12 H. 4. 13 H. 4.

40 Assis.

2 Eliz. Scrogg's

case.

43 Eliz.

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 anything 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 too 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.

As in the case of an imposition upon linen cloth for the alnage; overthrown by judgment.

The case of a commission of arrest and committing of subjects upon examination without conviction by jury, disallowed by the Judges.

A commission to determine the right of the exigenter's place, secundum sanam discretionem, disallowed by the judges.

The case of the monopoly of cards, overthrown and condemned by judgment.

I might make mention of the jurisdiction of some courts of discretion, wherein the Judges did not decline 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.

:

The second consideration is the force and continuance 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 succession, neither can the major part bind the residue: how then should their grants have force? No otherwise 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 concurrence, 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.

mercatoria.

Now if any man doubt that such grants of merchants should not be of force, I will allege 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. mer- 31 Ed. 1. cator., of three pence in value ultra antiquas custumas; which Chart. 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, 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 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.

For the merchants English, take the notable record in 17 17 Ed. 3. E. III. where the commons complained of the forty shillings

VOL. IV.

say

upon the sack of wool as a mal-toll set by the assent of the merchants without consent of Parliament; nay, they dispute and 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 impose.

The third consideration is of the first and most ancient 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. Dier's opinion was that the ancient custom for exportation was by the common laws; and goeth furder, that that ancient custom was the custom upon wools, woolfells, and leather. He was deceived in the particular, and the diligence of your search hath revealed it; for that custom upon those 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 presupposeth 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 Dier, 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?

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 specially the nature of the King's answers. For the petitions I note two things. First, that to my remembrance there was never any petition made for the revoking of any imposition upon foreign merchants only. It pleased the Decemviri in 5 E. II. to deface chart. mercator. and so the imposition upon strangers, as against law. But the opinion of these reformers I do not much trust, for they of their gentleness did likewise bring in doubt the demy-mark, which it is manifest was granted by Parliament, and pronounced by them the King should have it, s'il avoit le doit. But this is declared void by 1 E. III. which reneweth chart. mercator.; and void must it needs be, because it was an ordinance by commission only, and that in the time of a weak king, and never either warranted or confirmed by Parliament. Secondly I note that petitions were made promiscuously for taking away impositions set by Parliament as well as without Parliament; nay that very tax of the neufiesme, the ninth sheaf or fleece, which is recited to be against the King's oath and in blemishment of his crown, was an Act of Parliament, 14 E. III. So then to infer that impositions were against law because they are taken away by succeeding Parliaments, it is no argument at all; because the impositions set by the Parliaments themselves, which no man will say were against law, were nevertheless afterwards pulled down by Parliament. But indeed the argument holdeth rather the other way, that because they took not their remedy in the King's courts of justice, but did fly to the Parliament, therefore they were thought to stand with law.

Now for the King's answers: if the impositions complained of had been against law, then the King's answer ought to have been simple, tanquam responsio categorica, non hypothetica; as Let them be repealed, or Let the law run: but contrariwise they admit all manner of diversities and qualifications: for Sometimes the King disputeth the matter and doth nothing; as 17 E. III.

Sometimes the King distinguisheth of reasonable and not reasonable, as 38 E. III.

Sometimes he abolisheth them in part, and letteth them stand

in part, as 11 E. II. the record of the Mutuum, and 14 E. III. the printed statute whereof I shall speak more anon. Sometimes that no imposition shall be set during the time that the grants made of subsidies by Parliament shall continue, as 47 E. III.

Sometimes that they shall cease ad voluntatem nostram : And sometimes that they shall hold over their term prefixed or asseysed.

All which sheweth that the King did not disclaim them as unlawful, for Actus legitimus non recipit tempus aut conditionem ; if it had been a disaffirmance by law they must have gone down in solido, but now you see they have been tempered and qualified as the King saw convenient.

The fifth consideration is of that which is offered by way of objection; which is, first that such grants have been usually made by consent of Parliament; and secondly that the statutes of subsidies of Tonnage and Poundage have been made as a kind of stint and limitation, that the King should hold himself unto the proportion so granted and not impose further; the rather because it is expressed in some of these statutes of Tonnage and Poundage, sometimes by way of protestation and sometimes by way of condition, that they shall not be taken in precedent, or that the King shall not impose any further rates or novelties, as 6 R. II. 9 R. II. 13 H. IV. 1 H. V. which subsidies of Tonnage and Poundage have such clauses and cautions.

To this objection I give this answer. First that it is not strange with kings, for their own better strength and the better contentment of their people, to do those things by Parliament, which nevertheless have perfection enough without Parliament. We see their own rights to the crown which are inherent, yet they take recognition of them by Parliament. And there was a special reason why they should do it in this case, for they had found by experience that if they had not consent in Parliament to the setting of them up, they could not have avoided suit in Parliament for the taking of them down. Besides there were

1 So MS.