AN ARGUMENT OF SIR FRANCIS BACON, THE KING'S SOLICITOR, IN THE LOWER HOUSE OF PARLIAMENT, PROVING THE KING'S RIGHT OF IMPOSITIONS ON MERCHANDISES IMPORTED AND it please you, Mr. Speaker, this question 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. 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. 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 Wherefore I do deliver the question, and exclude offer this to consideration: the king's acts that or set by, as not in question, five things. First, the grieve the subject are either against law, and so . question is de portorio, and not de tributo, to use the void, or according to strictness of law, and yet Roman words for explanation sake; it is not, I say, grievous. And according to these several natures of touching any taxes within the land, but of payments grievance, there be several remedies: Be they at the ports. Secondly, it is not touching any im- against law? Overthrow them by judgment: Be post from port to port, but where claves regni, the they too strait and extreme, though legal? Prokeys of the kingdom, are turned to let in from pound them in parliament. Forasmuch then as foreign parts, or to send forth to foreign parts; in a impositions at the ports, having been so often laid, word, matter of commerce and intercourse, not sim- were never brought into the king's courts of justice, ply of carriage or vecture. Thirdly, the question but still brought to parliament, I may most certainly is, as the distinction was used above in another case, conclude, that they were conceived not to be against "de vero et falso," and not " de bono et malo," of law. And if any man shall think that it was too the legal point, and not of the inconvenience, other-high a point to question by law before the judges, wise than as it serves to decide the law. Fourthly, or that there should want fortitude in them to aid I do set apart three commodities, wools, 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 *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 1641. 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. 12 H. 4. 13 H. 4. 40 Assis. The case of a commission of arrest and committing of subjects upon examination without conviction by jury, disallowed by the judges. 490 2 Eliz. Scrogg's case. 43 Eliz. ARGUMENT CONCERNING IMPOSITIONS ON MERCHANDISES. A commission to determine the right of the exigenter's place, "secundum sanam discretionem," disallowed by the judges. The case of the monopoly of cards, overthrown and condemned by judg ment. 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. The second consideration is, the force and continuance of payments made by grants of merchants, both strangers and English, without consent of parliament. Herein I lay this ground, that such grants considered in themselves are void in law: for merchants, either strangers or subjects, 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 otherwise 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. 31 Ed. 1. Chart. mercator. | was made, that the merchants should not work upon them, by colour of that payment 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, "Ingrediturque solo, et caput inter nubila condit," the beginning of it is obscure: but I rather conceive that it is by common law than by grant in parliament. For, first, Mr. Dyer's opinion was, that the ancient custom for exportation was by the common laws; and goeth farther, that that ancient 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, &c. this is pregnant, there was yet a more ancient. So for the strangers, the grant in 31 E. I. chart. mercator. 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 con 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? Now if any man doubt that such grants of merchants should not be of force, I will allege but two memorable records, the one for the merchants strangers, the other for the merchants English.jecture: it is never recited "ultra antiquas custumas 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 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. 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 For the merchants English take the upon strangers, as against law: but the opinion of 17 Ed. 3. notable record in 17 E. III. where the these reformers I do not much trust, for they of commons complained of the forty shillings upon the their gentleness did likewise bring in doubt the sack of wool as a mal-toll set by the assent of the demy-mark, which it is manifest was granted by merchants without consent of parliament; nay, they parliament, and pronounced by them the king should dispute and say it were hard that the merchants' have it, "s'il avoit le doit;" but this is declared consent should be in damage of the commons. void by 1 E. III. which reneweth chart. mercator. What saith the king to them? doth he grant it or and void must it needs be, because it was an ordigive way to it? No; but replies upon them, and nance by commission only, and that in the time of saith, It cannot be rightly construed to be in preju- | a weak king, and never either warranted or condice of the commons, the rather because provision | firmed by parliament. Secondly, I note that petitions 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 with were made promiscuously for taking away imposi- less have perfection enough without parliament. tions set by parliament as well as without parlia- | We see their own rights to the crown which are ment; 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. But indeed the argu-out parliament, as the taking the oath of the party ment 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. 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 Now for the king's answers: if the impositions tonnage and poundage, I note three things. First, complained of had been against law, then the king's that the consideration of the grant is not laid to be answer ought to have been simple, "tanquam re- for the restraining of impositions, but expressly for sponsio categorica, non hypothetica;" as, Let them the guarding of the sea. Secondly, that it is true be repealed, or, Let the law run: but contrariwise, that the ancient form is more peremptory, and the they admit all manner of diversities and qualifica- modern more submiss; for in the ancient form tions: for sometimes they insert a flat condition that the king Sometimes the king disputeth the matter and shall not farther impose; in the latter they humbly 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 anon. Sometimes that no imposition shall be set during the time that the grants made of subsidies 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 farther; the rather because it is expressed in some of these statutes 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 farther 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 neverthe pray that the merchants may be demeaned without oppression, paying those rates; but whether it be supplication, or whether it be condition, it rather implieth the king hath a power; for else both were needless, for "conditio annectitur ubi libertas præsumitur," and the word oppression seemeth to refer to excessive impositions. And thirdly, that the statutes of tonnage and poundage are but cumulative and not privative of the king's power precedent, appeareth notably in the three pence overplus, which is paid by the merchants strangers, which should be taken away quite, if those statutes were taken to be limitations; for in that, as was touched before, the rates are equal in the generality between subjects and strangers, and yet that imposition, notwithstanding any supposed restriction of these acts of subsidies of tonnage and poundage, remaineth at this day. The sixth consideration is likewise of an objection, which is matter of practice, viz. that from R. II.'s time to Q. Mary, which is almost 200 years, there was an intermission of impositions, as appeareth both by records and the custom-books. ex | A BRIEF SPEECH IN THE END OF THE SESSION OF PARLIAMENT 7 JACOBI. PERSUADING SOME SUPPLY TO BE GIVEN TO HIS MAJESTY: WHICH SEEMED THEN TO STAND UPON DOUBTFUL TERMS, AND PASSED UPON THIS SPEECH. THE proportion of the king's supply is not now in question for when that shall be, it may be I shall be of opinion, that we should give so now, as we may the better give again. But as things stand for the present, I think the point of honour and reputation is that which his Majesty standeth most | upon, that our gift may at least be like those showers that may serve to lay the winds, though they do not sufficiently water the earth. ous consequence which want may reverberate upon subjects, it might have a show of a secret menace. These arguments are, I hope, needless, and do better in your minds than in my mouth. But this give me leave to say, that whereas the example of Cyrus was used, who sought his supply from those upon whom he had bestowed his benefits; we must always remember, that there are as well benefits of the sceptre as benefits of the hand, as well of goTo labour to persuade you, I will not: for I know vernment as of liberality. These, I am sure, we not into what form to cast my speech. If I should will acknowledge to have come plena manu amongst enter into a laudative, though never so due and just, us all, and all those whom we represent; and thereof the king's great merits, it may be taken for flat-fore it is every man's head in this case that must tery if I should speak of the strait obligations which intercede between the king and the subject, in case of the king's want, it were a kind of concluding the house: if I should speak of the danger be his counsellor, and every man's heart his orator; and to those inward powers, more forcible than any man's speech, I leave it, and wish it may go to the question. A CERTIFICATE ΤΟ THE LORDS OF THE COUNCIL, UPON INFORMATION GIVEN TOUCHING THE SCARCITY OF SILVER AT THE MINT AND REFERENCE TO THE TWO CHANCELLORS AND THE KING'S SOLICITOR. IT MAY PLEASE YOUR LORDSHIPS, ACCORDING unto your lordships' letters unto us directed, grounded upon the information which his Majesty hath received concerning the scarcity of silver at the Mint, we have called before us as well the officers of the Mint, as some principal merchants, and spent two whole afternoons in the examination of the buisiness; wherein we kept this order, first to examine the fact, then the causes, with the remedies. And for the fact, we directed the officers of the Mint to give unto us a distinguished account how much gold and silver hath yearly been brought into the Mint, by the space of six whole years last past, more especially for the last three months succeeding the last proclamation touching the price of gold; to the end we might by the suddenness of the fall discern, whether that proclamation might be thought the efficient cause of the present scarcity. Upon which account it appears to us, that during the space of six years aforesaid, there hath been still degrees of decay in quantity of the silver brought to the Mint, but yet so, as within these last three months it hath grown far beyond the proportion of the former time, insomuch as there comes in now little or none at all. And yet, notwithstanding, it is some opinion, as well amongst the officers of the Mint as the merchants, that the state need be the less apprehensive of this effect, because it is like to be but temporary, and neither the great flush of gold that is come into the Mint since the proclamation, nor on the other side the great scarcity of silver, can continue in proportion as it now doth. Another point of the fact, which we thought fit to examine, was, whether the scarcity of silver appeared generally in the realm, or only at the Mint; wherein it was confessed by the merchants, that silver is continually imported into the realm, and is found stirring amongst the goldsmiths, and otherwise much like as in former times, although in respect of the greater price which it hath with the goldsmith, it cannot find the way to the Mint. And thus much for the fact. For the causes with the remedies, we have heard many propositions made, as well by the lord Knevet, who assisted us in this conference, as by the merchants; of which propositions few were new unto us, and much less can be new to your lordships; but yet although upon former consultations, we are not unacquainted what is more or less likely to stand with your lordships' grounds and opinions, we thought it nevertheless the best fruit of our diligence to set them down in articles, that your lordships with more ease may discard or entertain the particulars, beginning with those which your lordships do point at in your letters, and so descending to the rest. The first proposition is, touching the disproportion of the price between gold and silver, which is now brought to bed, upon the point of fourteen to one, being before but twelve to one. This we take to be an evident cause of scarcity of silver at the Mint, but such a cause as will hardly receive a remedy; for either your lordships must draw down again the price of gold, or advance the price of silver; whereof the one is going back from that which is so lately done, and whereof you have found good effect, and the other is a thing of dangerous consequence in respect of the loss to all moneyed men in their debts, gentlemen in their rents, the king in his customs, and the common subject in raising the price of things vendible. And upon this point it is fit we give your lordships understanding what the merchants intimated unto us, that the very voicing or suspect of the raising of the price of silver, if it be not cleared, would make such a deadness and retention of money this vacation, as, to use their own words, will be a misery to the merchants: so that we were forced to use protestation, that there was no such intent. they presumed it would be of small effect, because that abatement would not be equivalent to that price which Spanish silver bears with the goldsmith; but yet it may be used as an experiment of state, being recoverable at his Majesty's pleasure. The third proposition is, concerning the exportation of silver more than in former times, wherein we fell first upon the trade into the East Indies: concerning which it was materially in our opinions answered by the merchants of that company, that the silver which supplies that trade, being generally Spanish moneys, would not be brought in but for that trade, so that it sucks in as well as it draws forth. And it was added likewise, that as long as the Low Countries maintained that trade in the Indies, it would help little though our trade were dissolved, because that silver which is exported immediately by us to the Indies would be drawn out of this kingdom for the Indies immediately by the Dutch: and for the silver exported to the Levant, it was thought to be no great matter. As for other exportation, we saw no remedy but the execution of the laws, specially those of employment being by some mitigation made agreeable to the times. And these three remedies are of that nature, as they serve to remove the causes of this scarcity. There were other propositions of policies and means, directly to draw silver to the Mint. The fourth point thereof was this: It is agreed that the silver which hath heretofore fed the Mint, principally hath been Spanish money. This now comes into the realm plentifully, but not into the Mint. It was propounded in imitation of some precedent in France, that his Majesty would by proclamation restrain the coming in of this money sub modo, that is, that either it be brought to the Mint, or otherwise to be cut and defaced, because that now it passeth in payments in a kind of currency. To which it was colourably objected, that this would be the way to have none brought in at all, because the gain ceasing, the importation would cease; but this objection was well answered, that it is not gain altogether, but a necessity of speedy payment, that causeth the merchant to bring in silver to keep his credit, and to drive his trade: so that if the king keep his fourteen days payment at the Mint, as he always hath done, and have likewise his exchangers for those moneys in some principal parts, it is supposed that all Spanish moneys, which is the bulk of silver brought into this realm, would by means of such a proclamation come into the Mint; which may be a thing considerable. The second proposition, is touching the charge of coinage; wherein it was confidently avouched by the merchants, that if the coinage were brought The fifth proposition was this: It was warranted from two shillings unto eighteen pence, as it was by the laws of Spain to bring in silver for corn or in queen Elizabeth's time, the king would gain victuals; it was propounded that his Majesty would more in the quantity than he should lose in the restrain exportation of corn sub modo, except they price and they aided themselves with that argu- bring the silver which resulted thereof unto his ment, that the king had been pleased to abate his Mint; that trade being commonly so beneficial, as coinage in the other metal, and found good of it: the merchant may well endure the bringing of the which argument, though it doth admit a difference, silver to the Mint, although it were at the charge of because that abatement was coupled with the raising coinage, which it now beareth farther, as incident of the price, whereas this is to go alone; yet never- to this matter. There was revived by the merchants, theless it seemed the officers of the Mint were not with some instance, the ancient proposition concernunwilling to give way to some abatement, althoughing the erection of granaries for foreign corn, foras |