[518] Dyer, fol. 165. An argument of the great lawyer Plowden in this case of the queen's increasing the duty on cloths is in the British Museum, Hargrave MSS. 32, and seems, as far as the difficult handwriting permitted me to judge, adverse to the prerogative.
[519] This case I have had the good fortune to discover in one of Mr. Hargrave's MSS. in the Museum, 132, fol. 66. It is in the handwriting of Chief Justice Hyde (temp. Car. I.), who has written in the margin: "This is the report of a case in my lord Dyer's written original, but is not in the printed books." The reader will judge for himself why it was omitted, and why the entry of the former case breaks off so abruptly. "Philip and Mary granted to the town of Southampton that all malmsy wines should be landed at that port under penalty of paying treble custom. Some merchants of Venice having landed wines elsewhere, an information was brought against them in the exchequer (1 Eliz.), and argued several times in the presence of all the judges. Eight were of opinion against the letters patent, among whom Dyer and Catlin, chief justices, as well for the principal matter of restraint in the landing of malmsies at the will and pleasure of the merchants, for that it was against the laws, statutes, and customs of the realm (Magna Charta, c. 30; 9 E. 3; 14 E. 3; 25 E. 3, c. 2; 27 E. 3; 28 E. 3; 2 R. 2, c. 1, and others), as also in the assessment of treble custom, which is merely against the law; also the prohibition above said was held to be private, and not public. But Baron Lake e contra, and Browne J. censuit deliberandum. And after, at an after meeting the same Easter term at Serjeants' Inn, it was resolved as above. And after by parliament (5 Eliz.) the patent was confirmed and affirmed against aliens.
[520] Bacon, i. 521.
[521] Hale's Treatise on the Customs, part 3; in Hargrave's Collection of Law Tracts. See also the preface by Hargrave to Bates's case, in the State Trials, where this most important question is learnedly argued.
[522] He had previously published letters patent, setting a duty of six shillings and eight-pence a pound, in addition to two-pence already payable, on tobacco; intended no doubt to operate as a prohibition of a drug he so much hated. Rymer, xvi. 602.
[523] State Trials, ii. 371.
[524] Hale's Treatise on the Customs. These were perpetual, "to be for ever hereafter paid to the king and his successors, on pain of his displeasure." State Trials, 481.
[525] Journals, 295, 297.
[526] Mr. Hakewill's speech, though long, will repay the diligent reader's trouble, as being a very luminous and masterly statement of this great argument. State Trials, ii. 407. The extreme inferiority of Bacon, who sustained the cause of prerogative, must be apparent to every one. Id. 345. Sir John Davis makes somewhat a better defence; his argument is, that the king may lay an embargo on trade, so as to prevent it entirely, and consequently may annex conditions to it. Id. 399. But to this it was answered, that the king can only lay a temporary embargo, for the sake of some public good, not prohibit foreign trade altogether.
As to the king's prerogative of restraining foreign trade, see extracts from Hale's MS. Treatise de Jure Coronæ, in Hargrave's Preface to Collection of Law Tracts, p. xxx. etc. It seems to have been chiefly as to exportation of corn.