their prejudices operate. Otherwise the authority of their works might have an improper influence in settling the opinions of their readers on the controverted points of our government and constitution, and so lead to the dissemination of dangerous, and pernicious errors. The truth seems to be, that a general History of England, composed with that rigid impartiality so essential to a perfectly just idea of our constitution, is still wanting. Hitherto the best of our writers, who have engaged in that arduous task, have been betrayed into extremes. One is swayed by predilection for the Stuart family; whilst another loses his temper from Extract from Lane's Reports, page 22. AN information was exhibited against Bates, a merchant of the Levant; and it was recited, that the king by his letters patents under the great seal had commanded his treasurer, that he command the customers and receivers, that they should ask and receive of every merchant dominions, any currants, 5s. a hundred for imdenizen, who brings within any port within bis post, above 2s. 6d., which was the poundage by the statute of every hundred; and it was alledged, that Bates had notice thereof, and that he had brought in currants into the port of London, and refused to pay the said 5 s. in contempt of the king. Whereunto Bates came, adventurer and a denizen, and that he made a and said, that he is an English merchant, and Voyage to Venice, and there bought currants, cited the statute of the first of king James and imported them into England; and he recap. 33. which grants 2s. 6d. for poundage, and he said, that he had paid that, and therefore he had refused to pay the 5s. because it was imposed unjustly, and unduly against the lawes of the land; whereupon the king's attorney demurred in law. This matter hath been divers times argued at the bar, and at the bench, by Snig and Savil, barons, and now by Clark and Flemming, chief baron, whose arguments only I heard. aversion to them. Some write from favor to absolute monarchy; others are votaries to the passion of republicanism. Too many have been seduced by zeal for a particular party in the state; and so, according to the occasion, have practised the arts of apology, or adopted the severe and vehement language of satire. But the author, who wishes to fix the true point of our antient constitution in the scale of government must banish from his mind all such corruptives of judgment. "Besides the arguments by Hakewill and Yelverton, against impositions on merchandize by prerogative, there are some very forcible reasons with the same view by lord Coke in his second Institute, where he comments on the S0th chapter of Magna Charta. See 2 Inst. page 57 to 63. Some observations And Clark, who argued first this day, said, also occur on the subject in the 12th part of That this case being of so great consequence, lord Coke's Reports. But, in this latter great respect and consideration is to be had, book, he writes with more favor to the judg- would contend with the king, in this high point and it seemeth to me strange, that any subjects ment for impositions in Bates's case; for, of prerogative; but such is the kings grace, though he disclaims all idea of the crown's that he had shewed his intent to be, that this having a right to impose duties at the ports, in form of a tax and for a revenue, yet he matter shall be disputed and adjudged by us contends, that, for the benefit of the subject, the realm; and because that the judgment of according to the ancient law and custome of and in the way of advancement and regulation of trade, the crown may charge. This this matter cannot be well directed by any distinction seems to be of dangerous tenlearning delivered in our books of law, the best dency, and not quite reconcileable with the directions herein are precedents of antiquitie, same great lawyer's sentiments in his 2d and the course of this court, wherein all actions Institute, where he condemns the judgment of this nature are to be judged, and the acts of in Bates's case without any reserve. How-parliament recited in arguments of this case ever it should be considered, that lord Coke's 12th Report contains only his first thoughts, before the question had undergone a parliamentary investigation; and further, that the 12th Report is of small authority, being not merely posthumous, but apparently nothing more than a collection from papers neither digested nor intended for the press by the writer. 12 Co. Rep. 33. Those inclined to pursue the subject still further may consult 4 Inst. 32. the Case of Sheppard against Goswell and others in Vaughan's Rep. 159. the title Taxes' in Cotton's Abridgment of Records, the Case of Customs Dav. Rep. 7. Forster's Dig, of Laws relat. to Customs, 15. Gilbert's Treatise on the Exchequer, chap. 15. Maddox's History of the Exchequer, chap. 18. and the title Prerogative' in the Law Abridgments." Hargrave.t] prove nothing to this purpose. The best case in law is the Case of Mines in Mr. Plowden Com. where this ground is put, that the prece dents of every court ought to be a direction to that court, to judge of matters which are aptly for matters of the crown, in the Common Pleas determinable therein, as in the Kings Bench for matters of inheritance and civil contracts, and in the Exchequer for matters of the kings prerogative, his revenue and government. And The case of the king's prerogative in Salt Petre, 4 Jac. 12. Co. Rep. 12, may also be looked into, though not strictly in point. This note is not printed as it stood in the last edition of the State Trials; but the additional matter in the learned annotator's preface to bis 1st vol. of "A Collection of Tracts, &c." has heen here interwoven. weal of the king is the public weal of the peo- as it is not a kingdome without subjects and government, so he is not a king without revenues, for without them he cannot preserve his dominions in peace, he cannot maintain war, nor reward his servants, according to the state and honour of a king; and the revenue of the crown is the very essential part of the crown, and he who rendeth that from the king pulleth also his crown from his head, for it cannot be separated from the crown. And such great prerogatives of the crown, without which it cannot be, ought not to be disputed; and in these cases of prerogative the judgment shall not be according to the rules of the common law, but according to the precedents of this court, wherein these matters are disputable and determinable. As for example, an action of accompt lies not by the common law against him, who had the land of the accomptant by mean conveyance. But if one be an accompt-cloathes more vendible. And so corporations ant to the king, and had land in fee, and alien it unto A. who alien it unto B., B. by reason of this land, shall be charged with this accompt. In 14 E. 3, a coroner was elected by the king's writ as he ought to be, by the countie, and after he was amerced, and because he was not sufficient to answer the amercement the countie was charged therewith, and that appears of record here. And in 30 E. 3. Rot. 6. as appears also of record, in this court, one William Porter was magister moneta, and had received bullion of divers inerchants, and coyned it in the kings mint, and did not restore the coyne to the merchants, but was insufficient, and the king paid the merchants, and inquired of the sureties for the coyne, and it was found that he had none; then it was inquired who recommended him unto the king, and it was found by whom he was recommended; and they, who only recommended him as friends, were charged with the debt. And if one be outlawed in a personal action, and debt is due to him upon a contract, this shall be forfeited to the king, and this is ordinary by the precedents of this court; and yet this seems to be contrary to law, and is against our books. And the king's debtor shall have a quo minus against executors upon a simple contract, and therein he cannot release, nor be non-suited. And I put these cases to prove, that the precedents of this court ought to be pursued and observed, although they seem to cross the common law, and the books thereof. A case was here betwixt the king and Jourden. Jourden was receiver, and sold his office to one D. and he not being able to pay Jourden for his office at the day limited, it was agreed, that Jourden should come to the next receipt, and when D. received the king's money, that Jourden should take it for his office, which was done accordingly. After D. was indebted to the king, and this matter appearing as above, &c. Jourden was charged with the money which he had received. And as Stamford in his first cap. of prerogative saith, that the king is the most worthy part of a commonwealth, so is he the preserver, nourisher, and defender of the people; and true it is, that the and for the length of cloathes; in the 33 H. 8. it be bath; for he hath the kings protection was raised again; and in the time of queen within his ports, and his safe conduct upon the Mary, because that the making of so many land, and his defence upon the sea. And all cloathes inade the impost of woul to be of so the ports of the realm belong to the king, and smail value, therefore the impost of every in this court there is a precedent where one in cloath was raised by her to a noble: and in the the time of queen Eliz. claimed to have a port first of Eliz. an impost was imposed, for the to himself, as his own, and it was adjudged overlength of cloathes; and it appears in 30 that he could not, for it belonged to the queen, E. 3. that the impost of the cloath was for a and it could not be severed; and the king only stranger 2s. 3d. and for a denizen 1s. and all for shall have the customes, for landing throughout cloathes. Another impost was for woolfels, all the land. And in the 17th of E. 3. there and leather. The 31 E. 1. it was for wool half is a notable precedent, where he reciteth all a mark for a sack, and after that to 10s. and in the benefits which the subject had in his forthe time of E. 3. to 20s. and after to 40s. and raign traffick, by the kings power and protec after to S. and so of woolfels and leather; tion, and therefore he imposed a new impost, and as the benefit and price of commodities did The writ of ne exeat regnum comprehends a rise, so was the impost raised, and no act of probibition to him to whom it is directed, that parliament for the first imposing, and increase he shall not go beyond the seas; and this may thereof. And so much for woolfels and lea-be directed at the king's pleasure to any man ther. Now for allom. Upon every kintal of who is his subject; and so consequently may allom was imposed 38. 4d. which was answered be prohibite all merchants; and as he may upon accompt; and in the case of Smith, it prohibite the persons, so may be the goods of was not doubted, if it shall be paid, as here it any man, viz. that be shall export or import at is, but if it were contained in Smiths patent or his pleasure. And if the king may generally not. The imposition imposed upon coles. Now inhibite that such goods shall not be imported, the 1s. increase is paid. The imposition upon then by the same reason may he prohibite tobacco was never doubted to be unjust as this is. them, upon condition or sub modo, viz. that if And so much for precedents. And now for they import such goods, that then they shall statutes. The statute of Magna Charta, cap. pay, &c. And if the general be lawful, the 30. which was objected, that thereby all particular cannot be unjust: and the words in merchants may have safe, &c. to buy and sell, the writ of ne excat regnum, viz. et quamwithout ill tolnets; but there is a saving, viz. plurima nobis, et coronæ nostræ præjudicialia by the ancient and old customs. The statute ibidem prosequi intendis' are not traversable of Articuli super chartas, cap. 2. hath a saving by the subject, but he ought dutifully to obey in the end of it, that the king or his councel his sovereign. As to that which is said, that this did not intend thereby to increase the antient command to the treasurer is not sufficient under prices due and accustomed. So are all the the great seal, that is otherwise; for before the other statutes of purveyors. The statute of the statute of R. 2. for matter of customes no com45 E. 3. cap. 4. which hath been so much mand was directed to the treasurer, but always urged, that no new imposition shall be imposed the king signified his pleasure to his customers upon woolfels, wooll, or leather, but only the under his privy seal, and this gave authoritie to custome and subsidie granted to the king; this them to collect customes, and the same authority extends only to the king himself, and shall not is given now to the treasurer, and derived from binde his successors; for it is a principal part him to the customers. As to that which is said, of the crown of England, which the king cannot that the conclusion is evil, because it is in condiminish. And the same king 24th of his tempt of the king; without doubt it is a contempt, raign granted divers exemptions to certain per- for the king may inhibit traffic into any part of sons; and because that it was in derogation of the world, if he will, or inflict a pain upon any his state imperial, he himself recalled and an- who shall trade into such place inhibited. So nulled the same. As to that which was ob- may be do upon any commoditie, either inhibit jected, that the defendant had paid poundage it generally, or upon a pain or impost; and if a granted by the statute of the first of the king, subject use the trade after such inhibition, or imthat is nothing to this purpose; for that is a port his wares, and pay not the impost, it is a subsidie, and not a custome; for when any im- contempt, and the king shall punish him for it position is granted by parliament, it is only a at his pleasure. And as to that which is said, subsidie, and not a custome, for the nature that it is a burthen to the merchant, that is not thereof is changed, and the impost of wine is so; for the burthen layeth it only upon the paid over and above the poundage, and so better part of the subjects; and if it were a should it be here. And whereas it was ob- burthen, it is no more than they themselves injected, that if it were in the time of war, it is posed, which was in their hands by commission sufferable, but in peace not, this seems in the time of queen Eliz. and they have raised reason; for the king cannot be furnished to the prices to subjects more than the value of make defence in war, if he provide not in the impost; and it is not to be intended, that peace, and the provision is too late made, when the king by any impost will prejudice the cause it ought to be used. And as to that which was of merchants, for the trade in general is to him said, that the subject ought to have recompence, more beneficial, than any particular impost. and valuable satisfaction, it seemeth to me that The case of the 11 and 14 H. 4. of Aulnageor YOL. II. 2 c is not to be compared to this case; for there the king had made a grant to a subject, and it was also of a thing which was granted before to a maior, and also of a commoditie within the land, and not transported. And for the case of Darcy, for the monopoly of cards, it is not like; for that is of a commoditie within the land, and betwixt the patentee and the king, and not between the king and the subject. And as to the exception taken to the information, that it is us fat. and doth not prescribe, this needeth for it is a prerogative wherein lieth no pres ription, for every prerogative is as antient as the crown. And as to the conclusion of the information it was objected, that it is not good, for the informer ought to pray the forfeiture; but this belongs to the couit to judge of what shall be lost or forfeited, the offence being a contempt, and therefore the conclusion good enough. And so for all these reasons judgement shall be given for the king. not; be. The state of the question is touching a new custom. The impositions or customs are duties or sums of money newly posed by the king without parliament upon merchandise, for the augmentation of his revenues. All the questions arising in the case are, ' aut de personis, de rebus, vel de a tionibus; viz. form and proceeding. The persons are, first the king, his power, and authoritie; secondly, not Bates the defendant, nor the Venetians, but all men who import currants. The imposition is properly upon currants, and for them, and is not upon the def. ndant, nor his goods, who is a merchant; for upon him no impo-ition shall be, but by parliament. The things are currants, a forraign commoditie, and a victual; the 5s. for impost, which is said to be great. The action formed or process is the command by the great seal, and the words therein are petere et recipere, if they be sufficient, and if good without proclamation or other notice, and how notice shall be given, and if it be good without an ad quod damnum. And the Case of Mines in Plowden, which is the sole case in the printed books of law, to this purpose, hath in toure reasons of the judgement. First, the exceliency of the king, or his person. Secondly, the necessitie of coyn for his state. Thirdly, the utilitie of coyn for commerce. Fourthly, the inconvenience, if the subject should have such royal possessions. And these reasons are not extracted out of the books of law, but are only reasons of policy; for rex est legalis es Flemming, chief baron. Touching the exceptions to the information, they are of no force. For the first usitat. &c. it hath been well said, that the king needs not prescribe in any prerogative, for it is as antient as his crown is, 2 E. S. and for the conclusion, viz. that he | in contempt, &c. that deserves no other answer, but that which hath been given before, for it is enough, without doubt warranted by infinite precedents. But for the bar, it is an increase of the defendant's contempt, and no sufficient matter to answer, an indigested and confused tale, with an improper and disobedient con-politicus,' and reasons pollitick are sufficient elusion, and there is in it multa non multum; guides to judges in their arguments, and such but the conclusion is without precedent, or Cases and precedents are good directions in example, for he saith, that the imposition, cases of judgement, for they are demonstrawhich the king had laid, is indebitè, injustè, tions of the course of antiquitie. Whereupon ⚫et contra leges Angliæ imposita,' and therefore my judgement shall consist upon reasons pollihe refused, &c. In the Case of Smith for Allom, tick, and precedents. The case in Dyer 1. the conclusion was moderate, and besceming a Eliz. fo. 165. was not like to the case in quessubject, judgment if he shall have impost by his tion, but only a conference; and the case there grant; and in the Case of Mines, the defendant, was for an impost upon cloath, a domestick being a great peer of the realm, concluded upon commoditie. In this case, are recited their his grant and interest in the soyl, and that he grievances, but it was paid, and it is denied took the metal, as it was lawful for him, and here; but there was no resolution thereof. At did not confront his soveraign with terms of the same time, was the impost of wines ininjustè indebitè, and the like. And the king, as creased, and paid, no petition or complaint it is commonly said in our books, cannot do thereof. And the customs for Englands commowrong; and if the king seise my land without dities were at the first imposed by the king's will, cause, I ought to sue to him in humble manner, for no statute giveth them, viz. for wool, woolfels humillimè supplicavit, &c. and not with such and leather, and it was called the great custom; terms of opposition in the information; and all and that it was paid, it will not be denied; and his matter had been saved to him then as well as yet now it is doubted, if the king can impose it now, or he might have pleaded his matter, and upon forraign commodities. The king may said wherefore he refused, as it was lawful for restrain the person, as it is in Fitz. Nat. Br. à him. But for the matter, it is of great conse-fortiori he may restrain the goods. There was quence, and hath two powerful objects, which it principally respecteth. The one is the king, his power, and prerogative, his treasure, and the revenues of his crown; and to impair and derogate from any of these was a part most undutiful in any subject. The other is the trade and traffick of merchantdise, transportation in and out of the land of commodities, which further publick benefit ought much to be respected, and nourished as much as may no custom for home commodities, but the great custome aforesaid, which was after increased by parliament, which was called the Petit Custome. It is a great grace in the king to the merchants, that he will command, and permit this matter to be disputed between him and his subject, and the most fit place is in this court, and the best rules herein are the precedents thereof, and pollitick reasons, which I shall give, and apply them to the particulars before recited. And first, for the person of the | and therefore he hath the profits of the said king, omnis potestas à Deo, et non est potes-courts. It is reasonable that the king should tas nisi pro bono. To the king is committed have as much power over forraigners and their the government of the realm and his people; goods, as over his own subjects; and if the and Bracton saith, that for his discharge of his king cannot impose upon forrain commodities office, God had given to him power, the act of a custome, as wel as forrainers may upon their government, and the power to govern. The own commodities, and upon the commodities of kings power is double, ordinary and absolute, this land when they come to them, then forrain and they have several lawes and ends. That states shall be enriched, and the king impover of the ordinary is for the profit of particular sub-ished, and he shall not have equal profit with jects, for the execution of civil justice, the de-them; and yet it will not be denied, but his termining of meum; and this is exercised by power herein is equal with other states. And equitie and justice in ordinary courts, and by so much for the person of Bates the subject. It the civilians is nominated jus privatum and is said, that an imposition may not be upon a with us, common law and these laws cannot subject without parliament. That the king be changed, without parliament; and although may impose upon a subject, I omit; for it is that their form and course may be changed, not here the question, if the king may impose and interrupted, yet they can never be changed upon the subject or his goods; but the impost in substance. The absolute power of the king here is not upon a subject, but here it is upon is not that which is converted or executed to Bates, as upon a merchant, who imports goods private use, to the benefit of any particular within this land, charged before by the king; person, but is 'only that which is applied to the and at the time when the impost was imposed general benefit of the people, and is salus po- upon them, they were the goods of the Venepuli; as the people is the body, and the king tians, and not the goods of a subject, nor the head; and this power is guided by the within the land, but only upon those which rules, which direct only at the common law, shall be after imported; and so all the arguand is most properly named Policy and Governments, which were made for the subject, fail, ment; and as the constitution of this body And where it is said, that he is a merchant, and varieth with the time, so varieth this absolute that he ought to have the sea open and free law, according to the wisdome of the king, for for him, and that trades of merchants and merthe common good; and these being general chandise are necessary to export the surplus of rules and true as they are, all things done our cominodities, and then to import other within these rules are lawful. The matter in necessaries, and so is favourably to be respectquestion is material matter of state, and ought ed; as to that it is well known, that the end to be ruled by the rules of pollicy; and if it be of every private merchant is not the common so, the king hath done well to execute his ex-good, but his particular profit, which is only traordinary power. All customes, be they old or new, are no other but the effects and issues of trades and commerce with forraign nations; but all commerce and affairs with forrainers, all wars and peace, all acceptance and admitting for current forrain coyn, all parties and treaties whatsoever, are made by the absolute power of the king; and be who hath power of causes, hath power also of effects. No exportation or importation can be, but at the kings ports. They are the gates of the king, and he hath absolute power by them to inchade or exclude whom he shall please; and ports to merchants are their harbours, and repose; and for their better securitie he is compelled to provide bulwarks, and fortresses, and to maintain, for the collection of his customs and duties, col-swer to all the statutes. The commoditie of lectors and customers; and for that charge it is reason, that he should have this benefit. He is also to defend the merchants from pirates at sea in their passage. Also, by the power of the king they are to be relieved, if they are oppressed by forraign princes, for they shall have his treaty, and embassage; and if he be not remedied thereby, then lex talionis shall be executed, goods for goods, and tax for tax; and if this will not redress the matter, then war is to be attempted for the cause of merchants. In all the kings courts, and of other princes, the judges in them are paid by the king, and maintained by him to do justice to the subjects, the means which induceth him to trade and traffick. And the impost to him is nothing, for he rateh his merchandise according to that. The impost is imposed upon currants; and he, who will buy them, shall have them subject to that charge; and it is a great contempt to denie the payment. And so much for the person. I will give a brief answer to all the statutes alledged on the contrary part, with this exposition, that the subjects and merchants are to be freed of Maletolt; and this was toll unjustly exacted by London, Southampton, and other ports within this realm; but they are with this saving, that they pay the duties and customes, due, or which hereafter shall be due to the king; which is a full au currants is no commoditic of this land, but forrain. And whereas it is said, that it is victual and necessary food, it is no more necessary than wine, and impost for that hath been always paid, without contradiction; and without doubt, there are many drinkers of wine, who are also eaters of currants. That which should be said victual for the common-wealth is that, which ariseth from agriculture, and of the earth within this land, and not nice and delicate things imported by merchats, such as these currants are. They are rather delicacy or medicine than a victual; and it is no reason that so many of our good and staple commodi |