Reports in the Court of Exchequer, beginning in the third, and ending in the ninth year of the raign of the late King James by the Honourable Richard Lane ... ; being the first collections in that court hitherto extant ; containing severall cases of informations upon intrusion, touching the King's prerogative, revenue and government, with divers incident resolutions of publique concernment in points of law ; with two exact alphabeticall tables, the one of the names of the cases, the other of the principall matters contained in this book.

Hill. 4. Jac. in the Exchequer.

IT was moved by one, whether the Kings Patentee of Pirats goods, seising some goods of Pirats should pay custome for them or not, and it was holden by the Barons, that he should pay none, for in asmuch as they are goods given by Law unto the King, no reason that he should have custome for his own goods.

The Case of Queens Colledge in Oxford of Minosmer.

UPon a special verdict the Iury found, that Queens Colledge in Oxford was incorporated by the name of Provost and Schollers of the Hall of the Queens Colledge of Oxford, and they were seised in fee of an advowson where∣of the place is parcel, the Church being void, the Provost and Schollers aforesaid did by the name of Provost of Queens Colledge in the Universitie of Oxford, and the fellows and Scholers of the same present one A. to the same avoydance, who after admission &c. made a lease for years, yet to come to the Defendant, which was confirmed by the Patron and Ordinary, and that afterwards A. died, and the Plautiff was presented admitted, instituted, and inducted, and the Defendant entring claiming his lease, the Plantiff had brought this Action. Harris Junior Serjeant for the Plantiff seemed, that the presentation of the lessor of the Defendant was not by the true name of the Patrons, and so the lease void, and therefore the Defendant a Trespasser as to the Plantiff, and he said, that the name of a Corporation is not like to a mans surname which groweth by nature, but is like to a name of Baptisme which groweth by politie, and therefore ought to be truly observed in their grants and presentations, as appears by 35. H. 6. fo. 5. and it is there said, if a man be baptized by the name of Posthumus, if this addition of Posthumus be omitted, this abates the writ, but yet he agreed that variance of the name of a Corporation in some manner of Surplusage hindreth not, as in Plowden Crofts and Howels Case, and it was in Fisher and Boys Case ruled, that Custos for gardianus was not any material variance, but he said, that in Mich. 29. & 30. Eliz. in Banco Regis in Merton Colledge Case, where the title was, that the said Colledge was incorporated by the name of the Colledge of Scholers of the house of Merton Colledge, and in a lease by them this word Scholers was omitted, and holden void, for that cause, and so it was betwixt one Wingate and Hall, the Dean and Canons of Windsor 22. E. 4. were in∣corporated by the name of Dean and Canons of the Kings free Chappel of St. George the Martyr within his Castle of Windsor, adjudged the variance (of the Kings and Queens free Chappel) was material although the lease was made in the time of Philip and Marie. And he vouched also 44. E. 3. fo. 3. and 38. E. 3. fo. 28. and he said, that it seemed to him, that this presentation by another name had gained an usurpation by the Provost in his natural capacitie: also it see∣meth that notwithstanding it is not found, that Doctor Airie was presented, in∣stituted, and inducced; yet the special verdict is good enough to have judgement of his part, but he agreed, that if the truth of the Case had been discovered by the pleading, then it ought to be precisely shewed, that such exact finding is not ne∣cessary in a special verdict, as in pleading, and he vouched Allens Case 33. Eliz. Banco Regis where the Iury found, that Tenant for life made a lease for years, and found not the lessor living nor dead, and yet in this Case he was intended li∣ving. and he cited also Haydons Case Cook lib. 3. and Hunts Case 5. Ma. Dyer 153. and he voucht the Case of West against Munson in a writ of error in the Kings

Bench, wherein the first action being an Assise in the Common Pleas, it was alledged for error that the Iury did not finde the Plantiff was disseised, but only the Defendant disseised him, and yet the judgement was affirmed: Dodderidge the Kings Serjeant for the Defendant, he agreed that the name of a Corporation is essential to be alwayes used in their grants, for thereby they are distinguished from other Corporations, but he conceived that in this Case here is a sufficient supplying of that part of the name which is omitted, and he said that although the special verdict in one place mentions the name of Queens Colledge, yet when they nominate the Corporation, it cals them the Provost and Scholers of the Hall o∣mitting the words (Queens Colledge) and then they finde that the Provost and Scholers by the name of &c. and he said, that in so much the Iury found precisely that the same Corporation made the demise, it is not material by what name they made it, and therefore he said that if a Iury finde, that I. S. had made a feofment by the name of R. S. this is good enough, as it was holden in Shotbolts Case 10. & 11. Eliz. and so in 13. E. 2. fitz. tit. Bastardy pl. 25. a Iury found that two daughters were heirs, and that the Defendant was born in espousals, a non suit, and so 20. Eliz Dyer 361. the Iury found that Executors received rents incident to the reversion, and so assets in their hands, and he cited also Dyer 372. to the second matter he thought that the omitting of the name precisely of Doctor Airie made the special verdict vitious, and will inveigle the Iudges, so that they can∣not give Iudgement, for it may be that Doctor Airie was presented by the same name of Corporation as the other presentee was, for he said in truth the Case was so: also the special verdict is vitious, because they found not any time of the Presentation of Doctor Airie, for peradventure he was presented by the said Colledge, when he was Provost thereof, and then his presentation is not good, by 22 E. 4. and to this purpose he cited Heckers case in 12. H. 8. and one Ful∣jambes case in 6. E. 6. in Bendlows, and then admitting that Doctor Airie should be intended an usurper if he shall avoid this lease: it was also moved, that if a Corporation by a false name present, and admission, institution, and induction is made by a true name, if this make a Plenartie: and Boswel and Greens case Cook lib. 6. was cited: See more after fol.

The Maior of Lincolns Case.

Huddleston and Hills case.

IN an Attachment against the Maior of Lincoln, and the Steward of the Court there being Colshil, it was said, that if a writ of error be directed to an inferi∣our Court, they ought to execute it in all things although that their fee be not paid, nor tendered to them, and Mr. Man Secondarie to Roper said, that the fee which is demanded by them ought to be indorsed upon the return of the writ of error, so that the Iudges may judge of it if it be reasonable, and divers presidents warrant that accordingly.

Huddleston and Hill against Bows, an Elegit upon a judgement issued at the suit of Hill, and after Hill died, and his eldest son sued a scire facias upon the said judgement, and holden that it lieth not.

If a man sue in the Ecclesiastical Court for Tithes of Headlands, the Defen∣dant may have a Prohibition, but by some he ought to suggest that they are but small Headlands, and that there is a custome of discharge in consideration that he paid Tithes in kinde of Meadows, and in this case Williams said, that if a man keep sheep in one Parish until Shearing time, and then sell them into another Pa∣rish, in this Case the Vendee shall pay the Tithe wool to the Parish where they

were depastured in the greater part of the time of the growing of the wool. See the Tithing Tavle the fifth question.

Skelton against the Lady Airie.

IN a Prohibition the Plantiff saith, that—was seised of the Mannor of Calthrop, and also of the Rectory of Haughton Calthrop, and that the land whereof the tithe is demanded is Coppihold, and holden of the said Mannor, and that this was also found by special verdict accordingly, and that it had been always discharged of payment of Tithes, and it was argued, that the Prohibition did lie, for it was adjudged Mich 34. & 35. Eliz. that a perpe∣tual union of the Parsonage, and the land charged is a sufficient discharge of the Tithes, and a prescription may be well enough to be discharged of the payment of Tithes, as it appears by a Case put in the Arch-Bishop of Canterburies Case: Cook lib. 2. George Crook of Counsel on the other side, and he conceived that a perpetual unitie was no perpetual discharge, and he said there was no judgement given in the Case cited before, and he also said, that the Iury in this Case found not a discharge of payment of Tithes, but only a new usage to pay by unitie of possession, and he cited 10. H. 7. or 6. where the manner of Tithing is set down; also he cited the Bishop of Winchesters Case Cook lib. 2. and he cited the Prior of D. Case to be resolved in 40. Eliz. that a Coppiholder may prescribe to be dis∣charged of Tithes by pleading that he was alwayes Tenant by Copie to a spiri∣tual Corporation: also he cited the Case of Pigot and Hern mentioned in Cook lib. 2. in the Bishop of Wintons Case fol. 45. and he said, that it was adjudged in Sheddingtons Case, that if a man prescribe to be discharged of payment of Tithes by reason of payment of another kinde of Tithe, that this is not good.

Marie Reps against Babham.

MArie Reps by her Gardian was Plantiff against Babham in an action of Trespas, the Case was, that a feofment was made to the use of husband and wife for their lives, and after to the heirs of the body of the wife begotten by the husband, and if this was an estate tail general in the wife, or an estate in spe∣cial tail to the husband it was demurred: Richardson argued that it was a gene∣ral estate taile in the wife, and that the husband had but for life, and he vouched 11. E. 3. Fitz. tit. Formedon in proof thereof: Henry Yelverton thought it was an estate tail in both, and he said, that the Case in the 11. E. 3. is not like to this Case, for there the Prior cannot take but as Tenant in Common, and he vouched of his part 17. E. 2. title—where the inheritance is limited no more to the body of the one then of the other, there is an estate tail in both out of which Littleton took his Case; and Fitz. nat. Brevium fol. 193. G. where he puts the very Case in effect 41. E. 3. fol. 24.3. E. 3. fo. 90. Rips Case 21. E. 3. fo. 41.4. E. 3. fo. 145. and 15. Eliz. in the Common Pleas was, that a guift was made to husband and wife, and to the heirs of the bodie of the husband, of the body of the wife begotten, and this was holden an estate tail in both, if the word husband followeth immediätely, the word heir it is an estate tail in that person only, but if the word (with) be interpreted it altereth, but the word (or) interposed maketh no difference, no more then if the word husband had immediately followed 19. H. 6.75.

Pasch. 4. Jac. in the Exche∣quer.

Richards against Williams.

IN an action of Trover and conversion, betwixt Richards and Williams for two loads of Barley, the Defendant saith, that the Dean; Arch-Deacon, president, and Chapter of Landaffe was seised of a Personage in fee, and by the said name had leased unto the Defendant, to which the Plantiff replied, that the Arch-Deacon and Chapter of Landaffe were seised in fee, and leased unto him without that, that there was any Corporation as Dean, Arch-Deacon, president, and Chapter, whereupon the Defendant demurred: George Crook argued, that the Replication is good, and he made two points.

• First, that here is a good inducment to a Traverse.
• Secondly, that there ought to be a Traverse in the Case: to the first he said, that if the Defendant intitle himself by one name, and the Plantiff by another name, here is a good inducement for a Traverse, and he cited Croft and Howels Case in Plowden, where the Cooks were incor∣porated: by E. 4. by the name of Master and Governous;

and they made a lease of lands by the name of Master and Wardens, and this was holden a void lease, and he vouched to this purpose also 21. E. 4. fol. 56. where a Corporation was of Dean and Viccars, and a lease was made by them by the name of Dean and Priests, and 30. Eliz in the Kings Bench, and Windgate Hals Case, and Eaten Colledge Case in 3. & 4. Ma. Dyer 150.2. that in this Case the Plan∣tiff ought to take a Traverse, and he cited 44. Assise pl. 9. &. 44. E. 3. fo. 26. where one pleaded, that the Prior of the Hospital of St. &c. and the othersaid that the Prior of the house &c. and an averment was made, that it was known by the one name and by the other, or otherwise the plea had not been good without a Traverse: also he cited the Case of Raunce, and the Dean and Chapter of Chichesters Case in the Kings Bench, where Raunce took such an averment, or otherwise he ought to have taken a Traverse, and he cited the Lord Barleys Case in Plowden, and 5. H. 7. and he said, that the Plantiff by his Replication alledged other mat∣ter in fact then the Defendant did, and therefore there ought to be a Traverse 12. E 4. also if a man brings an action by the name of Gardian, and the other saith he is Prior, this is not good without a Traverse that he is not Gardian, 4. E. 4. fo. 6.32. H. 6. fo. 4.38. E. 3. fo. 34. an accompt supposing the Defendant one of the company of M. and it is there said, that the Defendant not being sued in the action, as one of the company, but this is only used for an addition, therefore there ought to be no Traverse: and after this argument Tanfield chief Baron said, that the argument now made touched not the point in this Replication, for the point is not if there needeth a Traverse in the cause, but what thing is Tra∣versable therein, videlicet, what is the principal matter alledged for the Defen∣dant, and therefore he put this Case, Prior and Covent of D. claim an Annuity by prescription, the Defendant saith, that within time of memory they were in∣corporated by the name of &c. in regard that it is within time of memory, Quere what thing is Traversable here, that is to say, what thing is the principal mat∣ter: and after at another day Walker to the contrary; and first he said, that it is not alledged in fact by the Defendant, but by implication. That there was any such corporation as Dean &c. and that which is alledged, but by implication ought never to be Traversed, and he vouched Dyer 365. & 27. H. 8.27. The al∣ledging that the Dean &c. is but matter of induement to the Plea in Bar, and therefore is not Traversable, for the lease supposed to be made by them is the matter of substance, and he vouched a Case between Richarson and Sir George Heart 31. Eliz. to be, where in an action against the Sheriff, for suffering an other to escape who was in Execution at the Plantiffs suit, and the Sheriff said, that he never arrested him, and he vouched also 10. H. 6. fo. 13. thirdly, he said,

that the Plantiff doth not Traverse in the same manner as is alledged by the Defendant, and therefore the Traverse is not good, and he vouched 27. H. 8. fo. 26. where in Trespass the Defendant saith, that I. S. is seised in fee &c. the Plan∣tiff saith, that his father was seised in fee, without that that he had, any thing, this is no good Traverse, and Thompson thought it no good Traverse; it is alledg∣ed in fact for the Defendant, that such a Corporation made a lease, therefore there was such a Corporation, and he said that a man may Traverse by a Negative pray∣er, or by a Negative pregnant 9. H. 7. & 27. H. 6. where a Trespas was brought by I. and G. his wife, the Defendant said, there is no such G. his wife, and this is good: and so in 40. E. 3. fo. 36. & 37.11. H. 4. fo. 10.45. E. 3. fo. 6. in a quare impedit praesentare to the Church of D. the Defendant saith, that there is no such Church, 22. E. 4. fo. 34. an action was brought against I. S. Maior of D. and he Traversed that there is no such Corporation; Tanfield chief Baron said, that if in an action of Trespass the Defendant saith, that I. S. was seised in fee, and infeoffed him without that &c. and the Plantiff saith, that I. S. was seised in fee, and infeoffed me without that, that there was any such person as I. S. in being, this is no good Traverse: Hern Baron seemed that this Traverse is good in the principal Case, but he was once of Counsel with the Plan∣tiff; and it was moved that the Case should be Compounded.

An Information against Page.

IN an Information against Page, and another upon the Statute of 3. & 4. E. 6. cap. 21. for buying of Butter, and selling of the same by retail contrary to the form of the Statute, upon not guiltie pleaded, the Iury found one of them only guiltie both of buying and selling, and the other not guiltie: and it was moved, that no judgement may be given in this Case, in asmuch as the action is conceived upon a joynt buying by two: and it appeareth that this is but by one, but it was argued, that judgement ought to be given, for it cannot be intended in Law, as to this purpose a joynt buying, for the wrong is several, and in proof thereof was cited 36. H. 6. fo. 27. the 11. H. 4. Dyer fo. 194. or 195. accordingly; also this action is for a wrong done to the Common-wealth, which is a several wrong by either; and to this purpose was cited 40. E. 3. fo. 35. & 36. H. 6. ci∣ted before, and 5. H. 5. fo. 3. where an action de malefactoribus in Pareis was brought against three, and one only was found guiltie, and judgement was given against him, and there is no difference as to this purpose between this Case, and an action of debt upon a joynt contract made by two, as appeareth by 21. H. 7. and Partridges Case in Plowden, where it is said, that the bargaining is but matter of conveyance to the action, and according unto this was cited 33. H. 8. Brook tit. issue: and also 28. H. 6. fo. 7. and 36. H. 6. fo. 29. and a Case was adjudge∣ed in Mich. 35. & 36 Eliz. in the Kings Bench, which proves the same also: where an information was brought supposing the Defendant to have bought Cattle of two, contrary to the form of the Statute, and it was found that he bought them but of one, and yet judgement was given: Hitchcock to the contrary. and he argued, that no judgement ought to be given, for he said, that if an information be brought against two upon the Statute of usury, and one only is found guiltie, yet no judgement may be given in this Case, to which the Court agreed: and he cited Dyer 160.5. Ma. where two sued in the Court of Admiraltie one, for an offence triable within the bodie of the Countie, contrary to the Statutes of 13. & 15. of R. 2. and an action was brought against one of them only, and good, and he vouched also 22. Eliz. Dyer fo. 370.2. R. 3. fo. 18. where three brought an account against one, he pleads he was never their receiver, and the Iury found &c. and he cited a case to this purpose, an information was brought against two for buying of Cattle of one B. and for selling of them contrary to the form of the

Statute, and in this Case the Iury found the Defendant not guiltie for the buy∣ing them of B. but that he bought them of one P. and upon an attaint of the Iury the opinion of the Court was in this case, that though the verdict was affirmed, yet no judgement ought to be given thereupon, and this was the true Case of Lid∣wood and Pearpoint cited before on the other side, as George Crook said.

York and Allein.

A Man recovered damages in an action upon the Case against B. who at the time of the judgement was joyntly seised in fee with C. and that after B. and C. aliened, the partie who recovered is outlawed, the King eight years after this outlawry extends the moitie of this land for these damages recovered against B. and it was moved, if he shall have them in extent for them, or not, also if he shall have it without a scire facias; and the Barons were clear in opinion that he shall have it in extent, for it was liable to the extent of the partie outlawed before the Alienation, and then when it comes to the King by the outlawry, although it be after the Alienation, it continueth extendible for the King, although the Alienation was before the outlawry.

It was admitted by all the Barons, that if a Coppiholder surrender to the use of a younger son, and dies, that this younger son cannot bring an action until admittance, but if the Copihold had descended to the heir, he may have an action before admittance: see Cook Coppihold Cases lib. 4. fol. 22. and also it was said, that all Coppiholders of the Kings Mannors may now have admittance into their Coppihold estates well enough, and the order for the stay of their admittances which was made heretofore is now dissolved and quashed.

Dennis against Drake.

DEbt was brought by Dennis against Drake Sheriff for an escape, a man had judgement in the Kings Bench, and a writ of error was brought with∣in the year, and after the year passed the judgement was affirmed in the Exchequer Chamber, and within a year after the affirmation a Capias issued to the said Drake the Sheriff, who took the partie and suffered him to escape, and this being the Case upon the declaration in this action the Defendant demurred, and all the Barons said, that there is no question but a Capias may well issue within the year after judgement affirmed without a scire facias, though it be more then a year after the first judgement, and it seemed to them, that there was no difference, though that the writ of error was not brought untill after the year of the first judge∣ment given, although in such case there be an apparant neglect in the partie, who had not sued his execution within the year, and therefore he was enforced to a scire facias thorough his neglect, whereas if error had been brought within the year, he had never been driven to his scire facias in this Case, yet for asmuch as when the judgement is affirmed, this is all one as a new judgement, they conceived it made no difference, and Tanfield chief Baron said, that it had been often so judged in the Kings Bench.

It was said here, that if a man be instituted to a benefice he ought to pay the first fruits before induction by the Statute, but by the Common Law it was o∣therwise, for he is not to have the temporalities until induction, and therefore he could not pay the first fruits, but another person cannot be presented to this be∣nefice during the continuance of the first institution, see Cook lib. 4. in Digbies Case fol. 79. that the institution to a second benefice is a present avoydance of the first.

Saint Saviours in Southwark in an Information.

IN an Information of intrusion against A. and B. the Defendants claim and justifie by force of a lease made unto them by the Queen of the Rectory of Saint Saviours in Southwark in the year 33. Eliz. and the truth of the Case was, that the Church-wardens of the Church of Saint Saviours, and their successors were incorporated by letters Patents, in which Patents, it was contained that the Parishioners or the greater number of them, every year should elect two Church-wardens, and that the said Church-wardens and their successors are a Corpora∣tion capable to take, purchase, and sell, and after the said Charter so made in re∣gard of the great number of the Parishioners of the said Parish, the Bishop of the Diocess made an order, that the Parishioners should appoint a certain number of the said Parish to be called Vestrie men, the which Vestrie men, should have the election of the Church-wardens from time to time, for and in the name of the whole Parish, and after it was used, that the said Vestrie men elected the Church-wardens accordingly for a long time, and that A. and B. being so elected the Queen Anno 33. Eliz. made a lease to them for years by the name of A. and B. Church-wardens of the Parish of Saint Saviours &c. and their successors rendring rent, and this appearing to be the Case upon evidence to the jury; the Barons moved two points.

• First, if the election made by the Vestrie men were a good election to make them a Corporation capable to purchase within the intent of the Kings Charter, in so much that saith, that they shall be elected by the greater number of the Parishioners, and here but a small number that is the Vestrie elected them; and as to that it seems by the Barons, that in regard it was not given in evidence that others of the Parish to a great number did withstand, or gain-say the said election or nomination, it being made at a day usual and place certain, and therefore all the Parishioners by intendment were knowing of it, or might by intendment of Law have been present at the said election, it being in an open place where every Parishioner might make resort, and did not, therefore it was held that this election was as good as if all the Parishioners had met and elected them, for it were hard in Law, if the election by these that are present should not be good when the residue are wilfully absent, and therefore Tanfield chief Baron cited a Case, where the King did grant that the Parishioners of Wallingford should be a corporation to bargain and sell, and that the greater number of the Pa∣rishioners there did make leases and estates, and there was an usage, that at the time of meeting for the making of any such leases by them, they did use to Ring a bell, by the which notice was intended to be given of the assembly: and that after such Bell rung 20. of the Parishioners then present did make a lease, there being 100. others in the Parish not present, and yet this was adjudged in the Court 32. Eliz. to be a good lease, and he said, that if there be a day and place by usage certain for their meeting, in such case there needeth no warning; and therefore in the principal case, the election was good, but as for any order made by the Bishop that had been of no force to this purpose.
• Secondly, it was moved, that although this were not good to make them Church-wardens within the intent of the Kings Charter of Corporations, yet that this lease made by the King, should amount to make them a Corporation, and to a lease unto them also, that being by intend∣ment for the benefit of the King, inasmuch as a rent is reserved; like as when the King makes a lease, to the honest men of Islington rendring rent, but unto this Tanfield the chief Baron said, that he held, that this lease should not make a corporation where the King conceived, that there was no corporation before, but

• that the King should rather be said to be deceived, for he took a difference where there is a reputed Corporation in being and where there is not, and thereupon the Barons directed the Iury to give a general verdict.

In this case it was agreed by the Barons, that if the King make a lease for years to A. and after he makes a lease of the same land to A. for more years, this second lease is meerly void, and therefore the acceptance of it shall not cause a sur∣render of the other lease, and they said, that it was holden accordingly in Harris, and Wings Case; see Plowden, Fulmerston and Stewards Case, in which case the second lease was one good, although it was void after by relation.

It was held for Law, that if a man do make a feosment to A. to the use of B. for the life of C. and that if B. and C. die, then the remainder over, this is a Con∣tingent remainder by Borastons Case in Cook lib. 3. and also by Colthirsts Case in Plowden.

It was also held, that if a man doth in consideration, that his son shall marry the daughter of B. covenant to stand seised to the use of his son, for life, and after to the use of other his sons, in reversion or remainder, these uses thus limited in remainder, are fraudulent against a putchaser, though the first be upon good consideration, viz. for marriage, also it was holden, though the consideration of marriage be a good consideration, yet if a power of revocation be annexed to it, it is void as unto strangers.

By Standon and Bullocks Case cited in Twins Case Cook lib. 3. if a man reserved a power of revocation by assent of a stranger, this is fraudulent, but if there be a consideration to be paid before the revocation it is otherwise.

Mich. 4. Jac. in the Exche∣quer.

An Information against Bates Mich. 4. Jac. in the Exchequer.

AN Information was exhibited against Bates a Merchant of the levant, and it was recited, that the King by his letters Patents under the great Seal had commanded his Treasurer, that he command the customers, and receivers, that they should ask and receive of every Merchant denizen, who brings within any Port within his dominions, any Currants five shillings a hundred, for impost above two shillings and six pence, which was the Poundage by the Statute of every hundred, and it was alledged; that Bates had notice thereof, and that he had brought in Currants into the Port of London, and refused to pay the said 5. s. in contempt of the King, whereunto Bates came, and said, that he is an Eng∣lish Merchant, and an venturer and a denizen, and that he made a voyage to Ve∣nice, and there bought Currants, and imported them into England, and he re∣cited the Statute of the first of King James cap. 33. which grants 2. s. 6. d. for Poundage, and he said, that he had paid that, and therefore he had refused to pay the 5. s. because it was imposed unjustly, and unduly against the Lawes of the land, whereupon the Kings Attorney demurred in Law; this matter had been divers times argued at the Bar, and at the Bench, by Snig, and Savil, Barons, and now by Clark and Flemming chief Baton whose arguments I only heard, and Clark, who argued first this day said, that this Case being of so great conse∣quence great respect, and consideration is to be had, and it seemeth to me strange, that any subjects would contend with the King, in this high point of Prerogative; but such is the Kings grace, that he had shewed his intent to be, that this matter shall be disputed and adjudged by us according to the antient Law and custome of the Realm, and because that the judgement of this matter cannot be well directed by any learning delivered in our Books of Law, the best directions herein are presedents of antiquitie, and the course of this Court, wherein all actions of this

nature are to be judged, and the Acts of Parliament recited in arguments of this Case prove nothing to this purpose, the best case in Law, is the Case of Mines in Mr. Plowden Com. where this ground is put, that the precedents of every Court, ought to be a direction to that Court, to judge of matters which are apt∣ly determinable therein, as in the Kings Bench for matters of the Crown, in the Common Pleas for matters of inheritance and Civil contracts, and in the Exche∣quer for matters of the Kings Prerogative, his revenues, and government, and as it is not a Kingdome without subjects and government, so he is not a King without revenues, for without them he cannot preserve his dominions in peace, he cannot maintain war, nor reward his servants, according to the state and ho∣nor of a King, and the revenue of the Crown is the very essential part of the Crown, and he who rendeth that from the King pulleth also his Crown from his head, for it cannot be separated from the Crown, and such great Prerogatives of the Crown, (without which it cannot be) ought not to be disputed, and in these cases of Prerogative the judgement shall not be, according to the rules of the Common Law, but according to the Presidents of this Court wherein these matters are disputable and determinable, as for Example, an action of accompt lies not by the Common Law against him, who had the land of the accomptant by mean conveyance, but if one be an accomptant to the King, and had land in fee, and alien it unto A. who alien it unto B. B. by reason of this land shall be charged with this accompt: in 14. E. 3. a Coroner was elected by the Kings writ as he ought to be, by the Countie, and after be was amerced, and because he was not sufficient to answer the Amercement the Countie was charged there∣with, and that appears of Record here, and in 30. E. 3. Rot. 6. as appears also of Record, in this Court one William Porter was Magister monetae, and had received Bullien of divers Merchants, and Coyned it in the Kings Mint, and did not restore the Coyne to the Merchants, but was insufficient, and the King paid the Merchants, and inquired of the suerties for the Coyne, and it was found that he had none, then it was inquired who recommended him unto the King, and it was found by whom he was recommended: and they who only recommended him as friends, were charged with the Debt, and if one be outlawed in a perso∣nal action, and Debt is due to him upon a contract, this shall be forfeited to the King, and this is ordinary by the Presidents of this Court, and yet this seems to be contrary to Law, and is against our Books, and the Kings Debtor shall have a quo minus against Executors upon a simple contract, and therein he cannot release, nor be non-suited, and I put these cases to prove, that the presidents of this Court ought to be pursued and observed, although they seem to cross the Common Law, and the Books thereof: a case was here betwixt the King and Jourden, Jourden was receiver, and sold his office to one D. and he not being able to pay Jourden for his office at the day limited, it was agreed, that Jourden should come to the next receipt, and when D. received the Kings money, that Jourden should take it for his office, which was done accordingly, after D. was indebted to the King, and this matter appearing as above &c. Jourden was char∣ged with the money which he had received, and as Stamford in his first cap. of Prerogative saith, that the King is the most worthy part of a Common-wealth so is he the preserver, nourisher, and defender of the people, and true it is, that the weal of the King is the publick weal of the people, and he for his pleasure may a forrest the word of any subject, and he thereby shall be subject to the Law of the Forrest, and be may take the provision of any man by his Purvieour, for his own use but at reasonable prizes, and without abuse, the abuse of which officer hath been restrained by divers Statutes, and the King may take wines for his provision, and also Timber for his Ships, Castles, or houses in the wood of any man, and this is for publick benefit, and the King may allay, or inhaunce Coyne at his pleasure, for the plentie of the King is the peoples peace, and these imposts are not only for the benefit of the people, and for the Kings profit, but are

also imposed many times for the increase of Merchandise, and Commerce, as the Statute of, Aulnageors made in the 2. E. 3. cap. 14. which was made princi∣pally to make cloathes more Vendible, and so Corporations are granted by the King with immunities and priviledges, and to seclude other subjects from them, are well limited and good, for it is for the increase of the peoples wealth, and there∣by the Kings revenue is increased, and sometimes there is contained in grants a Prohibition to other subjects, that they usury not upon the priviledges of such Corporations upon a pain, as in the custome of Forraign bought, and Forraign sold in London, and York, and divers customes are permitted to such Corpo∣rations, as in the Chamberlain of Londons Case, Cook 5. and the breach or violation of these customes is a decay of the Corporations, and so an impairing of the revenues of the Crown, and therefore the King may make them, and also give them priviledges, and make inhibitions to others, not to Vsurp upon them: King Edward the third in the sixteenth year of his Raign proclaimed, that no man should sell Wool-fels, or Leather under such a price, so that these staple commodities might not be debased, and this at no place, but at Northampton and Anwick, and this proclamation was the cause wherefore the Merchant in 43. Assise 38. was punished for using the slight to abate the prices, and for presidents in this matter of Impost, there are many of antiquitie, and first for Wines in 16. E. 1. the custome for a Tun of Wine was 4. s. and 21. and 24. E. 3. it was increased to—and 12.13. & 14. of H. 8. it was increased to 17. s. the Tun, and after in the 4th. of Mary it was increased to 4. Marks, and as it appears by the Records of this Court, it was answered upon accompt, for all this time according to that rate, and it is apparant, that no act of Parliament gave this to the King, but that it was imposed by his absolute power, and shall it now be doubted if it be lawful? God defend Prisage, that the King shall have one Hogs-head before the Mast, and another Hogs-head behinde, is not given to the King by any Statute, but was only an Impost by the Kings power, the Impost upon cloathes in 31. E. 1. was two shillings for a Scarlet, and 18. d. for other cloathes in Grain, and after in the 37th. year of E. 3. it was raised again and in the 37. E. 3. an Act was made for the length of cloathes, in the 33. H. 8. it was raised again, and in the time of Queen Mary, because that the making of so ma∣ny cloathes made the Impost of Wooll to be of so small value, therefore the Im∣post of every cloath was raised by her to a noble, and in the first of Eliz. an Im∣post was imposed, for the overlength of cloathes, and it appears in 30. E. 3. that the Impost of one Cloath was for a stranger 2. s. 8. d. and for a denizen 1. s. and all for cloathes: another Impost was for Woolfels, and Leather, the 31. E. 1. it was for Wooll half a Mark for a Sack, and after that to 10. s. and in the time of E. 3. to 20. s. and after to 40. s. and after to 3. l. and so of Woolfels and Lea∣ther, and as the benefit and price of commodities did rise, so was the Impost rais∣ed, and no Act of Parliament for the first imposing, and increase thereof, and so much for Woolfels and Leather. Now for allom, upon every kintal of allom was imposed 3. s. 4. d. which was answered upon accompt, and in the case of Smith it was not doubted if it shall be paid as here it is, but if it were contained in Smiths Patent or not, the imposition imposed upon Coles, now the 1. s. in∣crease is paid, the imposition upon Tobacco was never doubted to be unjust as this is, and so much for presidents. And now for Statutes, the Statute of Mag∣na Charta cap. 30. which was objected, that thereby all Merchants may have safe &c. to buy and sell, without all Tolluets, but there is a saving, viz. by the antient and old customs: the Statute of Articuli super chartas cap. 2. hath a sa∣ving in the end of it, that the King or his Councel did not intend thereby to in∣crease the antient prices due and accustomed; so are all the other Statutes of Purveyors, the Statute of the 45. E. 3. cap. 4. which hath been so much urged, that no new imposition shall be imposed upon Woolfels, wooll, or Leather, but only the custome and subsidie granted to the King, this extends only to the King

himself, and shall not binde his successors, for it is a principal part of the Crown of England, which the King cannot diminish, and the same King 24. of his Raign granted divers exemptions to certain persons, and because that it was in derogation of his state imperial, he himself recalled, and adnulled the same; as to that which was objected, that the Defendant had paid poundage granted by the Statute of the first to the King, that is nothing to this purpose, for that is a sub∣sidie, and not a custome, for when any imposition is granted by Parliament, it is only a subsidie, and not a custome, for the nature thereof is changed, and the impost of Wine is paid over, and above the poundage, and so should it be here, and whereas it was objected, that if it were in the time of war, it is sufferable, but in peace not, this seems no reason, for the King cannot be furnished to make defence in war, if he provide not in peace, and the provision is too late made, when it ought to be used, and as to that which was said, that the subject ought to have recompence, and valuable satisfaction, it seemeth to me that he had; for he hath the Kings protection within his Ports, and his safe conduct upon the land, and his defence upon the Sea, and all the Ports of the Realm belong to the King, and in this Court, there is a president where one in the time of Queen Eliz. claim∣ed to have a Port to himself as his own, and it was adjudged that he could not, for it belonged to the Queen, and it could not be severed, and the King only shall have the customes, for landing throughout all the land, and in the 17. of E. 3. there is a notable president, where he reciteth all the benefits, which the subject had in his forraign Traffick, by the Kings power and protection, and therefore he imposed a new Impost: the writ of ne exeat Regnum comprehends a probabi∣tion to him to whom it is directed, that he shall not go beyond the Seas, and this may be directed at the Kings pleasure to any man, who is his subject, and so con∣sequently may he prohibite all Merchants, and as he may prohibite the persons, so may he the goods of any man, viz. that he shall export or import at his pleasure, and if the King may generally inhibite, that such goods shall not be imported, then by the same reason may he prohibite them, upon condition or sub modo, viz. that if they import such goods: that then they shall pay &c. and if the general be lawful the particular cannot be unjust, and the words in the writ of ne exeat Reg∣num, viz. et quam plurima nobis, et Coronae nostrae praejudicialia ibidem prosequi intendis are not traversable by the subject, but he ought dutifully to o∣bey his Soveraign: as to that, which is said, that this command to the Treasu∣rer is not sufficient under the great Seal, that is otherwise, for before the Sta∣tute of R. 2. for matter of customes no command was directer to the Treasurer, but alwayes the King signified his pleasure to his customers under his privie Seal, and this gave authoritie to them to collect customes, and the same authori∣tie is given now to the Treasurer, and derived from him to the customers, as to that which is said, that the conclusion is evil, because it is in contempt of the King, without doubt it is a contempt, for the King may inhibit Traffick into any part of the world, if he will, or inflict a pain upon any, who shall Trade into such place inhibited, so may he do upon any commoditie either inhibit it generally, or upon a pain or Impost, and if a subject use the Trade after such inhibition, or import his wars, and pay not the impost, it is a contempt, and the King shall punish him for it, at his pleasure; and as to that which is said, that it is a bur∣then to the Merchant, that is not so, for the burthen layeth it only upon the better part of the subjects, and if it were a burthen, it is no more then they themselves imposed, which was in their hands by commission in the time of Queen Eliz. and they have raised the prices to subjects more then the value of the Impost; and it is not to be intended, that the King by any Impost will prejudice the cause of Merchants, for the Trade in general is to him more beneficial, then any parti∣cular Impost: the case of the 11. and 14. H. 4. of Aulnageor, is not to be com∣pared to this Case, for there the King had made a grant to a subject, and it was also of a thing which was granted before to a Maior, and also of a commoditie

within the land, and not transported, and for the case of Darcy: for the mono∣poly of Cards it is not like, for that is of a commoditie within the land, and be∣twixt the Patentee, and the King, and not between the King, and the subject, and as to the exception taken to the Information, that it is Vsitar. and doth not prescribe, this needeth not, for it is a prerogative wherein lieth no prescription, for every prerogative is as antient as the Crown, and as to the conclusion of the Information it was objected, that it is not good, for the informer ought to pray the forfeiture; but this belongs to the Court to Iudge of what shall be lost or for∣feited, the offence being a contempt, and therefore the conclusion good enough, and so for all these reasons, judgement shall be given for the King. Flemming chief Baron, touching the exceptions to the Information they are of no force, for the first Vsitat &c. it hath been well said, that the King needs not prescribe in any prerogative, for it is as antient as his Crown is, 2. E. 3. and for the conclu∣sion viz. that he in contempt &c. that deserves no other answer, but that which hath been given before, for it is enough, without doubt warranted by infinite presi∣dents, but for the Bar, it is an increase of the Defendants contempt, and no suf∣ficient matter to answer an indigested and confused tale, with an improper and disobedient conclusion, and there is in it multa non multum, but the conclusion is without president, or example, for he saith, that the imposition which the King had laid, is indebite, injuste, et contra leges Angliae imposita, and therefore he refused &c. in the case of Smith for Allom, the conclusion was moderate, and beseeming a subject, judgement if he shall have Impost by his grant, and in the case of Mines, the Defendant being a great Peer of the Realm, concluded upon his grant and interest in the soyl, and that he took the Mettal, as it was lawful for him, and did not confront his Soveraign with terms of injuste, indebitè, and the like, and the King as it is commonly said in out Books cannot do wrong, and it the King seise my land without cause, I ought to sue to him in humble manner, Humillimè supplicavit &c. and not with such terms of opposition in the Informa∣tion, and all his matter had been saved to him then as well as now, or he might have pleaded his matter, and said wherefore he refused, as it was lawful for him: but for the matter it is of great consequence, and hath two powerful objects, which it principally respecteth, the one is the King, his power, and prerogative, his Treasure, and the Revenues of his Crown, and to impair and derogate from any of these was a part most undutiful in any subject, the other is the Trade and Traf∣fick of Merchantdise, transportation in and out of the land of commodities, which further publick benefit ought much to be respected, and nourished as much as may be; the state of the question is touching a new custome, Impositions or customs, are duties or summs of money newly imposed: by the King without Parliament upon Merchantdise, for the augmentation of his revenues, all the questions arising in the case are, aut de personis, de rebus, vel de actionibus, viz. form and proceeding, the persons are first the King, his power, and authoritie. Secondly, not Bates the Defendant, nor the Venetians, but all men who im∣port Currants, the imposition is properly upon Currants, and for them, and is not upon the Defendant, nor his goods, who is a Merchant, for upon him no imposition shall be, but by Parliament. The things are Currants a forraign commoditie, and a Victual; the 5. s. for impost which is said to be great, the action formed or Process is the command by the great Seal, and the word there∣in are Petere et recipere, if they be sufficient, and if good without Proclamation or other notice, and how notice shall be given, and if it be good without an ad quod damnum, and the case of Mines in Plowden, which is the sole case in the printed Books of Law, to this purpose hath in it, foure reasons of the judgement.

• First, the excellency of the King, or his person.
• Secondly, the necessitie of Coyn for his state.
• Thirdly, the utillitie of Coyn for commerce.
• Fourthly, the inconvenience, if the subject should have such royal possessions;

and these reasons are not extracted out of the Books of Law, but are only reasons of poli∣cy,

for Rex est legalis et politicus, and reasons pollitick, are sufficient to guide Iudges in their arguments, and such cases and presidents are good directions in cases of judgement, for they are Demonstrations of the course of antiquitie, where upon my judgement shall consist upon reasons politick, and presidents; the case in Dyer 1. Eliz. fo. 165. was not like to the case in question; but only a confe∣rence, and the case there was, for an impost upon cloath, a domestick commo∣ditie; in this case, are recited their Grievances, but it was paid, and it is deni∣ed here; but there was no resolution thereof: at the same time, was the impost of Wines increased, and paid, and no petition or complaint thereof, and the cu∣stome of Englands commodities, were at the first imposed by the Kings will, for no Statute giveth them, viz. for Wool, Woolfels and Leather, and it was called the great custome, and that it was paid, it will not be denied, and yet now it is doubted, if the King can impose it upon forraign commodities, the King may restrain the person as it is in Fitz. Nat. Br. à fortiori he may restrain the goods; there was no custom for home Commodities, but the great custom aforesaid, which was after increased by Parliament, which was called the petit custome: it is a great grace in the King to the Merchants, that he will com∣mand, and permit this matter to be disputed between him and his subject, and the most fit place is in this Court, and the best rules herein are the presidents thereof, and pollitick reasons, which I shall give, and apply them to the particulars before recited, and first, for the person of the King, omnis potestas à deo, et non est potestas nisi pro Bono, 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 Kings power is double, ordinary and absolute, and they are several Lawes and ends, that of the ordinary is for the profit of particular subjects, for the Execution of Civil Iustice, the determining of Meum, and this exercised by equitie end Iu∣stice in ordinary Courts, and by the Civillians 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 per∣son, 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 pro∣perly named pollicy and Government, and as the constitution, of this body va∣rieth with the time, so varieth this absolute Law, according to the wisdome 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 pollicy, and if it be so, the King hath done well to execute his extraordinary power; all customes be they old or new, are no other but the effects and issues of Trades, and commerce with forraign Nations, but all commerce and affairs with forrainers, all wars and peace, all acceptance and admitting for Currant forrain Coyn: 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 Kings Ports, they are the Gates of the King, and he hath abso∣lute power by them to include or exclude whom he shall please, and Ports to Mer∣chants are their Harvours, and repose, and for their better securitie he is com∣pelled to provide Bulworks, 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 Pirats at Sea in their passage, also, by the power of the King they are to be re∣lieved, if they are oppressed by forrain Princes, and his Treaty, and Embassage, and 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 Kings Courts, and of other Princes, the Iudges in them are paid by the King, and maintained by him to do Iustice to the subjects, and therefore he hath the profits of the said Courts: it is reasonable that the King should have asmuch power over forrainers, and their goods as upon his own subjects, and if the King cannot impose upon forrain Commodities a custome, aswel as forrainers may upon their own Commodities, and upon the Commodities of this land when they come to them, then forrain states shall be inriched, 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, and so much for the person of Bates the subject: it is said, that an imposition may not be upon a subject without Parliament: that the King may impose upon a subject, I omit, for it is not here the question, if the King may impose upon the subject or his goods, but the impost here is not upon a subject, but here it is upon Bates, as upon a Merchant, who imports goods within this land, charged before by the King, and at the time when the impost was imposed upon them, they were the goods of the Venetians, and not the goods of a subject, nor within the land, but only upon those which shall be after imported, and so all the arguments which were made for the subject, fail; and where it is said, that he is a Merchant, and that he ought to have the Sea open and free for him, and that Trades of Merchants, and Merchandise is necessary to export before, the Surplus of our commodities, and then to import other necessaries, and so is favourably to be respected, as to that it is well known, that the end of every pri∣vate Merchant is not the common good, but his particular profit, which is only the means, which induceth him to Trade and Traffick, and the impost to him is nothing, for he rateth his Merchandise according to that, the impost is imposed upon Currants, and he who will buy them, shall have them subject to that charge, and it is a great contempt to denie the payment, and so much for the person: I will give a brief answer, to all the Statutes alledged on the contrary part, with this exposition, that the subjects and Merchants are to be freed of Maletolt, and this was Toll unjustly exacted by London, Southampton, and other Ports within this Realm, but they are with this saving, that they pay the duties and customes, due, or which hereafter shall be due to the King, which is a full an∣swer to all the Statutes; the commoditie of Currants, is no commoditie of this land, but forrain, and whereas it is said, that it is Victual and necessary food, it is no more necessary then Wine, and impost for that hath been alwayes paid, without contradiction, and without doubt, there are many drinkers of Wine, who are also eaters of Currants, that which should be said Victual for the com∣mon-wealth is, that which ariseth from Agriculture, and of the earth within this land, and not nice and delicate things imported by Merchants, such as these Currants are, and are rather delicacy or Medicine then a Victual, and it is no reason that so many of our good and staple Commodities; should be exported to Venice, for such a slight delicacy, and that all the impost shall be paid to the Ve∣netians for them, and the King should have none for their Commoditie, and although that the price be thereby raised, this hurteth not the Merchant, nor no other, but only a smal number of delicate persons, and those also who are of most able and best estate, for their pleasure, but when the King is in want, he is to be relieved by a general imposition or subsidie upon all the subjects; the imposition which is here said, to be so great, and intollerable, is an evil president, for if he may do so much, he may do it in infinitum, and upon all other Merchandise: for the Imposition I say, that it is reasonable, for it is no more then foure times so much then was before, and that there hath been asmuch done in antient time in other Im∣posts, as in that of Wooll, which was at first but an Noble a fack, and is now at 50. s. the Impost of Wine was in antient time 3. s. 4. d. a Tun, and now is foure Marks, the lessening of custome and Impost is much to be guided, by in∣telligence

from forrain Nations, for the usage and behaviour of a forrain Prince may impose a necessitie of raising custome of these Commodities, and so it was in the particular of Currants, the Duke of Venice Imposed upon them a ducket by the hundred, which by the wisdom of the state was foreseen to be a means, that in time will waste and consume the Treasure of the land, whereupon the Queen writ to the Duke, that he would abate his custome, which he refused, wherefore to prevent, that so great a quantitie of this Commoditie should not be imported into the land, the Queen granted to the company of Merchants of the Levant, that none should bring in Currants, but by their Licence, and those Merchants Imposed upon them who did Import, which were not of their company, if he were denizen 5. s. if he were a stranger 10. s. and this was paid by the Mer∣chants without contradiction, but there was a clause in the Patent, that when the Duke of Venice abated his Impost, that the Patent should be void, and after the Duke was Solicited again, that he would abate the Impost, but he refused, and the first Commission was recalled, and after a new grant was made, which was executed all the Queens life time, which was as aforesaid; and where∣as it is said, that if the King may Impose, he may Impose any quantitie what he pleases, true it is, that this is to be referred to the wisdom of the King, who guideth all under God, by his wisdom, and this is not to be disputed by a sub∣ject, and many things are left to his wisdome for the ordering of his power, ra∣ther then his power shall be restrained, the King may pardon any fellon, but it may be objected, that if he pardon one fellon he may pardon all, to the damage of the Common-wealth, and yet none will doubt, but that is left to his wisdom, and as the King may grant a Protection for one year, so it may, be said, that he may grant it for many years, which is a mischief, and so ought to grant none, which will not be denied but that he may, so it may be said, that the Queen may grant a safe conducted a stranger, for if she may do that, then she may grant to all, which would be but then same to the inhabitants, and yet it will not be denied; but that she may grant to any or all, as in her wisdome shall seem convenient, and the wisdom and providence of the King is not to be disputed by the subject, for by in∣tendment they ••••mot be severed from her person, and to argue a posse ad actum to restrain the King and his power, because that by his power, he may do ill, is no argument for a subject, to prove the power of the King by presidents of anti∣quitie in a case of this nature may easily be done, and if it were lawful in antient time, it is lawful now; for the authoritie of the King is not diminished, and the Crown hath the same Attributes, that then it had, and in antient time such Imposts were never deuied, and that which is given by Parliament is not an Impost but a subsidie: in antient time small Traffick or intercourse was betwixt the inha∣bitants of this land and forrain Nations, so that the principal custom was of the Commodities of this land, which were Wolfels and Leather, and that the custom for Wools was an Noble for a Sack, was an imposition, as it appears by the Statute of the 14. of Ed. 3. cap. 21. it is objected, that Merchants cannot be restrained, but only persons suspected, as the writ of ne exeat Regnum is, but as it is said in Dyer, before cited, it is without doubt, that the cause is not Tra∣sable, and that the King may inhibit any man, for if it be not Traversable, it is not material, and the reason wherefore any man may be restrained, is for defence of the Realm, and it may be done by privie Seal, privie signet, great Seal, or Proclamation, and that appears by the writ of licentia Transportandi in the Register which containeth licence for one to Travail, and limits him to what place he shall go, and when he shall return, and with what goods; that the King may prohibit body and goods, and when a man is beyond the Seas, the King may command him to return, and if be doth not obey such command, he shall forfeit his good: now 〈◊〉〈◊〉 restraint of commodities many presidents are to prove it in the time of H. 3. and E. 1. it was forbidden, that no Wooll should be Transported into Flanders, and in E. 1. a Comu••••ssion was awarded to inquire, who had done a∣gainst

this ordinance, and the goods of one Freeston were seised, therefore, an Attachment awarded against the Ships of Hull, for Transporting contrary to the ordinance, in the 22. E. 1. there it was forbidden, that no Merchant should Trade with France, for, Trade with forrainers is a forrain thing which is only referred to the King: in the 17. H. 6. all Merchants were forbidden to import wares from Flanders into this land, and the Cittizens of London complained of certain Merchants, which had done contrary to this ordinance to the Lords of the privie Councel, which I have here ready; for the Record mentions it, and the Kings Attorney was commanded to exhibit an information against the Merchants, which he did, and they pleaded that the Proclamation was made, here upon Ea∣ster Eve, and that they were then at Bruges, and upon the Wednesday after Bruges Market they bought the wares before notice of the Proclamation, and before it were possible, that they could have notice of it, and pray judgement &c. and so much for restraint of the person and goods, by the Statute of 31. E. 3. Cap. 8. times were appointed in which Wools should be Transported, and also Cap. 9. Authoritie was given to the Chancellor and Treasurer, to defer the passage at their pleasure, but that this was the Common Law, and that the King by his su∣pream Authoritie might do it, it seems to me it is apparant by the Statute of the 26. H. 8. Cap. 10. which gives power to the King by his letters Patents, to li∣mit the time for importing of Wines against the Statute of 23. H. 8. Cap. 7. which was no more but a restoring of his power abridged before, and so was the Statute of 31. E. 3. for otherwise the Parliament would never have given him Authoritie to contradict an Act of Parliament by his letters Patents, or to revive these Acts: Impositions are meerly a new custome, and so are they stiled in the Margent of the Roll of the 3. E. 1. in this Court, where it is Recorded, that the King had assigned Merchants to receive (using the same words which are used here) half a Mark for every Sack of Wool, and a Mark of every Last of Lea∣ther, and that if the Merchant who is so appointed Transport any after, that it shall be forfeited, and out of this record I observe, that three hundred Pelts make a Sack of Wooll: from the 21. Ed. 1. unto the 28. E. 1. the customs for Wools was 40. s. a Sack, and in 25. E. 1. the Imposition of Maletolt was repealed by Act of Parliament, which Maletolt was an increase of Impost upon staple com∣modities, and therfore was given to the King a great subsidie with this cause, that it should never be drawn into president; which shews, that this Maletolt was rightly imposed, otherwise the Parliament would never have given him so great a Recompence for the Abrogation of it: but after in the 13. of E. 3. because it was a thing of so great consequence to the Crown. it was revived and made 40. s. for Wool, and Woolfels, and 3. l. for Leather for denizens, and double for stran∣gers: in the 14. Ed. 3. a Petition in Parliament to abate it, and for a great sub∣sidie it was released, and in the 18. of Ed. 3. it was again revived, and a new peti∣tion was made in Parliament, and this petition was continued until the 36. of Ed. 3. and then it was abated, and also by the 45. E. 3. it was again abated, so that it seem, that between these times it was revived, but after it did not continue long, for in 48. E. 3. it was again revived, and for Wool the Impost was 50. s. et sic de singulis, and in 1. R. 2. after it was answered to the King, as it ap∣pears in the accompts here, and in 5. R. 2. it was again suppressed by Parliament for a subsidie granted to the King with a saving of antient rights: all these Sta∣tutes prove expresly, that the King had power to increase the Impost, and that upon commodities of the land, and that he continually used this power notwithstan∣ding all Acts of Parliament against it, and so much for commodities of this land: but for forrain commodities it appears by no Act of Parliament, or other president that never any petition or suit was made to abate the Impost of forrain commodi∣ties, but of them the Impost was paid without denial; as for example, for Wines in the 16. E. 1. as appears in this Court upon Record, it was commanded to the Bailiff of Dover to levie and Gollece of every Tun of Wine of a stranger 4. s. and

in the 22. E. 1.2. s. thereof was released, at the suit of the French Ambassador, in the 26. of E. 3. the King granted priviledges to Merchants strangers, but there was given for it an increase of custome, and this was answered as it appears upon accompt in the times of E. 1. and E. 2. the case of Allom was as it hath been reci∣ted by my brother Clark: it is objected, that the Merchant ought to have free passage upon the Sea, but that both not conclude the King, but that he shall have his Impost if he cometh into his Ports, and here the question is for Merchandise after that they are brought into the Port, but it is said, that they cannot come in∣to the Port but by the Sea, that is true, but if this reason should hold then the King could not grant Murage, Pontage, and the like, because the common Channel to them is free, and Average is for securitie aswel as Ports: another objection, that the Defendant here is not restrained, but that is answered, for if a pain be inflicted upon them who import, this is an inhibition upon a pain to all; another objection was, that there was no consideration of the Imposition, and if it be demanded what differences between the cases; I answer as much as is between the King, and a subject, and it is not reasonable that the King should express the cause and consideration of his Actions, for they are arcana Regis, and no satisfaction needeth, for if the profits to the Merchant faileth he will not trade, and it is for the benefit of every subject, that the Kings Treasure should be increa∣sed: an objection was made against the form of proceeding, because it was by the great Seal to the Treasurer, and that he by the customers, Peteret et recipe∣ret, and this could not be better, as it was answered before: it was objected that it should be by Proclamation, and that needs not, for it toucheth not all the subjects, but only those who are Traders in Merchandising, the best and aptest means to give them notice by the customers, and it is alledged by the informati∣on expresly, that he had notice. It was lastly objected, that there ought to be a quod damnum in the case before the grant, that is not so, for that shall be only when the King granteth any thing which appertaineth to his prerogative, and not when he maketh Charters, to his servants to levy his duties due to his Crown, wherefore I think that the King ought to have judgement, which was after given accordingly.