16th April 1624

FRIDAY, 16 APRIL 1624

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

[CJ 768; f. 144]

Veneris, 16 Aprilis 1624

L. 1. An act for the advancing the trade of dornic weavers and better government of the same trade.

L. 1. Edward Egerton's bill.

L. 2. An act to reverse a decree made in the Court of Whitehall, commonly called the Court of Requests, between [John] Edwards the elder and [John] Edwards the younger.

Committed to:

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

L. 2. [Temple] Newsam's bill.

Committed to:

[f. 144v] Saturday, 2 [o']clock, Court of Wards. Bishop of Coventry and Lichfield to have notice, and all parties whom it concerns.

L. 1. An act for the authorizing of the lords lieutenants and deputy lieutenants of the several counties of this realm to appoint what persons what persons [sic] shall provide and find horses and armour for the necessary defence of this realm.

Upon question, rejected.

These are appointed to meet and agree of the heads of a bill about finding of horse and armour. And that they may appoint a subcommittee to agree of a form to draw a bill to this purpose or otherwise. And to consider whether the muster masters be needful or no, and of the abuses of their fees, and also powder and shot and all other abuses. Saturday, Star Chamber, 2 [o']clock.

SIR EUBULE THELWALL. To have some sent for from Liverpool that returned Sir Thomas Gerrard.

Ordered, they shall.

[f. 145] SIR THOMAS HOBY. To have the order enlarged about recusants. To have such in as are declared so by act of council or state, and when this done to have it presented up to the Lords.

Wednesday next, peremptory, to report to the House, and the other clause added. And that when this report made, to go up to the Lords.

The copy of the letter of the lords of the Council read.

Both such as are recusants by common fame and report, and such as are so of their own knowledge.

Customers' fees. None to be of the committee to have voice that have interest in it. The lawyers required to attend it.

SIR HENRY ANDERSON. To assist for/

SPEAKER. A letter from the King's [illegible] to him.

The letter read. The effect whereof was that the Lord Treasurer has been so far from being any means of the last dissolution of Parliament that, on his knees, he was a suitor for continuance of it, and that he the worst of traitors that should labour to keep the King and people at distance.

[Edmund] Nicholson called in. Desires not to defend the pretermitted customs by his own counsel. Fittest for the King's counsel to do it. His patent at the Great Seal. Can have it within 4 or 5 days. He propounded to Prince Henry, 1612, this custom. Secondly, to the Earl of Somerset. Then the business heard at the Council board. After to the Queen Anne. She referred it. They certified it to be legal. This Lord Treasurer took it from them, 1619. The referees in this business, Attorney [General], Solicitor, Sir Henry Yelverton and Sir Thomas Coventry. Set on foot in Queen Elizabeth's time. Knows no particulars of it. He followed it not then. [f. 145v] Never spoke with the Lord of Suffolk about this, but offered it to the Lady Frances before she was the Earl of Somerset's wife.

Withdrawn.

MR. SOLICITOR. To the business of the pretermitted customs. To the legality of it. 3:

• 1. To maintain it as legal.
• 2. Whether the calculation truly made.
• 3. Point of convenience.

Will mainly apply himself to the first. If he do err, he shall errare cum patribus all the judges. First, the nature of this duty. Secondly, the ground of it. The duty demanded. If not a duty proper for the king to ask, not to be maintained upon the statute of tunnage and poundage, will disclaim to speak in it.

Edw. 3, a noble was given on a sack of wool by Parliament. Then clothing began in England. Then thought fit to give the king an equal profit. 21 Edw. 4, a noble upon 6 cloths given. 6 [cloths] 14d. Then the statute of tunnage gives 5 nobles. First, this 40s. belongs to the king out of wool. Queen Mary's time and before, less than 40s. taken and yet more than a noble. Unjust to take more than a noble as well as 40s. Not screwed up to the height, but a part pretermitted, hence the denomination.

For the ground of it, must resort to the statute. A clause in the statute gives it "One other subsidy, for every sack of wool, 5 nobles". If these words cannot reach to cloth, then the king no right to this custom. Well objected that these words have an exception from the words of the act. No mention of purpose for cloth. Not literally to adhere to statutes in the exposition of them. This made in Queen Elizabeth's time when there was no exportation of wool. This could not but be known to the Parliament that made the law. The rule to know the meaning of a statute is to know the true use of it.

[f. 146] A constant rule has gone of this interpretation above 60 years. Let the king have that measure of justice from us that we desire from him. And inclusively of this very pretermitted duty. All know that in exposition of statutes, observe the constant interpretations of them. Hold it sacred to observe the ancient constructions. In Queen Elizabeth's time the judges gave their opinions in the Exchequer, the proper court for the king's revenues. 1 Edw. 6, the king has power of forfeiture of the merchandise that is not paid for. Records in the Exchequer, very many, of seizures of cloths for non-payment of subsidy. So that no imposition. The resolution of Parliament by laws since made. 14. Eliz. 10 chap. an act to reform the excessive length of kerseys. Thus: "The Queen's Majesty has been, is and ought to be, answered of her subsidies and customs of them." That by the judgement of this House agreed on. Then clearly upon all manner of cloths. And because the Queen should not be deceived, they were directed to be made of such a length. Another act, 27 Eliz., concerning making of white straits in Devon and Cornwall. "In defrauding her Majesty's customs, no such shall be made above such a weight and length." Whether this rightly calculated, will not determine.

To the point of conveniency. Admit this duty be heavy, yet, if just, not to be condemned. We serve a good and gracious master.

[f. 146v] MR. [JOHN] BANKES. Not to wade into former times. The statute of Queen Mary but temporary, died with her. Will answer the objections: the equitable exposition of the statute of tunnage. 1 Jacobi, a full and free liberty of exportation of wool which in force until 12⁰. For the second, the possession of 60 years, not now in question [CJ 769] of the old custom, but of the last pretermitted never demanded until these 4 or 5 years. For the acts of Parliament vouched these statutes no words of subsidy but a provision. No word limited what subsidy should be paid. Then, to legal judgements in the Exchequer for seizures, no seizures ever of any for pretermitted customs.

The duty built on 2 foundations:

• 1. The native foundations.
• 2. Statutes: 1 Queen Mary, 1 Queen Elizabeth, 1 Jac.

For the second:

• 1. Statutes: they are remembered as precedents to induce this custom.

For the legality:

• 1. No duty. Cloth directly excepted out of the first branch.

First exposition in Parliament, 14 Edw. 3. 31 [sic] Hen. 8, the opinion of the judges that no custom due on cloth, by any law. 1 Mariae [sic], Dyer. There also the judges could find no law for it. For matter of equity, the law a penal law and therefore not to be extended upon particulars not enumerated. And besides, this high subsidy set upon wool to keep it within the kingdom, and not to be set upon the cloth. [f. 147] Besides, not pretermitted, admitted all the rest. The duty before demanded and paid at the highest. The primitive calculation fails. In Edw. 3['s] time, the subsidy then on wool 6s. 8d.; on a cloth, but 4s. 6d. Now demanded as much on 4 cloths as on a sack of wool. A sack of wool will make 6 sorting cloths. Now laid on 4 sorting cloths, and therefore should be but a noble. May be objected that there must be an allowance of tare. No law for that. That not above 84 pound upon a sack of wool. So then the pretermission but a matter 14d. No reason that so much should be expected of cloth, as on the wool. The king has many commodities and recompense[s] that way. Another reason the late manufactures of new draperies. There not contented with this on cloth. Take after £3 a sack of wool upon them. Another reason this duty upon all sorts of cloths, coarse and fine, contrary to 2 acts of Parliament.

This debate adjourned until tomorrow morning, 9 [o']clock.

[House adjourned]

II. DIARY OF JOHN HAWARDE, WILTSHIRE AND SWINDON ARCHIVES, 9/34/2

[p. 246]

Vendredis, 16 Aprilis 1624

Bill pur inablante liuetenants et deputie liuetenants de enforcer persons de trover armes.

Sur question, rejecte; et committee pur faire novell bill pur armes et necessitie de muster masters et lour fees et abuses.

Wednesdaye pur popish recusants.

Letre del Roy al Speaker de clearer le Lord Tresorer pur dissolution del darren Parliamente lie in le Huise, mes remain ove le Speaker accordant al presidents.

Le SOLLICITOR pur pretermitted customes:

• 1. Legall?
• 2. Si calculacion droit?
• 3. Si convenient?

Pur le first, errari cum patribus, esteant l'opinion de touts judges ore et de temps passe. Si imposition I will decline. Parte de tunnage et poundage et solement dutie. 14 E. 3 settle custom pur wooll, 6s. 8d. sur sacke de wooll tanque cloathinge begann. Wooll yeald grande benefitte al corone et 6 clothes respond al sacke. Tunnage et poundage fait 40s. al Roy; subsidie de 5 nobles sur sacke. [p. 247] Ever since Queen Mary, 40s. taken pur sacke, ascun temps plus ascun temps et meins. Le grounde de cest 1 Jacobi, cap. 33: les parolls tunnage pur vine poundage pur wooll.

1 E. 6 seisures et judgements in l'exchequer pur ceste dutie. Resolution in Parliamente: 14 Elizabeth, cap.10 tunnage et poundage sur kersies, ergo, nemy sur wooll solemente, et lour lengthe et weighte. 27 Elizabeth, cap. 28.

SERGEANTE [SIR ROBERT] HITCHAM. [Blank]

SIR ROBERT PHELIPS. [Blank]

SOLLICITOR. [Blank]

MR. [JOHN] BANKES. 5 E. 6, cap. 6, par le judgemente in 31 Elizabeth in l'exchecquer pur paiement de aulnage [et] poundage sur novel draperies [solement]. Queen Elizabeth erecte 3 staple villes pur transport lane al Bruges et Hamburg et Bergen-op-Zoom et continue par le Roy tanque 12 Jacobi le proclamacion.

Legall foundacion: 1 Mary, 1 Elizabeth, ceux determine; 1 Jacobi, null dutie. Sur cloathe null, mes solement sur wooll.

• 1. Expositions de statutes: 14 E. 3 [blank]; 31 H. 6, cap. 21, grevance complained of poundage sur clothe.
• 2. Opinion de judges: 31 [sic] H. 8, Dyer 43. b; 1 Mary [sic], Dyer f. 65.
• 3. Exposicion de equitie: rule ne davoir exposition beyond le contente del leye. [p. 248] Le penaltie impose grise de purpose pur gard le lane pur manifacture in le regne. Stranger ou aliens paiere doble customes si paroll de wooll extend all wooll manifacted in clothe.

Admitter deste dutie nest pretermitte, et responde le feigned suggestons de cest pattent le calculacion del proporcion del wooll ex cloathe primatively in E. 3 faile. 14 E. 3 [sic], 14d. sur cloathe. Un sacke de wooll [ore] fait 6 shorting cloathes et le duty ore demand est 40s. sur sacke de wool, et 4 clothes [fait devant]. Allowance pur tare in clothe [mes] en sacke de wooll null leye, ergo, faile.

Benefitte [al Roy] de importacion de oyle cuchinele et indico grande in le manifacture.

Null exportacion mes de staple wooll et, ergo, null dutie. 4 Jacobi., cap. 2, [et] 7 Jacobi., [cap.] 17, excepte ceux counties .

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

[f. 135]

Friday, 16th of April

An act to enable lieutenants and deputy lieutenants to appoint what horse and armour every man shall find at musters. This was cast out of the House.

MR. [THOMAS] WENTWORTH. By the 25 of Edward the 3rd, no man was to be assessed to find armour but by assent of Parliament, unless such as were bound by the tenures of their lands.

MR. [WILLIAM] NOYE. The deputy lieutenants have too much power already and now for them to appoint men what horse and armour they shall provide and to bind them to the good behaviour and fine them 40s. for refusing, were to give them liberty to take what they list out of any man's lands.

There was a committee appointed to provide horse and armour and to consider the necessity of muster masters.

[f. 135v] SIR JOHN STRADLIN[G]. To appoint the muster master is part of the lieutenant's patent, and to void them would question their patent and would never pass the Upper House.

SIR GEORGE MORE [sic]. There was no muster masters before [15]88.

It was ordered that all the knights and burgesses should again, Wednesday next, present all such as were declared recusants that were in any office in their countries, or justly suspected, by acts of Council or state, which extended also to those that had recusants to their wives, children or servants or any number of tenants or retainers.

The SPEAKER read a letter from the King to him to clear the [Lord] Treasurer from the aspersion of procuring the dissolution of the last Parliament.

MR. SOLICITOR. He is sworn to maintain the rights of the crown. Until clothing came in there was extraordinary benefit of the wool to the crown. 40s. upon a sack of wool is due to the king, whereof a noble was granted to Edward the 3rd, and after 5 nobles, by Parliament. The denomination of the pretermitted customs comes from what was omitted of taking 40s. upon the sack of wool. Three things to be considered in the pretermitted customs:

• 1. The legality thereof.
• 2. The calculation, how it comes to 40s. upon the sack of wool.
• 3. The conveniency.

The true rule to examine the meaning of a statute is to consider the use of it. The possession of pretermitted customs has been in the crown 70 years, and here was a bill passed for it. [f. 136] The possession of 60 years in a subject would be sufficient title against the crown; then let us give in the same measure to the crown we expect from it. This cannot be an imposition, for there is no forfeiture of merchandise; it must be either subsidy or custom. In the fourth [sic] year of Queen Elizabeth a statute was made to reform the length of kerseys: the ordinary sort must be 14 yards, the finer 18 [yards] and of the same weight according to the provision by statute. There is no medium by law between a noble and 40s. upon a sack.

SIR ROBERT HITCHAM. You must distinguish between temporary and permanent impositions. Law and reason are termini convertibiles.

SIR ROBERT PHELIPS. This pretermitted custom is to be maintained by the statute of tunnage and poundage, or none at all. If we allow the imposition in quantity, we allow it in right; if for a time, forever.

MR. [JOHN] BANKES. The statute of the first of Queen Mary gave her 5 nobles upon a sack of wool for her life, and was determined by her death. By the statute of the 31 of Queen Elizabeth every clothier and clothmaker is to pay alnage. In the 30 [sic] of the Queen she had 3 staple towns, Middelburg, Bergen-op-Zoom and Delf[t] [sic]. This pretermitted custom has not been demanded until within 4 or 5 years. There has been no seizure of cloth in the [Ex]chequer upon this patent of pretermitted custom (as the Solicitor said). This patent has two foundations, a legal upon 2 statutes though none by common law: the first, during only Queen Mary's time, the 2nd, during Queen Elizabeth's. [f. 136v] The 3rd, made the first of the King, which says no pounding shall be taken upon cloth (poundage is 2d. 12d. [sic] in a pound of commodities exported or imported). The 2nd foundation is by the law of proportion between the cloths and the wool (this imposition is neither by statute law nor common law nor opinions of judges). This imposition upon wool was laid chiefly to keep the wool in the kingdom that the subjects might work it in cloth. This is not pretermitted. In the 14 of Edward the 3rd there was but 14d. upon a cloth. In the 21 of Edward the 3rd, when the subsidy was first granted of a noble upon a sack of wool, there was 4s. 6[d.] upon a cloth. The king had a recompense for the abating of the 40s. upon a sack of wool by the commodities imported of oil, cochineal, etc., for dyeing the cloth.

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

[f. 65]

[16 April 1624]

The bill for enabling lord lieutenants and deputy lieutenants to enjoin men to find horse and arms rejected, and one direction to be drawn of new.

A letter from the King to the Speaker that the Lord Treasurer was no instrument to dissolve the last Parliament, and that he said to the King he was the worst of traitors that sought to make difference between the King and his people and was of his knees to continue it.

SOLICITOR. 21 E. 3 settled 14d., six cloths to the sack, and so the 6s. 8d. made up. 14 Eliz. 10 an act for length of kerseys shows how the weight is limited by lengths for custom and subsidy, to be answered which is only by statute of poundage and tunnage, for subsidy and no other the former statutes for cloth well admit. 27 Eliz., 18 [yards] a promise for length of kerseys.

[f. 65v] SERJEANT [SIR ROBERT] HITCHAM. Impositions temporary, to stand perpetual not, as in monopolies for new manufactures for a time to the King upon quid pro quo. King by prerogative to prohibit export and import hurtful to commonwealth, and may license upon consideration and take money for dispensation as quid pro quo, but this is only upon necessity of times. Queen Mary having only staple for wool at Calais, that lost and poundage, etc., then had she necessity, and set it under Great Seal, and not to be repealed but by as high a nature. 31 Eliz. resolved in Exchequer upon the new draperies the imposition is good upon the subjects, wrong in transmutation out of wool into cloth.

This, says [MR. JOHN] BANKES, was for alnage. 3 Eliz. patent three staples established at Bruges, Middelburg, Bergen-op-Zoom. These continued until after 1 Jac. and altered by proclamation 12 Eliz. He slipped over the statutes enforced by [the] Solicitor as limiting no subsidy to be paid. 14 E. 3, 31 H. 6 no exposition of wool into cloth but a demand for poundage decried. 31 H. 8, D[yer] 43, no law for custom of cloth and yet then for wool, and so now. 1 Eliz. found the same. A penal law not to be extended by equity.

[f. 66] That a sack of wool making 6 cloths it should be but 6s. 8d., he esteeming it to 4 he charges 10s., for allowance of tare £84 will suffice, so if due it should but be 14d. now almost 3s. That his importations to make cloth, as oil, dyeing, etc., and the price it bears in importation more, so no reason to have so much. In the new draperies they will have more in respect of the farmers of the work so they exceed their own equity. They make all cloths alike and coarse wool was never staple wool and yet so demanded. 4 Jac. 2, 7 Jac. 16 exempts these cloths from alnage and subsidy, yet demanded as pretermitted custom.

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

[f. 156v]

Friday, 16⁰ Aprilis 1624

An act for the reviving of a statute made in 23⁰ Eliza., entitled an act for assuring of £82 10s. 00[d.] per annum to the Bishop of Coventry and Lichfield out of all the lands of Mr. Thomas Fisher, and that the manor of [blank] may not be liable to the payment thereof . 2. L., committed. r. p.

An act for the authorizing and enabling lord lieutenants and their deputies to appoint what persons shall provide and find armour and furniture of arms for foot and horse, and for the necessary defence of the realm. 1. L.

SIR GEORGE MORE says that there is now no law for the imposing of arms but only an imperfect law in [blank] of Queen Mary, whereby it is left to the power of lieutenants to imprison men that do not bring and show their best arms.

[f. 157] MR. [THOMAS] WENTWORTH says that the law for arms in Queen Mary's time is discontinued and he thinks this bill does cross the statute 25 E. 3. He wishes there should be a law that might set a certainty of arms.

MR. [WILLIAM] NOYE says that lieutenants of shires have too much liberty and would not have more given to them by Parliament.

This bill for arms is rejected and a committee appointed to draw a bill for the imposing of arms and finding of horse, and to consider of the necessity of having of muster masters and of the abuses of their fees and the appointing of powder.

SIR THOMAS POSTHUMOUS HOBY says that until [15]88, there were no muster masters appointed by lord lieutenants, but before there were no other muster masters but such as the country did appoint and accept of.

It is moved that bill against Sir Thomas Gerrard to indict him for a praemunire for avoiding to come into the House or to take the oaths of allegiance and supremacy, being rejected because we may not unheard condemn him thereof, that a committee may consider of the election and return of Sir Thomas Gerrard for the borough of Liverpool in Lancashire, which accordingly is ordered.

Ordered that Wednesday next, the knights and burgesses of this House shall deliver into the House the names of all such as by the common fame of the country or their knowledge are papists convicted or suspected that have any place of charge or trust in the country; and this being [f. 157v] done, that then we go to the Lords with that.

A letter from the King to the Speaker that the Lord Treasurer had informed his Majesty that there was an intimation in the House, among other complaints preferred against him in Parliament, that he should be the cause of the dissolution of the last convention Parliament, which his Lordship says is the greatest grief to him of all other that he is to this House charged withal. That his Majesty owes that right to innocency that he must say that his Majesty does well remember that the Lord Treasurer did on his knee beg his Majesty to continue that Parliament and said he was the worst of traitors that should seek to breed or cause difference between the King and his people, which right his Majesty could not deny to signify to this House. Dated, Theobalds, 15⁰ Aprilis 1624.

[Blank]

Concerning the pretermitted custom, Mr. [Edmund] Nicholson, examined, says that he had no notice until late the last night and could not get counsel in so short time. He says that he cannot get no counsel that is so able to defend the patent of pretermitted custom as the King's and Privy Council, and it concerns his Majesty and the [Prince] his Highness greatly in their revenues and therefore it would be presumption in him to defend it by his counsel, and he and Sir [Thomas] Morgan have only pensions out of it for service done and are no otherwise interested [f. 158] in the right of that patent. Confesses himself did first propound this pretermitted custom to Prince Henry, anno 1612, and after that to the Lords Somerset, then to Queen Anne. That the referees were Sir H[enry] Yelverton and Sir Thomas Coventry, then Attorney [General] and Solicitor, for matter of right and law, and to the lords of the Council for conveniency.

MR. [ROBERT] BERKELEY says that the lords of the Council and the learned counsel did all certify, and the lords of the Council did refer to Mr. Attorney Yelverton to make a calculation of the custom, who certified to the said lords that the calculation was true, and so did he and the Solicitor certify for the matter of law to the lords of the Council, and thereon the said lords did certify to the King that it was lawful and convenient and also that the calculation was right.

Mr. Nicholson, examined, says that it is by order from the Prince that the patent of £1,000 per annum to him and Sir Thomas Morgan out of the pretermitted customs.

MR. SOLICITOR. To be considered, first, for the matter of law and right of [f. 158v] and legality of the pretermitted custom, and of this he will principally speak; second, of the calculation of it, and of this he will [say] nothing at all; third, of the conveniency of it, and of this he will say but little.

As concerning the legality of it, he will not err without good company for all the judges present and for this 40 years have held it lawful, and if it be not so by the statute of tunnage and poundage, then he thinks it is not lawful at all. That he would not speak in it if it were an imposition. That the difficulty is to prove that the 6s. 8[d.] of old granted and five nobles granted by the statute of tunnage and poundage on a sack of wool. From the time of Queen Mary until now, there has ever been above the rate and proportion of a noble for a sack of wool taken for custom of cloths, and if it has been lawful to take above the proportion of a noble, then it has been as lawful to take 40s. on a cloth, for if above a noble be lawfully taken it is by the statute of tunnage and poundage, for there is no other statute of it. That in Queen Elizabeth's time, there was no law to transport wool but to Calais, which was lost, and yet in that Queen's time the statute of tunnage and poundage was made and confirmed and continued. [f. 159] That the King has found the crown in possession of this custom for cloth for above 60 years, and we desire this Parliament by bill to have our lands established to us if we have enjoyed it and been, by ourselves and our ancestors, have been in possession these 60 y[ears]. That by the statute of 1⁰ E. 6 all cloths transported uncustomed are forfeited. That there are many and sundry judgements on seizures in the Exchequer delivered by the judges of this realm that cloths waterborne to be transported, not having paid custom due to the King and before to his predecessors (which was above the rate and proportion of 6s. 8d. for a sack of wool), are forfeited. In 14 Eliz., 10 chapter, an act was made to reform the excessive length and weight of kerseys. That thereby it is recited that where the Queen is to have custom according to the length of kerseys (which custom upon kerseys was due only by the statute of tunnage and poundage), and therefore this act of 14 Eliz., 10 chapter, does provide that the Queen be not deceived in her custom for kerseys, which those that made that act would not have made this provision against the deceit of the Queen in her customs for cloth if they had not known that the custom of cloth had been due by law. 27⁰ Eliz., 18 chapter, an act concerning the making of cloths called plain white straits in Cornwall: a provision is that for to prevent the defrauding of her Majesty's customs those cloths [f. 159v] should be of a certain weight and length. He desires that the opinion of the judges and the maker of laws may be duly considered, and he doubts not but it will move us to be of opinion that the right of duty belongs to the crown to have this pretermitted custom.

He says if there be an error in the calculation, that may be certified.

For conveniency, if this custom be heavy, he would then have us go the right way, which is by a petition of grace, not a petition of right; and his own opinion is that this custom is too heavy in some points but not so as to be quite abolished. He doubts not but his Majesty if we go the right way to him, and now we are in Parliament it is the best time, and he doubts not but we shall have a gracious answer and relief.

MR. [JOHN] BANKES says that in 1⁰ Jac. the statute of 3⁰ Eliza. was in force to transport wool. That the King was never in possession of the pretermitted custom until within these 5 or 6 y[ears] and therefore that the claim of 60 years' possession of the crown is not in force. That there is no common law offered to maintain the pretermitted custom. He will prove that this pretermitted custom is no duty, nor no pretermitted duty. [f. 160] [Blank] one branch of the statute of poundage and tunnage that no custom shall be paid for the poundage of cloth. That by the exposition of statutes in print of 31 H. 6, cap. 21, there is no mention of custom on cloth. That in 1⁰ Mary [sic], in the Lord Dyer, the judges did say that they knew no law that custom should be paid for cloth. That the grant of subsidies on wool was purposely laid to keep wool within the kingdom. That this custom on cloth is not pretermitted but the duty for it, if any were, was to the full paid. That in 31 Ed. 3 [sic] though there were 6s. 8d. on a sack of wool and yet there was but 4s. 8d. on a proportionable piece of cloth, and therefore one of the chief suggestions or foundations of the patent of pretermitted custom is not true, which says that there has ever been a proportion held in the customs imposed or paid for wool and cloth. That in 4⁰ and 7⁰ Jac. it is provided that the coarse cloths of Northumberland and other parts in the north should pay no customs, and therefore he does not know how the pretermitted customs can be raised in those parts.

SIR THOMAS WENTWORTH moves that a question moved by Serjeant [Sir Robert] Hitcham whereby he affirms that the King might lawfully lay [f. 160v] impositions may be struck out of the Clerk's book, which motion of SIR THOMAS WENTWORTH is accordingly ordered.

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

[p. 227]

Friday, the 16th of April

[Blank]

The bill for enlargement of the power of deputy lieutenants is rejected and order for the drawing a new bill, in which the necessity of the office of muster master is to be considered and provided for if it be needful; if not, to be taken away.

MR. [JOHN] PYM. Many heads may agree in one reason but many hands seldom in one writing, etc.

[p. 228] A letter is read directed to the SPEAKER from the King to this effect. That in the right he owes to innocence and to take off the ill-grounded suspicion, he testifies for the [Lord] Treasurer that he was no mover nor cause of the dissolution of the last Parliament, and that the Treasurer on his knees had desired the continuance of it and had said that he thought him the worst of traitors that should set such a difference between the King and his people.

The Speaker keeps the letter.

Mr. [Edmund] Nicholson, being sent for, comes and answers that as concerning the pretermitted customs he has nothing to do with them nor no interest in that business, but only a recompense which the King has given him for his service; he will not maintain them by counsel but thinks it fitter for the King and Prince's counsel to do it. That it is true that he and Sir Thomas Morgan had the grant of them, but the Lord Treasurer thinking it too great a matter for the subject had taken it from them, etc.

The House dismisses him.

The SOLICITOR. He says he sees the prejudice in speaking in the cause of the pretermitted customs in regard of his dependency and his present calling. He will not speak now as respecting the first but according to his conscience, and submits his errors to the reformation of the House, and in this he comforts himself if he err it is cum patribus, the opinion of the reverent judges and fathers of the law. He thinks it considerable in 3 points and to be so maintained:

• 1. As legal.
• 2. Proportional or justly calculated to the value of the wool.
• 3. Convenient.

[p. 229] First, for the nature of the duty and the ground of it, if it not prove an imposition or not a duty grounded upon the statute of tunnage and poundage, he will never speak in it. In Edward the 3rd['s] time, clothing began and so for the custom of the wools transported, which then decayed. There was a valuable custom of 14d. the cloth granted in recompense of the wool, in the 21 of Edward the 3rd, reputing six cloths answerable to the sack of wool; and if wool were now transported by the old statute of 6s. 8d. the sack and the new statute of 33s. 4d. granted in the statute of tunnage and poundage, it will amount to xls. He notes by the way that new offices bring new charges to the crown, etc., and whereas it was alleged as an argument against this custom that the wool and the cloth were distinctly and severally mentioned in the statutes, if the times be well considered when the statutes were made, it will appear how the makers intended the understanding of that distinction, for they were not ignorant that at the time of their law wool was not to be transported, and that it was a vain thing to grant a custom upon the transportation of such a commodity as was not to be transported. The use has been for these 60 years to pay this custom and as you now have a bill of grace which you expect and desire of the King, to determine the right and claim of the crown and to limit it to the term of 60 years, so afford you that right to the crown which for 60 years it has enjoyed. The judges for these 60 years, the reverend fathers of the law, have judged it legal and right, and therefore the lawyers of these times finding precedents of so much certainty and antiquity must iurare in verbo magistri and think it right and lawful too. [p. 230]

Yet for the legal point it appears in the [Ex]chequer records that there have been seizures and judgements upon those seizures, which proves it to be a custom, for seizures are not justifiable upon any imposition. There want not also means to avow the lawfulness of this custom from acts of Parliaments also. In the 14 of Eliz. in the act for reformation of the length of kerseys, it appears that care is there taken that the Queen's customs and subsidies of kerseys shall be reserved according to the cloth and not to the yards; if then a subsidy be acknowledged due upon kersey, then is cloth liable to custom, kersey being a kind of cloth. This proves that cloth is within the compass of the custom by statute.

Now if there be a right by statute to the custom which anciently was 6s. 8d., the same right by the statute of tunnage and poundage (adding 33s. and 4d.) makes it up [to] 40s. For the due proportion between the cloths and the sack of wool and an equal calculation of either's worth he will not meddle with that, but for the right of 40s. he has given his reason.

For the conveniency, admit it be not convenient but prejudicial, yet if it be just, we must take another course not to demand it of the King by way of right and to do justice, but to show us favour, and humbly to request that, and perhaps it will as happily effect our ends as ourselves do desire, and it is time to provide for some great inconveniences that are too far spread, etc.

[p. 231] SIR ROBERT HITCHAM. Being now to perform duo officio in una persona, at least to choose whether to speak according to my place and dependency or as a Parliament-man, I will speak my conscience freely as Parliament-men ought to do. He thinks that the usum of the king's just customs is to be preserved, the abusum taken away. He distinguishes between customs that are only temporary and those that are permanent, as in case of monopoly where the project is good for the commonwealth.

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

[f. 30v]

16 April, Friday

An act for making dornic/

An act for reversing a decree in Chancery against Edward Egerton.

Second read, committed. An act for reversing a decree in the Court of Requests between [John] Edwards the father and [John] Edwards the son.

Second read, committed. An act concerning the Bishop of Coventry and Lichfield.

An act for deputy lieutenants concerning [f. 31] armour. Rejected.

An order for a new bill to be brought into the House to be drawn by a committee.

A letter from the King to the Speaker. The letter: James, the King. Right trusty and well-beloved, we greet you well, and being informed by our trusty and well-beloved cousin and councillor the Earl of Middlesex, Lord High Treasurer of England/

[MR. ROBERT] SNELLING move/

[f. 32] [MR. ROBERT] SNELLING moves that [Edmund] Nicholson, the projector for the pretermitted customs, may be demanded.

Nicholson excuses his not having counsel this day was that he had not notice of it until late yesternight, that he could not get counsel this day, but he thinks more appertaining to the King's learned counsel because it [blank]. He proposed to Prince Henry [blank], then to the Earl of Somerset. After Somerset's fall he proposed it to Queen Anne, who [blank]. Afterward, the Lord Treasurer saying it was too great for a subject and took it [f. 32v] from him. He took but the half, but when it came into the Lord Treasurer's hands he took the whole. The referees were Sir H[enry] Yelverton and Sir Thomas Coventry, Attorney [General] and Solicitor. That being referred by the lords of Council, his Majesty referred it to his learned counsel and to his Privy Council for conveniency.

[MR. GEORGE] MYNNE. Upon Nicholson's patent he had out the hamper 4 days since, the Lord Keeper pleasing to pardon his fees, but it may rest with the clerks; otherwise he has it.

SOLICITOR. 3 things fall into consideration: first, for the legalities; next, for the calculation whether to make it legal; next, for conveniency. For the first, howsoever by his place he is bound by oath to speak for the King. [f. 33] 2 things: first, the nature that has begotten the pretermitted customs; next, the ground. For the word "imposition", he will decline for it, and that that may not be under the statute of subsidy and poundage, he meddles not with it. The sack of wool was 6s. 8[d.], but after clothing came in it [blank]. 21 Ed. 3, 6 [sic] cloths to a sack of wool, which was set at 6s. 8d. Then came the statute of tunnage and poundage, and gave the king 33s. 4[d.], and then the 6s. 8d. made it 40s., which was settled. If the clothing do by calculation appear to be valuable with the wool, since Queen Mary there has been more. If there be but a penny above, there is no medium between a noble and forty shillings, so as if a penny more than 6s. 8d., it is lawful to take 40s. The name of pretermitted custom came of the pretermitting above the 6s. 8d., and not amounting to 40s.

[f. 33v] The ground: tunnage and poundage. The one is of wine, the other of xiid. for every pound of such commodities exported. What have been less paid for a sack of wool than 6s. 8d., and 33s. 4d. for tunnage and poundage it has been the king's grace to pretermit. Let the king have as good an interpretation of these laws as we desire to have from the king. The king has been in possession 60 years and more, and we desire the same from the king to have for us. 14 Eliz., 10 cap., length and weight of kerseys. It has continued that she had subsidy and custom of kerseys. 27 Eliz., 18 cap., concerning woollen cloths in Devon and Cornwall, no cloth above 12 librae of white straits provided for her customs, which exposition does give custom for cloths. He confesses that there was an interim when 40s. was not taken, but whether [f. 34] of grace or by statute he leaves that. For conveniency, he acknowledges it is overburdened, but he wishes that a due consideration may be had.

[SIR ROBERT] HITCHAM. He has duo jura, una persona; but in this he has but one as a Parliament-man. This business consists of 2 reasons. Imposition, Queen Mary and the statute of tunnage and poundage. He speaks for the imposition, not affecting those that be abusive but those that are convenient. There are impositions for a time of things sent out of the king. [Blank] 31 Eliz., because the king has no benefit of transporting the new drapery [blank]. Moves/

[f. 34v] [SIR ROBERT] PHELIPS. He is sorry that the learned gentleman has added another branch to that in question. When as Mr. Solicitor fell upon the statute of tunnage and poundage, but now it falls out that something must be said to oppose that which he has said, and therefore he moves that some of the law may answer.

SOLICITOR moves that we may not fall upon that which Sir Robert Hitcham formerly defended.

[MR. JOHN] BANKES. 33s. 4d. Queen Mary was granted but for her life, therefore not to be called into question. For 31⁰ Eliz. for new drapery is grounded upon 5 Ed. 6 that every clothier or cloths worker shall pay alnage. That was it 1⁰ Jac. 3⁰ Eliz., 3 staple towns and Middelburg, Bergen[-op-Zoom], [blank]. [f. 35] His protestation not to take away all the customs of cloth, but to take away the pretermitted customs. [Blank] Then for legal judgements for seizures, which [blank]. Pretermitted customs is built upon 2 foundations: the first, legal; the other, the law of proportion. That because the king ought to have custom as well of the cloth as of the wool. This they ground upon the statute 1⁰ Maria, 1 Eliz., which was but temporary. 1 Maria, that give tunnage and poundage, that gives 33s. 4d. upon a sack of wool. That cannot give subsidies upon wool drawn into cloth, which cannot be, which he proves by concession of Parliament. 14 Ed. 3; 31 Ed. 6, c. 21 [sic]. [f. 35v] Exposition of judges. 31 [sic] H. 8, Dyer, that they cannot see what law can lay a custom [sic] of cloth. 1 Mary [sic], Dyer [blank]. By equity, the subsidy upon the wool was rather laid as a penalty to keep the wool within the kingdom than for a subsidy. This shows it is no duty. This wool draped into cloth was never pretermitted. Then the patent must fall, says Nicholson. That because the king ought to have so much upon a sack of wool, that therefore the king ought to have wool draped into cloth. [Blank] A sack of wool will make 6 sorting cloths. [Blank] New draperies of a sack of wool is £3/

[Afternoon, committee of grievances]

[f. 36] [Mr. Christopher] Sherland. That this House may question every canon. If thus food for the soul be restrained, the people perish. He wishes that it be transmitted up as a grievance.

[Mr. Christopher] Brooke. We cannot reform this here. We must complain for them; that is, the House of Parliament for the city. It is most proper for my Lord of Canterbury.

[Sir William] Cope, [Sir] Erasmus Dryden, against the bishop.

[Sir Edward] Coke moves that the bishop may have a copy of the petition. There is no complaint against the constitution of the church. From Lucius, the first Christian king, and Alfred's time, the Parliament has dealt in church government. Now the King writes by the archbishop to maintain preaching, and the bishop inhibits it. Therefore, it is fit to be preferred as a grievance.

[f. 36v] [Mr. William] Boswell. There came letters from the King to the archbishop, and the bishop did contrary to these letters. He thinks that the Lord of Canterbury/

[Sir Thomas] Jermyn. My Lord of Canterbury is absolutely quit.

More [Blank].

[Sir Robert] Phelips. He would not have a petition for the word of God to be carelessly used here in these times. He wish[es] that my Lord of Norwich had not been only zealous but wise and not suffered such a complaint come in here. He would have the complainers asked whether they have acquainted the archbishop with the effects of the petition. If they have not, then whether it shall not be thought fit that my Lord of Canterbury be acquainted with it.

[f. 37] Order. It is ordered that the complaint shall be pursued on Friday next, and in the meantime the bishop to have a copy of the petition if he will.

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

[f. 66v]

April 16, 1624

An act for charging and providing of arms.

It was alleged that all that was now done was without warrant of law, the statute 4 and 5 of Philip and Mary being imperfect and therefore repealed, wherefore it was necessary this law should pass for the direction of lieutenants. But others thought [it] not good to strengthen the power of lieutenants by any such law, and accordingly the bill was rejected and a new one appointed to be drawn by a special committee now named for that purpose, to whom was particularly commended some provision against the abuse of muster masters and of lieutenants in imposing upon the country muster masters at their pleasure, which was never done until [15]88, and in charging the people with powder and shot and wages.

The order was renewed of [sic] bringing in certificate[s] of all such as, being recusants or justly suspected, did exercise the office of lieutenancy, deputy lieutenants, justice of peace, etc., and to be delivered in a petition of grievance to his Majesty, and Wednesday next appointed a day peremptory for this business.

A letter was brought to the Speaker from the King to this effect. [f. 67] That his Majesty, being informed that the House had received some impression as if my Lord Treasurer had done ill offices between himself and the subjects and was an instrument of dissolving [the] last Parliament, he could do no less in favour of innocency and to take off ungrounded suspicion than to certify the truth. That my Lord Treasurer was so far from being a furtherer of the dissolving of that Parliament that he was, upon his knees, an earnest suitor for the continuance of it and often said unto him that he was the worst of traitors that would go about to set a distance between the King and his people.

The business was settled before, and as touching the letter, it was ordered that being of a private business it should be left with the Speaker and not remain among the records.

Mr. [Edmund] Nicholson appearing, made this answer. That he has no interest in the pretermitted custom, but only in a pension. The right the King's and the Prince's, whom it concerns much in their customs, wherefore he thinks it will be presumption in him to undertake to defend it. He confessed himself to be the projector and that he had proposed it to Prince Henry in anno 1612, after to my Lord of Somerset when it was debated at the Council table but stayed for the project of dyeing and dressing. That Sir Henry Yelverton and Sir Thomas Coventry were referees, afterwards the lords of the Council; and that long before this, it was partly set afoot in Queen Elizabeth's time, but he denied that it was then solicited by him.

SIR ANTHONY FOREST. That this project was offered to my Lord of Suffolk and rejected.

The question concerning the referees was thus settled by MR. [ROBERT] BERKELEY, who had examined it at a subcommittee. That the first reference by the King was to the Lords for convenience, to the learned counsel for law, who returned a certificate to his Majesty. Afterwards, the Lords made another referment to the Attorney [General] for calculation of the proportion, upon which he made a certificate that the calculations were right. Upon this, their Lordships grounded [sic] a certificate to the King both for legality and conveniency.

MR. SOLICITOR acknowledged his disadvantage to speak where there was so much prejudice, distributed the question into 3 considerations:

• 1. Whether the pretermitted customs were legal.
• 2. Whether the calculations right.
• 3. Of the conveniency.

That he intended not to speak at all of the 2nd and but a little of the 3rd. Neither would he forget that he was a member of the House, nor his oath to maintain the king's right. And if he were deceived, he did errare cum patribus with all the judges for 40 or 50 years.

In the first point he considered 2 things, the nature and the ground of this charge. If it be and [sic] imposition, he disclaimed to speak of it; if not, then he held it a duty fit to be demanded if convenient. That it had no ground but the statute of tunnage and poundage. Before the time of Ed. 3 there was no duty upon wool but vis. viiid. granted by act of Parliament; about the 14 of Ed. 3 clothing came in and the benefit of wools decayed by reason that a great part was draped within the kingdom. About the 21 Ed. 3, in proportion [f. 67v] to that 6s. 8d. upon wool, there was by Parliament 1s. 2d. laid upon cloth, the statute of tunnage adds £1 13s. 4d., both which make up the true duty due to the king out of cloth as well as wool.

It will be clearly agreed that if wool were now carried out there would be 40s. due; and it being assumed for a ground that wool in cloth is to yield the same duty that wool in kind, from Queen Mary's time to this there has been less taken than 40s., yet both since and before more than a noble, and unless it be due by the addition of 5 nobles, all the overplus had been unlawful, for there is no mean that can be claimed between 6s. 8d. and 40s. But this new word was ill taken up because it induced new officers and a new charge; for the duty was not fully paid, part was taken and part omitted, which those that have better eyes have now found out and added [sic] pretermitted custom.

In the statute the grant of poundage is limited by an exception of wool and cloth distinctly, and of woolfells, hides and leather, etc. If you go no further, the duty rests upon a noble. But in the 2nd grant there is another subsidy upon merchan[t] denizens of 33s. 4d. upon a sack of wool. If these words cannot be applied to wool in cloth, then no duty; if it may, then no wrong.

It has been well and fitly objected, first, that wool and cloth are of different kinds, that the statute lays this burden upon wool only, but in the exposition of statutes we must not so adhere to the words that we lose the sense. In Queen Mary's time there was exportation of wool, and so the grant might have some effect.

A. But in 1⁰ Eliz. shall we believe the Parliament was ignorant that no wools could be transported? And therefore if they meant anything by that grant, it was to charge cloth as well as wool.

B. You desire to establish your own possessions by limiting the king to 60 years. I hope we shall give as good measure to the crown which has been in possession of more than the noble these 70 years, and so inclusively of the pretermitted custom.

C. This has been the constant exposition of the judges. The [Ex]chequer is the proper court for the king's revenue, where no forfeiture is allowed for not payment of impositions but of custom and subsidy according to the statute, and there are hundreds of seizures of cloths forfeited for not payment of these duties, which argues that in the judgement of the court they are reputed custom or subsidy and no imposition.

D. In 14 Eliz. the Queen was possessed of a duty exceeding the proportion of 30s. upon a sack and the statute [that] made them to regulate the length of kerseys did provide for her Majesty's customs, which must needs he intended of this, for there is no other; and if it be custom, then it is grounded upon the statute of tunnage and poundage; and if it be duty upon kersey, then upon all cloth.

E. 27 Eliz., 6. [sic] 18, the length and measure of cloth are prescribed to avoid the defrauding of the Queen's custom, which cannot be understood of the noble because that is laid upon [f. 68] all cloth indifferently.

Whether, as it was now taken, it be rightly calculated, he would not take upon him to judge. Confessed the full sum had not been received, but whether of grace or by mistaking he could not tell.

To the point of conveniency he added only this, admit the burden be too heavy, our way is not by a petition of right, but of grace. We have a King who will not refuse us such a favour as may redound to the good of his subjects without any great loss tof [sic] himself.

SERJEANT [SIR ROBERT] HITCHAM, beginning to speak of the question of impositions in general. That perpetual imposition ought to stand. Such as were temporary, made for the balancing of trade, were just; but to be limited according to the occasion. The king that could prohibit any commodity might dispense with his own prohibition sub modo, paying a certain duty, as well, as he might dispense with a penal law. 31 Eliz. it was adjudged that because of the loss of Calais no wool could be transported, and so the Queen had no benefit by cloth of [sic] the new drapery. Therefore the imposition was good. Wherefore he advised to leave this particular question until we came to debate the general. As he thought to proceed he was interrupted by a general mislike of the House.

SIR ROBERT PHELIPS. The difference is not of the quantity but of right. If there may be imposition temporary, it may as well be made perpetual. The judgement in the [Ex]chequer is of no credit against so many acts of Parliament in Ed. 1['s] and Ed. 3['s] time. Some of his argument fit to be answered, though not to be concluded by question but only for the pretermitted custom.

MR. [JOHN] BANKES gave answers to the objections collected out of Mr. Solicitor's argument and Serjeant [Sir Robert] Hitcham's:

• 1. That the judgement 31 Eliz. was not concerning imposition or subsidies, but only touching the duties of alnage upon the statute of 5 Ed. 6, cap. 6. The words are "every clothier and clothmaker", etc. No new drapery was then in use, yet extended to it by that judgement.
• 2. A. The grant 1⁰ Eliz. not fruitless, though Calais then lost, for 3 other staple towns were appointed, Bruges, Bergen-op-Zoom, and [blank], where wool might lawfully be transported.
• 3. B. There has not been 60 years' possession of the sum now in question, which has been taken but since 17⁰ Jacobi.
• 4. D. The words in the statutes 14 and 27 are not declaratory that there is any such custom, but provisional that if there be any custom or duty, it might be preserved from fraud.
• 5. C. That there had been never any judgement or seizure for forfeitures upon non-payment of these pretermitted customs.

He proceeded further to confirm his own opinion by divers reasons:

• [f. 68v] 1. That there was no such duty.
• 2. If there be, yet not pretermitted.

The first he confirmed thus:

• 1. In that branch of the statute which contains the grant of poundage cloth is excepted. In the other for tunnage it cannot be charged under the name of wool, because such exposition is contrary to former expositions of Parliaments, of judges and of law itself.
• 2. 2 Parliaments were vouched. 14 Ed. 3 subsidy was granted upon wool but was not extended to charge cloth, and therefore 21⁰ a particular charge of 1s. 2d. was laid upon cloth. 31 H. 6 there was a new charge upon wool and complaint was made that it was endeavoured to be extended to cloth, but it was declared in Parliament that it ought not to be demanded. And accordingly was the practice all the time of H. 7, H. 8, Ed. 6.
• 3. The opinion of the judges 31 [sic] H. 8, Dyer, 43, was that they could not discern by law any custom due upon cloth, either by the common law or statute. 1 Queen Mary [sic], Dyer, fol. 68, the like reference to the judges; they were divided in opinion and could find no law for it.
• 4. The rule for exposition of penal laws is that they ought not to be extended by equity to any other particulars than are enumerated, when any at all are mentioned. This great subsidy of wools was granted as a kind of penalty to keep the wool within the kingdom.

Second, if there be such a duty, yet it has not been pretermitted but paid to the full 40s., for which he gave these reasons:

• 1. The main grounds in the project suggested in the patent that there has ever been a proportion between wool and cloth itself. 14 E. 3 the ancient custom upon a sack of wool was 6s. 8d.; and by 21⁰, when 1s. 2d. was laid upon a cloth, 4 cloths were supposed to be made of a sack, which was but 4s. [8 d.], whereto now there is laid xs. upon a sorting cloth, and very near 6 of those cloths may be made of a sack of wool. The 5s. 6d. laid by Queen Mary does very near answer the proportion 33s. 4d. granted by the statute of tunnage and poundage. The 13²/3d. [sic] added by Queen Elizabeth was upon pretence of increase of length, so the 2s. 2[²/3]d. added by the King is above that proportion. And there are divers reasons why the charge upon cloth should be less than upon wool:
•      1. The allowance for the tare.
•      2. The King is otherwise recompensed for the loss of his custom by the commodities imported for the use of clothing, as oil or dyeing stuffs and other materials.
• 2. There is exacted upon the new draperies [blank] the rate of above £3 a sack of wool.
• 3. Where there was no original duty, there can be none pretermitted; but if there be any original duty, it was out of such cloth as is made of staple wool, for such cloth only could be exported. But this patent is extended to the wools made in Westmorland, Cumberland and all other coarse cloths without limitation or difference, [f. 69] notwithstanding two acts of Parliament, 4 and 7 Jac., provided expressly that no subsidy or alnage should be paid out of coarse cloths.

Upon SIR THOMAS WENTWORTH'S motion, it was ordered that Serjeant [Sir Robert] Hitcham's speech should be razed out of the Clerk's book.

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

[f. 143v]

Friday, 16th of April

Bill for enabling lords lieutenants and deputy lieutenants to appoint the arms and furniture. [f. 144] Rejected because it gives too much power to deputy lieutenants, etc.

A committee appointed to consider of drawing up a new bill and to consider of the unnecessariness of muster masters and the abuses, etc.

SIR THOMAS HOBY affirmed that before [15]88 there were none, but then letters came from the Council to recommend, etc., which for a good space was afterward discontinued.

SIR EUBULE THELWALL moved that the order of the House touching Sir Thomas Gerrard might be pursued.

Ordered.

MR. [JOHN] PYM moved touching bringing in the certificates touching recusants.

The letters explanatory of the Privy Council to show who are justly to be suspected recusants, such as do not ordinarily repair to church having no just impediment, or not receive the communion once a year, or their wives, children, servants, number of tenants, retainers, these to be proceeded against.

Wednesday next appointed to bring certificates touching this. The knights and burgesses are not only to certify of their own knowledge, but by the common fame of the country.

A letter from the King directed to the SPEAKER showing he was informed upon occasion of some intimation of complaints against the Lord Treasurer concerning the imputation laid on him that he should go about to dissolve the last Parliament. For his clearing therein, he was so far from it as that he was on his knees to desire the continuance of it, and said he was the worst of traitors [f. 144v] that would go about to do such a thing.

SIR ROBERT PHELIPS. By the orders of the House, such letters are to remain with the Speaker and not among the records of the House.

The debate concerning the pretermitted custom. [Edmund] Nicholson, the projector of it, was called in. He excused himself for not defending his patent by counsel, being it was a business which more particularly concerned the King and therefore fit to be defended by the King's counsel. He confessed he was the first proposer, first to Prince Henry, after to Queen Anne. Anno 1619, Sir Lionel Cranfield, now Lord Treasurer.

SIR ANTHONY FOREST affirmed he propounded it to the Earl of Somerset and to the Earl of Suffolk, who both rejected it and said it was a grievance.

MR. [ROBERT] BERKELEY. It was by the King first to his counsel at law, and then to some of the Privy Council in point of conveniency, and by them to Yelverton and Coventry in point of calculation of the proportion between wool and cloth.

MR. SOLICITOR began:

• 1. Whether it be legal.
• 2. Whether the calculation be right.
• 3. Whether convenient.

Of the first, the opinion of all the judges this 40 or 50 years.

• 1. Consider the nature of the duty.
• 2. The ground.

[f. 145] For the nature, if an imposition, I disclaim to speak of it, knowing the judgement of this House. I will insist only on the point of legality by the statute of tunnage and poundage.

For the name, in 14 E. 3['s] time, a demi-mark on wool by act of Parliament. About that time clothing began, then was it thought fit to recompense it by 21 E. 3, an establishment by act of Parliament for 6s. 8d. on a cloth, 6 [sic] cloths to a sack of wool. After this the statute of tunnage and poundage came, and granted 33s. 4d., which added to the 6s. 8d. [a]mounted to 40s. a sack of wool. This of 33s. 4d. was afterward still continued in the following kings' reigns to Queen Mary; from the time of Queen Mary there has been less than 40s. but more than a noble taken. Wool by name is but 6s. 8d., the rest of the 33s. 4d. is left indifferent, pretermitted as much as omitted. The statute 1 Jac., cap. 33, the words are the poundage 12d. on the pound for wool [sic]; and further, do give and grant, etc., one other subsidy, for every sack of wool 33s. 4d. If these words be not to be applied to wool and cloth, then the king has no right. But if otherwise, etc. The exception takes out both cloth and wool, but [blank]. [f. 145v] In the beginning of Queen Elizabeth's times when wool was not exported, this was put in. Consider what the use has been for 70 years together. The king has been above 60 years in possession. There is no forfeiture for an imposition but in case of custom of [sic] subsidy. 1 E. 6, statute. Yet hundreds of cases in the Exchequer of seizures of cloths for not payment of duties. The judgement of Parliament has gone this way. Anno 14 Eli., cap. 10, after the statute of 1 for tunnage. The act was to reform the abuse of the length of kerseys; it mentions the length and weight, that the Queen has been, is and ought to be answered of the customs and subsidies of the kerseys. If so, then upon all manner of cloth, for it is no way due but by virtue of the statute of tunnage and poundage. Directed by the statute to be of a certain length. Another act, 27 Eliz., cap. 18, concerning white straits, provided that for defrauding the Queen's custom none of the said cloths shall be made of more than 12 librae. If no duty on cloth, no defrauding of custom on cloth. As for the point of conveniency, if it can be made appear that the burden is too heavy in regard of the difference of cloths, or otherwise, we have a gracious King, etc.

[f. 146] SIR ROBERT HITCHAM. The question not only on the statute of tunnage and poundage, but on the imposition in Queen Mary's time. Temporary impositions are not to be continued but took away, perpetual ought to stand. The king may prohibit exportation of things in case of necessity, as of corn, and the importation of things hurtful. The king may dispense with either of these, as with a penal law. The reason of the setting this imposition in Queen Mary's time. In E. 6['s] time the wool was only to be carried to Calais to the staple. Calais being lost, no wool was to be transported, there was a temporary reason of recompense for loss thereof. Queen Elizabeth continued it upon the same reason. Cases adjudged for maintaining imposition. In the Exchequer, 31 of Eliz. resolved in the case of new drapery, because of translating the wool into another kind.

SIR ROBERT PHELIPS. The last speech not according to the order prescribed by the House, because of falling upon the point of imposition, which in 12⁰ of the King he argued on the contrary part. Now fit somewhat should be said lest the right might be impeached.

MR. SOLICITOR moved that point might be declined.

[f. 146v] MR. [JOHN] BANKES. [Blank] The statute of 1⁰ Queen Mary gave the subsidy of 33s. 4d. but during her life. As for the judgement 31 Eliz. touching the new drapery, first, that was by occasion of alnage by statute 5 E. 6, cap. 6, nothing to this. Touching the statute 1⁰ Jac. that no wool being then transported, the king was to have it of cloth. The statute 3⁰ Eliz. established 3 staple towns, Bruges, Middelburg, Bergen-op-Zoom. To the objection of the prescription of 60 years, the question is upon the last patent of 17 Jac. It was never demanded until within 4 or five years. As for the statutes 14, 27 Eliz., not a word of subsidy what should be paid. As for seizing of cloth in the Exchequer, no seizure upon this title of pretermitted customs.

Now for his own opinion. The patent is built on 2 foundations:

• 1. Legal.
• 2. Proportional.

The patent alleges them but as matter of precedent. For the two former, they determined with the Queens' lives.

• 1. It is no duty.
• 2. No pretermitted duty.
• 1. The statute 1⁰ Jac. that gives poundage.
• 2. The branch of 33s. 4d.

For the first, cloth is precisely excepted; for the second, it does not extend to cloth. Appears by exposition of Parliament, judgement, law itself. By the statute 14 E. 3. 31 H. 8, cap. 21 [sic], a subsidy given on wools, complained of. 31 H. 6, 21 [sic], [f. 147] a statute not printed, declared that for three years no subsidy on wool, no mention of cloth, in no statute until Queen Mary's time turned of cloth. The judges 31 [sic] H. 8, Dyer, 43, by the law they see no custom. 1 Queen Mary [sic], fol. 65, Lord Dyer, the like. It is said by some the statute must be expounded by equity. But that is not to be done on particulars not enumerated. This law was rather made by way of penalty to keep the wool within the kingdom, than etc. Woollen cloth exported by merchants [sic] aliens will yield a treble duty. It being no duty, it is not pretermitted. For answer to the false suggestions of the patent:

• 1. The proportion between the wool and the cloth.

Answer: in E. 3['s] time it appears the duty on wool was 6s. 8d., so much cloth paid but 4s. 6d. 14 E. 3 but 14d. on a cloth; for the present proportion, 5s. 6d., 13d., 2s. 2d., 9s. odd money more on a sack of wool than before. A sack of wool will make 6 sorting cloths. The duty now laid is after the proportion of 4 cloths. Neither is there any colour of allowance of tare or waste, for howsoever it amounts but to 84 librae. And at that rate it comes but to 14d., whereas they raise 3s. 4d. For recompense of loss by cloth, the king is recompensed by custom of oil, cochineal, indigo, etc. [f. 147v] Upon the new drapery £3 8d. on a sack of wool, so as the same equity should be for the subject. The proportion is made for staple wools, but now the coarse wools of Cumberland, Northumberland, etc., have the same duty for them as for the other. There are 2 statutes, 4 Jac., cap. 2, 7 Jac., cap. 16, which do exempt those coarse cloths for alnage, etc. No duty. No pretermitted duty.

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

[f. 104v]

April 16⁰, Friday

An act to confirm an act made Eliz. 23⁰ for assurance of certain lands between the Bishop of [Coventry and] Lichfield and one [Thomas] Fisher.

An act to authorize and enable the lords lieutenants and their deputies to appoint who shall find horse and arms in their several countries. This bill was brought in by SIR GEORGE MORE but was immediately and violently [f. 105] thrown out, and a committee appointed to draw a bill who and how men should be rated in that kind.

An order to revive an order about the sending for the mayor and burgesses of the town of Liverpool to know why they made choice of Sir Thomas Gerrard.

A letter from his Majesty unto the Speaker to clear him from being any instrument of dissolving the last Parliament, as had been there suggested. His Majesty was pleased to say he owed that right to innocence to clear it from ungrounded suspicion and that the Lord Treasurer had been upon his knees to entreat him to continue it, saying that he was an arch traitor that should go about to put a distance or difference between king and people, but took no notice of any other particular laid against him.

[Edmund] Nicholson, the projector of the pretermitted customs, being examined, desired that the King's counsel might defend that cause and not he; he was but a servant. He had presented it to Prince Henry, anno 1612, and to the Earl of Somerset, to Queen Anne, by whose means the King granted it. The Lord Treasurer took it from him and Sir Thomas Morgan as too great for them.

The King's Solicitor, SIR ROBERT HEATH, undertook to prove on the King's part that these pretermitted customs were legal. Not against law as grounded upon the statute of tunnage and poundage. Edwardi 3^tii, 14⁰, a noble was granted upon exportation of a sack of wool and when clothing came up the king lost. That 6 [sic] cloths were allowed for a pack of wool and 14d. set upon every cloth; afterwards there was 5 nobles granted the king a cloth.

MR. [JOHN] BANKES answered him and showed them against law.

And the dispute was adjourned until a further time.