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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.

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 | Fourthly, I do set apart three commodities, wool, touching the right of impositions is very great; woolfells, and leather, as being in different case extending to the prerogative of the king on the from the rest; because the custom upon them is one part, and the liberty of the subject on the antiqua custuma.” Lastly, the question is not, other; and that in a point of profit and value, and whether in matter of imposing the king may alter not of conceit or fancy. And, therefore, as weight the law by his prerogative, but whether the king in all motions increaseth force, so I do not marvel have not such a prerogative by law. to see men gather the greatest strength of argu- The state of the question being thus cleared ment they can to make good their opinions. And, and freed, my proposition is, that the king by the so you will give me leave likewise, being strong fundamental laws of this kingdom hath a power in mine own persuasion that it is the king's to impose upon merchandise and commodities right, to show my voice as free as my thought. both native and foreign. In my proof of this proAnd for my part, I mean to observe the true position all that I shall say, be it to confirm or course to give strength to this cause, which is by confute, I will draw into certain distinct heads yielding those things which are not tenable, and or considerations which move me, and may move keeping the question within the true state and you. compass; which will discharge many popular The first is a universal negative: there appeararguments, and contract the debate into a less room. eth not in any of the king's courts any one re

Wherefore, I do deliver the question, and ex- cord, wherein an imposition laid at the ports hath clude or set by, as not in question, five things. been overthrown by judgment; nay, more, where First, the question is de portorio," and not “de it hath been questioned by pleading. This plea, tributo," to use the Roman words for explanation “quod summa prædicta minus juste imposita fuit, sake; it is not, I say, touching any taxes within et contra leges et consuetudines regni hujus Anthe land, but of payments at the ports. Secondly, gliæ, unde idem Bates illam solvere recusavit, it is not touching any impost from port to port, prout ei bene lieuit;" is " prima impressionis." but where “claves regni,” the keys of the king- Bates was the first man “ ab origine mundi,” for dom, are turned to let in from foreign parts, or to any thing that appeareth, that ministered that send forth to foreign parts, in a word, matter of plea; whereupon I offer this true consideration: commerce and intercourse; not simply of car- the king's acts that grieve the subject are either riage or vecture. Thirdly, the question is, as against law, and so void, or according to strictthe distinction was used above in another case, ness of law, and yet grievous. And according to o de vero et falso," and not “de bono et malo,” these several natures of grievance, there be seveof the legal point, and not of the inconvenience, ral remedies: Be they against law? Overthrow otherwise than as it serves to decide the law. them by judgment: Be they too strait and ex* This matter was much debated by the lawyers and gentle.

treme, though legal ? Propound them in parliamen in the Parliament 1610, and 1614, &c., and afterwards

Forasmuch, then, as impositions at the given up by the crown in 1641.

ports, having been so often laid, were never

ment.

brought into the king's courts of justice, but still alien and subject; so that this difference or excess brought to parliament, I may most certainly con- of three pence hath no other ground than that clude, that they were conceived not to be against grant. It falleth to be the same in quantity; there law. And if any man shall think that it was too is no statute for it, and, therefore, it can have no high a point to question by law before the judges, strength but from the merchants' grants; and the or that there should want fortitude in them to aid merchants' grants can have no strength but from the subject; no, it shall appear from time to time, the king's power to impose. in cases of equal reach, where the king's acts For the merchants English, take the notable have been indeed against law, the course of law record in 17 E. III., where the Commons comhath run, and the judges have worthily done their plained of the forty shillings upon the sack of duty.

wool as a maltoll set by the assent of the merAs in the case of an imposition upon linen chants without consent of parliament; nay, they cloth for the alnage; overthrown by judgment. dispute and say it were hard that the merchants'

The case of a commission of arrest and commit- consent should be in damage of the Commons. ting of subjects upon examination without con- What saith the king to them? doth he grant it or viction by jury, disallowed by the judges. give way to it? No; but replies upon them, and

A commission to determine the right of the exi- saith, It cannot be rightly construed to be in genter's place, “ secundum sanam discretionem,” prejudice of the Commons, the rather because disallowed by the judges.

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.

to increase their price; in that there was a price I might make mention of the jurisdiction of certain set upon the wools. And there was an some courts of discretion, wherein the judges did end of that matter; which plainly affirmeth the not decline to give opinion. Therefore, had this force of the merchants' grants. So, then, the force been against law, there would not have been of the grants of merchants, both English and " altum silentium” in the king's courts. Of the strangers, appeareth, and their grants being not contrary judgments I will not yet speak; thus corporate, are but noun adjectives, without the much now, that there is no judgment, no, nor plea king's power to impose. against it. Though I said no more, it were The third consideration is, of the first and most enough, in my opinion, to induce you to a “non ancient commencement of customs; wherein I am liquet,” to leave it a doubt.

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 custom was the custom upon wools, woolfells, dispersed persons; they cannot bind succession, and leather: he was deceived in the particular, neither can the major part bind the residue: how and the diligence of your search hath revealed it; then should their grants have force ? No other- for that custom upon these three merchandises wise but thus: that the king's power of imposing grew by grant of parliament 3 E. I.; but the was only the legal virtue and strength of those opinion in general was sound; for there was a grants; and that the consent of a merchant is but custom before that: for the records themselves a concurrence; the king is “principale agens," which speak of that custom do term it a new and they are but as the patient, and so it becomes custom, “ Alentour del novel custome.” As cona binding act out of the king's power.

cerning 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 cator." is, that the three pence granted by the strangers, the other for the merchants English. strangers should be “ ultra antiquas custumas," That for the strangers is upon the grant of " chart. which hath no affinity with that custom upon the mercator.” of three pence in value “ultra anti-three species, but presupposeth more ancient quas custumas;" which grant is in use and customs in general. Now, if any man think that practice at this day. For it is well known to the those more ancient customs were likewise by act merchants, that that which they call stranger's of parliament, it is but a conjecture: it is never custom, and erroneously double custom, is but recited ultra antiquas custumas prius concessas,' three pence in the pound more than English. and acts of parliament were not much stirring Now look into the statutes of subsidy of tonnage before the great charter, which was 9 H. III. and poundage, and you shall find, a few merchan- And, therefore, I conceive with Mr. Dyer, that dise only excepted, the poundage equal upon whatsoever was the ancient custom, was by the

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common law. And if by the common law, then dies by parliament shall continue, as 47 what other means can be imagined of the com- E. III. mencement of it but by the king's imposing ? Sometimes that they shall cease “ad volunta

The fourth consideration is, of the manner that tem nostram." was held in parliament in the abolishing of impo- And sometimes that they shall hold over their sitions laid: wherein I will consider, first, the term prefixed or asseissed. manner of the petitions exhibited in parliament; All which showeth that the king did not disand inore especially the nature of the king's claim them as unlawful, for “actus legitimus answers. For the petitions I note two things; non recipit tempus aut conditionem.” If it had first, that to my remembrance there was never been a disaffirmance by law, they must have gone any petition made for the revoking of any imposi-down “in solido,” but now you see they have tion upon foreign merchants only. It pleased the been tempered and qualified as the king saw conDecemviri in 5 E. II. to deface - chart. mercator." venient. and so the imposition upon strangers, as against The fifth consideration is of that which is offer. law: but the opinion of these reformers I do not ed by way of objection; which is, first, that such much trust, for they of their gentleness did like- grants have been usually made by consent of parwise bring in doubt the demy-mark, which it is liament; and, secondly, that the statutes of submanifest was granted by parliament, and pro- sidies of tonnage and poundage have been made nounced by them the king should have it, “s'il as a kind of stint and limitation, that the king avoit le doit:" but this is declared void by 1 E. should hold himself unto the proportion so grantIII., which reneweth chart. mercator." and void ed, and not impose further; the rather because it must it needs be, because it was an ordinance by is expressed in some of these statues of tonnage commission only, and that in the time of a weak and poundage, sometimes by way of protestation, king, and never either warranted or confirmed by and sometimes by way of condition, that they parliament. Secondly, I note that petitions were shall not be taken in precedent, or that the king made promiscuously for taking away impositions shall not impose any further rates or novelties, as set by parliament as well as without parliament; 6 R. II., 9 R. II., 13 H. IV., 1 H. V., which nay, that very tax of the “neufiesme," the ninth subsidies of tonnage and poundage have such sheaf or fleece, which is recited to be against the clauses and cautions. king's oath, and in blemishment of his crown, To this objection I give this answer. First, was an act of parliament, 14 E. III. So, then, to that it is not strange with kings, for their own infer that impositions were against law, because better strength, and the better contentment of they are taken away by succeeding parliaments, their people, to do those things by parliament, it is no argument at all; because the impositions which, nevertheless, have perfection enough withset by the parliaments themselves, which no man out parliament. We see their own rights to the will say were against law, were, nevertheless, crown, which are inherent, yet they take recogniafterwards pulled down by parliament. But tion of them by parliament. And there was a indeed the argument holdeth rather the other special reason why they should do it in this case, way, that because they took not their remedy in for they had found by experience that if they the king's courts of justice, but did fly to the had not consent in parliament to the setting of parliament, therefore they were thought to stand them up, they could not have avoided suit in parwith law.

liament for the taking of them down. Besides, Now for the king's answers: if the imposi. there were some things requisite in the manner tions complained of had been against law, then of the levy for the better strengthening of the the king's answer ought to have been simple, same, which percase could not be done without s tanquam responsio categorica, non hypotheti- parliament, as the taking the oath of the party ca;" as, Let them be repealed, or, Let the law touching the value, the inviting of the discovery run: but, contrariwise, they admit all manner of of concealment of custom, by giving the moiety diversities and qualifications: for

to the informer, and the like. Sometimes the king disputeth the matter and Now in special for the statutes of subsidies of doth nothing; as 17 E. III.

tonnage and poundage, I note three things. First, Sometimes the king distinguisheth of reason- that the consideration of the grant is not laid to

able and not reasonable, as 38 E. III. be for the restraining of impositions, but expressSometimes he abolisheth them in part, and let-' ly for the guarding of the sea. Secondly, that it

teth them stand in part, as 11 E. II., the re- is true that the ancient form is more peremptory, cord of the “mutuum," and 14 E. III., the and the modern more submiss; for in the ancient printed statute, whereof I shall speak more form sometimes they insert a flat condition that

the king shall not further impose; in the latter Sometimes that no imposition shall be set dur- they humbly pray that the merchants may be de

ing the time that the grants made of subsi. I meaned without oppression, paying those rates;

anon.

but whether it be supplication, or whether it be II.'s time to Q. Mary, which is almost two hundred condition, it rather implieth the king hath a years, there was an intermission of impositions, as power ; for else both were needless, for "conditio appeareth both by records and the custom-books. annectitur ubi libertas præsumitur," and the word To which I answer; both that we have in ef. oppression seemeth to refer to excessive imposi- fect an equal number of years to countervail them, tions. And, thirdly, that the statutes of tonnage namely, one hundred years in the times of the and poundage are but “cumulative,” and not three kings Edwards added to sixty of our last “ privative" of the king's power precedent, appear- years; and “extrema obruunt media;" for we eth notably in the three pence overplus, which have both the reverence of antiquity and the is paid by the merchants strangers, which should possession of the present times, and they but the be taken away quite, if those statutes were taken middle times; and, besides, in all true judgment to be limitations; for in that, as we touched be there is a very great difference between an usage fore, the rates are equal in the generality between to prove a thing lawful, and a non-usage to prove subjects and strangers, and yet that imposition, it unlawful: for the practice plainly implieth connotwithstanding any supposed restriction of these sent; but the discontinuance may be either beacts of subsidies of tonnage and poundage, re- cause it was not needful, though lawful; or bemaineth at this day.

cause there was found a better means, as I think The sixth consideration is likewise of an objec- it was indeed in respect of the double customs tion, which is matter of practice, viz., that from R. by means of the staple at Calais.

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 which want may reverberate upon subjects, it in question: for when that shall be, it may be I might have a show of a secret menace. shall be of opinion, that we should give so now, These arguments are, I hope, needless, and do as we may the better give again. But as things better in your minds than in my mouth. But this, stand for the present, I think the point of honour give me leave to say, that whereas the example and reputation is that which his majesty standeth of Cyrus was used, who sought his supply from most upon, that our gift may at least be like those those upon whom he had bestowed his benefits ; showers, that may serve to lay the winds, though we must always remember, that there are as well they do not sufficiently water the earth.

benefits of the sceptre as benefits of the hand, as To labour to persuade you, I will not: for I well of government as of liberality. These, I am know not into what form to cast my speech. If sure, we will acknowledge to have come “ plena I should enter into a laudative, though never so manu" amongst us all, and all those whom we due and just, of the king's great merits, it may represent; and, therefore, it is every man's head be taken for flattery: if I should speak of the in this case that must be his counsellor, and strait obligations which intercede between the every man's heart his orator; and to those king and the subject, in case of the king's want, inward powers more forcible than any man's it were a kind of concluding the House: if I speech, I leave it, and wish it may go to the should speak of the dangerous consequence question.

Vol. II.-36

2 A 2

A CERTIFICATE.

TO

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,

Lord Knevet, who assisted us in this conference, According unto your lordships' letters unto us as by the merchants ; of which propositions few. directed, grounded upon the information which were new unto us, and much less can be new to his majesty hath received concerning the scarcity your lordships; but yet, although upon former of silver at the mint, we have called before us as consultations, we are not unacquainted what is, well the officers of the mint, as some principal more or less likely to stand with your lordships' merchants, and spent two whole afternoons in the grounds and opinions, we thought it nevertheless examination of the business; wherein we kept the best fruit of our diligence to set them down this order, first to examine the fact, then the in articles, that your lordships with more ease causes, with the remedies.

may discard or entertain the particulars, beginAnd, for the fact, we directed the officers of the ning with those which your lordships do point at mint to give unto us a distinguished account how in your letters, and so descending to the rest. much gold and silver hath yearly been brought The first proposition is, touching the disproporinto the mint, by the space of six whole years tion of the price between gold and silver, which last past, more especially for the last three is now brought to bed, upon the point of fourteen months succeeding the last proclamation touching to one, being before but twelve to one. This we the price of gold; to the end we might by the take to be an evident cause of scarcity of silver suddenness of the fall discern, whether that pro- at the mint, but such a cause as will hardly reclamation might be thought the efficient cause of ceive a remedy; for either your lordships must the present scarcity. Upon which account it draw down again the price of gold, or advance appears to us, that during the space of six years the price of silver; whereof the one is going back aforesaid, there hath been still degrees of decay from that which is so lately done, and whereof in quantity of the silver brought to the mint, but you have found good effect, and the other is a yet so, as within these last three months it hath thing of dangerous consequence, in respect of the grown far beyond the proportion of the former loss to all moneyed men in their debts, gentlemen time, insomuch as there comes in now little or in their rents, the king in his customs, and the none at all. And, yet, notwithstanding, it is common subject in raising the price of things some opinion, as well amongst the officers of the vendible. And upon this point it is fit we give mint as the merchants, that the state need be the your lordships understanding what the merchants less apprehensive of this effect, because it is like intimated unto us, that the very voicing or susto be but temporary, and neither the great flush pect of the raising of the price of silver, if it be of gold that is come into the mint since the not cleared, would make such a deadness and reproclamation, nor, on the other side, the great tention of money this vacation, as, to use their scarcity of silver, can continue in proportion as it own words, will be a misery to the merchants : now doth.

so that we were forced to use protestation, that Another point of the fact, which we thought fit there was no such intent. to examine, was, whether the scarcity of silver The second proposition, is touching the charge appeared generally in the realm, or only at the of coinage; wherein it was confidently avouched mint; wherein it was confessed by the merchants, by the merchants, that if the coinage were that silver is continually imported into the realm, i brought from two shillings unto eighteen pence, and is found stirring amongst the goldsmiths, and as it was in Queen Elizabeth's time, the king otherwise, much like as in former times, although, would gain more in the quantity than he should lose in respect of the greater price which it hath with in the price: and they aided themselves with that the goldsmith, it cannot find the way to the mint. argument, that the king had been pleased to abate And thus much for the fact.

his coinage in the other metal, and found good of For the causes with the remedies, we have it: which argument, though it doth admit a differheard many propositions made, as well by the lence, because that abatement was coupled with.

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