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A commission to determine the right Scrogg's case. °f 'he 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.
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.
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.
That for the strangers is upon the grant 3ImercaSr8rt' of chart, mercator. of three pence in value "ultra antiquascustumas;" 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 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
17 Ed. 3.
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 conjecture: it is never recited "ultra antiquas custumas 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?
The fourth consideration is, of the manneT 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 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 ordinance by commission only, and that in the time of a weak king, and never either warranted or confirmed by parliament. Secondly, I note that petitions were made promiscuously for taking away impositions set by parliament as well as without parliament; 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 arc 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 argument 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.
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 re■ponsio 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 distinguished 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
And sometimes that they shall hold over their term prefixed or asseissed.
All which showeth that the king did not disclaim Ihem 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, some' times 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
less have perfection enough without parliament. We see their own rights to the crown which are 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 without parliament, as the taking the oath of the party 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 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 prcesumitur," 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.
A BRIEF SPEECH
IN THE END OF THE SESSION OF PARLIAMENT 7 JACOBI.
PERSUADING SOME SUPPLY TO BE OIVBN TO HIS MAJESTY: WHICH SEEMED THE!» TO STAND UPON DOUBTFUL
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 danger
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 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.
THE LORDS OF THE COUNCIL,
UPON INFORMATION GIVEN
TOUCHINO THR SCARCITY OF SILVER AT THE MINT AND REFERENCE TO THE TWO CHANCELLORS AND THE KING'S SOLICITOR.
IT MAY PLEASE TOUR LORDSHIPS,
According unto your lordships' letters unto us directed, grounded upon the information which his Majcsly 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 tonching 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 difference, 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.
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 j 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 rf corn sub modo, except they bring the silver wiiich 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 farther, 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 sixth proposition was, That upon all licence 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 in foreign parts. To trouble your lordships farther 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 common places 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.
Lastly, We are humble suitors to your lordships, that for any of these propositions, that your lordships should think fit to entertain in consultations, your lordships would be pleased to hear them debated before yourselves, as being matters of greater weight than we are able to judge of. And so craving your lordships' pardon for troubling you so long, we commend your lordships to God's goodness.
May It Please Tour Majesty,
I Find it a positive precept of the old law, that there should be no sacrifice without salt: the moral whereof, besideB the ceremony, may be, that God is not pleased with the body of a good intention, except it be seasoned with that spiritual wisdom and judgment, as it be not easily subject to be corrupted and perverted: for salt, in the Scripture, is a figure both of wisdom and lasting. This cometh into my mind upon this act of Mr. Sutton, which seemeth to mc as a sacrifice without salt; having the materials of agood intention, but not powdered with any such ordinances and institutions as may preserve the same from turning corrupt, or at least from becoming unsavory, and of little use. For though the choice of the feoffees be of the best, yet neither can they always live; and the very nature of the work itself, in the vast and unfit proportions thereof, being apt to provoke a misemploy ment; it is no diligence of theirs, except there be a digression from that model, that can excuse it from running the same way that gifts of like condition have heretofore done. For to design the Charterhouse, a building fit for a prince's habitation, for an hospital, is all one as if one should give in alms a rich embroidered cloak to a beggar. And certainly a man may see " tanquam quee oculis cernuntur," that if such an edifice, with six thousand pounds revenue, be erected into one hospital, it will in small time degenerate to be made a preferment of some great person to be master, and he to take all the sweet, and the poor to be stinted, and take
hut the crumbs; as it comes to pass in divers hospitals of this realm, which have but the names of hospitals, and are only wealthy benefices in respect of the mastership; but the poor, which is the propter quid, little relieved. And the like hath been the fortune of much of the alms of the Roman religion in their great foundations, which being begun in vain-glory and ostentation, have had their judgment upon them, to end in corruption and abuse. This meditation hath made me presume to write these few lines to your Majesty; being no better than good wishes, which your Majesty's great wisdom may make something or nothing of.
Wherein I desire to be thus understood, that if this foundation, such as it is, be perfect and good in law, then I am too well acquainted with your Majesty's disposition, to advise any course of power or profit that is not grounded upon a right: nay farther, if the defects be such as a court of equity may remedy and cure, then I wish that as St. Peter's shadow did cure diseases, so the very shadow of a good intention may cure defects of that nature. But if there be a right, and birthright planted in the heir, and not remediable by courts of equity, and that right be submitted to your Majesty, whereby it is both in your power and grace what to do; then I do wish that this rude mass and chaos of a good deed were directed rather to a solid merit, and durable charity, than to a blaze of glory, that will but crackle a little in talk, and quickly extinguish.
And this may be done, observing the species of Mr. Sutton's intent, though varying in individuo: