The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments and Dedicatory
• A Note On the Texts, Editions, and Translations
• Introduction
• Chronology of Events
• Editions of Coke’s Works
• Mottoes and Crests of Sir Edward Coke
• I: Reports
• Part One of the Reports
• The Preface to the Reader.
• Shelley’s Case.
• Part Two of the Reports
• (preface) to the Learned Reader.
• Manser’s Case.
• The Case of Bankrupts.
• |[46 A] the Archbishop of Canterbury’s Case. *
• Part Three of the Reports
• (preface) to the Reader.
• Heydon’s Case.
• Fermor’s Case.
• Part Four of the Reports
• (preface) to the Reader.
• The Lord Cromwell’s Case. *
• Cutler V. Dixon.
• Vaux’s Case.
• Slade’s Case.
• Part Five of the Reports
• (preface) to the Reader.
• Foster’s Case.
• Cases of By-laws and Ordinances the Chamberlain of London’s Case.
• Clark’s Case.
• The Case of Market-overt.
• Semayne’s Case.
• Rooke’s Case.
• Pinnel’s Case.
• |[125 A] the Case De Libellis Famosis.
• Part Six of the Reports
• (preface) to the Reader.
• Jentleman’s Case.
• Part Seven of the Reports
• (preface) Deo, Patriae, Tibi. 2
• Calvin’s Case, Or the Case of the Postnati. 1
• The Case of Swans.
• Penal Statutes.
• Part Eight of the Reports
• (preface) Deo, Patriae, Tibi. 3
• Vynior’s Case. *
• Dr. Bonham’s Case.
• The Case of Thetford School, &c.
• Part Nine of the Reports
• (preface) Deo, Patriae, Tibi. 3
• William Aldred’s Case.
• John Lamb’s Case.
• Mackalley’s Case. (in the Killing of the Sergeant of London.)
• Part Ten of the Reports
• (preface) Deo, Patriae, Tibi. 5
• The Case of Sutton’s Hospital.
• The Case of the Isle of Ely.
• Part Eleven of the Reports
• (preface) Deo, Patriae, Tibi. 4
• The Lord De La Warre’s Case.
• The Case of the Tailors of Habits &c. of Ipswich.
• The Case of Monopolies.
• James Bagg’s Case.
• Part Twelve of the Reports
• Ford and Sheldon’s Case.
• Case of Non Obstante, Or Dispensing Power.
• Q. If High Commissioners Have Power to Imprison.
• Floyd and Barker.
• Of Oaths Before an Ecclesiasticall Judge Ex Officio.
• Of Pardons.
• Customs, Subsidies, and Impositions.
• Buggery. 1
• Premunire.
• Nicholas Fuller’s Case.
• Sir Anthony Roper’s Case.
• Sir Anthony Roper’s Case.
• The Case of Heresy.
• Langdale’s Case.
• Mouse’s Case.
• Prohibitions Del Roy.
• The Lord Aburgaveney’s Case.
• Of Convocations.
• Proclamations.
• Thomlinson’s Case.
• Walter Chute’s Case.
• Sir Stephen Procter’s [proctor’s] Case.
• Exaction of Benevolence.
• Part Thirteen of the Reports
• (preface) to the Reader.
• Prohibitions.
• The Case De Modo Decimandi, 1 and of Prohibitions, Debated Before the Kings Majesty.

Customs, Subsidies, and Impositions.

(Bates’s Case).

Commentary.

First Published in the Reports, volume 12, page 33.

Ed.: Note of a conference between Coke and Popham, then the Chief Justice of the King’s Bench, in which they resolve that the King is limited in placing tariffs and customs on goods entering the kingdom, unless the proceeds are for the benefit of trade, that imports of goods except wool and leather are free of customs under the Common Law, and that money raised in this manner cannot be given to a subject. Taxes for maintenance of public structures should be apportioned to those who benefit from them. Further, they agreed that the King may prohibit a foreigner from entry but only for the public good.

Customs, Subsidies, and Impositions.Note, upon conference between Popham, chief Justice, and my self, upon a Judgment given lately in the Exchequer, concerning the imposition of Currants: And upon consideration of our Books, and of Statutes to this purpose: It appeared to us that the rule of the Common Law is in the Register, Title Ad quod Dampnum, and F. N. B. 222a. quod patria magis solito non oneretur seu gravetur.1 Also there is another Rule, that the King may charge his people of this Realm without speciall assent of the Commons, to a thing which may be of profit to the common people, but not to their charge; As it is held in the 13 of Hen. 4. 16. Et Statutum de Tallagio non concedendo, Nullum Tallagium, seu Auxilium per nos, seu heredes nostros ponatur seu levetur absque voluntate et assensu Parliamenti. Et Magna Charta, cap. 30. Omnes Mercatores (Nisi publice antea Prohibiti fuerint) habeant Salvum et securum conductum abire de Anglia et venire in Angliam, et morari et ire per Angliam, tam per terram quam per aquam, ad eniendum et vendendum sine omnibus malis Toluetis per antiquas et rectas consuetudines, praeterquam in Tempore Guerrae;2 which Statutehathbeen confirmed more than thirty times by severall Acts of Parliament, vide le Statute 25 Ed. 1. 3 Ed. 1. in turri, 9 Ed. 3. cap. 1, & 2. 14 Ed. 3. 2. 25 Ed. 3. cap. 2. &c. The effect of which is, that every Merchant of this Realm, or other, may freely buy, sell, and passe the Sea with all their Merchandizes, paying the Customs of ancient time used. Queen Mary put an imposition upon Cloathes, which the 1 Eliz. Dyer 165. was moved and not resolved, vide 31 Hen. 8. Dyer fol. 43. & 1 Eliz. 165. Magna Custuma et parva Custuma,3vide 9 Hen. 6. 12 & 35. And note there the saying of Babington. Note the 1 Eliz. Dyer 165. there was Antiqua sive magna Custuma4 at the Common Law, scil. for Wools, wool-Fels, and Leather, and this was equall to strangers as well as Denizens. And in the time of Ed. 1. a Merchant stranger, grants over the said Customs, 3s. 4d. which is called Nova seu parva Custuma.5

Upon all which and divers Records which we had seen, it appeared to us, that the King cannot at his pleasure put any Imposition upon any Merchandize to be imported into this Kingdom, or exported, unlesse it be for advancement of Trade and Traffic, which is the life of every Island, Pro bono publico.6 As if in foreign parts any imposition is put upon the Merchandizes of our Merchants, Non pro bono publico,7 and for to make equality, for the purpose to advance Trade and Traffick, the King may put an Imposition upon their Merchandizes, for this is not against any of the Statutes which were made for advancement of merchandize, or of the Statutes which were made for advancement of Merchandize, or of the Statute of Magna Charta, cap. 30. which is, Si aliqui Mercatores de terra contra nos guerrina inveniantur in terra nostra in principio guerrae attachientur, &c. Quo modo mercatores terrae nostrae tractantur qui nunc inveniantur in terra illa, contra nos guerrina: Et si nostra salvi sunt ibi, illi salvi sunt in terra nostra;8 for the end of all such restraints is Salus populi:9 And so in the case of Currants, which was now lately adjudged in |[34] the Exchequer: also in the case of Customer Smith, which was adjudged in the Exchequer, in the reign of Queen Elizabeth both the Impositions were imposed, upon the said reason to make equality, for this was the truth of both cases (Scil.) The advancement of Trade and Traffick, and for this cause such Impositions were lawfull.

And it was clearly resolved by us, that such Impositions so put, cannot be demised or granted to any Subject, for this, that it is to augment and decrease, or be quite taken away upon just occasion for advancement of Merchandize. And this was one of the reasons in Customer Smiths case, that it could not be enused; also it was assessed after the Demise.

And although that the King may prohibit any person in some cases with some Commodities to passe out of the Realm, yet this cannot be where the end is private, but where the end is publick, Viz. To restrain the person for this, that, Quam plurima nobis et Coronae nostrae prejudicialia in partibusexteris prosequi intendit,10 and to restrain any Merchandizes either in time of Dearth, or in time of War, for Necessitas est lex temporis.11

It appeared unto us also, that at the Common Law no Custom was paid, but only for wools, Wool-fels, and Leather, which is called in Magna Charta, Recta consuetudo;12 and all others are there called Mala tolneta.13 which in the Statute De Tallagio non concedendo is called Male. And at the beginning of the Raign of Kings, it hath for a long time been used, by authority and consent of Parliament, to grant to the King certain subsidies of Tonnage andPoundage, for term of his life, which began in such form, 2 & 3 Hen. 5. in the 31 Hen. 6. c. 8. & 12 Ed. 4. c. 3. for the Defence of the Realm, and maintenance of certain Wars, by act of Parliament, which proves, that the King by his own power cannot impose it, but by consent of Parliament; but such subsidy of Tonnage and Poundage might be granted by the King so long as he lived; for this, that this is limited and given to the King in certain: But an Imposition put for equality, as hath been said, hath not any certain continuance, but is to be augmented, diminished, or taken away, for the benefit of the Commonwealth: And for that cause it cannot be demised, vide 31 Hen. 8. Dyer 43. 1 Mar. D. 92. 1 Eliz. Dyer. 165. 2, & 3 P. & M. D. 128. 12 Eliz. Dyer. 296. 23 Eliz. Dyer. 375. 45 Ed. 3. cap. 4. 27 Ass. pl. 44. Register 192, &c.

Vide M. Ch. cap. 30. they are called Consuetudines, et per vocabulum artis,14 they are called Custuma, vide le Statute 51 Hen. 3. Title Exchequer in Rastall: It appears that there were ancient Customs, and those were for Wools, Wool-fels, and Leather, vide le Statute 9 Ed. 3. cap. 2. That all Charters and Letters Patents against free Trade and Traffick, made, or to be made, are void.

Vide Fortescue in his Comment of the Lawes of England, cap. 36. fol. 43. Neque Lex per se vel per ministros suos Tallagia, subsidia, aut quaevis alia onera imponit Legeis suis aut leges eorum mutat, vel novas condit, sine concessione et assensu totius Regni sui in Parliamento suo expresso, &c.15vide fol. 13. cap. 9.

And note for the benefit of the Subject, the King may make an Imposition or Toll within the Realm, to repair High-waies, Bridges, and to make Walls for defence: But then the summ imposed ought to be proportionable to the benefit: And this appears the 13 Hen. 4. 16. So the Imposition for equality ought to be for the public good, see the Charter 31 Ed. 1. which is called Charta mercatoria, ex Rot. mercator. an. 31 Ed. 1. n. 42. Patents 3 Ed. 1. n. 1 et 9. de sacco lanae dimidium marcae; lasta coriorum, 1 Mark, &c. Fines 3 Ed. 1. n. 24. intus et non in dorso, vide Rot. Parliament. an. 13 Ed. 3.16 No new Enhancement of Customs without |[35] common consent: And in 22 Ed. 3. n. 8. against new Customs and Impositions, and that Merchants may freely passe, &c. And in the Parliament An. 8 Hen. 6. n. 29. Amongst the new Impositions granted by Henry the fifth upon Merchandizes coming to Burdeaux: And Parliament 28 Hen. 6. n. 35. the Duke of Somerset accused for causing the King to grant unto Sir Peirce Bracy an Imposition of Wines.

Parl. 9 R. 2. n. 30. against a Patent made to the Lieutenant of the Tower, by colour of which he took Custom of Wine, Oysters, and other Victuals to be void.

29 Ed. 3. 11 n. Ex Rot. Parliamenti, Subsidy of Wools granted for six years, so as during the same time no other aid or imposition be laid upon the Commons.

Parliament 5 Ed. 3. n. 17, 18, 19. against new Impositions upon Staple Commodities, Parl. 22 Ed. 3. n. 31. against Alnage of Worsteds, 5 Ed. 3. n. 163. against all new Impositions, and 5 Ed. 3. n. 191. 38. Ed. 3. n. 26. Rot. Parl. against unreasonable Impositions.

Parl. 7 Ric. 2. n. 35, 36. 9 Ric. 2. n. 30. No Inquisitions or Taxes without consent of Parliament.

Note 2 Ric. 2 Parl. apud Glocestriam, act 25. Subsidy only for defensive Wars, not for invasive, 1 R. 2. Parl. accord. 1 Ric. 3. against Benevolence, vide Claus. 4 Ed. 3. n. 22. bis.

[1. ][Ed.: that the country should not be more burdened or harmed than is usual.]

[2. ][Ed.: The Statute for not granting tallage [provides that] no tallage or aid shall be imposed or levied by us or our heirs without the will and consent of parliament.

And Magna Carta, ch. 30: All merchants (unless they were openly prohibited before) shall have safe and sure conduct to leave England, and come into England, and to stay and go throughout England, both by land and by water, to buy and sell without any evil tolls, by the ancient and rightful customs, except in time of war;]

[3. ][Ed.: Great customs and petty customs,]

[4. ][Ed.: An ancient or great custom.]

[5. ][Ed.: A new or petty custom.]

[6. ][Ed.: For the public good.]

[7. ][Ed.: Not for the public good.]

[8. ][Ed.: If any merchants from a land at war with us are found into our land at the beginning of the war, they shall be attached, etc. (until it is known) how the merchants of our land are treated when they are found in the land making war against us; and if our merchants are safe there, they shall be safe in our land.]

[9. ][Ed.: The weal of the people.]

[10. ][Ed.: That he intends to pursue many things prejudicial to us and to our crown in foreign parts,]

[11. ][Ed.: necessity is the Law of the time.]

[12. ][Ed.: Rightful custom.]

[13. ][Ed.: Evil toll.]

[14. ][Ed.: Customs; and in technical vocabulary.]

[15. ][Ed.: Nor does the king, either by himself or his ministers, impose tallages, subsidies, or any other burdens whatever upon his liege subjects, or change their Laws, or make new ones, without the concession and consent of his whole realm expressed in his parliament, etc.]

[16. ][Ed.: The Merchants’ Charter, from the merchants’ rolls of the thirty-first year of Edward I, number 42. Patent (roll) for the third year of Edward I, numbers 1 and 9: for a sack of wool, half a mark; for a last of leather, one mark, and so forth. Fine (rolls) for the third year of Edward I, number 24, inside and not on the dorse. See the rolls of parliament for the thirteenth year of Edward III.]