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43 Eliz.

A commission to determine the right | was made, that the merchants should not work upon 2 Eliz. Scrogg 's case.

of the exigenter's place, “ secundum them, by colour of that payment to increase their sanam discretionem,” disallowed by the price; in that there was a price certain set upon the judges.

wools. And there was an end of that matter : The case of the monopoly of cards, which plainly affirmeth the force of the merchants' overthrown and condemned by judg. | grants. So then the force of the grants of merment.

chants both English and strangers appeareth, and I might make mention of the jurisdiction of some their grants being not corporate, are but noun adcourts of discretion, wherein the judges did not jectives without the king's power to impose. decline to give opinion. Therefore, had this been The third consideration is, of the first and most against law, there would not have been altum ancient commencement of customs; wherein I am silentium in the king's courts. Of the contrary somewhat to seek : for, as the poet saith, “Ingrejudgments I will not yet speak; thus much now, diturque solo, et caput inter nubila condit," the bethat there is no judgment, no, nor plea against it. ginning of it is obscure: but I rather conceive that Though I said no more, it were enough, in my it is by common law than by grant in parliament. opinion, to induce you to a non liquet, to leave it a For, first, Mr. Dyer's opinion was, that the ancient doubt.

custom for exportation was by the common laws; The second consideration is, the force and con and goeth farther, that that ancient custom was the tinuance of payments made by grants of merchants, custom upon wools, woolfells, and leather: he was both strangers and English, without consent of par- deceived in the particular, and the diligence of your liament. Herein I lay this ground, that such grants search hath revealed it; for that custom upon these considered in themselves are void in law : for mer three merchandises grew by grant of parliament chants, either strangers or subjects, they are no body 3 E. I. but the opinion in general was sound; for corporate, but singular and dispersed persons ; they there was a custom before that: for the records cannot bind succession, neither can the major part themselves which speak of that custom do term it a bind the residue : how then should their grants new custom, “ Alentour del novel custome." As have force ? No otherwise but thus : that the king's concerning the new custom granted, &c. this is power of imposing was only the legal virtue and pregnant, there was yet a more ancient. So for the strength of those grants; and that the consent of a strangers, the grant in 31 E. I. chart, mercator. is, merchant is but a concurrence, the king is principale that the three pence granted by the strangers should agens, and they are but as the patient, and so it be "ultra antiquas custumas,” which hath no affinity becomes a binding act out of the king's power. with that custom upon the three species, but pre

Now if any man doubt that such grants of mer- supposeth more ancient customs in general. Now chants should not be of force, I will allege but if any man think that those more ancient customs two memorable records, the one for the merchants were likewise by act of parliament, it is but a constrangers, the other for the merchants English. jecture: it is never recited "ultra antiquas custumas

That for the strangers is upon the grant | prius concessas," and acts of parliament were not 31 Ed. 1. Chart. of chart. mercator. of three pence in much stirring before the great charter, which was

value"ultra antiquas custumas;" which 9 H. III. And therefore I conceive with Mr. Dyer, grant is in use and practice at this day. For it is that whatsoever was the ancient custom, was by the well known to the merchants, that that which they common law. And if by the common law, then call stranger's custom, and erroneously double cus what other means can be imagined of the comtom, is but three pence in the pound more than mencement of it but by the king's imposing ? English. Now look into the statutes of subsidy of The fourth consideration is, of the manner that tonnage and poundage, and you shall find, a few was held in parliament in the abolishing of imposimerchandise only excepted, the poundage equal tions laid: wherein I will consider, first, the manner upon alien and subject; so that this difference or of the petitions exhibited in parliament; and more excess of three pence hath no other ground than especially the nature of the king's answers. For that grant. It falleth to be the same in quantity, the petitions I note two things; first, that to my there is no statute for it, and therefore it can have remembrance there was never any petition made for no strength but from the merchants' grants; and the the revoking of any imposition upon foreign mermerchants' grants can have no strength but from the chants only. It pleased the Decemviri in 5 E. II. king's power to impose.

to deface chart. mercator. and so the imposition For the merchants English take the upon strangers, as against law: but the opinion of

notable record in 17 E. III. where the these reformers I do not much trust, for they of commons complained of the forty shillings upon the their gentleness did likewise bring in doubt the sack of wool as a mal-toll set by the assent of the demy-mark, which it is manifest was granted by merchants without consent of parliament; nay, they parliament, and pronounced by them the king should dispute and say it were hard that the merchants have it, “s'il avoit le doit;” but this is declared consent should be in damage of the commons. void by 1 E. III. which reneweth chart. mercator. What saith the king to them ? doth he grant it or and void must it needs be, because it was an ordi. give way to it? No; but replies upon them, and nance by commission only, and that in the time of saith, It cannot be rightly construed to be in preju- a weak king, and never either warranted or condice of the commons, the rather because provision firmed by parliament. Secondly, I note that petitions


17 Ed. 3.



were made promiscuously for taking away imposi- less have perfection enough without parliament. tions set by parliament as well as without parlia We see their own rights to the crown which are ment; nay, that very tax of the neufiesme, the ninth | inherent, yet they take recognition of them by parsheaf or fleece, which is recited to be against the liament, And there was a special reason why they king's oath and in blemishment of his crown, was should do it in this case, for they had found by an act of parliament, 14 E. III. So hen to infer experience that if they had not consent in parliament that impositions were against law, because they are to the setting of them up, they could not have taken away by succeeding parliaments, it is no avoided suit in parliament for the taking of them argument at all ; because the impositions.set by the down. Besides, there were some things requisite in parliaments themselves, which no man will say the manner of the levy for the better strengthening were against law, were, nevertheless, afterwards of the same, which percase could not be done with. pulled down by parliament. But indeed the argu out parliament, as the taking the oath of the party ment holdeth rather the other way, that because touching the value, the inviting of the discovery of they took not their remedy in the king's courts of concealment of custom by giving the moiety to the justice, but did fly to the parliament, therefore they informer, and the like. were thought to stand with law.

Now in special for the statutes of subsidies of Now for the king's answers: if the impositions tonnage and poundage, I note three things. First, complained of had been against law, then the king's that the consideration of the grant is not laid to be answer ought to have been simple, “ tanquam re for the restraining of impositions, but expressly for sponsio categorica, non hypothetica;" as, Let them the guarding of the sea. Secondly, that it is true be repealed, or, Let the law run: but contrariwise, that the ancient form is more peremptory, and the they admit all manner of diversities and qualifica- modern more submiss ; for in the ancient form tions : for

sometimes they insert a flat condition that the king Sometimes the king disputeth the matter and shall not farther impose ; in the latter they humbly doth nothing; as 17 E. III.

pray that the merchants may be demeaned without Sometimes the king distinguisheth of reasonable oppression, paying those rates; but whether it be and not reasonable; as 38 E. III.

supplication, or whether it be condition, it rather Sometimes he abolisheth them in part, and letteth implieth the king hath a power; for else both were

them stand in part; as 11 E. II. the record of needless, for “ conditio annectitur ubi libertas præthe mutuum, and 14 E. III. the printed statute, sumitur," and the word oppression seemeth to refer whereof I shall speak more anon.

to excessive impositions. And thirdly, that the Sometimes that no imposition shall be set during statutes of tonnage and poundage are but cumula

the time that the grants made of subsidies by tive and not privative of the king's power precedent,

parliament shall continue ; as 47 E. III. appeareth notably in the three pence overplus, Sometimes that they shall cease “ ad voluntatem whieh is paid by the merchants strangers, which nostram."

should be taken away quite, if those statutes were And sometimes that they shall hold over their taken to be limitations ; for in that, as was touched term prefixed or asseissed.

before, the rates are equal in the generality between All which showeth that the king did not disclaim subjects and strangers, and yet that imposition, notthem as unlawful, for “ actus legitimus non recipit withstanding any supposed restriction of these acts tempus aut conditionem.” If it had been a dis- of subsidies of tonnage and poundage, remaineth at aflirmance by law, they must have gone down in this day. solido, but now you see they have been tempered The sixth consideration is likewise of an objecand qualified as the king saw convenient.

tion, which is matter of practice, viz. that from The fifth consideration is of that which is offered R. II.'s time to Q. Mary, which is almost 200 years, by way of objection; which is, first, that such grants there was an intermission of impositions, as aphave been usually made by consent of parliament; peareth both by records and the custom-books. and, secondly, that the statutes of subsidies of ton To which I answer; both that we have in effect nage and poundage have been made as a kind of an equal number of years to countervail them, stint and limitation, that the king should hold him- namely, 100 years in the times of the three kings self unto the proportion so granted and not impose Edwards added to 60 of our last years; and “ farther; the rather because it is expressed in some trema obruunt media ;" for we have both the of these statutes of tonnage and poundage, some reverence of antiquity and the possession of the times by way of protestation, and sometimes by way present times, and they but the middle times; and of condition, that they shall not be taken in prece- besides, in all true judgment there is a very great dent, or that the king shall not impose any farther difference between a usage to prove a thing lawful, rates or novelties, as 6 R. II. 9 R. II. 13 H. IV. and a non-usage to prove it unlawful : for the prac1 H. V. which subsidies of tonnage and poundage tice plainly implieth consent; but the discontinuance have such clauses and cautions,

may be either because it was not needful, though To this objection I give this answer. First, that lawful; or because there was found a better means, it is not strange with kings, for their own better as I think it was indeed in respect of the double strength, and the better contentment of their people, customs by means of the staple at Calais. to do those things by parliament, which neverthe






The proportion of the king's supply is not now ous consequence which want may reverberate upon in question : for when that shall be, it may be I subjects, it might have a show of a secret menace. shall be of opinion, that we should give so now, as These arguments are, I hope, needless, and do we may the better give again. But as things stand better in your minds than in my mouth. But this for the present, I think the point of honour and give me leave to say, that whereas the example of reputation is that which his Majesty standeth most Cyrus was used, who sought his supply from those upon, that our gift may at least be like those upon whom he had bestowed his benefits; we must showers that may serve to lay the winds, though always remember, that there are as well benefits of they do not sufficiently water the earth.

the sceptre as benefits of the hand, as well of go To labour to persuade you, I will not: for I know vernment as of liberality. These, I am sure, we not into what form to cast my speech. If I should will acknowledge to have come plena manu amongst enter into a laudative, though never so due and just, us all, and all those whom we represent; and thereof the king's great merits, it may be taken for flat fore it is every man's head in this case that must tery : if I should speak of the strait obligations be his counsellor, and every man's heart his orator; which intercede between the king and the subject, and to those inward powers, more forcible than any in case of the king's want, it were a kind of con- man's speech, I leave it, and wish it may go to the cluding the house: if I should speak of the danger- question.






more especially for the last three months succeeding IT MAY PLEASE YOUR LORDSHIPS,

the last proclamation touching the price of gold; to ACCORDING unto your lordships' letters unto us the end we might by the suddenness of the fall disdirected, grounded upon the information which his cern, whether that proclamation might be thought Majesty hath received concerning the scarcity of the efficient cause of the present scarcity. Upon silver at the Mint, we have called before us as well which account it appears to us, that during the space the officers of the Mint, as some principal merchants, of six years aforesaid, there hath been still degrees and spent two whole afternoons in the examination of decay in quantity of the silver brought to the of the buisiness; wherein we kept this order, first Mint, but yet so, as within these last three months to examine the fact, then the causes, with the it hath grown far beyond the proportion of the forremedies.

mer time, insomuch as there comes in now little or And for the fact, we directed the officers of the none at all. And yet, notwithstanding, it is some Mint to give unto us a distinguished account how opinion, as well amongst the officers of the Mint as much gold and silver hath yearly been brought into the merchants, that the state need be the less apprethe Mint, by the space of six whole years last past, hensive of this effect, because it is like to be but

temporary, and neither the great flush of gold that they presumed it would be of small effect, because is come into the Mint since the proclamation, nor that abatement would not be equivalent to that price on the other side the great scarcity of silver, can which Spanish silver bears with the goldsmith ; continue in proportion as it now doth.

but yet it may be used as an experiment of state, Another point of the fact, which we thought fit being recoverable at his Majesty's pleasure. to examine, was, whether the scarcity of silver ap The third proposition is, concerning the exportpeared generally in the realm, or only at the Mint; ation of silver more than in former times, wherein we wherein it was confessed by the merchants, that sil. fell first upon the trade into the East Indies : conver is continually imported into the realm, and is cerning which it was materially in our opinions an. found stirring amongst the goldsmiths, and otherwise swered by the merchants of that company, that the much like as in former times, although in respect of silver which supplies that trade, being generally the greater price which it hath with the goldsmith, Spanish moneys, would not be brought in but for it cannot find the way to the Mint. And thus much that trade, so that it sucks in as well as it draws for the fact.

forth. And it was added likewise, that as long as For the causes with the remedies, we have heard the Low Countries maintained that trade in the many propositions made, as well by the lord Knevet, Indies, it would help little though our trade were who assisted us in this conference, as by the mer- dissolved, because that silver which is exported imchants; of which propositions few were new unto us, mediately by us to the Indies would be drawn out of and much less can be new to your Jordships ; but this kingdom for the Indies immediately by the yet although upon former consultations, we are not Dutch: and for the silver exported to the Levant, unacquainted what is more or less likely to stand it was thought to be no great matter. As for other with your lordships' grounds and opinions, we exportation, we saw no remedy but the execution of thought it nevertheless the best fruit of our dili- the laws, specially those of employment being by gence to set them down in articles, that your lord some mitigation made agreeable to the times. And ships with more ease may discard or entertain the these three remedies are of that nature, as they serve particulars, beginning with those which your lord to remove the causes of this scarcity. There were ships do point at in your letters, and so descending other propositions of policies and means, directly to to the rest.

draw silver to the Mint. The first proposition is, touching the disproportion The fourth point thereof was this : It is agreed of the price between gold and silver, which is now that the silver which hath heretofore fed the Mint, brought to bed, upon the point of fourteen to one, principally hath been Spanish money.

This now being before but twelve to one. This we take to be

comes into the realm plentifully, but not into the an evident cause of scarcity of silver at the Mint, Mint. It was propounded in imitation of some prebut such a cause as will hardly receive a remedy ; | cedent in France, that his Majesty would by proclafor either your lordships must draw down again the mation restrain the coming in of this money sub price of gold, or advance the price of silver; whereof modo, that is, that either it be brought to the Mint, the one is going back from that which is so lately or otherwise to be cut and defaced, because that done, and whereof you have found good effect, and now it passeth in payments in a kind of currency. the other is a thing of dangerous consequence in To which it was colourably objected, that this would respect of the loss to all moneyed men in their debts, be the way to have none brought in at all, because gentlemen in their rents, the king in his customs, the gain ceasing, the importation would cease; but and the common subject in raising the price of things this objection was well answered, that it is not gain vendible. And upon this point it is fit we give your altogether, but a necessity of speedy payment, that lordships understanding what the merchants inti- causeth the merchant to bring in silver to keep his mated unto us, that the very voicing or suspect of credit, and to drive his trade: so that if the king the raising of the price of silver, if it be not cleared, keep his fourteen days payment at the Mint, as he would make such a deadness and retention of money always hath done, and have likewise his exchangers this vacation, as, to use their own words, will be a for those moneys in some principal parts, it is supmisery to the merchants : so that we were forced to posed that all Spanish moneys, which is the bulk of use protestation, that there was no such intent. silver brought into this realm, would by means of

The second proposition, is touching the charge of such a proclamation come into the Mint; which may coinage ; wherein it was confidently avouched by be a thing considerable. the merchants, that if the coinage were brought The fifth proposition was this: It was warranted from two shillings unto eighteen pence, as it was by the laws of Spain to bring in silver for corn or in queen Elizabeth's time, the king would gain victuals; it was propounded that his Majesty would more in the quantity than he should lose in the restrain exportation of corn sub modo, except they price : and they aided themselves with that argu- bring the silver which resulted thereof unto his ment, that the king had been pleased to abate his Mint; that trade being commonly so beneficial, as coinage in the other metal, and found good of it: the merchant may well endure the bringing of the which argument, though it doth admit a difference, silver to the Mint, although it were at the charge of because that abatement was coupled with the raising coinage, which it now beareth farther, as incident of the price, whereas this is to go alone ; yet never to this matter. There was revived by the merchants, theless it seemed the officers of the Mint were not with some instance, the ancient proposition concernunwilling to give way to some abatement, although | ing the erection of granaries for foreign corn, foras

much as by that increase of trade in corn, the There is only one thing more, which is, to put importation of silver would likewise be multiplied. your lordships in mind of the extreme excess in the

The sixth proposition was, That upon all licence wasting of both metals, both of gold and silver foliof forbidden commodities, there shall be a rate set ate, which turns the nature of these metals, which of silver to be brought into the Mint; which never- ought to be perdurable, and makes them perishable, theless may seem somewhat hard, because it im- and by consumption must be a principal cause of poseth upon the subject that which causeth him scarcity in them both; which we conceive may reto incur peril of confiscation in foreign parts. To ceive a speedy remedy by his Majesty's proclatrouble your lordships farther with discourses which mation. we had of making foreign coins current, and of va Lastly, We are humble suitors to your lordships, rying the king's standard to weight, upon the varia- that for any of these propositions, that your lordships tions in other states, and repressing surfeit of foreign should think fit to entertain in consultations, your commodities, that our native commodities, surmount- lordships would be pleased to hear them debated ing the foreign, may draw in treasure by way of before yourselves, as being matters of greater weight overplus; they be common places so well known than we are able to judge of. And so craving your to your lordships, as it is enough to mention them lordships' pardon for troubling you so long, we comonly.

mend your lordships to God's goodness.




but the crumbs ; as it comes to pass in divers hosMAY IT PLEASE YOUR MAJESTY,

pitals of this realm, which have but the names of I find it a positive precept of the old law, that hospitals, and are only wealthy benefices in respect there should be no sacrifice without salt: the moral of the mastership; but the poor, which is the propwhereof, besides the ceremony, may be, that God is ter quid, little relieved. And the like hath been not pleased with the body of a good intention, except the fortune of much of the alms of the Roman reliit be seasoned with that spiritual wisdom and judg-gion in their great foundations, which being begun ment, as it be not easily subject to be corrupted and in vain-glory and ostentation, have had their judg. perverted : for salt, in the Scripture, is a figure both ment upon them, to end in corruption and abuse. of wisdom and lasting. This cometh into my mind This meditation hath made me presume to write upon this act of Mr. Sutton, which seemeth to me as these few lines to your Majesty ; being no better a sacrifice without salt; having the materials of a good than good wishes, which your Majesty's great wisintention, but not powdered with any such ordinances dom may make something or nothing of. and institutions as may preserve the same from turn Wherein I desire to be thus understood, that if ing corrupt, or at least from becoming unsavory, and of this foundation, such as it is, be perfect and good in little use. For though the choice of the feoffees be law, then I am too well acquainted with your

Maof the best, yet neither can they always live; and the jesty's disposition, to advise any course of power or very nature of the work itself, in the vast and unfit profit that is not grounded upon a right: nay farproportions thereof, being apt to provoke a misem- ther, if the defects be such as a court of equity may ployment; it is no diligence of theirs, except there be remedy and cure, then I wish that as St. Peter's a digression from that model, that can excuse it shadow did cure diseases, so the very shadow of a from running the same way that gifts of like condi- good intention may cure defects of that nature. But tion have heretofore done. For to design the Char. if there be a right, and birthright planted in the terhouse, a building fit for a prince's habitation, for heir, and not remediable by courts of equity, and an hospital, is all one as if one should give in alms that right be submitted to your Majesty, whereby a rich embroidered cloak to a beggar. And cer- it is both in your power and grace what to do; then tainly a man may see " tanquam quæ oculis cernun I do wish that this rude mass and chaos of a good tur," that if such an edifice, with six thousand deed were directed rather to a solid merit, and durpounds revenue, be erected into one hospital, it will able charity, than to a blaze of glory, that will but in small time degenerate to be made a preferment crackle a little in talk, and quickly extinguish. of some great person to be master, and he to take And this may be done, observing the species of all the sweet, and the poor to be stinted, and take Mr. Sutton's intent, though varying in individuo:

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