3. n. 36. the Imposition of Wools taken off, and a Law made against it, and the King under­tooke for him and his successors to doe so no more: 38. E. 3.26. 38. E. 3. cap. 2.45. E. 3. cap. 4.17. E. 3. cap. 10, 11. R. 18. E. 3. cap. 3. st. 1.21. E. 3. n. 11. R. Parl. the Impostion 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 wooll, 2. s. upon a tunne of wine, and six pence upon aver de pois, all dis­charged presently, saving the two shillings upon a sacke of wooll, and for that intreated that it might stay till Easter following, and so it did, and was then taken away. 25. E. 3. n. 22. rot. parl.

Instance of the third 25. E. 3. nu. 22. the Commons [Page 40]made petition against an imposition of fourty shillings upon a sacke of wooll granted to the King by the mer­chants, shewing that they ought not to be bound by their act, The King did not claime right or justifie, 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, Orig. in Scau. 31. E. 1. R. Thes. E. 1. in his writs he sent to the officers of his parts to levie three pence on the pound over the old custome, of 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 expresse it very fully, Cum mercato­res extranei & alienigenae pro quibusdam libertatibus eis per nos concessis & prisis nostris quibuscunqueremissis, nobis de bo­nis & merchandisis suis quibuscunque infra regnum & pote­statem nostram adducend. ultra antiquas custumas dare concesserint praestationes & custumas subscriptas, viz. and so fetteth downe the increases, and amongst the rest this three pence upon the pound, and so proceedeth, Ac qui­dam mercatores de regno nostro & potestate nostra, ut ipsis dictis libertatibus & immunitatibus uti & gaudere, & quod de prisis nostris quieti esse possint, praestationes & custumas hujus­modi de bonis & merchandisis suis nobis solvere velint, ut acce­pimus, assignavimus vos, &c. ad custumas & praestationes 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. nullatenus distringatis. Surely if E. 1. had claimed the prerogative of imposing, hee would never have given these cautions in the requiring of that which hee 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. Ret. Alem. 12. E. 3. dorne. 22. in turr. wee finde the Record of certaine letters written from the King being then at Barwick in the Scottish warres, unto the Archbishop of Canterburie, in which letters the King seemeth to have a great confidence in the devotion of the Archbishop, and therefore earnestly intreateth him to further his en­terprises with his prayers to God, and then addeth fur­ther. Ad hoc pater, cum populus regni nostri variis oneribus, tallagiis & impositionibus hactenus praegravetur (quod dolenter referimus) sed inevitabili necessitate compulsi de eisdem oneri­bus ipsum adhuc relevare non valemus, dictum populum ut tantam necessitatem nostram humiliter & benigne patiatur & canitative sustineat, & priorem (quam penes nos concepit de cetero instanter in orationibus & eleemosynis suis, oneribus praedictis, quae non ex malitia vel presumptione voluntaria ip­sum gravant, non obstantibus) exhibeant caritatem, indul­gentiam muncribus & aliis modis, quibus secundum Deum vi­debitis piis exhortationibus inducatis, & nos penes eundem excusitis, speramus namquesper Dei gratiam, cujus manus cun­ctis indigentibus sola sufficiens, & largiflua comprobatur, be­neficiis compensatius dictum populum visitare & consolari pro loco & temporeopportunis.

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 himselfe 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 hee condemneth impositions without assent of Parliament, which are (onera ex voluntate Regis) to proceed of presumption, which doth clearly exclude claime of right, and dispro­veth the lawfulnesse 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. Hee saith further, Dolentes referimus, shewing his [Page 42]griefe and remorse at it, & inevitabili necessitate compulsi, hee did it constrained by unavoidable necessity, shewing hee was forced to it against his will, by that which viola­teth and breaketh all law, which inferreth, hee would not maintaine his action by law; Adhuc relevare non valemus; this insinuates, hee would ease them in good time; cari­tatem exhiberent, they should afford him charity in the bearing of them, as if so bee in point of justice or right they need not, Penes cundem excusetis, the Bishop should excuse him to the people, By this he did clearly leave the point of justification, and so of right: lastly hee promi­seth hee would visite and comfort them benefic [...]s compen­sativis, would give them recompence for those summes he had so raised of them; which shewed that hee claim­ed them not as due, for then hee 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 bee in this case) nor other things laid up­on the people unlesse they bee granted in Parliament, The Kings answer is, If any such impositions were made, it was by great necessity, and with the astent of the Pre­lates, Barons, and some of the Commons present; yet hee will not that such Impositions not duly made bee drawne in consequence. Here the King acknowledgeth an Imposition not to bee duly made though with the con­sent of the Higher House, and some of the Commons, because it was not in full Parliament; much rather hee would have thought so, if it had beene 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 yeer of his reigne made a Speech to the Commons, Sir Iohn 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 entered upon the Parliament roll, and [Page 43]then I will make a paraphrase upon it, Iohn Say, Rot. parl. 7. E. 4. The record begins, Me­morandum [...] quod die vene­ru 3. die Parl. 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 owne, and not to charge my subjects but in great and urgent causes concerning more the Weale 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 progenitours in time of need, wherein I trust that yee Sirs, and all the Commons of this my Land will bee as tender and kinde unto mee in such cases as hereto­fore any Commons have beene to any of my progeni­tours, And for the good will, kindenesse, and true hearts that yee have borne, continued, and shewed to mee at all times heretofore, I thanke you as heartily as I can: also I trust yee will continue in time comming, for which by the grace of God I shall bee to you as good and gracious a King, and reigne as righteously upon you as ever did any of my progenitours upon Commons of this my Realme in dayes past, and shall also in time of need apply my per­son for the Weale 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 wee may observe first the Kings Protestati­on to live of his owne, and not to charge his subjects; by which I gather hee did acknowledge a certain and di­stinct property of that which was his subjects from that which was his owne, which excludeth the right to im­pose at his will, for if that be admitted, the subjects pro­perty is proprietas pr [...]caria 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 betweene these two bounds; the one, it should bee in great and urgent causes concerning more the Weale of them, and the defence of [Page 44]them and his Realme, that 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 State: the other bound or limit is, that those burdens should bee secundum morem majorum, as heretofore had beene done and borne by the Commons to his ancestours in time of need. The third thing I observe is, that hee acknowledged these burdens did proceed out of their good will and kindenesse, and not out of his right and prerogative; out of these words, that hee trusted they would bee as tender and kinde to him in such cases as heretofore any Commons had beene to his progenitours: And lastly, wee may note the recompence promised by the King to his subjects, for their good wils and kinde­nesse, his goodnesse 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 [...]ight to lay burdens on his subjects at his owne 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 in Parliament, against Impositions, the very knot of their griefe, and the principall cause of their complaint hath beene expressed in those petitions, that the impositions have beene 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 shilling upon a sacke of wooll, two shillings up­on a tonne of wine, sixe pence upon aver de pois, the cause of grievance expressed because it was done Sans assent de Commons.

25 E. R. Parl. 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 [Page 45]upon such singular grants, if they bee not in full Parlia­ment, and if any such grants bee made, they may bee held as void.

17 E. 3. n. 28. R. Parl. 17. E. 3. 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 lesse 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 shillings 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. nu. 26. Three shillings and four pence upon a sacke of wooll, all taken off, and no excuse made for the smalnesse; for 21. E. 3. nu. 11. two shillings a sacke, 21. E. 3. n. 11. 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 peny was set upon wools for Tronage over and above the an­cient due which was but a peny, and so the subject was charged with two pence. Also that a peny was exacted for Mesonage, which was but an halfepeny; which Imposi­tions the Record doth expresse 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 smal­nesse of it.

My sixth observation is, that those which have advised the setting on of impositions, without assent of Parlia­ment have beene accused in Parliament for giving that [Page 46]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 deceits and extortions and misdeeds, and among other things, that hee had procu­red to bee set upon wooll, wooll-fells, and other merchan­dises, new impositions, to wit, upon a sacke of wooll elea­ven shillings, which the L. La [...]imer sought to excuse, be­cause hee had the consent and good liking of the mer­chants first: But judgement was given against him that he should be committed to prison, be fined and ransomed at the Kings will, and be put from being of the Councell, and this procuring of impositions to bee set on without assent of Parliament is expresly set downe in the entry of the judgement for one of the causes of his censure.

Richard Lyons a Fermor of the Customes in London the same yeere was accused in Parliament for the same of­fence; Rot. parl 50. E. 3. n. 17, 18, 19, 20. he pleaded, hee 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 seifed into the Kings hand, and at the last the hate against these authours of impositions grew so that 50. E. 3. in the same Parlia­ment, a petition was exhibited in Parliament to make this a capitall offence; the Record is very short, and therefore I will set it downe verbatim. Item prie le dit Common que foit ordaine per statute en cest present parliament de touts ceux qux cy en avant mittont on 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, Courge la Common ley come estoit al avant use.

My seventh observation is the cessation betweene 50. E. 3. after this censure in Parliament, and 4. Mariae, al­most [Page 47]two hundred yeeres, 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 raigned in that time, but had im­positions granted him upon fit occasion by Act of Parlia­ment upon all goods and merchandiles, and at divers times during their Reignes, sometimes more, sometimes lesse upon the tonne and pound, but ever for a time cer­taine, and definite; so the use of them was not given over, but the power of imposing was so clearly and un­doubtedly held to bee in the Parliament, as no King went about to practise the contrary.

But to this cessation that was of great weight and cre­dit in our evidence, a colour was given by the other side to avert the inference made upon it, against the Kings right, that is, that during that time, there was so great a revenue grew to the Crowne by double Custome paid for all merchandises both in England and at Castis by rea­son of an Act of Parliament made 8. H. 4. which was, that no goods should bee carried out of the Realme but to Calles, and by reason that the merchants paid Custome both there and here for the same goods that in the seven and twentieth yeere of Henry the sixth the Custome of Callis was 68000. pounds the yeere: a great summe if you consider the weight of money then, what price it bare, and by reason hereof Princes not delighting to charge their munnuting subjects but when need is, being so amply supplied otherwise, did not put that prerogative in practice. To this I answer, that if that were true that was urged, it might bee some probable colour of the for­bearance of imposing; but I find it to be quite contrary, and that by Record: for there was no such restramt of all commodities not to bee transported to any place but Callis, but onely wools, wool-fells, leather, tinne, and lead, that were staple wares, which by the stature 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. [...]. but there was no [Page 48]double Custome paid both here and there by the same owner: but the yeerly profits of the Customes of Cal­lais at those tiems were so farre short of that which hath beene alleaged in 27. H. 6. that it appeareth in an Act of Parliament 27. 27. H. 3. ca. 2. H. 6. cap. 2. printed in the booke at large, that the Commons doe complaine that whereas in the time of E. 3. the Custome of Callais was 68000. l. per annum, at that time, which was 27. H. 6. by reason of the ill usage of merchants, it was fallen to bee but 12000. pounds the yeere, so then there was great cause in that respect to have set on impositions by reason of that great abatement of Customes, and yet it was not then offered to bee done without assent of Parliament. But if you looke 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 Chancellour and Treasurer who demanded reliefe of the people for the King, both for payment of his debts, and for his yeerly livelihood, 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 was more than his yeerly reve­nue by 19000. pounds yeerly: so if ever there was cause to put a King to his shifts, it was then; yet wee 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 alleaged why they were not able to reteine the King, gave this for one, that they had so often granted him tonnage and poundage upon mer­chandises, by which it appeareth hee tooke nothing of merchants by imposition without grant, for if he had, no doubt they would not have stucke to have put him in minde of it. But I pray consider what became of this mo­tion of the Chancellour and Treasurer: the proposition had depended in Parliament many yeeres; the effect was, the people intreated the King to resume all grants he had made from the beginning of his Raigne untill that time, [Page 49]being the twenty eight yeare of his raigne, excepting such as were made upon consideration valuable, that he might so enable himselfe by that meane by which he had impo­verished himselfe and the whole Kingdome: This tooke effect, and the Statute of Resumptions was thereupon made the same yeare, which Record because it is not in print, and declareth these things with great gravity and authority: I will set downe the very text of it, so much as is materiall to our purpose.

Prayen your Commons in this your present Parliament assembled to consider, 28. H. 6. Stat. de Resump. in­turri Lond. not printed. That where your Chancellor of your Realme of England, your Treasurer of England, and many other Lords of your Councell, by your high Commande­ment 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 yearely va­lue was but 5000. l. And forasmuch as this 5000. l. to your high and notable State to be kept, and to pay your said debts, will not suffice: therefore that your high Estate may be relieved. And furthermore it was declared, that your expences necessary to your houshold without al other ordinary charge came to 24000. l. yearely, which exceed­eth every yeare in expence necessary over your livelihood 19000. l. Also pleaseth it your highnesse to consider, that the Commons of your said Realme be as well willing to their power, for the releeving of your Highnesse, as ever was people to any King of your Progenitors that ever raigned in your said Realme of England: but your said Commons been so impoverished, what by taking victuall to your houshold, and other things in your said Realme, and nought paid for it, and the quinzime by your said Com­mons so often granted, and by the grant of tunnage and poundage, and by the graunt of Subsidie upon Woolls, and other graunts to your Highnesse, and for lack of execution of justice, that your said poore Commons be full nigh de­stroyed, [Page 50]and if it should continue longer in such great charge, it could not in any wise be had, ne borne: where­fore pleaseth it your Highnesse the premisses graciously to consider, and that ye by the advice and assent of your Lords Spirituall and Temporall, and by the authority of this your present Parliament, for the consideration of your high Estate, and in comfort and ease of your poore Commons, would take, resume, seise and retaine in your hands and possession all honours, &c.

This was very plaine dealing by the people with their King, and this is the successe of the demaund of supply and support had in those daies, being required in point of gra­tification, without any recompence or retribution for it. Thus then wee have cleared this point, that betweene 50. E. 3. and 4. Mariae, there was not one imposition fet without assent of Parliament.

Queene Mary in the fourth yeare of her raigne, upon the wars with France, set an Imposition upon Clothes for this consideration, that the custome of Woolls was decayed, by reason for the most past they were made into Clothes, which affoorded little custome; for that which in Wooll, paid for custome and subsidie 40. s. made into Cloath paid but 4. s. 4. d. To recompence this by an indifferent equa­lity, there was set upon a Cloath 5. s. 6. d. which imposi­tion did not make up the losse sustained in the custome of Wooll, by 13. s. 4. d. in 40. s. This was Iustum, but not Iustè. This religious Prince invironed with infinite trou­bles in the Church and Common-wealth, and much impo­verished by her devotion, in renouncing the profits of the Church lands that were in the Crowne by the suppression, was the first that made digression from the steps of her worthy Progenitors, in putting on that imposition without assent of Pasliament; for that very consideration of the losse of custome, by turning of Wooll to Clothing, came into treatie in the 24. yeare of E. 3. when the art of clothing began first to be much practised in this Kingdome, and then [Page 51]in the recompence of the losse so sustained in the decay of custome of Woolls, there was set upon a Cloath by act of Parliament above the olde custome, 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. [...] origin. Orig. in Scacc. 48. E. 3. Ro. 2. R. Thes. 1. El. Dyer so. 165. But I pray you examine how this imposition of Queen Mary was digested by the people. We see in the Case in my Lord Dier 1. Eli. fo. 165. that the Merchant found great griefe at it, and made exclamation and suit to Q. Eliz. to be unburdened of it: The very reason of their griefe expressed in that case is, because it was not set on by Parliament, but by the Queenes 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 Queene might set on this imposition without as­sent of Pailiament: 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 bee speedily published, and it were indiscretion to conceale 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 Queene Mary upon restraint of bringing in of French commodities occasioned by the then wars with France, set an imposition upon Gascoigne Wines, which continueth yet: So the kingdome of England by the injustice of that Prince was clogged with those two heavy impositions contrary to the right of the Kingdome, and the acts of her Progenitors.

Queene Elizabeth set on that upon sweet Wines, which grew also upon the occasion of the troubles with Spaine. That upon Allome was none, it was rather a Monopolie to Master Smith the Customer of London, for the ingrossing [Page 52]of all Allomes into his owne hands, for which priviledge he gave a voluntary imposition upon that commodity: It was like the priviledge granted to Iohn 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 expresse, they are set downe particularly in the booke 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 booke bearing date 28. [...]uln 6. Iacobi will instruct you sufficiently in that point; they be limited to the King, his heires 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 Realme, upon Wares and Merchandizes exported and imported, which is an im­position by act of Parliament, and as it will appeare, was given out of the peoples good will, as a very gratification to the King, to enjoyne 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 yeares, with expresse caution how the money strould be bes [...]owed, As towards the defence of the Seas, protection of traffique, or some such other publique causes: sometimes speciall sequestrators made by the act of Parlia­ment, by whose hands the money should be delivered, As 5. 5. R. 2. Rot. Parl. 7. R. 2 n. 13.10. R. 2. n. 12. 7. R. 2. n. 12. R. 2. cap. 3. in a printed Statute. The rates that were given were very variable, sometimes ii. s. tunnage and vi. d. poundage, as 7. R. 2. iii. s. tunnage, and xii. d. poundage, 10. R. 2. which grants were not to endure the longest of them above a yeare, xviii. d. tunnage, vi. d. poundage, in [Page 53]17. R. 2. iii. s. tunnage, and xii. d. poundage granted to H. 4. in the thirteenth yeare of his raigne for a certaine time, in which Statute there is this clause, That this aide in time to come should not be taken an example to charge the Lords and Commons in manner of Subsidie, unlesse 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 betweene the King and his people in Parliament, that he should not from thenceforth, nor any of his Successors set on impositions without assent of Parliament. The like imposition was granted to H. 5. Rot. parl. 1. H. 5. n. 17. in the first yeare of his raigne for a short time towards the defence of the Realme, and safeguard of the Sea upon con­dition expressed in the act, that the Merchants Denizens, and estrangers comming into the Realme with their Mer­chandizes, should be well and honestly used and handled, paying the said Subsidie as in the time of his Father, and his noble Progenitors Kings of England without oppressi­on, or extortion: In the end of which act the Commons protested, being bound by any grant in time to come, for the purposes aforesaid.

H. 6. in the one and thirtieth yeare of his raigne, Rot. parl. 31. H 6. 12. E. 4. c. 3. 6. H. 8. c. 12. 1. E. 6. c. 13. 1. Ma. c. 18. 1. El. c. 19. 1. Iac. c. 33. had tunnage and poundage given him for his life. E. 4. had it given him the third yeare of his raigne, as it appeareth in a Statute 12. E. 4. cap. 3. H. 8. in the sixth yeare of his raigne, and all since in the first yeare of their raignes have had it given them for terme of their life, and being now so certainly setled in it, do reach further at that frō which they are in conscience and honour excluded by this voluntarie gratification: For can any man give me a reason, why the people should give this imposition of tunnage and poundage above the due custome upon all commodities, if the King by his prerogative might set on impositions without assent of Parliament; and were not that a wea [...]e action in a King, to take that of his people as a benevolence [Page 54]from them, with limitation of the same, and in what it should be imployed, 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 in­combrances.

The Statute of tunnage and poundage made in our times that are altogether inclined to flattery, doe yet retaine in them certain shewes and rumors of those ancient liberties, although indeed the substance be lost, as in the Srat. 1. lac. cap. 1. Iac. c. 33. 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 highnesse, that all Merchants, as well Denizens as Strangers comming into this Realme, be well and honest­ly intreated and demeaned for such things whereof Subsi­die 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 be laid upon Merchants besides these gi­ven by this Statute, and this intention hath been well in­terpreted by use and practise from the time of E. 3. to the time of Queene Mary, as before is declared.

Thus much of this last reason made from observation, and the action of our Nation. I will answer now such maine 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 Royall hath the custodie of the Havens and Ports of this Island, being the very gates of this Kingdome; that he in his royall function and office is only trusted with the keyes of these gates; that he alone hath power to shut them, and to open them when, and to whom he in his Princely wisdome shall see good: that by the Law of England he may restraine the persons of any [Page 55]from going out of the Land, or from comming into it: That he may of his owne power and discretion prohibite exportation and importation of goods and merchandizes; and out of this prerogative and preheminence, the power of imposing, as being derivative, doth arise and result, For Cui quod maius est, licet, & ei quod est minus licitum est: So their reason briefly is this, the King may restraine the pas­sage of the person, and of the goods; therefore he may suffer them not to passe, 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 premisses are of a power in the King only fiduciary, and in point of trust and government, the conclusion inferres a right of interest and gaine; Admit the King hath Custodiam portuum, yet hee 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 gaine and benefit by it: The one is protection, the other is expilation. Portus sunt Publici. The Ports in their owne nature are publike free for all to goe in and out, yet for the common good, this liberty is restrainable by the wisdome and policy of the Prince, who is put in trust to discerne the times when this naturall liberty shall be restrained. In 1. H. 7. fo. 10. 1. H. 7.10 in the case of the Horentines for their Allome, the Lord chiefe Justice Hussey 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 Councell (as the booke saith) before the Lords and Judges that he should not have licence to come into England un [...]esse he would take an oath at Calice, that he would bring nothing with him that should be prejudiciall to the King and his Crowne.

The King by the Common Law may send his Writ, Ne exeas regnum to any subject of the Realme, but the sur­mise of the Writ is, Quia datum est nobis intelligi, quod tu versus partes exteras abs (que) licentia nostra clam destinas te di­vertere, & quamplurima nobis & coronae nostrae preiudicia pro­sequi, Fitzh. N. B. 85. b. Fitzh. N. B. 85. b. So in point of government, and Common good of the Realme, he may restraine the per­son: but to conclude, therefore he may take money; not to restraine, is to sell government, trust, and common justice, and most unworthy the divine office of a King. But let us compare this power of the King in forraigne affaires, with the like power he hath in Domestique government. There is no question but that the King hath the custodie of the gates of all the Townes 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 sicknesse 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 Townes in this Kingdome to any great Faire or Mart, Shall he therefore restraine the bringing of Goods thither unlesse money be given him by way of imposition?

The King in his discretion in point of equity, and for qualifying the rigour of the Law, may enjoyne any of his Subjects by his Chauncellor from suing in his Court of Common Law: May he therefore make a benefit by re­straining all from suit in his Courts, unlesse they pay him an imposition upon their suits? 2. E. 3.7. In 2. E. 3. in the case of the Earle 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 se­verail Ports, great Yarmouth, little Yarmouth, and Gerne­ston should arrive all at great Yarmouth, and at no other [Page 57]place within that Port. The lawfulnesse of this Patent be­ing in question in the Kings Court, it was reasoned in the Kings behalfe for the upholding of the graunt, as it is now, that the King had the custodie of the Port, he might restrain Merchants from landing at all in his Kingdome: There­fore out of the same power might appoint where, and in what Haven they should land, and in no other; This 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 graunts.

The Presidents that were vouched for maintenance of this power of restraint in the King, were foure, produced almost in so many hundred yeares, Rot. parl. 2. E. 1. n. 16. Rot. fin. 2. E. 1. n. 17. Rot. claus. 10. E. 3. dor. 31. Rot. claus. 17. H. 6. in dors. whereof two were in the second yeare of E. 1. one in the tenth yeare of E. 3. another in the seventeenth yeere of H. 6. since which time wee heare of none but by Act of Parliament, as they had beene 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 practise of the Com­mon-wealth. The restraint in the time of E. 1. the one of them was to forbid the carrying of wooll out of the Realme, the other was to forbid all Traffique with the Flemings. That of 10. E. 3. was to restraine the expor­tation of ship-timber out of the Realme. 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 Com­mon-wealth; for the rule of Common law in this case, I take it to bee as the reverend Judge Sir Anthony Fitz­herbert holds it in his writ of Ne exeas regnum in Na. Br. Fitzh. N. B. 85. that by the Common law any man may goe out of the Kingdome, but the King may upon causes touching the good of the Common-wealth restraine any man from go­ing by his Writ or Proclamation, and if hee then goe, it is [Page 58]a contempt. This opinion of his is confirmed by the booke, Dier. 1. El. 165. Dier. 13. El. 296. 1. Eliz. fol. 165. Dier. 12. & 13. Etiz. Dier. 296. In like manner if a subject of England be beyond sea, and the King send to him to repaire home, if hee doe it not, his lands and goods shall bee seised for the contempt, and this was the case of William de Brittain E. of Richmond. 19. E. 2. 19. E. 2. Hee was sent by the King into Gascoine on a message, and refused to returne, 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. Ph. & M. in my L. Dier. fol. 128. B. and the law there held to bee so at that time upon a question moved in the Queenes behalfe against divers that being beyond the seas refused to re­turne upon commandment sent unto them to that pur­pose: the same is againe for law confirmed in the Dut­chesse of Suffolke, Dier. 2. El. 176.5. R. 2. cap. 2. case 2. Eliz. Dier. 176. but the Com­mon law was altered in this point by the statute of 5. R. 2. cap. 2. by which the passage of all people is defended that they may not goe without licence except the Lords and other great men of the Realme, merchants, and soul­diers: so for the merchants which are the people dealt withall in the businesse in hand, the Common law re­maineth as it was before the statute, and so it was held, 12. Dier. 12. El. 196. El. Dier. 196. where the case was, An English mer­chant being a Papist went over sea, and being there, did settle himselfe to remaine there for enjoying the free­dome of his conscience: it was moved here in England, that his going without licence should bee a contempt, be­cause hee 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 goe out of the Kingdome when hee would, and therefore the secret intent of his going was not to bee enquired after, Sed lex inspicit quod vertsimilius. Therefore it was in this case held no contempt, but at this day the law is as it was [Page 59]before, 5. R. 2 cap 2. for that statute is repealed 4. Iac. 4. Iac. cap. 1. cap. 1. And all men whatsoever are now at liberty by the Common law to passe out of the Realme. There is one­ly against this inconvenient liberty a Proclamation dated at Westminster. 9. Iul. 5. Iac. Proclamati [...]. 9. lul. 5. Iac. To the very same effect in point of restraint of passage with the statute of R. 2. So the subject is in this much the more at ease and liberty than he was before: that his going over sea without li­cence doth not induce any forfeiture, but onely incurreth the censure of a contempt, and therefore it were to bee wished that some firme law might bee made in the case both for the execution of so good a point of policy, and for the more quiet of the State, in knowing the certainty of the punishment for the offence.

This liberty and freedom of merchants hath been streng­thened and confirmed by many notable lawes before reci­ted, as 14. E. 3. st. 2. c. 2.15. E. 3 st. 2. c. 5.18. E. 3. st. 1. c. 3. 14. E. 3. st. 2. c. 2.15. E. 3. st. 2. c. 5. 18. E. 3. st. 1. c: 3. and di­vers other, and therefore though it bee admitted that the King may restraine persons and goods, yet it may well bee denied, that he hath power of himself alone without assent of Parliament simply and indefinitely to restraine all traf­fique in generall, or to shut up all the havens and ports, and to barre the vent and issuing of wares and merchandises of the whole Kingdome, as appeareth plainely that this hath been done this three hundred yeersor near thereabouts by Act of Parliament onely, and that the Kingdome of England made this matter of Traffique so tender a case to deale in, as that it hath ever held it a matter fit for the consultation of the great Councell of the Kingdome, and for no other.

In 11. E. 3. 11. E. 3. cap. 1. the exportation of wools was prohibited by Act of Parliament, in which statute there was this clause, untill that by the King and his Councell it bee thereof otherwise provided: which power so given to the King to be used for the good of the Common-wealth gave oc­casion to him to abuse it to his profit and commodity by giving licences of transportation to all that would give [Page 60]fourty shillings upon a sacke of wooll above the due Cu­stome. This appeareth in the Records in the Exchequer, 13. 13. E. 3. R. Thes. rot. 2. E. 3. Rot. 2. Ram. Thes. I will describe the Record that you may perceive the ground of it the better, Rex colle­ctoribus Cu [...]tumae in portum [...]gnae Iermouth salutem. Quia con­cessimus dilecto & fidel [...]nostro Hugoni de Wriothsley, quod ipse viginti & saptem saccos [...]anae & demid. de lanis suis propriis in portu prae dicto cariare & eas us (que) Antwerpe ad stapulam nostram ibidem ducere possit, solvendo ibidem dilecto clerico nostro Wil­lielmo de Northwell custodi guarderobae nostrae 40. s. pro quoli­bet saoco pro custuma & subsidio inde nobis debitis, &c. vobis mandamus quod praedict. Hugon. dictos viginti septem saccos lanae & dimid. in portu praedicto cartare permittatis, &c. And another the same yeere. 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 custod [...] mandavimus ape­riretur, & apertum teneretur, ideo vobis mandavimus quod si­gillum praedictum in portu praedicto aperiri, & apertum teneri faciatis, & omnes illos qui hujusmodi lanas cariare & ducere velint permittatis, receptis prius ab iisdem. viz. de mercatoribus & aliis indigenis 40. s. de quolibet saeco [...]anae. Divers other such sales of traffique occasioned by this parliamentary restraint were made betweene 11. 14. E. 3. st. 2. c. 2. 15. E. 3. c. 5. st. 2. E. 3. that the restraint was made, and 14. E. 3. that this inconvenience being espied, the sea was opened by statute, and the restraint re­moved 14. E. 3. stat. 2. cap. 2. 15 E. 3. cap. 5. star. 2. And this fourty 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. 14. E. 3. ce. 21. st. 1. stat. 2. cap. 1. 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 traffique was done by Act of Parliament.

I will give one instance in the Raigne of every King, 5. R. 2. c. 2. st. 2. 5. R. 2. cap. 2. stat. 2. For the passage of wooll, wool-fells, and [Page 61]leather, 6. H. 4. cap. 4. 6. H. 4. c. 4. 2. H. 5. c. 6. st. 2. For the traffique and commerce with merchants aliens, 2. H. 5. cap. 6. stat. 2. For the re­straint of staple commodities to places certaine, and for the traffique of the merchants of the west, 27. H. 6. cap. 1. 27. H. 6. cap. 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 traffique of the English Nation was restrained, that therefore the Englishmen should not traffique with the subjects of the Duke of Burgundy. 4. E. 4. cap. 1. 19. H. 7. cap. 21. The same thing enacted upon the like occasion 4. E. 4. c. 1.19. H. 7. c. 21. the importa­tion of divers commodities forbidden as being prejudiciall to the manufactures within the Realme. 6. H. 8 cap 12. 6. H. 8. cap. 12. The exportation of Norfolk woolls out of the Realme forbidden. 26. H. 8. cap. 10. 26. H. 8. ca. 10. Power is given to the King to order and dispose of the traffique of merchants at his pleasure, and the reason is given, because otherwise the leagues and amities with forreigne Princes might bee im­peached by reason of restraint made by divers statutes then standing on foote, whereby it appeareth that it was not then taken to bee law, that the King had an absolute power in himselfe to order and dispose of the course of traffique without helpe of a statute. 2. E. 6. cap. 9. 2. E. 6. cap. 9.1. & 2. P. & M. c. 5. Ex­portation of leather restrained. 1. & 2. Ph. & Ma. The exportation of herring, butter, cheese, and other victuals forbidden. 18. Eliza. cap. 8. the exportation of tallow, 18. El. cap. 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 doe so earnestly urge this argument, (the King may restraine traffique, therefore may impose,) to prove better then they have done, that the King may restraine traffique of his owne absolute power: for as the naturall policy and constitution of our Common-wealth is, wee may better say, that is law which is de more gentis, then that which floweth from the reason of any man guided by his [Page 62]generall notion and apprehension of power regall in ge­nere not in individuo.

The last assault made against this right of the Kingdome was an objection grounded upon policy, and matter of State, as that it may so fall out that an imposition may beset by a forreigne Prince that may wring our people, in which case the counterpoise is, to set on the like here upon the subjects of that Prince, which policy if it be not speedily executed, but stayed untill a Parliament, may in the meane time prove vaine and idle, and much damage may bee su­stained that cannot afterwards be remedied.

This straine of policy maketh nothing to the point of right; our rule is in this plaine Common-wealth of ours, Oportet neminem esse sapientiorem legibus: if there bee an inconvenience, it is fitter to have it removed by a lawfull meanes, than by an unlawfull: but this is rather a mis­chiefe than an inconvenience, that is a prejudice in pre­sent to some few, but not hurtfull to the Common-wealth: and it is more tolerable to suffer an hurt to some few for a short time, than to give way to the breach and violation of the right of the whole Nation: for that is the true in­convenience, neither need it bee 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 bee the example of our ancestours in this very case, and that in the time of one of the most politique Princes that ever reigned in this Kingdome. 7. H. 7. cap. 7. 7. H. 7. 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 Malmeseyes at Candy foure duckets of gold upon a But, which in sterling was eighteene shillings the But. It was therefore enacted that every merchant stranger that brought Malmesey into this Kingdome should pay eigh­teene shillings the But over and above the due Custome used, this imposition to indure untill they of Venice had set aside that of foure duckats the But upon the English­men.

Much hath beene learnedly uttered upon this argument in the maintenance of the peoples right, and in answering that which hath beene pressed on the contrary, but my meaning is not to expresse in this discourse all that hath or may bee said on either side, but onely to make a remem­brance somewhat larger of that which I my selfe offered as my symbolum towards the making up of this great rec­koning of the Common-wealth, which if it bee not well audited, may in time cost the subjects of England very deare. My hope is of others that laboured very worthily in this businesse, that they will not suffer their paines to die, and therefore I have forborne to enter into their pro­vince. I will end with that saying of that true and honest Counsellour Philip Comines in his 5th. booke the 18. chap. That it is more honourable for a King to say, Ph. Comines l. 5. c. 18. I have so faith­full and obedient subjects, that they deny me nothing I demand, than to say, I levie what me list, and I have priviledges so to doe.