Jus imponendi vectigana, or, The learning touching customs, tonnage, poundage, and impositions on merchandizes, asserted as well from the rules of the common and civil law, as of generall reason and policy of state / by Sir John Davis ...

CHAP. X.

Of the ancient duty called Custome, payable for our principall Commodities exported, and that it was originally an Impositi∣on.

THE ancient duties payable for Merchandizes, were but of two kinds, and known by two names, Cu∣stomes and Prizes; Customes were paid for Homebred and Native Commodities exported, and Prizes were taken out of Forreign Commodities imported.

The Native Cōmodities out of which Custome was paid, were Wooll, Wooll∣fells, and Leather, and this Custome did consist of rertain rates or sums of Mony, imposed by the King upon those Mer∣chandizes exported, which rates were raised and reduced higher or lower, from time to time, as occasion did arise; for although in the time of King Edw.1.the Customes payable for those Commodi∣ties were reduced to this certainty, viz. to a demi mark for every Sack of Wooll,

a demi mark for every three hundred Wooll-fells, and a mark for every last of Leather, which we call now the great and ancient Custome, ab initio non fuit sic, these were not the rates from the begin∣ning, for not long before that time there was a greater and more ancient Custome paid for the exportation of those Com∣modities, Britanni (saith Strabo)* 1.1 vectiga∣lia tollebant gravia earum rerum quas brevi trajectu in Galliam importabant; this was Magna Customa in the time of the Britans; and though the certain rates thereof doth not appear, yet because the same were gravia vectigalia in those dayes, we may easily beleeve that Custome to have been greater than the demi mark for a Sack of Wooll.

Again, the Statute of Magna Charta, which was as ancient as King Iohn, speak∣eth of ancient Customs payable for Mer∣chandizes, and the Book of 29 Edw. 3. maketh mention of ancient Customes granted to King Iohn, in the Town of Southampton, which doubtlesse were o∣ther Customes than that of the demi mark, &c. for that in the Record of the Tower, 3 Edw. 1. Rot. sin. 24. & Rot. Patent of the same year, m. 9. the demi mark

which was first established by the Kings Letters Patents, is called Nova Custuma, and this was a diminution of the anci∣ent Custome, saith the Book of 30 H. 8. Dyer 43.* 1.2

Again, when the same King Edw. 1. had by his Writ onely, without Act of Parliament, established the Custome of the demi mark, &c. in Ireland, in all the Customers Accounts, which are found in the Pipe-Rolls, in the time of Edw. 1.* 1.3 Edw. 2.* 1.4 Edw. 3.* 1.5 in that Realm, it is also called Nova Custuma, which importeth as much as a new Imposition, for Imposi∣tion is a new name, and hath been of use but of late years, whereas every new charge laid upon Merchandizes in anci∣ent times, was called Nova Custuma, as the Lord chief Baron Fleming observed in his Argument in Bates Case* 1.6 of Currans, in the Exchequor of England; but be∣cause this Custome of a demi mark was a reducement made by King Edw. 1. of the great and ancient Custome to that pro∣portion which was then thought rea∣sonable (as after upon sundry Petitions of the Commons, was allowed by the succeeding Princes) it obtained in tract of time the name of the great and an∣cient

Custome; this Custome of demi mark was not granted to the King by Parliament, but reduced to that rate by the King, by the prayer of the Cōmons, as is expressed in the Record of 3 Edw. 1.* 1.7 fin. memb. 24. for albeit the Charter for confirmation of Magna Charta, made in 25 Edw. 1. doth recite, That the demi mark was granted by the Cominaltie, yet is there no Act of P. printed or recorded, wherein that grant of the Cominaltie doth appear, neither can it stand with the rule of reason that the demi mark being a diminution of the ancient Cu∣stome should proceed from the grant of the Cominalty to the King, for the King would never have accepted of such a grant as did diminish his Revenue, nei∣ther had it been thank-worthy or ac∣ceptable, and therefore the King having a Negative voice, would never have gi∣ven his assent to such a grant in Parlia∣ment; but it is to be presumed that this diminution of the ancient Custome was made in Parliament, and not by Parlia∣ment, and that by prayer of the Com∣mons, as the Record of 3 Edw. 1. Rot. fin. memb. 24.* 1.8 testifieth, the King was then well pleased for that time to draw down

the ancient Custome to that rate, and the people did willingly yeeld and consent to the payment thereof; and this I take to be the true interpretation of the Charter or Statute made in 25 Edw. 1.* 1.9 And therefore because we find no Act of Parliament whereby the people did ori∣ginally grant the great and ancient Cu∣stomes to the King, and because we find it was uncertain and subject to diminu∣tion and alteration, we may conclude, that it was but an imposition laid by the King from time to time by vertue of his Prerogative, without any grant from the Cominalty of the Realm who can make no grant but by Act of Parliament; & in truth it were absurd to aff••rme, that the great and ancient Custome imposed up∣on Native commodities of the Kingdom was first granted by Act of Parliament; since it cannot be imagined that ever those commodities did passe out of the Kingdom, without Custome, being equal in time with the first Scepter; and since the Scepter was established many hun∣dred years before the people were called to be in Parliament; besides, the very name of Custome doth note and argue that it began before any Act of Parlia∣ment

was made, for that it signifieth a duty payable or accustomable to be paid time out of mind, which in presumption of Law, is before any Record; where∣fore the rules in the Lord Dyers* 1.10 Book are good Law, viz. The King hath an Estate of Inheritance in the Custome payable for Merchandizes, as being a Prero∣gative annexed to his Crown. And a∣gain, 30 Hen 8. 43.* 1.11 Custome is an Inheri∣tance in the King by the Common Law, and not given by any Statute.

Notes

• * 1.1

  Strabo.
• * 1.2

  38 H.8.Dyer 43.
• * 1.3

  Edw.1.
• * 1.4

  Edw. 2.
• * 1.5

  Edw.3.
• * 1.6

  Bates case de Currans in Sccio. per Flem¦ing chief Baron.
• * 1.7

  3 Edw. 1.
• * 1.8

  3 Edw.1.Rot.fin.memb.24.
• * 1.9

  Statute 25 E.1.
• * 1.10

  Dyer 29.
• * 1.11

  30 H.8.43.