Argument of Chief Baron Fleming.

Source.—State Trials. Vol. ii., p. 389.

To the king is committed the government of the realm and his people; and Bracton saith, that for his discharge of his office, God had given to him power, the act of government, and the power to govern. The king's power is double, ordinary and absolute, and they have several laws and ends. That of the ordinary is for the profit of particular subjects, for the execution of civil justice, the determining of meum; and this is exercised by equity and justice in ordinary courts, and by the civilians is nominated jus privatum and with us, common law: and these laws cannot be changed, without parliament; and although that their form and course may be changed, and interrupted, yet they can never be changed in substance. The absolute power of the king is not that which is converted or executed to private use, to the benefit of any particular person, but is only that which is applied to the general benefit of the people, and is salus populi; as the people is the body, and the king the head; and this power is guided by the rules, which direct only at the common law, and is most properly named Policy and Government; and as the constitution of this body varieth with the time, so varieth this absolute law, according to the wisdom of the king, for the common good; and these being general rules and true as they are, all things done within these rules are lawful. The matter in question is material matter of state, and ought to be ruled by the rules of policy; and if it be so, the king hath done well to execute his extraordinary power. All customs, be they old or new, are no other but the effects and issues of trades and commerce with foreign nations; but all commerce and affairs with foreigners, all wars and peace, all acceptance and admitting for current foreign coin, all parties and treaties whatsoever, are made by the absolute power of the king; and he who hath power of causes, hath power also of effects. No exportation or importation can be, but at the king's ports. They are the gates of the king, and he hath absolute power by them to include or exclude whom he shall please; and ports to merchants are their harbours, and repose; and for their better security he is compelled to provide bulwarks and fortresses, and to maintain, for the collection of his customs and duties, collectors and customers; and for that charge it is reason, that he should have this benefit. He is also to defend the merchants from pirates at sea in their passage. Also, by the power of the king they are to be relieved, if they are oppressed by foreign princes, for they shall have his treaty, and embassage; and if he be not remedied thereby, then lex talionis shall be executed, goods for goods, and tax for tax; and if this will not redress the matter, then war is to be attempted for the cause of merchants. In all the king's courts, and of other princes, the judges in them are paid by the king, and maintained by him to do justice to the subjects, and therefore he hath the profits of the said courts. It is reasonable that the king should have as much power over foreigners and their goods, as over his own subjects; and if the king cannot impose upon foreign commodities a custom, as well as foreigners may upon their own commodities, and upon the commodities of this land when they come to them, then foreign states shall be enriched and the king impoverished, and he shall not have equal profit with them; and yet it will not be denied, but his power herein is equal with other states.

Mr. Yelverton's Argument.

Source.—State Trials. Vol. ii., p. 482.

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 of itself. It will not be denied, that the power of imposing hath so great a trust in it, by reason of the mischiefs may grow to the common-wealth by the abuses of 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 is 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: he cannot revoke it, nor any of his successors; but by his power in parliament he may defeat and avoid it; and therefore that is the greater power.