13s. 4d. in 40s. This was justum,but not justè. | This religious prince, invironed with infinite troubles in the church and commonwealth, and much impoverished by her devotion, in renouncing the profits of the church-lands that were in the crown by the suppression, was the first that made digression from the steps of her worthy progenitors, in putting on that imposition without assent of parliament; for that very consideration of the loss of custom, by turning of wooll to cloathing, came into treaty in the 24th year of E. 3. when the art of clothing began first to be much practised in this kingdom; and then in the recompence of the loss so sustained in the decay of custom of woolls, there was set upon a cloth by act of parliament above the olde custom, 14d. for a denizen, and for an❘ alien 21d. This is recited in a record in the Exchequer, 48 E. 3. Rot. 2. R. Thes. in origin. But I pray you examine, how this imposition of queen Mary was digested by the people. We see in the case of my lord Dier, 1 El. fol. 165. that the merchant found great grief at it, and made exclamation and suit to queen Eliz. to be unburdened of it. The very reason of their grief expressed in that case is, because it was not set on by parliament, but by the queens absolute power; so that was the ground of that complaint, the very point of right.-This cause was referred to all the judges, to report whether the queen might set on this imposition without assent of parliament. They divers times had conference about it, but have not yet made report for the king; which is an infallible presumption, that their opinions were not for him. For it is a certain rule among us, that if a question, concerning the kings prerogative or his profit, be referred to the judges, if their opinions be for the king, it will be speedily published, and it were indiscretion to conceal it; but if there be no publication, then we make no doubt, but that their opinions are either against the king, or at least they stick, and give none for him. The same queen Mary, upon restraint of bringing in of French commodities occasioned by the then wars with France, set an imposition upon Gascoyn wines, which continueth yet. So the kingdom of England by the injustice of that prince was clogged with these two heavy impositions, contrary to the right of the kingdom and the acts of her progenitors. Queen Elizabeth set on that upon sweet wines, which grew also upon the occasion of the troubles with Spain. That upon allome was none. It was rather a monopoly to master Smith the customer of London, for the ingrossing of all allomes into his own hands, for which priviledge he gave a voluntary imposition upon that commodity. It was like the priviledge granted to John Pechey of the sweet wines by E. 3. for which the patentee was called into the parliament house, 50 E. 3, and was there punished, and his patent taken away and canceiled. What impositions have been kings time, I need not express. set on in the They are sct down particularly in the book of rates that is in print. They are not easily numbered. The time for which they are raised is not short. The patent prefixed to that book, bearing date 28 Julii, 6 Jacobi, will instruct you sufficiently in that point. They be limited to the king, his heirs and successors; which I suppose is the first estate of fee simple of impositions that ever man read of. 8. My eighth and last observation is upon tunnage and poundage given to the king of this realin, upon wares and merchandizes exported and imported, which is an imposition by act of parliament, and, as it will appear, was given out of the peoples good-will, as a very gratification to the king, to enjoyn him thereby from the desire of voluntary impositions, and to conclude him by that gift in parliament from attempting to take any other without assent of parliament. For after the ceasing of voluntary impositions, these parliamentary ones were frequent in the times of the king that succeeded. But they were never given but for years, with express caution how the money should be bestowed; as towards the defence of the seas, protection of traffic, or some such other public causes. Sometimes special sequestrators made by act of parliament, by whose hands the money should be delivered, as 5 R. 2. c. S. in a printed statute. The rates that were given were very variable, sometimes 2s. tunnage, and 6d. poundage, as 7 R. 2. 3s. tunnage, and 12d. poundage, 10 R. 2. which grants were not to endure, the longest of them, abore a year; 18d. tunnage, 6d. poundage, in 17 R. 2. 3s. tunnage and 12d. poundage granted to H. 4, in the thirteenth year of his reign for a certain time, in which statute there is this clause, that this aide in time to come should not be taken for an example to charge the lords and commons in manner of subsidy, unless it be by the wills of the lords and commons, and that by a new grant to be made in full parliament in time to come. This clause in good and proper construction may be taken to be a very convention between the king and his people in parliament, that he should not from thenceforth, nor any of his successors, set on inpositions without assent of parliament. The like imposition was granted to H. 5. in the first year of his reign for a short time towards the defence of the realm, and safeguard of the sea, upon condition expressed in the act, that the merchants denizens and strangers coming into the realm with their merchandizes, should be well and honestly used and handled, paying the said subsidy as in the time of his father, and his noble progenitors kings of England, without oppression or extortion. In the end of which act the commons protested being bound by any grant in time to come, for the purposes aforesaid. H. 6. in the 31st year of his reign, had tunnage and poundage given him for his life. E. 4. had it given him the third year of his reign, as it appeareth in a statute 12 E. 4. cap. 3. H. &. in the sixth year of his reign, and all since in modo, paying such an imposition for his suffer- For the grounds and propositions laid in this the king onely fiduciary, and in point of trust the first year of their reigns have had it given them for term of their life; and being now so certainly settled, do reach further at that, from which they are in conscience and honor excluded by this voluntary gratification. For can any man give me a reason, why the people should give this imposition of tunnage and poundage above the due custom upon all commodities, if the king by his prerogative might set on impositions without assent of parlia-another. As the premises are of a power in ment? And were not that a weak action in a king, to take that of his people as a benevolence from them, with limitation of the same, and in what it should be imployed, and how they will be used for it, and for what time he shall have it, which he might justly take withhath power to open and shut upon consideraout their consents, unclogged of these unpleasing incumbrances?-The statutes of tunnage and poundage made in our times, that are altogether inclined to flattery, do yet retain in them certain shews and rumours of those antient liberties, although indeed the substance be lost. As in the stature 1 Jac. cap. 33. we declare, that we trust, and have sure confidence of his majesties good-will towards us, in and for the keeping and sure defending of the seas; and that it will please his highness, that all merchants, as well denizens as strangers, coming into this realm, be well and honestly entreated and demeanet for such things whereof subsidy is granted, as they were in the time of the kings progenitors and predecessors, without oppression to them to be done. By this clause, as it now continueth, the true intent of this statute appeareth to be, that there ought no other imposition to be laid upon merchants besitles these given by this statute; and this intention hath been well interpreted by use and practice from the time of E. 3. to the time of queen Mary, as before is declared. Thus much of this last reason, made from observation, and the action of our nation. I will answer now such main objections as have been made against the peoples right, and have not been touched by me obiter in my passage through this discourse. That which hath been most insisted upon is this, that the king by his prerogative royal hath the custody of the havens and ports of this island, being the very gates of this kingdom; that he in his royal function and office is only trusted with the keys of these gates; that he alone hath power to shut them, and to open them when, and to whom he in his princely wisdom shall see good; that by the law of England he may restrain the persons of any from going out of the land, or from coming into it; that he may of his own power and discretion prohibit exportation and importation of goods and merchandizes; and out of his prerogative and pre-eminence, the power of imposing, as being derivative, doth arise and re-uit; for cui quod majus est licet, et ei quod est minus licitum est.' So their reason briefly is this; the king may restrain the passage of the person, and of the goods; there fore he may suffer them not to pass, but sub VOL. II. tion of public good to the people and state, But let us compare this power of the king in foraign affairs, with the like power he hath in domestick government. There is no question but that the king hath the custody of the gates of all the towns and cities in England, as well as all the ports and havens, and upon consideration of the weal pu like may open and shut them at his pleasure. As if the infection of the sickness be dangerous in places vicine to the city of London, the king may command that none from those places shall come into the city. May he therefore set an imposition upon those that he suffereth to come into the city? So, if by reason of infection he forbid the bringing of wares and merchandizes from some cities or towns in this kingdom to any great fair or mart, shall he therefore restrain the bringing of goods thither, unless money be given him by way of imposition? The king in his discretion, 2 L my lord Dier. fol. 128, b. and the law there held to be so at that time upon a question moved in the queen's behalf against divers, that being beyond the seas refused to return upon commandment sent unto them to that purpose. The same is again for law confirmed in the dutchess of Suffolke's case, 2 Eliz. Dier. 176. But the common-law was altered in this point by the statute of 5 R. 2. cap. 2, by which the passage of all people is defended, that they may not go without licence, except the lords and other great men of the realm, merchants, and souldiers. So for the merchants, which are the people dealt withal, in the business in hand, the common-law remaineth as it was before the statute; and so it was held, 12 Eliz. Dier, 196, where the case was, an English in point of equity, and for qualifying the rigour of the law, may enjoyn any of his subjects by his chancellor from suing in his court of common-law. May he therefore make a benefit by restraining all from suit in his courts, unless they pay him an imposition upon their suits? In 2 E. S. in the case of the earl of Richmond before-cited, the king had granted unto the men of Great Yarmouth, that all the ships that arrived at the port of Yarmouth, which consisted of three several ports, Great Yarmouth, Little Yarmouth, and Gerneston, should arrive all at Great Yarmouth, and at no other place within that port. The lawfulness of this patent being in question in the kings court, it was reasoned in the kings behalf for the upholding of the grant, as it is now, that the king had the custody of the port; he might restrain mer-merchant, being a papist, went over-sea, and, chants from landing at all in his kingdom; therefore out of the same power might appoint where, and in what haven they should land, and no other. This patent was demurred on in the Kings-Bench, as being granted against the law; but the case depending was adjourned into parliament for the weight and consequence of it, and there the patent was condemned, and a law made [9 E. 3. cap. 1.] against such and the like grants.-The presidents, that were vouched for maintenance of this power of restraint in the king, were four produced almost in so many hundred years, whereof two were in 2 E. 1. one in 10 E. 3. another in 17 H. 6. since which time we hear of none but by act of parliament, as they had been usually and regularly before. To these I will give answer out of themselves, out of the common-law, out of divers statutes, and out of the practice of the common-wealth. The restraints in the time of E. 1. one of them was to forbid the carrying of wooll out of the realm, the other was to forbid all traffick with the Flemings. That of 10 E. 3, was to restrain the exportation of ship-timber out of the realm. That of 17 H. 6. to prohibite traffique with the subjects of the duke of Burgundy. These presidents are rare, yet they have in them inducements out of publique res pects to the common-wealth. For the rule of common-law in this case, I take it to be as the reverend judge sir Anthony Fitzherbert holds in his writ of ne excas regnum in Nat. Br. 85. that by the common-law any man may go out of the kingdom, but the king may upon causes touching the good of the commonwealth restrain any man from going by his writ or proclamation, and if he then go, it is a contempt. This opinion of his is confirmed by the book, 1 Eliz. fol. 165. Dier, 12 & 13 Eliz. Dier, 296. In like manner, if a subject of England be beyond sea, and the king send to him to repair home, if he do it not, his lands and goods shall be seised for the contempt; and this was the case of William de Britain carl of Richmond, 19 E. 2. He was sent by the king into Gascoyne on a message, and refused to return, for which contempt his goods, chattels, lands, and tenements were seised into the king's hands. The record is cited 2 & 3 Philip and Mary, in being there, did settle himself to remain there for the enjoying the freedom of his conscience. It was moved here in England, that his going without licence should be a contempt; because he went not to trafique as a merchant, but for the cause of religion. It was resolved, no such averment would be taken in this case; for that the very calling and vocation of being a merchant did give him liberty to go out of the kingdom when he would, and therefore the secret intent of his going was not to be enquired after. Sed lex inspicit quod verisimilius.” Therefore it was in this case held no contempt. But at this day the law is as it was before, 5 R. 2, cap. 2, for that statute is repealed, 4 Jac. cap. 1. And all men whatsoever are now at liberty by the common-law to pass out of the realin. There is only against this inconvenient liberty a proclamation dated at Westminster, 9 Jul. 5 Jac. to the very same effect in point of restraint of passage with the statute of R. 2. So the subject is in this much the more at ease and liberty then he was before, that bis going over-sea without licence doth not induce any forfeiture, but onely incurreth the censure of a contempt; and therefore it were to be wished that some firm law might be made in the case, both for the execution of so good a point of policy, and for the more quiet of the state, in knowing the certainty of the punishment for the offence. This liberty and freedom of merchants hath been strengthened and confirmed by many notable laws before recited, as 14 E. 3. stat. 2. cap. 2. 15 E. 3, stat. 2, cap. 5. 18 E. 3. stat. 1, cap. 3, and divers other. And therefore though it be adinitted that the king may restrain persons and goods, yet it may well be denied, that he hath power of himself alone without assent of parliament simply and indefinitely to restrain all trafique in general, or to shut up all the havens and ports, and to bar the vent and is suing of wares and merchandizes of the whole kingdom; as it appeareth plainly, that this hath been done this 300 years, or near thereabouts, by act of parliament onely, and that the kingdom of England made this matter of trafique so tender a case to deal in, as that it hath over held it a matter fit for the consulta "tion of the great council of the kingdom, and for no other. In 11 E. 3, the exportation of woolls was prohibited by act of parliament, in which statute there was this clause, untill that by the king and his council it be thereof otherwise provided: which power so given to the king, to be used for the good of the commonweaith, gave occasion to him to abuse it to his profit and commodity, by giving licences of transportation to all, that would give forty shillings upon a sack of wooll above the due custom. This appeareth in the records in the Exchequer, 13 E. 3, Rot. 2. Rem. Thes. I will describe the record, that you may perceive the ground of it the better. 'Rex collectoribus custumæ in 'portu inagnæ Jermouth salutem. Quia con⚫cessimus dilecto et fideli nostro Hugoni de Wriothsley, quod ipse viginti et septein saccos lanæ et dimid. de lanis suis propriis in portu prædicto carriare, et eas usque Antwerpe ad stapulam nostram ibidem ducere 'possit, solvendo ibidem dilecto clerico nostro Willielmo de Northwel custodi guarderoba nostræ 40s. pro quolibet sacco pro custuma et subsidio inde nobis debitis, &c. vobis mandamus, quod prædict. Hugon. dictos viginti septem saccos lanæ et dimid. in portu præ'dicto carriare permittatis, &c.' And another the same year. 'Rex collectoribus custumæ, &c. Cum nuper ordinaverimus, quod passagium lanarum, &c. apertum existeret, et quod sigillum nostrum, quod dicitur coket, quod prius claudi et sub serra custodiri mandavimus, aperiretur, et apertum teneretur; ideo ' vobis mandavimus, quod sigillum prædictum in portu prædicto aperiri, et apertum teneri 'faciatis, et omnes illos, qui hujusmodi lanas carriare et ducere velint, permittatis, receptis prius ab iisdem, viz. de mercatoribus et aliis indigenis 40s. de quolibet sacco lane.' Divers other such sales of traffick occasioned by this parliamentary restraint were made between 11 E. 3, that the restraint was made, and 14 E. 3, that this inconvenience being espied, the sea was opened by statute, and the restraint removed, 14 E. 3, stat. 2. c. 2. 15 E. 3, cap. 5. stat. 2. And this 40s, so exacted was complained of as an imposition in parliament, and the occasion and the effect were both taken away together by act of parliament, 14 E. 3, stat. 1. cap. 21. and stat. 2. cap. 1. It followed in all kings times sithence the death of E. 3, that this opening and shutting of the havens, restraining and enlarging of traffick, was done by act of parliament.-I will give one instance in the reign of every king. 5 R. 2, cap. 2. stat. 2. for the passage of wooll wooll-fells and leather. 6 H. 4, cap. 4. for the traffique and commerce with merchants aliens. 2 H. 5, cap. 6. stat. 2. for the restraint of staple commodities to places certain, and for the traffique of the merchants of the west. 27 H. 6, cap. 1. that is enacted in parliament, which is contained in the proclamation 17 H. 6, cited for a precedent, that is, because the duke of | Burgundy made an ordinance whereby the traflick of the English nation was restrained, that therefore the Englishmen should not traffick with the subjects of the duke of Burgundy. The same thing enacted upon the bike occasion, 4 E. 4, c, 1. 19 H. 7, c. 21. the importation of divers commodities forbidden, as being prejudicial to the manufactures within the realm. 6 H. 8, cap. 12. the exportation of Norfolk woolls out of the realm forbidden. 26 H. 8, cap. 10. power is given to the king to order and dispose of the traffick of merchants at his pleasure; and the reason is given, because otherwise the leagues and amities with foreign princes might be impeached by reason of restraint made by divers statutes then standing on foot; whereby it appeareth that it was not then taken to be law, that the king had an absolute pover in himself to order and dispose of the course of traffick without help of a statute. 2 E. 6, cap. 9 exportation of leather restrained. 1 et 2 Ph. et Mar. the exportation of herring, butter, cheese, and other victuals forbidden. 18 Eliz. cap. 8. the exportation of tallow, raw hides, leather. So in all times no use of proclamations in matters of this nature, but acts of parliaments still procured. Wherefore in mine opinion it behoveth them that do so earnestly urge this argument, the king may restrain traffick, therefore may impose, to prove better then they have done, that the king may restrain traffick of his own absolute power: for as the natural policy and constitu tion of our commonwealth is, we may better say, that is law which is de more gentis, then that which floweth from the reason of any man guided by his general notion and apprehension of power regal, in genere, not in individuo. The last assault made against the right of the kingdom, was an objection grounded upon policy, and matter of state; as, that it may so fall out that an imposition may be set by a foreign prince that inay wring our people, in which case the counterpoise is, to set on the like here upon the subjects of that prince; which policy, if it be not speedily executed, but stayed until a parliament, may in the mean time prove vain and idle, and much damage may be sustained that cannot afterwards be remedied.--This strain of policy maketh nothing to the point of right. Our rule is in this plain commonwealth of ours, oportet neminem esse sapientiorem legibus.' If there be an inconvenience, it is fitter to have it removed by a lawful means, then by an unlawful. But this is rather a mischief then an inconvenience; that is, a prejudice in present of some few, but not hurtful to the commonwealth. And it is more tolerable to suffer an hurt to some few for a short time, then to give way to the breach and violation of the right of the whole nation; for that is the true inconnveience. Neither need it be so difficult or tedious to have the consent of the parliament, if they were held as they ought, or might be. But our surest guide in this will be the example of our ancestors in this very case, and that in the time of one of the most politick princes that ever reigned in this kingdom. 7 H. 7, cap. 7. you shal finde an act of parliament, in which it was recited that the Venetians had set upon the English merchants that laded malinseys at Candy four duckets of gold upon a butt, which in sterling is eighteen shillings the butt. It was therefore enacted, that every merchant stranger, that brought almsey into this kingdom, should pay eighteen shillings the butt over and above the due custom used; this imposition to endure, until they of Venice had set aside that of four duckets the butt upon the Englishmen. Much hath been learnedly uttered upon this argument in the maintenance of the peoples right, and in answering that which hath been pressed on the contrary. But my meaning is not to express in this discourse all that hath or may be said on either side, but only to make a remembrance somewhat larger of that which I myself offered as my symbolum towards the making up of this great reckoning of the com monzealth, which if it be not well audied, may in time cost the subjects of England very dear. My hope is of others, that labored very worthily in this business, that they will not suffer their pains to die, and therefore I have forborn to enter into their province. I will end with that saying of that true and honest counsellor Philip Comines in his fifth book, the 18th chapter, "That it is more honorable for a king to say, I have so futhful and obedient subjects, that th y deny me nothing I demand,' then to say, 1 levy what me list, and I have priviledges so to do."" ["At the end of the foregoing Argument by Yelverton, an Extract from a Petition of Grievances addressed by the Commons to King James in 1610 is added, one subject of which is Impositions by Prerogative. But the whole Petition is in Mr. Pelyt's Jus Parliamentarium; and as we are not aware, that it is to be found either in the Parliamentary History, the Journals of the Commons, or any other printed book, except the two before mentioned, it is here inserted as a fragment of some curiosity. To this Petition, we shall add lord Bacon's Speech on presenting it to the king. The king's Answer to so much of the Petition as regarded Impositions, is in the Parliamentary History, vol. i. p. 1132. Mr. Petyt, in his book before cited, gives some remarks of his own on the subject, with an extract from the Journal of the Lords for 23d May and 6th June 1612, when it was unsuccessfully attempted to obtain the Opinion of the Judges on the Question of Imposition." Hargrave.] sor's times, as you will rather hold it a work of eat glory to reform them; since your majesty knoweth well that neither continuance of time, uor errors of men, can or ought to prejudice truth or justice; and that nothing can be more worthy of so worthy a king, nor more answera ble to the great wisdom and goodness which abound in you, than to understand the griefs, and redress the wrongs of so loyal and well deserving people. Mor gracious Sovereign; Your majesty's most humble commons assembled in parliament, being moved as well out of their duty and zeal to your majesty, as out of the sense of just grief, wherewith your loving subjects are generally through the whole realm at this In this confidence, dread sovereign, we offer time poss ssed, because they perceive their these Grievances, the particulars whereof are common and ancient right and liberty to be hereunder set down, to your gracious consimuch declined and infringed in these late years, deration.-And we offer them out of the greatdo with all duty and humility present these our est loyalty and duty, that subjects can bear to just complaints thereof to your gracious view, their prince; most humbly and instantly bemost instantly craving justice therein, and due seeching your majesty, as well for justice sake, redress.And although it be true, that many more than which, as we conceive, in these peof the particulars, whereof we now complain, titions we do not seek, as also for the better were of some use in the late queen's time, and assurance of the state, and general repose of your then not much impugned, because the usage of faithful and loving subjects, and for testimony them being then more moderate, gave not so of your gracious acceptation of their full affecgreat occasion of offence, and consequently not tions; declared as well by their joyful receiving so much cause to enquire into the right and of your najesty at your happy entrance into these validity of them; yet the right being now more kingdoms, which you have been often pleased thoroughly scanned, by reason of the great mis- with favour to remember, as also by their exchiets and inconveniencies which the subjects traordinary contributions granted since unto have there' y sustained we are very confident you, such as have been never yielded to any that your majesty will be so far from think- former prince, upon the like terms and occaing it a point of honour or greatness to sions, that we may receive to these our comcontinue any grievance upon your people, be-plaints your most gracious answer. Which we Cause you found them begun in your predeces- cannot doubt but will be such as may be wor |