13th April 1624

TUESDAY, 13 APRIL 1624

I. JOURNAL OF THE HOUSE OF COMMONS, PA, HC/CL/JO/1/13

[CJ 764; f. 134]

Martis, 13 Aprilis 1624

L. 1. An act to enable Martin Calthorpe to make sale of certain lands.

L. 1. An act for the establishing of the estate of Sir Edward Fisher, knight.

SIR NATHANIEL RICH reports the bill of Sir Robert Anstruther and the rest.

Ordered, to be engrossed.

Inns and hostelries. Presently, Committee Chamber. And all to have voice.

L. 2. Lady [Mary] Bulkeley's bill.

Committed to:

Sir Eubule Thelwall

Sir Peter Mutton

Mr. [James] Clarke

Mr. [John] Selden

Mr. Whitaker

Sir George More

Sir Thomas Myddelton

Mr. [Thomas] Wentworth

Mr. [John] Lowther

Sir Thomas Cheke

Sir Nathaniel Rich

All the knights, burgesses of Wales and Cheshire

Sir Henry Anderson

Tomorrow fortnight, 2 [o']clock, Court of Wards. All parties to have notice, and counsel to be heard at the committee.

[f. 134v] SIR THOMAS SAVILE. To have an order of the House to enjoin the attendance of some witnesses that came up to the committee of privileges.

Ordered.

L. 2. An act for the quiet establishment of the customs of the manor of Beaminster Secunda.

Committed to:

Thursday next, Court of Wards, 2 [o']clock. All parties to have notice.

L. 2. Moor burnings.

Committed to:

Thursday, 2 [o']clock, Court of Wards.

[f. 135] L. 3. Viscount Montagu's bill.

A petition read of Sir Francis Englefield's, and a letter of the Speaker's to the Lord Montagu.

SIR GEORGE MORE. Sir Francis Englefield gives way to this bill.

SIR GEORGE MANNERS. To have the decree taken into consideration.

MR. [EDWARD] ALFORD. More cause to write a letter now than the last Parliament. The gentleman is damnified in his own estate to the value of some thousands.

SIR JOHN WALTER. No cause this petition should stay the passage of this bill. This £500 was set upon him for his contempt. Would never be brought to make the account. 6 years he had this land and never paid penny.

Upon question, passed.

Mr. Speaker to write the like letter to the Lord Montagu.

SIR EDWIN SANDYS reports from the committee for trade about the pretermitted customs. Founded upon the proportion of cloth and wool. Regality and conveniency. For the regal part: a sack of wool consisted of 26 stone. The old custom was 6s. 8d. by act of Parliament; after, an addition of 33s. 4d. tunnage and poundage made with a solemn protestation never to be granted after, nor be drawn into precedent. Yet ever since it has been granted. [f. 135v] For cloth: a sorted cloth, 60 pound of wool; a long cloth, 72 pounds; 32 yards in measure. 4 sorting cloths to a sack of wool. By this means, raised 10s. on a sorting cloth; 10s. 11d. the custom of a long cloth. Edw. 3['s] time, when clothing began, granted to him 18d. upon a cloth. Queen Mary added to this 5s. 2d. [CJ 765] but this grievously complained of by the merchants. Came to all the judges. They adjudged it against law. Queen Elizabeth grew a new addition: 13d. and one third part of a penny, 28 Eliz. This upon another reason, an over length in cloth. 1618 King pleased to add to these sorting cloths 2s. and 2d. more, and 2 thirds of a penny (that makes up just 10s.); and to a long cloth 3s. 1d. and one third part.

This that now called the pretermitted custom. The projector of this one [Edmund] Nicholson. He petitioned the King, who referred it to the Privy Council, they to the learned counsel. They certified this custom legal and convenient. A patent to [Thomas] Morgan and Nicholson at £300 rent. A gracious proviso in the patent: to be void if found inconvenient. He, weary of his patent because of this proviso, resigned it up to the Queen; she to the King. After, another patent issued out to Mr. Nicholson, £1,000, 11 April, 19 Jac. £10 per annum to him. Complaint made to this House the last Parliament of this custom. Went to the King, and acquainted him with it. Delivered him a book of reasons, which book he has. Argued at the committee what duty this was. Not custom. That but 6s. 8d. on a sack of wool. If subsidy, must have his foundation in the act of tunnage. In this grant to the King, on all wares to be weighed, 12d. the pound. An exception of 4: all cloth, wools, woolfells and leather transported by merchant denizens. A new grant, but not on the cloth but the wool. [f. 136] 33s. 4d. charged only upon the merchant denizen; stranger pays double so much. But no charge upon the cloth. If cloth not excepted, the merchant stranger should pay 16d. upon every pound of cloth. Said on the other part, that the act of subject could/

31 Eliz. upon the question of the new draperies, Nicholson founds the custom on the statute of tunnage and poundage, but this cannot be. Committee delivered no opinion, but refer it to this House.

For the matter of convenience, little difference about that. This clear over-charged cloth. Arcus nimis intensus frangitur. Like letting blood of a body that is in a consumption. A decay of clothing an abating of the price of wools and a hindrance to the King's customs. Said that if this were laid down, where one cloth vented would be 10. This custom, Nicholson said, amounted to about £24,000 per annum. Some wrongs especially complained of. The ground of the custom was for staple wools. Other wools in the kingdom never accounted staple wools; never any such charge laid on them, yet now the pretermitted customs laid on them, as well as on the finest cloths. Secondly, on the new draperies. A great addition to them. A third complaint of extortion at Weymouth. Exact 4s. 4d. of a sorting cloth for pretermitted custom. The merchants paid this last year in that duty more than 4 subsidies.

MR. [HENRY] ROLLE. The question thus: whether this pretermitted custom be proportionable to the custom of 40s. on a sack upon the statute of tunnage. Thinks the King may not lay this duty on cloth. Quinquagesimo 1 Edw. 3. 1 Edw. 2 called the new custom. Not legal, though it might be equitable, that the King should have that for cloth which was granted for wool. 11 Edw. 3, 38 Edw. 3 prohibits the exportation of wool. The act must be construed according to the meaning of the makers of it. Edw. 3 set an impost of cloth. The Commons they complained against it, yet the King still kept it.

[f. 136v] MR. [ROBERT] BERKELEY. Can be no foundation for this custom but only the statute of tunnage and poundage. He thinks it not due by any law or statute but prerogative law. Nicholson goes only upon that ground. Will therefore apply himself to that. No such equity to be taken in that statute for 3 reasons. First, if this due to the King, due to former kings; yet this duty never demanded, no not in Henry 7['s] time when Empson and Dudley were in practice. Wanted a Nicholson, whom we have, in Edw. 6['s] and Queen Mary's time. In 5 Edw. 6 the law made that appropriated the buying of wools to the clothier. In Queen Mary's time Calais lost, where the staple of wool was. Then the power of transportation of wool was lost, and this subsidy also of 33s. 4d. of a sack of wool. So she lost her revenue, and thought upon this course to be relieved.

Second reason, out of the words of the statute. These 12 upon every pound in value, not in weight. An exception of cloth made in the kingdom and exported, and of wool, woolfells and leather. Then follows the clause of 33s. 4d. out of a sack of wool. Such as carried out in a sack. The lawmakers purposely omitted cloth. The exception of cloth not general but only for denizens. Pewter, made of tin, mentioned in that statute. Third, all cloth must pay after 2d. a pound, which not according to the rule of justice. Some wool not worth above 3[d.] or 4d. a pound. According to the arithmetical not geometrical proportion. In the statute of Quia emptores terrarum, the words "secundum quantitatem" expounded "secundum qualitatem".

MR. SOLICITOR. This a cause of a great deal of weight. Concerns the King many thousands a year. Desires to have a time to defend the King's right.

SIR FRANCIS SEYMOUR. This a tender point. Concerns the King's prerogative and the subject's liberty. Likes to have a petition to acquaint his Majesty with it. For those who have been the instruments of all these mischiefs: Nicholson, to have a time appointed to [f. 137] examine him; and who were the referees in this cause that certified it was legal and convenient.

SIR ROBERT PHELIPS. Question thus: whether this imposition can be laid by law. Fit the King's counsel should have time to answer this point, and then to appoint a select committee.

MR. [WILLIAM] NOYE. Not to have men assigned by the House to defend this custom. That a strange course. Mr. Nicholson has £1,000 per annum out of these customs. To have him hire counsel to defend, if they can.

Mr. Nicholson required by the House to bring in his last patent to the House on Friday next in the morning, and then to come provided with counsel to defend it if he desire.

A petition read from Matthias Fowle.

Warden of the Fleet called in. Demanded, by Mr. Speaker, how Fowle came first to his charge, and the time. Answers, he came to him 15 May last. First prisoner there 4 or 5 years ago. There was a suspension of his imprisonment. Has been in his custody ever since. Sometimes he has let him go abroad to mediate an end. Agreed to let him go abroad, with his keeper, to attend this House. £20 paid, £30 unpaid. Not upon any voluntary yielding of himself, but because he gave not security.

Matthias Fowle called in, says he was a prisoner to the Fleet about 2 years since. 26 May last, a new order for his commitment. Days of payment not yet come. And the warden kept him in prison, only gave him leave to go abroad to attend his business in this House.

[f. 137v] A select committee to consider of the offence of Fowle.

Mr. Comptroller

Sir Edward Coke

Sir Thomas Wentworth

Sir Francis Seymour

Mr. [John] Selden

Mr. [John] Bankes

Sir Henry Poole

Mr. Coke

Sir Guy Palmes

Mr. [William] Mallory

Sir Francis Barnham

Sir Nathaniel Rich

Sir Peter Heyman

Sir John Strangways

Sir Thomas Estcourt

Mr. [Christopher] Wandesford

Sir Edward Peyton

Mr. [Edward] Alford

Sir Thomas Savile

Mr. [John] Pym

Sir Francis Barrington

Sir Thomas Hoby

These are appointed by the [sic] consider of Fowle's offence and of his punishment; and likewise of the manufacture of gold and silver thread. Thursday next, 2 [o']clock, Star Chamber. The warden of the Fleet to bring Fowle to this committee.

MR. SOLICITOR. The committee for drawing the bill of subsidy desire to see some records above in the Lords House. To have the Speaker's warrant for the sight of them.

Mr. [John] Borough appointed to bring the records to the committee.

[House adjourned]

II. DIARY OF JOHN HOLLES, BL, HARL. MS 6,383

[f. 130v]

Tuesday, the 13th of April

SIR EDWIN SANDYS'S report of the pretermitted customs. These are founded upon cloth and wool. They consist of legality and conveniency. A sack of wool is 26 stone, and 364 pound at 14 lb. the stone. The act of tunnage and poundage was made the 3rd of Henry the 5. There is a custom of 40s. upon a sack of wool. One sort of cloth is to weigh 64 lb. [sic] and contain 28 yards. Another, called the long cloth, is to weigh 72 lb. and to contain 32 yards. In the time of Edward the 3rd when the honour of clothing began to advance itself in this kingdom, in the 32 [sic] of his reign they gave him 14d. upon a cloth. Queen Mary, being the first that printed the Book of Rates, added 6s. 8d. upon a cloth. Queen Elizabeth, in favour of [Sir Walter] Ralegh, added 13d. more and a third part of a penny upon a cloth. [f. 131] King James added 2s. and 2 thirds of a penny to the short cloth.

[Edmund] Nicholson the projector of this pretermitted custom, which the King referred to his counsel, who said it was both legal and convenient. Hereupon the King granted him and one Mosley [sic] a patent, but with this proviso: that upon the merchants' signification to any 6 of the Council that this would be prejudicial to them, the patent should be void. The question is what this addition of custom is to be called, whether custom, subsidy or imposition. Custom it cannot be, being but 6s. 8d. upon a sack of wool. By the new grant of 33s. 4d. upon every sack of wool transported to be paid by the merchant denizen, the 40s. is made up. The merchant stranger pays £3 6s. 8d. upon a sack. This was not subsidy by tunnage and poundage, therefore it must be imposition by regal power and prerogative. Thus much for the matter of right and legality.

For the matter of conveniency, it was the opinion of the committee that this addition of custom had quite overthrown the trade and was the decay of cloth by abating the price of wool and hindered the vent of cloth, as arcus nimis intensus frangitur or as bloodletting is to a weak body. For this last year in a certain town where the King was wont to have £150 a year for custom for cloth, he had not a penny. Four northern cloths are worth but £4 10s. whereas one southern, which in the Book of Rates is proportioned to 4 northern, is worth above £7 and yet the northern cloths bear the same burden of imposition. [f. 131v] Upon the frizadoes and penistones, the old imposition was 18d. and by the Lord Treasurer Salisbury made 20d.; to this now is added 3s. more. The merchants of Weymouth this last year paid more in pretermitted customs than 4 whole subsidies come to.

MR. [HENRY] ROLLE, a lawyer. Among lawyers, the puny [sic] first begins.

There is a difference between the arithmetical and the geometrical proportion; the arithmetical is only numerative, the other is according to the justice and worth of the thing.

SIR FRANCIS SEYMOUR. These pretermitted customs being against the law are mere impositions. The King is greater by the hearts of his people than prerogative. He moved to petition the King and let him see that whereas he would lose something by laying down these pretermitted customs, he now loses much more in the number of the cloths vented. He moved also to question both the projector and the referees, who sharing together make the King believe they are both legal and convenient.

SIR ROBERT PHELIPS. The question is whether these pretermitted customs may be laid by law. Charles the 5th, in his instructions to his son, tells him he will lose more by laying impositions upon his home commodities in the quantity than he will get in the quality.

MR. [JOHN] GLANVILLE [sic]. These pretermitted customs come to some £20,000 per annum.

MR. [WILLIAM] MALLORY moved that Nicholson, the patentee, should have a day assigned him to bring in his patent and papers that we may know [f. 132] who are the referees and what others had a hand in this business.

And for this Friday was ordered.

MR. SOLICITOR desired more time for himself and the King's counsel to maintain this patent to be good in law.

MR. [WILLIAM] NOYE said it was against the orders of the House to appoint a member of the House to a part of advocacy. He would have Nicholson himself bring his counsel, he having above £1,000 per annum allowed him, which would serve him to fee his counsel.

[Matthias] Fowle petitioning the House for his release upon pretence of poverty, SIR FRANCIS SEYMOUR said he heard nothing alleged in his behalf but his being poor, which all such projectors were, and he wished they might be so still. He moved he should be committed to the Serjeant.

SIR THOMAS HOBY said he was already the King's prisoner in the Fleet and we had no power to fetch him out.

MR. [JOHN] GLANVILLE. Though we cannot take him out of the Fleet, we may punish him more in the Fleet, there being degrees of punishment in one and the same prison, as we did with Blunt, being formerly prisoner at large, we committed him to Bolton's ward.

SIR THOMAS WENTWORTH. No man would more willingly spare this man than he; but if we should let him go, we should sit here to be abused and scorned of all men. He moved to have a committee to consider of this.

III. DIARY OF SIR THOMAS JERVOISE, HAMPSHIRE RECORD OFFICE, 44M69/F4/20/1

[p. 128]

Tuesday, 13th April

SIR EDWIN SANDYS'S report of pretermitted customs. A sack of wool 600 [sic] pound. The act of tunnage and poundage granted to Ed. 3 was upon a great protestation that it should never be taken for a precedent, but yet it has been granted to some other kings. In the time [of] Ed. 3, upon a short cloth xviiid [sic].

The Lady Ogle and her two daughters were sworn in the Lower House of Parliament to the oath of supremacy and allegiance, for the order of the House is that none desiring to be naturalized can have their bills admitted before they come in person and in that place before the Speaker take the said oaths.

IV. DIARY OF JOHN LOWTHER, CUMBRIA ARCHIVE CENTRE, CARLISLE, DLONS/L/2/1

[f. 62]

[13 April 1624]

The bill for moor burning. Committed.

Two other private bills: one of Widow [Lady Mary] Bulkeley's, I committee; another for the Lords of Beaminster [Secunda], Dorset, custom one to name another.

The Lord Montagu's bill. Third read, passed.

Sir F[rancis] Englefield petitioned to be eased of fines imposed in Chancery for not performing a decree imposed in Chancery.

Question of the pretermitted custom: whether it be legal by custom, subsidy, by statute or imposition. No custom, nor subsidy, because if it rise out of wool upon tunnage and poundage, which seems not for then the alien should pay £3 6s. 8[d.] for a sack and 12d. a pound by poundage, which was not intended, and woollen cloth is excepted as wool and after 33s. 4d. granted of wool, nothing of cloth. [f. 62] That it is inconvenient and if this laid down it would for one cloth vented vent so many more as would advance the King's profit more than the pretermitted custom. That this wool was only for staple wool wound and transported, not northern wool. 4 north[ern] cloth[s] but £4 10s., one southern £7. To which they are compared in tax so that upon new drapery it came to 6d. a pound of wool, and from 18d. now comes to 3s. At Weymouth they take 4s. for a cloth. That at Ipswich this last year, they paid more in pretermitted customs than 4 subsidies.

[MR. HENRY] ROLLE. 3 E. 1, membrane 24, granted as in patent roll, 6s. 8d. Then called new custom after 27 E. 3 called [sic]. 36 E. 3, cap. 24, that it is not extendable by equity as the new draperies may show. That wool prohibited exportation yet cloth not. 25 E. 3, 2 wool and cloths [?mentioned] several. The exception in poundage does divide wool from cloth. 20 E. 3 by equity shows that as of wool so of cloth he should have his custom, 14d. a cloth and 20d. merchant stranger. Yet tunnage and poundage will not bear this equity, so neither law nor equity. 31 H. 6, 12 E. 4, wool and cloth excepted out of poundage.

[f. 63] [MR. ROBERT] BERKELEY. Not by equity of tunnage and poundage for 3 reasons. Because in all late kings' times it was granted and yet none demanded in H. 7['s] time, R. 3['s] time etc. And in H. 7['s] time Empson and Dudley would have found it, but then wanted [an Edmund] Nicholson.

• [1.] The histories show how Queen Mary imposed it. 5 E. 6 limits wool to Staplers to Calais only, which lost, the staple of wool decayed and none can buy nor transport but clothier. Then her 33s. 4d. of a sack of wool lost. She and her Council set 5s. 6d. not of cloth by poundage equity, but prerogative.
• 2. The statute of poundage excepts cloth and wool. Then follows the grant of a sack 26 stone of cloth purposely omitted else mentioned as in the exception, which is to aliens only. And pewter and vessel [of tin] mentioned, so cloth and wool.
• 3. Proportion unequal of base wool and best wool. Arithmetical and geometrical. The latter for justice. Quia emptores parcella terrae secundum qualitatem, he shall pay at value.

Nicholson to attend on Friday and to have counsel if he please.

[f. 63v] As [Edward] Floyd, so [Matthias] Fowle committed in the Fleet into the hole there, yet respited and moved to transmit him to the Lords to his punishment.

18 Eliz. one punished after wrote a book in contempt, 23 Eliz. fined 500 marks and committed to Tower. He was agreed to be transmitted.

[Afternoon]

At the conference with the Lords upon the bill of monopolie[s]

The President of the Council, after the Lord of Canterbury's commendation of the bill and desire to reconcile the difference, saying our intent was one.

• [1.] Objected that all sole making, using and working etc. were declared and enacted monopolies, the saving of particulars were void.

Answered, that it was not meant to save them out of the declaration but penalty, and to leave them as they were and make them no better.

• 2. That it was hard to make it praemunire in the sole using etc. for things passed and settled.

Answered, that this leaves them as they were but let the maintainers hereafter look to it.

• 3. That the judges, if in trespass by default, stay judgement run into danger not knowing.

Answered, in actions upon the statute it must be mentioned, so no danger.

• 4. That new manufactures must not be inconvenient against law, increase, price, etc. else King may not allow them.

Answered, that anyways inconvenient, is not intended of a particular mischief, but if the good exceed the evil it is not inconvenient, otherwise not fit to be allowed.

• [f. 64] 5. Lords of Council desired a liberty and said it was dangerous if they run into praemunire for letters to judges to stay suits perhaps for reasons of state.

Answered, that the judges are sworn to stay upon no letters, so they ought not to write. And it was made praemunire in the judges for their protection, and that showed how the judges may though but give one importance, yet after issue give dies datus at pleasure.

The digging for saltpetre was desired to be excepted, and iron ordnance and great [?shot], saltpetre by prerogative for the King but not to be granted over.

V. DIARY OF EDWARD NICHOLAS, TNA, SP 14/166

[f. 147]

Jovis, 13⁰ Aprilis 1624

An act for the sale of 7 divers manors and lands of the Lord Viscount Montagu for the payment of debts and the raising of portions for his daughters. r. p.

[f. 147v] Sir Francis Englefield petitions that those fines which were in Chancery imposed on him for not obeying of decrees made in that court concerning the business of that bill of the Lord Montagu's now to be passed concerning those lands wherein Sir Englefield was a feoffee in trust, may by the favour and some course in this House be taken off from him, for he assures this House that he would sooner have released the trust committed to him by the Lord Montagu, but that he thought in his conscience he could have no discharge but by act of Parliament.

SIR JOHN WALTER says that the fines imposed on Sir Francis Englefield were for his contempt in that court for not coming to account for the lands he had in trust of the Lord Montagu, and therefore he would not have the bill stayed from the passing.

SIR EDWARD COKE says that Sir Francis Englefield enjoyed the Lord Montagu's land in trust 6 y[ears] and would never give any account for the same. Therefore would not have the bill stayed from passing, but would have the Speaker write a letter to the Lord Montagu to release the £500 which is imposed on him for fines.

This bill concerning this trust and the lands of the Lord Montagu is passed this House as it came from the Lords. And ordered that the Speaker shall write to the Lord Montagu for the discharge of the £500 fines [f. 148] imposed on Sir Francis Englefield.

This day the Lady Ogle, wife of Sir John Ogle, and her two daughters do here in the House take the oaths of allegiance and supremacy before their bill for their naturalizing has a second reading.

SIR EDWIN SANDYS says that the pretermitted customs stands on matter of regality and matter of [blank]. A sack of wool is 26 stone, 14 librae the stone, and is 364 librae. The custom [sic] on a sack of wool, which was 33s. 4d., was imposed 3 H. 5 with a protestation that it should not be drawn into a precedent, and was granted in contemplation of that King's great merit and only for his life, but has been since continued to all his successors. Custom on a long cloth is 10s. 11d. and on a short cloth 10s. That in the beginning of Queen Elizabeth's time, all the judges delivered their opinion that an imposition of 13s. imposed by Queen Mary was against the law of the kingdom. That the King referred the consideration of the pretermitted customs to his Privy Council and by them to the King's learned counsel and they certified that it was lawful to be levied by the King. There was a clause in the first patent to [Thomas] Morgan and [Edmund] Nicholson from the King that if this custom should be a hindrance to trade or burdensome to the subject, then it should be void. That Nicholson was soon weary of this clause and it was surrendered [f. 148v] in 1618 to Queen Anne and after by her to the King again; but after, a new grant thereof was to Nicholson and he was to have for this £1,010 per annum and he was to pay at first £300 per annum to the King, and yet now Nicholson says that he pays the King £1,000 per annum.

That this pretermitted custom was not due by the statute 3 H. 5 for there was only 6s. 8d., nor on that of 28 Eliz. for there was granted 33s. 4d. on wool but cloth therein is excepted. That Nicholson would have it on the statute of 1⁰ Regis of poundage and tunnage but therein all wool and things made of wool is excepted, and this was thought by the committee that it was imposed only by regal power. For matter of conveniency it was thought that this pretermitted custom did overthrow trade. Nicholson said that the revenue of the pretermitted custom did amount to £24,000 per annum. That by reason of this custom, one town that before did pay the King for the custom of cloth £150 per annum does now pay not a penny, all the trade of cloth being thereby overthrown in that place. [f. 149] That this pretermitted custom was laid on the new draperies in an exacting manner and where there was claimed but 2d. on the pound to be laid on the new draperies, they now exact 4d. and sometimes 6d. on a pound of wool. That at Weymouth there is exacted for this pretermitted custom on a short cloth 4s. 4d., which is double the rate that is due by the patent, and on a long cloth 10s. 8d, which is exaction, exceeding grievous and injurious.

MR. [HENRY] ROLLE says that he thinks that the pretermitted custom is not due by any law. That [2]1 H. 6, wool is excepted out of that statute of poundage and tunnage and so by a consequent cloth, or else the statute which gives 33s. 4d. on a sack of wool cannot reach to cloth.

MR. [ROBERT] BERKELEY. At first there was for custom on wool but 6s. 8d. and on a cloth exported 14d. All other laws for custom on cloth or wool are temporary until that of 1⁰ Regis for tunnage and poundage, wherein there is imposed 33s. 4d. on a sack of wool, which with the first 6s. 8d. makes 40s. on a sack of wool; but he thinks that this statute of tunnage and poundage does not reach to lay impost on cloth.

• 1. For that if that law had reached to the laying of an impost on cloth, then by the like law in [1] H. 7 he might have had an impost on cloth; but though [f. 149v] his reign was peaceable when laws were put in full execution, and there were then an Empson and Dudley, skilful men in penal laws and anything that might advance the King's profit, but there was no such thing ever taken by them. It should seem they wanted a Nicholson, which we have.
• 2. That the imposition was laid on a sack of wool, not on wool but on a sack of wool, and that the statute of 28 Eliz. [sic] by which was granted 33s. 4d. on a sack of wool would have mentioned as well that it should be paid for cloth transported as to mention cloth in the exception. That in the statute of poundage there is given custom of tin and of pewter made of tin, and it might as well be expressed in that statute that custom of wool and cloth made of wool should be made [sic] as well expressed as that of tin.
• 3. That concerning 2d. on a pound of cloth has no equity with it nor geometrical proportion, for the coarser wools are sold for not above 4d. or 6d. the pound.

And so concludes that by the law of tunnage and poundage this pretermitted custom cannot be due.

MR. CHARLES PRICE would have this business considered and expressed by a select committee in a petition to the King and to humbly beseech that it, being a grievance to the whole kingdom, may be taken off.

[f. 150] MR. SOLICITOR says that this business concerns the King's revenue in many thousands of pounds, and therefore he desires that the King's counsel may be heard before the opinion of this House be delivered against it.

SIR FRANCIS SEYMOUR would have us petition to the King to have this pretermitted custom taken off, and would have Nicholson examined concerning the execution of this business, and to command him to declare who were the projectors and referees of this business that certified it was good by law and convenient that they may also have the blame of their demerit therein.

MR. [JOHN] GLANVILLE would have a day given to the King's counsel to answer the arguments of the members of this House who have excellently argued and concluded that this custom is not due by law, with whom he concurs; and would have the punishment of any person for this business respited until the King's counsel be heard.

MR. [WILLIAM] NOYE would that Nicholson, who has £1,000 per annum for the executing of the patent of pretermitted custom in 4 ports, should give good fees to his counsel to defend his patent and that the members of this House (though the King's and the Prince's servants) should not here play the advocate, though they may think it legal and just that this pretermitted custom should be paid.

[f. 150v] [Blank]

Ordered that Nicholson shall bring in his last patent of the pretermitted customs to the committee of trade [sic] on Friday next and then, if he will, he shall bring counsel with him to defend his patent.

[Matthias] Fowle's petition that he thought he had not executed the patent of gold thread contrary to the intentions of this House. He is so sorry for his fault and craves pity and commiseration on his poor estate and his 5 motherless children, and that he is prisoner in the Fleet for non-payment of £50 to Sir Guy Palmes and was so before he was questioned here. That he had leave of the warden of the Fleet to attend this House concerning his said patent and was to return there again as soon as that business was here determined, and this is the cause of his being now a prisoner in the Fleet. That if he shall now have the pardon of this House, he will never meddle with a business of the like nature again.

Warden of the Fleet says that Fowle is his prisoner, without any trick or voluntary submission, since the Parliament sat.

SIR THOMAS HOBY. Never knew a prisoner that is in the Fleet sought out thence to be committed to our Serjeant. He thinks we cannot nor have power to commit him to the Serjeant of this House.

MR. [JOHN] GLANVILLE would have Mr. Fowle committed to Bolton's Ward in the Fleet for a few days.

[f. 151] SIR D[UDLEY] DIGGES says that the Londoners are like the frogs of Egypt who come into the courts and bring with them an infection that dishonours all those noble men that give ear to them. He could wish that Fowle were punished for an example to such Londoners.

Ordered that a select committee to take consideration of Fowle's faults and to present it to the House and what they think is fit to be done with him, and also to consider of the manufacture of gold and silver thread.

MR. [JOHN] SELDEN says that there was one Dr. [Arthur] Hall, who being censured in 28⁰ Eliz. in Parliament, did after write a book against that Parliament, and was punished 33⁰ of Eliz. in the Parliament for the offence against the Parliament of 28⁰ Eliz., where he was fined 500 marks and imprisoned in the Tower, and this done only by the House of Commons.

This precedent begat the order against Fowle.

VI. DIARY OF SIR WILLIAM SPRING, HOUGHTON LIBRARY, HARVARD UNIVERSITY, MS ENG. 980

[p. 212]

Tuesday, the 13th of April

An act to enable Martin Calthorpe to sell lands, etc.

An act for establishing the estate of Sir Edward Fisher.

SIR NATHANIEL RICH reports Sir Robert Anstruther's bill, etc. Engrossed.

An act for the establishing the possession of Dame [blank] Budly or Bulkeley, widow. Committed.

An act for establishing the customs of the manor of Beaminster [Secunda]. Committed.

An act against the burning of heath and ling in Westmorland. Committed.

An [act] for the Lord Montagu's lands.

[Blank]

Colonel [Sir John] Ogle's wife and her two daughters, one was Lady St. Leger, come to take the oaths before the second reading of their bill for naturalization.

SIR EDWIN SANDYS reports the business for the pretermitted customs and says that in it there are considerable the matter of legality and matter of conveniency. That the ancient content of a sack of wool was 364 pound, 14 librae to the stone, 26 stone, and that the first subsidy or custom granted upon this, which began in the third year of Henry the 5 and was called the subsidy of tunnage and poundage, and was made an act of Parliament with this solemn protestation that it was only granted to that King for his worth. (How- [p. 213] soever, it has been continued by acts ever since to every king and queen.) That the act aforesaid did only impose upon every such sack but 6s. 8d., which is now called custuma antiqua, which with the [subsidy] that was granted to our King in his first year of 33s. and 4d. upon the sack makes up the magna custuma of 40s. for every sack of wool, but now of late it is challenged to have the like proportionable rate of custom or subsidy laid upon cloth.

The custom of cloth was first 14d. per cloth, then by Queen Mary brought to 6s. 8d., but in Queen Elizabeth's time it was complained of and adjudged against law. But in the 28 of Queen Elizabeth there was 13d. added in respect of the length of cloth and this was granted to [Sir Walter] Ralegh. Since was added by our King 2s. 2d. and ²/3 of a penny, whereby it is now come to 10s. This [blank] and ²/3 of a penny added to the short cloth and 3s. and [blank] of a penny to the long is that which they call the pretermitted custom. One [Edmund] Nicholson was the first projector of this to the King. He referred the consideration to this to the council of state. They referred it to the King's learned counsel, and they did justify the project to be good and lawful, and so Nicholson and [blank] became the patentees by the King's grant, in whose patent there was a clause of provision inserted that upon the discovery of this to be prejudicial, it should be lawful for six of the council of state to recall the patent again. After this, Nicholson did turn it over to Queen Anne and she realigned [sic] it to the King, and Nicholson and [blank] had £1,000 per annum for a reward granted by patent.

It was debated at the committee whether this were a subsidy, a custom or an imposition. They resolved that custom it was not, for that is anciently 6s. 8d. on a sack of wool; subsidy it was not, for that in the statute for the subsidy of tunnage and poundage, that is, on every commodity that came under the balance, 12d. in every 20s., and that wools, woolfells, etc., transported by merchant denizens are excepted, and that the 33s. 4[d.] therefore cannot be by virtue of this act taken upon cloth but for wool only. So that the committee conceived that, being neither by regal privilege nor legal authority, it remained an imposition.

[p. 214] The committee also considered of the conveniency of these pretermitted customs to be still continued, and were of an opinion that after so many heavy burdens and sharp impositions upon the merchants and trade, it was like a vein opened in a consumed body, which, if it pleased not the King to stop in time, would let out the very life blood of the commonwealth. That hereby clothing was decayed, wool abased and the price of our cloth much lessened, that it would be a detriment to the King's profit because of so little vent of cloth as was now of late, for already they found that in one city where the King wont to have £150 per annum custom, there was not this year one penny paid, etc., etc. That as the course is now taken, the northern man pays as much for his coarse cloth as the southern man for his best, yet 4 of the one are not worth the other, and that the charge upon the new draperies was drawn up from 4d. to 6d. to the great damage and hindrance of that trade, etc., etc. He concludes [blank] Virgil, Aeneid, I. 11; Consulite in medium et rebus succurrite vestris.

MR. [HENRY] ROLLE argues this matter of pretermitted customs and says that there be many reasons why the ancient custom of the charge upon sacks of wool cannot be extended to cloth, etc. First, if we shall understand the word "wools" in the statute to extend to anything made of wool, then by those statutes which prohibit the exportation of wool, all the cloth of the kingdom is prohibited to be exported, which were our ruin, and that both wools and cloth are together mentioned often in one and the same statute, and are distinctly and severally always set down, etc., etc.

[p. 215] MR. [ROBERT] BERKELEY. That the 6s. 8d. is an ancient custom upon wool for the transportation of every sack, and this was so before the art of making of cloth was brought into the kingdom, and that after there was upon every cloth transported 14d. The projector of this pretermitted custom grounds his pretence upon no law but that of tunnage and poundage, which being granted to be 33s. 4[d.] added to the noble makes up 40s.; and that this was only to be taken upon a sack of wool and not upon cloth made into wool will plainly appear, which if it do, then that foundation of law fails and the pretermitted custom must then have his power from the law of the prerogative if no statute do warrant it.

His first reason was, what power the King now has by statute of tunnage and poundage, the same his predecessors many of them had, but they had no such power as appears by the practice and demand of those times to take it upon cloth. Therefore, etc. Contemporanea expositio optima. H. 7 was a peaceable king yet one that looked as nearly into his laws to raise profit to himself as any did, yet he never demanded it, and yet there was an Empson and Dudley in his time, but it seems there wanted a Nicholson, etc., etc.

In the statute which grants poundage, that is, 12d. for the commodity that is worth 20s., in this law there is exception of wool and cloth, woolfells and leather, etc. Therefore, there can be no poundage for cloth or wool; and presently follows and is reinforced the 33s. 4d. for a sack of wool, but no mention of cloth, and that particular would have as well been here expressed as before; and if the alien that pays double custom for all things should pay for wool and for cloth because it is made of wool, it were intolerable. In the same statute (to show the care of the lawmakers to explain and clear all doubts and conceits) there is a plain distinction made of tin and vessels made of tin. In the demand of this pretermitted custom, there is no just nor due observance of the proportion according to the quality of the cloth, for it is altogether arithmetical not geometrical, seeing as much is demanded for so many yards of coarse cloth as is for so many of fine, etc. So concludes the pretermitted custom not warrantable or allowed by any statute law.

[p. 216] SIR R[OBERT] PHELIPS moves that since the pretermitted customs have a different pretence from other impositions since they are only challenged by prerogative, whereas the pretermitted custom claims a warrant by law, that the King['s] counsel may have a time allowed them to prove the legality of them. And for the matter of conveniency, it will questionless appear that the King's profits is diminished, for that by this means his customs will be abated; and this did the wise Charles the 5th foresee and warn his son of when he advised him not to lay too heavy a burden upon his merchandise lest it turned to his own loss. He moves the King's counsel may have knowledge of this and time to attend it, to maintain the lawfulness of it.

But MR. [WILLIAM] NOYE excepts against that, saying it is not fit the Parliament House should appoint advocates in such a cause; only if Nicholson, the projector of this (in regard he has the benefit of £1,000 per annum out of this patent), will attend with his counsel to maintain it, he thinks it may be granted him, and that the King's counsel, whereof some are members of the House, may not be appointed advocates in this case.

The SOLICITOR does request a day of the House that he may give the House satisfaction in this particular, which is granted, and that though himself be a member of the House and will so carry himself in this business, yet that the House will allow that any other of the King['s] counsel that will come to be heard, and that the lawyers of the House will deliver their opinions and the reasons of them.

It is ordered that Nicholson shall bring in his patent and counsel to be heard for him if he will.

SIR R[OBERT] PYE says there never came to the King from these customs full £1,800 per annum.

[Matthias] Fowle is brought in and petitions favour for reoffending in the patent of gold thread. Promises to offend no more, that he thought he had done nothing contrary to the orders of the last Parliament, etc.

VII. DIARY OF SIR THOMAS HOLLAND, BODL., MS RAWL. D1,100

[f. 14]

13 April

First read. An act to enable Martin Calthorpe, esq., to sell lands for the advancement of younger children.

First read. An act for the establishing and confirming of the estate of Sir Edward Fisher, knight, of leases in Norfolk.

[SIR NATHANIEL] RICH reports Sir Robert Anstruther's bills [sic].

Put to the engrossing.

Second read, committed. An act for the establishing the possession of Dame [Mary] Bulkeley, widow.

Second read, committed. An act for the quiet establishing the customs of the copyhold estates of the manor [of] Beaminster [Secunda].

Committed. An act against the burning of heath and ling in Westmorland.

Third read, passed both Houses. An act for settling lands of the Lord Montagu.

The Speaker is to write a letter to Viscount Montagu for satisfying a fine imposed upon him in Chancery, if it were for trust.

The Lady Ogle, the Lady St. Leger [and] her daughter and another daughter took their oaths before the second reading of the bill for naturalizing.

[f. 14v] [SIR EDWIN] SANDYS'S report. The pretermitted customs is founded upon the proportion of wool and cloth. There is 2 points, legal and convenient. A sack of wool, the old custom by Parliament. 3 Ed. [1] put 6s. 8d. upon a sack of wool. Addition of 33s. 4d., which was the pretermitted custom, 3 H. 5 granted with a protestation for the worth of that King but it should never be brought into precedent. 6s. 8d. was custuma magna, which with the addition of 33s. 4[d.] came to 40s. a sack of wool. 60 lb. of wool [blank]; a long cloth [blank] 32 yards length. There is now upon a sorting cloth raised 10s., which is at 2d. Ed. 3, when clothing was advancing of cloth, there was granted 14d. custom, and in Queen Mary 5s. 6[d.], which was complained of in the [f. 15] beginning of Queen Elizabeth, which was [blank]. Queen Elizabeth 28, added 13d. ⅓ of a penny to the other, but that was upon a lengthening cloth, which was 2 yards longer, which was granted to Sir Walter Ralegh. His Majesty, in the 16 year of his reign, made it up to 10s. upon the long cloth.

The projector of these pretermitted customs was one Mr. [Edmund] Nicholson. It was referred by the King to the Privy Council. They referred to the learned counsel, who reported it to be lawful. There issued out a patent to Nicholson [blank]. There was a proviso that upon complaint to 6 of the Council to be inconvenient. [f. 15v] 19 Jac. a patent granted, £1,010 a year allowed to Nicholson. Upon complaint in Parliament, Nicholson flew to the King and laid an aspersion upon the merchant. It was argued against pretermitted that it could not be custom, for 6s. 8d. was the custom and [blank], nor subsidy of poundage, that is, all merchantable wares that come under the balance, there is allowed 12d. in the pound. There was an exception of wools, woolfells, cloth and leather. There is 33s. 4d. is [sic] charged upon the merchant denizen. The merchant stranger pay £3 6[s.] 8d., which is accepted [sic] only for the free denizen. This is not being a custom nor subsidy of poundage, is a regal prerogative.

[f. 16] The question was upon what statute this pretermitted custom was grounded, but that nothing being proved, it was not thought fit that the King's right should by the committee be disputed, but referred to the House. It was thought prejudicial to the price of the wool, an impediment to the vent and a hindrance to the King in his customs. Where the King had a £150 for custom of cloth, he had not a penny. The merchants affirmed that if this was laid down, where there is one cloth uttered there would be 10. It was [blank]. 4 northern cloths worth but £4 10s. 1 southern cloth is worth £8. The second complaint of new drapery, where it was allowed 2d. the £, [f. 16v] there was added 4d. to 6d. in the west country. Frizadoes and penistones was 15d., in Salisbury's time it was 20d., and now by the pretermitted customs the 3s. 4d. added of pretermitted customs. At Weymouth there was laid 4s. 4d. by the pretermitted customs, which came to 4 subsidies in that town in pretermitted customs.

[MR. HENRY] ROLLE. 3 Ed. 1⁰ or by statute of subsidy and poundage whether pretermitted customs be lawful, which he thinks not. 14 Ed. 3 that the King promised not to set further custom of his wools without the assent of the Parliament. Wool is excepted out of the statute of subsidy and poundage, therefore it extend not to cloth, that addition of 33s. 4d. [f. 17] New draperies have been in the statute of alnage. His conclusion was that these pretermitted customs did not extend unto cloths because wool was excepted.

[MR. ROBERT] BERKELEY. 6[s.] 8d. had the ancient name for a sack of wool; after that, making of cloth came. In the duty to his Majesty, for exporting a cloth was 14d.; all other being temporary, there cannot be a custom until the statute of subsidy and poundage. The pretermitted custom is not due by any law or statute, but by prerogative law. This duty cannot be grounded upon any statute but subsidy and poundage, where there is 33s. 4[d.] imposed upon a sack of wool exported. 3 reasons why it does not extend to cloth. The statute in R. 3, H. 6 [sic], Queen Mary. If it was due to our King, it was due to precedent kings. [f. 17v] If it had extended to cloth made of wool, it would have been taken hold of in those Kings' times. If they could have brought cloth within the statute of poundage, then there was [blank]. 5 Ed. 6 an exception of the Merchant[s] of the Staple for bringing their wool unwrought to Calais, but Calais being lost, the exportation of wool was carried away; this being lost, this addition of 33s. 4[d.] being lost in Queen Mary's time, there was the 5s. 6[d.] put to the sack of wool. 12d. for every merchandise transported excepting cloth made within the kingdom, wool, woolfells and leather. A sack of wool contain 360 [sic] lb. of wool. If the alien pay double custom [f. 18] for wool by the statute, if the cloth was within the statute of poundage, the stranger must pay double custom for cloth. He concludes that this pretermitted custom cannot be brought within the statute of subsidy and poundage.

[MR.] SOLICITOR moves that the House will allow him a time to defend the King's right for maintenance of the pretermitted customs because that they consist of many thousand pounds.

[SIR FRANCIS] SEYMOUR. The instruments of these are projectors who are well paid for their pains, Nicholson having a £1,000. He moves that Nicholson has order to attend the committee, and to find out the referees and who were the King's learned counsel.

[f. 18v] [SIR ROBERT] PHELIPS. There is a pretence of law that it is grounded and not of prerogative. It has been contradicted that it is against law. The King's servant has desired a day to defend it by law. It is reason a day be given him, which he/

[MR. JOHN] GLANVILLE. Until the House has condemned this to be unlawful, it is not fit the projector be brought here. He moves that the King's counsel and the Prince's counsel be admitted to justify the King's right. This being so weighty, he desires that as many of the King's counsel as shall be thought convenient to be assigned.

[MR.] SOLICITOR moves that upon Friday in the forenoon, the counsel may attend to defend the King's right.

[f. 19] [MR. WILLIAM] NOYE moves that seeing Nicholson receive a £1,000 per annum by this patent, that he hire counsel with that to defend that right, for he hopes there will not be made any of the members of this House advocates in this case.

Order. It is ordered that Nicholson shall bring in his last patent and bring counsel with him, if he will, to defend that right.

VIII. DIARY OF JOHN PYM, NORTHAMPTONSHIRE RECORD OFFICE, FH/N/C/0050

[f. 61]

April 13, 1624

After the reading of two private bills, MR. WANDESFORD and SIR GEORGE CHUDLEIGH offering to make reports were both referred to another time because the House was not full enough.

An act concerning the burning ling and heath in the county of York.

[f. 61v] An act for settling divers lands and manors of the Lord Viscount Montagu for payment of his debts and raising portions for his daughters.

A petition was delivered from Sir Francis Englefield that he might be discharged of a fine imposed upon him in the Chancery in the suit concerning those lands, and that in the meantime the bill might stay.

Against which was objected that the fine was imposed for satisfaction of damage sustained by the Lady St. John in not receiving her portion, and not merely for contempt, and that Sir Francis had kept the land 6 years without account or rendering the profits.

The Lady Ogle and her daughters came in to take their oaths, having a bill depending for naturalization.

SIR EDWIN SANDYS made a report from the committee of trade concerning the pretermitted customs. This charge was founded upon the proportion between cloth and wool, and the question was examined by two considerations, first, of the legality, second, of the conveniency.

The sack of wool was to contain 26 stone at 14 lb. to a stone, which makes 364 lb. It is conceived by some there was an ancient custom due by the common law. The original charge now appearing by any record is 6s. 8d., granted by the commonalty as is recited 3 Ed. 1 in the Parliament [sic] Roll, number 1, rotuli patentium. To this is added 33s. 4d. by the act of subsidy, tunnage and poundage, which was at first granted for a year; 31 H. 6 settled upon the King for life, but with a great protestation that it was done only in respect of the worth of that King and should not be drawn into precedent, yet has it been passed ever since to all the succeeding Kings. So these 2 sums, 6s. 8d. anciently called custuma magna, being perpetual, and the other 33s. 4d. for life, make up 40s. upon a sack.

The proportion of cloth stands thus. There are 2 sorts of cloths: the sorting cloth containing in measure [blank], to the making whereof there is allowed [blank] of wool, and upon this is now charged xs.; the long cloth containing in measure [blank], to the making whereof is allowed [blank] of wool, upon this there is now charged 10s. 11⅓d. These rates had this original and degrees. In the time of Ed. 3 the honour of cloth first began in this kingdom. 27 Ed. 3. Original[ia] de sias [sic], rot. 4, writing [sic] that it was made by Parliament, appears a grant of 14d. upon a sorting cloth. Queen Mary, after the loss of Calais, by her privy seal added 5s. 6d., which after her death was complained of, 1 Eliz., as a thing contrary to law and done by regal authority, and so adjudged by all the judges. Yet Queen Elizabeth added a new burden of 13²/3d. [sic], in respect the cloths were made 2 yards and more over length, which was granted to Sir Walter Ralegh. King James added upon a sorting cloth 2s. 2⅓d. [sic], which makes 10s., and upon a long cloth 3s. ⅓[d.], which makes 10s. 11d. These 2 sums are now called the pretermitted custom upon [blank] supposed [sic] that they make the charge equal in proportion between wool and cloth.

[f. 62] [Edmund] Nicholson was the first projector. His petition and reasons were referred to the Council and from them to the learned counsel. Their answer was that it was both legal and convenient. Thereupon a patent was granted to [Thomas] Morgan; and Nicholson had another patent of [£]300 per annum. But in the first patent there was a gracious proviso that upon certificate that this addition should prove prejudicial to trade, the patent should be void. This proviso made the patentees wary, who thereupon assigned it to the Queen, 1618; she surrendered to the King, who appointed it to be levied by his officers and made another grant to Nicholson, 11 April, 19 Jac., of £1,000 per annum in reward. It has not since continued in quiet but was complained of the last Parliament. Nicholson presented a book of reasons to the King in defence of it, and concluded that the merchants are enemies to the King's profit.

It was next debated of what nature this addition was, whether custom, subsidy or imposition.

• 1. It could not be custom because it exceeded in proportion any custom settled in the crown either upon cloth or wool.
• 2. Not subsidy, for then it must be founded upon the act of tunnage and poundage, the effect of which grant is this. In the first clause is a grant of xiid. per libram upon all goods exported or imported, 4 kinds only excepted: cloth, wool, woolfells and leather. There follows a second grant upon wool, woolfells and leather, without mentioning cloth, viz. upon wool 33s. 4d. by denizens, and upon strangers £3 6[s]. 8d., cloth remaining entire in his former exception. And if this charge should extend to cloth, as being implied in wool of which it is made, then must the merchants strangers pay both the former poundages and this double subsidy.
• 3. If it be anything, it must be imposition. But Nicholson does not claim it any other way but by pretence of the act. And impositions spring from the king's prerogative by some act of imposing, and there is none in this case.

For the matter of convenience, it was thought that this addition did clearly overburden the trade of cloth. Arcus intensus frangitur, urget; and strong bodies may endure bloodletting, but after consumptions and [blank] it must needs be dangerous. The general mischiefs were reduced to 4 points:

• 1. The decay of clothing.
• 2. The abatement of the price of wool.
• 3. The hindrance of vent.
• 4. The loss of his Majesty's revenue, being more diminished by decrease in the number of cloths transported than advanced by this excess of charge.

Besides these were enforced 3 particular complaints:

• 1. Allowing the proportion, it was to extend only to staple wools. The coarser wools never accounted staple and subject to no charge. This pretermitted custom was extended to all. The northern cloth [sic] worth but £4 10s. bears an equal burden with the southern cloth worth £8.
• 2. Concerning new drapery. For in the former proportion wool is charged with 2d. per lb., the new drapery has been [f. 62v] charged with 4d. and 6d., in particular frizadoes and penistones, which by the old custom paid 18d., by the new impositions 20d., in further burden by this pretermitted custom with 3s.
• 3. Seems to be mere extortion, and this complaint was urged by those of Weymouth, that 4s. 4d. was levied upon a short cloth for pretermitted custom, which is double the pretended duty, by which tax they paid this last year more than 4 whole subsidies.

The reporter concluded with this verse, consultie in medium et rebus succurite festis.

MR. [HENRY] ROLLE, who spoke next, insisted upon these 2 general points:

• 1. That it could not be founded upon any ancient statute.
• 2. Not upon the statute of tunnage and poundage.

In proof of the first point he made these observations:

• 1. That the demi-mark was not due by the common law, contrary to the opinion of Dyer. In the statute 51 Ed. 3 custom of wools are mentioned. 3 Ed. 1, number 24, it is called a nouvelle custom, granted by the Commons [sic]. 37 Ed. 1, number 24, the merchant strangers grant another subsidy, which is called the new subsidy; and from thence forward this distinguished by the name of custuma antiqua.
• 2. That 29 and 33 [sic] Ed. 3 it was accorded that the King should take nothing upon wool but the ancient demi-mark.
• 3. That this grant of 6s. 8d. upon wool did not include a grant of the like sum upon cloth made of wool, for which he gave these reasons:
•      1. There is a difference in kind.
•      2. Acts of grant ought not to be extended by equity, for then we shall not know what we grant.
•      3. In other cases they were interpreted distinctly. 11 and 3 [sic] Ed. 3 prohibits the exportation of wool without excepting cloth. 11 Ed. 3 the importation of wool prohibited, not extended to cloth. And in other laws where there is occasion of mentioning them both they are severally expressed.
• 4. At the time of the grant, no cloths were made in England and therefore it could not be in the thought of the lawmakers to include it.
• 5. About 20 Ed. 3 the King set upon cloth xiiiid. to be paid by denizens and by strangers xxid. The Commons complained and desired redress, but afterwards hearing the King's reasons did confirm it, which needed not if the further custom on wool had extended to cloth.

To the second point, he alleged that admitting it was included in the grant mentioned 3 Ed. [sic] 5, yet now it could not be taken but by the statute of tunnage and poundage, in which it could not be included either by law or equity for these reasons:

• 1. In Ed. 1['s] time no cloth was made. Afterwards, the manufacture growing within the realm, there was some equity the king should have recompense out of cloth according to the profit which he received out of wool before. But when the 33s. 4d. was imposed, the making of cloth [f. 63] was frequent. And that burden was the rather set on wool that it might be kept within the kingdom, in favour of clothing without intention to burden it.
• 2. In 31 H. 6 in the statute of tunnage and poundage ,wool was excepted and not cloth, and thereupon the subject compelled to pay poundage. If then the exception of wool does not except cloth, by the same reason the grant upon wool does not include cloth.
• 3. In the former part of the law, wool and cloth are excepted by several and distinct terms. Therefore, in the latter, wool shall not be interpreted to extend to both.
• 4. 1⁰ Eliz. the increase laid upon cloth by Queen Mary was complained on. The question referred to the judges, whose resolution was never published, which no doubt would have been if they had gone with the Queen.

MR. [ROBERT] BERKELEY gave a short exposition of the word "pretermitted". Added these general observations. That the 14d. upon a cloth was a distinct charge and not included in the ancient noble upon wool. That the temporary laws, which imposed upon a sack of wool sometimes more, sometimes less, could be no ground for this duty, which indeed had no other foundation than the regal prerogative, and in pretence (as appears by Nicholson's papers) no other but the statute of tunnage and poundage, within the words of which statute it was not, and in equity it could not be, for these 3 reasons:

• 1. The statute of tunnage and poundage granted to the King is like, in terminis terminantibus, to that heretofore made to R. 3, H. 7, Ed. 6, Queen Mary, Queen Elizabeth. If it be due to the King, then was it due to the precedent Princes. But it was never so taken and expositio [blank] is ever best to discover the meaning of the lawgiver. And yet in H. 7['s] time there was a diligent execution of all laws that might be profitable to the King. Empson and Dudley were very quick sighted, but he wanted a Nicholson.
• 2. The lawmakers that expressed cloth by name in the exception from poundage would likewise have expressed it by name in the charge of custom. If they had intended it should be charged, they would not have been so negligent as to distinguish cloth from wool, being so precise in the same law to distinguish tin and pewter vessels.
• 3. The injustice of laying an equal burden upon high and low priced cloths. In arithmetical proportion number and quantity is intended, in geometrical quality and value. In expounding the statute of quia emptores, etc. If 20 acres be held whereof 10 acres of arable are not worth above xiid. per acre, the other 10 acres of meadow worth xxs. per acre, the judges in apportioning the rent and services expound it in secumdum proportionem geometricam, non secundum arithmeticam. But by this project, contrary, the like charge is laid upon northern as upon western cloths.

The debate was succeeded by divers motions.

MR. [CHARLES] PRICE. [f. 63v] To draw an humble petition to his Majesty.

MR. SOLICITOR. That first some time might be assigned for those that would defend the King's title.

SIR FRANCIS SEYMOUR. Not to rest in the question of right, but likewise to examine the offences of the projector and of the referees, that by their punishment the commonwealth might be the better secured hereafter.

SIR ROBERT PHELIPS. To respite the main question of the king's power to impose and to bend ourselves to this particular, which differs from other impositions, being levied upon colour of law and that merely by prerogative.

MR. [JOHN] GLANVILLE. Until the House have condemned it as unlawful, not to question those that have had a hand in it. In the meantime, the King's and Prince's counsel to have leave to defend it. But the question not to be limited within these sums that are termed pretermitted customs, because the other charge laid by Queen Mary, Queen Elizabeth and the King are of the same nature.

MR. [WILLIAM] NOYE. Not to bind any man to act the part of advocate. We are to speak our opinions here not as of counsel. No man can alter his thoughts. Nicholson has a good part of the profit; let him bring his own counsel to defend it.

MR. BERKELEY. The patent to be brought in that we may see whether there be any proviso to make it void upon declaration of 6 of the Council.

The order of the House. That upon Friday any of the King's counsel that would speak in it should be heard, and Nicholson by his counsel if he did desire it.

The warden of the Fleet and [Matthias] Fowle appeared, according to the order yesterday, Fowle with a petition desiring pity and favour. Both of them being examined affirm that he had been in custody ever since the 15th of May last, but upon an order 4 or 5 years past for a contempt in the Chancery at the suit of Sir Guy Palmes; but the imprisonment had been suspended upon pretence of composition, and was suffered to go abroad until the solicitor of the other side the last term called for him.

Out of this cause did arise two considerations which gave some occasion of debate. The first concerned the interest of the commonwealth that offenders in the solicitation and practice of grievances should not go unpunished. In this particular were observed these aggravations:

• 1. That both the matter and the party were under complaint the last Parliament.
• 2. That the same thing with some little variation was put in practice again after the Parliament.
• 3. That he had presumed to offer it to this House in a bill.

The second consideration concerned the jurisdiction of the House, whether by our order a prisoner might be taken out of the Fleet and committed to the Serjeant, in which there were offered these distinctions:

• 1. That in a case of contempt we might take out a prisoner, but not in a case of execution.
• 2. That admitting we could not take him out, yet we might punish him there as in the case of [Edward] Floyd.

But for the better assurance of our proceedings, a [f. 64] select committee was appointed to meet upon Thursday for the examination of the offence and of the other respects coincident with it.

MR. SOLICITOR moved for a warrant to the Clerk of the Upper House for search of records, which was not granted because the subject may resort to them of common right.

Eodem die

In the afternoon, the committees of both Houses met upon a conference touching the bill of monopolies, which was afterward reported by Sir Edward Coke, April 19.

IX. DIARY OF SIR WALTER EARLE, BL, ADD. MS 18,597

[f. 135]

Tuesday, the 13th of April

Bill concerning moor burning. [C]ommitted.

[f. 135v] SIR EDWIN SANDYS'S report touching the pretermitted customs. First, for wool. A sack of wool consists of 364 librae. The old custom granted 6s. 8d., afterward an addition of 3s. 8d., tunnage and poundage. In the 3 H. 5 an act made with a great and solemn protestation, never drawn into precedent, nor never granted after, yet it has been done. Custuma magna, 6s. 8d.; temporary 33s. 4d.

For cloth, a sort of cloth 60 librae of wool, and 26 or 28 yards. Another sort 72 librae and 36 [sic] yards. 10s. upon the sorted cloth and 10s. 5d. [sic] on the long. In 31 [sic] E. 3, a custom of 14d. upon a short cloth. Quest[ion] may be [sic] added to this 5s. 2d [sic]. This complained of 1 Eliz. The judges consulted, adjudged to be against law. 28 Eliz., in Queen Elizabeth's time a new addition of burden, she added 13d. and ⅓[d.] upon over-lengthened cloths 2 yards longer than before. This granted to Sir Walter Ralegh. The King, 1618, was pleased to add to the sorting cloths 2s. 2²/3d., to the long cloth 3s. 1⅓[d.]. In former times no difference between short and long.

This called the pretermitted custom. The projector [Edmund] Nicholson, who petitioned the King. [f. 136] He referred it to his Council, they to the King's counsel at law. They certified it was legal and convenient. A patent to [Thomas] Morgan and [blank] at £300 rent. A gracious proviso that upon certificate of the merchants to 6 of the Council of the inconveniency, it should be void. He surrendered it to the Queen, and she to the King. A new patent to Nicholson, 11th of April, 19 Jac. A reward granted to him of £1,010 per annum. This being complained of last Parliament, Nicholson tenders to the King a book of reasons. Now the complaint is revived. The question is, what this is, whether custom, subsidy or imposition. Alleged it was not custom, the custom was but 6s. 8d. on the sack of wool. Vide whether granted by the act of tunnage and poundage, 1 Jac. There is granted 12d. the libra of things to be weighed and transported, except cloth, leather, wools and woolfells. A new grant on wool. There is granted on all wool transported 33s. 4d. the sack of denizens, not merchant strangers, double. They, strangers, must then pay 4d. the libra of cloth. It was alleged the act of the subject could not bar the king, adjudged in [f. 136v] the Exchequer 31 Eliz. upon the question of the new drapery. Nicholson found[s] it on the statute of tunnage and poundage.

Now for the matter of conveniency. It does clean overburden the trade, resembles the letting blood in the body of man; it hurts not a strong man, but it does a man that is in a consumption. Prejudicial, a decay of clothing, abatement of the price of wool, hinder transportation, loss of custom to the King. Nicholson confessed it amounted to £54,000 per annum.

3 particular wrongs. First, however it ought not to be on all wools but on staple wools, wound wools transported, the coarser cloths bear the burden as well as the finer. 4 northern cloths worth £4 10s., one southern cloth [£]7 or £8, yet the one bears as great burden as the other. Secondly, concerning the new drapery, raised to 4d. or 6d. to [sic] libra, tending to the decay of that trade, especially in the west parts. On the frizadoes and the penistones paid formerly 8d. [sic], the pretermitted custom adds 3s. more. At Weymouth they exact 4s. 4d. for a short cloth. The merchants have paid more than 4 whole subsidies this year for pretermitted custom.

[f. 137] MASTER OF THE ROLLS [sic].

• 1. First question, whether the 40s. on cloth be proportionable to the 40s. laid on wool?
• 2. For the right of imposition.

The 6s. 8d. was first granted by act of Parliament. 51 H. 3, Rot. Parl., 3 E. 1, mem. 24. Besides in dorse the King desires to have the same granted in Ireland. Called the new custom, 3 E. 1. And particularly 31 E. 1, m. 3; patentium rotuli, 1 E. 3; 27 E. 3, and 36 E. 3, cap. 11, nothing but the old custom of the demi-mark. The statutes 11 E. 3, 38 E. 3 do prohibit exportation of wool, not of cloth, which must have been if wool had comprehended cloth; besides 9 E. 3, cap. 1, 25 E. 3, cap. 9. At that time no cloths made exported, therefore not the intent, etc. E. 3 did set a custom on cloth, Rot. Parl., 20 E. 3, 30 part [sic]. The Commons prayed it might be taken away. The King answers there was as good reason, that being wool was restrained, he should have his custom out of cloth. And hereupon it has been kept afoot. He granted 14 E. 3, cap. 21, yet to the contrary 20 E. 3, the King alleging the time of necessity. No law or equity that 33s. 4d. should be laid more on cloth. In E. 1['s] time no cloth was made in the kingdom, but afterwards. [f. 137v] Statute 31 H. 6, there wools are excepted; yet 31 H. 6, cap. 8, if excepting of wool does not except cloth? In 31 E. 4, statute not printed, proviso cloth transported by denizens excepted, etc. The words extend not to cloth. A statute of subsidy. The stranger to pay £3 6s. 8d. besides. In 1 Eliz., the Lord Dyer, Queen Mary having laid imposition, the question whether she might do it of her royal or absolute prerogative.

MR. [ROBERT] BERKELEY. The question whether in equity the 33s. 4d. laid on a sack of wool be in equity to extend to cloth made of wool. The like statutes of tunnage, etc., R. 3, H. 7, E. 6, Queen Mary. If it had been then intended thus, it would have then been levied. There was in H. 7['s] time Empson and Dudley, skilful men to find out. In Queen Mary's time the like statute, but the reason of Queen Mary's exposition. In 5 E. 6 there is an exception for the statute Merchants of the Staple. So this 33s. 4d. on a sack of wool was lost. He [sic] that caused the 5s. 6d. to be added to the 14d. to make up the 6s. 8d. By the statute 1 Jac., 12d. upon every pound in value, not in weight. A sack of wool 364 librae transported. In the exception there is mention both [f. 138] of cloth and wool, but not in the act. The exception not of cloth generally but of cloth transported by denizens. In the statute there is mention both of tin and pewter made of tin. Besides it seems absurd that a pound of wool that is worth but 3d. or 4d. shall pay 2d., whereas that which is of 6 times the value shall pay as much.

SIR ROBERT PHELIPS. The question, first, whether this imposition be laid by law or not; second, admit it be legally done, yet whether convenient and for the King's profit or no.

SIR ROBERT PYE. Of the £24,000 arising of the pretermitted custom, there is not [£]18,000 answered to the King. Question the rest.

X. JOURNAL OF SIR SIMONDS D'EWES, BL, HARL. MS 159

[f. 104v]

April 13⁰, Tuesday

An act to enable the Lord Viscount Montagu for the sale of lands to raise his daughters' portions. Passed.

Dispute about the pretermitted customs.