Excerpts from:
By the Law of England, we
understand not only our customary Common Law, and our Statutes of
England, which are Native and peculiar to our Nation only, but such
other Laws also as be common to other Nations as well as us; have been
received and used time out of mind by the Kings and people of England
in divers cases, and by such ancient usage, are become the Laws of
England in such cases; namely, the general Law of Nations, and the
Law-Merchant which is a branch of the Law, the Imperial or Civil Law,
the Common or Ecclesiastical Law, every of which Laws so far forth as
the same have been received and used in England, time out of mind, may
properly be said to be the Laws of England.
…
Jus Gentium, or the general Law of Nations is of equal
force in all Kingdoms, for all Kingdoms had their beginning by the Law
of Nations; therefore it standeth with good reason that the Law of
Nations should be of force, and of like force in all Kingdoms; and for
this cause in the Realms subject to the Crown of England, the Law of
Nations also is in force in such cases, especially wherein the King
himself, or his Subjects, have correspondence or commerce with other
Nations who are not bound in those cases by the Municipal Laws of
England.
…
By the Law of Nature all
things were common, and all persons equal, there was neither Meum
nor Tuum [mine nor thine], there
was neither King nor Subject; then came in the Law of Nations, which
did limit the Law of Nature, and brought in property, which brought in
community of things, which brought in Kings and Rulers, which took
away equality of persons, for property caused Contracts, Trade, and
Traffic, which could not be ministered without a King or Magistrate;
so as the first and principal cause of making Kings, was to maintain
property and Contracts, and Traffic, and Commerce amongst men.
Hereupon by the same Law of Nations, Tributes and Customs became due
to the King or Prince to maintain him in his place of Government,
quasi Ministerii sui stipendia [like a minister's
salary], saith the School-man, Deo
Minister est tibi in bonum ideo & tributa potestas, saith
Saint Paul, and all these things, namely Property, and Contract, and
Kings, and Customs, were before any positive Law was made; then came
the positive Law, and limited the Law of Nations, whereas by the Law
of Nations the King had an absolute and unlimited power in all matters
whatsoever.
By the positive Law the King himself was pleased to limit and stint
his absolute power, and to tie himself to the ordinary rules of the
Law, in common and ordinary cases, worthily and princely, according to
the Roman Emperor, Dignissimum Principe Rex se allegatum legibus
consiteri, retaining and reserving notwithstanding in many points
that absolute & unlimited power which was given unto him by the Law of
Nations, and in these cases or points, the King's
Prerogatives do consist; so as the King's
Prerogatives were not granted unto him by the people, but reserved by
himself to himself, when the positive Law was first established; and
the King doth exercise a double power, viz. an absolute power, or
Merum Imperium, when he doth use Prerogatives only, which is not
bound by the positive Law; and an ordinary power of Jurisdiction,
which doth co-operate with the Law, & whereby he doth minister Justice
to the people, according to the prescript rule of the positive Law; as
for example, the King doth not condemn all Malefactors, but by the
rule of the positive Law; but when the Malefactor is condemned by the
Law, he giveth him a pardon by his absolute Prerogative.
Again, the King doth punish the breach of the Peace within the Land,
by the ordinary course of the Common Law, but he doth make War and
Peace with Foreign Nations, Quod pertinet ad liberum jus gladii
[what pertains to the free right of the sword]
as a Doctor speaketh, by that absolute and unlimited power, which the
Law of Nations hath given unto him.
Again, the King doth establish the Standard of Money by virtue of his
Prerogative only, for the Common Law doth give no rule touching the
matter, or form, or value thereof; but when those Monies are dispersed
into the hands of the Subjects, the same do become subject in respect
of the property thereof, to the ordinary rules
of the Common Law.
Again, the right of Free-hold and all Inheritance, and all Contracts
real and personal, arising within the Land, are left to be decided by
the positive Law of the Land; but the Government and ordering of
Traffic, Trade, and Commerce, both within the Land and without, doth
rest in the Crown as a principal Prerogative, wherein the King is like
to Primum mobile [first mover], which
carrieth about all the inferior Spheres in his superior Course, and
yet doth suffer all the Planets underneath him to finish all their
divers and particular courses; or rather he doth imitate the Divine
Majesty, which in the Government of the world doth suffer things for
the most part to pass according to the order and course of Nature, yet
many times doth shew his extraordinary power in working of miracles
above Nature.
And truly, as the King doth suffer the customary Law of England to
have her course on the one side, so doth the same Law yield, submit,
and give way to the King's Prerogative over the other; and therefore
in the 1 Hen. 7. fol. 23. there is a rule, That every Custom is void
in Law quae exaltat in praerogativum Regis
[which infringes the royal prerogative], which is an argument,
that the King's Prerogative is more ancient than the customary Law of
the Realm; besides, the power of the King's Prerogative above the
Common Law doth appear in this, That whereas all privileges do flow,
and are derived from the King's Prerogative, and every privilege in
one point or other privat communem legem [lessen
common law], yet the Common Law doth admit and allow of
privileges granted by virtue of the King's Prerogative.
…
CHAP. XIX.
That Queen Elizabeth also used her Prerogative in laying Impositions
upon Merchandizes.
Queen Elizabeth also by virtue of the same Prerogative, did not only
continue the Impositions laid by Queen Mary upon Cloths and French
Wines, but did raise other Impositions of sundry sorts of Merchandizes
by the same absolute power; namely, upon every Tun of sweet Wines,
upon every Tun of Rhenish Wines, upon every Kental
of Allom, which during the time of the prudent Princess were paid and
received without question. Besides, the same Queen, upon complaint
made unto her in the twelfth year of her Reign, That the State of
Venice did impose one Ducket [ducat] upon every
hundred of Currants exported out of their Dominions by the Merchants
of England, did by her Letters Patents, grant unto the English
Merchants who traded into the Levant, That they only, and their
Assigns, might bring Currants into England. The English Merchants
having this privilege, did take five shillings and six pence upon
every hundredweight of Currants brought into England by Strangers,
which was duly paid, although it was taken by the Merchants by virtue
of their privilege only of sortiori; yet it ought to have been
paid if it had been payable to the Queen her self, as the Lord Chief
Baron Fleming did observe in his Argument of
Bates's Case of Currants in the Court
of Exchequer in England.
CHAP. XX. That our Sovereign Lord King James hath by
virtue of the same Prerogative, without Act of Parliament, laid
several Impositions upon Merchandizes.
His Majesty likewise when he came to be King of England finding his
Crown to be seized of this Prerogative, and finding withal the
necessary charge of the Crown exceedingly to increase, did for the
supportation thereof, not only continue the Impositions laid by Queen
Mary, and Queen Elizabeth, but also laid new Impositions upon sundry
sorts of Merchandizes, over and above all Customs and Subsidies
formerly due and payable for the same: And these are the Impositions
now; the principal of these is twelve pence upon the pound, or a
second poundage set upon Merchandizes as well exported as imported, by
Letters Patents 28. July, in the sixth year of his Majesties Reign;
but how is it set and imposed, surely with such moderation, and
limitations, and such receptations full of grace and favour, as no
Monarch or State in the world did ever impart to their Subjects the
like in the like case; for, besides other gracious clauses contained
in the same Letters Patents, All commodities serving either for food,
or sustenance of the Kings people, or setting the poor on work, or for
munition or defence of the Realm, or for maintenance of Navigation, or
which especially tends to the enriching of a Kingdome, are excepted
and discharged by this Imposition.
As for the special Impositions which his Majesty hath set upon certain
foreign commodities, as Currants, Log-wood, Tobacco, &c. As touching
the first of these, the Imposition hath been adjudged lawful in the
Court of Exchequer of England: And for the other commodities, they are
of such nature, as no man ever made question but that the Impositions
set upon them were lawful. Besides these Impositions laid in England,
his Majesty by his Prerogative only, since the beginning of his Reign,
received the Impost of Wines in Ireland; and hath likewise, to make
equality of Trade in that Realm, laid an Imposition of twelve pence on
the pound of all other Merchandizes imported and exported out of the
Ports of Dublin, Waterford, Drogheda, and Galway, the Citizens of
which Cities and Towns are exempted and discharged of Poundage granted
by Act of Parliament there, which Imposition was never impugned in
Ireland, but hath since the setting thereof been levied and paid
without contradiction. And that wee see how long the Crown of England
hath been seized of this Prerogative, in laying Impositions upon
Merchandizes, and how the same hath been put in practice by the most
prudent Princes since the Conquest.
…
Is not the Kings wisdom only trusted with the absolute power of making
War and Peace with foreign Nations, whereby he may when he pleaseth
interrupt all Trade of Merchandizing? Is not the King alone trusted
with the like power of making and decrying of monies which is the only
Medium of all Traffic and Commerce? Is not he solely and without
limitation trusted with the nomination and creation of all Judges and
Magistrates, who are to give Judgement in cases concerning the
Liberties, Lands, and Lives of all his Subjects? hath not he a sole
and unlimited power to pardon all Malefactors, to dispense with all
penal Laws, to distribute all Honours, to grant to whom he pleaseth
Protections, Denizations, Exemptions, not only from Juries, but from
all other Services of the Common-wealth? and yet these Prerogatives if
the same be not used with judgement and moderation, may prove
prejudicial to the Common-wealth, as well as the laying of Impositions
upon Merchandizes. Shall therefore any undutiful Subject make these
conclusions? The King may have a continual War with Foreign States and
Princes, and so continually corrupt all courses of Merchandizes;
Ergo, he shall lose his Prerogative of making War or Peace, when
himself in wisdom shall think fit so to do. The King may decry all
monies of Gold and Silver in Bullion, and establish a Standard of
Copper or Leather; therefore he shall coin no monies without the
consent of the people. The King may if he please, break up all the
Prisons, pardon all Offenders, and so give impunity to all Offenders;
Ergo, he shall pardon no Malefactors by Act of Parliament.
These are found absurd, or rather wicked conclusions, à posse ad
esse [from may do to does] is an absurd
Argument, but à posse & nolle nobile est [from
may do to does not is noble].
The Law presumes the King to be so noble and so wise, that all Acts
done by him, or in his Name during his Infancy, are of as good force
in Law, as if the Law had been done in his ripest years. The Law
presumes the King to be most just in all his actions, & therefore it
hath these rules; the Prerogative of the King can do no wrong, the
King can commit no disseisin, the King can make no discontinuance, and
the like, Cor Regis in manu Domini,
saith Solomon, and therefore the Law presumeth, that God will ever
direct him to that which is just; is it not then too much curiosity to
instruct where the Law trusteth, and too much presumption to presume
against the presumption of the Law, especially in the time of such a
King who is the wisest, and justest, the most religious, and most
gracious King that ever reigned in Europe?
Can any man imagine that so great a Master in the Art of Government,
the most prudent King of great Britain & Ireland, the two greatest
Islands in this Hemisphere, and seated most commodiously for Traffic,
which all the World knowing that the duties paid unto him for
Merchandizes, are the most certain, settled, and assured, and withal
the best and richest part of his Revenues at this day, will lay
heavier Impositions upon Merchandizes than they are able to bear, and
so destroy all Trade and Commerce?
…
… and therefore it may be properly said, That the King's Prerogative in this point is as strong as Samson, it cannot be bound; for though an Act of Parliament be made to restrain it, and the King doth give his consent unto it, as Samson was bound with his own consent, yet if the Philistines come, that is, if any just or important occasion do arise, it cannot hold or restrain the Prerogative, it will be as thread, and broken as easy as the bonds of Samson; and again, Ius imponendi vectigalia inhaeret sceptro, saith the Law Imperial, & quod Sceptro inhaeret non potest tolli nisi sublato Sceptro [the right of imposing taxes inheres in the scepter, and what inheres in the scepter cannot be taken away unless saving the scepter]. The King's Prerogatives are the Sunbeams of his Crown, and as inseparable from it as the Sunbeams from the Sun; The King's Crown must be taken from his head, before his Prerogative can be taken away from him; Samson's hair must be cut off, before his courage can be any jot abated. Hence it is, that neither the King's Act, nor any Act of Parliament can give away his Prerogative;…
…
Caligula the Emperor, laid an Imposition upon all Suits in Law, and took the fourth part of the value of the value of the thing sued for, and set a pain upon the Plaintiff if he compounded, or were Non-suited without his License. He likewise imposed a number of Sestertii upon every Marriage contracted or made within the whole Empire. Vespasian in meaner and more homelier matters, took by way of Imposition, a part of every poor Labourer's wages, and part of every Beggar's alms; he set likewise an Imposition upon Urine, and pleased himself with this Apothegm, Dulcis odor lucri ex re qualibet [Wherever money comes from, it smells sweet]. Severus the Emperor did impose upon the dishonest gains of the Stews [i.e. brothels], and took part of the Prostitutes there, as the Bishop of Rome doth at this day;…
[Spelling modernized].
Romans 13:6 - For for this cause pay ye tribute also: for they are God's ministers
Kental = a corruption of quintal,
a hundredweight.
Allom = alum, a chemical (aluminum sulfate) used to clarify water,
important in dyeing and papermaking
Proverbs 21:1 - The king's heart is in the hand of the Lord