more so restraine him that he shall not passe except he pay a certain sum of money for this, say they, is lesse than totally to restraine hin; and cui licet quod majus, licet etiam quod minus. Of this argument my lord Dyer gave light in his Case of Impositions, 1 Eliz. and this hath been diversly inforced by all that have argued for impositions. In answer of which, I will consider, how farre the king may restrain the passage of merchants; and then will examine the consequence of the argument. For my part, I think the king cannot restrain the passage of merchants, but for some special cause; wherein to define certainly and resolutely, to say for what causes he may, and for what not, I will not undertake. Onely let me inform you, that there is not one of these presidents vouched by them to prove the kings power to restraine, but they are upon speciall reasons; as by reason of enmity with such a nation from whence they are restrained, or because such a commodity may not be spared within the kingdome. Besides, they are not restraints from all places, and of all manner of merchandizes, but from certain places onely, and for certain sorts of merchandizes. And for my part I thinke that restraints in all these cases, and of like nature, are by the common-law left to the kings absolute power; for if it were otherwise, it should be in the power of a merchant for a little private lucre to enrich the kings enemies, or to furnish them with munition to be imployed against the state, or utterly to ruine the common-wealth, by carrying out a commodity which may not be spared, or by bringing in of some that may be hurtfull. Nay, which is more, such may be the occasion, that the king may, I doubt not, stop the passages of all merchants from all places for a short time, as upon the death of the late queen it was put in practise, to prevent intelligence. There inay likewise be such necessary use of their ships, as the want of them upon some sodaine attempts may be a cause of the overthrow of the whole state. In such cases as these, if the common-law did not give the king leave to restrain their passage by his absolute power, it were very improvident in the highest points, which cannot be imagined of so wise a law. And yet the kings of this realme have alwayes been sparing in the practise of their absolute power in this point; for there are little lesse then 30 acts of parliament, touching the opening and shutting up of the passage of merchants, most of which, as I conceive, were made rather for the increase of punishment, then for want of power in the king; for the breach of a restraint by absolute commandinent is punishable, as all other contempts, onely by fine and imprisonment, and not by forfeiture of the merchandizes, as in the president of the wines, an. 5. of queene Mary, vouched by me, and is in some of those old presidents. If it be otherwise, I must confesse I know not the reason of the difference of this from other contempts. You see, that I have ycelded to their proposition, That the king may by his absolute power restraine the passage of merchants,' and have therein granted more then their presidents prove. But is the consequence good, that because the king may restrain, therefore he may impose upon such as passe? First I denie, that in our case there is any restraint at all, as there was in the case of the French wines, by queen Mary, by her proclamation going before the imposition. For proote of which I referre you to the kings letters patents prefixed before the last book of rates; by which instrument, the impositions now complained of were altogether raised. You shall finde it no other then a declaration of the kings pleasure so to have it, and a course prescribed for levying of it. But admitting, that the very laying of an imposition did implie a restraint, yet I denie the consequence, because the king may restrain totally, that therefore, he may restraine for a time, or from certaine places, or certaine commodities, or certaine merchants; this indeed is a good argument, à majori ad minus. But because he may restraine totally, therefore, that he may give passage for money, is no good consequence; for in our case, there is no restraint at all, but it is rather a passage for money. If there be just occasion of restraint, the law giveth the king power to restraine. But when merchants may without hurt to the state have passage, as in our case, to enforce them to pay for that passage is in my opinion as unlawfull, as to enforce any man whatsoever to pay for doing that which he may lawfully doe. Merchants have, as I may so say, as good inheritance in their trade, as any man in his lands; and when it may stand with the good of the state, that they may passe, they ought to passe as freely without charge imposed on them, as any man ought to hold his inheritance, or any artificer or other tradesman ought to exercise their lawfull trades and means of living, free from burdens to be laid on by the kings absolute power. If all others should be free, and onely merchants, who adventure their persons and estates. in so many dangers, to bring us from farre places such things, as without which we cannot subsist, and to return us profit for our superfluities, should be subject to involuntarie burthens, their estate were of all other mens most unhappy and slavish, which, of all other trades, is indeed the noblest, and most worthy to be cherished. And here by the way I note, that, in all other nations of the world, where the merchant is subject to impositions at the kings pleasure, the landlord, the farmer, the artificer, the very plowman, and all others, are in like sort subject to taxes and burdens, when the king pleaseth. The merchant is not the man alone that is subject to taxes, and all other men free. If, in the frame of our common-wealth, it were thought fit to free all other trades and professious from taxes, much more ought it to be thought reasonable, that our merchants should be free, and by all means possible incouraged in their trade; for our case is not as it is with other nations of the continent. We are island every man by the poll, that shall passe through the gates? You see the weaknesse and danger of the consequence of this argument, and how it tends to justifie impositions within the land. And so I leave it, and proceed to the next. ers, and divided by the sea from all the world, and in that respect have such use of merchants as we cannot live without them. If therefore any should be free amongst us, it should be the merchant; and not the quite contrary, onely the merchant charged, and all others free. Plato in his 8th book de Rep. is of opi- The ports and haven townes of England nion, that the merchant, for his incouragement are,' say they, the kings; and, in regard to trade, should be free from all custome what-thereof, he may open and shut them upon what soever. We seek only to be free of involun- conditions he pleaseth.' I answere,-1. That tary impositions. But to return to the argument the position, that all the ports are the kings, is of restraint, from whence I am a little digressed. not generally true; for subjects may also be If it be a good argument, that because the king owners of ports, as may appeare by the patent may restraine in toto, he may restrain in tanto; roll of 3 E. 1. M. 1. parl. where you shall finde, it will not be denied unto me, for it followeth that king Ed. 1 granted to the lords of port necessarily, that in cases where he cannot re- townes the forfeitures granted to him by parstraine in toto, he cannot restraine in tanto.liament, for not duly paying the new custome But there is no man that will say, that he may of the demymarke within every severall port of restraine the entrance and passage of all mer- theirs, where the merchandizes should happen chants, to and from all the parts of the world to be imported or exported. But admitting whatsoever, without any limitation of time, but the truth of the position, yet is the consequence the restraint to endure for ever, and for all as weake and dangerous, as of any of the rest kinds of merchandizes whatsoever, of most ne- of their arguments. For are not all the gates cessary and common use, to be brought into, of cities and townes, and all the streets and or carried out of the realme. There is no man highways in England the kings, and as much I suppose will say, that the law hath given subject to be open or shut at his pleasure, as the king power to make so unreasonable a re- the ports are? Nay, whensoever we speak of straint as this; for it were to give him a power the highway in any law businesse, we call it to destroy merchandize, and consequently to via regia, the kings highway; and the king in ruine the common-wealth. Beside, it were his commissions, speaking of London, or any against the law of nations, and of reason itself. other citie, calls it civitas nostra London, or It cannot be imagined, that any wise law in the civitas nostra Exon. Doth it follow therefore, world should allow it. But if our impositions, that the king may lay impositions upon every as it is said, doe implie a restraint, and that a man, or upon all commodities that shall passe restraint be always the fore-runner of all impo- through any of these places? Nay, the gates of sitions, then such an unreasonable restraint, as the kings owne house, for the purpose his palI have spoken of, must needs be presupposed lace of Westminster, are his in a farre neerer to have been the ground or fore-runner of our degree then any of these. May he therefore present imposition. For in our impositions, by his proclamation impose upon every man are not all the merchandizes of necessary and that shall passe in or out at Westminster-hall common use charged? Are not all the mer-doore a summe of money? Doubtlesse he may chants d'enizens and strangers, importing from any part, or exporting to any part of the world, subject to the charge? Is there any limitation of time, but to endure for ever? If I say such a restraint had been unlawfull, which I suppose no man will denie, then whatsoever implieth such a restraint, which our impositions doe, is likewise unlawfull. But the ill consequence of this their argument drawne from the kings power of restraint, will best appeare by comparing it to other cases. not; because the king is a person publike, and his subjects ought to have accesse to him, as to the fountaine of justice, and to the courts of justice sitting by his authoritie. I make little doubt, but his majestie may upon just occasion cause any of these passages to be shut, as he may also the passage at the havens. But when the passage may without danger to the state be open, and that the subjects may passe, his majestie may not then exact money for their passage; for the law hath given the king power over these things, for the good of the commonwealth, and not thereby to charge and burden the subject. If the king may not exact money for passage in and out of his court gates, because of the publikenesse of his person; nor for passage through the gates of cities; much lesse may he for passage out at the ports, which are the great gates of the kingdom, and which the subject ought as freely to enjoy, as the ayre or the water. I little doubt, but the king upon some occasion may lawfully restraine the passage of all men through the gates of London; as for the purpose, when the citie shall be besieged, or in the time of an extreme plague. Nay, is it not by authoritie derived onely from him, that the gates are shut every night? Doth it follow therefore, that because he may doe it upon some extraordinary occasion, or at some time, that he may shut up the passage for ever; or that presupposing such a restraint by his abso- Another of their Arguments [the fourth] is lute power, he may lay an imposition upon this. The king is bound to protect merchants every burthen of any thing brought in, or car- 'from spoile by the enemie; he ought to fortiried out, as the duke of Florence and manyfie the havens, that their ships may there other states in Italy and Germany doe, or upon abide in safety; he ought, if occasion be, to send ambassadors to forrein princes, to negotiate for them;' and many the like charges is the king by the law to undergoe for the protection of his merchants. It is reason, therefore, that his expence be defraied out of the profit made by merchants; and consequently, that he may impose upon merchandize a moderate charge, thereby to repay himself. The consequence of this argument is thus farre true. The law expects, that the king should protect merchants. Therefore it alloweth him out of merchandize a revenue for the maintenance of his charge, which is the old custome due, as at first I said, by the common-law. But it is no good consequence, that therefore he may take what he list, no more then he may at his pleasure increase that old revenue, which the law giveth him for protecting of subjects in their suits, or for protecting wards, &c. Another Argument of theirs [the fifth] is this. All other princes of the world may impose upon merchandize at their pleasure; and so may make our merchandizcs less vendible with them, by laying an imposition upon them, to be paid by us, when they are brought into their territories, whereby their owne 'commodities of the same nature may be sold 'more to the gaine of their merchants, and our | merchant impoverished, or driven from his trade. They may also lay impositions upon our merchants fetching commodities from thence, and leave their owne merchants free 'from any imposition in the same case; by which their merchants shall reape all the profit by that commoditie, in affording it better cheape to us here, then we can fetch it, and consequently our merchants shall be undone.' Many the like cases have been put to prove, that if the king of England may not impose, as other princes may, they shall be able at their pleasure to destroy our trading. This I conceive was the same as now it is, during all that time from Ed. 3, till queen Mary; and doubtlesse it could not but sometimes, during that long space, so fall out, that forreine princes did put their power in practise to our prejudice, and yet we heare not of any imposition laid by any of our kings by their absolute power; which may give any man assurance, that they tooke some other course to meet with the inconvenience; and indeed the meanes are divers, which these our kings used to prevent it.— First, they were carefull in all their leagues and treaties with forrain princes, especially to provide for it; as may appeare by the records of the ancient leagues. Neither is there any league of late time, that hath not had an article for provision in this point; which leagues for the most part are upon oath on both parts. And yet, for further securitie, our kings have always had ambassadors resident in the courts of such forrain princes, to put them in minde of their leagues, if upon any occasion our merchants have in that case happened to be never so little wronged by them; and if upon complaint of the ambassador, our merchants have not found redresse, our kings have held the league as broken, and denounced warre, or seized all the goods of the same princes subjects within England; and I dare say there have been more warres undertaken by our princes against forrain nations onely for this cause, then for any one other cause whatso ever. Besides, our kings have in this case sometimes made use of that their prerogative of restraint, either by prohibiting our merchants from carrying our commodities into those parts, where they are charged with impositions, that so by the want of our commodities, forraine princes might be enforced to abate their impositions laid upon them; or by restraining the merchants of forrain princes to import or export commodities from hence; by which meanes forraine princes have been compelled to deale favourably with our merchants for the good of their owne subjects. All these are lawfull and ordinary means to prevent or redresse the inconvenience which may grow by the impositions of other princes. If all these ordinary means should happen to faile, which can hardly so fall out, and that the laying of impositions be indeed the only means that is left to redresse the inconvenience, why should not that be done by act of parliament as well in these times, as it was in 7 Hen. 7. c. 7. to take downe the imposition of foure ducates upon a but of malmsey, imposed by the Venetians, and as it was done by queen Eliz. the 19th yeere of her reigne, to prevent the laying of impositions by forraine princes upon saltfish, as may appeare by the printed statutes of 19 Eliz. c. 10.? But, as I have said, the providence of the prince and ordinary power of restraint may very well meet with the incouve nience. These are the chiefe Reasons made in maintenance of Impositions. The weaknesse of them, and their dangerous consequence, you cannot but perceive; for, by the same reasons, taxes within the land may be as well proved to be lawfull. On the contrary part, you have heard the reasons against Impositions fortified by many records and statutes in the point. So as I conclude, that Impositions, neither in the time of warre, or other the greatest necessitie or occasion that may be, much lesse in the time of peace, neither upon forraine nor inland commodities of whatsoever nature, be they never so superfluous or unnecessary, neither upon merchants strangers nor denizens, may be laid by the kings absolute power, without assent of parliament, be it for never so short a time, much lesse to endure for ever, as ours. Though this be now my opinion, yet am not I so obstinate therein, but if yet I heare better reason, I will once againe change my minde. In the meane while, you see I had reason to alter my first opinion, as being grounded upon very weak reasons, as now they appeare unto And so I suppose they doe also unto you. me. MR. YELVERTON'S ARGUMENT AGAINST IMPOSITIONS BY THE CROWN.* The question is, Whether the King, without Assent of Parliament, may set Impositions upon the Wares and Goods of Merchants exported, and imported, out of, and into this Realme? THREE things have been debated in this parliament, that have much concerned the right of our whole nation, of which every one of them hath exceeded the other by a gradation in weight and moment. The first was the change of our Name, which was a point of ho To the courteous Reader. This excellent • Treatise of the no less worthy author, happily falling into my hands, I instantly thought it ⚫ my duty to make that public, which had given 'so much useful satisfaction to many learned, and judicious, in private; remembring that antient adage, bonum quò communius, eò præs• tantius.-I hope it is needless to commend either the reverend author deceased, the 'treatise, its use, or stile; since the authority by which it is published, is a sufficient argu'ment of their known worth.-If thou kindly accept of his good meaning, whose onely aim in the publishing hereof was the common good, it will be an encouragement to him (and others) to present to thy view, what may hereafter fall into his hands worthy thy fur'ther perusal. Thine; J. B.' nour, wherein we shewed ourselves not willing to leave that name, by which our ancestors made our nation famous; yet have we lost it, [the name of Britaine not admitted in legall proceedings,] saving onely in those cases, where our ancient and faithfull protector, the common-law, doth retaine it.-The second was the Union, a question of greater moment; for that concerned the freehold of our whole nation; not in so high a point as having, or not having, but in point of division and participation, that is, whether we should enjoy the be'impositions in regard of quantity, time, and ' other circumstances of disproportion thereto 'incident: we your said humble subjects nothing doubting but that your majesty had no intent by that command to infringe the 6 * By an order of the commons licencing the publication, this Argument appears to have been first printed in 1641. But it is here extracted from an edition of 1658. The title runs thus: The Rights of the People concerning Impositions, stated in a learned Argu-antient and fundamental right of the liberty ment; with a Remonstrance presented to ' of parliament in point of exact discussing of the kings most excellent majesty, by the ho- all matters concerning them, and their posnourable House of Commons, in the parlia- sessions, goods, and rights whatsoever, which ment, A. D. 1610. annoq. regis Jac. 7. yet we cannot but conceive to be done in 'By a late eminent Judge of this nation.'--The 'effect by this command, do with all humble following Address to the Reader was prefixed. 'duty make this remonstrance unto your majesty.-First, we hold it an antient, general and undoubted right of parliament, to debate freely on all matters which do properly concern 'the subject, and his right or estate; which 'freedom of debate being once fore-closed, the 'essence of the liberty of parliament is withal 'dissolved. And whereas in this case the sub'jects right on the one side, and your majesties prerogatives on the other, cannot possibly be 'severed in debate of either: we alledge, that your majesties prerogatives of that kinde concerning directly the subjects right and interest, ' are daily handled and discussed in all courts ' at Westminster, and have been ever freely debated upon all fit occasions, both in this and all other former parliaments, without re<straint; which being forbidden, it is impossi ble for the subject, either to know, or to maintain his right and propriety to his own lands and goods, though never so just and <manifest.-It may further please your most excellent majesty to understand, that we have no minde to impugn, but a desire to inform ourselves of your highness prerogative in that point, which (if ever) is now most necessary to be known; and though it were to no other purpose, yet to satisfie the generality of your majesties subjects, who, finding themselves much grieved by these new impositions, do languish in much sorrow and discomfort.These reasons, dread sovereign, being the proper reasons of parliament, do plead for the upholding of this our antient right and liberty. Howbeit seeing it hath pleased your majesty to insist upon that judgment in the Exchequer, as being direction sufficient for us without further examination: upon great de'sire of leaving your majesty unsatisfied in no one point of one of our intents and proceed The Address to the Reader was preceded with the following Remonstrance, which was made to king James by the house of commons 24th May 1610. 6 A Remonstrance delivered to his majesty in writing, after the inhibition given by him 'to the commons house of parliament, as well by word of mouth, as by letters, not to proceed in the examining his right to impose without assent of parliament. To the King's most excellent Majesty. Most gracious Sovereign; whereas we your majesties most humble subjects, the cominous assembled in parliament, have received first by message, and since by speech from your majesty, a conmand of restraint from debating in parliament your majesties right of imposing upon your subjects goods exported, or imported out of, or into this realm; yet allowing us to examine the grievance of these nefits and liberties of the kingdome ourselves onely, as we and our ancestors have done, or admit our neighbour nation to have equall right in them, and so make our own part the less, by how much the greater number should be among whom the division was to be made. This was adjudged against us both legally and solemnly, [Coke 1. 7. Calvin's case.] and therefore in that we rest, hoping of that effect of this judgement which we read of in the poet, • Tros Triusque mihi nullo discrimine habetur.' The third is the question now in hand, which exceedeth the other two in importance and consequence, concerning the whole kingdome; for it is a question of our very essence; not what we shall be called, nor how we shall divide that we have, but whether we shall have any thing or nothing; for if there be a right in the king to alter the property of that which is ours without our consent, we are but tenants at his will of that which we have. If it be in the king and parliament, then have we propertie, and are tenants at our own will; for that which is done in parliament is done by all our wills and consents. And this is the very state of the question which is proposed, that is, whether the king may impose without consent of parliament. Impositions are of two natures, forreigne and intestine.-Intestine be those which are raised within our land in the commerce and dealing that is at home within ourselves, and may aswell for that reason be so called, as for that vescuntur intestinis reipublicæ,' they are fed and nourished with the consuming and wasting of the entrails of the common-wealth. Against these I need not to speake; for the king's learned councell have with great honour 6 and conscience in full councell acknowledged them to be against the law.-Therefore I will apply myself to speak of impositions forreine, being the single question now in hand, and maintained on the king's behalfe with great art and eloquence. The inconvenience of these impositions to the common-wealth, that is, how hurtfull they are to the merchants, in impoverishing them in their estates: to the king in the increasing of his revenues by decay of traffique; and to the whole people in making all commodities excessive deare, is confessed by all, and therefore need no debate. The point of right is now only in question, and of that I will speak with conscience and integrity, rather desirous that the truth may be knowne, and right be done, than that the opinion of myself or any other may prevaile.-The occasion of this question was given by the Book of Rates lately set out, affronted with the copy of letters patents, dated July 28, 6 Jac. In which book, besides the rates, is set down every kind of merchandise, exported and imported, for the true answering of subsidy to the king, according to the statute of tonnage and poundage. In the first yeare of his reigne there is an addition of impositions upon all those kind of wares, which within the book are expressed, and the rate of the imposition as high and in some cases higher than the rate of the subsidy : and this declared to be by authority of those letters patents. Hereupon considering with my selfe, that heretofore the setting on of one only imposition without assent of parliament, upon some one kinde of merchandise, and that for a small time, and upon urgent necessity of actuall war, did so affect our whole nation, and especially the great councell of the parliament, being the representative body of the whole ings, we profess touching that judgment, that we neither do nor will take upon us to reverse it; but our desire is to know the reasons whereupon the same was grounded; and the rather, for that a general conceit is had, that the reasons of that judgment may be extend'ed much further, even to the utter ruine of the antient liberty of this kingdom, and oftrariwise in that other way directed by your 'your subjects right of propriety to their goods and lands.-Then for the judgment itself, being the first and last that ever was given in that kind (for ought appearing unto us,) and being onely in one case, and against one man, it can binde in law no other but that person; and is also reversible by writ of error granted 'heretofore by act of parliament; and neither he nor any other subject is debarred by it from trying his right in the same or like case, in any of your majesties courts of record at Westminster.-Lastly, we nothing doubt, but your majesty so true a view of the state and right of your subjects, that it would have been 'much to your majesties content and satisfac-. tion, (which we most desire,) and removed all causes of fears and jealousies from the royal hearts of your subjects, which is (as it ought to be) our careful endeavour: whereas con majesty, we cannot safely proceed without 'concluding for ever the right of the subject, which without due examination thereof we may not do. We therefore your loyal and 'dutiful commons, not swerving from the approved steps of our ancestors, most humbly and instantly beseech your gracious majesty, that, without offence to the same, we may, according to the undoubted right and liberty of parliament, proceed in our intended course of a full examination of these impositions; that so we may chearfully pass on to your ma our intended proceeding in a fall examinationjesties business, from which this stop hath by of the right, nature, and measure of these new diversion so long with-held us. And we your • impositions (if this restraint had not come be- majesties most humble, faithful, and loyal subtween) should not have been so orderly and⚫jects shall ever (according to our bounden so moderately carried and imployed to the duty) pray for your majesties long and happy manifold necessities of these times, and given reign over us.' |