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king's profit, which concerneth the king as “pater familias;" now as "pater patriæ."

by survey and commission is but one image, but | Thus much concerning the improvement of the the way were by private diligence to be really informed: neither is it hard for a person that liveth in an inn of court, where there be understanding men of every county of England, to obtain by care certain information.

Thirdly, This kind of promise of preferring the next akin, doth much obscure the information, which before by competition of divers did better appear; and therefore it may be necessary for the master of the wards sometimes to direct letters to some persons near the ward living, and to take certificate from them: it being always intended the subject be not racked too high, and that the nearest friends that be sound in religion, and like to give the ward good education, be preferred.

Fourthly, That it be examined carefully whether the ward's revenues consist of copyholds for lives, which are not to be comprised in the lease, and that there be no neglect to grant commissions for the same, and that the master take order to be certified of the profits of former courts held by the ward's ancestor, that it may be a precedent and direction for the commissioners.

Fifthly, That the master make account every six months (the state appoints one in the year) to his majesty; and that when he bringeth the bill of grants of the body for his majesty's signature, he bring a schedule of the truth of the state of every one of them, as it hath appeared to him by information, and acquaint his majesty both with the rates and states.

First, For the wards themselves, that there be special care taken in the choice of the committee, that he be sound in religion, his house and family not dissolute, no greedy person, no step-mother, nor the like.

Further, That there be letters written once every year to certain principal gentlemen of credit in every county, to take view not only of the person of the wards in every county, and their education; but of their houses, woods, grounds, and estate, and the same to certify; that the committees may be held in some awe, and that the blessing of the poor orphans and the pupils may come upon his majesty and his children.

Secondly, For the suitors; that there be a strait examination concerning the raising and multiplication of fees in that court, which is much scandalized with opinion thereof, and all exacted fees put down.

Thirdly, For the subjects at large; that the vexation of escheators and feodaries be repressed, which, upon no substantial ground of record, vex the country with inquisitions and other extortions: and for that purpose that there be one set day at the end of every term appointed for examining the abuses of such inferior officers, and that the master of wards take special care to receive private information from gentlemen of quality and conscience in every shire touching the same.









It is my desire, that if any the king's busi-| in discord. To this I shall always bend my en ness, either of honour or profit, shall pass the deavours. House, it may be not only with external prevailng, but with satisfaction of the inward man. For in consent, where tongue-strings, not heartstrings, make the music, that harmony may end

The king's sovereignty, and the liberty of parliament, are as the two elements and principles of this estate; which, though the one be more active, the other more passive, yet they do not

cross or destroy the one the other. But they conveniency, and weaken the reputation of his counstrengthen and maintain the one the other. Take cil. All kings, though they be live gods on earth, away liberty of parliament, the griefs of the sub- yet, as he said, they are gods of earth, frail as other ject will bleed inwards: sharp and eager humours men; they may be children; they may be of exwill not evaporate; and then they must exulcer- treme age; they may be indisposed in health; they ate; and so may endanger the sovereignty itself. may be absent. In these cases, if their council On the other side, if the king's sovereignty re- may not supply their persons, to what infinite ceive diminution, or any degree of contempt with accidents do you expose them? Nay, more, someus that are born under an hereditary monarchy, times in policy kings will not be seen, but cover so as the motions of our estate cannot work in themselves with their council; and if this be taken any other frame or engine, it must follow, that from them, a great part of their safety is taken we shall be a meteor, or "corpus imperfecte mis- away. For the other point, of weakening the tum;" which kind of bodies come speedily to council; you know they are nothing without the confusion and dissolution. And herein it is our king: they are no body politic; they have no happiness, that we may make the same judgment commission under seal. So as, if you begin to of the king, which Tacitus made of Nerva: distinguish and disjoin them from the king, they "Divus Nerva res olim dissociabiles miscuit, are "corpus opacum;" for they have "lumen de imperium et libertatem." Nerva did temper lumine:" and so by distinguishing you extinguish things, that before were thought incompatible, or the principal engine of the estate. For it is truly insociable, sovereignty and liberty. And it is affirmed, that "Concilium non habet potestatem not amiss in a great council and a great cause to delegatam, sed inhærentem:" and it is but “Rex put the other part of the difference, which was in cathedra," the king in his chair or consistory, significantly expressed by the judgment which where his will and decrees, which are in privacy Apollonius made of Nero; which was thus: more changeable, are settled and fixed. when Vespasian came out of Judæa towards Italy, to receive the empire, as he passed by Alexandria he spake with Apollonius, a man much admired, and asked him a question of state: "What was the cause of Nero's fall or overthrow?" Apollonius answered again, "Nero could tune the harp well: but in government he always either wound up the pins too high, and strained the strings too far; or let them down too low, and slackened the strings too much." Here we see the difference between regular and able princes, and irregular and incapable, Nerva and Nero. The one tempers and mingles the sovereignty with the liberty of the subject wisely; and the other doth interchange it, and vary it unequally and absurdly. Since, therefore, we have a prince of so excellent wisdom and moderation, of whose authority we ought to be tender, as he is likewise of our liberty, let us enter into a true and indifferent consideration, how far forth the case in question may touch his authority, and how far forth our liberty: and, to speak clearly, in my opinion it concerns his authority much, and our liberty nothing at all. The questions are two: the one, whether our speaker be exempted from delivery of a message from the king without our license? The other, whether it is not all one whether he received it from the body of the council, as if he received it immediately from the king? And I will speak of the last first, because it is the circumstance of the present case.

First, I say, let us see how it concerns the king, and then how it concerns us. For the king, certainly, if it be observed, it cannot be denied, but if you may not receive his pleasure by his representative body, which is his council of his estate, you both straiten his majesty in point of

Now, for that which concerns ourselves. First, for dignity; no man must think this a disparagement to us: for the greatest kings in Europe, by their ambassadors, receive answers and directions from the council in the king's absence; and if that negotiation be fit for the fraternity and party of kings, it may much less be excepted to by subjects.

For use or benefit, no man can be so raw and unacquainted in the affairs of the world, as to conceive there should be any disadvantage in it, as if such answers were less firm and certain. For it cannot be supposed, that men of so great caution, as counsellors of estate commonly are, whether you take caution for wisdom or providence, or for pledge of estate or fortune, will ever err, or adventure so far as to exceed their warrant. And, therefore, I conclude, that in this point there can be unto us neither disgrace nor disadvantage.

For the point of the speaker. First, on the king's part, it may have a shrewd illation; for it hath a show, as if there could be a stronger duty than the duty of a subject to a king. We see the degrees and differences of duties in families, between father and son, master and servant; in corporate bodies, between commonalties and their officers, recorders, stewards, and the like; yet all these give place to the king's commandments. The bonds are more special, but not so forcible. On our part, it concerns us nothing. For, first, it is but de canali," of the pipe; how the king's message shall be conveyed to us, and not of the matter. Neither hath the speaker any such dominion, as that coming out of his mouth it presseth us more than out of a privy counsellor's. Nay, it seems to be a great trust of the king's towards

the House, when the king doubteth not to put his | It is one use of wit to make clear things doubtmessage into their mouth, as if he should speak ful; but it is a much better use of wit to make to the city by their recorder: therefore, methinks doubtful things clear; and to that I would men we should not entertain this unnecessary doubt. I would bend themselves.








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woolfells, and leather, as being in different case from the rest; because the custom upon them is antiqua custuma. Lastly, the question is not, whether in matter of imposing the king may alter the law by his prerogative, but whether the king have not such a prerogative by law.

The state of the question being thus cleared and freed, my proposition is, that the king by the fundamental laws of this kingdom hath a power to impose upon merchandise and commodities both native and foreign. In my proof of this proposition all that I shall say, be it to confirm or confute, I will draw into certain distinct heads or considerations which move me, and may move you.

AND it please you, Mr. Speaker, this question | Fourthly, I do set apart three commodities, wool, touching the right of impositions is very great; extending to the prerogative of the king on the one part, and the liberty of the subject on the other; and that in a point of profit and value, and not of conceit or fancy. And, therefore, as weight in all motions increaseth force, so I do not marvel to see men gather the greatest strength of argument they can to make good their opinions. And, so you will give me leave likewise, being strong in mine own persuasion that it is the king's right, to show my voice as free as my thought. And for my part, I mean to observe the true course to give strength to this cause, which is by yielding those things which are not tenable, and keeping the question within the true state and compass; which will discharge many popular arguments, and contract the debate into a less room. Wherefore, I do deliver the question, and exclude or set by, as not in question, five things. First, the question is "de portorio," and not "de tributo," to use the Roman words for explanation sake; it is not, I say, touching any taxes within the land, but of payments at the ports. Secondly, it is not touching any impost from port to port, but where "claves regni," the keys of the kingdom, are turned to let in from foreign parts, or to send forth to foreign parts, in a word, matter of commerce and intercourse; not simply of carriage or vecture. Thirdly, the question is, as the distinction was used above in another case, "de vero et falso," and not "de bono et malo," of the legal point, and not of the inconvenience, otherwise than as it serves to decide the law.

*This matter was much debated by the lawyers and gentlemen in the Parliament 1610, and 1614, &c., and afterwards given up by the crown in 1611.

The first is a universal negative: there appeareth not in any of the king's courts any one record, wherein an imposition laid at the ports hath been overthrown by judgment; nay, more, where it hath been questioned by pleading. This plea, "quod summa prædicta minus juste imposita fuit, et contra leges et consuetudines regni hujus Angliæ, unde idem Bates illam solvere recusavit, prout ei bene licuit;" is "primæ impressionis." Bates was the first man "ab origine mundi," for any thing that appeareth, that ministered that plea; whereupon I offer this true consideration: the king's acts that grieve the subject are either against law, and so void, or according to strictness of law, and yet grievous. And according to these several natures of grievance, there be several remedies: Be they against law? Overthrow them by judgment: Be they too strait and extreme, though legal? Propound them in parliaForasmuch, then, as impositions at the ports, having been so often laid, were never


brought into the king's courts of justice, but still brought to parliament, I may most certainly conclude, that they were conceived not to be against 'aw. And if any man shall think that it was too high a point to question by law before the judges, or that there should want fortitude in them to aid the subject; no, it shall appear from time to time, in cases of equal reach, where the king's acts have been indeed against law, the course of law hath run, and the judges have worthily done their duty.

As in the case of an imposition upon linen cloth for the alnage; overthrown by judgment.

The case of a commission of arrest and committing of subjects upon examination without conviction by jury, disallowed by the judges.

A commission to determine the right of the exigenter's place, "secundum sanam discretionem," disallowed by the judges.

alien and subject; so that this difference or excess of three pence hath no other ground than that grant. It falleth to be the same in quantity; there is no statute for it, and, therefore, it can have no strength but from the merchants' grants; and the merchants' grants can have no strength but from the king's power to impose.

For the merchants English, take the notable record in 17 E. III., where the Commons complained of the forty shillings upon the sack of wool as a maltoll set by the assent of the merchants without consent of parliament; nay, they dispute and say it were hard that the merchants' consent should be in damage of the Commons. What saith the king to them? doth he grant it or give way to it? No; but replies upon them, and saith, It cannot be rightly construed to be in prejudice of the Commons, the rather because provision was made, that the merchants should

The case of the monopoly of cards overthrown not work upon them, by colour of that payment and condemned by judgment.

I might make mention of the jurisdiction of some courts of discretion, wherein the judges did not decline to give opinion. Therefore, had this been against law, there would not have been "altum silentium" in the king's courts. Of the contrary judgments I will not yet speak; thus much now, that there is no judgment, no, nor plea against it. Though I said no more, it were enough, in my opinion, to induce you to a "non liquet," to leave it a doubt.

to increase their price; in that there was a price certain set upon the wools. And there was an end of that matter; which plainly affirmeth the force of the merchants' grants. So, then, the force of the grants of merchants, both English and strangers, appeareth, and their grants being not corporate, are but noun adjectives, without the king's power to impose.

The third consideration is, of the first and most ancient commencement of customs; wherein I am somewhat to seek; for, as the poet saith, “IngreThe second consideration is, the force and con- diturque solo, et caput inter nubila condit," the tiruance of payments made by grants of mer- beginning of it is obscure: but I rather conceive chants, both strangers and English, without con- that it is by common law than by grant in parliasent of parliament. Herein I lay this ground ment. For, first, Mr. Dyer's opinion was, that that such grants considered in themselves are void the ancient custom for exportation was by the in law for merchants, either strangers or sub-common laws; and goeth further, that that ancient jects, they are no body corporate, but singular and dispersed persons; they cannot bind succession, neither can the major part bind the residue: how then should their grants have force? No other wise but thus: that the king's power of imposing was only the legal virtue and strength of those grants; and that the consent of a merchant is but a concurrence; the king is "principale agens,' and they are but as the patient, and so it becomes a binding act out of the king's power.

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custom was the custom upon wools, woolfells, and leather: he was deceived in the particular, and the diligence of your search hath revealed it; for that custom upon these three merchandises grew by grant of parliament 3 E. I.; but the opinion in general was sound; for there was a custom before that: for the records themselves which speak of that custom do term it a new custom," Alentour del novel custome." As concerning the new custom granted, etc., this is Now, if any man doubt that such grants of mer-pregnant, there was yet a more ancient. So for chants should not be of force, I will allege but the strangers, the grant in 31 E. I. “chart. mertwo memorable records, the one for the merchants strangers, the other for the merchants English. That for the strangers is upon the grant of "chart. mercator." of three pence in value "ultra antiquas custumas;" which grant is in use and practice at this day. For it is well known to the merchants, that that which they call stranger's custom, and erroneously double custom, is but three pence in the pound more than English. Now look into the statutes of subsidy of tonnage and poundage, and you shall find, a few merchandise only excepted, the poundage equal upon

cator." is, that the three pence granted by the strangers should be "ultra antiquas custumas," which hath no affinity with that custom upon the three species, but presupposeth more ancient customs in general. Now, if any man think that those more ancient customs were likewise by act of parliament, it is but a conjecture: it is never recited "ultra antiquas custumas prius concessas," and acts of parliament were not much stirring before the great charter, which was 9 H. III. And, therefore, I conceive with Mr. Dyer, that whatsoever was the ancient custom, was by the

common law. And if by the common law, then what other means can be imagined of the commencement of it but by the king's imposing?

The fourth consideration is, of the manner that was held in parliament in the abolishing of impositions laid: wherein I will consider, first, the manner of the petitions exhibited in parliament; and more especially the nature of the king's answers. For the petitions I note two things; first, that to my remembrance there was never any petition made for the revoking of any imposition upon foreign merchants only. It pleased the Decemviri in 5 E. II. to deface "chart. mercator." and so the imposition upon strangers, as against law but the opinion of these reformers I do not much trust, for they of their gentleness did likewise bring in doubt the demy-mark, which it is manifest was granted by parliament, and pronounced by them the king should have it, "s'il avoit le doit:" but this is declared void by 1 E. III., which reneweth "chart. mercator." and void must it needs be, because it was an ordinance by commission only, and that in the time of a weak king, and never either warranted or confirmed by parliament. Secondly, I note that petitions were made promiscuously for taking away impositions set by parliament as well as without parliament; nay, that very tax of the "neufiesme," the ninth sheaf or fleece, which is recited to be against the king's oath, and in blemishment of his crown, was an act of parliament, 14 E. III. So, then, to infer that impositions were against law, because they are taken away by succeeding parliaments, it is no argument at all; because the impositions set by the parliaments themselves, which no man will say were against law, were, nevertheless, afterwards pulled down by parliament. indeed the argument holdeth rather the other way, that because they took not their remedy in the king's courts of justice, but did fly to the parliament, therefore they were thought to stand with law.


Now for the king's answers: if the impositions complained of had been against law, then the king's answer ought to have been simple, "tanquam responsio categorica, non hypothetica;" as, Let them be repealed, or, Let the law run: but, contrariwise, they admit all manner of diversities and qualifications: for

Sometimes the king disputeth the matter and doth nothing; as 17 E. III. Sometimes the king distinguisheth of reasonable and not reasonable, as 38 E. III. Sometimes he abolisheth them in part, and letteth them stand in part, as 11 E. II., the record of the "mutuum," and 14 E. III., the printed statute, whereof I shall speak more


Sometimes that no imposition shall be set during the time that the grants made of subsi

dies by parliament shall continue, as 47 E. III.

Sometimes that they shall cease "ad voluntatem nostram."

And sometimes that they shall hold over their term prefixed or asseissed.

All which showeth that the king did not disclaim them as unlawful, for "actus legitimus non recipit tempus aut conditionem." If it had been a disaffirmance by law, they must have gone down "in solido," but now you see they have been tempered and qualified as the king saw convenient.

The fifth consideration is of that which is offered by way of objection; which is, first, that such grants have been usually made by consent of parliament; and, secondly, that the statutes of subsidies of tonnage and poundage have been made as a kind of stint and limitation, that the king should hold himself unto the proportion so granted, and not impose further; the rather because it is expressed in some of these statues of tonnage and poundage, sometimes by way of protestation, and sometimes by way of condition, that they shall not be taken in precedent, or that the king shall not impose any further rates or novelties, as 6 R. II., 9 R. II., 13 H. IV., 1 H. V., which subsidies of tonnage and poundage have such clauses and cautions.

To this objection I give this answer. First, that it is not strange with kings, for their own better strength, and the better contentment of their people, to do those things by parliament, which, nevertheless, have perfection enough without parliament. We see their own rights to the crown, which are inherent, yet they take recognition of them by parliament. And there was a special reason why they should do it in this case, for they had found by experience that if they had not consent in parliament to the setting of them up, they could not have avoided suit in parliament for the taking of them down. Besides, there were some things requisite in the manner of the levy for the better strengthening of the same, which percase could not be done without parliament, as the taking the oath of the party touching the value, the inviting of the discovery of concealment of custom, by giving the moiety to the informer, and the like.

Now in special for the statutes of subsidies of tonnage and poundage, I note three things. First, that the consideration of the grant is not laid to be for the restraining of impositions, but expressly for the guarding of the sea. Secondly, that it is true that the ancient form is more peremptory, and the modern more submiss; for in the ancient form sometimes they insert a flat condition that the king shall not further impose; in the latter they humbly pray that the merchants may be demeaned without oppression, paying those rates;

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