an Argument or two of inference and presump- | in the right? To compare great things with lesse, if the lord by matter of record claime any thing of his viliaine, it is a disclamer of the villenage. And The kings of England have other noble and high Prerogatives. I will only name two of them, the making of ware and peace, and the raising and abasing of coyne at their pleasure. Did they ever crave the assent of their subjects in parliament to make a warre? Their advice indeed they have sometimes sought, and their ayd for treasure to maintaine it. The prerogative of raising and abusing the value of money hath been oftentimes put in practice by them, and sometimes strayned to such a height, that the king might well suppose the subjects could not but be much discontent therewith. yet never any king of this realme did it by assent of parliament, which perhaps some one milde king among so many would have done, and it may be, would also have prayed his subjects to yield thereto, only to avoid the grudging of the people, if the seeking of assent in parliament had not been thought to have been prejudiciall to the absolute power of their successors and yet, as for some of these kings, it may be supposed, they made little conscience to prejudice a successor in one point, that made no scruple totally to depose a predecessor from his throne, and all his regalities, and to usurp it to themselves. : First, in the actions and forbearances of the kings, I observe, that all the kings of this realm since Ilen. 3. have sought and obtained an increase of Custome, more or lesse, by the name of Subsidie, of the gift of their subjects in parliament. Nay, some of them, and those not the weakest in spirit, or power, but the most couragious and potent in that whole ranke, even that mighty and victorious prince, king Ed. 3, being to undertake a just and ho- | nourable warre, than which there could not happen a better or juster occasion to have made use of his prerogative of imposing, did neverthelesse at that time stoope so low in this point, that he did, in full assembly of the three states, pray his subjects to grant him a reliefe in this kinde for the maintenance of his warre, and that to endure but for a short time; and further, was well content to suffer his prayer in that behalfe to be entred of record to the memory of all posterity. And the succeeding kings have also suffered the same to be printed, as may appeare by the printed statutes at large, an. 14. Ed 3. cap. 21. Is it likely, that if any or all these kings had thought they had had in them any lawfull power by just prerogative to have laid impositions at their pleasure, they would not rather have made use of that, than have taken this course by act of parliament, so full of delay, so piejudicial to their right, so subject to the pleasure of their people, who never undercoe burdens but with murmuring and much unwillingness? Can there be any thing more hatefull to the high spirit of a king, than to subject himselfe to the pleasure of his people, especially for matter of reliefe, and that by way of prayer, having lawfull power in his hands to relieve himselfe without being beholding to them? If perhaps the kings themselves were igno-him he might obtein as his right, and binde rant of this great prerogative, which cannot be imagined; had they not alwaies about them wise counsellors to assist them, and such as for the procuring of favor to themselves would not have failed to have put them in minde of it? Nay, if they had known any such lawfull prerogative, had they not been bound in conscience so to have done? What an oversight was it of king Edw. 3, and all his counsell, so much to prejudice his right in so beneficiall a prerogative, as to suffer him upon record, and that in parliament, to pray for that, which he might have taken out of his absolute power? Can there almost be a more direct disclaiming And so I procced to my next Argument of Inference drawn from the actions of cur kings. Some of the kings of England, as namely Edw. 2, in the yeere of his reigne, and Edw. 3, in the 1st and 24th yeere of his reigne, as may appeare by the records here amongst us, were contented to accept an increase of their Custome" by way of loune" from the merchants, and solemnly binde themselves to repay it againe. Would any wise man in the world, that thought he had but a colour of right, so much prejudice himself, as to borrow that which he might take without leave, and binde himselfe to repay it? If a poore man perhaps through feare might be enforced so fare to veeld to a mighty adversary, yet that a powerfull man should stoope so low to one much weaker than he; nay, that a king, in a point of such consequence, should so farre discend from his greatnesse, as to borrow of his poore subject that, which without being beholding to himselfe to repay it againe: I say, it cannot with any reason be imagined; Lut withall it must be concluded, that a king, that shall so doe, doth not thinke that he bath so much as colour of right to impose.--I will not much presse or enforce the actions of Edw. 2, who (I confesse) was but a weake prince; but as for his sonne and successor, Edw. 3, there was not, as I have said, a stouter, a wiser, a more noble and couragious prince than he, and none more careful to preseve the rights of Lis prerogative, as may evidently appeare by all his answers in parliamet, on any complent of the subject. Besides, never hid hang on this of custome. What were all the special liberties that were granted them, I know not, nor whether they continue. But sure I am, that by vertue of that grant they are at this day free of prisage, paying onely 2s, upon a tun of wine, by the name of butlerage, which they granted by the same charter; whereas Englishmen pay prisage in specie, viz. one tun before the mast, and one tun behinde. And it is very worthy the observation, how the same king Edw. 1, in the same yeer of his reign did command his customers throughout realme more occasion than he to straine this prerogative of imposing to the utmost. For besides his excessive expence in the warres of Trance and Scotland, he had also a continuall charge of many expensive children. His wife queene Philippa had also for her maintenance a large allowance out of his revenue. But the dowry of queen Isabel his mother, who lived till about the 27th yeere of his reigne, was so great, as it is reported by some writers, that little inore than the third part of the certaine revenue of the kingdome was left to him. Insomuch, as through these occasions of extraor-England, that, whereas certain English merdinary expence, and the diminution of his revenue, he was driven to such necessity, as his queen in the yeere of his reigne, was enforced to pawne her crowne and jewels to procure money for him, as may appeare by the record of that yeere in the office of the clerke of the pels. Nay, the king himselfe, in these extremities, was oftentimes driven to lay his jewels to pawne for money: and in an. 17, did also pledge his crown for 1000l. to certaine merchants of Florence, as by the records of that yecre, in the once of the lord treasurers re-esse possint, præstationes et custumas hujusmembrancer in the Exchequer, is manifest. By this you may see, that this powerfull king wanted not urgent and just occasion, if any occasion may be just, to have put in practice his absolute power of imposing; and yet, as you see, it appears of record, that in the midst of his great wants he tooke an increase of custome " by way of loane," and bound himselfe to repay it. It may be here objected, that he did lay Impositions. What impositions they were, and how to be compared with the Impositions now in question, I purpose to tell you, when I come to answer objections, which I have referred to the end of my speech. In the meane time I will goe on with my course, and urge one argument more, drawne from the actions of our kings, touching the increase of Custome. A man would thinke, that the taking of the increase of Custome by all the kings, both one and other, with the assent of their subjects in parliament, and sometimes by way of prayer and intreaty, for a short time; nay, the taking of it by way of loane, and binding themselves to repay it; and that to have been done by the most powerfull kings, in their greatest necessities; were argument enough, that they did not beleeve they might justly claime it as their right by their absolute power.-And yet is not this all; for, some of them, by name, Edw. 1, did not onely take it by assent in parliament, or by way of loane," but (as one that buyes for his money in the market) did give for it a reall and valuable consideration, and that to merchant-strangers, of whom there was more colour to demand it as a duty, than of his naturall subjects. In proofe of which I produce Charta Mercatoria, made anno 31 Edw. 1, whereby it is recited, that, in lieu of certaine Liberties and immunities granted by the king to the merchant-strangers, as also for the release of prisage, they grunted to the king an increase chants were, as he was informed, of their own accords willing to pay him the like increase of custome which the merchant strangers had granted unto him, so as they might enjoy the like liberties and benefits; neverthelesse they should not compell such English merchants, against their wils, to pay it. The words are worth the hearing. 'Cum quidam mercatores de regno et potestate nostri, ut ipsi dictis li'bertat. (having before recited Charta Mercatoria) uti et gaudere, et de prisis nostris quiesi 6 6 6 modi, de bonis et mercandizis suis, nobis dare et solvere velint, ut accepimus; assignavimus vos ad præstationes et custumas prædictas, de bis, qui præstationes et custumas illas gratanter et absque cohercione solvere voluerint, colligendum, et ad opus nostrum recipiendum; ita tamen quod aliquem mercatorem de dicto regno nostro ad hujusmodi præstationes et custumas nobis invite solvendum nullatenus distringatis.'—What stronger inference can there almost possibly be against the kings absolute power of Imposing, than this: that he was contented, and so specified to all his oncers of the ports, that if the merchants did of their own accords pay more than their ancient customes, they should have consideration for it; but if they themselves were not willing to pay more, then they should not be compelled thereunto? One other Observation I draw from the actions of the kings touching the increase of their Custome, which is this, that those kings, which did lay Impositions (which as I will shew you by and by, was very rarely) though it were never but in time of great necessity, and but to indure for a short time; yet they alwayes did it, not with the advice alone of the merchants, as at this day, but the merchants did alwaies solemnly grant an increase of Custome; and the kings were alwayes wary, for the better justification of their actions to the people, in their commissions for collecting of custome, to recite not onely the great necessity which moved them to take an increase of custome, but also the Grant of the Merchants, as may appeare by the records, of which we have the copies amongst us. I dare confidently say, there is not above one or two at the most that are otherwise, if the impositions be of that nature, which these are of which we compline; and yet these impositions also, by the Groat of Merchants, though raised upon river so great a necessitie of state, and to indure but for a short time, were always complained of by the commons, when they met in parliament, as may appeare amongst other records, by the parliament roll of 27 Edw. 3, No. 27, where in a petition of the commons, exhibited to the king in parliament, are these words: Les "Commons monstrent, coment que les marchants ayent grant per eux, sans assent de parliament, un subsidie de xls. de sacc. de layn, outre le droiturel maletout de demy 'marke; et prion que toit amend a cest parliament; car est encounter reason, que le ⚫ cominaltie de lour biens soient per marchants 'charges.' Which I English thus: The 'commons shew, how the merchants have granted by themselves, without assent of parlament, a subsidie of 40s. upon a sack of wooll, over and above the rightful custome of halfe a marke; and pray that it may be redressed at this parliament; for it is against reason that the commonalty should be charged in their goods by merchants.' With this agreeth the printed statute of 36 Edw. 3, cap. 11, in the Statutes at Large, where you shall finde an expresse provision against the raysing of Impositions upon Wools, by Grant of Merchants; in which petition I doe observe, that the parliament in those dayes did distinguish, even as we now doe, between Impositions laid by act of parliament, and Impositions laid only by the grant of merchants, acknowledging that Impositions laid by parliament only are lawfull, and condemning all other as unlawfull; for otherwise why should they tearme the demy-marke, which was laid by act of parliament, 3 Edw. 1, (Droiturel maletout) a lawful Imposition, but with relation to the unlawfulnesse of these Impositions granted by merchants, which they then did complaine of? Besides, I observe that they say, that it is against reason, that merchants should by their grant, without assent in parliament, charge the whole commonaltie; by which it plainly appears, that they complained not so much of the excesse or greatnesse of the impositions, as of the unlawfull mauner of the raising of it by grant of merchants, without assent in parliament.* Hitherto I have, according to my division, drawn arguments from that which our kings have done, and put in practise for the increase of their custome.-I will now make some observations of their forbearance to put this pretended power in practice, considering the severall occasions of the times, which I will prosecute in order. As to Voluntary Subscriptions for Defence of the State, see Lord Hardwicke's speech in passing sentence on Lord Kilmarnock and others. Lords Journals, Aug. 1, 1746; Comm. Journ. Ap. 2, 1778; King's Speech and Debates thereon in Parl. History, Dec. 5, 1782, 3 Hats. Prec. 71, 72; See also H. 13. Car. 2. c. 4. § 5, and Rex v. Hendley and others, 1719. First therefore in generall, I observe, that from the Conquest, untill the reign of queen Mary, being no lesse then 480 yeeres space, whatsoever the occasions were, whatsoever the disposition of the kings were, yet in the practise of this pretended prerogative of imposing the kings have been so sparing, as, notwithstanding this curious search that hath been made, wherein I suppose nothing that might make for the cleering of the question hath escaped us, it cannot be found or proved by matter of record, that six impositions, such as we now complaine of, were laid by all those kings, who were in number 22: And those sixe, if they were so many, though they were unlawfull, yet were they in some sort to be born withall. First, by reason they were very moderate. Secondly, that they were laid in the times of great and apparent necessitie, and that they were to endure but for a yeer or two; for none of them, except onely that upon wine, laid 16 E. 1, lasted longer. They were, I say, notwithstanding their unlawfulnesse, yet in these other respects so farre to be borne withall, as, if the impositions which are now laid had been so qualified, we should, I suppose, never have complained of them. And yet not one of these few impositions laid in former times, but was complained of, and upon complaint taken away, as may appear by the records here amongst us. How much more reason is there then, that we should expect the like justice now; considering that not one merchandise alone, as then, but very neere all the sorts and severall kindes of merchandises that are, are charged; that not a moderate and easy charge is laid upon them, but such, as though we should confesse his majesties absolute power to lay what he list, yet we had just cause to complain of the excessivenesse of the burden? For first, the rates of merchandises, for the subsidies of poundage and tonnage, are extreamly raysed, a thing also though lawfull, yet hath been rarely put in practise. Then comes the impost upon the back of that, and is as much as the subsidie it selfe is. In some few merchandises, 'tis true, the impost is perhaps lesse then the subsidy; but 'tis as true, that in divers others the impost is farre more. Besides, these impositions were not laid in the time of warre, but even then when we were at peace with all the world, except perhaps there were some sparks of rebellion in Ireland, then not fully quenched. Lastly, these impositions are not, as those in former times were, limited to endure for a yeere or two, but are to come to his majestie, his heirs and successors for ever, as may appeare by his majesties letters patents in print, prefixed before the new book of rates. So as if those few impositions laid in former times had been lawful, yet can they not by any means be a warrant or president for our present impositions, differing so far from them in all these points of consequence. But if even those few, so quallified as they were, were complained of and taken away, what shall we then say of ours, so farre exceeding them in all the degrees of irregularitie? Besides, if so few presidents, as five or six in so many yecres space, and those in times of so great necessitie, without any expresse judgment in law, or good authoritie in approbation of them, but accompanied with as many complaints against them, be argument enough to prove the lawfulnesse of the act, I dare undertake, that as well taxes within the land, as impositions upon merchandizes, may be proved to be lawful. But to alledge the acts of kings, in raysing a profit to themselves upon their subjects, to prove thereby their right, is of all other arguments, that are, the weakest. And so I leave it, and call to minde, that when I told you, it could not be proved by the records amongst us, that from the Conquest to queen Maries time, there had been any more than sixe impositions laid; I did in that number limit my selfe to such impositions as those are which we now complain of; for I must confesse, that in that space, many more impositions were laid, but they were of a farre differing nature from ours; differing, I say, not only in those circumstances by which I did even now compare the impositions of these times to those five or six of former ages, but in very essence and propertie, insomuch as they may not properly be called impositions. And yet the frequent practise of them hath been objected and relyed upon, as so many presidents, to prove the lawfulnesse of the impositions now complayned of. It behoveth me therefore, that in maintenance of my assertion, that so few impositions have been laid, as I have affirmed, that I open unto you the difference betweene the one and the other, which being done, your selves will easily judge, that the greater part make nothing towards the defence of these present impositions. For these impositions, which now are in question, are no other then an increase of custome at the kings pleasure, and commanded by him to be taken, the passage being free and open to all men. Those other, which make such a great shew in number, and are produced as so many presidents in maintenance of these, are no other then so many dispensations or licences for money, to passe with merchandizes prohibited by act of parliament to be exported; as wil evidently appeare by comparing the times, and examining the statutes. I will therefore in this place, as shortly as I can, runne over those presidents, that have been, or may be alledged by the contrary part, out of those records which are here amongst us, and leave it to your judgement, whether I maintaine my assertion, or be not rather better then my word for the number. The first Imposition by them alledged, [Flem. Clark, Doderidge] is that of 16 Edw. 1, which, as it appears by the record, was 4 shillings upon a tun of wine. This indeed, for aught know to the contrary, was a meere imposition, such as are now in question. And yet if I did deny it, and say that it was layd by assent of parliament, I know not how the contrary could be proved; for though indeed the words of the record are, 'cum rex precepisset, ut de singulis doliis vini caperentur 4 solidi,' it follows not that it was laid therefore only by the kings commandment; for we see that even some acts of parliament, in those auncient times, though they were made by the full assent of all the three estates, yet they have these words in their preambles, rer precepit, rex vult. But as for recitalls of acts of parliament by the king, in his commissions, and otherwise, it was in those times usuall to say, cum nuper ordinaverimus; and therefore notwithstanding the recitall be, cum nuper rex precepisset, it is no cleere proof, that therefore it was done onely by the kings commandment. Neverthelesse I will, I say, admit this to be a meere imposition, and to be one of the num ber; and indeed, as this is the first they produce, so is it their best. Only this, amongst all the rest, is not limited to indure for a time certain. But give me leave, I beseech you, to open unto you, with what circumstances this imposition was accompanied, and what followed of it; and then I will leave you to judge, who best are able, how far the present impositions may be justifyed by this. The first circumstance to be observed in this Imposition is, that it was laid immediately after the warre against Wales was ended, and at the tine, when for the selling of the estate of Gascoigne, the king himself was in person enforced to undertake a voyage thither, as may appeare by our histories of those times, which also may bee collected by the very words of the record, which are these, cum rex ante ultimum re'cessum suum ab Anglia precepisset, &c.' That as these times were troublesome, they were also very chargeable to the king, and did put him to try all means for the levying of inoney, I shall not need to urge it: it cannot be otherwise.-One other circumstance is this, that this Imposition laid in this time of great necessity was not, as now, upon all merchandizes, nor so much as in generall upon one kind of merchandize, comming from all the parts of the world, but onely upon such wines as were brought hither from two towns in Gascoigne, Bergerac and St. Emilians, as may appear by the records; [16 E. 1. 22 E. 1, in Scaccario.] and it is probable that these towns were then in revolt, and that the sooner to reduce them to obedience, the king laid this burden upon their commodities, thereby to binder the vent of them.-Another circumstance is this, that though that this imposition were indeed laid without limitation of any time, as touching the continuance thereof, yet within six years following, viz. 5 Dec. a. 22, upon complaint of the merchants the king released two shillings of the foure shillings, as may appear by the records of 22 E. 1, with which the merchants not holding themselves contented, the very same yeare within eight or nine months following, viż. 23 Julii an. 22, the whole imposition was released, as may appeare by a recitall in the accompt of oue William Randall, receiver of the impost money, entred an. 26 E. 1. And within three years after the release, viz. an. 25, there followed an act of parliament against all impositions in generall, as when I come to shew you what statutes there are, in the point, I shall I hope cleerly prove unto you. In the meane time I will proceed to examine the rest. The next precedent urged is an imposition of 40 shillings upon a sack of wooll laid by E. 1. an. 21. For the proofe of which, a record of the Exchequer of that year hath been vouched. I must confesse I have not seen that record. But by another record of the same court, an. 26 E. 1, it is evident, that the said imposition was not raised by the kings absolute power, but by grant, and that also the same was in the time of warre, and to endure but two or three years, if the warre should so long continue, as will best appear by the words of the record. Cum custuma 40s. nobis, in 'subsidium guerræ nostræ contra regem Fran'ciæ, de quolibet sacco lanæ exeunte regnum nostrum, percipiendum per biennium vel triennium si tantum durasset guerra illa, nuper 'concess. fuit, &c.' advantage possible for the maintenance of his opinion. Neverthelesse I doubt not but 1 shall give it a very full answer, such as yet this objection hath not received, though divers, that have spoken before, and some this day, have undertaken to cleere it; wherein I will arrogate nothing to my selfe, but leave it wholly to your censure. It hath been said by master Solicitor, that though this increase of custome may seem to some, to proceed from the grant of merchants, yet that this grant of theirs was to no other purpose, nor had other effect, then only thereby to declare their assent; for that, those which did grant were no corporation or body in the estimation of law, and so could not binde any but themselves alone, and not such as should succeed them; and that it was only the authority of the kings pleasure to accept and take this increase of custome, that gave it life at the first, and strength to continue as an imposition till this very day. For even at this day, saith he, the three-pence upon the pound, granted by the said charter, is paid by the merchant strangers, and they likewise enjoy some priviledges granted by 'the said charter.' And it was further by him observed; that notwithstanding all the statutes that have been urged against impositions, yet this imposition hath continually stood, and hath never been denyed to be paid by any man; and that therefore it is likely that no man till now ever conceived, that these statutes were made against impositions upon merchandizes, but were rather to be understood to extend onely to impositions within the realme. By this you perceive, by what means, upon what occasion, and with what limitation this Imposition was laid. If you will further know, what followed of it, may it please you to read the printed statute of 21 E. 1, c. 7, where it is said, that the more part of the commonality found themselves sore agreeved therewithall; and by the same statute, not only that imposition of 40 shillings upon a sack of wooll, which was the occasion of the great grief and To this Objection I make this answer, that complaint, was taken away; but upon occasion it is indeed true, that the grant of merchants in thereof, there was at the same time provision this case, cannot binde the whole commonalso made against all other impositions whatso-wealth; as I have heretofore proved by the ever, as, I say, I hope I shall anon cleerly prove unto you. Insomuch as this imposition of 40 shillings upon a sack of wooll ought to be so farre from being urged as a president for the present imposition, and consequently of the grievance of the commonwealth which followes thereupon, as that rather on the contrary part it may be thought to be the happiest accident in the consequence thereof, that ever befeli themitting it therefore to be a meer imposition; commonwealth in this kinde. For it was the occasion of the making of the first law that ever was made against impositions, and other charges and burdens of that nature to be imposed by the kings absolute power without assent of parliament. And so I leave their second precedent, and come to the third, which in time was 31 of the same king E. 1. [Vouched by Fleming, Clark, Dodderidge, Bacon, Attorney Hobart.] It is no other then that increase of Custome, which by the merchant strangers was granted to king Ed. 1. by that charter now familiarly known unto us by the name of Charta Mercatoria, which, by all that have maintained his majesties right to impose, hath been stood upon and urged, as an imposition by the kings absolute power; but more especially by master Solicitor hath been strongly inforced with all the petition exhibited in parliament by the commons 27 Ed. 3. No. 27. and by a statute of 36 Ed. 3. c. 11. And therefore I cannot but confesse, that this increase of custome may very truely be called an imposition; for that indeed it did at first take strength, onely by the kings pleasure to accept it, as hath been said, and not by the grant of the merchants. Ad let us consider with what extraordinary circumstances it is accompanied.-First, as you may perceive by the Record itself, and as it hath partly been said already, the king took it not without yeelding recompence for it; for the merchants stranger, by submitting themselves unto this charge, obtained divers liberties and immunities from the king, by the same charter, amongst which freedome from prisage is one which at this day they enjoy, in which respect. this imposition is in some sort tollerable, though not at all lawfull.-Another considerable circumstance, and dillerence from our present Impositions, is this, that it was a composition made by the king with merchant strangers, which, though it be by strictnesse of our common law, not of force to binde in perpetuitie; yet how farre by the civil law this doth binde strangers, which are governed by these lawes, |