Commonalty for payment of the said sum at a certain day and thereupon is enlarged The four hundred Marks are not paid at the day whereupon the Mayor and Commonalty affirm a Plaint against him in London for the said Debt The Defendant obtaineth a Habeas Corpus to remove the body and the cause into the Kings Bench upon a supposition that he was to have the Priviledge by reason of a Priority of Suit in the Kings Bench and upon returne of the Habeas Corpus all this matter appeared unto the Court and it was moved by Sir Henry Mountague now Lord Chief Justice of the Kings Bench then one of the Serjeants of the King and Recorder of London that a Procedendo might be granted whereby the Major and Commonalty might proceed against him in the Court at London It being a customary Suit meerly grounded upon the custome of London But that was denied by Sir Edward Cook Chief Justice and the whole Court because by the Law Chamberlain having cause of Priviledge by reason of the Priority of Suit against him in the Kings Bench might not be re-manded but he was to answer in that Court Whereupon the Major and Commonalty did declare against him upon the said Obligation in the Kings Bench. Secondly it was moved that the action upon this obligation might be laid in some indifferent County and not in London forasmuch as the Trial there must be had by those that were Parties unto the Action it being brought by the Mayor and Commonalty But Sir Edward Cook and the Court would not upon this surmise take away the benefit which the Law giveth to every Plaintiff upon a transitory action wich is to lay it in whatsoever County he will And if there be any such cause as is surmised then after Plea pleaded he may make an allegation That the City of London is a County in it self and that all the Citizens there are Parties to the Action which is brought whereby there may not be an indifferent Trial. And upon this surmise the Court shall order the Trial to be in a Forreign County The which was done accordingly and so the matter proceeded The Case of the Merchant-Adventurers KIng Edward the third in the year of his reign by Letters Patents doth incorporate certain persons by the name of the Merchants-Adventurers of England and doth give power unto them to transport white Clothes into divers parts beyond the Seas restrayning them from carrying over Woolls The Merchants-Adventurers do trade beyond the Seas and continue the transposing of Clothes white until the 29. of August in the tenth year of his Majesties Reign that now is At which time the King by his Letters Pattents doth encorporate the Earl of Sussex late Lord Treasurer of England Sir Thomas Vavasour Sir Stephen Soam William Cockayn and others by the name of The Merchants Adventerers of the new trade of London with full power authority to transport dyed and dressed Cloths into divers parts beyond the Seas with a restraint prohibiting all the Old Merchants-Adventurers which did not joyn themselves unto this new Company to tranport any under the forfeiture of them and also inhibiting the New Merchants from transporting any Clothes but such as are died and dressed And after three years passed they having power during that time to transport 36000 white Clothes And there being a refusal of the Old Merchants Adventurers to surrender up their Patent The King bringeth a Quo Warranto against divers of the Merchants of the old Company by particular names to know by what Warrant they do without Licence of the King transport Clothes white undied and undressed beyond the Seas The Merchants upon the return of the Quo Warranto do make their appearance And an Information being exhibited gainst them by Sir Fr. Bacon Knight now Lord Chancellour of England and then Attorney General unto his Majesty cometh into the Kings Bench and moveth the Court that the old Merchants Adventurers might have a short day the next ensuing Term to answer unto the Information exhibited against them Insomuch that the new Company of Merchants Adventurers standing at a gaze as being uncertain of what validity the old Patent would be did slack to transplant the Diers and other Tradesmen out of the Low-Countries into England being necessary Instruments for the puting in Execution of this design because there were not here in England those that were able to Die and Dress in that manner that the Low-Country men did And so there was in the interim a stop of the current of Merchandizing with our Cloth the which being the principal Commodity that we had here in England the Fleece that causeth it may well and aptly have the term of The Golden Fleece and there being a stop made of the traffiquing and trading with these clothes it is as dangerous unto the Politique Body of the Commonwealth as the stop of a Vein could be to the natural Body for as by the stop of a Vein the Blood is debarred of his free passage and so of necessity there must be a Consumption by the continuance of it follow unto the body natural So traffique being the Blood which runneth in the Veins of the Commonwealth it cannot be but that the hinderance of it by any long continuance must breed a Consumption unto the State of the Commonwealth Wherefore to open this Vein which was as yet somewhat stopped and to give a more free passage unto the Blood he was a Suitor unto the Court on the behalf of the Company of the New Merchant-Adventurers that the Court would give expedition in this Case for they conceived that if this new design might take its full effect as it was intended it could not be but of necessity there must a great benefit redound to the Commonwealth For first Whereas our State groweth sick by reason of the many idle Persons which have not means to be set on work this Dying and Dressing of Cloths within our Kingdome would give sufficient imployment unto them all whereby there should be a cure to the lazy Leprosie which now overspreadeth our Commonwealth Secondly Whereas now we send out clothes White and the Low-Country-men receive them of us and Dye them and Dress them and afterwards transport them unto forreign parts making a wonderful benefit to themselves both in point of profit and likewise in respect of maintaining their Navy whereas if the Clothes were Died and Dressed by our selves we might reap that matter of gain and also be Masters of the Sea by strengthening our selves in our Shipping Thirdly Whereas there happeneth often a confiscation of all our Clothes and much disgrace and discredit lighteth upon our Nation and our Clothes by the abuse of the Low-Country-men in stretching them a greater length than they will well bear when they Dye and Dress them now it should be prevented when they should never have the fingering of them to put that abuse in practice Wherefore this Patent made by
Custome for the payment of a thousand pound according unto the time limited by the Will and according to the Will aforesaid The Executor denieth to find Sureties whereupon he was committed to prison and a Habeas Corpus being awarded out of the Court of Kings Bench to have the Body of the Executor together with the cause all this matter appeareth upon the return And now it was moved by Richard Martin late Recorder of London then an Apprentice of the Law that the return was insufficient and so the Executor ought to be enlarged First in regard that the ground of the imprisonment was the Custome of London and the custome is against the Law and void insomuch that it enforceth an Executor to find Sureties for the payment of a Legacy according unto the Will where the law requireth that debts be paid before such time as Legacies be performed and the Law giveth an election unto the Executor to pay which of the Legacies he will in case there be not sufficient to pay all the debts and legacies of the Testator but this exception was disallowed by the said Court insomuch that the custome of London appeareth by the return to be that he shall find Sureties for the performance of the Legacies according unto the Law of the Realm and the Will of the Testator So as if the Executor had not sufficient to pay debts and legacies he hath the same power and liberty after such time as he hath found Sureties as he had before Secondly except on was taken because it appeared by the return that the Devisor was a woman and also only the Wife of a Freeman and not a Free-woman and she is not within the custom of London which only speaketh of a Freeman But this exception was over-ruled for a woman being a Free-woman within the Statute of Magna Charta cap. 29. which enacteth that no Freeman shall be taken or imprisoned c. but by the lawful judgement of his Peers So that she being a Barroness or Countess shall be tried by her Peers upon an Indictment preferred against her she shall also be reputed a Freeman within this custome Secondly the Wife of a Freeman having the liberty and priviledge to Trade in the City and so able to take benefit by it she shall also be bound by the customes of it Thirdly howsoever she was dwelling out of London at the time of the Will made she is a Freeman within the compass of the custome Fourthly it was objected that this custome of London concerning Orphans was an antiquated custome and had not been put in use by many years and therefore ought not now to be put in ure to take away the liberty of a man and especially also because the life of a custome is the usage but this exception was over-ruled for this custome is dayly put in Ure The custome in not removing body and cause upon Habeas Corpus A Petition being affirmed in London by one Hill a Citizen and Freeman of London against another Citizen and Freeman of London upon a Bond of a hundred pound a Summons is awarded against the said obliged and the pretext being returned that he hath nothing whereby he may be summoned within the City upon a Surmize made by Hill the Obligee that one Harrington a Citizen and Freeman of London is indebted in a hundred pound unto the first Obligor a Summons is awarded according to the custome of London of Forreign Attachments for the warning of Harrington who is warned accordingly whereupon Harrington procureth a Habeas Corpus for the removing of his body together with the cause into the Kings Bench upon which Writ a return is made in this manner that is to say That London is an ancient City and that time out of mind of man the Mayor Aldermen and Citizens of London have had Conusans of all manner of Pleas both real and personal to be holden before the Mayor Altermen and Sheriffs of London in London and that in no action whatsoever they ought to remove the cause out of London into any other Court and do moreover shew a confirmation made by R. 2. in the seventh year of his Reign of all their customes and so for this cause they had not the body here nor the cause And exception being taken to the insufficiency of this return it was agreed and resolved by the whole Court of Kings Bench that this return made was ill for common experience teacheth that the usual course is and alwayes hath been that upon Habeas Corpus the body together with the cause have been removed out of London into the Kings Bench and likewise upon Certioraries awarded out of the Kings Bench. Records have been certified out of London into that Court for Justice being to be done unto the Citizens of London as well in that Court as in the 〈…〉 proper Court the Court of London being an inferiour Court unto the Court of Kings Bench where the King is supposed to sit in person ought to yeild bedience unto the Writs awarded out of that Court as the Supetiour Court but if the cause should be such that there should be a failer of Justice in the Kings Bench upon the removing of the cause because it is only an action grounded meerly upon the custome of London then a return made of the special matter will be warrantable or otherwise if the return be made that the custome of London is that no cause which is a meer customary cause wherein no remedy can be had but only in London according unto the custome of London may well be allowed so as the cause specially be returned into the Court whereby it may appear unto the Court that it is such a cause which will not bear action at the Common Law for it is usual in the Kings Bench that if the cause returned unto the Court upon the Habeas Corpus appear to be such a cause as will bear an action only by the custome and not at the Common Law the Court will grant a Procedendo and send it back again to London as if the cause returned appear to be an action of Debt brought upon concesit se solvere or to be an aaction of Covenant brought upon a Covenant by word without any specialty for these be meer Customary actions which cannot be maintained but by the custome of London and therefore that shall be remanded for if the Kings Bench should retain these causes after such time as they are removed and should not remand them there would be failing of Justice and the Judges of the Kings Bench in the person of the King do say Nulli negabimus nulli vendemus nulli differemus justitiam and the reteining of these causes would be a denying of Justice wherefore they do grant a Procedendo and remand it The case concerning payment of Tythes in London RIchard Burrel being seized in his Demesne as of Fee of a House called Green Acre a Shop and Ware-house in
after the delivery of the Bill shall make Summons to the Tenants demand by witness of two Free holders men of the City that they be at the Guild Hall the Saturday next following to see the Recogniâ—ance if they will against which Saturday the Defendant may sue the next Friday before together and summon the Jury and so afterwards against the Saturdayes from fourteen dayes to fourteen dayes at his will and so may the Tenants sue if they will for their celiverance and the gathering of the Pannels of such Juries shall be done by the Sheriffs and their Ministers or by the Mayor and Aldermen if any of the parties will require it upon any reasonable cause in such sort as is used in Assize of Fresh-force and in such Assizes of Mort d'ancest the parties may be assigned as at the Common Law and the Tenant may vouch to warrant within the City and also in Forreign County if the Vouchee have no Lands within the City and if the Tenants plead release bearing date in Forreign County or other Forreign matter that cannot be tryed within the City or that the Vouch to warrant in Forreign Counties he that hath nothing within the City then at the Suit of the party shall cause the Record to come into the Kings County by Writ directed to the Sheriff and Coroner and there shall such Forreign Pleas and Forreign Vouchers be tryed and determined and sent back again to the said Sheriffs and Coroners to go forward and proceed according to the custome of the City and continuance shall be made in such Assizes upon the causes proceeding and upon other causes reasonable and when the Assizes shall be determined and Judgement given then the same Assizes shall be ingrossed and entred upon Record by the said Sheriffs and Coroners and afterward sent to the Guild-Hall to remain there of Record according to the Order of Assize of Fresh-force hereafter following Assizes of Novel Disseizen called Fresh-force in London THe Assizes of Novel Desseizen called Fresh force of London and Tenements and Rents within the City of London of Disseizins made within 40. weeks are holden and determinable before the two Sheriffs and the Coroner of the said City in common every Saturday in the Guild-Hall except certain times wherein the Assize cannot be holden for reasonable cause and the process thereof is such viz. when any man is grieved and that he be disseized of his Free-hold within the said City or the Suburbs of the same he shall come to any Hust holden at the Guild-Hall or for default of Hust in the Chamber of the Guild-Hall in the Assembly of the Mayor and Aldermen any Munday and shall make there a Bill and the Bill shall be such viz. A de B. queritur versus ss C. de D. de libero tenemento suo in parochia de E. in Suburb London And the same Bill shall be inrolled and upon that shall be made another Bill containing all the matter of the first Bill by the common Clark of the City making mention of the title of Hust or of the day of the Assembly of the Mayor and Aldermen and then the Bill shall be sent to the Sheriffs or to either of them to do process and right unto the parties and then although the Bill be served the Wednesday then next following that is to say the Minister of the Sheriffs to whom the Bill is delivered shall summon the Tenant or Tenants named in the said Bill of Assize by the view of two Freemen of the City and that of the Tenants from whom the rent is supposed to be issuing and then it shall be said to the Tenants that they keep their day at the Guild-Hall the Saturday then following at their peril and the names of those which are summoned shall be endorsed upon the backside of the Bill and then may the Plaintiff sue to have the Assize gathered and the Jury summoned against such Saturday or against other Saturday after at his pleasure and so may the Tenants sue for their deliverance if they will and such summons shall be made the Friday before the said Saturday and the Array of the Pannels of the Juries shall be made by the Sheriffs or their Ministers or by the Mayor and Aldermen if any of the parties upon reasonable cause shall require it Also the same Assizes shall be pleaded and recorded for the greater party also as elsewhere at the Common Law and if release bearing date in Forreign County bastardy or other forreign matters which cannot be tryed within the said City be alledged in such Assizes then the Plaintiff may sue and cause to come the Record in the Kings Court that the matter may be tryed as the cause requireth and when the matter is there determined the process shall be sent back to the said Sheriffs and Coroners or to their Successors to proceed forward before them according to the custome c. And you must note that there is no discontinuance in such Assizes neither is any mention made in the Record of the dayes betwen the Assizes taken and the day that the Assize shall be taken or Judgement given if it be not by necessary cause or that such Assizes be adjourned for special causes and when the Assizes are taken before the Sheriffs and Coroners as before is said and Judgement be given then shall such Assizes determined be entred of Record and afterwards shall be carried into the Chamber of the Guild-Hall to remain there in the treasury upon Record And note that no man may enter into any Tenements within the said City by force nor any Tenants hold by sorce and armes in disturbance of the peace De Curia Majoris London Custumis Civitatis ejusdem Diversis Casibus terminalibus in eadem Curia Curia Majoris of the said City of London is holden by the custome of the same City before the Mayor and Aldermen for the time being in the Chamber of the Guild-Hall or in Hust and that from day to day and there are treated determined and discussed the Pleas and matters touching Orphans Apprentices and other businesses of the same City And there are redressed and corrected the faults and contempts of those which do against the custome and ordinance of the City as well at the suit of the parties as by Enquest of Office and in other sort by suggestion according as the causes require and there they use to justifie Bakers Victuallers and Trades-men and and to treat and ordain for the Government of the City and for keeping the Kings peace and other necessary points of the City and according as the time requireth Item the Officers and Ministers of the said City being found faulty are to be cleared before the Mayor and Aldermen as well at the Suit of the parties by Process made as otherwise according to the discretion of the said Mayor and Aldermen Item the said Mayor and Aldermen use there to hold and determine Pleas of Debt and other
or the party and afterwards are sent by Writ to the Exchequer or any other the Kings places with their Causes the same Prisoners after they are delivered in the Kings Court ought to be sent to the said City to answer to the parties and stay there for their deliverance Item those which have Tenements within the said City shall not be sufferd to strip or waste their Tenements Demeasne nor to pull them down in deforming or defacing of the City unless it be to amend them or build them up again and any that doth it or beginneth to do it shall be punished by the Mayor and Aldermen for the offence according to the custome of the City Item if Walls Penthouses or other Houses whatsoever within the said City stretching to the High street be so weak or feeble that the People passing by mistrust the peril of some suddaih Ruine then after it is certified to the Mayor and Alderman by Mason and Carpenter of the City sworn or that it be found in the Wardmore that the danger is such then the same Mayor and Aldermen shall cause the parties to be warned to whom the same Tenements belong to amend them and repair them so soon as conveniently he may and if after such warning they be not amended nor begun to be amended within fourty dayes then next following then shall the said Tenements be repaired and amended at the cost and charges of the said City untill the costs be fully levied of his Goods and Chattels or other his Tenements if â—eed be Item if any House be found within the said City or the Suburbs of the same covered with Straw Reed or Thatch he to whom the House belongeth shall pay to the Sheriffs for the time being fourty shillings and shall be compelled to take away the same covering Item if any House within the said City be burning so that the flame of the Fire be seen out of the House he which dwelleth in the said House shall pay to the Sheriffs forty shillings in a red Purse Item the Mayor Aldermen and Sheriffs and all other Officers and Ministers of the said City are to be chosen by the same City viz. At the time when the Mayor should be chosen the commons of the same City shall by custome be assembled in the Guild Hall and the same commons shall make election of two honest men of the said City of whom the one shall be Mayor and the names of the said two honest men shall be carried before the Mayor and Aldermen which are for the time within the Chamber of the Guild-Hall And then the one of them shall be chosen to be Mayor by the said Mayor and Aldermen by way of Screame and the said Mayor so newly chosen the morrow after the Feast of Simon and Iude shall be presented before the Bacons of the Exchequer at Westminster or in their absence to the Constable of the Tower and afterwards shall be presented to our Sovereign Lord the King himself according to the content of the Charter of the said City and the said Mayor shall have the Government of the said City under the King for the year following and the said Mayor shall take fifty Marks a year for the of Coâ—n and fifty Marks in time of Peace of the Merthants of Anzens Corby and Neele according to the ancient Orders thereupon made and every Mayor shall hold his general Court at the Guild Hall the Munday after the Feast of the Epiphany and then shall be assembled all the Aldermen of the same City and all the Constables Scavengers and Beadles shall be sworn anew well and faithfully to do their office during the time they shall be Officers and the Wardmotes held by the Aldermen and the default found shall be then delivered up by the said Aldermen in writing and the default found in the Wards shall be enquired and examined and the Mayor for the time being by custome of the same City for maintainance of the Peace and for the quiet of the City hath authority to arrest and imprison the disturbers of the Peace and other malefactors for rebellions or lewd expences and other defaults according to their discretion without being appeached or afterwards impleaded for the same Item No Mayor shall be chosen within the said City before that he hath been Sheriff of the same City a year before Item The Mayors of London which have been for the time are accustomed to have their Sword born upright before them within the said City and without the putting the same down in the presence of any except the King and that Sword is called the Kings Sword Also the Sheriffs of London are chosen by custome of the said City on St. Matthews day in the Guild-Hall viz the one shall be chosen by the Mayor and the other by the Commons and the said Sheriffs shall afterwards be sworn within the said Guild-Hall and the morrow after St. Michal presented into the Exchequer by the Constable of the Tower according to the form of the Charter of the City as is aforesaid and the same Sheriffs shall have Free Election of all their Officers and of their Farmours and Bayliffs as well within the City as the County of Middlesex and of the Goalers of the Prisons within the said City at their will and the same Sheriffs pay and are Accomptants yearly to the Kings Exchequer for the Farm of the said City and County of Middlesex according to the form of the said City and Charter and by reason of that Farm the said Sheriffs ought to have the ancient Tolls and Customes of Merchandizes coming into the City and going out of the same and Forfeitures Fines and Amerciaments and all other commodities of ancient time belonging to their Office And no Merchandizes shall pass out of the City by Land nor by Water by Cart Horse nor Portage by men without a Warrant sealed by the said Sheriffs and Forreigners must pay for their Issue according to the ancient custome Item The Aldermen every year are elected at the Feast of St. Gregory and sworn and presented to the Mayor and the said Aldermen are chosen by men of the same Ward which Aldermen ought to keep their Wardmotes Item Upon the death of the Alderman of any Ward the Inhabitants in the Ward are to chuse a new Alderman for their Ward whom they think good and are to certifie the Lord Mayor of their choice who is to declare the same to the Court of Aldermen at their next meeting and then to give the Ward notice of their liking of the choice but if it be an easie and quiet Ward then by order either the Lord Mayor or eldest Knight on the Bench is to have the same Ward as Alderman thereof yet the Election is in the Ward absolute of themselves whom they will chuse THE COMMISSION AND ARTICLES OF THE WARD-MOTE INQUEST By the MAYOR To the Alderman of the Ward 1. VVE charge and command you that upon St.
the disposition of them according to her will and pleasure and the Poet saith Da tua dum tua sunt nam post mortem tua non sunt and they not being the Wines of a Citizen to every intent but only to a special intent may not be said to be capable of the discharge of payment of prisage according to the Case that hath been adjudged that where the King by his Letters Patents doth grant the Goods and Chattels of all Felons and Fugitives unto a common person now the Patentee by vertue of this grant may not claim the Goods and Chattels of one that is a Felon of himself in so much that he is a Felon only to a special intent and this being a Flower of the Kings Crown shall not pass by general words Fourthly Prisage being a thing which is not due until such time as the bulk be broken now forasmuch as George Hanger was dead and so was disfranchised before such time as the duty accrued the Charter shall not extend to discharge the Wines in the hands of the Executrix of the payment of Prisage And so having given you a taste of the opinion of the Judges upon the main case I will descend to the other matters considerable in this case upon this Charter and for better order and methods sake I will divide it into the parts hereafter following that is to say First what Prisage is and to whom due the nature of it and the diversity between Butlerage and Prisage Secondly what is the cause and ground why the King hath Prisage Thirdly at what time prisage shall be said to be due Fourthly whether a grant or discharge may be made by the King of Prisage Fifthly whether the Charter of discharge unto the Mayor and Commonalty of the payment of Prisage be good when the grant is made to the Mayor and Commonalty and the benefit distributed unto the natural persons and the ground of the making of this Charter Sixthly what persons shall be discharged of the payment of Prisage within the words of the Charter which saith Quod de vinis Civium nulla prisa fiat Seventhly what Wines shall be said to be discharged of the payment of Prisage within the words of the Charter As to the first Prisage is a certain duty which the King and his Predecessours by themselves or their Officers by a custom time out of mind of man hath used to take for the provision of his houshold of all English Merchants of all Wines whatsoever which the said English Merchants bring from beyond the Seas into the Coasts of England In which said description it is first observed that it is a duty due from the subject unto his Majesty and not a voluntary gift of the subject unto the King Hereupon it is that in H. 4. 3. in the Patent-Roll in the Tower you shall find prisage termed by the name of Regia Recta prisa for that it apperreineth and is due unto the King of common Right and being a Flower of his Crown may not belong unto any man else but by especial Grant Secondly it appeareth that it is called a certain duty because it is manifestly certain what the King shall have out of every Ship both in respect of the time when he shall take it in respect of the place where he shall have it and in respect of the quantity which he shall have For as to the time when he shall take it it is upon the breaking of the Bulk of the Ship and not before for if a Ship come into the Port laden with Wines and the Bulk of her is not broken now may not Prisage be demanded of her And as to the place where the King shall take this prisage it is ascertained by a Book-Case where it is said That the King shall take one Tun behind the Mast and the other before And as to the certain quantity which the King is to take it is manifest by divers ancient Records for if a Ship have ten Tun in her and under the number of twenty Tuns then the King is to have one Tun only but if the Ship containeth twenty Tuns and more then the King is to have two Tuns the one to be taken behind the Mad and the other before the Mast the King paying for the portage twentyâ—sh and by reason of these certainties you shall find in the Patent-Rolls in the Tower 28. E. 1. that it is called Certa prisa Thirdly it is to be observed that is not a duty newly encroached for it hath by custom time out of mind of man been taken for the ancientest Records now remaining with us do make mention of the payment of it for in the Pat. Rol. aforementioned being in the 40th year of Henry the third it is spoken of and Fleta who wrote in the beginning of E. 1. his time hath not been silent in declaring the nature of prisage and in the 15. E. 2. Rast all Estreats Sect. 22. an ordinance is made amongst other things that the Butler of the King for the time being either by himself or his Deputy shall enroll the Wines of prisage how many times he hath taken them the testimony of persons of whom the price was had where and when and the Customers of England shall be charged according as they are assigned for the gathering of customes within I certain bounds that they twice yearly shall certifie the Treasurer and Barons how many Ships have arrived within their bounds c. And how many Ships arrived of whom the King did take prisage of Wine and how many Tunnes and in what Ships the King did take twosh for the Tun. And for the other price And in the Pat. Rol. extant in 20. R. 2. you may see the Record speak in this manner Memorandum quod Rex habet ex antiqua consuetudine de qualibet navi mercatoria applicante infra aliquem portum Regni Angliae duo dolia vini c. All which shew the antiquity of it Fourthly it is said of all English Merchants to make a difference between those that are Merchants and those that buy Wines beyond the Seas for their own private provision Secondly to make a distinction between the English Merchants and the Merchant-strangers for Merchant-strangers by a Charter made unto them called by the name of Charta Mercatoria in the one and thirtieth year of E. 1 his Reign are discharged of the payment of prisage in recompence and lien of which Immunity granted unto them the Merchant-strangers by way of thankful restitution granted unto the King and his Successours that he should have two sh of every Tun of Wine brought in by them within fourty dayes after it is brought into the Port the which two sh is called by the name of Butlerage because the Kings Chief Butler by reason of his Office is to receive it And those subject of the Kings who do buy Wines beyond the Seas for their
own spending without any intention to Merchandize ought not to pay prisage for those Wines Sixthly it is expressed of all Wines brought from beyond the Seas for that if Wines should be made in England as in times past they have been as it appeareth by an ancient Record in Windsor-Castle where it is said that the Parson had ten pound for the Tythe of Claret-Wine mad there and they should be transported from one Port to another to be sold no prisage shall be paid for them Lastly it is described which hath used to be taken and not which hath used to be paid by the owners and Merchants of the Wines and the Etymology of the word importeth as much For Prisae being the Latine word for prisage hath it's name of prendere and is no more than Prizel which is taking and is a Participle of the word Prendere which may be applied to all manner of takings howsoever here it is only limited to the taking of Wines As to the second part which is what is the cause and ground of the payment of prisage there is not any Record to be seen which manifesteth the original cause of the payment of it but it is probably conjectured that for as much as the King of England is King of the narrow Seas and hath been alwayes at a perpetual charge in the maintaining of Ships for the defence of his Merchants and protecting of them from the cruel spoile of the Pyrates and in scouring the Seas to make their passage the more secure therefore in recompence and satisfaction of this care and charge the Merchants have always used time out of mind to give an allowance unto the King and his Officers for the taking of this prisage of Wines for the better provision of his houshold the which allowance and usage being continued time out of mind hath made it to be a duty unto the King and likewise because the King hath used to take one Tun out of ten Tuns and two Tuns out of twenty Tuns for in ancient time the Ships that went for these Wines being no great Voyage were not of much greater burden some have conceived that this was in nature of a Tythe paid unto the King and as the particular Pastor which ministreth spiritual things for the Food of the Soul hath of right the tenth part of his clear gains due unto him So the King in that proportion being Parens patriae and the general Pastor of all his Subjects protecting their lives and goods from violent oppression upon the Seas hath received and taken the tenth part of the Wines brought in But this only conjectured and therefore I cannot warrant it to be a sure Foundation to build on As to the third which is at what time prisage is said to be due I do likewise find some doubt to be made of it for some Judges unto whose Learning and Judgement because of their Eminent parts and singular industry much reverence is to be ascribed have been of opinion that before such time as the bulk of the Ship be broken up or that it be arrived at the English Port prisage is due and therefore if a Ship after such time as it is come up into the Haven finding that Wines will not bear any price doth before the Bulk of the Ship be broken depart out of the Harbour and go back beyond the Seas and there vent those Wines The King this notwithstanding may require his prisage at the Merchants hands for the narrow Seas being within the Alleageance of the King of England as it appeareth by divers of our year-Books so soon as the Ships come upon them there is the duty of prisage accrued unto the King whereof it doth not lie in the power of the Merchant to defeat him and also the very nature of prisage being to have one Tun before the Mast and one other Tun behind the Mast sheweth that the King hath an Election to take his Tuns of Wine where he will the which may not be if the duty of prisage should arise out of the breaking of the Bulk for when the Bulk is broken how doth it appear which is the Tun before the Mast and which is the Tun behind the Mast So as the King may have the Election to take his prisage as the Law giveth it unto him and they are of opinion that if a Ship come into the Port laden with Wines that the King is not to expect his prisage where the Merchant will unlade his Wines for it being a certain duty accrued unto the King upon the coming into the Port he may take it at the Port and is not bound to wait upon the Merchant from one Port unto another untill he will or can unlade his Ship But the residue of the Justices which argued in this case were of opinion that prisage is not due until the Bulk of the Ship be broken so as that if the Merchant after his arrival at the Port will go unto another Port the King may not take his prisage before such time as they come unto that Port where they unlade and their opinion was grounded upon the reasons following that is to say First because the reason and ground of the payment of prisage being the security which the Merchants enjoy by and through the care and charge of the King upon the narrow Seas they ought to be secured of that benefit before such time as they shall be forced to pay the duty and before the breaking of the Bulk of the Ship they are not ascertained of their safe conduct insomuch that howsoever they be in the Port or Harbour yet they may have cause to put out into the Main again as if they were driven in there through danger of Pyrates or violence of Tempests their Cocquet shewing their course to be bent unto another place and it is no reason that the K. should take his duty before such time as the Merchant be assured of his protection Secondly incertainties are always odious in Law for they are the Mother of confusion whereas the Law expecteth and requireth order And if the time expressed be alwayes ambiguous or doubtful it is careful in the determining and setting of it down certainly and for the most part where it is left to her construction she giveth the longest time for the doing of it whereby best advantage may be given unto the party which is to do it the which may be manifest by divers instances of cases set down in our Books which I do purposely omit to avoid too much prolixity Wherefore it being the most certain and the most equal time both for the King and Merchant to have the prisage taken when the Bulk of the Ship is broken the Law to whose construction it is left shall rather ordain the taking of it to be then than at any other time for if the Law should say that it is a duty presently upon the coming upon the narrow Seas it should