the three staple commodities, wools, woollfells, and leather; and parda custuma, intending thereby the increase granted by the merchantsstrangers, an. 31 Ed. 1. are the termes used at this day by the customers, and by which they distinguish their entries. This word custuma, I finde to have been also promiscuously used by E. 1, E. 2, and E. 3, in their commissions, and applied, as well to increase of custome by way of imposition or by acts of parliament of those times, as to ancient custome upon the staple commodies. But regularly none ought to be called custuma, but that which is due upon the staple commodities; and so is it used at this day, except only cloth: for if it bec laid by act of parliament, it is called a Subsidie; if without assent of parliament, Impost. You see in what sense the words malum tolnetum and the word consuetudo have been used in former times, and are thereby able to judge how they ought to be understood in this present statute, which, as I have said, ought to have the most benign interpretation that the words may beare.

an usage, or practise of a thing time out of minde. But it is evident by the records in the time of H. S, and Ed. 1, this word in a more speciall manner was applied to all, or most of the duties belonging to the crowne by reason of trade; as ' consuetudo aquæ Thamesis,' con'suetudo piscis venientis ad vicum pontis London' consuetudo quæ vocatur scavegium, consuetudo quæ vocatur gauge.' But yet more specially it was applyed to that dutie, which we, following the same rule, because of the greatnesse of the revenue, doe likewise per excellentiam call Custom. This may appeare by the pipe roll of 52 Hen. 3, with this title Consuetudo Mercandizorum, and by divers other records of Hen. 3's times. The rolls and records of the beginning of Ed. 1, doe likewise prove the same very evidently, insomuch that not onely that which in this kinde belongs to the king by the common-law and by ancient prescription, was called consuetudo; but in later time, if any increase were of that dutie, though it came not by prescription, but by grant in parliament, or otherwise, yet it still retained the name consuetudo, which by continuance of time came to be But it hath beene likewise objected, that in the proper name to that kinde of dutie howso- this statute there is a speciall clause of excepever it began. And therefore in 3 Ed. 1. you tion, which leaveth the king at his liberty to lay shall finde, that after the old custome of woolls what impositions he pleaseth, this statute notwas increased to a demy-marke by act of par- withstanding. And that is the words in the liament, yet the word consuetudo was never-beginning of the statute, 'All merchants, if thelesse still retained, but with an addition; for it was then called nova consuetudo. Nay, though the increase were by the kings absolute authoritie, and upon the matter a meere inposition, yet the king in his commission did alwayes call it consuetudo; as in 16 Ed. 1. the imposition of foure shillings upon a tun of wine is, in the kings commission to collect it, called consuetudo. Neverthelesse, I assure myself, the people called it by some worse name, as maletort, or the like.

us.

they were not openly prohibited before, shall have their passage, &c.' which implies, say they, that if they be prohibited, which rests wholly in the kings power, then they are not to have benefit of this statute, touching the freedome from impositions; and they say farther, that the very laying of impositions doth imply a restraint sub modo. Though I purpose to speake more fully in answere of this objection, when I come to shew you the weaknesse of the reasons alledged for impositions, yet I cannot forbeare in this place to speake a worde or two in answere thereof, having the statute now before Except they be prohibited, they shall ' have free passage' (saith the statute) ' without paying evill-toll.' This doth imply, say they, that if they be prohibited, they may be compelled to pay impositions. But that cannot be necessarily concluded. It implies indeed somewhat strongly, that they may bee prohibited. The statute of 1 R. 2. cap. 12. inhibiteth the warden of the Fleete to deliver any prisoner out of execution, unlesse it hee by writ or other commandment of the king. It may be as strongly implied out of this statute, that the king may, by his commandment without writ, deliver a prisoner out of execution: but the contrary hath alwaies been held. [4 & 5 P. & M. fo. 162, b. Dyer.] The same objection is made, and the same answere may be given to another exception in the latter end of this branch, except in the time of war.

The several applications of this word consuetudo to all duties whatsoever belonging to the crowne by reason of trade, is the reason, as I conceive, that the word is used in the plurall number in the statute of Magna Charta, per antiquas et certas consuetudines;' that so they might bee secure against all unjust exactions upon merchandizes whatsoever. But, as I have said, the principall scope was to provide against impositions; and by reason also that the word consuetudo was taken as well for impositions as for rightfull customes, therefore, to make all sure, they insert the words 'antiquas et rectas.' This word consuetudo in this sense continued till about the twentieth yeere of Ed. 1. after which time I cannot call to minde that I have seene it upon any record. In stead and place thereof came in the word custuma, which I find first in Charta Mercatoria an. 31 Ed. 1. where the increase of custome by the grant of merchant-strangers is called parva custuma; and that which before was called nova I come to the Second Statute against Impoconsuetudo, doth now begin to lose that name, sitions, which is the statute de tallagio non conand to bee called magna custuma; which termes cedendo, touching the time of the making of of magna custuma, intending thereby that in-which there is great variety of opinion; for it is Grease made by parliament, anno 3 Ed. 1. upon not, for ought I could ever learne, found any

of the making of the statute, doth in my opinion strongly enforce this statute against impositions. And 'tis to bee observed, that in this statute there is no saving or exception of the kings antient right, which, as our chronicles say, was a

this law, earnestly pressed by the subject to bee without that clause, and for a long while stood upon by the king, but at last yeelded unto in such sort as you have heard.

where upon record. Justice Rastall accounts it to have been made 51 of H. 3, and with him agrees an old manuscript which I have seen. It may well bee; for in one of the statutes you shall finde a pardon to Humfrey earle of Boham earle of Hertford and Essex constable of Eng-point principally insisted upon at the making of land, and to Roger Bygott earle of Norfolke and Suffolk marshal of England, who both lived in that time. Thomas of Walsingham in his history of England saith it was made in the 25th yecre of Ed. 1. Hee reciteth the statute de verbo in verbum as it is in our printed bookes; otherwise I should have thought he had meant another statute against impositions made indeede 25 Ed. 1, and found upon the records of that yeere. In our printed statutes at large, it is placed last of all the statutes of E. 1. Though there be some disagreement about the time of the making of this statute, yet they all agree the occasion to be the laying of a great imposition upon wool.

The next statute (third) against Impositions is 25 E. 1, c. 7. The words are, Forasmuch as the 'more part of the cominality hath found them'selves sore agrieved with the maletolt of wools, viz. a toll of. 40s. for every sack of wool, and have made petition to bee released of the same, wee at their requests have cleerely released it, and have granted for us and our heires, that wee shall take no such things, without their common assent and good will, saving

cst odiosa, ideo stricta contra impositiones, et large ad favorem gravatorum interpretanda 'est lex contra impositiones data.' But there shall not need any such favourable construction; for the words are in themselves very cleere. The law consisteth of three parts. The first is the kings grant of a petition made by the commons for the releasing of an imposition of 40s. upon a sack of wool, then in demand, When the present grief was ended, the next care was to prevent the like mischiefe in ali times to come. It therefore followes, And wee have granted for us and our heires, that we shall take no such thing without their common assent,' which is the second part of the law. The saving in the end is the third part. Against this generall provision two objections

The words of Thomas Walsing-to us and our heires the custome of wools, ham; Auxit rex tributum lanæ ad 40s. cun 'skins and leather granted before by the comiprius ultra dimidiam mercam non daretur.nality aforesaid.' I might, in enforcing this Tota autem communitas sentit se gravatam statute, rely upon a rule of law for the exposide vectigali; lana enim Angliæ fere extendittion of statutes of this nature, Omnis impositio ad medietatem valoris terræ et vectigal ad quintam partem terræ.' The custome of wools, as you perceive, was in those dayes esteemed to bee the fift part of the value of the whole land. It followeth in him, that upon complaint the subject at last obteined the statute I nowe speake of, the words of which are, No tallage or ayde shall bee raysed or set by us or our heires in our realm, without the assent and good will of archbishops, earles, barons, knights, burgesses, and other freemen of the land.' After these generall words, by way of provision against all manner of burthens whatsoever to bee laid in time to come without assent of parliament, followeth in the next branch, save one, especiali provision for the taking away of the imposition then in demand upon wools; which latter clause, as it doth cleerely shew the cause of their pre-have begne made. First, that the words no sent griefe to bee the same which our chronicles say it was, so doth it likewise make it evident, what it was which they sought to be secured of for the times to come. Neither are the words themselves so obscure, by reason of the generality of them, but that they also without knowing the occasion of the making of the law doe directly point at impositions; for, though indeede the word Tallage be, as I conceive, to be understood only of charges within the laud, yet the word Ayde extendeth to all charges of what nature soever. Nay, that even impositions themselves have been called Aydes or Subsidies, which is all one, is evident by almost all the records of the Exchequer here amongst us, especially by those of Ed. 3's time; in which, wheresoever you finde any mention made by the king, in his commissions, of an imposition raised by him, hee ever calls it Subsidium or Auxiliom. So likewise in the printed statute of 36 Ed. 3. cap. 11, you shall finde, that the imposition by grant of merchants there mentioned is called a Subsidie or Ayde. This exposition of the word ayde, concurring with the occasion

such things,' are to be understood only of the burthensonnesse and excesse of impositions, and not otherwise.. No such things,' that is, say they, no such grievous impositions as this present imposition is. It had beene a poore security for times to come, to have left it to interpretation, whether or no impositions, which might happen to be laid in after ages, be as grievous as the imposition complained of in this time, by comparing one with the other. Tis so uncertain a computation, as no man, when hee thinks thoroughly of it, can imagine, that men, worthy to sit at the making of laws, should suffer such a thing to passe them. Who can certainly say, whether our impositions bee more or lesse grievous then the rate of 40s. upon a sack of wool? Beside, how easily had this lawe beene to have beene eluded by abating only 12d. or but 1d. in the next imposition For, if it be but a penny lesse, it is no such imposition, for the burden. Therefore it must needes bee expounded of the quality and very nature of the thing complained of, and not of the quantity. No such thing, that is, no such thing as this is,

that is to say, an imposition. But that, which eight pence and so likewise upon woolls and will cleere this objection, is a proclamation leather, no more than the ancient custome, made the very next yeer after the making of without assent of parliament.' All this while this act, [26 E. 1. Inter brevia retorn. de term. there is no answere given touching the tyn and Mich. in Scac. in offic. rem thesaurar, ibidem.] lead mentioned in the petition; upon which, in which the king reciting this act, instead of as it appeares, the king had also laid imposithese words, wee will take no such thing,' tions. But there doe follow certain general useth these words, nullam aliam custumam words, by which not onely tyn and lead, but 'sine communi consensu capiemus,' not only all other commodities whatsoever are freed ' no such,' but no other.' By which you may from impositions. The words are, the king see, that the words were then interpreted in promised in the presence of his carles, barons, that sence, in which I doe now interpret them. and others of his parliament, no more to But admitting, say they, that it bec so to charge, set, or assesse upon the custome, but bee expounded that the king will layno in manner aforesaid.' 'Except these words other imposition' without assent in parliament, doe extend to lead and tyn, to free them from that is to be understood, say they, no other impositions for times to come, as well as woolls, imposition upon wools,' and not otherwise; woolfells, and leather are freed by the former which is their second objection. It were a very speciall words, their petition touching tyn and strict construction for a statute of so beneficiall lead is no way answered. And if they doe an intent as this is so to restraine it; if there extend to tyn and lead, by reason of the genewere no other words in the statute that did in- rality of the words, they doe by the same reason large the exposition. But by the words fol- extend to all commodities; for what more li lowing it is most evident, that the scope of this berall words can there be than these; that law is more liberall then so; and that the kings the king will not charge, set, or assesse upon intent was for ever to secure his subjects, the custome? These words, the custome,' against all charges of this nature, I meane im- being words indefinite, are, you know, equivapositions, not upon wools only, but upon any lent to an universall, according to the rule, other merchandise whatsoever, which I collect indefinitum æquipollet universali.' And alfrom laying all the parts of the law together.- though the king doe but promise, yet I doubt The petition for present ease is to be released not but in this case his promise is a law. And onely of the maletolt of foure shillings upon a it is worth the observing, that the lords doe in sack of wool, which is yeelded to. The secu- very extraordinary and unusual manner sority for the time to come is we will take no lemnly undertake, as much as in them lyeth, such thing.' The saving, which followeth that, that they shall procure the king to hold the is, saving the custome of wools, woolfells, and same, and that they shall in no wise assent leather.' I observe, the saving extends not to to the contrary, if it be not by the assent of wools alone, as the petition doth, but also to 'the prelates, earles, barons, and commons, woolfels and leather, by expresse name; by and that in full parliament; and for the which it is evident, that the securitie for the greater surety, and to give cause to eschew all time to come is of a larger extent than to counsel to the contrary of this ordinance, the stretch onely to wools, as hath been objected. prelates have promised to give sentence upon For else, to what end should woolfells and lea-them that counsell against the same in any ther be excepted in the saving, if they had not 'point;' which are the very words of the statute been contained in the generall words, in print. such thing? An exception cannot be but of a thing contained in former words. If therefore the grant would have extended to woolfells, if they had not been specially excepted, then do I conclude by the same reason, that it doth extend to all other merchandizes not excepted; for the words are generall. And so I leave this law cleered of all objections, and very full against impositions.

no

The next [fourth] statute made against them is 14 Ed. 3. cap. 21. By the first part of which law you may perceive, that, whereas the commons had prayed the king not to take of wools, woolfells, leather, tyn, or lead, any more than the ancient custome, the king prayed them to grant him forty shillings upon a sack of wool for a yeer and a halfe, which they granted, Whereupon the king, by way of retribution, and in answere of their petition, as touching the wool, causeth it to be enacted for their security in time to come, that neither he nor his heirs would demand, assesse, nor take more custome of a sack of wooll than sixe shillings

VOL. II.

The statute of 14 Ed. 3, cap. 21. [No. 5. Ro. Par.] was yielded unto by the king, upon a petition exhibited the parliament before, both by the lords and the commons, praying that a law might be made against impositions, as may appeare by the records of the 13th yeere of Ed. 3. at which time they likewise prayed, that the king would be pleased to grant thein a charter to the same effect, to be inrolled in parliament. The statute you have heard. The charter followeth in our printed books immediately after the statute, where the king in the preamble thereof, reciting the great gift that he had given him at the same parliament, that is to say, the 9th fleece, 9th sheep, and 9th lamb throughout the kingdom, which indeed, was a very extraordinary great gift, (and therefore his grant, in regard thereof, is to be intended so much more beneficially) doth in lieu thereof, for him and his heires, grant to his subjects in these words; From henceforth

they shall not be charged, nor grieved, to make any ayde, or to susteine charge, if it be

2 11

As for the words Ayde and Charge, I have already proved, that it was a terme by which impositions were commonly called in those times. That they were also called Charges is evident by very many records of those times, where complaint is made against them, as 21 Ed. 3. numb. 11. Les commons priont que la 'charge de 21s. sur sack de lane soit ouste,' 21 Ed. 3. numb. 16. 'The commons pray 'that no Charge be set upon them without as'sent of parliament.' The kings answere is, if any Imposition be levyed unduely it shall bee taken away. Of this kinde there are very many presidents, so as if the precedent petition had not assured us of the scope of this lawe as it doth, the very words themselves, rightly understood, would have made it cleere.

In the same charter there is another clause as beneficiall as this, to this effect, all merchants denizens and forreins, except those which be of our comitie, may without let safely come into the realm of England with their,