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some things requisite in the manner of the levy for the better strengthening of the same, which percase could not be done without Parliament; as the taking the oath of the party touching the value, the inviting of the discovery of concealment of custom by giving the moiety to the informer, and the like.
Now in special for the statutes of subsidies of Tonnage and Poundage, I note three things. First that the consideration of the grant is not laid to be for the restraining of impositions; but expressly for the guarding of the sea. Secondly that it is true that the ancient form is more peremptory, and the modern more submiss; for in the ancient form sometimes they insert a flat condition that the King shall not further impose; in the latter they humbly pray that the merchants may be demeaned without oppression, paying those rates; but whether it be supplication or whether it be condition, it rather implieth the King hath a power; for else both were needless, for conditio annectitur ubi libertas præsumitur, and the word oppression seemeth to refer to excessive impositions. And thirdly, that the statutes of Tonnage and Poundage are but cumulative and not privative of the King's power precedent, appeareth notably in the three pence overplus, which is paid by the merchants strangers; which should be taken away quite, if those statutes were taken to be limitations; for in that, as was touched before, the rates are equal in the generality between subjects and strangers, and yet that imposition, notwithstanding any supposed restriction of these acts of Subsidies of Tonnage and Poundage, remaineth at this day.
The sixth consideration is likewise of an objection; which is matter of practice. Viz. that from R. II.'s time to Q. Mary, which is almost 200 years, there was an intermission of impositions, as appeareth both by records and the custom-books.
To which I answer; both that we have in effect an equal number of years to countervail them, namely, 100 years in the times of the three kings Edwards, added to 60 of our last years; and extrema obruunt media; for we have both the reverence of antiquity and the possession of the present times, and they but the middle times; and besides, in all true judgment there is a very great difference between au usage to prove a thing lawful, and a non-usage to prove it unlawful. For the practice plainly implieth consent; but the discontinuance may be either because
it was not needful though lawful, or because there was found a better means, as I think it was indeed in respect of the double customs by means of the staple at Calais.
Here the manuscript ends, but without any appearance of being finished. Of the rest we know nothing beyond what may be gathered from the following notes; which seem however to have been taken down by an ear witness, and if taken as carefully as the notes by the same hand of the part which we have just read, may be trusted as giving the heads of the argument; and lawyers may perhaps be able to supply the connexion.
Ob. No mention of his power in Prærogativa Regis, Bracton, Bryton, or other authors.
Sol. Case de Mynes. The King hath many prerogatives not mentioned in that statute.
Jus. Publicum-frequent in writers.
Imperii-rare to be found.
Ob. An aspersion drawn from the proceedings against the Lord Latimer.
Sol. He ransacked the people; took interest of the King for his own money. They did this of their own authority, and no sentence against Lyons till the King had disavowed him.
Ob. The King's power is restrained by Acts of Parliament. Sol. Those statutes of 2 natures.
1. That the King shall not impose.
2. The second sort make open trade.
Those that be expressly restrictive :-Magn: Ch: 25 Ed. 1. 7. the male toll of the wools of 40s. per pack and such other should be no more taken, but the 6th chapter extends to taxes and tallages. Only within land.
Wool or such things, i. e. woolfells and leather, and no other things protected by 14 E. 3 cap. 21, made upon a petition which was made of 5 things; wools, fells, leather, lead, tin.
The King grants mitigation for the 3-wool, fells, and leather; but for lead and tin he would not hear of it.
So 45 E. 3, 4, et 11 R. 2, cap. 9. The King binds his power to impose only upon those three commodities. So these statutes apply the words "such things" to those three things.
The statutes of free trade make nothing. 15 E. 3 cap. 5 says there shall be free trade; but that is according to the statute of 14 E. 3 cap. 2, and the words of that law was, paying the subsidies and customs and other reasonable profits. Reasonable, i. e. not certain, but arbitrary and uncertain; which must needs be meant of impositions.
Many authorities that Kings shall not be bound by general General words. Samson not to be bound by cobwebs but by cords. words, Lord Barkley's case; the King bound to give an addition, because indictment is named.
9 E. 3, et 25 E. 3, 22 R. 2, H. 4; all statutes of open trade directly levied1 to the intrusions of corporations; not to be extended to the King's power, for that were aliud agere than the law-makers intended.
Ob. The King may not impose but upon a restraint by Parliament.
Sol. Then it follows that if the King have power to restrain without act of Parliament, he may impose during the restraint. And that he may restrain proved by the 4 mentioned by Mr. Jones.
Imposition of wines during a restraint by Parliament. No judgment to overthrow the King's power, but on the other side.
1. Eliz. The imposition of cloth held good because it succeeded wool. But the judges makes no mention of that reason. But their reason was because the King might restrain the person. He hath claves regni.
No difference between the person and the goods: corpus supra vestimentum. Will you force him to trade by factor?
2. A second judgment, 1 Eliz. Germyn Cyall, a Dutchman, who had a licence 1o Mary to trade, notwithstanding any restraint or proclamation made or to be made. He pleaded his licence, and so it was adjudged against the Queen. [But the matter was judged for the Queen2].
3. Sir Jo. Smith's case. Imposition of allum, 3s 4d per kyntall. Judgment could not be given against Smyth, if the imposition had not been lawful.
2. Bates' case.
2 judgments by way of admittance, and 1 expressly in the point.
As posteriores leges priores abrogant, so new judgments avoid the former. The records reverent things, but like scarecrows.
The Common Law.
The reason for the imposition is, whatsoever concerns the government of the kingdom as it hath relation to foreign partsthe law hath reposed a special confidence in the King. The law cannot provide for all occasions.
The law doth repose no greater confidence in the King in this than in other things; pardoning of offenders, dispensing of laws, coin, war.
Though you have no remedy by law, yet you may complain in Parliament, as your ancestors have done, by petition. And God and nature hath provided a remedy. Custom like an ivy which grows and clasps upon the tree of Commerce.
The King shall judge of the time to impose. But the measure and excess the judges will moderate.
Noted that Christ wrought no miracle touching money but once, and that was when question was of tribute money.
So he wisheth that for this sea-penny (for it is no land-penny), if it be due to Cæsar wel may have it. But if not, that we may lose net and labour and all.2
The following note in Dudley Carleton's hand belongs apparently to this debate; at what period in it I cannot determine. But if Bacon made any reply to Whitelock's speech, which was delivered on the 2nd of July3—and it is not unlikely that he did, though Mr. Gardiner's manuscript has no indication of it-this is probably a note from it.
Touching the grievance of increase of Customs.
Mr Sollicitor at the Committee
All the Statutes alleged by Mr Whitlock against increase of Customs answered by a distinction of Port duties and Land duties.
1 'Wee' in MS. in both places. If it be the right word Bacon must have been speaking in the person of the King's Counsel. But I think it should be 'he' in both places-i. e. the King himself.
Addl. MSS. 4210, f. 56 b. Parl. Deb. 1610, p. 69.
3 Parl. Deb. 1610, p. 103. C. J. p. 445.
The King hath claves maris, not claves terræ.
The end of the
1. The ancient sustentation of the Crown.
2. The King's guarding of the sea for security of merchants.
3. Policy of trade, to do in that case as strangers do, and if they impose to reimpose
as occasion serves.
Many things there are in the King's power which we must trust the King withal, as the making of war and peace, which it is presumed he will not do but for the good of his subjects, pardoning of felons, etc. whom though the King may generally pardon, yet we are to repose trust in him that he will not do it.1
"All this debate" (says Carleton writing to Sir Thomas Edmunds) was at Grand Committees, the Speaker being in the House but not in his chair; and when the powder was all spent on both sides, we grew in the end to this peaceable conclusion,-not to put the question of the right, to condemn thereby the judgment of the Exchequer in the matter of currants: whereof all this is the consequence: but to frame a petition by way of grievance implying the right, though not in express terms; which was accordingly done.”2
The conclusion therefore, whatever may be thought of the arguments, was in accordance with Bacon's motion, who had from the beginning, as we have seen, advised this very course; and was presently to be employed in presenting the petition itself.
The result then of this long debate was the appointment of a Committee (3 July) "to consider of the frame of a petition to be offered to the King touching Impositions." But in the meantime the question of Support had been reopened and made a step in advance. In a conference between the two Houses on the 26th of June, Salisbury had informed the Committee of the Commons how much the King would now consent to abate of his former demand for the concessions proposed: he would take for them 140,000l. per
1 State Papers, James I. Domestic. Vol. 56.
2 Carleton to Edmunds, 13 July 1610.
3 C. J. p. 445.
Add. MSS. 4176, f. 87.