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. IV.

Of the Imperial or Civil Law, and of the ex∣tent of the Iurisdiction thereof, of what force it is at this day within the Monar∣chies of Europe, and in what case it is received within the King of Englands Dominions, and how it warranteth all Kings and Absolute Princes to lay Imposi∣tions upon Merchandizes.

WHen the City of Rome was Genti∣um Domina & Civitas illa magna quae regnab at super Reges terrae, The Roman Civil* 1.1 Law being communicated unto all the Subjects of that Empire, became the Common Law, as it were, of the greatest part of the inhabited world; yet the extent thereof was never so large as that of the general Law of Nature, as it is noted by Cicero, offic. lib. 2.* 1.2 Majores nosiri aliud jus Geutium, aliud Civile jus esse voluerunt, quod enim civile non idem continue, Gentium, quod autem idem civile esse debet, whereby it is manifest, that the Law of Nations is and ought to be a binding

Law in all States and Countries; as it is binding, so it is perpetuall, and cannot be rejected, as the Roman Civil Law is rejected in most of the Kingdoms in Eu∣rope, in such cases as do arise within the body of every Kingdom.

In France, Philip le Bell (saith Bodin) de Repub. lib. 2. cap. 8.* 1.3 when he erected the Courts of Parliament at Paris, and Mount∣pelier, did expresly declare, That they should not be bound in their judgments by the rule of the Roman Civil Law, and in erecting of all the Universities of France, they are charged in their severall Charters, not to revive the profession of the Civil and Common Law, as of bind∣ing Laws in that Kingdom, and therfore Earum non imperio sed ratione utimur, saith another learned Doctor of France.

In Spain, saith Bodin,* 1.4 in the same place, several Kings have made Edicts, that no man upon pain of death, should allege the Roman Civil Law as a binding Law in their Dominions.

And that Stephen King of Spain* 1.5 did for∣bid the publique pleading of the Civill Law.

As for England, to omit what Pope Elutherius* 1.6 wrote in his Epistle to Lucius

the first Christian Monarch of the Bri∣tains, and whereof mention is made in Saint Edwards Laws de protestate Regia & Ecclesiastica, published in the time of 3 Hen.8. petiistis (saith he) leges Romanas & Caesaris vobis transmitti quibus in regno Bri∣taniae uti voluistis, leges Romanas & Caesaris reprobare possumus, legem Dei nequaquam, &c. In a Parliament holden in England 11 R. 2. when a course of proceedings in Criminal causes, according to the Civil Law was propounded, an answer was made by all the States assembled, That the Realm of England neither had been informer times, nor hereafter should be ruled and governed by the Civil Law, Rot. Parliament. 11 R. 2. in Archivis turris London, and accordingly Chopinus* 1.7 the French Lawyer in his Book de Domino Franciae tit. 28. speaking of the Civil law, hujus Romani juris (saith he) nullus apud Anglos usus, sed ex veteri gentis instituto Bri∣tani reguntur legibus municipialibus quas illis majorum mores praescripserunt.

But this is to be understood of causes arising within the Land onely; for all Marine and Sea causes which doe arise for the most part concerning Merch. and Merchandizes crossing the seas, our Kings

have ever used the Roman Civil Law for the deciding & determining therof, as the Romans did use the Law of the Rhodians* 1.8 in those cases, according to the memora∣ble rescript of the Emperour Anthonius, terram suis legibus Rhodiis Regi. How be it now, those Laws of the Rhodians are di∣gested and incorporated into one body of the Civil Law; the jurisdiction touch∣ing causes arising upon the Sea, is com∣mitted by the King of England to his Ad∣mirall, who in his Court of Admiralty doth proceed in those cases according to the rule of the Civil Law.

Now for the Rules of the Civill Law touching the power of Kings, in laying Impositions upon Merchandizes, the same are clear without question, and ob∣served without contradiction in all the nations of the world, Regiitantum juris ac muneris est vectigalia imponere, redditus, seu vectigalia portus quae perveniant ex his quae in portum vel ex portu vehentur regalia sunt, Rex qui non recognoscit superior em potest in∣stituere nova vectigalia, &c. hoc est jus totius mundi, totus mundus hoc jure utitur, the D. Doctors who interpret the Imperiall Law, have their Books full of these Rules.

And if it be objected, That these rules of the Imperiall Law are onely intended of the Emperour, a learned Civilian hath this position, plus juris habet Rex in Regno quam Imperator in imperio, quia Rex trans∣mittit regnum ad successionem quod non facit imperator, quiest tantum electionis, &c.

Lastly, when I speak of the rules of the Civil Law, and make use thereof, I do apply the same onely in cases of Mer∣chandizes crossing the Seas, which I do expresse by way of protestation, that I may not be mistaken here, and in other places where I cite the Text of the Im∣periall Law, as if I intended that Law to be of force in England generally, as in other places.

Notes

• * 1.1

  Lex Ci∣vilis.
• * 1.2

  Cicero offic. li.2.
• * 1.3

  Bodin de repub.li.2.cap.8.
• * 1.4

  Bodin
• * 1.5

  Stephen King of Spain.
• * 1.6

  Pope Eluther.
• * 1.7

  II R.2. Chopinns.
• * 1.8

  Rhodians.