ART. II. A Collection of Tracts relative to the Law of England, from Manuscripts, now firft edited by Francis Hargrave, Esquire, Barrifter at Law. 4to. Vol. I. pp. 630. 11. 7s. Boards. Brooke. 1787.

THE

HE editor of this important collection has long been eminent in his profeffional capacity, and has held a diftinguished rank among the law-writers of the prefent 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 lafting monuments of his profeffional abilities, and his familiar acquaintance with every branch of legal knowlege. In the greateft 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 fubjects treated in them: many of which turn on the moft abftrufe and important points of the laws and conftitution of England.

Of the tracts included in this collection, the firft, fecond, and fifth, are the works of that illuftrious ornament of English jurif prudence, 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 fecond is intitled, Confiderations touching the Amendment or Alterations of Lawes.' The fifth, A Difcourfe concerning the Court of King's Bench and Common Pleas.'-In all of these tracts, particularly the firft, the reader (as the editor juftly remarks) will find the fame luminous order in the diftribution of fubjects, the fame uncommonnefs of materials from curious records of manufcripts, the fame profoundness of remark, the fame command of perfpicuous and forcible language, with the fame guarded referve in offering opinions on great controverted points of law and the conftitution, that characterize his lordship's works heretofore published.-As a fpecimen of thefe, we prefent the reader with the following account of the customs as they stood in the reign of Edward the First, on that moft interefting branch of English induftry-THE FLEECE.

The foreigners and aliens had gotten all the trade of the woolls of England into their own hands, and thereby ingroffed it wholly into their own power.

The King obferving this, and withall having a defign to fettle the cuftomes as well as to rectify this disorder in trade, in the very entrance into his reign iffued a proclamation, that no woolls fhould be exported out of the kingdom. Touching the legality of this in

hibition,

hibition, if made without confent of parliament, I difpute not here. But howfoever it at present ferved the purpose designed by it.

Pat. 2 E. 1. m. 19. dorfo, a strict commiffion iffues 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 fet on foot a fettlement of the cuftomes 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 restraine 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 tranfported, as foon as the ports fhould be open; and thereby the intended cuftomes would be the greater at least upon the firft opening of a liberty of exportation.

Shortly after, viz. in the parliament of 3 E. 1. which was that parliament which is called Westminster the First, held_craftino poft claufam Pafche anno 3 E. 1. as appears by the preface of that ftatute made for the fettling of the great cuftome 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. 1. 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 bafis and foundation of that great cuftome, and doth explain very many difficulties and rectify many mistakes concerning the great cuftomes, I have thought fit to infert verbatim as it is in the record. See Trac, p. 146.

Upon this record many things are obfervable, which give a greater light to the whole bufinefs of the great cuftomes; and hereby the original of many things concerning the fame are difcovered, which without this would be obfcure and dark.

1. By this record it appears, that these great cuftomes are not by prefcription, as is faid in Dy. 165. but it had its original in the time of King Edward I. and it was then called Nova Cuftuma, and continued that file until the 22 E. 1. when a new inhaunced custome of wools was fett, called Nova Cuftuma, as shall be shewn; and then, and not till then, the cuftome of wools, woollfells, and leather, took the name of Antiqua Cuftuma. And this appears by very many records, viz. in Pat. 14 E. 1. m. 19. it is called Nova Cuftuma, 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 E. 1. the King had fett a new impofition upon woolls of 40s. a fack; and then the former was called Antiqua Cuftuma. And this maltolt was called Nova Cuftuma; and shortly after, when that maltolt was abrogated by parliament, there came in the Carta Mercatoria of 31 E. 1. whereby the small cuftomes were fettled in the Crown, which were fometimes Nova Cuftuma. So that the great cuftomes of woolls, woollfells, and leather, fettled 3 E. 1. kept their title of Nova Cuftuma 'till the great impofition of 40s. per fack in 22 E. 1. and then that took the name of Nova Cuftuma, and the former loft its name of Nova Cuftuma, and became Antiqua Cuftuma:

and

and when that impofition was taken away, yet the cuftomes of 3 E. 1. did not resume their name of Nova Cuftuma; neither well could they, for there prefently fucceeded the Carta Mercatoria in the 31 E. 1. which fettled a new courfe of customs upon strangers, and was frequently called Nova Cuftuma.

2. The fecond thing obfervable is, that as this cuftom began in 3 E. 1. fo it began not by impofition of the king, nor by compofition with the merchant, but by act of parliament. This tranfcript 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 fubitance and matter of it. There are no parliament-rolls of that parliament, nor for many after; but the very fame 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. 1. and likewife Brevia 16 E. 1. cited by Sir Edward Coke in his Comment upon Cap. 30. of Magna Carta*, and alfo Clauf. 26 E. 1. m. 8. do all recite the original of this great cuftom to be by act of parliament, viz. Cùm prelati magnates et tota communitas quandam novam confuetudinem nobis et hæredibus noftris coneffit de lanis pellibus et coriis viz. de Sacco lane dimid. marc. de trefcentis pellibus dimid. marc. de lafto corii 13s. 4d. And therefore it is

a mistake in those that have thought this cuftom to be by the common law; for moft certainly it began in the time of King Edward I: and began in that time by the ftrength of an act of parliament. Vide alfo to the fame 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. Clauf. 14 E. 1. m. 19. Clauf. 16 E. 1. m. 9. all which and many more do ftile it Nova Cuf

tuma.

3. In the first inftitution of this great cuftom, we have the inftitution of the collector and comptroller, vix the deux prodes homes, which offices have been hitherto kept with the addition of a fearcher, and in the port of London a furveyor; whereas anciently the cuftoms in the ports were received by the King's bailiffs or port-reves.

How thefe officers are to be appointed, and for how long, and what their duty is, fee the Statutes 1 H. 4. 13. 4 H. 4. 20. 13 H 4. 5. 1 Eliz. 11. and other ftatutes relating to their office and employ

ment.

4. Together with the inftitution of the great cuftoms of wool, woolfells, and leather, we have alfo the inftitution of the cocquet, or acquittance teftifying the payment of them. This began and continued with thofe great cuftomes, and did not concern in truth any

* 2 Inft. 59.-Editor.

This opinion is to be found in Dy. 165. b. but Lord Bacon allows it to be a mistake; though he was an advocate in parliament in favour of the crown's claim to impofe duties at the ports by prerogative. 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 fo conceding; but argues, that what is called a grant of a new cuftom 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.

other;

other; fo that by common appellation in many places, and in fome records, the great cuftome 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 teftimonial in the king's name, under the king's feal deputed for that purpose, teftifying the payment of the customs. There were anciently two parts of the feal; one kept by perfons thereunto appointed, as appears by this grant; another part by the comptroller. But in procefs of time the feal was entirely kept by the comptroller, or by the cuftomer and comptroller.

It answered the king a cafual profit, for which the collector anfwered upon his account as well as for the cuftomes, viz. of every merchant shipping out thefe cuftomable goods, two pence, for which the collector of the cuftomes anfwered upon his accompts yearly, from 3 E. 1. until the time of H. 6. and after, viz. de exitibus figilli, quod dicitur cocquet. This teftimonial of the payment of cultoms is the warrant for the fearcher to clear the fhip and goods; and regularly, when this was once done, the fubject was discharged. Vide Rot Parl. 45 E. 3. n 3. 46 E. 3. n. 23.

And the want of this was fufficient for the fearcher to feize the woolls, woollfells, and leather, exported without this warrant; and the common ftile of the feizures of merchandizes of this nature was, quia non cockettata nec cuftimata.

5. We have the place or port where the cuftomes ought to be paid, and the feale of the cocquet depofited. It was not in every port, but in the chief port of the county; which yet the kings were ufed to enlarge, to eale the merchants of that trouble; and fometimes the cocquet was lodged in two or three ports in a county, where a merchant might pay his cuftoms and have his discharge. But ftill the defignation of the ports was in the king's power, which created a great dependance in the merchant upon the king, as to thefe cuftomes, for he could not export them without a cocquet, but they were fubject to a forfeiture; and a cocquet he could not have, but where the king had lodged his feal, which gave the king a great opportunity to hold the merchant to hard terms.

6. We have the punishment of exporting the merchandizes without paying of the cuftom. The merchant forfeited all his goods, and his body was at the king's pleasure, viz. fubject to fine and imprifonment. It was not only a forfeiture of the goods uncustomed, but of all his own; and this fevere punishment was applied only to thefe great customes, and not to other cuftomes, for they were under gentler punishments, as fhall be fhewn.

But, befides this punishment, procefs of time introduced another, which was conftantly put in ufe *, viz. if the mafter or owner of a ship did lade aboard any wooll, woollfell, or leather, uncustomed, the fhip itself was forfeited, at least if the mafter were privy to the fact (but this concerned only thofe merchandizes of woolls, woollfells, and leather, and not any other kind of merchandizes); and accordingly this was frequently put in practice. Clauf. 13 E. 3. m. 15. Clauf. 38 E. 3. m. 13. pro Johanne Ball. Clauf. 39 E. 3. m. 20 pro

Jobanne Henrys. Clauf. 38. m. 29. pro Johanne Thriufco, 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 fhips of divers people be arrested and holden forfeit, because of a little thing put into their fhip not cuftomed, whereof the owners of the fame hips be ignorant; it is accorded and affented, that no owner fhall lofe his fhip from the 15th day of February next coming, for fuch a small thing put in the faid ship not customed, without his knowledge.

But this severity did only extend to woolls, woollfells, and leather, and not to other forts of goods uncustomed, and so I remember it was agreed M. 3. Car. in the exchequer; for in other cafes only the goods uncuftomed were forfeited, and not the fhip or other goods, unless otherwife particularly provided by fome special act of parliament in particular cafes, which we fhall in due time meet

with.

7. We have the perfons 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, faving to the king his cuftome 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 cuftom thus granted. It was not only to England and Wales, but alfo to Ireland: and by virtue of this act of the parliament of England, the kingdom of Ireland was charged with thefe cuftomes; and it is under that right the king held these cuftomes in Ireland, and holds them to this day.

It is true, fhortly after this grant, the king did remit it for some time in Ireland, and made an abatement for the fame to the merchants at Florence, that farmed it. Clauf. E. 1. m. 5. But it foon was refumed, and hath ever fince continued, and continued under this and no other title, for any thing I have yet feen or read. Vide Davy's Rep. fo. 8. et fequentibus the exemptions granted to Waterford.

9. We have the things that are charged with this cuftom, 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 bafis 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; but fubfequent laws did fub modo reftrain, and at length wholly reftrained, the exportation; fo that at this day there can be no cuftom to the King by woolls, because the exportation thereof now ftands totally inhibited under great penalties. The progress of that inhibition was this:

་

By the ftatute of 11 E. 3. cap. 1. the exportation of wooll, by denizens or ftrangers, without licence of the king and his council, is forbidden under the pain of death.

By the ftatute of 15 E. 3. cap. 6. liberty is given to all merchants to export woolls, paying the ancient customs; and to the fame purpofe is the ftatute of 18 E. 3. cap. 3.

! By