THE KING'S RIGHT OF IMPOSITIONS ON MERCHANDISES IMPORTED AND EXPORTED.*

AND it please you, Mr. Speaker, this question touching the right of impositions is very great; extending to the prerogative of the king on the one part, and the liberty of the subject on the other; and that in a point of profit and value, and not of conceit or fancy. And therefore, as weight in all motions increaseth force, so I do not marvel to see men gather the greatest strength of argument they can to make good their opinions. And so you will give me leave likewise, being strong in mine own persuasion that it is the king's right, to shew my voice as free as my thought. And for my part, I mean to observe the true course to give strength to this cause, which is, by yielding those things which are not tenable, and keeping the question within the true state and compass; which will discharge many popular arguments, and contract the debate into a less room.

Wherefore I do deliver the question, and exclude or set by, as not in question, five things. First, the

*This matter was much debated by the lawyers and gentlemen in the parliament 1610, and 1614, etc. and afterwards given up by the crown in 1641.

question is de portorio, and not de tributo, to use the Roman words for explanation sake; it is not, I say, touching any taxes within the land, but of payments at the ports. Secondly, it is not touching any impost from port to port, but where claves regni, the keys of the kingdom, are turned to let in from foreign parts, or to send forth to foreign parts; in a word, matter of commerce and intercourse, not simply of carriage or vecture. Thirdly, the question is, as the distinction was used above in another case, de vero et falso, and not de bono et malo, of the legal point, and not of the inconvenience, otherwise than as it serves to decide the law. Fourthly, I do set apart three commodities, wools, wool-fells, and leather, as being in different case from the rest; because the custom upon them is antiqua custuma. Lastly, the question is not, whether in matter of imposing the king may alter the law by his prerogative, but whether the king have not such a prerogative by law.

The state of the question being thus cleared and freed, my proposition is, that the king by the fundamental laws of this kingdom hath a power to impose upon merchandise and commodities both native and foreign. In my proof of this proposition all that I shall say, be it to confirm or confute, I will draw into certain distinct heads or considerations which move me, and may move you.

The first is an universal negative: there appeareth not in any of the king's courts any one record, wherein an imposition laid at the ports hath been overthrown by judgment; nay more, where it hath been questioned by pleading. This plea, quod summa prædicta minus juste imposita fuit, et contra leges et consuetudines regni hujus Angliæ, unde idem Bates illam solvere recusavit, prout ei bene licuit; is primæ impressionis. Bates was the first man ab origine mundi, for any thing that appeareth, that ministered that plea; whereupon I offer this to consideration: the king's acts that grieve the subject are either against law, and so void, or according to strictness of law, and yet grievous. And according to these several natures of

grievance, there be several remedies: Be they against law? Overthrow them by judgment: Be they top strait and extreme, though legal? Propound them in parliament. Forasmuch then as impositions at the ports, having been so often laid, were never brought into the king's courts of justice, but still brought to parliament, I may most certainly conclude, that they were conceived not to be against law. And if any man shall think that it was too high a point to question by law before the judges, or that there should want fortitude in them to aid the subject; no, it shall appear from time to time, in cases of equal reach, where the king's acts have been indeed against law, the course of law hath run, and the judges have worthily done their duty.

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As in the case of an imposition upon linen cloth 12 H. 4. for the alnage; overthrown by judgment.gentia Hao 13 H. 4. The case of a commission of arrest and committing 40 Assis. of subjects upon examination without conviction by jury, disallowed by the judges.

A commission to determine the right of the exi- 2 Eliz. genter's place, secundum sanam discretionem, disal- Scrogg's lowed by the judges. hot

case.

The case of the monopoly of cards overthrown and 43 Eliz. condemned by judgment.panta on evad han di ordi

I might make mention of the jurisdiction of some courts of discretion, wherein the judges did not de cline to give opinion. Therefore, had this been against law, there would not have been altum silentium in the king's courts. Of the contrary judgments I will not yet speak; thus much now, that there is no judgment, no nor plea against it. Though I said no more, it were enough, in my opinion, to induce you to a non liquet, to leave it a doubt.ad/

FOX The second consideration is, the force and continu-
ance of
payments made by grants of merchants, both
strangers and English, without consent of parliament.
Herein I lay this ground, that such grants considered
in themselves are void in law for merchants, either
strangers or subjects, they are no body corporate, but
singular and dispersed persons; they cannot bind suc-

Chart. mercator.

cession, neither can the major part bind the residue:
how then should their grants have force? No other
wise but thus: that the king's power of imposing was
only the legal virtue and strength of those grants];
and that the consent of a merchant is but a concur-
rence, the king is principale agens, and they are but
as the patient, and so it becomes a binding act out of
the king's power.
od of dos baisero sterz

Now if any man doubt that such grants of mer chants should not be of force, I will alledge but two memorable records, the one for the merchants strangers, the other for the merchants English. That for the strangers is upon the grant of chart. merca31 Ed. 1. tor. of three pence in value ultra antiquas custumas; which grant is in use and practice at this day. For it is well known to the merchants, that that which they call stranger's custom, and erroneously double custom, ice of is but three pence in the pound more than English. Now look into the statutes of subsidy of tonnage and poundage, and you shall find, a few merchandise only excepted, the poundage equal upon alien and subject; so that this difference or excess of three pence hath no other ground than that grant. It falleth to be the ii de same in quantity, there is no statute for it, and therefore it can have no strength but from the merchants grants; and the merchants grants can have no strength -but from the king's power to impose. ab to why00

17 Ed. 3.

For the merchants English, take the notable record in 17 E. III. where the commons complained of the forty shillings upon the sack of wool as a mal-toll set by the assent of the merchants without consent of parliament; nay, they dispute and say it were hard that the merchants consent should be in damage of the commons. What saith the king to them? doth he grant it or give way to it? No; but replies upon 'them, and saith, It cannot be rightly construed to be in prejudice of the.commons, the rather because provision was made, that the merchants should not work upon them, by colour of that payment to increase their price; in that there was a price certain set upon the wools. And there was an end of that matter:

which plainly affirmeth the force of the merchants grants. So then the force of the grants of merchants both English and strangers appeareth, and their grants being not corporate, are but noun adjectives without the king's power to imposent himigood ada :The third consideration is, of the first and most an cient commencement of customs; wherein I am somewhat to seek; for, as the poet saith, Ingrediturque solo, et caput inter nubila condit, the beginning of it is obscure: but I rather conceive that it is by common law than by grant in parliament. For, first, Mr. Dyer's opinion was, that the ancient custom for exportation was by the common laws; and goeth further, that that ancient custom was the custom upon wools, woolfells, and leather he was deceived in the par ticular, and the diligence of your search hath revealed it; for that custom upon these three merchandises grew by grant of parliament 3 E. I. but the opinion in general was sound; for there was a custom before that for the records themselves which speak of that custom do term it a new custom, Alentour del novel custome, As concerning the new custom granted, etc. this is pregnant, there was yet a more ancient. So for the strangers, the grant in 31 E. I. chart. mercator. is, that the three pence granted by the strangers should be ultra antiquas custumas, which hath no affinity with that custom upon the three species, but présupposeth more ancient customs in general. Now if any man think that those more ancient customs were likewise by act of parliament, it is but a conjecture: it is never recited ultra antiquas custumas prius concessas, and acts of parliament were not much stirring before the great charter, which was 9 H. III. And therefore I conceive with Mr. Dyer, that whatsoever was the ancient custom, was by the common law. And if by the common law, then what other means can be imagined of the commencement of it but by the king's imposing? quil sdi emilemor

The fourth consideration is, of the manner that was held in parliament in the abolishing of impositions, laid: wherein I will consider, first, the manner of the petitions exhibited in parliament; and more especially