THe Excise of all Imported commodities by the several pretended Acts and Ordinances of Excise, made in the times of the late Usurping Powers, was alwayes charged upon the first Buyer of the Commodity, and not upon the Mer­chant Importer. It being contrary both to the Na­ture of this Duty, and to the Intention of the Im­posers themselves, that the Merchant should be any wise charged therewith. Forasmuch as an Excise in its proper definition is a Tax intended to be impo­sed upon so much only of the Commodities and Merchandizes of any Nation, as comes to Actual consumption within it self, which in the hand of the Merchant is not discernable: But when it is bought from the Merchant by the Shop-keeper, or Retailer, it is alwayes to be supposed to be for Do­mestick consumption and use.

And for this Special reason as well as for that it would have been a burthen both too heavy for the Merchant to undergo to pay both Custom and Ex­cise, before he can fell his Commodity, and subject to great trouble and confusion, by reason of his ex­portation [Page 2]of much of the same Commodity again. The Powers that first Imposed this Tax, did lay the same upon the first Buyer, and not upon the Mer­chant, as by the several Schedules of those Goods, which by the said Acts and Ordinances, were made Exciseable, may fully appear. But for that by complyance between the Merchant and the first Buyer, the State (as they then called it) was subject to be much Defrauded of the said Duties, by the clandestine sale and delivery of Goods without the knowledge or cognizance of the Officers appointed to receive the same; Thereupon besides the penal­ties in such case enacted to be inflicted both upon the Buyer and Seller in case of such clandestine sale and delivery of Goods, it was thought fit for the better prevention of such fraudes to hold the Mer­chant-Importer to an annual Accompt for the quantity only of his Goods Imported, whereby to discover how, and to whom he had disposed them.

And therefore by an Article in that pretended Act made in the year, 1649. for the settlement of the Excise, it was enacted among other things, viz. Article 17. That no Merchant or Importer of Goods or Merchandize from beyond the Seas, should Land or cause the same, or any part thereof, to be Landed or put on shore, before due entry were made thereof under his hand with the Officer of Excise (in that behalf appointed) at the Custom-house of the same Port where the Goods were first Imported; and that under a severe penalty.

And it was the duty of this Officer dayly to deli­ver [Page 3]into the Excise Office, all such Entries as he re­ceived; which were there fairly registred by way of Accompt, under every Merchants particular head, and the Accompt again discharged still as the Goods came to be sold. And it was penal for any Merchant to sell or deliver any Goods without a ticket from the Excise office. And likewise to the end that such discovery as aforesaid, might be the better made, and the Merchants Import Accompt examined for that purpose, by another Article of the same Act, viz. Article 25. The Commissioners and Sub-Commissioners of Excise in their respective Divisions, had power, once in twelve Moneths, or oftner, if they saw cause, to summon every Mer­chant in their respective Divisions to give an Ac­compt, under his hand, of what Foraign Goods Ex­ciseable, he had then in his hands: which Accompt, if he refused or neglected to give in, by the space of 28 dayes, it was Enacted (by way of punishment, for such his Neglect) That he should be lyable to pay the full Excise for all such Goods as he then stood charged with by his Entries in the Books of the Ex­cise Office, which were not before discharged by Sales and Deliveries, for which Tickets had been given out of the Office, and accordingly should be adjudged to pay the same.

Which Judgement had two apparent operati­ons (though never rightly understood by most of those that were to put the same in execution) that is to say:

First, that it made him lyable to pay the Excise himself for all such Goods as then stood un­discharged [Page 4]in his Accompt, as aforesaid, which otherwayes for the reasons above-mentioned he had not been lyable to.

And secondly, That it excluded him from all al­lowances for Goods exported again, or remain­ing in his hands, or for Leakage, Waste, Tret and Tare, and the like, which otherwise were to be allowed.

And in execution of this Judgment, the Commissi­oners had a special power given them by the same Article to warn him to pay in such Sum, as the Ex­cise amounted unto by the said Judgment; which if he did not do within 14. dayes after such warning, they were further impowred to levy double the va­lue upon his Goods and Chattels by way of Distress, and for want of sufficient Distress to Imprison his person.

But if within 28. dayes after summons, the Mer­chant gave in such Accompt of his Rest, then the Commissioners being first satisfied of the truth of such Rest, had power to adjust his Accompts with­out demanding any Excise of him for any of the said Goods, other then for such as by the said Ac­compt should be discovered to have been sold and delivered by him to the first Buyer without notice given to the Office. In the casting up of which, the Merchant was likewise to have allowance for the waste and leakage of Wines, Oyls, and the like, as by the very next Article of the same Act appears.

And this was all that the Merchant-Importer was concerned in as to point of payment; but it was no where said, either in that, or any other of those [Page 5]pretended Acts, or Ordinances, for the Excise, that the Duty should Originally lie upon the Merchant. So then, it is clear, That even in the time of those usurping Powers, when those pretended Acts and Ordinances were supposed to be in full force, the Merchant-Importer could no way come to be charged with the payment of any Excise, but either by Judgment upon his Default, which was in the na­ture of a Penalty, or by an Accompt actually agreed upon, adjusted and stated on both sides.

But upon his Majesties most happy restauration and return to the possession and exercise of his Roy­al Power and Dignity, all those pretended Acts and Ordinances, and all proceedings thereupon fell to the ground, and became utterly void of themselves, as not being made by any legal Authority whatso­ever.

Nevertheless, in the Parliament begun at West-minster, the 25 ^th day of April, in the 12 ^th year of his Majesties reign, two Acts were made for continuing the Imposition of Excise: the one from the 24 ^th of June, 1660. to the 20 ^th day of August in the same year; and the other from the said 20 ^th day of August to the 25 ^th of December following. By both which Acts it was enacted among other things, that the said Imposition, together with all Arrears thereof, should be continued to be collected, levy­ed and paid during those respective Periods accord­ing unto, and after, the same Rates, Rules, and Pro­portions, and upon the same Goods and Commodi­ties, as the same was payable and collected the said 25 ^th day of April, 1660. With a Proviso never­theless, [Page 6]That all sorts of Oyls, Wines, Tobacco's of the English Plantations, Silks, Linnens, and divers other Commodities therein particularly named, should after, the 24 ^th July, 1660. be wholly dischar­ged of the duty of Excise.

By vertue of these two Acts, and during the time of their being in force, the Commissioners of Ex­cise for the time then being, supposing that the Powers given them by the said pretended Act of the year 1649. were thereby continued; did summon in divers Merchants of the City of London, to give in an Accompt of their respective Rests, according to the Article above mentioned, some of whom did accordingly appear, and gave in such Accompts; but the said Commissioners never proceeded to any adjustment with any of those, but left their Ac­compts depending, when the Excise upon forreign Goods fell. But divers other of the said Merchants committed default, and never gave in any Rest at all; and against these it is said, the Commissioners of Excise proceeded according to the said 25 ^th Article, and made up their Accompts, as they stood charged in the Books of Excise by their Entries, and against every default, or most of them entered Judgement for the Sum, and made Demand thereof, but pro­ceeded no further, as to the levying either the single or the double value of the said sums, or any of them, upon the refusers or neglecters of payment.

But there were many other Merchants, that were never summon'd at all to give in any Accompt of their Rest, and so fell not either within the one, or the other of the two former capacities; that is to [Page 7]say, had neither Judgements passed against them by the Commissioners of Excise, nor Accompts depend­ing, when the Excise of Forreign Goods ceased.

So then the Merchants of London, as to this case of pretended Arrears of Excise, are to be considered in these three capacities, viz.

Those against whom Judgement was entered, upon default of giving in their Rests.

Those who gave in their Rests, and had their Accompts depending unadjusted.

And those that were never summoned at all, before the ceasing of the Forreign Excise.

Since which time, viz. in this present Parliament an Act is made for vesting the Arrears of the Ex­cise and New-Impost in general in his Majestie. Whereby among other things, his Majesty is enabled to sue for, and recover the same of every person and persons, their Heirs, Executors, and Administra­tors, having Assets, who are any way accomptable for the same, as if the same Duties of Excise had been lawfully Imposed, and as if the several pretend­ed Acts and Ordinances imposing the same had been good and legal Acts of Parliament, and had in ex­press words granted the same to the King.

And it having been suggested, that there are vast Arrears of Excise standing out in the hands of the Merchants of London, which by vertue of this Act are now recoverable to his Majesty, and thereupon several Informations being exhibited against several of the said Merchants within every of the said three capacities; Lest the apprehension of so great a sum to be raised by this means should divert or delay the Parliaments intentions in providing for his Majesties [Page 8]supply otherwise. It will not be amiss to examine first, whether all, or any of the said Merchants can be chargeable with any such Arrears at all.

And secondly, admitting them not only chargeable, but that the Arrears were actually recovered, of what value they will be like to be in his Majesties purse.

As to the Merchants of the two last capacities, viz. those whose Accompt were depending, and those who never were summoned; I suppose, it will be easily granted from what hath been before truly stated, that neither originally as Importers, nor by any Act, ordefault of their own, nor by any Accompt stated before the ceasing of the Forreign Duty, they were answerable for any Excise at all. And then the question concerning those two sorts will on­ly be, Whether the Act by which his Majesty is in­vested as aforesaid, hath since made them accompta­ble for the same, or not.

And it is humbly conceived, it hath not: For al­though his Majesty be thereby invested, with all Ar­rears of Excise in general words, yet it is so far from making any person accomptable for the same, that was not accomptable before; that it rather restrains the power it gives his Majesty, to recover such Ar­rears to such person or persons only, who at the time of the passing of the said Act were accomptable for the same. Neither doth it make or declare any thing an Arrear of Excise, that was not then an Arrear by some of the former pretended Laws of Excise. And although Informations may possibly be exhibited against some of both these two sorts, as well as against the other; yet it is to be supposed, that this hath proceeded either of the mistake of [Page 9]those who certified them Debtors, or else perhaps of design to endure them for fear of trouble, to come in and submit to an Accompt, which by the Law they are not now lyable unto.

The only remaining question therefore, in which there is any seeming doubt, or difficulty, will be concerning those against whom for default of giving in an Accompt of their respective Rests, Judgements have been actually passed and enregistred in the Office of Excise before the Excise of Forreign Goods fell to the ground, viz. Whether the respective sums of Mony thereby adjudged against them, shall be accompted such Sums or Debts of Excise as are intended in the said Act of Investure. And if they shall, and that nothing be to be pleaded in barr of his Majesties demand thereof, upon what evidence they shall be recoverable.

That no Excise was originally chargeable upon the Merchant by vertue of his Entries at the Custom-house, hath been already shewn, and I suppose, will not be de­nyed; it being always payable by the first Buyer, and not by the Importer. It will follow then, that if any of those sums, so adjudged, be due, they must be due by ver­tue of the Judgments themselves, or not at all. And then the validity of those Judgments will be to be examined. Now to make a Judgment good and valid in Law;

First, there must be some Law, Custom, or Statute in force at the time of the passing thereof, upon which it must be grounded. Secondly, The Judges must be rightly and duly constituted, and must have sufficient Authority and Jurisdiction of the thing upon which the Judgment is made. And thirdly, the Judgment it self must be matter of Record, against which, no Averrment can be, and if it be defective in any of these, the Judgment is utterly void and null.

But that the pretended Judgments above mentioned are defective in all three, I conceive it will not be hard to manifest. For first, it will not be denyed, but that all those pretended Acts and Ordinances for the setting up and establishing of an Excise in the times of the usurping Powers, and amongst the rest, th [...]t of the 14 ^th of August, 1649. (upon which the said Judgment must be grounded if upon any were in themselves void ab in itio: And could have no legal force, especially after his Majestie's happy restauration, unless they had been set up and made valid by Act of Parliament, which I conceive under favour, they never were.

For although it be true, that in the Parliament begun at Westminster the 25 ^th day of April, 1660. two shorts Acts were made for the continuance of the Excise, the one from the 24 ^t• day of June, 1660. to the 20 ^th of Aug. following, and the other from thence to the 25 ^th of Decemb. follow­ing; in both which it was enacted, That the said Impositi­on together with all Arrears thereof should continue to be collected and paid according unto and after the rates, rules, and proportions, as the same was payable and col­lected the 25 ^•h day of April, 1660. yet, under correction, I conceive, that those words did not set up, nor make valid the said pretended Act of the 14 ^th of Aug. 1649, nor any other of those pretended Acts or Ordinances, for that no Act or Statute can be continued, confirmed, or revived, (much less originally set up and made an Act, being none before) without special words to that purpose. And in this particular, if it should be admitted, that the words, Rates, Rules, and Proportions, should intend a setting up of those pretended Acts themselves, it must follow, they must be either intirely set up that is to say, the whole Acts in the very words they are penned, or but in part. If entirely, [Page 11]then that part of the said Act of the 14 ^th of Aug. 1649. which obliged all Commissioners, & Sub-commissioners, to take an Oath to be true and faithful to the Common-wealth of England, as it stood then pretended to be esta­blished without a King or House of Lords, & many other like absurdities had been by consequence thereby likewise established, which no body will be so weak as to admit.

But if it shall be said, That they were set up but in part, then those particular parts so intended to be set up, must have been specially mentioned and distinguished, which here they were not. I conclude therefore, that neither in part, nor in the whole, any of the said pretended Acts or Ordinances were thereby put in force. And if so, the whole force of the 25 Article of the 14 ^th Aug. 1649. upon which the said Judgments were grounded was at the time of the passing of the said Judgment utterly void and of none effect. And the Merchant-Importer not being originally chargeable either by his Entries, or otherwise, with the payment of any Excise for his Goods, could not by any Judgment grounded upon that Act be made lya­ble thereunto.

And as to the second, which concerns the Authority of the said pretended Judges it will likewise follow, that that was none at all, as to point of giving Judgment upon any default: for in the first of the two Acts of Parliament a­bove mentioned, no persons at all are constituted Com­missioners for the Excise. And by the second, though Na­thaniel Manton, and others therein named, are appointed Commissioners, yet they have thereby no other power given them, but only to collect and receive the said duties according to the former rates and rules, without any Au­thority at all to put any of the said pretended Acts or Or­dinances in execution in case of offence or disobedience to the same.

And as to the last point, viz. Whether the said Judg­ments be matter of Record or not, I shall need to say little, unless any man shall first shew me by what Act or Statute, the said Nathaniel Manton, and the rest of the Gentlemen in the said Act named, are constituted a Court of Record, or that they had antient Jurisdiction by the Common Law; until When, I conceive, I may save both my self and the Reader the trouble of that Argument.

Now for the value of these supposed Arrears to his Majesty, if they were Justly recoverable (as I conceive they are not) it will be found, upon examination, to be very small and inconsiderable, and not worthy so great an Odium and discontent, as the very attempt of enforcing the Merchant to pay them, hath already provoked. For although I have heard they have been represented to amount to, at least, an hundred and fifty thousand pounds, yet it is to be considered, that the estimate thereof is taken only from the Books of the late Excise Office, as they stand charged with the Merchants Entries, before any adjustment made: Upon which,

First, no allowance is yet given them for goods Ex­ported by the Merchant again, which will be found to be very great quantities.

Secondly, there are thousands of Entries that will be utterly disowned, by the persons upon whose particular Accompts they are put, it being a most usual and com­mon practise, in those dayes, for one Merchant to enter Goods in another mans name, sometimes by consent be­tween them, and sometimes without consent, which was done on purpose to confound Accompts, and render it impossible for the Commissioners ever to prove them, and consequently to make any true Judgment upon them.

Thirdly, there have been no allowances yet made upon those Accompts for Leakage, or Wast of the Commodi­ty; which in Wines, Oyles, Vinegers, Brandies, and such like, hath been very great, especially in Wines, the Merchant being alwayes charged in the Excise Office, with the entire quantity, or contents of the number of Cask Entered without any allowance for Outs, Leakage, or other Deductions, which are always allowed upon pay­ment of the Customs. And the greatest part of those pre­tended Arrears, at least the greatest sums, are pretended to be due from the Wine-Merchants.

Fourthly, during some part of that very time for which those Accompts are to be made up, the Excise was by an Act of the same Usurping Powers themselves, that set it up, in effect, wholly thrown down again or at least sus­pended. For on the 11 ^th. of October, 1659. the Rump-Parliament, which was restored to their sitting but in May then preceding, foreseeing they should be outed a­gain by Lambert (as within two dayes after they were) to prevent him from raising Money to pay his Army, made an Act, by which it was declared High-Treason to levy Customs, or Excise, or any other Tax upon the people. And during all the time of that Exclusion, until their second restitution (which was about two Moneths or more the Excise was understood on all hands to be quite down, and all Commodities were bought and sold Duty-free. And a very great part of those very Goods, for the Excise whereof the Merchant now stands charged in Arrear, were bought and sold within that very time.

Fiftly, it appears not what quantities of the same Goods, the Merchant had remaining upon his hands un­sold, at the time when the Excise of Foreign Commodi­ties fell; all which several particulars must be allowed [Page 14]and deducted, in case the Merchant were liable to pay the rest (as indeed he is not.) And then this great bulk of Merchants Arrears, of which so great a noise hath been made, will appear to be but a Cuckow, whose body in the feathers seems to be as big as a Kite, but being pulled, is not so big as a Sparrow.

To manifest which yet a little further, it is most true in fact, that divers Merchants standing charged, accor­ding to the Books of the Excise Office, with very great sums, in pretended Arrear, having been, by the Exchequer process lately sent against them, frighted into a submissi­on to Accompt, in the Excise Office, have come off and cleared the whole for half as many shillings, as they stood Charged with pounds.

Which several particulars are offered to publick consi­deration by a Well-wisher, as well to his Majesties Re­venue, at to the Merchants of London, with no other De­sign; but, First, that the opinion of the Justness and Re­coverableness of so great a sum (as these Arrears have been noised to be) may not so far be relyed upon, as to prejudice his Majesty in point of provision otherwise, now a Parliament is sitting, and hath the Revenue in con­sideration.

And, Secondly, that in case any endevours shall be used (as is reported there are) to procure any Act, or croud in any Clause, or Proviso, into any Act, that shall look back upon the Mercants-Importers, to declare or make them liable to Ac­compt, for matters so long past; or to make them liable to the payment of that as an Arrear, which they were never liable to pay even in the Usurping times, as a Duty; it may be conside­red by those to whom it shall appertain, Whether it will be at all for his Majesties service; or agreeable to equity and right rea­son, seeing the whole matter will be Ex post facto: and that the discouragements upon Trade are already too Many.