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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A37238	Jus imponendi vectigana, or, The learning touching customs, tonnage, poundage, and impositions on merchandizes, asserted as well from the rules of the common and civil law, as of generall reason and policy of state / by Sir John Davis ...	Davies, John, Sir, 1569-1626.	1659 (1659)	Wing D403; ESTC R36082	63,305	189

invectis are the most ancient duties payable to the King so are the same grounded saith Bodin upon the greatest reason and equity in the world quid est enim rationi aequitati magis consentaneum quàm is qui in nostro territorio ex nostris questum facit principi nostro cujus permissu sub cujus protectione negotiatur aliquod perdat presolvat And this common reason and equity which is the ground of these duties payable for Merchandizes what is it else but the Law of Nations which is nothing else but that which common reason hath establisht amongst all men for the common good of all men and which all Nations have received and imbraced for their mutual benefit and commoditie Neither is this the onely Prerogative which the King of England hath by the Law of Nations habet Rex in regno suo saith Bracton alia privilegia de jure Gentium propria viz. Soreceum maris thesaurum insentum grossos pisces balenas sturgiones Wavias c. huiusmodi de jure Gentiune pertinent ad Coronam saith Stampford Prerogativa Regis fol. 37. 6. Adde hereunto the absolute power of the King to make War and Peace League and Truces to grant safe Conducts to pardon all Offenders to distribute all degrees of Honour and the like wherein the King hath sole and absolute power Merune imperium non mixtum and which Prerogative is as antient as the Crown and incident to the Crown by the Law of Nations Lastly for the proof that our Common Law doth acknowledge and prove the Law of Nations in most of these cases The Book 19 Edw. 4. 6. doth approve the Kings absolute power in making War Peace and Leagues and in 37 Edw. 6. 20. That part of the Law of Nations whereby the High Constable and Marshall of England do proceed in their Courts of War and Chivalrie is called the Law of the Land We finde also the Kings sole power in 11 Hen. 4. Rot. Parliament in Archivis turris London for Coyning of Money we have the case of Mines Com. 316. for safe conduct of Merchants and stop of Trades tempore guerrae and Letters of Reprisall we have 7 Edw. 4.19.2 R. 3.2 Magna Charta cap. 30. and the Register wherein we find Writs of Reprisall CHAP. III. Of the Law Merchant which is a branch of the Law of Nations and how it differs from our Common Law and how in the judgement of our Law Merchandizes do differ from other Goods Chattels which do not crosse the Seas and how the Common Law and Statute Law of England do admit and allow of the Law Merchant MErcaturavel Societas Mercatorum est magna Respublica saith Vlpian and therefore that Common-wealth of Merchants hath alwayes had a peculiar and proper Law to rule and govern it this Law is called the Law Merchant wherof the Laws of all Nations do take speciall knowledge first both the Common Law and Statute Law of England do take notice of the Law Merchant and do leave the causes of Merchants and Merchandizes to be decided by the rules of that Law for what saith the Book of 13 Edw. 4.9 10 A Merchant Stranger made sute before the Kings Privy council for certain Bailes of silk feloniously taken from him and it was moved that this matter might be determined by Common Law unto which motion the Lord Chancellor doth there answer This sute is brought by a Merchant who is not bound to sue according to the Law of the Land nor to tarry the tryal of twelve men nor other solemnity of the Law of the Land albeit the King hath jurisdiction of him within the Realm and may cause him to stand to his Judgement yet this must be according to the Law of Nature which some call the Law Merchant which is a Law universall throughout the word these are the words of that Book it is there resolved by all the Justices That if the Merchandizes of such a Merchant stranger be stollen and waved by the Felon the King himselfe shall not take those Merchandizes as waifes though in that case the goods of another person were lost by the Common Law of England Doth not this case make it manifest that in the judgement of our Common Law Merchandizes that crosse the Seas are goods of another nature quality and consideration than other goods and Chattels which are possessed within the Realm and do not crosse the Seas This learning is not common in our Books and therefore I think it meet to exemplifie this difference with more cases in this point If two Merchants be Joynt-Owners or Partners in Merchandizes which they have acquired by a Joynt-Contract in this case the one shall have an Action of Account against the other die legem mercatoriam saith the Register fol. 135. and F. N. 117. D. and yet by the rule of the Common Law if two men be joyntly possessed of other goods which are not Merchandizes the one shall not call the other to account for the same Again if two Merchants have a joynt Interest in Merchandizes if the own die the Survivor shall not have all but the Executor of the party deceased shall by the Law Merchant call the Survivour to an account for the moytie F.N. 117. D. whereas if there be two Joynts of other goods which are not Merchandizes the Survivor shall have all per jus accrescendi even by rule of the Common Law Again in an Action of Debt upon a simple Contract which is without Deed in writing the Defendant by the Common Law may wage his Law that is he may bar the Plantiff of his Action by taking an Oath that he doth not ow the Debt nor any part thereof and yet in Itin. Derby 2 Edw. 3. Iohn Crompton Merchant upon a Contract without Deed the Defendant would have waged his Law but was not permitted so to do and so Judgement was given against the said Defendant Again the goods of Ecclesiastical persons are discharged of Toll by the Common Law si non exerceat Marchandizas de eisdem saith the Register 259. a. for then their goods are charged being now become goods of another nature when the same are turned into Merchandizes so are the goods of the French Nobility discharged by Gabels and Impositions if they traffique not but if they traffique saith Bodin their goods are charged like other Merchandizes Again for goods wrongfully taken within the Land the Common Law giveth remedy against the Trespasser or the wrongfull Taker onely but if an English Merchant be spoiled of his Merchandizes upon the Sea or beyond the Sea by the Subject of another King the Register doth give him a Writ of Reprisall against all the Subjects of that Nation Regist. 122. 6. and 46 Hen. 3. we find a more brief cause of Justice for there the King in respect of the

Ius Imponendi Vectigalia OR The Learning touching CUSTOMS Tonnage Poundage And Impositions on MERCHANDIZES ASSERTED As well from the Rules of the Common and Civil Law As of Generall Reason and Policy OF STATE By Sir JOHN DAVIS Knight c. The Second Edition LONDON Printed for Henry Twyford in Vine-Court Middle Temple MDCLIX TO THE KINGS Most Excellent MAJESTIE THis Question SIR Concerning your Majesties Prerogative in laying Impositions upō Merchandizes ought not to have been made or moved at all howbeit it hath been stirred and debated in Parliament it is now become an Argument of such Dignity and Importance as the best-able amongst your Servants learned in the Law may well imploy their best learning in the discussing thereof For my part though I find myself unable to handle this Noble Question as the weight and worthinesse requireth yet have I upon sundry occasions arising from the course of my service collected such notes and drawn together such materials as may be of use in the building of a Fortresse in the defence of this Prerogative and sure I am that if your Majestie will vouchsafe to cast your eye upon these Collections that your Judgment will make a far better use and application thereof than I who have gathered the same can posible do these little sparks of knowledge being taken into your Majesties consideration wil instantly multiply and arise into a flame and so give a great light for clearing of this Question This learning within my hand is but a Spade in your Majesties hand will become a Scepter I have onely like the poor Indian digged up the Oare of Mine which being brought into the Kings Mint and refined there becomes part of the royall Treasure For the Argument it self it will hardly receive any Ornament Ornari res ipsa negat contenta doceri The best light I can give it is Lucidws ordo by breaking it into Capita rerum and casting it into a plain and naturall method it is somewhat long and in Multiloquio non deest peccatum saith Solomon it is also mixt with some reasons of State wherein a common Lawyer may easily make a Solaecism yet such as it is my zeal to advance your Majesties Service hath moved me to present it to your Majesty with all humbleness and with some hope that this dutifull pains shall purchase a pardon for the errours therein committed By your Majesties unprofitable Servant and humble Subject Iohn Davies THE CONTENTS Of this BOOK CHAP. I. THe Exposition and meaning of certain words which do shew the true state of the Question page 1 CHAP. II. Of the general Law of Nations or Jus Gentium and the force thereof in all Kingdoms that traffique and commerce is a principal subject of that Law and that it giveth power unto all Kings to take Customes and Impositions upon Merchandizes and that the Crown of England hath many Prerogatives annexed to it by the Law of Nations of which our Common Law taketh notice and doth admit and approve the same 4 CHAP. III. Of the Law Merchant which is a branch of the Law of Nations and how it differs from our Common Law and how in the judgement of our Law Merchandizes do differ from other Goods Chattels which do not crosse the Seas and how the Common Law and Statute Law of England do admit and allow of the Law Merchant 10 CHAP. IV. Of the Imperial or Civil Law and of the extent of the Iurisdiction thereof of what force it is at this day within the Monarchies of Europe and in what case it is received within the King of Englands Dominions and how it warranteth all Kings and Absolute Princes to lay Impositions upon Merchandizes 20 CHAP. V. Of the Canon or Ecclesiastical Law and how far forth it doth examine and resolve this Question in cases of Conscience only 25 CHAP. VI That this Question of Imposition may be examined and decided as well by the rules of the Laws before mentioned as by the rules of our Municipiall Laws or Common Law of England 27 CHAP. VII Of the Kings Prerogatives in general and that the same do consist in certain speciall points or cases reserved to the absolute power of the Crown when the Positive Law was first established and that the Cōmon Law of England doth acknowledge and submit it self to those Prerogatives 29 CHAP. VIII Of the Kings Prerogative in the ordering and governing of all Trade and Traffique in Corporations Markets and Fairs within the Land and the Common Law doth acknowledge this Prerogative and submit it self there unto 34 CHAP. IX That the King hath another Prerogative in the Government in the Trade of Merchandizes crossing the Seas differing from the Prerogative which he useth and ordereth in Trade and Traffique in Markets an Fairs within the Land and of the difference between Custome and Toll by the rules of the Common Law 38 CHAP. X. Of the ancient duty called Custome payable for our principall Commodities exported and that it was originally an Imposition 41 CHAP. XI Of the ancient duties called Prizes taken out of Forein goods imported except Wines and the petty-Customes of three pence of the pound were accepted by King Edw. 1. in lieu of Prizes 46 CHAP. XII Of the ancient Customes payable for Wines called Prizoge and Butlerage 50 CHAP. XIII Of the ancient Officers which our Kings have created by vertue of their Prerogatives to search and over-see all sorts of Merchandizes and to collect the duties payable for the same 52 CHAP. XIV Of other Impositions besides the ancient Customes before mentioned laid upon Merchandizes by severall Kings and Queens since the Conquest some of which Impositions have been discontinued or remitted and some of them are continued and paid at this day and first of the Imposition set by King Edw. 1. over and besides the Customes spoken of before 53 CHAP. XV Of the Imposition set and taken by King Edward the second 55 CHAP. XVI Of the Impositions laid and levied upon Merchandizes by King Edw. 3 57 CHAP. XVII Of the Profits raised unto the Crown out of Merchandizes during the reigns of several Kings who succeeded K. Edw. 3 untill the reign of Queen Mary 62 CHAP. XVIII That Queen Mary did use her Prerogative in laying Impositions upon Merchandizes 70 CHAP. XIX That Queen Elizabeth also used her Prerogative in laying Impositions upon Merchandizes 71 CHAP XX That our Soveraign Lord King James hath by virtue of the same Prerogative without Act of Parliament layd several Impositions upon Merchandizes 73 CHAP. XXI The general reasons whereupon this Prerogative is grounded 76 CHAP. XXII Of the several Objections that are made against the Kings Prerogative in laying Impositions upon Merchandizes and the soveral Answers thereunto 94 CHAP. XXIII The Answer to the first Objection 96 CHAP. XXIV Of the second Objection touching the uncertainty and unbounded largenesse of this Prerogative 99 CHAP. XXV The Answer to the second Objection 101 CHAP. XXVI The third Objection

because the same were gravia vectigalia in those dayes we may easily beleeve that Custome to have been greater than the demi mark for a Sack of Wooll Again the Statute of Magna Charta which was as ancient as King Iohn speaketh of ancient Customs payable for Merchandizes and the Book of 29 Edw. 3. maketh mention of ancient Customes granted to King Iohn in the Town of Southampton which doubtlesse were other Customes than that of the demi mark c. for that in the Record of the Tower 3 Edw. 1. Rot. sin 24. Rot. Patent of the same year m. 9. the demi mark which was first established by the Kings Letters Patents is called Nova Custuma and this was a diminution of the ancient Custome saith the Book of 30 H. 8. Dyer 43. Again when the same King Edw. 1. had by his Writ onely without Act of Parliament established the Custome of the demi mark c. in Ireland in all the Customers Accounts which are found in the Pipe-Rolls in the time of Edw. 1. Edw. 2. Edw. 3. in that Realm it is also called Nova Custuma which importeth as much as a new Imposition for Imposition is a new name and hath been of use but of late years whereas every new charge laid upon Merchandizes in ancient times was called Nova Custuma as the Lord chief Baron Fleming observed in his Argument in Bates Case of Currans in the Exchequor of England but because this Custome of a demi mark was a reducement made by King Edw. 1. of the great and ancient Custome to that proportion which was then thought reasonable as after upon sundry Petitions of the Commons was allowed by the succeeding Princes it obtained in tract of time the name of the great and ancient Custome this Custome of demi mark was not granted to the King by Parliament but reduced to that rate by the King by the prayer of the Cōmons as is expressed in the Record of 3 Edw. 1. fin memb. 24. for albeit the Charter for confirmation of Magna Charta made in 25 Edw. 1. doth recite That the demi mark was granted by the Cominaltie yet is there no Act of P. printed or recorded wherein that grant of the Cominaltie doth appear neither can it stand with the rule of reason that the demi mark being a diminution of the ancient Custome should proceed from the grant of the Cominalty to the King for the King would never have accepted of such a grant as did diminish his Revenue neither had it been thank-worthy or acceptable and therefore the King having a Negative voice would never have given his assent to such a grant in Parliament but it is to be presumed that this diminution of the ancient Custome was made in Parliament and not by Parliament and that by prayer of the Commons as the Record of 3 Edw. 1. Rot. fin memb. 24. testifieth the King was then well pleased for that time to draw down the ancient Custome to that rate and the people did willingly yeeld and consent to the payment thereof and this I take to be the true interpretation of the Charter or Statute made in 25 Edw. 1. And therefore because we find no Act of Parliament whereby the people did originally grant the great and ancient Customes to the King and because we find it was uncertain and subject to diminution and alteration we may conclude that it was but an imposition laid by the King from time to time by vertue of his Prerogative without any grant from the Cominalty of the Realm who can make no grant but by Act of Parliament in truth it were absurd to aff●rme that the great and ancient Custome imposed upon Native commodities of the Kingdom was first granted by Act of Parliament since it cannot be imagined that ever those commodities did passe out of the Kingdom without Custome being equal in time with the first Scepter and since the Scepter was established many hundred years before the people were called to be in Parliament besides the very name of Custome doth note and argue that it began before any Act of Parliament was made for that it signifieth a duty payable or accustomable to be paid time out of mind which in presumption of Law is before any Record wherefore the rules in the Lord Dyers Book are good Law viz. The King hath an Estate of Inheritance in the Custome payable for Merchandizes as being a Prerogative annexed to his Crown And again 30 Hen 8. 43. Custome is an Inheritance in the King by the Common Law and not given by any Statute CHAP. XI Of the ancient duties called Prizes taken out of Forreign goods imported except Wines and the petty-Customes of three pence of the pound were accepted by King Edw. 1. in lieu of Prizes FOr the Forreign commodities which are brought into England our Kings in ancient times did not take any Rates or Customes or Sums of Money but took such part of the severall commodities in specie as they thought fit for their proper use paying for that they took a price as themselves did likewise think fit and reasonable which was called the Kings price this Prerogative is proved by the rule of the Imperiall Law Rex nonrecognoscens superiorem potest è India in propria causa and also by the rule which is given 31 Edw. 3. 60. where the Bishop of Norwich having forfeited to the King thirty Talents of Beasants of Gold because the quantity and value thereof was uncertain it was adjudged that the Kings House should set down of what quantity and value every Talent should be and that the same should be paid accordingly and by the same Prerogative whensoever any Subject is to pay a Fine or Ransome unto the King for a contempt The King himself doth limit and set the Fine or Ransome at his own will or pleasure The Forreign commodities thus taken by the King in Spain at his own price were called Prizes but because these prizes were many times grievances to the Merchants and brought little or nothing to the Kings Coffers That prudent Prince Edw. 1. by that famous Charter called Charta Mercatoria made in the 31 year of his reign did remit unto all Merchant Strangers their prizes and did grant quod de caetero super mercimonia Merchandizas vel bona ipsorum per ipsum Regem vel Ministros suos nullos nulla appretiatio vel estimatio apponeretur quod nulla prisa vel arrestatio ratione prisae inde fieret c. and the Charter doth further recite That for the remission of these prizes the Merchants Strangers did grant unto the King three pence upon the pound now called the petty-custome out of all Forreign Merchandizes imported except Wines and for our Native commodities exported they would pay for every Sack of Wooll four pence and for every three hundred Wooll-fells six shillings and four pence and for every last of Leather a demi mark

power to shut and open the fame at his pleasure Again all the Ports of the Kingdome are the Kings not onely the Cinque-Ports which have a special Warden appointed by the King but the rest of the Ports are also his and many of them bear a mark of the Kings Inheritance in their Additions as Linn Regis Waymouth Melcombe Regis Pool Regis for the King is Custos totius Angliae Regni as the four Seas are the Walls of the Kingdom so the Havens and Creeks are the Gates and Posterns of it They are Ostia they are Ianua Regni and we find two Ports in Italy called by those names the one at the mouth of Tiber the other corruptly called Genoa but the true name thereof is Ianua And as the Havens are Ianua Regni the King himself is Ianus and hath power to open and shut them at his pleasure Omnia sunt nostra clausa patentque manu Saith Ianus in the Poet And again Modo namque patulchus idem modo sacrifico Clusius ore vocor The King of England hath ever had this Prerogative incident to his Crown to shut and open the Ports when it pleased him as appeareth by many Records especially by the Parliament Rolls in the time of King Edw. 3. wherein are found many Petitions that the Sea might be open which during that Kings time was often shut by virtue of his Prerogative only and never fully opened again but when the King layd an Imposition upon Merchandizes And this Prerogative of Custody of the Ports and of shutting and opening the same is reserved unto the Crown upon an excellent reason For Trade and Comerce is not fit to be holden with all persons neither are all things fit to be imported or exported For such persons as are enemies to the Crown come to discover Arcana Regni such persons as come to corrupt Religion or the manners of the people such persons as under colour of Merchandizes come to set up Monopolies or a dry Exchange to drain or draw away our commodities or money out of the Kingdom are not fit to enter in at the Gates of the Kingdome And again such commodities as the Kingdom cannot spare as Corn in time of dearth and such as may advantage our Enemies and hurt us in time of Warre as Horses Armor Gunpowder c. are not fit to be exported out of the Realm And Poysons Heretical books and other things which are apparently hurtfull to the people are not to be imported and therefore the Prerogative of opening and shutting the Ports is accompanied with another absolute power of stoping and imbarring of Trade Comerce sometimes generally sometimes between us and particular Nations and sometimes for particular Merchandizes only whereof there are many presidents and examples both in Records and Histories of our Nation 2 Edw. 1. Rot. Parliament m. 18. in Archivis Turris 2 Edw. 3. Rot. fin m. 17 ibid. 10 Edw. 3. Chaunc m. 3. in dorso ibid. 17 Hen. 6. Sccio Angliae Matthew Paris Hist. Magna P. 568. 10 Hen. 7 Stow. And this Prerogative of imbarring Trade doth result out of the undoubted Prerogative which the King hath to make Peace and War with Forein Nations for open War is no sooner denounced but all Trade of Merchandize is stopt and imbarred between the Nations which are ingaged in the Warre durante bello inter Reges Christianos merces quascunque exportare vetamur ne Regni arcana serutentur saith a Doctor of the Imperiall Law whereupon wee make this Argument That since the King hath absolute power of shut the Ports and stop Trade it standeth with as good reason that he shold have the like power to lay reasonable Impositions upon Merchandizes for opening of the Ports and for giving of freedome of Trade again he that may doe the more may doe the lesse Non debet ei cui id quod majus est id quod minus est non licere saith the Rule of the Law hee that may prohibit Merchants not to Trade or passe may dispence with that prohibition and give them leave to go and Traffique sub modo Again the King of England is Dominus Maris which floweth about the Island as divers ancient Books and Records do testifie as Fitz Avowry 192. 6 Rich. 2. protection 46. Rot. Scotiae m. 16. in Arch. Turris And he is Lord of the Sea not only quoad protectionem jurisdictionem sed quoad proprietatem and this is our Neptunes trident for God gave unto man as well the Dominion of the Sea as of the Earth where it is said Gen. 1. replete terram subjicite eam dominamini piscibus maris c. and in Psal. 8. Omnia Subjecit pedibus ejus Pisces maris quicquid perambulat Semitas maris And therefore Baldus affirmeth de jure Gentium distincta esse dominia in mare sicut in terra arida and again mare attribuitur terrae Circunstanti Hence it is though there be but one Ocean in respect wherof the whole Earth is quasi insula saith Strabo yet is there Mare Gallicum Sardicum Creticum AEgypticum oceanus Britanicus Germanicus c. which particular names do note a propriety in the Princes and States who are Lords of the Land adjoyning Hence it is that our Common Law doth give unto ourKing all the land which is gained from the Sea which Stampford in the Book of the Kings Prerogative doth affirm to belong to the King de jure Gentium quia Mare seu particula Maris est de Territorio illius Civitatis vel Regni cui magis appropinquat saith one learned Doctor Mare se extendit cum aquae flnt mensurabiles saith another hence it is that all navigable Rivers as the River of Thames and the River of Lee and divers others are called in our Books the Kings Streams 19. Ass p.6 Dyer 117 a because cause such Rivers are arms of the Sea so far as the Sea doth flow in them 22. Ass. p. 93. and lastly hence it is that by the Common Law the King may prohibit all Subjects whatsoever to passe over the Seas without his licence and to that end in 22 Edw. 4. the King commanded the Warden of the Cinque Ports and the Bailifs of all other Ports of the Kingdom that they should not suffer any Man Ship or Boat to passe beyond the Seas quousque Rex illud mandaverit and the like Commandments were given 4 Edw. 3. 21 Edw. 3. 16 Rich. 2. 17 Hen. 6. If therefore the king hath such an absolute Interest in the Ports and in the Sea and in all Navigable Rivers wherein the Kings Ports are situated for the main part why should he not have the like absolute power to limit and prescribe unto Merchants what duties they shall pay and upon what terms and conditions they shall passe to and fro upon the Seas and