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.

The case of the monopoly of cards overthrown 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.

:

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 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, "IngreThe second consideration is, the force and con- diturque solo, et caput inter nubila condit," the tinuance 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.

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 conIcerning 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

years, there was an intermission of impositions, as appeareth both by records and the custom-books.

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 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 we 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.

To which I answer; both that we have in effect an equal number of years to countervail them, namely, one hundred years in the times of the three kings Edwards added to sixty 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 an 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.

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.

To labour to persuade you, I will not: for I know not into what form to cast my speech. If I should enter into a laudative, though never so due and just, of the king's great merits, it may be taken for flattery: 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 dangerous 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 government as of liberality. These, I am sure, we will acknowledge to have come "plena manu" amongst us all, and all those whom we represent; and, therefore, it is every man's head in this case that must 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.

VOL. II.-36

2A2

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,

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 business; 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.

The second proposition, is touching the charge of coinage; wherein it was confidently avouched by the merchants, that if the coinage were brought from two shillings unto eighteen pence, as it was in Queen Elizabeth's time, the king would gain more in the quantity than he should lose in the price: and they aided themselves with that argument, that the king had been pleased to abate his coinage in the other metal, and found good of it: which argument, though it doth admit a differ ence, because that abatement was coupled with

the raising of the price, whereas this is to go alone; yet, nevertheless, it seemed the officers of the mint were not unwilling to give way to some abatement, although 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.

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 fifth proposition was this: It was warranted by the laws of Spain, to bring in silver for corn or victuals; it was propounded that his majesty would restrain exportation of corn "sub modo," except they bring the silver which resulted thereof, unto his mint; that trade being commonly so beneficial, as the merchant may well endure the bringing of the silver to the mint, although it were at the charge of coinage, which it now beareth further, as incident to this matter. There was revived by the merchants, with some instance, the ancient proposition, concerning the erection of granaries for foreign corn, forasmuch as, by that increase of trade in corn, the importation of silver would likewise be multiplied.

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 employ-in foreign parts. To trouble your lordships ment, 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 sixth proposition was, That upon all license of forbidden commodities, there shall be a rate set of silver to be brought into the mint which, nevertheless, may seem somewhat hard, because it imposeth upon the subject that which causeth him to incur peril of confiscation

further with discourses which we had of making foreign coins current, and of varying the king's standard to weight, upon the variations in other states, and repressing surfeit of foreign commodities, that our native commodities, surmounting the foreign, may draw in treasure by way of overplus; they be commonplaces so well known to your lordships, as it is enough to mention them only.

There is only one thing more, which is, to put your lordships in mind of the extreme excess in the wasting of both metals, both of gold and silver foliate, which turns the nature of these metals, which ought to be perdurable, and makes them perishable, and, by consumption, must be a principal cause of scarcity in them both; which, we conceive, may receive a speedy remedy by his majesty's proclamation.

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 but 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, Lastly, We are humble suitors to your lordthe importation would cease; but this objection ships, that for any of these propositions, that was well answered, that it is not gain altogether, your lordships should think fit to entertain in but a necessity of speedy payment, that causeth consultations, your lordships would be pleased the merchant to bring in silver to keep his credit, to hear them debated before yourselves, as being and to drive his trade: so that if the king keep matters of greater weight than we are able to his fourteen days' payment at the mint, as he judge of. And so, craving your lordships' pardon always hath done, and have, likewise, his ex- for troubling you so long, we commend your changers for those moneys, in some principal lordships to God's goodness.