enforce any man whatsoever to pay for doing that which he may lawfully do... The ports and haven-towns of England are, say they, the King's, and in regard thereof he may open or shut them upon what condition he pleases. I answer that the position that all the ports are the King's is not generally true, for subjects may also be owners of ports... But admitting the truth of the position, yet is the consequence as weak and dangerous as of any of the rest of their arguments. For are not all the gates of cities and towns and all the streets and highways in England the King's and as much subject to be open or shut at his pleasure as the ports are?... Doth it follow therefore that the King may lay impositions upon every man or upon all commodities that shall pass through any of these places? ... If the King may not exact money... for passage through the gates of cities, much less may he for passage out at the ports, which are the great gates of the kingdom, and which the subject ought as freely to enjoy as the air or the water. . . Another of their arguments is this. The King is bound to protect merchants from spoil by the enemy... It is reason therefore that his expense be defrayed out of the profit made by merchants. . . The consequence of this argument is thus far true. The law expects that the King should protect merchants: therefore it alloweth him out of merchandize a revenue for the maintenance of his charge, which is the old custom due, as at first I said, by the common law. But it is no good consequence that therefore he may take what he list, no more than he may at his pleasure increase that old revenue. ... These are the chief reasons made in maintenance of impositions. The weakness of them and their dangerous consequence you cannot but perceive, for by the same reasons taxes within the land may be as well proved to be lawful. On the contrary part you have heard the reasons against impositions fortified by many records and statutes in the point. So as I conclude that impositions, neither in the time of war or other the greatest necessity or occasion that may be, much less in the time of peace, neither upon foreign nor inland commodities of whatsoever nature, be they never so superfluous or unnecessary, neither upon merchants strangers nor denizens, may be laid by the King's absolute power, without assent of parliament, be it for never so short a time, much less to endure for ever, as State Trials, ed. 1779, vol. xi. pp. 36-51. ours... (c) Mr. Whitelocke's argument, 16101. . . . The case in terms is this. The King by his letters patents before recited hath ordained, willed and commanded, that these new impositions, contained in that book of rates, shall be for ever hereafter paid unto him, his heirs and successors, upon pain of his displeasure. Hereupon the question ariseth whether by this edict and ordinance so made by the King himself, by his letters patents of his own will and power absolute, without assent of parliament, he be so lawfully entitled to that he doth impose, as that thereby he doth alter the property of his subjects' goods, and is enabled to recover these impositions by course of law. I think he cannot; and I ground my opinion upon these four reasons. 1. It is against the natural frame and constitution of the policy of this kingdom, which is jus publicum regni, and so subverteth the fundamental law of the realm, and induceth a new form of state and government. 2. It is against the municipal law of the land, which is jus privatum, the law of property and of private right. 3. It is against divers statutes made to restrain our King in this point. 4. It is against the practice and action of our commonwealth... For the first, it will be admitted for a rule and ground of state, that in every commonwealth and government there be some rights of sovereignty, jura majestatis, which regularly and of common right do belong to the sovereign power of that state, unless custom or the provisional ordinance of that state do otherwise dispose of them; which sovereign power is potestas suprema, a power that can control all other powers, and cannot be controlled but by itself. It will not be denied that the power 1 This speech is printed in State Trials as Yelverton's, but is shown by the report in Parl. Debates (C. S.), p. 103, to have been Whitelock's; cf. Gardiner, Hist. of England, vol. iii. p. 77. The speech was delivered on July 2 (C. J. I. p. 445). of imposing hath so great a trust in it... that it hath ever been ranked among those rights of sovereign power. Then is there no further question to be made but to examine where the sovereign power is in this kingdom; for there is the right of imposition. The sovereign power is agreed to be in the King; but in the King is a twofold power; the one in parliament, as he is assisted with the consent of the whole state; the other out of parliament, as he is sole and singular, guided merely by his own will. And if of these two powers in the King one is greater than the other, and can direct and control the other, that is suprema potestas, the sovereign power, and the other is subordinata. It will then be easily proved, that the power of the King in parliament is greater than his power out of parliament, and doth rule and control it; for if the King make a grant by his letters patents out of parliament, it bindeth him and his successors; but by his power in parliament he may defeat and avoid it, and therefore that is the greater power. If a judgment be given in the King's Bench by the King himself, as may be and by the law is intended, a writ of error to reverse this judgment may be sued before the King in parliament... So you see the appeal is from the King out of parliament, to the King in parliament: . . . for in acts of parliament, be they laws, grounds or whatsoever else, the act and power is the King's, but with the assent of the Lords and Commons, which maketh it the most sovereign and supreme power above all and controllable by none. Besides this right of imposing, there be others in the kingdom of the same nature. As the power to make laws; the power of naturalization; the power of erection of arbitrary government; the power to judge without appeal; the power to legitimate, all which do belong to the King only in parliament... It hath been alleged that those which in this cause have enforced their reasons from this maxim of ours, that the King cannot alter the law, have diverted from the question. I say under favour they have not, for that in effect is the very question now in hand. For if he alone out of parliament may impose, he altereth the law of England in one of these two main fundamental points. He must either take his subjects' goods from them, without assent of the party, which is against the law, or else he must give his own letters patents the force of a law, to alter the property of his subjects' goods, which is also against the law... So we see that the power of imposing and power of making laws are convertibilia and coincidentia, and whosoever can do the one, can do the other . . . And if this power of imposing were quietly settled in our kings, considering what is the greatest use they make of assembling of parliaments, which is the supply of money, I do not see any likelihood to hope for often meetings in that kind, because they would provide themselves by that other means The last assault made against the right of the kingdom, was an objection grounded upon policy, and matter of state; as that it may so fall out that an imposition may be set by a foreign prince that may wring our people, in which case the counterpoise is, to set on the like here upon the subjects of that prince; which policy, if it be not speedily executed but stayed until a parliament, may in the meantime prove vain and idle and much damage may be sustained that cannot afterwards be remedied. This strain of policy maketh nothing to the point of right. Our rule is in this plain commonwealth of ours, oportet neminem esse sapientiorem legibus. If there be an inconvenience, it is fitter to have it removed by a lawful means than by an unlawful. But this is rather a mischief than an inconvenience, that is, a prejudice in present of some few but not hurtful to the commonwealth. And it is more tolerable to suffer an hurt to some few for a short time, than to give way to the breach and violation of the right of the whole nation; for that is the true inconvenience. Neither need it be so difficult or tedious to have the consent of the parliament, if they were held as they ought or might be... State Trials, ed. 1779, vol. XI. pp. 52-61. 2. COMMISSION TO LEVY IMPOSITIONS, 1608. James, by the grace of God King [&c.], to our right trusty and right well-beloved councillor Robert, Earl of Salisbury, our High Treasurer of England, greeting. It is well known A a unto all men of judgment and understanding that the care imposed upon princes to provide for the safety and welfare of their subjects is accompanied with so great and heavy a charge as all the circumstances belonging thereunto can hardly fall under the conceit of any other than of those who are acquainted with the carriage of public affairs, and therefore this special power and prerogative (amongst many others) hath both by men of understanding in all ages and by the laws of all nations been yielded and acknowledged to be proper and inherent in the persons of princes, that they may according to their several occasions raise to themselves such fit and competent means by levying of customs and impositions upon merchandises transported out of their kingdoms or brought into their dominions either by the subjects born under their allegiance or by strangers, ... as to their wisdoms and discretions may seem convenient, (without prejudice of trade and commerce), sufficiently to supply and sustain the great charge and expense incident unto them in the maintenance of their crowns and dignities; so we at this time, out of many just and weighty considerations as well for the exonerating of the crown of divers just and due debts as for the supply of many other our urgent and important occasions known to us and our council, and now particularly for the service of Ireland, . . . have been forced to resort to some such course of raising profit upon merchandise passing outward and inward as in former times hath been usual not only by our progenitors kings and princes of this realm but also often in practice among other nations... And although we have resolved to lay some kind of impositions both upon many foreign merchandises brought into this our realm and also upon divers native commodities and merchandises, . . . yet to the intent it may appear what care we have in all things of this nature to avoid the least inconvenience or grievance that may arise to our people, we have... given special charge in the levying of the same to forbear and exempt all such merchandises as are requisite for the food and sustenance of our people or which contain matter of munition necessary for the defence of our realms. . . or any other merchandises or materials fit and proper for the maintenance and enlargement of trade and navigation... Know ye therefore that for the considerations aforesaid . . . we have |