Proceedings in Parliament 1624: The House of Commons. Originally published by British History Online, 2015-18.
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WEDNESDAY, 28 APRIL 1624
I. JOURNAL OF THE HOUSE OF COMMONS, PA, HC/CL/JO/1/14
[CJ 692; f. 14v]
Mercurii, 280 Aprilis, 220 Jac.
L. 1a. An act for sale of the manor of Abbot's Hall in the county of Essex according to the last will of Sir James Poyntz, kt., deceased.
L. 1a. An act for avoiding and annulling of a sentence in the prerogative court in the probate of the supposed testament of Ed[mond] Meese, esq., deceased, unduly obtained for redress in that behalf.
Plumstead marshes. Friday next. Sir Edward Giles, Mr. [John] Pym, Sir Thomas Holland, Mr. [William] Coryton, Sir George Chudleigh added to the committee.
[Francis] Bonnington's bill. Friday next. Sir William Bulstrode, Sir Eubule Thelwall, Mr. [Francis] Fetherston[haugh], Sir Erasmus Dryden, Sir John Stradling, Mr. [Robert] Snelling, Mr. [William] Ive, Mr. [Nicholas] Rivett, Sir Thomas Estcourt.
The witnesses in a paper brought in by Mr. Fanshawe to be warned in by a warrant from Mr. Speaker to appear upon Friday before the committee for grievances.
L. 1a. An act for expedition of suits in law and for preventing unnecessary charges and delays in sealing original writs, subpoenas and other writs called sixpenny writs.
Upon question, rejected.
Perpetuanas. Thursday, 2 [o']clock, Court [of] Wards.
L. 3a. An act for erecting a free school, an almshouse and house of correction within the county of Lincoln.
Upon question, passed.
L. 3a. [Blank]
Upon question, passed.
SIR EDWARD COKE reports from the committee for grievances. Lord Treasurer, Sir Ferdinando Gorges. [Blank] Sir John Townshend, concealments, executed since damned last Parliament. Lord Canterbury a referee for this from the King. Certified him the hospitals not concealed because lay/
[f. 15] Gold Wyre Drawers. The old body, being free of the Goldsmiths and an ancient trade in Ed. 4['s] time, restrained of their trade and new men brought in and/
A subcommittee to consider of these and such other as shall come after.
|Sir Edward Coke||Sir Robert Phelips||Sir Edwin Sandys|
|Mr. [William] Noye||Mr. [Edward] Alford||Sir Francis Barrington|
|Mr. [John] Selden||Mr. Attorney Wards|
|Mr. [John] Pym||Mr. [John] Whistler|
|Sir D[udley] Digges||Sir Eubule Thelwall|
|Sir P[eter] Heyman|
And to look into the grievances last Parliament and 70 Jac., and to agree upon a course to present these in a parliamentary manner to the King. Tomorrow, at the Inner Temple Hall, 4 [o']clock. And any that will come to have voice.
MR. [THOMAS] WENTWORTH reports the bill for free liberty of fishing in Newfoundland. Engrossetur.
L. 3a. An act for restitution in blood of Carew Ralegh.
Upon question, passed.
MR. SPENCER delivers in a petition against Dr. [Thomas] Anyan, which read in the House.
Moves a select committee for examination thereof, and that they may have power to send for any witnesses, etc.
SIR H[ENRY] POOLE. That he may have warning.
MR. [ROBERT] SNELLING moves concerning a popish schoolmaster in Suffolk.
MR. [JOHN] SELDEN. That this committee may have power to receive petitions against any college.
SIR EDWARD GILES. That these petitions may first be brought into this House, and there read.
Another petition read, against the master of Trinity College.
Agreed, a select committee to consider of all these.
MR. [WILLIAM] MALLORY moves against the exactions of the heralds, and that a committee may consider of the grievance by them.
[f. 15v] Simon Dormer.
Resolved, a select committee to consider of the/
Friday, 2 [o']clock, Star Chamber. Power to send for parties, witnesses, records, etc., and the parties to have warning. And all petitions concerning learning and religion.
SIR FRANCIS SEYMOUR renews the motion for the heralds, for their exactions both concerning the dead and living. That these came into Wiltshire last summer with a patent granted to Clarentius, 10 Jac. Henry St. George, Henry [sic] Bluemantle. Precedent warrants for all knights, esquires, gentlemen and all others that had money in their purses. Demanded of every knight, 45[s.], of esquire, 35[s.], of gentleman, 25[s.] Left out none that was called Mr.
A second warrant for those which first appeared, not directed to the constables. A copy thereof delivered to be read; and a letter to Mr. [Robert] Hyde; and an answer to them. That they questioned none who paid them money, whether a gentleman or not, nor omitted any who paid them not. [f. 16] Moves a subcommittee to examine this to send for parties or witnesses, records, their books of accounts, etc.
SIR ROBERT PHELIPS seconds the motion. £1,500, £1,000, 1,000 marks out of a country by this. That Sir G[iles] Mompesson had the Great Seal for warrant of his proceedings, and his threatening a principal fault of his. So theirs, his. A subpoena of £50 for appearance. The office of Earl Marshal unbounded. A committee.
SIR EDWARD COKE. Things most general and of greatest consequence fittest and safest to be spoken in Parliament. The Earl Marshal's Court lately erected, where the parties now complained of have a principal relation. The setting down the jurisdiction of courts the noblest work that could be of a Parliament. 48 Ed. the Constable and Marshal have a court. An act of Parliament to limit their jurisdiction. To meddle with nothing determinable at the common law. 13 H. 4, 2 go out of England into Scotland and kill one another, the Constable and Marshal may execute him because the common law cannot meddle with it. This court cannot question a patent of honour under the Great Seal; but a quo warranto, or scire facias. 250 Eliz., [Francis] Drake beheading [Thomas] Doughty, resolved the Marshal, without a Constable or commissioners of the office of Constable and Earl Marshal, cannot meddle. If they meddle without authority, dangerous both for the judges and assessors. Commissioners in the nature of a Constable not Constables, no more than commissioners of the treasury are treasurers. To settle this now in Parliament.
SIR H[ENRY] POOLE remembers their exaction of £10 for a knight, and £6 13s. 4d. for a gentleman. £5 fee exacted at the King's coming. Fees of knights.
DR. [ARTHUR] DUCK. That the Earl Marshal about to have abated these fees, half in half. That the Earl Marshal has a commission as a Constable and as an Earl Marshal.
[f. 16v] SIR THOMAS ESTCOURT. To have all heralds questioned about this, for this abuse as well in other counties as in Wiltshire.
[CJ 693] SIR THOMAS WENTWORTH remembers the clause in the letter that Mr. [Robert] Hyde, being a justice of peace, should have assisted him. This clause in many proclamations and patents. If assist, how can justify his oath to execute the law? If assist not, then in the Star Chamber fine and ransom. That this committee may take this clause into their consideration.
These heralds, and all others, and the increase of knights fees, and all the matters before mentioned concerning the Marshal's Court or otherwise, to be considered of.
All that will come to have voice. Tomorrow in the afternoon, Star Chamber.
MR. [WILLIAM] NOYE reports from the committee for statutes for the 2 points referred to them, viz. dispensation with cloths and eating of flesh. That the committee resolved to meddle with neither, but that they conceived the patent of dispensation with transporting cloths unwrought was a very great grievance: for either the law or dispensation naught. And so to have it presented to the King.
Upon the question, to be engrossed. And this, with other bills, to be put to passage upon Friday next, at 9 of the clock.
[f. 17] These dispensing patents to be brought in to the committee for grievances, there to be considered of and reported to the House.
MR. [WILLIAM] NOYE renews the debate about pretermitted customs.
Mr. Solicitor and the rest of the lawyers sent for by the Serjeant.
MR. [WILLIAM] NOYE. That more profit for the King not to take it than to take this pretermitted custom, as in Ed. 3['s] time they told the King he received more profit by the half mark for a sack of wool than when he had 40s. So lords of copyholds for reasonable fines. For the right, the question upon the statute 10 Jac. for poundage where an exception of cloth exported and no new grant upon cloth. The question whether cloth included in this act. Declines the point of imposition, and will not question the tax laid in Queen Mary's time, which descended to the King, which will not dispute whether due or not. Relies upon the word but more upon the context of that statute. Clear the exception exempts cloth. The question whether wool includes cloth. Never any law did it but by a metaphor. If I have cloth and wool, by giving all my wool my cloth passes not. Above 30 laws mention wool but include not cloth. 6 H. 8 coloured wool extends not to coloured cloth. Exportation of wool made felony now.
Secondly, the context. All that are not English which carry out cloth pay by this act of tunnage. They except 4 particulars, whereof wool one; the charge only of 3: apples and cider; grapes; and wine. 12 Ed. I. Title "Grants". Fitzherbert.
Thirdly, this has ever been thus construed. In several ages 40s. upon a sack of wool paid. 290 Ed. 3, 40s. upon a sack of wool at that time. The customers' accounts being searched, and commission, 300 Ed. 3 he answered 40s. for every sack of wool, and for every sized cloth 14d. 50 R. 2, 2 H. 5 the customer commissions command them to take upon every sack of wool 43s. 4d., which was a subsidy then granted, and but 14d. for a sized cloth. 3 H. 5 a subsidy of 40s. per cloth granted to H. 5 during his life. [f. 17v] That there were ancient customs at the common law. The 14d. upon a cloth set by common consent. 27 Ed. 3 14d. upon a cloth paid by a new ordinance, reciting that there was nothing due for cloth before. Statute 11 H. 4 appoints custom for garments made of cloth. A judgement in the Exchequer Chamber for cloth made of Cornish wools.
For the objections, first, that this was declared to be a law in Queen Mary's time, and has been continued ever since, for no medium between 14d. and 10s. 4 and 50 Philip and Mary set down that 6s. 8d. the old custom for wool, and the new subsidy 33s. 4d., and 14d. for a cloth, and thereupon the state set 10s. upon a cloth to proportion between the wool and cloth. The loss of Calais, then presently before, might be the cause thereof, because there could no wools be then transported to Calais, the only staple then. There is a subsidy of alnage upon every cloth by the statute of [blank] Ed. 3. For the use of the Exchequer for seizing, that was only for shipping without paying of subsidies or customs, and the seizure for not paying of custom lawful.
SIR EDWARD COKE. That this not in the statute of tunnage and poundage. Praeteritur, quod debitum est. No certain custom at the common law, but uncertainly granted by Parliament to the kings temporarily. That the first exception of cloth was 31 H. 6 for 6 reasons, and has ever since been excepted. Statute 11 H. 4, c. 7, cloth turned into garments paid no subsidy because into a new manufacture. 270 Ed. 3, rot. 4. inter original in Scaccario. 140 Eliz. [blank]. Mich. 30 and 40 Eliz. resolved in l'Exchequer, kerseys deins l'statute 27 Ed. 3. Hilarii, 30 Jac. the resolution of all the judges concerning the alnage, that all new drapery made wholly of wool are to yield subsidy and alnage by the statute 270 Ed. 3, but for fustians, canvas, etc. mixed with wool are free; so Norwich worsteds, nor for stockings. This entered in the Council book.
SIR ROBERT PHELIPS. If none will speak against this, then to put it to the question, and whether not a grievance.
[f. 18] MR. [WILLIAM] NOYE. To respite this resolution now.
MR. [JOHN] GLANVILLE, accordant. And to set a time for this.
Saturday, peremptorily, appointed for a final resolution herein, except any shall speak for this.
MR. [THOMAS] WOODWARD reports the bill concerning butter and cheese, with a proviso and amendments, which twice read. Engrossetur.
Bill for the Clerk of the Market. Tomorrow, 7 of the clock, Committee Chamber.
A warrant from the Speaker for a writ of privilege to bring up Andrew Bates, servant to Mr. Richard Godfrey of this House, in execution with the sheriff of Kent at the suit of one Hunt.
II. JOURNAL OF THE HOUSE OF COMMONS, PA, HC/CL/JO/1/13
[CJ 777; f. 170]
Mercurii, 28 Aprilis
L. 1. An act for sale of the manor of Abbot's Hall.
L. 1. An act for the avoiding and annulling of a sentence given in the prerogative court in the probate of the supposed testament of Edmond Meese.
Erith and Plumstead [marshes]. Friday next.
|Sir Edward Giles||Sir George Chudleigh|
|Mr. [William] Coryton||Sir Edward Peyton|
|Mr. [John] Pym||Sir Francis Fane|
|Sir Thomas Holland||Mr. Fanshawe|
|Sir Arthur Herrys||Sir William Masham|
[f. 170v] [Blank]
[Francis] Bonnington's bill. Friday next.
|Sir William Bulstrode||Sir John Stradling|
|Sir Eubule Thelwall||Mr. [Robert] Snelling|
|Sir Erasmus Dryden||Mr. [William] Ive|
|Sir Thomas Estcourt||Mr. [Nicholas] Rivett|
The witnesses in a paper brought in by Mr. Fanshawe to be warned in by a warrant from Mr. Speaker to appear upon Friday before the committee of grievances.
L. 1. An act for expedition of suits in law and for preventing unnecessary charges and delay in sealing original writs and other writs called sixpenny writs.
Upon question, rejected.
Perpetuanas. Thursday, 2 [o']clock, Court of Wards.
L. 3. An act for erecting a free school, an almshouse and house of correction within the county of Lincoln.
Upon question, passed.
L. 3. An act for the naturalizing of Abigail Little and Geoffrey [sic] Little.
Upon question, passed.
[f. 171] SIR EDWARD COKE. In the committee of grievances, have proceeded in 5 causes:
- 1. Of the Lord Treasurer.
- 2. Sir Ferdinando Gorges's patent.
- 3. Sir John Townshend's patent, which was condemned the last Parliament, yet he proceeded upon it.
- 4. The patent of Gold Wyre Drawers. That adjudged a grievance in creation and execution.
- 5. The Apothecaries' patent.
To appoint a subcommittee to draw these into form to be presented to the King.
|Sir Edward Coke||Sir Robert Phelips|
|Mr. [William] Noye||Mr. [Edward] Alford|
|Mr. [John] Selden||Attorney Wards|
|Mr. [John] Pym||Mr. [John] Whistler|
|Sir Eubule Thelwall||Sir Dudley Digges|
|Sir Edwin Sandys||Sir Peter Heyman|
|Sir Francis Barrington|
To consider of these and those that shall come after of the grievances of the last Parliament, and of septimo, and to draw them up in a fit frame and model to be presented to the King. Tomorrow, Inner Temple, 4 [o']clock. And all to have voice.
MR. [THOMAS] WENTWORTH reports the bill for free fishing. The amendments twice read.
Ordered, to be engrossed.
MR. [JOHN] DELBRIDGE. To have the grievance of the fishermen on the coast of Ireland presented to the King.
L. 3. An act for restitution in blood of Carew Ralegh, son of Sir Walter Ralegh, knight, lately attainted of high treason.
Upon question, passed.
[f. 171v] MR. SPENCER. A petition against a head of a college in Oxford, Corpus Christi College, Doctor [Thomas] Anyan.
The petition read. To have a select committee for this.
Another petition, of the like nature, against Doctor [John] Richardson, master of Trinity College in Cambridge.
MR. [ROBERT] SNELLING. A popish schoolmaster fit to be thought of: Simon Dormer.
MR. [WILLIAM] MALLORY. A thing complained of the last Parliament, the patent of the heralds. A thing very considerable.
Resolved, upon question, to have a select committee to take into consideration these 2 petitions and the popish schoolmaster.
Friday, 2 [o']clock, Star Chamber. [f. 172] These are appointed to take consideration of these 2 petitions and of the information against the popish schoolmaster and all other complaints of this nature concerning religion or learning, which are to be first offered to the House and then transmitted over to them. And have power to send for parties, witnesses, records and writings.
SIR FRANCIS SEYMOUR revives Mr. [William] Mallory's motion about heralds. Last summer were in Wiltshire. Demanded of every knight, 45s., of every esquire, 35s., of every gentleman, 25s. A second warrant to summon those that appeared not at the first summons. A very strange one.
Never questioned any man that paid them money, and questioned every man that paid not. To have a committee appointed to examine this, and to have power to send for these men and Clarentius's executors, and any books or writings.
SIR ROBERT PHELIPS. Sir Giles Mompesson had the Great Seal to warrant him. His peremptory letters a great aggravation of his offence. Here the like. To have a committee for this.
SIR EDWARD COKE. A court erected of late. These men a great dependence on it. The Constable and Marshal have a court, Edw. 3, book 50. In 48 Edw. 3 an act of Parliament made for their jurisdiction. To meddle with nothing that belonged to the common law but matter of arms and chivalry. If 2 men go into another (18 Hen. 4) kingdom and fight, and one kill another, the Marshal may try it and hang him. Charter of nobility and gentry triable at the common law. [Thomas] Doughty, 25 Eliz. [Francis] Drake beheaded him at sea. Judges resolved that it was illegal. The Marshal himself was to do it, not his commissioner. [f. 172v] So if a commission made to certain men in nature of a Constable, these cannot do that a Constable may do. To have it had in consideration that it may be settled now this Parliament.
SIR HENRY POOLE. These men also take new and extortive fees. £10 of every knight, 20 nobles of every gentlemen that dies. This by an order made by the Earl Marshal.
SIR GUY PALMES. To have this committee have power to examine their authority and to call the heralds before them.
DOCTOR [ARTHUR] DUCK. Divers Lords appointed to this office. They set these fees, which indeed are somewhat high. Earl Marshal about to draw them down half in half. The office no new thing.
SIR THOMAS ESTCOURT. Came 2 other heralds into Gloucestershire that took the like course. To have these likewise convented.
SIR THOMAS WENTWORTH. Are of late divers patents under the Great Seal. Clauses that justices of peace shall be aiding to them. If not, brought into the Star Chamber and fined and ransomed. If this be suffered, shall be weary of his place. To have this committee take consideration of this also, and of all things incident to this court.
Resolved, upon question, to have a committee.
|Chancellor Exchequer||Sir Thomas Wentworth|
|Sir Edward Coke||Sir Francis Seymour|
|Sir Robert Phelips||Sir Francis Fane|
|Sir Edward Cecil||Sir Henry Poole|
|Mr. [William] Noye|
|Sir Andrew Corbet|
|Sir Simon Weston|
|Sir Edward Peyton|
[f. 173] And all to have voice. Tomorrow, 2 [o']clock, Star Chamber. These are appointed/
[CJ 778] MR. [WILLIAM] NOYE reports the bill of continuance of statutes, which was recommitted. 2 referred to them: repealing of the statutes for transporting of white cloths, and licences for eating of flesh. Committee thought not fit to have those laws repealed. For cloths, thought the dispensation to be an exceeding great grievance and desired it might be presented to the King. To redeem the law for money.
The amendments twice read.
Ordered, to be engrossed with as much speed as may be. To be put to the question of passage on Friday, with the other engrossed bills.
The patents of dispensation to be brought in to the committee of grievances to be considered of by them.
Debate of the pretermitted customs.
MR. [WILLIAM] NOYE. More profit for the King not to take the pretermitted custom than to take it. King received more profit when he had a noble on a sack of wool than when 40s. Question no more but this: statute of primo gave tunnage and poundage, except wool, woolfells and leather, and cloth outward. Question whether cloth included within that statute. Thinks not. Will set aside the right of imposition. No[t] due upon [f. 173v] cloth by that statute. Cloth excepted. Grants of all wool 40s. on every sack. By no law cloth included under the name of wool. A new species. We have made it felony this Parliament to transport wool. Shall this extend to cloth? Context makes it a great deal stronger. All strangers that carry cloth pay the poundage. The charge would have been laid as large as the exception: apples and cider. He that gives away his apples gives not his cider. A man was seised of a manor to which an advowson. Levied a fine of both. The cognisee rendered the manor and one house. The advowson passed not back again. This so construed in all ages. 14 Edw. 4, 40s. on a sack of wool when but little cloth made. 29 Edw. 3, 40s. granted on a sack to last for 6 years. Then takes but 14d. upon a cloth transported. 2 Hen. 5 a grant of 43s. on a sack. But 14d. taken by commission of a cloth of assize. 3 Hen. 5 granted him a subsidy of 40s. and poundage of 12d. upon a pound of other goods. Then the law general and taken of cloth. Custom by the common law appears by Magna Carta and Matthew Paris: 11 Hen. 5. Has considered, on the other side, first, that this declared to be a law in Queen Mary's time and so explained by 70 years continuance. This no objection at all. That declaration will discover somewhat. That not a declaration of a law; not said due before, but then assessed by power of state. The loss of Calais a cause of that ordinance. Another objection out of 1 Eliz. about the weight of kerseys. Thinks Mr. [Edmund] Nicholson did mistake the law and was deceived.
SIR EDWARD COKE. Shall rather show his duty than his discretion to argue after so elaborate a speech. Of opinion clearly that this not within the statute of tunnage and poundage. That is said to be pretermitted that through oblivion, ignorance or negligence is not wholly paid. No certain custom at the common law to the king. If had been a duty before the grant of 6s. 8d., he should have had more than that. Will argue ex visceribus causae. He a strange expositor that should include cloth under the title of wool. This of cloth excepted.
39 Hen. 6 a subsidy granted of all wares, goods and merchandises. At a session the same year, then complained that anything should be set on cloth. 6 reasons:
- 1. To the impoverishing the poor.
- 2. An impediment of vent.
- 3. An increase of interest.
- 4. The destruction of the navy.
- 5. Wools of no value.
- 6. The undoing of the wool grower.
Therefore desired wool might be excepted out of the statute of tunnage and poundage. And ever since excepted for these reasons. 11 Hen. 4 a judgement in Parliament strangers to pay no custom for garments made of cloth. A far stronger case than the other. Here the species altered. 27 Edw. 3 gives 4d. a cloth besides alnage. Opinion of the judges that no custom due for cloth made of wool. Resolution of the judges clearly in this with us. 14 Eliz. kerseys made of greater length, whereby the Queen deceived of her custom. This the first objection. Will thus answer it.
3, 4 Eliz. resolved in the Exchequer that kerseys and dozens were in the statute of 23 Edw. 3 and so are to pay. 2 King James a resolution of the judges which was highly commended, read, which sets down what duties are due. All new draperies made wholly of wool are to pay custom by the statute of Edw. 3. [f. 174v] No alnage upon stockings nor worsteds. Will conclude, super totam materiam, that this pretermitted custom not due upon the statute of tunnage and poundage.
The resolution of this matter respited until Saturday morning. [Edmund] Nicholson to attend at that time, and bring his patent.
MR. [THOMAS] WOODWARD reports the bill for butter and cheese. The amendments twice read.
Ordered, to be engrossed.
Bill for the Clerk of the Market. Tomorrow morning, 7 [o']clock, Committee Chamber.
MR. [JOHN] GLANVILLE. [Blank]
Andrew Bates to have a writ of privilege. Mr. [Richard] Godfrey's servant, a member of this House.
III. DIARY OF JOHN HAWARDE, WILTSHIRE AND SWINDON ARCHIVES, 9/34/2
Mercurii, 28 Aprils 1624
Subsidie, tomorrow in the afternoone.
3. L. Bill pur erection de free schoole et huis de correction [blank] par Thomas Middlecott, esq., al son charge de mesme.
Sur queston, passe pur ley.
3. L. Bill pur naturalisinge [William] Little, a marchant.
Sur question, passe.
SIR EDWARD COKE reporte pur grevances.
- 1. Pur le Lord Tresorer nemy paroll.
- 2. Sir Ferdinando Gorges's pattente.
- 3. Sir John Townshend's pattente pur concealed hospitalls.
- 4. Corporacion de Gold Wyre Drawers.
- 5. Apothecaries.
Pur selecte committee de preparer ceux pur presenter al Roy ove ceux de 7 Jacobi, et le darren Parliamente et autres cest Parliamente.
Bill reporte par MR. [THOMAS] WENTWORTH pur frank piscante in nove angliterre etc.
Sur question, ingrosse.
Bill pur restitucion de Carew Ralegh, fils de Sir Walter Ralegh.
Sur question, passe pur ley.
[p. 267] SIR H[ENRY] MILDMAY move pur Sir Philip Carey esteant sent to par l'upper Huise pur tesmoigne versus le Lord Tresorer. Accordante al former presidents to be lefte to himselfe, and waive his privilege if he will, for he cannot be compelled.
MR. SPENCER deliver peticion versus Doctor [Thomas] Anyan, master de Corpus Christi College in Oxforde, pur male gesture.
Le SOLLICITOR put in petition versus Doctor [John] Richardson, master de Trinity College in Cambri[d]ge.
MR. [ROBERT] SNELLING. Pur popishe scholemaster, Simon Dormer, in Suffolke.
Sur question, selecte committee Vendredis; poier to send for parties, wytnesses and recordes, and for all busynesses of this nature the peticions first to be read in this Howse.
MR. [WILLIAM] MALLORY move pur heralds, et SIR FRANCIS SEYMOUR al mesme purpoase, et produce garrante al constables.
SIR ROBERT PHELIPS. [Blank]
SIR EDWARD COKE. Many things may be spoaken in Parliamente that cannot be spoaken out of Parliamente. 48 E. 3 le Constable et Marshal ont courte. 13 H. 4 [sic], 2 goe into Scotland to fighte, they may determine it. [p. 268] Le Marshal sans Constable, par comission ou autrement, ne poient tener court et si soit in nature de Constable ou Tresorer.
Sur question, selecte committee, touts davoir voices. Tomorrow in the afternoone in the starre chamber.
MR. [WILLIAM] NOYE reporte bill pur repeales et contynewances. Le pattente de dispensacion est grande greevance; to be brought in.
Sur question, deste ingrosse et sur Fridaye cest [bill] ove autres to be put to question for passage.
MR. [WILLIAM] NOYE pur pretermitted custemes. More profette for the kinge if they be layd downe as 21 E. 3. [Increase] fines of alienacion, fines for copiholds [yield less].
1 Jacobi grant al Roy de tunnage et poundage. 6s. 8d. pur custome de wooll ore 40s. sur sacke de wooll. Si cloth soit conteign in cest statute de 1 [Jac.]? Il tient que nemy, car est exclude et nemy conteigne en le statute. Par null ley clothe est include par nosme de wooll for they are diverse species. 14 E. 3 statute pur porter eius bullian pur wooll. 4 E. 4 mes nemy pur clothe.
Le contexte del statutes est pleine. [p. 269] 12 E. 1 title grants in Fitzherbert. Customers' accounts. 14 E. 3, 40s. sur sacke de wooll. 29 E. 3 clothes made in le realme et nemy devant, mes port eius. 30 E. 3 for a sacke [de] wool 40s. and 14d. upon clothe.
Le proporcion expounds le ley. 5 R. 2. 2 H. 5 grante de poundage de 43s. 4d. sur sacke de wooll and 14d. sur clothe pur poundage. 3 H. 5, 40s. sur sacke de wooll etc. H. 6 et E. 4 tiel rates.
Custome al commen ley par Magna Carta et Matthew Paris. H. 2. 5, roll. 3 E. 1 custome trahe al certeinty par common consente. 21 Elizabeth.
Statute et ordinances. 27 E. 3 par originall brief. 11 H. 4, cap. 7. Decree in [ex]chequer chamber, 24 Maii 4 et 5 Philip et Mary. Mr. [Edmund] Nichols[on] not the inventor but the finder of it and he tooke it up and they do assesse 50s. upon every clothe. Mes nemy dutye devant so onlye an ordinance to have a gaine for losse.
[p. 270] SIR EDWARD COKE. Mr. Nichols[on's] case nest deins le statute de tunnage and poundage. Null certein custome due al Roy par le common leye. Ex visceribus corporis le melieux argumente. Le texte wooll, le contexte, le intertexte. Null forfeiture pur construction est absurd. 31 H. 6 grante de tunnage et poundage sur touts wares et merchandises. Complainte sur commons pur wooll [sic].
- 1. Losse de worke.
- 2. Hinder de vente.
- 3. Idlenes.
- 4. Navye.
- 5. Le revennewe del Roy.
- 6. Growthe de wool in le rure.
20 E. 3. 11 H. 4, cap. 7, garments fait ne charge ove custome par reason del manifacture. 27 E. 3, 4d. pur clothe ouster aulnage. Rotul. 4. pannificitur. Resolution del judges ove nous — kersies. Michilmas, 3 et 4 Elizabeth in l'exchequer resolve que kersies sont in le statute 27 E. 3. 31 Elizabeth Devonshire et Cornwall. 39 Elizabeth. [p. 271] Hillarii 2 Jacobi seignours escrie al touts les judges pur resoluton de aulnage. Sur novel draperies fait wholly de wooll paier accordante al statute de [blank], mes fustian etc. mixte ove wooll sont discharge. 9 H. 4 serges. Extorcion, exaction, oppression. 8 Maii 4 et 5 Phillip et Mary. Use de 200 ans et cest un innovacion. Demande de 3s. 4d. sur cloathe denied.
Et sur ces argument fuit adjourne al autre jour.
Post meridiem, [committee for courts of justice]
Sir Robert Phelips in le chaire.
Doctor Grant put in peticion touchante le Dame Darcy. Order quel avoir a copie et advisera ove sa counsell et retorne sa response sur Satterdaye nexte.
Et le Sollicitor deliver le response del Lord Keeper et par cest done bon satisfaction al Huise.
[Robert] Grice cause fuit oye, et en le fine, puis longe debate, admittante quel ad juste cause de complainer. Uncors fuit doubte de course de remedy. Trois courses fuert propounde:
- [p. 272] 1r. Pur intimater al Lord Keeper par novel brief et cest fuit conceave perilous si il voet denier cest car danque reflecte al nous.
- 2d. De representer cest al seignours pur command novel briefs et cest fuit tenus illoyal car il ne poet fair cest par le leye, et issint ambideux courses illoyal car pur cest il ne poet este command.
- 3. Davoir bill in Parliamente de setler cest et cest fuit resolve le proper et safe voye, mes les amyes de Grice ne lyke de cest pur le lengthe et charge.
Donque fuit agree que cest sera referre al 4 judges deste nomynate par le feme et ambideux parties de doner securitie pur performance de lour agarde.
Et touchante le Lord Keper's proceedante, puis long debate, fuit resolve deste loyall et bon come in case de non compos mentis ideot et conisance par feme dauter, et fuit move davoir Throckmorton receave punishmente, mes entant que John Throckmorton move tout et gard le possession ove grande contempte fuit spare al motion de Sir Robert Phelips.
IV. DIARY OF SIR THOMAS JERVOISE, HAMPSHIRE RECORD OFFICE, 44M69/F4/20/1
[28 April 1624]
Upon the pretermitted customs, the law's opinion, 27 April [sic].
MR. [WILLIAM] NOYE. In Ed. 3 there was paid but 13s. 4d. upon a sack of wool. The question upon the right of the king. Whether cloth be in [sic] included in the statute of primo Jac. His opinion is that cloth is not in that statute. By no law cloth does come within the name of wool. Cloth is our specious wool. Another, the statute sexto Ed., no man shall sell coloured wool, yet they may sell coloured cloth. To see whether that wool has extend[ed] to cloth, see the customers' account in vicesimo nono E. 3, tricesimo, E. 3. Mr. [Edmund] Nicholson named this imposition a pretermitted custom and that he first found it by his invention for which he is to have out of it £1,000 a year.
V. DIARY OF JOHN LOWTHER, CUMBRIA ARCHIVE CENTRE, CARLISLE, DLONS/L/2/1
[28 April 1624]
That heralds exacting fees of some £10, £5, 40s. taken into like consideration and the [Earl] Marshal's Court not without a Constable. And that the patents that are to command justices to assist the patentees [?in] this collections and other such like as an unfit servitude. To be presented. And briefs non obstante, law or statute, presented.
VI. DIARY OF SIR THOMAS HOLLAND, BODL., MS RAWL. D1,100
28 April, Wednesday
First read. An act for the sale of the manor of Abbot's Hall in Essex by [Sir] James Poyntz.
First read. An act for the avoiding the supposed will of John [sic] Meese.
An act for the worsted weavers of Norwich.
Rejected. An act for expedition of suits in law and to prevent unnecessary charges brought by original suits and sealing sixpenny subpoenas.
Engrossed [sic], passed. An act for the erecting a free school and almshouse and house of correction by Thomas Middlecott in Lincolnshire.
Engrossed [sic], passed. An act for naturalizing Jane [sic] Little.
[SIR EDWARD] COKE. Report of grievance[s], 5 cause[s]: the Lord Treasurer; next, Sir Ferdinando Gorges['s patent] for New England; Sir John Townshend's patent for concealment of hospitals; [f. 55] 4th, of Gold Wyre Drawers, part of the corporation of Goldsmiths; 5th, the Apothecaries, part of the Grocers these. He moves that a subcommittee may be appointed in a parliamentary course to draw the grievances and to view such grievances as were preferred the last Parliament to prefer them to the King.
Engrossing. [MR. THOMAS] WENTWORTH reports the bill for free fishing in New England and Newfoundland.
[MR. JOHN] DELBRIDGE moves that the petition against the imposition upon fish taken upon the Irish Sea may have speedy hearing.
Engrossed [sic], passed. An act for the restitution in blood of Carew Ralegh, the son of Sir Walter Ralegh.
A motion being made whether a member of the House being sent for to be examined about the Lord Treasurer's business [f. 55v] should be sworn in the Upper House, it was referred to his own discretion.
A petition exhibited by 2 doctors and one bachelor of divinity against Doctor [Thomas] Anyan, president of Corpus Christi College in Oxford, for many enormities committed by him.
It is moved that a select committee may be appointed to examine these matters.
[MR. ROBERT] SNELLING moves that Simon Dormer, a schoolmaster of Eye, may likewise be taken into consideration, who is popish.
A petition is exhibited against Doctor [John] Richardson by Toby Waterhouse, one of the fellows of the house, for breaking the constitution next and statutes of the house against his oath.
[f. 56] [MR. WILLIAM] MALLORY moves that a select committee be named to consider of these petitions and others of that nature, and to dispatch what may be before we depart, and something to be done that we may find that ready at our return, which is entered. Likewise, to take into consideration the heralds, who, upon the death of any of blood, do take money of everyone and should register their families and see that none do counterfeit arms, but they do nothing.
It is ordered that the committee shall take into their consideration the former 2 petitions and the schoolmaster and other business of that nature, and to send for any to inform or records therefore [sic].
[f. 56v] [SIR FRANCIS] SEYMOUR offers to the consideration of the House against the heralds, who have been in Wiltshire and Dorsetshire and gathered much money by virtue of a patent granted 10 Jac. to Clarenceux, which has slept until this year. H[enry] St. John [sic] and Bluemantle. They sent a warrant to summon in the King's name all gentlemen and yeomen: knight, 45s.; squires, 35s.; gentlemen, 25s.; and they left out none [that was called Mr.]. Then a second warrant, which was peremptory, to the constables that knights and gentlemen should appear before them. The warrant to the High Constable for the contempt [f. 57] of not appearing, therefore to appear before the Earl Marshal upon the forfeiture of £50. [Robert] Hyde's letter to Richmond and Bluemantle for their summons before the Earl Marshal of England upon £50 forfeiture, denying his payment of undue money. The heralds' answer: that they had received their peremptory letter; that what they did, they did by the authority of the Great Seal, whereas being a justice of peace, he should have assisted them. Therefore, he was to appear upon his peril.
He moves that a committee may be nominated to have power to send for the executors of Clarenceux and books.
[f. 57v] [SIR ROBERT] PHELIPS. They came into the country disorderly for their own ends, and gathered in the time of much want when there was not money to commerce in markets, and got in some countries a £1,000 or £1,500. Though they did it under the Great Seal, so did [Sir Giles] Mompesson. He knows not what that sleepy Earl Marshal's Court does, but/
[SIR EDWARD] COKE. Those things that have great authority are safest to be dealt withal by Parliament. [Blank] There is a court erected of late from whence these come. He speaks it for the safety of the noble person and his assistance [sic]. The Constable and Marshal have a court. Put a great man in au- [f. 58] thority he will never want jurisdiction. They should hold plea of nothing that concerns the common law. 2 going over to fight, the Marshal or Constable may hang him,  H. 4. Chivalry a charter. [Blank] [Francis] Drake beheaded [Thomas] Doughty. [Blank]
[SIR HENRY] POOLE. That the fees they take of a knight, £10, and of a gentleman [sic], £6 13s. 4[d.], and do nothing for it.
[DR. ARTHUR] DUCK. Fees of 2 natures. Those in their visitations they must answer, but for executors' fees they were ordered by the Lords before the Earl Marshal. [f. 58v] The office and jurisdiction and court are ancient, that which being of late has been granted of late to this Earl Marshal has the power with it of the Constable likewise.
[SIR] SIMON WESTON. That there may be seen the privilege of the court, what is ancient and the innovation. [Blank] Many patents do require the justice of peace of the assistance, which how far it stands with law is known. Yet if the justices do deny their assistance when proclamation does require that, they are subject to the Star Chamber, be fined and ransomed. Therefore, he moves/
[f. 59] It is ordered that the heralds all do appear, and a committee is appointed to send for them and all fees that have been complained of, and of the authority of the Earl Marshal's court. Committee tomorrow, Star Chamber, all voices.
[MR. WILLIAM] NOYE. The continuances, upon recommit[ment], is put to the engrossing.
Order. It is ordered that this bill shall be engrossed and brought in upon Friday, and that with other good bills they may be read then and sent up.
[MR. WILLIAM] NOYE. Against the pretermitted custom. More profit for the not taking of it than the taking of it. In Ed. 3 when the 6s. 8d. was paid for a sack of wool, there was more to the king than when it was 40s. 10 Jac., a statute of tunnage and poundage, [f. 59v] no mention at all of the cloth whether it was concluded within that statute or no. The question whether that which [Edmund] Nicholson has done be old or innovated.
VII. DIARY OF RICHARD DYOTT, STAFFORDSHIRE RECORD OFFICE, MS D661/11/1/2
A petition by some divines [illegible] of Corpus Christi College in Oxon., Dr. Allen, Dr. Featly, Henry Monson, against Dr. [Thomas] Anyan.
A petition against Dr. [John] Richardson, master of Trinity College in Cambridge.
[f. 105] A popish schoolmaster in Suffolk complained of.
Ordered, that a select committee for these businesses, and others of like nature, Star Chamber upon Friday at 2 o'clock. Power to send for parties, witnesses, records. The parties to have warning.
[MR. WILLIAM] MALLORY. Against [?the heralds] for taking fees after [?men's] deaths. They prey upon the dead as well as living.
[SIR FRANCIS] SEYMOUR. The heralds have in Wiltshire this last [?summer], by force of a patent granted 1 Jac. under colour of registering [?arms], sent down messengers to summon men to appear in the King's name at time and place appointed. But in this warrant, some complaint that if any gentle rank would not come they would come to them, but that was out of their shrift. Then [f. 105v] they sent out a second warrant to the High Constables charging them to warn them to appear before the Earl Marshal upon pain of £50.
Mr. Robert Hyde's letter to the heralds.
Their answer to it.
They questioned none that paid them money. Though [?they] give [?them] spare notice that gave money though gentlemen.
Motion that the executors of Clarenceux, [?Richmond], Bluemantle to be sent for.
[SIR ROBERT] PHELIPS. Money was their end. Things [?illegible] disorderly and unjustly done. It was unseasonable in time of want such sums of money as £1,500, £1,000, etc., out of several counties. Did it not aggravate [Sir Giles] Mompesson's offence that he wrote letters to justices [f. 106] of p[eace] to assist the Great Seal. Let no subject under colour of the king's prerogative make us slaves. The bounds of that sleeping court of Marshal I know not but [?if] he may [?3 words illegible] pleasure, I would not give a law plaint for our liberty.
[SIR EDWARD] COKE. [?There] is a court erected of late upon which [?4 words illegible] have a great dependence. The fabric of the jurisdiction of the law admirable, and to set down the jurisdiction of courts a noble work and fit for this Parliament. 48 E. 3. But a great man in authority, he will never want jurisdiction.
The Constable and Marshal to [?meddle] with [illegible] deeds of arms, things of chivalry, nothing belonging to common law. If 2 fight and kill another in Scotland, etc., 13 H. 4 is that Constable and Marshal may [f. 106v] try it. If letters patent that noble, Marshal should not hold plea but the common law, a scire facias or quo warranto. 25 Eliz. [Thomas] Doughty beheaded by [Francis] Drake. Resolved that Earl Marshal could not determine it, but that a Constable to be created and a commission [?to] [?3 words illegible] would not serve the turn. By [illegible] judges. So there were in commission [remainder of this and next two lines illegible] things peculiar to treasurer. A thing fit to be settled this Parliament, and if any man can speak in defence of it will compare our authorities and reasons together. Heralds challenge by an order [£]6 13[s.] 4[d.] of a gentleman, [£]13 6[s.] 8[d.] [f. 107] upon knight's death. Increase of knights' fees [?fourfold].
DR. [ARTHUR] DUCK. Those fees claimed by order made by the commissioners of Earl Marshal, but he himself has gone about to moderate them because they seem grievous. He has warrant under the Great Seal to proceed as Constable [?and] Marshal. The office of Earl Marshal no new thing in this kingdom, [illegible] [?there is] no kingdom [?in] Christendom but have an Earl Marshal for matters of honour, etc.
[SIR THOMAS] WENTWORTH observed that in the heralds' letter is contained that it became him as a justice [of] p[eace] rather to have assisted him than questioned them. And said that patentees have proclamations commanding justices of p[eace] to assist them, else they are in danger of the Star Chamber, there [?to] pay fines and ransom.
[f. 107v] Ordered, that a committee to consider of all those points. To send for patents, books of account, parties, witnesses, etc. All that come to have voice. Tomorrow in the afternoon in Star Chamber.
Report by [MR. WILLIAM] NOYE of the bill of continuances. 2 points [remainder of line illegible]. 3 H. 7 [illegible] that no cloths to be carried out unshorn [remainder of line illegible]. 2 laws [?of the eating] of flesh [illegible] [?dispensation] of it. 3 E. 6. 5 E. 6 [?2 words illegible] exactions concerning fasting. Lent a politic constitution by reason E. 6 is revived. 5. Eliz. Wednesday is a fish day. And if 3 E. 6 and 5 [?E. 6] be not continued the ecclesiastical laws be revived, for in H. 8['s] time established. [f. 108] It was observed that the Archbishop had not faculty of dispensing because now 'tis a mere temporal law. But not determined. The dispensation a grievance as the committee conceived [illegible] to be preferred to King as a grievance [?2 words illegible]. If the laws were good, then not to be observed; if bad, then not to be dispensed with.
The bill of continuances to be engrossed.
Report of pretermitted custom. Tis more profit to King not to take them than to take them. 21 E. 3 in old time they paid [?noble], after they paid 40s. Lords of manors lose nothing when admit copyholders for small fines. Fine office lost by raising fees. Whether cloth be included within the statute 1 Jac., so that due by law. [Illegible] speaking [f. 108v] of the imposition in Queen Mary's time, for he is [?moved] by [?descent]; will not dispute it, or the right of imposition. The best interpreter the context of the statute. Custom and practice. Some [?3 words illegible] in [illegible] heretofore. Wool, woolfells, cloth, except in the Parliament, but the words that charge us. And yet out of the wool 40s. Now whether cloth be comprehended within the name wool is the question. I say no. If I grant [?you] all my wool, cloth passes not. 30 laws concerning wool extend not to cloth, otherwise we had ill done this Parliament to inhibit the exportation of wool. The enumeration of 4 species but 3 expressly charged, the fourth is free. 12 E. 2 "grants" Fitzherbert.
[f. 109] A man seised of a manor to which advowson appendant levies a fine of the manor and advowson. The cognisee renders the manor not naming the advowson; now it were [2 words illegible] which carries the advowson, yet because named in [illegible] and not named in the render as much as if had been excepted. 29 E. 3, 40s. granted [on a] sack of wool. It should pay for cloth as for wool. 40s. should have been paid for 3 cloths. And yet he had but 14[d.] a cloth. In 1 Jac. the same words are, and why not expound them in the same manner. 2 H. 5, 13 H. 5 during his life, but so it might not be turned into precedent.
3 Eliz. it was brought 6s. 8d. by consent. [f. 109v] Ordinance questioned 21. It was by consent as appears by statute and ordinances. 27 E. 1 a writ went out. I therefore think that tunnage and poundage does not extend to cloth. Decreed that whereas by custom of Cornwall they are not to pay [?fee].
Objection: declared to be a law in Queen Mary's time. [Edmund] Nicholson called it a pretermitted custom discovered by him to be due. 4 and 5 Philip and Mary there is the very [illegible] project so that not invented by him, but and [sic] taken up by him. [f. 110] In Philip the good's time, our cloths prohibited. Intercursus magnus. It might be done in respect of loss of Calais, or abrogation of some laws in Netherlands against our liberties.
[SIR EDWARD] COKE. I [?shall] rather show my duty than discretion. [?2 words illegible] after so learned a man, etc. Tis fit to [illegible] the state of the [?question] and then shall [?find] whether [?speaks] [illegible], I think. Tis not within the statute of poundage and tunnage. Whether the subsidy lying upon the wool, the act of the subject shall take away the duty of the king. No certain customs of inheritance in crown at common law, for 6s. 8d. granted [?and] if more had been due, then he should have had more upon a sack [of] wool. [f. 110v] No Englishman shall pay poundage for woollen cloth, yet for wool he shall. 1 H. 6 tunnage and poundage granted of all wares, etc. They have set down 6 reasons why woollen cloth should be exempted:
- 1. [Illegible] impoverishing of poor people.
- 2. Impediment of [?vent].
- 3. Increase [?of] idleness.
- 4. Destruction [?of] navy.
- 5. Wool of no value.
- 6. Undo the wool growers.
It continues to this day. Why was [?it] excepted? To maintain the manufactures of [?the kingdom, set] the poor for work. 11 E. 4 [illegible] which is a judgement in Parliament that garments not customable by the law. 27 E. 3, rot. 4, gives 14d. a cloth, which is the [?illegible] resolution of the judges: Hi qua custuma urva[illegible] novis soluta, etc. in a writ speaking of land per parmi [?illegible] [f. 111] ficitur.
Objection: 14 Eliz. kerseys made of greater length, whereby Queen deceived of her custom.
Solution: in 3 and 4 Eliz. resolved in the Exchequer that kerseys [?3 words illegible] within the statute 27 of E. 3. 39 resolved that new draperies to pay custom [?2 words illegible]. H. 2 Jac. in the Council chest. The Lords advised with all the judges. They resolved [?all] new draperies made wholly of wool ought to yield subsidy and alnage. But fustians etc. made of other things than wool or mixed of wool not subject to search, measuring, alnage. And though others had enjoyed it, yet they [illegible] it was decreed that they were paid by oppression [illegible] etc. [f. 111v] 28 May, 4 and 5 Philip and Mary.
I conclude that by the words, context and constant use, not due. Encroached in Queen Mary's time, but that is not meddled with. But whether due by the statute 1 Jac. is question. Let us proceed leisurely that we may come the [?sooner] to the [?end] of our work.
Order, Saturday to hear counsel on the other side and the projector Nicholson to attend with his patent.
VIII. DIARY OF JOHN PYM, NORTHAMPTONSHIRE RECORD OFFICE, FH/N/C/0050
April 280, 1624
An act for selling of Abbot's Hall in Essex, being the land of Sir John [sic] Poyntz.
An act for avoiding the suspected will of one Edmond Meese.
An act for the better explanation of the statute 7 Ed. 4 concerning sealing of stuffs in Norwich.
An act for expedition of suits in law and preventing unnecessary charges in suing out writs called sixpenny writs. Rejected.
An act for erecting a school and almshouse by Thomas Middlecott of Boston, esquire.
An act for naturalizing of Abigail Little.
SIR EDWARD COKE makes a report from the committee of grievances concerning 5 causes:
- 1. The transmission of the Lord Treasurer.
- 2. The patent to Sir Ferdinando Gorge[s], wherein there was these unlawful clauses:
- 1. That no man should visit the coast of New England, which overthrew the freedom of the fishing trade.
- 2. A penalty of confiscation as if it were by act of Parliament, for both which it was adjudged a grievance in the grant. Besides, divers fishermen had been sued in the Admiralty upon pretence of this patent, which made it a grievance in the execution.
- 3. Sir John Townshend's patent for concealments, which was questioned the last Parliament, yet divers proceedings upon it since.
- 4. The corporation of Gold Wyre Drawers.
- 5. The incorporation of the Apothecaries.
MR. [THOMAS] WENTWORTH reported the bill of free fishing from the recommitment.
MR. [JOHN] DELBRIDGE presented a petition by the fishermen off Ireland.
An act for restitution in blood of Carew Ralegh. Passed.
Sir Philip Carey had leave to be examined by the Lords in my Lord Treasurer's business.
MR. SPENCER presented a petition against Dr. [Thomas] Anyan, president of Corpus Christi College in Oxford, exhibited by divers divines for his misgovernment of that house. That having heretofore been questioned at several times before his proper visitor, he had declined his judgement by sinister means and so escaped punishment.
MR. SOLICITOR presents a petition from divers fellows of [f. 81v(A)] Trinity College against Dr. [John] Richardson, their master, for bribery, dilapidations. That upon a former complaint to his Majesty, a reference was made to the Bishop of Ely, which by means of a false certificate he got to be revoked.
Both these causes were referred to a committee appointed to sit in the Star Chamber upon Friday next.
SIR FRANCIS SEYMOUR presented an information of divers abuses of the heralds whereby they did prey both upon the living and the dead, extorting great sums of money upon pretence of a patent to Clarentius, 5[sic] Jac., taking upon them to make warrants in this form, "willing and commanding" [sic], in which manner they had convented in Wiltshire 45 knights, 35 squires, 25 gentlemen [sic], without making difference between gentlemen and clowns if they would give money; appointing the constables to command the justices to assess [sic] them, adding a subpoena of £50 in case any man should make default and a new summons to appear at London. These warrants were read, subscribed, H[enry] St. George, Richmond [herald]; Samson Lennard, Bluemantle [pursuivant]. He moved for a committee to examine this business and to call for [Ralph] Brooke.
SIR ROBERT PHELIPS added nothing but aggravation to that which was formerly spoken. All the proceedings were unjust, disorderly and unreasonable. For the subject to issue money in this time of want, for them to inflict penalties, to command justices by virtue of a patent, which was Sir Giles Mompesson's fault; to awake a sleepy court of the Lord Marshal when there was no law but arbitrary; if this be suffered the subject's liberty is worth nothing. Wishes the preservation of his Majesty's authority, but not by that pretence to make his subjects slaves.
SIR EDWARD COKE. These things that are most general and of greatest authority are fittest to be dealt with in Parliament. That court is erected of late and new dependants added to it. It will be safe for that honourable person and his assistants to know how it may stand with law. The Constable and Marshal had a court 48 Ed. 3. Put a great man in authority and he will never want jurisdiction. The Constable then was a principal man and of the blood royal. Therefore in 13 R. 2, by statute, the Constable and Marshal are restrained from holding plea of anything belonging to the common law. If 2 gentlemen go out of the realm and one kill the other, he may be tried in England by the Constable and Marshal, 13 H. 4. If one be created a nobleman by patent reciting that he was descended of ancient nobility, if this be a false suggestion it is triable at the common law upon a scire facias. In [Thomas] Doughty's case 25 of Eliz., it was questioned before the judges and resolved that an Earl Marshal can do nothing without the Constable and that no commission will serve the turn. The commissioners of the treasury cannot meddle with errors which the law settles upon the Treasurer. The power given to the Lord Chancellor in the [Ex]chequer Chamber cannot be executed by any other. So in this case, if there be a commission in the nature of a Constable's office, it is void.
SIR HENRY POOLE remembered the fees extorted upon funerals, for knights, £10, esquires, £6 13s. 4d., gentlemen £5 [sic].
DR. [ARTHUR] DUCK. The office of the Marshal and the Marshal law anciently used both in this and other kingdoms. My Lord of Arundel's patent gives him power to proceed as Constable and as Earl Marshal.
SIR FRANCIS FANE. The increase of fees upon knighthood.
The whole matter was committed, and Thursday appointed for the committee to sit.
SIR THOMAS WENTWORTH, by occasion of this complaint, [f. 82] desired course might be taken to prevent an abusive clause now usual in patents to command the justices to aid and assist them. They are to execute the laws of the kingdom and ought not to be made subject to every paltry patentee, which is a slavery makes men weary of the office of a justice of peace.
MR. [WILLIAM] NOYE made a report from the committee for repeals and continuances upon the 2 points, viz.:
- 1. The tax demanded for licences. By 3 Ed. 6 all ecclesiastical constitutions concerning Lent were abrogated; that was repealed 10 Marie, the repeal taken away 10 Jacobi, so Lent stands a mere temporal constitution. 50 Eliz. divers politic institutions for the navy, among which Lent is enjoined and Wednesday made a fish day, which law was repealed 270 Eliz., but the law of repeal now stands discontinued. The 25 H. 8 gives th[e] Archbishop power to grant dispensations and other penalties appointed by a certain day to be paid; but the committee thought not fit to meddle with that law, because no man need to take a dispensation for Lent.
- 2. If those laws for cloth should presently be repealed, it would be very prejudicial to Suffolk and Kent, who are excepted out of the patent and dispensation, for none of the cloths are carried over unwrought. Therefore, the committee thinks better the laws should stand and the dispensation to be commended as a grievance.
MR. [WILLIAM] NOYE desired to speak in the question concerning the pretermitted customs. As touching the king's profit, his opinion was it was more profitable to take the old rate than this increase. 21 Ed. 3 demi-mark due; complaint was made of 40[s.] imposed, and records vouched that the noble yielded more benefit than the 40[s.]. By raising the fines upon alienations about 40 years since, the king was a loser. That lords of manors take more money that assess but small fines.
To the point of right that cloth could not be charged in the statute of tunnage and poundage, he gave these reasons:
- 1. From the words. By no law cloth interpreted by the name of wool. If a man bequeath all his wool, it shall not extend to cloth. It is a new species. There are 30 laws concerning wool, none of them extend to cloth. 14 Ed. 3 for importing. 2 marks of bullion for every cloth transported. 4 Ed. 4 assignment of ports where wool should be transported. 6 H. 8 against selling of coloured wool out of markets. In the statute now made against the transportation of wools, there was no thought it might extend to cloth.
- 2. From the context. The distinct enumeration of divers species in the first part of the law (wool, woolfells, leather and cloth) and a new grant upon wool. 12 Ed. 1 title "Grant" in Fitzherbert, a manor with advowson appendant. If a man grant the manor, the advowson passes; but if a fine be acknowledged de manerio ac etiam de advocatone and in the record only manerium, it was resolved that the advowson did not pass, being expressed in the grant and not in the record it was as if it had been excepted.
- [f. 82v] 3. The constant use of interpretation in this particular case. 29 Ed. 3, 40s. upon wool, the sized cloths 14d. 2 H. 5 wool 43s., sized cloth 14d. He confesses there was custom due at the common law, and the accounts of the collectors were taken in the Pipe, but reduced to certainty by common consent. 3 [sic] Ed. 3 14d. first imposed by ordinance, but afterwards, 27 Ed. 3, established by Parliament.
- 4. The laws have been curious to distinguish things of a nearer nature. 11 H. 1 [sic] was made that cloth cut out into garments might be customable as well as whole cloth. A commission 2 H. 7 reciting this law and giving directions to take it upon garments in the charter. 2nd, concerning rates: stockings, garments and cloth distinguished, and yet all made of wool. There was a custom and subsidy. He pleaded they ought not to pay any custom for Cornish hair, which was allowed by the judgement and resolution of that court, and a decree made for the discharge.
After these reasons he came to answer objections:
It was declared to be law in Queen Mary's time, and there is no medium between xiiid. and xs.
28 May, 4 and 5 Philip and Mary, that declaration was made. The ordinance recites there was great store of wool in the kingdom which yet did not yield so great a revenue. Therefore, the state thought fit (to the intent the crown might receive some convenient recompense) to assess (without alleging any law) vis. viiid. upon a short cloth and the like upon a sorting cloth. Calais was besieged the first of June [sic], rendered the fifth. This ordinance, the 28th of May, occasioned by the cessation of the staple and the [blank] borne because some laws in the Netherlands to the prejudice of the vent of our cloth were by King Philip's means taken away thence.
In first of the Queen the Parliament could mean nothing unless it meant to charge cloth, for no wool was then transported.
There was then a treaty for the restitution of Calais and in the same Parliament there was a subsidy upon other staple commodities.
14 Eliz., [c.] 10, appoint the assize of kerseys that the Queen might not be deceived in her custom and subsidy.
It appears by 27 of Ed. 3 that there is a subsidy of alnage due upon cloth besides other custom.
SIR EDWARD COKE, besides some things formerly spoken, added that in 31 E. [sic] 6 a subsidy was granted upon all wares, goods and merchandise; at the next session the Parliament complained because cloth was not excepted and propounded 6 reasons for the exception:
- 1. That as it was it impoverished the poor people.
- 2. Did hinder vent.
- 3. Increase idleness.
- 4. Destroy the navy.
- 5. Brought wool to no value.
- 6. Undid the wool growers, and ever since it has been excepted upon these reasons.
20 Jac., being Attorney [General], he was appointed to search in the Council chest for something concerning the alnage and found a resolution touching alnage and measuring of drapery and other stuffs: [f. 83] that all new drapery wholly of wool, as frizadoes and such like, was to pay subsidy and alnage according to 27 Ed. 3, and within the office of the alnager. The fustian, being made merely of other stuff or mixed, is not to be charged. When the King granted the measuring of linen cloth and canvas, it was held to be extortion. The narrow stuffs of Norwich not grantable because if it be undone to be measured, it hurts the stuff and it cannot be made up again.
It was moved that it might be put to the question whether a grievance or no. But the House thought better to appoint a time that no man might be prevented that would speak in defence of it, and Saturday was set by order.
IX. DIARY OF SIR WALTER EARLE, BL, ADD. MS 18,597
Wednesday, the 28th of April
Sir John Townshend's, Sir Ferdinando Gorges's, the Gold Wyre Drawers', the Apothecaries' patents censured for grievances. A committee to draw up the heads of these and all other grievances censured the last Parliament.
Bill for free fishing reported, put to engrossing.
A petition of the fellows of Corpus Christi College in Oxford against Dr. [Thomas] Anyan, their president.
The like of Dr. [Toby] Waterhouse against Dr. [John] Richardson, master of Trinity College in Cambridge.
A select committee appointed to consider of those petitions and of the petition against the schoolmaster of Eye [f. 165] in Suffolk, and of late corruptions in religion and learning.
SIR FRANCIS SEYMOUR complained that [Henry] St. George and Bluemantle, heralds-at-arms, the last summer summoned the gentlemen in Wiltshire in the King's name, and demanded of knights, 44s. [sic], of esquires, 35s., of gentlemen, 25s. Sent a warrant for all defaulters to appear in London, subpoena £50.
SIR EDWARD COKE. The Marshal's Court lately erected. 48 E. 3. 13 H. 4 if two fight beyond sea, he may execute, etc. No matter concerning or depending on common law to be handled before him. In descents a scire facias or quo warranto. 25 Eliz. Sir Francis Drake for executing [Thomas] Doughty at sea. It is dangerous for the Earl Marshal or his assessors to determine any such matter.
Ordered, that a select committee be appointed to hear complaints, etc. concerning the office of heralds, etc., to send for their books, etc., to consider of all other patents that command attendance of justices, etc.
Bill of continuance of statutes passed to engrossing.
Pretermitted custom, the case argued.
MR. [WILLIAM] NOYE. More profit to the King not to take it than to take it. 1 Jac. [f. 165v] the act of tunnage and poundage, cloth is not included in the act; ergo, no more due than before. Not due by law; cloth never included in any statute. They are of several species. 30 laws name wool, none of them extend to cloth. 4 E. 4; 6 H. 8 coloured wool in market; cloth excepted, being one of 4 species in 10 Jac. 12 E. 1 title "Grants" in Fitzherbert. It has always been so construed. 29 E. 3, 40s. for a sack of wool for 6 years. 3 cloths should have made a sack. 30 E. 3 of every cloth 14d. received in custom. 5 R. 2, 2 H. 5, 43s. a sack of wool; for every cloth of assize 14d. 27 E. 3 of cloth no custom.
X. JOURNAL OF SIR SIMONDS D'EWES, BL, HARL. MS 159
April 280, Wednesday
An act to enable [blank] Middlecott to erect a school and hospital in the county of Lincoln. Passed.
An act for the naturalizing of [blank] Little, merchant, born of English parents. Passed.
A report from the committee of grievances with 5 particulars were [sic] presented:
- 1. The Lord Treasurer and his cause.
- 2. Sir Ferdinando Gorges's patent, which was rendered by composition, and liberty given to all men to fish freely and take such necessary means of timber and wood as should be convenient both for drying their fish and repairing their ships and boats.
- 3. Sir John Townshend's patent for concealed titles, hospitals.
- 4. [Matthias] Fowle's patent about gold and silver wire, which was to the undoing and destroying of the [Gold] Wyre Drawers.
- 5. The patent of the Apothecaries, by which they separated themselves from the Grocers.
A subcommittee was appointed to draw up these and such other grievances as should be presented in a parliamentary course to be presented to his Majesty and to add thereunto such as had been complained of Jacobi 120, 170.
An act for the restitution in blood of Carew Ralegh, son to Sir Walter Ralegh, late attainted of high treason. Passed.
A motion for leave for Sir Philip Carey to go and be examined before the Lords.
A petition presented by some of Corpus Christi College [f. 109] in Oxford against Doctor [Thomas] Anyan, head of that house.
Another petition against Dr. [John] Richardson, master of Trinity College in Cambridge, by Doctor [Toby] Waterhouse.
Another against Simon Dormer, a popish schoolmaster in Suffolk.
A select committee appointed to consider of these and all other of the like nature, tending to the corruption of religion and learning.
A complaint against the heralds and their proceedings, particularly against Bluemantle and [Henry] St. George, and the grievance was conceived to be general to most countries where they came and misbehaved themselves in their offices and extorted upon the subject, etc.
The Earl Marshal and the Constable had once large power in these things by the statute Edwardi 3tii, anno 48, but it was limited, confined and bounded by Parliament. Henrici 4ti, 130, two went out of England into Scotland to fight; the common law would not meddle with them, but one of them being slain, the Constable and the Marshal called the other in question and hanged him for it. Eliz. 250 [Francis] Drake beheaded [Thomas] Doughty at sea and a Constable was fain to be made hac vice to judge of it; deputies could not do it, nor men in loco. No more can these committees of heralds execute the place of the Constable, which by the complaint it seemed they had done in exacting such fees as to have £10 of a knight, 20 nobles of an esquire when they die, though they be not there to execute any office, and this they pretended to do by virtue of an order in the Marshal's Court.
DR. [ARTHUR] DUCK said this Lord Marshal had power under the Great Seal, both of Marshal and Constable, and was settling an order to reduce these fees of the heralds a little before the Parliament began, but upon the noise thereof left them to it.
SIR THOMAS WENTWORTH spoke against that clause in the heralds' patents that the justice of the peace shall be aiding and assisting to them. Do it and it is against law, which by oath they are bound to maintain. Do it not and they are brought into the Star Chamber.
A committee appointed to consider of these and the like abuses.
A report from the continuance of statutes, where the patents of dispensation for exportation of undressed white cloths above such a value (the Earl of Cumberland's patent) was judged a grievance.
The pretermitted customs disputed again.
MR. [WILLIAM] NOYE. There is oftentimes a case without a question. This is a question without a case. It were sure more profitable for the King to leave it than take it, as lords of copyholds lose nothing by taking of small fines; they come thicker. But to the point of law, whether it be of right included in the statute of tunnage and poundage Jacobi 10, and so to [f. 109v] be levied by law or no, and whether it was due by law before [Edmund] Nicholson's project or no, he was of opinion it was not. For though the king had 40s. upon a sack of wool, yet cloth was another species from wool and never comprised under that name in any statute; otherwise cloth might not be exported because wool may not. Besides the words of that statute charge not cloth, the customers' accounts charge it not. Edward 30, 290, there is 40s. laid upon a sack of wool and but only 14d. upon a cloth. Henrici 5ti, 20, 43s. upon a sack of wool and but 14d. upon a cloth. Edwardi 3tii, 270, a writ going out for the 14d. gives this reason, because the King loses his custom upon wool, it being now made into cloth. Henrici 4ti, 110, there is a complaint of cutting out cloth into garments and so they would export them and pay no custom for them, because cloth [sic] paid none; so garments were brought under the statute of poundage and cloth never. Philippi et Mariae, anno 40 et 50, there is the very invention and project of Mr. Nicholson; that statute assesses 6s. 8d. upon a short cloth but declares it not to be due by the statute of anno 10 Mariae, and so much was then given upon recompense for a great loss. Calais, where the staple had been, was then newly lost, and besides King Philip caused good vent for the cloth in the Netherlands.
SIR EDWARD COKE states the question. The king has an interest in the wool. That made up into cloth, whether shall the king have the same proportion or no. Nicholson says yea. We deny it, sub specie debiti, as he affirms it. The statute Jacobi 10, by which it is demanded, excludes cloth from poundage and sets 33s. 4d. upon a sack of wool. Henrici 6ti, 310, a subsidy was granted upon all goods and merchandises; cloth was herein included, but the Commons desired by all means that cloth might be excepted for 6 several reasons: the vent would be hindered; the poor impoverished; idleness increased; the navy not set on work; the wools would grow of no value; and wool grower[s] would be undone. Henrici 4ti, 110, the stranger made garments of our cloth; the statute says they were not customable because cloth was not; ergo, that act of Parliament was made to bring them in. Edwardi 3tii, 270, rot. 40, there is a writ to this very purpose, terminis terminantibus. Vide Jacobi 20, Hilarii termino; there is a resolution of the judges to the lords of the Council about imposition upon new draperies made of wool. They all agreed nothing was due upon them. Ergo, neither upon cloth.
This cause, though judged clear in the opinion of the House, yet the resolution, by question, was respited to see if the King's counsel could evict the contrary and time was given them until Saturday after, then not coming until Monday following.