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the king upon the knighting of his eldest sonne, both in goods and lands, or in goods onely, as or marriage of his eldest daughter, was by the the case is; yet for reducing it to a more excommon-law uncertaine ; and that the king did presse certainty, the law requireth, that it be take more or lesse at his pleasure, unull he was found by oilice. Wayle, Stray, Wreck, Trele bound to the contrary by statuite. To this Isure-Trove, and such like, are no less certaine; inake divers answers.' Though it were indeed for the king bath the things themselves in a summe uncertaine, yet the common-law did kinde. lines for Misdemeanors are alwayes in some sort give it a limitation; for it is by a assessed by the judges. Amercenenis in all speciall name called Reasonable Ayd: so, as cases are to be a:ferred by the country, and if the summe demanded doe exceed reason, it not be assessed by the hing; though the forme became from a Reasonable Ayd air Unjust Ex- of the jud. ement be, et sit in misericordia domiaction. Besicies, this revenue was a thing i regis, in the king's mercy, pro conten pire happening very rarely, and therefore the cer- predict. Nay, though for pritishment of an tainty thereof not so much regarded by the offence it be by statute-law enacued, that in law. And yet it is to be observed, bow the otlendor shall niake line and ransone at the frame of this common-realtlı could not long kings pleasure, the law even in this case, which indure incertainty even in this casuall revenue; is as strong a case as may be, will not leave but it was reduced to a certainty of 20 s. upon the assessing of the fine iu the kings pleasure, a knights fee, and 20s. upon every 201. soc to be ly tumn rated privately in bis chamber; cageland, by the stat. of West. 1. cap. 35. but it must le solemmiv and legally done in an 3 Ed. 1. Ii in this casuall revenue ihey were open court of justice by the judges, who in all so carefull to be at a certaints: to avoid unrea other cases are to judge between the king and sonable exactions, as the words of the statute his people, where the interest or property of are, how much more carefull would they have the subjeci, or any charge or burden upon
Them been, for the same cause, to have reduced the dotb come in question, as may be prored by great and annual revenue of the custome to a the booke ol 2 R. 3. fo. 11. Tusomuch that I certainty, if they had not thou-le it to have am of opinion, that if a statute nere made, been certaine by the common-law, or linnited that the hing night raise tie customes at his by statute law before that time inade? But, pleasure, vec mivh it not be done as now it is, sir, that, which I rely upon for answer to this by the kings absolute power, but by some other objection, is this. Reasonable ayd was and legall conre, of which the common-law doth is by the common-law due as well to meane take notice; as in the case of the fine and ranlords as to the king; but meane lords were not
Niuch lesse then will the commun-law Jinuited to a certainty, otherwise than in gene- pennii, that it should depend opon 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 You have heard out of what grounds I first uncertain revenues belonging to the king, the deduced this my Position, Thai the law relike of which meane lords have of their tenants; quireth certainty in matter of profit between for the incertainty of which there may also be the king and his people.-You have heard given speciall reason; because these duties first likewise the particular reasons of that Po:ition. began by speciali contract and agreement be- You have also heard whit proofe I have made tween the lord and the tenant, and not directly by particular cases of like nature to this in by operation of the common-law, and so were question; and how I have appived them to the certain and uncertain as they did at first agree. point. And so leaving the judgement of the And therefore you may be pleased to remem- whole to your wisedomes, who can best disber, how in laying iny position I was wary to cerne evhether the argument be of weight, I say, That such rerernes, as are due to the king proceed to my Second Reason, which is drawne as to the head of the common-wealth, (hy from the policy and frame of this commonwhich I purposely excluded such revenues as wealth, and the providence of the commonare common to him with other meane lords) law: the which, as it requires at the subjects are always certaine.
hands loyalty and obedience to their soveraigne, I am now according to promise, and in mun- so doth it likewise require, at the bands oi the tenance of a second part of my Position, to soveraigne, protection and defence of the subshew you, That where the common-luir givetbject against all wrongs and injuries whatsoever, the king a revenue not certaine at the first, offered either by one subject to another, or by that is alwayes reduceable to a certainty by a the common enemy to them all, or any of them. legal course, as by act of parliament, judges, This protection, the law considereth, cannot be or jury, and not at the king's pleasure.--Every without a great charge to the king; and beman, that by his tenure is bound to serve the cause,as Christ saith,“no man goeth to war upon king in his warres, and faileth, is to pay, ac- his own charge,” the common-law therefore cording to the quantity of bis tenure, a fine by hath not only given the king great prerogatives the name of escuage. This cannot be assessed and favours touching his own patrimony, more but in parliament. Upon Forfeitures for Trea- (I beleeve) than any other prince in the world son, or otherwise, in the king, though it be a bath; but also hath, for the sustentation of his kinde of a certainty that the law giveth, in great and necessary expences in the protection giving him all the estate of the party convict, of his subjects, vien him, out of the interest
and property of the subject ,in ample and very error bath drawne you. But for a full answer honorable rente in very many particular to the objection, I say, that the providence of the titses, some of which I will call to your remem common-law is such, and so excellent, as that brance.- le received out of the subjects pure for the defraying of the kings charge upon any for Wiruslips and the dependiuces thereupon, occasions of a sudden warri, it hrub, over and as ne bave of late accounted, abutil 45,(1901. above all the ordinary revenu's which it giveih by the reare. This is a revenue which no other the long, which in the time of marie cannot inhings of the world houthi and as li api tires by diel but fall short, made an eucalicut provithe abitiute of 11 E. 3. c. 1. 'It it to be sion; for, sir, the warre musi pueds be either impluyed in muntence of the wires.' And otle live or defensive. Ofensive must either $ doubtlesse was the first institution of the be upon some nation beyond the seas, or common-law; t'i she lord both the profit of against the Scots, or Welsli, or other i orderers ibe wands lands iv no other end, than to inain within the land. lit be an ouensive walle in a man in th Warre during the infancy of upon some nauon bevond the seas, it cannot be liim, who ottico size should serve in person. a sudden accideni; for it is the kings own act; lle liath likenine ail forfeitures upon treason and he may, and it is fitung he should take deand outlawry, and upon penall lawes, tines and liberation, and if it be a jest and necessary ismerciamento, profits of curts, treasure-trove, warre, he may crave, and easily obtaine assisprisage, Lutherage', wreck, and so many more, tance of his subjects, by grant of ayd in parliaits the very enumeration of the particulars would ment. Ii' an oitensive warre upon some of his tide up long the To what other end hath neighbours within the continent of this ilanı', as the coin non-law thus provided for the mainte tlie Scots, or the Welshi, whics also cannot be mance of the hill charge, by all these ways sudilen or unexpected to the king, being his and me ile orta-ing protit out of the interest own act; you know, how policihery the kings and propery of the subjects estate in lands and of this realme have provided, by reserving iegoous, but one y to this end, that, after these nures, by which many of their subjects are duties paid, the poore subject might bold and bound to serve them in those Warts in person, enjoy the fint wilis estate to liis owne ure, free at their own charge. Only a detensive warre, and clare tiom ll other burdens shatsoever? | by invasion of foreign enemies, may be sodain : 'io what end it is the law given a part to the in which case the law hath not lett the king to kins, and let the rest to the subject, is that warre up in his owne expence, or to rely upon which is lurt beck at the lilies will, to make his ordinary revenue, but hauth notably prouidliis protit there it is he plaeth? To give a ed, that every subject within the land, high and small portii a tulan, that way at his pleasure low, nohtiher he bold of the king or not, in case tale inore or all, is a rain and an idle act; of forreign invasion, may be compeiled at bis which shall never be inputed to a wise law. But own charge to serve the king in person, as it it may be objecte didat as the revenues are ord appears by the opinion of justice Tbirming, in Dary, so are they by the law provided onely for 7 11. 4. The re.son of which, in my opinion, the susteyning of the hings ordinary charge; and was to no other end, than is at 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 coure, how money upon his subjects at his owne pleasure, npon sudden and extraordinary occasions the without their common assunt in parliament. I hings chuve may bee sustened, there in vino doe then conclude this argument, that seeing reason thened in the contrary, why the love the common-law, for mainietkide of the hings may not pun such a casien take some time ordinary charge, hath given bin such an ample od nary coure for the riy-ing of mobil, is by revenue out of the interest and pro, rity of the He laying of impositions upon merchandizes, or subject, and provided also for sodaile mecaby a tax wil in the realine, rather than the sins; in so dring it bath secluded and secured Comman-wenith, for want thereof, shuali perish the rest of the subjects estate from the hings or be ind.l.geruil.
power and pleasure; and consequently, that the And hereupon by the kniglit that last spake, King hath not power upon any occasion at his (Sir Robert Hichim) it was held, thit, l'pon pleasure to charge the entute of his bicors by occasion of a su idea and unexpected war, the all impositions, tallages, or taxes, for I bolu ilem king may not only lay Impositions, bu: levy a in one degree, or any other burden whatsoever, tax within the realue, without A Bit of lar without the subjects free and voluntary as-ent, liament, which Pusition in my opinion is very and that in parliament. If it were oibcrwise, dangerous; for to admit this were by couse you see how it were to the ulter dissolution and quence to bring us in'o boudige. You say, destruction of that politike tame sud constituthat spon occasion of staine warre ile kingin of this commonwealth, widh l bale or inmay levy a tas. Who shall be judge beineen ed unto you, and of that excellent wise pruvia the king and his people of the occasion? Can dence of the common-law, for the preserving of it be tryed ly shly legal counc in var lir? It property, and the avoydance of oppression.--
It iben ile hing himsele laust lette These two arguments used by itt, i at ofcerscle judge is this case, will it noti:lion, that the tainty, and this ut he provision made by the hing may eie a title at his One picasure, see common-law, are in my poor opinion, arguing luis pleasuie cannotlei candej by law? You ments et direct proote, that the king caillot imsee into what a wriscivicfe the admittande uione pose.--I wil nuw, according to my division, tirge
an Argument or two of inference and presump- ) in the right? To compare great things with tion; the rather, because arguments ofibis na lesse, if ibe lord by maiter of record clarine ture have been much enforced by those, who any thing of his viliaine, it is it disclaimer of have maintained the contrary opinion, espe- the villenage. cially by Mir. Solicitor, (Sir Francis Bacon.) The kings of England have other noble and I call them Arguments of Inference; and yet high Prerogatives. I will only name tho of in my opinion, those which I shall urge, are them, the making of warre and peace, and the also of good proofe. Such as they are, you raising and abasing of coyne at iheir pleasure. shall judge of them. They are drawn, either Did they ever crave the assent of their subjects from the actions or forbearances of the kings of in parlinment to make a warre? Their advice this realme, or from the actions and forbear- indeed they have sometimes sought, and their ances of the people.
ayd for treasure to maintaine it. The prerogaFirst, in the actions and forbearances of the tive of raising and abasing the value of money kings, I observe, that all the kings of this realm hath been oftentiines put in practice by them, since Ilen. 3. have sought and obtained an and sometimes strayned to such a leight, that increase of Custome, more or lesse, by the the king might well suppose the subjects could name of Subsidie, of the gift of their subjects in not but be much discontent therewith. And parliament. Nay, some of them, and those yet never any king of this realme did it by asnot the weakest in spirit, or power, but the sent of parliament, which perhaps some one most couragious and potent in that whole milde king among so many would have done, ranke, even that mighty and victorious prince, and it may be, would also have prayed his king Ed. 3, being to undertake a just and ho- subjecis to yield thereto, only to avoid the nourable warre, ihan which there could not grudging of the people, if the seeking of assent happen a better or juster occasion to have in parliament had not been thought to have made use of his prerogative of imposing, did been prejudiciall to the absolute power of their neverthelesse at that time stoope so low in this successors : and yet, as for some of these kings, point, that he did, in full assembly of the it may be supposed, they made little conscience three states, pray bis subjects to grant him a to prejudice a successor in one point, that made reliele in this hinde for the maintenance of kis no scruple totally to depose a predect-sor from warre, and that to endure but for a short time; his throne, and all his regalities, and to usurp and further, was well content to suiler bis it to themselves. prayer in that behalte to be entred of record to And so I proceed to my next Argument of The memory of all posterity. And the succeed Inference drawn from the actions of our kings. ing kings have also suffered the same to be some of the kings of England, as namely Edw. 'printed, as may appeare by the printed statutes 2, in the yeere of l.is reigne, and dw, 3, at large, an. 14. Ed 3. cap. 21. Is it likely, in the 1st and 24th yeere of his reigne, as inay that if any or all these kings had thought they appeare by the records here amongst us, were had had in them any law full power by just pre- contented to accept an increase of their Cusrogative to have laid impositions at their tome by way of loane” from the merchants, pleasure, they would not rather have made and solemnly binde themselves to repay it use of that, than have taken this course by againe. Would any wise man in the world, act of parliament, so full of delay, so pre that thought he had but a colour of righi, so judiciall' to their right, so subject to the much prejudice himself, as to burrow that pleasure of their people, who never under which he might take without leare, and binde Loe burdens but with murmuring and much himselfe to repay it? If a poore non perhaps unwillingness? Can there be any thing more through feare might be enforced so iarre to hateful to the high spirit of a king, than to veeld to a mighty adversary, yet that a powersulject himselfe to the pleasure of his people, full man should stoope so low to one wuch especially for matter of reliete, and tliat by way weaker than he; nay, that a king, in a point of prayer, having lau full power in his hands to of such consequence, should so farre discend relieve himselte without being beholding to from his greatliesse, as to korrow of his poore them?
subject that, which wiilout being beholding to If perhaps the kings themselves were igno- him he might ehtein as his right, and binde rant of this great prerogative, which cannot him clic to repay it agnine: I say, it cannot be imagined; had they not alwaves about them with any reason he imagined ; int witball it wise counsellors to assist them, and such as must be concluded, that a king, that shall so for the procuring of favor to themselves would dhe, doth not thiake that he haeli so much as not have failed to bave put them in minde of colour of right in impose.--I will not much it? Nay, if they had known any such lawfull piese or enforce the actions of Edw. 2, who(I prerogative, had they not been bound in con confcsse) was but a wake prince; but as fur science, so to have done? What an oversight his sonne and successor, Edw.3, there 119 was it of king Edw. 3, and all his counsell, so not, as I have said, a souter, it wiser, a more much to prejudice his right in so beneficiall a rohle and couragious prince than he, and none prerogative, as to suffer him upon record, and more careful to prestise the right of his prethat in parliament, to pray for that, which he rogative, as may evinentis argenre hy all fois Inight have taken out of his abs lute power ? answers in pariunt, i, on y complaint of Can there almost be a more direct disclan ng the subjcct. Bisides, never be mis on ühis
queen in the
real ne more occasion thun lie to straine this, of custome. What were all the special liberprerogatve ut imposing to the utmost. Torties that were granted them, I know not, nor besides his eremine esence in the warres of whether they continue. But sure I am, that Trance and Solund, he had also a continuali by vertue of that grant they are at this day change of many expensive children. His wife tree of pisage, paying onely 2s. upon a ton of queene Philippa had also foi her maintenance wine, by the name of builerage, which they a large allowance out of his resenuc. But the granted by the same charter; whereas Englishdowry of queen Isabel his mother, who lived men pay prisage in specie, viz, one tun beiore till about the 27th yeere ot' bis reigne, was so the mast, and une tun behinde. great, as it is repo ied by some writers, that And it is very worthy the observation, how Sittie inore than the third part of the certaine the same hing Edw. 1, in the same yeer of his revenue of the kingdome was leti io lim. In- reign did command bis customers throughout somuch, as through these occions of extraor- | England, that, whereas certain English inerdinary expence, and the diminution of his re chants were, as he was intormed, of their own venne, he was driven to such necessity, as his accords willing to pay bim the like increase of
yeere of his reigne, was en custome which the merchant sirangers had forced to pawne her crowne and irwels to pro- granted unto him, so as they might enjoy the cure money for him, as may appeare by the re like liberties and benefits; neverthelesse they cord of that yeere in the ottice of the clerke of should not compeil such English merchants, the pels. Nay, the king bimselle, in these ex against their wils, to pay it. The words are tremities, was oftentimes driven to lay his worth the hearing. •Cum quidam mercatoies jewels 10 pawne for money: and in an. 17, de regno et potestate nostri, ut ipsi dictis lidid also pledge his crown tor 1000!, to certaine 'bertat. (having betore recited Charta Mercamerchant, of 'lorence, as by the records of that 'toria) uti et gaudere, et de privis nostris quiesi yeere, in the oince of the lord trensurers re esse possint, præstationes et custumas hujusmembrancer in the Exchequer, is manifest. modi, de bonis et mercandizis suis, nobis dare By this you may sce, that this powerfull kinget solvere velint, ut accepimus; assignavimus wanted not urgent and just occasion, if any * vos ad præstationes et custumas prædictas, de occasion may be just, to have put in practice his, qui præstationes et custumas illas gratanhis absolute power of imposing; and yet, as ter et absque cohercione solvere voluerint, you see, it appers of record, that in the midst 'colligendum, et ad opus nostrum recipiendum; of his great wants he tooke an increase of cus . ita tamen quod aliquem mercatorem de dicto tome
by way of loane," and bound himselfe regno nustro ad hujusinodi præstationes et to repay it.
custumas nobis invite solrenduin nullatenus It may be here objected, that he did lay • distringatis.'—What stronger interence can Impositions.-What impositions they were, there almost possibly be against the kines aband how to be compared with the Impositions solute power of Imposing, than this: that he now in question, I purpose to tell you, when I was contented, and su specified to all his ontscome to answer objections, which I have re cers of the ports, that it the merchants did of ferred to the end of my speech. In the meane their own accords pay more than their ancient time I will goe on with iny course, and urge customes, they should have consideration for one argument more, dran ne from the actions it; but if they themscies were not willing to of our hings, touching the increase of Custome. pay more, then they should not be compiled
A man would thinke, that the taking of the thereunto? increase of Custome by all the kings, both one One other Observation I draw from the and other, with the assent of their subjects in actions of the kings touching the increase of parliament, and sometimes by way of prayer their Custome, which is this, that those kings, and intreaty, for a short time; nay, the taking which did lay Impositions (which as I will of it by way of loane, and finding themselves shex you by and by, was very rarely, though it to repay it; and that to have been done by the were never but in time of great necessity, and most powerfull kings, in their greatest necessi- but to indure for a short time; yet they alties; were argument enough, that they did not wayes did it, not with the advice alone of the beleeve they might justly claime it as their merchants, as at this day, but the merchants right by their absolute power.--And yet is not did alwaies solemnly grant an increase of cus this all'; for, some of them, by name, Edw. 1, tome; and the kings were alwaye, wary, tor did not onely take it by assent in parliament, the better just fication of their actions to the or “ by way of loane," but (as one that buyes people, in their commissions for collecting for his money in the market) did give for it a of custome, to recite not onely the great nee reall and valuable consideration, and that to cesity which moved them tut ke an increase merchant-strangers, of whom there was more of cusione, but also the Grant of the Verchons, colour to demand it as a duty, than ot his na as inay appeare by the records, of which we turall subjects. In prvote of which I produce have the copies amongatus. I dare contundently Charta Mercatoria,' made anno 31 Edw. 1, av, there is not above one or tno at the mast whereby it is recited, that, in lieu of certaine that are otherwise, if the iuipositions be of that l. berties and immunities granted by the king to nature, which these are of which we ce! polie; the merchuuli-strangers, as also for the release and yet these impositions id-o, by the Giant utprise, they granted to the king an invitare of Mercbants, thiwugh reized upun 1.6 T *
great a necessitie of state, and to indure but First therefore in generall, I observe, that for a short time, were always complained of by from the Conquest, untill the reign of queen the commons, when they met in parliament, as | Mary, being no lesse then 480 yeeres space, may appeare amongst other records, by the whatsoever the occasions were, whatsoever the parliament roll of 27 Edw. 3, No. 27, where in disposition of the kings were, yet in the praca petition of the commons, exhibited to the tise of this pretended prerogative of imposing king in parliament, are these words: • Les the kings have been so sparing, as, notwith• Commons monstrent, coment que les mar- standing this curious search that hath been chants ayent grant per eux, sans assent de made, wherein I suppose nothing that might
parliament, un subsidie de xls. de sacc. de make for the cleering of the question hath es• layn, outre le droiturel maletout de demy caped us, it cannot be found or proved by (marke; et prion que coit amend a cest par- matter of record, that six iinpositioris, such as • liament; car est encounter reason, que le we now complaine of, were laid by all those * cominaltie de lour biens soient per marchants kings, who were in number 22: And those 6 charges.' Which I English thus : “ The sixe, if they were so many, though they were
Commons shew, how the merchants have unlawfull, yet were they in some sort to be « granted by then selves, without assent of par- born withali. First, by reason they were very 5 hament, a subsidie of 10s. upon a sack of moderate. Secondly, that they were laid in « wooll
, over and above the rightful custome of the times of great and apparent necessitie, and "Jalte a marke; and pray that it may be re that they were to endure but for a yeer or two; • dressed at this parliament; for it is against for none of thens, except onely that upon wine,
reason that the commonalty should be charged laid 16 E. 1, lasted longer. They were, I say, in their goods by merchants. With this notwithstanding their unlawfulnesse, yet in agreeth the printed statute of 36 Edw. 3, cap. these other respects so farre to be borné with11, in the Statutes at Large, where you shall all, as, if the impositions which are now laid finde an expresse provision against the raysing had been so qualified, we should, I suppose, of Impositions upon Wools, by Grant of Mer- never have complained of them. And yet not chants ; in which petition I doe observe, that one of these few impositions laid in former the parliament in those dayes did distinguish, times, but was complained of, and upon coineven as we now doe, between Impositions laid plaint taken away, as may appear by the reby act of parliament, and Impositions laid cords here amongst us. How much more reaonly by the grant of merchants, acknowledging son is there then, that we should expect the that Impositions laid by parliament only are like justice now; considering that not one lawfull, and condemning all other as unlawfull; merchandise alone, as then, but very neere ali for otherwise why should they tearme the de- the sorts and severall kindes of merchandises my-marke, which was laid by act of parlia- that are, are charged ; that not a moderate ment, 3 Edw. 1, ( Droiturel maletout) a lawful and easy charge is laid upon them, but such, as Imposition, but with relation to the unlawful- though we should confesse bis majesties absonesse of these Impositions granted by mer lute power to lay what he list, yet we had just chants, which they then did complaine of? Be cause to complain of the excessivenesse of the sides, I observe that they say, that it is against burden? For first, the rates of merchandises, reason, that merchants should by their grant, for the subsidies of poundage and tonnage, are without assent in parliament, charge the whole extreamly raysed, a thing also though lawfull, commonaltie; by which it plainly appears, yet hath been rarely put in practise. Then that they complained not so much of the ex-comes the impost upon the back of that, and is cesse or greatnesse of the impositions, as of as much as the subsidie it selfe is. In some the unlawfüll manner of the raising of it by few merchandises, 'tis true, the impost is pergrant of merchants, without assent in parlia- haps lesse then the subsidy; but 'tis as true, ment.*
that in divers others the impost is farre more. Ilitherto I have, according to my division, Besides, these impositions were not laid in the drawn arguments from that which our kings time of warre, but even then when we were at have done, and put in practise for the increase peace with all the world, except perhaps there of their custome.--I will now make some ob were some sparks of rebellion in Ireland, then servations of their forbearance to put this pre not fully quenched. Lastly, these impositions tended power in practice, considering the se are not, as those in former times were, limited verull occasions of the tinies, which I will pro- to endure for a yeere or two, but are to come secute in order.
to his majestie, his heirs and successors for ever,
as may appeare hy his majesties letters patents As to Voluntary Subscriptions for Defence in print, prefixed before the new book of rates. of the State, soe Lord IJardwicke's speech in So as if those few impositions laid in former passing sentence on Lord Kilmarnock and times had been lawfull, yet can they not by others. Lords Journals, Aug. 1, 1746; Comm. any means be a warrant or president for our Journ. Ap. 2, 1778; King's Speech and De- present impositions, differing so far from them bates thereon in Parl. History, Dec. 5, 1782, in all these points of consequence. But if 3 Hats. Prec, 71, 72 ; See also H. 13. Car. 2. even those few, so quallified as they were, c. 4. § 5, and Rex v. Hendley and others, were complained of and taken away, what 1719.
shall we then say of ours, so farre exceeding