THe Exciſe of all Imported commodities by the ſeveral pretended Acts and Ordinances of Exciſe, made in the times of the late Uſurping Powers, was alwayes charged upon the firſt Buyer of the Commodity, and not upon the Merchant Importer. It being contrary both to the Nature of this Duty, and to the Intention of the Impoſers themſelves, that the Merchant ſhould be any wiſe charged therewith. Foraſmuch as an Exciſe in its proper definition is a Tax intended to be impoſed upon ſo much only of the Commodities and Merchandizes of any Nation, as comes to Actual conſumption within it ſelf, which in the hand of the Merchant is not diſcernable: But when it is bought from the Merchant by the Shop-keeper, or Retailer, it is alwayes to be ſuppoſed to be for Domeſtick conſumption and uſe.

And for this Special reaſon as well as for that it would have been a burthen both too heavy for the Merchant to undergo to pay both Cuſtom and Exciſe, before he can fell his Commodity, and ſubject to great trouble and confuſion, by reaſon of his exportation of much of the ſame Commodity again. The Powers that firſt Impoſed this Tax, did lay the ſame upon the firſt Buyer, and not upon the Merchant, as by the ſeveral Schedules of thoſe Goods, which by the ſaid Acts and Ordinances, were made Exciſeable, may fully appear. But for that by complyance between the Merchant and the firſt Buyer, the State (as they then called it) was ſubject to be much Defrauded of the ſaid Duties, by the clandeſtine ſale and delivery of Goods without the knowledge or cognizance of the Officers appointed to receive the ſame; Thereupon beſides the penalties in ſuch caſe enacted to be inflicted both upon the Buyer and Seller in caſe of ſuch clandeſtine ſale and delivery of Goods, it was thought fit for the better prevention of ſuch fraudes to hold the Merchant-Importer to an annual Accompt for the quantity only of his Goods Imported, whereby to diſcover how, and to whom he had diſpoſed them.

And therefore by an Article in that pretended Act made in the year, 1649. for the ſettlement of the Exciſe, it was enacted among other things, viz. Article 17. That no Merchant or Importer of Goods or Merchandize from beyond the Seas, ſhould Land or cauſe the ſame, or any part thereof, to be Landed or put on ſhore, before due entry were made thereof under his hand with the Officer of Exciſe (in that behalf appointed) at the Cuſtom-houſe of the ſame Port where the Goods were firſt Imported; and that under a ſevere penalty.

And it was the duty of this Officer dayly to deliver into the Exciſe Office, all ſuch Entries as he received; which were there fairly regiſtred by way of Accompt, under every Merchants particular head, and the Accompt again diſcharged ſtill as the Goods came to be ſold. And it was penal for any Merchant to ſell or deliver any Goods without a ticket from the Exciſe office. And likewiſe to the end that ſuch diſcovery as aforeſaid, might be the better made, and the Merchants Import Accompt examined for that purpoſe, by another Article of the ſame Act, viz. Article 25. The Commiſsioners and Sub-Commiſsioners of Exciſe in their reſpective Diviſions, had power, once in twelve Moneths, or oftner, if they ſaw cauſe, to ſummon every Merchant in their reſpective Diviſions to give an Accompt, under his hand, of what Foraign Goods Exciſeable, he had then in his hands: which Accompt, if he refuſed or neglected to give in, by the ſpace of 28 dayes, it was Enacted (by way of puniſhment, for ſuch his Neglect) That he ſhould be lyable to pay the full Exciſe for all ſuch Goods as he then ſtood charged with by his Entries in the Books of the Exciſe Office, which were not before diſcharged by Sales and Deliveries, for which Tickets had been given out of the Office, and accordingly ſhould be adjudged to pay the ſame.

Which Judgement had two apparent operations (though never rightly underſtood by moſt of thoſe that were to put the ſame in execution) that is to ſay:

Firſt, that it made him lyable to pay the Exciſe himſelf for all ſuch Goods as then ſtood undiſcharged in his Accompt, as aforeſaid, which otherwayes for the reaſons above-mentioned he had not been lyable to.

And ſecondly, That it excluded him from all allowances for Goods exported again, or remaining in his hands, or for Leakage, Waſte, Tret and Tare, and the like, which otherwiſe were to be allowed.

And in execution of this Judgment, the Commiſſioners had a ſpecial power given them by the ſame Article to warn him to pay in ſuch Sum, as the Exciſe amounted unto by the ſaid Judgment; which if he did not do within 14. dayes after ſuch warning, they were further impowred to levy double the value upon his Goods and Chattels by way of Diſtreſs, and for want of ſufficient Diſtreſs to Impriſon his perſon.

But if within 28. dayes after ſummons, the Merchant gave in ſuch Accompt of his Reſt, then the Commiſſioners being firſt ſatisfied of the truth of ſuch Reſt, had power to adjuſt his Accompts without demanding any Exciſe of him for any of the ſaid Goods, other then for ſuch as by the ſaid Accompt ſhould be diſcovered to have been ſold and delivered by him to the firſt Buyer without notice given to the Office. In the caſting up of which, the Merchant was likewiſe to have allowance for the waſte and leakage of Wines, Oyls, and the like, as by the very next Article of the ſame Act appears.

And this was all that the Merchant-Importer was concerned in as to point of payment; but it was no where ſaid, either in that, or any other of thoſe pretended Acts, or Ordinances, for the Exciſe, that the Duty ſhould Originally lie upon the Merchant. So then, it is clear, That even in the time of thoſe uſurping Powers, when thoſe pretended Acts and Ordinances were ſuppoſed to be in full force, the Merchant-Importer could no way come to be charged with the payment of any Exciſe, but either by Judgment upon his Default, which was in the nature of a Penalty, or by an Accompt actually agreed upon, adjuſted and ſtated on both ſides.

But upon his Majeſties moſt happy reſtauration and return to the poſſeſſion and exerciſe of his Royal Power and Dignity, all thoſe pretended Acts and Ordinances, and all proceedings thereupon fell to the ground, and became utterly void of themſelves, as not being made by any legal Authority whatſoever.

Nevertheleſs, in the Parliament begun at Weſt-minſter, the 25th day of April, in the 12th year of his Majeſties reign, two Acts were made for continuing the Impoſition of Exciſe: the one from the 24th of June, 1660. to the 20th day of Auguſt in the ſame year; and the other from the ſaid 20th day of Auguſt to the 25th of December following. By both which Acts it was enacted among other things, that the ſaid Impoſition, together with all Arrears thereof, ſhould be continued to be collected, levyed and paid during thoſe reſpective Periods according unto, and after, the ſame Rates, Rules, and Proportions, and upon the ſame Goods and Commodities, as the ſame was payable and collected the ſaid 25th day of April, 1660. With a Proviſo nevertheleſs, That all ſorts of Oyls, Wines, Tobacco's of the Engliſh Plantations, Silks, Linnens, and divers other Commodities therein particularly named, ſhould after, the 24th July, 1660. be wholly diſcharged of the duty of Exciſe.

By vertue of theſe two Acts, and during the time of their being in force, the Commiſſioners of Exciſe for the time then being, ſuppoſing that the Powers given them by the ſaid pretended Act of the year 1649. were thereby continued; did ſummon in divers Merchants of the City of London, to give in an Accompt of their reſpective Reſts, according to the Article above mentioned, ſome of whom did accordingly appear, and gave in ſuch Accompts; but the ſaid Commiſſioners never proceeded to any adjuſtment with any of thoſe, but left their Accompts depending, when the Exciſe upon forreign Goods fell. But divers other of the ſaid Merchants committed default, and never gave in any Reſt at all; and againſt theſe it is ſaid, the Commiſſioners of Exciſe proceeded according to the ſaid 25th Article, and made up their Accompts, as they ſtood charged in the Books of Exciſe by their Entries, and againſt every default, or moſt of them entered Judgement for the Sum, and made Demand thereof, but proceeded no further, as to the levying either the ſingle or the double value of the ſaid ſums, or any of them, upon the refuſers or neglecters of payment.

But there were many other Merchants, that were never ſummon'd at all to give in any Accompt of their Reſt, and ſo fell not either within the one, or the other of the two former capacities; that is to ſay, had neither Judgements paſſed againſt them by the Commiſſioners of Exciſe, nor Accompts depending, when the Exciſe of Forreign Goods ceaſed.

So then the Merchants of London, as to this caſe of pretended Arrears of Exciſe, are to be conſidered in theſe three capacities, viz.

Thoſe againſt whom Judgement was entered, upon default of giving in their Reſts.

Thoſe who gave in their Reſts, and had their Accompts depending unadjuſted.

And thoſe that were never ſummoned at all, before the ceaſing of the Forreign Exciſe.

Since which time, viz. in this preſent Parliament an Act is made for veſting the Arrears of the Exciſe and New-Impoſt in general in his Majeſtie. Whereby among other things, his Majeſty is enabled to ſue for, and recover the ſame of every perſon and perſons, their Heirs, Executors, and Adminiſtrators, having Aſſets, who are any way accomptable for the ſame, as if the ſame Duties of Exciſe had been lawfully Impoſed, and as if the ſeveral pretended Acts and Ordinances impoſing the ſame had been good and legal Acts of Parliament, and had in expreſs words granted the ſame to the King.

And it having been ſuggeſted, that there are vaſt Arrears of Exciſe ſtanding out in the hands of the Merchants of London, which by vertue of this Act are now recoverable to his Majeſty, and thereupon ſeveral Informations being exhibited againſt ſeveral of the ſaid Merchants within every of the ſaid three capacities; Leſt the apprehenſion of ſo great a ſum to be raiſed by this means ſhould divert or delay the Parliaments intentions in providing for his Majeſties ſupply otherwiſe. It will not be amiſs to examine firſt, whether all, or any of the ſaid Merchants can be chargeable with any ſuch Arrears at all.

And ſecondly, admitting them not only chargeable, but that the Arrears were actually recovered, of what value they will be like to be in his Majeſties purſe.

As to the Merchants of the two laſt capacities, viz. thoſe whoſe Accompt were depending, and thoſe who never were ſummoned; I ſuppoſe, it will be eaſily granted from what hath been before truly ſtated, that neither originally as Importers, nor by any Act, ordefault of their own, nor by any Accompt ſtated before the ceaſing of the Forreign Duty, they were anſwerable for any Exciſe at all. And then the queſtion concerning thoſe two ſorts will only be, Whether the Act by which his Majeſty is inveſted as aforeſaid, hath ſince made them accomptable for the ſame, or not.

And it is humbly conceived, it hath not: For although his Majeſty be thereby inveſted, with all Arrears of Exciſe in general words, yet it is ſo far from making any perſon accomptable for the ſame, that was not accomptable before; that it rather reſtrains the power it gives his Majeſty, to recover ſuch Arrears to ſuch perſon or perſons only, who at the time of the paſſing of the ſaid Act were accomptable for the ſame. Neither doth it make or declare any thing an Arrear of Exciſe, that was not then an Arrear by ſome of the former pretended Laws of Exciſe. And although Informations may poſſibly be exhibited againſt ſome of both theſe two ſorts, as well as againſt the other; yet it is to be ſuppoſed, that this hath proceeded either of the miſtake of thoſe who certified them Debtors, or elſe perhaps of deſign to endure them for fear of trouble, to come in and ſubmit to an Accompt, which by the Law they are not now lyable unto.

The only remaining queſtion therefore, in which there is any ſeeming doubt, or difficulty, will be concerning thoſe againſt whom for default of giving in an Accompt of their reſpective Reſts, Judgements have been actually paſſed and enregiſtred in the Office of Exciſe before the Exciſe of Forreign Goods fell to the ground, viz. Whether the reſpective ſums of Mony thereby adjudged againſt them, ſhall be accompted ſuch Sums or Debts of Exciſe as are intended in the ſaid Act of Inveſture. And if they ſhall, and that nothing be to be pleaded in barr of his Majeſties demand thereof, upon what evidence they ſhall be recoverable.

That no Exciſe was originally chargeable upon the Merchant by vertue of his Entries at the Cuſtom-houſe, hath been already ſhewn, and I ſuppoſe, will not be denyed; it being always payable by the firſt Buyer, and not by the Importer. It will follow then, that if any of thoſe ſums, ſo adjudged, be due, they muſt be due by vertue of the Judgments themſelves, or not at all. And then the validity of thoſe Judgments will be to be examined. Now to make a Judgment good and valid in Law;

Firſt, there muſt be ſome Law, Cuſtom, or Statute in force at the time of the paſſing thereof, upon which it muſt be grounded. Secondly, The Judges muſt be rightly and duly conſtituted, and muſt have ſufficient Authority and Juriſdiction of the thing upon which the Judgment is made. And thirdly, the Judgment it ſelf muſt be matter of Record, againſt which, no Averrment can be, and if it be defective in any of theſe, the Judgment is utterly void and null.