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.
Sir John Bankes Knight, the King's Attorney-General, his first days Argument in the Case of Ship-Money in the Exchequer-Chamber, December 16. 1637.
May it please your Lordships,
There was a Scire Fac' brought against Mr. Hampden, and divers others, to shew cause why those Sums of Money Sessed upon them by the Sheriff of Buckingham should not be paid and answered. It beareth Teste 22 Maii 13 Car. and a Sci' Fac' Returned: Mr. Hampden demandeth Oyer of the original Writ 4 Aug. and of the Certiorari, Mittimus, and several Returns. The Writ of 4 Augusti went out to provide a Ship of 450 Tun, with Victuals, Men, Munition, &c. The Writ giveth power to the Sheriff to make an Assessment upon the County, and giveth Power of Distress and Imprisonment contra rebelles in case of Non-payment. He demandeth Oyer of the Certiorari, which consisteth of two parts, the one to certifie the Sums assessed, the other to certifie the Names of the defaulters. And the Names of those that made default were Returned, and Mr. Hampden amongst others. He demandeth Oyer of the Mittimus, which doth recite the tenure of the first Writ.
Upon Oyer of all these, both of the Writ 4 Augusti, of the Certiorari, Mittimus, and Sci' Fac', and their several Returns, Mr.Hampden hath demurred in Law.
The Case that ariseth upon this Record is thus: The King is Lord of the Sea. That's part of the Record. The Sea is infested by Pyrates and Turks, who commit depredations, and take Goods and Merchandizes, both of the King's Subjects, and others that traffick there, and carry them away into Captivity. There is preparation of Shipping, eminent danger; for so the Writ reciteth: A danger, that the King's Dominion at Sea should be lost, or at least diminshed. There was a farther danger, that Salus Regni periclitabatur : Whether in this Case the King, prodefensione Regni, tuitione Maris, &c. may command His Subjects, pertotam Angliam, by Writ under the Great Seal to provide Ships at their own Costs and Charges. And this when the King in His own Judgment conceiveth such a danger as doth necessarily require this Aid. That, under favour, is the Question upon this Record.
There is in this Record, whereof your Lordships are Judges, four Writs. (1) 4 Augusti 11 Car. which goeth out of the Chancery for the fetting forth of this Ship of 450 Tunn. (2) That 9 Martii 12 Car. and that's the Certiorari. (3) 5 Maii 13 Car which is the Mittimus. (4) 22 Maii 13 Car. which is the Sci' Fac'. The second and the fourth Writ, which is the Certiorari and the Sci' Fac', they are Returnable. The first Writ and the third Writ, which is the Writ 4 Augusti, and the Mittimus, they have no Return; but they give command, and require execution should be done, prout de jure, &c. secundum consuetudinem Angliœ.
The first Writ, which is the ground of this Business, standeth upon two Parts, viz. A Preamble, and the Body of the Writ: The Preamble, that containeth, first, a Direction; secondly, the Motive and Causes of the issuing of the Writ. The Body containeth six; The direction that is unto the Sheriff of the County of Bucks, Necnon unto the Bailiffs and Burgesses of Buckingham, and probis hominibus of all the County. The Motives and the Reasons inducing this Writ, are nine in number. (1) Luia priati, &c. That these commit spoils and depredations by Sea, and take the Goods of the King's Subjects. (2) Because they carry the King's Subjects into miserable Captivity. (3) Because of the preparation of Shipping, that is made undiq; to infets the Coasts. (4.) Luia periculum, &c. (5.) Luia pro defensione Regni, tuitione Maris, Reges Angl' 'Dominium Maris temporibus, &c. (8.)Luia onus defensionis, &c. (9.) The most prevalent, Luia hoc per Legem & consuetudinem Angl', &c. The Body of the Writ containeth several Mandates to the Sheriff, and Head Officers, quod fide & ligeantia, &c. sicut nos & honorem diligitis The Mandates are fix. (1.) To provide a Ship of 450 Tunns, Well-armed, and furnished with Provisions, and that was to be in a readiness by the first of March, to continue for the space of 26 Weeks ad proficiscend' cum Navibus nostris pro tuitione Maris, &c. (2.)Mandate was a command unto the Sheriff, and the Head-Officers, that they shall meet within 30 days, and set down what shall be taxed upon the incorporate Towns. (3.)A Command unto the Head-Officers of those incorporate Towns, that within their Bayliwicks they make an Assessment upon particular Persons, and compel them to pay the same. (4.) A Power unto the Sheriff to Assess all within the residue of the County, juxta statum & facultatem. (5.) A Command for the levying of those Sums by distress, ut contra rebelles, to imprison their Persons. (6.) That no part of this Sum collected shall be converted unto any private use; but if any Money be remaining, it shall be paid inter solvenda.
My Lords, the Reasons expressed in the Writ might justly satisfie any Man's Judgment without further Argument; but I shall clearly manifest, there is no Clause or Particle in this Writ, but is verified by many Records, and is secundum Legem & consuetudinem Angliœ. The Question that is made is of a high and transcendent nature: It concerneth the King in those Cases, where He in His Royal Judgment shall conceive a necessity for the Defence of the Realm, to command Shipping in this kind; whether by His Royal Power He can do it, or must require the Aid per Commune Concilium in Parliament'. And I conceive His Majesty may do it, not only by His Kingly Prerogative, but Jure Majestatis. This Power is not only inter Prerogativa Regis, sed inter Jura Summe Majestatis. I find by many Records, that these Writs have issued out in all fuccession in the times of the Saxon before the Conquest. But I never find that this Power was ever Judicially questioned in any Court at Wesiminster. I find question made touching Affeffments, whether they have been equal; touching the levying, whether within the Warrant of the Officers; touching the discharging of some by reason of a Grant of exemption: but to question the main Power, whether the King by His Royal Power might command this for the defence of Himself and the Kingdom, was never disputed. But His Gracious Majesty, who hath declared Himself, that He will rule His People according to His Laws; for the satisfaction of the People, and to clear His Justice and Judgment, doth suffer these Writs to go forth, to which some have demurred, and to be questioned in this Legal way to be determined by your Lordships, to which I hope you will give a clear end.
My Position shall be this, That the King, as He is King of England, pro defensione Regni, tuitione Maris, &c. When His Majesty in His Royal Judgment conceiveth it time of danger, as doth necessarily require the Aid commanded in this Writ, that He may command and compel His Subjects, per totam Angliam, to set forth Ships with Men and Munition, and double equipage; and this may be done as well by the King's Writ under the Great Seal, as consent in Parliament. For the proof of this Position, I shall reduce what I have to say to these Heads. 1. That this Power it is inter jura Summe Majestatis innate in the Person of an absolute King, and in the Persons of the Kings of England; so inherent in the King, that it is not any ways derived from the People, but reserved unto the King, when Positive Laws first began; and that in this Case the King is the Sole Judge of the danger, and how this danger is to be prevented and avoided; This is my first Ground. The second is this, That this Regal Power it is not confined to the publick advice, that the King must be in Cathedra fitting in Parliament. But that it hath been always done, either per ipsum Regem, aut per Concilium, aut per 'Dominos Suos', aut per Regem, when he shall please to call a Consulation of Merchants and Portsmen experienced in the Service.
My Lords, upon this Head I shall prove unto your Lordships, that this Power is so inherent in the King, that during the time of Parliament, and in those years when Parliaments were fitting, that these Writs issued out by a Regal Power, without any Power of Aid in Parliament; and that Advice was not thought necessary in former times. In the third place I shall shew your Lordships out of the very Title which the Common Law of England giveth to the King, that this Power is implyed out of his Sovereign Title given unto him by the Common Laws of England. In the fourth Place I shall insist upon Presidents, and herein I shall desire you to take notice, that these Writs have not issued out at the first upon any sudden advice, but that there was a great search made first by my Predecessor Mr. Noy, a Man of great Learning and profound Judgment; other Searches made by the Kings Counsel, and some others; and a great number of Records were considered of, and maturely, before these Writs issued; so nothing was done upon the sudden. And we that are of the Kings Counsel did think it fit, that most of these Records have been added by Mr. Solicitor, and many more I shall cite which have not been remembered.
My Lords, in the vouching of these Records I shall observe eight things. First, That the Records we insist upon, they are not grounded upon any private Custom, upon any Charter, upon any Covenants, but upon the Law of the Land. And there is not in any of these Records any recital, that these Writs went out upon any of these Grounds. 2. That in all Ages before the Conquest, and in the time of William the first, that these Writs have issued, per ipsum Regem, per Regem & Concilium, and did not issue by any Advice in Parliament. 3. That these Writs were sent out, not in Case of Hannibal ad portas, or an Enemy discovered, or sudden Invasion, but in Case of rumors of dangers, and in that a danger might happen; so not in approach of an Enemy, but in Case of preparation to be provided against an Enemy. 4. That the King did command Shipping to be set forth, and in those years wherein there were Parliaments, and fitting Parliaments, and by his Regal Power, without advice in Parliament. 5. That great Subsidies and Aids have been given unto the King in Parliament, pro defensione Regni, in the same years that Writs went forth for the Defene of the Kingdom. 6. That those Aids have not only been required from the Maritime Parts, the Ports, nor from the Maritime Counties, but from the In-land Counties, as this Case is Buckinghamshire, and per totam Angliam. 7. That many times when these Writs issued, there hath been no such Causes declared, as hath been in this Writ. I shall observe, that in many of these Writs no cause at all was set forth in them, but only that they should repair to the place of Rendezvous, and there receive further direction. 8. I shall verifie every Clause of this Writ by many Presidents. A Mandamus, and not a Mandamus Rogantes Shipping at the charge of the Country and assessment by Sheriffs as Commissioners, and a penalty greater, not only Disterss and Imprisonment, but extent of Lands, seizing of Goods till the King were paid. These are the things I shall observe out of the Presidents when I come unto them.
My Lords, In the fifth place, when I have laid these foundations, I shall then dispel those mists that have been raised, remove those Forces that have been mustered, and answer the Objection of those Gentlemen that will not be desended by the King's Writ under the Great Seal. And in this give a particular answer to the Acts of Parliament that they have cited, to the Records that they have insisted upon, to the Reasons and Authorities. And I shall answer their exceptions that have been taken unto the several Writs, Records, and Proceedings thereupon. In the sixth place I shall collect some conclusions and reasons out of the Premises, and cite unto your Lordships some Judicial Records, that may satisfie your Lordships in point of Judgment. These are my Materials, I shall proceed unto the Building.
My Lords, My first ground was, that this power was innate in the person of an absolute King, and in the person of the King of England. All Magistracy is of nature, and Obedience and Subjection is of nature; and before any positive Laws were written, or any municipal Law, people were governed by the Law of Nature, and Practise did rule according to natural equity: this appears in the Reports of Sir Edward Cook, written by him when he was Chief-Justice, 7 Report fol. 13. I will not take occasion to discourse, either of the Law of Nature, which doth teach us to love our Country, and to defend it, and to expose the Hand to danger rather than the Head should suffer: nor of the Law of God, which commandeth obedience and subjection unto the Ordinances of Superiors: nor of the Law of Nations, which doth agree, that there must be protection from the King, and obedience from the People; and without desence there can be no protection, and without aid of the People there can be no desence: nor of the Imperial Law, which faith, that in cases pro utilitate the King may statuere alone.
My Lords, I will upon this Subject confine my self to the Law of the Land, and insist upon such Records, and such Presidents, and such Reasons, and such Authorities as I find both by Record of former times and by our Books. I. In the original government of this Nation I do not find the contrary, that there was a great number of Petty Regiments. And when Julius Cœsar did invade this Realm, he writeth that there were four Kings in Kent, and other places; and Strabo, lib, 4. faith the like.
So those times will not be material. During the domination of the Romans from Julius Cœsar, which continued 500 years, the Romans had their Prefects here in England; no man will doubt but they might command what they pleased: that in their times there were special Officers called Comites, and Officers appointed by Sea, and others by Land. Those that succeeded the Romans were the Saxons, and in their times both by antient Grant, and by Edicts of the Princes of those times, that this Naval Power, was commanded by them for defence of the Realm. First to begin with King Inas, Anno Dom. 725. King of the West Saxous. This King in that year made a grant to the Abbot of Glassenbury, Quod, &c sint quietiex omnibus Regis exactionibus &c operibus, except expedite Arcium, Pontium, &c constructionem sicut in antiquo, &c. Which shews that these expeditions were accustomed to be done. Wuldredus, King of Kent, he in the year 742 granted to his Churches, quod sint liberiab omnibus sccularibus servitiis, except expedit. pontis, &c. so in that grant these expeditions were excepted.
Etbelbaldus, King of the Mercians, Anno 749. granted Monasterio de, &c except ut supra : So that as in this time the services were common, and were done a dicto Regis, that the Churches should be free from all services but these three of expedition, of building Castles, Bridges and Forts, A quibus nulli unquam laxari possunt.
Egbert, Anuo 840. commanded a great Navy to be provided, and that was for the defence of the Realm and safeguard of Ships.
Ethelwald that was King of the West Saxons, Anno 854 granted to the Church that it should be free from all Services temporal, except Regalibus Tributis. In the time of King Alfred, who was the first Monarch and King of all England, there was one . . . . . . . . . who was a Privy Councellor in his time, and writ his Life and the Story of his Time, and he in his ninth page faith, quod Rex Alfredus jussit Gall. longas Naves, &c. and agreeing with the History of Wigorensis 316. Huntington 351. wherein your Lordships may see by the Records, that it was done ex pracepto Regis per totum Regnum.
Sir H. Spelman.
This King made a Law (which is not remembred by Lambert in his Saxon Laws) to this substance; that no man upon Summons by the Horn or word of Mouth should sit still in matter of Theft, Bloodshed or going to War, whatsoever his expedition should require: and there he doth mention it to be upon pain of forfeiture of Life and Death. King Edgar who stiled himself Angliœ Basilius, he in the year 959 provided a mighty Navy of 3600 Ships, as faith Wigornensis and Math. of Westminster; and he gave a Command that every year at Easter a Navy of 3 or 4000 Ships be set out and divided into three parts, East, West and North. The Ships in those times were not so great as now they be. The same Edgar in the year 973 granted unto the Abby of I horney all manner of Immunities, and that it should be free, except those three defences of building of Bridges, Castles and Forts. And the same King, in his Charter to the Church at Worster granteth unto them to be free ab omnibus exactionibus, except constructionem Pontium, Arcium, &c. My Lords, by all these several grants, and what hath been done by those Kings it doth appear, that these three fundamental services were reserved unto the Crown, saving some two or three Abbys which had some particular exemption In the year 1008, which was remembred by Mr. Solicitor, there was then a great Navy prepared by King Ethelred. The words are thus, Rex Ethelredus per totam Angliam ex 320. Hidis Navem unam, &c. prœparare feccrit, That was for every 320 Hides of Land to build one Ship, and every eight Hides to find a Man and a Corslet, and to meet at Sandwich for defence against the Danes. This appeareth, Huntington 360. Matth. of Westminster 387. Hovenden 426. Malmsbury 100. In this Record these things are observable. I Rex parare facit & Rex jussit, then per totam Augliam, all England was to be charged. By the Glossary of that Learned and Judicious Antiquary, it appears that virgata terra continet 24 Acras; upon casting up of this it doth appear, that there be in England 363600 Hides, every 310 Hides being to set forth one Ship, the whole number amounteth to divers thousands, and every 8 Hides to set forth a Souldier 45450 men; but it is not the number but the matter that is done by the King's Command per totam Angliam.
In the thirteenth year of King Ethelred he made an Edict, which Mr. Attorney caused to be read in Court, saying he had it out of an old Book at Cambridge, quod instaurant ticl nomber de naves per singuios Aunos, &c. I read it to this purpose, to shew that in the goth year of his Reign there was a Naval expedition always to be ready at Easter, and sheweth the penalty of such as did depart without license.
King Canutus, Lambort, fol, 117, 118. ex sapientium Concilio, &c. ordained a Command among his temporal Laws, Cap. IC. quod prœsidii fiant, &c. Command Shipping to be provided, and fol. 118, a penalty upon those that did refuse to pay 12cs. which was a great sum in those days. That which I do observe out of these two, were these; 1. That they were made by the King by the advice of his Lords; that there was to be yearly preparation for shipping. Those that departed out of the service, were to incur the forfeiture of all their Estates If these Edicts were Acts of Parliament, they stand unrepeated, and if no Acts, then they stand by Command from the King's power.
My Lords, I have shewed unto your Lordships the practice as it was before the time of William the first. He did not abrogate the former Laws, but was sworn to observe them. Nay, it was said, he did confirm Antiquas Leges & Consuctudines Angliœ; So as then, if these were the Laws, and the ancient Kings of England had before his time, he did ratifie and confirm it, but not diminish it. This Power of commanding of Shipping, for the defence of the Realm, it is a principal part of the Royal Power. This Kingdom, it is a Monarchy consists of Head and Members, the King is the Head of this Politick Body, it consists of Clergy and Laiety. It is furnished with intire Power and Jurisdiction, not only to minister Justice in causes Ecclesiastical and Temporal unto His People, but likewise for defence both of the one and the other. This Power I find to be mentioned in the Register of original Writs before the Conquest; 127. b. it reciteth, that Nos inconsideratione ad providendum salvationem Regui nostri &c. It appears by Stamford in his Prerogative, Cap. I. That as the King is the most excellent and worthiest part or member of the Common-wealth, so is He also the Preserver, Nourisher and Defender of His People. I find it in Fortescue; which they have cited, that a Common-wealth without this Head were but a Trunk. I find it in Fitz. Nat. Bre. fol. 73, or 173, that the King of Right ought to defend the Realm, as well against the Enemies at Sea, as against other Enemies, that it be not surrounded, nor wasted. How is this defence against the Sea and Enemies? is the King bound to defend the Realm by Sea-walls at his own Charges? No, the Power of the defence is a Superintendent Power in His Majesty to authorize Sheriffs and Commissioners to see it done, but by His Power, yet at the charge of the People, Register 227. b. It appeareth there where the King commandeth His People by His Writ, one directed to the Sheriff, the other to Commissioners, and in both Willeth and Commandeth quod distringat A.B. & alios, to distrain the Lands of all those that may receive damage to repair to the Sea-banks, as well as the Terrtennant. This Writ was before any Statute, for the Register was before the Conquest; and the fust Statute that concerneth Sewers was made 6 H. 6. so it is by the power the King had at Common-Law, and not upon any Statute; and this was to the Sheriff as well as to Commissioners: and that it was done at the charge of the Country, and not at the King's charge, Pat. 23 E. 1. m. 4. Dors. agreeth with the Register. The King doth there recite quod ratione dignitatis Regis, &c. & per juramcutum sumus astrictiad providendum salvationeni Regui, and there he giveth power to Commissioners to distrain the People to make defence against the Sea at their own charges, Pat. 2. E. E. 3. 2. m. 5. Dors. in the Case of Wiseman, 2 Rep. fol. 15. The King exofficio is to govern his Subjects in peace and tranquillity, 7. Rep. fol. 9. protection of the King is generally over all the Kingdom There is reason why it should be thus, for the King of England he hath an entire Empire, he is an absolute Monarch; nothing can be given unto any absolute Prince, but is inherent in his Person, as may appear both by Books, Records and Acts of Parliament, Brac. lib. 2. fol. 55. b. Sciendum, &c. Dominus Rex super omnes, quiad Coronam pertinent This appeareth likewise in the Statute 24 H. 8. there it is declared, that this Realm of England is one Empire, and hath been so accepted in the world, Stat. 25 H. 8. c. 21. I El. c. I. I Jac. c. I. the Crown of England is affirmed to be an Imperial Crown, and Acts of Parliament prove the highest nature, 16 R. 2. c. 5. that the King holdeth his Empire immediately of the God of Heaven, and at His Coronation the Crown is elevated as a signification thereof: this is likewise acknowledged in the Irish Reports, fol. 60. Rex Augl. est absolutus. Fortescue faith the King of England, as well as any other King or Emperor, hath all his liberties within His Kingdom in Imperio suo. The Law of England maketh the King of England not as His Subjects, nor a natural Body, but a politick Body, freeth him from all imperfection or infirmity; he is immortal, he never dieth, the King ever liveth, I Com. 177. 11 Rep. 7. 21 E. 4. and other Records.
My Lords, As he is an absolute Monarch, so all these inter jurasummœ Majestatis are given unto His Person by the Common-Law. I. He hath Supreme Dominion both by Sea and Land: this is proved by Mirror, the greatest part whereof was written before the Conquest, some things added to it by H. Horn in the Reign of E. 4. he concludeth all Lands, and all Jurisdiction, and all Dominion is derived from the Crown, that whatsoever was not granted from the Crown remaineth in the Person of the King. This Supremum dominium is so inherent in the King's Person, that if the King grant away His Lands absque aliquo reddendo, yet the tenure must still remain to the King.
8 H. 7. 12. 30 H. 8. 45 Dyer. This Dominion is not only upon the Land, but it is upon the Sea. And so the King He hath not only a Dominion by Sea, but He is Dominus Mar' Angl', &c. He is both an owner of the Sea, and Soil under the Sea. And so it was lately resolved by my Lord Chief-Baron, and the rest of the Barons of the Exchequer, in the Case of Sutton Marsh, That the Soil of the Land, as the Sea sloweth and re-sloweth, is the King's, and the King is seized thereof Jure Coronœ, Mirror 8. only the Dominion of the Sea, but the very Soil thereof belongeth unto the King.
Next place, he faith, besides his Supremum Dominium, a Sovereign Jurisdiction, and that extends both by Sea and Land: 1. For creation of all His Majesties great Officers and Judges, creation of the Admiralty time out of mind. 20 H. 7. so. 8. 12 H. 7. 17. Power to make Justices could not be granted; and all these Powers resumed in the Statute, as inherent in the Crown, &c. Surely this Jurisdiction by Sea did not begin in the time of R. 1. when those Laws were renewed by him at his return from the Holy-Land. But there were Admirals in England, and the Admiral-Law by Sea long before 27 E. 1. A famous Record in the Tower, that the Commissioners for the Emperors of Spain and France did appear before the King's Commissioners, and did acknowledge, the Sovereignty of the King of England upon the Sea did belong unto him time out of mind. And for further proof of this, it appeareth likewise in that Learned Book of Mr. Selden's (Mare Clausum.)
My Lords, The next inherent Power of the Crown is I. Pardons, 2. Restitutions, and 3dly, Pardoning of Condemned Persons, which none can do but the King himself, I H. 4. sol. 5. 20 H. 7. 8. The 4th is Jus nummi percutiendi, a setting of a Royal Stamp upon his Coin, and the debasing of it, 21 E. 3. 6. That the King only can put a Value upon it, 5 Rep. 114. That the King by his absolute Prerogative may make any Forreign Coin lawful Money of England, by his Proclamation, Daves Rep. so. 20.
Next is, Jus Sum' Majestatis, that of concluding War and Peace, which is absolutely inherent in the King's Person, which he may do without calling of his great Council, 19 E. 4. 6. That all the Subjects of England without the King, 7 Rep. 25. cannot make War Bellum indicere. And to make Aliens Denizens, is a Point of High Prerogative.
My Lords, This Trust that the King hath for making of War and Peace, and for the Defence of the Realm both by Sea and Land, it is a great Trust inherent in the Person of the Crown. No Man ought to mistrust where the Law doth trust. There is an Objection: If it should rest in the Power of the King, he might do it, where there should be no ground for it, and without cause, and cause Forces to be mustred, and Ships provided, where there is no eminent danger, in such a manner as it might be grievous to the People. There are Objections clearly against presumption of Law; for where the Law trusteth we ought not to dustrust. The King, as appeareth by all our Books, is the Fountain of Piety and Justice, and will do right unto his Subjects, I. Com' 240. All Justice is derived from the King, 13 E. 4. 8. The King can do no wrong, Bract. lib. 3. ca. 9. 8 H. 6. 20. Royal Power de aver Correction de luy m'; He is the sole Judge, and we ought not to question him, Bract. Rex non babet Superiorem nisi Deum, 11 Rep. 72. The King is the Fountain of Justice and Common Right. And the King being the Lieutenant of God cannot do wrong, 17 E. 3. 59. The King could not be made an Instrument of coven and fraud, but the Patent was void, 5 Rep. 14. That Religion, Justice and Vertue are the sure supporters of Crowns and Diadems, 24 E. 3. 42. stamford's Pleas of the Crown, 72. At the Common Law, if the King commit a Man by his Bouche, he is not repleviable. The Law doth not distrust where the King committeth a Man; but it is upon just cause, and we are not to doubt it. And therefore at the Common Law Ca. 15. a Man committed by the King was not repleviable. Nay, if he were committed by his Council, that was his representative Body, not repleviable: Shall we then, when the Law hath committed this Power unto the King, who is the Fountain of Justice and Equity, who is trusted by the Law of the Realm, and the Common-Wealth, mistrust him? Shall we think that succeeding Kings will do that which is not sit to be done? I say, if the Law trust them, we ought to trust them. But for a further Reason; Those that are his Delegates and Judges ought not to be mistrusted. That which the Judge doth, as in his Office, shall not be assigned for error. If it be so in the Delegates Power, much more in the Primitive and Fountain, 5 Ma. Dyer 163. The Court of King's-Bench did receive a Record of Nisi prius, the Postea Returned by the Clark, and the death of the Justice of Assize assigned for Error, and could not be received. So 1 Ma. Dyer 89. a Writ of Error to reverse a Fine, prout en Dyer.
That is the reason of the Book 7 H. 7. so. 40. 10 H 7. 28. Fitz. Nat. Bre. faith the Books, he cannot assign for Error, nor shall not be admitted to alledge any thing contrary to the Office of a Judge, as to say the Judge did not give right Judgment, or the Clark did not make right Entries, M. 7. E. 1. coram Rege. And that is the reason why a Man of Non compos mentis in a Fine, and suffering of a Recovery, it shall not be assigned for Error against the Acts of a Judge, 8 Rep. so. 121. Doctor Bonnor's Case, Record by a Judge or Justice of Peace not traversable.
(Good my Lords,) Then if by the Laws of the Kingdom one shall not be admitted to receive averment against any Acts done by your Lordships, the Judges, against Acts done by inferior Judge; surely in this, where the King is absolute Judge, it shall not be averred, to say it was no cause danger, or that is done by the King which ought not to be done.
Bract. lib. I. ca. 24. est in Corone Regis. The King is so absolutely trusted with this Defence, that the Subject cannot make a Fort or Castle upon his own Free-hold without the King's Licence. That appeareth in the old Magna Charta, so. 162. Enquiry made of those that do build Forts and Castles without the King's Licence, Rot. Parliament. 45 E. 3. N. 34. 6 H. 4. 59. and in a Book of Long, 5 E. 4. so. 129. That a Subject cannot make a For or Castle without the King's Licence, not in his own ground.
My Lords, The King hath so discharged this Trust, that though there were no account unto his Subject, yet these Ships that have been commanded, was but ad prosiciscend' cum Navibus asstris. The King hath been at greater Charge with these Ships gone out, than ever any King of England ever was, as will appear by those vast Sums Money the King hath spent these years, besides what hath been contributed unto by his Subjects.
My Lords, I have done with my first Position, That the Kings of England have done this before the time of William the first: That it was an inherent Right in the Person of the King of England, and that the King is the sole Judge both of, and when, and how the dangers are to be avoided.
It hath been objected, that the King of England may do it, but how? It must be according to the Institution of the Laws of the Realm. There must be a Concurrent Power, a Politick Advice in Parliament; and so it may be done. But the King, either by his ordinary Power, or absolute, without the assistance of the great Council, he cannot do it, as hath been objected.
2. Therefore in the second place I shall come to the second thing I did propose, and that was, that the King, as he is King of England, that He alone, for this common Defence of the Realm, without the Aid of Parliament, that he may Statuere, &c. That the King, by advice of his Council, when he please may do it: That he may ordain several ways by the Institution of the Common-Law, by his Ordinance, by his Proclamation, by his Patent, by his Writs, and by his Judges. That this may be done by him; (1.) It is agreeable to reason; for Kings were before Parliaments, and then surely they might have done it. All Justice doth slow from the Crown; and originally, as it was in Moses, so it was in the Kings of England, only in the King Person: But asterwards the King did depute his Deputies, and gave other Powers. This is no conceit of mine, 12 H. 7. so. 17. 6. per Fineaux. There was a time when there were no Municipal Laws, when Positive Laws were not established, when Kings did rule their People according to natural Equity; and then surely the King might ordain, no Man will question it: since there hath been Positive Laws, and Municipal Laws, the Kings of England they have ordained, as by these several Records cited appears. It appears by the practice that hath been since the time of W. 1. That Kings of England in all those Writs, that they have ordained the issuing of those Writs; The number of the Ships, the times of meeting, the manner of Munition, and the stay for the Defence, quam diu nobis placuerit. I have made a Collection of what hath gone out by the King Himself, what per Regem and his Council, and what by the Advice of his Council, and with advice of Merchants and Ports-men. But they are so infinite, and so many of them, that I will not trouble your Lordships with Repetition.
These Ordinances concerning the Defence, they are suitable and agreeable to the Ordinance the King maketh in other Cases, wherein the King alone doth ordain, as by His Proclamation, Claus. 24 e. 1. 3. ps. 2. M. 2. Dor. The King by His Proclamation commanded all Earls, Barons, Knights, Esquires, and other Men at Arms, That none of them should, depart into Foreign Parts. F. N. B. 85. He agreeth it, and faith the Book, He that shall transgress this Proclamation, shall be fined for his disobedience. And this Command may be under the Great Seal, or Signature, or Privy-Seal: For, faith the Book, the Subjects is to take notice of any of the Kings Seals. So in all Ages, Claus. 24. E. 3. M. 7. Dors. 4 H. 8. 11 H. 7. 23. The King granted a Proclamation for Recreations, as by Justing, or the like, that he may command jus by His Proclamation. And if one of the Two that is fighting be killed, it is no Felony; but if done without the Kings Proclamation, it is Felony, 5. Rep. 114. The King, by His absolute Prerogative, may make any Coin of Money by His Proclamation.
Next place the King may ordain by His Patent alone, 40 E. 3. so. 17, 18. The King did grant a Priviledge unto the Scholars of Oxford, That they should have the choice of Inns in Oxford, which was before there was any fair Colledge in Oxford; faith the Towns-man, this is my Free-hold, they cannot do it; say the Judges, this is a good Patent, and is in favour of Learning, and therefore a good Ordinance. So the Justices in Eyre may take up the principal Inn. If the King make a Corporation, is there any thing more usual, than for the King to give Power to the Corporation to make Ordinances for common good? 49 E. 3. 162. Shall it be so in the Creature, and not in him that makes the Creature? A Case or two upon every one of them. The King may ordain by His Writ, and that appeareth 9 E. 3. 16. A Writ of Cessavit against the Tenants of Northumberland: The Tenants have been mightily oppressed by the Scots; they petitioned the King, and said, they were not able to pay their Land-lords their Rents, by reason of those incursions upon them by the Scots, and desire stay of Suit; and there it appeareth the King did ordain by His Writ; those Suits upon those Reasons should not proceed against the Tenants for Non-payment of their Rents: out of the same Reason are the Writs of Protection.
Then the King and His Council may ordains for that I find M. 4. H. 3. Fitz Dower 179. Writ of Dower there brought by a French Woman; the Tenant of the Writ pleaded, That there was an Ordinance of the King and His Council, quod nullus de Regno Franciœ, &c. That is, that no English, Man should be compelled to answer any French Man or Woman in a Legal Suit, till the English were answered in France to their Suits; there 39 E. 3. 7. per Thorp. The King and His Lords may make an Ordinance, which shall be binding as a Statute, Rot. Fr. 72 E. 3. M. 6.
Upon Ordinance of the King and His Council I can shew above 40. Writs that have gone out unto the Nobility, Clergy, ArchBishops and Bishops, and to all the King's Subjects, to aid for the Maritime Parts, Rot. Fr. 22 E. 3. M. 16 & 50 E. 3. M. 41. Do. 24 E. 3. M. 6. That of 24 is to the those In-lands within fix Miles of the Sea. 40 E. 3. M. 37. The like Writs awarded to most of the Maritime Counties, upon pain of the seizure of their Lands and Goods: So likewise for Provision for the Army the King and His Council hath ordained, both for Markets to be kept within such a distance of the Army, and Wine sold there, and no where else, Rot. Sco. 10. 12 E. 2. M. 13. Dor. So they have set down, the number of the Men of Arms that every Town should be charged with, Cl. 13 E. 3. pf. 1. 14. Dor. with a Command, that they should destroy the Commonalty of that County, for the Wages of those Men at Arms.
My Lords, If the King may at all times of danger, by His Proclamation, by His Patent, by His Writs, by the Advice of His Council, surely in Cases of necessity it is much more, for necessitas est Lex temporis, where a Defence by Sea and Land is necessarily required, M. 12 Car' opinion, That Men might be compelled to bring in their Provision to the Market, whether they will or no, 5 E. 4. 6. 14 H. 7. 29.
Jurors are by Law to hold together till they give their Verdicts; yet otherwise is the House be like to fall over their Heads 38 H. 6. 11. Upon a Prœcipe the Tenants may be excused, if he could not pass the Waters.
My Lords, I find that in Legal matters the King, by the Advice of His Judges, who are His Council, may ordain, that the Judges are the King's Council in Legal Matters, 19 E. 3. 17. 4. Fitz. Judgment, 27 H. 6. so. 5. Court of King's-Bench called the King's Council, 6 E. 1. the King and His Judges make certain explanations upon the Statute of Gloucester, as appeareth by Magna Charta; and what was done then by the Judges Advice, is the force of a Law at this day. So as you fee by the Laws of England, as well in other Cases, as Cases of Defence, the Law hath given the King of England this Power to ordain for the good and safety thereof. I find that in all Ages, and in all Times, all the Incidents to a Defence, as well as this principal part, hath been given to the King Himself, as He is King of England. (I.) For the Murage of Towns, that the King hath commanded the Murage of Towns to be done at the Peoples charge. And shall His Power extend to particular Cities, as Towns? and shall not He command for the Defence of the Wooden-walls of the Kingdom? Rot. Alur' 12 E. 3. ps. 2. M. 10. The King commandeth, by Writ, a Place to be Fortified towards a War approaching, and every Man having Rent there to contribute, or be compelled by distress; this was commanded to be done, by the Writ, Pat. 12 E. 3. ps. 3. M. 5. appeareth it was done. The King imposed a certain Rate upon all Goods and Merchandizes that came unto Kingston upon Hull, and commanded, that this should be imployed to the Walling of the Town. And this was de voluntate Regis; this appeareth 19 E. 2. ps. 1. M. 12. There was the same Command for Dover and other Towns, same Roll in 22 Pat. 12 E. 3. Ps. 3. M. 14. Dor. A Writ for the repairing of the Walls of Winchester at the Subjects Charge, Rot. ibidem M. 15. The King by special Grant gave Power to the Major and Burgesses to Assess the Inhabitants for the Defence of the Town, Claus. 1. R. 2. M. 12. Oxford was commanded by the King to be fortified at the Inhabitants Charge, Cl. 12 E. 3. Ps. 3. M. 32.
The King commanded particular Subjects to fortifie their Castles at their own Charges in time of danger, Pat. 1. 8 E. 3. M. 9. The King taketh the Castle of the Subjects into His own Hands in times of danger, ad defendend' contra Inimicos, &c. Claus. 13 E. 3. Ps. 1. M 36: Dor. the King, by the Advice of His Council, did ordain, That the Town of Southampton, pro salvatione ejusdem, should build a Wall. My Lords, The King may command the walling of the Town at the Charge of the Inhabitants; He may likewise command the Defence of the Kingdom by Sea. So for other incidents of Defence; as for erecting of Beacons upon the Sea-Coast, Rot. vas. 11. 12. E. 3. m. 29. Dor. Combust'insigniis, &c. Claus. I R. 2. m. 4. Dor. de ordinatione pro vigiliis, &c. So likewise the King in all Ages hath commanded the imbarging of Ships for the Defence of the Realm, and for all publick Service; this appeareth Claus. 14 H. 3. m. 17. Dor. All Ships arrested that could carry sixteen Horse, Rot. Sco. 10 E. 3. M. 2. Dor. omnes Naves pro defensione, &c. Rot. Alm 12 E. 3. M. 23. ps. I. a. & 12. For Imbarging of Ships for the Defence of the Realm. So likewise the King commandeth and appointeth who shall be Officers, who shall be Admiral of the Fleet, who shall be Custodes Marit', as appeareth Pat. 19 E. 2. m. 7. Dor. and in the same Roll, m. 10. Pa. 15. Jo. m. 6. Pat. 48 H. 3. m. 5. Claus. 23 E. 3. m. 5. Dor. and an infinite number more, then the Country paid the Charges of those who had Custodes Marit'; that appears, Fra. 21 E. 3. m. 31. Dor. Clauf. moderated the expence, Claus. 25 E. 3. m. 16. The King did order how much, and how long the County should pay for Wages, and commanded the stay of those that would have been gone before their time: And this appeareth Pat. 48 E. 3. m. 4. Claus. 48 H. 3. m. 2, & 3. Dor. then it appeareth by many Records, that this Guard of Sea-Coasts to be accordingly, as the King should order and direct, sometimes per Regem, per nos & Concilium, &c. and this appeareth Claus. 23 E. 1. m. 5. Dor. Claus. 13 E. 3. pars. 2. m. 14 & Pat. 23 E. 1. m. I. Sometimes the King out of His Royal Power, hath been pleased to give discharges unto particular Men, to be discharged from this Custod' Marit'; this appeareth Claus. 23 E. 1. m. 5. Dor. Ports discharged, because the Ships were in the King's Service, Claus. 8 R. 2. m. ⅓. Discharge as to the Abbot of St. Albons, Pat. 12 E. 3. pars 2. m. 8. Pat. 12 E. 3. pars I. m. 14. Discharges de Custod' Marit'. Then the Power of punishing those Men who should neglect those Commands hath been always in the King, to be punished by His Commissioners, or by His Writs, and that in a high manner. That there hath been Commands by Distress, by Imprisonment, upon seizures of Lands, Goods, and Forfeitures of all that they had; and this appeareth Pat. 48 H. 3. m. 5. Dor. Cl. 48 H. 3. M. 2. In the Case of danger the King fendeth forth a Writ de veniendo ultra debitum; so when a Service was due, as by the five Ports, to find Ships, yet in time of danger command laid upon them, ultra debitum Servitium, as appeareth Rot. Sco. 10 E. 3. m. 20. Cl. 16 E. 2. m. 13. So all Arrays for mustering of Men between sixteen and sixty have been in all Ages, and by the King's Command to be in, and continue in readiness, so long as the King shall please, Rot. Alm. 12 E. 3. pars 2. m. C. Dor. So, my Lords, it doth appear by these Presidents that have been cited, by these Records, and by these Book-Cases, That the Kings of England in all Ages have given command, and made Ordinances by themselves, by their Council, by their Judges, by their Peers, and these Ordinances have been obeyed.
My Lords, I promised upon this Head to made it good, that in these times, and in these years, wherein there were Parliaments, that though the Parliaments did determine concerning the Land-Forces, and the going of the King's Army into Scotland, that yet the Parliament sitting, the King hath commanded the setting forth of Ships by His Writ; this was ever left unto the Royal Power. For the proof of this there was 24 E. 1. a Parliament, as appeareth in the Printed Books; yet we find in that year, the King hath commanded the setting forth the Ships at the Charge of the Subject, Pat. 24 E. 1. m. 17. Command to take up 100 Ships; and in P. 24 E. 1. ex parte Regis, Rem' Exchequer Rot. 22. Command, pro Custod' Marit', 9 E. 2. Parliament holden at Lincoln; and yet in the same year Writs went out to provide Shipping, as appeareth by Rot. Pat. 9 E. 2. pars 2. m. 26. I find that there was a Parliamen holden 12 E. 2. This appeareth in the Book of Statutes, Rot. Sco. 11. 12 E. 2. m. 8. The King recites certain Inrodes made upon the Men in Northumberland, Et quod de Communi Concilio held at York, Ordinavimus, &c. and Assigns the Earls of Pembroke, and Bishop of Norwich, ad requirent', Norsolke & Suffolke, juxta discretiones vestras Subsidium sacere per Naves, &c. per tempus 3 vel 4 Mensium. At this time there was a Provision by Parliament for the King's Service by Land, and for his Armies to meet him at New Castle, and for two Reasons, why Navale Subsidium should be necessary: 1. To hinder the bringing of any Victuals into Scotland 2. For the Parliament was holden this Navale Subsidium was commanded by the King's Writ without any Act of Parliament; though the Writ was for Norfolk and Suffolk, yet the like was for Dor set, Somer set, &c. It appeareth like wise 10, 11 E. 3. which were those great years of sending out of Writs, that then Parliaments were holden: and so it doth appear by the printed Book of Statutes; yet in that year of 10 Claus. 10 E. 3. m. 37. Do. a Writ directed to the Major and Bayliffs of Bristol, with a Command, that all Ships of 40 Tun, & ultra, should be seized, 10 E. 3. m. 21. Do. Command that the Ships should be sent forth for the preventing of danger; and that no Forreign Ships come in to aid the Scots, Membr' 21 Dor same Roll, Command to the City of London to set forth Ships at their own Charge, Sco. 10 E. 3. m 21. Do. Writs to the Sheriff of to send Horse-men ad Foot-men to the County of Southampton. So there were Men drawn out of their own County, and the refusers were called their Rebels, Rot. ibidem m. 21 de Navibus pro defensione Regni.
My Lords, There was something more observable in this year of E. 3. for some of the Writs that went out beareth Teste 3 Octob. Sco. 10 E. 3. m. 7. and mentioneth a Parliament, but did not go out by ant Ordinance of Parliament; and by the Royal Power, which is a strong Argument, there needeth no Aid of Parliament for the King to command His Forces; 11 E. 3. was likewise a Parliament, as appeareth in the Printed Book of Statutes: Writ dated 10 Jan. 17 E. m. Do. per ipsum Regem; Ships are commanded proguerra super Mare, Vasc. 10 E. 3. m. 6. Do. Procla. to several Counties, that all Ships be in a readiness, 12th year of E. 3. Parliament summoned at Northampton, Cl. 12 E. 3. pars 2. m. 1. same Roll, pars 3. m 22. Do. and yet this same year the King commanded Shipping at the Charge of the Counties, as appeareth 12 E. 3. pars 1. m. 12. Cl. 12 E. 2. pars 3. m. 29. And in the 13th year of E. 3. was likewise a Parliament holden; and that appeareth Parl' 13 E. 3. m. 9. 12. Printed Statutes make no mention of a Parliament then.
My Lords, In this Record these things are observable, cited, and made use of by the Desendant's Counsel, a strong Record as any can be against them.
In that Parliament, the King He did pray the Advice of the Commons in Parliament, touching His Wars with France, and the guarding of the Sea-Coasts: The Commons make answer, Prient les Commons que ils ne Counsel doner alchoses de quel ne pas Conizance, &c. They say further, and they grant, That the Maritime Towns ought to make the Guard upon the Sea without Wages taken, and the In-land Commons upon the Land. Two things that are observable in this Record: 1. When the King to descend so low as to pray the Advice of the Commons in Parliament, and Assistance, for the Guarding of the Sea: The Commons disclaimed and said, they have no Jurisdictaion &c. And yet the Desendants Counsel did Press, that now the King should ask the Advice of the Commons in Parliament, a thing disclaimed 13 year E. 3. to have any Jurisdiction. 2. By this Record the Maritime Parts ought to guard the Sea at their own Costs; this though it be granted in their Petition, it was not granted by the King: For it appeareth in the same year, Rot. Alm' 13 E. 3. m. 13. Do. that King Edward in that year heard of some Preparation in France, commanded Ships for three months, Cl. 13 E. 3. pars 1. m. 14. That in several Counties Men were distrained for payment of Wages for the Archers, and others that guarded the Sea-Coasts. It appeareth by those Records, that both the Guard of the Sea and Sea-Coasts was done juxta Ordinationem nostram, Order made by us and our Counsel, Rot. Alm' 13 E. 3. m. 15. Do. The King appointed the Arch-Bishop of York, Hugh de Peircy et al' for that purpose, &c. So, my Lords, I have done with the second Ground, that is, That the King is sole Judge of this, without His Parliament.
That the Commons in Parliament have disclaimed to have any Cognizance of it.
That in the same year where Parliaments were holden, the same years the same Writs have issued without Advice in Parliament.
The third thing that I did propose, was those Supreme Titles which the Common Law of England giveth unto the King, which may inforce this. Bra. lib. 2. Cap. 24. faith, That the King is Vicarius Dei, His Power surely, as was agreed, is sure Divino; God is the God of Hosts, and the King is a Model of God himself, 40 E. 3. fol. 18. The King is the chief Guardian of the Common-Wealth. The Sheriff hath posse Comitatus under the King, the King's Vicegerent in his County; this Power not only for the execution of Legal Process, but for the Defence of the Realm, 12 H. 7. fol. 7. This delegate Power of the Sheriffs, is as well for Defence, as Execution of Process; Shall the Sheriff do it and notthe King? 10 H 3. fol. 1. The King is the Conservator of the Law, 20 H. 7. so. 4. Rex est Capitalis Justiciarius totius Angliœ; He is not only to maintain Justice in Courts of Justice, but to protect and desend His People. Stamford's Prerogative Cap. 1. The King is the most worthy part of the Body of the Common-Wealth, Preserver, Nourisher, and Desender; and by this they enjoy their Lands, Goods and Lives, 11 Rep. 7. 6. Maudlin Colledge Case. Rex est Medicus Regni, & sponsus Reipuclicœ: It is the part of a good Physitian, as well to prevent Diseases as to cure them; and an Office of a good King, as well to prevent danger as to remedy it, Com'so. 130. He is the Soul that animates the Body of the Common-Wealth, and we ought to move as He moves. 11 Rep. fo. 72. the fountain of common Right; therefore we have no reason to stain the Fountain. I am now come unto my fourth Proof, which is by Presidents; wherein I shall be somewhat long; and therefore I humbly crave leave to argue another day.
The End of Mr. Attorney-Generals first day's Argument.
Mr. Attorney General his second day's Argument for the King in the Case of Ship-Money, Dec. 1637.
May it please your Lordships to remember I shewed you by Charters, Aids, and by a great number of Presidents, that this Regal Power was in the King of England before the Conquest; and that though some were exempted from teh setting forth of Ships; by Grant unto some particular Men, or some particular Churches; yet these three fundamental Services of Expedition, repairing Castles, and making of Bridges, &c. were always excepted: Then I shewed by a great number of Presidents, that not only the Principals, but all Accessories that concern the Defence of the Realm, both by Sea and Land, have been always commanded by the Kings; the fortifying of Towns and Castles, and the Murage of Towns, the appointment of Admirals of the Fleet, and those that should be Guardians by Sea and Land, the Imbarging of Ships, and Arrayes of Men, erection of Beacons, discharging of others upon just cause, by punishing of those that were Rebels; and all this was done by the King's Command, per ipsum Regem, aut per Regem & Concilium, without any Aid in Parliament. Likewise I have made it appear unto your Lordships, That the King is the sole Judge of the Defence, that the King is not to be mistrusted in the execution of His Office as King, nor your Lordships as Judges are to be mistrusted.
I have now shewn out of the Presidents, That in those years, wherein there have been Parliaments, and sometimes sitting the Parliament, Writs have issued per ipsum Regem, aut per Regem & Concilium. I shall now proceed to make good the other Particulars which I have opened unto your Lordships. I. That these Presidents which have been shewed, and which I shall shew unto your Lordships, that they have not been grounded upon any particular Covenant, Charter, Custom, but upon the Law of the Land, and upon such reasons as are universal, and binds all the King's Subjects, as well Clergy as Laity. For this I shall remember Cl. 48 H. 3. m. 3. The Writ doth recite, Quod tam Milites & Liberiteneutes & omnes alii, &c. ad defensionem Regni teneantur Cl. 9 E. 3. m. 11. pro defensione Regni omnes teneantur, Sco. 10 E. 3. m. 12. Quia quod omnes tangit per omnes supportari debet. And the same Roll, m. 20. Do. Ex ligeantia ad defensionem contra hostes Aggressus Inimicos manus apponere, Malm. 12 E. 3. m. Do. omnes & singuli tenentur, & se & sua exponere, same Roll m. 21. Do. omnes & singuli ad defensionem Regni sunt astricti. And I think every Man will acknowledge himself to be bound out of his Allegiance, Malm. 13 E. 3. m. 13. do. ex ligeantia ad defensionem Regni, & vestrum & vestrorum, same Roll m. 17. and there be several Writs unto all the Bishops of England, quod invenerint homines ad Arma pro defensione; Frankalmaine Tenure was no Plea against this Service, Rot. Franc. 46 E. 3. m. 34. There was a Writ directed to the Bishop of Canterbury for the Arming and Arraying of all Ecclesiastical Persons within his Province; the like to the Bishop of York for the Arming and Arraying of all Ecclesiastical Persons within his Province; the like to the Bishop of Durham in the same Roll; so it extends to all the King's Subjects, and to the Clergy as well as to the Laity: Nay, it doth appear, that these Towns, and these Ports, that were obliged to do particular Service; that yet in case of an extraordinary Defence, that there the Writs went out not only to perform the ordinary Service, but Services ultra debita. The Cinque-Ports, by the Charter E. 1. was to set forth 52 Ships at their own Charge for 15 days; yet we find by divers Writs, and in several Kings Times, that the five Ports have been required to do further Service, Arrests have been made of their Ships ultra Servitia debita, Sco. 10 E. 3. m. 23. Do. 28. Do. There was a Command, That all their Ships of 40 Tun should be arrested for the King's Service; and so likewise, same Roll M. 22. That all Ships of the five Ports, Tam majores quam minores should be arrested, Malm. 13 E. 3. m. 13. Omnes Naves qui transire poterint arrested to the five Ports; so then for the Councel on the other side, to tell us of particular Rolls, that these and these Towns were obliged to do these Services; this, under favour, is no Warrant, for though they be obliged to do these Services; yet upon the occasions to take all their Ships ultra Servitia debita, Cl. 16 E. 3. m. 13. Do. The King writeth unto divers Earls, Barons, and others, in this manner, Quod sint tam citius, &c. quam poterint parati, at such a place beyond your Service, with Horse and Arms, and come to our Town of New Caste upon Tyne; so as the Writ was directed to all the Lords Spiritual and Temporal, and all the King's Subjects, but not only with their due Service, but beyond their Service, to be at New-Castle; so as your Lordships see the Motives, the Grounds, and the Reasons of these Writs are universal, they concern not particular Port and Subject, but all the King's Subjects, and they are generally ex ligeantia sua debita; so as that is the first thing I would observe unto your Lordships, That these Writs and Presidents are grounded upon the Law of the Land, and not upon particular Trust.
The second is this, That all these Writs have issued by the King's Mandate, either by the King, or by the King and His Council, without Advice in Parliament, of which I have made a Collection, which is better for me to attend your Lordships withal, than to cite them, because there are above 500; wherein I have distinguished what hath been awarded per Regem, and what per Regem & Concilium, and where the advice of particular Merchants and Ports-men were required, Sco. 11 E. 3. m. 2. Do. 19 E. 3. pars 1. m. 26. Do. And in these the Advice of particular Men were called to assist the King and His Council. Now, my Lords, if before the time of William, and since the time of William the first, for many hundred years together, that this hath been done, shall not these Presidents make a Law-Rule of our Books? that Presidents that are not against the Law, nor contrary to the Rules and Reasons of the Law, they make a Law; that appeareth by 4E. 4. fo. 43. The Chancellor sent forth a Writ of Error, the Judges take exception both to the matter and to the manner, faith the Book, because it hath been always used; for the Presidents make a Law, though the Writ were contrary to Law and Reason, 33 H. 6. fol. 20. An absurd Return made by Sheriffs, yet because Presidents to warrant it, a good Return, 20 R. 2. fo. 7. Where a Duty was to be paid to a Corporation of Major and Commonalty, the Duty being to be paid to the Body, and an Acquittance to be had from them; but because it hath been used, the Major alone to make the Acquittance, a good Acquittance, 2 Rep. Lanies Case. The King shall not part with his Interest without the Great Seal: But yet a Lease for years, under the Great Seal of the Exchequer, good by Custom, 4 Rep. 9. That the Presidents of a Court are good against the express words of a Statute: Having so many Presidents, I will not trouble you any longer, though I have reserved a special place for the answering of Objections; yet to such Objections as fall materially in the way I shall give an Answer, though reserve the Answer of the main Objection unto the fifth place. It hath been said by Mr, Holborne, That there hath been a discontinuance of time; and that since the time of 50 E. 3. none of these Writs have issued: Shall discontinuance of time take away the King's Right? If there have been no use within the time of memory, yet if this have been an inherent Right in the Crown of England, shall the Crown lose it by discontinuance of time against the Rules of Law? 10 H. 4. fo. 6. Where the King is a Founder of a Bishop or Abbot, and is by common Right to have a Corody, though not used, that the King hath not demanded it in time of memory, yet the King shall not lose it, N. B. 5. Writ of Right brought by the King, wherein must alledge Seisin, will you bind the King to alledge a Seisin in Him and His Progenitors? For if once the King had a Seisin, protract of time shall not discontinue it, 22 H. 7. fol. 20. The Stat. of Mortmaine consineth the Lord to enter within a year and a day; but it shall not bind the King, for He may do it at any time, 35 H. 6. fo. 26. If a Villain do alien the Land, it bindeth not the King, Plenartie 6 Month no Plea against the King, 6 Rep. 20 No discontinuance of time if the King hath a Right, 7 E. 4 30. If an Alien and another Man purchase Lands together, and the Alien die, the King shall not be prevented by Survivorship, and in Personal Goods you shall raise no prescription against the King, 35 H. 6. fo. 27. there is no Man can pretend a Title to the Kings Goods, for Waifs, Strays or Wrecks, for no prescription can invade the King's Profit, but then they say, that the Presidents are not in all times, for we have not shewn, nor cannot shew, that in all times these Writs have issued. A strange objection in all times. My Lords, It is a casual Service. In all times, God be thanked, not that occasion or necessity of this defence: Will you have us shew Presidents for a Casual Service? 4 Rep. 10. If a Man hold to do Service to his Lord, to go with him into the War of the King, this is out of the Stat. of Limitation; for it may happen not once in 200 or 300 years; therefore the Law doth not require you should have a Seifin for this, for it is casual; that is the reason that Homage and Fealty and casual Services, they are out of that Statute of Limitations; so as now by the same reason, that they would tie us to Presidents, where there was no occasion; by the same reason the Tenants are to do Homage, or go into Wars, when there was no occasion; but besides, he is much mistaken, for these Presidents did not end with E. 3. 7 R. 2. m. 18. 13 H. 6. m. 10. 14. pars 1. m. 14. a great number of Ships commanded then in the King's Service; but it bath been said, That the People have always petitioned against it, and there hath been a decrying by the People; they have petitioned in Parliament, and these things good by Custom, must gather strength by a consent; and that further, when Petitions have been preferred, the King hath not denied the Petition expresly.
My Lords, I shall shew, when I come to a particular Answer to these Records and Petitions, that they have mentioned, That not withstanding these Petitions, this Service hath been always continued; and for the Answer that he speaketh of, that they have not been denied: These are the words, Le Roy advisera; we may know whether this be an express denial or no; so though the King take time to advise of the Parliament, of His Commons, this is no Argument, but that it is a maunerly kind of denial; besides, in the very years of 13 E. 3. the Writs for the Shipping Business went out by the Royal Power for the same year; then it hath been said, that we can make no Presidents of this; for though Writs have gone out, yet it doth not appear, that these Writs have been put in practice, nor any execution of it; but the Services have been done, as appeareth by the Monuments of Times; then it doth appear by other Records, that the Wages of Mariners were paid by the Country these very years, Cl. 20 E. 2. m. 6, 7. It doth appear, that some particular Men that had particular discharges, either because they were in the King's Service, or in Gascvigme, or lived in the Sea-Coasts, that they pleaded their discharges, and had the same for that reason, 23 E. 1. m. 14. So as, my Lords, upon this second Ground, that these Writs have gone forth thus constantly in several Ages, that there being such a number of Presidents, that the discontinuances have been even when there was no occasion: That the Presidents of the Courts of Justice make a Law, and discontinuance cannot take away the King's Title. This is the second that I do insist upon, and that these Presidents make a Law.
The third thing I shall observe upon these Presidents is this, that these Writs have gone forth, not only in Cases of an actual War, or in cases of an Invasion, when the Fleet hath been upon the Seas, but by way of preparation before-hand, when the Enemy meant to come, and in contingent Cases when the King might conceive any danger might ensue, but in these Cases Writs have issued, that will appear, Cl. 48 H. 3. m. 2. the Writs are here in Court, cumnecesse sit ad defensionem Regni esse promptum, &c. Cl. 23 E. 1. M. 5. Dors. there was several Writs directed unto divers Earls, Bishops and others de Custod. Marit. the words are these, quia volumus quod partes Marit. in Com. Essex, &c. contra Inimicos diligenter custodiend. partes illas si venire contingent, 24 E. 3. Remembrance in the Exchequer upon information that there was 1000 Men in Flanders, and preparation to come unto yarmouth to burn the Town, Writs sent forth by the Treasurer and Barons ex officio to be in readiness, in cause there was Invasion, Pat. 9 E. 2. pars 2. M. 26. Writs directed to all the Port Towns between Southampton and Thames, to set forth Ships at their own charge for the better defence of the Kingdom, and against others that commit depredations upon the Sea, as well to our men of this Kingdom, as to others coming to our Kingdom, Sco. 11. 12 E. 2. M. 18. the King by several Writs directed to the several Commissioners in several Counties, reciting the provision made for his Army in Land at the last Parliament, and faith, nos considerantes ad expeditionem prœd tam ad impediend. Scotos quam pro Custod. Maris, &c. And so commandeth for that purpose, that Ships should be sent forth out of several Counties for these two Causes, The one to hinder Victuals going into Scotland, the other for free entercourse of Trade, that appeareth in the 10th year of E. 3. that the Ships of France were not upon our Sea-Coasts, but were in Britain and in France, and yet the King upon relation that they have an intention to invade the Realm, did send forth for the providing of Ships into most parts of the Realm, this was only upon information, Sco. 10. E. 3. M. 30. ut audivimus M. 13. ut intelligimus, M. 16. 22. quod auditum, M. 18. do. 12. do. 5. do. in portibus transmarinis parat. so by the Records this preparation of Ships was only upon information, Fra. 26 E. 3. M. 5. quia vulgaris opinio nostrum Regnum Angl. invadere, therefore commandeth Shipping by Sea, and Forces by Land, Fra. 10 R. 2. M. 23, 24. quia cert, Rumores quod Francia infra breve tempus boc Regnum invadere, and for the rest commandeth the custody of the Sea and the Sea-Coasts, so as it doth appear by these Records, that upon an Information or Conjecture of the King, that he may send forth these Writs, and command His Subjects to be in readiness in case that danger might happen, better so than to receive a blow, and then to make preparation for defence, we should buy that with repentance, prudentissima ratio quitimor Belli &c. prœparavit, and surely when the King teeth these preparations abroad, the great Armies in adjacent Countries, great reason we should be in preparation; this is not only consonant to Presidents, Wisdom of Time, Policy of State, but to the reason of out Common-Law. If a man be in fear that another man lyeth in wait for him to do him a mischief, shall be stay till he receive a wound? 17 E. 4. 4. in this Case he may have a Writ to bind him to the Peace, 13 H. 7. fol. 17. if a man have a warranty for his Land, shall he stay till he be impleaded? No, a Warantia Charta lyeth till he be impleaded. If Lord and Tenant in antient demesn, and the Lord will require that other services of his Tenant than he ought to perform, shall the Tenant stay till there be a Distress taken, nay, he shall have his monstraverunt, F. N. 40 E. 3. fol. 45, 46. and this only upon a verbal demand of services; shall then the Common-Law of England secure the Subject not to stay till a present danger, but shall have his war' Charta monstraver' before Distress taken, and shall not the Common-Law provide for the King, that he in his expectation of danger make his preparation, for surely these Presidents are according to reason of Law.
The next thing that I did observe out of these Presidents was, that in these very years where there have been aids granted to the Crown, pre desensione Regni, and in the very year these Writs have issued out of the Royal Power, Cl. 48 H. 3.m. 2, 3. Dors. there was then a tenth given by the Clergy pro defensione Regni, and yet in that year he did command the defence of the Realm both by Sea and Land, and that appeareth Pat. 48 H. 3. m. c. dors. Cl. 48. H. 3. m. 30. in the 22 E. 1. the King had given unto him in Parliament pro subsidio guerrœ a tenth of all moveable Goods which was to be collected in the 23d year, as appeareth Pat. 22 E. 1. m. 2.
My Lords, This very year wherein this was paid, he commanded a great number of Shipping for the defence of the Coasts, and that appeareth Pat. 23. E. 1.m. 6. Writs were directed unto divers Sheriffs of divers Counties, Sussex, Southampton, Dorset, &c. commanding them to be aiding and assisting to William Thornton in the taking of all the Ships of those Counties, Pat. 23 E. 1. m. 7. Commission. Radulphus de Salvica ad providendum de Navibus, ita quod fuit quandocunque mandamus, so to be in readiness with all Ships in those parts that were of 40 Tunn, m. 5. same Roll, Writs directed to most of the Sheriffs of England to be assisting to John de Barwick to the chusing and sending forth Archers ad proficiscendum in Fleta nostra, so as they were not only brought out of their own Counties, but out of all the Counties in England ad proficiscendum. My Lords, This 23d year wherein the grant was of the tenth of all the moveables, Pat. 2. E. 1. m. 7. the King writeth to all the Archbishops, Earls and others, reciting that he hath committed the Custody of the Sea to Will. de Stocks, ita quod idem Will. omnes, &c. naming the Archbishops, Bishops, Earls, &c. compellere, &c. prout necesse fuer. so as you see the greatest Subject is not exempted from these Commands, but should be auxiliantes, respondentes & intendentes, Cl. 23 E. 1. m. 5. Dors. the King commanded the Bishop of London and Norwich for the safeguard of the Sea-coasts, Pat. 23 E. 1. m. I. A Command unto all Archbishops, Abbots, Earls, Barons, Knights, and others, commanding them to be aiding unto Adam de S. ita quod idem Adam compellere posset quoties necesse, &c. so Cl. 23 E. 1. m. 5. Dors. the like Command; so as, my Lords, in those times which were 23 E. 1. when there was an aid granted by Parliament, it doth appear these great defences both by Sea and and Land were commanded.
My Lords, 10 E. 3. in a Parliament holden at Nottingham, there was a fifteenth granted to the King for three years, and so it was recited in the Record, and appeareth likewise, Pat. 12 E. 3. m. 2. pars 3. Cl. 12 E. 3. m. 28. pars 3. it appeareth that a tenth and fifteenth granted to the King in Parliament, and this was tam pro defensione quam pro arduis negotiis, 12 E. 3. the Prelates and Lords, and Commons, at a Parliament holden at Westminster, gave the King 10000 Sacks of Wool, said to be given pro defensione Regni, as appears Rot. Alm. 12 E. 3. pars I. In the same year there was granted likewise pro defensione Regni medietat. Lanar. the moiety of all their Woolls. m. 31, 32. Dors. 2.
In the same year of 12 E. 3. the Clergy, they gave the King in Parliament medietat. Lanar. usque viginti mille Saccar. as appeareth Cl. R. 12 E. 3. pars 3. m. 13.
Cl. 12 E. 3. pars 2. m. 1. Dors. and in this 12 years of E. 3. the King collected a tenth and fifteenth that was granted unto him by the Laiety in Parliament, as appeareth Cl. 12 E. 3. pars 3. m. 30. I. & 28.
And besides all this the Clergy gave the King a tenth Cl. 12 E. 3. pars 3. m. 30. I. these I cite more particularly because no memory of them in the printed Statutes.
Were all these Aids granted 10, 11, 12 E. 3. pro defensione Regni, and shall the King in these very years send forth Writs for the defence of the Sea and the Kingdom? Now, my Lords, in this 12th year wherein all these great aids were granted Rot. m. 12 E. 3. Ipars m. 12. that Walter de M. was appointed Admiral of the Fleet towards the North, and appointed Commissioners ad assidendum Villas bonis & Catallis ad contribuendum, &c. and Commanded all Sheriffs and Officers to be assisting, so as by this Record it doth appear that in the 12th year Ships and Forces were commanded, Cl. 12 E. 3. pars I. m. 17. Dors. Commanded by the King, that the men of Surry and Sussex should have their Goods seized, and their Persons imprisoned if they refused to contribute towards the charge for Shipping. Alm. 12 E. 3. pars I. m. 2. a Commission to William de B. and others, ad assidendum Omnes bomines juxta statum, &c. and to seize their Goods and Chattels to contribute for the wages of Mariners for the Ships, so as your Lordships see by that Record, though there be Aids, Tenths, Subsidies and fifteenths granted by the Clergy and Laiety, yet in that very same year if any extraordinary occasion, though Ships not upon the Sea, the King hath commanded the defence of the Sea and Land at the charge of the Country; I have done with the fourth particular.
The fifth particular is this Aid, and these Contributions; they have not been required from the Maritime Towns, but from the Inland Counties per totam Angliam; and this materially is to be insisted upon, because we are more in an Inland Country, the County of Bucks; my Lords, this was done before the conquest, your Lordships have heard, for Alfred the first Monarch 827. jussit omnibus, &c. per totam Angl.
Artbunus Minuensis fol. 9. Wigor. Florenz. Fo. 316. Huntington 354. that King Elthred did the like 1008 per totam Angl. every 310 Hides to find one Ship. Mat. of West. 387. Huntingdon 365. about 30 years of King Ethelred was that Ships should be prepared against Easter; and those Laws which are remembred in Lambert which were before the Conquest 10. Cap. fol. 106. quod, &c.——&c. so it was general and universal throughout the Realm, concurring with these antient Presidents and Councils since the time of Will. the first, Cl. 48 H. 3. m. 2. For where a Record is to be applied unto several purposes, I must mention the Record: again it appeareth by the Record of Bedfordshire, which is an Inland County, was charged with the guard of the Sea-Coasts, and paid for Wages, same Roll m. 3. in M. 20. dors. Rutland, Oxfordshire and Dorsetshire, Inland Counties, charged for the same services, Pat. 48 H. 3. m. 7. Cambridge and Huntingtonshire charged for the like service, and that they should do prout Concilium nostrum ordinatum, &c. 24.E. 1. King's Remembrancer side Rot. 77, 78, 79. title de——pro Custodienda Maris, and Writs went out for Ships into divers Counties, and amongst others to Buck-shire, Pat. 26 E. 4.m. 21. when there was a complaint that the Subject did suffer upon undue levies, the Commissioners that are directed for enquiry, directed to all the Counties of England, as well Inland as Maritime. It proveth this Custody of the Sea was as well by the Inland Counties, as by the Maritime, 23 E. 1. Pat. m. 5. that men to furnish a Fleet were drawn and commanded from the most parts of the Kingdom, Sco. 10 E. 3. m. 14. Inland Counties charged with Shipping for the defence of the Kingdom, as Cambridge, Huntington, Nottingham, Darby, Cl. 13 E. 3. pars 3. m. 14. Dors. And there Oxfordshire is charged with Custod. Marit. Sco. 12 E. 3. dors. de Bedfordshire, Buckinghamshire (your County) and Darbyshire there charged with the same defence, Cl. 1. R. 2. M. 18 there Cambridge and Huntington were to provide a Barge at their own charge, and yet no feafaring men there, and like Writs were directed to Nottingham and Darby, though they had none, yet they had money and means to provide them.
Fra. 7. R. 2. m. 18. The King sends His Writs into most Counties of England, as well Inland as Maritime, reciting that the King of France was gone with an Army into Flanders, that Callice was in danger, and commandeth that all Knights, Esquires and Archers, and every of them according to their Estate and Faculty be sufficiently arrayed and armed, and come to the Port of Sandwich ad proficiscendum, &c.
My Lords, In this Record there was mention of Buckingham, Bedford, Huntington, Cambridge, Nottingham, Darby, Exeter, Rutland, Northampton, Bucks and Berks, all these Inland Counties; the words of the Writ are, quod omnes tenentur pro defensione Regni, Cl. 9 E. 3. m. 12, vel 20. quod, &c. all and every of our Kingdom out of their Allegiance to be ready to defend the Realm, 13 E. 3. Dors. a great number of others, by all which it doth appear, 1. That the service was commanded from those Inland Counties. 2. That the same reasons which are given extend to bind the Inland Counties as Maritime Counties.
Pat. 23 E. 1. m. 6 for the taking of Ships in the County of Sussex, Devon, Middlesex and other Counties, if so be the Maritime Counties be in danger, surely the Inland Counties cannot be in safety; we are in an Inland County, and if an entry upon any part, it concerns the safety of us all.
And by the rule of the Law, every one that is to receive a benefit, is to give a Contribution, as the Case of 16 H. 7. fol. 13. all Feoffees, whose Lands were liable unto a Statute, the one shall have contribution against the other.
If 4, or 5. Cognizors in a Recognizance, all shall have Contribution one against another 46 E. 3. Parceners upon whom a warranty descendeth, they shall be equally charged.
If a man bind himself and his Heirs in an Obligation, having Lands, part by his Father and part by his Mother, and descend to several Heirs both equally charged, as it is the third Rep. 13. Herberts Case, so I go upon these reasons, that it is constant to Reason and the Law, besides these Presidents, that where a danger to all, and receiving of benefit by all, all be equally charged.
My Lords, To illustrate by further reasons, that though the Inland Counties and Maritime Counties be charged, I find that the Ports by the Charter of E. 1. were to find 57 Ships. I find that when the necessity of the service did require it, then all their Ships were seized into the King's Service, I find likewise that when there hath been a disability in the Port to perform the service as now they are, for then the main part of the Trade was in the Port Towns, but now it is gone from thence and come to London, and few Ports have the Trade, but London, Newcastle, Bristol, Hull; and shall it now be required by the Inland Counties since a disability in the Ports, Fra. 21 E. 1. m. 23. I find there that Plimouth and some of the Port Towns did bear more than London; for Plimouth found four Ships, Dartmouth six, Bristol four, Newcastle three, Norwich and Tarmouth four, London two, Hartipool two, Sandwich two, Dover two, Rye two, Shoram and Arrundel and other places found but one; it appeareth, Alm. 13 E. 3. m. 13. Dors. that Tarmouth furnished at their own Charges four Ships, Kingston two, Boston two, Lynn two, Harwich two, Ipswich two. My Lords, Are these Ports able to furnish the King with so many Ships in these days to do these services? the wealth of one Portsman in those days was worth the whole Town as it is now; admit the Maritime Towns were bound unto it, yet of a failing of the ability that they cannot do it, shall it not elsewhere be required, that is agreeable to the Rules of the Law; before Commissions for Sewers where particular men are bound to defend the Sea, yet before any Statute in Case that the man was not able, the service was required from the County, for by it they might have either gain or loss, this appeareth by the Rule of the Common Law before the Statute Register 123 quod distringat omnes, &c. when one man was to maintain the Bank of the Sea, if not able, the rest that have benefit by it were to be distrained for it, 5 Rep. fol. 99. 10 Rep. 140, 141. Case of the Isle of Ely, agreeable that all men who have salvationem & damnum shall contribute.
To this purpose are those two Records remembred by Mr. Solicitor, Pl. 7. H. 4. No. 18. that where there was a Subsidie granted to the King for the defence of the Realm, was assigned to certain Merchants, yet with a salvo unless a Royal Power come,fr. 6.R. 2. m. 8. certain Merchants had the custody of the Sea, except Regal.potestatem, so the conclusion is, if an ordinary defence there may be no cause to go into the Inland Counties; but if a Royal Power or extraordinary danger, though not eminent, the King may require an extraordinary Contribution per totam Angl '; but this hath been objected against, and some Records have been vouched; that is (say they) we will shew you many Presidents, wherein the Navale Subsidium hath been required from Inland-Towns, and they have been discharged thereof, as Pat. 2 R. 2 R. 2. pars 2. M. 42. Dor. the Town of Beverley Petition, because they were to contribute, being an Inland-Town, towards the finding of a Ship for the Town of Hall, and was discharged thereof. This Truth, but not the whole Truth; for the Town of Beverly was discharged by reason of a Charter of Exemption granted unto them in honorem Sti. Johannis Beverly, the King's Consessor; upon that Charter were discharged: They have objected likewise for the Town of Bodman: They were discharged a Custod Maris an In-land Town in Cornwel; for this, Cl. 13 E. 3. pars 2. M. 14. was vouched for it, that the Town was discharged of this Contribution; for Answer unto that it will appear, that one Trussel was then Admiral of the Fleet, and was by his Commission to be furnished from the Ports at their own Charges for three Months.
My Lords, this appeareth Cl. 13 E. 3. pars I. M. 35. and so that Town and In-land was to be discharged.
My Lords, likewise there were other discharges upon that Reason, as Norwich was discharged for finding of Men, for making of Ships, because the Admirals Commission did not warrant it, Sco. 10 E. 3. M. 15. for it only extended to the Ports; but yet Norwich was charged to find Ships, Cl. 13 E. 3. pars 1. m. 14. So Colchester was discharged from finding of a Ship; but because they were not within the words of the Writ, as appeareth Cl. 13 E. 3. pars I. m. So as to tell your Lordships a Story of a great number of LandTowns discharged de Custod' Marit ', and not to give your Lordships the reason, it's nothing to the purpose.
So, my Lords, having verified this fifth Point by these Presidents and justified by these Reasons, and answered these Objections, I shall now come unto the sixth matter upon this Record.
And that is, that though no cause be declared in the Writ, no danger manifest, nor against what Enemy; that yet the King's Writ hath commanded Shipping both for Defence of Sea and Land; and in the King's Wisdom, the danger hath been reserved in His Breast, and not communicated to His People by His Writs.
1. I find that ancient Presidents have been so, that it hath been reserved unto the King Himself, and those whom He did depute; that appears Cl. 14 so. m. 2. The King directed His Writs to Herbert, with a Mandamus to make ready all Ships for our Service when we shall command; not a word of a Cause declared, or an Enemy proclaimed; same Roll m. 6. The King by Writ directed unto other Parts, causeth all Ships that could carry six Horses or more to be sent unto Portsmouth; and the like Writs were directed unto other Parts, I Pat. 15 so. m. 4. The King appointed a Guardian upon the Sea-Coats, and commandeth all Men that they should be Intendentes, and other Writs in the same Roll directed into many Counties with a Mandamus, 17 so. Cl. m. 7. Do. Writs for the taking if Ships, and bringing them into Thames mouth, without shewing any cause. All this was done in the time of King John.
In the time of H. 3. Pat. 13 H. 3. m. 5. a Writ commanding the Sheriffs of Kent and Suffex to arrest all Ships in those Counties to be at Portsmouth to be ready to go in that Service we shall command: And it appeareth in the same Roll, that these Ships were able but to bear six Horses; so in the Cl. Roll 14 E. 3. m. 13. To our Bailiffs of Portsmouth, and keeper of our Navy, to make ready one good Ship, and be ready to go in the Service of the same King, whither, and where He shall command it, Cl. 23 E. 1. m. 5. Do. The King declares, That He will have the Sea-Coasts in Essex guarded against Enemies; and there commandeth them to be obedient to such a one who had the Custody, Pat. 23 E. 1. m. 2. The King writeth unto all Arch-Bishops, Bishops, Sheriffs, Knights, and others, to be assisting unto who had the Custody of the Sea.
10 E. 3. m. 37. The King commandeth all Ships to be arrested, and Men and Mariners to be sent unto the Admiral of the Fleet, ad proficiscend ', &c. same Roll, m. 5. Do. A matter fit for the Counsel, and not for the People to know; same Roll 20. that should do, prout vobis, &c. The King to give no Account to His Subjects of those things, 24 E. 1. m. 19. The King having commanded O. S. to take up 100 Ships fit for His Service, commandeth the Sheriff of Northumberland and others to be assisting; same Roll. m. 17. Command to the same effect for all Ships that should be taken between Lynne and Barwick; it was likewise in the time of E. 2, 9 E. 2. Pat. pars 2. 26 Ships taken up at the Charge of the Inhabitants to defend the Sea against Malefactors, Cl. 12 E. 3. m. 11. Do. a Writ directed to the Major and Sheriff of Sandwich, to make ready all Ships within their Ports, of 40 Tun Ha. &c. that they be ready within three days warning to go, as we shall more fully declare, the Service that was to be done; so it appeareth by other Writs to other Towns, in the same Roll, 17 E. 2. m. 11. Do. Pat. 14 H. 6. pars 1. m. 14. Rex proquibusdamarduis Causis, &c doth assign John Hexam to take up all Barges of 10 Men and upwards; so in all these times of King John, H. 3. E. 2. E. 3. and H 6. Writs have gone out generally, that the Service hath been concealed, and for instruction referred unto the Council, sometimes to the Guardian of the Fleet.
It standeth with reason, for resolutions of War are not to be communicated; His Majesty hath a separated Council of War from the Body of the Privy Council.
Now, my Lords, for the Objection that hath been made against the first Writ 4. Aug. 11. Car. that is, the King hath not declared cause for the issuing of those Writs; the King hath not communicated it to J. D. and J. M. what the imployments must be; he must satisfie the Counsel at Bar, which he ought not to communicate to His Privy-Council, but is reserved for the Council of War: This is a Writ to command obedience from His Subjects, and upon such Reasons as may satisfie any reasonable Man; and if fewer Reasons, it had been the better agreeable to all former Writs: For the next matter out of the Presidents, which is, that during the times of Parliament, that these Writs have issued, I have made that good upon my former Head.
The last thing I observed upon the Presidents is, that there was no cause, nor Particular in this Writ of 4. but was warranted by may presidents; and in King doth jubere per Legem.
First, for the direction, as in the Writ, sometimes upon one, or Probis Hominibus of such a Country, sometimes the direction to Commissioners, sometimes one way, sometimes another way; and of this of the Presidents themselves, when your Lordships come to see them, I shall speak, they would have the King to descend so low as to give them a Reason why he did it; some Reasons are expressed in the Writ, as Quia periculum eminens, quia pro desensione Regni, Tuitione Maris, Securitate Subditorum, salva conductione Navium, &c.
My Lords, All these are expressed in the Records, 9E. 3. M. 12. Sco. 10 E. 3. M. 20. Malm. 12 E. 3. M. 1. 12. Malm. 13 E. 3. M. 13. I find in these Writs the same matter, power of Assessment, same Services by distress, and by Imprisonment; nay, seizure of Lands and Tenements, Goods and Chattels that are expressed in the former Writ; and that it was of the charge of the Country, both Inland and Maritime: This appeareth Rot. Sco. 8 E. 3. M. 9.4. de Navigio providendo pro Custodia Maris; many of these, Sco. 10. E. 3. That the Wages of the Men that went into the Ships, and guarded the Coasts, were at the Charge of the Country; this appeareth 10 E. 3. M. 2. Do. 60. Men appointed and sent to Portsmouth, and they refused to go without Wages; but a Command came from the King, and commanded the Counties to pay them Wages, 10 E. 3. M. 21. Do. and His Predecessors not bound to bear any Charge, tho' pro desensione, Alm. 12 E. 3. pars I. Those of Lynne, who refused to contribute towards the Charge, were assessed by Commissioners, juxta quantitatem, and were compelled to contribute; so in the close Roll, 12 E. 3. M. 8. the like pro Custod' Marit '. I might be infinite in these Particulars; but I will not tire your Lordships. Here they have made some Objections, though to answer the main Objection I am not yet come.
Obj. They say, this Power of assessing the People for Sums uncertain, these ought not to be, no more than Escuage uncertain, and must be assessed in Parliament; and this Assessment for Defence ought not to be by Commission, not for the King's Writ.
First, for the Authority, which is Littleton, he faith fo. 20. Que communment ditq; Escuage serra assesse per Parliament. I do not find by the Register where these Writs are, neither do I find them provided upon any Act of Parliament; but what if it be by Parliament, a Service that is to be done by the Tenant to his Lord, what if this be so, that it must be assessed in Parliament? your Lordships know, that the Tenant must do according to his original Duty of them he holds: And if this be so, that the Lords shall not assess them in Parliament, is that an Argument from a Tenant to a Lord to this Case? This is a Service commanded not by Tenure, but by a King from His Subjects; this is suitable to the reason of Law in other Cases for these ancient ties which the King doth require for the making of His eldest Son a Knight, or pur file marrier : Are these certain at the Common Law? Must there be an Act of Parliament of assess those Aids? the Books are otherwise; but the King at the Common Law might require an Aid uncertain, and might Sess it as He pleaseth. Glanvil lib. 9. Cap. 8. Brit. so. 57. Cap 27. Bract. lib. 4. Cap. 16. so as at the Common Law they were uncertain, 11 Rep. 68, D. It is said there, the Stat. of Westm. I. Cap. 15. which putteth reasonable Aid in certain, doth not bind the King a fortiori; we must not tie Him to a certainty, for the Defence of the Realm. No Man can tell what the Preparation must be, or the Charge thereof; if they can shew an Act of Parliament that limits the King for Defence of the Realm, they can say something.
But they say the Sheriff is no Officer, nor sworn to execute the Writs: This is as wide as the other; for, my Lords, the Sheriff is sworn to execute all Writs that shall be delivered to him for the King's Service; and surely this Writ, is it come unto him, he must at his peril execute it.
First, the direction of those Writs have been many times as well to the Sheriff, as to the Commissioners, Sco. 10 E. 3. M. 13. Cl. 15. E. 3. M 17. The King commanded the Sheriffs of several Counties to furnish Men with Arms, Victuals, and necessary Provision both by Sea and Land, 23 E. 1. M. 5. Do. 24 E. 1. Rot. 79. ex parte regis. The Lands of the Sheriffs and other Officers were extended because of their negligence in doing of their duty in these Writs, 25 E. 1. ex parte regis. A Commission went out to enquire of the execution of the Officers in the duty of their negligence in doing of their duty in these Writs, 25 E. 1. ex parte regis. A Commission went out to enquire of the execution of the Officers in the duty of their Places.
Besides these Writs at the Common Law, he is seconded by the Authority of the Common Law, Register 122, or 127.
That Writs went generally unto the Sheriffs, for that in all Times and Ages it hath ever been in these Cases, where no certainty left to the discretion of the Sheriff and Commissioners.
My Lords, For the manner of levying by districtions, and by Imprisonment of those that do refuse, it hath been so in all the Presidents that have been vouched both by distress and imprisonment: for the Distress, if the King make a Corporation, and give them Power to make Ordinances for the Common-Wealth, and they make an Order, that they shall not pay the same, they shall be distrained. And is not this adjudged a good Ordinance, 5 Rep. 64. Clarks Case, T 7 H. 7 H. 7. Rot. 3. There is a Benevolence granted to E. 4. for his Voyage into France; one T.R. did deny payment, and he was distrained for his proportion.
They except to the penalty of the Writ, the penalty of former Writs have gone higher inter Co'ia in the Exchequer. There was a Mandamus to asses those imployed in the provision for Shipping; and this Mandamus was, Sicut nos honorem salvationem Regnidiligitis. In that Roll that is so often remembred, Sco. 10 E. 3. M. 1. Do. quod, &c. Their Lands, Good and Chattels remain seised into our Hands, and M. 2. under pain of forseiture of Life, 11 E. 3. M. 2. To cast those into Prison that did refuse, cl. 12 E. 3. M. 18. Do. Writs directed unto Henry Hussey and others, to punish those who refused to contribute, and to imprison them, and seize their Lands and Goods into the King's Hands, Cl. 13 E. 3. pars 1. M. 36. Do. To seize into their Hands the Lands and Tenements of the Resusals, Rot. Fran. 21 E. 3. pars 1. M. 11. The King commandeth Ships under pain of Life, and all his Estate to forfeit, Fra. 10 R. 2. M. 23. super and to imprison those that contrary under forfeiure of all they had; so as your Lordships see that Mr. Holborne was very far mistaken.
My Lords, in the next place they have laid hold of the distance of time, they say there was seven Months between the Test of the Writ, and time of Randezvous, that the King might have called a Parliament, and there might have been an Aid granted, and the Service performed in a Parliamentary way; but they may remember the 40 days between the Return and Test of the Writ, the time spent in presenting a Speaker, the solemnity used before they begin, their grand Committees, their reading of a Bill thrice, their debate about it, the passing of both Houses before it be granted. After all this be done, and the Parliament ended, a time for the levying of the Money must be had; and when it is levyed, time for the Return of it; when it is returned, time for the expending of the Money. And the Preparations will go slowly on till the Monies be returned, 48 H. 3. M. 4. Do. There was a Command for guarding the Sea-Coasts, Cl. 23 E. 1. M. 5. Do.
That the Ports of Tarmouth commanded to find Ships for a certain time, Sco. 11, 12. 13 E. 3. they are put down in that Roll 8. That there was a Command Navale subsidium for three or four Months.
So as, my Lords, both for the time of preparation, and for the time of the continuance, it hath ever been reserved unto the wisdom of the King.
My Lords, for the Spanish Invasion, that hath been so late in our memory. I find by the Books that are kept in the Council-Chamber, that the Preparations were in October Anno 87, against the coming of the Spanish Fleet in 88, which did not set forth till June. I find no Parliament called that year: And by the Letters and Orders from the Council-Board, those Ships and Defence that were made, was ad sumpt' of the Subject: So as, my Lords, by this that hath been said it doth appear unto your Lordships, that there was not any Clause in this Writ, either for the Direction, Motives, Mandates and Penalties; but are warranted by former Presidents, that I have collected and reduced unto these several Heads. I shall now remember unto your Lordships divers things; and in the first place observe, that William I. came not to abrogate any former Law, but was sworn to observe Antiquas Leges Anglicanas: That appeareth in Lambert 125. So every Man, by this Law, which was but a confirmation, must provide pro viribus & sacultatibus.
I find in the Grant, that William the first made unto his Abby of B. of his own Foundation, a Charter to be free from Danegeltis & omnibus auxilijs: If they had not been freed, they had been subject. I find Pat. 7. so. M. 3. The King authorized Walter Scot, and others, that omnes Naves, &c. which could carry six Horses, which they should find, to arrest and command all to assist, as they love us and our Peace in our Realm, 14 so. M. 6. As your Lordships have heard all the Ships were arrested that could carry six Horses, and to be at Portsmouth M. 2. all the Ships of the Ports were to go in this Service, without expressing for what Particulars, Cl. 12. so. 7. Do. commandeth all the Ships to be brought to the Thames mouth: so here was not a laying down the continuance of it.
So H. 3. time, Cl. 14 H. 3. m. 12. Do. All Ships taken that could carry 16 Horses, Cl. 15 H. 3. M. 17. Do. Command for the furnishing of Armed Men with Victuals, and other Provision for 40 days; and there was the like Command to the Sheriffs in several Counties, Cl. 26 H 3. The King commandeth the Men of Tar mouth to have their Ships ready with Men and Arms: The some Roll to find 10 Ships to go to Piccardy, Pat. 48 H. 3. M. 3. Do. Writs to the several Port-Towns, that no Ships should go beyond Sea, but all to stay at home. Those who returned from guarding the Sea-Coasts were punished by Imprisonment, seizure of Goods and Chattels, M. 4. same Roll Do. Provision to be made till further use be had; so it was not confined unto time, but unto occasion, as need should require. And there be divers others in the time of H. 3. upon other occasions, which I have remembred in that time of E. 1. All the Port-Towns were appointed by the King and His Council, how many Ships every one should set forth, Vasc. 22 E. 1. M. 11. Do. N. 6. The King of England in that Writ doth stile Himself Superior Dominus Regni Scoti &c. and sendeth His Writs to the King of Scotland, to let him know the King of France had taken part of Gascoigne, an Inheritance of the Crown of England, that he should, in Fide & Homagio, be at London with Horte and Arms, &c. This Writ is very observable, the King of England is Superior Dominus, a part of Gascoigne then lost: The King of Scotland was required by this Writ, as well as requested, to give him Aid, for the Recovery of those Grounds taken from him in Gascoigne.
My Lords, This Power is not consined only to England, but it reacheth (as great Lord) into Scotland, also into Ireland, Vasc. 22 E. 1. N. 5. Dor. The King by His Writs commandeth divers Earls and others of England and Ireland to do the like, to send Men to London with Horse and Arms; the same Rot. Vasc. M. 13. Dor. All that claim to be of the liberty of the Ports, were commanded Pat. 23 E. 1. M. 1. 5. 7. All Ships of 40 Tun were to be furnished and provided for the King's Service, C. 23 E. 1. M. 5. every Man is compelled to contribute; same Roll M 40. that did not inhabit in the Maritime Towns; yet if they had Land there, they must contribute; resident or not resident, within or without their liberty, all must contribute; resident or not resident, within or without their liberty, all must contribute.
My Lords, in that Writ which is Cl. 23 E. 1. M. 5. Dor. I will observe these things: 1. A Command unto all Bishops, Abbots, Lords Spiritual and Temporal, Quod sint intendentes respondentes ad Custodiam maris. 2. In contingent Causes. Thirdly, Writ faith, Quod omnes ad Arma, &c. Secundum Statum, &c. Ad transferendum nobis. And possession of Goods and Lands to be taken for the Custody of the Sea, as in times they were accustomed; so it is to be done in this manner, as in times past.
Fifth place, the Writ was directed to several Sheriffs per Corpora, Bona & Terras to distrain. Next 24 E. 1. M. 15. the King commanded the Arch-Bishops, Bishops, Barons, all the Commonalty, to desend the Maritime Parts, Cl. 24 E. 1. M. 19. pro Custodia Marit'. There was another of Simon which I remembred before 24 E. 1. Rot. 76. Another of the like Rem' Regis. Cl. 15 E. 1. M. 26. Do. The King moderateth the Expences of the Country, when the danger ceaseth, Cl. 25 E. 1. m. 12. The King commandeth the Sheriffs in several Counties, and others, to bring all the Ships to be ready for our Service whensoever we command, m. 20. same Roll; the like command de Custod' Marit', Pat. 31. E. & m. 20. Power given to Thomas de B. to raise Forces in Cumberland to resist the Scots, and those that did refuse to seize their Goods: In the time of E. 2. Cl. 2. E. 3. m. 21. the King commanded divers Towns to set forth Ships against the Scots; and afterwards by special Writ some of these were discharged, Rot. Pat. 9 E. 2 pars 2. m. 6. Pat. 16 E. 2. m. 11. A Writ directed to Sir Thomas W. and others, to array all between sixteen and sixty, or to take their Goods and Lands if they did refuse, Pars 1. m. 7. of the same Roll, 16 E. 2. Cl. 20 E. 2. m.
The King doth there declare, That those who stay at home ought to contribute to set forth Ships, and for the Wages of the Men imployed, Cl. 20 E. 2. m. 60. Writs directed to the Scholars of Oxford; they were not exempted, but commanded to keep south-gate safely, Vasc. 18 E. 2. m. 18. The King writeth to the Arch-Bishop, and others, commanding them to have Horses and Men in readiness as often as need shall require: For the time of E. 3. Cl. 2 E. 3. m. 13. m. 22. Do. the King writeth to Southampton, and to other Towns, for their Shipping, 3 E. 3. Pat. pars 2. m. 6. The King commandeth the Sheriff of Cornwal to distrain Kinghts, and others; that abide in their Lands upon Maritime Parts, and imprison Those years of 10, 11, 12, & 13 E. 3. have been remembred. 21 E. 3. The King, concerning the Defence of the Sea and Sea-Coasts, gave special Rules to be observed, both for the Number of the Ships, for the Quality of the Persons, and for the Proportion of their Wages, as appeareth Pat. 19 E. 3. pars 1. m. 26. 21 E. 3. pars I. m. 26. & 17. where there was special order taken for the guarding of the Sea and Sea-Coasts at the Charge of the Inhabitants, Franc. 21 E. 3. pars 1. m. 11. Command to the Sheriff of London to arrest all Ships in London to be sent to Callice to resist the Enemies against us, then about to come: Franc. 25 E. 3. m. 9. N. 26. the King reciteth, That France made a Preparation to invade the Realm, and gave a Power to some to raise Forces, and commanded the Sheriffs to raise Posse Comitatus to assist the Commissioners. 26 E 3. Pat. pars I. m. 7. the King, by His Writs to several Counties, commanded, That all Men between 16 and 100, to be in a readiness to resist the scots.
Franc. 25 E. 1. N. 31. Command unto all Officers and Ministers to assist Andrew de Gulpho in the raising of Forces for Shipping, and to bring them to Portsmouth; so as in that Roll likewise your Lordships see that the In-lands were commanded for Shipping, Fra. 28 E. 3. m. 6. The King appointed R. C. and Ro. A. to arrest all Ships of 20 Tun and upwards, between such a distance, and to bring to southampton, Scoc. 29 E. 3. m. 13. That several Writs were directed to the Bishop of Durham, Carlisle, and others, for the arraying of Men, Fran. 40 E. 3. m. 45. Dor. Command to make Proclamation, That all, having Lands upon the Sea-Coasts, should repair thither with their Families; so as in all Ages and all Times Writs have issued both for Defence of the Sea and Land.
In the time of R. 2. Parl. 6 R. 2. N. 42. That was objected as a Record against the King, but maketh clearly for Him, que dit, que le Roy Person assemblies en Parliament est desire de viver des Revenues del' Corone, car Escbeates, Marriages, & Forseitures, font pur le Defence nostre Roy Resp. le Roy volet de faire en ceo Case; come per le advise des Seigniors, &c.
Your Lordships see they desire of the King to live of His Revenues; that the Profits of Wards and Marriages of the Realm might be kept for the Defence of the Realm. The King giveth His Answer, That He he will do and obey in this Case, by the Advice of the Lords of this Realm, as shall be most for His Honour and Profit; so no reason to make any inforcement out of this Record.
The Profits of Wards, &c. goes for Defence, because the King giveth no absolute denial unto it, saying, That the King will do as He shall be advised by His Lords.
Fra. 7 R. 2. m. 18. That the Lords beyond the Seals be Arrayed and Armed according to their Estate and Family, Pat. 8 R. 2. pars 2. m. 15. A Command, that all between 16 and 60 be in readiness, 10 R. 2. m. 23. Arrays throughout all England; and so in the time of H. 4. parlement. 5 H. 4. N. 24. for the Arraying of all Men throughout England, and those that were impotent, and could not go to contribute unto it, 3 H. 5. m. 36. Do. Pat. 13 H. 6. m. 10. General Commissions for the arrest of Ships, without declaring the Cause, Pat. 14 H. 6. assigned so. de N. to arrest all Ships in the Port of Southampton, to do Service as the King should command: There was no cause declared. Pat. 28 H. 6. m. 2. 13. Commissions to array, and those arrayed to keep in array with diligent Watches; and the like Writs awarded into other Counties, I H. 7. 1. pars. The King writeth to Sir Fitzhughe to array Archers and Horsemen; so that it appeareth by those Presidents in all Ages, that those Defences have been made by Sea and Land, not confined to Port Towns, and Maritime Places, but per totam Angliam.
Next place I shall give a particular Answer to such Objections as have been made (as have not faln in my way) unto the Acts of Parliament, Reasons, Records, and some Book-Cases.
The End of Mr. Attorney-General's second day's Argument.
Mr. Attorney General his third day's Argument.
May it please your Lordships,
The Matters I did propose to insist upon this day, was the answering of the Objections, I shall use no Preamble, no Repetition to induce what I have to say: But in the answering of the Objections I shall first give answer to the several Acts of Parliament insisted upon, then unto the several Records and Reasons that have been urged; and in the last place I shall answer the Exceptions that have been taken unto the Writ 4 Augusti, Mittimus, and form of Proceedings.
The first Act that they have insisted upon, is that of William I. Call it what you will, an Act or a Charter: The words of it are verbatim in Matthew Paris. Volumus & concedimus quod omnes liberi bomines sint quieti ab omni Pallagio, &c. Surely this Act of Parliament or Charter, it doth no way trench upon this Royal Power: For, as in the beginning of my Argument I opened unto your Lordships, that this Power was inherent in the Kings of England before the Conquest; here is only a Concession, that they shall be free ab omni injusta exactione; now this is no unjust exaction, for it is of common Right; and then the other part of this Law doth explain it, for it faith, That sumus fratres Conjurati, &c. so far as the Defence of the Realm: By the same Law they would urge to take away this Power, by the same Law it is reserved.
Next place they insisted upon, was the Charter 10 Jo. or on Magna Charta, as they call it, which indeed is mentioned in Matthew Paris, and may be under the Great Seal: The words of that are thus. Nullum scutagium vel auxilium, nisi per Commune Concilium militem faciend', & maritand' fil', &c. This Charter it is, as was acknowledged by themselves, granted at Rumny-meade, when the Banners were displayed, when there was War or Rebellion, between the Barons, Commonalty, and the King. It was not assented unto the King sitting in Parliament; for Parliaments are not called with Arms, and in the Field: It was in truth an inforced Act from a distressed King; shall this bind the Crown? I shall remember the Acts of Parliament made 15 E. 3. and there only were things that were in Parliament enacted derogatory to the Crown, as this is, that no Peer should be questioned but in Parliament, that no great Officer be removed but in Parliament, that no Clergy-man shall come before Temporal Judges; these were things that were much derogatory to the Prerogative of the King.
15 E. 3. That King the same year, when he was better advised, did make a Charter, which is in Print, for the recalling of this prejudicial Act of Parliament still in force:
It appeareth by the Parliament Rolls, and Printed Books, where the King declareth, it was drawn from Him with an unwilling mind, and was prejudicial to the Prerogative of His Crown; and therefore by that Charter it was repealed.
But, my Lords, this Charter 17 Jo. if this should be in force, why bath there been no confirmation of it in so many Parliaments since? The Statutes of Magna Charta, 9 H. 3. hath been confirmed 31 times, why no confirmation of the Chapter 17 Jo. and why have we not heard of it since that time? Reason for it, because it trencheth too high on the Prerogative of the King and Crown. But take the words as they are; what be they? Nullum scutagium nisi per Commune Concilium Regni nostri. If it were an Act, doth this extend to take away any thing of common Right unto the Crown? And that hath been the Exposition of my Lords the Judges of Acts of Parliament, That Aids due of common Right are not taken away by general words of Commune, &c. And therefore these Aids due of common Right, as this is, are no way taken away; besides, for the Statute of Magna Charta, it is made, 9 H. 3. Cap. 29. Nullus liber bomo capietur, aut imprisonetur, nisi per Legem, &c.
The general words of this Act of Parliament doth no way impeach the Royal Power; for this Royal Power it is Lex Terr; besides in these Presidents, 14 H. 3. 15. H. 3. 26 H. 3. 48 H. 3. and all the succeeding Kings remembred in all them, that these Writs went out to provide Shipping at the Charge of the Inhabitants: So furely, if they had been taken away by Magna Charta, the Writs after Magna Charta would not have used it.
Obj. But then there hath been objected the Statute de Tallagio non concedendo; if it be 25 E. 1. as it is printed, or 34 E. 1. or, as the Petition of Right doth recite it, Temps E. 1. Be it when they will; I say, under favour, there is nothing in that Act doth take away this Power: The words are thus. Nullum Tallagium vel auxilium, sine voluntate Episcoporum, Baronum, Burgensium, &c. Mr.Solicitor,in his Argument upon probable Ground, did make question, whether this was an Act of Parliament, yea or no?
- 1. In respect it was not inrolled among other Acts of that time.
- 2. Because the Penning of it may rather seem to be an Abstract.
- 3.Because when the other Acts of those times were sent over to E. 1. to be Sealed and Confirmed, no such Act was sent over.
My Lords, I will not lay hold on this; but will admit with them, that as it is recited in the Petition of Right to be an Act of Parliament, so I will admit, (yet to wave nothing that hath been said) but by way of Admittance I give this Answer.
Ans. 1. That it taketh away no Aids that are due by the Aids of the Realm; yet the words are general, Nullum scutagium vel auxilium, nisi assensu 'Parliamenti, &c. Here is not in this Act of Parliament so much as an exemption of an Aid to Knight the King's Son, or to marry the King's Daughter; Yet in this the Law is resolved, that these Aids are not taken away. And so it is declared,25 E. 1. Ca. 11. which doth reduce these Aids unto certainty, so as your general words of Nullum auxilium will not do it. If this be an Aid due by the Law of the Land, then I say this is not properly an Aid; but a Contribution of King and People for the Defence of the Realm: It is ad proficiscend' cum Navibus Nostris; then I say, that this Power is inter Jura Summe Majestatis, one of the higest Prerogatives of the King, and shall never be taken away by the King. 12 H. 7. Stat. quia emptores terrarum doth not extend unto the King to take away his Tenure; If you will have such an high Prerogative taken away, you must shew it in the Acts of Parliament. Nay, my Lords, I say that in the time of E. I. this Royal Power is expresly reserved by Act of Parliament unto the Crown, and therefore in aster times never intended to be taken away.
(1.) I shall inforce it out of the Statute of 25 E. 1. cap. 5, 6. That doth recite that Aids and Taxes which have been given unto us before time to wards our Wars and other Businesses of our own grant and good will, howsoever, they were made might turn to a Bondage, &c. We have granted that we shall not draw these Taxes into a Custom, &c. and do grant that for no Busniness hence forth we shall take such manner of Aids, but by a common consent of the Realm, &c. saving the antient Aids due and accustomed. This Aid is not taken to be an Aid, for this was never given unto the Kings of England, but taken by Royal Power, the Statute of 25—speaketh of such Aids as have been given, and excepteth such Aids as have been due and accustomed, and by the Presidents shown it appeareth those have been due and accustomed. It hath been desired side & Ligeantia and with a Mandamus, 2 E. I.cap. I. This Statute doth confirm the great Charter, and the Charter of the Forrests. But in the end of it in the Parliament Roll, that notwithstanding all these things before mentioned, both the King and His Council, and all they present at the making of this Ordinance, will intend the prerogative of His Crown be saved unto him.
A further Answer to the Statute de Tallagio non concedendo, the practice that hath been since the time of E. I. in the time of E. 2. E. 3. R. 2. and the practice since doth shew plainly that it was never intended by the Statute to take away this Royal Power. But then a thing materially objected, if the Records had warranted what had been said, and that was Rot. Parl. 29 E. 1. and there it was said that though there be a saving 25 E. 1. 28 E. 1. yet here is no saving in this Act, so then Act of 29 E. 1. all was lost.
My Lords, In this, I say, there is nul tiel Record, and therefore I shall desire that this which they call an Act, 29 E. I. I may attend your Lordships, which by the Record it doth appear that it is only a Record of the perambulation of the Forrest, and no repealing of any former Law, neither is any thing enacted by that Law derogatory to the Crown.
Next Statute objected, 1. E. 3. cap. 5. words are, that no Man shall be charged to arm himself otherwise than in the time of the King's Progenitors, and that none be compelled to go out of his Shire, but where necessity requireth, and sodain coming of strange Enemies within the Realm. So this Statute is relative to what hath been formerly done, and what hath been formerly done appeareth by the Record of King John, E. I. that the Subjects were to fet forth Ships for their defence, at their own charge, then those Writs went out in E. 3. time, as hath been shewed. And then this Statute alloweth in two cases, one where necessity requireth, the other upon the fodain coming of strange Enemies, and this Writ requireth no other, but where necessity is in the King's Judgment.
Obj. Next Statute of 1 E. 3. cap. 7. was objected where Men of Arms were conveyed into Scotland and Gascoign without wages; the King faith it shall be done so no more; the Statute mentioneth Scotland and Gascoign foreign Wars, and so foreign to this business; for though Scotland was subject to the dominion of England, yet it was adjudged a divided Kingdom. 8 R. 2. continual claim Com. 376. That a Fine shall be paid by a Stranger, because he was in Scotland at the time of the Fine levied. Bract. 436. an Abjuration into Scotland is good, 6R. 2. protection 46. that Scotland is out of the Realm. Therefore this Statute that speaketh of Gascoign and Scotland, speaketh of foreign Wars, not of Defence.
Next 10 E. 3. cap. 7. Men of Arms, Hoblers and Archers shall be at the King's Wages. This Statute likewise speaketh of going out of England; but he that is upon defence of the King's Seas, he is not out of England, for that 6 R. 2. protection 40. The sending of Ships for the defence of the Coasts is no going out of England.
Obj. Next Statute 15 E. 3. cap. 8. no Man shall be constrained to find Men of Arms, Hoblers or Archers, otherwise than those who hold of such services without Common Consent. My Lords, This Statute of 25 E. 3. doth not take away any former Laws, in that Statute of 4 H. 4 cap. 13. and enacted they shall be firmly holden and kept in all points. So if these Statutes must be kept firmly in all points, then the Statute of 25 E. 3. doth not repeal any of these: Now that of 1. E. 3. cap. 5. reserveth a power unto the Crown, where necessity requireth, and when fodain Enemies come. 26 E. 3. those Ships were sent forth, and commanded for the defence of the Realm at the charge of the Subjects, Rot. Fran. 26 E. 3. m. 4. 5. Fran. 28. E. 3. m. 6. so as clearly there is no part of this Power impeached by this Statute of 25.
Then they have objected Parliament Roll, 2 R. 2. No. 3. Earls and Barons and other Sages of the Realm declared the great mischief by Sea and Land, and therefore declared they could not remedy this mischief but by charging of the Commons, which cannot be done without Parliament.
This is no Act of Parliament, it is but a Parly or Discourse and Communication between the Lords and Commons. It was in 2 R. 2. in the nonage of a young Prince, who did not assent, for there was no Royal assent unto it, so no proof in this Case.
Next Record 9 R. 2. parl. no. 10. there was a tenth and a half and fifteenth and half granted to the King, upon condition contained in the Schedule, which is that the King should assent that the Officer should be named in Parliament, and Servants be appointed for dispence of the Money.
If the King will accept the Subsidies and Aids upon condition, doth this take away the Royal Power? there is no more done in this than was in the Parliament 21 Jo. for there the Officers and Treasurers were appointed by the Houses of Parliament. But then further it doth appear, that this was granted pro viagio Jobannis Regis de Casteel, so that it was granted for the Custody of the Sea, but for this Voyage. Next place they insisted upon the parl. 9 H. 4. no. 2. tenth and a half, and fifteenth and a half granted, with protestation that this should not be returned for example, this is nothing, no more than the other. A Parliament grants a Subsidie upon Condition it should be thus and thus imployed. And the protestation can no way prejudice the Crown in this. 7 E. 4. parl. no. Objected there the King's Speech, that is there entred upon the Roll, that he will not charge His Subjects but in great and urgent occasions.
My Lords, This is nothing but a gracious Speech of the King unto His Subjects, that he would charge them but in such Cases as should concern the defence of the Realm.
The Statute next objected, was 1. R. 2. cap. 20. that the Subjects from henceforth shall in no way be charged by any such Exaction or Imposition. My Lords, This is no Benevolence, but a Legal due.
Next they object the Statutes of Tonnage and Poundage granted to the Crown for the defence of the Realm.
In Answer to that, there is no Act of Tonnage and Poundage that is now in force; neither are any duties taken to the Crown upon any Act of Parliament.
Those Statutes of Tonnage and Poundage which have been granted, they make for the Crown; and therefore if your Lordships look the Statute I E. I Jac. it was given towards the King's Charges for the defence of the Realm and sageguard of the Sea: It was given towards the charge; It is not intended of any extraordinary defence, so as, my Lords, these Acts when they were in force did give this but towards the charges. It is so now, for this which is done, and those Contributions levied are but towards his charges, and that will appear upon account, that His Majesty for these three of four years hath expended more upon the Sea than any His Progenitors, besides an acknowledgement in these Acts, that this defence could not be done without the intolerable expence of His Majesty, these aids are of necessity, and not to be lacking at any time.
My Lords, In the next place they insisted upon the Petition of Right 3 Caroli, it was never intended that any power of the King by His Prerogative should be either taken away or lessened by it. I dare be bold to affirm, for I was of that Parliament, and was present at the debates, that there was never word spoken in that debate of taking away any power of the King for the defence of the Nation by Shipping. Besides, it is declared, assented unto, and denied by none, that there was no intention by the Petition of Right to take away the Prerogative of the King. The King did grant no new thing, but did confirm the ancient and old liberties of the Subject.
My Lords, These were the Acts of Parliament that have been objected and insisted upon on the other side.
Next place for an Answer to scandalous Objections. It hath been said by Mr.Holborn, that these Statutes of 25 E. 1. 28 E. 1. That all the time of making those Laws they were positive, no such Salvo in them of the King's Prerogative.
The Acts before H. 4. was penned by the King's Council, and those clauses of a salvo crept in by the King's Council, these were bold and presumptuous Assertions. The Acts of Parliament made in that time of E. I. that there should be any clauses added by the King's Council, that should not be added to the Record.
I have here the Parliament Record, that these exceptions are recorded as fully as any part of the rest of the Record; and those Laws confirmed since, therefore to make any such assertion against Records ought not to be done.
He may object the same against Magna Charta, which is for the liberty of the Subject.
Next place they have objected out of the Parliament Book, 33E.I. That upon a Petition made to the King to have restitution of money taken, that the King did ordain the Treasurer should give satisfaction. I shall desire it may be read, and you shall see these Moneys for which direction was given for satifaction taken for the King's use.
Parl. 33 E. I. fol. 105. dors. per Scrut. pro guerra, &c. Respons. per Regem, Rex ordinavit per Concilium quod satisfactionem faceret, tam citius poterit, so this Record was for moneys taken meerly for the King's use, therefore reason satisfaction should be given.
Next Parl. 8 E. 2. m. 8. Fryers of St. John of jerusalem did Petition to have satisfaction of 2354l. taken by the King out of the Treasury. Now because this Record was vouched two days together, I desire it may be read, and upon the reading it will appear to be upon another purpose, Sur le Roy, &c. but there was cause and reason why the King should make satisfaction.
Next Record, Pat. 26 E. 1. m. 21. and that was highly magnified by them; that there were several Commissions went out to inquire of Gravaminibus of Wools, and other particulars de Custod. Maris, and in this it was affirmed as all the King's Council took their Notes that these Clauses were omitted out of the Writs that concern the forfeiture of Lands, Goods, Chattels, or Seisures; This Commission maketh nothing to this purpose, for like Commissions daily come; there are Taxes laid upon men heavier than they ought to be.
Commissions granted to inquire of Grievances in this kind, whereunto an Answer was, if any thing unjustly taken, shall be restored. But not a word to impeach this Royal Power. And, my Lords, for the penalties in the Writs, Pat. 31 E. I. m. 20. Power to seize the Lands and Goods of the Resusers, 20 E. 2. m. 10. under forfeiture of all his Goods, 10 E. 3. m. 5. dors. Cl. 12 E. 3. m. 18. dors. That the Penalties and Commands were as high in this Commission as before.
Obj. Next Objection, that the Kings of England have always consulted with the Parliament concerning the defence of the Realm, and that the Aides and Subsidies for defence have been granted by Parliament.
Answ. This is no Argument to impeach this Royal Power; for if in time of War the King will consent unto it, shall this take away his Royal Power? in the time of E. 3. and R. 2. did that take away the Royal Power, that he may not ordain Standards of the mony himself? he may by His Royal Power erect Courts of Justice, shall that take away this from his Power, because the Court of Wards was erected by Act of Parliament?
Next Record Cited was Rot. Alm. 12 E. 3. pars 1. m.. 22. That E. 3. was so penitent for what he had done, that he sent to the Arch-Bishop of Canterbury to pray for him, and that the People would forgive him for laying those Taxes upon them, which his Wars compelled him unto, and he would never do the like.
See the Record in the Tower.
Ans. You shall fee it was only to pray for him for his Voyage into foreign parts; [and so caused the Record to be read, beginning thus, De excusando Regem versus Populum, ending de Gravaminibus, dated at Barwick upon Twede: ] your Lordships see by this Record nothing but a desire of a Prayer. (1.) To pray for the King for his Voyage beyond Sea, the other concerning the Charges or Impositions. Surely this Contribution commanded in the Shipping business, was none of those Charges, Talliages or Impositions; This his desire to the Arch-Bishop was not only in the 12th year of his regin, but the like 25 E. 3. 26 E. 3. and the like 50 E 3. so as surely those Prayers of the Arch-Bishop was for other Causes, and not for this which was for the defence of the Realm.
Obj. Next Objection Fra. 7 R. 2. m. 13. That the King assigned Tunnage and Poundage to Henry Earl of Northumberland for guard of the Seas.
Ans. My Lords, It doth appear by the very Record it self, that this was only for ordinary defence, and not for an extraordinary defence.
Obj. Then they insisted upon the Parliament Roll of 13 H. 4. n. 43. the Office of admeasuring Linnen Cloth, a half-penny upon the Buyer and Seller, and other Fees upon long Cloth, the Parliament of 13 E. 4. declares to be a void Office, and that accordingly Judgment was given 13 H. 4. out of this he would conclude, that therefore there should be no new Office; that an Office granted with a Fee is void in Law.
Ans. For Answer unto this, (1.) The reason why that was a void grant was this; it appeareth 4 E. 1. That the Office of all Woolls and Linnen Cloath was one intire Office. If the King will grant that to another man which was to trench on the former Office, a void Patent. Therefore a strange conclusion, that because this Office was void, therefore no new Office to be granted. 22 H. 4. fol. 9. the Office of Surveying the Packing of all Cloath, good Office, 27 H. 4. fol. 28. the King granted to one to be Surveyor of his a good Office, Fitz faith, because it had no Fee, therefore it was a void Office; and now at Bar it is said because it hath a Fee, It was a bad Office. If this reason may hold, all ancient Offices may fall. 39 H. 6. Office to be Marshal of the King's Bench, 12 H. 7, 15. to be Warden of the Fleet.
Nay, it taketh down all Offices that have been erected for the publick good, and upon such cause as Offices sub pæna in Chan- cery, Star-Chamber, &c. All those within time of memory must be shaken by this.
Obj. Next place objected, that these Contributions that they are in substance Impositions, and that the King shall not impose upon the Subject by his Charter or his Writ, but it must be done by common consent in Parliament; your Lordships have observed in all my Discourse, that I have not insisted any way upon any Power of Imposition, neither is it the question in the business, for no man's property is Invaded, no seisure of any man's Goods, unless they will incur for contempt, and by a wilfull contempt the Subject may lose his property.
Therefore Dyer fol. 16. & 13 Eliz. fol. 296. If the King will command His Subject to come into the Realm, and he will not, he shall forfeit all his Goods for his contempt; or if he be attached to appear in the Courts of Justice, and not appear, he shall forseit his Goods, 34 H. 6. 49. 9 H. 7, 6. If a man will wilfully contemn the King's Command, by his Writ he may be diftreyned; this incurreth not by an Invasion of His Property, but in respect of his contempt. Parl. 5 E. 3. m. 24. Lord Latymer he was sentenced for perswading the King to lay Impositions. My Lords, I have looked upon the Record, and there the cause of the Sentence is declared, that he himself laid the Impositions, and did take upon him Royal Power,and therefore he was justly sentenced; and for the Sentence of Doctor Mannering, nothing to this purpose. This Writ denieth not the property to be in the Subject, but faith the Subject hath the property, and therefore Commandeth the Sheriffs to distrain him if he will not pay.
And for the Commission 2 Car. for the borrowing of mony for the Palatinate, this was for the recovery of the Palatinate, not for the defence of the Realm, and besides called in by special Order.
Next place they objected and shewed divers Records, that the King hath paid the wages of divers Mariners and Soldiers, and I do agree it; Is that an Argument that he may not Command the Mariners to be sent at the charge of the County to furnish the King's Ships? this is against the Records that I have remembred. So likewise they have cited 12 E. 3. Ro. 77. ex parte Rem. Regis, the King Commanded the Constable of His Castle of B. to build Ships, and the King to pay for them; so he doth at this day, he hath built the Sovereign of the Sea, and paid for it.
They have objected Doctor Cowel's Book, which was called in I wish they had read the Proclamation; three Causes expressed, (1.) Because he had writ things derogatory to the Crown, (2.) For (3.) For speaking irreverently of the Common-Law, just to light upon those men who do not spare to wade into all the deep mysteries of Princes, who are Gods upon Earth.
For their Objection, that the King hath a Revenue belonging unto his Crown for the defraying of all ordinary and extraordinary Charges, and for the guard of the Sea.
As Tenures by Knights Service, Escuage, Wards, Marriage, ancient Demesn, &c. Poundage and Tunnage, service of the Ports, and Profits of the Sea.
My Lords, It is not for us that are Lawyers to look into the secrets of the King's Revenue, he hath high Officers, as Treasurer and under Treasurer that looketh into the secrets——of his Estate, and they know well whether his ordinary or extraordinary Revenue do answer more than his Annual expence. The story of Acteon might deter men from looking into the secrets of Princes.
For his Tenures, that Knight-service tenure was originally instituted for the Service of Scotland and Wales, 19 R. 2. Fitz. Guar. 165. and old Tenures fol. 10. duties Called Tunnage and Poundage, when they were given it was meerly for the great charges of this great defence.
And besides those Acts of Tunnage and Poundage only concerned the ordinary defence, the sending forth of the 75 Ships out of the five Ports. It was but for 15 days at their own Charges, and for your profit of the Sea of Sturgeon and Whales, a proper defence for a King. And for the service of the Ports, you may remember by the Records shewn, they were Commanded ultra debita; but then they have granted one Case, and I think but one, that the King may ordain a Toll in a Fair or Market, or grant Pontage or the like, because there is an ad quod dampnum, and therefore shall be an inquiry si Patria gravatur. The King may grant a Fair without an ad quod dampnum, if in his Judment, &c.
Rot. Sco. 1 E. 3. m. 8. Writ directed to the Treasurer, to pay for the Shipping at Yarmouth. My Lords, It doth appear particularly in the Records, that I. S. was Admiral, and going into Scotland, so the defence was for a foreign War.
It hath been mightily insisted upon, that here needeth no Command to furnish Ships by the King's Writs; every man by the instinct of nature will do it, where a necessity or Royal Power or Command needs; surely this Argument is made by the People, or to please the People; what will the Consequence of it be, but the introducing of a Democratical Government when every man shall be his own defender. The God of Hosts chose Captains and Leaders to go before his People, and command them; but to give the People this liberty, that every man shall do as he please, and make a defence by instinct of nature, is a strange Position---But it hath been said in these Cases, it is better to sustain a mischief than an Inconvenience; by this Inconvenience every man's property is taken away from him as often as the King pleaseth, and in what proportion he pleaseth: This though a Maxime in Law, yet it goeth unto particulars; but the loss of a Kingdom is both Liberty and Estate; this is not to be reckoned amongst the mischiefs, for this mischief destroyeth both Head and Members, therefore I do marvel to hear the Rule of Mr. Holborn suffer a Mischief, rather than an Inconvenience.
Next Objection, Parl. 2 H. 4. no. 22. pur faire Barges, This was the Petition of the Commons, that the Commissions granted to Cities, Burroughs and Towns for building of Barges should be repealed; the King's Answer for the present they should be repealed, but for the future for case of necessity he would advise with the Lords: It doth not appear that these were granted for the building of any Ships for the defence of the Realm.
These are the Objections that have been made out of the Acts of Parliament, out of the Records and Reasons they have insisted upon; now I come to the Exception and Objection against the Writs and Proceedings in this matter.
1. They say there was no sufficient danger represented by the Writ 4 Aug. They say the supply by a Mittimus doth come too late, and that the words of the Mittimus are not a good affirmative, quia salus, &c. and it doth not appear there was any danger 4Aug. 11. For this I have given it an Answer, that it was not necessary to represent the danger in the Writ. The King he hath secret intelligence, he hath his Espies abroad, his Ambassadors beyond Sea, he knoweth the danger we know not, nay, that which is not fit to be discovered; and those dangers by preparation perhaps diverted another way. It's not fit by a publick Writ to reveal the dangers.
Prout in le Brief.
But, my Lords, For the satisfaction of His People he hath expressed sufficient cause enough in the Writ. Luia salus Regni periclitabatur, &c. Which sheweth the danger was the cause of the issuing of those Writs; then they except this same word salus; it is a Physical word signifieth health, and you must have no Metaphors in Writs: surely the Gramarians can tell that Salus is taken proincolumitate, as for health, for safety. Metaphors are usual in Writs; I dare be bold to speak there are more Metaphors in the Register, than in any Book, Register 61. Turba, &c.
Then they have left no stone unrolled in this Case. Now, they say the King's Testimony by His Writ is not sufficient, for that under favour it is Teste meipso, without exception we are bound to give credit unto it, 1 Eliz. fol. 105. Ne exeat Regnum, the King affirms I.S. Will go beyond Sea. Saith the Book, this averment of the King in His Writ it is not Traversable, you shall not aver against it. The Case remembred by Mr.Solicitor, which was mistaken by Mr.Holborn in the Answer Hill. 20 E. 1. Coram Rege Rot. 14. he said these words vouched in the Record, was but the saying of the King's Council, and not the opinion of the Court; clear otherwise, for it was the saying of the Judges, and then agreed quod Dominus Rex est superlativum Recordum precellens; will your Lordships give credit to the Certificate of the Marshal of the King's Host.
To the Certificate of the Captain of a Company if the men be in the King's service, 11 H. 7. fol. 5. to the Certificate of a Bishop in case of Bastardy, to the Certificate of a Mayor and Aldermen by the Recorder, 5 E. 4. 30. 21 E. 14, 16. and will you not admit of the Certificate of the King by his Mittimus?
Next exception was taken to the Scir' Fac', that this Scir'Fac' ought not to go forth upon this as a Duty to the King.
- 1.The Writ 4. doth direct a form of levying, which is by distress or imprisonment of those that are Rebels.
- 2.It is no Duty to the King, and therefore ought not to be levied by Scir'Fac'.
My Lords for this, this Duty is a Duty to the Common-Wealth. It is pro defensione Regni Thesaurus publicus respicit Regem; whosoever shall detain any publick Duty, he may be questioned by the King as the Head of the Body; for that it appears 27. Ass. pl. 17. It was declared, that J. S. and J. D. had levied 100 Marks on the County for the Array of certain Archers, which Money did not come for the Profit of the King. Out of this I observe two things. I. This Money that was for archers, the Money was levyed on the Body of the County. 2. Recovered by an Indictment at the Kings Suit, 27 Ass. pl. 17. 11. H. 4. fo. 2. the Fee of the Knight of the Shire that serves by Parliament, they are reckoned amongst publick Duties; therefore the Goods of a stranger may be taken within the Town to pay those Fees: If the Money be not paid the distress may be sold, for it is for a publick Duty, 11. H. 4. 2. so is the Book, Reg. 19. 2. The King commandeth the Sheriff to levy those Fees, as well within his Liberty, quam extra, Hill. 20. E. 3. Rot. 57. coram Rege juratores Hundredi de S. They make a Presentment, that J. S. and J. D. Chief Constables of paid Wages to Archers which went not beyond Sea.
So as by this Record, it appeareth, these publick Duties are recoverable at the Suit of the King, uia ad opus Domini Regis, Pat. 14 E. I. M. I. 14. The King commandeth an Account to be taken of the Murage, and how the Sums have been employed, P. 15 E. 1. coram Rege 70. Do. Rippon was Besieged, they gave Hostages; Promise made by the Town, that those Hostages should be redeemed, they were not, complaint made unto the King, and came to the Kings-Bench; and these Monies being 700l. that was promised by the Town, for bringing back of those Hostages, was ordered to be paid, because it was for the publick Service: So for other things that are pro Communi utilitate int' Co'ia, Hill. 5 E. 4. Rot. 4. Aurum Regin, due unto the Queen, may be levied by Process out of the Exchequer in the Kings Name; nothing more usual. This Scir' Fac' it is grounded upon the whole matter, the Writ 4 Aug. Carr. and Mittimus, and commanded that the Defendants should shew cause why they should not pay the Monies assessed upon them for the publick Service.
My Lords, I have done with the Objections, I shall come to the Judicial Records, 24 E. I. ad Custodiam Maris. Barkshire, an Inland Country, refused to contribute; the Names of those that made default were certified into the Exchequer.
It appeareth by the Records cited, that Process went out of the Exchequer in the strictest manner, a Capias of their Lands, Tenements, Goods and Chattels; and that their Bodies with Horse and Armour be sent to Portsmouth; so, besides the doing of their Services, the seizure of their Lands and Goods. The same year, ex parte Rem' Thesaurar', on the other side Jo. de S. gave information unto the Chancellor of the Exchequer, and Barons, in the absence of the Lord Treasurer: A Bishop of the preparation of Men in Flanders, (this being remembred before to another purpose:) It appeareth, after Consultation had, they did resolve to send forth two Writs, one was to the Town, the other to T. H. Custos Maris, to call all for defence of the Maritime Parts; ex parte Rem' Regis, 24 E. 1. Rot. 80. Henry was seized of the Mannor of W. in Barkshire, he was assessed to find a Horse pro Custod' Marit'; he complained in the Exchequer, he had not the whole Mannor, and yet was assessed to find a whole Horse; so he did not come and say, I ought not to be taxed; he submitted to the Power, and desired a mannerly Contribution, 25 E. Rot. 72.The Abbot of Robertsbridge Case remembred on both sides divers times; under favour, the joyning of the Issue in the Record, is a very full Proof in the Case; he brought a Replevin against Jo. S. for taking of his Goods, an In-land Town in Kent, he pleadeth the Confirmation between our King and the King of France, and Leyborue assigned keeper of the Sea. That the Plaintiff was assessed unto 7l. 7 d. Anno 22. 13l. 23. 15. 24. and the Defendant being Collector, did distrain. The Plaintiff did not say in Bar of this, he ought not to be taxed; but he was sessed ad inveniend', &c. for such Lands.
The Defendant, saith the Plaintiff, did hold other Lands in the County, and for that Land he was sessed; now, this doth admit the Power of taxing, Hill. 16 E. 3. Rot. 23. coram Rege. The Jury of Norfolke did present, that J. Russel and others, 8 E. 3. were Hoblers elected in the Hundred of T. and staid at home; they plead, not guilty; the Jury find that Jo. Russel did perform the Service, but Jo. S. did not perform, therefore committed to Prison, and paid a Fine unto the King. By this Record it appeareth, the Money paid to the Archers and Hoblers was at the Counties Charge.
Methinks the disclaimer that is by the Commons, 13 E. 3. Parl. N. 9. 11. is in nature of a Judgment in this Case; for there they own confession, that the Maritime Parts ought to defend at their own Charges, as the In-land Parts the In-land Counties: This Confession, 13 E. 3. is a strong Argument, Parl. 21 E. 3. Rot. 20. when the Commons did petition de garde le Mare, answer soit garde fait; and that was at the Charge of the Country, as your Lordships know.
20 E. 3. Divers Ordinances made, which Ordinances made had the force of a Law: The King and His Council did ordain, Luod omnes illi, &c. which have such a quantity of Land, should be sessed to find one Archer. Decem librar' terr Hobelar', viginti libr' 2 Hobelar', 25 libr' unum bominem ad Arma. This appeareth Fra. 20 E. 3. pars 1. M. 17. in the County of Bedford and Buck. In the same year another Ordinance, that those that did reside with their Families, cum toto posse, within six Miles of the Maritime Parts, were excused for finding of Men without.
My Lords, Upon the occasion of this Service there was divers refusals made. Certificate by Mittimus of their Names into the Exchequer, as in this Case. J. T. and W. G. were certified defaulters among other; upon this the Court of Exchequer they award Process against these Men and others, which was a Capias in manus: Seizure of their Lands and Goods; they came in and pleaded, that they did reside infra sex leures, with their Families, and all their Power: Issue joyned upon this, Jury Impanneled; and it appears, those that were found within six Miles, Judgment quod sine die, but for others imprisoned and fined, for so much Land as they had with- out the six Miles, for that they were charged. If I should number unto your Lordships all the Judgments in this kind, I might speak here till to morrow morning.
P. 22 E. 3. int' Co'ia in the Exchequer. P. 22 E. 3. M. H. 22 E. 3. P. 25 E. 3. M. 25 E. 3. P. 27 E. 3. P. 28 E. 3. And there is a great number of other years of 29, 30 H. 4. And, my Lords, according to those Judgments, Trin. 21 E. 3. Rot. 3. The Writs went forth for discharging of such as had resided upon their Lands within six Miles, 21 E. 1. Pipe Roll, discharged, because they were in the Kings Service: So as, my Lords, out of these Records thus much may be collected. 1. They affirm the Kings Power in the Assessing and Levying. 2. Then they are grounded upon those Ordinances made by the King and His Council. 3. Process went out of the Exchequer, and not in the Kings Name, M. 22 E. 3. Parl. coram Baronn. Issue joyned, whether J. S. had Land to the value of 40l. to find Hoblers: If he had, then he was to do it.
My Lords, I have now done with the Judicial Presidents. I have cited some few among many others. It is now time, after so long Premisses, to draw unto some conclusion.
Wherein your Lordships have heard, 1. That the King of England, that He is an absolute Monarch, and that by the Common Law of England all those Jura Summer Majestatis are inherent in His Person.
This Supremum Dominum, for all the Land that any Subject holdeth, it is derived from the Crown: And as Plowden putteth it, 12, 13. That there is a Tacite Condition in Law annexed upon his Grant, that his Officers may do Justice, to execute his Process surely upon his Grant.
This Tacite Condition may be subject to a common Defence; Supream Jurisdiction both by Sea and Land was never yet impeached. And from him lieth no Appeal. And originally, by the Institution of the Laws of this Realm, what was once in his Hand was never granted from him; he hath absolute Power of concluding War and Peace: all these are in him as he is an absolute Monarch, and holdeth in his Kingdom under none, but God himself. It hath appeared, that the principal part of this Kingly Office consists of the Defence of the Realm: That as his Jurisdiction is by Sea and Land; so is his Defence: And this hath been made appear unto your Lordships, both by Presidents before the time of William 1 and since, pro Communi utilitate; and in Cases of necessity the Kings of England may Ordain by their Proclamation, Writs, Patents, by the advice of Council and Judges in Legal Matters, that the King is the sole Judge of this danger, both for the prevention of it, and for the avoiding of it. Therefore for us to distrust, that he will command too great a Power or Aid, it is a presumption against a presumption of Law. It has appeared likewise, that all the Incidents of Defence is inherent in His Majesty; we cannot build a Fort or Castle on our own ground without Licence. Your Lordships have heard the Presidents particular and general: The Presidents which have heard the Presidents particular and general: The Presidents which have universal Reasons, Quod omnes ex debito astricti sunt. Writs awarded by the Kings Royal Power in time of Parliament, when Parliaments were, and in those years when great Aids and Subsidies were granted to the King, many times no cause declared, nor the occasion discovered. There is no Act of Parliament made to take away this Power; and the Judicial Presidents which your Lordships have heard, have affirmed this Royal Power.
My Lords, If there were no Law to compel unto this Duty, yet Nature, and the Inviolate Law of Preservation, ought to move us: These Vapors which are exhaled from us will again descend upon us in our safety, and in the Honour of our Nation. And therefore let us obey the Kings Command by His Writ, and not dispute. He is the first mover amongst these Orbs of ours, and He is the Circle of this Circumference, and He is the Center of us all, wherein we all as the Loyns, should meet; He is the Soul of this Body, whose proper Act is to command.
I shall need to use no perswasion to do Justice in this Cause: And therefore I shall humbly desire Judgment for the King.
The end of Mr. Attorney-General's third days Argument.
Passages in Mr. Holborne 's first days Argument for Mr. Hampden, in his Reply to Sir Edward Littleton, His Majesties Sollicitor-General, in the Case of Ship-Money, which gave occasion to the Court to reflect upon in his Argument.
May it please your Lordships,
In obedience to your command, I am ready to argue, though not as I desire, nor as the Cause deserveth, it being impossible for one in so short a time to be fitted to make a Reply (the life of the Cause) to an Argument so long, learned, and so full of Records, wherein neither Labour nor Learning was wanting. I shall now rather shew your Lordships what I might do, than what I shall for the present, well hoping my Clyent will excuse, and your Lordships greater care supply my defects.
After he had opened the several Writs, he said, My Lords, I shall proceed to the stating of the Questions, which are Three.
The First, which is a chief one, is this, Whether upon the whole Record the Case so appears for the King, that 4 Augusti 11 Caroli being the day of the Date of the Writ, the King, could charge the County of Bucks to find a Ship at their Costs and Charges?
- 2. By way of admittance, if he could yet, Whether the King can give Power to the Sheriff to Asses the County, as in this Case?
- 3. By a further Admittance, admit the King had Power to Charge, and Power to Assess, Whether can he levy the Money unpaid by this course of Certiorari and Mittimus, as he might do if it were his own proper Debt?
The first Question is, Whether or no upon the whole Record the Case appears so for the King, that 4 Augusti 11 Car. being the Date of the Writ, the King could by His Writ charge the County of Buckingham for finding a Ship of War? As it hath been on His Majesties part stated, by the Kings Solicitor, who stated his Question in these Words.
The Question as it was stated by the Sollicitor-General
Before I enter into my Argument, because the true stating of a Question in this and all other things doth exceedingly conduce to the clearing of a thing in question, I shall in the first place observe the Writ Dated 4 Augusti 11 Caroli, (the ground of this Assess) which was directed into Buckinghamshire, and into all the Counties of England; and this was for raising of Money towards the Provision for Ships for the Defence of the Kingdom, with a notable Circumstance, Quia salus Regni periclitabatur; which being expressed in the Record, is contessed by the Defendants demurrer; and not only so, but testified by the King Himself under the Great Seal, (in the Mittimus ) and in all matters, especially concerning the publick safety. The King is Recordum Superlativum, & super precellens, as is stiled in the great Case between the Earls of Gloucester and Hereford, 20 E. 1. so that the Question is only thus; Whether the King, finding in His Judgment the safety and preservation of the Kingdom and People, necessarily and unavoidably to require the Aid commanded by this Writ, may not command such Aid by Writ, for saving and preserving the Kingdom and People?
Wherein, I confess, there is not a word but hath its weight. As to this Question thus made, I shall make three Exceptions, which are things taken in to be granted, which I shall not agree. to, if I can avoid them.
- 1. That, at the least, in the King Judgment, the safety and preservation of the Kingdom was endangered 4 Augusti; that is, that the Kingdom was in danger to be lost.
- 2.If it be so, that the Kingdom was in such danger, and that the danger was so instant and unavoidable, that it necessarily required this Aid by this Writ, (that is) it required a present Charge of Shipping presently, 4 Augusti 11 Caroli, to be forthwith commanded, and that the expectation could not stay for a Parliamentary Consideration and Supply: These be the things wherein we differ.
And lastly, for the truth of it, that the Certificate under the Great Seal, was sufficient in a Legal way. These are three things to which I take exception.
My Lords, To find out whether the Record doth warrant these three things of great importance: First, I shall seek for them in the Writ 4 Augusti, and next in the Mittimus; there is no colour else-where to look for them; to open the Writs rightly will clear these differences, as I humbly conceive, without any great Argument. And first the Writ dated 4 Augusti 11 Car. I shall read the words wherein the dangers of the Writ are expressed; and then explain what words give that sense that is taken out of them. Quia datum nobis intelligi, quod Pradones quidam Pirati & Maris Grassatores tam Nomine Christiani Hostes Mahumetani quam alij Congregati; Naves & Bona & Mercimonia non solum subditorum nostrorum, verum etiam subditorum Amicorum nostrorum in Mari, quod per Gentem Anglicanam ab olim defendi Consuevit: Nefarie diripientes homines & spoliantes ea ad libitum suum deportavere, hominesq; eosdem in Captivitate Miserima Mancipantes: Cumq; ipsos conspicimus, &c. Here are the Causes and Occasions; all that come after are not material to the stating of the Question.
My Lords, in the opening of this Writ, it is true, there was mention of loss by Merchants, some particular Members of the Kingdom, and this loss but by Praedones Pirati quia Mahumetani & alij; and though alij, yet Pirati still, and no more, then it faith ipsi; still these Pirates daily molest the Merchants, ad gravandum Pirati still.
Hitherto, I conceive, there is not a word of danger from an Enemy, but from Pirates; not a word of danger to the Kingdom, but to Merchants; however all this is quod intelleximus.
The Record goes on thus, Consideratis etiam periculis, &c. This part, as I conceive, is not so positive, the dangers are but Consideratis, nor the danger to the Body of the Kingdom, no word of that; or if to the Kingdom, yet nothing, whether it be in point of safety, but only in point of molestation, none of all these appears.
And besides, the Clause is too general, not expressing any particular danger, from whom, or how; however, be the danger to the one, or to the other, be it to the Kingdom or Merchants, be it for troubles or safety; hitherto I may say, that there is no mention of any such instant danger, as necessarily did require this instant command in the Writ, not so much as in the Kings Judgement.
For ought it appears, a Parliament, even in the Kings Judgment, might have been called, a consideration taken for Defence: Here be all the Premisses upon which the Conclusion must arise; and hitherto nothing material to make a danger to the safety of the Kingdom, and so instantly that a Supply, nunc aut nunquam, must come in. Although the Premisses, I conceive, are only considerable, yet even the conclusion will be but this, convenit accelerare, it is fitting to hasten, but no such necessity; and though it be convenit accelerare pro defensione Regni; if that were material, it cannot be construed but with relation to the Premisses, whereupon it is built; and whether in fear of trouble, or danger, or loss, non constat, and though it be cum omni festinatione, yet it is quia poterimus, and that is possumus quod jure poterimus, that is, with all the hast that by Law you can make, which way that is your Lordships have heard.
Now, my Lords, under favour, it appears on the Record, that there was no such instant necessity, but that a Parliament might have been time enough; for as it was observed, that between the Test of the Writ, and the Randezvous, there was 20c and odd days, whereas a Parliament required but 40 days for meeting, the remainder of these 200 days a Parliament might have considered of the means of a Defence; but I leave it to your Lordships to judge, notwithstanding those expences of time cunningly numbered unto your Lordships by the Sollicitor; and though it be true, that things oftentimes are long in settling, and deliberating in Parliament; yet Nature tells us, they can be done sooner; and if there be a necessity, we know that will enforce.
I have but opened this Writ quarto Augusti: I am now come to the Mittimus. The only doubt which I conceive in the Writ of the Mittimus is only that where the Case stands but thus.
In this Writ is recited the Tenor of the Writ dated quarto Augusti, and then the Writ goes on, and faith, Luia salus Regni periclitabitur, &c. and that is all the Clause in the Record that doth give colour to the Case, so it be made, and on the whole Record we have demurred; here it hath been said, that we have consessed all by the Demurrer; and if that hold not, the King, who is the Judge of the danger, he hath said so, he hath certified it so by the Great Seal.
I shall select a few from many others, on which I shall rely.
My first Answer is this here, the words are, that Salus Regni periclitabitur, these words in shew seem to be positive, but in substance but relative, and is rather a Comment on the Writ, or an abstract in Point of those dangers mentioned in the Writ, for the Clause was brought in on the Return of the Writ; and if we have the Writ it self, the Comment thereupon, or further explanation thereof, is not material.
2. Second answer I doubt, I say no more; if the King put particular Reasons into the Writ of quarto Augusti, whether the Law, I speak of the Legal Course, do permit an After-Writ to put in further Causes of the same nature with the former, and to the same end.
If the Case be thus, our Demurr will be no consession of any such danger.
In the next place, admit the words in the Writ had been Positive, and materially expressed; yet, according to our Rules of Law, it cannot make use of that sence they are now applyed unto; for, at the best, the word Salus being proper only to a Physician, Natural Body is applyed as a Body-Politick: It is but a Metaphor which the Law will not endure in Writs, for it would bring in great mischief in Writs and Pleadings. Metaphors are dangerous; we know not how to take Issue upon it; and therefore is not regularly allowed; but I leave it to your Lordships Judgment.
There are no words of such danger of the loss of the Kingdom, that is such instant danger; for apply the words to a natural Body, as Salus,J.S. is in danger, it doth not presently imply it, that he is in such instant danger of Death; a Doctor will say, that a Patient hath not his Health, yet no danger of Death, which is the common speech; the same sence it must have in a Body-Politique.
If the words were good, and did imply a danger, yet not such a danger of words, as shew a danger that may hazard the loss of the Kingdom; for the words are only Salus Regni periclitabitur, and the thing may be now in action, which twenty years hence, if not prevented, may lose the Kingdom: A Man may say that safety is in danger, at the best, the words will not make the Case as it is put.
Mr. Solicitor, out of his great care, searching into every hole where he thought we might peep out, doubting our Demurrer would not be a Consession sufficient; he takes in another help, which is this, that if this be so declared by the Kings opinion, and under the Great Seal, that this alone had been sufficient: for this there hath been urged the legal weight of the Kings affirmation, and of a Certificate under the Great Seal, and both be concluded in this Case.
My Lords, before I answer unto this matter, I prosess for my Client and my self, that we owe as much Loyalty to the King our Sovereign, as any; yet I hope I shall be permitted in a legal way to have the Priviledge of them that usually speak in this place: In speaking what is pertinent and material for my Client, I make no doubt of the Kings word, and believe there was danger, though not so apparent to us, but only both to allow it as sufficient in a legal Proceeding, and that His Majesty,who in His own worth deserves it, by after Princes might turn to disadvantage. That which we urge is, how far in form of Law this may be allowed, which we shall argue, and that briefly, for the Case needeth not help.
For this Point, I take it for clear, under your Lordships favour, that in legal Proceeding, and regularly, His Majesties Opinion and Certificate in things of fact, is not binding.
My Lords, the Reason wherein I shall most rely to avoid the sense of the Writ Salus Regni, &c. is this, That though it do now appear by the Mittimus, that quarto Augusti the Kingdom was in danger of being lost; yet it is not sufficient in Law, nor can our Demurrer hurt us, because it must have so appeared by the Writ quarto Augusti it self; for the Writ and Declaration in Law must ever contain precisely so much of matter, as is necessarily true to warrant the demand.
In this, to see the mischief, if a danger now declared makes the Case, how shall the Subject know on the Writ quarto Augusti, whether to obey or no? the Law binds no Man to divine; and if this subsequent Declaration shall mend the Case, then the Subject shall be a wrong-doer, ex post facto, which is against the reason of our Books. I shall remember the Cases put by Mr.St. John to another purpose, 22. Ass. 5.24 E. 3 Br. Com.
A Commission sent forth without expressing the cause, that Commission is not good,and it is not denied by Mr. Solicitor; a cause must be set forth to make it good in Law. And if your Lordships be pleased to look on the Presidents, (as I know you will) which the Kings side shall bring unto you, your Lordships will find the danger turned from the first Writ to the last; nay in the Writ of this year, as I am told, it is so, out of their opinion fearing the Writ quarto Augusti was not so good as they would have it; they put it into the Mittimus : which they know could not do good, but they did it only to cavil.
But lastly, admit that the King had said, that the Kingdom was in such instant danger and loss, and that there was an instant necessity of the command this way, and that this could not have expected a consideration in Parliament; yet if the contrary appears in the Record, then neither was the Demurrer a Confession, nor the Certificate conclusive.
My Lords, in the conclusion upon all this discourse it appears, I have so pared the Case, that on the Writ dated quarto Augusti there appears no danger to the Kingdom of being lost; that on the Mittimus there is no legal, home, express words of danger to the Kingdom, instant or unavoidable; if it were so, yet it cometh not time enough, for it should have been in the Writ dated quarto Augusti.
And if expression of such instant danger in Luarto or Mittimus, yet not material, if otherwise on Record.
And lastly, this Certificate doth not conclude us: Thus then to shew what the Case is, and to what it is not, I have put out of the consideration of the Case all consideration of such dangers to the safety of the Kingdom as are unavoidable.
I have left nothing in the Case but consideration of protecting Merchants against Pirates, but for ordinary Defence of the Sea.
If the Case do fall thus, I humbly conceive, that in this place without further Argument, I might with some considence venture my Client upon your Lordships Judgments, notwithstanding any thing offered on the King's part. Here Mr. Holborne made a little stay, but the Lord Chief Justice Finch, in the name of the Court bid him proceed in his Argument; then said he, By your Lordships command I shall proceed; having laid aside the Mittimus and Salus Regni, and taking the Case only on quarto Augusti, Which, as I take it, is nothing of danger to the Kingdom, but against Merchants, and but of common Defence: The Case stands thus.
That though there be no actual Invasion, no known or declared Enemy, yet the King, out of His Judgment, quarto Augusti 11 Car. apprehendeth and foreseeth danger to the Kingdom in point to be lost, and that the danger so instant and unavoidable requireth this Aid; whether the King out of Parliament, by His Regal Power, can command this Supply?
I have endeavoured not to mistake the Solicitor; it were an injury to requite him so ill.
Upon the whole my end is to shew, that by the fundamental Policy of England the King cannot, out of Parliament, charge the Subject, neither for common good, unless in special Cases, and of a different nature, or upon different reason, nor for a necessary Defence, though, in the King's Judgment, instant and unavoidable.
My Lords, In the debate of these two Questions I have learned of Mr. Solicitor not to say all I could, but so much as is necessary; and as he hath chalked out the way, I shall enquire on this Power by Arguments upon practice constant and allowed in time of good Government, when the liberty of the Subject was not trampled upon, and shew it by Acts of Parliament, Reason and Authority on both.
My Lords, I am now come close to the Argument upon the main; before I begin give me leave to prosess that I am in a Dilemma, the Question will be what the King can do in those Cases by his Regal Power: it much concerns him, and I have learned out of a Speech of his late Majesty what it is to debate such questions; not to argue it were to disobey the Assignment of the Court, and to desert my Client and the Cause; for my Part, as your Lordships see, I have laboured to decline the main Question, and should be glad it should so sleep: I shall offer it if happily the case fall off in the opening of the Writs, I doubt whether the way of Argument I must otherwise take should do the Crown disservice.
Out of my duty to Majesty, and service to your Lordships,I humbly offer it whether your Lordships may not think it fitting to determine the Question upon the framing of the case as it is upon record, before it be further argued; and here I shall rest, or upon Command ready to go on.
Hereupon the Court declared, by the Lord Chief Justice Finch, that they do not use to judge Cases by Fractions; whereupon Mr.Holborn said, Since it is your Command, I shall go on.
I hope His Majesty will excuse us for arguing that which else cannot be determined, and as he hath given way to an Argument, I hope his goodness will excuse us while we do our duty for our Client, and if I err in my materials, or in the way of my arguing, it's from the defect of my wisdom (I cannot be wiser than God hath made me) and not out of any disaffection to the service.
My Lords, I hope neither His Majesty nor your Lordships will think it a presumption if I make a straight enquiry into a point of a higher nature, yet thus far I assure your Lordships, if any matter or consideration of State come in my way, I shall tread as lightly as I can, yet I must crave liberty to pick out some to refer to your Lordships Consideration, and forbear those things that are unfit. Here the Court said, by the Lord Chief Justice Finch, Keep you within the bounds of duty, as besits one of your Profession at the Bar at Westminster, and you shall have no interruption.
My Lords, I shall be very wary and tender: I shall now open the division and several parts of my Argument.
My Negative part, that the King cannot out of Parliament charge the Subject, not only for guard of Sea against Pyrates, but not for the defence of the Kingdom ordinary, though the King judges the Kingdom in danger to be lost and unavoidably endamaged, and in this I must take in the defence, as well the Defence of Land as Sea.
My positive part, regularly the King is to be at the charge for guarding the Sea against Pirates, for defence of Land and Sea against Enemies so far as he is able, and further if he were more able, and that the King hath provision and consideration for both, and especially for Sea-service.
In the prosecution of these two general parts, I shall not only propose mine own considerations, but joyn them with Mr. St. John's as I can further inforce them, or justifie against the Solicitors denial or evasion.
And this course will necessarily bring in many of his Arguments, which I could be glad to spare if the cause would bear it, because your Lordships should not think that I do nothing but repeat.
I this way I shall humbly endeavour to clear each part by giving a reply before I descend to other particulars, and where I conceive a new Objection which will not fall within any former Answers, I will raise it and endeavour to lay it. Into these general Questions will fall many other of greater consequence.
For such as not being the main, I will not draw upon particular debate where there is any thing that concers matter of State or revenue, I hope to admit such and save my Clients cafe.
Having thus unfolded my form of Argument, I descend to my Negative, that the King in none of these cases without Parliament can charge the Subject.
I. I'll prove it from Reason, which is Master over all Authority as said Mr. Solicitor, and from Reason drawn from the fundmaental policy of the frame of this English Government, in the necessary attendance of the publick advice in Parliament upon the Royal Power; And secondly from the absolute property the Subject hath in his Lands and Goods. From these things I shall draw my Reasons.
For the political advice in Parliament, I shall here decline all School disputes, the Spider may make Poyson out of that which the Bee sucks Honey; I shall omit the consideration of some points. I shall make my rise from the Judgement of King James 169. in his Speech of Parliament, wherein His Majesty agrees that a King in Concreto can do no more than the funamental Laws of the Kingdom alloweth, for more I assure my self His Majesty desireth not.
Before I enter into the Argument further, whether the Law hath intrusted the King out of Parliament in either of the cases put, I here profes for my Clyent and my self, that while we speak of political advice, and how far a Governor subject to Error and Will may use a Regal Power, we do always with thankfulness to him acknowledge our present happiness to be blessed with so just a Prince, and we fetch it from our hearts, and were His Majesty so immortal as he deserves, and that His Successors might be Heirs to His Vertues and His Crown, we should with that the Regal Power might be free from political advice and unlimited.
Here my Lord Chief Justice Finch said, this belongs not to the Bar to talk of future Government; it is not agreeable to duty to have you bandy what is the hopes of succeeding Princes when the King hath a Blessed issue so hopeful to succeed him in his Crown and Vertues.
L. C. J. Finch.
My Lords, For that whereof I speak, I speak looking far off, many ages of 500 years hence.
My Lords, Because I might run on to a further error, if I should not take your advice, I shall slip over much, and the sum of all is;
- 1. An Argument from the Policy of England, in the necessary attendance on the particular advice in Parliament.
- 2. It will be from the absolute property that the Subject hath in his Goods.
Taking that for granted against the Book of Cowel, the Proclamation against it in the year of King James, that Cowel hath written under the word Parliament, of the Kings Power out of Parliament, faith, that Power in Parliament is but a politick mercy; this was complained of in Parliament, and by a Proclamation the Book was denied: your Lordships know another Book that was sentenced upon the same occasion; this use that I make of it is,
If the form of English Government stand in the Regal Power, and the Subject hath a property in his Goods, then the adequate reason from both these, that therefore the King cannot without Parliament charge the Subject in his Estate, though in pretence of common good, then a Prince 500 years hence, if subject to Error or Will, may if he will upon any occasion or no occasion, may at what rate he will charge the Subject to the height.
As to the advice political, if the King can do this alone, what is become of the policy for which the political advice was made, attendant to the Regal Power, Ne respub. &c.
If the Subject hath a property in his Goods, how is it in the power of any one alone to charge that with mony?
This reason I must not leave, for on this the Cause stands or falls; though there be many Books and Cases, yet all are from reason, but especially when these stand together.
The Author here breaks off with these few passages in Mr. Holborn's first days Argument, which continued three days longer; here followeth the days that the Councel of both sides argued upon, viz.
- November 6. 1637. Oliver St. John of Lincolns- Inn Esquire Argued.
- November—— He concluded his Argument.
- November 11. Sir Edward Littleton Knight, the Kings Solicitor General, Argued.
- November 13. He Continued his Argument.
- November 14. He still Continued his Argument.
- December 2. Robert Holborn of Lincolns -Inn Esquire, Argued.
- December 4. He Continued his Argument.
- December 6. He also Continued his Argument.
- December 8.He Concluded his Argument.
- December 16. Sir John Banks Knight, the Kings Attorney-General, Argued.
- December 18. He Concluded his Argument.
It was Trin' Term. 1638. before Judgment was entred in this Case, and in regard that year will be clogged with much matter of preparation for a War with the Scots, &c. We shall here insert, though out of time, these following Orders concerning the entring Judgment against Mr.Hampden, viz
Termino Sanctæ Trinitatis Anno 14. Regis Car. Martis 11. die Junij.
An Order upon Mr. Attorney General's Motion to enter Judgment against Mr. Hampden.
Whereas divers several Sums of mony, by vertue of the King's Majesties Writ, under the Great Seal of England, bearing date the 4th of August, in the 11th year of His Majesties Reign, were Assessed and Charged upon several Persons, for and towards the provision of a Ship of War, together for the Furniture and other things thereunto belonging, in the said Writ particularly mentioned; which said several sums of money so Assessed and Charged and not being satisfied and paid, the names of the several Persons, together with the several sums charged upon them, were by His Majesties Writ of Certiorar', bearing date the 9th day of March, in the twelfth year of His Majesties Reign, certified into this Court of Chancery, and by His Writ of Mittimus under the same Seal, bearing date the 5th day of May, in the 13th year of His Majesties Reign, were sent into this Court of Exchequer for further Process to be had thereupon, as by the said several Writs may appear: And whereas Process of Scire Facias was the 22d of May, in the said 13th year of His Majesties Reign, awarded to the Sheriff of the said County of Bucks, directed to garnish the said several Persons in a Schedule of the said Scire Facias annexed, contained to shew cause the utas of the Holy Trinity then ensuing why they should not be charged, and satisfie the said sums of money assessed upon them. In which Schedule it was contained amongst divers others, that John Hampden Esquire was assessed at 20s. as by the said Scire Facias, and the Schedules thereunto annexed, may also more fully appear; whereupon the said John Hampden Esquire being garnished by Sir Anthony Chester Baronet, then Sheriff of the said County of Bucks, appeared and demanded Oyer of all the asoresaid Writs, which being read unto him, he thereupon demurred in Law, and Sir John Banks Knight, His Majesties Attorney General, joyned in the said Demurrer; and the Record thereof being made up, it pleased the Barons of this Court (the same matter being of great Consequence and Weight) to adjourn the arguing of the same matter into the Exchequer Chamber, and to desire the Assistance and Judgment of all the Judges in England touching the same. Now upon the motion of His Majesties Attorney General this day informing this Court, that seeing the said matter hath been so solemnly debated and argued, as well by the Counsel of the said Defendant, and by some of His Majesties learned Counsel, as also by all the Judges of England, and by the Barons of the Exchequer, and that the major part of the said Judges and Barons have delivered their Opinions and Judgment, that the said John Hampden ought to be charged with, and to satisfie the said sum of 20s. and therefore the said Mr. Attorney moved this Court that Judgment might be entred accordingly; it is thereupon ordered by this Court that Judgment shall be forthwith entred, that the aforesaid John Hampden ought to be charged with and satisfie the aforesaid sum of 20s.
Memorandum, that 12 Junii 14 Caroli Mr. Attorney moved the Court of Exchequer for Judgment against Mr. Hampden, and after he had opened the Record he said,
Your Lordships and the Court in respect of the greatness of the Cause did adjourn it into the Exchequer Chamber, that your Lordships and the Court might receive the advice of all the Judges, whose advice and opinion your Lordships have already heard and received, and the plurality of their voices is, that Judgment should be given against Mr.Hampden, and accordingly I do pray Judgment.
To which the Lord Chief Baron answered,
It is very true, it was referred from hence to the Exchequer Chamber to receive the advice of all the Judges in the Land, we do not take them to assist only by way of advice, but for a judicial direction; for admitting we four were of one opinion and the rest of the Judges of another (though the Cause properly depends in this Court) yet we must apply our selves to their resolution, and our Voices are involved in theirs, and there accordingly secundum Legem, &c. oneretur Jobannes Hampden.
Now that we have imparted to the Reader the Arguments of two of the Council Pro & Con, in the Case of Ship-money, the Author begs leave (although out of time) to mention the Articles of Impeachment against Judge Berkley (one of the Judges before whom that Cause was Argued) for delivering his opinion against Mr. Hampden, which is a President as to the rest of the Judges; for it would be too tedious to mention every particular Judge's Charge; and as an Introduction to the said Articles of Impeachment, here is also mentioned the Speech of William Perpoint Esquire(a Member of the House of Commons) unto the Lords at the time of the delivery of the Charge against the said Earl.
William Perpoint Esquire, his Speech in Parliament, at a Conference of both Houses in the Painted Chamber.
I am commanded to present your Lordships these Articles, with which the Knights, Citizens and Burgesses of the Commons House of Parliament, in their own name and in the name of all the Commons of England, impeach Sir Robert Berkley, Knight, one of the Justices of His Majesties Court of King's Bench, in maintenance of their accusation of High-Treason, and other great Misdemeanors, the Articles they desire may be read. Whereupon the Articles were read by Mr. Francis Newport, a Member of the House of Commons, then Mr. Perpoint proceeded and said.
The high Treason is in the first Article, in his endeavours to subvert the fundamental Laws of this Realm, and to introduce an arbitrary and tyrannical Government, which hath been lately adjudged Treason in the Cause of the Earl of Strafford.
The other Articles prove the first, by his Opinions, Certificates, Judgments, by his denials of the benefit of our Laws, which have been read by your Lordships. No fundamental Law to the Subject is left; our Goods, our Lands, our Bodies, the peace of a good Conscience, are by him from given up to arbitrary tyrannical Government.
Nothing hath been omitted to make a Judge know the Laws, to make him just, or fear him from being evil: We have Inns of Court peculiar to that Study, Judges from thence only chosen; seldom any but what have been twenty years there; Honours and Revenues are given to Judges, encouragement to do well; this Judge had these: Judges are sworn according to Law to serve the King, and His People; according to Law to counsel the King; and for not so doing, to be at His Will for Body, Lands and Goods; this Judge took that Oath; the Laws, the Judges Study, impose the greatest punishment upon unjust Judges, they shew that these punishments have been inflicted, more could not be done to perswade or fear a Judge.
His offences shew in him great ambition, yet he was most timerous of displeasing the great in Power; he did not only forbear doing what he was sworn to do, but was most active against our Laws, and in opposing and punishing any that did maintain them.
To have only received Bribes, (though they blind the Eyes, and though the desire to get Money increaseth with Age) that hainous crime in a Judge had been, in comparison with his offences, a tolerable vice; for from such a Judge Justice is also to be had for Money. Ambition is violent, and ruines, whilst covetousness is making a bargain.
The words of his Opinion and Judgment are for the King's Power. It is pleasing to the nature of Man that others should obey his Will; and well-framed dispositions of Princes may easily be perswaded their Power is unlimited, when they are also put in mind, that therefore they have more cause to do well, and for doing well are more renowned; for the most oppressive designs, (which we have suffered under) the pretences of His Majesty have ever been the good of His Subjects; his is the sin, that is to judge by the Laws, and knows the Laws are to the contrary, yet puts and confirms such thoughts in his Prince.
He that incites another to arbitrary Government, when his selfends are thereby compassed, hates him for taking that Power he perswaded him unto.
The Writs, those monsters of necessity, to provide Ships to avoid imminent danger that could not stay 40 days for the calling of a Parliament, were therefore to go out in September, to have Ships ready in March. This hath been adjudged by your Lordships to be destructive to the fundamental Laws of this Realm, and to the Subjects right of Property and Liberty, &c that I shall say but this concerning them; that this Judge published them to be infeperable Flowers of the Crown. And that we have lived to see for five years together imminent danger, and thus to be prevented.
This Judge did advise to such a Government, as future Kings here might exercise the highest tyranny, and the Subjects want the benefit of restraints, known to the most slavish Eastern Nations; where, if their Prince do unjustly, he hath hatred for it, and the dangers that follow that. This Judge will have that hatred to go to our good Laws: No such bondage as when the Laws of freedom are mis-interpreted by Judges to make Men Slaves.
What can be considered of in a Judge of Law, to give his opinion and advice to his Prince, how the Laws, (the mutual Covenants of Kings and Subjects) are to be broken, but that his intentions are to have his Prince do ill, by making his evil Servants to study, and to be pleased with their wicked designs; because they see means to put them in execution, by making them to perswade their Prince, because in imminent danger His Subjects Goods are at his Will, that there is such danger when there is not, and that they have only some by-ends of their own.
This Judge will have the Law to be what to him seems reason; the reason limited to him to judge of, is what the Common Law faith is so, what a Statute hath so enacted. For him to judge this or that is Law, else a mischief shall follow, because the Law in such a thing is imperfect, therefore he will make a Law to supply it; or because that the Law written in such Particulars is against his reason, therefore his reason's to be Law; then must follow, as often as a Judges reason changes, or Judges change, our Laws change also.
Our Liberties are in our Laws, where a Subject may read, or hear read; this is his, this he may do and be safe; and that thus the Judge ought to give Judgment, he is free. The excessive growths of Courts of Reason, Conscience came from great and cunning Persons; and though not the most sudden, yet the most dangerous, and sure ways to eat our Laws, our Liberties.
Unlimited Power must be in some to make and repeal Laws to fit the dispositions of times and persons: Nature placeth this in common consent only, and where all cannot conveniently meet, instructeth them to give their consents to some they know or believe so well of, as to be bound to what they agree on. His Majesty, your Lordships, and the Commons, are thus met in Parliament; and so long as we are often reduced to this main foundation, our King and we shall prosper.
This Judge will not allow us our Knowledge, or any Reason, he will have our Minds, our Souls Slaves: A Grand-Jury-man gave his Fellows true Information; they present an Innovation in the Church, are threatned and reviled for it; he that told this truth is charged (I shall use this Judge's own words) to sin in that, and that he made others forswear themselves; this Judge sent him to the Common Gaol, where he is laid in Irons; and all this, because he and they durst meddle with Church matters. He is forced to tear the Presentment in Pieces in open Court; our Laws provide for the peace of our Consciences, many Acts of Parliament are for it, and the trust by those Acts set to Juries; this Judge well knew all this; your Lordships have heard what he did to the Jury at Hartford; he would have us know no more Divinity than to obey what the great of the Clergy directed, no more Law than what he said was so.
Judges in former times, (but only such as were examples of punishment, as of injustice in Cases of great and publick concernment) forbare proceedings, till the next Parliament. This necessitated the calling of Parliaments; this Judge had as many such Causes before him, as ever any had; yet he never desired the resolution of Parliament in any one, for the ways he went, the necessity was never to have a Parliament; he would pull up that root of our safeties, and liberties, which whilst we enjoy, the malice or injustice of all other Courts and Persons can never ruine, and when near to ruine(as most near of late) this only sure remedy will help us; nothing can ruine a Parliament, but it self.
The evils which we have suffered under, they were committed by the Judges, or by them ought to have been, and might have been prevented.
This Judge assisted in causing the miseries we suffered in the Star-Chamber, and at the Council-Table, he denied the known Rights which he ought to have granted us to stop our grievances in the Ecclesiastical Courts, he was the causer of our sufferings in other Courts.
The best lovers of their Laws and Liberties, the most honest suffer most by an unjust Judge, they most oppose his vices; dishonest persons find such a Judge to fit their purposes, the Judge finds them for his, the Bond of inquity confederates them.
He that will do no wrong, will suffer none which he can help: The Man that knows himself born free, will do his utmost to live so, and to leave freedom to his Posterity; were he in slavery, when by outward gesture thought to be most delighted, were his mind then known, there would be found vexation, and his busie thoughts employed to redeem himself and his Posterity from thraldom. But to say, could this Judge intend to make himself and his own Posterity Slaves? what he did was through error of Judgment only: No, my Lords, what his aymes and endeavours were, is apparent. To consider Man in the general, we shall find in every Age he will be a Slave to some few, that many may be Slaves to him, he looks to himself only; this he would do,or forbear doing, to be great, to be rich, had he Children or Kindred, or had none. This highly unjust Judge, by continuing fins, maintained his actions to preserve himself, he knows to be found guilty in one of his offences, the penalty of the Law for it, therefore covers the offences committed with inventing and acting other.
For a Judge to be unjust, more hurts the publick than any other, he is not suspected. What a Judge doth, is looked on as a thing that ought to be done. The most pernicious great Man, that by cunning hath got to himself the Heart and Tongue of his Prince, his ill Acts have dyed with him, if not taken up by others, and then walk in darkness: No Man will justifie what he doth by saying such a Favourite did it; but the unjust Judgments of this Judge were given in Noon-day, were done in the face of the whole Kingdom, in the hearing of such as might carry the news to all parts of the Realm, and was therefore done; his unjust Judgments were our Records. We have seen wicked great Men most craftily politick, they hated our Laws, yet not meeting with active Judges moulded to their purposes, they and their Acts have dyed, the Realm flourished; but of late, others less politick meeting with most unjust Judges, every way as ill as they could with them to be, then did the Kingdom saint, under the load of its misery did long struggle; now it's rising, I affure my self, your Lordships will assist to take off the burden.
If the designs of some would not have such a Man to be at liberty, a Warrant from some Lords of the Council would soon have laid him in Prison, and given no cause; had he moved this Judge to be discharged or bailed, he could have obtained neither, if their ways would not have endured that Man to live, a Judge reviling the Prisoner, and the Council that moved for his discharge on bail, joyned with the hate of some great Man, might soon have moved a Goaler for unwholesom rooms and lodging, and ill diet for his Prisoner, and they may soon take life away: Offenders in Prisons are looked after to be safe only, such as are brought in by Power against Law, are abused.
Had a great Man desired the Estates of others, the breach of a Proclamation might readily have been charged against them in Star-Chamber: but they, it may be, could have answered and cleared themselves, and proved their Answer by Testimonies; had they been referred to this Judge, he would have expunged the one, suppressed the other. Then followed Fines to the value of their Estates or more, then Imprisonments of course till they paid such Fines; your Lordships have heard what this Judge did to the Soapboilers.
The Countryman followed the Plough, and to his thinking he was assured of his Right, Property, and Liberty, gave him ability to do it. He believed his Neighbour, his Landlord, his King, could not take his Goods from him without his consent. He knew the usual Payments by Law, and in extraordinary Causes thought to have that care to chuse such for the Knights of his Shire, or for his Burgesses, as might be mindful of the cause of payment, and of his Estate.
This Countryman hath heard the Opinions and Judgment of this Judge, hath seen his Goods taken from him, without his, or his Knights of the Shire, or Burgesses consent or advice. These have made him, his Wife and Children to joyn in tears to with they had never been born, they have made them think on many ways to keep safe that Estate which was yet left them, have made them desire to fell all their Goods, and hide the Money; but then he remembers this Judge, how that he shall be carried to Prison, and remain there, if he pay not what please others to Asses him: Then they think idle persons (the Drones and Moths of the Common-Wealth) to be a wife People, whilst the Countrymen expect, and can think of nothing, but being Beggars.
Where publick and enormous offences have been committed, eminent and notorious punishment must be; such will make your Lordships Proceedings highly esteemed, else there will be so many offenders, and none without danger can be punished.
This Judge subverting our Laws, took away the Hearts of many; he subscribed for the Kings Power, but so as he put him on taking his Subjects Goods, and of all other, such ways be most dangerous; for we know His Majesty is not the last that suffers, and is not the King worth many thousands?
The place of this Judge was to have given and preserved to the King the Hearts ofHis Subjects, the due execution of the Laws had done this; and when such notice is taken of a Prince, none will conspire against him, who cannot seign to themselves safety before of after any Fact committed, Foreign Enemies will not invade His Kingdoms.
Thus hath His Majesty now got our Hearts, and will for ever have them. This judge is to answer for what His Majesty, and for what we have suffered.
I am commanded by the House of Commons to desire of you Lordships, that the proceedings against Sir Robert Berkely Knight, one of the Justices of His Majesties Court of Kings-Bench, may be put in as speedy a way of Tryal, as the Course of Parliament will allow.
Also Mr. Hollis, at the same time, made a Speech in the behalf of Sir Randolph Crew, sometimes Lord Chief-Justice of the Kings-Bench, but removed, his opinion was against Loan-Money; but more of this hereafter.
Articles of Impeachment of Sir Robert Berkely Knight, one of the Justices of the Court of Kings-Bench; by the Commons in this present Parliament assembled, in their own Name, and in the Name of all the Commons of England, in maintenance of their Accusation, whereby he standeth charged with High Treason, and other great Misdemeanours.
Imprimis, That the said Sir Robert Berkeley, then being one of the Justices of the said Court of Kings-Bench, hath traiterously and wickedly endeavoured to subvert the fundamental Laws, and established Government of the Realm of England; and instead thereof, to introduce an Arbitary and Tyrannical Government against Law, which he hath declared by traiterous and wicked words, opinions, judgments, practises, and actions appearing in the several Articles ensuing.
2. Whereas by the Statute made in the 25th year of the Reign of King Henry the 8. Prices of Victuals are appointed to be rated in such manner, as in the said Statute is declared: But it is manifest by the said Statute, Corn is none of the Victuals thereby intended. Nevertheless some ill-affected Persons endeavouring to bring a Charge upon the Subjects contrary to Law, did surmise, that the Prices of Corn might be rated, and set according to the direction of that Statute; and thereupon great gain might be raised to His Majesty by Licenses and Dispensations for selling Corn at other Prices: And a Command from His Majesty being procured to the Judges, and sent to them by William Noy Efq; His Majesties then Attorney-General, to deliver their Opinions touching the Question, whether Corn was such Victuals as was intended to have the Price rated within the said Statute: In answer to which demand, the said Sir Robert Berkeley then being one of His Majesties Justices of the Court of Kings-Bench, in furtherance of the said unlawful Charge, endeavoured to be imposed, as aforesaid, the thirtieth day of November, in the eighth year of His now Majesties Reign, did deliver his Opinion, that Corn was such Victual as was intended to have the Price rated within the said Statute; which said opinion was contrary to Law, and to the plain sense and meaning of the said Statute, and contrary to his own knowledge, and was given and delivered by him, with a purpose and intention, that the said unlawful Charge might be imposed upon the Subject.
3. That an Information being preferred in the Court of Star-Camber by the said William Noy, His Majesties then Attorney-General, against John Overman, and fifteen other Soap-makers, Defendants, charging them with several preteded offences, contrary to divers Letters Patents, and Proclamations, touching the making and uttering Soap, and using the Trade of Soap-makers, and other offences in the said Information mentioned; whereunto the Defendants did plead, and demurr as to part, and answer to other part of the said Information: And the said Plea and Demurrer being over-ruled, for that the Particulars therein insisted upon, would upon, would appear more fully after answer and proof; therefore the Defendants were ordered to answer without prejudice, and were to be admitted to such exceptions to the said Information and advantages of the matter of the Plea and Demurrer upon the hearing, as shall be material; and accordingly the Defendants did put in their Answers, and set forth several Acts of Parliament, Letters Patents, Charters, and Acts of Common-Council of the City of London, and other matters materially conducing to their Defence; and, in conclusion, pleaded not guilty. The said Sir Robert Berkeley then being one of the Justices of the Court of King's-Bench, upon the 30th day of March, in the eight year of His Majesties now Reign, upon an Order of reference to him and others, by the said Court of Star-Chamber, to consider of the impertinency of the said Answers, did certifie the said Court of Star-Chamber, That the whole Answers, excepting the four words, and ten last lines, should be expunged; leaving thereby no more substance of the said Answers, than the Plea of not guilty. And after, upon a reference to him and others, by Order of the said Court, of the impertinency of the Interrogatories, and Depositions of Witnesses taken on the Defendants part, in the same Case of Sir Robert Berkeley, upon the second day of the May, in the eighth year of His now Majesties Reign, certified, That nine and thirty of the said Interrogatories, and the Depositions upon them taken, should be suppressed with Answers, (except as aforesaid) and Depositions, although the same did contain the said Defendants most material defence. Yet were expunged and suppressed according to the said Certisicates;both which said Certificates were contrary to Low and Justice,and contrary to his the said SirRobert Berkely's own knowledge, and contrary to the said former Order, whereby the advantages were saved to the Defendants, as aforesaid: And by reason thereof the said John Overman, and the said other fifteen Defendants, were sentenced in thesaid Court of Star-Chamber to be committed Prisoners to the Fleet, and disabled from using their Trade of Soap-makers; and one of them fined in 1500l. two of them in 1000l. a-pice, four of them 1000 Marks a-piece; which Fines were estreated into the Exchequer without any mitigation: And the said Defenants, according to the said Sentence, were imprisoned, and deprived of their Trade and Livelihood, tending to the utter ruine of the said Defendants, and to the overthrow of free Trade, and contrayto the Liberty of the Subject.
4. That he the said Sir Robert Berkeley, then being one of the Justices of the King's-Bench, and having taken an Oath for the due administration of Justice, according to the Laws and Statutes of this Realm, to His Majesties Liege-People, on or about the last of December subscribed an opinion in haec verba. I am of opinion, that as where the benefit doth more particularly redound to the good of the Ports or Maritime Parts, (as in Case of Piracy or Depredations upon the Seas) there the charge hath been, and may be lawfully imposed upon them, according to Presidents of former times; so where the safety and good of the Kingdom in general is concerned, and the whole Kingdom in danger, (of which His Majesty is the only Judge) there the charge of the defence ought to be born by all the Realm in general: This I hold agreeable both to Law and Reason.
5. That he the said Sir Robert Berkeley, then being one of the Justices of our Court of King's-Bench, and duly sworn as aforesaid; in Feb. 1636. subscribed an extra-judicial opinion, in answer to Questions in a Letter from His Majesty in hæc verba.
'When the good and safety of the Kingdom in general is concerned, and the whole Kingdom in danger; whether may not the King, by Writ under the Great Seal of England, command all the Subjects of this Kingdom at their charge to provide and furnish such number of Ships, with Men, Victuals and Munition; and for such time as he shall think fit, for the defence and safeguard of the Kingdom, from such danger and peril? and by Law compel the doing thereof in case of refusal, or refractoriness? and whether in such case is not the King sole Judge, both of the danger, and when and how the same is to be prevented and avoided? C. R.
'May it please your most excellent Majesty, we have, according to your Majesties command, severaly every Man by himself, and all of us together, taken into serious confideration, the Case and Question Signed by your Majesty, and inclosed in your Royal Letter; And we are of opinion, that when the good and safety of the Kingdom in general is concerned, and the whole Kingdom in danger, your Subjects of this your Kingdom, at their charge to provide and furnith such number of Ships, with Men, Victual, and Munition, and for such time as your Majesty shall think fit for the defence and safeguard of the Kingdom from such danger and peril; and that by Law your Majesty may compel the doing thereof in case of refusal, and refractoriness: And we are also of opinion, that in such case your Majesty is the sole Judge, both of the danger, and when and how the same is to be prevented and avoided. John Brampston, John Finch, Humphrey Davenport, John Denham, Richard Hutton, William Jones, George Crooke, Thomas Trevor, George Vernon, Robert Berkeley, Francis Crawley, Richard Weston.
6. That he the said Sir Robert Berkeley, then being one of the Justices of the Court of King's-Bench, and duly sworn as afore-said, did on the deliver his opinion in the Exchequer-Chamber against John Hampden Esq; in the Case of Ship-Money, That he the said John Hampden, upon the matter and substance of the Case, was chargeable with the Money then in question; a Copy of which Proceeding and Judgment the Commons of this present Parliament have delivered to your Lordships.
7. That he the said Sir Robert Berkeley, then being one of the Justices of the Court of King's-Bench, and one of the Justices of Assize for the County of York, did at the Assizes held at York, in Lent 1636. deliver his Charge to the Grand Jury, That it was a lawful and inseparable Flower of the Crown for the King to command, not only the Maritime Counties, but also those that were Inland, to find Ships for the defence of the Kingdom. And then likewise falsely and malitiously assirmed, That it was not his single Judgment, but the Judgment of all his Brethren, Witnessed by their Subscriptions. And then also said, That there was a rumor, that some of his Brethren thaty had subscribed, were of a contrary Judgment; but it was a base and unworthy thing, for any to give his Hand contrary to his Heart; and then wished for his own part, that his Hand might rot from his Arm, thatwas guilty of any such crime; when as he knew that Mr. Justice Hutton, and Mr. Justice Crooke, who had subscribed, were of a contrary opinion, and was present when they were perswaded to subscribe; and did subscribe for conformity only, because the major number of the Judges had subscribed. And he the said Sir Robert Berkeley then also said, That in some Cases the Judges were above an Act of Parliament; which said false malitious words were uttered, as aforesaid, with intent and purpose to countenance and maintain the said unjust opinions, and to terrifie His Majesties Subjects that should refuse to pay Ship-Money, or seek any remedy by Law, against the said unjust and illegal Taxation.
8. That whereas Richard Chambers Merchant, having commenced a Suit for Trespass, and false Imprisonment, against Sir Edward Bromfeild Knight, for imprisoning him the said Chambers, for refusing to pay Ship-Money, in the time that the said Sir Edward Bromfeild was Lord Mayor of the City of London; in which Suit the said Sir Edward Bromfeild did make a special Justification: The said Sir Robert Berkeley then being one of the Justices of the Court of King's Bench, in Trinity Term last, then fitting on the Bench in the said Court, upon debate of the said Case between the said Chambers and Sir Edward Bromfeild, said openly in the Court, That there was a Rule of Law, and a Rule of Government: And that many things which might not be done by the Rule of Law, might be done by the Rule of Government: And would not Suffer the point of Legality of Ship-Money to be argued by Chambers his Councel; all which Opinions, Declarations, Words, and Speeches, contaied in the third, fourth, fifth, sixth, seventh, and eighth Articles, are destructive to the fundamental Laws of this Realm, the Subjects Right of Property, and contrary to former resolutions in Parliament, and to the Petition of Right; which resolution in Parliament, and Petition of Right, were well known to him, and resolved, and enacted, when he was the King's Serjeant at Law, and attendant in the Lords House of Parliament.
9. That the said Sir Robert Berkeley, then being one of the Judges of the Court of King's-Bench, and being in Commission of the Peace, and duly sworn to execute the Office of a Justice of the Peace in the County of Hertford, on or about the 7th of January 1638, at which time this general Sessions of the Peace for the said County were there holden: The said Sir Robert Berkeley, then and there sitting on the Bench, did revile and threaten the Grand Jury returned to serve at the said Sessions, for presenting the removal of the Communion-Table in All-Saints Church in Hertford aforesaid, out of the place where it anciently and usually stood, and setting it Altar-ways, against the Laws of this Realm, in that Case made and provided, as an Innovation in matters concerning the Church, the said Grand Jury having delivered to them in charge at the said Sessions, by Mr. Serjeant Atkins, a Justice of the Peace for the said County of Hertford, that by the Oath they had taken, they were bound to Present all Innovations concerning Church maters. And he the said Sir Robert Berkeley compelled the Fore-man of the Jury to tell him who gave him any such Information; and thereby knowing it to be one Henry Brown, one of the said Grand Jury, he asked the said Brown, how he durst meddle with Church matters; who affirming, that in the said Charge, from Mr. Serjeant Atkins, the said Jury was charged to do, he the said Sir Robert Berkely told the said Brown, He should therefore find Sureties for his good Behaviour;; and that he the said Sir Robert Berkeley would set a great Fine on his Head, to make him an example to others; and thereupon the said Brown offered sufficient Bail; but he the said Sir Robert Berkeley, being incensed against him, refused the said Bail, and committed the said Brown to Prison, where he lay in Irons till the next morning, and used to the said Brown, and the rest of the Jurors, many other reviling and terrifying Speeches; and said, he knew no Law for the said Presentment; and told the said Brown, That he had sinned in the said Presentment: And he compelled the said Grand-Jurors to say, they were sorry for what they had done in that Presentment, and did bid them to trample the said Presentment under their Feet; and caused Brown to tear the said Presentment in his sight. And he the said Sir Robert Berkely, when as John Houland, and Ralph Pemberton, late Mayors of St.Albans, came to desire his opinion on several Indictments against John Brown, Parson of St. Albans, and Anthony Smith, Vicar of St.Peters in St. Albans, at the Quarter Sessions held at the said Town of St. Albans, on the 24th of June 1639, for the Removal of the Communion-Table out of the usual place, and not administring the Sacrament according to Law in that ease provided: He the said Sir Robert Berkely then told them that such an Indictment was before him at Hertford, and that he quashed the same, and imprisoned the Promoters; by which threatning and reviling Speeches, unjust Actions and Declarations, he so terrified the Jurors in those parts, that they durst not present any Innovations in the Church matters, to their great grief and trouble of their consciences.
And whereas several Indictments were preferred against Matthew Brook, Parson of Tarmouth, by John Ingram and John Carter, for refusing several times to administer the Sacrament of the Lords Supper to them without any lawful cause, at the Assizes held at Norwich in the year 1633, he the said Sir Robert Berkeley, then being one of the Judges of the Assize, proceeded then to the Tryal on the said Indictments: where the matter in issue being, That the said Brooks resused to administer the said Sacrament, because the said Ingram and Carter would not receive Tickets with their Sirnames before their Christian names; which was a course never used amongst them, but by the said Brook. And the said Sir Robert Berkeley did then much discourage the said Ingram' s Councel, and over-rule the Cause for matter of Law, so as the Jury never went from the Bar, but there found for the said Brook : And the said Sir R. Berkeley bound the said Ingram to the good behaviour for the profecuting the said Indictments,and ordered him to pay costs to the said Brook for wrongfully inditing him. And whereas the said Carter, not expecting the Tryal at the same Assizes he preferred his Indictment, was then absent; whereupon the said Sir Robert Berkeley did cause to be entred upon the said Indictment a Vacat, quia non sufficiens in lege, and ordered an Attachement against the said Carter, which said proceedings against the said Ingram and Carter, by the said Sir Robert Berkeley, were contrary to Law and Justice, and to his own Knowledge.
10. That the said Sir Robert Berkeley, being one of the Justices of the Court of Kings-Bench, and duly sworn as afore said in Trinity Term 1637, deferred to discharge or bayl Alexander Jennings Prisoner in the Fleet, brought by Habeas Corpus to the Bar of the said Court; the return of his Commitment being, that he was committed by two several Warrants from the Lords of the Council, dated the 5th of November 1636. The first being onely read in Court expressing no cause, the other for not paying Messengers Fees, and until he should bring a Certificate that he had paid his Assessment for Ship-money in the County of Bucks, but remitted him: And in Michaelmas Term after, the said Jennings being brought by another Habeas Corpus before him as aforesaid, and the same returned; yet he the said Sir Robert Berkeley resused to discharge or bayl him, but remitted him. And in Easter Term, after several rules were given for his Majesties Councel, to shew cause why the said Jennings should not be bayled, a fourth Rule was made for the said Jennings to let his Majesties Attorney General have notice thereof, and notice was given accordingly; and the said Jennings by another Habeas Corpus, brought to the Bar in Trinity Term after, and the same return with this addition, of a new Commitment of the 4th of May, suggesting the said Jennings had used divers scandalous words in derogation and disparagement of his Majesties Government: He the said Jennings after several Rules in the end of the said Trinity Term, was again remitted to Prison. And he the said Sir Robert Berkeley did on the fifth of June last, defer to grant His Majesties Writs of Habeas Corpus for William Pargiter and Samuel Danvers Esquires, Prisoners in the Gatehouse, and in the Fleet; and afterwards having granted the said Writ of Habeas Corpus, the said Pargiter and Danvers were on the 18th of June last brought to the Bar of the said Court, where the returns of their Commitments were several Warrants from the Lords of the Council not expressing any Cause; yet he the said Sir Robert Berkeley, then sitting in the said Court, deferred to bail the said Pargiter and Danvers, and the 18th of June last made a Rule for a new return to be received, which were returned the 25th of June last, in b&c verba.
'Whereas his Majesty finding that His Subjects of Scotland have in Rebellious and Hostile manner assembled themselves together, and intend not only to shake off their obedience unto His Majesty, but also as enemies to invade and infest this His Kingdom of England, to the danger of His Royal Person, &c.
For prevention whereof His Majesty hath by the advice of His Council-board, given special commandment to all the said Lord Lieutenants of the Counties of this Realm, appointed for their Randezvous in their several and respective Counties, there to be conducted and drawn together into a Body for this Service. And whereas His Majesty, according to the Laws and Statutes of this Realm and the constant custom of His Predecessors Kings and Queens of this Realm, hath Power for the defence of this Kingdom, and resisting the force of the Enemies thereof, to grant forth Commissions under His Great Seal to such fit persons as he shall make choice of, to array and arm the Subjects of this Kingdom, and to compel those who are of able Bodys and able Estates, to arm themselves; and such as should not be of able bodies, but of ability in Estate, to asses them according to their Estates to contribute towards the Charge of arraying others, being able of body, and not able in Estate to arm themselves; and such Persons as should be contrariant to Commit to Prison, there to remain untill the King should take further order therein.
And whereas the Earl of Exeter, by vertue of His Majesties Commission to him directed, for the arraying and arming of a certain number of Persons in the County of Northampton, hath assest William Pargiter, being a Man unfit of body for that Service, but being of Estate and Ability to contribute amongst others, to pay the sum of five shillings towards the arraying and arming of others of able bodies, and wanting ability to array and arm them selves.
And whereas we have received Information from the said Earl that the said William Pargiter hath not only in a wilful disobedient manner refused to pay the said money assessed upon him towards so important a service, to the disturbance and hindrance of the necessary defence of this Kingdom; but also by his ill example hath misled many others; and, as we have just cause to believe, hath practised to seduce others from that ready obedience which they owe, and would otherwise have yielded to His Majesties just Command, for the publick defence of his Person and Kingdom, which we purpose with all convenient speed to enquire further of and examine.
These are therefore to Will and Require you, to take into your custody the persons of the said William Pargiter and Samuel Danvers, and them safely to keep Prisoners till further order from this Board, or until by due course of Law they shall be delivered; yet he the said Sir Robert Berkeley being desired to bail the said Pargiter and Danvers, remitted them, where they remained Prisoners till the ninth of November last, or thereabouts; although the said Jennings, Pargiter and Danvers, on all and every the said returns were clearly bailable by Law; and the Councel of the said Jennings, Pargiter and Danvers offered in Court very sufficient Bail. And he the said Sir Robert Berkely, being one of the Justices of the Court of Kings Bench, denied to grant His Majesties Writs of Habeas Corpus to very many others His Majesties Subjects, and when he had granted the said Writs of Habeas Corpus to very many others His Majesties Subjects, and on the return no cause appeared, or such only as was clearly bailable by Law; yet he remanded them, where they remained Prisoners very long: which said deferring to grant the said Writs of Habeas Corpus, and refusals and delaies to discharge Prisoners, or to suffer them to be bailed, contained in this Article, are destructive to the fundamental Laws of this Realm, and contrary to former Resolutions in Parliament, and to the Petition of Right, which said Resolutions and Petitions of Right were well known to him the said Sir Robert Berkeley, and were resolved on and enacted when he was the Kings Sergeant at Law, and Attendant in the Lords House of Parliament.
11. That whereas there was a Cause depending in the Court-Christian at Norwich, between Samuel Booty Clerk, and Collard for two shillings in the pound, for Tythes for Rents and Houses in Norwich, and the said Collard moved by His Councel in the Court of Kings Bench for a Prohibition to stay proceedings in the Court-Christian at Norwich, and delivered into the said Court of Kings Bench his Suggestions, that the said Cause in the said Court-Christian was only for Tythes for Rents of Houses in Norwich, which was determinable by the Common-Law only; yet he the said Sir Robert Berkeley, being one of the Justices of the said Court of Kings Bench, and sitting in the said Court, deferred to grant a Prohibition to the said Court-Christian in the said cause, although the Councel did move in the said Court many several times, and several Terms, for a Prohibition. And he the said Sir Robert Berkeley deferred to grant His Majesties Writ of Prohibition to several other Courts, on the motions of divers others of His Majesties Subjects, where the same by the Laws of this Realm ought to have been granted, contrary to the Laws of this Realm and his own knowledge.
All which Words, Opinions, and Actions were so spoken and done by him the said Sir Robert Berkeley traiterously and wickedly to alienate the hearts of His Majesties liege people from His Majesty, and to set a division betwixt them, and to subvert the Fundamental Laws and Established Government of His Majesties Realm of England : for which they do impeach him the said Sir Robert Berkeley one of the Justices of the Court of Kings-Bench of High-treason against our Sovereign Lord the King His Crown and Dignity, and of the Misdemeanours abovementioned.
And the said Commons by protestation, saving to themselves only the liberty of exhibiting at any time hereafter any other accufation or impeachment against the said Sir Robert Berkeley, and also of replying to the Answer that he said Sir Robert Berkeley, shall make to the said Articles, or any of them, or of offering proof of the premises, or any other impeachments or accusations that shall be exhibited by them, as the case shall according to the course of Parliaments require, do pray that the said Robert Berkeley, one of the Justices of the Court of Kings Bench, may be put to answer to all and every the premises; and that such Proceedings, Examinations, Trials, Judgements and Executions may be upon every of them had and used as is agreeable to Law and Justice.
The Kings pleasure declared concerning the Surveying and Marking of Iron, and Surveying Woods in the making thereof.
'Whereas the Kings most Noble Progenitors and predecessors, Kings and Queens of this Realm, duly considering the necessary and important use of the Woods and Timber of this Kingdom have taken into their constant care to preserve the same from waste and destruction; and to that end divers good and wholesom Laws and Statutes have been made, nevertheless by a common neglect of the said Laws, and by an unlawful liberty, which many of the Kings Subjects have taken, there hath been a spoil of Timber and Woods in the Kingdom, by converting the same into Coals for the making of Iron; so that it may be feared, that within few years, unless a speedy course be taken to prevent it, there will follow such a want of Wood and Timber, as cannot be supplied by any future providence; and which together with the frequent transportation of Iron and Iron-metal unlawfully, without License, hath already produced a great scarcity of Timber, Wood and Iron, for a remedy whereof, and for restraint of Transportation of Iron, and for Reformation of sundry secret Deceits and Abuses now used and practised in the making of Iron, and in the vent and sale thereof in Bars, by intermingling the worser sort with the better; His Majesty by His Letters Patents under the Great Seal, dated the 14th of October last, did erect an Office to be for ever continued, and did thereby appoint John Cupper and Grimbald Pauncefoot Surveyor or Surveyors of all Iron-works, Furnaces and Forges within England and Wales, and of all Woods to be used or employed thereat; and for the Surveying and Marking of Iron with divers Stamps and Marks; for the doing whereof they are allowed by 'the said Letters Patents, to have a moderate fee at the time of their Surveying and Marking. And notwithstanding some complaint hath been made of this matter before the King and Council, yet it is thought fit and necessary, that the said Patent be put in execution; and therefore the King doth Commnand, that no Person whatsoever shall employ any Woods to be converted into Coals for the making of Iron, or shall transport any Iron or Iron Metal. And that no Iron-Master. Owner or Farmer of Iron-works shall put to sale any fort of Iron, nor shall any Merchant, Trader or Dealer in Iron remove the same from the Iron-Works, Furnaces, or Forges before the said Iron shall be first Surveyed and Marked by the King's Officers, or their Deputies. And all Persons are required to permit the said Officers, or their Deputies, to enter into the Iron-Works, Warehouses, &c. to Survey and Mark the said Iron. The King doth further declare, that his said Officers, or their Deputies, may enter into any Woods, or Wood-grounds, wherein any Woods are, or shall be felled, to be converted into Coals, for the Making of Iron, or Iron-Metal, and there to Survey the same.
Titles of Proclamations for the Year 1637.
Westminster, March 26.
By the King,
A Proclamation to restrain the making or having Keys for His Majesties Houses, Gardens, or Parks, without especial Warrant.
Whitehall, April 30.
A Proclamation against the disorderly Transporting His Majesties Subjects to the Plantations within the Parts of America.
Whitehall 11, May 14.
A Proclamation for calling in a Book Intitled an Introduction to a Devout Life, and that the same be publickly burnt.
Whitehall 11, May 15.
A Proclamation touching the Manufactures of Playing-Cards, and Dice.
Greenwich 11, July 9.
A Proclamation touching Common Malters and Brewers.
Oatlands, July 16.
A Proclamation against false packing of Butter, and other deceits and misdemeanours concerning Butter-Casks, discovered since the publishing of a former Proclamation.
Oatlands, July 23.
A Proclamation for putting off this next Bartholomew-Fair in Smithfield, and our Lady-Fair in Southwark.
Oatlands, July 29.
A Proclamation for the Surveying, and making of Iron, and Survey of Woods to be used in the making thereof.
Lindhurst, August 18.
A Proclamation declaring, that the Proceedings of His Majesties Ecclesiastical Courts and Ministers, are according to the Laws of the Realm.
Lindhurst, August 21.
A Proclamation for putting off this next Sturbridge-Fair.
Oatlands, September 3.
A Proclamation for putting off the Healing of the Disease called the King's-Evil at Michaelmas Term.
Whitehall, November 19.
A Proclamation for Restraining the use of Wine-Casks, by Brewers, and Sellers of Beer and Ale.
Westminster, November 22.
A Proclamation concerning the Tradesmen and Artificers within three Miles of the City of London, not yet admitted in the NewCorporation.
Whitehall, December 20.
A Proclamation restraining the withdrawing His Majesties Subjects from the Church of England, and giving scandal in resorting to Masses.
Whitehall, December 28.
A Proclamation touching the Corporation of Soap-makers of London.
Whitehall, January 17.
A Proclamation declaring the seasonable Times when Warrants for Venison in the King's Forests, Chaces, or Parks, are to be served.
Whitehall, February 8.
A Proclamation concerning certain kinds for the sweet and speedy drying of Malt and Hops, at a small Charge.
Whitehall, February 11.
A Proclamation concerning the carrying, and re-carrying of Letters, as well within His Majesties Realms and Dominions, as into, and from Foreign Parts.
Whitehall, February 11.
A Proclamation for the Pricing of Wines.
Newmarket, March 4.
A Proclamation concerning our Iron-Oar, Iron-Mines, and Cinders within Our Forest of Dean.
Whitehall, March 14.
A Proclamation concerning Tobacco.