as they please; but a king, by reason of the majesty of his estate, cannot well abridge his charge, and would be in a poor situation, if he had no power of himself, without their leave, to improve his revenue. fines for original process to recover debts, fines | merchandize be stinted and restrained to such for passing lands from one to another in his a proportion only as the subject shall be pleascourts, and in common recoveries, and the sil-ed to grant him. Subjects may live as privately ver pro licentia concordandi, the profits of the seals in his courts for all manner of writs, &c. nor is the taking of these and the like duties any breach of Magna Charta; having been imposed by the king long before that charter was made, and taken as a recompence for the As he protects the merchants, and gives them charge of the crown in maintaining the courts convoys at sea, he grants them safe conducts of justice. There is the same reason for his at land (no other being allowed by the law of charge in doing justice, and procuring justice nations, or acknowledged by Magna Charta) to be done abroad to merchants, whose com- and receives their ships into his harbours. The merce is for the most part out of the land, be-king is the custos, or guardian, of the whole ing recompenced out of the merchandizes ex-realm, but he is more particularly lord of the ported and imported, not according to the will ports, not only of the Cinque ports, where he of the merchant, or the pleasure of the people, appoints a warden to exercise his jurisdiction, but in proportion to the king's charge, which but of all the rest in the kingdom; and our being best known to himself, it is fit that the kings have ever enjoyed the prerogative of recompence should be fixed by himself. All opening and shutting them at their pleasure. leagues, truces, and treaties of state, with fo- In the reign of Edward 3. great part whereof reign princes, in which the public trade and was spent in war, there are several petitions in commerce of merchants is ever included, are the rolls of parliament for opening the sea, made and concluded at his charge; he main- when it was shut by his prerogative: yet he tains a court of admiralty for deciding all ma- never opened it again, without laying an extrarine causes, which generally concern, mer- ordinary imposition upon merchandize. This chants; his council of state is applied to, in prerogative was founded on excellent reason; case of injuries contrary to the sense of trea- for commerce is not to be held with all persons. ties; he is at vast expence in keeping resident Else enemies might discover the secrets of the embassadors in different courts, chiefly for pro- realm, and corrupt religion or the manners of curing justice to be done our merchants; and the people. Nor are all things fit to be exin case of their being wronged and denied jus- ported, particularly such as the kingdom cannot tice abroad, the king, by his prerogative, grants spare, or may be of advantage to the enemy, as them letters of marque or reprisal, to right corn in a time of dearth, warlike stores in war, themselves; and if those injuries are multiplied &c. Embargos are of the same nature with the or continued with an high hand, it is his office stopping of ports, and equally appropriated to the directly to denounce and make war on such king, being an incident annexed to his preroprince or state, as refuses to do justice to his gative of making war and peace. When war inerchants. So king Charles had lately done is denounced, all trade is stopped between the against France. It was for this cause, as Ap- nations engaged therein; and if a king can pian says, the Romans began the first Punic stop it, he must of course have a power to open war; and Cicero (a) affirms, that they fre- it, and lay reasonable impositions on merchants quently waged war for the injurious treat- for doing so. It is a rule in law, he that may ment of their merchants. The making of do more may do less; and he, that can forbid war and peace is an undisputed preroga- people to trade or pass at all, may dispense with tive of the crown: he maintains a fleet, to the prohibition, and give them leave to traffick protect merchants from spoil and piracy (b) under certain conditions. Our kings have for(which the Romans thought a just reason for bid (d) trade, somet mnes generally, sometimes customs) at a charge too great to be defrayed between us and particular nations, sometimes by the poundage laid by Edward 1. at the rate for particular merchandizes only; of all which of three-pence, though silver being then at there are examples enough in our records and twenty pence an ounce, the groat was intrinsi-histories. All companies of merchants are incally worth near a shilling, and it being levied at this last rate, in the time of Edward 4. (c) was found insufficient for the maintenance of bis navy. The flow of money from the East and West Indies vastly enhanced the price of merchandize, and the charges of the crown, as well in all other articles as in that of the royal navy. Hence arose a necessity of new impositions, it not being fit, that the king's charges, in supporting the trade of merchants, should be unlimited and infinite, and the duty on stituted by the king; and he that gives their privileges may likewise prescribe the terms, on which they are to enjoy them, exclusive of others. The king is lord of the sea about this island, not only as to jurisdiction and protection, but as to property (e). Hence all land (d) See Rot. Parl. 2 Ed. 2. m. 18. Rot. Fin. 2 E. 3. m. 17. Claus. 10 Ed. 3. m. 3,d. 17 H. 6. in Scacc. (e) So Baldus affirms, De jure gentium, 'distincta esse dominia in mari, sicut in terra arida-mare attribuitur terræ circumstanţi.——- . Pedagium in mari debet solvi, sicut in terra, si sit impositum per dominum maris;' and 2 D drained from the sea belongs, by the common | law, to the crown (as Stanford (ƒ) says) de jure gentium; and all sets belong to the next potentate, at least so long as they are formidable, and all navigable rivers, being like arms, of the sea, so far as the tide floweth, llence, antecedent to any statute, the king (g) might | restrain all his subjects, of what quality soever, from going beyond sea, as Edward 1, did in the 22d year of his reign; and the like prohibitions were (h) mode in those of his successors. If he allows merchants to pass to and fro, to come in and out of his streams and ports, he may certainly prescribe the conditions, and what duties they shall pay. Trade was carried on by the English many hundreds of years, before there was such a thing known as an house of commons: it was carried on with so great profit, that our riches served for admiration to other nations, even to the Normans at the time of the conquest: but if our kings had not the same authority as other princes, both in commerce, and in Impositions, it could never have been carried on with advantage. They could not without it have held the balance of trade upright, or have preserved an equality between their own subjects and foreigners. Our neighbours might otherwise drain off all our wealth, and ruin our trade at their pleasure: and their princes, having the sole right to lay impositions, might manage the market so, that their subjects should sell dear, and buy cheap, unless our kings had the same powers to prevent the ill effects of their measmes, and the ruin of our commerce. Thus when the state of Venice laid a ducat upon every hundred weight of currants carried out of their dominions by the English merchants, queen Elizabeth, by a speciall patent, in the 12th year of her reign, enabled her merchants trading to the Levant, to levy a noble upon every hundred weight of currants brought into England by any merchant stranger. Thus when the Hanse Towns had got the emperor to banish alt English merchants out of Germany, the same queen caused their house called the Steelyard to be seized, forbade them to traffick with any of her subjects, and ord red their merchants to quit England, the sune day that the English were to depart out of the empire. Nothing is more evident, than the necessity of our kings having the same power, in impositions as well as commerce, as other princes; they always exercised it well, and there was no danger of their abusing it, whilst the best part of their revenue depended thereon: and whoever will consider, how light, easy, reasonable, and calculated for the benchit of trade, the im other learned civilians assert, that the lordship of the sea contains in it, Jus navigandi, jus piscandi, et jus imponendi vectigalia pro utroque.' (f) Book of Prerogative of the Crown. (g) 22 Assis. p. 93. Dier. 119. a. Sce Writs. (h) 4 E. 3. 21 E. 3. 16 R. 2. 17 H. 6. | positions of our kings were, must be allowed an uncommon measure of public spirit, if he is very fond of the change into heavier, because they are parliamentary impositions. These are some of the reasons that may be (i) Claus, 3. E. 2. m. 23. of whose ordinances were treasonable) that he people would scarce have bought it so dear, if was forced to take by large sums of money by the king had not a right to lay them; and if he way of loan (1) from the merchants, which being suspended his power of imposing for six years, never repaid, the merchants received thence it was in consideration of a recompence of greater detriment, than they would have done by greater value. The punishments of lord Lapaying double the poundage imposed by his timer, John Pechy, and Richard Lions, in the father. But no sooner did Edward 3rd get pos- | 50th of this king, when through age and grief session of the crown, than (m) he revived his at the Black Prince's death, he was become grandfather's charter, and ordered by his writs, weak, sickly, languid, melancholy, and almost the poundage and other customs therein con- stupid, made as lide to the purpose of those tained to be levied to his use, notwithstanding who urge them against the royal power in imthe ordinances made, not by the king his father, positions. Pechy had got a patent, that none but per quosdam magnates. should sell sweet wines in the city of London, Edward 3. was a great prince; and being but himself, his deputies, and assigns; and embarked in expensive wars during the most under colour thereof, extorted ten groats for part of his reign, he put extraordinary duties, every pipe of sweet wines sold by others within sometimes of 4s. sometimes 5s. upon wool, and the city; it doth not appear that he had any the like upon other commodities. This gave warrant for it from his patent, and his being occasion to several petitions of the commons punished for abusing it, and doing the things in parliament, upon which a greater stress hath of his own head, is no argument against the been laid than they deserve. It doth not ap-king's right of laying the like imposition. Lae pear, that these petitions were of right, but ra- timer had, of his own authority, laid several " ther of grace and favour; they are far from in- impositions on merchandize at Calais, to the ferring, either that the people had received great decay of the staple there. He had likewrong, or that the king had no right to lay im- wise played the stock-jobber in buying the positions. It never behoved any prince more, debentures, tallies, and ticquets, due from the than Edward, to be well with his people, to king to his soldiers and pensioners, at a great whom he was obliged to apply every year for discompt, giving very little to the parties, and the support of his wars; he was infinitely care- yet, in deceit of his majesty, had an entire alful in this respect: and his answers to their lowance for them in the Exchequer. He had petitions were generally gracious, but wary and also defrauded the king of the pay sent to his circumspect. On some heads he was silent; forces in Bretagne, had sold a large quantity on others, his answers were general or doubt of provisions for his army there, converting the ful; sometimes he granted them in part, for a money to his own use; and had delivered up certain time, and on condition he received a the towns of S. Sauveur in Normandie, and greater recompence; nor did he ever remit any Becherel in Bretagne, to the enemy, not withimposition, without receiving a subsidy of more out the suspicion of corruption and treason. considerable value. In his 14th year, (n) the He was censured for all these crimes in the Commons prayed him not to take above the gross, so that nothing can be drawn thence half mark on a sack of wool, nor more than the against the right of the crown in laying impoold customs on lead, tin, and leather. In his sitions on merchandize; especially since Laanswer, he granted their request, not for tin or timer was charged with laying the impost at lead, but only for wool and leather; yet this Calais, without any warrant, and purely of his grace was not to take place, till after the Whit- own authority. Lions, a farmer of the cussontide to come twelvemonth; it was granted toms, was accused (q) of setting on wool and but in part, to Englishmen only, not to foreign merchants: and yet though all these new im- Parl. n. 5. 18 E. 3. Rot. Parl. n. 20. 36 E. 34 positions were to continue for above a year, he Rot. Parl. n. 26. In 25 E. 3. Rot. Parl. n. got a parliamentary grant, not only of 20,000 25, 26, 27, the commons petition against sacks of wool, but of the 9th lamb, the 9th an excessive imposition on woolfells, and defleece of wool, and the 9th sheaf of corn, of all sire that only the old custom be paid: the persons, both clergy and laity, throughout the king's answer was, Ancient customs ought kingdom. In his 29th year, (o) the commons not to be withdrawn.' In 33 E. 4. (Rot. Parl. wanting to get the 40s. duty, laid on a sack of n. 26.) they petitioned for the repeal of an wool, to be taken off, it was agreed in parlia- imposition of ten groats on every sack of ment, that the king should have a greater sub-wool at Calais, and of all unreasonable imposidy out of wool and leather for six years, so as, during that time, he laid no other imposition or charge upon the commons.' This is evidently a conditional agreement, (p) and the (1) Rot. Fin. 11 E. 2. m. 12. (m) Rot. Fin. 2 E. 3. m. 30. (n) Rot. Parl. 14 E. 3. c. 21. (0) Rot. Parl. 29 E. 3. n. 11. (P) The like conditional agreements were made in 6 E. 3. Rot. Parl. n. 4. 13 E. 3. Rot. sitions; an answer was given to the last of these points, but none at all to the former. In 6 E. 3. (Rot. Parl. n. 4.) on a petition for the remitting of impositions, the king said, He would assess no such talliages for the future, but such as had been in the time of his ancestors, and as it ought to be by reason. In 13 E. 3. (Rot. Parl. n. 13.) there was a petition against a maletolt of wool: but no answer was given. (1) Rot. Parl. 50 E. 3. n. 17, 18, 19, 20. other merchandize, certain new impositions in laying impositions;' which intimate suffiwithout assent of parliament, converting them ciently, that a king might do it, but not a subto his own use without controul, the lord trea-ject. This is still more plain in the bill exhisurer not being acquainted therewith; and of bited by the commons in this parliament, (r) assuming to himself in divers other things, as a praying, that those who should set new imking. He pleaded, indeed, that he laid them positions by their own authority, accroaching by the king's command, but he produced no 'to themselves royal power, might have judgwarrant, nor could he have any without thement of life and member;' than which there treasurer's knowledge: and he was justly punished by fine, rausome, and imprisonment, The King's right could not be any ways aflected by this sentence on a man, who had acted of his own head; especially since his charge was, that being but a subject, he had taken upon him, as a king, in divers things, particularly cannot be desired a plainer acknowledgment, by parliament, that the setting of impositions belonged to the crown, and was a mark of sovereignty and royal power. (r) Rot. Parl. 50 E. 3. n. 192. Mr. HAKEWILL'S Argument* in the Lower House of Parliament, in 1610, against Impositions by the Crown.+ Mr. Speaker; The Question now in Debate amongst us is, Whether his Majesty may, by his Prerogative Royall, without Assent of Parliment, at his own Wil and Pleasure, lay a new Charge or Imposition upon Merchandizes, to be brought into, or out of this kingdome of England; and enforce Merchants to pay the same? I MUST Confesse, that when this point was first stirred mongst us, and that wee, not contented to seeke redresse for the excesse of the present Impositions, resolved to proceed far *This argument in MS. is in the library of Lincoln's Inn. ther, by calling his majesty's right of imposing into questions, I was very sorry: for I saw we were then in a faire way to have obtained a very great abatement of the impositions that now are; and besides, we had his majesties promise never to lay any more but in pariiament time, by the advice and free consent of his subjects, repayring hither from all parts of the realme. This hope of a present ease, and gracious promise for the time to come, gave ine, I confesse, a full satisfaction; especially, seeing I was confidently perswaded, that his majesties right to impose was very cleere and not to be disputed; and that therefore by were but meerely quoted.-The endeavour of it is to prove, that the just prerogative of our Lings never warranted them to raise monies at their pleasure, by laying a charge on mer out assent of parliament. But, on the contrary, the setled lawes of the land, the presi'dents of former ages, the acts of our most ne'cessitous and powerfull princes, and indeed every thing requisite to make the truth apparent, doe as it were unanimously consent to discharge us of this unjust and heavy burthen. -And you shall see herein, how the policy of "active princes hath by many waies attempted to undermine those fortifications, which the wistion of our ancestors hath raysed to maintaine themselves from this kinde of assault. You shall see with how great difficulty their prevailing was withstood. And (which is the glory of tre.h) you shall finde those designes, which were laid to overthrow our right, mainly 'to make for the evidence aud confirmation of Tor, whatever unjust impositions were either esacted by a pretended lawfulnesse, or 'set up by a commanding power, were by complaint in parliaments presently following taken 'down, and remain on record as (witnesses * against thoruseivcs) unlawful, and against our 'libertie.--Those reasons and arguments of This argument was printed in 1611, with this title, ' The Libertie of the Subject: against the proteuded Power of Impositions. Main-chandize to bce exported or imported, withtained by an Argument in Parliament an. 7. Jacobi Regis. By William Hakewill, of Lin<colns Inne, esq.'-It was preceded with the following address from Mr. Hokewill to the reader. Being very sensible of a great injury lately done mce, by the extreme false printing of a smal treatise of my composing, stoln out without my consent, and hearing accidentally that some part of this also had passed the • presse, I thought good for the preventing of the like wrong to stay the forwardnesse or the printer untill I had reviewed and corrected at by mine owne notes. For my part, I should have been contented altogether to have restrained it, if I might; but now seeing it must abroad, I shall not bee ashamed to let it Leare my name, and owne the eirors of it my sli (those of the presse cv opted) though Lereto'fore it had gayued so much reputation by some, as it was attributed to a wort der author. Some there are yet surviving that heard this argument about thirty yeeres since in the commons house of parliament; but it hath now extended itselfe beyond the probable pro♦ pordon of a speech or argument, by the inser-mine (how meane soever) those times, wherein tion of many records and acts of parliament more at large, which, at the delivery of it, 6 it. I urged them, accepted favorably; and since, in their private passage in manuscripts, were drawing into question the right, wee might give his majesty just occasion to withdraw from us his gracious purpose of the present abatement, as also his promise for the time to come. For, syr, when the case of Bates, who as you know was called into question for refusing to pay the Imposition laid upon currants, was argued in the Exchequer, in which case his majesties right to impose was solemnly disputed, and there resolved for his majesty, I was then present at all the arguments both at the bar and at the bench; and I doe confesse that by the weighty and unanswerable reasons, as I entertained in many judicious hands, which 'made mee somewhat enlarge the conceit that before I had of them. And now seeing neces'sitie enforceth mee to make them more publique, I must adventure them to the censure of these nice times. Beneficiall (happily) they may be to some, prejudiciall I hope to none. In which confidence (having the leave of authority) they have likewise my leave to goe abroad.-Vale.-W. II,' then conceived them, of those grave and reverend judges, [Fleming, Ch. Bar. Clarke, Savil, sitting in their seate of justice, I was much perswaded. But by those many records vouched by them, I was altogether overcome, and as it were vanquish❜t to yeeld to them; for syr, ratio suadet, authoritas vincit. But though I were then, and when the question was first moved in this house, very confident, yet as you shall perceive anon, I was not very constant in that opinion; for being, amongst others, imployed by this house to make search in the Exchequer for records, which, by the practise of tudo magna et parva.-15. No imposition laid from Ed. 3rd's time till queen Maries.—16. What urgent occasions all the kings from Ed. 3. 'till queen Maries time, had to lay impositions, and yet did it not. Rich. 2. Hen. 4. Hen. 5. 'Hen. 6. Edw. 4. Hen. 7. Hen. 8. Edw. 6. with a corollary of all those times and occasions.—17. The impositions laid by queen Mary, and how answered.-18. Admitting the kings had power by the common law to lay impositions, There are also prefixed the following heads yet how they are barred by statutes.-19. Magof the Argument: 1. That there was ever na Charta, cap. 30, urged against impositions, • some custome due to the king by the common and the objection made against it, answered: law.-2. That it was a su certaine by the 1 Objection, That it extendeth onely to mer• common law.-3. That all the revenues which 'chant strangers: 2. That it was made onely the common law giveth to the king, out of the against taxes within the land: 3. That by the interest of the subject, are certaine, or reduce exception in the end of the statute, the kings able to a certainty by some legall course, and prerogative is salved.-20. The statute de none left to the kings pleasure.--4. The rea- tallagio non concedendo urged, with the an sons why the law requireth such certainty in swers to the objections made thereunto. The those revenues which the king bath out of the exposition of the words tallage, ayde, subsidie. interest of the subject.-5. Examples of reve 21. The statute of 25 Ed. 1. cap. 7. urged <nues given by the common law to the king, against impositions, and cleered from objecout of the interest of the subject, and that they 'tions: 1. That it is against the excesse of imare all certaine.-6. Answer to an objection, positions, and not against the right: 2. That that the king may lay impositions upon extra-it is only against impositions on woolls.-22. 'ordinary occasions.-7. Arguments drawn 'from the actions of our kings, that they had no 'power to impose.-8. Arguments drawn from the forbearance of our kings to lay impositions, notwithstanding their urgent occasions.-9. The difference between the presidents urged, of impositions laid by the antient kings, and those which are now laid.-10. A particular answer to the imposition of 3d. in the pound laid upon merchant strangers by Charta Mer-imposed by the king. The antiquty of par'catoria, 31 Ed. 1.--11. The urgent occasions 6 6 The statute of 14 Ed. 3. cap. 21. urged against impositions, and cleered from objections. That it extendeth onely to impositions within the land, and not upon merci andizes, answered, with an exposition of the word 'charge.-23. Answers to the reasons urged in maintenance of impositions: 1. Thit because it cannot appeare that the ancient customes were set by parliament, therefore they were 6 liaments.-24. Answer to the seond reason which Ed. 2. had to lay impositions, and yet urged for impositions, that the kag may tohow he forbore.-12. The severall policies tally restraine importation and exportation, used by Ed. 3. for the introducing of the power and therefore may restraine sub wdo by laying of imposing: 1. Impositions taken by colour impositions.-25. Answer to thethird reason, of a voluntary grant from merchants: 2. By that the ports are the kings, an that he may way of dispensation with penall lawes: 3. By open and shut them on what onditions he way of ordinance in parliament: 4. By colour pleaseth.-26. Answer to the fourth reason, of a loane by merchants: 5. By grants of that the king is bound to protet merchants, 'merchants for liberties granted to them: 6. and safeguard the seas, and tht therefore he By expresse and direct commandement; with may lay moderate impositions for raising of ⚫ severall answeres to all those severall waycs.- money to defray his charges.-27. Answer to 13. In what statutes impositions are mention- the fifth objection, that all orreign princes ed after Edw. 3rd's time, untill queen Maries; have power to impose; and iour king should "and upon what occasions, and how to be inter- not have the like, it might every inconve preted.-14. The signification of the wordsnient to this state.-28. A ammary concluimposition, toll, maletolt, custuma et consue sion of the whole argument,' |