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ART. II. A Colle&tion of Tracts relative to the Law of England, from
Manufcripts, now first edited by Francis Hargrave, Esquire, Barrifter at Law. 4to. Vol. I. pp. 630. 11. 7s. Boards. Brooke. 1787 THE editor of this important colle&tion has long been emi
nent in his professional capacity, and has held a diftinguilhed rank among the law-writers of the present age. His arguments on the case of Somerset, a Negro, and in defence of literary property, together with that part of the 13th edition of Coke upon Littleton which was executed by him, are lasting monuments of his professional abilities, and bis familiar acquaintance with every branch of legal knowlege. In the greatest part of the work now before us, he appears merely in the character of editor. But his notes, and his very learned preface, are proofs, not only of the attention and care with which he has studied the writings of his authors, but of his deep and comprehensive knowlege of the subjects treated in them: many of which turn on the moft abftrule and important points of the laws and conftitution of England.
Of the tracks included in this colle&ion, the first, second, and fifth, are the works of that illustrious ornament of Englila jurisprudence, the juft, the learned, the pious Sir Matthew Hale. The first of them is intitled, “ A Treatise in three Parts ; De Jure Maris et Brachiorum ejufdem ;' - De Portibus Maris ;'and Concerning the Cuftoms of Goods imported and exported.' The second is intitled, “Considerations couching the Amend. ment or Alterations of Lawes.' The fifth, "A Discourse concerning the Court of King's Bench and Common Pleas.'-In all of these tracts, particularly the first, the reader (as the editor juftly remarks) will find the same luminous order in the diftri. bution of subjects, the same uncommonness of materials from curious records of manuscripts, the same profoundness of remark, the same command of perspicuous and forcible language, with the same guarded reserve in offering opinions on great controverted points of law and the constitution, that characterize his lordship's works heretofore publilbed.--As a specimen of these, we present the reader with the following account of the customs as they stood in the reign of Edward the First, on chat moft interesting branch of Englila induftry—The FLEECE.
i The foreigners and aliens had gotten all the trade of the woolls of England into their own hands, and thereby ingrossed it wholly into their own power.
The King observing this, and with all having a design to settle the customes as well as to rectify this disorder in trade, in the very entrance. into his reign issued a proclamation, that no woolls should be exported out of the kingdom. Touching the legality of this in
hibition, if made without consent of parliament, I dispute not here. But howsoever it at present served the purpose designed by it.
• Pat. 2 E. 1. m. 19. dorso, a strict commission issues to enquire what woolls were exported against that inhibition, and by whom, and whether done after notice of this inhibition.
There being this restraint upon the exportation of woolls, it was now seasonable to set on foot a settlement of the customes intended principally to be charged upon that commodity.
• 1. Because the country and the merchants, being under this restraint, would in all probability be more yielding to the inhauncing of the customes upon these commodities, that thereby the restrains might be removed, and the ports open to the exportation.
2. Because by this means there would be in all probability a large proportion ready to be transported, as soon as the ports should be open; and thereby the intended customes would be the greater at least upon the first opening of a liberty of exportation.
Shortly after, viz. in the parliament of 3 E. 1. which was that parliament which is called Weltminster the First, held craftino poft claufam Pasche anno 3 E. 1. as appears by the preface of that statute made for the settling of the great custome of woolls, woollfells, and leather, upon
the crown, and then for almost thirty years after it was called Nova Cuftuma.
• This Act is entered inter fines 3 E. 1. m. 24. Pat. 3 E. 1. m. I. and originalia de anno 3 E. 1. in the Exchequer, and in the Red Book of the Exchequer, fo. 356. which because it is the basis and foundation of that great custome, and doch explain very many difficulties and rectify many mistakes concerning the great customes, I have thought fit co insert verbatim as it is in the record.-'. See Tract, p. 146.
• Upon this record many things are observable, which give a greater light to the whole business of the great customes; and hereby the original of many things concerning the same are discovered, which without this would be obscure and dark.
• 1. By this record it appears, that these great customes are not by prescription, as is said in Dy. 165. but it had its original in the time of King Edward I. and it was then called Nova Cuffuma, and continued that file until the 22 E. 1. when a new inhaunced custome of wools was sett, called Nova Cusuma, as Mall be shewn; and then, and not till then, the custome of wools, woollfells, and leather, took the name of Antiqua Cuffuma. And this appears by very many records, viz. in Pat. 14 E. 1. m. 19. it is called Nova Cusuma, and all the collectors accounts from the 4 E. 1. until the 28 E. 1. of these customes are stiled Computus, &c. de Nova Cuftuma.
• Indeed about 22 É. 1. the King had sett a new imposition upon - woolls of 40 s. a sack; and then the former was called Antiqua Cuftuma. And this maltole was called Nova Cusuma ; and shortly after, when that maltolt was abrogated by parliament, there came in the Carta Mercatoria of 31 E. 1. whereby the small customes were settled in the Crown, which were sometimes Nova Cusuma. So that the great customes of woolls, woollfells, and leather, fettled 3 E. 1. kept their title of Nova Custuma 'till the great imposition of 40 s. per sack in 22 E. 1. and then that took the name of Nova Custuma, and the former lost its name of Nova Custuma, and became Antiqua Cusuma :
and when that imposition was taken away, yet the customes of 3 E. 1. did not resume their name of Nova Custuma; neither-well could they, for there presently succeeded the Carta Mercatoria in the 31 E. 1. which seitled a new course of customs upon strangers, and was frequently called Nova Cuftuma.
2. The second thing observable is, that as this custom began in 3 E. 1. so it began not by im position of the king, nor by compofition with the merchant, but by act of parliament. This transcript in the fine roll and the red book of the Exchequer, if it be not the very tenor of the act, yet it is the very subitance and matter of it. There are no parliament-rolls of that parliament, nor for many after ; but the very same thing in totidem verbis is entered inter originalia de anno 3. E. 1. and Rot. Finium 3 E. 1. m. 24. And accordingly Rot. Parl. 3 E. 1. m. I. and likewise Brevia 16 E. 1. cited by Sir Edward Coke in his Comment upon Cap. 30. of Magna Carta *, and also Clauf. 26 E. 1. m. 8. do all recite the original of this great custom to be by act of parliament, viz. Cùm prelati magnates et tota communitas quandam novam confuetudinem nobis et hæredibus noftris coneefsit de lanis pellibus et coriis viz. de Sacco lanæ dimid. marc. de trefcentis pellibus dimid. marc. de lafto corii 135a 4d. And therefore it is a mistake in those that have thought this custom to be by the common law t; for most certainly it began in the time of King Edward I: and began in that time by the strength of an act of parliament. Vide also to the same purpose Pat. 4 E. 1. m. 1. et 19. Pat. 5 E. 1. m. 14. Pat. 6 E. 1. m. 20. Fynes, 10 E. 1. m. 5. Claus. 14 E. 1. m. 19. Claus. 16 E. 1. m. 9. all which and many more do stile it Nova Cuf
• 3. In the first institution of this great custom, we have the insti. tution of the collector and comptroller, viz the deux prodes homes, which offices have been hitherto kept with the addition of a searcher, and in the port of London a surveyor ; whereas anciently the cur20ms in the ports were received by the King's bailiffs or port-reves.
• How these officers are to be appointed, and for how long, and what their duty is, see the Statutes i H. 4. 13. 4 H. 4. 20. 13 H 4. 5. i Eliz. 11. and other statutes relating to their office and employment.
• 4. Together with the institution of the great customs of wool, woolfells, and leather, we have also the institution of the cocquet, or acquittance testifying the payment of them. This began and continued with those great customes, and did not concern in truth any
* 2 Inft. 59.-Editor.
+ This opinion is to be found in Dy. 165. b. but Lord Bacon al. lows it to be a mistake; though he was an advocate in parliament in favour of the crown's claim to impose duties at the porcs by preroga. tive. See Lord Bacon's Speech in vol. xi. of the State Trials, p. 37. However, Sir John Davies, in his book on The Question concerning Impofitions, is not so conceding; but argues, that what is called å grant of a new custom by parliament to the king, was only a diminution of the old one by the king in parliament. See p. 44. of that book.- Editor.
ocher; so that by common appellation in many places, and in some records, the great custome was called the custome of the cocquet; and the town of Waterford claimed and enjoyed the great custom by the grant of the custom called the cocquet. Davies, Rep. 7, &c.
The cocquet was a testimonial in the king's name, under the king's seal deputed for that purpose, testifying the payment of the customs. There were anciently two parts of the seal; one kept by persons thereunto appointed, as appears by this grant; another part by the comptroller. But in process of time the seal was entirely kept by the comptroller, or by the customer and comptroller.
• It answered the king a casual profit, for which the collector answered upon his account as well as for the customes, viz. of every merchant shipping out these customable goods, two pence, for which the collector of the customes answered upon his accompts yearly, from 3 E. 1. until the time of H. 6. and after, viz. de exitibus figilli, quod dicitur cocquet. This testimonial of the payment of cultoms is the warrant for the searcher to clear the hip and goods; and regularly, when this was once done, the subject was discharged. Vide Rotun Parl. E. 3. n 3. 46 E. 3. n. 23.
• And the want of this was sufficient for the searcher to seize the woolls, woollfells, and leather, exported without this warrant; and the common stile of the seizures of merchandizes of this nature was, quia non cockettata nec cuflimata.
• 5. We have the place or port where the customes ought to be paid, and the feale of the cocquet deposited. It was not in every port, but in the chief port of the county; which yet the kings were used to enlarge, to eale the merchants of that trouble; and some. times the cocquet was lodged in two or three ports in a county, where a merchant might pay his customs and have his discharge. But still the designation of the ports was in the king's power, which created a great dependance in the merchant upon the king, as to these customes, for he could not export them without a cocquet, but they were subject to a forfeiture ; and a cocquet he could not have, but where the king had lodged his seal, which gave the king a great opportunity to hold the merchant to hard terms.
: 6. We have the punishment of exporting the merchandizes with out paying of the custom. The merchant forfeited all his goods, and his body was at the king's pleasure, viz. subject to fine and imprisonment. It was not only a forfeiture of the goods uncustomed, but of all his own ; and chis severe punishment was applied only to these great customes, and not to other customes, for they were under gentler punishments, as shall be shewn.
• But, besides this punishment, process of time introduced another, which was constantly put in use *, viz. if the master or owner of a ship did lade aboard any wooll, woollfell, or leather, uncustomed, the ship itself was forfeited, at least if the matter were privy to the fact (but this concerned only those merchandizes of woolls, woollfells, and leather, and not any other kind of merchandizes); and accordingly this was frequently put in practice. Claus. 13 E. 3. m. 15. Clauf. 38 E. 3. m. 13. pro Johanne Ball, Clauf. 39 E. 3. m. 20 pro
Jobanne Henrys. Claus. 38. m. 29. pro Johanne Tbriufco, and infinite more of that kind. And therefore the Statute of 38 E. 3. cap. 8. was made to prevent that inconveniency, viz. that whereas the thips of divers people be arrested and holden forfeit, because of a litele thing put into their ship not customed, whereof the owners of the same tips be ignorant; it is accorded and assented, that no owner shall lose his ship from the 15th day of February next coming, for such a small thing put in the said ship not customed, without his knowledge.
• But this severity did only extend to woolls, woollfells, and leather, and not to other sorts of goods uncustomed, and so I remember it was agreed M. 3. Car. in the exchequer; for in other cases only the goods uncuftomed were forfeited, and not the ship or other goods, unless otherwise particularly provided by some special act of parliament in particular cases, which we shall in due time meet with.
7. We have the persons to whom the forfeitures were given, viz. to the king, if in his own ports; but if the forfeiture were in the port of another lord, the forfeiture is given to the lord of the port, saving to the king his custome fo concealed.
• This was a fair honorarium given to the lords of ports ; but I do not remember that ever I have read in any case that they enjoyed it. In a little time the king's intereft and concernment over-balanced and carried the forfeiture to the king, together with the duty.
• 8. Here is the extent of this custom thus granted. It was not only to England and Wales, but also to Ireland : and by virtue of this act of the parliament of England, the kingdom of Ireland was charged with these customes ; and it is ander that right the king held these customes in Ireland, and holds them to this day.
• It is true, shortly after this grant, the king did remit it for some time in Ireland, and made an abatement for the same to the mer. chants at Florence, that farmed it. Claus. 7 E. 1.-M. 5. But it soon was resumed, and hath ever fince continued, and continued under this and no other title, for any thing I have yet seen or read. Vide Davy's Rep. fo. 8. et sequentibus the exemptions granted to Waterford.
• 9. We have the things that are charged with this caftom, the two great commodities of the kingdom, wooll, woolfells, and leather.
• For wool, this was the great native commodity of the kingdom, and indeed the basis of all the commerce of the kingdom.
• At the time of the grant of this duty it was free for English or aliens to export woolls to any place; bat subsequent laws did fub modo restrain, and at length wholly restrained, the exportation, so that at this day there can be no custom to the King by woolls, because the exportation thereof now stands totally inhibited under great penalties. The progress of that inhibition was this :
• By the statute of 11 E. 3. cap. 1. the exportation of wooll, by denizens or strangers, without licence of the king and his council, is forbidden under the pain of death.
. By the statute of 15 E. 3. cap. 6. liberty is given to all merchants to export woolls, paying the ancient customs; and to the fame purpose is the facute of 18 E. 3. cap. 3.