A

SPEECH OF THE KING'S SOLICITOR,

PERSUADING

THE HOUSE OF COMMONS

TO DESIST FROM FARTHER QUESTION OF

RECEIVING THE KING'S MESSAGES,

BY THEIR SPEAKER, AND FROM THE BODY OF THE COUNCIL, AS WELL AS FROM THE KING'S PERSON.

IN THE PARLIAMENT 7 JACOBI.

mistum; which kind of bodies come speedily to confusion and dissolution. And herein it is our happiness, that we may make the same judgment of the king, which Tacitus made of Nerva: "Divus Nerva res olim dissociabiles miscuit, imperium et libertatem." Nerva did temper things, that before were thought incompatible, or insociable, sovereignty and liberty. And it is not amiss in a great council and a great cause to put the other part of the difference, which was significantly expressed by the judgment which Apollonius made of Nero; which was thus: 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 licence? 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.

and if this be taken from them, a great part of their safety is taken away. For the other point of weakening the council; you know they are nothing with. out the king: they are no body-politic; they have no commission under seal. So as, if you begin to distinguish and disjoin them from the king, they are corpus opacum; for they have lumen de lumine: and so by distinguishing you extinguish the princi pal engine of the estate. For it is truly affirmed, that "Concilium non habet potestatem delegatam, sed inhærentem:" and it is but rex in cathedra, the king in his chair or consistory, where his will and decrees, which are in privacy more changeable, are settled and fixed.

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 commonalities 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 conFirst, I say, let us see how it concerns the king, cerns us nothing. For first it is but de canali, of and then how it concerns us. For the king, cer- the pipe; how the king's message shall be conveyed tainly, if it be observed, it cannot be denied, but if to us, and not of the matter. Neither hath the you may not receive his pleasure by his represent-speaker any such dominion, as that coming out of ative body, which is his council of his estate, you both straiten his Majesty in point of conveniency, and weaken the 'reputation of his council. All kings, though they be gods on earth, yet, as he said, they are gods of earth, frail as other men; they may be children; they may be of extreme age; they may be indisposed in health; they may be absent. In these cases, if their council may not supply their persons, to what infinite accidents do you expose them! Nay, more, sometimes in policy kings will not be seen, but cover themselves with their council;

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

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 EXPORTED.*

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 simwere 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, the subject; no, it shall appear from time to time, and leather, as being in different case from the rest; in cases of equal reach, where the king's acts have because the custom upon them is antiqua custuma. been indeed against law, the course of law hath run, Lastly, the question is not, whether in matter of and the judges have worthily done their duty. mposing 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

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 exa

12 H. 4. 13 H. 4.

40 Assis.

This matter was much debated by the lawyers and gen-mination without conviction by jury, disallowed by men in the parliament 1610, and 1611, &c. and afterwards given up by the crown in 1641.

the judges.

490

2 Eliz.

Scrogg's case.

43 Eliz.

ARGUMENT CONCERNING IMPOSITIONS ON MERCHANDISES.

A commission to determine the right | was made, that the merchants should not work upon of the exigenter's place, "secundum them, by colour of that payment to increase their sanam discretionem," disallowed by the price; in that there was a price certain set upon the judges. 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 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.

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 wa 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 com mencement 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.

For the merchants English take the 17 Ed. 3. notable record in 17 E. III. where the commons complained of the forty shillings upon the sack of wool as a mal-toll 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

The fourth consideration is, of the manner that was held in parliament in the abolishing of imposi tions 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 mer chants 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 onli nance by commission only, and that in the time ef a weak king, and never either warranted or confirmed by parliament. Secondly, I note that petitions

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 inherent, yet they take recognition of them by parsheaf or fleece, which is recited to be against the liament. And there was a special reason why they king's oath and in blemishment of his crown, was should do it in this case, for they had found by an act of parliament, 14 E. III. So then to infer experience that if they had not consent in parliament that impositions were against law, because they are to the setting of them up, they could not have taken away by succeeding parliaments, it is no avoided suit in parliament for the taking of them argument at all; because the impositions set by the down. Besides, there were some things requisite in parliaments themselves, which no man will say the manner of the levy for the better strengthening were against law, were, nevertheless, afterwards of the same, which percase could not be done withpulled 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 touching the value, the inviting of the discovery of they took not their remedy in the king's courts of concealment of custom by giving the moiety to the justice, but did fly to the parliament, therefore they informer, and the like. 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 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

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 farther impose; in the latter they humbly 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.

To which I answer; both that we have in effect an equal number of years to countervail them, namely, 100 years in the times of the three kings Edwards added to 60 of our last years; and "extrema obruunt media;" for we have both the reverence of antiquity and the possession of the present times, and they but the middle times; and besides, in all true judgment there is a very great difference between a usage to prove a thing lawful, and a non-usage to prove it unlawful: for the practice plainly implieth consent; but the discontinuance may be either because it was not needful, though lawful; or because there was found a better means, as I think it was indeed in respect of the double customs by means of the staple at Calais.