impose. But this is made clear by the general word precedent in the preamble of the petition, which doth evidently infer, they grounded their complaint upon point of right, not upon point of excess. The words are these, 'tota terræ communitas sentit se valdè gravatam, quia non tractantur secundum leges et consuetudines terræ, secundum quas tractari antecessores sui solebant habere, sed voluntariè excluduntur After which preamble, among the particulars, this of forty shillings upon a sack of wooll is ranked, but with a dependency of that expressed in the preamble for the point of right. But seeing we light upon history, which though it be of small authority in a law argument, yet being the

Magna Charta, that merchants might freely trafique, nisi publicè antea prohibiti fuerint:' by which was enforced, that the king had power to restrain and prohibit traffique; therefore to impose. It is agreed there may be a public restraint of traffique, upon respects of the common good of the kingdom; but whether that which is called publica prohibitio in the statute, be intended by the king alone, or by act of parliament, is a question: for such restraints have still been by parliament. But admit the king may make a restraint of traffique in part for some public respect of the commonwealth, he doth this in point of protection, as trusted by the commonwealth to do that which is for the public good of the king-history of our ownrealm, hath fit and proper use dom; but if he use this trust to make a gain and benefit by imposing, that is a breach of the trust, and a sale of government and protection. But more of this shall be hereafter spoken in the answering of the main objections.

are these.

The next law is that notable statute of E. 1. [cap. 7.] in the 25th year of his reign, made upon the very point in question. The words And forasmuch as the most part ' of the commonalty of this realm find them⚫ selves sore grieved with the male toll of woolls, that is, to wit, a toll of forty shillings for every sack of wooll, and have petitioned to us for to release the same; we at their request have clearly released it, and have granted for us and our heirs, that we shall not take such things without their common consent and good will, saving to us and our heirs the customs of wools, skins, and leather, granted be'fore by the commonalty aforesaid.'-Against the application of this law to the question now in hand, many objections were made; some out of matter precedent to the law, some out of the law itself, some out of matter Subsequent and following after the law.

in the common council of the realm, I will pursue it a little further, out of Matth. Westm. a writer that lived much nearer the time of the law made, then Thomas Walsingham. He saith, [fo. 430. edit. per H. Savilemil. Francofurti 1601.] that the commons by their petitions required ne rex de cætero tallagia usurparet, et voluntarias super his inductas exactiones de cætero quasi in irritum revocaret,' by which it appeareth, that the point of the complaint was that the exactions laid on them were voluntary, that is, at the kings will without assent of parliament.

Out of the law it self it hath much been pressed, as first the commons made petition to the king; whereupon they infer out of the nature of the word petition, that their proceeding was by way of grievance, for the excess and inconvenience, as a matter of grace, not in course of justice for the wrong. To this I answer, that considering the quality of the parties to this action, it being between the king and the subject, duty and good manners doth induce gentleness and humility of terms, without blemish or diminution of the force of right. It is according to the demeanor of Job, ix. 15. For matter precedent, it was objected out though I were just, yet would I not answer, of Thomas Walsingham, an historiographer of but I would make supplication to my judge. good credit, [fo. 71, 72, 73. edit. per W. Camb. But in our forms of law, be the right of the impres. Francof. 1603.] that writ of that time subject never so clear, manifest, and acknowwhen the statute was made, that in the petition ledged by all; yet if his own be detained from of grievances given to king E. 1. by the peo-him by the king, he hath no other writ or acple in the 25th of his reign, upon which petition the statute was made, that they found themselves not grieved, in point of right, but in point of excess. The words are, communitas sentit se gravatam de vectigali lanarum, quod nimis est onerosum, viz. de quolibet sacco 40s. et de lanâ fractâ septem marcas.' So they express the cause of their grief, that it was too heavy; which is to be applied to the point of excess, not of right.

To this I answer, that if the words had been, quia est nimis onerosum,' this construction might have been made out of them; because the word quia had induced a declaration of the cause of that which was formerly affirmed: but the words are, quod nimis onerosum,' which doth only positively affirm, that the imposition de facto was intolerable for the greatness of it, which doth not therefore admit, that it is tolerable in respect of the right the king had to

tion to recover, but a meer petition supplicat celsitudini, &c. So as if the word petition to the king infer defect of right in the petitioner, there can be no case where the king can do the subject wrong.

A second objection out of the body of the law is, that the king doth release that imposition of forty shillings, which implieth a right setled in him.-But to this I answer, that it is no necessary inference, wheresoever a release of right is; for it is used for claim onely, or where possesssion was, though wrongful, and that in majorem securitatem, quia abundans cautela non nocet.' But in this case, a release was very expedient, and for some respect necessary, to extinguish a right the king had in this imposition against the merchants themselves. For this imposition, though it were not set on by assent of parliament, yet was it not set on by the kings absolute power; but

printer, and concerneth the male toll of woolls, but to that precedent, which is all other aids impositions and takings. The writ of publication of this statute sent out to all parts in 26 E. 1. [Mem. Scac. Rem. Thes.] maketh plain this construction. The words of it are, con'cedentes quod custumam illam vel aliam, sine voluntate vel communi assensu non capia

was granted to him by the merchants themselves, who were to be charged with it. So the grievance was the violation of the right of the people, in setting it on without their assent in parliament, not the damage that grew by it; for that did onely touch the merchants, who could not justly complain thereof, because it was their own act and grant. This appeareth by two notable records, the one 22 E. 1. [Origin.nus.' These words, vel aliam,' are indefinite, in Scac. Rem. Thes.] a writ to the treasurer and barons of the Exchequer in Ireland, to discharge the merchants there of impositions on woolls; in which the king reciteth, licet in sub'sidium guerræ regis pro recuperandâ terrâ Vas-name in the statute; and therefore the law was copiâ mercatores gratanter concesserunt per biennium vel triennium, si tantum duravit 'guerra, de sacco lanæ, &c.' The other record is the writ of publication, that in 26 E. 1. [Mem. Scac. Rem. Thes.] went out after the statute of 25, in which writ the king reciteth thus, cum nos ad instantium communitatis regni nostri remiserimus custumam 40s. nobis nuper in subsidium guerræ nostræ contra regem Franciæ concessum, &c.'

A third objection made out of the body of the statute, by those which have argued on the contrary part, was upon these words, that the king would take no such things without common consent; by which words they conceived the intention of the law was limited precisely to impositions set upon wooll, and not on other commodities, which are not such things, but other and for this they alledge this reason, that it was not probable, when the complaint was only for an imposition on wooll, that the king would give a remedy for other things not spoken of, for which there was no cause of complaint. To this a full answer is given many ways. First, out of the saving in the act, which extends to other things then to wooll, as to wooll-fells and leather; therefore the purview of the act by these words, such things,' extendeth to more then the wooll; for there needs no saving, but for that which is contained in the purview. Secondly, the reason alledged, that no more by likelihood should be remedied but for wooll, because onely that was com plained of, is false: for the complaint of the commons was not onely for this imposition on wooll, but divers other burthens and grievances of the like nature. And this will appear if we compare all the parts of the law, the one with the other; for this law is in the form of a charter written in French, and beginneth, Edward by the grace of God, &c.' and is an entire grant, and instrument without fractions, sections, and chapters, as it is now printed, and contained in it, next before this last clause concerning the impositions on woolls, which in the printed book is cap. 6. that the king, for no business from thenceforth, will take no manner of aids, mises nor prises, but by common assent. This word mises, in French signifieth properly impositions, derived of the word mitto in Latine to put. So the word such things,' is a conclusion to all the premises, and bath relation not uncly to that which is made cap. 7. by the

and extend to any other whatsoever, besides that of woolls. The writ doth further discharge merchants for the commodities of wooll-fells and leather, which are not complained of by intended to other impositions as well as to those upon woolls.-The objection made out of matter subsequent to the statute was this, that notwithstanding this law of 25 E. 1. impositions, that before the statute had been set on other merchandize then woolls, were still answered after the statute; and for instance of this was alledged, that whereas 16 E. 1. [Org. R. Thes.] an imposition of 40s. the tun was set upon wines brought into the kingdom, an accompt was made of this in the Exchequer in 26 E. 1. as by the records there appeareth; by which it seemeth that the law of 25 E. 1. was not taken to extend to wines, and such other commodities, other then woolls nained in the statute. It is true, such an imposition was set on by E. 1. in the sixteenth year of his reign, and an accompt made for it 25. and 26. But it appeareth by the record [T. Mich. R. Thes.] of the accompt, that it was made for the time ended before the statute made: as from the eighteenth of May, 16 E. 1. to 23 Jul. 22 E. 1. But there is no record, that ever any accompt was made for any money received for that imposition for the time after the statute made; neither was it very willingly answered before; for it appeareth by the record that it was ten years after the setting of it.

The third statute alledged, on the behalf of the subject, is that 34 E. 1. c. 1. the words are these. No tallage or aid shall be taken or levied by us, or our heirs in our realm, without the good will and assent of our arch-bishops, 'bishops, earls, barons, knights, burgesses, and ' other freemen of the land.' Against this was objected, that this statute was intended onely upon the taxes and impositions of things. The word auxilium makes it clear, that it is to be intended further then of things within the realan for tallagium is commonly intended of domestical taxes, but auxilium is the most usual term for impositions upon goods imported and exported; as by the acts of parliament by which such impositions are given to the king, in which they are called most commonly by the name of aids, as proceeding of good will and benevolence.

The fourth statute alledged on this part is that of 5 E. 2. c. 14. just in point of the matter in question; and therefore I will set it down as I finde it verbatim in the record in the Tower. Ensement novelles customes sont levics, et antients enhaunces, come sur levies

6

but they did never yet obtain a repeal of them by act of parliament.

ther an imposition, nor a wrong in any respect. Also by the first record it appeareth, that the loan set on wines, aver de pois, and such other commodities, besides wooll, wooll-fells and leather, were presently discharged by E. 2. which sheweth they were taken to be within the intent of the statute of 25 E. 1.

The fifth statute alledged on the behalf of the subject is that of 14 E. 3. stat. 1. cap. 21. by which the commons pray the king to take no more then the old custom of the half mark. The king prayeth aid of the commons for a time above the custom upon his necessity of wars. And the conclusion is, that by that act the king doth grant, that after the feast of Penticost, 12 moneths following, he will take no more of woolls, wooll-fells, and leather, but the old custom, and doth promise to charge, set, or assess upon the custom but in manner as aforesaid.

The sixth statute is 14 E. 3. stat. 2. cap. 1. The king doth grant by way of charter to the prelates, earls, barons, commons, citizens, burgesses, and merchants, that they be not from henceforth charged nor grieved to make any aid or sustain charge, if it be not by the common consent of the prelates, earls, barons, and other great men, and commons of the realm, and that in parliament.

But it is further urged, that although there were no formal repeal of the law, yet it was never put in execution as a law, but even presently upon the making was rejected, and use and practice went quite against it: and for instance hereof, a record was vouched, that E. 2. held himself so little bound by it, as that in the 11th year of bis reign he set an imposition without assent of parliament upon wooll, wooll-fells, leather, wines, cloth, aver de pois, and divers other kind of merchandizes. To this I answer, that if it were true, that a weak and impotent king, as he was, did contrary to the law, doth this make the law void, and no law? but if we look into the whole record, and scan this action of E. 2 from the beginning of it unto the end, we shall finde it a very good instance to prove the practice and execution both of this law of 5 E. 2. and of that in 25 E. 1. For it is true, that E. 2. in the 11th year of his reign did borrow of the merchants a certain sum of money, above the due custom of woolls, wooll-fells, wine, aver de pois, leather, and such other goods imported and exported. But it appeareth by the record, [Rot. Claus. 11 E. 2.] he took it but. for one year; he took it by the advice and counsel of the merchants; and he took it per viam mutui, as a loan. The direction of the writ is, collectoribus mutui nobis per merca⚫tores alienigenas et indigenas de certis rebus ⚫ et merchandisis usque ad certum tempus fa'ciendi.' This was done in good terms, he did not claim it as his right, but did borrow it, which I do think is a good evidence against his right. But what became of this? the state would not abide it, for all these fair shews. And therefore afterwards the king sendeth out other writs, by which he dischargeth all merchandizes of this loan, saving only wooll, wooll-fells and leather; and for the loan taken upon those commodities, it was limited to continue but until Michaelmas after, and good security was given to the merchants by the customers to pay themselves, by way of defalcation, out of the customs which should be due after Michaelmas, those sums which were so borrowed of them, The words of the record are worth the observ-be held, and that they may have this in point ing, cum pro expeditione guerre Scotiæ, et aliis arduis et urgentibus necessitatibus nobis multipliciter incumbentibus, pro quarum exoneratione quasi infinitam pecuniam refundere oportebit, pecunia plurimum indigeamus in 'præsenti, et nuper pio eo quod exitus regui et terrarum nostrarum, simul cuin pecunia nobis in subventi ne præmissorum tam per clerum quam communitatem regni nostri concessa, ad sumptus prædictos cum festinatione qua expediret faciendos, non suffieiunt; exquirentes vias et modos, quibus possemus pecuniam habere commodius et decentius pro præmissis, de consilio et advisamento quorundam mercatorum tam alienigenarum quam indigenarum viam invenimus infra script. viz.' and so setteth down the manner of the loan, and the security for the payment of it. This, I take it, was nei

These two statutes grew upon an occasion of an imposition set on wool by the king without assent of parliament. Little hath been objected against them, but only to the first, that it was obtained of grace, and not upon instance of right, which they gather out of the words of the law, which are, the commons pray the king that he would stablish, that from henceforth no more then the old custom be taken.' The like reason may be made against the king out of the same words in the same law; for the king in the same act prayeth the commons to give him an imposition upon wools for a time above the old custom But the record of the petitions exhibited in parliament, on which these two laws are made, cleareth the objection. The first was delivered by the lords in this form, [Rot. Par. 13 E. 3. num. 5.] les grands volunt, that the male toll, set on woolls, newly, be altogether abated, and that the old custom

of charter, and by inrolment in parliament. This word, volunt, had been too high for a suit of grace, and therefore must be intended of right. The commons petition [Ib. num. 13.] in form is somewhat humble, but in effect and purpose is rough and stern. The words are these: the commons pray that the male toll of woolls be taken as it was used in antient time, which is now enhanced without the assent of the commons, and grandes, as we conceive; and that if it be otherwise demanded, that every one of the commons may arrest them without being challenged.' According to these petitions, the first of these two laws is by inrolment in parliament; the second is in form of a charter: the first doth express some special commodities; the second doth reach generally at all.