Historical Collections of Private Passages of State: Volume 2, 1629-38. Originally published by D Browne, London, 1721.
This free content was digitised by double rekeying. All rights reserved.
Mr. St. John's Argument.
May it please your Lordships,
Pasc. 13 Caros a Scire fac ' issued to the Sheriff of Buckingham, reciting That whereas several sums of money mentioned in a Schedule to that Writ annexed, by a Writ under the Great Seal of England, dated 4 August, 11. Car. Cessed upon several Persons for providing a Ship of War were not paid, and that upon a Certiorare dated 9 Martii, 13 Car. these sums and the several Persons upon whom they were assessed, were certified into the Chancery, and from thence by Mittimus dated 5 Maii last were sent into the Exchequer, that Process might be thence issued against these Defaulters.
Thereupon the Sheriff is commanded, quod scire saceret, to those several Persons to appear in the Exchequer, Octob. Trin. 13 Car. to shew the cause why they should not pay those sums of money assessed upon them; the Sheriff returned quod scire secit, John Hampden, Esq; who was assessed at twenty Shillings, and hath not paid it; Mr. Hampden hath appeared and hath demanded Oyer of the Scire fac ' of the Schedule, the Writ dated 4 August, the Certiorare, and the Mittimus and of their several returns, and hath thereupon demurred in Law.
The Writ dated 4 August. 11 Car. because it is the ground of the issuing forth of the Scire fac ' and so by necessary consequence, as that which first occasioned any process against him, it will be the subject from whence will be fetched all that shall be said either for or against my Client; I will endeavour by breaking it into parts, more clearly to present it to your Lordships view.
The thing Commanded is, that this County shall provide a Ship of War of 450 Tun, with 180 Men, Guns, Gunpowder, double Tackling, Victuals, and all other things necessary, and to bring her to Portsmouth by the first of March following, and from that time to provide her of Victuals, Mariners-wages, and all other necessaries for 26 Weeks; for the effecting of this there is power given to assess each Person in the Country Secund. Stat. & facultates, and to bring these Sesses by distress, & quosrebelles invenerint to imprison their Persons.
My Lords, If the Writ had stayed here, and gone no further, the Command, though full in words, yet had been void in Law, because as yet it appears not for what end this Ship was to be provided 42 ass. Pl. a Commission to seize mens goods notoriously suspected of Fellons before Conviction adjudged void, because therefore the Command without Cause shewen, and that sufficient in Law too would be void; in the second place therefore they are there set down to be these, pro defensione Regni, Tuitione maris, securitate subditor. & salva conductione Navium, both outward and inward, the Sea being infested with Pirates, and more Shipping being daily prepared ad Regnum Gravandum, these are the ends.
First, From custom and continued use in these words, that the Sea per gentem anglicanam ab volim defendi consuevit; and secondly, this use proved to be from a common ground of equity, in these words, Onus defensionis quodomnes tangit, per omnes debet supportari, and the rule of equity backt by the Common-Law in these words, prout per legem & consuetudinem Regni Angliæ fieri consuevit : the argument stands thus, all have benefit by defence of the Realm, and therefore by the Law the Charge ought to be born by all.
Thence it is further inforced that every man even by his allegiance is bound to contribute to this charge, the Command being in side & legeancia quibus nobis tenemini : of these parts the Writs consist, which all being put together, in brief declare the scope and end of the issuing forth thereof, to be the defence and safety of the Kingdom; a thing so necessary, that it must needs be legal, for it is too near and too narrow a conceit of the Wisdom and Policy of the Law, to think that whilst the care thereof should be consined only to the preservation of the general members of the body politique, from the wrongs and pressures that might be offered from other to the fellow members, that in the mean time it should leave the whole to the violence and will of Enemies, so that whilst each Subject considered as a part of the whole hath a known and sure estate in Lands and real Property in his Goods, not to be impeached by any whatsoever within the Realm; yet considered all together, and as they make up the unum Compositum, they should have in them only precariam possessionem, or Tenancy at Will, in regard of Foreigners.
My Lords, This cannot be, for the Law is so careful herein, that even afar off it foresees and prevents all damages in this kind, and that is the reason that an Alien, though a friend, hath not Capacity to purchase any Land within the Realm: and if the Law be so quick-sighted, as that to prevent but possibilities of danger, it keeps such strangers from having any Land within the Realm which desire to come by it peaceably, and for valuable consideration; by this we may easily see the great care it hath to prevent apparent dangers, which usually proceed from open force and violence; which further appears by the greatness of the punishment which the Law inflicts upon Offenders in this kind, which is High-treason, of all other the greatest, 13 Eliz. Dy. 298. Story conspired beyond Sea with a Foreign State to invade the Realm, and though nothing was attempted yet it is adjudged High-treason: and 21 E. 3. fol. 23. and 45 E. 3. 25. a man killed a Captain that was going with twenty men at Arms to the King in his Wars, and adjudged to be High Treason, and so by some opinions in Print, it is to burn or sink any of the King's Ships. By the greatness of the punishment for breach of the negative part of the Law we might understand the peremptoriness and force of the affirmative part; so that, my Lords, in this case the question is not de Re, for by the Law the safety of the Realm is to be provided, for Salus Populi Suprema Lex; neither is the question de Personis, either in respect of the Persons, who are to bear the charge of it, or of the Persons whom the Law hath intrusted with the care and power of this Common defence. For the first, that is, the persons that are to bear this Charge, that in the Writ quod omnes tangit per omnes debet supportari, the reasons in the Writ are weighty and agreeable to the Rule both of the Common and Civil Law, Qui sentit commodum sentire debet & onus; so that I conceive the burthen lies upon all in respect of our bona nature, our Lives and Persons be equally as dear to one as to another, in respect of our bona fortunæ,so secundum statutum & facultates, because the greater the state and means of Livelihood, the greater the benefit by the defence; the Law in this Case of defence against the Invasions of living Enemies, being the same with that against the Invasions of our Soil and Ground, by the Inundations and out-rages of the Sea and Fresh Water; for by the Law, as appears by the Commissions of Sewers, as well before the Statute of 28 H. 8. as since, to the repairing of a Bank or Causey, River, or other Sewer, all are chargeable that have thereby defensionem, commodum, vel salvationem, qualitercunque; all that have defence must be sessed, the Assesses must be equally distributed, and therefore laid upon every Man within the level pro rata portionis Tenure sue, seu pro quantitate commune pasture vel piscaried, the more Land, Common, or Benefit each Man hath, the greater Benefit: And according to the proportion the Assess must be set: So that, my Lords, in the second place the question will not be whether my Client by Law be exempted from the Charge of the defence of the Realm; for with other His Majesties Subjects he ought to bear the common Burthen, and more or less may be thereof laid upon him proportionable to his Estate and Means of Livelihood.
Neither thirdly, is there any question to be made but the Law hath intrusted the Person of His Royal Majesty with the care of this Defence: the Defence and Protection which we have in our Bodies, Lands and Goods against any within the Realm, we know it is from him; for all Jurisdiction Legal, both Ecclesiastical and Civil, which defends us in them is wholly in His Majesty; the same it is in case of Forreign Defence, even by the Jus Gentium, as appears in the Text by the Peoples desiring that they might be like all Nations, by having one that might judge them, and go out before them, and fight their Battles.
That the King (and that legally) calleth the Kingdom Regnum nostrum, and every City and great Town Civitatem & Villam no ram, quoad proprietatem, it cannot be, because that it is in the several Land-owners; it must be so therefore principally in this respect, quoad protectionem & defensionem : neither hath the Law invested the Crown with this height of Sovereignty, only as an Honorarium for the greater Splendor of it; but likewise as a Duty of the Crown, or pars Ministerii for the good and safety of the Realm, which in many of the ancient Commissions of the Sewers before the Statute of 23 H. 8. is thus expressed, That the King ratione Regi Dignitatis & per Juramentumest astrictus ad providendum Salvationi Regnicirucumquaq; So that both in Honour, and by his Oath, he is bound to provide for the safety of the Realm, and that circumquaque.
Neither hath the Law only intrusted the care of the defence to His Majesty, but it hath likewise, secondly, put the Armatam potestat ' and means of defence wholly in His Hands; for when the Enemy is by Him discovered, and declared, it is not in the power of the Subject to order the way and means of defence, either by Sea or by Land, according as they shall think fit; for no Man, without Commission or special License from His Majesty, can set forth any Ships to Sea for that purpose; neither can any Man, without such Commission or License, unless upon sudden coming of Enemies, erect a Fort, Castle or Bulwark, though upon his own ground; neither, but upon some such emergent cause, is it lawful for any Subject, without special Commission, to arm or draw together any Troops or Companies of Souldiers, or to make any general Collections of Money of any of His Majesties Subjects, though with their consent.
Neither in the third place is His Majesty armed only with this Primitive Prerogative Power of Generalissimo, and Commander in Chief, that none can advance towards the Enemy until He gives the Signal, nor in other manner than according to His direction; but likewise with all other Powers requisite for the full execution of all things incident to so high a Place, as well in times of eminent danger, as of actual War. The Sheriff of each County, who is but His Majesties Minister, he hath the posse Comitatus; and therefore it must needs follow, that the posse Regni is in Himself.
So that as the care and provision of the Law of England extends in the first place to Forreign Defence, and secondly lays the burthen upon all, and for ought I have to say against it, it maketh the quantity of each Mans Estate the Rule whereby this burthen is to be equally apportioned upon each person; so likewise hath it in the third place made His Majesty the sole Judge of dangers from Forreigners, and when and how the same are to be prevented, and to come nearer, hath given him power, by Writ under the Great Seal of England, to command the Inhabitants of each County to provide Shipping for the defence of the Kingdom, and may by Law compel the doing thereof.
So that, my Lords, as I still conceive the question will not be de persona, in whom the Suprema potestas of giving the Authorities or Powers to the Sheriff, which are mentioned in this Writ, doth lie, for that it is in the King; but the question is only de modo, by what Medium or Method this Supreme Power, which is in His Majesty, doth infuse and let out it self into this particular; and whether or no in this Cause such of them have rightly accommodated, and applyed this Power unto this Writ in the intended way of defence; for the Law of England, for the applying of that Supreme Power which it hath setled in His Majesty to the particular cause and occasions that fall out, hath set set down Methods and known Rules, which are necessary to be observed.
In His Majesty there is a two-fold Power, voluntas, or potestas interna, or naturalis; externa, or legalis, which by all the Judges of England, 2 R. 3. fo. II. is expressed per voluntatem Regis in Camera, and voluntatem Regis per Legem.
My Lords, the Forms and Rules of Law are not observed; this Supreme Power not working per Media, it remains still in Himself as voluntas Regis interna, and operates not to the good and relief of the Subject that standeth in need.
His Majesty is the Fountain of Bounty; but a Grant of Lands without Letters Patents transfers no Estate out of the King to the Patentee, nor by Letters Patents, but by such words as the Law hath prescribed.
His Majesty is the Fountain of Justice; and though all Justice which is done within the Realm flows from this Fountain, yet it must run in certain and known Channels: an Assise in the Kings-Bench, or an Appeal of Death in the Common-Pleas, are Coram non Judice, though the Writ be His Majesties Command; and so of the several Jurisdictions of each Court. The justice whereby all Felons and Traitors are put to death, proceeds from His Majesty; but if a Writ of Execution of a Traytor or Felon be awarded by His Majesty, without Appeal or Indictment preceding, an Appeal of Death will lye by the Heir against the Executioner, if the Process be Legal, and in a right Court; yet I conceive, that His Majesty alone, without assistance of the Judges of the Court, cannot give Judgment; I know that King John, H. 3. and other Kings have sitten in the Kings-Bench, and in the Exchequer; but for ought appears they were assisted by their Judges. This I ground upon the Book-Case of 2 R. 3. fo. 10, & 11.
Where the Party is to make Fine and Ransome at the King's Will and Pleasure, this Fine, by the opinion of the Judges. of England, must be set by the Judges before whom the Party was convicted, and cannot be set by the King: the words of the Book are thus; In terminis, non per Regem per se in Camera sua nec aliter coram senisi per Justitiarios suos; & hæc estvoluntas Regis, scilicet per Justitiarios suos & per Legem suam to do it.
And as without the assistance of His Judges, who are His setled Councel at Law, His Majesty applies not the Law and Justice in many Cases unto His Subjects; so likewise in other Cases: neither is this sufficient to do it without the assistance of His great Council in Parliament; if an erroneous Judgment was given before the Statute of 27 Eliz in the Kings-Bench, the King could not relieve His grieved Subjects any way but by a Writ of Error in Parliament; neither can He out of Parliament alter the old Laws, nor make new, or make any Naturalizations or Legitimations, nor do some other things; and yet is the Parliament His Majesties Court too, as well as other His Courts of Justice: It's His Majesty that gives Life and Being to that, for He only Summons, Continues, and Dissolves it, and He by His Le Volt enlivens all the Actions of it; and after the dissolution of it, by supporting His Courts of Justice, He keeps them still alive, by putting them in execution: And al-though in the Writ of Wast. and some other Writs, it is called Commune Concilium Regni, in respect that the whole Kingdom is representatively there; and secondly, that the whole Kingdom have access thither in all Things that concern them, other Courts affording relief but in special Causes: And thirdly, in respect that the whole Kingdom is interested in, and receive benefit by the Laws and things there passed; yet it is Concilium Regni no otherwise than the Common Law is Lex terr, that is per Modum Regi whose it is; if I may so term it in a great part, even in point of Interest, as He is the Head of the Common-Wealth, and whose it is wholly in trust for the good of the whole body of the Realm; for He alone is trusted with the execution of it. The Parliament is the Kings Court, and therefore in the Summons the King calls it Parliamentum nostrum; so the Returns of the Knights and Burgesses uod sint ad Parliamentum Domini Regis, Fleta lib. 2. Cap. 2. Ha Rex Curiam suam in Concilio suo in Parliamentis suis; and therefore the Pleadings there which anciently were usual to begin for the most part ueritur Domino Regi, Petitions by private Persons, Supplicavit Domino Regi; though for relief against others, Inquisitions and Venire facias retornable there sometimes coram Domine Rege in Parliamento suo, and sometimes coram Rege & Concilio suo, as appears by infinite Presidents in the Parliament Pleas of E. 1. and E. 2. time, both in the Tower, and many Cases adjourn'd into the Kings-Bench.
The Patents past by authority of Parliament, and likewise' the Acts of Parliament had anciently so much of the Kings Name and Stile in them, that, as it appears in the Princes Case in the 8th Report, it was a hard matter otherwise than by Circumstances to know whether they had any thing of the Parliament in them or not; and from those times, even until now, the alteration is nothing in substance, for the Acts for the most part are thus; It is Enacted by Our Sovereign Lord the King, with the Assent of the Lords Spiritual and Temporal, and Commons; the King both then and still is the Pars Agens, the rest are but Consentientes. My Lords, to apply all to the Case in question by the Cases before cited, it appears that what was done in Parliament by the Law-phrase and Dialect, is said to be done by the King; for as the Civilians say of the Senate, that it is Pars Corporis Casaris, so we of the Parliament, that it is Pars Corporis Regis; the Maxime of Justinian, uod principi placet Legis vim habet. It is agreed by Mr. Bracton, and all the Civilians; and yet both he and many of them say, That those must pass the Senate though done in the Senate, yet they be Placita Principis; so is it, although when we speak ut Vulgus, we say Fines are said to be set, and other things to be done by the Kings Court, yet the Law faith, that they be done and set by the King; by the same reason therefore, though when we speak ut Vulgus we say such a thing is done by the Parliament, yet in the Legal Account these are done by the King, the Medium or way of doing of them with assistance or consent of His great Council in Parliament.
The second thing which I observe is this, by the Cases before cited it appears, that without the assistance in Parliament, His Majesty cannot in many Cases communicate either His Justice or Power unto His Subjects.
Hence thirdly it necessarily follows, as I conceive, that the Kingly Dignity doth most operate and manifest it self there, which was the opinion of all the Judges of England declared in a Parliament 34 H. 8. as appears by Crompton jurisd. ful. 10. who by the Kings Commandment meeting together about Point of Priviledge of Parliament, the King afterwards in declaring their opinion doth it in part of the Case in these words: 'Further We be informed by 'Our Judges, that we at no time stand so highly in Our Estate-'Royal as in time of Parliament, wherein We as Head, and you as 'Members, are conjoyned and knit together into one Body-Politick; which His Declaration of it shews likewise that it was the Kings own Opinion, That He at no time stood so highly in His Estate-Royal as in time of Parliament: It appears not by the Record, that this Writ which giveth power to sell and alter the property of the Defendants Goods, issued from His Majesty sitting in this His Estate-Royal in Parliament; and therefore cannot be intended by your Lordships and the Court so to do; if therefore it hath issued from His Majesty in the Chancery, or otherwise than in Parliament, where he stands in that height of Sovereignty and perfection, that He hath not so much as a Posse Nocere; the question is, whether it be erroneously issued yea or no? My Lords, I have now put the Case, which although in this particular Case it concerns the Defendant only, yet in consequence, as that appears, it concerns both His Majesty and the whole State, and that in matters of the highest nature possible: His Majesty is concerned in the way and manner of execution of the highest and greatest trust which the Law hath reposed in Him, the safety and the preservation of the Kingdom; the Subject is concerned in that wherein he is most tender, in the property of what he hath.
My Lords, the greatness and weight of the Case puts me into this 'Dilemma, not to argue it were to deny that full Submission to the command of some of your Lordships as is fitting; neither should I do my Clyent that service which he expects: If I proceed, the case is too weighty and too great for me to argue; but I know the safest way is obedience, and that the Court cannot expect much from me. Having therefore already put the Case, I will go on in the next place to state it, and afterwards to argue it; the Question being concerning the Validity of the Command in the Writs, which extends so far as to the altering of the property of the Subjects Goods, without their consent; and yet this being for a thing so necessary as the defence of the Kingdom both at Land and Sea, for the ends of the issuing forth of the Writ, as by that appears, are prodefensione Regni, tuitione Maris, Securitat' subditor' salva Conductione vium both outward and inward. In the stating of this great Question I will in the first place endeavour to present your Lordships these known and undoubted ways and means, whereby the Law hath provided for the defence of the Realm both at Land and Sea without the way in the Writ; the first whereof is by Tenures of Land: The Services which grow due hereby are of two sorts.
The Kings of this Realms, as they are the Head of the Common-Wealth in general, so are they are the Head and Root from whence all Tenures spring; for, as our Books agree, all the Land within the Realm is either held mediately or immediately of the Crown: as therefore the Law hath appropriated the defence of the Kingdom to the Kings thereof, so hath it, as one of the principal ways for the effectig thereof, intrusted them with the reservations of such Services as might serve for that purpose.
Amongst which, intending first to speak of Land-Service, I will begin with the Tenures by Knights-Service; every man that holds by this Service from a whole Knights-Fee to any part of it, ought to find a Man competently armed for the Wars: Neither doth the finding of Arms satisfie this Tenure; for he that holds by a whole Knights Fee, ought to be forty days in the Service, and he that holds by the Moiety of a Knights Fee, twenty days, and so in proportion.
By the Books of the Knights Fee of Henry 2. E. I. and H. 6. time in the Exchequer, it appears, that there were many Thousand Knights Fees held of the Crown; and in the Red Book it is said, That it was in ore omnium: That in the Conquerors time there were 30000 held of Him, some since have computed them to 60002, which perhaps may be with addition of those that are held of common Persons, which are not of those upon which I shall insist.
But if may be objected, that in respect that these Services are reserved by the King, that therefore they were not Instituted only for the defence of the Realm, but may be exacted for Forriegn Wars, or other-where for His Majesties peculiar Service, as he shall think fit, which may be inforced both from the name which our old Books and Deeds stile this Service by, when due to the Crown, that is Forinsecum Servitium: And secondly from the use thereof; it having been performed in Normandy, Gascoigne, Tholouse, and Ireland, as appears by the Red Book, and many Cases put together in the Institutes in the Chapter of Escuage.
To the first Objection of the Name, the Answer is clear; for anciently when those that held immediately of the Crown by this Service, did enseoff others of the Land so held, desiring to free themselves of the burthen of this Service; besides the Services which they reserved to themselves, they likewise commonly in the Conveyance made provision for their own Acquittal against the King, and the Feoffee took the whole Burthen therefore upon himself: And therefore in the Book of Knights Fees of H. 2. time in so many Hundred Certificates of those that held immediately of the King, William London of Wiltshire certifies thus: Quod nullum Militem habeo feoffatum, sed debeo defendere Feodum meum per Servitium Corporis mei; of this nature are three or four others: All the left after certifies by how many Knights Fees he holds, then likewise he certifies that defendit, &c. against the King, by such and such Milites Feoffatos; and in these Deeds of Feoffment, after the reservation to the offer, was this Clause, & faciend' inde, sometimes forinsecum servitium, sometimes Regale servitium. Baction lib. 2. so. 36, 37. and Fleta lib. 3. Cap. 14 say that it is called Regale Servitium, quia est Servititum Dominie Regis; and by them Regale Servitium, and Servitium Domini Regis, are all but one and the same thing; to that therefore I shall need give no further answer.
By the same Authors it is called Forinsecum Servitium, quica capitur foris, five extra Servitium, quod fit Domino Captiali; and that is the meaning of the word, and that is called Forinsecum, in regard that the Service is to be done foris, that is, out of the Kingdom, is cleared to your Lordships by these Cases, P. 49. H. 3. Com' P.. 31. E. 1. Ro. 32. Dor. Com' Hill 33 E I. Ro. 52. Dor. So. Cornage, which we know is to wind a Horn within the Realm; in all those three Cases is called Servitium Forinsecum Domini Regis Cornagii; and Castle-Gard within the Country of Nortbumberland, at the Castle of Bamburgh, called Forinsecum Servitium Domini Regis.
For the present I shall give answer thereunto but in part, by telling your Lordships, without making proof of it as yet, that Esimage, which is all the penalty that lies upon the Tenant for his default, cannot be assessed but in Parliament; which if it be so proved that the King cannot command this Service otherwise than for the good and defence of the Realm, in regard that if it be otherwises,no Escunge can be assessed without consent in Parliament, which likewise by intendment according to the good that the Kingdom is likely to receive by the Service, will proportionably lessen or encreate the Escuage. My Lords, that this Service was instituted for the defence of the Realm, appears by the care which the Law hath always taken for the encreate and preservation of these Services; so that if the Lord purchase part of the Land, yet the whole Service remains; which being entire, and to be done by the Body of a Man, in that of being a Steward or Bailiff, or other private Service, makes an extinguishment of the whole.
The Authorities in this point are many in the Statute of Mortmain 7 E. 1. The mischief by conveying Land to Houses of Religion, is there expressed to be quod Servitia que ex hujusmod feodis debentur, & que and defensionem Regni ab initio provisa fuerint, indebite subtrabuntur; and besides the Declaration, that they are for defence of the Realm, that Statute likewise provides for the increate of them; for if the Lord enter not within the year and day after the Feoffment, the King is to enter; and as the words of the Statute are, Alios inde Feoffavimus per certa Servitia nobis inde ad defensinem Regni nostri facienda, the words are observable per Servitia nobis inde facienda; for though the Service be to be done to the King, yet it must be so done to the King as it be ad defensionem Regni.
This explains the Charter of H. I. Enrolled in the Red Book in the Chequer, and cited in Matthew Paris, in the first Lease of H. I. Reign, where the King frees Kinghts-Service Land from all Geldes and Taxes, that being eased of this Burthen, apti & parati sint ad Servitium meum, & ad defensionem Regni mei: In the Black Book in the Chequer fo. 3. Scutage defined, ut imminente in Regnum hostium machinatione, it is then due: So Bracton in his second Book fo. 36, 37.
That they are so propter exercitum, & patriœ tutionem, and to be performed certis temporibus cum casus & necessitas evenerit, Britton fo. 162. 6. les Fees de Chartre fuerunt purveus al defense de nostre Realme.
For the further clearing of what is said already, and what I am to add, it is observable, that those Services are not created ex provisione hominis, but ex provisione Legis; for as it is in 33 H. 6, 7. & 6 Report fo. 7. Wheelers Case, and in the 9th Report fo. 123. Lawes Case; if the King grants Lands without reserving any Service at all, or absq; aliquo inde reddendo, the Patentee shall hold the Land by Knights-Service in Capite; the Books of 24 E. 3. 65. Stamf. Prerog. fo. Io. Instit. pl. 73. said, That the first Kings of this Realm had all the Lands of it in their own Hands; which appears likewise by this, that all the Land within the Kingdom is held mediately or immediately of the Crown; in the transferring of those Lands to the several Inhabitants, we see by the Cases before cited, that the care and Provision of Law was, that all should by Tenure of the Crown be made liable to the defence of the Kingdom: I shall therefore shew briefly how the Kings of this Realm have excuted the trust for the defence both at Land and Sea.
And first a little further to prosecute the Land-Service; because the Tenures by Knights-Service tye the Tenant only to forty days Service, and that to the defence of the Realm only in the general; they therefore reserved divers other Tenures for particular, and certain Services as grand Serjeances; some whereof, as in the Institutes fo. 106. is observed, were for Service of Honour in time of Peace, and some for Military Service; of which last sort, as appears in the Book of Serjeanees in the Chequer, and many Rolls of them in the Tally-Office; some whereof were to carry the King's Banner, some to summon the Tenants ad exercitum, some to be of the Vantguard, some of the Rear, some to serve in Wales some in Scotland, some infraquatnor Maria, some infraquatuor portus Angliœ; of these are Services of all sorts necessary for an Army, and in respect of the multitude of these Military Serjeances over the others as forgetting them, Britton. fo. 164. in his definition of grand Serjeancy faith, That they are pur defence del Relme; & Fleta lib. 3. Cap 16. Magnœ Serjanci& Regem tantum respiciunt & patriœ defensionem. Besides, the grand Serjances of this nature likewise are the Tenures by Cornage to give warning of the Enemies coming into the Kingdom, and the Tenures by Castle-Guard; these by Lit. III. were to defend the Castles when the Enemy enters the Realm, which in ancient times were Forts and Bulwarks of the Realm; which in ancient times were Forts and Bulwarks of the Realm; whereof, as Mr.Cambden Pag. 815. observes, there were 1115 in H. 2d's time, whereof a great part, and especially such as were upon the Sea-Coasts, and Frontiers of Scotland and Wales, the Places of greatest danger, were the Kings; and besides those Grand Serjeances, which were to be performed by the Bodies of Men, there are Petty Serjeances for the finding of Armor of all forts for the Wars.
My Lords, that the former Kings did execute this power of Tenures for the defence of the Realm, according to the Trust by the Law reposed in them, appears further in this, that in the Places of greatest danger there were ever most of them.
All along the Sea-Coasts of Kent and Suffex, nearest of all others to France, are the five Ports, who besides their Sea-Service have all Jurisdiction within themselves, that the Inhabitants for weakning of those Ports might not be compelled to travel out of them, for any matters of Justice, and divers other Priviledges, both to invite the People to live there, and to incourage them to the defence of those Places; and Dover-Castle, the Key of the Kingdom, as of greatest Consequence, so hath it zoo Tenures by Castle Guard, wanting very few, besides divers Tenures by Castle Guard, wanting very few, besides divers Tenures for repairing of the Castle; which appears by the Record called the Quire of Dover, remaining in the Chequer; which that it is of Record, and determines the Services of the five Ports, as Domesday doth the Tenures of Ancient Demesne, appears Int. Coram 27 E. 1. Rot. 35. and by another Record added to that Quire of Dover, 20 E. 4. it likewise appears, that in times of War the King is to maintain in that Castle 1000 Foot and 100 Horse for the defence of it.
Next to come to the Borders of Scotland, there we find the Franchise of the Bishoprick of Durham instituted likewise for the defence of those parts, which William the Conqueror, as Malmesbury fo. 157. observes, first made a County Palat. and Walker Bishop thereof ducem pariter & Episcopum ut refrænaret rebellionem gentes gladio & reformaret mores eloquio.
And besides this in all the Counties of Cumberland, Northumberland, and Westmoreland, are more Tenures for the defence of the Realm than any of the Inland Counties, and those likewise most proper for Borders Coram Pat. 31. E. 1. Ro. 32 Dor. It's there found by Inquisition returned into the Chequer that every Lord of a Town within the County of Northumberland held by Cornage; when the Scots entred the Realm Mr.Cambden in his Brit. Pag. 794.and 799. mentioning the great number of Petty Baronies and Castles all along those Marches, which Britton fol. 87. and institutes fol. 73. say were instituted for the defence of the Realm, observes herein likewise the Policy of the Law, and likewise the many Serjeances there in the advancing of the Kings Army to be of the Vauntguard, and in the retreat, in the Rear, those People best knowing the ways and passages of the Country.
Upon those Marches, besides the like services, as upon the Borders of Scotland, there were likewise many Lords Marchers of several Baronies, who had administration of all Justice within themselves, Secundum Legem Marchie; and for their services to be done against the Welch they had two special priviledges, that is the third peny of all Spoiles in War as was adjudged in Parliament, 20 E. I. B. R. Ro. 123. in that great case between the Earls of Glocester and Hereford, and in the Parliament Book 20 E. I.
Trin. 25 E. 1. Ro. 28. Coram Roger de Knownell in partibus Mountgomeriœ, in guerra Walliœ 23 E. I. had taken three Welch Prisoners; and because by the Kings Command they were released of their Imprisonment, it's there adjudged that the King should pay him forty pounds in recompence, and so it was adjudged Coram Hill. 25. E. 1. Ro. 11. Dor.
My Lords. His Majesty is in the actual possession of these military services, by taking the profits of Wards, Marriages, Releases, Licenses, and forfeitures for alienation, and Primer Seisin as fruits of them.
That the Lords receive the profits because he is not able to do the service if the Kings Ward was within age when the Tenants were summoned ad exercitum, he paid no escuage, as is adjudged M. 20 E. I. R. 9 & 20 Co'ia & M. 28. E.I. Bra. irrott so it is for Reliefs and Licenses and forfeitures of Alienation of the Kings Tenant, without his consent might be altered, and for primer seisin the King was to receive the profits till the Tenant by his homage had assured the King of his service, the Summons always commanding him to be at the place of the Rendezvous inside & bomagio quibus nobis tenemini, all these being but fruits that fall from these Military Services.
The Town of Lewes in Sussex holds by this Servicequod si Rexad Mare Custodiendum suos mittere voluisset, this, my Lords, is in Domesday: in Colchester every House to pay fix-pence per Annum, ad Victum soldar' Regis ad expeditionem terra vel Maris Warwick: Si Rex per Mare contra Hostes suos ibat, the Town was to find four Boatswains;Salisbury then to pay so much mony ad Pascendum Buslecorlos Domini Regis, which as Florentius explains the word be Ministros Nauticos; Glocester and others such a weight of Iron, ad Claves Navium Regis, others to find Horses to carry Armour and Weapons to the Ships.
That the Tenures of this kind after the Conquerors time continued in use, and were well-known appears by the Register fol. 2. where, amongst other Services, is this of shipping also instanced in these words, Quod clamat tenere de nobis per liber' Servit' inveniendi nobis quing; Naves pro omni Servitio.In the Iter Roll of Essex, 13 E. 1. Ro. 7. it's presented that the Town of Malden tenet per Serjantiam inveniendi unam Navem, quandocunque Rex necesse habuerit personaliter ire, vel mittere propter negotia Regni, and from the time that they came to the place of Rendezvous to stay in the Service forty days, sumptibus propriis; and being there presented that they made default at the Welch war, they plead they had no Summons.
So, my Lords, In the Books of Serjances of E. 1. Time, in Kent, the Town of Killingborn is to find one Ship; and in the Country of Berks, Fulk Caudry holds the Mannor of Padworth per Serjantiam inveniendi servientem, to perform Sea-service, Bra. p. octavo E. 2. Rot. 40. Will. Dyer in the County of Sussex to find a certain proportion of Cordage.
The five Ports and their Members are to find fifty seven Ships, and in every Ship twenty men, and a Master, Armatos & bene ariatos; from the time they come to the Rendezvous, they are to continue in the Service 15 days at their own Charge, and afterwards as long as the King pleaseth; but after the 15 days the King is to pay the Master and Constable 6 d. a day, and the rest 3 d. a day for their Wages: This Service appears by the Records of the Quier of Dover before-mentioned, and the Patent-Roll of 7 H. 7. pars.
Both which Records imply, that this Service of their cannot be exacted otherwise than for the defence of the Sea; for it cannot be demanded above once in a year, nor then neither, nisi necesse fuerit, Parliament' Pet' I E. 3. Rot. 4. The Barons of the Ports in confideration of their Sea-Service, pray a confirmation of their liberties pro Salvatione dict. Navigii & Regni; commonly when the Land-service was summoned, these likewise were summoned to the same Service at Sea, as appears in the close Rolls, 28 E. 1. M. 15. 31 E. 1. and 34 E. 1. M. 15, 16. in all which years the Land-service was summoned for Sctoland, and the Summons both for the one and the other run in the same words, commanding them to be at the place cum toto Servitio vestro quod nobis debetis, which shews it to be a Service by Tenure.
That these Services of theirs are for the defence of the Realm; and likewise that there are many of like nature besides these, which by a superfical reading of two or three Iter Rolls I have cited, appears by the Parliament Roll of 13 E. 1. pars I. Numero II. where is declared in these words, That the five Ports, and other great Towns and Havens, are infranchised pur estre gard & mure inter nous & aliens; if it fall out that they shall endeavour nostre terr' enter, & assay terr', & sunt tenus a ceo faire. My Lords, a fuller Declaration than this there cannot be, That both the Ports, and many of the Havens and Sea-Towns are bound to the Service of Shipping for the extraordinary defence of the Realm, as well as the ordinary.
I have now done with the Services in kind; and because these which immediately tend to Action alone were not sufficient to defend the Realm, and this in the frame and first constitution of the Common-wealth being foreseen, and that the Land, or fundus Regni, the most visible and constant supplier of our wants, was best able to supply this likewise; therefore besides them there were divers other Tenures created for that purpose. Those which next I am to speak of are such as supply His Majesty with Money for that purpose.
In the Black Book in the Chequer, lib. I.Cap. 7. it's said, that in Primitivo Regni statu ad stipendia & donativa Militum, & alia nscessaria ex Castellis, and other Lands, in quibus Agricultura non exercebatur pecunia numer ata succedebat; it might from hence be colorably inferred, that in respect, ex provisione Legis upon the Kings passing of Lands, a Tenure for Knights-Service for the defence of the Realm was to be reserved, that in Case upon such Grants Rents only without any such Tenure were reserved, that yet this Money should be imployed for Souldiers Wages, or other necessary Affairs of the Common-Wealth, ad Stipendia Militum, & alia nscessaria : But not to press this further;
It's plain, that all Men within the Kingdom were not equally inheritable, either to the Freedom of Body, or propriety of Lands or Goods, but that there were three degrees and ranks each differing from other in all these; first, Villanies; 2. Free-holders, either by Knight-Service or Free Soccage; 3. Tenants of Antient Demesne, and that held by Burgage within Cities and Burrough-Towns.
First, for the Villain, we know that as to his Lord he had Freedom in neither; in respect of his Body he could not ire quo voluit, but the Lord at his will might imprison him; in respect of his Lands and his Goods, he might tax him de baught & de basse.
- 2. The Free-holders, the greatest part of the Realm always had an absolute Freedom in both.
- 3.The third, and that is the Tenants in Ancient Demesne, and Burgers, they had an absolute Freedom in their Persons, but qualified in the other of propriety, not taxable at will, or as Villains, but for the defence, and other necessary affairs of the Realm they might be taxed without consent in Parliament.
My Lords, that these had a divided estate from other free Tenants, is clear: and first for Tenants in Ancient Demesne, if it be questioned whether such Land be Ancient Demesne yea or not, the issue is in these words, whether it be Ancient Demesne or Frank-Fee: By this it appeareth they have not a frank and free Estate as the others have, as all our Books agree; they have no Vote in Parliament, for they have no Voice in election of Knights, nor pay to the expences of the Knights that serve in Parliament, nor Subsidies granted in Parliament. N.B.. 79. and 14. it is often disputed in our Books, whether Acts of Parliament extend to them, unless they be specially named; neither can they sue at Common Law for any thing that concerns the Free-hold, but only by a Writ of Right close within themselves; and and therefore Bracton, fol. 209. calls them Villanos privilegiatos.
The same it is of Burgesses within Cities and Burroughs, and therefore the Statute of Merton makes it a disparagement for the Lord to Marry his Warde Villanis, & aliis sicut Burgensibus. N. B. 7. and other Books no Assises will lie for such Lands, but they are impleadable without Original Writ by a Bill of fresh force; and as a Chattel they may devise their Land, by the Stature I E. 2. de Militibus for such Land; and for Ancient Demesne no Man is compellable to take the Order of Knighthood. Much more might be brought in proof of this, which I omit.
My Lords, all our Books agree, that the Tenants in Ancient Demesne were to Plow and Manure the Kings Lands, being His Demesnes; in a Manuscript that I have seen the Author faith, That he hath an ancient Manuscript which faith, that the Corn, and other Victuals arising hereby, was to store the Kings Garrisons, and Castles; and considering the number of those Mannors, there being above a Thousand of them in the Kings Hand at the Conquest, it appears by Domesday, and that those Mannors for the most part are great, and that the greatest part of the Soccage Tenures till H. 2's time, as appears by the Black Book lib. I. Cap. 23. were to find Victuals of all sorts in kind for the Provision of the Kings House, and were in his time turned into Rents.
That for which these and the Tenures of Burgage in the Kings Cities and Burroughs, were mentioned in the raising of Money for the necessary Affairs of the State, that these were anciently talliable without their consent in Parliament, is so plain and frequent in the Chequer Rolls, the Parliament Rolls, and the Patent Rolls, as that I intend to cite nothing in proof thereof; It will be admitted by them that are to argue of the other side: That which I shall endeavour to prove is, that these were not talliable at the Kings Will and Pleasure, but only for defence, and other necessities of State. N.B. fo. 15. 49 E. 3. 22. they be not talliable de haut & basse, as Villains are; and therefore Bracton fo. 209. calls them Villanos Privilegiatos lib. Parliament. fo. 112. taliare & rationabile auxilium dare pro necessitate. N.B. 14 E. They are taxable pro grand Case, Rot. Parliament. 6. E. 3. Commissions to tax Cities and Burroughs, and Ancient Demesnes upon Petitions of the Commons revoked, and Writs in due form to be set, and for the time to come the King shall not asses tallage forsq; in such manner come a d'estre fait en temps de ses Ancestors, & come il devera per renson: The occasion not requiring it, I shall say nothing of it when these Talliages are disused.
My Lords, I have now done with the Tenures, the first way whereby the Law hath provided for the safety of the Realm, which of themselves not enabling the King entrusted therewith all sufficiently to do it; the Law therefore, besides the Honours, Manors, Castles, and other constant Revenues of the Crown, for the supportation of the ordinary Charges thereof, hath appointed unto it divers Prerogatives for the extraordinary, and for this of the defence of the Realm, as one of the chiefest of them: these Prerogatives gatives they have an influence into the Estates of all the Subjects in the Realm, and are so many, that to gain time I will omit to mention any of them; that which I shall insist upon, will be to prove, that the things coming to the Crown by the Prerogative way, are to be employed for the defence, and other publick Affairs of the Realm. In His Majesty there is a double Capacity, Natural and Politick; all His Prerogatives are Jure Coronae; and of all such things He is seised Jure Coronœ; and therefore, as in other Corporations, such things are patrimonia & bona publica, to be employed for the common good; so like wife by the same reason here, the reason why the King hath Treasure-trove, and Gold and Silver-Mines in the Earth, in the Cafe of Mines is declared to be, because the King is hereby to defend the Kingdom; and in Institutes in the Title of Soccage, so. 28. 131. the reason of many of the rest, quia Thesaurus Regis est fundamentum belli, & firmamentum pacis. This I conceive to be the reason, that by the Stat. of 14 E. 3. Cap. I. Escheats, Wardships, Customs, and Profits arising of the Realm of England, should be declared to be spent for the safe-guard of the Realm, more than the Profits of t he Kings Mannors and Lands, and of the difference made in the Co'ia M. 3. R. 2. London, between Rectas præventiones Regni, which, by the advice of the Lords of the Council, were to be spent in the Household, and the other Profits of the Crown to be spent circa solutionem & defensionem Regni, in the Parliament Roll of 6 R. 2. N. 42. The Commons Petition, That the King will live of His Revenues, and that Wards, Marriages, Releases, Escheats, Forfeitures, and other Profits of the Crown, may be kept to be spent upon the Wars for defence of the Kingdom; which sheweth, that there was always a difference made between the Profits arising of the Kings Mannors and Lands, and that which rose by the Prerogative in casual and accidental ways. My Lords, I have now done with these.
The third way whereby the Law hath provided for the defence of the Kingdom, is particular supplies of Money for the defence of the Sea alone in times of danger, both ordinary and extraordinary; for besides the Supplies of Money before-mentioned, which are to be imployed for the good and defence of the Realm in general, as in the other Cases where the Law putteth the King to any particular Charge for the protection of the Subject, it always enables Him thereto, yields Him particular supplies of Money for the maintenance of the Charge; so here, the Courts of Justice for the preservation of us in our Rights are supported at His Charge, and that is the reason why He hath all Fines and Amerciaments, the Goods of Out-lawed Men in Personal Actions, Bract. lib. 3. Cap. 13. so. 129. and Fines for purchasing of Original Writs, & pro licentia concordandi, which in supposition of Law are paid, for not proceeding, and for troubling without cause, the Kings Charge: these they are the vectigal' Juditiarum.
1. Of the Church and of Religion; and therefore in the Summons of Parliament the cause of the Calling of the Parliament is always declared to be pro defensione Ecclesiœ Angliae in particular, as well as totius Regni.
His Majesty therefore hath the Temporalities of all Bishopricks, sede vacante, a Prerogative, and that which Patrons have not, with an Addition of the First Fruits and Tenths of them, and all other Ecclesiastical Promotions and Benefices in H. the 8th's time, and likewise the Tythes of all Lands which lie not within any Parish.
2. For defence of Land alone, besides these Military Services before-mentioned, the Profits of Wards and Marriages, which, as I have read, no other Christian Prince hath as a Fruit of them, are received for that purpose.
So it is for the Sea in Rot. Scoc. 10 e. 3. m. 16. It is said that the King and His Ancestors Domini Maris Anglicani & defensores contra Hostium invasiones ante bæc tempor a extiterunt; for the supporting of this Charge therefore, they have not only had the Grand Custom of the Mark and Demy-Mark upon the Wool, Wool-fells, and Leather, and the Prisage, that is, one Tunn of Wine before the Mast, and one behind of every tenth Tunn, which were even due by the Common Law, as appears by the Book of my Lord 'Dyer, 1 El. 165. and Sir John Davis's Reports so. 8, & 9. and implied by Magna Charta Ca 30. that Merchants may Trade per rectas & antiquas Consuetudines; but likewise divers other things were afterwards granted by Act of Parliament in addition to them.
As first, the Petty Custom began 31 E. 1. and made perpetual by the Statute 27 E. 3. Cap. 26. and likewise divers Aids and Subsidies, which are an encrease of Customs upon the Staple Commodities of Wools, Wool-fells, and Leather, and Tunnage, and encrease upon Wines, and Poundage, and encrease upon all other things imported or exported, either by Denizens or Aliens: That which in this kind was taken by His Majesty 11th of His Reign, when this Writ went out, was 300000 Pounds and upwards.
The Aids and Subsides, and likewise the Tunnage and Poundage anciently granted upon particular occasions only, and afterwards to the late King and Queens for their Lives by Act of Parliament; and being now granted to His Majesty; and likewise the new Imposition, which altogether make up the afore-mentioned Sum of 300000l of the Legality hereof I intend not to speak; for in case His Majesty may impose upon Merchandise what Himself pleaseth, there will be the less cause to tax the In-land Counties; and incase he cannot so do, it will be strongly presumed, that He can much less Tax them. The proving of these Two things herein will serve my turn.
For the first, it was declared by His Majesty in the last Parliament, and annext to the Petition of Right, as part of it, that His Majesty took them, and could not be without them; whereof He like-wise desired the Judges to take notice, and that they might so do, it is Enrolled both in this, and other the Courts of Westminster-Hall.
For the second, that the grant of Custom is principally for the protection of Merchants at Sea against the Enemies of the Realm, and Pirates, the common Enemies of all Nations, is Sir John Davis's Reports so. 9. 12. And that these, and likewise the Impositions are for that purpose, was held by many of the Judges in the Argument of Balles his Case 7 Jac. in the Chequer, in the Case of Impositions upon Currands; and likewise by the Kings Council, when the same Case afterwards came to be debated in Parliament, and was one of the main Reasons urged by them for the maintenance of that Judgment. That the Aids and Subsidies, and likewise the Tunnage and Poundage, before they were granted for Life, were not only for the Protection of Merchants, and the Ordinary defence of the Sea, but also for the defence thereof in times of extraordinary dangers, and of Invasion from Enemies, appears by the several grants of them in the Parliament Rolls.
Rot. Parliament. 1. R 2. pars 2. N. 9 & 27. the Kingdom being others there mentioned, who made War both at Land and Sea; a Subsidy upon the Grand Customs was granted, as the words are, pur le defense & Rescous del' Kingdom; this was for two years, and persons assigned to receive and expend the Money.
Co'ia Mich' 3 R. 2. London. William Wallworth and John Philpott Citizens of London, the Treasures of it upon their Accompt shew the particulars how this Money was expended circa salvationem & defensionem Regni, and discharged.
6R 2. pars 2. N. 13. The Commons Complain that notwithstanding the Grant of Tunnage and Poundage, the Sea is not kept, and therefore Persons named and assigned in Parliament to receive the Money, and to do it.
- 11 R. 2. N. 16. & 12. Tunnage and Poundage, and Subsidy for a year.
- 13 R. 2. N. 20. both for a year.
- 14 R. 2. N. 16. both for three years.
- 17 R. 2. N. 12. both for three years.
- 20 R. 2. N. 18. Subsidy for five years, and Tunnage and Poundage for three years.
- 2 H. 4. N. 9. both for two years.
- 6 H. 4. N. 9, 10. both for two years, upon condition to cease, if the King before St. Hillary provide not a sufficient Army for the Sea.
- 8 H. 4. N. 9. and 9. H. 4. N. 26. both as 6 H. 4. 11 H. 4. both for two years, for the common Commodity and defence of the Realm: 13 H. 4. N. 10, & 11. for one year, so as the same be consessed to proceed of their own good will, and not out of duty.
- 5 H. 5. N. 17. for four years, as 13, &c. and upon many Conditions.
- 1 H. 6. N. 9. For two years.
- 3 H. 6. 17. Subsidy for three years, Tunnage and Poundage for one year.
- 4 H. 6. 22.
- 6 H. 6. N. II. For two years Tunnage and Poundage, viz. 6s. 8 d. upon every Man within a Parish Church, that hath twenty Nobles, and 6 s. 8 d. upon every Knights Fee held immediately of the King.
- 8 H. 6. 15. Tunnage and Poundage to continue until the next Parliament.
- 9 H. 6. 14. both, and for two years.
- 10 H. 6. 21.
- 4 H. 6. 14. for two years.
- 23 H. 6. 16. for four years, and double upon Aliens.
- 27 H. 6. 10. as 23 for five years.
- 31 H. 6. N. 8. and 42. Tunnage and Poundage first granted for life, and N. 41. assigned into the Subjects hands three years for the good of the Seas.
- 3 H. 4. N. 29.
My Lords, either by the Grant it self of them, or by the Declaration of the Calling of the Parliament, it appears that those were all granted upon extraordinary occasions; and when they came to be granted for life, as appears by the Rolls, and likewise by the Printed Statutes of 13 Ed. 4. Cap. 3. 13. and they were not only granted for the ordinary defence of the Realm, and principally of the Sea; but likewise that the Kings might always have in readiness a Stock of Money in their Hands to withstand an Invasion, as is declared by the very words of those Statutes.
My Lords, His Majesty is in possession of them, and was pleased by His Proclamation Printed 1626, declaring the cause of the dissolution of the last Parliament, as appears by Pag. 17. to declare that they were always granted to His Progenitors for the guarding of the Seas, and the safety and defence of the Realm; and in the 18th Page is graciously pleased in these words to declare, That He doth and must still pursue these ends, and undergo that Charge for which it was first granted to the Crown; and Page 44. that he receives it for the guarding of the Seas, and defence of the Realm.
My Lords, I have now done with the ways which I first propounded, whereby the Law hath provided for the defence of the Realm; I shall add this only, that by the Satute of Winchester, which was made in the 13th year of E. 1. every Man Secundum Statum & facultates: for the words of the Satute are, according to the quantity of his Lands and Goods is to find Horse and Armour for the defence of the Realm: For that Statute in his particular extends not only to the keeping of the Sea, but likewise to the defence against Forreigners, is declared in the Parliament Roll of 3 R. 2. N. 36. and by the Stat. of 5 H. 4. in the Parliament Roll N. 24. not printed, juxta quantitatem terrarum & bonorum against Invasions, each Man is to find Armour, and by the Statute I E. 1. Cap. 5.
These Men, upon sudden coming of strange Enemies into the Realm, may be compelled to march out of their Counties where they live; whether they may be compelled so to do without Wages, I shall have occasion afterwards to speak, how far the Statutes of Winchester, and 5 H. 4, for Arms, upon the Statute of 4, & 5. P. & M. Cap. 2. and 1 Jac. Cap. 25. are in force, I shall not speak First, my Lords, I shall now proceed to the stating of the Question.
Bracton, in the Beginning of his Book says, That in Rege necessaria sunt hæc duo Arma Scilicet, & Leges, quibus utrumq; tempus Bellor' & Pacis recte possit gubernari; and Glanvil in the beginning of his Book, Regiam Majestatem Armis contra Gentes sibi Regnoq; insurgentes oportet esse decoratum; His Majesty, as he is Lord of Sea and Land, so by that which hath been said it appears, that He is armed with Power for the defence of both. My Lords, the reasons in the Writ, as they are weighty, so from these known supplies, whereby the Law hath provided for the safety of the Realm, they will all of them be confessed, and yet thereby receive answer; and that the Law hath foreseen, and provided the supplies accordingly; without the way in the Writ. I. The command in the Writ being in fide & legiantia quibus nobis Tenemini, it's thence inferred, that each Subjects Allegiance binds him to contribute to the defence of the Realm. In the old Customes of Normandy Cap. 43. Allegiance binds ad Consilij & Auxilij Adjuramentum; this, although it be principally performed by the Parliamentary, both Advices, and Aids, yet besides these extraordinary, by that which hath been said, we see both by the Tenures in kind, and pecuniary Supplies, that without the assistance thereof our Persons, Lands, and Goods, by His Majesties Command alone, are made contributory thereunto, and that in a large proportion. 2. If the Rule whereby this Contribution must be regulated be, as in the Writ, Secundum Statum & facultates, that likewise is satisfied, and that both for Sea and Land.
1. For Land, in case either the Statutes of Winchester, or 5 H. 4. be a-foot, then in words in that of finding Arms juxta quantitatem terrarum & bonorum : So secondly in respect of the Tenures by Knights-Service in the Wars, Marriages, and Reliefs, those I confess concern the Tenant only; but those others are Tenures in Capite and Grand Serjeanty, these concern all others in respect of the Licenses of Alienation, and of the Wardships of Lands held of other Lords, and that all the Tenants Land is hereby become wardable; and thirdly, in respect of the Prerogative before-mentioned; for the greater the Subjects Estate is, the greater influence they have into it, and proportionably raise more profit out of it.
In respect of the Sea, this is so by reason of the Customes, Aids, Subsidies, Tunnage, and Poundage, before-mentioned; for the Charge of these is not born by the Merchants alone, but by each Subject within the Kingdom, and that Secundum Statum & facultates.
For first in respect of the Exporte, the greater the Estate, the more Wooll and Wool-fells, and Leather, Lead, and other staple Commodities in exports; if that be done by the owner, he bears the immediate Charge, if by the Merchant, according to that proportion is his abatement in Price unto the owner. So it is for Goods imported, for the greater the Estate and means of Livelihood, the more each Person buys of those, and at a dearer rate. This is cleared by the Petition of the Commons in the Parliament Roll, 22 E. 3. N. 41. that the Merchants had granted to the King 40 s. upon a Sack of Wooll en Charge du People, & nemy des Marchants; and by the Statute of 36 E. 3. Cap. II. that no Subsidy or Charge be granted to the King by the Merchants upon Wooll, without Assent in Parliament.
3. Hence likewise that other ground of Equity in the Writ, Quod omnes tangit per omnes debet supportari, receives answer; for as all have benefit by the defence, so the Compensatio publica, we see it come from all: the fuller Answer, is the Parliament Summons of 23 E. 1. provision against the French, who intended linguam Anglicanam omnino debere, Clo. 23 E. I. M. 14. Dor. Lex justissima provida circumspectio sacrorum principum stabilita statuit, & quod omnes tangit db omnibus approbatur. The Charge, as it must be born by all, 10 must it be approved by all.
4. If His Majesty be entrusted with the defence of the Realm, as in the great Case between the Earls of Hereford and Gloucester: It's said, that incumbit Domino Regi Salvatio Populi Sibi Commiss and that per Juramentum est astrictus ad providendum salvationem Regni curcumquaq; because no Man goeth to Wat at his own Charge; we see by that which is already said, that the Law hath provided the Stipendia Ministerij : with that they do not bind His Majesty to the defence and safety of the Kingdom only in the point of care and vigilancy, but even in point of Charge too, I shall endeavour to prove your Lordships and the Court. Allegiance, we know, is an Act of Reciprocation, for as it binds the Subjects to Tribute and Subjection, so therefore must it the King to the Charge of Protection, by the expence of those; Rex ad Tutelam Legis, corporum & bonorum, erectus: the supplies He hath for that purpose ties Him to the supportation of the Laws, the execution of Justice, 20 E. I In the Case before-mentioned, between the Earls of Gloucester and Hereford, it is said, That Dominus Rexest omnibus & singulis de Regno suo Justitiœ debitor; which that he is so even in point of Charge appears by His Majesties supportation of the Courts of Justice, and the Salaries, not only to your Lordships, and other the Inferior Ministers of Justice, and anciently to the Sheriffs, but likewise many other ways, 4 H. 7. Cap. 12. The King shall not let for any favour of Charge, but that He shall see His Laws fully executed, Pa. 23 E. 1. Rot. 12. Exchequer. A Clark that attended a Commission of grievances, recovered Salary from the King, although the Commission was for the Relief of that Country.
This I conceive to be the Reason of the Declaration in the Statute of 14 E. 3. Cap. I. and the other Statutes, that Aids, though granted in Parliament for defence, shall not be brought into example, that it might not be conceived that the Commons were to bear that Charge which principally belonged unto the King, Pat. 48 H. 3. M. 8. it recited, That whereas a late Parliament in Articulo necessitatis prodefensione Regnicontra Hostilem Adventum Alieniginarum the Commons granted him a large Subsidy, ultra quam retroactis temporibus facere consueverunt. Now the King eorum indempnitate prospicere volens, grants, that non cedat in prejudicium, nec in posterum non trahatur in Consuetudinem, in Wiseman's Case. In 2 Report fo. 15. it is resolved, that a Covenant to stand seised to the use of Queen Eliz. in consideration that She is the Head of the Common Wealth, and hath the care of repelling Forreign Hostility, is not good, because, faith the Book, the King is bound to do that ex Officio.
Cam. 315. One Reason why the King is to have Royal Mines, alledged by all that argue for the King, is, because He is at His own Charge to provide for the defence of the Realm, which he cannot do without Money. In the Earl of Devonshire's Case, Co. 11. 91. 6. Inst. so. 28. & 131. Thesaurus Regis is called Nervus Belli. For the practise, the proof of the particular Charges the several Kings have been at for the defence of all forts, would be so tedious, that I'll omit the citing of any thing in this kind: Sir John Davies's Reports so. 12. many Authorities; and in the Treatise de Regalibus, p. 81. Principes totam Navigationem pro vectigalibus prœstare coguntur.
But because His Majesty, in the before-mentioned Proclamation, Pag. 18 & 44. is pleased graciously to prosess, That He holds Himself obliged to undergo the Charge of the defence of the Realm, and of the Sea in particular, I shall spare any further Proof in this.
5. If that in the Writ, That the Sea per gentem Anglicanam ab olim defendi consuevit, be not answered by the Scoth Roll of 10 E. 3. before cited, which says, That the King and His Ancestors, Maris Anglicani defensores antebac extiterunt, nor by what is now said, if it be admitted; yet that even the Charge of this defence is born per gentem Anglicanam is before proved.
The Sixth, and one of the main things whereupon I shall state my Question, is this; His Majesty is in the actual Possession, not only of the Services in kind for the defence of the Land, by taking of the benefit of the Wardships, Marriages, Reliefs, Fines, and Licences for Alienation and primer Seisin, and of the Prerogatives before-mentioned, but likewise of the Service of the five Ports, unless they be released since 7 H. 7. for then their Service was summoned. And of the Tunnage and Poundage, and other Duties for the defence of the Sea.
It appears not by any part of the Writ, nor by any thing in the Record, that either the Service of the Cinque-Ports was summoned, or that any Money at all of His Majesties was expended either for this Service, or at any other time for the defence of the Sea.
All that can be inferred from the Writ, as to this purpose, is, That the Ship for Buckinghamshire is commanded to be at Portsmouth by such a day, ad proficiscendum exinde cum Navibus Dom' Regis & Navibus aliorum fidelium subditorum suorum; by this it appears not to the Court, that though the Ships are the Kings, that they are to be set forth at the Kings Charge, for the Charge may be born by the Subject for ought appears.
The Services of the five Ports, and Tunnage and Poundage, and other Duties, are the ordinary, the setled and known ways, by Law appointed for the defence of the Seas: The way in the Writ by Sesling and altering the property of the Subjects Goods without their consent, as in the Writ, must needs be granted to be a way more unusual and extraordinary; against the Legality of it, I shall therefore thus frame the Argument by way of admission. First, That in case the Services of the Ports had been summoned, and the Money coming by the before-mentioned ways had been expended upon the defence, and they had not been expended upon the defence, and they had not been sufficient; and though in this Case the Writ had been legal, that yet as now it is not. Rylies Case in the 10th Report so. 139. and Trim. 18 E. 2. B. R. R.. 174. adjudged; That so long as he that is bound by Tenure or Prescription is able to do it, the whole Level cannot be Sessed to the Reparation of a Wall or Bank.
It's a Maxime, Lex non facit saltum, nor that we are to run to extraordinary, where the ordinary means will serve the turn. These Rules are often put in our Books, I intend to instance but in one or two Cases.
The Common Law is the common reliever of Persons wronged, that in Chancery is extraordinary, and therefore no Man can Sue there when he hath remedy at the Common Law: The ordinary Tryal for Life is by Indictment, and a Jury, when therefore this may be done, and that the Sheriff with the posse Comitatus is able to keep the Peace, it cannot be done by Martial Law, nor by Judgment of the King and Peers in Parliament without Indictment, as was adjudged in the Case of the Earl of March, Trin. 28 E. 3. B. R. Ro. 21.
My Lords, the reason of this Maxime of Law, as I conceive, is this; Actions extraordinary, as extra ordinem, and done only in times be necessity, are not tyed to any time, or in any thing to any Rules of Law, I shall humbly submit to your Lordships consideration.
- 1. Admitting that the ordinary means before-mentioned had been all used, and that they had not been sufficient, whether in this Case His Majesty, without consent in Parliament, may in this Case of extraordinary defence, alter the property of the Subjects Goods for the doing thereof.
- 2. In the next place I shall endeavour to answer to some Objections which may be made to the contrary.
- 3. In the third place, for qualifying of this I shall admit, that in some Cases the property of the Subjects Goods, for the defence of the Realm, may be altered without consent in Parliament; and I shall shew what they be in particular, and compare them and the present occasion together.
- 4. In the fourth place, because of some Presidents of the matter of Fact, and likewise Legal Authorities that may seem to prove a Legality in this Particular of Shipping for the defence at Sea, whatever it be in the general; I shall therefore endeavour an answer to such of them as I have met withal.
As therefore the Law hath put this great Trust upon His Majesty: so when the Supplies, which by the ways before-mentioned it hath put into his Hands, are spent, therein it hath provided other ways for a new Supply, which is the first thing that I shall present to your Lordships, and this is the Aids and Subsidies in Parliament.
That amongst the ardua Regni negotia, for which Parliaments are called, this of the Defence is not only one of them, but even the chief is cleared by this, that of all the rest none is named particularly in the Summons, but only this; for all the Summons to Parliament shew the cause of the calling of them to be pro quibusdam arduis negotiis nos & defensionem Regni nostri Angliæ & Ecclesiæ Anglicanæ concernentibus. And in conclusion, the Party summoned is commanded to be there sicut honorem nostrum, & salvationem, & defensionem Regni & Ecclesiædiligit.
My Lords, to gain time, I'll instance but in one or two of each Kings Reign, Claus. 23 E. 1. m. 4. Dorf. That the French, ad expugnationem Regni nostri clam se maxima & Bellatorum copiosa mutitudine Regnum jam invasit, & Linguam Anglicanam omnino delere proponit.
Rot. Parliament. 13 E 3. pars prima N. II. The same being given in Charge to the Commons, they pray que ils ne sont Charge a Councel Dover al choses des quel ils n'ont pas Conizance' and so Rot. Parliament. 21 E. 3. N. 5. they excuse themselves, and that this belongs to the King and His Council.
And that these Ardua circa defensionem were the Aids, is exprest in words in some of the Summons, Claus. 7 E. 2. M. 8. Dors. The cause of the Parliament to withstand the Scots, and that in tam arduis debitis extendere manus adjutrices opportuna auxilia faciendo.
Claus. 5 R. 2. M. 2. Dors. The King being to make a Voyage pro defensione Regni & gravamine inimicorum Regni, which could not be done without borrowing great Sums of Money, therefore the Parliament called to advise about the Assurance.
So that, My Lords, it's clear that the Law hath provided this Parliamentary way for the supplying of the Kings wants for the extraordinary defence, and hath likewise put the Power of using it into His Majesties own Hands; for He may call Parliaments when and so often as He please.
My Lords, the Parliament, as it is best qualified, and fitted to make this Supply for some of each Rank, and that through all the Parts of the Kingdom being there met, His Majesty having declared the danger, they best knowing the Estates of all Men within the Realm, are fittest, by comparing the danger and Mens Estates together, to proportion the Aid accordingly.
And secondly, as they are fittest for the preservation of that fundamental propriety which the Subject hath in his Lands and Goods, because each Subjects Vote is included in whatsoever is there done; so that it cannot be done otherwise, I shall endeavour to prove to your Lordships both by Reason and Authority.
My first Reason is this, That the Parliament by the Law is appointed as the ordinary means for supply upon extraordinary occasions, when the ordinary Supplies will not do it: If this in the Writ therefore may, without resorting to that, be used, the same Argument will hold as before in resorting to the extraordinary, by of the ordinary, and the same inconvenience follow.
The Aids demanded by them, and granted in Parliament, even for this purpose of the defence, and that in times of imminent danger, are so frequent, that I'll spare the citing of any of them: It's rare in a Subject, and more in a Prince to ask and take that of gift, which he may and ought to have of right, and that without so much as a Salvo, or Declaration of his Right.
The second way was Loans and Benevolences demanded by them, with promise of re-payment both for the ordinary and extraordinary defence of the Realm, and that as well of all the Subjects equally by Commission, as of some few.
Pat. 48 H. 3. M. 16. A Commission to the Earl of Leicester, and other, contrabendi mutuum in nomine nostro de denarijs & victualibus, and other things in munitionem Navium ponendis & nautarum stipendiis contra hostilem adventum alienigenarum in Regnum nostrum, ad defensionem & tuitionem ejusdem Regni, and promiseth re-payment.
Bra. M. 11 E. 2. Ro. 1. The Scots having entred the Kingdom, diversa homicidia, incendia & deprædationes perpetrantes: The King being in Person to go against them, writes to His Council to provide Money, and they diversas vias pro denariis providendis exquirentes, resolveth to borrow.
Ro. Scot. 1 E. 3. M. 3. The Scots having entred the Realm, besieged divers Castles, and threatned a Conquest of England, and quia crescit sumptuum multitudo in tantum quod Thesaur' nostrum ad sustentationem exercitus nostri nequaquam sussicit, he borrows.
Walsingham P. 179. 44 E. 3. The King sinistro usus consilio magnas summas pecuniæ of all forts, mutuo petiit, asserens quod in defensionem Ecclesiae & Regni illas expenderet; but the People would not lend.
The known Commission to Cardinal Wolsey for the Benevolence in March 16 H. 8. It was to withstand infestissimos Hostes of France and Scotland, who intended to invade the Realm, and that the Kings Coffers were now empty; and therefore they have power Communicandi & inducendi, persuadend' & practicand' cum subditis Regis super amicabili pecuniarum concessione.
Secunda pars Pat. 37 H. 8. Cum pro sustentatione ingentis oneris nostrorum operatuum quos in præ tamper mare quam per terram conficere, & in promptu habere cogimur ad resistendum, &c. Propellendum hostem nostrum Francorum Regem, in desensionem, tutelam & securitatem dilectorum subditorum nostrorum, quorum ille dampnum & interitum omnibus viis & modis molitur, statut' & ex consensu, & sententia Concilii nostri decrevimus aliquam opem de dictis subditis nostris petere, & eand' cum eorum benevolentia recipere, pro eorum cujuslibet facultate ministrand' nihil dubitantes quin sponte & liberalit' quisq; pro sua partitione & facultate elargiturus sit, eoq; magis, & citius, quod id totum consumat' & cedet in suam ipsorum defensionem & tuitionem; and the power is given to levy it as a Benevolence only.
Tr. E. 1. Ro. 58. in the Exchequer Writs to all the Sheriffs of England, pro conservatione Regniejusq; incolarum salvatione & inimicorum depressione: That all the Profits arising of their Counties, and the Rents of all the Kings Tenants due at Michaelmas be paid at Midsummer, and allowance promised in the next half years Rent, and that this ad tam ardua negotia necessaria alias in consuetudinem non trahatur.
My Lords, that not one or two, but so many Kings, and so much Power and Wisdom, as in many of them were, and that in a matter of such consequence, and in times of necessity, should so far descend from their greatness, or so far prejudice their Right, as to borrow that of the Subject, who without being beholding to them they might take of right, and bind themselves to re-payment, and all without any Salvo of the Right, your Lordships will conceive that it can hardly be imagined.
My third Reason is taken from the incertainty of the way intended in the Writ, for the Law delighting in certainty, to the end that the Subject might be sure of somewhat that he might call his own, hath made all those things which the King challengeth as peculiar to himself from the Subject, either certain in themselves, or else reducible to a certainty, either by the Judges, Jury, or Parliament, or by some other way than by His Majesty Himself, as indifferent between the King and His People.
In this I intend not such things as are common to the King with the Subject, of which nature are the Aids for marrying the Kings eldest Daughter, or Knighting his eldest Son, for these are due to every common Person that is Lord, as well as to the King, as appears by the Statute of Westm' 3 E. 1. Cap. 35. N. 82. and are not due by any special Prerogative, but by Tenure; and yet the Common Law, for avoiding excess therein, calls it Rationabile auxilium; and yet even this by the Statute of Westm' 13 E. 2. Cap. 35. is put into certainty, and the cause of the making of the Statute, as therein is expressed, was because the People were grieved by paying more than was requisite, and thereby that which was reasonable became an unreasonable Aid.
This Statute was general. and named not the King particularly; but the Statute of 25 E. 3. Cap. II. is only in case of the King; and N. B. so. 82. gives the reason of the making of that Statute, because the King before did distrain for more than was sit: and therefore, by reason of the excess, was restrained to a certainty as well as the Subject: Neither are the Taxes and Tallages upon Cities and Burroughs or Ancient Demesne against this.
In respect of the baseness of their Tenures before-mentioned; and secondly, because the Subject that is Lord of such Burroughs or Mannors of Ancient Demesne have them as well as the King, as appears by the Case of New Salisbury 33 E. 1. in the Parliament Book, and in the Parliament Roll 8 E. 2. for the Burrough of Cirencester.
Those things which are peculiar to the King, either they be certain in themselves, as are Treasure-trove, Deodands, Wrecks, and the like, where the King is to have the thing it self; and so is it be in Money, as the Demy-Mark, when a Writ of Right; the Tenant prayeth that the Seisin may be inquired; Fines pro licentia concord'; The tenth part of the Land comprised in the Writ of Covenant, and the Post-sine one half so much more, and Fines for purchasing Original Writs 2 s. 8 d. where the thing demanded is under 40l. or 10 s. where 100l. and so in proportion. Or else it is reducible to a certainty, as in all Cases where the Party is to be amerced, though he be in misericordia Domini Regis, yet the Jury must affirm the Amerciament; and when he is to make Fine and Ransome ad voluntatem Domini Regis, yet this Fine must be set by the Judges, when the Tenant by Knights-Service makes default in the Summons; ad exercitum, he is to pay Escuage for the default as a Penalty: this cannot be set but in Parliament, as I shall prove hereafter.
My Lords, to apply all to the thing in question, there is a csuse of raising Money for the defence of the Realm, non definitur in lege; what will serve the turn if His Majesty, as in the Writ, may without Parliament levy 20s. upon the Plaintiffs goods; I shall humbly submit it, why by the same reason of Law it might not have been 20l. and so in infinitum, whereby it could come to pass, that is the Subject hath any thing at all left him, he is not beholding to the Law for it, but it is left intirely to the goodness and mercy of the King.
My Lords, I am now come into the second kind of Proofs, and that is by Authority: The Cases which in the first place I shall insist upon, will be to prove it by Induction; for if I shall prove that His Majesty without Parliament cannot tax His People for setting forth of Land-Forces for the defence, for making and maintaining of Forts and Castles for defence, for Victuals for a defensive Army; for maintenance of Prisoners taken in a defensive War, nor Pledges and Hostages given by Forreign States for the keeping of Peace; is it be so in all these Particulars of a defensive War, I shall then offer it to your Lordships, whether it can be done at all.
Before I proceed to these Particulars, I shall observe thus much, my Lords, in general, That is those that hold by Ancient Demesne, and Burgage, which are but base Tenures, cannot be taxed, nisisur grand Cause, and that have many Priviledges in point of Jurisdiction, ease and profit in consideration thereof, as they have much less, then can the Tenants by Knights-Service and Soccage that are free Tenants, and that have no Priviledges in support of that Charge, be taxed.
And as they are not taxable sur grand Cause in the general, so neither in particular, for this of the defence, as is proved by that of Escuage; for if His Majesty, without consent in Parliament, cannot tax his own Tenant, nor proportion the Fine according to His Pleasure, when the Tenant holds the Land ad exercitum, for the defence of the Kingdom, much less can He do it where there's no Tenure for that purpose.
That Escuage cannot be set without Parliament, is first the Statute of Rumny Mede 17. Johannis in express words; Nullum scutagium vel auxilium ponam in Regno nostro nisi per Commune Concilium Regni nostri; which though it be not Printed, yet it is of Record, and Inrolled in the Red Book of the Chequer, and cited in Matthew Paris Pag. 343. And that as well before the confirmation of it, 9 H. 3. as since, it hath been by the Judges reported to be a Stature, and in force, appears by the Book of 5 H. 3. Mordaum 53. where it is pleaded and called by the name of M. Charta, and allowed; and M. 19. E. I. Finiente 20. incipiente B.R. Rot. 56. in the Case of Rulf de Tony it's pleaded by the name of M. Chart. Johanis Regis de Rumny mede, and allowed.
In the Book of Knights-Fees of E. I. time, there's a Writ cited, which went to the Sheriff of Hereford, thus; Datum est nobis intelligi, quod plures sunt qui tenent per servitia Militaria de nobis qui contradic' solvere scutagia de Feodis suis, & quia scutagia nobis sunt concessa per Commune Concilium Regni nostri: Therefore he is commanded to levy them. Co'ia M. 5. E. 2. Ro. 4. Dors. Many Processes issued for the levying of Esouage in E. I. time, seperseded and quite released, the reason entred in the Roll; Quia dictum servitium non fuit communiter factum; that is, as I conceive, because it was not done per Commune Concilium Regni.
The Books are express, 13 H. 4. 5. Banke N. B. 83. E. B. Instit. sec. 97. My Lords, that those that hold in Soccage or Fee-Farme, or not by so many Knights-Fees as they were distrained for, were always discharged, as appears by infinite Presidents, I shall make no use of it as the manner of entring these discharges upon the Rolls; 'tis observable that he is distrained, ac si teneret per servitium militare, whereas he holds the Land in Soccage, pro quibus servitium aliquod Regi exercitibus suis facere non debet, and in some Rolls that ratione alicujus Authoritatis, he ought not to be distrained: Therefore, quia Dominus Rex non vult illum in hac parte injurari, prout justum est, the distressess are released; amongst divers Presidents for this, I shall cite but one or two, Br. Tr. 34 E. 1. Ro. 20. the Abbot of Abbington, and John Arden the Iter Roll of Sussex, 7 E. 1. Rot. 107. of Gifford. My Lords, if the King might have raised Money, and Sessed Men for finding Souldiers for their Armies, this manner of Entry, as I humbly conceive, would never have been suffered.
I am now come to the first Particular that I have instanced, that is the charging of the Subject for finding of Souldiers to go out of their Counties for the defence of the Realm. My Lords, in that I shall in the first place admit these three things.
First, that every Man after the Stature of Winchester, secundum statum & facultates, was to find all manner of Arms, as well for the defence of the Realm against Forreigners, as for the Peace; and that I have before proved by that of 3 R. 2. N. 36. and after by the Statute of 5 H. 4.
That upon sudden coming of strange Enemies, these are compelled to travel out of their own Counties, is the Statute of I E. 3. Cap. 5. and so for the appeasing of any notable Rebellion, when the King, for the doing thereof, was in Person, as appears by the Statute of II H. I. Cap. I. and Cap. 18.
Thirdly, I shall admit, that so long as they remain at home, and go not out of their Counties, that they are to have no Wages, and that the Maritime Shires for Borders upon Scotland and Wales, were not to be at the Kings Charge, so long as they remained at home in their own Counties for the preservation of them; but that they were in that case themselves to bear the Charge against Forreign Invasions, as of making of Hue and Cry, assisting the Sheriff when he took the posse Comitatus, and all other things concerning the keeping of the Peace.
But that the Subject is taxable either for Wages or Victuals, or otherwise for sending of Souldiers out of their Counties, though for the defence of the Kingdom, or that any are compelled to do it at their own Charge, I shall humbly deny.
The Stature of I E. 3. fays, That in this case it shall be done, as usually hath been done in times past, for the defence of the Realm My Lords, I will not deny, but that before E. 3d's time Commissions have issued out of the Chancery for that purpose; against which matters of Fact, not only to ballance them, but to weigh them down, it's as clear, that whole Armies, some of them of 30000 at the least, over and above those that were summoned by their Tenures, have been maintained at the Kings Charge, from the time they have departed out of their Counties, during the whole time of their Service, and that not only with Promises of payment, but that were paid, Ex Thesauro Regis, out of the Chequer; and many times upon fail of payment for Victuals, Wages, and other things, upon Suit for them in the Chequer, full payment hath been made, of which sort in most Kings Years there are many Cases.
By the Statute of 19 H. 8. Cap. I. those that have Annuities of the King must attend Him when the King in Person goes for the defence of the Realm, or against Rebels: But there is a special Proviso, that they shall have Wages of the King, from the time they set out, till they come to the King, allowing twenty Miles a day, and afterwards as long as they shall remain in the Service.
Upon a Rebellion in the North, 28 H 8. against whom the King intended to go in Person, Privy Seals were sent to most of the Gentry of England to attend the King with the best Retinue they could could make, and likewise to bring the Bills of their Expences, and payment promised, as appears by many of those Privy-Seals remaining in the Palace Treasury.
And besides the Indentures themselves, whereof I have seen many: It appears by the Statute of 2 and 3 E. 6. Cap. 2. that the retainer of Souldires at the Kings Charge was as well for defensive as offensive War. And by Stat. 3 H. 8. c. 5.
My Lords, in the next place I shall endeavour the proof hereof by clear Authority, the Stat. of 25 E. 3. Cap. 8. is, That none shall be compelled to find but such as hold by such Service, if it be not by Grant in Parliament: That this was not Introductivum Novœ Legis, appears by the Petition whereupon the Statute was made, that it was encounter le droit del' Realm.
P. 26 E. 1. Rot. 35. Dor. The Scots entring the Borders, a Commission issued Reignaldo de Gray to press Souldiers in Lancashire and Chesbire; be certifies by his Letter Inrolled there, que sans deniers prestes, he could not procure them to march out of those Parts; and therefore order taken in the Chequer to fend Money: That the Scots had now invaded the Kingdom, appears by Bra. Irret. M. 26. E. 1. in Sacc', where Commissions are Inrolled for many Thousands to be levyed for this War at the Kings Wages, Bra. Tr. 32. E. 1. Tr.. 31 E. 1. Rot. 18. Co'ia de Wardens of the Marches de Cumberland and Westmer land writ to the Barons of the Chequer; That whereas the Scots lay near the Marches with a great Army, and that the People of the Country would not march out of their Counties without Wages and Victuals, that they would provide for both.
Secunda Pars Pat. I0 E. 2. M. 26. and 9 E. 2. in Parliament, a Grant to find one Souldier for 60 days, at the Charge of the Town, against an Invasion of the Scots: now the King grants quod bujusmodi concessio non cedat in prejudicium nec trabatur in consequentiem in futuro.
Cla. 13. E. 3. M. 38. Dors. pars prima. The Abbot of Ramsey discharged, pro Custodia Maritinœ, in the County of Norf. because he remained in his own Country of Huntington, cum Equis & Armis, to the defence thereof with this; that therefore it was not rationi consonum to charge him further. The same it is Rot. Fraunc. 21 E. 3. in prima parte I. Oxon', because they were prompti & parati at home to defend the County. Rot. Sco.
But the practise, as it should seem, not agreeing with the Right in the Parliament, 20 E. 3. N. 12. The Commons complain, that Commissions had issued out of the Chancery to charge the People in this particular, and otherwise without consent in Parliament, and pray, that they may disobey such Commissions: The Answer is, That the Commons had heretofore promised to assist the King with their Bodies and Goods, in the War with France, and likewise for the defence of the Realm; and that the great Lords considering the necessity, as well for defence, as the kings Wars, agree thereto, and yet promiseth, that this which is done en cel necessity ne soit treyt en consequens n'ensample. My Lords, this is a full declaration of the Right, even when for the defence; and yet some practise to the contrary, before the making of the Stat. of 25 E. 3. procured the Complaints in this particular in the Parliament, 21 E. 3 N. and 22 E. 3 N. Pat. 8. H. 3. M. 4. Falcasius de Brent. Inimicus publicus & excommunicatus, that imprisoned the Justices Itinerants in Bedford-Castle, and held the Castle against the King, the King, Propter graves & manifestos excessus quibus Regnum multipliciter perturbavit, besieged the Castle; and whereas the Clergy, de mera gra', had granted the King an Aid for the doing thereof, Rex nolens gratiam sit nobis exhibitam ad debicam retorqueri, declared as much by the Letters Patents.
Rot. inquisitionem 3 E. I Ro. 4. Kent' coram auditoribus querelarum post Bellum Evesham & Pacem proclamatam: The Castle of Tunbridge being held against the King, the Hundred at Feversham was Sessed at 15 1. pro Insultatione of the Castle; the Jury present this as a grievance, which the Justices would never have received, nor suffered to be entred into the Roll, if this Sess might have lawfully been made. My Lords, this Castle and Hundred they were in the same County; and being before the Stat. of Winchester, they are not compellable to besiege the Castle; and if they were compellable to go in Person, and with Arms, yet no Sess could be laid for the doing thereof.
My Lords, I shall only offer to your Lordships consideration the Scoth Roll of 20 E. 3. M. 6 the Wardens of the Marches of Scotland were to appoint exploratores & vigiles, which were to espyout, and to give notice of the Enemies Intendments, by the Commissions in H. 4 H. 5 & H. 6 time, they were ad explorandum prodefensione Regni & partium sumptibus Incolarum; but how? only de assensu & voluntate sua prout fieri consuevit.
My Lords, I am now come to that of Victuals, the Stat. of 14 E 3. Cap. 9. is, That for the Wars the provision for them shall be done by Merchants without Commission, or other Power from the King, or any other Power, that the People may not be compelled to sell against their wills: That this was as well for defensive as offensive Wars, and that this was not Introductivum Hove Legis, but so at Common Law, is, by your favour, clear.
Pat. 29 E. 1.M. 16. & 19. ad reprimendum malitiam Scotorum; and to repel them, Commissions to most Counties to provide Victuals; and because they refuse, therefore the King there offers them security.
Sometimes at Newcastle, sometimes at Carlisle, at Barwick, as the Wars required, were the Store-houses where the Victuals were laid, and Clerks of the Store to issue them: That the King not only paid for the Vicutals, but likewise for the House where they were laid in, appears Bra. Tr. 2 E. 3. about the end of the Roll, Dorso. The Burgesses of Newcastle complain in Parliament, that their Houses had been taken up long time for the keeping of those Victuals; this was transmitted to the Chequer by Writ, which says, Volumis eis pro domibus suis prœdictis sic occupatis satisfacere proutdecet, & prout justum fuerit,& prout temporibus Progenitorum nostrorum fieri consuevit.
My Lords, in the next place,
3. For the defence, when those that served with Horse, ad vadimonia Regis, they lost their Horses in the Service, the owners did not bear the loss, but they were always paid for it by the King; and therefore when they first entred into the Service, the Marshal, or else the Warden of the Marches, who had the command of them, did set down in a Roll the Horse of each Man, and their marks, and price of each Horse, to the intent the owner, by this Certificate, might be assured of the full value to be paid him in case the Horse was lost. This appears Clo. 34. E. 1. M. 16. where the Custodes Marchiœ Scotiœ, assigned pro defensione Marchieœ, were to do it.
Secunda pars Pat. 10 E. 2.M. 7. the same, and the Scottish Roll of 21 E. 3. M. 7. the same prout Moris est: That upon Suit the Subject hath recovered accordingly of the King, are many Cases; I'll instance but in two or three, M. 24. of E. 1. Ro. 16. Dor. Ro. Heigham, recovered 20 Marks in the Chequer, pro Equo perdito in conflictum Dover, inter homines Regis per hominum illar', & Inimicos Franciœ; at which time the French had affaulted Dover, and burnt the Priory, and a great part of the Town. Bra. Hill. 17 E. 2. pro restaur' trium Equor' perditor', at Carlistle, 9 E. 2.
Co'ia Hill. 2 E. 3. for Wages, pro restaur' Equor' perditor', and burying the dead when the Scots had entred the Realm at Stanop- Park, for one Troop. . . . .l. allowed habita inde deliberatione, and adjudged.
4. For Castles, the Ancient Forts and Bulwarks for defence, the Stat. 14 E. 3. Cap. 19. says, That Merchants, without any Commission or Power from the King, shall victual them so, that the People may not be compelled to sell against their will. That Stat. in this Particular is not Introducte Novœ Legis, is cleared by the Case Tr. 16. E. 1. Ro. 3. Wiltes in a little Roll, and in a great Roll of the same Year Ro. 19. when in Trespas, by john Eveshorne against john Flavel, quia blada & garbas suas cepit: The Defendant says, he was Constable of the Kings Castle of the devises, and that he had in præceptis Pred' Regno quod munire faceret, the Castle de mortuo Stauro ut de bladiis, and other things; and that by virtue of this Writ he took an Enquest to know where he might have best laid these Victuals, ad minus nocumentum patriœ, and the Jury found that the Defendant might take it ad minus nocumentum patris of the Plaintiff, and that he came to the Plaintiffs house, and offered to buy pro denariis & ad justum Regis; and that because the Plaintiff refused to fell, he departed from his house; Issue joyned, and found against the Defendant, and 100 Marks damages given the Plaintiff, adjudged.
There were always anciently Visores operationum appointed, and they upon Oath certified, that they saw the Kings Money expended, which was demanded in the Chequer; and for Victuals, as they were bought with the Kings Money, so when they grew stale, that the danger was passed, they were sold again to the Kings use.
And M. 27 E. 1. 75. 1000l. pro quatuor ingent. and Trin. 32 E. 1. Ro. 11, 12, Visus compot' 28 E. 1. Rot. 71. Prout justum, quia Scoti contra Regem hostiliter insurgunt; therefore de Thesauro Regis Barwick fortified, & Ro. 78. Dorso; it appears that the Sheriff of Yorksbire had carryed 40000 1. de Thesauro Regis to those Parts.
Bra. in 17 E. 2. propter frequentes egressus Scotorum in Regnum; the Castle of Sandall, at the Kings Charge, fortified,& prout justum, allowance; and Br'ia Hill. that year the Castle of Horney, for the same cause, the Scots having entredcircum prædictum Castrum,& apud Lancastre.
4 & P. & M. Dyer. 162. b. One in execution for debt in the Fleet, who, as the Book faith, was a man very necessary for the Wars, and it was moved by the Kings Attorney per Mandatum Comsilii, if the Prisoner may be licensed by the Queen with a Keeper, to go to Barwick for the defence of it or no, and it was held by all the Judges of B. R. and C. B. that the license was not good, and 13, & 297. the same cause cited accordingly to have been the opinion of all the Judges.
5. My Lords, For a Prisoner taken in defensive Wars, and like wise for Pledges and Hostages for the securing of Peace, that the charge of the maintenance of these, and the carrying them to the several places of their abode, have been always born by the Kings of the Realm, the allowances in the Chequer are so frequent as that I intend to cite none of them, save that for the Prisoners taken in conflict at Dover before spoken of, which is Co'ia Hill. 4. E. 2. Ro. 22. Dor. neither do I find it at any time stood upon save only 8. E. 2 amongst the Bra. Trin. 8. E. 2. R. 88. Dor. but the reason is because that after the death of E. 1. in the commission of granting the Constable-ships of the Castle, no mention was made of the Prisoners, and yet even in that case upon a Monstravit Regi, a Writ of Privy-Seal is awarded for allowance, prout Justum
My Lords, If in all these particulars of Souldiers, Victuals, Castles and Forts, Horses, Prisoners, and Pledges, in case of defensive Wars, the main supports of them, the Kings could not tax their Subjects, but have born the charge thereof themselves, I shall thence offer it to your Lordships to be so for the defence in general.
My Lords, The allowance in the Chequer in all the particulars before-mentioned are frequent in the case of Mines in the Co'ia. The profits of Silver-mines that they upon an account in the Chequer were always answered to the King, was one of the principal Arguments for the King's right unto them, and there fol. 320. it's held that in all things that concern the Revenue of the Crown, because they are there debated, that the Records of the Exchequer shew not only the course of the Court, but what the Law is throughout the Kingdom.
My Lords, That in Cases of War and Embassies, that the Chequer made no allowance what great Considertion appears by the Stat. of 5 R. 2. Cap. 10. that they were not allowed by the Court till the Partie brought the Great Seal, or the Privy-Seal for it.
H. 25. E. 1. Ro. 22. licet Bre' de Allocat' pendeat de dns' 1000l. allocandis; tamen ante allocationem factam oportet scire si pecunia illa ad opus Reis devenit, & quod ipsi doceant super hoc Curia Regis, and Trin. 25 E. 1. Ro. 47. the allowances never ingross, but by particulars.
My Lords, The next proof that I shall humbly offer unto your Lordships, is in that of borrowing of money by the King for the defence of the Realm, which, as they have usually done it, so it is as clear that not only upon Petitions, at their own pleasures, and upon grace, but likewise upon suit they have been adjudged so to do in the ordinary Courts of Justice.
Co'ia P. 31. E. 1. Ro. 41. 149l. borrowed of Henry Sampson pro defensione totius Regni, and repayment ordered. M. 10. E. 2. Ro. 160. Grandes pecuniœ summas borrowed by the King for that purpose, order for repayment.
Bra. M. 3. Eliz. 3. Circa princ'. Ro. 664. My Lords, in this particular I shall cite but this one Case Com. p. 29. E. 1. Ro. 18. the King, pro urgentissimis Regni negotiis & defensione totius Regni, had seized divers sums of mony in all the Abbies, and Cathedrals, and other religious Houses within the Realm,o & quo citius commode poterit promised payment, in the Parliament 29 E. 1. at Lincoln the King is petitioned for repayment of these monys, who promiseth payment, It a quod Regis Conscientia super hoc exoner atur, and there and Ro. 19. divers sums adjudged to be paid, and p. 9. E. 2. Ro. 65.
My Lords, I shall thus humbly offer this to your Lordships, that if the King had conceived, that when himself wanted money for the defence that he might have charged his Subjects, he would never have made this answer of repayment ad exonerandum Conscientiam; for then in Equity and in Conscience the Parliament should have taken care for the satisfaction of these debts, or should at least wise have distributed part of this Charge upon all his Subjects, neither should the Parties have had full satisfaction for all their debt, but have born part themselves.
By the Statute of 35 H. 8. cap. 12. the King for the defence of the Realm had divers great loans made to him; now likewise there being cause of new defence against France and Scotland in aid of the King, they release these assurances given by the King, and likewise release to the King all Suits and Petitions concerning those monys. My Lords, it will need no application; these were general Loans, and for the defence.
First, The Ardua Regni Negotia, for which they are called, are principally defensionem concernentia; that these are not the way and manner of the defence and their evidence therein, but the supplies and aides for this defence, I have presented clear Proofs to your Lordships before. That these aids cannot be raised without their confents is strongly inferred in this, that the Knights of the Shire are to have plenam & sufficientem authoritatem pro se & communitate Comitatus prœdicti ad faciendum & consentiendum to the things in negotiis ante dictis: if this might be done without the consents of the Commons, this in the Writ would be needless; but that this cannot be done without their consents is cleared by the words following in the Negative, Ita quod pro defectu potestatis bujusmodi dicta negotia infecta non remaneant quovismodo. This, my Lords, is the constant form both of the Modern and all the Ancient Writs, and shews clearly that the Commons without their consent in Parliament are not chargeable to a defensive War.
In the Acts of Parliament I shall begin with that of William the Conqueror the fourth of his Regin, which besides that it is cited in the Preface to the eighth Report and Instit. fol. 75. b. and by Ingulph, fol. 519. and Mr.Selden in his Eadmerus p. 171. it's likewise of Record and enrolled in the Red book in the Chequer.
Volumus & firmiter prœcipimus & concedimus, quodomnes liberi homines totius Monarchiœ Regni nostri habeant & teneant terras suas & possessiones suas, bene & in pace libere ab omni exactione injusta & ab omni tallagio, ita quod nihil ab iis exigatur vel capiatur nisi servitium suum liberum, quod de jure nobis facere debent & facere tenenture, & concessum jure bœreditario in perpetuum per commune Consilium totius Regni nostri prœdict.
My Lords, The words by reason of the disjuncitve, & ab omni Tallagio, are plain, that the King shall not exact or take away any thing of any Free-man but what his tenure binds him unto, as in words, by reason of the generality of them, it extends to cases to the defence of the Realm: that it doth so in intent, I shall endeavour thus to present it to your Lordships.
The Military Services before-mentioned for the defence of the Realm, they are by Bracton attributed to the Conquerors Institution; for in his second Bookfol. 36. speaking of them, he faith thus, Secundum quod in conquestu suit ad inventum, Plowden in the Argument of Thomas Tresham's Case.
Means the Conqueror had to do it by reason of the many Attaindors of those that took part withHarold, and after his death with Edgar Ethling. That he did it in a great part appears by Math. Paris, fol. 8. That he put all the Clergy, which before held inFrankalmoigne sub servitute militare, to do service tempore hostilitatis, and by the County Palatine of Durham andChester in those places of danger. In the Book of Knights Fees, in H. 2 time it appears by the Certificate, that they held sometimes de veteri Feoffeamento, and sometimes de novo. And by some of them it appears, that the Tenures de Novo Feoffeomento were before King Stephen's time, and therefore it's probable that the vetera might be those created by the Conqueror. The provision for Soldiers pay by Tenures was likewise of his institution, as appears by that before cited out of the Black Book, lib. 1. cap. 27. That in primitivo Regni statu post Conquestum ad stipendia & donativa Militum, out of Castles and other Lands, in quibus agricultura non exercebatur pecunia number ata sucrescebat.
The Policy and Provision of the Conqueror for the defence being by Tenures, when in this Act of Parliament he says, quod nihil abeis exigature vel capiatur, nisi servitium suum, quod de jure nobis facere tenentur, as I humbly conceive, shews plainly that the Subject was not otherwise to be charged for the defence, nor further than by their Tenures.
This, my Lords, further appears by other parts of the Parliament, where speaking of any thing of Charges that is to be done according to their Tenures, as that all bene se teneant in Equis & Armis ad servitium suum integrum saciendum. But in the next place speaking of the defence, it faith that all within the Realm Sint Fratres Conjurati pro viribus & facultatibus, to defend the Kingdom and the Peace, & ad judicium rectum, & justitium saciendum, the coupling of the Defence with that of the Peace, and doing Justice, shews the personal care that all by their Oath of Allegiance ought to bear to the Common Peace and Good of the Realm.
The next Statute which I shall present to your Lordships, is that of Runimead 17 Johannis, the words are these, Nullum scutagium vel auxilium ponam in Regno nostro, nisi per Commune Consilium Regni nostri, ad Corpus nostrum redimendum, and to Knight his eldest Son, and to marry his eldest Daughter: as in words this extends to the defence, because all supplies for that purpose from the subject, they are only in auxilium or in Subventionem expensarum of the King, who, as before is proved, is principally bound thereto. So may the intent likewise further be gathered, first from this, that the word Auxilium is joyned with that of Scutage, which is for the defence: and likewise from this, that particular satisfaction is made by other parts of the Statute to those that had been disseised by R. 1. and King John, which were things done only for the increase of their Revenue without shew of the common defence, that both before 9 H. 3. and afterwards 20 E.I. this was a a Statute and so accounted, I have before proved, and in the Book of 5 H. 3. it is called by the name of Magna Charta, Sans addition. So 37 H. 3. in that solemn Confirmation observed by Math. Paris, pag. 1155. this of Runimead is confirmed by the name of Magna Charta; and 5 of H. 3. pag. 1220. which I note only to this purpose, that of speaking of Magna Charta this of Runimead is intended as well as that of 9 H. 3. as part thereof, and bodied both together; yet that neither of them were observed, either in King John's time, and of H. 3 time our Histories are full of it, and by the Popes Bulls of 12 & 13 H. 3. the Pope absolving the King from his Oath in their Confirmation, doth it, because as the words of the Bull are Juramentum peccati vinculum essenon debet; neither till after 29 E. 1. as I shall hereafter prove, were they at all observed in things concerning the King's Prerogative.
That of 25 E. 1. cap. 5. & 6, the grievance is for Aides and Prizes taken through the Realm for the Wars, the King grants that such Aides, Tasks and Prizes taken through the Realm for the Wars shall not be brought into any Custom for any thing before done, be it by Roll or any other President that may be found; and further grants, that for no business from henceforth that he will take such manner of Aides, Tasks and Prizes but by the common consent of the Realm, and for the common Profit, saving the antient Aides and Prizes due and accustomed. My Lords, although by the Coplative it is clear enough, that there must be common consent, and common profit concurring; and although the saving of the ancient Prizes and Aides accustomed might well enough have been satisfied in the Aid excepted in Runimead, and the prizing of Wines and Purveiance.
Yet to our these and all other scruples the Statute de Tallagio made afterwards for that purpose is general, That no Tallage or Aid shall be taken by the King, not that any of his Officers shall take any Corn, Leather, Cattel, or any other Goods, without the Consent of the Party.
My Lords, To bring these Statutes to the thing in question, that these things cannot be done, though for the defence, the times of the making of them, and the circumstances concurring thereto, I shall present to your Lordships.
That of 25 E. 1. by the date appears was the 10th of October 25 E. 1. My Lords, the King the 12th of August before being at Odimer, ready to go over to Flanders, the Parliament being then summoned by His Letters Patents, Rott. pat. 25 E. 1. m 7. taking notice of the Constables and Marshals departure from the Court in displeasure, and of the rumours of the People, that the King refused to Seal Articles sent him for the common profit, for redress of divers grievances done to the People: for the grievances, he faith, that without those things he could not have defended the Realm, and yet faith that he is sorry for it, and prayeth that this may be his excuse, as he that hath done those things, neither to buy Lands nor Tenements, nor Castles, nor Towns, but to defend himself and the whole Realm, and that if he returned again he would have all know that he had an intent to amend all those things, to the Honour of God, and the content of His People, and that he hath done much already, that if he dies in this Service, his Heir shall make amends.
Hereby it appears, that the grievances which procured this Statute, were for the Defence of the Realm; therefore from hence it follows, that the Aids and Taxes there mentioned were for the Defence; so likewise that the exception of the ancient Aids extends not to those of the Defence, that being the thing wholly complained of. This Declaration of the King was the 12th of August; the September after, the King being at Winchelsey, these Articles are sent to him, to which he deferred for the present to give His assent unto, because His Council was not there; and so fails over into Flanders. This Statute of 25 E.I. is past the King beyond the Sea; The Teste Edwardo filio nostro at this Return, as appears by Walsingham p. 42. The King is desired to confirm these Articles, which in Walsingham P. 40. are the same word for word, as in the Statute de Tall. which the King then deferred.
27E. I. they desire it again, which the King doth with a Salvo Jure Coronæ nostræ in fine abjecta quam cum audissent Comites cum displacencia ad propria dissesserunt, faith the Author, Sed revocatis ipsis ad quindenam Paschæ ad votum eorum absolute omnia sunt concessa.
That the Statute de Tallagio, was after that of 25E. I. is plain in this, by the King's going over to Flanders without assenting to any Articles, in September; and the both of October following, as appears by that Statute 25E.I it self, it was made; and likewise by the Statute de Tallagio it self, in the King's releasing all Rancor to the Earl Marshal and Constable, who had most offended him, and that first presented these Articles to the King.
My Lords, I shall add this only, as I conceive it, it will not be proved that this King either before or after the making of this Statute, or any of His Successors since, ever claimed this absolute Power over the Subjects, as to lay Aids and Tallages upon them for the supportation of their own private Estate, abstracted from the common defence or good. This King at this time, we see by His own Declaration, was far from it; this last Statute fully satisfied those that desired it; for as Walsingham faith, ad eorum votum absolute omnia sunt concessa. If therefore it extend not to that of Defence, I shall humbly offer it by what construction of it our Ancestors Judgments and Discretions will be freed from a great deal of Censure that were so well contented with it.
My Lords, Magna Charta being confirmed at the same time when the Statute of 25E. I. was made; and both that and the Statute de Tall' being only Articles uponMagna Charta, they were all of them, as I conceive, intended in the Subsequent and so often confirmation of Magna Charta.
My Lords, the next is the Statute of 14 E. 3. Cap. 1. that the People shall not be compelled to make any Aid, or to sustain any Charge but in Parliament. That this cannot be done for the Defence, will (as I conceive) be inforced from the words; for a great Subsidy having been granted, as well for the Wars on this side the Sea, that is for defence, as for the French Wars.
It's declared, that this shall not be drawn into example, and that out of Parliament, they shall not be compelled to sustain any Charge; and then it is further enacted, That they Subsidy, and all the Profit of Wardships, Escheats, and other Profits of the Realm, shall be spent for the defence and safe-guard of the Realm, and the Wars in Scotland and France, and not other-where: So that the Statute (as I humbly conceive) all put together, bears this sense, that the Subsidies granted in Parliament, and the Wardships, being a fruit of the Tenures created for the defence of the Realm, and other Profits arising to the King by way of Prerogative are to be spent for the defence of the Realm, and the King's other Wars; but that no Aid or Charge for any of these can be laid upon the Commons without consent in Parliament.
My Lords, that the practise of this King, I mean E. 3. was contrary to the Statutes, and that they were not kept, appears by the Parliament Roll 15 E. 3. N. 9. the next year after, where the Commons shew, that their goods were seized, and their Bodies imprisoned without any Suit commenced against them.
As for my part, I have seen no general Loans or Benevolences, but they were for the Defence: So I conceive, if they were any otherwise, they are but few in respect of the other: The Common grievances therefore being by Loans and Benevolences of that nature. These Statutes, I conceive, were made against them; for these not being within the words of any of the former Statutes; as therefore the Kings might with the more colour put them in practise, so, on the other side, being equally as dangerous to the Subject, because of the displeasure by denial, procured the Statures. That Loans for Defence were after 25 E. 3. counted unlawful, appears by Walsingham, P. 179. that 44 E. 3. The King sinistro usus Consilio magnus Summas Pecuniœ of all forts, mutuo petiit asserens quod in defensionem Ecclesiœ,& Regni illas expenderet, but that the People would not lend.
My Lords, the next which I shall cite is direct in words, which although it be not an Act of Parliament, yet the weight of the Authority, by the putting of it, will appear, it's the second part of the Parliament Roll 2 R. 2. N. 3, 4, & 5. the Kingdom being beset with the Enemies of France, Spain and Scotland, who all three by Land and Sea invaded the Realm. The Privy-Council not willing in a thing so much concerning the Realm to take the whole carriage of it upon themselves, not desiring so soon to call a Parliament, but a little before being dissolved, they therefore resolve to assemble a great Counsel of most of the Bishops, Lords, and other great Men, and Sages of the Realm, who meeting, and finding the absolute necessity of a present preparation for defence, and that the King wanted Money to do it; what their full and final resolution in this case of extremity for the Defence was, I shall read the words of the Roll; they say, Pur Conclusion final qu'ils ne poient cest mischief remedier sans charger les homines de Realm quel charge ne pait de fait ne grant sans Parliament. And therefore the necessity being urgent, these great Men lend Money for the present, which advise presently to call a Parliament, as well to provide for the re-payment of this Loan, as for a further Supply. It's true, my Lords, this King at this time was within age; and it's as likely that many of His Council had been likewise: e. 3. His Grandfather, His Privy Council, who well knew His Prerogative, and extended it as far, by reason of His great Wars, to the charging of His Subjects, as any before or since His time; and that not only the Privy-Council, but likewise, as the Record is, almost all the Prelates, as well Abbots as others, Dukes, Earls, Barons, Bannerets, and other Sages of the Realm, which, as I conceive, were the Judges, should be so far from putting this in execution, as that they declare in the negative, upon full deliberation, that the Commons cannot be charged herein but in Parliament. Themselves likewise thereby being to undergo a present Charge, by lending to supply that necessity. The Authority must needs be weighty, that upon second thoughts afterwards the same was declared in full Parliament by the Lord Chancellor, and so afterwards entred upon the Roll without any qualification at all, adds further to the Authority.
Ultimo Februar' 3 Caroli, a Commission issued to divers great Lords, the end, as appears by the words, was for aiding the King's Allies beyond Sea, and for the defence and safety of the kingdom and People. They were by the Commission to raise money by Imposition or otherwise, which, without extream danger to the King, Kingdom, and People, can admit no long delay, wherein Form and Circumstances are to be dispensed with, rather than the substance lost. This, my Lords, was a Commission to tax the Subject in time of necessity for Defence. The last Parliament this Commission, as against the Law, was condemned by both Houses, and cancelled in His Majesties Presence, and sent so to be viewed by both Houses.
Philip Commines, in his fifth Book Cap. 8. observing the same above all others, commends the policy of the English Laws and Government. And both he and Bodinus, de Republica lib. 6. Cap. II. And Pasquerus, Advocate-General in the King of France his Chamber of Accounts, in his second Book Cap. 6. & 7. all shew this likewise to have been the ancient Law of France; and how the Practice comes to be otherwise, there Pasquerus shews at large; and that the King sometimes endeavouring the contrary, found so much difficulty, that they afterwards, especially Charles the 5th, procured by the consent of the three Estates these Aids for Defence to be granted for three or four years together; and that this consent of the People at first was that which afterwards gave the occasion to the King to take it without consent. And therefore he concludes, that France being un Relme de consequens, that they must not easily promise any thing, though but once, which they will not be willing to permit for ever.
I. For those of Authority, 13 H. 4. 14, 16 Gascoignes opinion, That the King may Charge His People without Parliament, to a thing that is for the common Profit of the People; the thing he applies it to, is, that the King may grant Pontage and Murage.
The Answer I shall give to them is; first, That these Grants do charge venalia only, that is Goods carryed to those places for Merchandize; but that any Tax may be laid Secundum statum & facultates, either upon the Hundred or County, I shall humbly deny it.
It is true, my Lords, by the Conqueror's Laws it appears, that Cities and walled Towns were for the defence of the Country; and therefore by those Laws no Fair nor Market might be kept but in Civitate, and Burgis Muro Wallatis; and therefore in Doomesday, in all such it's found, that there are so many Mansions, murales, which by their Tenure, when need was, were bound ad murum reficiendum.
That no other Land that holds not by that Service is liable, appears by the Parliament Roll, I R. 2. Secunda pars N. 76. where all the Cities and Burroughs of England petition, that in this time of danger, they not being able with their Merchandizes to do it, that others that had Land within the Town might be made Contributaries, avant ceo beure out port nul charge.
The Answer is, that all, according to their Tenure, as they have anciently done, so shall they still. And if this might be done, there would have been no need of the Statutes of 2 & 3 P. & M. Cap. I. 23 El. Cap. 4. for giving power to tax Men Secundum statum & facultates to repair Castles and Towns within 20 Miles of Scotland.
For the Tolls, and Pontages, and Panaiages, as there is a great deal of equity for those that receive benefit by bringing their Goods to the Markets, and over the Bridges, should contribute to the Charge that may maintain the Market-places, and the Bridges; so neither are these compulsary, but voluntary Charges; for as no Man pays but he that receives the benefit, so is none compellable thereto, but is let to his liberty.
Neither is there any colour in respect of the Town it self, to whom the Murage and Panage is granted, why they should not be charged, because the Grant cannot be but at their own Suits; for if it be not at the Suits tot Commoditates, the Grant is void, and to be revoked, as appears Pat. 5 E. 3 secunda pars M. 20.
It may be further objected, That as the Town hath intrusted the way and manner of managing of the Defence wholly, and independently unto His Majesty; so likewise, if Aids and Means, as the Causa sine qua non, the other cannot be effected. And therefore His Majesty should not be dependent upon the Parliament for them.
My Lords, The meer relation between His Majesty and the Parliament, that they are but one Body, hath been presented to your Lordships, and that His Majesty did exercise the Summum imperium; there Bodine lib. I. Cap. ult. says, ejusdemq; osse potestat' tributa nova imponere, cujus est Legem ferre; but that the Legislative power is not in His Majesty out of Parliament, will be granted.
2. The Subjects Interest being as meerly concerned in the Defence, as His Majesties, there's no cause why they should not be willing to proportion the Aid to the occasion; so neither can the Law presume otherwise, which hath so high an opinion of the Judgment and integrity of this Court; that as it is in the Comen' 398. it's unlawful for any Man to conceive any dishonourable thing of it.
My Lords, my last Answer hereto is, That by the Law the King hath as independent a Power to make a forreign War, as well as defensive. It will, I conceive, be granted, that His Majesty in this Case hath not power to tax the Subject; for then it would follow, that as well as to the conquering of the next adjacent Realm, so of all Europe, the Subject should be at the Charge, and yet the Land conquered should be only His Majesties; and yet upon this ground, in respect of the equality of the Powers, it might be done as well there as here.
Neither, my Lords, as I humbly conceive, doth this only answer the Objection, but returns upon the other side for His Majesties Highness Power to make offensive War, which for the most part causeth a defensive; by this means that should be in His Majesties Power to cause a defensive War, and to tax the Subject for the maintenance of it.
My Lords, The last Objection whereto I shall endeavour an Answer, stands thus; The Parliament is a great Body, and moves flowly, and that the cause may be such, that the Kingdom may be lost before the Parliamentary Supplies come.
That the Services whereby the Law hath provided for the Defence both at Land and Sea, they have the same mention of time with the Parliamentry Supplies upon the Summons of the Tenants by Knights-Service ad exercitum; and of five Ports 40 days warning is to be given as for the Parliament.
And anciently the Summons, ad exercitum, to the Ports, and for the Parliament, went out much about the same time, that the Parliament might asses the Escuage; and that in case the Tenures, and other Revenues, were not able to maintain the War, that the Parliament might provide for further Supply, as appears 28 E. 1. M. 15. 31 E. and 34 E. 1. M. 15, 16. & oportet neminem legibus essesapientior'.
In the Parliament, 4 R. 2. N. 42. the Commons desired payment of E. 3d's Debts, that they might be encouraged to lend the King in Aid of the Realm, if a sudden cause of necessity should fall out; the Answer is, that it shall be done solonq; le Petition.
The first is that of the Parliament Roll of 2 R. 2. before cited; the business of Defence could not stay so long as for a Parliamentary Supply, yet agreed, that the Commons without parliament could not be charged; and therefore the same Men that give the judgment presently lend Money for that purpose.
In the Statute of 31 H. 8. for Proclamations, the cause of the making of the Statute is expressed in these words; Considering that sudden causes and occasions fortune many times, which do require speedy remedies, and that by abiding a Parliament, in the mean time might happen great prejudice to ensue to the Realm; Therefore the Kings Proclamation is by that Act made equivalent to an Act of Parliament, but with a full exception of their Lands, Goods, and Chattels, which as it shews, that before, by the Common Law, the Kingdom could not, in Cases of Exigency, that could not stay for a Parliament, take or seize their Goods; so were they careful still to preserve this Right.
My Lords, after this Statute of 31 H. 8. the Maxime of Justinian was true in H. 8. as of the Roman Emperors after the Lex Regia, whereby the People transferred their suffrage to the Emperor, quod principi placet Legis vim habet; so at that time was that other as true on the Subject part here, as there in the digest, Lege IO de regulis juris quod meum est nonest universitatis, & quod-nostrum est sine facto nostro ad aliam transferri non potest.
The 7 Pertica of Spain, tit. 1. pertica secunda, give something more to the King; for He may take from the Subject pro necessitate Reipublic' dato primus tali casu Domino rei bona lambia ejusdem, vel majoris precii bonorum virorum arbitrio; He may in this Case take, giving a Pawn to the Subject for the assurance of a future full satisfaction.
Livy in his 20 Books, Cap. 35. Bodine in his 6th Book, fo. 655. affirms, That when Hannibal had put Italy and Rome it self, unto so great hazard; and that there was not Money left in the common Treasury, that yet the Senate, without their consent could not charge the People; but that unusquisq; of the Senate, mutuo debit aliquid in usum publicum.
My Lords, the last Authority for the answering this Objection, and clearing of the whole business, is the Commission for the Loan in the West, 2 Car. 4. Pars Pat. the words are these, Great and Mighty Preparations, both by Sea and Land did daily threaten the Kingdom, that the safety and very subsistance of the King and People, and the common Case of Christendome, were in apparent danger of suffering irreparably, that the Kings Treasure is exhaust, and the Coffers empty; that the business of Supply cannot endure so long delay as the Calling of a Parliament: and inquiring into all means just in Cases of such unavoidable danger: A King is now resolved to borrow of the Subject, to enable His Majesty, for their safety, and promiseth re-payment.
My Lords, the borrowing of Money only is the thing required, that is, for the Defence the King had no Money left, the Exigency such, that it would not stay for a Parliament; this Commission afterwards in the Parliament 3 Car. was questioned, upon debate adjudged by both the Houses of Parliament to be void in Law, by the Petition of Right presented so to the King, His Majesty denies it not. My Lords, from this Objection of sudden danger I come to the next, which is the third thing before offered to your Lordships, which is an admittance that the damage sometimes may be such, that the Subjects Goods without their consent may be taken from them; for as propriety being both introduced and maintained by humane Laws, all things, by the Law of Nature, being common; there are therefore some times like the Philistines being upon Sampson, wherein these cords are too weak to hold us, necessitas enim, as Cicero says, magnum humane imbecillitatis patrocinium omnem legem frangit, at such times as propriety ceaseth, and all things are again resolved into the common Principles of Nature.
These times, as sometimes they are only in instanti, and concern but some few, as in Cases of killing one another in a Mans own defence, pulling down Houses in a common Fire, making of Forts upon other Mens Lands, or with their Goods, upon sudden Assaults; so sometimes they are longer in continuance, and larger in extent, and concern the whole Kingdom, as it is in times of War, quando agitur pro aris & forcis flagrante bello.
And as on the Particulars before-mentioned, which are but for a short time, and that concern some few only, the Law hath no power for that time, nor on any times any property; so in the latter it loseth this power for a longer time, and over all.
A Dissent upon Disseisin in time of War takes not away the Entry of the Disseisee, Litt' Sei' 412. no plenary after the six Months barrs not the Patron of his Luare impedit, upon a Presentation in time of War, 43 E. 3. & Imp. 135. W. 31.
And in a Writ of Right, where the Seisin makes the Title, the taking of Esplees must be alledged to be done tempore Pacis, the Law allowing no Estate in such times, but calls it an occupation in time of War, Litt. Sei' fo. 12.
And as inter arma leges silent, so that of Brac' H. 4. fo. 240. that tempus guerr' est tempus injuriœ is likewise true; for after the War is ended, the Law, as not having any cognizance, of things then done, gives no remedy for wrongs in that time sustained, as the Case is adjudged in the Roll of Rent, 7 E. I. inter placita de querelis Willielmum Parleton queretur de Petro Rardinum quodipse die Mercurie ante factum. St. Tho. 46 H. 3. came to the Town of Cleve, and took of the Plaintiffs Goods three Oxen, four Cows, and three Heifers, and yet detains them; the Defendant alledgeth the Pardon of H. 3. of omnes transgress' factas ratione turbationis tunc in Regno existentis, and that it was tempus guerr' when the Goods were taken; the Plaintiff replies, That the King can pardon only offences done to himself, & non transgressionis aliis illatas, the Defendant rejoyns thattempus illud was tempus guerr ',& non tempus Pacis, and upon this the Issue is joyned. The Jury find, that when the Defendant took the Goods, suit tempus Belli, & non tempus Pacis; and therefore it was adjudged for the Defendant.
Tempus Belli, when property ceaseth, is not upon every intestine or defensive War; but only at such times when the course of Justice is stopt, and Courts of Justice shut up; and that this is that Tempus Belli is the Institutes Sec. 412. p. 39. E. 3. B. R. Ro. 49. the Attainder of Treason of Thomas Earl of Lancaster reversed the Error assigned, quia tempore Pacis maxime cum per totum tempus predictum Cancellariœ & aliœ placit' Cur' Domini Regis aptœ fuerunt, & in quibus Lex cuicunq; fiebat prout fieri consuevit; nec predictus Dominus Rex in tempore illorum cum Rex illis explicatis equitavit.
That there were greater Armies a foot on both sides in this business, when the Earl was taken at Borowbrigge, our Histories are full; but yet it was not that Tempus guerrœ intended by the Law, because the Courts of justice were open, and the King, with Banners displayed, was not in Person in the Field.
My Lords, in these times of War I shall admit, that this Writ is legal, and not only His Majesty, but likewise every other Man that hath Power in his Hands, may take the Goods of any within the Realm, pull down their Houses or burn up their Corn, to cut off Victuals from the Enemy, and do all other things that conduce to the safety of the Kingdom, without respect had to any Mans Propriety.
12 H. 8. 2. Br. Trans' 406. 8 E. 4. 23. That is such times a Subject may make a Bulwark in another Mans Land, and that the Laws already established are silent at such times for any Law to be made: And although in that foreseen and lingring War of Hannibal's, whereof I have before spoken, the Senate could not charge the People; yet when there was a tumultus Gallicus, that is, when the Cisalpini, their Neighbours, on the sudden (as sometimes they did) assaulted the City; by the same Author the Case was otherwise.
My Lords, besides this sudden and tumultuous War, which shuts the Courts of justice, and brings His Majesty in Person into the Field, and wherein Propriety ceaseth: The Law likewise takes notice of other times of War. As when His Majesty, upon just cause known to Himself, by His Proclamation proclaims War against any Forreign State, and likewise the Law takes notice of the effects thereof: That is, that no Subject of such Prince or State is capable to prosecute any Suit, though but in a Personal Action, in any His Majesties Courts; and likewise that then it is lawful for any His Majesties Subjects to seize and keep to their own use the Goods of the Subject of any such Prince or State, as the Books are adjudged, 7 E. 4. 13. 3. H. 8. Br. Propertie 38. 22 E. 3. 16.
My Lords, it appears not by any thing in the Writ, that any War at all was proclaimed against any State, or that if any His Majesties Subjects had taken away the Goods of any Princes Subjects in Christendome, but that the Party, might have recovered them before your Lordships in any of His Majesties Courts; so that the Case in the first place is, whether in times of Peace His Majesty may, without consent in Parliament, alter the property of the Subjects Goods for the defence of the Realm.
Secondly, The time that will serve the turn for the bringing in of the supplies and means of the defence, appears to your Lordships judicially by the Writ, that is seven moths within four days; for the Writ went out 4. Aug. and commands the Ship to be at Portsmouth the place of the Rendezvous the first of March following; and thereby it appears that the necessity in respect of the time was not such, but that a Parliamentary consent might in that time have been endeavoured for the effecting of the supply.
Yet this is but a general, how or in what manner periclitabatur non constat. By the Law the Defendant may have a Protection when he is in negotiis Regni: but when he will make use of it, it's not allowable in that generality, but he must shew in particular in what Town, or Castle, or other particular Service he is in, that so the Court may judge whether the cause be sufficient, yea or no; and yet is that His Majesties Writ too, as well as this in question: see the Books for it 36 H. 6. 39. 28 H. 6. I. Yet in the fourth place, If your Lordships shall give any heed to this general, as to the particular of Pirates insetting the Coasts and preparations further ad Regnum gravandum, mentioned in the Writ, the case then, as I conceive, is this.
In a time of Peace His Majesties vigilancy foresees a danger likely to ensue, the supplies for prevention of this danger will serve if brought in seven Months after within four days, whether in this case without their consent in Parliament His Majesty may alter the property of His Subjects goods.
Mr. St. John's second days Argument.
My Lords, I have now done with the defence in general, and in the last place I shall endeavour to prove that this of the Sea hath no such peculiarity in it, but that it will sall within that of the defence in general.
Wherein the first place I endeavour an Answer to some Objections, both from Authority and Reason, that may seem to prove a right. And secondly, to some Presidents concerning the use and practice; in those of the first rank I shall begin with Danegelt.
Secondly, That after the conquest, they seldom insetting the Coasts of the Conqueror, took it not annually as at the first, but at such times only as it is in the Black-Book, lib. I. Cap. II. when ab exteris gentibus Bellum, vel opiniones Belloxum insurgebant.
And Thirdly, That after H. 2. time the Kingdom being altogether freed from the Danish Invasions, although the Danegelt both lost the name and use, it never after his time being taken by Hydes of Land as before; that yet the succeeding Kings by the same Authority did lay other Taxes upon the Subject for defence of the Sea.
I mean the Laws of Edward the ConsessorCap. II. and the Black Book, for the Consessors Laws say, that it was one shilling upon every Hide of Land, and the Black Book two Shillings, by which it should seem that it was little in use inH. 2. time, nor much known.
First, It speaks of the freedom which the Church in the first Institution of it had, which freedom, we know, was not lost till after the Conquest, and likewise of the granting of it to William Rufus by Parliament; and therefore it should seem to be inferted in those Laws afterwards out of the Laws of H. 2. for this IIth Chapter, and that of Danegelt in H. 2. Laws are the same de verbo in verbum, as appears in Hoveden, fol. 344.
Mr. Camb. Britt. p. 142. observed that the Danes first infested the Coasts Anno Dom. 800. and, as his words are, with such Hurly Burlies, as the like was never heard of, made havock of all, razing of Cities and burning of Churches, and for their continual Piracy had got the name of Weccingi, that is Pirates as the Pirates.
The Danegelt first began in Ethelreds time, almost 200 years after the Danes first Invasion, for he began his reignAnno Dom. 978. That provision for Sea-defence was made in the interim after 800, and before Ethelreds time, appears by the many Sea-fights of Alfred and other Kings made within them: that this provision was usually in Parliament, is probable from that of Ingulph, London Print, fol. 488. where, Anno Dom. 833, which was 33 years after the Danes first Invasion, a deed to the Abbot of Crowland is dated thus Coram Pontificibus, Proceribus, & Majoribus totius Anglie in Civitate LondoniR, ubi omnes congregati sumus pro consilio capiendo, contra Danicas Piratas littora Anglie assidue infestantes: if King,Etbelred by his own Authority might have imposed this, it's like some of his Predecessors, the case so necessarily requiring it, in almost 200 years space would have it done before his time.
But fully by the Laws of that King, I meanEtbelreds times, in Mr.Lamberts Saxon Laws, fol. 85. there ex sapientum suorum Consilio peace is made with the Danes, and a certain fum of money in present granted to the Army, as our Historians observe. The Danes by composition were to sent away their whole Fleet saving 45 Ships, which were to remain to defend the Kingdom against other Enemies, and the King was to maintain these Ships at his Charge: that the Danegelt was paid to the Danes for this defence many of our Historians observe. My Lords, That the same Parliament this was provided for, appears by the words of the Law, Si quisigitur post hac Navalis aparatus in Anglia prad. fecerit, hic nobis auxilium ferat exercitus nosq; ei (quamdiu in side manserit) quœ' ad commeatum supputent paravimus per omnia, that this was a Parliament, as the words shew it, so is it held in the Preface to the 9th. Rep. If this was not the Danegelt, yet this is clear, that in that King's time then promised contra navales apparatus vias, made by Parl. Huntingdon, fol. 265. London Print: Primum statuerunt Angli infausto concilio quod ipsi Danis censum persolveret Regibus, namque nostris modeo persolvitur ex consudetudine quod Danis persolvebatur exineffabili terrore, that Danegelt, which after the Conquest was paid to the King, we fee by that Author primum statuerunt Angli; statum Anglorum, must needs be by Parliament.
Secondly, The Danes having quitted the Realm, that the Danegelt was released by Edward the Confessor is affirmed by Ingulph. fol. 5 10. and Hovedon, fol. 253. and all our later Historians. That of Ingulph, my Lords, alone is without all exception who lived in those times, for he was brought up in England in the Confessors days, and therefore knew what he wrote. He afterwards went over into Normandy, and was the Conquerors Secretary; came over with him to the Conquest, and at his own charge maintained twelve Horses; he was so great at Court, that as himself writes, fol. 514. quos voluit bumiliavit, quos voluit exaltavit; and p. 518. a Charter of the Conquerors to the Abby of Crowland was made ad petitionem familiaris mei Ingulphi, and therefore in all likehod would not report this partially against the King.
For that of the Black Book, that William the Conqueror retained it quando Bella, vel opiniones Bellorum insurgebant, as that Book is mistaken in the thing, saying it was two Shillings on every Hide, being in truth but one; so it is possible he might mistake in the other too: That it was released in œternum is apparent; that many things were done de facto, to the infringing of the liberty of the Subject, both in his time, and of H. 1., and H. 2. too, it is clear by our Historians; and if it were not released before, yet that King Stephen released it, is written by Huntingon, fol. 221, Hoveden, fol. 276. hoc Deus voluit say these Historians, sed nibil borum tenuit, and as our Historians all agree, that after H. 2. time, in whose Reign the Black Book was complied, it was never paid, so may it be collected out of the Red Book, for all or most of the Aids and Escuages in H. 2. and King John's time being there mentioned in 8 H. 2. quod Danegeldum assessum fuit, but after that, neither in his time nor of King John's is any more mention of it.
Sir Henry Spellman in his Glossary, that when it was taken in the Conquerors time, and since that it was consulti Magnatibus Regni & Parliamentari demum authoritate. My Lords, In the last palce, If the succeeding Kings mutato nomine, only have in lieu thereof laid other Taxes upon the Subject, they must then hold proportion with that of Danegelt, that is, that they have been equally fet upon all the Inland Towns throughout the Kingdom as that was. 2. Upon every Hide of Land: And 3. Likewise in time, and that there was no intermission but that in R. I. and King John's times which were active, that then it was put in execution.
Clo. 15. Johannis m. 3. Dor. & 7. and Matthew Paris p. 312, 313, The Pope had granted the Crown of England to the French King, who was ready to invade the Realm; great provision of Shipping was made ad liberationes Regis, & ad stipendia Regis.. So far was this King, in this time of necessity, from imposing any aid upon the subject for the Sea-service, as that he himself bore the Charge.
My Lords, The next authority from the right which I shall insist upon, is that in the terms of the Law, fol. 114. in the Title of (Hydage ) the taxing by Hides was much used in old time, and that chiefly in King Ethelred's days, who in the year 1006, when the Danes landed at Sandwich in Kent, taxed all the Realm by Hides; and every 910 Hides of Land should find one Ship.
My Lords, My first answer is, That this was done when there was a formidable Enemy, and which soon after conquered the Kingdom, was upon the Shore, as by the Book appears, and therefore likely that the Courts of Justice were shut, and that the King was in Person in the Field.
Thirdly, It appears not by any thing in the Book, but that this might be done by Parliament, many of the ancient Acts of Parliament are statuit Rex, vult Dominus Rex. And whereas the Book faith, taxing by Hydage was much used in old time. That these were by Parliament apears both by use and authority, express in Print. Doomesday in Barkshire, quando geldum dabatur communiter per totum Barkshire dabat Hydam 3 s. there we fee Hydage dabatur, Matthew Paris, p. 780. many Caruragia and Hydagia recited in Parliament that had formerly been given to that King in Parliament.
Bracton in his second Book, fol. 37. is express in the Point, that they cannot be taken but by grant in Parliament; his words are these, Sunt quœdam communes preœstationes quœ servitia non dicuntur nec de consuetudine veniunt, nisi cum necessitas intervenerit, sicut sunt Hydagia & Caruragia denecessitate & ex consensu totius Regni introductœ, Rot. p. 8. b. 3.m. 4.
M. 25. E. 1. finiente C. B. R. 77. The Abbot brought a Replevin against Adam de Brigland and others for taking his Cattle, the Defendants avow in these words, discunt enim quod occasione turbationis inter Regem & Regem Franciœ subortœ assignatus suit Will: de Leyborn ex parte Regis ad Custodiam Maris faciendam, ratione cujus custodiœ faciendœ Terra & Tenementa hominum ejusdem Comitatus agistata fuerunt ad Custodiam faciendam, and the Abbot was sessed 22 E. 1. at 75. 23 E. 1. at 135. and 24 E. 1. at 195. ad prœdictame Custodiam faciendam, and because he resisted to pay that, the Defendants being Collectors for the Town distrained the Abbot. The Abbot in Bar of this Avoury says, that for his Lands he was assessed to find a Horse and Man in Subsidiam Custodia Predicta, and that he found this Man and Horse accordingly, ad eandemcustodiam saciendam, and, therefore demands Judgment, Si una & eademoccasion Custodia Predicta, he ought to find the Horse & nihilominus prædictam pecuniam Solvere. The Defendants maintain their avowry, and say, that the Abbot had divers other Lands within the Town, and that he was sessed for them for money, and that he was not sessed for those for the Man and Horse, therefore issue is joyned and day given, without any more thereupon that I have seen.
By the case it self it appears, that the Sesses were in time of War, the words are occasione turbationis inter Regem & Regem Francia; neither was the War with France only at that time, but likewise with Scotland and Wales, and all the effects of War.
The French had landed in divers parts of the Realm, and in particular 23 E. I. in this County of Kent, and had burnt the Priory and the greatest part of Dover; Dover Haven was shut up for a great part of that time, the goods both of the French and Scotch seized throughout the whole Kingdom, the Lands of all Priors Aliens feized, and those that were upon the Maritime parts removed, and Natives put in their Houses, and all Strangers whatsoever that landed within the Kingdom to be arrested: all these, if any of them shall be denied, will be made good, not only by our Histories, but likewise by the publick Records of the Kingdom: so that my first answer is, that these Sesses were in time of an actual defensive War from the two next and greatest States unto the Realm.
My second Answer is, that it appears not at all by any thing in this Case, that these Sesses were made by any Authority from the King, for the words are only in the general, that the County was agisted, and that the Abbot himself was agisted, but says not by whom or whose Authority.
That it was not by the King's Authority appears by Leyborns Commission, appointed ad custodiam predictam Saciendam, as the words of the case are; for by his Commission whereby he was to do this, which is Rot. vas. 22 E. 1. M. 8. He was so far from having any power to Tax the County hereunto, that he is Commanded for Victuals, Arms and other things that he shall need in this business, that they shall pay those from whom they shall have any such thing, which likewise is entred in the Co'ia 23 E.I.Rot. 77.
My Lords, That there were Parliaments in every one of these years appears by the Summons, and those in words not usual; for the great Fleet of France being mentioned, and that the French did intend Linguam Anglicanam omnino delere, they were now called ad tractandum Ordinandum & faciendum nobiscum, and the Lords, & aliis incolis Regni qualiter fit hujusmodi periculis obviandum, as it is in the Close Roll 23 E. 1. M. 4. Dors. and 24 E. 1. M. 7. Dors.
My Lords, That accordingly order was taken cum incolis, and that the Gentlemen and other Inhabitants by way of By-law and agreement amongst themselves did make provision in this particular, I shall endeavour to prove to your Lordships, that it hath been done at other times, and such By-laws good, appears in 14 E. 1. B. R. Rot. C. 60.
The Scots entring Durham and a By-law was made by the Inhabitants for raising mony, and one that refused it was adjudged to pay it. Besides, Leyborn who was Admiral of all the English Fleet there were Custodes Maris in each Maritime County; these as appears Co'ia. 24 E. 1. Rot. 78. Dors. were chosen by the Commonalty of each County.
And that these together with the Sheriff and Inhabitants did make Orders for those things appears by the Co'ia 23 E 1. Rot. 79. where Writs are directed to the Sheriff of Kent, and all the Sheriffs of other Maritime Counties, commanding them, that Circa Maris Custodiam visis præsentibus Milites, & Potentiores liberos homines de balliva tua evoces, & cum ipsis provida circumspectione deliberes, how he should do it. This, I conceve, is pressed in point, and the practice grounded upon that in Parliament ad ordinandum cum incolis.
And this appears first by the Case it self, for the Abbot in Bar of the Avowry says, that he was sessed to find a Man and Horse in Subsidium Custodiæ pradictæ, which must be for Land Service, and therefore demands Judgment Si uno & eadem occasione Cusiodia predicta, he ought both to find the Horse and pay the Sess.
My Lords, This is not denied by the Defendants, but they say that the Abbot had other Lands, and that this Sess was for those other Lands; so that it's admitted that the Sess for the Horse, which must be for Land-service, and that for which they avow were both for the same Cause, all the difference is, whether the Sess were upon the same Land or not?
My Lords, If the Sesses for which the Defendants avow had been for Shipping, they might have admitted all that the Abbot had said in Bar of their Avowry, that is, that notwithstanding he found Arms for Land-service, that yet he might for the same Land have been sessed again to the finding of Shipping. Neither do I doubt but that the Parties in the actions now before your Lordships do find Arms, and yet they are sessed for the Shipping, and that it will be stood upon by the other side, that the finding of Arms for Land-service excuseth not for the Shipping.
Claus. 23 E. 1. m. 4. Dors. A Writ directed Collectoribus pecuniæ ad Custodiam Maris in this County of Kent, commanding them, that in respect that the five Ports were at the charge of Shipping quodqeti sint de Custodia Maris facienda, which must needs lye at Land.
Co'ia 24 E. 1. Ro. 79. A Writ to William Bonill & Sociis suis ad Castodiam Maris in Com. Suffolk assignatis, and yet all that they we to do in that Office is for defence at Land; so Tr. 31 E. 1. n. 20. Co'ia. This Custodia Maritime how it is to be done appears Rot. Parliament. 46 E. 1. n. 49. and by the Statute of 5 H. 4. Cap. 3. It is to be done as heretofore it hath been done according to the Statute at Winebester.
My fourth Answer to this Case is, that the Plaintiff was a Clergy-man, for the Clergy having denied in Parliament to aid the King as the Laity did this year, and at this time they stood at the King's disfavour, and in H. Term as appears Co'ia H. 25 E. 1. Rot. 17. the King Commanded all his Courts of Justice, that if any Clergy-man was Plaintiff in any Action quod nullum ei fiet remedium, and therefore Walsingham, P. 41. in his annatis conclusio of this year of 25 E. 1. says thus, that it was clero Anglie importabilis, quia de Protectione Regia est exclusus, & per Regem nibilominus deperdat.
But my Lords, if I should let all go that hath been said, yet under your Lordships favours, the Case is of no authority at all; for admitting that the Sesses were for Shipping, and that by the King's authority, yet had the Plaintiff no reason to put himself upon the Point of Law, when the matter of Fact would help him.
For if the Sesses were for Shipping, the Abbot says, that before he found Arms for the Land-Service, and demands the Judgment of the Court, if therefore he ought to pay this Sess too. The other part, if the Law had been clear, might have demurred there-upon, so that the Authority sways this way, that none for the same Land are chargeable for Arms at Land, and for Shipping too.
My Lords, Not only for the clearing of this Case, but of all other things that concern it, either in the meer right or matter of Fact before 29.E. I. that before the Parliament at Lincoln, 20, E. I. all things concerning the King's Prerogative and the Subjects Liberty were altogether upon uncertainties.
The Statutes of Runimede, of Magna Charta and Charta de foresta had been confirmed at least eight times, from 17 John unto 29. E. I. and yet not only the Practice, but likewise the Judgments in Courts of Justice were clear contrary, to the plain both words and meaning.
M. 28 E. 1. Rot. 34. Co'ia after the death of John Gray that held per Baroniam, the question was whether he should pay 100l. as the Record says, Prout ante bac onerari solebant, or only 100 Markes propter Confirmatione Mag. Chart. and this the Court would not determine before they had consulted with the King, and yet the statute of Magna Charta had been confirmed but 25 E. 1. and likewise the same year, as appears by the Statute de Articulis super Chartas.
It was now 32 E. 1. in question whether 100l or Marks should be paid, and accordingly adjudged but 100 Marks. The Judgment is thus entred Sciendum enim quod fines istœ of 100 Marks admittuntur, licet bactenus they were always 100l because the King had confirmed Magna Charta 29 of his Reign, and by his Writ had Commanded the Courts to inroll it, and would have it de cœteroin omnibus suis Articulis observari. My Lords, of this kind there be many Cases.
The Charter of the Forrest, Cap. 10. is nullus de cœtero amittat vitam vel membrum pro venatione nostra, and yet against the plain letter and meaning, Co'ia Tr. 27 E. 1. Rot. 44. Adam Gower of Scarburough, as appears, had in this Kings reign been beheaded pro venatione in the Forrest of Danby; and now an Inquisition went out to find what Lands and Goods he had, and then upon the return the question was, whether his Land was forfeited and should escheat upon such an Attainder, and resolved that his Land was not to be forfeited. P. 22 E. 1. Rot. 48. The King's Shepheard had put the King's Sheep into a man's ground who had distrained them, and for this Process went out of the Chequer to punish the man, who there pleads that he knew not they were the King's Sheep.
By these Cases it appears, that neither the Practice nor proceedings in the Courts of Justice in these times, in things between the King and the Subjects, are so much to be relied upon as the words of the Law.
Obj. 4. My Lords, It may further be objected, that at the Common Law, before the Statutes of Winchester, the King might compel the Subject to find Arms for defence of the Land, and therefore by the same reason he may charge them to find ships for defence of the Sea.
I. That His Majesty by the Tonage and Poundage, and other duties at Common Law, before-mentioned, hath a particular supply for that of Shipping, but hath nothing in particular for the other of Armes, and therefore that may with more reason be laid upon the Subject than the other.
And yet for one of the principal things in that Statute of Winchester, that is, for Watching and Warding, the Kings before that Statute had a particular and certain farm or sum of money of each County for the doing of it, which after that Statute the County was discharged of, because by that Statute the County took the charges of doing it upon themselves, as the Cases are, Co'ia H. 20 E. 1. Rot. 10. and Br. Tr. 33. E. 1. Rot. 23. dors. 18 l. pro Can. and 16 l. pro Northumb.
My second answer is, That each Subject, and that Secundum statum & facultates, is already chargeable for that of Ships, as hath been before proved; and therefore if he be chargeable both in Money and kind too, the charge is double in the one, and but single in the other: Neither would it hold proportion with these Cases of Watching, where the Country was discharged of Money, when they took the things in kind upon themselves: And therefore this Objection cannot, as I conceive, be made, unless His Majesty first quit all the before-mentioned Duties upon Merchandize.
3. My third Answer is, That in that of Arms there is only mutatio speciei, chaging of Money into Arms, for they remain the Subjects still in property, and are in his own custody; he may sell them, or imploy them at his Pleasure for his private use.
4. My fourth Answer is, That that of Arms is not only for the Defence against Foreigners, but in the Watchings and Wardings upon Hue and Cry, and otherwise, to keep the Peace within the Realm, and for the execution of Justice, by assessing the Sheriff, when he shall have cause to use the Posse Comitatus, and otherwise; all which do fail in the other.
Lastly, my Lords, in respect of the Victuals and Mariners Wages to be found for 26 weeks; the Case in question, as I conceive, cannot be compared to that of Arms, but rather to that of taxing the Country for finding of Souldiers to go out of their Counties.
5 Obj. My Lords, the next Objection that I shall endeavour to give answer unto is, That it is in His Majesties Power, for the safety of the Realm, to shut up the Ports and Havens of the Kingdom, and thereby to make a general stoppage of all Forreign Trade: And therefore, as His Majesty may anticipate gain, by barring Men from the exercising of their Callings, so by the same reason may He take something away.
My Lords, my first Answer is, That the Law therein doth trust the King only with that, which being done, is most to his own loss, as in respect to the Customs, and other Duties, this of prohibiting Forreign Trade would be.
6 Obj. The last Objection is, That in divers old Charters of Liberties and Exemptions, the Patentees are freed de Danegeldogavigio; hereby is implyed a Right. My Answer is, From the same Charters it may as well be inferred, that the Subject is bound to make and repair the King's Parks and Houses, and to make new Bridges, and divers other things; these Charters of Exemption freeing them ab operationibus Dominiorum Regalium, Parcorum, & Pontium, and from divers other things, which by Law the Subject is not bound unto.
My Lords, for the Presidents that may be brought for proof of the use and matter of Fact; as I do not profess to know them all, so if I did, yet time would not permit a particular Answer to each of them; I shall therefore offer these general Answers to them.
That most of them, or all of them, are for charging the Sea-Towns, and not of the In-land Counties: That besides the Five. Ports, many great Sea-Towns and Havens which have Ships, have many great Priviledges, and are infranchifed for that purpose, is declared in the Parliament Roll of 13 E. 3. N. 11. before cited. Those that are to find Ships, besides the many Prescriptions for Wrecks and benefit of Fishing, are discharged of Arms and Defence at Land, as appears not only by that Parliament Roll, but by the Scotch Roll, 10 E. 3. N. 28. Dors. The Town of Shoram, in the Country of Sussex, time out of mind had found Ships; and therefore being by the Commissioners for the Array taxed to Arms for the Land-Service, a Supersedeas for that very cause, awarded.
Iter Sussex 7 E. 1. Roll. 63. Dors. William de Bruise Lord of Shoram, upon his Claim adjudged, that all the Customs of Merchants at Shoram belonged to him. Rot. Pat. 26 E. 1. M. 16. The Town of Tarmouth, pro servitio Navium impenso & impendendo, are discharged of all Subsidies granted in Parliament, Pro Corporibus Navium & attito, & Co'ia Tr. 3. E. 2. Ro. 30. The Town of Baldfery in the Country of Suffolk, for the same cause discharged by Judgment of the Court.
Petitions 1 E. 3. Ro. 9. Office de Pa', in consideration of the Charge of providing Ships, the Town of Southampton petition, That their Priviledges of having Customs within the Ports be confirmed unto them. That they had these, appears H. 13. H. 4. B. R. Ro. 39. where they are indicted for Extortion, for taking more Custom than was due, Rot. Par. 45 E. 3. N. 31. The Commons pray, that the Franchifes of the Sea-Towns and Havens may be allowed them as heretofore and that by default thereof the Navy of England is much decayed, to the disassurance of all the Realm if need should be. That those that are not Maritime Towns, ought not to be charged, which is the very Case of the Defendant: I shall cite to your Lordships express Presidents.
Claus. 13 E. 3. M. 14. Dors. pars secunda. The Town of Bodwin in Cornwal discharged of Shops, because dicta villa portus non est, & longe a Mare disat, and hat not used before-time to find Shipping, And an Inquistion awarded to enquire of these Particulars, where by it appears, that the In-land Counties had not so much as defacto been usually charged with Ships.
Rot. Franc. 21 E. 3. M. 17. Those Towns quœ Naves non habent & quœ aliis Naves habentibus contributoria non existunt, that they, should be discharged. It appears thereby, that there be some Towns that are Members of great Sea-Towns, and are contributory to Shipping, and other In-land Towns are not contributory, Secunda Pars Pat. 2. R. 2. M. 42. a Chartre 51. E. 3. whereby it is likewise recited, that the Burgesses of Beverley had by their Petition in Parliament complained, That that Town is in loco arido, & a Mari, that ad sinistram procurationem quorundam Machinantium ipsosindebite prœgravare ad contribuendum simul cum hominibus villœ de King ston super Hull, to the making of a Barge, per mandatum Regis. Now they pray de omnibus & singulis hujusmodi oneribus insolitis, to be discharged by the Charter; it appears that they are discharged accordingly, and this now exemplified 2 R. 2.
2. To those of 48 H. 3. both for Taxes for Souldiers, and some to Shipping, I shall give a particular Answer: That it was then Tempus Belli, when the Courts of Justice were shut, for the Commissions went out after April; and in the Red Book fol. 241. 6. it was Tempus Belli from 4 Sept. 48 H. 3. till the 16th of Sept. 49 H. 3. and that the Courts of Justice were shut, appears in 49 H. 3. R. 4. Co'ia Scaccarionon fuer Barones residentes in Scaccario ad Pas. 48 H. 3. and Co'ia Pas. the 49 H. 3. propter turbationem nuper habitam; there were no Sheriffs in aliquibus Comitatibus, 48 H. 3. and those that were, non potuerunt sic facere quœ ad Officium Vic' pertinebat.
To the Commissions 30 E. 1. M. 9. In the Patent Roll de puniendo homines that refused, it is quia ad rogatum Regis mittere concesserunt so many Ships; and if a By-law were good to bind them, as is before proved, as well as their own promise: neither have I seen any legal Proceedings against any of those that refused at that time, save only against the Five Ports that are cited by their Service.
5. For those of E. 3d's time, His Reign was for the most part a time of War, and that the offensive brought a defensive upon the Kingdom is plain. Wal. says, That P. 119. 10 E. 3. the French, Wal. P. 131. burnt Southampton. Stowe P. 234. 12. E. 3. They assaulted Southampton, and burnt part of Plimouth. 13 E. 3. They assaulted the Isle of Wight, Rot. Parliament 13 E. 3. pars prima N. 9. That they had done much mischief upon the Coast and conquered the Isle of Jernesey.
I shall cite to your Lordships the Scotch Roll 10 E. 3. M. 3. The Frenchriding at Anchor at the Isle of Wight, the King sent divers Privy-Councellors to Dover, and commanded all the Officers, Masters of Ships, Mariners, and Inhabitants, from the Thames to the West to come thither, and adtractandum with those Lords of the Council about the Defence at Sea by Ships; and in the Records recited, that not, withstanding the King's former Command, bactenus quiequid non fercer'in premissis, the Writs for Shipping issued before, and were not executed, and therefore now a Commission, if so it might be done with consent. 20 E. 3. Other Writs went out, R0. Fr. secunda part M. 24. 20 E. 3. writ to Tarmouth, propter pericula Maris, to stop up their Havens; and Rot. Fr. Prima pars M. 19. Dors. That no Fishermen go out to Sea.
2. My Lords, If this Answer be not sufficient, my second. Answer is, by denying the King; for besides that of 15 feb. in that time of necessity the Ships were to serve ad liberationss, & ad stependia Regis, and 46 H. 3.M. 4. both in E. 1. E. 2. and this King'stime, before the tenth year of His Reign, Wages for Defence were frequently paid.
My Lords, Because I know not how far this will be stood upon I shall spare the citing of any of them, and shall to this purpose cite to your Lordships only this Case: It is amongst the p. petitions, 1. E. 3. and transmitted into the Chequer, H. 2. E. 2. Dors.
The Fishermen upon the Coast of Tarmouth, 20 E. 2. were daily robbed and killed, and for Rescue of them, those of Tarmouth were commanded to set out some Ships to Sea, and Adam Bridlingtes the King's Clerk, sent with 300l. to set out this Fleet, which the Men of Tarmouth intended they should have as Wages for the Voyage; but the Clerk would not let them have above 230l. and that as Money borrowed of the King; and for this they gave their Bond of re-payment hereof, 1. E. 3. They complained in Parliament, and pray, That they may be discharged of the 230 l. and that the Bond may be cancelled; which is adjudged accordingly, and transmitted into the for a Tryal, whether they had done the Service or no.
My last Answer to these Presidents is, That the Matters of Fact in these years, to the violation of the Subjects Rights, procured upon fresh Suits, not only the before-mentioned Stat. of 14 E. 3. Cap. 1. against any Charge to be laid upon the Subject without affent in Parliament.
But afterwards they complained in Parliament, 15 E. 3. N. 9 That their Goods were feized, and their Bodies taken without any Suit commenced against them, contrary to Magna Charta, and the Statutes and Ordinances made thereupon with so much discretion of their Ancestors.
My Lords, I am now come to the last thing, which is the proofs in the Point, which I shall humbly offer to your Lordships. My Lords, the first Authority that I shall cite to your Lordships is, the Patent Roll 26 E. 1. M. 21. whereby I shall endeavour to prove to your Lordships these two things.
- 1. The confession of that King and His Council, That He was so far from having power to tax the People for the Custody of the Seas, as that he is bound to make satisfaction for any thing taken from the People for that purpose.
- 2. The second, That the Charges laid upon the People for teh Custody of the Sea, were the principal grievances that occasioned the making of the Statutes of 25 E. 1. and de Tallagio non concedendo.
For the last, the King there declares, That He had a desire to redress the grievances made to the People in His Name, and instanceth what they were, veluti de rebus captis in Ecclesiis, & omnimodis aliis rebus captis & asportatis, tam de Clericis quam de Laicis, five pro Custodia Maris, vel alio modo quocunq;. Whereby, my Lords, there's an acknowledgment, that it is a grievance, and to be redressd, — to lay any Tax upon the Subject for the Custody of the Sea.
- 1. Whether the things were taken without Warrant; and if so, then the Party that took the Goods is to make satisfaction, and further, to be punished for the Trespass.
- 2. If there were a Warrant, whether the Sheriff, or other Minister, took more than the Warrant allowed; if so, then the Officer was to make satisfaction.
- 3. If all were done according to, and in pursuance of the Warrant, and no more than upon certificate thereof unto the King, as the words are, it en ferra tant que il se fiendra appayes proreason.
The King hereby promiseth, That whatsoever things were taken from the People, by any command of His, for the Custody of the Sea, that he will make reasonable satisfaction to the Party for such things.
My Lords, for the second thing, that is, That these grievances occasioned the making of these Statutes, is clear from the words of the Patent; for they were made, Post guerram inter Regem, & Regem Franciœ; which, as appears by the Case of the Abbot of Roberdsbridge, was from 22 E. 1. until 25 E. 1. and by all our Historians, and many Records.
It appears likewise by those other words, that the King, before His goint into Flanders, intended to have remedied those grievances; He went over in September 25 E. 1. and the Statute 25 E. 1. was made the 10th of October after.
Hence likewise it follows, that the exception of the King's ancient Aids and Prizes, mentioned in the Statute of 25 E. 1. extends not to this of charging of the People to the Custody of the Sea; that being one of the principal grievances that occasioned the making of it. That the same grievances caused the making of the Statute de Tallagio, I have before offered the proof to your Lordships.
2. My Lords, The next Authority which I shall present is the Co'ia H. 23 E. 1. Ro. 77. there the King commanded 30 Gallies to be made by several great Towns, every Gally was to have sixscore Oars a-piece. These were pro defensione Regni & securitate Maris. My Lords, the Cases are many in the Chequer, where the Mony for the making of these Gallies was recovered against the King.
I confess, my Lords, that the King had promised payment to those that made them, which I shall thus submit to your Lordships: That in Case the King might have commanded the making of them at the Charge of the Towns, that then the King's Promise was but Nudum pactum, in promising payment for that which by Law they might have been forced to do; And so the payment rested only in the King's Grace and Pleasure. But, my Lords, upon Suits in his own time of E. 2. and E. 3d's time, the Money for making these Gallies was recovered by several Towns. M. 29 E. 1. Ro. 29. Dors. for York. M. 31 E. 1. Ro. 77. Ipswich and Donwich, P. 5. E. 2. Rot. 21. for him, prout justum fuerit, nothing having been paid before.
- 1. First the keeping of the Peace.
- 2. The defence of the Marches.
- 3. The third, the safe-guard of the Sea, that the Enemies might not enter the Realm to destroy it.
My Lords, by the Articles themselves propounded on the King's part, it appears that the Commons are not chargeable to the guarding of the Sea; for it is propounded unto them with caution, That not being bound to the guarding of the Sea, that this advice of theirs should not be prejudicial to them, to bind them thereunto, and that there are Ships enow in England to do it, if the People were willing, N. 11. The Commons afterwards, in debating these Articles, when they came to this of the Sea, notwithstanding the caution before, they are afraid, that if they should debate it, that it might imply that they are chargeable to do it; and therefore they protest against giving any advice therein, as a thing whereof they have no cognizance; and do further declare, That the five Ports, and divers other great Towns that have Franchises, and are bound thereunto, that they should do it.
4. My Lords, The next Authority, is the Parliament Roll 20 E., 3. N. 21. The Commons petition in these words, que la gard de la mere se face descries Res soit le gard fit man ad refait amant vis senois ut semble que Melliur gard ne poit estre fait que le Roy ne fait no' post il de marrit issint per de la sur Ca' guer' & pr' de faire de cest terr'.
My Lords, The Commons having formerly granted the King divers Aids and Subsidies upon Wools, Wool-fells, and Leather, and otherwise, for the guarding of the Sea, they now grew weary of it and desire that the King himself from thenceforth should bear the whole burthen thereof, and charge him with his promise to that purpose.
My Lords, This Petition, although in the Name of the Commons, yet the Lords joyned in it; for otherwise all our Acts of Parliaments of those times being made upon Petition and Answer, should be without the Lords assent. Hence it appeared, that & whole Kingdom at this time was so far from thinking that the King could charge them without their consents, to the guarding of the Sea, as that they alleadge that the King himself ought to bear the whole Charge; neither doth the King deny His promise, nor wholly deny the thing; for though he says, that it should be done as hath been done before, yet it is with a qualification, because the Sea cannot be better kept than he hath kept it, by reason of his so often being at Sea in Person, in going and returning from France, and diverting the Enemy by his Wars in France; if the King had given His absolute denial, yet here's the Judgment that both the Houses of Parliament express in Point.
Rot. Franc' 21 E. 3. Secunda pars N. 11. and 9. The Merchants had granted 2s. 8d. upon their Goods till Michaelmas, for providing 120 great Ships pro secura conductione Navium & Merchandizarum, & prodefensiune cœterarum maritinarum Regni, & aliis periculis his guerriuis temporibus regno venientibus. This Grant being made by Merchants, the King alleadgeth this was not sufficient for the Service, and the causes of the stoppage of Trade by reason of the Wars: the King now lengthens out the time from Mich. till Easter following; and to sausfie the People the King by His Proclamation declares, That the 2s. 8d. shall cease at Easter according to the Grant; which as it should seem, not satisfying the People, or the King still continuing the taking thereof, the Commons in Parliament, 22 E. 3. N. 10 pray, that it may cease, and that by procurement of no Merchant, pluis l'argent soit continue.
My next Authority is the Parliament Roll 2 R. 2. Pars secunda N. 5 before cited, where the great Councel and Sages of the Kingdom resolve, That the Commons are not chargeable to the Defence of the Realm without Parliament, extends to this Particular of the Sea, for the present preparation whereto the Commons are not chargeable for defence at Sea; and therefore the Money lent was to provide an Army for the Sea en defence & salvation del' dit Realme, & de la navie, & des costiers del' mere.
My Lords, The next Authority is the Parliament Roll of 2 H 4. N. 22. Commissions to charge the People to make Ships for the defence of the Realm without consent in Parliament, repealed by the King, and the whole Parliament, for that very cause.
Item pur ceo quere tarde divers Commissions fuerunt fait au divers Civies, Burrowis & Villis du Roylme pur faire certein barges & ballingers ss' assent du Parliament, & outment que estre fait devant cesbeures n' les Commons prove a nostre surle voy que les dits Commission soyent repeales, & qu'ils ne soyent de nul force ne fait a que fuit respondus que le Roy voet que m'les Commissions soyent repeales in touts points mes pur le grand necessitie que ad des tiels neises pur defence du Roylme en Case que les queus se priment le Roy voet Communer de rest matter ovesq; les seigniors & puis apres le monstre ove dits Commons pur cut aver lour Counsel advise in tiel part. The first Commissions repealed, because the Commons were not chargeable without consent in Parliament; and now the King will put it into the Parlimentary way by doing with assent of the Lords and Commons.
8. My Lords, my next Authority is the Par. Roll. 9. H. 4. The cause of the calling of the Parliament is for the safe-guard of the Sea, and of the North Marches; and N. 17. great mischief shew for default of the safe keeping of the Sea; and N. 21. It's there inrolled by the King's Commandment, that there was Communication had between the King and the Lords of the Defence of the Realm, and for resitting the Enemies, who made preparation on all sides, whereunto sufficient resistance cannot be provided, without that the King have in His Parliament some notable Aid granted unto him.
My Lords, The King hereby acknowledgeth, that he cannot without the Parliament charge the People for the safe-keepting of the Sea, that being the principal part for the defence there intended. The same with the Summons, that without the consent of the Commons, negotia predicta infra remanerent; and with the Summons in the close Roll, 23 E. I. before-mentioned, quod omnes tangit per omnes debet approbari.
My Lords, the next Authority in the Parliament Roll, 4 H. 4. N. 28. The Lords Spiritual and Temporal, and the Commons grant to the King a Subsidy upon the staple Commodities, and Tunnage and Poundage, and likewise a 10th and 15th with this protestation.
Protestant que cest grant en temps avener' ne soit passe in example de charger les dits seniors ne les Commons du Realme de nul manner Subsidie ne 10th ne 15th a les guerris descore, gates ou safeguard de mere s'il ne soit Ples volunts des Seigniors & Commons de vestre Realm, & CBO a novel grant faire in Plein Parliament.
My Lords, That the Charge of the Defence at Sea, and that in a large proportion, by reason of the before-mentioned Dutie is to be born by His Majesty, I conceive that it will not be denied, that in Subsediam, and Aid of His Majesty, therein the Commons are not chargeable without their consent in full Parliament: in these three Records there is not only these Protestations of the whole Realm, being made by the Lords and Commons, but likewise these Kings consents, by accepting the things granted, and that without any qualification of the Protestations. These Protestations, that they are not chargeable to the guarding of the Sea in a certain way, as are 10ths and 15ths, do much more fail in a way uncertain, as here.
My Lords, my next proof is from the practise of former Kings in their frequent demands of Aids in Parliament, for the defence of the Sea, as well before the Statute of Tunnage and Poundage, as then: and fifthence Monies borrowed by the former Kings for Ships and defence at Sea, and Indentures of Reteyner for that purpose at the King's Charge.
And not only so, but upon Suit, allowances in the Chequer for Victuals, Mariners Wages, Archers, Prisoners taken in Sea-Fights, pro defensione, and all other things necessary for Shipping, when for the Defence of the Realm. Whereupon the same Argument may be made in this particular for the Sea, as was before for the Defence in general.
The last thing which I shall press, is that of the five Ports. Their Service is certain in respect of the time, but 15 days in a year, in respect of the Charge, but 20 Men and a Master, the number of Ships certain.
Besides, that they are discharged of Arms for the Land-Service, they have divers other Priviledges for the doing hereof; they were free from all Aids and Subfidies granted in Parliament, and are by Privy-Seal discharged thereof, H. 2. E. 3. Co'ia, about the end of the Roll.
My Lords, I shall thus offer it to your Lordships, if they that have these Priviledges shall serve but 15 days in a year, how the others that have no Priviledges at all shall do it for 26 weeks, as in the Writ.
Secondly, their Charge is certain in the number of Men and Ships, how the rest of the Commons, that are so far from having any Priviledges or recompence for it, as that they do contribute to this Charge of the five Ports, shall, as by the way in the Writ, be altogether unceratin in the matter of Charge, both in the number of Men, and of Ships, and of every other thing.
This, as it appears by the Quier of Dover, and the Patent Roll of 7 H. 7. before cited, that after the 15 days they were to be at the King's Charge. So in teh Patent Roll, 19 H. 3. 14. because they found 40 Men in the Ship, the King promiseth payment for all over and above the number of 21. Bra. Tr. 33 E. 1. R. 22. allowance to Service in Scotland. The Scots, as appears by Wal. P. 53. and other-where, having about that time burnt divers English Towns and Ships, and a School-house with 200 Scholars in it.
My Lords, if the Ports, who are bound to the Defence at Sea, when they have performed their Service, be not compellable to any farther Charge; I shall humbly offer it to your Lordships, whether those that be not bound at all, are from the same reason chargeable at all.
I know that nullum Tempus occurrit Regi: The disuse thereof I shall press it no otherwise than as it is an Interpretation of the Statute made against all Aios and Tallages in general, and of the complaints in Parliament of 5 N. 9. 36 N. 9. and 37 E. 3. That those Statutes had not been duly kept: And further, as it is an Interpretation likewise of the before-mentioned Declarations, Petitions, and Protestations against this in particular, and as it is an execution of them, and putting them in practice.
The Claims which anciently the Subject hath made upon the Crown, that none of the great Officers of the Kingdom could be chosen but in Parliament, nor that the King had power to sell any of the ancient Crown-Lands; the disuse it shews, that those Claims of theirs were not legal.
Bra. in his fourth Book, fol. 209. says, That longa Patientia trahitur ad consensum; the Non-Cliams therefore of so many of the later Kings and Queens, I shall present unto you Lordships, as so many le Voat's and Declarations of their several consents; That without Assent in Parliament they could not have laid the like Sess upon any of their Subjects, as is now laid upon my Clyent.