JUs Gentium, or the generall Law of Nations is of equal force in all Kingdoms, for all Kingdoms had their beginning by the Law of Nations; therefore it standeth with good reason that the Law of Nations should be of force, and of like force in all Kingdoms; and for this cause in the Realms subject to the Crown of England, the Law of Nations also is in force in such cases, especially wherein the King himself, or his Subjects, have correspondence or commerce with other Nations who are not bound in those cases by the Municipall Laws of England.

Omnes populi(saith Justinian)Iustinian qui legibus & moribus reguntur, partim suo proprio, partim cōmuni omnium hominum jure utuntur: nam quod quis que populus ipse sibi Ius constituit id ipsius proprium Civitatis est, vocaturque jus Civile; quod vero naturalis ratio inter omnes homines constituit, id apud omnes homines plerumque custoditur, vocaturque Jus gentium, quasi quo jure omnes gentes utuntur; and in the same place it is said, Ius Gentium omni hominum generi cōmune est, & exhoc Iure Gentium omnes pene contractus introducti sunt, ut emptio, venditio, locatio, conductio, societas, depositum mutuum, &c.

And with this agreeth our Doctor and Student, lib. 1. cap. 2.Dict. & Stud.1.lib.cap.2. where it is said, that Trade and Traffique is by the Law of Nations; so that Commerce, Trade, & Traffique for Merchandize, between the people of several Nations and Kingdoms, is a principal subject of the Law of Nations; and therefore to that questistion that hath been made in England, Whether the ancient Customes payable for Merchandizes, did first grow due by our customary Common Law or Statute Law of England? Why may I not answer, that neither the Customary Law, nor the Statute Law of England, but the generall Law of Nations did first give these duties unto the Crown of England?

For as the Law of Nations was before Kings, for Kings were made by the Law of Nations, Ex jure Gentium Reges originem traxerunt, saith Baldus; Baldus. So Kings were no sooner made by the Law of Nations, but presently the same Law, cum creatus fuerit Rex ei omnia regalia conceduntur, & competit omnibus Regibus jus imponendi quantum habet Begalia, saith Baldus,Baldus. Vectigalia introduct a sunt à jure, &c. which is the Law of Nature or Nations, Ideo non otiosased favoralia, saith another Doctor, did annex this Prerogative to their several Crowns, Vectigalorigine ipsa jus Caesarum & Regum partimoniale est, saith another, Inhaeret Sceptro saith another; and therefore when our ancient British Kings took up Customes for Merchandizes transported into France, as Strabo Strabo. writeth, Britanni vectigalia tollebant gravia earum rerum quas brevi trajectu in Galliam importabant; Shall we presume they did it by Act of Parliament? no, for doubtlesse they did it by vertue of this Prerogative given unto them by the Law of Nations; for Kings upon their first institution did greater things than this, by their Prerogative, without the consent of the people, Vetusissima coronae jura ex singulari Regum decreto primitus orta, saith a learned Doctor; and at first saith Iustinian, Iustinian Arbitria Regum prolegibus fuere, and so saith Halicarnassus, lib. 3.Halicar.lib.3. Cicero offic. lib. 2. And truly as Customes and Impositions taken upon importations of Merchandizes, being most properly called Vectigalia, à mercibm evectis & invectis, are the most ancient duties payable to the King; so are the same grounded, saith Bodin, upon the greatest reason and equity in the world, quid est enim rationi & aequitati magis consentaneum quàm & is qui in nostro territorio & ex nostris questum facit principi nostro cujus permissu & sub cujus protectione negotiatur aliquod perdat & presolvat? And this common reason and equity which is the ground of these duties payable for Merchandizes, what is it else but the Law of Nations? which is nothing else but that which common reason hath establisht amongst all men for the common good of all men, and which all Nations have received and imbraced for their mutual benefit and commoditie.

Neither is this the onely Prerogative which the King of England hath by the Law of Nations, habet & Rex in regno suo (saith Bracton)Bracton. alia privilegia de jure Gentium propria, viz. Soreceum maris thesaurum insentum grossos pisces, & balenas & sturgiones Wavias, &c. huiusmodi de jure Gentiune pertinent ad Coronam, saith Stampford Prerogativa Regis, fol. 37. 6. Adde hereunto the absolute power of the King, to make War and Peace, League and Truces, to grant safe Conducts, to pardon all Offenders, to distribute all degrees of Honour, and the like, wherein the King hath sole and absolute power, Merune imperium & non mixtum, and which Prerogative is as antient as the Crown, and incident to the Crown by the Law of Nations.stampford pràrogat. Regis fol.37.6.

Lastly, for the proof that our Common Law doth acknowledge and prove the Law of Nations in most of these cases. The Book 19 Edw. 4. 6.19 E.4.6. doth approve the Kings absolute power in making War, Peace, and Leagues; and in 37 Edw. 6. 20.37 E.6.20 That part of the Law of Nations, whereby the High Constable and Marshall of England, do proceed in their Courts of War, and Chivalrie, is called the Law of the Land. We finde also the Kings sole power in 11 Hen. 4.11 H.4. Rot. Parliament. in Archivis turris London, for Coyning of Money; we have the case of Mines, Com. 316.Com.316 for safe conduct of Merchants, and stop of Trades, tempore guerrae, and Letters of Reprisall we have 7 Edw.4.19.2 R.3.2. Magna Charta cap. 30.7 E.4.19.3.R.3.2. Magna Charta.cap.30. and the Register wherein we find Writs of Reprisall.

MErcaturavel Societas Mercatorum est magna Respublica (saith Vlpian)Vlpian and therefore that Common-wealth of Merchants hath alwayes had a peculiar and proper Law to rule and govern it; this Law is called the Law Merchant, wherof the Laws of all Nations do take speciall knowledge; first both the Common Law and Statute Law of England do take notice of the Law Merchant, and do leave the causes of Merchants and Merchandizes to be decided by the rules of that Law; for what saith the Book of 13 Edw. 4.9, 10?13 Edw. 4.9,10. A Merchant Stranger made sute before the Kings Privy council, for certain Bailes of silk feloniously taken from him, and it was moved that this matter might be determined by Common Law, unto which motion the Lord Chancellor doth there answer; This sute is brought by a Merchant, who is not bound to sue according to the Law of the Land, nor to tarry the tryal of twelve men, nor other solemnity of the Law of the Land; albeit, the King hath jurisdiction of him within the Realm, and may cause him to stand to his Judgement, yet this must be according to the Law of Nature, which some call the Law Merchant, which is a Law universall throughout the word; these are the words of that Book, & it is there resolved by all the Justices, That if the Merchandizes of such a Merchant stranger, be stollen and waved by the Felon, the King himselfe shall not take those Merchandizes as waifes, though in that case the goods of another person were lost by the Common Law of England. Doth not this case make it manifest, that in the judgement of our Common Law, Merchandizes that crosse the Seas, are goods of another nature, quality, and consideration, than other goods and Chattels which are possessed within the Realm, and do not crosse the Seas? This learning is not common in our Books, and therefore I think it meet to exemplifie this difference with more cases in this point.

If two Merchants be Joynt-Owners, or Partners in Merchandizes, which they have acquired by a Joynt-Contract, in this case the one shall have an Action of Account against the other, die legem mercatoriam, saith the Register, fol. 135. and F. N. 117. D. Reg.fol.135.F.N.117.D. and yet by the rule of the Common Law, if two men be joyntly possessed of other goods which are not Merchandizes, the one shall not call the other to account for the same.

Again, if two Merchants have a joynt Interest in Merchandizes, if the own die the Survivor shall not have all, but the Executor of the party deceased, shall by the Law Merchant call the Survivour to an account for the moytie F.N. 117. D. F.N.117.D. whereas if there be two Joynts of other goods which are not Merchandizes, the Survivor shall have all, per jus accrescendi, even by rule of the Common Law.

Again, in an Action of Debt, upon a simple Contract which is without Deed in writing, the Defendant by the Common Law may wage his Law, that is, he may bar the Plantiff of his Action by taking an Oath that he doth not ow the Debt nor any part thereof, and yet in Itin. Derby 2 Edw. 3.2 E.3. Iohn Crompton Merchant, upon a Contract without Deed, the Defendant would have waged his Law, but was not permitted so to do, and so Judgement was given against the said Defendant.

Again, the goods of Ecclesiastical persons are discharged of Toll by the Common Law, si non exerceat Marchandizas de eisdem, saith the Register, 259. a.Regist. 259.a. for then their goods are charged, being now become goods of another nature, when the same are turned into Merchandizes; so are the goods of the French Nobility discharged by Gabels and Impositions if they traffique not, but if they traffique, saith Bodin, Bodin. their goods are charged like other Merchandizes.

Again, for goods wrongfully taken within the Land, the Common Law giveth remedy against the Trespasser, or the wrongfull Taker onely; but if an English Merchant be spoiled of his Merchandizes upon the Sea, or beyond the Sea, by the Subject of another King, the Register doth give him a Writ of Reprisall against all the Subjects of that Nation, Regist. 122. 6. and 46 Hen. 3.Register 122 6. 46 Hen.3 we find a more brief cause of Justice, for there the King in respect of the loss which certain Merchants of London had sustained, by an arrest made of their goods, made by the Countesse of Flanders, doth grant unto them all the Merchandizes whereof the Flemings were possest in England, Rot. Pa.3 E.1.m. 19. in Archivis turris London:Rot. Pa. 3.E:I.m. 19.in Archis turris London. Whereupon the Lord Mayor of London, did seize so much goods of the Flemish Merchants as amounted to 730. Marks and delivered the same to Thomas Debassing, and other Merchants, who had suffered loss by that arrest; and in the same Roll of 3 Ed. 1.3 Edw.1. the Lord Mayor of London, and Bailiffs of Southampton, are commanded by the Kings Writ, Quodomnes Mercatores Londienses ad partes Angliae accedentes per bona & catalla sua distrin guantur sed in legem mercatoriā & consueti dinem Regni ad satisfaciendum Mercatoribus Florentinis de pecuniis ipfi mutuo tradiderunt Willielmo Episcopo Leodiensi. Here we see that Lex mercatoria, which doth apparently differ from the ordinary Cō mon Law of this Kingdom, is said to be Consuetudo Regni.

And lastly, in a sute at the Common Law no mans Writing can be pleaded against him as his Act and Deed, unlesse the same be sealed and delivered; but in a sute between Merchants, Bills of Lading, Bills of Exchange, being but Tickets without Seals, Letters of advice and credences, Policies of assurance, Assignations of debts, all which are of no force at the Common Law, are of good credit and force by the Law Merchant.

Thus we see how Merchandizes do differ from other goods and Chattles in the eye of the Law, and how the Law Merchant doth differ from the common Law of England, and how the Common Law doth admit and allow thereof. Our Parliaments likewise have not onely made extraordinary provision for the more speedy recovery of Debts due unto Merchants for their Merchandizes, than is provided by our Common Law, as appeareth by the Statute of Acton Burnell, made the 11 Ed. 1. and the Statute de Mercatoribus made 13 Ed. 1. but also have course of proceedings, in cases of Merchants differing from the course of our Common Law, for by the Statute of 27 Ed.3.cap. 2.27 E.3. Cap.2.it is declared, that the proceedings in causes of Merchants shall be from day to day, and hour to hour, according to the Law of the Staple, and not according to the course of the Common Law; and by another Article in the same Parliament, that all Merchants comming to the Staple, should be ruled according to the Law of Merchants touching all things comming to the Staple, and not by the Common Law of the Land; and by another Article, that neither of the Benches, nor any ordinary Judges of the Common Law shall have any Jurisdiction in those cases; and lastly, that the Law of Marque and Reprisall, which is a branch of the Law Merchant, shall be used as it had been used in times past. So as the Parliament doth but declare the ancient Law, and doth not introduce a new Law in those cases.

Untill I understood this difference between Merchandizes & other goods, and between the Law Merchant and the Common law of England, I confess I did not a little marvell, England being so rich, and entertaining Traffique with all Nations of the World, having so many fair Ports and so good Shipping, the King of England also being the Lord of the Sea, and also a principall part of his Royal Revenue consisting in duties payable for Merchandizes, so as many Questions must of necessity arise in all ages touching Merchants and Merchandizes, What should be the cause that in our Books of the Common Law of England, there are to be found so few cases concerning Ships or Merchants, or concerning Customes or Impositions payable for Merchandizes.

But now the reason thereof is apparent, for the Common Law of the Land doth leave these cases to be ruled by another Law, namely the Law Merchant, which is a branch of the Law of Nations.

The Law Merchant, as it is a part of the Law of Nature and Nations, is universall and one and the same in all Countries in the World, for as Ciccro Cicero saith of the Law of Nations, Non orit alia lex Romae, alia Athenis, alia nune, alia posthac, sed & omnes gentes & omni tempore unalex eadem que perpetua continebit, &c. So may we say of the Law Merchant, there is not one Law in England, another in France, another in Spain, another in Germany, but the same rules of reason, and the like proceedings of the Law Merchant are observed in every Nations; for as our Chancellor of England affirmeth, 13 E. 4. 9.13 E.4.9. That the proceedings of the Law Merchant ought to be according to the Law of Nature, which is universall; so say the Civilians of severall Nations. The Italian Doctor saith, In curia mercatorum naturalis aequitas praecipue expectanda, & ex aequo & bono causas dirimendas esse; The French man saith, In curia mercatorum proceditur de mer a aequitate omissis solemnitatibus & apicibus juris; The Spaniard likewise saith, Apices & subtilitas juris non considerantur in foro mercatorio; whereby it is manifest, that causes concerning Merchants and Merchandizes, are not wont to be decided by the peculiar and ordinary Laws of every Country, but by the generall Law of Nature and Nations, out of which resulteth this Conclusion. Suppose it be admitted that by the positive Law of the land Taxes and Tallages may not be laid upon our goods within the land, without an Act of Parliament, yet by the Law of Nations, and by the Law Merchant, which are also the Law of England, in cases of Merchandizes the King of England, as well as other Kings, may by vertue of his Prerogative, without Act of Parliament, lay Impositions upon Merchandizes crossing the Seas, being goods whereupon the Law doth set another character than goods possessed in the land, as is before expressed.

WHen the City of Rome was Gentium Domina & Civitas illa magna quae regnab at super Reges terrae, The Roman CivilLex Civilis. Law being communicated unto all the Subjects of that Empire, became the Common Law, as it were, of the greatest part of the inhabited world; yet the extent thereof was never so large as that of the general Law of Nature, as it is noted by Cicero, offic. lib. 2.Cicero offic. li.2. Majores nosiri aliud jus Geutium, aliud Civile jus esse voluerunt, quod enim civile non idem continue, Gentium, quod autem idem civile esse debet, whereby it is manifest, that the Law of Nations is and ought to be a binding Law in all States and Countries; as it is binding, so it is perpetuall, and cannot be rejected, as the Roman Civil Law is rejected in most of the Kingdoms in Europe, in such cases as do arise within the body of every Kingdom.

In France, Philip le Bell (saith Bodin) de Repub. lib. 2. cap. 8.Bodin de repub.li.2.cap.8. when he erected the Courts of Parliament at Paris, and Mountpelier, did expresly declare, That they should not be bound in their judgments by the rule of the Roman Civil Law, and in erecting of all the Universities of France, they are charged in their severall Charters, not to revive the profession of the Civil and Common Law, as of binding Laws in that Kingdom, and therfore Earum non imperio sed ratione utimur, saith another learned Doctor of France.

In Spain, saith Bodin, Bodin in the same place, several Kings have made Edicts, that no man upon pain of death, should allege the Roman Civil Law as a binding Law in their Dominions.

And that Stephen King of Spain Stephen King of Spain. did forbid the publique pleading of the Civill Law.

As for England, to omit what Pope Elutherius Pope Eluther. wrote in his Epistle to Lucius the first Christian Monarch of the Britains, and whereof mention is made in Saint Edwards Laws de protestate Regia & Ecclesiastica, published in the time of 3 Hen.8. petiistis (saith he) leges Romanas & Caesaris vobis transmitti quibus in regno Britaniae uti voluistis, leges Romanas & Caesaris reprobare possumus, legem Dei nequaquam, &c. In a Parliament holden in England 11 R. 2. when a course of proceedings in Criminal causes, according to the Civil Law was propounded, an answer was made by all the States assembled, That the Realm of England neither had been informer times, nor hereafter should be ruled and governed by the Civil Law, Rot. Parliament. 11 R. 2. in Archivis turris London, and accordingly Chopinus II R.2. Chopinns. the French Lawyer in his Book de Domino Franciae tit. 28. speaking of the Civil law, hujus Romani juris (saith he) nullus apud Anglos usus, sed ex veteri gentis instituto Britani reguntur legibus municipialibus quas illis majorum mores praescripserunt.

But this is to be understood of causes arising within the Land onely; for all Marine and Sea causes which doe arise for the most part concerning Merch. and Merchandizes crossing the seas, our Kings have ever used the Roman Civil Law for the deciding & determining therof, as the Romans did use the Law of the Rhodians Rhodians. in those cases, according to the memorable rescript of the Emperour Anthonius, terram suis legibus Rhodiis Regi. How be it now, those Laws of the Rhodians are digested and incorporated into one body of the Civil Law; the jurisdiction touching causes arising upon the Sea, is committed by the King of England to his Admirall, who in his Court of Admiralty doth proceed in those cases according to the rule of the Civil Law.

Now for the Rules of the Civill Law touching the power of Kings, in laying Impositions upon Merchandizes, the same are clear without question, and observed without contradiction in all the nations of the world, Regiitantum juris ac muneris est vectigalia imponere, redditus, seu vectigalia portus quae perveniant ex his quae in portum vel ex portu vehentur regalia sunt, Rex qui non recognoscit superior em potest instituere nova vectigalia, &c. hoc est jus totius mundi, totus mundus hoc jure utitur, the D. Doctors who interpret the Imperiall Law, have their Books full of these Rules.

And if it be objected, That these rules of the Imperiall Law are onely intended of the Emperour, a learned Civilian hath this position, plus juris habet Rex in Regno quam Imperator in imperio, quia Rex transmittit regnum ad successionem quod non facit imperator, quiest tantum electionis, &c.

Lastly, when I speak of the rules of the Civil Law, and make use thereof, I do apply the same onely in cases of Merchandizes crossing the Seas, which I do expresse by way of protestation, that I may not be mistaken here, and in other places where I cite the Text of the Imperiall Law, as if I intended that Law to be of force in England generally, as in other places.

THe Canon LawThe Canon Law. is received and admitted in England, as a binding-Law in cases Ecclesiasticall, which are indeed the proper Subjects of that Law. But this question of Imposition is meerly Civil, and therefore the Canon Law doth not handle it but in cases of Conscience only, & so indeed it doth examin and determine in what cases an absolute Prince may with a good conscience lay and demand new Impositions, Decret. causae 24. Quaesti. 3.Decret.cause 24 Quaest.3. Princeps potest indicere nova vectigalia, and in Summa Summarum tit. degabellis & exactionibus, these rules and distinctions are laid down.

Quilibet Monarcha potest imponere novum vectigal, quod tamen boni viri arbitrio moderaudum est, potest Princeps imponere vectigal ultra conventiouem in duobue casibus. i. quando redditus ejus non sufficiunt ad segimē boni & cōmunis & decentiam status ejus. 2. quando non sufficiunt ex nova emergentia principes enim sunt à Deo instituti ut nō quaerant propria Lucra, sed cōmunem utilitatem populorum, lilia agri neque arant neque nent, which may be applyed, saith a French Monk, to all Princes, but espicially to the Kings of France, because they bore the Lilies.

The CanonistsCanonists. do likewise allege the example of our Saviour, who paid an Imposition of Poll-money,Poll-money. and wrought a miracle to enable himself to do it; that the Tribute-money which Christ commanded to be paid, Date Caefari quae sunt Caesaris, and the Custome which Saint Paul St. Paul. willeth every Christian to pay willingly, reddite omnibus, cui tributum, cuivectigal, were but Impositions raised by the Emperours Edict only, without the consent of the people; and yet Saint Paul requires obedience to Princes in that case, not only for fear of the Princes displeasure, but for conscience sake, non solum propter iram sed propter conscientiam.

FOrasmuch as the general Law of Nations, which is and ought to be Law in all King doms, and the Law Merchant is also a branch of that Law, and likewise the Imperiall or Roman Law have been ever admitted, had, received, by the Kings and people of England, in causes concerning Merchants and Merchandizes, and so are become the Law of the Land in those cases; why should not this Question of Impositions be examined and decided by the rules of those Laws so far forth as the same doth concern Merchants & Merchandizes, as well as by the rules of our Customary or Common Law of England, especially be cause the rules of those other Laws are well known to the other Nations, with whom we have commerce, and to whō and from whom all Merchandizes are transported, wheras the rules of our own Municipall Laws are only known within our Islands; and if this Question may be decided either by the Laws of Nations, or by the Law Merchant which is but a member thereof, or by the Roman Civil Law, we find this point clearly and absolutely determined, and over-ruled by the rules of those Lawes, viz. That all absolute Kings and Princes may set Impositions upon Merchandizes by their Prerogatives, and thereupon we may conclude, that since one Monarch hath as much power as another, as Fortescue Fortescue in his Book de Laudibus legum Angliae, affirmeth, the K. of England, as well as any other King, as the Emperour himself, cum ipse omnes libertates habet in regno suo quas imperator vindicat in imperio, As King William Rufus told the Arch-Bishop Anselm, may by vertue of his Royal Prerogative annexed to his Crown, and inherent to his Scepter, lay Impositions upon Merchandizes exported or imported into any of his Kingdoms or Doninions.

BY the Law of Nature all things were cōmon, and all persons equal, there was neither Meum nor Tuum, there was neither King nor Subject; then came in the Law of Nations, which did limit the Law of Nature, and brought in property, which brought in community of things, which brought in Kings and Rulers, which took away equality of persons, for property caused Contracts, Trade, and Traffique, which could not be ministred without a King or Magistrate; so as the first and principal cause of making Kings, was to maintain property and Contracts, and Traffique, and Commerce amongst men. Hereupon by the same Law of Nations, Tributes and Cust̄omes became due to the King or Prince to maintain him in his place of Government, quasi Ministerii sui stipendia, saith the School-man, Deo Minister est tibi in bonum ideo & tributa potestas, saith Saint Paul, and all these things, namely Property, and Contract, and Kings, and Customes, were before any positive Law was made; then came the positive Law, and limited the Law of Nations, whereas by the Law of Nations the King had an absolute and unlimited power in all matters whatsoever. By the positive Law the King himself was pleased to limit and stint his absolute power, and to tye himself to the ordinary rules of the Law, in common and ordinary cases, worthily and princely, according to the Roman Emperour, Dignissimum Principe Rex se allegatum legibus consiteri, retaining and reserving notwithstanding in many points that absolute & unlimited power which was given unto him by the Law of Nations, and in these cases or points, the Kings Prerogatives do consist; so as the Kings Prerogatives were not granted unto him by the people, but reserved by himself to himself, when the positive Law was first established; and the King doth exercise a double power, viz. an absolute power, or Merum Imperium, when he doth use Prerogatives onely, which is not bound by the positive Law; and an ordinary power of Jurisdiction, which doth co-operate with the Law, & whereby he doth minister Justice to the people, according to the prescript rule of the positive Law; as for example, the King doth not condemn all Malefactors, but by the rule of the positive Law; but when the Malefactor is condemned by the Law, he giveth him a pardon by his absolute Prerogative.

Again, the King doth punish the breach of the Peace within the Land, by the ordinary course of the Cōmon Law, but he doth make War and Peace with Forreign Nations, Quod pertinet ad liberum jus gladii, as a Doctor speaketh, by that absolute and unlimited power, which the Law of Nations hath given unto him.

Again, the King doth establish the Standard of Money by vertue of his Prerogative only, for the Common Law doth give no rule touching the matter, or form, or value thereof; but when those Monies are dispersed into the hands of the Subjects, the same do become subject in respect of the property thereof, to the ordinary rules of the Common Law.

Again, the right of Free-hold and all Inheritance, and all Contracts reall and personall, arising within the Land, are left to be decided by the positive Law of the Land; but the Government and ordering of Traffique, Trade, and Commerce, both within the Land and without, doth rest in the Crown as a principall Prerogative, wherein the King is like to Primum mobile, which carrieth about all the inferiour Spheres in his superiour Course, and yet doth suffer all the Planets underneath him to finish all their divers and particular courses; or rather he doth imitate the Divine Majesty, which in the Government of the world doth suffer things for the most part to passe according to the order and course of Nature, yet many times doth shew his extraordinary power in working of miracles above Nature.

And truly, as the King doth suffer the customary Law of England to have her course on the one side, so doth the same Law yeeld, submit, and give way to the Kings Prerogative over the other; and therefore in the 1 Hen. 7. fol. 23.1H.7.fol.23. there is a rule, That every Custome is void in Law quae exaltat in praerogativum Regis, which is an argument, that the Kings Prerogative is more ancient than the customary Law of the Realm; besides, the power of the Kings Prerogative above the Common Law doth appear in this, That whereas all privileges do flow, and are derived from the Kings Prerogative, and every privilege in one point or other privat communem legem, yet the Common Law doth admit and allow of privileges granted by vertue of the King Prerogative.

FIrst, it is manifest that all Corporations of Cities and Boroughes within the Land, were chiefly instituted for Trade and Commerce, and not by the rule of Common Law; no such Corporation can be made but by the Kings Charter; for though there have been some Corporations which have been time out of mind, yet the Law presumes that the same at first had their beginnings by the Grant of the King; besides, we find in divers ancient Charters made unto those Corporations, a power granted unto the King to take de omnibus rebus venalibus within their Liberties, certain sums of Money, viz. delibra piperis, so much, de libra zinziberis, so much, de quolibet panno, &c. for murage, or towards the reparation of their Walls, which is nothing else but an Imposition laid by the Kings Charter to maintain those Cities & Boroughs wherein Trade and Traffique is maintained; wee find such a Charter granted to Nottingham, 3 Edw. 1. pat. m. 21.3 Edw. 1 pat.m 21 in Arch. turris London. The like is granted to Cloneniell, and to some other Towns in Ireland. F.N. 170. B. F.N. 170 D. We find a Patent granted to a Burrough in England, to take for five years a certain sum of Money of every Passenger, toward the paving of the same Town.

Again, no Fair or Market may bee holden within the Realm, neither can a multitude of Subjects assemble themselves together to that end, without a speciall Warrant or Grant of the King; and when a Subject hath a Grant of a Fair, he hath a Court of Py-powder incident thereunto, wherein the proceeding in Summary & de plano from hour to hour, as in the Court of Merchants; And for the Government of all Fairs and Markets, especially touching Weights and Measures, the Standard whereof was first established by the Kings Ordinance, to whom the establishing of the Standard Monies, which is mensura publica omnium rerum commut abilium, is also reserved as a speciall Commoditie.

Besides, in every Fair and Market where things are bought by retail, for the necessary use of the Buyer, and not to sell the same again as Merchandizes in another Market, for that is regrating and unlawfull, by the rule of the Common Law, There is a Toll taken, which is nothing else but an Imposition laid upon the Buyer, and that that Toll was originally imposed by the Kings Prerogative, it is manifest in this, that the ancient Tenants of the Crown, namely the Tenants in ancient Demeasne, are discharged of Toll in all Markets and Fairs; and that the King by Charter hath discharged divers other persons of Toll, as appeareth in the Register of Writs, and Pitz. Na. Brevium, where we find divers Writs essend quiet de Theolneo. But this discharge of Toll is onely for things bought for necessary use of the Buyer, and for Merchandizes, for the Tenants in ancient Demeasne are discharged of Toll, for such things only as are for their provisions, or manurance of their lands, and in the Writ which dischargeth the goods of Ecclesiasticall persons of this Toll, there is this clause, dummodo non faciat Merchandiz as de iisdem, as is before declared.

Lastly, the Kings Prerogative in the Ordering and Government of Trade within the Realm, doth appear in that notable Charter granted to the Abbot of Westminster, recited in the Register of Writs, fol. 107.Register of Writs, fol.107. wherein the King doth grant to the Abbot and his Successors, to hold a Fair at Westminster for thirty two dayes together, with a prohibition that no man should buy or sell within seven miles of that Fair, during that time.

TOuching Merchandizes crossing the Seas outward and inward, the same are of another quality, and the Law hath another consideration thereof, than it hath of such things as are bought and sold in Fairs and Markets within the Land, as is before expressed; and therefore the duties payable upon the exportation and importation of Merchandizes, have another name, being called Customes, and not Toll, and are also paid in another manner, for CustomesCustome and Toll. must be paid before the Merchandizes be discharged and brought to Land; whereas toll is not paiable but for goods brought into the Fair or Market.

Again, Custome must be paid whether the Merchandizes be sold or not, but Toll is not due but for goods bought and sold in the Market.

Again, Custom is alwayes paid by the Merchant, who selleth or intendeth to sell his Merchandizes in grosse; but Toll is ever paid by the party who buyeth some Commodity for his proper use and provision by retail.

Lastly, if Customes be not paid or agreed for before the Merchandizes be discharged and brought to Land, the Merchandizes are ipso facto forfeited, and may presently be seized to the use of the King; but if Toll be not paid, the thing sold is not forfeited, only it may be distrained and detained till the Toll bee paid; or an Action upon the Case may be brought for the Toll. These differences between Custome and Toll do apparently prove that Merchandizes for which Customes are paid, do differ from other goods sold in the Markets and Fairs, for which Toll is taken, and that the Trade of Merchandizes crossing the Seas, and the Trade that is used in Markets and Fairs, are ordered by different Prerogatives; and as the Tolls of severall kinds which are taken in Markets, Fairs, and Towns Corporate, were first imposed by vertue of that Prerogative, whereby the King ordereth all Trade within the Land; so by vertue of that other Prerogative whereby the King governeth the Trade of Merchandizes crossing the Seas, the Crown of England, ever since the first institution of the Monarchy, hath from time to time raised and received out of Merchandizes, Customes, and Impositions, of divers Nature and Natures, according to the diversities of Merchandizes exported and imported, and the divers occasions and necessities of the comercion.

THE ancient duties payable for Merchandizes, were but of two kinds, and known by two names, Customes and Prizes; Customes were paid for Homebred and Native Commodities exported, and Prizes were taken out of Forreign Commodities imported.

The Native Cōmodities out of which Custome was paid, were Wooll, Woollfells, and Leather, and this Custome did consist of rertain rates or sums of Mony, imposed by the King upon those Merchandizes exported, which rates were raised and reduced higher or lower, from time to time, as occasion did arise; for although in the time of King Edw.1.the Customes payable for those Commodities were reduced to this certainty, viz. to a demi mark for every Sack of Wooll, a demi mark for every three hundred Wooll-fells, and a mark for every last of Leather, which we call now the great and ancient Custome, ab initio non fuit sic, these were not the rates from the beginning, for not long before that time there was a greater and more ancient Custome paid for the exportation of those Commodities, Britanni (saith Strabo)Strabo. vectigalia tollebant gravia earum rerum quas brevi trajectu in Galliam importabant; this was Magna Customa in the time of the Britans; and though the certain rates thereof doth not appear, yet because the same were gravia vectigalia in those dayes, we may easily beleeve that Custome to have been greater than the demi mark for a Sack of Wooll.

Again, the Statute of Magna Charta, which was as ancient as King Iohn, speaketh of ancient Customs payable for Merchandizes, and the Book of 29 Edw. 3. maketh mention of ancient Customes granted to King Iohn, in the Town of Southampton, which doubtlesse were other Customes than that of the demi mark, &c. for that in the Record of the Tower, 3 Edw. 1. Rot. sin. 24. & Rot. Patent of the same year, m. 9. the demi mark which was first established by the Kings Letters Patents, is called Nova Custuma, and this was a diminution of the ancient Custome, saith the Book of 30 H. 8. Dyer 43.38 H.8.Dyer 43.

Again, when the same King Edw. 1. had by his Writ onely, without Act of Parliament, established the Custome of the demi mark, &c. in Ireland, in all the Customers Accounts, which are found in the Pipe-Rolls, in the time of Edw. 1.Edw.1. Edw. 2.Edw. 2. Edw. 3.Edw.3. in that Realm, it is also called Nova Custuma, which importeth as much as a new Imposition, for Imposition is a new name, and hath been of use but of late years, whereas every new charge laid upon Merchandizes in ancient times, was called Nova Custuma, as the Lord chief Baron Fleming observed in his Argument in Bates Case Bates case de Currans in Sccio. per Fleming chief Baron. of Currans, in the Exchequor of England; but because this Custome of a demi mark was a reducement made by King Edw. 1. of the great and ancient Custome to that proportion which was then thought reasonable (as after upon sundry Petitions of the Commons, was allowed by the succeeding Princes) it obtained in tract of time the name of the great and ancient Custome; this Custome of demi mark was not granted to the King by Parliament, but reduced to that rate by the King, by the prayer of the Cōmons, as is expressed in the Record of 3 Edw. 1.3 Edw. 1. fin. memb. 24. for albeit the Charter for confirmation of Magna Charta, made in 25 Edw. 1. doth recite, That the demi mark was granted by the Cominaltie, yet is there no Act of P. printed or recorded, wherein that grant of the Cominaltie doth appear, neither can it stand with the rule of reason that the demi mark being a diminution of the ancient Custome should proceed from the grant of the Cominalty to the King, for the King would never have accepted of such a grant as did diminish his Revenue, neither had it been thank-worthy or acceptable, and therefore the King having a Negative voice, would never have given his assent to such a grant in Parliament; but it is to be presumed that this diminution of the ancient Custome was made in Parliament, and not by Parliament, and that by prayer of the Commons, as the Record of 3 Edw. 1. Rot. fin. memb. 24.3 Edw.1.Rot.fin.memb.24. testifieth, the King was then well pleased for that time to draw down the ancient Custome to that rate, and the people did willingly yeeld and consent to the payment thereof; and this I take to be the true interpretation of the Charter or Statute made in 25 Edw. 1.Statute 25 E.1. And therefore because we find no Act of Parliament whereby the people did originally grant the great and ancient Customes to the King, and because we find it was uncertain and subject to diminution and alteration, we may conclude, that it was but an imposition laid by the King from time to time by vertue of his Prerogative, without any grant from the Cominalty of the Realm who can make no grant but by Act of Parliament; & in truth it were absurd to aff • rme, that the great and ancient Custome imposed upon Native commodities of the Kingdom was first granted by Act of Parliament; since it cannot be imagined that ever those commodities did passe out of the Kingdom, without Custome, being equal in time with the first Scepter; and since the Scepter was established many hundred years before the people were called to be in Parliament; besides, the very name of Custome doth note and argue that it began before any Act of Parliament was made, for that it signifieth a duty payable or accustomable to be paid time out of mind, which in presumption of Law, is before any Record; wherefore the rules in the Lord Dyers Dyer 29. Book are good Law, viz. The King hath an Estate of Inheritance in the Custome payable for Merchandizes, as being a Prerogative annexed to his Crown. And again, 30 Hen 8. 43.30 H.8.43. Custome is an Inheritance in the King by the Common Law, and not given by any Statute.

THe most ancient Custome payable for Wines is Prizage,Prizage and Butlerage. which is not any sum of Money, but two Tunns of Wine in specie, out of every Ship freighted with twenty Tun, the one to be taken before the Mast, and the other behind the Mast of the Ship; and the price which the King himself did limit to pay, was twenty shillings onely, for every Tun, as appeareth by an ancient Record of 52 Hen. 3.52 H.3 whereby we may conjecture, what easie rates the King gave for the prizes of other Merchandizes. This Custome of Prizage was meerly an Imposition, for it could not be granted by the Merchants of Forreign Nations, being no body politique, as is before declared; neither is there any Act of Parliament wherby our own Merchants did ever grant it unto the Crown.

This duty of Prizage was remitted unto the Stranger, by the Charter of 31 Edw. 1.31 Ed.1. before mentioned, and in lieu thereof, by vertue of the same Charter, the King before mentioned receiveth two shillings for every Tun of Wine brought in by Strangers, which we now call Butlerage; but Prizage is paid in Specie by all our own Merchants at this day, the Citizens of London only excepted, who having remissiō of Prizage by a special charge, were charged with a new Imposition called Gauge, viz. de quolibet dolio 1 d.de vinis venientibus London, which was accounted Forreign, Magno Rot. An. 1 Edw. 1. in the Office of the Pipe at Westminster; the last of these Impositions, which by the continuance have gotten the name of Custome, was laid and imposed three hundred years since, and have ever since been approved, and are now maintained by the Common Law of England, as the lawfull and ancient Inheritance of the Crown.

AS our ancient Kings by vertue of their Prerogative without Parliament, have laid the Customes or Impositions before expressed, upon all sorts of Merchandizes exported and imported; so by the same Prerogative have they ordained severall sorts of Officers to search and over-see those Merchandizes on which they had laid those Impositions, namely the Gauger Gauger. of Wines, a high Officer, is as ancient as the Imposition of the Gauge it self before mentioned; the Alneger Alneger. of the cloths which is more ancient than any Act of Parliament that makes mention of the cloths, for there is a Record of 14 Edw. 2.14 Ed.2. in Archivis turris which speaketh of the Alneger, the Packer of Woolls, the Garbellor of spices; besides, the Officer of the Customes, viz. the Customer Comtroller and Searcher;Customer. Comtroller. Searcher all which Officers have ever taken Fees of Merthants, both Denizens and Aliens, not by grant of the Merchants or Act of Parliament, but by vertue of their severall Patents granted from the King.

TRue it is, that during the reign of these Princes, we finde no Impositions directly set upon Merchandizes by their absolute power or prerogative; but they did not forbear to lay Impositions directly, for that they wanted right so to doe, or because they doubted of their right in that behalf; for they well knew they had the same right, the same prerogative, and absolute power that their Predecessors had; but because they found other means to make other profit upon transporting of Merchandizes, and that in another manner, and in so high measure, as the trade of Merchandizes in those daies could hardly bear any greater charge, without danger of overthrowing all Trade and Comerce: And therefore those Princes did in their wisdomes forbear to lay any further Impositions by their Prerogatives: For these Kings who reigned after King Edw. 3. who conquered Callis in France, and before Queen Mary lost Callis, had two principal waies and meanes to raise extraordinary profits upon Merchandizes, but proceeding from one cause, namely, from establishing the Staple at Callis; for King Edw. 3. some few yeares before his death, did by his Prerogative in point of Government, without Act of Parliament, erect a Staple at his Town of Callis, Staple at Callis. and did ordain, and command, that all the Merchandizes exported out of England, Wales, and Ireland, by any Merchant Denison, or Alien, should presently be carried to the Staple at Callis, and to no other place beyond the Seas. This Staple at Callis was first setled and fixed there by an Ordinance which the King made by virtue of his Prerogative and absolute power in the government of Trade and Comerce, without Act of Parliament: And if this Ordinance so made had been thought unlawful, and against the liberty of the Subject, it would never have been approved and confirmed by the Judgements of so many Parliaments in the times of Rich 2. Hen. 4. Hen. 5. and Edw 4. Neither could there have been such heavy penalties layd by those Parliaments upon the transgressors of those Ordinances: Insomuch as in the time of King Henry the sixth, it was made Felony to Transport any Merchandizes to any part beyond the Seas but to Callis onely. Now the Staple of Callis being thus established, there did arise a double profit to the Crown for transportieg of Merchandizes over and above the ancient Customes and other Subsidies granted by Parliament.

First it came to pass, that the Customs and Subsidies for Merchandizes transported out of England, Wales, and Ireland, which before was single, and payd but once, that is, upon the outgate; after the establishing of the Staple at Callis, the duties for the same Merchandizes became double at the least, and for the most part treble, and were ever payd twice, and for the most part thrice; namely, once upon the outgate in the Ports of England, Wales, and Ireland; secondly, upon the ingate at Callis; and because all the commodities brought into Callis could not be vented into the main Land there, but the greatest part was to be exported again by Sea into higher or lower Germany, and other the North East Countries, and some into Spain, and Italy, and the Ilands of the Levant, there did arise a third payment of Customes and Subsidies for so much of their commodities as were exported again cut of Callis, by meanes whereof the Customes and Subsidies did amount to threescore thousand, or threescore and ten thousand pounds sterling, per annum,in the latter times of King Edw. 3.E.3. and during the reign of Rich. 2. Hen. 4. Hen. 5.R.2.H.4.H.5. and the beginning of the reign of Hen. 6. as appears by the Records of the Exchequer of England, which according to the valuation of Moneys at this day, the ounce of Silver being now raised from two shillings to five shillings, do make two hundred thousand pound sterling, per annum, which doth equal, or surmount all the Customes, Subsidies, and Impositions received at this day, though that plenty of money, and price of all things, and consequently the expences of the Crown be exceedingly increased in these times.

And albeit the breach of Amity between the Crown of England and the Duke of Burgundy, who was the Lord of the Lower Germany, in the weak and unfortunate time of King Hen. 6. did cause a stop of Trade between us, and that Country into which the greatest part of our Staple wares, especially Wooll and Cloth were vented, and uttered, and was likewise the cause of loss of all our Territories in France, except Callis, and all the Merchandizes thereof, whereby the Customes, and other duties payable for Merchandizes were in the time of that unhappy Prince withdrawn, and diminished to a low proportion; yet afterwards upon the Mariage of Margaret, Sister to King E. 4. unto the Lord Duke of Burgundy, as that in honour of the English Wooll, which brought so much Gold into his Country, he instituted the Order of the Golden Fleece; and thereupon the Customes, Subsidies, and Impositions were raised again to so high a Revenue, as our Kings could not well, in policy, strain that strength of profit upon Merchandizes any higher.

Secondly, albeit the Staple established at Callis being first established by an order made by the Kings Prerogative and absolute power, was afterwards approved and confirmed by sundry Acts of Parliament, yet did the King by another Prerogative retain a power to dispence with that Ordinance, and those Acts of Parliament, and to give license to such, and so many Merchants as himself thought fit, to export any Merchandizes out of England, Wales, and Ireland, unto any other parts beyond the Seas besides, à non obstante of the first Ordinance, and of the Statutes which did establish the Staple at Callis. By virtue of this Prerogative and power, the several Kings who had Callis in their possessions, did grant so many Licences to Merchants, as well Aliens as Denizens, to transport our Staple commodities immediately into other places without coming to Callis, for which Licenses, whereof there are an incredible number found in the Records of England, the Merchants payd so dear for their commodities, especially the Genoeses, and the Venetians, and other Merchants of the Levant, as by the profits made of those Licences did amount to double the value of those Customes and Subsidies payable for exportation thereof; and thereof those Princes as they had the less need, so had they no reason at all to charge the Trade of Merchandizes with any other, or greater Impositions.

In these two points before expressed doe consist the principal cause why the Princes of England who succeeded King Edw. 3. who won Callis, untill the reign of Queen Mary, who lost Callis, did not directly use their Prerogative in setting any other Impositions upon Merchandizes above the ancient Customes and Subsidies granted by Parliament: For it is to be observed, that most part of those Princes who reigned after K. Edw. 3. and before Queen Mary, had the Subsidy of Tonnage and Poundage granted unto them by Parliament, which being added to the gain of the Staple of Callis, did augment not a little the profit layd upon Merchandizes. And may be a reason likewise why those Kings did forbear to lay any other Impositions by their Prerogative.

We may adde hereunto other reasons. First, Rich. 2. was a Minor, and overruled by the great Princes of the Blood, who would not suffer him to use his Prerogative.

Secondly, that during the Wars of Lancaster and York there was no fit time to make use of that Prerogative, while both parties did strive to win the favour of the people.

Thirdly, that King Hen. 7. had much ado to settle himself in the quiet possession of the Kingdome after those troubles.

Fourthly, that King H. 8. had such a mass of Treasure left him by his Father, and did so inrich himself by dissolution of Abbyes, as he had no need to make use of this Prerogative.

Fiftly, that K. E. 6. was also a Minor, and that his chiefest Council did more contend to advance their own houses than the Kings profit.

QUeen Mary, in whose time the Town of Callis was lost, and consequently the benefit of the Staple at Callis was lost, did by her absolute power, as appeareth by the Report of the Lord Dyer, 1 Eliz. Dyer 165.Dyer 165 12 Eliz. raise an Imposition upon Clothes, viz. six shillings and eight pence upon every Cloth, over and above all Customes and Subsidies. True it is, that the Merchants petition'd to be disburthened of this Imposition, which was referred to the consideration of the Justices, and others; whereupon they had many assemblies and conference, as that Book reporteth: And albeit the Resolution of the Judges in that behalf be not found in that book, it is to be presumed, That they adjudged the Imposition to be just and lawfull, because it was continued and answered during all the Reign of Queen Mary. This Queen Mary likewise by her Preroonely, layd and Imposition of four Marks upon every Tun of French Wines over and above the Prizage and Buttlerage, which during her life time was payd without contradiction.

HIS Majesty likewise when he came to be King of England finding his Crown to be seized of this Prerogative, and finding withall the necessary charge of the Crown exceedingly to increase, did for the supportation thereof, not onely continue the Impositions layd by Queen Mary, and Queen Elizabeth, but also layd new Impositions upon sundry sorts of Merchandizes, over and above all Customes and Subsidies formerly due and payable for the same: And these are the Impositions now; the principal of these is twelve pence upon the pound, or a second poundage set upon Merchandizes as well exported as imported, by Letters Patents 28. Iuly, Letters Patents 28, Iuly, 6. Iac. in the sixth year of his Majesties Reign; but how is it set and imposed, surely with such moderation, and limitations, and such receptations full of grace and favour, as no Monarch or State in the world did ever impart to their Subjects the like in the like case; for, besides other gracious clauses contained in the same Letters Patents, All commodities serving either for food, or sustenance of the Kings people, or seting the poor on work, or for munition or defence of the Realm, or for maintainance of Navigation, or which especially tends to the enriching of a Kingdome, are excepted and discharged by this Imposition.

As for the special Impositions which his Majesty hath set upon certain forrein commodities, as Currans, Logwood, Tobacco, &c. As touching the first of these, the Imposition hath been adjudged lawful in the Court of Exchequer of England: And for the other commodities, they are of such nature, as no man ever made question but that the Impositions set upon them were lawful. Besides these Impositions layd in England, his Majesty by his Prerogative onely, since the beginning of his Reign, received the Impost of Wines in Ireland; and hath likewise, to make equality of Trade in that Realm, layd an Imposition of twelve pence on the pound of all other Merchandizes imported and exported out of the Ports of Dublin, Waterford, Drogheda, and Galway, the Citizens of which Cities and Townes are exempted and discharged of Poundage granted by Act of Parliament there, which Imposition was never impugned in Ireland, but hath since the setting thereof been levied and payd without contradiction. And that wee see how long the Crown of England hath been seised of this Prerogative, in laying Impositions upon Merchandizes, and how the same hath been put in practice by the most prudent Princes since the Conquest.

ALthough it be a matter of difficulty, and doth savour withall of curiosity and presumption, to search a reason for every Prerogative that is incident to the Crown; for Sacrilegii est disputare de Principis facto, saith the Imperial Law; and Scrutator Majestal is opprimitur à gloria, saith the Wise man: Yet the reasons whereupon this Prerogative is grounded are so many, and manifest, as it were not amiss to collect the principal of them, rather for the confirmation, than the satisfaction of such as have moved this question touching the lawfulness of Impositions layd by his Majesty upon Merchandizes.

First, the King is the Fountain of all Justice, and therefore the first reason drawn from the Kings charge in doing Justice, and procuring Justice to be done to Merchants, not onely distributive Justice, wherein consisteth Praemium and Paena, but cōmutative Justice is also derived from the King. Now his Majesty doth exercise commutative Justice chiefly in the ordering and government of Trade and Comerce, wherein hee is to doe Justice, or to procure Justice to be done to his Subjects, who do make contracts real and personal within the Land: But to his Merchants that trade and traffique with Forrein Nations, and to Strangers that trade & traffick with us, for the Administration of cōmutative Justice within the Land, the King receiveth sundry profits, which grew first by way of Imposition. A man cannot recover a Debt in the Kings Court, but first he payeth the King a Fine for his first Process: Land cannot be conveighed by a Common Recovery but a Fine for the Original must be payd to the King. Neither can Land be passed from one to another by Fine in the Kings Court, but the Kings Silver must be payd, pro licentia concordandi. Adde hereunto the profit of the Seals in all the Kings Courts, for all manner of Writs: And yet the King in Charta magna did promise, Nulli negabimus, nulli vendemus Iustitiam vel rectum; but the Kings taking of these, and the like Duties, is no breach of the great Charter, for that the same was imposed by the King long before the Charter was made and taken, ut Ministerii sui stipendia, as the Schoolman speaketh; and withall to recompence the charge of the Crown in maintaining the Court of Justice: See Bodin lib. 6. de Repub. cap. 2.Bodin lib. 6: de repub. ca.2. where hee speaketh of the like profit made upon the Process in France: And shews that the antient Romans did the like: And the Emperour Caligula Caligula: took the fortieth penny of that which was demanded in every several Civil Action. If then such profits be taken for the King in his Courts of Justice within the Land, towards the charge which he sustaineth in the maintainance of these Courts and the Offices thereof, which duties were at first limitted and imposed by the King himself without any Act of Parliament; for who ever heard of an Act of Parliament whereby the same were granted? Is there not as good reason why the charge of the King in doing Justice, and procuring Justice to be done unto Merchants, whose residence and comerce is for the most part out of the Land, should be recompenced out of Merchandizes imported, and exported, not according to the will of the Merchant, and pleasure of the people, out proportionable according to the Kings charge, which being best known to himself, it is most meet that the recompence should be limitted by himself?

Touching the charge of the King in doing, and appointing Justice to be done to Merchants; Are not all Leagues, Truces, and Treaties of State with Forein Princes, wherein the publique Trade and Comerce of Merchants are ever included, concluded, and made at the Kings charge? Did not the Kings Council of State, and high Court of Chancery give more speedy hearing to the causes of Merchants than to the causes of other Subjects? Doth not the King maintain a Court of Admiralty for deciding of Marine causes, which doe for the most part concern Merchants? Doth he not bear the charge of several Le • ger Ambassadors in Italy, in Spain, in France, in the Low Countries, in Turkie, whose principal Negotiation doth consist in procuring Justice to be done to our Merchants? And if our Merchants doe suffer wrong in any Forein Country by reason of any defective neglect in doing Justice there, doth not the King by his Prerogative grant them Letters of Mart, or Reprisal, that they may right themselves, which is a Species justi Belli, as the Civilians call it? And if the injury done to the Merchants bee multiplyed and continued with a high hand, Is it not the Kings Office to denounce and prosecute War against such a people as doth refuse to doe Justice unto his Merchants? For this cause the Romans began the first Punick War, saith Appian, Cicero Appian. Cicero. in his Oration pro Lege Manlia, affirmeth, Populum Romanum saepe Mercatoribus Injuria suis tractata bella gessisse. Briefly, the plenty of Money being greater in this Age than ever was there by reason of so many Millions of Gold and Silver brought from the Indies into Europe, and the price of all Merchandizes being withall greatly enhanced, and the charges and expences of Princes exceedingly encreased, is it meet or just that the King at this day should be stinted or bound to that old Demimark onely for Native commodities, or the three pence of the pound for the Forein commodities which Edw. 1. was content to accept of four hundred years since, or a single poundage onely, which in the time of King Edw. 4. was not sufficient to maintain the necessary charges of keeping the Sea, as the Acts of Parliament, 12 Edw. 4. cap. 5.12 Ed.4.cap.5. which granteth that Subsidy to the King, reciteth all the Kings charge in supporting the Trade of Merchants being unlimited, and infinite: And shall the duties payable for Merchandizes be stinted and restrained to such a proportion only as the Subject shall bee pleased to grant unto him? Assuredly if the King had not a Prerogative of his own absolute power without Act of Parliament, to increase the duties payable for Merchandizes at this day, a Merchants Counting-house would be richer than the Kings Exchequer; and the Subject who may live privately, and moderate his expences, and yet raise the Fines of his Coppyholds, and Rents of his Demeans without controlement, would be in better case than the King, who by reason of the Majesty of his Estate cannot abridge his charges, and yet should have no power of himself without leave of his Subjects to increase his Revenue.

Again, the King is not only at charge in doing of Justice to his Merchants at home, and in procuring Justice to bee done to them abroad, but the doth withall maintain a Royall Navy of Ships, the best, the fairest, the strongest in the world at this day, to protect all Merchants from spoyl and Piracy on the sea. In the maintainance of this Navy, the King doth expend more Treasure than the whole Revenue of some of his Predecessors did amount to.

And he doth not onely secure Merchants by Sea, but he gives them safe conduct by Land also, as appeareth by the great Charter: So as they may well give our King that title which Virgil Virgil. gives to the King of Bees, Ille operum custos: And seeing Merchants are most likely resembled to those Industrious creatures, because they bring the hony to the Kings Hives, to wit, to his Havens and Ports, where they, and their Merchandizes bee protected and reserved, why should they not imitate the Bees in observing their King, and in making him partaker of the fruit of their labours? Neither is it a new thing, or an invention of this Age, to lay Impositions upon Merchants for their Wastage and Protection at Sea; for Plinius tels us, lib. 19.cap 4.Plin.lib.19.cap.4. Merces praetiosae ut ex India, Arabia, Ethiopia, tuto in Europam à Mercatoribus conveherentur, necessariò classem parandam esse adversas Piraticas incursiones, inde maritimi exercitus habendi causa vectigal rubri maris institutum.

A third reason drawn from the Interest the King, hath in the parts of the Kingdom, and the custody thereof, which giveth him power to shut and open the fame at his pleasure.

Again, all the Ports of the Kingdome are the Kings, not onely the CinquePorts, which have a special Warden appointed by the King, but the rest of the Ports are also his, and many of them bear a mark of the Kings Inheritance in their Additions, as Linn Regis, Waymouth, Melcombe Regis, Pool Regis; for the King is Custos totius Angliae Regni; as the four Seas are the Walls of the Kingdom, so the Havens and Creeks are the Gates, and Posterns of it. They are Ostia, they are Ianua Regni; and we find two Ports in Italy called by those names, the one at the mouth of Tiber, the other corruptly called Genoa, but the true name thereof is Ianua. And as the Havens are Ianua Regni, the King himself is Ianus, and hath power to open and shut them at his pleasure.

Omnia sunt nostra clausa patentque manu. Saith Ianus in the Poet. And again, Modo namque patulchus idem & modo sacrifico Clusius ore vocor.

The King of England hath ever had this Prerogative incident to his Crown, to shut and open the Ports when it pleased him, as appeareth by many Records, especially by the Parliament Rolls in the time of King Edw. 3.Tempore Edw.3. wherein are found many Petitions that the Sea might be open, which during that Kings time was often shut by virtue of his Prerogative only, and never fully opened again, but when the King layd an Imposition upon Merchandizes.

And this Prerogative of Custody of the Ports, and of shutting and opening the same, is reserved unto the Crown upon an excellent reason: For Trade and Comerce is not fit to be holden with all persons, neither are all things fit to be imported or exported: For such persons as are enemies to the Crown, & come to discover Arcana Regni, such persons as come to corrupt Religion, or the manners of the people, such persons as under colour of Merchandizes come to set up Monopolies, or a dry Exchange to drain or draw away our commodities or money out of the Kingdom, are not fit to enter in at the Gates of the Kingdome. And again, such commodities as the Kingdom cannot spare, as Corn in time of dearth, and such as may advantage our Enemies and hurt us in time of Warre, as Horses, Armor, Gunpowder, &c. are not fit to be exported out of the Realm: And Poysons, Heretical books, and other things which are apparently hurtfull to the people, are not to be imported; and therefore the Prerogative of opening and shutting the Ports is accompanied with another absolute power, of stoping and imbarring of Trade & Comerce, sometimes generally, sometimes between us and particular Nations, and sometimes for particular Merchandizes only, whereof there are many presidents and examples both in Records and Histories of our Nation, 2 Edw. 1.2 Edw.1. Rot. Parliament. m. 18. in Archivis Turris. 2 Edw. 3.2 Edw.3. Rot. fin. m. 17 ibid. 10 Edw. 3.10 Ed.3. Chaunc. m. 3. in dorso ibid. 17 Hen. 6.17 Hen.4 Sccio Angliae, Matthew Paris Hist. Magna P. 568.Matthew Paris Histor. Magna p. 568. 10 Hen. 7 Stow. 10 Hen.7 Stow And this Prerogative of imbarring Trade, doth result out of the undoubted Prerogative which the King hath to make Peace and War with Forein Nations, for open War is no sooner denounced, but all Trade of Merchandize is stopt and imbarred between the Nations which are ingaged in the Warre, durante bello inter Reges Christianos merces quascunque exportare vetamur ne Regni arcana serutentur, saith a Doctor of the Imperiall Law; whereupon wee make this Argument, That since the King hath absolute power of shut the Ports, and stop Trade, it standeth with as good reason that he shold have the like power to lay reasonable Impositions upon Merchandizes for opening of the Ports, and for giving of freedome of Trade again; he that may doe the more, may doe the lesse, Non debet ei cui id quod majus est, id quod minus est non licere, saith the Rule of the Law; hee that may prohibit Merchants not to Trade or passe, may dispence with that prohibition, and give them leave to go and Traffique sub modo.

Again, the King of England is Dominus Maris, which floweth about the Island, as divers ancient Books and Records do testifie, as Fitz Avowry 192. 6 Rich. 2. protection. 46. Rot. Scotiae. m. 16. in Arch. Turris. Fitz Avowry 192.6 Rich.2. protection 46 Rot. Scotiae. nu.16 in Arch Turris. And he is Lord of the Sea, not only quoad protectionem & jurisdictionem, sed quoad proprietatem, and this is our Neptunes trident, for God gave unto man as well the Dominion of the Sea as of the Earth, where it is said, Gen. 1.Gen.1. replete terram & subjicite eam, & dominamini piscibus maris, &c. and in Psal. 8. Omnia Subjecit pedibus ejus, Pisces maris &. quicquid perambulat Semitas maris.

And therefore Baldus Baldus. affirmeth, de jure Gentium distincta esse dominia in mare sicut in terra arida, and again, mare attribuitur terrae Circunstanti. Hence it is, though there be but one Ocean, in respect wherof the whole Earth is quasi insula, saith Strabo, Strabo. yet is there Mare Gallicum, Sardicum, Creticum, AEgypticum, & oceanus Britanicus, Germanicus, &c. which particular names do note a propriety in the Princes and States, who are Lords of the Land adjoyning. Hence it is that our Common Law doth give unto ourKing all the land which is gained from the Sea, which Stampford Stampford in the Book of the Kings Prerogative doth affirm to belong to the King, de jure Gentium, quia Mare seu particula Maris est de Territorio illius Civitatis vel Regni cui magis appropinquat, saith one learned Doctor, Mare se extendit cum aquae flnt mensurabiles, saith another; hence it is, that all navigable Rivers, as the River of Thames, and the River of Lee, and divers others, are called in our Books, the Kings Streams, 19. Ass.p.6.19. Ass.p.6. Dyer 117.a. because cause such Rivers are arms of the Sea, so far as the Sea doth flow in them, 22. Ass. p. 93.22.Ass.p:93. and lastly, hence it is, that by the Common Law, the King may prohibit all Subjects whatsoever to passe over the Seas without his licence; and to that end in 22 Edw. 4.22 Ed.4. the King commanded the Warden of the Cinque Ports, and the Bailifs of all other Ports of the Kingdom, that they should not suffer any Man, Ship, or Boat, to passe beyond the Seas, quousque Rex illud mandaverit, and the like Commandments were given, 4 Edw. 3.4 Edw.3. 21 Edw. 3.21 Ed.3 16 Rich. 2.16 Ri.2. 17 Hen. 6.17 H.6. If therefore the king hath such an absolute Interest in the Ports, and in the Sea, and in all Navigable Rivers wherein the Kings Ports are situated for the main part, why should he not have the like absolute power to limit and prescribe unto Merchants what duties they shall pay, and upon what terms and conditions they shall passe to and fro upon the Seas, and come in and out of his Streams and Ports with their Ships and Merchandizes? Podagium in Mari debet solvi sicut in terra si sit impositum per dominum Maris, saith Baldus, and the rights belonging to the Lord of the Sea, saith another Doctor, are Ius navigandi, jus piscandi, jus imponendi vectigalia pro utroque.

Again, the Kings of England have the like Prerogative in the government of Trade and Comerce belonging to this Kingdome, as other Princes and States have within their Dominions; he must of necessity have the like absolute power as they all have to lay Impositions upon Merchandizes imported and exported, otherwise he cannot possible hold the ballance of Trade upright, or perserve an equality of Traffique between his own Subjects and the Subjects of Forein Princes, and consequently it will lye in the power of our Neighbours to drain and draw away all our wealth in a short time, or else to overthrow all Trade and Comerce between us and them at their pleasure, and we shall have no means to encounter or avoid the mischief; for their Princes, having sole power to impose, will have the sole making and managing of the Market between their Subjects and us, and consequently may set what price they please upon all Merchandizes, enforcing us to sell our Commodities cheap, and buy their Commodities dear, onely by this advantage of laying Impositions.

And therefore the King of England must of necessity have the same absolute power to lay Impositions upon Merchā dizes, as other Princes have, as well, ut evitetur absurdum, as to prevent the ruin of the Common-wealth, by the equall ballancing of Trade & Comerce between his Subjects and the Subjects of Forein Princes. Upon this reason when the Duke of Venice, in the time of Q. Eliz. as is before expressed, had laid an Imposition of one Ducket upon a 100 li. weight of Currans carried out of his Dominions by any English Merchant, the Queen by speciall Patent in the twelfth year of the Reign, did enable the Merchants which did Trade into the Levant, to levie five shillings and six pence upon every 100 li. weight of Currans brought into England by any Merchant Stranger.Tempore. Upon the like reason, when in the time of King Hen. 8.Henry 8. the Emperor and the French King had raised the valuation of their monies both so high, as there grew not only an inequality of Trade between their Subjects, and the Subjects of England, but our monies standing at their former values, were carried out of the Realm in great quantities; The King in the 24 year of his Reign granted a Commission unto Cadinall Woolsey to enhance the values of English monies likewise, by that means to set ballance of trade even again, and to keep our monies within the Realm.

Upon the same reason of State, when the King of Spain The K. of Spain's Imposition in An. 1614. that now is, in the year 1614. had laid an Imposition of thirty upon the hundred on all Merchandizes imported and exported by Strangers; the French King Hen. 4. was quickly sensible of it, and did forthwith impose the like in his Kingdom; then it followed of necessity that other Nations should follow and imitate them, whereby it came to passe that Comerce of Merchants generally throughout Christendome, began to decay, which being perceived by these two great Princes, they agreed to take away those excessive Impositions, upon severall Treaties between them and the Italians, and after between them and the English, and the Dutch.

Briefly we find examples in all ages, that whensoever by reason of Warre, or for any other cause, any Forein Prince gave the least impediment to Merchants in their Trade, our Princes gave the like entertainment to their Merchants again; This is declared in Magna Charta, cap. 30.Magna Charta cap.30. where it is plainly expressed what entertainment the Merchants of all Nations should expect in England, Habeant Salvum & securum conductum (saith the Charter) Praeterquam in tempore guerrae & si fuerint de terra contra nos guerrina, then as our Merchants are used with them, so shall their Merchants be used with us, 46 Edw. 3.46 Ed.3. The Countesse of Flanders having arrested the goods of the English Merchants there, the King in recompence of their losses, granted unto them all the goods of the Flemings in England, whereof there is a notable Record mentioned before, 1 Edw. 3.I Edw.3. pat.m. 19. in Arch. Turris. There are many other examples of mutuall embarments of Trade between the Flemings & us, and also between us and the French men during our Wars with France, which I omit; I will recite onely one president in the 40 year of Queen Elizabeth, Anno 40. Elizabeth at which times the Merchants of the Haunce Towns having by sinister information procured the Emperour to banish our English Merchants out of the Empire; the Queen by her speciall Commission, did authorize the Mayor and Sheriffs of London to repair to the Still-yard, being the Hostell of the Haunces, to seize that House into her Majesties hands, and there to give warning to the Merchants of the Haunce Towns to forbear Traffique with any of her Subjects in England, and to depart the Realm upon that very day, which was assigned to our Merchants to depart out of the Empire.

Lastly, for the ordering and government of Trade among our own Merchants in Forein Countries and at home, our Kings by their Prerogatives have instituted divers Societies and Companies of Merchants, as the Company of Merchant. Adventures, the Muscovia Company the Turkie Company, the East India Company, &c. all which are created, upholden, and ruled, by the Kings Charter only; whereupon I may conclude, that the Kings of England having the same power in governing and ballancing Trade, as other Princes have, may justly execute the same power, as well by laying Impositions upon Merchandizes, as by the other means which are before expressed.

TO this ObjectionThe Answer to the 1. Object. we answer, That the King doth not take the Land or Goods of any without his consent; but here we must distinguish, there is a particular and expresse consent, and there is an implicit and general consent, when a man doth give his Goods, or surrender his Lands to the King by deed enrolled, or when in Parliament which representeth the body of the whole Realm, and wherein everyman doth give his consent, either by himself, or his Deputy. A subsidy is granted to the King, there is an expresse consent; but when subjects who live under a Royall Monarchy, do submit themselves to the obedience of that Law of that Monarchy, whatsoever the Law doth give to that Monarch, the subjects who take the benefit of the Law in other things, and doe live under the protection of the Law, doe agree to that which the Law gives by an implicit and general consent, and therefore there are many cases where the King doth lawfully take the goods of a Subject without his particular & expresse consent, though the same be not forfeited for any crime or contempt of the Owner.

If a Theef do steal my goods and waive them, the King may lawfully take those goods without my particular consent, and without any fault or forfeiture of mine; but in regard I live under the Law, which giveth such wayves unto the King, he taketh not the same without my implicit consent; so if my Horse kill a man, the King may lawfully take my Horse a Deodand without my fault or consent in particular; but in that I have consented to the obedience of the law which giveth all Deodands to the King, he taketh not my Horse without the implicit or generall consent of mine.

In the time of War the King doth take my House to build a Fort, or doth build a Bulwark upon my Land, he doth me no wrong, though he doth it without my consent, for my implicit consent doth concur with it, for that I being a member of the Common-weal, cannot but consent to all Acts of necessity tending to the preservation of the Commonwealth.

So if the King doth grant me a Fair or Market, with a power to take a reasonable Toll; If a man will buy any thing in my Fair or Market, I may take Toll of him, though I give no particular consent to the grant, because the Law whereunto every Subject doth give consent and obedience, doth warrant the taking of Toll in every Market and Fair granted by the King.

So it is in case of Impositions, the Law doth warrant the Kings Prerogative to impose upon Merchandizes, as is before declared, and therefore though the Merchants give not their particular consents to the laying of these Impositions, yet in regard they live under the protection and obedience of the Law, which submits it self to this Prerogative, and allow and approve the same; it cannot be said that the King doth take these Impositions of them without their implicit and generall consent.

THe second ObjectionObject.2. is against the uncertainty and unlimited largenesse of this Prerogative, for in other cases they say, where the King taketh the goods of a Subject by his Prerogative, there is a certainty what he may take, as in the case of way vs, he may take onely the goods wayved, and no more.

In case of Deodand, he may take only the thing that causeth the death of a man, and no more.

In case of wreck, he may take only the goods that are wreckt, and no more.

In case of Wardship of Land holden in Capite, the King may take the profits of the Land, till the Heir sues his Livery, and no longer.

In case where the King hath Annum Diem & vastum, hee may retain of the Lands of the Felon attainted, which are holden of other Lords for a year and a day, and no longer.

In all these cases there is a certainty what the King shall have, and how long he shall have it; but in case of Imposition, the quantity or rate thereof high or low, is left to the Kings own will or pleasure; so as if he should be mis-led, as many Princes have been, with evill Counsell, he might with his Prerogative doe hurt the Cōmon-wealth, by laying too heavy burthens upon his Subjects; for though hetherto his Majesty hath imposed upon Merchandizes only twelve pence on the pound over and above the ancient Custome and the Subsidies granted by Parliament, yet this Prerogative being unlimitted, he may hereafter (say they) set five shillings or ten shillings upon the pound, if it please him, and so undoe the Merchants, or discontinue and overthrow all Trade and Comerce.

TO this ObjectionThe Answer to the 2. Object. the fittest answer is, That it is an undutifull Objection, and withall too busie, too bold, and too presumptuous; for it is an Objection against the wisdome of the King in point of Government, and against the bounty and goodnesse of the King towards his people: the Text of the Civil Law cited before, doth call it a kind of Sacrilege to dispute of Princes Judgments or Actions; and for the Law of England, sure I am, that it trusteth the Wisdome and Judgement of the King alone in matter of greater importance than in laying of Impositions, or setting of rates upon Merchandizes.

Is not the Kings wisdome only trusted with the absolute power of making War and Peace with forein Nations, whereby hee may when hee pleaseth interrupt all Trade of Merchandizing? Is not the King alone trusted with the like power of making and decrying of monies which is the onely Medium of all Traffique and Comerce? Is not he solely and without limitation trusted with the nomination and creation of all Judges and Magistrates, who are to give Judgement in cases concerning the Liberties, Lands, and Lives of all his Subjects? hath not he a sole and unlimited power to pardon all Malefactors, to dispence with all penal Laws, to distribute all Honours, to grant to whom he pleaseth Protections, Denizations, Exemptions, not only from Juries, but from all other Services of the Common-wealth? and yet these Prerogatives if the same be not used with judgement and moderation, may prove prejudicial to the Common-wealth, as well as the laying of Impositions upon Merchandizes. Shall therefore any undutifull Subject make these conclusions? The King may have a continuall Warre with Forein States and Princes, and so continually corrupt all courses of Merchandizes; Ergo, he shall lose his Prerogative of making War or Peace, when himself in wisdom shall think fit so to do. The King may decry all monies of Gold and Silver in Bullion, and establish a Standard of Copper or Leather; therefore he shall coyn no monies without the consent of the people. The King may if he please, break up all the Prisons, pardon all Offenders, and so give impunity to all Offenders; Ergo, he shall pardon no Malefactors by Act of Parliament. These are found absurd, or rather wicked conclusions, à posse ad esse is an absurd Argument, but à posse & nolle nobile est. The Law presumes the King to be so noble and so wise, that all Acts done by him, or in his Name during his Infancy, are of as good force in Law, as if the Law had bin done in his ripest years. The Law presumes the King to be most just in all his actions, & therfore it hath these rules; the Prerogative of the King can do no wrong, the King can commit no diffeisin, the King can make no discontinuance, and the like, Cor Regis in manu Domini, saith Solomon, Solomon. and therefore the Law presumeth, that God will ever direct him to that which is just; is it not then too much curiosity to instruct where the Law trusteth, and too much presumption to presume against the presūption of the Law, especially in the time of such a King who is the wisest, and justest, the most religious, and most gracious King that ever reigned in Europe? Can any man imagine that so great a Master in the Art of Government, the most prudent King of great Britain & Ireland, the two greatest Islands in this Hemisphere, and seated most commodiously for Traffique, which all the World knowing that the duties paid unto him for Merchandizes, are the most certain, settled, and assured, and withall the best and richest part of his Revenues at this day, will lay heavier Impositions upon Merchandizes than they are able to bear, and so destroy all Trade and Comerce? When King Hen. 7.Henry 7. his most prudent Predecessor, did lend money to his Merchants to maintain Traffique, will he for a little extraordinary profit for the time present, pluck up at once the Root, and dry up the Fountain of this Revenue for the time to come? it is unprobable, it is uncredible, it is impossible; But suppose that this is credible, that the King should lay such heavy Impositions upon Merchandizes, as all Merchants should refuse to Traffique, who should lose most by that, the King or his people? assuredly hee should suffer an exceeding great losse in his Customes; but we that are of the Commons should save by it, having all things necessary for the Life of man within the Land, which is. Terra suis contenta bonis, non indiga mercis. Poeta.

We should spare these vain expences which we now make upon Forein Commodities, namely Cloath of Gold, Cloath of Silver, Silks, Spices, Wines, and many other superfluous & unnecessary things, which doe nourish Pride, and Luxury, Riot and Excesse amongst us, which corrupt our manners, and in the end will be the ruin of the Common-wealth; I may therefore conclude this point, That since the King hath power by his Prerogative to lay Impositions upon Merchandizes, he hath also a power coincident thereunto, to limit and rate the proportion and quantity thereof, according to his own wisdom & reasons of State, from time to time; for either the King must set down the rates, or the people, or the King and people both by Act of Parliament; but if the people will not assent or agree to a reasonable limitation thereof in Parliament, shall the King lose those Royal Duties which all other Kings do take by vertue of their Prerogative? it were most unreasonable, absurd, and unjust.

THirdly, it is objected,Object.3. that this Prerogative of laying Impositions upon Merchandizes, hath never at any time been set a foot and used by any of His Majesties Progenitors, but it hath been contradicted, and upon Petitions of the people, such Impositions have been suspended, remitted, and abolished; first, King Edw. 1. say they, in the 31 year of his Reign, did by his Charter called Mercatoria, spoken of before, lay the Imposition of three pence in the pound, now called the petty-Custome, with an increase of other duties upon Merchandizes imported by Strangers; howbeit, this Imposition stood not above seven years by vertue of that Charter, but it was discontinued and quite taken way; for in 3 Edw. 2. the Charter it self was suspended by the Kings Writ, 3 Edw. 2.3 Edw.2 Claus. m. 23. in Arch. Iurris, and 5 Edw. 2.5 Edw. 2. it was utterly repealed by a solemn Ordinance of State, Rot. Ordina. 3 Edw.2. in Arch. Turris.

Secondly, King Edw. 3. did at sundry times during his Reign, lay severall Impositions upon Woolls and other Staple commodities, sometimes fourty shillings, sometimes fifty shillings upon a Sack of Wooll, and other the like rates upon Merchandizes, yet could he never fix nor settle the same upon His Subjects; for upon sundry Petitions of the Commons in Parliament, who found themselves grieved therewith, these Impositions were from time to time remitted, 13 Edw. 3.13 Ed.3. Rot. Parliament. in Arch. Turris. 14 Edw. 3.14 Ed.3. cap. 21. 17 Ed 3. Rot. Parliament. numb. 12. 12 Ed. 3.12 Ed.3. Rot. Parliament. numb. 11.

Again, the same King many times did shut up all the Ports, and thereby restrained the exportation of Merchandizes; then would he take great sums of Money to grant licences to transport, which proved as great a charge as Impositions, and yet upon sundry complaints of the people in Parliament, the Sea was set open, and liberty of Trade permitted again, Stat. 18 Edw. 3.18 Ed.3. cap. 3. 22 Edw. 3.22 Ed.3. Rot. Parliament.numb. 8. in Arch. Turris: 13 Edw. 3. in Sccio Angliae. Rot. 12. 13 Edw. 3.13 Ed.3. Rot. Parliament. numb. 5. in Arch. Turris.

Lastly, in the last year of this Kings Reign, divers persons were accused and punished in Parliament, for procuring new Impositions to bee set upon Merchandizes, namely, the Lord Latimer, Lord Latimer who albeit he were a Noble man, and a Privy Counsellor to the King, yet was he fined, committed to the Mafhalsce, and put out of the Council, 50 Edw. 3. Rot. Parliament. nu. 34 in Arch. Turris. Richard Lions Richard Lions. likewise, a Citizen of London, and Farmer of the Customes, an Instrument of the L. Latimers in raising the new Impositions, was sined, ransomed, and imprisoned, and put from the Franchise of the Citie. 50 Edw. 3. Rot. Parliament. numb. 17. in Arch. Turris. And one Iohn Peachy, I. Peachy who had gotten a Monoply of Sweet Wines, by Letters Patents, and by colour thereof had extorted three shillings and four pence out of every Pipe or Vessell of Wine vented by others, was also fined and imprisoned, and made satisfaction to the parties grieved, 50 Edw. 3.50 Ed. 3. Rot. Parli. numb. 33. Rot. Parli. numb. 33. and more than this, a Bill was preferred by the Commons in this Parliament, that such as should set new Impositions, should have Judgement of life and member, 50 Edw.3. Rot. Parliament. num. 191. in Arch. Turris. 50 Ed.3.Rot.Parl.num.191. in Arch.Turris. These examples strook such a terrour at that time, as from the time of King Edw. 3. till the Reign of Queen Mary, being a hundred and fifty years and upwards, there was no man found that would advise the King of England to set or levie any Impositions upon Merchandizes by Prerogative, and therefore we find no Imposition laid upō Merchandizes all that space of time; Queen Mary indeed began to set on foot this Prerogative again, and laid an Imposition of three shillings and eight pence upon every Cloth transported out of the Kingdome; but what doth the Lord Dyer report, 1 Eliz.f.165? Dyer.1 Eliz.fol.165. the Merchants. of London (saith he) found themselves greatly grieved, and made exclamation and sute to Queen Elizabeth to be disburthened of that Imposition, because it was not granted by Parliament, but assessed by Queen Mary her absolute power; these frequent Petitions, complaints, and exclamations, these suspensions and remitalls of Impositions, are good arguments (say they) against the right of this Prerogative.

FOurthly, It is objected,Object.4. That though it were granted and admitted, that the King de jure communi, hath a rightful Prerogative to lay Impositions upon Merchandizes, yet that power say they, is restrained and taken away by sundry Acts of Parliament.

First, the Statute of Magna Charta, cap. 30. doth give safe conduct and free passage to all Merchants to buy and sell, absque aliquibus malis tolnetis per antiquas & rectas consuctudines. Secondly, by the Act or Charrer of confirmation in 25 Edw. 3. The King doth release a Mayltolt of fourty shillings upon a Sack of Wooll, and doth grant for him and His Heirs, unto the Commons, that he shall not take such things without the Commons consent or good will; and in the same Act or Charter reciting, that wheras divers people of the Realm were in fear, that the Aids and Taxes which they had 〈1 page duplicate〉 〈1 page duplicate〉 given to the King before that time, was towards his War, and other businesses of their own grant and good will, might turn to a bondage of them and their heirs, because in time to come they might be found in the Rolls, and were likewise grieved for Prizes taken throught the Realm, The King doth grant for him and his Heirs, That he will not draw such Ayds, Taxes, or Prizes, into a Custome, for any thing that had been done before that time, be it by Roll or any other president that may bee found. Thirdly, by the Statute 14 Edw. 3. cap. 12. the King doth grant that all Merchants Denizens, and Aliens, may freely come into the Realm with their goods and Merchandizes, and freely tary there, and safely return, paying their Customes, Subsidies, and profits thereof, reasonably due. Fourthly, by the Statute 11 Rich. 2. cap. 9. it is enacted, That no Imposition or Charge be put upō Wools, Wooll-fells, or Leather, other than the Custome or Subsidie granted to the King in that Parliament, if any be, the same to be adnulled and repealed, saving to the King his ancient right; there are other Acts of Parliament containing the same sence and substance, but these principally have been singled out, and cited as specially Statutes restraining and taking away the Kings Prerogative in laying Impositions upon Merchandizes.

FIftly, it is objected,Object.5. That the Subsidies of Tonnage and Poundage, were never taken by any King of England, but when the same were granted by Act of Parliament, which is an Argument, say they, that the King could never take those duties but by his absolute power, for if his Prerogative could have imposed those rates of it self, what need was there of an Act of Parliament? why should the King have expected the consent of the Commons? cum Dominus eis opus habet, and when the Exchequor were so empty, as the Jewells of the Crown were layd to pawn by some of those Kings who were glad to take these Subsidies by Acts of Parliament.

THe Answer to this ObjectionThe Answer to the 5. Object. is twofold; First, That which is objected is not true, for Tonnage and Poundage have been taken by the Kings Prerogative without Act of Parliament; Secondly, If it had been true, it is no Argument against the Kings Prerogative in this point, for what is Tonnage but a certain sum of money payable for every Tun of VVine imported? did not King Edw. 3 by force of his Charter Mercatoria, without Act of Parliament, take two shillings for every Tun of VVine imported by Strangers? did not the same King set a new Imposition of Gauge, viz. upon every Tun of VVine brought into London, as is before expressed? and are not the severall Impositions of VVines taken by His Majesty in England and Ireland, a kind of Tonnage? being nothing else but extraordinary rates imposed upon ever Tun of VVine, and levied and taken by the Kings Prerogative.

Again, was not the three pence upon the pound imposed by King Edw. 1. by his Charta Mercatoria, a kind of Poundage, and well nigh as great an Imposition as twelve of the pound granted at this day by Act of Parliament? if we consider the Standard of Monies in the time of King Edw. 1. when a peny sterling did contain as much or more pure Silver, as the three pence sterling doth contain at this day; but admit that no Tonnage or Poundage had ever been taken, but by grant in Parliament; yet it is no Argument, but that the King might impose the like or the same by his Prerogative, for three particular reasons: The first, because these Subsidies were granted for maintainance of the Navy Royall, the charges whereof were grown so great in the time of King Edw. 4.K. Ed.4. as appeareth by the Act of Tonnage and Poundage granted in the 12 year of that Kings Reign, that it sufficed not, nor in time to come was like to suffice or defray the charge of the Crown in keeping the Sea: these are the words of that Act, if then in the time of King Edw. 4. the Subsidy of Tonnage being three shillings upon a Tun of VVine brought in by Denizens, and six shillings upon a tun brought in by Strangers; and the Subsidy of Poundage or of twelve pence of the pound upon other Cōmodities was not then sufficient to bear the charge of the Royall Navy, which was not comparable by many degrees in strength, and beauty, and multitude of Ships to the Kings Navie at this day; Doth it stand with reason, that the Crown should be stinted or limited ever after to take no more than those poor Subsidies granted at that time? that the King should wait for a Parliament, and pray an ayde of the Commons for a competent means to maintain the Walls of the Kingdom, when by the Common Law of the Realm he may grant Letters Patents for Murage, to maintain the Walls of a Corporate Town. If any unexpected necessity should arise for repairing of the Navy Royall, and making a Navall War, should the King expect a Parliament for a greater Subsidy to bee granted by the Commons before he should rigge and make ready his Ships, perhaps a Kingdom might be lost in the mean time; as if a Pilot sitting at the Helm, and seeing a sudden gust of wind, would over-set the Ship, or perceiving her to be running on a Rock, should forbear to turn the Helm, or cause the Sail to be stricken, untill he had consulted with the Mariners or Passengers, and demanded their consent or counsell in the businesse; the Pilot himself with his Mariners and Passengers might be cast away, before they were agreed what course to take.

Secondly, these Subsidies of Tonnage and Poundage were first granted by Act of Parliament, in the time of the Civill VVars between the two great Houses of Lancaster and York, when the severall Kings were loath to make use of their Prerogatives, but were glad to please their people, and loath to impose any charge upon them, but by common consent in those troublesome times.

Thirdly, Kings and Princes oftentimes of their own noble nature, and sometimes in policy, do accept that of their Subjects as a gift, which they might exact & take as a duty, and therefore our most potent and politique Kings have ordained and accepted many things in Parliament, which they might have done in their private Chambers by their own prerogative, without any other Ceremony; who ever made doubt of the Kings Prerogative in establishing the Standard of monies, and yet how many Acts of Parliament do we find touching Monies, in the times of King E. 1. and King Edw. 2? the Kings Prerotative in making & establishing Marshall Law, was never yet in question, yet are there Acts of Parliament touching Musters, departures of Souldiers without their Captains Licences, or the like.

The King only doth give Honours, and places of precedency, yet King Hen. 8. made an Act of Parliament, whereby he rancked the great Offices of the Crown in their severall places, as well in Council as in Parliament.

No man ever doubted but the King being the Fountain of Justice, may erect Courts of Justice by his Prerogative, yet we find the Court of Augmentations, and the Court of VVards, erected by Act of Parliament.

Lastly, in the time of Edw. 2. we find an Act of Declaration of the principall Prerogatives of the Crown of England, were most undoubted and clear, yet His Majesty was pleased in his first Parliament to accept of an Act of Recognition.