common-wealth, that neither the sun did shine, nor the rivers run their courses until it was taken off by the public judgment of the whole state; I thought it concerned me, and other members of that councell, that were no less trusted for our country than those in former times, and have their actions to guide and direct us, to have the same care they had in preserving the rights and liberties of the people, having now more cause than they had, for that the impositions now set on without assent of parliament, are not upon one or two speciall kinds of goods, but almost indefinite upon all, and do extend to the number of many hundreds, as appeareth by that printed book of rates, and are set in charge upon the whole kingdome as an inheritance to continue to the king, his heires and successors for ever; which limitation of estate in matter of impositions was never heard of, nor read of before, as I conceive. The inducements expressed in these letters patents are much upon point of state, and with reference to the rights and practise of forraine princes. For this I will not take upon me to enter into the consideration of such great mysteries of policie and government, but will only put you in minde of that I observe out of Tit. Livius [1. 3.] the Roman historiographer. Omnem divini humanique moris memoriam abolemus, cum nova peregrinaque patriis et priscis præferimus.'

To that which hath been spoken for the kings prerogative, I will give answer to so much of it as I may conveniently in my passage through this debate: wherein I will principally endea vour to give satisfaction to such new objections as were inade by the worthie and learned counsellor of the king, that spake last in maintenance of his majesties prerogative.

The case in termes is this. The king by his letters patents before recited, hath ordained, willed, and commanded, that these new impositions, contained in that book of rates, shall be for ever hereafter payd unto him his heirs and successors, upon paine of his displeasure. [Pat. July 23 Jac. 6.] Hereupon the question ariseth, whether by this edict and ordinance so made by the king himselfe, by his letters patents of his own will and power absolute, with out assent of parliament, he be so lawfully intituled to that he doth impose, as that thereby, he doth alter the property of his subjects goods, and is enabled to recover these impositions by

course of law,

I think he cannot; and I ground my opinion upon these four reasons.-1. It is against the naturall frame and constitution of the policie of this kingdome, which is jus publicum regni, and so subverteth the fundamentall law of the realme, and induceth a new forme of state and government.-2. It is against the municipall law of the land, which is jus privatum, the law of property and of private right. -3. It is against divers statutes made to restraine our king in this point -4. It is against the practice and action of our common wealth, contra morem majorum ; and this is the modestest rule

VOL. 1.

to limit both king's prerogatives, and subjects liberties.

Upon the first and fourth of these foure principal grounds I will more insist then upon the second and third, both for that in their own nature they are a more proper matter for a councel of state, to the judgment of which I apply my discourse, and they have not been enforced by others; as also for that the other two, as more fit for a barre, and the courts of ordinary justice, have by some professors of the law been already most learnedly and exquisitely discussed.

For the first, it will be admitted for a rule, and ground of state, that in every commonwealth and government there be some rights of sovereignty, jura majestatis, which regularly and of common right doe belong to the soveraign power of that state; unless custome, or the provisional ordinance of that stare, doe otherwise dispose of them: which soveraigne power is potestas suprema, a power that can controule all other powers, and cannot be controuled but by itself.-It will not be denied, that the power of imposing hath so great a trust in it, by reason of the mischiefes may grow to the common-wealth by the abuses of it, that it hath ever been ranked among those rights of soveraign power. Then is there no further question to be made, but to examine where the soveraigne power is in this kingdome; for there is the right of imposition.— The soveraigne power is agreed to be in the king: but in the king is a two-fold power; the one in parliament, as he is assisted with the consent of the whole state; the other out of parliament, as he is sole, and singular, guided merely by his own will. And if of these two powers in the king one is greater than the other, and can direct and controule the other; that is suprema potestas, the soveraigne power, and the other is subordinata.-It will then be easily proved, that the power of the king in parliament is greater than his power out of parliament; and doth rule and controule it; for if the king make a grant by his letters patents out of parliament, it bindeth him and his successors: he cannot revoke it, nor any of his successors; but by his power in parliament he may defeate and avoyd it; and therefore that is the greater power.

If a judgement be given in the King's-bench, by the king himselfe, as may be, and by the law is intended, a writ of error, to reverse this judgement, may be sued before the king in parlia ment; which writ must be granted by the chancellor, upon bill indorsed by the king himself as the book is 1 H. 7. 19. 6 [Lib. Intrac. fol. 302. c. 1.] And the forme of the writ of error is, that it being directed to the chiefe justice of the King's-bench; quia in recordo et processu, ac etiam in redditione judicii loquelæ, quæ fuit in coriâ nostrâ coram nobis, error intervenit manifestus ad grave damnum, &c. nos errorem (si quis fuerit) modo debito corrigi, et partibus prædictis plenam et celerem justitiam fieri volentes, in Lâc parte vobis

21

mandamus, quod recordum et processum loquelæ illius cum omnibus ea tangentibus, in præsens parliamentum nostrum sub sigillo tuo distinctè et apertè mittas et hoc breve, ut inspectis, &c. nos de consilio et advisamento dominorum spiritualium et temporalium, ac communitatis in parliamento nostro prædicto 'existentis, ulterius pro errore illo corrigendo 'fieri faciamus, quod de jure et secundum le'gem et consuetudinem regni nostri Angliæ fuerit faciendum.' So you see the appeal is from the king out of the parliament, to the king in parliament; the writ is in his name; the rectifying and correcting the errours is by him, but with the assent of the lords and commons, than which there can be no stronger evidence to prove, that his power out of parliament is subordinate to his power in parliament: for in acts of parliament, be they lawes, grounds, or whatsoever else, the act and power is the kings, but with the assent of the lords and commons, which maketh it the most soveraigne and supreme power above all, and controulable by none. Besides this right of imposing, there be others in the kingdome of the same nature. As the power to make lawes; the power of naturalization; the power of erection of arbitrary government: the power to judge without appeale; the power to legitimate; all which do belong to the king only in parliament. Others there be of the same nature, that the king may exercise out of parliament, which right is grown unto him in them, more in those others by the use and practice of the common-wealth, as denization, coynage, making warre; which power the king hath time out of minde practised, without the gainsaying and murmuring of his subjects. But these other powers beforementioned have ever been executed by him in parliament, and not otherwise, but with the reluctation of the whole kingdome.

1

subjects goods, without their consent, it need not to be proved more than a principle. It is jus indigena, an old homeborne right, declared to be law by divers statutes of the realme. As in 34 E. 3, cap. 2. that no officer of the kings, or of his heires, shall take any goods of any manner of person without the assent and goodwill of the party to whom the goods belonged. The same is declared in many other statutes made against prisages and purveyances. Neither have ever any kings attempted to go plainly and directly against that right, but have devised certaine legal colours and shadowes for their wrongfull doing in that kind, which I doe find were of three sorts: by way of Commission; by way of Loan; by way of Benevolence. Commissions of all other were the most insolent; for they went out, as it were by authority, to levy ayd of the people upon great necessity of the common-wealth. These were condemned in parliament, 21 E. 3, numb. 16, upon a grievous complaint made of the use of them by the commons, unto the king in parliament: wherein the people doe pray the king, that he would be pleased to remember, how at the parliament held the 17th year of his raign, and at the last parliament, it was then accorded, and granted by their said lord the king and his councell, that there should goe out no commissions out of Chauncery for hobbeleries, archers, and other charges to be levied upon the people, if they were not granted in parliament; which ordinances were not observed, by reason whereof the people were impoverished and decayed, for which they prayed the king, that he would be pleased to take pity of his people, and the ordinances and grants made to his people in parliament to affirme and hold; and that if such commissions goe out without assent of parliament, that the commons, which are grieved thereby, may have writs of supersedeas, according to the said ordinance, and that the people be not bound to obey them.

mention soit bienment gardes.'

Can any man give me a reason, why the king can only in parliament make lawes? No man ever read any law whereby it was so ordained; and yet no man ever read that any To this the kings Answer is,- Si ul tiel imking practised the contrary. Therefore it is position fuit fait per grand necessitie, et ceo the original right of the kingdome, and the del assent des prelates, countes, barons, et very natural constitution of our state and po- 'autres grandes et auotres homes des commons licy, being one of the highest rights of sove- adonq; presents, neant moins nostre seignior raigne power. So it is in naturalization, legiti- le roy ne vuet, que tiel imposition non dueination, and the rest of that sort before recited.ment fait soit treit in consequence, eins voet It hath been alleadged, that those, which inque les ordinances dont cest petition fait this cause have enforced their reasons from this maxime of ours, That the king cannot alter the law,' have diverted from the question.-I say under favor they have not; for that in effect is the very question now in hand; for if he alone out of parliament may impose, be altereth the law of England in one of these two maine fundamental points. He must either take his subjects goods from them, without assent of the party, which is against the law; or else he must give his own letters pattents the force of a law, to alter the property of his subjects goods, which is also against the law.

That the king of England cannot take his

The last time that ever king attempted that course of exaction was 17 H. 8, upon the taking of the French king at Pavia, by the forces of Charles the fifth. [Stowes Annals, 17 H. 8.] Cardinal Wolsey, having a purpose to put the king into a warre about that quarrel, and finding his coffers empty, advised this way, to send out commissions, and by them to levie ayd of the people, according to the value of their estate. But this gave such discontent to the whole realme, that it caused in many places an actual rebellion; and the cardinal, being called to give an account of this bad advice, did justifie this fact by the example of Joseph, who

advised Pharaoh to take the fifth part of his not; for if it be not maintained that it hath, it subjects goods. But when he saw that would can never be concluded, that he can transfer not serve the turne, he falsely laid it upon the the property of his subjects goods to himself, judges, informing the king, he did it by their without the assent of them; for quod meum advice, being resolved by them of the lawful- est, sine facto meo alterius fieri non potest.' ness of the fact. So you see, that great church- And if you give this power to the kings patent, men found more safety in matter of govern- you subject the law, and take away all rules ment of our common-wealth, in making a false and bounds of settled government, and leave in report of a point of the common-law, then in a the subject no property of his own, neither do true text of the scripture. And if any church- you by this advance the kings power and premen will endeavor by application of the text rogative, but you make him no king; for, as of scripture, to overthrow the antient laws and Bracton saith, [1. 1. c. 8.] ex est, ubi dominaliberties of the kingdom, I would advise themtur lex, non voluntas.' to be admonished by the ill success of the car. dinal in this particular action, and by the miserable catastrophe of his whole life and for

Loans and apprests were those which we call privy seals, which though they were more moderate in shew, yet being made against the good-will of the parties, were as injurious indeed as the other. The commons in parliament, 25 E. 3, [Rot. Par.] num. 16, made a grievous complaint to the king against the use of them, and prayed, that none from henceforth should be compelled to make loans against their will; and they gave this reason, in their petition, for that it is against reason, and the franchise of the land, and prayed that restitu-indicant, cum dicunt quod principi placuerit tion might be made to those that have made such loans. To this the kings rescript was; "It pleaseth our lord the king it be so.'

ground, that a king cannot take one penny | haven, and not at any other haven at that port, from his subjects without their consent, but it is violence. And you may there note the mischiefs that grew to the kingdom of France, by the voluntary impositions first brought in by Charles 7, and ever since continued, and encreased, to the utter impoverishment of the common people, and the loss of their free councel of three estates. And if this power of imposing were quietly settled in our kings, considering what is the greatest use they make of assembling of parliaments, which is the supply of money, I do not see any likelihood to hope for often meetings in that kind, because they would provide themselves by that other means. And thus much for my first reason, grounded upon the natural constitution of the policy of our kingdom, and the publike right of our nation.

as at Garneston, and Little Yarmouth, which were members of that port. This was very inconvenient for the merchants, and a great hurt to traffick, and therefore the charter was questioned in the time of Ed. 2. and adjudged good by the council. But the parties not contented with this judgment, in the second year of king E. 3. by an order in parliament made upon a petition there exhibited against this grant, brought a scire facias out of the Chancery returnable in the Kings-bench, to question again the lawfulness of the patent. And in that suit the cause was notably debated, and those reasons much insisted upon that have been enforced in this case; as that of the kings power in the custody of the ports. But the matter so depending in the ordinary court of justice, a writ came out of the parliament, 2. For the point of common-law, which is and did adjourn it thither again, where it gave my second Reason, it hath been well debated, occasion of a good law to be made to prevent and nothing left unspoken that can be said in the like grants, and to make them void notwithit; and therefore I will decline to speak of standing any judgment given upon them, and that, which other men have well discussed; to make such judgments also void. The statute and the rather, for that there is nothing in our is 9 E. 3. c. 1. And in the parliament rolls, law-book directly, and in point of this matter; 2 H. 4. num. 109. we finde a notable record, neither is the word (imposition) found in them, which gives warrant for the proceeding in paruntil the case in my lord Dier, 1 Eliz. 165; forliament in this manner as hath been in this we shall finde this business of an higher strain, and alwaies handled elsewhere, as afterwards shall appear. Yet I will offer some answers to such objections as have been made on the contrary in point of common-law, and have not been much stood upon by others to be answered.

case, notwithstanding the judgment in the Exchequer, and declares to the kingdom, that, notwithstanding the great wonder made by some men, nothing hath been done in this bu siness by those that serve in the parliament, but in imitation of their worthy predecessors in the like case. In the second year of H. 4. the commons shew that in the time of R. 2. by the means of John Waltham, bishop of Salisbury, treasurer of England, wrongfully, without authority of parliament, and by reason of a judgment given in the Exchequer, 16 and 17 R. 2. by the barons there, against certain merchants of Bristol, and other places, passage bad been taken for wines otherwise then in ancient times had been, and therefore they prayed, they might pay their prise wines in the manner they had used to pay, notwithstanding any

The objections that have been made are these; that from the first book of the law to the last, no man ever read any thing against the kings power of imposing. No judgement was ever given against it, in any of the kings courts at Westminster. Other points of prerogative as high as this, disputed and debated, his excess in them limited; as in the book of 42. Ass. pl. 5. where the judges took away a commission from one, that had power given by it to him under the great seal to take ones person, and to seize his goods before he was in-judgment given in the Exchequer, or other dicted. So master Scrogs case 1 and 2. Eliz. Dier. 175. the power of the king in making a commission to determine a question of right depending between two parties, notably debated, and ruled against the king, that he could not grant it.

To this I answer, that cases of this nature, of which the question now handled is, have ever been taken to be of that extraordinary consequence, in point of the common right of the whole kingdom, that the state would never trust any of the courts of ordinary justice with the deciding of them; but assumed the cognisance of them unto the high court of parliament, as the fittest place to decide matters so much concerning the whole body of the kingdom. As 2 Ed. 3. 7. it appears that Ed. 1. had granted a charter to the men of Great Yarmouth, that all the ships of merchants, coming to the port of Yarmouth, should land their goods at their

ordinance made by the said treasurer, contrary to the antient usage; which petition the king granted, and the judgment thereupon became void, and the prisage wine hath been paid contrary to the judgment ever since.

In 1 El. Dier. 163, upon the complaint, made by the merchants, of the impositions set upon cloth by queen Mary, by her absolute power, without assent of parliament; the cause was thought too weighty to be decided in any one court; but, as it appeareth in the book, it was referred to all the judges of England, who divers times had conference about it. So it may well be, there is nothing against it in our year books, for there is nothing of it.

Another objection was this, which was made. in the last argument, viz. that custom is originally due by the common law of England; it can then have no other ground or cause, but meerly by the kings royal prerogative, as a

and other encreases, 31 E. 1. were merchants aliens, who by the law of merchants and nations may contract to bind their successors in matters of traffick. For their contracts are not ruled by the common law of the land, but by the law of nations, et per legem mercatoriam, as the book case is, 3 E. 4. 10. and there was a good consideration given them by the king for this encrease of custome, as discharge of prise wines for 2s. the tun, and other immunities, which all merchants aliens hold and enjoy at this day, by force of that contract made, 31 E. 1. for a stranger paieth now but 2s. the tun for prisage, whereas it standeth an Englishman in much more. The rule of commutative justice maketh the contract available to the

with that part of his prisage to the merchant; and maketh it available to the merchant against the king, because he giveth him encrease of custom above that is due by law. But the statute of 27 E. 3. cap. 26. heretofore cited, doth make this point clear without scruple, which confirmeth the charter of 31 E. 1. entirely; and by that the encrease of custom by 3 d. in the pound, which is by name mentioned in the statute, is now due by act of parliament.

right and duty originally belonging to his crown: which if it be, it must necessarily follow he may impose, for that is but the exercising of that right. To prove this was alleadged the case 39 Eliz. 3. 13. by which case it appeareth, that king John had a custom of 8 d. on a tun of wine in the port of Southampton, but the book doth not tell you that the king had it by prerogative, and he might have it as well otherwise; as by prescription, or convention, which shall rather be intended, by reason of the certainty of the sum paied; for if it were by prerogative, he might take sometimes more, sometimes less at his will, the right being indefinite, and the quantity limited only by his own discretion. A common person may have such a custom certain, as 18 El. Dier. 352. The mayor of Lon-king against the merchants, because he parteth don hath the twentieth part of salt brought into the city by aliens, which is a great imposition, but is good by prescription originally, and hath received greater strength since, by acts of parliament made for the confirmation of the liberties and customs of the city of London. So it appeareth that John of Britain had custom of the ships that arrived at his port of Little Yarmouth, worth 201. per annum. And these instances do infer, that a custom may be other wise then by prerogative, and therefore it is no If you will have the king hold this encrease good argument to conclude, the king had such of custom by prerogative, you go directly against a custom, therefore he had it by prerogative.' his meaning; for it appeareth by that which The book in 30 H. 8. Dier. 43. was much presently followed this grant, that the king took pressed on this point, which saith that custom this encrease of custom by way of contract belonged to the king at common law, and doth onely, and not by way of prerogative; for the instance in wooll, woollfells, and leather, begun same year following he directeth his writs to at the common law, but abridged by the statute the officers of his ports, reciting the contract of 14 E. 3. cap. 21. stat. 1. But this appear-made with the aliens by Charta Mercatoria; eth to be a great error, and mistaking in the adding further, that some denizens were willing book; for we do finde, that that custom of to pay the like custom, upon the same immuwoolls, woollfells, and leather, was begun by a nities to them to be granted, and doth assign grant in parliament, as appeareth in statute his officers to gather it, but with this clause, 15 E. 1. cap. 7. The words be, granted si gratanter et absque coertione solvere voto us by the commonalty aforesaid;' and the luerint, ita quod aliquem mercatorem de regno last mention before was that the king had et potestate nostrâ ad præstationes et custugranted to the bishops, earls, barons, and all mas hujusmodi invite solvendas nullatenùs the commonality of the land, &c. Novemb. distringatis. Nothing can more plainly ex3 Ed. 1. The king recited in his letters pa- press, that the kings intention was not to detents, that prelati, magnates, ac tota commu-mand this by way of prerogative, but by force of nitas mercatorum regni,' granted this new custom. And so the ground and motive of that opinion being false, all grounded upon that inust needs be erroneous.-It was objected, that the king holdeth at this day the encrease of 4 d. in the pound, over due custom, paid by merchants aliens according to the purport of the Charta Mercatoria 31 Ed. 1. [Rot. Char. num. 42. in Turri] by meer right of prerogative at the common law; for by that grant of the merchants he cannot hold it, they being no body politick at the time of the grant; and therefore the grant is meerly void to binde in succession; and yet the merchants aliens do pay it at this day.

It is agreed, that by the common law a contract with a number not incorporate bindeth not succession. But we must take notice, that they, by whom that grant was made, of the Augmentation of custom, by 3 d. in the pound,

the contract. If there were such a prerogative in the crown, as of right to have custom, how cometh it to pass this prerogative never yet had fruit or effect? For this I can maintain, that the king of England hath not 1 d. custom of imposition upon merchandizes, elder then the 4th year of queen Mary, that he holdeth not by act of parliament, and by the peoples grant. The eldest, that he hath, is that of woolls, woollfells, and leather, and that is by act of parliament, as appeareth in the statute 25 E. 1. cap. 7. the tonnage and poundage by parliament in the first year of every kings reign, and the aliens encrease of custom by parliament 27 E. 3. cap. 26. Then this prerogative hath been much neglected, that it was never called on to be put in execution, untill now of late years.

Concerning the statutes made for restraining our kings from the exercise of this pretended prerogative, which is the third matter I stand