they of Candy not being able to afford them better cheape than the English, the English might still fetch them from Caudy, as they had wont to doe. I say, there could not possibly be a more justifiable occasion of laying impositions, than this was. And did this king, so carefull in other things of preserving his prerogative, and most of all in matters that concerned his profit, take hold of this occasion to lay an imposition by his absolute power? Nay rather, though he saw it convenient, and in a manner necessary, yet he conceived it to be unlawfull so to do; and therefore did it not by his absolute power, but by assent of parliament, as may appeare by the statute of 7. Ilen. 7. cap. 7. printed; where in the preamble of the act, you shall see the occasion of the making of the act to be as I have opened it unto you: and you may perceive by the body of the act, that for the counterpoysing of the imposition of four duccats laid by the Venetians upon our merchants, there was imposed 18s. for a butt of malmesey, upon their merchants bringing it hither, to last as long as the imposition of foure duccats, which, as appeares by the act, came but to 18s. of our money, should endure. It is not probable, that this king, considering his other actions, would have suffered this to have been done by parliament, if he had thought he might have lawfully done it by his absolute power; and therefore it cannot almost be gainesaid, that in these times this pretended prerogative of laying impositions without assent of parliament was held to be against law. the people were in point to rebell, had not the king stayed the proceedings of the commissioners by his letters. Finding that this way would not serve his turne, hee demanded a benevolence; which not answering his expectation, he did the same yeere raise unto himselfe a great deale of treasure by abasing his gold. Such things as these, princes never put in practice, but when all other meanes faile them; and yet hee went many degrees beyond this. For, in the 27th yeere ofhis reigne he suppressed above 370 religious houses, the yeerly value of whose revenues I have read to be no lesse than 32,000l. per annum in those days: and that of their goods, sold at very low prises, he made above 100,000l. in present money. About 4 yeares after he dissolved all the monasteries, abbeies, priories, nunneries, and all other religious houses of what kinde soever throughout England. By which meanes, and by the sale of their goods, he gathered such a masse of treasure, as it might have been imagined that never any king of this realme should have needed to have sought reliefe at his subjects hands. Yet he himselfe, no longer than within 3 yeeres after following, craved and obteined, as may appeare by the statutes of that time, an excessive great ayde by parliament; and yet the yeere following hee did also abase his coyne more than halfe in halfe, such an abasement as never before or since was heard of, and could not but bee very grievous to the people; but because perhaps they held it lawfull so to doe, they made no publique complaint thereof. Hen. 8. his sonne and successor, was so farre And it is worth the observing, that though this from the disposition of his father, in this point prerogative of abasing coyne be a thing which of thrift and providence, as there was not in trencheth as deepely into the private interest of the whole ranke of our kings any one like to the subject as the laying of impositions; for by him, for excessive prodigality." The great this meanes a man, that this day is worth in riches stored up by his father with so much revenues a hundred pounds per ann. shall tocare, and left unto him, hee so sodainly con- morrow, if the king be so pleased, be worth sumed in triumphs, maskes, mummeries, ban- but fifty or forty, or lesse, in reall value; and quets, pompous and braving warres, as was that though also the practise of this prerogative hath of Turwin and Turney, and in the satisfying of not been forborn by any of the kings of this his lust, as he was out of very necessity en- realme, and that some of them have used it forced to crave most unreasonable aids of his very immoderately; yet cannot there be found subjects in parliament, such as never before any one publique complaint, that ever I have had been granted, which through very dread met withall, upon record against it, as from and feare were yeelded to him. Yet not so time to time there have beene many against satisfied,that no meanes for the raysing of money impositions; which argues that the subject did might bee neglected or unattempted, inthe 15th make a difference between these two prerogayeere of his reigne, by the councell of that proud tives; this, of laying impositions; and that, of prelate cardinall Woolsey, he spared not to abasing coyne; thinking the one lawfull and send out commissions into every shire through the other not. But to conclude my observaout the whole realme, with privy instructions to tions upon the actions of Hen. 8. The next the commissioners, how they should with most yeere after this unconscionable abasement of advantage behave themselves, in perswading his money, he craved a benevolence. The the people to contribute to the king the sixth yeere following he tooke the profits of all the part of their whole estates, to bee paid pre-chautries, colledges and free chappels, &c. sently, either in money or plate; whereupon followed extreme cursing, weeping and exclamation against the king and his councell, and Hen. 8. had a subsidie of tonnage and poundage granted to him for his life, the first yeare of his reign, as appeares by the Parl. Roil. during his life, which ended the next yeere. Can any man imagine, that during this kings reigne it was held lawfull, or any such thing so much as dreamed of, to rayse treasure by laying impositions? I will enforce it no farther, but leave it to the judgment of any reasonable man, that shall consider these things which I have remembred, whether or no it bee likely. Out of the time of his sonne and successor recompence the full of the losse susteined, yet Ed. 6, I can observe little, because of the short-upon divers con-iderations, at this time us nesse of his reigne. But methinkes, if his go- ' and our councell moving, we are pleased only vernors had imagined that any such preroga-to assesse upon every short cloth, by the name tive had been due unto him, they should not in of custome, six shillings eight-pence, &c.' honor have forborne the practise thereof for I thought good to open this at large unto you, the supplying of the kings great necessities, and that you might see, upon what special reason instead thereof have craved of the subjects that of equity this imposition was grounded, and unaccustomed and unreasonable subsidy, grant-how it differeth from ours. And it is worthy ed an. 2. of a certain sum of money upon every sheep and every cloth within the realme, for 3 yceres; which afterwards for the unreasonable nes thereof was released. the observing, how the queene commandeth this increase of custome to be yeelded unto her, not as an imposition, or by the name of impost, but by the name of custome; because it cometh in lieu of the antient custome upon wool; which is the reason, that at this day it is demanded and paid by that name; whereas no other new raised duty bath that priviledge, but they are either called subsidie of tonnage or poundage, if they be raised by act of parlament; or impost, if by the kings absolute power.-The name of Custome was anciently given to none but to wools, woolfells, and leather; and upon this occasion, to cloth also.-This imposition, though grounded upon such equity as you have heard, yet in Dyer, 1 Elz. fo. 165. a. and b. it was, as appeares by my lord Dyer, complayned of by the merchants of London with great exclamation,' (which are his words,) and suit to the queen to be unburdened of it, because it was not granted in parliament, but assessed by queen Mary of her absoluté power: whereupou there were divers assemblies and conferences of the justices and others, but their resolution is no where to be found, at least, by us. It is very probable, that, if they had given judgment for the queen, it would not have beene kept close.* But howsoever the profit was too great to be taken from the crowne, and therefore it continues til this day. I have now gone through in such sort as you have heard, the times of all the kings from Ed. 3, till Q. Maries reigne; during which time what can there be more imagined, that might possibly have happened to have awakened impositions, if they had not been more than asleepe? Neither the necessity of just and honorable warre, nor the subtilties and curiosity of peace, nor the prodigality of some of these kings for the better satisfying of their pleasures, nor the covetousness of others, nor the softnesse of some of their dispositions, nor the nonage of others apt to be abused by evill counsellors, nor the dreadfull and fearefull awe in which some of them held their subjects, nor the assurance of the peoples extraordinary affection, which might have emboldened some others, nor the evil conscience of usurpers, nor any other motive whatsoever, which happened during this long time, could revive them; untill Q. Mary did at last raise them out of the grave, after they had been so many yeeres dead and rotten. The first Imposition, that she layd, was that upon cloth, continued till this day, which grew upon a speciall reason; as may appeare by the printed booke of the rates of her customes and subsidies; in the end whereof you shall finde a Howsoever the reason in equity in the laying Declaration expressing the losse susteined by this imposition upon cloth may seeme to bee reason of the difference between the customes sound unto some inen, and so to allow of this and subsidies of wool and cloth. By which it imposition as differing from ours, yet for my appeares, that a sack of wool yeelded in cus- part I hold it not so, when I consider what tome six shillings eight-pence, and in subsidie course was taken by Ed. 3, upon the same thirty-three shillings four-pence; that the cus- occasion. An. 11. E. 3. cap. 1. and 2, it was tome upon a short cloth was fourteene-pence, enacted, that no wool should be carried out of and that a sack of wool did commonly make England, but by the kings licence; and that foure short clothes, the custome of which was no man should weare cloth, other than such as foure shillings eight-pence; so that the custome should be made in England. This law tooke of wool made into cloth was lesse, then the such effect, as within ten yceres the greatest custome and subsidie of so much wool not part of the wool in England was made into cloathed, in every sack in short cloathes thirty-cloth; and it became to be transported in such five shillings foure-pence; which difference was reduced to an equality by rating upon every short cloth ten shillings. After this declaration made of the difference, and of the rate which reduced both to an equality, follow these words; Which difference considered, and the 'great losse susteined by us in the same, by reason that cloathing is much increased, it is 'thought convenient by us, with the advice of our councell, towards the reliefe of the losse, for to assesse, upon the clothes carried out by ' way of merchandize, some larger rate then 'heretofore hath been used; and though it ⚫ were reason to appoint such a rate as might abundance, by reason that there was no custome at all due upon cloth, and the custome and subsidie upon wools was very high, that in the 21st yeere, the king, finding his custome of wools so much decreased, doth seeke to remedy it, not by imposing a new charge upon cloth by his absolute power, as queen Mary did, but did it by assent of his subjects in full parliament, as I collect partly by my lord Dyer in the place last mentioned, but more fully by a recitall in a record amongst us, * Plowden's argument against it, in Mr. Tate's hand. < upon wines, I know not, except it be the great profit that comes by it to the crown, and because there was never any late judgement given directly against impositions. of 24 E. 3. Ro. 13. Orig. de Scaccar. to this of profit, if they be any way able to maintain effect: That, Whereas the customes and sub-it. What hath hitherto upheld the imposition sidies due and granted upon wools are much decreased, because a great part of the wool of England is made into cloth, for which no 'custome is due; and whereas in consideration thereof, at our council held the 21st veere of You have hitherto heard what reason and our reigne, by the common assent of the pre- direct proofe I have used to maintaine, that by lates, earles, and barons, and others, it was or- the common-law the king cannot at his will deined and accorded, that 14d. by denizens, increase his custome by way of imposition. and 20. by strangers, should be paid for You have, secondly, heard what the practise of every cloth of assize, &c. made of English former ages hath been in this kinde, till this wool, and transported; upon paine of forfe t-day; from which I have also drawn reasons of 6 ure of the clothes.' And so followeth an authority given to collect the same. 6 The first statute is in Magna Charta, cap. 30. The words are, All merchants, if they were not openly prohibited before, shall have 'their safe and sure conducts, to enter and depart, to goe and tarrie in the realme as well by land as by water, to buy and sell without any evill tolls, by the old and rightfull customes, except in the time of warre. And if 6 inference, that prove the common-law so to be. But now, admitting that by the common-law it The next Imposition laid by queen Mary had been cleere and without question that the was forty shillings upon a tun of French wines, king might at his will have laid impositions, imposed in the 5th yeere of her reigue: at and that also the same could have been cleerly which time there was first a proclamation made, proved by the practise of the ancient kings; that no wines at all should be brought from yet I affirme, that so stands the law of EngFrance, being then in enmity with England,land at this day, by reason of statutes directly upon paine of forfeiture of the wines; which in the point, as the kings power, if ever he had by the way, is a strange clause in a proclama-any, to impose, is not onely limited, but utterly tion. Immediately after this restraint there taken away; as I hope I shall be able evidentwas an order made by the queen and her privyly to prove, notwithstanding any objection that counsell, that such as would might bring in hath been made against the interpretation of French wines, notwithstanding the proclama- the statutes to this sense. tion, paying forty shilings upon every tun by the name of impost, as doth appeare by record in the rolls of Easter terme, 1 Eliz. in the office of the kings remembrancer of the Exchequer, in the Case of one Germane Ciol, against whom an information was exhibited for not paying the said imposition. Whereunto, taking it by way of traverse, that there is any law of the land by which he may be charged with impost, he pleads a licence made unto Lim, an. 1 and 2 Ph. et Mar. to import a cer- of the warre, they shall be attached without taine member of tunnes of wine within a cer-harme of body, or goods, untill it be knowne taine time, any restraint then made, or after-to us, or our justices, how our merchants be wards to be made to the contrary, notwith- intreated there in the land making war against standing; provided alwayes, that the custome, subsidie, and other dutics due and accustomed to be paid to the king and queen, were duly satisfied: and he shewes, thit, for all wines brought in by him during the life of queen Mary, he paid the subsidie of tonnage, viz. three shillings for every tun, which was all that was due and accustomed to be paid. Upon this plea a demurrer was joyned, and judgement given thereupon against the queen. This Iudgement bath been enforced in the maintenance of Impositions. Whether or no it make not rather against them, I leave to your cen sures. Neere about the same time there were Impositions laid also by queen Mary upon all French commodities whatsoever to be imported, as may appear by the port-bookes of those times in the Exchequer; which impositions were received to the use of queene Eliz. in the beginning of the 1st yeere of her reign. But ere the yeer ended they were all taken away, as may appear by the same port-bookes; which in my opinion is a great argument, that they were not then held lawfull. For princes due not so easily give over their hold in matters 6 they be of the land making warre against us, and be found in our realme at the beginning us, &c.' The statute, of which this is a branch, is the most ancient statute-law we have, wonne and sealed with the blood of our ancestors; so reverenced in former times, that it hath been by parliament provided, [25 E. 1, cap. 1, 2, 3, 4.] that transcripts there should be sent to all the cathedrall churches of England, there to remaine; that it should be twice every yeere publikely read before the people; that likewise twice every yeere there should be excommunication solemnly denounced to the breakers thereof; that all statutes and all judgements given against it shall be held as void; that it should be received and allowed as the commonlaw, by all such as have the administration of justice; and it hath been no lesse than 29 times solemnly confirmed in parliament. I will, therefore, with so much the more care, endeavor to free this law from all the objections, that have been made against it. The first Objection doth tend to the diminishing of 'the extent of this statute, as touching the persons whom it may concerne; for it hath been collected out of the latter words of the statute, that it should extend onely to merchants-aliens, and not to denizens. First, it is improbable, that the makers of the law should be more carefull to provide for the indempnity of merchant-strangers than of Eng- | lish; except perhaps they might imagine, that English merchants were already sufficiently provided for by the common-law. If that were their reason, as there could be no other that I can imagine, it doth as much maintaine my opinion, as if they had been conteined within the statute.-Again, the words are generall, all merchants; and, qui omnes dixerit, nullos excipit.' their merchandize; for the farther remedy of which there were afterwards divers statutes made, which doe evidently manifest that such was the mischief. And they doe the rather make this collection because of the words, buy and sell without evil tolls; for, say they, impositions are not paid upon the buying and selling of merchandize, but when they are to ship or unship. They take hold of the word Toll, which properly is an exaction for passage within the land, or for sale in markets or faires. These objections notwithstanding, I hold it somewhat cleere, that the meaning of this statute was principally to secure merchants touching impositions. My first argument is drawn ab autho ritate, from the authority of the wisest and most sage men in greatest places and offices within this kingdom, in the times wherein they Besides, the statute is a beneficiall law; in which case particular and speciall words doe alwayes admit a generall extent: and therefore, to restraine generall words, as the objectors would, is against all reason, and rule of law. As for the latter words, 'tis true, they doe in-lived, and who also could so much the better deed extend onely to merchant-strangers; but the sense of the first sentence is perfect without this and as long as no absurdity nor contradiction doth follow by interpreting the first words to extend to all merchants in generall, and the latter onely to merchant-strangers, the most ample and beneficiall construction is ever the best, as in all other statutes of this nature. But this Objection is, in my opinion, cleerly removed by two statutes made by Ed. 3, in declaration of this very clause. The first is, 2 Ed. 3, c. 8, the words are, All merchants, strangers and privies, may goe and come with their merchandizes into England, after the tenure of the Great Charter.' I take it, that privies' in this place, being the very word that is found in the originall, which is in French, ought to be understood denizens;' for, otherwise I suppose it would have been joyned to the word strangers' by a conjunction disjunctive, which is usuall where the words are of one sense; and not by a copulative, as here it is. Besides, I take the word 'privy' to be derived from the Latin, privatus, which signifieth a particular property; as res privata, a mans owne private estate; so, mercatores privati, our own merchants. That merchant-strangers should be first named, is common in statutes and records. The next statute explaining this of Magna Charta, is 14 Ed. 3, c. 2. The words are, Whereas it is conteined in the Great Charter, that all Merchants shall bave safe conduct, &c. We grant that all Merchants, denizens and forreins, may freely passe, &c. which I take to be no other than a meere declaration of Magna Charta. The second Objection made against this branch of Magna Charta, is, that the meaning thereof was to secure the merchants, not from a new increase of custome to be imposed by the king, to be paid at their entrance or going out of the ports, such as our impositions are; but from certaine petty exactions, as tolls and such like, which were then usually demanded of them within the land, by the townes through which they were to passe, and where they sold judge of the true meaning of this statute, in that they lived so neere the time of the making thereof, even in the beginning of the reigne of the next king (save one) to him that made this statute. I meane those, who made the ordinance in 5 Ed. 2. heretofore divers times mentioned by me, who, in alledging their reason against Charta Mercatoria, doe amongst other things say, that the same was made against Magna Charta. What was the cause of the griefe conceived against Charta Mercatoria, other than the impositions by colour thereof laid upon forraine commodities? It appears by the ordinance, that was the onely cause. If then Charta Mercatoria were by them adjudged to be against Magna Charta, only because by. colour thereof new impositions were raised without assent of parliament, it is evident, that they interpreted the statute of Magna Charta to be made against impositions. If they had thought it to have extended onely to petty tolls and exactions within the land, as is objected, then could it not have extended to Charta Mercatoria. As for the words, buy and sell, without any manner of evill tolls,' I denie not but the words may perhaps have that sense which hath been collected out of them, viz. that in buying and selling, they should be free also from unjust exactions within the land. But I say further, that these words, without any manner of evill toll, by the old and rightfull customes,' do extend not onely to the next precedent words, buy and seil,' but also to the former words, enter and returne,' and more principally to them then to any other; for to have provided, that they should be free from those petty exactions of tolls in markets, and for passing through cities and townes, and to leave them subject to impositions to be laid on at the kings pleasure, had been but a slender securitie. This exposition of mine is confirmed by a record here amongst us, of 16 Hen. 3, no longer than seven yeeres after the making of this statute; by which it appears, that the king commanded his officers at the ports, to signifie to all merchants, that they might with safetie enter into his kingdom, paying the rightfull ' and ancient customes,' Nec timeant sibi de 'maletoltis quas faciet rex.' As touching the word Toll, which they say is to be understood of tolls for passages, and for buying and selling in faires and markets, it behoves me to say something of the derivation thereof; the rather, because it is very often used in our ancient statutes and records in the same sense as it is in this place; and by the derivation thereof the naturall and true meaning of the word shall be best understood. I hold it therefore to be derived from the Latine word Teolonium, which signifies custome, by cutting off the latter part of the word, and retaining onely the first part teol, by contraction toll; of which manner of derivation there are infinite examples in our language. The Latine Teolonium, as saith Calvin in his Lexicon Juris Civilis, is derived from the Greek Tas, which signifies as well custom as it doth finis. Hence it is, that the customers are called in Latine Telo narii. Thus you see, that the genuine and primitive signification of our word Toll is no other than customne upon merchandizes. From the word Toll, are come those two barbarous Latine words found in our statutes and records; toltum, which is the word used in the record of 16 II. 3. but even now vouched by me; and tolnetum, the originall word in the statute now in question, which I must confesse is also in our law Latine used by us for Toll in the market and Toll for passage, as may appear by the register and the book of entries. But in this place, malum tolnetum properly signifies, not a toll in the common sense, but an unlawful charge laid by the king upon merchandizes, as an increase of custome, according to the primitive signification; which is evidently proved, in that it is here opposed to old and rightfull customes, 'sine omnibus malis tolnetis per certas 'et antiquas consuetudines.' Wherefore it ought so to have been translated, for so it signifies, without impositions, by the old and rightfull 'custome.' This exposition and translation is further warranted by the use of the word maletolt, so often found in our ancient statutes and records, which without scruple is derived from the Latine, malum tolnetum, the very word of our statute. I find it diversly written, maletout, maletolt, maletot, and sometimes maletent; but I never find it any where used in any other sence then for an imposition by way of increase of custome upon merchandizes. Sometimes indeed, but that very rarely, it is taken in the best sence, for law full and rightfull custome, as the word imposition sometimes is; but then commonly it is accompanied with another word to free it from the worst sence, as droiturel maletout, &c. That malis tolnetis in this place ought to be translated Impositions, may be farther proved by that which I find in a writer of the French history, one Jean Serres, who saies, that in the time of Philip le Beau, king of France, which was about the time of Ed. 3, king of England, there were rebellions in France because of impositions laid by the king, which in those days they did, saith he, call male touts, the very word then anciently used in Engl. for impositions, as may plentifully appeare by the statutes and records of II. 3, Ed. 1, Ed. 2, & Ed. 3; for the word Imposition was not used in any French record, statute, or other, for ought I have seene, till Ed. 3. I find it once used in Latine, 12 Ed. 3, in the letter which king Edward the third writ to the archbishop, to excuse him to the people for laying impositions; and as all that letter throughout is of an eloquent stile, so as it seemneth he was carefull to avoid also that barbarous word, malum tolnetum, though common and familiar, and instead thereof to use the pure Latine word impositio. Sylvius, writing upon Tullies oration for Marcus Fonteius, where these words are used by Tully, imposuit vectigal,' saith, Ita usitatum vulgo est ut Vectigalia nova appellent impositiones.' The word vectigal, in this place, though in a generall sence it may be applyed to any revenew whatsoever, yet, with the civill lawyers, it is by way of excellence commonly used for custom, as may appear by Calvin in his Lexicon. Vectigal, quod fisco vel reipubl. portorii nomine penditur, id est, pro mercibus, quæ invehuntur vel evehuntur. Sometimes they use to joyne with it, for a more cleere distinction, the word portonium; as a man would say, the revenue of the ports; agreeable with which, upon some records of Henry the third's time, I have found it to be called exitus portuum. By this it is evident, that impositio in pure Latine, and imposition in English, is the same with maletolt in French and malum tolnetum in our law Latine; and they doe all signifie a new increase of custome, and not any thing else. Wherefore I conclude, that these words, sine malis tolnetis,' in our present statute, are naturally and properly to be expounded, and understood of Impositions, and so ought to have been translated, and not as they are. And although the word Imposition itself, as also the word maletout, and malum tolnetum, may be, as I have confessed, taken as well for a new increase of custome by a lawfull means, viz. by assent in parliament, as for au increase of custome by the kings absolute power, which is unlawfull; yet by the words that immediately follow it is evident, that this statute doth onely intend unlawfull impositions, that is, impositions laid by the kings absolute power, without assent in parliament. Otherwise would they not have been opposed to due and rightfull customes, as by the words of the statute they are. But because there hath been some exception also taken to the exposition of the word Custome in that sense in which I take it, that is, for Custome upon merchandize, for that the word in the originali is consuetudo, which signifies an usage, and not custuma, which is the Latine word we now use for Custome upon merchandize; it behoves me therefore to say something touching these words, consuetudo and custuma, for the cleering of this scruple. This word consuetudo, in his first and proper signification, doth, I confesse, signifie |