Jus imponendi vectigana, or, The learning touching customs, tonnage, poundage, and impositions on merchandizes, asserted as well from the rules of the common and civil law, as of generall reason and policy of state / by Sir John Davis ...

CHAP. XXI.

The Answer to the third Objection.

THis Objection consisteth of several parts, and shall recieve an Answer consisting of divers parts; the first part of this answer, King Edw. 1. being a pru∣dent and resolute Prince, did not onely impose the three pence upon the pound upon Merchant Strangers, by his Charta Mercatoria, but justified and maintained that Imposition during his life. True it is, that after his death, King Edw. 2. it was repealed, as is before objected; but whose Act was this? by whom was this Ordi∣nance made, which did repeal this Char∣ter? not by the King and his Parliament, but by certain rebellious Barons, who took upon them the Government of the

Realm, and called themselves Ordainers; Wherefore King Edw. 3. in the first year of his Reign, did revive that Charter, and commanded by his Writ that the Cu∣stomes and Duties therein contained should be collected and levied to his use; He maketh mention of these Ordinances of 5 Edw. 2. and saith the same were made per quosdā Magnates, and not by the King, as appeareth by the Record, 1 Edw. 3. Rot. fin. memb. 30. in Arch. Turris, which in an∣other place before I have recited, by which Record it likewise appeareth, that those Ordinances 5 Edw. 2. were before that time repealed and made void, and therefore that which was done in that time of that unfortunate Prince, over∣ruled by his unruly Barons, is not to be urged and used as an example, especially since they that urge this repeal of Charta Mercatoria, might, if they would find any thing which makes against their contra∣dicting humour, find in the said Roll of Ordinance, made in 5 Edw. 2. divers Ar∣cles wherein those Ordainers did wrong and wound the Prerogative in matter of greater importance than in the repeal of that Charter, for they might have found among the same Ordinances these things ordained.

First, that the King should not make gifts of Lands, Rents, Franhises, Wards, or Escheats, without the consent of the Ordainers.

Secondly, that all gifts and grants formerly made by the King, not only of Land and other things in England, but in Gasconie, Ireland, and Scotland, should be resumed and made void.

Thirdly, that the King should not de∣part out of the Realm, nor make Warre, without the assent of his Barons, and of his Parliament.

That because the King was misguided and counselled by evill Counsellers, it was ordained, that all his Counsel should be renewed, and new Officers and Ser∣vants appointed for him.

These traiterous Ordinances were made against the King at that time, and therefore it is a shame that any part of these Ordinances should be made an argument against the right of the Crown in laying Impositions upon Merchandi∣zes; for with the same reasons they might argue the King had no right to grant his Lands, Rents, Wards, or Es∣cheats, that he might not go out of the Realm, nor make Warre, nor choose his

own Counsellers or Servants without an Act of Parliament; and it is manifest, that those factious Barons did cause the King to forego the said Impositions, rather ad faciendum populum, and to gratifie the Cō∣mons, and to draw them to their party, than for the good of the Cōmon-wealth; for if they had been good Counsellers they would have done as the Senate of Rome did, when Nero in a glorious humor to please the people, would needs have discharged at once all Customes and Im∣positions; the Senate gave him thanks for his favour towards the people, but utterly diswaded him so to doe; telling him, that in so doing, he would ruine the state of the Common-wealth; for indeed no Common-wealth can stand without these duties, they are Nervi, they are suc∣cus & sanguis Reipublicae, and therefore no Cōmon-wealth was ever without them, but the imaginary Common-wealths of Plato and Sir Thomas More, for they doe both agree; for in the Common-wealths of which they dream, there was nothing to be paid for Merchandizes export∣ed and imported. But to return to King Edw. 2. what followed upon the Repeal of Charta Mercatoria, and the discharge of

Impositions which King Edw. 1. establi∣shed? was not that poor Prince King Edw. 2. enforced to take up great sums of money of his Merchants, by way of loan, which he never repaid again? 11 Edw. 2. Rot.fin. m. 12. whereby the Mer∣chants received a greater detriment than if they had made a double payment of Customes and Impositions which the King had discharged, and therefore the example of this weak Prince doth make but a weak argument against the right of the Crown, in laying Impositions upon Merchandizes; and here I think it fit to observe that they were all wise and wor∣thy Princes which are spoken of in for∣mer ages, to have laid Impositions upon Merchandizes, namely Solomon in the Ho∣ly Land, Iulius Caesar and Augustus Caesar in the Empire, King Ed. 1. and King Ed. 3. in England; but on the other part, they which released all Customes and Impo∣sitions, were but weak Princes, and de∣stroyed themselves and the Common∣wealth wherein they lived; namely Nero in the Empire of Rome, King Edw.2. and King Rich. 2. with us; and truly by the rule of our Common Law, the King can∣not, if he would, release all Subsides and

Aids of his Subjects, that they should be for ever discharged of all Subsidies to be given to the Crown, such a grant were made void, and against the Law.

Secondly, touching the Petitions ex∣hibited to the King in sundry Parlia∣ments, against Impositions laid by that King upon Merchandizes, upon view of the Record wherein these Petitions are contained, with their answers made by the King thereunto, it is evident, that neither the Petitions of the people, nor the Kings answers thereunto, do disprove this right of the Crown to lay Impositi∣ons upon Merchandizes; for Petitions do not of necessity prove or suppose the Petitioners have received wrong; Petiti∣ons are of divers kinds. 1. There are Petitions of Grace, which do not insist upon any right, but upon meer Grace and Favour. 2. There are Petitions of Right, wherein the Petitioner doth set forth a pretended right, and yet perhaps upon examination it is found that they have no right at all, and commonly they ask more than their right is, Iniquum petas ut aequum feras. 3. There are Petitions Armatae, when a company of Rebels arm∣ed against the Crown, do yet preferre

their Petitions, but with an intent to ef∣fect their desire, whether it be right or wrong, if their Petitions be not granted, Et stricto supplicat ense petens, many of their armed Petitions were exhibited during the Barons Wars, during the Wars of Lan∣caster and York, and in sundry popular co∣motions since the Conquest; but these Petitions which we speak of were made by the Commons, or by some factious Spirits, in the name of the Commons, in sundry Parliaments holden during the Reign of King Edw. 3. howbeit, if wee look upon the form of these Petitions, we shall find there is nothing sought but Grace and Favour; and if we consider the Kings answers, though many of them be very gracious, we shall find him there∣in much reserved, and withall circum∣spect not to prejudice or conclude his Prerogative in point of right; the form of these Petitions was for most part but thus, The Commons pray, that the Im∣sitions or Maletolt of fourty shillings upon every Sack of Wooll may cease or be taken away, and that the Custome of the demi mark may onely be taken: Or thus, The Cōmons pray, that the passage of the Sea may be open to all manner of

Merchants and Merchandizes, as it had been in former times; herein we find no claim or challenge of right, but a modest prayer of Grace and Favour, unlesse the word Mayletolt may seem to imply a wrong, because some do conceive that the word doth signifie an evil Toll, wher∣as indeed the word doth signifie Toll∣money, for Mayle in old French is a small peece of money, and therefore the rents taken by force in the Borders of Scotland, was called Blackmayle, and the word Mayletolt, in some of our old Statutes is taken in bonam partem, which speaks of Droiturell Mayletolts. But in what form doth Edw. 3. make his Answers to those Petitions? in divers formes, according to the diversity of the occasions & reasons of State, but alwayes in a gentle and graci∣ous manner, sometime he granteth the Petition in part onely, for a certain time, or after a certain time expired, that his people may know, that as he receiveth part of the Petition, so he might have rejected the whole if he might have been so pleased; sometimes he granted the whole Petition, yet not absolutely but conditionally, that hee may receive a greater recompence; but wheresoever

he doth franckly yeeld to remit any Im∣position, we find in the same Record a Subsidy granted unto him of far greater value and profit than the Imposition by him remitted, wherein we perceive that he followed the wise counsell of Roabo∣hams old Counsellers, given in the like case of Impositions, 3 Kings cap. 12. Se hodie obedieris populo huic & petitioni eorum cesseris locutusque, diebus, &c. Sometimes he gives a generall or doubtfull answer, and sometimes hee is silent and gives no an¦swer at all; so as he doth never bind nor conclude himself by any of those an∣swers to those Petitions, but with such reservation as he might still make use of his Prerogative in laying Impositions upon Merchandizes; to demonstrate this point more plainly, it were not amiss out of many Records which I have seen, and whereof I have the Copies tran∣scribed out of the Records themselves, with mine own hands, to select and set down some of those Answers in any of the kinds aforesaid. In 14 Edw. 3. cap. 21. the Cōmons pray the King that he would grant an Act of Parliament that no more Custome should bee taken for a Sack of Wool but a demi mark, nor for Lead, nor

Tin, nor Leather, nor Wooll-fells, but the old Customes. This Petition is general and extending to all Staple Comodities without exceptions of persons, or limita∣tion of times; but what is the Kings an∣swer? That from the Feast of Pentecost, which commeth, unto a year, neither he nor his Heirs shall take of any Englishman for a Sack of Wooll, more Custome than the half Mark, upon Wooll-fells, and Leather, no more than the old Custome.

Here this Petition is granted but in part; First, in respect of the persons, for Englishmen only are favoured, and Stran∣gers are omitted; Secondly, onely in respect of the Commodities, for Wooll∣fells and Leather onely are exempted, and Tin and Lead remain to be charged as before; Thirdly, in respect of the time, for the King continueth his Impositions formerly laid for a year and more, not∣withstanding that Petition.

But let us see withall what the King did gain in Parliament, upon yeelding to the peoples Petition but in part; in the first Sessions of this Parliament, it was granted that every man who should ship Woolls over the Seas, should find Sure∣ties to bring in upon his first return, for

every Sack of Wooll, two Marks of Sil∣ver, Plate or Bullion, and to deliver it to the Kings Executors; and in the next Sessions there was granted unto him the nineth Fleece, the nineth Lamb, and the nineth Sheaf of Corn throughout the Realm, which the people did often times redeem with a gift of twenty thousand Sacks of Wool.

Here we see the fruit that the King made by following of Rehoboams old Counsellers, & yet out of this grant and remission made by the King, who can draw an Argument against the Kings right in laying Impositions upon Mer∣chandizes?

Again, 29 Edw. 3. when there lay an Imposition of fourty shillings upon a Sack of Wooll above the old Customes, A Conferrence was had between the Lords and Commons in the White Chamber at Westmin. where after a short Parliament, saith the Record, 29 Edw. 3. Rol. Parliament.numb. 11. in Arch. Turris. It was concluded, that the King should have a greater Subsidie out of Wooll, Wooll-fells, and Leather, for six years; so as during that time, the King did lay no other Impositions or Charge upon the

Commons. Here is a conditionall agree∣ment between the King and the poople, and here the King doth remit his power of Imposition, for a recompence of great∣er value.

And this is a strong Argument, That the King had right to impose, otherwise the people would never have bought their freedom from Impositions at so high a rate or price.

The like conditionall agreement be∣tween the King and the people, we find in 6 Edw.3.Rot.Parliament. numb. 4. 13 Ed. 3. Rot. Parliament. numb. 5. 18 Edw. 3.Rot. Parliament.numb.10.26.in Arch. Turris.

In 28 Edw. 3. Rot. Parliament. numb. 26. The Commons complain of an excessive Imposition upon Wooll-fells, and desire that the old Custome might he paid. The Kings Answer is, the old Custome ought not to be withdrawn.

In 38 Edw. 3. Rot. Parliament. numb. 26. The Commons desire that an Imposition of three shillings and four pence upon every Sack of Wooll at Callis, and all unreasonable Impositions, bee repeal∣ed.

The Kings answer unto this is, It plea∣seth the King that all unreasonable Im∣positions

be repealed; like unto this is that answer which is contained in the Parliament Rolls of 6 Edw. 3. numb. 4. in Arch. Turris. When Petition was made for remittall of Impositions, I shall saith the King, assesse no such Tallages in time to come, but in manner as it hath been in time of mine Ancestors, and ought to be by reason.

Can any wit of man pick any Argu∣ments out of these Answers against the right of the Crown, in setting Impositi∣out upon Merchandizes?

Lastly, in 13 Edw. 3. Rot. Parliament. numb. 13. the Commons pray, that the Maletolts of Wooll may be taken as it was used in former times, being then enhaunsed without the Assent of the Commons.

To this Petition there is no answer found of Record, the King is silent, and gives no answer at all; which doubtless the King had not refused to do, if the Petition had been exhibited in point of right, and not in point of favour.

Thirdly, touching the punishing of the persons before mentioned, for pro∣curing of new Impositions to be set up∣on Merchandizes, we are to consider two

circumstances; first, the time when, and next the causes wherefore these persons were called in question.

The time when these persons were called to account, was a Parliament hol∣den in 50 Edw. 3. the last year of that Kings Reign, at which time that great and renowned Prince, who had been formerly assisted by a most wise and po∣litique Councell, was become weak and stupid, and almost in despair, through sicknesse, age, melancholy, conceipted upon the death of his eldest Son the Black Prince, and suffered himself to be ••ll-governed by a Woman called Alice Perrey, and her Favourite the Lord Lati∣mer; upon which occasion and advan∣tage, the Commons grew more bold than they were wont to be in former Parlia∣ments, and therefore if ought had been done in that Parliament, which might prejudice the Kings Prerogative, it is ••ot to be urged as an example or presi••ent in these times; but in truth, the ••auses for which these persons were cen∣••ured, do rather approve the right of the Crown in laying Impositions, than any way disaffirm the same. First, Richard ••ions, a Farmer of the Customes, was ac∣cused

in this Parliament by the Com∣mons, that he had set and procured to be set upon Wooll, and other Merchandi∣zes, certain new Impositions without assent of Parliament, converting the same to his own use without controule, the High Treasurer not being acquaint∣ed therewith, the said Richard assuming to himself in divers things as a King, 50 Edw. 3. Rot. Parliament. numb. 17, 18, 19, 20. This was his Accusation, and though his answer were, that he set those Impo∣sitions by the Kings Commandment, yet did he shew no Warrant for it, and there∣fore was justly punished with fine, ran∣some, disfranchisment, and imprison∣ment.

But how may this insolency and mis∣demeanour of a Subject, be an argument against the right or Prerogative of the King? Lions a Merchant of his own head cannot set Impositions upon Merchan∣dizes; Ergo, King Edw. 3. a Monarch, of his royall Authority cannot do it; what an absurd argument were this? as if a man should say, it were High Treason in a Subject to Coyn money; Ergo, the King himself cannot do it, or cause it to bee done; besides, the accusation it self doth

imply, that the King hath power to im∣pose upon Merchandizes, because Lions is charged, being a Subject, to take upon him as a King in divers things, & namely, in setting of Impositiōs; as if they should have said a King may do it, but not a Sub∣ject, according to the rules of the Imperi∣al Law, Solus Princeps instituit vectigalia Regni tantum juris & muneris est indicere vectialia, imponere vectigalia maximi Im∣perii est, inferior a Principe non potest impone∣re, and the like.

And the Bill exhibited by the Com∣mons in this Parliament, 50 Edw. 3. Rot. Parliament. 191. praying that those that should set new Impositions by their own Authority, encroaching unto themselves Royal Power, might have Judgement of life and member, seemeth to be ground∣ed upon good reason, and doth prove it is a Mark of Soveraignty and Royall Power to set Impositions; and therefore if a Subject of his own head, of his own authority wil presume to do it, he is wor∣thy to dye for it; and yet this Bill did receive but a general answer, viz. Let the Common Law run as it hath been used heretofore.

Touching the Lord Latimers censure,

he had not only upon his own head and authority set sundry Impositions upon Merchandizes at Callis, where the Staple there was much decayed; but he was charged with sundry other misdemean∣ors mentioned in the said Roll, namely, that he brought in divers Tallies and Ti∣ckets, whereby the King was indebted unto his Souldiers and Pensioners, for which he gave little or nothing to the parties, and yet had an entire allowance in the Exchequer, to the great damage of the King, and scandall of the Court; that he had also deceived the King of the pay and wages which he had sent unto his Souldiers in Britain; that he had sold a great quantity of the Kings pro∣visions for his Army there, and converted the same to his own use; and that he had delivered up the Town of Saint Saviours in Normandy, and the Town and Fort of Betherell in Britainy, not without suspiti∣on of Corruption and Treason.

How can the Lord Latimers censure for these deceits and misdemeanors make an argument against the right of the Crown in laying Impositions upon Merchandizes?

And the like may be said of the punish∣ment

of Iohn Peachy, who having got a Patent that none should sell sweet Wines within the City of London but himself, his Deputies, and Assignes, by colour thereof did extort three shillings and four pence, out of every Pipe or Vessell of sweet Wine sold by others within the City. Shall this extortion committed by a Subject, by colour of a Patent, where perhaps the Patent doth not warrant it, be objected as an argument, that the King himself might not lay the like Im∣sition upon every Pipe or Vessel by ver∣tue of his Prerogative? therefore the punishment of these presons was not the cause, that for an 150. yeares after that, no Impositions were layd upon Merchandizes by Prerogative; but the Princes who succeeded Edw. 3. untill Queen Mary, did forbear to use their Prerogative in that kind, for those other notable and true causes which are before at large expressed in the seven∣teenth Chapter.

Lastly, touching the Imposition of six shillings and eight pence upon every Cloth, laid by Queen Mary, after the losse of Callis; she held the same with a new Imposition upon French Wines, without any question during her life; and albeit

complaint were made against the Impo∣sition set upon Cloaths unto Queen Eli∣zabeth, upon her first entry (as it is usuall for the people to complain of burthens and charges upon every change of Go∣vernment.) Yet we find that after the Conference of the Judges spoken of by my Lord Dyer, 1 Eliz. f. 165. Dyer. (though their resolution be not their reported) Queen Elizabeth did continue that Im∣position, and also the Impost upon French Wines, as being lawfull set for the space of fourty four years without any further contradiction; besides, Queen Elizabeth did raise divers other new Impositions, as is before declared, whereunto there was never made any opposition during her Reign, and which His Majesty that now is, hath received without any que∣stion for the fpace of fifteen years; and thus much may suffice for answer to the several points in the third Objection.

Notes

• The An∣swer to Object.3.
• 5 Edw.2:
• Senatus Rome.
• Solomon.
• Iulius Caesar.
• Augustus Caesar.
• Edw.1.
• Edw.3.
• Nero.
• Edw.2.
• Rich.2.
• Petitions are of divers kinds, & have di∣vers An∣swers.
• Mayletolt
• 3 Kings cap.12.
• 14 Ed.3.cap.13.
• Anno 29 Ed.3.
• 6 Edw.3.Rot.Parl.nu.4.
• 13 Edw.3.Rot.Parl.numb.5.
• 18 Ed 3.Rot.Parl.nu.10.26 in Arch. Turris.
• 28 Ed. 3. Rot. Parl. numb. 27.
• 38 Ed. 3. Rot.Parl.numb.26.
• 6 Edw.3.Rot.Parl.numb.4.
• Lionscase 50 Ed.3.Rot.Parl.nu.17,18.
• Lord Latimers case
• Peachies Case.
• 1 Eliz.Dyer.fol.165.