Historical Collections of Private Passages of State: Volume 3, 1639-40. Originally published by D Browne, London, 1721.
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The Certificate of Sir John Denham, Knight, one of the Barons of the Exchequer, concerning Ship-Money, 26 Maii, Anno Dom. 1638.
May it please your Lordships, I had provided myself to have made a short Argument, and to have deliver'd my Opinion, with the Reasons; but by reason of want of Rest this last night, (my old Disease being upon me) my sickness and weakness are greatly increased, insomuch that I cannot attend the Business as I desire. And if my Opinion be required, it is for the Plaintiff.
His second Certificate, directed to the Lord Chief Justice Bramston, 28 Maii, 1638.
My Lord, Under standing that some misconstruction was taken by some in the Declaration of mine Opinion, which I desired your Lordship the last Saturday to deliver in my name; for farther satisfaction therein, although I was most desirous to have passed my Vote in silence in this Work of weight, by reason I heard not the last four Arguments, yet I deliver'd my Opinion for the Plaintiff, which I took to be Hampden, by reason it appear'd by the Record, that he coming in upon process, Quaritur se colore praemissorum graviter vexari, & hoc minus juste, &c. which satisfied me that he was Plaintiff. And therefore I now declare my Opinion for Mr. Hampden, who did demur.
The first is, That his Majesty is, Sola & Suprema Justitia Regni: And the Rule of the Law is, and hath always been, That his Majesty can do no wrong. And thereupon ariseth another Rule in our Law, (which I give for my second Reason) That the King's Majesty (being of an incorporate capacity) can neither take any Lands or Goods from any of his Subjects, but by and upon a Judgment of Record, which, according to our daily experience in the Exchequer, there must precede some Judgment in that or some other Court of Record, whereby his Majesty may be intitled either to the Lands or Goods of a Subject. As, namely, where Seizure of Goods of a Subject is made for his Majesty, either upon Outlawries, Attainders, or matters of the like nature, as in Cases of Seizure in the Court of Exchequer, where Seizures are given by the Statute; yet without a Judgment in that Court, upon a Trial for the King, the Goods are not to be recovered to the use of the King, as forfeited.
Sir John Finch, Knight, Lord Chief Justice of the Common-Pleas, his Argument touching the Ship-money in the Exchequer Chamber, June 9. 1638.
A Writ under the Great Seal of England, dated August 4. 11 Car. went to the Sheriff of Buckinghamshire (Sir Peter Temple) commanding that a Ship of 450 Tun and 180 Men, to be furnished with all Ammunition and Tackling at Portsmouth, for 26 Weeks, to go with other of his Majesties Ships, and of the Subject, to defend the Dominion of the Sea and Realm, being in danger; and for to assess all his Majesty's Subjects, and all the Inhabitants within the said County; and all Occupiers, Tenants there, that have no part in a Ship, nor serve in the same, to contribute for and towards the preparation and setting forth of the Ship according to their abilities.
The Record of Certiorar. faith Stoak Mandevile, is within the said County, and was assessed at a reasonable Rate; and that the Sum of 205. was assessed upon the Lands of J. Hampden, Esq; as by a Schedule of March 9.12 Car. annexed unto the Certiorar. may appear.
Whereupon a Mittimus, May 5. 13 Car. with the Certiorar. and Schedule was directed unto the Barons of the Exchequer, to do there for the Sum unpaid prout de jure & per legem & consuetud. Reg. nostrifuer. faciend.
A Scire facias upon this went forth of the Exchequer to warn Mr. Hampden to shew cause why he should not pay the 205. upon the Return of which Mr. Hampden appeared, and demanded Oyer of the Writ Certiorar. Mittimus, and Scire fac. and upon hearing of them read, he demurred, and Mr. Attorney joined then my Lord Chief Baron, and the Court of Exchequer, and journed it to the Exchequer Chamber, desiring the advice of all his Majesty's Judges, and look what advice we, or the greater number of us give, the Court ought and must give Judgment upon it accordingly.
In the debating of this Case, there have been great variety of Opinions amongst the Judges; a thing usual and frequent in all great Cases and Consultations, which shews commonly the Difficulty of the thing, and argueth a candor and clearness in the Judges, between whom Combination and Conspiracy would be most odious. All that have gone before me, have in one thing agreed, that it is the greatest Cause that ever came in any of our memories, or memorial of our Predecessors.
As the Sun arising in the Horizon shews not the Figure so clear, as when it is beholden in the Meridian, so by mixing many impertinencies with the Case in Judgment, it hath been appreehended to be of a more tender consequence then indeed it is; yet tender and weighty it is, if equally weighed in one Ballance, we may put the Regal power, or rather Regality itself; in the other, the Privileges and Liberty of the Subject in his Person and Estate.
To look upon either of these, or both, through the multiplying Glass of Affection, is to hold neither of them true; neither can they be so truly discerned, much less to multiply by the Glass of Fansie, and therefore Justice need to hold the Beam strait.
I cannot fear my self, when Vulgar Censure hath executed it self upon every one that hath delivered himself in this matter, yet I will not say, Domine, posuisti me in lubrico loco, for we that do sit, here do move in a Sphere, and should be like the primum mobile, according to whom all others are to steer their course, and Judges themselves must move steadily upon their right Poles, as I hope this Court will.
Nor will I lose time, remembering the strict Oath of a Judge, who should expell all the respects, and speak his conscience, I hope none of us forget the duty we owe to God and the King, and Commonwealth, and to ourselves; I shall endeavour to satisfie my Conscience in all that I shall say, and they forget their duty to the first, and humanity towards us, that say or think the contrary of anyone of us, some of us have Fortunes and Posterities, and therein have given Hostages to the Commonwealth, and as much interest in this case as Mr. Hampden.
Those that want those blessings, want those temptations that make them dream of (or hunt for) Honour or Riches to perpetuate their Name and Families: To them nothing can be more precious than the balm of integrity, which will preserve their Names and Memories; It cannot be presumed but that we should speak our Consciences, since we well know shortly (as the Psalmist says) Corruption shall say, I am thy Father, and the Worm, I am thy Mother.
In handling this case no Man can think I shall do other than right herein; I am troubled rather for a method, than matter; rather how to dispose what I find, than find what to dispose; I shall endeavour shortly and clearly, (considering the time I have to spend, and the weightiness of the matter about which I am to speak) to deliver my Opinion with the reasons of it, and my endeavour shall be rather to contract than omit.
I have, with the best care I could, taken my Notes of all that hath been said for or against Mr. Hampden, and have, according to the measure of my understanding, weighed and pondere all that hath been spoken both at the Bar, and by my Brothers, and bestowed many hours in meditation about them, which the time of rest and repose might have challenged.
Before I enter into the Case, I shall speak of the steps and degrees by which this cause hath come to judgment, whereby it will clearly appear with what Clemency, Wisdom, Justice, and Goodness his Majesty hath proceeded in this business.
The first Writ went out to the Port Towns and Maritine parts of the Land the twentieth of October, 10 R.Car. upon advice taken between his Majesty and his Council; before then of those Writs I can say nothing, for I was commanded at that time to attend another service about another employment, the Forest of Dean, but it is well known the resolution taken by his Majesty's therein was grounded and relied upon the judgment and learning of Mr. Noy, Attorney General, a Man of great Learning, and one that had great insight into Records, by whom the matter was first prepared, collected, and digested, and afterwards imparted to some of his Majesty's learned Council, and afterwards to some other eminent persons of the Commonwealth, of no les judgment and knowledge of the Laws of this Realm; and upon consultation with my Lord Chief Baron, and his Majesty's Barons of the Exchequer, his Majesty commanded those Writs to be sent forth, against the Legality of which nothing hath been truly alledged; it is true, they are not in Judgment properly before us, and if method did not press it, I should not have mentioned them.
I Octob. 10. of his Majesty's Reigin, his Majesty was pleased to command me to serve in the place that now I do, and those Records, Writs, Commissions, and other Precedents were brought to me, as they had been formerly to my Lord Chief Justice, and my Lord Chief Baron, and we there did confer together, and delivered our Opinions in writing under our hands.
Upon view and diligent perusal of a multitude of ancient Records, and Writs, and other Precedents of E.I.E.II. and E.III. and other Records of other Kings Reigns; we delivered our Opinions in these words, That the Dominion of the Sea belongeth to the King, and that he is sole Lord and Proprietor of the same; in which respect his Excellent Majesty these Regalities and Royal Powers is to defend against all Hostile Actions, Intrusions, and Invasions, as well the Goods of his Subjects, as Strangers importing and exporting their Commodities, and for the Defence of the Kingdom; and for the better performing whereof the Cinque Ports have been required to prepare such a certain number of Ships of divers Burdens, and Men of Arms, and at such times at their own charges from time to time as the same Writs and the present occasion required, and for the time and place, and residence of their attendance, his Majesty was the sole Appointer and only Judge, and this was the constant use in the Reigns of those Kings, and this was agreeable to the Common Law of England.
15 Novemb. 1634. before the next Summer his Majesty finding the danger to grow general, and conceiving there was little reason that the Maritine Parts should bear the whole charge, for that the whole Realm was interested therein; afterwards he required our Opinions, viz. my Lord Chief Justice, my Lord Chief Baron, and my self, in June 1635. After conference together, we delivered our Opinions, and upon consultation conceiving the reason of the Precedents before, and the Rule of the Law and Reason requiring, that when the whole Kingdom was in danger, the defence that concerned the whole Kingdom should be born by all the Subjects of the Kingdom: This was first verbally delivered to his Majesty, and after wards we put it in writing under our hands in those words, Prout, &c. whereas the charge of desending the Sea had been imposed upon the Cinque Ports, so where the whole Kingdom is in danger, the whole charge ought to be maintained by all the Subjects of the Realm.
And amongst other Writs, this to the Sheriff of Buckingham went forth at the time aforesaid, after which his Majesty finding some question made of the Legality of it, he called all his Judges, not single, or any one in a Corner, but because he would have every one of them truly informed, required them to advise together, and every one of them by themselves to give his Opinion; according to which we severally, and every Man by himself, and all of us together delivered our Opinions under our hands in this manner, viz.
That when the good and safety of the Kingdom in general is concerned, and the whole Kingdom in danger, of which your Majesty is the sole Judge, your Majesty may, by Writ under your greatSeal of England, command all the Subjects of this your Kingdom, at their charge, to provide and furnish such a number of Ships, with Men, Munition, and Victuals, and for such a time as your Majesty shall think fit, for the defence and safety of the Kingdom from such danger and peril, and that by the Law your Majesty may compel the doing thereof, in case of refusal, which (the Clause his Majesty was sole Judge of, was only put in by Ten of us) my Brother Hutton, having not seen nor weighed the Precedents, took Time to advise, and gave no Opinion at this Conference between us; and my Brother Crook had the same Reason, being not acquainted with those Writs, but yet subscribed his Opinion singly by himself, December, 1635.viz.
That where the Good and Safety of the Kingdom is in Danger, of which his Majesty is the sole Judge, his Majesty may command all his Subjects, at their Charge, to provide and furnish such Ships at Sea, with Men and Munition, as shall be necessary for the Defence thereof; and this I hold to be agreeable to Law and Reason.
- 1. That the King is the sole Judge of the Danger, and whether it be imminent.
- 2. Not only that the King may in such Danger command his Subjects to defend the Kingdom in case of Necessity, but that the Charge of the Defence ought to be born by all the Realm in general, which Opinion was more independent than the rest, for that our Opinion before it had relation to the Precedent of Maritine Parts, but this was that the Subject might be charged absolutely; and this was delivered by him readily and chearfully without hesitation, he will not deny it; I speak not of this as of a Thing whereby he ought to have been concluded, but that all the world should know that his Majesty's Regal and Legal Power go hand in hand together, and that his Princely love and affection to his Subjects is such, that he is willing to prevent all mistakes; and I speak it also to this end, that when Judges singly deliver their Opinions to the King, not examining the Reasons that moved them unto it, we ought to see very good and pregnant Reason to vary from that Opinion, though it be not binding.
When his Majesty found slackness in some of his Subjects in contributing towards this Charge, and thinking that it proceeded rather from misunderstanding of the Law, than from want of Duty, as desirous of his princely Love to avoid all mistakes, did upon the second of February, 1636. send a Letter to all us his Majesty's Judges and Barons of the Exchequer, thereby requiring our several Opinions; about which we all conferred, and the Particulars, wherein our Opinions were required, had been long thought upon, and considered of before, or else we were much to blame, for we had it time enough to think upon it; and though our Answer was returned the Seventh of the same Month of February, yet we had it in our Considerations from June, 1635. Fifteen Months before the Answer returned: There was surprize. I will spare to name our Opinion then delivered, for it hath been repeated before. When we came to the debate and voting of this, we broke the Writs into several Parts and Questions, as,
First, When the good and safety of the Kingdom in general is concerned, and the whole Kingdom in Danger, whether it ought not to be defended at the Charge of the whole Kingdom; and agreed it was una voce nullo contradicente, that it ought.
3.Whether the King was not the sole Judge both of the Danger, and when and how it was to be prevented, wherein my Brothers (Hutton and Crook) did agree it likewise, that he was sole Judge of the Danger. What their Opinions are now, and wherein they differ, I shall, with their good leaves, examine; and their Reasons and Differences (tho' indeed of the King's being the sole Judge in their Arguments, my Brother Crook spake nothing of his Opinion therein, nor my Brother Hutton nothing against it) but we delivered not our Opinions upon the (by), nor was it so required by his Majesty. It was then also declared by all of us, that we delivered not our Opinions as binding Opinions; nor were they so required by his Majesty. Of all which, I dare boldly say, his Majesty was truly informed; and this was also soon after published at his command, and recorded by my L. Keeper and L. Privy Seal; the first of them using many Arguments and found Collections, delivered it in charge of his Majesty's Judges to deliver it in their Circuits, which might have satisfied any that respected not their own private benefit: And Mr. Hampden of all, I think, hath the least Reason to complain, being assessed but 20 s. a contemptible Sum, in respect of his annual Revenue, to bring this Case to Judgment. Yet his Majesty's Clemency appears to be great herein, in that he would not debar any to question the Lawfulness of it, tho' he hath permitted Arcana Imperii, nay, Imperium ipsum, I would to God I could not say, even too licentiously debated at this Bar. I speak it not by way of reprehension, but ad monition to the Council, who are to be commended in that they have done their Duty faithfully for their Clients; yet, I may say, such a Ravel and diving into the King's Revenue, and secret Estates of Princes, and what succeeding Kings may be or do, it doth not well become these present Times: it would not have been endured in the best preceding Times.
It was not well toclog the Cause with so many Precedents, impossible to be throughly observed; but our Example (I hope) shall be a bar hereafter, and our care shall be to prevent it, being a great hindrance to the expedition of Justice, and causes of great expence to the Subjects long attendance about their Causes here, which may prove a greater Charge than in providing Ships for defence of the Realm.
- 1. First, To examine what the Case is.
- 2. Secondly, I will give my Opinion of the Case, with the Reasons thereof.
- 3. I will answer the Objections made against it.
- 4. Fourthly, I will speak of the Form and Quality of the Writ 4 Aug. the Certiorar' the Mittimus, and the Scire Fac. out of the Exchequer, and to all these, with what brevity I can, I will speak, according to the weight of the Case, where variety of Opinions give just cause to ballance them; the Case must rise out of the Record, and must stand or fall upon that.
- 1. First, for the Case it self; and therein, First, I will shew, what danger there is, that is, the Ground of the Charge.
- 2. What things there are to maintain it: As for other things, they tend unto the Destruction of the Case.
First, I am of Opinion that the Danger of the whole Kingdom ought to be expressed clearly, for else the Ground-work faileth; for if no danger, no Reason for the Charge, I am of Opinion, that in the Writ 4 Aug. it ought to be expressed, and not in the Mittimus; tho' as my Brother Jones observed, the Mittimus comes time enough to Mr. Hampden to give him notice, yet he was not liable to the Charge, but by the Writ 4 Aug.
Secondly, For the Causes of the Writ, that it hath not relation to the Danger of the Kingdom, but to defend the Sea-coasts against Pirats, &c. they are not worthy of a Royal Navy, as my Brother Crook also observed.
But I hold first, that the Danger is sufficiently expressed, certum est sicut se res habit, datum nobis est intelligi, a Thing very ordinary with us, and in all former Writs ex relatione, &c. Quod vulgaris opinio est, &c.
Although my Lord Chief Baron parallel'd this to the Case of Patents, Ex certo scientia (which is nothing alike) for there before the King pass away Land, he may be informed he may do it; but I hold as this Case is, the Danger will not permit to be examined whether there be just cause of fear, for then it might receive delays, which are dangerous, and the Kingdom be lost while we are disputing.
And then for the Phrase it self, datum est nobis intelligi, it is sufficient that the King knows there is Danger; and therefore if it had been but only intelligimus, none can deny it, but it had been sufficient; and what difference is there between intelligimus, & datum est nobis intelligi? that sets forth the knowledge of the Danger, and this shews the means where by he doth know it, ut datum est nobis intelligi, this goes farther than ex auditor rumor est, &c. therefore unless the King should go out of the Kingdom to see the Danger, can it be otherways expressed?
Secondly, I hold that the Danger it self, with the Motives in the Writ, are sufficient; also the Motives are great depredations of the Subjects Goods and Life. But it is not upon this I rest, for this hath relation to Pirats leading divers Christians into Captivity; these are good Motives, and (as one of my Brothers said well) tho' these have relation to Pirats; yet Bellum Piraticum points at us as much terror as Hannibal ad Portas.
I shall not much rely upon that, that the Enemies of Christendom, and of this Nation, did prepare ad Mercatores nostros ulterius molestand', nos ad regnum gravand' nisi citius remedium apponatur, &c. But this Consideratis periculis quœ undique his guerrinis temporibus imminentibus ita quod nobis & subditis nostris defensionem maris & regni omni festinatione qua poterimus convenit, &c. shews otherwise than for the Pirats: this Defence was requisite. Therefore the next Clause is, Nos volentes defensionem Regni, tuitionem Maris, securitatem Subditorum nostrorum, &c. And therefore that Salva conductione Navium & Merchandizarum quœ ad regnum nostrum Angliœ venerint, & de eodem regno ad partes exter as transeunt, &c. take not away the former words, or limit them. As for the Clause in the Mittimus, I stand not upon it; nor that Salus Reg. &Pop. nostri Angl. periclitabitur, &c. admit there had been no preamble or express mention of danger, I hold the Command itself is sufficient setting forth of the danger; which is, that the Ship be with other his Majesty's Ships, and the Ships of other his Majesty's Subjects, at Portsmouth the First day of March next following: the words of the Record be, Exinde cum Navibus nostris & Navibus aliorum fidelium Subditorum nostrorum, pro tuitione Maris & defensione nostrorum & vestrorum, etc. and particularly to express the danger is not necessary; for the King, the sole Arbiter or Peace and War, best knows it. And it was the practice in former times, and so no wisdom for the King, who is the sole Arbitrator of Peace and War, to express the danger in particular, when Arms usually go before Heralds; not is it the use of Princes to Complement, to tell the Enemy that they will or intend to invade their Lands, and therefore I hold, though it might be more clear, yet satis est quod sufficit, I in my own Conscience am satisfied the Danger is certain enough expressed in the Writ, and so I have done with, first, the Particular (the Danger) which was the ground of his Writ. As to the second Particular:
What is alledged to be for the preventing of that Danger. My Brother Hutton and my Brother Crook would have it to be raising of Money by reason of the Clause in the Writ for the distribution of the Surplusage; but the Record is, ad assidend, omnes homines & ed contribuendum Navem vel partem Navis non habentes, etc. which shews, that it cannot be for Money; neither is there any colour for Money, for it is to find a Ship: and if they have not of their own, they must build or buy one with their Money. But these is a great deal of difference between payment of Money, and finding of a Ship: and if my Brother Crook be required to find a Light-horse and Arms, he must buy one, or hire with his Money, if he have none; but yet the Charge is not only for Money, but to find a Light-horse.
But my Brother Crook's Objection is, if any Surplusage remain, it shall be divided, and so the Sheriff is to detain no part of it, but imploy it for the Publick Good, and not convert it to his own private benefit.
To this I answer, that those of Bucks. may hire a Ship, if they may not build one, and the words are but (parare) not for the Building, it but Preparing a Ship: and it was not meant that they should build it there, but that they should contribute to the Building of a Ship in the most fit and convenient Place.
Now in my opinion the King knowing and declaring the whole Kingdom to be in danger, and necessarily requiring his Subjects to defend and provide for this danger at Sea, the King may thereupon command all his Subjects to provide Ships to join with his Navy Royal against the Enemy of the whole Realm: and it clear in the Case, and was the meaning of us all, that the King must join in the Charge, it being far from us to excuse the King in his rateable part.
- 1. The Defence of the Kingdom must be at the Charge of the whole Kingdom in general.
- 2. That the Power of laying the Charge is, by the Policy and Fundamental Laws of this Kingdom, solely invested in the King.
- 3. The Law that hath given this Power to the King to do these things, hath given him Means to put these things in Execution.
- 1. First, That the defence of the Kingdom must be at the charge of all the Kingdom, I shall prove from the Law of Nature, which is, that every thing in nature ought to defend itself.
- 2. From the Rule of Reason, for quod omnes tangit, ab omnibus supportari debet.
- 3. Thirdly, From the true use of all that we enjoy, which must be abused is not imployed to and for the Good also of those that come after us; and necessary it is for our Posterity to have all sure and safe. A good Patient will spare some blood to preserve his own health, and a good Husband will spare some piece of his best Ground for Ditches and Fences to preserve the rest; and he is an ill Husband that finds not safety in that he doth.
- 4. From the Law of Property; As every one hath a particular property in his own Goods, so every one hath a property in general in another's Goods, for the common Good. For the Common wealth hath a property in every Subject's Goods, not only in Time of War, but also in Time of Necessity. In Peace therefore, if one take away my Goods with out my Consent, I have my Action, and recover Damage. Doctor and Student say both, A Trespass of Lands and Goods is punishable by Indictment, and Trespass at the King's Suit as well as at the Subject's: and this is by reason of the publick Interest that the King hath in every Subject's Goods for the common Good.
Now the Rule and Maxim before, so clearly and fully put and agreed by all, is, that in case of Necessity that is apparent, the Subject ought to defend the Kingdom; and my Brother Crook agreed in case of Danger, so it be imminent, all Men are bound in their Persons and Estates to desend the Land and the Kingdom. And when he says they must, then exponere se & sua, I think he means a Man that takes and goes a Journey, may carry his Money with him, se & sua, id est, bona & catalla sua, or else means the King cannot command their Money without their consent, of which I will speak in its proper place.
By the fundamental Laws and Policy of this Kindom, the sole Interest and Property of the Sea, &c. is in the King; I will not speak of the Original of this Monarchy, this is sit rather for Civilians, Historians, or the Pen of a Divine, than a Judge at Westmister-hall; nor will I speak of the Division of Monarchies. The Poets say, that Saturn was the first Founder of Kingdoms; only this I will say, For the Excellency of the Government of this Kingdom, thro' God's Blessings, that none are more happy than we. Look and see in other Nations, and tell me if you can find out any Place where they can, and do enjoy those Mercies of Peace and Plenty which we do. For as we may justly say, O fortunatus nimium bona si sua nover int Britannos: Nor will I perplex my self with the Original of this Nation and Monarchy. Some Stories are fabulous, and others doubtful, nor any so clear as to set it forth certainly, tho' they speak truly what is sufficient for us to know: Nor is he the poorest Man, qui non potest numer are pecus; nor he one of the worst Gentlemen, that cannot shew the Original of his Pedigree. The Excellency of this Monarchy is sufficient, that it is a Monarchy; and that is most true which Fortescue faith of our Laws and their Excellency: I agree Fortesagree Fortescue was a Lord Chief Justice in H.6. time, but not Chancellor of England. Sea and Land make our Kingdom, and the King is Sponsus Regni. Magdalen College Case, Sir John Davies Report. Stat. 24. H. 8. 25 H. 8. I Eliz. & I Jac. the Soli of the Sea belongs to the King, who is Lord and sole Proprietor of them; and good reason why it should, as is well maintained by Mr. Selden, that worthy and learned Author, and I hope shall be by his Majesty, and maintained with the Soveraign of the Sea, without whose Navy this Authority can do little good.
The King holds his Diadem of God only, all others hold their Lands of him, and he of none but of God only: But this is but to light a Candle for others. From hence only I will observe, that none others can share with him in his absolute Power.
And, as my Brother Hutton said, I conceive it a sit way by Parliament to charge the Subject; and I wish some for their private humour had not sowed the Tares of Discontent in that Field of the Commonwealth, then might we have expected and found good Fruit; but now the best way to redeem this lost Privilege (for which we may give those thanks only) is to give all opportune appearance of obedience and dutifulness unto his Majesty's command.
The Two Houses of Parliament, without the King, cannot make a Law, nor without his Royal consent, declare it: he is not bound to call it but when he pleaseth; nor to continue it but at his pleasure. Certainly there was a King before a Parliament, for how could there else be an Assembly of King, Lords, and Commons? And then what Soveraignty was there in the Kingdom but this? His Power then was limitted by the positive Law; then it cannot be denied, but originally the King had the Soveraignty of the whole Kingdom.
Thirdly, The Law that hath given this Power, hath given means to the King by his Authority to put it in execution. It is a very true Rule, The Law commands nothing to be done, but it permits the ways and means how it may be done, else the Law should be imperfect, lame, and unjust, therefore the Law that hath given the Interest and Soveraignty of desending and governing the Kingdom doth also give the King power to charge his Subjects for the necessary defence and good thereof.
And as the King is bound to desend, so the Subjects are bound to obey. Corbet's Case. For the defence of the Kingdom, the Subjects are bound to obey, and to come out of their own Counties, if occasion be, and to provide Horse and Arms in Foreign Wars, and such as are compellable now to desend, Guns instead of Bows and Arrows, so Munition, as Powder and Shot, &c. Then if the Sea and Land be but one entire Kingdom, and the King Lord of both, the Subject is bound as well for the defence of the Sea as of the Land; and then all are bound to provide Ships, Men, Victuals, and Necessaries for that defence. And for us Islanders, it is most necessary for us to desend our selves at Sea; therefore it was the great Argument in 88. whether it was best to fight with the Royal and invincible Navy or Armado of Spain at Sea, or suffer them to land, and it was resolved clearly, that it was better to fight with them at Sea, tho' we lost the Battle, than our Ships to suffer them to land.
But then there was Hannibal ad portas. To this I shall answer afterwards: But here the Maritine Towns shall not help the Inland, nor the Inland the Maritime, but each of them bear their own charge, and defend themselves; but of this I shall speak hereafter yet undoubtedly.
Now I shall endeavour clearly to prove this by Authority in Law, that there is no express Authority against it, tho' there have been some Books cited by my Brother Hutton, and my Brother Crook, (which I shall answer in their due place amongst other objections) yet there is not one Authority or Opinion, much less Resolution or Judgment, in necessary time of danger, that says the King may not charge the Subject for the defence of the Kingdom.
Secondly, All these Authorities that prove the King is trusted with the defence of the Kingdom, and in diverse cases give him Aids, Taxes, Subsidies, &c. prove that the Subject is bound, in case of danger and necessity, to pay them for the defence of the Kingdom.
Thirdly, all the Authorities of Murage, Pontage, Saltpeter, &c. shew that for the good of the Publick the King is interested in the Estate of the Subjects, and may charge them much more (if for the well-being) than when the being it self of the Common-wealth is at Stake, and in danger.
Fourthly, The Authorities of commanding the Person of the Subject to come out of their own Counties, proves the Power of commanding the Person of the Subject into Foreign Parts, as in the King, much more the Estates of Men should be at his command in case of necessary defence of the Kingdom.
Fifthly, All the Commissions of arraying Men in Ed. I. time, Ed. III. Ed. IV Hen. VII. and Hen. VIII. time, &c, they are all granted upon the same reason, and went out for the necessary defence of the Kingdom; these Precedents are not to command the Person, but a Ship only juxta facultates suas, which are answerable in reason to the ancient Precedents from Authorities. I come to Precedents.
Precedents, though they be not Judgments, yet they shew the practice of the Law, and what better Book have we in the Law than the Book of Precedents? Or what is there of more Authority than that, for we have not the twelve Tables for our Common Law.
The Common Law is but the common usage of the Land, and therefore the Precedents alledged by the King's Council are of good authority to prove the Law in this case, wherein I shall not name the particulars; they have been well remembered by Master Attorney and Master Solicitor; but I will mention the substance of them:
The Council of Enoch in Edgar's time, about 606, 621. mentioned by the learned Antiquary Sir Henry Spelman, fol. 510, and after these follow hae sunt constitutiones, &c. fol. 523. in which are excellent things good for Church and Commonwealth, Cap. 23. Navales Expeditiones, if it be no Act, yet nothing is more like an Act of Parliament; Take the Phrase of those Times, and certainly it was either an Act of Parliament, or a proof of the King's Power, that without Parliament he might charge the Subject for the Defence of the Kingdom in Case of danger, and the word Expedition is used for War, and sometime for an Army, as Cassiodorus, giving the reason of the Navy, says; in the Third place it shews the practice of the Kings of England to charge their Subjects for the defence of the Kingdom in case of danger.
Now, if this charge of Dangil be not taken away by any of the Acts of Parliament, it remains still, says my Brother Hutton, and so I think it doth, or something in lieu of it, for it is not taken away by the Act of Parliament.
- 1. In these Precedents observe, first, That they are all upon the same common Reason that this is.
- 2. These Writs are not limited for their number or time; so that they prove the Power was in the King to charge his Subjects.
- 3. In these Precedents some were to Inland Counties, as Huntington, Bedford, Buckingham, Leicester, Oxford, Berks, &c. and though they went not generally to all Countries at one time, yet they went to them as occasion was; and if the Danger had required, the King, might, if he had pleased, have sent to all, as well as to some.
But because there was never any time when all the Munition in the Kingdom was drawn at One time to One place, may it not therefore be done? The commanding sometimes of One, sometimes of another, is an Argument they may all be commanded, as occasion requires.
I do not build my Opinion upon confused Notions, but on Matters digested, on Precedents of weight, the chiefest in respect of time; and after the making of Magna Charta, 9 Hen. III. m. 48. 18 Hen. III. m. 7. and 13 Edw. III. m. 4. 28. Edw. i. m. 23. and many other in Edw. 1. time, there is proving Contribution towards the maintenance of the Sea-coasts from Inlands, as 25 Edw. 1. m. 13. Abbot of Robertsbridge Case is a ful Precedent, notwithstanding all that hath been said; sp 9 Edw. 11. parte, 1. 20 Edw. II. m. 7. 2 Edw. III. Scot. Roll. 7 Edw. III. m. 9. 10 Edw. III. m. 16, 17. II Edw 12. (14, 15, 16, 18 Edw. III. 46 Edw. III. m 34.) 25 Edw. III. Rot. Francia m. 9. 29. Edw. III. 1. Rich. II. 1 Hen IV. and yet Henry the Fourth has as much reason to please the People as any King of England; so in Hen. V. though busied in the glorious Conquest, or rather Recovery of France. God forbid we should see those times; so in Edw. IV. Hen. VI. Hen. VII. Hen. VIII. by way of offensive War, Writs and Commissions to their Subjects to contribute towards it; so in Queen Elizabeth's time Commissions towards the maintenance of the Kingdom, II Eliz. 41 Eliz. Commission to the Earl of Nottingham, 88. Letters from the Lords of the Council, which Letters had the Queen's Writ, but my Brother Crook answered all these with this Rule of Law, Judicandum est legibus non exemplis; to this I answer him, That Examples and Precedents are good Law, they are Authorities out of the Law, and declare what the Law is, and what of more certainty, Edw.Digest of Writs. These are instaroracula legis, Precedents drawn up by the Clerk sometimes, though they pass sub silentio, yet are they good Authorities in the Law.
I answer, In truth, the Precedents are quite otherways, for ordinary defence they go to Maritine Coasts only: But where the danger is general, to Inland Counties, and after another manner, for this I refer you to my Brother Weston's Argument; these should not be so frequent, for, first, this danger was but seldom.
I answer with my Brother Jones, Bona Corporis are above Bona Fortune, but this Power of the Liberties of the Persons of his Subjects he agrees is in the King, then I say more reason that their Estates should be in his power in this case of necessary defence.
- 1. That the Writ was against the Common Law.
- 2. That it was against the Statute Law.
- 3. Many Inconveniences grow thereby.
First, It is against the Common Law, first, because it is without Precedent, this is the first of this kind since the Conquest, and where there is no Precedent, the Law will not bear it; Littl. fol. 32. My Lord Coke's Commentaries upon it puts divers Cases to the same purpose.
The Second Objection is, that it is against the freedom of the Subject, that hath a true property in his Goods, which cannot be taken away without his actual or implied consent, Lambert, fol. 294. Fortescue Magna Charta, 17 King John, Matthew Paris, fol. 242. Fortescue, 9 Chap. 13. &c. 13 Hen. IV. Chamberlain of London's Case, Register, fol. 127. Fitz. N. B. &c.
I answer, That that Authority of Lambert, rehearsing the Laws of the Conquerour, is Volumus & concedimus, ut omnes liberi homines totius Monarchiœ Regni nostri habeant & teneant terr as suas & possessiones suas bene & in pace liberos ab omni injusta exactione & ab omni Tallagio, it a quod nihil exigatur out capiatur nisi per Commune Consilium, &c. it cannot be construed that they should not be charged, but that they should be free from all unjust Taxes; The King is not concluded by the subsequent words, omne tallagium, this cannot be so general but the King may impose just charges towards the necessary defence of the whole Kingdom, for this is meant plainly by the word Tallage, it appears Tallagium is derived from a French word, and is indeed a cutting word, and therefore injusta exactio, which shews that for the most part it is taken in the worst sense, and as my Brother Crook said it, and the manner of expounding it must be from the Law.
Secondly, My Brother Crook quite left out these words following, (that declare and expound the former) viz. Statuimus & firmiter pr&cipimus, ut omnes liberi homines totius Regni prœdict. sint fratres conjurati ad Monarchiam nostram, & ad Regnum nostrum pro viribus suis & facultatibus, contra inimicos proposse suo defendendum & viriliter servandum, &c, whereby it is apparent, first, that the Kingdom is to be defended by the whole Kingdom pro facultatibus, with their Goods, as well as viribus, by their Persons.
Secondly, It comes after the Chapter of Tenures, and Services, by which they are bound to defend terr as & honores suos, &c. which shews that he meant not to free any from the charge of defending of the Kingdom in case of necessity.
I answer, the Words are concerning the defence of his own Person and Kingdom, and therefore it is accepted, nisi ad redimendum corpus nostrum; and in the Original Act these Words are left out, Scutage, Murage; and other Aids there mentioned, shew, that only those were meant that were of private benefit, and were not to be imposed by the King upon his Subjects without Parliament, but not to bar himself for the Publick good.
Before I come to the Words themselves, note, first, the Time when he wrote that Book; It was after all the Acts of Parliament that took away the Regal Power, yet it mentioneth not them, so as is must needs relate to the Common Law, it was writ when the Civil Wars were between the two Houses, and himself in exile, no time was it then to displease the People.
The Words that seem to be against this charge are in Fortescue 9. cap. 26. Rex Angliœ Politicœ imperans genti suœ, nec legem ipse sine subditorum assensu mutare poterit, nec subjectum populum renitentem oner are impositionibus peregrinis, Cap. 13, fol. 32. Rex caput corporis politici mutare non potest leges Corporis illius nec ejusdem populi substantias proprias subtrahere reclamantibus eis aut invitis; & Cap. 39. fol. 84. which my Brother Crook says, is the express Authority in hoc individuo. The Words are, Neque Rex Regno Angliœ ibidem per se aut Ministros Tallagia, Subsidia aut quœvis Onera alia imponit ligeis suis, aut leges eorum mutat vel novas condidit, fine concessione vel assensu totius Regni sui in Parliamento suo expresso, &c.
From them all I take the true meaning of him to be, and I hold, first, that the Kingdom ought to be governed by the positive Laws of the Land, and that the King cannot change nor make new Laws with out a Parliament.
First, I say, all private property must give way to the publick, and therefore a trespass to private Men is punished by Indictment, because it is an offence of the Publick Weal, and through every Man hath a property in his Goods, yet he must not use them to the detriment of the Commonwealth; a Man may give his Grass or Corn when it grows, or when it is in his Barn, but if he will cut it unusefully, or burn or destroy his Corn, or if he throw his Goods into the Sea that they may perish, these are crimes punishable by the Common Law; so transporting of Commodities against the Publick good; therefore the direction of those Statutes for restraint hereof are from the Common Law, and the reason of this is, because the Publick property must take place, and is in petty business it may be, then much more in time of publick and great necessity and danger, and it is rather an averment of the Subjects property, that in case of necessity only they may be taken away, than contrary to it.
What he hath done is well known, and I dare confidently say, all hath been spent without any account to himself, and that his Majesty hath been at great charge besides towards the same purpose; and I heard it from his own Royal Mouth, he spake it to me and my Lord Bramston, that can testifie as much, that he said, it never enter'd into his heart to make such use of it, and said, he was bound in conscience to convert it to that use it was received for, and none other, and that he would sooner eat the Money, than convert it to his own private use, therefore he that thinks the King makes a Revenue of it, doth highly slander his Majesty; but let Kings be as David was, Men after God's own heart, yet they will not want a Shimei to rail on them.
But though, blessed be God, his Majesty is so gracious and loving to his Subjects, and so just, that we need not fear that he will charge them but upon urgent necessity, we know not what succeeding Ages may do.
It is not well to blast succeeding Ages, and if they should hereafter charge unreasonably without cause, yet this Judgment warrants no such thing; Again, it is no Argument to condemn the true use, because it may be abused; and again the Law implies as great trust in the King as this, the King may pardon all Offences, but if he should, then none could be safe, the King may make Peace and War at his pleasure, but yet should he make Peace when Peace would ruine us, or War when War would undo us, it would be worse than this; therefore it cannot be suspected that the King would do any thing against Law and the Publick good of the Kingdom, therefore the Law says, The King can do no wrong, for he is Sponsus Regni, as in Magdalen College Case.
The Record of 14 Rich. II. Rot. 60. Laever's Case in the King's Bench in an Action of Trespass for taking away his Goods without his consent, had Judgment to recover in Durham; but the Case was, One Leaver of the Town of Durham, Plaintiff, brought his Action against another for entring into his house, and taking away his Goods, and sixty pounds of Money; the Defendant pleaded Not guilty, and the Jury found upon a special Verdict, that the Defendant took away his Money; but upon this occasion: The Scots had invaded the Realm, and were in Durham, and would not be gone without a certain Sum of Money, whereupon the Inhabitants assembled, and amongst the rest the Plaintiff was one, and they made an Order to abide the Ordinance of the greater part, which was to give the Scots the Money desired, and because the Money was to be paid present down, therefore they made another Order to search in all Mens houses, and to take away what Money they found; according to which the Defendant searched the Plaintiff's House, and took away Sixty Pounds, and because it was without consent, the Plaintiff had Judgment to recover in Durham, but upon special Verdict it was reversed in the King's Bench, because with his consent. Indeed the Reasons were (I.) Because he had sufficient remedy against the Commonalty. (2.) He did it as a Servant.
Another Objection made by my Brother Crook was 2 Rich II. parte prima, where all the Lords and Sages met together after Parliament, and it was agreed by the Lords, that they could not charge without Parliament; this was a Declaration of the Law in Parliament, and an Act of Parliament, &c.
Thirdly, It is no Precedent of a good Book; it was when the King was Young, and the Parliament had the Regency; Counsellors, Treasures, and all his Officers about his Person were chose by Parliament, and therefore no wonder they endeavoured to please the Parliament.
Though Subjects may be charged for necessary defence of the Kingdom, yet if Foreign-Wars be together with them, it is otherways,and therefore in the Parliament before such charge belongs not to them, and therefore they hold they ought not to bear it; and so that Rule of Gascoigne, 24 Hen. IV. fol. 4. And no Man shall be charged without Parliament, where Bulwarks were built, &c. it proves not, tho' it implies, that if it had concerned the Kingdom, it had been otherwise.
The next Objection was, the great Inconvenience that would hereupon ensue: If such a charge may be, then none knows what this charge will be, for the King may command it as often as he pleaseth, an example hereof they put of Dane-gelt, that in 11 Years grew from 12000 l. to 48000 l. therefore the Law hath provided against that incertainty, and limitted it to a Parliament.
I answer to this, that is the danger increase, so must the charge; again, the King may command all Persons when, and as often as he pleases he may do it; Is not this a great Inconvenience? And yet that abates not the Writ; my Brother Crook shewed how Subsidies increased, and yet no inconvenience in that he conceived; and indeed this shews the provision of charge must be according to the danger.
Thirdly, We cannot suspect that there will be such abuse, Ubi confidit Deus & Lex, & nos etiam considemus, God and the Law hath trusted his Majesty, and we should not distrust him: in time of imminent danger, temporibelli, any thing, and by any Man may be done, Murder cannot be punished; yet says my Brother Crook, the King cannot charge his Subjects in no case without a Parliament, no, not when the Kingdom is invaded actually by the Enemy; but truly, as I think, he was the first, so I think he will be last of that opinion; especially having delivered that the King is sole Judge of the danger before, as indeed he is, and the King is sole Judge of the danger, not any have denied it, and therefore else it should be no danger but when every one shall say you shall judge that the Kingdom is in danger.
In time of War, when the course of Law is stopped, when Judges have no power or place, when the Courts of Justice may send out no Process, in this case the King may charge his Subject, you grant; mark what you grant, when there is such a confusion as no Law, then the King may do it, dato uno absurdo infinita sequuntur.
2. There may be time of War in one part of the Kingdom, and the Courts of Justice may fit; as in the 14 Hen. III. Rich. II. Hen. VII. time War was in some part of the Land, yet the Judges fate at Westminster Hall.
- 1. Now whether a danger be to all the Kingdom, or to a part, they are alike perillous, and all ought to be charged.
- 2. The King may charge the Subjects for the defence of the Land, and now the Land and the Sea make but one intire Kingdom, and there is but one Lord of both, and the King bound to defend both.
- 3. Expectancy of danger, I hold, is sufficient ground for the King to charge his Subjects; for if we stay till the danger come, it will be then too late, it may be.
- 4. And his averment of the danger is not traversable; it must be binding, when he perceives and says there is a danger; and in 88 the Enemy had been upon us, if it had not been foreseen, and provided for before it came: but I will not determine the danger now, do we not see our Potent Neighbours, and our great Enemies heretofore, were they not prepared for War? And was there not another Navy floated upon the Sea? And was not the Dominion of the Sea threatned to be taken away? As long as this danger remains, I shall bless God for such a King as will provide for the defence of the Kingdom timely, and rejoyce to see such a Navy as other Nations must veil to, and we are not in case without it, and should lose our glory besides.
The next Objection of my Brother Crook was, that there is a means provided by Parliament, which will not with-hold Aid for the defence of the Kingdom, and it were a sin to deny it in case of necessity.
And in Ed. I. time Ed. II. & 4 Ed. III. a Parliament was to be held every Year for the defence of the Kingdom, & propter ardua Regni. I answer, that might well be; but then in the time of Ed. I. Ed. III. there were Pleas in Parliament, but those are now laid aside, and that the Subjects ought to give the King Susidies; I will not say, that inferring that they will not do it, nor am I apt to be believe it; but I hold Parliaments are the excellent means for the defence of the Kingdom, and yet they are not the only means, for then the Parliament, and not the King, should be the sole Judge, and have the defence of the Realm, or else it should give the King a charge of defence without power and means.
The Statutes of Tonnage and Poundage to the King for and towards the defence of the Seas, and the other Acts of Parliament that restrain the King's Power, so that now he cannot charge the Subject without his consent in Parliament; I shall answer in the next place, and before I come to the particular Acts, I will shew you what, in my opinion, they may do.
Acts of Parliament may take away Flowers and Ornaments of the Crown, but not the Crown itself; they cannot bar a Succession, nor can they be attainted by them; and Acts that bar them of possession are void.
Secondly, No Act of Parliament can bar a King of his Regality, as that no Lands should hold of him, or bar him of the Allegiance of his Subjects, or the relative on his part, as trust and power to defend his People; Therefore Acts of Parliament to take away his Royal Power in the defence of his Kingdoms are void, (as my Lord Chief Baron said) they are void, Acts of Parliament to bind the King not to command the Subjects their Persons and Goods, I say their Money too, for no Act of Parliament makes any difference. Now to the particular Statutes objected.
First, 25 Ed. I. cap. 5. confirmatio cartand. the words are these, Aids or Taxes granted to the King shall not be taken for a Custom or Precedent, and Cap. 6. Moreover, we have granted for us and our Heirs, that for no business from henceforth we shall take such manner of Aids, Taxes, nor Prizes due and accustomed; and Cap. 7. a Release of Toll upon every Sack of Wooll, and grant, that we will not take such things without their common assent and good liking, saving to us and our Heirs the Customs granted by the Commons aforesaid.
First, These words must have relation to the Aids before, and there be divers Aids, as some by Tallage, some by way of Prize, of Goods, and Ransom of his Majesty's Person, &c. the King thereupon makes this grant, which hath relation to such Aids as were granted voluntarily. Secondly, ancient Aids are there reserved as redeeming of the King's Body pur faire faitz Chevalier & pur Marrier son filius Eigne, and to all other ancient Aids which are to be understood with an ad redemendum corpus, &c.
And to the Statute De Tallagio non concedendo in some Books, it is not in Print, but mentioned in Magna Charta, Rastal, and Petition of Right, 3 Car. 1628. to be in 24 and 25 Edw. I. and therefore I answer, first, It is not in the Parliament Roll; and there is variance about it, and therefore it is but an Abstract, and no substantial Statute.
That tho' it be but temporary in some parts, yet it is binding only secundum Subjectam materiam. And the words are general, as in the other Statute De Tallagio; besides the Practice in that King's Time and after, best interpret it.
2 H.4. m. 2. which is absolute in the point, faith my Brother Crook, where a Commission went forth for the Defence of the Sea, whereof complaint was made in Parliament, with desire that it might be repealed, and it was so.
I am of the contrary opinion, for the Petition was, that it might be released; and the Answer was but this, That it should, but the king would treat with his Council about it; and it was but a Repeal of his Commission then only.
I. R. 3. c. 2. where the king grants, that he would not hereafter charge them by Benevolence, or any such Charge, but that they should be dampned by the Law, by no such Charge or Imposition, (i. e.) by no such Charge of Money.
The Statute of Tonnage and Poundage granted for the defence of the Sea; the Words are, That no Tallage or Aid shall be without Act of Parliament. Secondly, That the King hath means to defend the Realm, with a Protestation not to draw it into an Example. 4. 13 Hen. 4. Parl. Rol. No. 10.
I will not argue whether Tonnage and Poundage was before this Act of Parliament, nor that, time out of Mind, they were granted unto the King: But my Answer is, That they are only for the ordinary Defence of the Sea, and the Protestation of 4 H. 4. is a Protestation of the Commons, and this Charge is not taken away thereby; and Tonnage and Poundage is for and towards the Defence of the Sea. So all the Acts are; and so I agree. But for Extraordinaries, and but solely in case of danger of the whole Kingdom, that they should not be granted, cannot be collected out of those Grants.
I was then Speaker of the Lower House, and have Reason to remember what then was made; and I say, First, That there is no mention of this Case; Secondly, There was no new thing granted, but only the ancient Liberties confirmed, taking notice of the Protestations of the Commons, not to bind the King for his ancient Right.
3. Look upon the Prayer, what is desired, and the main scope was first generally against Loans, and this could not be included in these words: Secondly, Imprisonment without Cause: Thirdly, Billeting of Soldiers: 4. Mariners lying within the Land.
1. The Command to charge the Sheriff to levy and assess Money according to his discretion, which is not legal, for that the Sheriff should make it per Sacramentum, by the Oath of a Jury, as in the Writs of Partition, Distribution, per Rata, &c.
The Assessment of the Sheriff is not warranted by the Precedents; they do it not upon their Knowledge, but Presumption of Mens Estates: and from thence they speak against the too vast power given to the Sheriff to inhance it as they please.
I answer, first, to the Assessment per Sacram. No reason why it should be here; for it is not done in the Commissions to levy Subsidies, much less should it be done here for a matter of great haste. And besides the Sheriff is trusted with more, for he hath the trust of the whole County, and takes an Oath to execute his Office justly, whereof this is one part.
As to this they say, there is no Precedent for it. First, I say, That there is no Precedent, that it hath been done by Jury, but always by the Sheriff, or such whom the King was pleased to trust; and since one must be trusted, none more fit than he.
Thirdly, I say, the Writ leads not the Assessment, it commands the Ships to be provided, so if that be done, there is no necessity of an Assessment, And if the Towns and Counties say they will provide a Ship, and do it, then no Assessment requisite: But if they do it not, then the Sheriff is to levy it, that the Defence may be seasonable, so as the Clause of Assessment shews the Manner of it; when a Multitude is to join, none more fit than he to do it, and no way better to write to him to do it, according to Mens Abilities.
Fourthly, the Clause of Assessment is not only to the Sheriff, but to the Head Officer of the Town and Burrough; and tho' the discretion of the Cause be to the Sheriff, yet it a appears not that it is limitted to him solely.
As to the inequality of it, Mr.Hampden had the least Cause of any Man in England to complain, considering how he was rated. Again, All that the Writ commands is but an Assessment, juxta facultates fuas it a quod omnes, &c. And if the Sheriff do otherwise, and wrong the Subjects, he is answerable, by diversancient Precedents,it appears thatwhere the Sheriffs have been faulty this way, they have been punished. And Sir Walter Norton's Case, now depending in the Star-chamber,concerns this, for this abuse in levying this Charge, being High-Sheriff of Lincolnshire.
Truly, I think, as my Lord Chief Baron said, if there had not been an inequality by the abuse of the Assesses, the Charge had not been complained of; yet the like inequality is in Subsidies, and this is no just cause of exception against it, but of accusation against the Sheriff, who is to answer it.
And I can say truly, that his Majesty hath been very careful to prevent and remedy the abuses herein, and hath often fate daily present inCouncil Chamber to give his advice herein himself, and upon his Command Reformation hath been in divers places, and it hath been given in charge to all his Judges in their Circuits, toendeavour the same in all parts; and I my self, by his Command, have rectified Rates in this kind unequal; and I doubt not, if necessity of Danger shall still require it, or again it may hereafter be done with all equity.
Second Objection, That the Sheriff cannot Tax himself, for then he should be Judge and Party in one Cause; nor can he commit himself; and if he be omitted out of the Assessment, then it cannot be equal, nor cannot be according to the Writ that commands all should be assessed according to their abilities rateably.
I answer, This prima facie carries some shew in it, but examine Causes of less consequence, and it is easily answered: The Justices of Peace in levying of Subsidies, make Rates for themselves, the Commissioners of Sewers tax their own Lands, and so if by Jurors it were done, it would be the like; there must be either new Assessors appointed, or they them-selves must do it; that would bring delays, and this requires haste and expedition, and therefore fittest for this business. Authorities in Law there are divers herein, as the Writ for levying Expences for Knights of the Shire, Direction is to the Sheriff to do it, who assesses himself, and yet he is to execute it. So in a Writ of Discovery de bonis Inhabitantium, the Sheriff is chargeable with his part, yet to execute it; if a Fine be laid upon the whole County, he levies it, yet is chargeable with his part to wards it.
What difference there is inter probos homines, between Inland Counties and Maritine Counties, I know not. The 24 of Edward the Third, a Writ whereby they were charged in case of Necessity, as to Yarmouth, it was probis hominibus, &c.; true, a Grant by the King probis hominibus, generally is void, 1 Hen. 7. Dier. Philip. & Mar. 7 Eliz. 4. 14.
But a Commission or Writ to assess them good enough probi homines, that they know not nor see not, it is not material; for that would make them sole Judge of the danger, when as the King only is, and this is not traversable neither.
The Writ commands Inland Counties to find a Ship and Mariners, which is impossible, and Lex non cogit ad impossibilia, and for this my Brother Crook put the Common Cases that general return 49 Edw. 3. 6. and Impossibilities are void, but a Covenant for impossible things is void, but a Bond may be good.
I answer now to the point of Impossibility, and possibly the Ship may be built in an Inland County, though to carry it to Portsmouth is impossible, but it is possible to provide a Ship and Mariners, as the Writ commands, which may very well be done with Money.
I answer, We have the like occasion of Ploughs and Husbandry in Kent, and we have many places no Maritine Towns; some lie 20 miles from the Sea, and yet we are justly charged to find a Ship; Precedents we have as well as you in Oxfordshire and Buckinghamshire, or else none should be charged but Port Towns, and in particular no Law or Statute to exempt them; until Alfred's time there was no distinction of Maritine or Inland Counties, for then all England was but one Maritine County.
The Payment of Soldiers Wages for 26 Weeks to be in the King's Service, is against many Precedents, as 16 Edw. 2. 10 Edw. 3. and intirely for Wages to be paid by the County, is against all the Precedents, and Tenants by Knights Service after 40 days, are to be paid by the King: and other Precedents my Brother Crook cited, when divers refused to go out of their own County till paid, and order taken for their Pay by the King. And whereas the Counties had given Bond for payment of Soldiers Wages, they were cancelled, and Order made in Parliament that Soldiers should be at the King's Pay; 2 Edw. 3. 16, 18 Edw. 3. cap. 7. &c.
These are easily answered, for these Precedents prove no more than payment of Wages defacto, and so the King may pay it where it is not due;and for their refusal, I have nothing to do with that now: but 10Ed. 3. m. 2. there is mention made of Berkshire Men commanded to carry their Soldiers out of their own County at their own Costs, and when the Soldiers resused to go thence, no charge or payment; for Soldiers used to be paid by their County as in that case, and they were forced to go, and did go, and did stay there three Years; so 13 Ed. 3. m 8.
1 Edw. 3. m. 14. none compelled to go out of their County without Wages paid, 18 Edw. 3.m.6,7. That none should go out of the Inland Counties, and not only those that had Offices and Patents to serve the King, but all with this Proviso, that the King should pay them their Wages.
18 Edw. 3.It is expressed in the Act, when they go to the King's Wars out of the Kingdom, 18, 19 Henr. 7. &c. These are all but declarative to the common Law, Corbet's Case, the Reason is because Legeance of the Subject is not natural, but local.
But that the King shall give Wages within this Kingdom, there is no Act of Parliament for it now; it was resolved in the Exchequer, that the Sea and Land made but one entire Kingdom, and so no going out of the Kingdom here, and consequently, the payment of the Soldiers Wages within the Kingdom is not against Law.
As touching the Objection of the Nobility, that they are privileged from Imprisonment, it might well have been spared, and I know not wherefore it was spoken, unless to make them think they were more interested than the rest of his Majesty's Subjects in this case.
Of this there is little doubt, nothing more frequent for the Certiorar' to issue out of the Chancery to two Parties, as to the Executors or the Judge that took the Fine and is removed, and so upon Commission to take a Fine by Dedimus potestatem; in this Case the Writ is inter brevia retornabilia, and this must remain with the old Sheriff, and are never delivered over by the Jury to the new Sheriff. In Hubbart's Case in the King's Bench, being convict of Heresie before Sir Julius Cesar Judge of the Admiralty, certificate to him, after Master of the Rolls, and directed to him; so in case of my Lord Paget.
I answer, It doth sufficiently appear that Mr. Hampden was Ter-tenant, for that the Certiorar' is to the Sheriff, who certisieth that he was Tenant, for it is in pursuance of the Writ; the words are, Virtute brevis Domini Regis huic Schedul' annex' certisico quod virtute & secundum epigentiam, &c. Assessani Anglice have assessed super seperales homines & terratenentes Comitat' Bucks. predict. quorum nomina subscribuntur, &c. it relates to the place there, Tenants in the County of Bucks, and makes Mr. Hampden one, and this in Business of Kinghthood was done, and in no other manner.
Exceptions to the Scire fac'; as, First, that the King is not entituled to bring the Scire fac': so there is no cui oneretur, to whom he should pay the Money, for whose good or benefit Mr.Hampden should satisfie the Money assessed.
I answer, The King is interessed in all actions of publickgood, and shall recover accordingly, as in Cases of High-way, Pontage, Murage, &c. much more when it is for the General defence of the Realm; first, in quare impedit, between Two common Persons, tho' the King be neither Plaintiff nor Defendant, yet the King shall recover therein. Many times in Case of a Common Informer, the King recovers the One Moiety, though not Party. So it was in the Case of Kinghthood, though no Suit was depending. Again, all Writs in the Kingdom are the King's Writs, though no Fine; much more here for the defence of the Realm; and it is usual for the King's Attorney to compel Men to perform charitable uses, and the King may question any one for them in the Case of Aurum Regine, by process out of the Exchequer. Again, Where it is said, Quare ipse de predicta summa super ipsum Assess. & non solut' in Schedula prad' Spec' onerari, & inde satisfac' debeat prout ulterius sibi pr&ceptum, &c. For though the Writ be in the King's Name, yet it is but for the performance of the Work and Charge; and though it appears not who were Collectors or Assessors, yet it appears it was done.
Upon publick Service Process goes forth in the King's Name, but it is not then so fit it should be expressed in particular for the King, when as it is for the general good only. Was not the Record made by my Brother Denham, though none more constantly or chearfully did subscribe to his Majesty's Letter; neither was the Scire fac' without his advice, being the aptest course, and better than Trespass.
But the Objection that he made was, That the King cannot do any wrong, nor take without Record; as in Seizure, upon Outlawry, Attainder, or the like: and in this Case there is no Record upon the Writ, 4.Ang. no Judgment, &c.
I answer, This Scire fac' is not annexed to the Writ, &c. as a new Action, that Mr.Hampden, oneretur & inde satisfaciet, and after that Judgment upon the Writ, and upon his saying nothing why revocetur, there shall be a good Record upon which he shall be charged, 3 Q. Eliz. L. Dier, 156. Ignoramus is sufficient title for the King, and ground for a melius inquirend'.
Ianswer, A Scire fac' upon a Recognizance will lie in Chancery, but upon the Record there, yet in a Debt, often an Action of Debt lies upon the Tenor of a Record, 39 Hen. 6. the doubt was because the Party might be subject to a double Execution, else one upon the Record there, and another upon the Tenor of the Record in another Court, 33 Edw. 3. title tenure by transcript 8 Hen. 5. F. H. Error' Scire facias Register, fol. 51. Record was before the Justices of the King's Bench, the Tenure was out of the Treasury to the Barons of the Exchequer, and it is the usual Order, if Recognizance be forfeited, to certifie the Tenor of the Recognizance; so of a Fine of Amerciament, &c. to certifie the Transcript: So the Transcript was sent from Ireland upon an Act of Parliament, a Scire fac' thereupon went against Hebron Baron in England; so in Debt upon the Transcript of a Record from Ireland, a Scire fac' here went forth.
Objected it was in the last place by my Lord Chief Baron, that Judgment in this Case would be fruitless, and none should take benefit by it upon this Record, and he puts divers Cases wherein Judgment in such Case ought not to pass.
I answer, My Lord Chif Baron, with a Judgment of his own Case of Knighthood, resolved here in this Court; the Case was this, The King by Writ 5 Januarii, in the first of the King's Majesty's Reign, commanded the Sheriff of Barksbire, that all that had 40l. a Year, should be in the Chancery 31 Januarii following, and to take upon them the Order of Kinghthood, Sir Jo. Darrel Sheriff of Barksbire, made his return (as the Sheriff of Buckingham here) all that are not Knights under the name of Illorum, and fets down their names; Mittimus thereupon went out of the Chancery, reciting the Substance of the former Writ, Vobis mittimus presentibus, &c. with a Clause to enquire after such as were not returned, and to Fine them; and upon this Writ of Distringas to the Sheriff, my Lord Chief Baron and my Brother Denham known what Judgment was given; wherein I observe,
- 1. Not the Record, but the Tenor of the Record, was sent into the Exchequer, yet returnable in the Chancery.
- 2. For returning the Names of the Defaulters, done there as here.
- 3. Upon the Distinguas thereupon, was had Execution, much more then here upon the Scire fac'.
- 4. There was no more Judgment of Record to warrant it than here in this.
Now I come to conclude, I have been somewhat too bold in taking more time than is usual, but I did it to satisfie my own heart, according to which I must give my Judgment. What I have omitted, I refer to the rest of my Brothers that went before me, and to my Lord Chief Justice that comes after me. The Reasons I shewed you whereupon I conceive by the Common Law and Fundamental Policies of this Kingdom, that the King may charge his Subjects for the defence of this Kingdom; and that the King charge his subjects to contribute towards the defence thereof when it is danger; and I hold that the King is sole Judge of the danger, and ought to direct the means of defence: and therefore this Writ of Scire fac' and all the Proceedings in this Case, are well grounded according to Law. My Opinion therefore is, that Mr. Hampden shall be charged with the 20 s. assesses; and that my Lord Chief Baron ought to give Judgment accordingly.
Edward Hide Esq; afterwards Lord Chancellor of England, his Speech in Parliament at the carrying up to the Lords the Opinion of the House of Commons in the Cafe of Ship-money.
There cannot be a greater Instance of a sick and languishing Commonwealth, then the business of this Day. Good God! how have the Guilty these late Years been punished, when the Judges themselves have been such Delinquents?' T is no marvel that an irregular, extravagant Arbitrary Power, like a Torrent, hath broke in upon us, when our Banks, and our Bulwarks, the Laws, were in the Custody of such Persons. Men who had lost their Innocence could not preserve their Courage, nor could we look that they who had so visibly undone us themselves, should have the Virtue or Credit to rescue us from the Oppression of other Men. It was said by one who always spoke excellently, that the Twelve Judges were like the Twelve Lions under the Throne of Solomon, under the Throne in Obedience, but yet Lions: Your Lordships shall this Day hear of Six who (be they what they will be else) were no Lions, who upon vulgar fears deliver'd up the precious Forts they were trusted with, almost without assault; and in a tame, easy Trance of Flattery and Servitude, lost and forfeited (shamefully forfeited) that Reputation, A we, and Reverence, which the Wisdom, Courage, and Gravity of their Venerable Predecessors had contracted and fastned to the Places they now hold, and even rendred that Study and Profession, which in all Ages hath been, and I hope now shall be of an Honourable Estimation, so contemptible and vile, that had not this blessed Day come, all Men would have had that quarrel to the Law it self, which Marcious had to the Greek Tongue, who thought it a Mockery to learn that Language, the Masters whereof lived in Bondage under others. And I appeal to these Unhappy Gentlemen themselves, with what a strange Negligence, Scorn, and Indignation, the Faces of all Men, even of the Meanest, have been directed towards them, since (to call it no worse) that satal Declension of their Understandings in those Judgments of which they stand here charged before your Lordships.
It is in your Lordships Power (and i am sure it is in your Lordships Will) to restore the dejected broken People of this Island to their former Joy and Security, the Successors of these Men to their own Privilege and Veneration: Et sepultas prope leges revocare.
So these Judges enter themselves and harden their Hearts by more particular Trespasses upon the Law: By Impositions and Taxes upon the Merchants in Trade; By Burdens and Pressures upon the Gentry in Knighthood, before they could arrive at that universal Destruction of the Kingdom by Ship-money, which promised reward and security for all their former Services, by doing the Work of a Parliament to his Majesty in Supplies, and seemed to delude justice, and leaving none to judge them, by making the whole Kingdom party to their oppression.
My Lords, the commons assembled in Parliament hope that your Lordships will call these Judges speedily before you to answer these Articles laid to their charge, that the Nation may be satisfied in your Lordships Justice upon them, as their Crimes demerit.
A Letter of the Tenor following was written to the Lord Mayor and Sheriffs of the City of London.
After, &c. Whereas his Majesty hath sent you his Writ to provide two Ships 560 Tuns a piece, beside Tonnage, to be furnished with Men, Tackle, Munition, Victual, and other necessaries, to set forth for the safeguard of the Seas, and defence of the Realm, at the charges of the City of London and the Liberty thereof; And by the said Writ hath commanded that you shall without delay make an Assessment, and after proceed on in the further execution of that Service, as by the said Writ appeareth: We are by his Majesty's direction and express Comandment to let you know, that he hath upon important and weighty Reasons, concerning not only his Majesty's own Honour, and the ancient Renown of this Nation, but the safety of yourselves, and all his Subjects in these troublesome and Warlike times, sent out the aforesaid Writ to you, and like unto all other counties, Cities, and Towns throughout the whole Kingdom, that as all are concerned in the mutual defence one of another, so all might put to their helping hand for the making of such Preparations as (by the blessing of God) may secure this Realm against those Dangers and Extremities which have distressed other Nations, and are the common Effects of War, whensoever it taketh a People unprepared. And therefore as his Majesty doubteth not of the readiness of all his Subjects, to contribute thereunto with chearfulness and alacrity (wherein the City of London, as being the most eminent place, ought to give example to all the rest) so he doth especially require your care and diligence in the ordering of this business so much concerning his Majesty and all his People, that no inequality or other miscarriage may either retard or disgrace the Service, which in it self is so just, honourable, and necessary. For which cause we have, by his Majesty's directions sent you, together with the said Writ, these ensuing Advices and Instructions, for your better proceedings.
- I. Therefore, because perhaps you are not throughly acquainted with the Charge of such Maritine Preparations, and the mistaking thereof might hinder the Service: We have though good to let you know, that upon a due and just Calculation, we find, that the charge of two Ships of that burthen, so manned and furnished, will be 14000 1.which you are to levy according to his Majesty's desire, and the intention of this Board, with as much equality and indifferency as possibly you may, using the Power given you by the said Writ, with such moderation as may occasion the greater readiness in all to contribute, and may give no cause to any to grudge or repine for any partiality or inequality in the Assessments.
- II. When you have settled the General Assessment, we think fit that you should subdivide the same, and make the particular Assessments in such sort as other common Payments upon that City and the Liberties thereof are most usually subdivided and assessed.
- III. And to the End this may be effected with more Equality and Expedition, you may give direction to the Aldermen in their several Wards, and their Deputies, and send forth your Warrants to the Constables of the several Precincts, requiring them to call unto them some of the most discreet and sufficient Men of every Precinct, to consider with them how the sum charged upon each Precinct may be distributed and divided with most equality and indifferency, and to return the same to you in Writing under their Hands, with all possible expedition. Which being done, you are to sign the Assessment set on the several Persons of every particular Parish, if you approve thereof. And if for inequality you find cause to alter the same in any part, yet after it is so altered, you are to sign the same, and keeping a true Copy thereof, you may thereupon give order for the speedy Collecting and Levying of such sums accordingly, by such as are usually imployed for Collections of other common Charges and Payments. And when any shall be by them returned to you, either to have refused or neglected to make payment, you are without delay to execute the Writ upon them, causing Distresses to be taken of them, and to be sold for payment of their Assessments, and the just Charges thereupon arising, and the Overplus of the Distresses to be rendered back. In the said several Assessments of each Parish, you are to cause to be particularly expressed, how much every Clergy-man is rated, &c. As in the Fourth Instruction of the Letter entered at large.
- IV. As in the Fifth Instruction of the Letter aforesaid.
- V. If any Constables or other Officers refuse and neglect to do their Duties, &c. as in the Sixth Instruction of the said Letter at large.
- VI. If you find or understand of any Persons that are refractory, or that do unnecessarily delay the payment of what shall be assessed upon them for the said Service,(whereof you must frequently and often call for an Accompt from the Constables, Officers, and others intrusted under you) you are presently, without any delay, partiality, or respect of Persons, to proceed roundly with them (of what Quality or Condition soever they are) according to his Majesty's Writ, and not to defer meddling with them to the last, or until others have paid, as was done by some sheriffs of Counties in former Years, whereby all the trouble and burthen was cast upon the end of the Year: and those that were refractory gained time above those that were well-affected to the said Service.
- VII. Lastly, and for all other matters not particularly mentioned in these Instructions, you must upon all Occurrences govern your selves according to the Writ to you directed, and as may best accomplish the service committed to your, trust, wherein you are to use all possible diligence to effect the same with speed, that the Money for this Service may be timely collected and paid, as that provisions may be seasonably bought and provided, to furnish and set forth the Fleet at the day expressed in his Majesty's Writ. And as you shall herein perform your duties with diligence, you may be assured to recover both savour and thanks from his Majesty. And so we bid, &c.
The Substance of the Lord Falkland's Speech in Parliament, concerning Ship-money.
The Constitution of this Common-wealth hath established, or rather endeavoured to establish to us the Security of our Goods, and the Security of those Laws which would secure us and our Goods, by appointing for us Judges, so settled, so sworn, that there can be no oppression, but they of necessity must be accessary; since if they neither deny nor delay us Justice, which neither for the great nor little Seal, they ought to do; the greatest Person in this Kingdom cannot continue the least violence upon the meanest. But this Security hath been almost our ruine; for it hath been turned, or rather turned itself, into a Battery against us: and those persons who should have been as Dogs to defend the Sheep, have been as Wolves to worry them.
These Judges, to instance not them only, but their greatest crime, have delivered an Opinion, and Judgment in an extrajudicial manner, that is, such as came not within their cognizance, they being Judges, and neither Philosophers, nor Politicians. In which when that is so absolute and evident, the Law of the Land ceases; and of general Reason and Equity, by which particular Laws at first were framed, returns to his Throne and Government, where Salus Populi becomes not only Suprema, but sola lex; at which, and to which end, whatsoever should dispence with the King, to make use of any Money, dispences with us to make use of his, and one another's. In this Judgment they contradicted both many and learned Acts and Declarations of Parliaments; and those in this very Case, in this very Reign: So that for them, they needed to have consulted with no other Record, but with their Memories.
2. They have contradicted apparent Evidences, by supposing mighty and eminent dangers, in the most serence, quiet, and halcion days that could possibly be imagined, a few contemptible Pirats, being our most formidable Enemies, and there being neither Prince nor State, with whom we had not either Alliance, or Amity, or both.
3. They contradict the Writ it self, by supposing that supposed danger to be so sudden, that it would not stay for a Parliament, which required but Forty days stay, and the Writ being in no such haste, but being content to stay Seven times over.
It seemed generally strange, that they saw not the Law which all Men else saw, but themselves. Yet though this begot the more general wonder, three other particulars begot the more general indignation.
When they had allowed to the King, the Sole Power in Necessity, the Sole Judgment of Necessity, and by that enabled him to take both from us, what he would, when he would, and how he would, they yet continued to persuade us, that they had left us our Liberties and our Properties.
And, which I confess moved most, that by the transformation of us from the State of Free-Subjects (a good Phrase, under Doctor Heylin's favour) unto that of Villains, they disable us by legal and voluntary Supplies to express our affections to his Majesty, and by that to cherish his to us, that is, by Parliaments.
The Cause of all the Miseries, we have suffered, and the Cause of all the Jealousies we have had, that we should yet suffer; is, That a most excellent Prince hath been most infinitely abused by his Judges, telling him, That by Policy he might do what he pleased.
Mr. St. John's Speech to the Lords in the Upper House of Parliament, January 7. 1640. Concerning Ship-Money.
The Knights, Citizens, and Burgesses of the Commons House, have intrusted me with a Message to your Lordships, of a general and a very high Concernment; so general, that the whole Body of the Kingdom, both Peers and People, are interested in it; of so high a consequence, as that there is nothing that can concern us nearer.
2. It is not that Ship-money hath been levied upon us, but it is that Right whereby Ship-money is claimed; which if it be true, is such, as that it makes the Payment of Ship-money the Gift and Earnest-penny of all we have.
It is not that our persons have been imprisoned for Payment of Ship-money, but that our persons and (as it is conceived) our lives too, are, upon the same ground of Law, delivered up to bare Will and Pleasure.
It is true, the Lord might tax his Villain De haute & de basse, might take all his Lands and Goods, the Villain had no Property against the Lord, the Villain he could not ire quo voluit, he had no liberty of Person, the Lord might imprison him at his pleasure; but the Villain's Life was his own, and not his Lord's, the Law secured him that. But my Lords, as the Law stands now declared, it is disputable, whether it doth so much for us.
My Lords, The subject of this Message is, To present the sense of the Commons to your Lordships; That the Laws of the Realm instituted at first, and freely assented unto, and chosen by their Ancestors for the preservation of themselves and Us their Descendants, in our Persons, Lives, and Estates, have been of late intrusted unto such hands, as have endeavoured to force upon them a contrary end to that for which they were ordained, from Defensive to turn them to Offensive; and in stead of Protecting us, to make the Laws the Instrument of taking from us all we have. Those carriages which have produced this Sense of the Commons, I am commanded at this present to declare to your Lordships.
The Ship-writs that have issued to all the Counties of England, for these many Years last past without intermission: The principal Thing in these Writs which I am to present to your Lordships, is not the Charge and Burthen which hath been thereby imposed upon the Subjects, though that be great, but the Declarations in them of the Law, and of the Right whereby this burthen may be imposed.
My Lords, the Two last, that is, the Ship-writ, and the Judgment, because they are very long, I am only to open them without reading, and to deliver them to your Lordships; the other Two I am to read them, and then to deliver them to your Lordships.
I AM of opinion, that as where the benefit doth more particularly redound to the good of the Ports or Maritine 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 Precedents of former times; so where the good and safety 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.
My Lords, these opinions were delivered by the Judges, severally and apart, they were procured by the solicitation of my Lord Finch; The Judges, as he severally procured their Hands, were by him enjoined Secresie accordingly; these Opinions walked in the Dark for a Year and upwards: afterwards the procurer of them, my Lord Finch, liked them so well, as that he presumed to deliver them to his Majesty. By his procurement, a Letter was directed from his Majesty to the Judges for the delivery of their Opinions in these, and some other additionals. The former that hath been read is more modest, it is only, that his Majesty is the sole judge of the Danger, and that the Inland, as well as the Maritine Towns, are chargeable to the Defence of the Kingdom.
When the Good, and the Case 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 in 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 resusal or refractorinefs? And whether in such case, is not the King the sole Judge both of the danger, and when, and how the same is to be prevented and avoided?
May it please your most Excellent Majesty, We have according to your Majesty's Command, severally, and every Man by himself, and all of us together, taken into serious consideration the Case and Questions signed by your Majesty, and enclosed in you Royal Letter; and we are of Opinion, that when the Good and Safety of the Kingdom in general is concerned, and the whole Kingdom is in Danger, your Majesty may, by Writ under the Great Seal of England, command all the Subjects of this your Kingdom, at their Charge, to provide and furnish 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 you Majesty may compel the doing thereof, in case of resusal or refractorinefs; 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 fame is to be prevented and avoided.
These Opinions were subscribed by all the Judges in Serjeants InnHall; they were afterwards published in the Star-Chamber, that the Subjects might take notice of them; and that they might never be forgotten, they are enrolled in all the Courts of Westminster-Hall, in per petuam Rei memoriam: Your Lordships will be pleased to give me leave to repeat them in their plain and legal sense; which I conceive to be thus:
That his Majesty, as often as himself pleaseth, may declare, that the Kingdom is in Danger; That so often, for prevention of such Danger, his Majesty, by his Writ under the Great Seal of England, may alter the Property of the Subjects Goods, without their consent in Parliament, and that in such proportions as his Majesty shall think fit; and besides the altering of the Property of their Goods, for the Prevention of such danger, may deprive them of the liberty of their Persons, and of their Lives, and that in such manner as himself shall please.
- 1. The first of these (viz.) that his Majesty may declare the Danger, as often as he pleaseth, is made good in these Words, That the King is the sole Judge of the Danger, and when the same is to be prevented and avoided.
- 2. The second, that so often he may alter the Property of the Subjects Goods, without consent in Parliament, in these Words; That his Majesty may, by Writ under the Seal of England, command and compel all the Subjects of the Realm, at their charge, to provide and furnish Ships.
- 3. That this may be in what proportion his Majesty shall please, in these Words; That his Majesty may command them to provide and furnish such number of Ships, with Men, Victuals, and Munition, and for such Time as his Majesty shall think fit.
- 4. The last (viz.) that which concerns our Persons, in these two Clauses.
1. That his Majesty, in Case of refractoriness, may compel the doing of it; this compulsion instead of refractoriness, includes the Person, as well as the Estate: Nay it founds more in the Personality than otherwise. For the other, viz. Whether this Personal Compulsion may extend to far as to Life, I humbly leave it to your Lordships considerations. Upon the other Clause; that is, That his Majesty is the sole Judge of such danger, and when, and how the same is to be prevented: whether the Words, how it is to be prevented, in this case of Personal Compulsion, do not leave the manner of it wholly in his Majesty's Breast.
My Lords, is these Opinions extend only to Ship-money, it is enough; his Majesty takes what he will; and when he will; if all be taken to Day, and afterwards, by Descent or my own Labour, I get a new Stock or Livelyhood, that is no more mine than the former; so that there is no property left unto the Subject, though the Opinions go no further. But, my Lords, Ship-money is not the whole extent of them; Ship-money, by these Opinions, is not due by any peculiarity in Ship-money: But Ship Money is therefore due, because his Majesty is the sole Judge of the Danger of the Kingdom, and when, and how the same is to be prevented, because his Majesty for the defence of the Kingdom, may at his Will and Pleasure charge the People; this is the Ground: And upon the same Reason, the Compulsion may be as well for the making and maintaining of Castles, Forts, and Bulwarks, making of Bridges, for transporting his Armies, for Provision of Wages and Victuals for Soldiers, for Horses and Carriages, it may be multiplied in infinitum.
If these Opinions be Law, I humbly leave it to your Lordships considerations, whether the Government be not Imperium legibus solutum. The next Thing I shall offer to your Lordships, is the Ships-writs; a Transcript of one of them directed to the Sheriff of Dorsetshire, I shall deliver; all the rest being of the same Form. Because that Writ is long. I shall open it briefly; it is to this effect.
Therefore the Inhabitants of the several Counties are commanded for the Defence of the Kingdom, for the Custody of the Seas, for the Safeguard of the Merchants from Piracy, inward and outward, that they should provide a Ship of War, furnished with Guns, Gun-Powder, double Tackle, and all other necessaries; and this Ship thus furnished at a Day set, to be brought to Portsmouth, to be provided for 26 Weeks, of Mariners Wages, Victuals and other necessaries, and for the doing of this, Authority is given to the Sheriffs of the several Counties, to asses every of the Inhabitants Secundum statum & facultates suas, according to their Estates and Means; and further Power given him by distraining and selling of the Distress to levy these Monies, Si contrarios invenerit, then to imprison their Persons. And further declares, That all this may be done, Secundum legem & consuetudinem Regni. The sense I conceive is briesly thus: that by the Laws of the Kingdom, when his Majesty shall declare that the Kingdom is in Danger, he may alter the Property of the Subjects Goods, and imprison their Person; nay, that not only his Majesty, but the Sheriffs may imprison their Persons. By the Law the Lord might imprison his Villain, but could not transfer that Power to his Bailiff, or to any other, it was Personal. That the execution of this Power over the Persons of the Subjects hath gone no further than their imprisonment, whether therein we be not wholly beholden to his Majesty's Grace and Goodness, and nothing at all to the Opinions of the Judges, I leave it to your Lordships considerations.
The last Thing is, the Judgment in the Exchequer, in the Thirteenth Year of his now Majesty's Reign, against Master Hampden, the Record is very long, I shall briesly open it to your Lordships, Quarto Augusti 11 Caroli, there issued Ship-writs to the several Counties, amongst the rest to the County of Bucks, the Sheriffs assessed the Inhabitatns; some of them made default, and did not pay; upon a Certiorari out of the Chancery, directed to the Sheriff, he certifies the Persons that made default, together with the Summons assessed upon them. From the Chancery by Mittimus, these Certificates were sent into the Exchequer, to the intent Process might issue against the defaulters. A Scire Facias issed to the Sheriff of Bucks, who thereupon, amongst other, returns, that master Hampden hath been assessed Twenty Shillings, for some Lands in Stoke-Mandevile in that County, which he had not paid: Master Hampden appeared, and upon his appearance, demands Oyer of the Ship-writs, and the other Proceedings. After his hearing thereof, and understanding the Contents, he demurs in Law, that is, demands the Judgment and Opinion of the Judges, whether this Writ was sufficient in Law, and to force him to pay the said Twenty Shillings.
This being a great and general Case, the Barons of the Exchequer desired the Assistance of the rest of the Judges, who did join accordingly. The Case name to be argued, there were Four Arguments, Two on Master Hampden's side, and Two on the other side, the first was in Michaelmas Term, after Alhallontide, and all the Four Arguments were speeded before Christmas-Day, Two of them in the Term, and no longer Time would be procured for the rest, but the short Vacation between Michaelmas Term and Christmas, it was a Case of so little concernment, that whereas in Westminster-Hall, Term after Term is usually given to argue any demurer, this must be argued betwixt Alhallontide and Christmas throughout: after the Arguments, the Council on both sides were commanded to bring before the Judges the Records and Authorities cited, they were brought, and for the Ease of the Judges, many of them on Mr. Hampden's part were abbreviated on the back-sides, those abbreviations were commanded to be expounded; afterwards the Case came to Argument at the Bench, there the Case was Judged, and by the Greater part of the Judges Judgment was given against Mr.Hampden; when the Judges had delivered their Opinions, it was the Barons part to give Judgment; the Judgment was, Quod Separalia brevia prœdict. & return. eorundem ac Schedulum prœdict. eisdem annex. ac materia in eisdem content. Suffecerit in lege existen. ad prœfatum Joannem Hampden de predict. viginti solidis super ipsum in forma & ex causa predict. assessis oner and. Ideo consideratum est per eosdem Baron. quod prœdictus Johannes Hampden de eisdem viginti solidis oneratum exinde satisfaciat.
My Lords, this Judgment is a full and plenary execution of the former Opinions of the Judges, and of the Ship-writs, for so much as it concerns our propriety; it was given in Mr. Hampden's Case only; but binds all the Subjects; for so binding it is, as that an Honourable Person, now in my eye, in a Case depending in the King's Bench, was denied any argument or debate, concerning the Right of Ship-money, for no other reason, but that it had been by the former Judgment adjudged already in the Chequer.
My Lords, these extra-judicial Opinions of the Judges, these Ship-writs, and this Judgment, are those carriages which have introduced this sense of the Commons, that the fundamental Laws of the Realm concerning our property and our Persons, are shaken.
My Lords, the Commons have taken the extra-judicial Opinions published and inrolled, and the rest severally into consideration, they have been read openly in the House, and after long debate, and long rather in consideration of the Greatness of the Matter, than of the Difficulty of it, they came to vote, Four several Votes passed upon them, the Votes passed without so much as one Negative Voice to any of them.
The Votes were in substance, That they were against the Laws of the Realm, the Right of the Property, the Liberties of the Subject, contrary to the former resolutions in Parliament, and to the Petition of Right.
The extra-judicial Opinions inrolled, they Voted in the whole, and every Part of them to be contrary to all these, for they did conceive that in these Opinions, there was not any one Clause that was agreeable to the Law, but that throuhout they were contrary to the Laws.
Two of them, that is, Propriety of Goods, and Liberty of Persons, by the Occasions of the Commissions for the Loan, and the Instructions wherewith these Commissions were accompanied, that concerning our Lives, by Occasion of the Commissions that had issued, for the executing of Martial Law.
They conceive, that if any Thing concerning these had passed both Houses and his Majesty, or the Judgment of both Houses without his Majesty, it would be in vain to look further, that it would be actum agere; Nay, my Lords, they had a farther consideration, that if those were already settled in that Parliament, it would not only be derogatory to the Jurisdiction of Parliament, but dangerous to look higher, as that they would infer a defect in those Proceedings, and cast an aspersion upon that Parliament; I am commanded now to present to your Lordships considerations, those things which satisfy the Commons, which are these Three:
- 1. The Commissions for the Loans, with the Instructions.
- 2. A Commission called the Commission of Excise.
- 3. An Addition of Saving, which was desired by your Lordships to have been added to the Petition of Right, at the Time of the Framing of it.
13. Octob. 2 Caroli, divers Commissions were directed to sundry Commissioners, to the Number of Sixty or Seventy Lords and Gentlemen, in the several Counties issued, whereby a compulsary Aid by way of Loan was required of the Subject; the Causes and Grounds of this Demand are in the Commissions expresssed to be these:
The Parts beyond-Sea, where our Cloth is vended, and from whence we have most of our Provision for Shipping, were indangered; His Majesty's Treasures were exhausted, and his Coffers empty. A Parliament had been summoned, but no Supply.
Not only the King's Honour, but the Safety and very Subsistance of the King and People, and of the True Religion abroad, are in apparent Danger of suffering irreparably, unless not only a speedy, but also a present stop be made; which cannot admit so long delay as the calling of a Paliament: The People assured on the Royal Word of a King, that not one Penny should be bestowed, but upon those publick Services only, wherein every of them, and the whole Body of the Kingdom, their Wives, Children and Posterity, have their personal and common Interests.
The Commissioners diligence commanded as they tendred the King's Honour, and Safety of the Realm; Here Salus Regni periclitabatur, the whole Kingdom was in Danger, as in the Judges Opinions, and as in the Ship-writs and Judgment in the Exchequer. Nay, my Lords, further, the Safety and very Subsistance of the King, People, and True Religion were in Danger of Suffering irreparably, the dangerous instance, not a speedy, but a present stop must be made, the Supply could not stay for a Parliament; at this Time his Majesty's Coffers were exhausted, the King found the Crown engaged in this War, before the Access of it to himself, and that by advice in Parliament; all this expressed, only lending of Monies for prevention required; but it was a compulsary Thing, and became compulsary, by the instructions to bind over to the Board, and Imprisonment for refusal. These Commissions were in the Parliament, 3 Car. first resolved in the Commons House to be against Law, afterwards by your Lordships, and consented unto by his Majesty, and are declared to be so in the Petition of Right, and the imprisonment of the Subjects for refusal, declared in the Petition of Right to be against Law.
The next is the Commission called the Commission of Excise, this was dated ultimo Febr. it was dated after the Summons to that Parliament: This Commission issued to Thirty three Lords, and others of his Majesty's Privy Council; the Commissioners are thereby commanded to raise Moneys by Impositions, or otherwise; as in their judgments they shall find to be most convenient.
The Defence and Safety of the King and People, which, without extreamest hazard of the King, Kingdom, and People, and of the King's Friends and Allies beyond Seas, cannot admit no longer delay: inevitable necessity, wherein form and circumstance must rather be dispensed withal, than the Substance lost.
In the Parliament, 3 Caroli, this Commission was adjudged by the Commons to be against the Laws of this Realm, and contrary to the Judgment given in the Petition of Right, and after a Conference with your Lordships, desired his Majesty that it might be cancelled: The then Lord-Keeper shortly after brought it cancelled to your Lordships in the House, and there said, it was cancelled in his Majesty's presence: You sent it cancelled to the Commons to be viewed, who afterwards sent it back to your Lordships.
We humbly present this Petition unto your Majesty, not only with a care of preserving our own Liberties, but with due regard to leave entire the Sovereign Power, wherewith your Majesty is trusted,for the Protection, Safety, and Happiness of your People. Your Lordships desire of this addition to the Petition of Right, was taken into consideration by the Commons; and after debate, it was thought fit by them to be rejected. A Conference was had with your Lordships, and Mr. Noy appointed by the Commons to declare the Reasons of their resolution. Your Lordships not receiving satisfaction at that Conference, whether this addition should be rejected or not, it was again debated in the Commons House; they ventured upon the same bottom again; it was thereupon resolved to be rejected: The reasons of their rejections were these in Sum;
But is it should be added to the Petition of Right, as was desired; then was it not true, but would make the Petition of Right seldo de se, and wholly destructive to it self in all the Parts of it; that it would proceed à bene divisis, ad mala conjuncta: For then the Petition of Right, as they resolved, would have this sense:
Whereas in the Petition of Right, it is said, that no Aid, Tax, Tallage, or other Charge whatsoever, may be imposed upon the People, without their free Consent in Parliament; it would have this construction. It is true, it cannot be done by the King's ordinary Power, but it may be done by that Sovereign Power wherewith the Law hath entrusted his Majesty for the protection, safety, and happiness of the People.
So likewise for imprisonment, that they ought not to be imprisoned without due process of Law. It is true ordinarily, that the King may imprison by his Sovereign Power, wherewith the Law hath entrusted him for the protection, safety, and happiness of the People.
So that, for that Martial Law, That the subjects Lives ought not to be taken away, unless by due process of Laws: It is true ordinarily, but the King may do it by his Sovereign Power, wherewith the Law hath intrusted him for the protection, safety, and happiness of the People: Whereby they conceived, that it would not only make the Petition of Right to be wholly destructive of its self, but likewise this Petition of Right would leave the Subjects in a far worse condition than it found them; for it would necessarily inser, that which is against the Law: viz. that the King by his Sovereign Power, when he pleased to declare that it was for the Good of the People, might do all this.
Your Lordships at a Conference of both Houses, engaged on the Part of the Commons by Serjeant Glanvile, and Sir Henry Martin, received satisfaction from these reason; and consented to the leaving out of this Addition; and accordingly, the Petition of Right passed, and is printed without it.
My Lords, These were the Things I was commanded to present unto your Lordships: Other Things there were, as the Sentence against Bishop Manwaring; but this weighed so much with the Commons, as that they conceived they needed no more.
My Lords, these Precedents of that Parliament, and these Opinions of the Judges, the Ship-writs, and the Judgments in the Exchequer; they are like the two Buckets of a Well, if one go up, the other must go down: Non bene conveniunt.
My Lords, We have not cited these Precedents out of diffidence that your Lordships had forgotten them; but because others have; or that we distrust your Lordships Justice, if you had forgot them. For before these were, your Lordships concurred in opinion with your worthy Ancestors, that first gave them. Their Noble Blood runs in your Veins. It is now to confirm your own Judgments as well as theirs: In your Lordships breasts, there are the same Magazines and Fountains of Honour and Justice, as were then; these Judgments and Proceedings were the Actions of both Houses, the Danger by the violation is equal.
But when they have done all, to have their Judgments and their Acts of Parliament overthrown by the Judges afterwards, this makes Parliaments to be nothing, this sets up the Judges above the Parliament, this puts us out of Hope of Redress; if they may overthrow the Proceedings of that Parliament of 3 Caroli, they may by the same reason overthrow the Action of this, and of all future Parliaments.
My Lords, This was not the Practice of their Predecessors; though but in private Causes, if Difficulty of Law arose, they always consulted this Oracle, and thence received their Answer how to give Judgment. Judgments in the Highest Court of Westminster Hall, I mean, in the King's Bench; where the Proceedings are coram Rege, are here reversable by Writ of Error. In Causes of great and general Concernment, they ever adjourned them hither, as Things too high for them.
The Judges, as is declared in the Parliament, they have here made themselves the Executioners of them; they have endeavoured the destruction of the Fundamentals of our Laws and Liberties. Holland in the Low Countries lies under the Sea, the Superficies of the Land is lower than the Supersicies of the Sea: It is Capital therefore for any Man to cut the Banks, because they defend the Country.
Besides our own, even foreign Authors, as Comenius, observes, that the Statute de Tallagio, and other old Laws, are the Sea-walls, and Banks, which keep the Commons from the Inundation of the Prerogative.
Breach of Trust, though in a private Person, and in the least Things, is odious amongst all Men; much more in a publick Person, and in Things of great and publick Concernment, because great Trust binds the Party trusted to greatest Care and Fidelity.
It is Treason in the Constable of Dover Castle to deliver the Keys to the known Enemies of the Kingdom; because that Castle is the Key of the Kingdom: Whereas if the House-keeper of a private Person deliver Possessio to his Adversary; it is a Crime scarce punishable by Law.
The Judges under his Majesty, are the Persons trusted with the Laws; and in them, with the Lives, Liberties, and Estates of the whole Kingdom: This Trust of all we have, is primarily in his Majesty; and from him delegated to his Judges.
His Majesty at his Coronation, is bound by his Oath to execute Justice to his People, according to the Laws; therby to assure the People of the faithgul Performance of this great Trust. His Majesty again, as he trusts the Judges with the Performance of this Part of the Oath, so doth he likewise exact another Oath of them for their due Execution of Justice to the People, according to the Laws; hereby the Judges stant intrusted with this Part of his Majesty's Oath.
If therefore the Judges shall do wittingly against Law, they do not only break their Oaths, and therein the common Faith and Trust of the whole Kingdom, but do, as much as in them lies, smeer and blemish the Sacred Person of his Majesty with the odious and hateful Sin of Perjury.
My Lords, The Hainousness of this Offence is most legible in the severe Punishments which former Ages have insticted upon those Judges, who have broken any part of their Oaths wittingly, though in Things not so dangerous to the Subject, as in this Case in Question.
Sir Thomas Wayland, Chief-Justice of the Common Pleas, Edw. I. was attainted of Felony for taking Bribes, and his Lands and Goods forseited; as appears in the Pleas of Parliament, 18 Edw. I. and he was banished the Kingdom, as unworthy to live in that State, against which he had so much offended.
Sir William Thorpe, Chief-Justice of the King's Bench, in Edw. III. Time, having of Five Persons received Five Several Bribes, which in all amounted to 100 Pounds; was for this alone adjudged to be hanged, and all his Lands and Goods forseited. The Reason of this Judgment is entred in the Roll in these words;
Quia prœdict. Willielmus Thorpe, qui Sacramentum Domini Regis erga Populum suum habuit ad custodiendum, fregit maliciose, false, & rebelliter quantum in ipso suit; because that he, as much as in him lay, had broken the King's Oath made unto the People, which the King had intrusted him withal.
There is this notable Declaration in that Judgment; that is, that is Judgment was not to be drawn into example against any other Officers who should break their Oaths, but only against those Qui prœdictum sacrum secerunt, & fregerunt, & habent leges Angliœ ad custodiendum; that is, only to the Judges Oaths, who have the Laws intrusted to them.
This Judgment was given 24 Edw. III. the next Year in the Parliament 25 Edw. III. it was debated in Parliament, whether this Judgment was legal; & null contradicente, it was declared to be just, and according to the Law: And that the same Judgment may be given in Time to come upon the like occasion. This Case is in Print, that it is Death for any Judge wittingly to break his Oath, or any part of it.
First, That of Thorpe was only a Selling of the Law by retail to those Five Persons, for he had only Five Several Bribes of those Five Persons; the passage of the Law to the rest of the Subjects, for ought appears, was free and open.
For whereas the Judge ought Judicium reddere, that is, the Law being the Birth-right and Inheritance of the Subject, the Judge, when the parties in suit demand Judgment, should redare, freely restore this right unto he m; now he doth not dare but vendere with the Hazard only of perverting Justice; for the Party that buys the Judgment may have a good and honest cause.
Witness the many Hundred thousand Pounds which under colour of them have been levied upon the Subject, amounting to Seven hundred thousand Pounds and upwards in Money paid unto the Treasurer of the NAvy; besides what the Subjects have been forced to pay to Sheriffs, Bayliffs, and others, which altogether, as is conceived, amounts not to much less than a Million; besides the infinite vexation of the Subjects by Suits in Law, binding them over to attendance at the Council board, taking of them from their necessary Employments in making of Assesses and Collections, and imprisonments of their Persons.
I say, my Lords, besides what is past, to make our miseries compleat, they have, as much as in them lies, made them endless; for by these Opinions they have put upon themselves and their Successors an impossibility of ever doing us Right again, and an incapacity upon us of demanding it so long as they continue.
My Lords, in that fore Famine in the Land of Ægypt, when the Inhabitants were reduced to the next Door to Death; for there they say, Why should we die for Bread? first, they gave their Money; next, their Flocks and Cattel; and last of all, their Persons, and their Lands, for Bread, and all became Pharaoh's; but by this Lex Regia, there is a transaction made, not only of our Persons, but of our Bread likewise, wherewith our Persons should be sustained. That was for Bread, this is of our Bread. For, my Lords, since these Opinions (if we have any Thing at all) we are not not at beholden to the Law for it, but are wholly cast upon the Mercy and Goodness of the King.
Again, There the Ægyptians themselves sold themselves, and all they had to the King; if ours had been so done, if it had been done by our own free consent in Parliament, we had the less cause to complain; but it was done against our wills, and by those who were trusted, and that upon Oath, with the preservation of those Things for us.
My Lords, The Laws are our Forts and Bulwarks of defence: if the Captain of a Castle, only through fear and cowardice, and not from any compliance with the Enemy, surrender it; this is Treason; as was adjudged in the Parliament, I Rich. II. in the Two Cases of Grymes and Weston, and in the Case of the Lord Grey for surrendring of Barwick Castle to the Scots in Edw. III. Time, though good defence had been made by him, and that he lost his eldest Son in maintenance of the Siege; and yet the loss of a Castle loseth not a Kingdom, only but the Place and adjacent Parts, without Trouble to the Whole.
But by these Opinions there is a Surrender made of all Legal defence of Property, that which hath been Preached, is now Judged, that there is no meum & tuum between the King and the People, besides that which concerns our Persons.
My Lords, The Law, it is the Temple, the Sanctuary, whither the Subject is to run for shelter and refuge: Hereby it is become Templum sine Numine, as was the Temple built by the Roman Emperour, who after he had built it, put no Gods into it.
But, My Lords, this is not all the Case (that is) that the Law now ceaseth to aid and desend us in our Rights; for then Possession alone were a good Title, if there were a good Title, if there were to Law to take it away, occupanti concederetur, & melior esset possidentis conditio. But this, (though too bad) is not the worst; for besides that which is private in these Opinions, there is somewhat positive. For now the Law doth not defend us, but the Law itself is made the Instrument of taking all away.
For whensoever his Majesty or his Successors shall be pleased to say, that the Good and Safety of the Kingdom is concerned, and that the whole Kingdom in Danger: Then when and how the same is to be prevented, makes out Persons and all we have liable to bare Will and Pleasure.
By this means, the Sanctuary is turned into a Shambles: The Forts are not slighted, that so they might neither do us good or hurt; but they are held against us by those who ought to have held them for us, and the Mouth of our own Cannon is turned upon our selves.
My Lords, in these Expressions, their is no reflection upon his Maajesty. It is only that those Judges would have forced upon the Law an unnatural and contrary motion, his Majesty's carriage in the Business clears his Justice.
The first Opinion of the Judges under their Hands, was procured by my Lord Finch's Solicitation only, and by him brought to his Majesty. These Opininons procured the Letter from his Majesty for the Opinions inrolled, wherein, as likewise in the Case in the Chequer, the Judges were left free, as was acknowledged by Two of the Judges in the Chequer-Chamber, who argued against those Opinions, with this Protestation, That if there were any Miscarriages in that Business, it must fall wholly upon themselves; that the King was blameless.
My Lords, We know his Majesty's Justice is the Fairest, the Richest Diamond in his Crown; the Dust which these Men would have blown, and forced upon it, is fal'n short, and with your Lordships helping Hands, it will, we hope, be cast upon their own Faces, a fitter place for it than the other.
My Lord, The Oaths of the Judges, as they bind them to the due administration of Justice to the Subjects, according to the Laws; so as they be of the King's Council, by their Oaths they are bound lawfully to counsel him; that is, when their Opinions are demanded, they are to deliver them according to the Law.
I shall therefore put your Lordships in Mind of the memorable Proceedings against these Judges who have broken this part of their Oath, in that norable Parliament held the Eleventh of Richard the Second.
In this Parliament, Judgment of High Treason was given against Eighteen several Persons, and all (save one of them) of eminent Rank, Three Privy Councellors, the Archbishop of York, the Duke of Ireland, and Earl of Suffolk, the Bishop of Exeter, the King's Confessor, Five Knights, some whereof had been Servants to Edward the Third, and all save One, Servants to the then King, and some of them of noble Descent, Six Judges, Lockton, the King's Serjeant at Law, Blake of the King's Council at Law, and Uske the Under-Sheriff of Middlesex: Of these Eighteen, Eight were executed (that is) Sir Robert Tresilian the Chief Justice. Five Kinghts, Blake of the King's Council at Law, and Uske the Under-Sheriff; there, that is, the Archbishop of Tork, Duke of Ireland, and Earl of Suffolk, fled.
The rest had their Lives pardoned, but were bannished; their Lands and Goods forfeited, and little Pensions allowed them during their Lives: It was made Felony for any one to procure their Pardons, and they to be dealt withal as Traitors, if they returned from their Banishment. And of those Eighteen Persons, all save Three were impeached by the Commons.
The Offences which procured these Exemplary Punishments, altho' their Proceedings be long, and comprehended all that was done in this Parliament, I will briefly open them to your Lordships. During the Minority of that King, by ill Counsel of some near his Person, there were Miscarriages in Government. In the Tenth Year of his Reign, and the Twentieth of his Age, a Parliament was holden; in that Parliament, in aid of good Government, and of due execution of the Laws, a Commission was awarded to Twelve several Peers, and others of greatest wisdom and fidelity: The Commissioners had Power in all Things concerning the Houshold, Courts of Justice, and the Revenues; in a word, in all Things concerning the good of the Realm, with full Power finally to determine and put in execution, for the Honour of the King, the better Governance of the Peace and Laws of the Realm, and Relief of the People.
My Lords, The endeavouring to overthrow this Commission, issued by Authority of Parliament for the welfare of the Realm, upon pretence that it trenched upon the Royal Power, tended to the disherison of the King, and derogation of the Crown, together with the destuction of the Commissioners who procured it, and put the same in execution, upon pretence that they and some others had in Parliament forced the Royal Assents.
My Lords, The conspiring to overthrow this Commission, and the Procurers of it, is the Case in brief; for although there be divers other Articles against many of them, yet this was the Ground-work of all; and this singly and alone is declared in all the Proceedings in that Parliament to be Treason. Of these Eighteen Persons condemned, Five of them were Plotters, (viz.) the Archbishop, Duke of Ireland, Earl of Suffolk, Trisilian the Chief Justice, and Sir Nicholas Bramber; these insinuated in to the King, that this Commission was indiminution of his Kingly Power, that the Procurers of it had extorted his Royal Assent, and that this was Treason: Thereupon Blake, one of the King's Council at Law, was advised withal; who declared his Opinion, that it was Treason: He was commanded to prepare an Indictment of Treason against the Commissioners, and some of the Procurers of it, who had been active therein.
That they had Traitorously conspired amongst themselves in the Parliament, to make this Commission by Authority of Parliament against the Regality of the King, to his Disherison, and Derogation of the Crown; That they compelled the King's Consent, and that they confederated and bound themselves to maintain one another in so doing.
It was intended, that they should be tried upon this Indictment in Middlesex or in London; Uske the Under-Sheriff of Middlesex was acquainted with the Business, who was to prepare things for the effecting of this Design, some of the Parties to be indicted not being Peers; which he performing accordingly, was therefore executed.
The Five Plotters, that the King might the more confide in their Counsels, (for so are the Words of the Record) and that under the colour of Law, they might cover their Malice from the King and the Kingdom, before the Trial was to be had, they advise the King to demand the Opinion of some of the Judges, that is, of the Two Chief Justices, and Chief Baron, the Judges of the Common-Pleas, Six in number, and of Lockton the King's Serjeant; Blake of the King's Counsel at Law, was commanded to draw up these Questions for the Judges Opinions, who did it accordingly.
- 1. The First Question was, Whether the Commission was in derogation of the Crown? They answered that it was.
- 2. The Second Question was, Whether the persuading and urging the King's consent in Parliament thereto, was Treason? They answered, that it was. Though there were some other Questions asked, all concerning Parliamentary Proceedings, yet these were the main, and those for which they were condemned, as appears by the Replication of the Commons to the Judges Answer; and by the words of the Judgment (viz.) That they knew that this Commission was awarded in Parliament, that it was for the Publick Good, that they knew of the Traiterous Intents to destroy the Procurers of this Commission, that they knew the Law, and that it was not Treason, and had delivered their Opinions thereby under colour of Law, to cover their Treasonable intent: And therefore Judgment of Treason was given against them, and against Lockton the King's Serjeant at Law, who had subscribed the Opinions with the Judges.
Sir Simon Burley, one of the Five Knights that were executed, was condemned only for conspiring the Death of the Procurers of this Commission; and although there be other Articles against the rest, yet this alone is adjudged Treason in the several Judgments against every one of the Eighteen.
- 1. My Lords, it is observable in all these Judgments, that they are adjudged Traitors, as well against the Person of the King, as against the Common-Wealth.
- 2. Secondly, It is there declared upon great advice taken, that in Treasons which concern the King and Kingdom, they are not bound to proceed according to the Rules of the Common Law, and inferior Courts, but according to the Course of Parliaments, so as may be for the common Good.
- 3. Thirdly, Judgment was given in Parliament, and Execution awarded, and afterwards a Bill of Confirmation passed, in respect of their Lands, to give them from a Day past; and for Declaration, that this should be no Precedent to inferiour Courts to adjudge the same Cases Treason, save only in Parliament.
These Judgments were not hudled up in haste, but they were given upon long and mature deliberation. These Judgments were the whole Work of that Parliament, and the Proceedings against the Five Plotters were begun the Fourteenth of November, and the Judgments were not given till the Thirteenth of February following, which was a Quarter of a Year. And is declared in the Roll, that they spent a long Time, and took great Pains to examine the Evidences, the better thereby to satisfie their own Consciences and the World.
My Lords, By these Proceedings it doth appear that this Parliament of Revocation was no free Parliament, if at all it deserve the Name of a Parliament. But to put all out of doubt, the Parliament of 1 H. 4. No. 48. these Judgments of Revocation are declared to be [eponea], iniqua, & omni juri & rationi repugnantia, erroneous, wicked and contrary to all Right and Reason; and in the Parliament of 1 H. 4. in Print these Attainders are confirmed: So that these Judgments of Attainder have the Authority of Two Acts of Parliament, both of them of force at this Day.
Your Lordships will give me leave to observe the Differences and Agreements, between the offences of those, and of the present Judges, and as well in the way and manner of Procurement, as in the matter of them: For the manner of Procurement, those Judges in R. the Second's Time, were in the King's presence, and as it is in the Parliament Roll of 1 H. 4. Nov. 18. they were violenter attracti, violently drawn to deliver their Opinions, and that metu mortis & cruciatus corporis, for the fear of Death and Tortures of the Bodies; and at their Trials severally, they say, that in part violence had been offered to their Persons, because they had differed in the delivery of their Opinions. My Lords, this was such a Miscarriage in the Judges, these Circumstances considered, as might cadere in virum fortem & constantem: But, my Lords, Fear or Cowardice, is no Plea for delivering up of the Forts and Bulwarks of the Kingdom.
But in the present Business, there is none of all this; it came from within, there is no outward force. In those of R. 2. it was Act us unicus, once done at Nottingham Castle; if the Judges had been put to it the Second Time, perhaps the rest, as well as some of them, had repented, and would not have done it over again; For Belknap, the Chief Justice of the Common-Pleas, the same Day declared his sorrow, and said, That now there remained nothing but a Horse, a Hurdle, and a Halter; and Fulthorp, another of them, the next Day declared his Grief for what he had done. But here, after the Opinion in November 1635. a Year after, viz. 1636. they proceed à pessimo ad pejus pessimo, for that was with additions; most of them declared their Opinions in their Circuits, and a Year after confirmed it again by the Indictment in the Exchequer, here it was done Year after Year in gold Blood: One murderous Blow, whereupon Death follows, is Felony, but to multiply Wounds upon the dead Body, and to come again in cool Blood to do it, it shews the height of Malice. In these Two Things they agree:
1. That which the Judges did in Richard the IId's. Time, they did it against their own knowledge; they knew the Commission was done by Act of Parliament; so here they knew the Petition of Right damned the Commissions of Loans, a stronger Case in that they subscribed; many of them knew that the Commission of Excise was damned in Parliament; they knew the other Proceedings in Parliaments, and if they had forgotten them, they were afterwards put in mind of them; they needed not to have consulted with Books and Journals of Parliaments, saving only with their own Memories.
2. They agree in this, That their Opinions tended to the Subversion of the Laws and Statutes of the Kingdom; for in that of R. 2. the Offence was, the endeavouring to overthrow Parliaments and Parliamentary Proceedings, the Conspiracy of the Death of the Procurers was only an aggravation. It was not Treason to conspire the Death of a Privy Counsellor, or to kill a Judge, unless he be upon the Bench, and in that Case it is Treason, because of the Malice, not to the Person, but to the Law; so that there the Treason lay in this, not that they conspired barely against their Persons; but with reference to their Proceedings in Parliament, and thereby to overthrow the Acts of Parliament, wherein these Persons had been principal Actors. But in this again they disagree; for in that Case there was only a Conspiracy, no Death followed to the Procurers of the Commission, nor was the Commission overthrown; all that was done, was only this, That a Warrant was directed to the Lord Major of London, for apprehending their Persons to bring them to Trial, which yet was not done. But here (after the Opinions delivered) Judgment was afterwards given by them in the Exchequer, and Execution awarded thereupon, for so much as concerns our Property.
And like wise in the King's Bench, where the Judges, after the Judgments in the Exchequer, refused to hear any more debate of the matter; and so for the Liberty of our Persons, by keeping divers of the Subjects in Prison Term after Term for not paying Ship-money, and other Things depending upon those Opinions, when they had been brought before them upon their Habeas Corpus.
4. In that of R. 2. it was for overthrowing but of one Act of Parliament, which was likewise introductive of a new Law; for the Commission had no rise from the Common Law, for in Truth it was derogatory to the Crown: It had only the Strength of the Parliament to support it, which was sufficient, it was for the Common Good.
But here the Endeavour was at once, not to blow up one Act of Parliament, but all; and these not introductive, but declaratory of the Common Law, as was the Petition of Right, the Statutes there mentioned, and the Resolutions.
In that of R. 2. it was only to overthrow a Temporary Act of Parliament, that was to continue no longer than one Year; but this to make an eternal devastation (for toties quoties) to the World's end; as his Majesty or his Successors shall say that the Kingdom is in Danger, may these Opinions be put in execution; and like wise they are enrolled in all the Courts of Westminster-Hall in perpetuam rei memoriam.
The Sin against the Holy Ghost is therefore unpardonable, because it takes from the Party Repentance, the means of Pardon. To put us therefore into a case of desperation, some of them have publickly, and upon the Bench declared, that this Preogative is so inherent in the Crown, as that it cannot be taken away by Act of Parliament.
My Lords, Contraria juxta se posita magis elucescunt, I have presented your Lordships with the Obliquity of the ill Judges in R. 2. Time; give me leave to present your Lordships with one Example of a countrary Nature. And that was in Queen Elizabeth's Time, in the 29 Year of her Majesty's Regin: She erects a new Office in the Common Pleas, for the making of Supersedesas on Exigents that issued there, she grants it to Richard Cavendish, her Servant, sends to have him admitted, but the Judges delay the doing of it for this Reason, because the Prothonotaries and Phillizers claimed the making of those Writs. The Queen sends a sharp Letter, and commands them forthwith to admit him; yet the Judges forbear: The Queen sends a sharper Letter, commanding them to shew the Reasons of their Contempt and Disobedience to the then Lord Keeper, and the Earl of Leicester, no mean Men in those Days; the Judges deliever their Reasons why they had refused, and it was, because others claimed the making of those Writs.
The Queen sends a fourth peremptory Message for their admitting him, with this Reason, That if the others were put out, they were rich and able Men, and that her Courts of Justice were open, where they might demand their Rights.
The Judges humbly returned this Answer, That the Queen had taken her Oath for the due Execution of Justice, according to the Law; that they did not doubt, but that when her Majesty was informed, that it was against Law, she would do what befitted Her; for their parts, they had taken an Oath to God, to Her and the Common-wealth, and if they should do it without process of Law, before them, and only upon Her Command, put the other out of Possession, though the Right remained to them, it were a Breach of their Oaths; and therefore if the Fear of God were not sufficient, they told Her the Punishment that was inflicted upon their Predecessors for Breach of their Oaths: (citing those of Thorpe of R. 2. Time) that they might be sufficient warning to them. The Queen hearing of these Reasons was satisfyed, and the Judges heard no more of the Business.
My Lords, Besides these judgments and Opinions, the Commons will in due Time bring up these Judges with their other Judgments, Corporacum Causis; for your Lordships will easily conveive, that they who have done this, have done more; the Principal of them, I mean my Lord Keeper, stands accused before your Lordships of High Treason. He is not here, Justice goes pede lento, sed certo, it will overtake him at the last.