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not bound by them. I will also add a statute or two as yet not remembered by any.

Lastly, I will discover unto you the weaknesse of such reasons as have been made in maintenance of the kings right to impose.

In the prosecuting of which parts I will, as occasion is offered, give some answere to that which hath been last spoken, by sir Robert Hitcham]; as knowing it to be expegted at my hands.

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former ages, might guide our judgments in this weighty point, and having diligently collected the arguments made in the Exchequer, and not only so, but compared my owne collections with reports thereof made by divers other of my friends, and finding that some of the records urged in those arguments were untruly vouched, and many misaplyed, I then began to stagger in my opinion, and presently fell to examine the weight of the reasons which had been alledged, which in my poore censure, I found not of strength sufficient, without the full concurrence of cleere presidents of former times, to maintaine the judgement given, or my opinion grounded thereupon. And therefore, syr, in love to the truth I did forsake my former opinion as erroneous, and do now embrace the contrary, that is, That his majestie hath no right to impose, and so am now become a con-holding of which, their opinion, as I conceive, vert. Those reasons that moved mee thus to change, and the weakenesse which I discovered in the reasons alledged against the opinion which I now hold, I will, with your patience, open unto you, and will therein follow the commandement of Christ to Peter, beeing converted, seeke to convert my brethren.

As touching the judgement in the Exchequer standing yet in force, so often cast as a block in our way, though I much reverence the persons of those yet living, and the memory of those that are with God, who gave the judgement: yet seeing, as I hope I shalt bee able evidently to prove, the same to bee against the Great Charter of our liberties, I can esteeme no otherwise of it than the statute of 25 Ed. 1. cap. 10. pronounceth of all such judgements; that is, that it is void and to be held for nought. Thus much I thought good to say by way of preamble or introduction to the matter. Now, by your favours, I will enter into the debate of the question; in handling of which I will purposely avoid the repetition of any thing that hath been spoken by any man that hath argued before, as knowing in what presence I speake. That I may the better convey my selfe through my argument, and be the better conceived of you that are to heare ine, I will divide that which I have to say into certain parts, which I will prosecte in order.

FIRST then to consider, WHETHER there were by the Common-Law any Duty belonging to the King upon Merchandize to be carried into or out of the Kingdom, known by the name of Custom?'--Though the maintenance of custome to be due by the common-law be a point of such consequence to them that mainteined the kings right to impose, as without the up

is not so much as colourably to be mainteined, and that to maintein the same, it he not at all necessary to induce my conclusion; and although to admit it, it may seem perhaps no good policy of argument, but rather a great disadvantage to me to admit that, without which the contrary part cannot uphold their opinion, and which being admitted cannot make any thing for me; yet because we are here not as arguers at the bar, but as judges in a highcourt, and that all our ends tend to the discovery of the truth: I will therefore not only admit it, but will maintein it as well as I can.

That Custome is due by the common-law I collect, first by the name thereof, for though at this day it bee (and so hath been for more then 350 yeeres, as I shal! have occasion more fully anon to open unto you) called in our law-Latin Custuma, yet in ancient time it had no other name here amongst us (for I meane not to wander into forreign-learning) then consuetudo, as may appeare by the statute of Magna Charta cap. 30. Per rectas et antiquas consuetudines;' for I shall anon directly prove unto you, that consuetudo in that place is not to be understood an usage, as hath been said, but in that sense which I take it. The name consuetudo in the same sense is also found in many ancient records brought into this house upon the late search. That this name then consuetudo, which implies an approved continuance without a known beginning, should by the common law be given to this revenue more then to any other revenue belonging to the king; nay, that this terme, which is the common and general name to all common and approved usages of what nature or kind soever, should be applied to this Thirdly, suposing that by the common law dutic rather then to any other amongst all the the king migh, by way of Imposition, have in- ancient usages and customes which the comcreased his Cutoin at his own will, by his ab-mon-law imbraceth, cannot but denote the solute power, without assent in parliament, whether or no ee bee not bound to the contrary by acts o parliament. In the handling of which part, I will consider the strength of every act of peliament hitherto, vouched to this purpose, anwering, as I goe, such objections as have ben made against those statutes by such as have maintained that the king is

First, I hold it necessary to consider, whether Custon were due to the king by the common law.

Secondly, admitting it to bee due by the common lay, whether it were a summe certain, not to e increased at the kings pleasure or otherwise,

great antiquity thereof, and more then so, the allowance and approbation thereof by the common-law; for doubtlesse, if, beside the antiquity of this dutic, the common-law had not also alowed the reasonablenesse of it, and in a manner the necessity of it, it would never have denoted it unto us by this name of excellency above all other customes which require reason

some profit for the sustentation of this publique charge. Otherwise were the law very unreasonable and unjust. So as to prove, that by the common-law Custome is due to the king, I shall need to say no more: especially considering it hath not onely been yeelded to, hut proved by those, which maintain a contrary conclusion. I will therefore proceed to my SECOND CONSIDERATION WHETHER that profit upon Merchandizes, which the Common-law for these respects gave unto the King, were a Duty certaine, not to be increased or inhaunced at the Kings Will and Pleasure, without a common Assent in Parliament; or otherwise, whether the Common-law hath left an absolute Power in the King, to demand in this case more or lesse at his owne Pleasure, and to compell his Subjects to pay it?' he resolving of which question will, as I conceive, make an end of this controversie between us; for what are these impositions which wee complaine of other than the enhauncing of the Custome by the king's absolute pleasure?

That this duty given by the common-law, as I have proved, unto the king, was and is a Duty Certain, not to be enhaunced by the king at his owne pleasure, without assent in parliament, I hope I shall be able cleerly to prove unto you in maiateinance of which, I will use some arguments of direct proofe, and others of great presumption and probability. And first, I lay this as a ground, which will not be de nyed me by any man; THAT the common-law of England, as also all other wise lawes in the world, delight in certainty, and abandon incertainty, as the mother of all debate and confusion, than which nothing is more odious in

ableness as well as antiquity. Therfore doubtlesse, this duty, thus favored, is a childe of the common-law. Nay farther, it is of the very essence of a Custome to have his only begining by allowance of the common-law; for that, which beginneth by private contract of partie, or by act of parliament, and dependeth not wholly upon the alowance of the common-law, by one of which three waies all things considerable in law have their commencements, cannot bee called or bee a custome, in name or deede. Moreover, considering that this custome is not limited to any one place within the realme, wee shall so little neede to be curious in affirming it to bee due by the common-law, as wee may boldly pronounce it to be part of the common-law itselfe. Thus you see, that the very name consuetudo proves Custome to bee a dutie by common-law. To this may bee added, that Magna Charta, cap. 30. which statute was made little more then 150 yeeres after the Conquest, termeth this not only Consuetudo, which, as I have said, implies antiquity beyond all rememberence of a beginning, but antiqua consuetudo; not onely custome, but old and ancient custome. And in comparison to this old custome due at common-law, the custome upon staple commodities, given or increased by act of parliament 3 E. 1. not printed, was called Nova Consuetudo: before the making of which statute of 3 E. 1. you may forther see, that custome was due; for an. 52 H. 3. in the statute of the Exchequer, printed, you may read, that the collectors of the Custome of Wools were to yeeld their accompt twice every yeere into the Exchequer. But that, which most of all moveth me to beleeve that this duty was and is due by the common-law--and therefore the rule is, quod certum law, is this; that in all cases where the common-law putteth the king to sustaine charge for the protection of the subject, it alwayes yeeldeth him out of the thing protected some gaine towards the maintenance of the charge: as, for the protection of Wards, Lunatiques and Ideots, the profits of their lands; for the maintenance of the courts of justice, it giveth him fines for purchase of originall writs, and fines pro licentia concordandi, which in supposition of law are no other then fines paid for not proceeding according to the surety by pledges put in upon purchase of the originall, and for troubling without cause the kings justices, who are maintained in their places at the kings charge. There are many the like profits of court, given by the common-law to the king for the maintenance of his charge in the administering of justice. This observation, which might be further proved by divers other instances in things of other nature, maketh me to think, that because the common-law expecteth that the king should protect merchants in their trades, by maintaining, repairing, and fortifying the havens at home; by clearing the sea of pirates and enemies in their passage: and by maintaining ambassadors abroad to treate with forreigne princes upon all such occasions; that it also giveth him out of merchandizes exported and imported,

est retinendum est, quod incertum est dimittendum; nay further, quod incertum est nihil est. This is the censure of law upon all the acts of men, which fall under the judgment of the law. If then the law so judge of the acts of men, holding them for nought and voyde, that are incertaine; how much more then doth the law require certainty in her own acts, which are to binde all men? And if in any of the acts of law certainty be to be specially expected, most of all is it requisite that bounds of limitation and certainty be set between the king and his poor subject, between the mighty and the weak, between the lion and the lamb. And if in any case between the king and his subject more than other this certainty be required, most of all it is requisite in cases where the common law giveth the king a perpetuall profit or revenue to be raised out of the interest and property of his poor subjects estate, either in lands or goods. If in all other things the law, as I have said, and wherein I suppose you have ycelded to me, doe require certainty and limitation, and onely in this case where it is most requisite, it bath omitted and neglected it, we must conclude the law to be most unreasonable, improvident, and contrary to it selfe; which to say, were to conclude it to be no law. Out of these

grounds, I may then in my opinion safely and decide that which is in question, by the same with some confidence deduce and maintain this rule and measure, by which other things of the position; THAT the common-law of England same nature have been decided and ordered. giveth to the king, as to the head of the com- The common-law giveth the king a fine for the mon-wealth, no perpetuall revenue or matter purchase of an original writ. Is it certaine ? of profit out of the interest or property of the it is, and ever hath been. If the debt or subject, but it either limiteth a certainty there- damages demanded amount to above 401. the in at the first; or otherwise hath so provided, fine is, and ever hath been, 6s. 8d. and no that if it be uncertaine in it selfe, it is reduce- more; if to 1007. then 10s. and no more. able to a certainty onely by a legal course, May the king increase this fine at his pleasure? that is to say, either by parliament, by judges, There is no man that will say he may. There or jury; and not by the kings own absolute is a fine due by the common-law, pro licentia will and pleasure.--Though this position be concordandi. Is it not certainly known, and grounded upon those sure foundations, out of so hath alwayes been, to be the tenth part of which I have, as you perceive, drawn it, and the land comprised in the writ of covenant ? needs no farther proof; yet because you shal And is not also the post-fine thereupon due see how plentiful the truth is in reasons to certainly known to be once and a halfe as maintain it selfe, I will further open unto you much more as the fine pro licentia concordandi, the particular reasons of this position, which or pre-tine; as for example, when the pre-the are these: is 10s. the post-fine to be 15s. And can the First, the law requireth certainty in mattering demand any more of the subject? So of profit, between the king and the poor sub-likewise, when, in a writ of right, the demandject; because to make any man judge in his ant, alleadging the seisin of Lis ancestor, will own case, especially the mighty over the weake, not be compelled to prove the scisin alledged, and that in a point of profit to him that judg-is be not to tender the king a summe certain of eth, were to leave a way open to oppression demy-mark, to bave this benefit? Was it ever and bondage. Secondly, Because by reducing more or lesse? Or can it now be more, if the it to a certainty, the king may know what cer- king would? These, amongst many others, tainty to expect; that so he may order his are dutics belonging to the king by the charge accordingly.-Thirdly, That the subject common-law from the subject, for the mainmay know likewise what he is to pay, that so teinance of his charge in the administration he may know certainly what shall remaine to of justice, which the civilians call vectigal him as his own.--Finally, That the king may judiciarium. There are also in divers other not depe id upon the good will of his subject cases duties certain, belonging to the king by for his revenue, seeing the law expecteth he the common-law: as for example, the relicte should beare the charge, but may know in cer- for an earldome is certainly knowne to be tainty what to claime as due to him, and may 100l., for a barony 100 markes, for a knights accordingly compell the subject to pay it; and fee 100s.; all which in the statute of Magna that the subject may not be under the kings Charta, cap. 2. are called old and ancient absolute power to pay what the king pleaseth, duties. This is vectigal patrimoniale; of which which may perhaps extend to the whole value sort I could produce many others, all which of the merchandize. have like certainty. Nay, there is one duty well known to us all, which the common-law giveth to the king; and is in his nature a custome (our very case) in which the king is bound to a certainty which he cannot exceed; and that is prisage, a duty given by the commonlaw to the king, upon every ship-loading of wine brought into the kingdom by English merchants; and is one tun of wine before the mast, and another Lehinde. I am unwilling to trouble you with any more particulars of this kinde. But let any man shew me one particular to the contrary, and I will then yeeld, that my position, being false in one, may be in more: but till my position hath been in this point infringed, this general concordance of the law in all these particulars is argument enough for me, without having alleadged other reasons, to conclude, that custome being, as all these are, a reverue due to tire king by the common-law, arising out of the property and interest of the subject, is, as all these are, limited and bounded by the common-law to a certainty, which the king hath not power to inCrease. Ubi cadem ratio, eadem lex. It may perhaps be here objected, that the ayd paid to

You see in generall, how the law, by requiring certainty in matter of profit between the king and the subject, preventeth many mischeifes, which would fall out if the law were otherwise; and therefore without more saying, I might here conclude, that custome, being due by the common law, was and is a sum certain, not to be increased at the kings pleasure by way of imposition. But because there are many other revenues due to the king by the common law, as well as custome; if they all, or as many as we can call to minde shall fall out to bee, as I have said, summes certaine and not subject to bee increased at the kings will, this will bee a forcible argument, that custome is likewise certain and not to be inhaunced at the kings pleasure; for, this argument drawne à simili is of great force, and the most usuall of any other in debate of things doubtful in law. (6 Que legibus decisa non "sunt, judex ex his quæ decisa sunt statuet, et "de similibus ad similia procedat." May it please you to consider in this respect other revenues, which the common-law of this land giveth the king; aud according to the rule, to

both in goods and lands, or in goods onely, as the case is; yet for reducing it to a more expresse certainty, the law requireth, that it be found by office. Wayfe, Stray, Wreck, Treasure-Trove, and such like, are no less certaine; for the king hath the things themselves in kinde. Fines for Misdemeanors are alwayes assessed by the judges. Amercements in all cases are to be afferred by the country, and not be assessed by the king; though the forme of the judgement be, et sit în misericordia domini regis, in the king's mercy, pro contemplu predict. Nay, though for punishment of an offence it be by statute-law enacted, that an offendor shall make fine and ransome at the kings pleasure, the law even in this case, which is as strong a case as may be, will not leave the assessing of the fine to the kings pleasure, to be by him rated privately in his chamber; but it must be solemnly and legally done in an open court of justice by the judges, who in all other cases are to judge between the king and his people, where the interest or property of the subject, or any charge or burden upon them doth come in question, as may be proved by the booke of R. 3. fo. 11. Insomuch that I am of opinion, that if a statute were made, that the king night raise the customes at his pleasure, yet might it not be done as now it is, by the kings absolute power, but by some other legall course, of which the common-law doth take notice; as in the case of the fine and ransome. Much lesse then will the common-law

the king upon the knighting of his eldest sonne, or marriage of his eldest daughter, was by the common-law uncertaine; and that the king did take more or lesse at his pleasure, untill he was bound to the contrary by statute. To this I make divers answers. Though it were indeed a summe uncertaine, yet the common-law did in some sort give it a limitation; for it is by a special name called Reasonable Ayd: so, as if the summe demanded doe exceed reason, it became from a Reasonable Ayd an Unjust Exaction. Besides, this revenue was a thing happening very rarely, and therefore the certainty thereof not so much regarded by the law. And yet it is to be observed, how the frame of this common-wealth could not long indure incertainty even in this casuall revenue; but it was reduced to a certainty of 20s. upon a knights fee, and 20s. upon every 201. soccageland, by the stat. of West. 1. cap. 35. 3 Ed. 1. If in this casuall revenue they were so carefull to be at a certainty, to avoid unreasonable exactions, as the words of the statute | are, how much more carefull would they have been, for the same cause, to have reduced the great and annuall revenue of the custome to a certainty, if they had not thought it to have been certaine by the common-law, or limited by statute law before that time made? But, sir, that, which I rely upon for answer to this objection, is this. Reasonable ayd was and is by the common-law due as well to meane lords as to the king; but meane lords were not limited to a certainty, otherwise than in gene-permit, that it should depend upon the king's rall, that it must be reasonable, as I have said. absolute pleasure, there being no such statute Therefore to limit the king any further, was no in the case. reason: and this answer may be given for all uncertain revenues belonging to the king, the like of which meane lords have of their tenants; for the incertainty of which there may also be given speciall reason; because these duties first began by speciall contract and agreement between the lord and the tenant, and not directly by operation of the common-law, and so were certain and uncertain as they did at first agree. And therefore you may be pleased to remember, how in laying my position I was wary to say, That such revenues, as are due to the king as to the head of the common-wealth, (by which I purposely excluded such revenues as are common to him with other meane lords) are always certaine.

I am now according to promise, and in maintenance of a second part of my Position, to shew you, That where the common-law giveth the king a revenue not certaine at the first, that is alwayes reduceable to a certainty by a legal course, as by act of parliament, judges, or jury, and not at the king's pleasure. Every man, that by his tenure is bound to serve the king in his warres, and faileth, is to pay, according to the quantity of bis tenure, a fine by the name of escuage. This cannot be assessed but in parliament. Upon Forfeitures for Treason, or otherwise, to the king, though it be a kinde of a certainty that the law giveth, in giving him all the estate of the party convict,

VOL. II.

You have heard out of what grounds I first deduced this my Position, That the law requireth certainty in matter of profit between the king and his people.-You have heard likewise the particular reasons of that Position. You have also heard what proofe I have made by particular cases of like nature to this in question; and how I have applyed them to the point. And so leaving the judgement of the whole to your wisedomes, who can best discerne whether the argument be of weight, I proceed to my Second Reason, which is drawne from the policy and frame of this commonwealth, and the providence of the commonlaw: the which, as it requires at the subjects hands loyalty and obedience to their soveraigne, so doth it likewise require, at the hands of the soveraigne, protection and defence of the subject against all wrongs and injuries whatsoever, offered either by one subject to another, or by the common enemy to them all, or any of them. This protection, the law considereth, cannot be without a great charge to the king; and because,as Christ saith, "no man goeth to war upon his own charge," the common-law therefore hath not only given the king great prerogatives and favours touching his own patrimony, more (I beleeve) than any other prince in the world hath; but also hath, for the sustentation of his great and necessary expences in the protection of his subjects, given him, out of the interest

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and property of the subject,an ample and very error hath drawne you. But for a full answer honorable revenue in very many particular to the objection, I say, that the providence of the cases, some of which I will call to your remem- common-law is such, and so excellent, as that brance. He receivech out of the subjects purse for the defraying of the kings charge upon any for Wardships and the dependances thereupon, occasions of a sudden warre, it hath, over and as we have of late accounted, about 45,000l. above all the ordinary revenues which it giveth by the yeare. This is a revenue which no other the king, which in the time of warte cannot inKing of the world hath; and as it appeares by deed but fall short, made an excellent provithe statute of 11 E. 3. c. 1. It ought to be sion; for, sir, the warre must needs be either imployed in muntenance of the warres.' And offensive or defensive. Offensive must either so doubtlesse was the first institution of the be upon some nation beyond the seas, or common-law; for the lord hath the profit of against the Scots, or Welsh, or other borderers the wards lands to no other end, than to main- within the iland. If it be an offensive warre tain a man in the warre during the infancy of upon some nation beyond the seas, it cannot be him, who otherwise should serve in person.- a sudden accident; for it is the kings own act; He hath likewise all forfeitures upon treason and he may, and it is fitting he should take deand outlawry, and upon penall lawes, fines and liberation; and if it be a just and necessary amerciaments, profits of courts, treasure-trove, warre, he may crave, and easily obtaine assisprisage, butlerage, wreck, and so many more, tance of his subjects, by grant of ayd in parliaas the very enumeration of the particulars would ment. If an offensive warre upon some of his take up long time. To what other end hath neighbours within the continent of this land, as the common-law thus provided for the mainte- the Scots, or the Welsh, which also cannot be nauce of the kings charge, by all these ways sudden or unexpected to the king, being his and me ines of iasing profit out of the interest own act; you know, how politikely the kings and property of the subjects estate in lands and of this realme have provided, by reserving tegoods, but onely to this end, that, after these nures, by which many of their subjects are duties paid, the poore subject might hold and bound to serve them in those warres in person, enjoy the rest of his estate to his owne use, free at their own charge. Only a defensive warre, and cleare from all other burdens whatsoever? by invasion of foreign enemies, may be sodain : To what end hath the law given a part to the in which case the law hath not left the king to king, and left the rest to the subject, if that warre upon his owne expence, or to rely upon which is left be also at the kings will, to make his ordinary revenue, but hath notably providhis profit thereof as he pleaseth? To give a ed, that every subject within the land, high and small portion to him, that may at his pleasure low, whether he bold of the king or not, in case take inore or all, is a vain and an idle act; of forreign invasion, may be compiled at his which shall never be imputed to a wise law. But own charge to serve the king in person, as it it may be objected that as the revenues are ordi- appears by the opinion of justice Thirming, in nary, so are they by the law provided onely for 7 II. 4. The reason of which, in my opinion, the susteyning of the kings ordinary charge; and was to no other end, than that the king might that if the law have not taken further consider- have no pretence whatsoever for the raising of ation, and limited some certain course, how money upon his subjects at his owne pleasure, upon sudden and extraordinary occasions the without their common assent in parliament. Í kings charge may bee susteined, there is yet no doe then conclude this argument, that seeing reason shewed to the contrary, why the king the common-law, for maintenance of the kings may not upon such occasion take some extra-ordinary charge, hath given him such an ample ordinary course for the raysing of money, as by the laying of impositions upon merchandizes, or by a tax within the realne, rather than the common-weath, for want thereof, should perish or be indangered.

revenue out of the interest and property of the subject, and provided also for sodaine occasions; in so doing it hath secluded and secured the rest of the subjects estate from the kings power and pleasure; and consequently, that the And hereupon by the knight that last spake, king hath not power upon any occasion at his (Sir Robert Hachim) it was held, that, Upon pleasure to charge the estate of his subjects by occasion of a sudden and unexpected war, the all impositions, tallages, or taxes, for I hold them king may not only lay Impositions, but levy a in one degree, or any other burden whatsoever, tax within the realme, without As-ent of Par-without the subjects free and voluntary assent, liament, which Position in my opinion is very dangerous; for to admit this were by consequence to bring us into bondage. You say, that upon occasion of suddaine warre the king may levy a tax. Who shall be judge between the king and his people of the occasion? Can it be tryed by any legall course in our law? It cannot. If then the king bamselle must be the sole judge in this case, will it not f low, that the king may levie a taxe at his owne picasure, seeing his pleasure cannot letounded by law? You see into what a mischiefe the admittance of one

and that in parliament. If it were otherwise, you see how it were to the utter dissolution and destruction of that politike frame and constitution of this commonwealth, which I have of ened unto you, and of that excellent wise providence of the common-law, for the preserving of property, and the avoydance of oppression,These two arguments used by me, that of certainty, and this of the provision made by the common-law, are in my poor opinion, arguments of direct proofe, that the king cannot impose. I will now, according to my division, urge

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