The annals of King James and King Charles the First ... containing a faithful history and impartial account of the great affairs of state, and transactions of parliaments in England from the tenth of King James MDCXII to the eighteenth of King Charles MDCXLII : wherein several material passages relating to the late civil wars (omitted in former histories) are made known.

Mr. Attorney-General's Third days Ar∣gument, Decemb. 18. 1637.

May it please your Lordships,

THe Matters that I did purpose to insist upon this Day, was the answering of the Objecti∣ons, I shall use no Preamble, no Repetition to in∣duce what I have to say: But in the answering of the Objections, I shall first give answer to the se∣veral Acts of Parliament insisted upon; then unto the several Records and Reasons that have been urged; and in the last place, I shall answer the Exceptions that have been taken unto the Writ, 4 Augusti, Mittimus, and form of Proceedings.

The First Act that they have insisted upon is that of William 1. Call it what you will, an Act or a Charter: The words of it are verbatim in Matthew Paris. Volumus & concedimus quod omnes liberi homines sint quieti ab omni Tallagio, &c. Sure∣ly this Act of Parliament or Charter, it doth no way trench upon this Royal Power: For as in the beginning of my Argument I opened unto your Lordships, that this Power was inherent in the Kings of England before the Conquest. Here is only a Confession, that they shall be free ab omni injusta exactione: Now this is no unjust Exaction, for it is of common Right. And then the other part of this Law doth explain it, for it saith, quod sumus fratres Conjurati, &c. So for the Defence of the Realm: by the same Law they would urge to take away this Power by the same Law it is re∣served.

Next place they insisted upon, was the Char∣ter 10 Jo. or on Magna Charta, as they call it, which indeed is mentioned in Matthew Paris, and may be under the Great Seal: The words of that are thus Nullum Seutagium vel auxilium, nisi per Commune Concilium, nisi ad prim' filium militem faci∣end' & maritand'fil', &c. This Charter is, as was

acknowledged by themselves, granted at Runing∣meade, when the Banners were displayed, when there was War or Rebellion between the Barons, Commonalty, and the King. It was not assented unto the King sitting in Parliament; for Parlia∣ments are not called with Arms, and in the Field: It was in truth an inforced Act from a distressed King; shall this bind the Crown? I shall remem∣ber the Acts of Parliament made 15 E. 3. and there only were things that were in Parliament enacted derogatory to the Crown, as this is, that no Peer should be questioned but in Parliament, that no Great Officer be removed but in Parlia∣ment, that no Clergy-Man shall come before Tem∣poral Judges; these were things that were much derogatory to the Prerogative of the King.

15 E. 3. That King the same year, when he was better advised, did make a Charter, which is in Print, for the recalling of this prejudicial Act of Parliament still in force. It appeareth by the Parliament Rolls, and printed Books, where the King declareth it was drawn from him with an unwilling mind, and was prejudicial to the Pre∣rogative of his Crown; and therefore by that Charter it was repealed: But, my Lords, this Charter 17 Joh. if this should be in force, why hath there been no confirmation of it in so many Parliaments since? The Statute of Magna Char∣ta, 9 H. 3. hath been confirmed 31 times, why no confirmation of the Charter 17 John, and why have we not heard of it since that time? Reason for it, because it trencheth too high on the Pre∣rogative of the King and Crown: But take the words as they are; what be they? Nullum Scu∣tagium nisi per Commune Concilium Regni nostri: If it were an Act, doth this extend to take away any thing that belongs of common Right unto the Crown? And that hath been the Exposition of, my Lords, the Judges of Acts of Parliament, that Aids due of common Right are not taken a∣way by general words of Commune, &c. And therefore these Aids due of common Right, as this is, are no way taken away: besides, for the Statute of Magna Charta, it is made 9 H. 3. cap. 29. Nullus liber homo capietur, aut imprisonetur, nisi per Legem, &c.

The general words of this Act of Parliament doth no way impeach the Royal power; for this Royal power, it is Lex Terrae: Besides in these Precedents, 14 H. 3. 15 H. 3. 26 H. 3. 48 H. 3. and all the succeeding Kings remembred in all them, that these Writs went out to provide Shipping at the charge of the Inhabitants: So surely, if they had been taken away by Magna Charta, the Writs after Magna Charta would not have used it.

Obj. But then there hath been objected the Statute de Tallagio non concedendo; if it be 25 E. 1. as it is printed, or 34 E. 1. or as the Petition of Right doth recite it, Temps E. 1. Be it when they will; I say, under favour, there is nothing in that Act doth take away this power: The words are thus, Nullum Tallagium vel auxilium, sine voluntate Episcoporum, Baronum, Burgensium, &c. Mr. Solicitor, in his Argument upon proba∣ble grounds, did make question, whether this was an Act of Parliament, yea or no? 1. In re∣spect it was not enrolled amongst other Acts of that time. 2. Because the penning of it may seem rather to be an Abstract. 3. Because when the other Acts of those times were sent over to E. 1. to be sealed and confirmed, no such Act was sent over. My Lords, I will not lay hold on this, but will admit with them, that as it is recited in the Petition of Right to be an Act of Parliament, so I will admit, (yet to wave nothing that hath been said) but by way of admittance, I give this Answer.

First, That it taketh away no Aids that are due by the Laws of this Realm; yet the words are general, Nullum Tallagium vel auxilium, nis••assen∣su Parliamenti, &c. Here is not in this Act of Parliament so much as an exemption of an aid to Knight the Kings Son, or to marry his Daughter; yet in this the Law is resolved, that these Aids are not taken away: And so it is de∣clared, 25 E. 1. c. 11. which doth reduce these Aids unto certainty; so as your general words of Nullum auxilium will not do it: If this be an Aid due by the Law of the Land, then I say this is not properly an Aid, but a Contribution of King and People for the defence of the Realm: It is ad proficiscend' cum Navibus nostris; then I say, that this Power is inter Jura Summae Majestatis, one of the highest Prerogatives of the King, and shall never be taken away from the King, 12 H. 7. Stat. quia emptores terrarum doth not ex∣tend unto the King to take away his Tenure; if you will have such a high Prerogative taken a∣way, you must shew it in the Acts of Parliament: Nay, my Lords, I say that in the time of E. 1. this Royal Power is expresly reserved by Act of Parliament unto the Crown, and therefore in af∣ter times never intended to be taken away.

First, I shall enforce it out of the Statute of 25 E. 1. c. 5, 6. that doth recite, that Aids and Taxes which have been given unto us before time towards our Wars, and other business of our own grant and good will, howsoever they were made, might turn to a Bondage, &c. We have granted that we shall not draw these Taxes into a Custom, &c. and do grant, that for no business henceforth we shall take such manner of Aids, but by a common consent of the Realm, &c. sa∣ving the ancient Aids due and accustomed. This Aid is not taken to be an Aid, for this was never given unto the Kings of England, but taken by Royal Power, Stat. 25. speaketh of such Aids as have been given, and excepteth such Aids as have been due and accustomed; and by the Precedents shewn, it appeareth those have been due and accu∣stomed: It hath been desired in fide & Ligeantia, and with a Mandamus, 2 E. 1. cap. 1. This Sta∣tute doth confirm the great Charter, and the Charter of the Forrests: But in the end of it in the Parliament Roll, that notwithstanding all these things before-mentioned, both the King and the Councel, and all they present at the ma∣king of this Ordinance, will intend the Preroga∣tive of his Crown be saved unto him.

A further Answer to the Statute de Tallagio non concedendo, the practice that hath been since the time of E. 1. in the time of E. 2. E. 3. R. 2. and the practice since, doth shew plainly, that it was never intended by the Statute to take away this Royal Power: But then a thing materially ob∣jected, if the Records had warranted what had been said, and that was Rot. Parl. 29. E. 1. and then it was said, that though there be a saving, 25 E. 1. & 28 E. 1. yet here is no saving in this Act; so then Act 29 E. 1. all was lost.

My Lords, to this I say there is Nul tiel Record; and therefore I shall desire that this which they call an Act, 29 E. 1. I may attend your Lordships with: By this Record it doth appear, that it is only a Record of the perambulation of the For∣rest, and no repealing of any former Law; nei∣ther

ther is any thing enacted by that Law derogatory to the Crown.

Next Statute objected, 1 E. 3. cap. 5. words are these, that no man shall be charged to arm him∣self otherwise than in the time of the Kings Pro••enitors, and that none be compelled to go out of his Shire, but where necessity requireth, and sudden coming of strange Enemies within the Realm: So this Statute it is relative to what hath been formerly done, and what hath for∣merly been found done, appeareth by the Re∣cords of King John, E. 1. that the Subjects were to set forth Ships for their defence at their own charge; then those Writs went out in E. 1. time, as hath been shewed; and then this Statute al∣loweth in two cases, one where necessity requi∣reth, the other upon sudden coming of strange Enemies; and this Writ requireth no other, but where necessity is in the Kings judgment.

Obj. Next Statute 1 E. 3. cap. 7. was objected, where men of Arms were conveyed into Scotland and Gascoigne without wages; the King saith it shall be done so no more; the Statute mentioneth Scotland and Gascoign, forreign Wars, and so for∣reign to this business; for though Scotland was subject to the Dominion of England, yet it was a divided Kingdom, 8 R. 2. continual Claim Com. 376. That a Fine shall be paid by a Stranger, be∣cause he was in Scotland at the time of the Fine levied, Brad. 436. an Abjuration into Scotland is good, 6 R. 2. Protection, 46. that Scotland is out of the Realm: Therefore this Statute that speaketh of Gascoign and Scotland, speaketh of forreign Wars, not of defence.

Next, 18 E. 3. cap. 7. Men of Arms, Hoblers and Archers shall be at the Kings wages: This Statute likewise speaketh of going out of Eng∣land; but be that is upon the defence of the 〈◊〉〈◊〉 Seas, is not out of England; for that 6 R. 2. Protection, 40. The sending of Ships for the de∣fence of the Coasts is no going out of Eng∣land.

Obj. Next Statute 15 E. 3. cap. 8. no man shall be constrained to find men of Arms, Hoblers or Archers, otherwise than those who hold of such services without common consent. My Lords, this Statute of 25. doth not take away any for∣mer Laws in that Statute of 4 H. 4. c. 13. These 3 former Stat. of 1 E. 3. 18 E. 3. 25 E. 3 are recited in the Statute of 4 H. 4. and enacted they shall be firmly holden and kept in all points: So if these Statutes must be kept firmly in all points, then the Statute of 25 E. 3. doth not repeal any of these: Now that of 1 E. 3. cap. 5. reserveth a power unto the Crown, where necessity requi∣••eth, and when sudden Enemies come, 26 E. 3. those Ships were sent ••••rth, and commanded for the defence of the Realm at the charge of the Subject••, Rot. ••ra. 26 E. 3. m. 4, 5. Fra. 28 E. 3. m. 6. so as clearly there is no part of this Power impeached by this Statute of 25.

Then they have objected Parliament Roll, 2 R▪ 2. N. 3. Earls, and Barons, and other Sages of the Realm declared the great mischief by Sea and Land, therefore declared they could not remedy this mischief, but by charging of the Commons, which cannot be done without Par∣liament.

This is no Act of Parliament, it is but a Par∣•••••• or Discourse, and Communication between the Lords and Commons; it was in 2 R. 2. in the N••••age of a young Prince, who did not as∣sent, for there was no Royal Assent unto it, so no proof in this case.

Next Record 9 R. 2. Parl. N. 10. there was a tenth and half, and fifteenth and half granted to the King, upon condition contained in the Sche∣dule, which is, that the King should assent that the Officers should be named in Parliament, and servants appointed for dispence of the money.

If the King will accept of the Subsidies and Aids upon condition, doth this take away the Royal Power? There is no more done in this than was in the Parliament 21 Jac. for there the Officers and Treasurers were appointed by the Houses of Parliament: But then further it doth appear, that this was granted pro viagio Johannis Regis de Casteel, &c. so that it was not granted for the custody of the Sea, but for this voyage. Next place, they insisted upon the Parliament. 9 H. 4. N. 2. tenth and a half, and fifteenth and half granted with protestation, that this should not be returned for example; this is nothing, no more than the other. A Parliament grants a Sub∣sidy upon condition it should be thus and thus imployed; and the Protestation can no way pre∣judice the Crown in this 7 E. 4. Parl. N. 7. Ob∣jected there the Kings Speech, that is, there en∣t••ed upon the Roll, that he will not charge his Subjects but in great and urgent occasions. My Lords, this is nothing but a gracious Speech of the King unto his Subjects, that he would charge them but in such cases as should concern the de∣fence of the Realm. The Statute next objected was, 1 R. 3. cap. 20. that the Subjects from hence∣forth shall in no way be charged by any such Ex∣action or Imposition. This is no benevolence, but a legal due.

Next they object the Statutes of Tunnage and Poundage granted to the Crown for the defence of the Realm. In answer to that, there is no Act of Tunnage and Poundage that is now in force; neither are any duties taken to the Crown upon any Act of Parliament. Those Statutes of Tun∣nage and Poundage that have been granted, they make for the Crown; and therefore if your Lordships look the Statutes 1 El. 1. Jac. it was given towards the Kings charges for the defence of the Realm, and faseguard of the Sea; it was given towards the charges; it is not intended of any extraordinary defence; so as, my Lords, these Acts when they were of force did give this but towards the charges. It is so now, for this which is done, and those Contributions levied, are but towards his charges; and that will ap∣pear upon account, that his Majesty for these three or four years hath expended more upon the Sea than any his Progenitors; besides an ac∣knowledgment in those Acts, that this defence could not be done without the intolerable ex∣pence of his Majesty; these Aids are of necessi∣ty, and not to be lacking at any time.

My Lords, In the next place they insisted upon the Petition of Right, 3 Car. It was never in∣tended that any power of the King by his Pre∣rogative should be either taken away, or lessened by it. I dare be bold to affirm, for I was of that Parliament, and was present at the debates, that there was never word spoken in that debate of taking away any power of the King for the shipping business: Besides, it is declared, assent∣ed unto, and denied by none, that there was no intention by the Petition of Right to take away the Prerogative of the King: The King did grant no new thing, but did confirm the ancient and old liberties of the Subject. My Lords, these

were the Acts of Parliament that have been ob∣jected and insisted upon, on the other side. Next place for an answer to scandalous Objections, it hath been said by Mr. Holborn, that these Statutes of 25 E. 1. 28 E. 1. that at the time of making these Laws they were positive, no such salvo in them of the Kings Prerogative.

The Acts before H. 4. were penned by the Kings Councel, and those Clauses of a salvo crept in by the Kings Councel, these were bold and pre∣sumptuous Assertions. The Acts of Parliament made in that time of E. 1. that there should be a∣ny Clauses added by the Kings Councel, that should not be added to the Record. I have here the Parliament Record, that these Exceptions are recorded as fully as any part of the rest of the Record, and those Laws confirmed since; there∣fore to make any such Assertion against Records ought not to be done. He may object the same against Magna Charta, which is for the liberty of the Subject.

Next place they have objected out of the Par∣liament Book, 33 E. 1. that upon a Petition made to the King to have restitution of money taken, that the King did ordain the Treasurer should give satisfaction; I shall desire it may be read, and you shall see those moneys, for which directi∣on was given were for goods taken for the Kings use.

Parl. 33 E. 1. fo. 105. do. per Scrut. pro guerra, &c. Respons. per Regem, Rex ordinavit per Concili∣um quod satisfactionem faceret, tam citius poterit; so this Record was for moneys taken meerly for the Kings use, therefore reason satisfaction shall be given. Perambulat. Forest Rot. 20 E. 1. de liber∣tatibus Angl.

14. Febr. Lincoln; so here is no taking away of any formet Act of Parliament, it referreth to what shall be futurely amended and revoked.

Next Parl. 8 E. 2. m. 8. Fryers of S. John of Jerusalem did Petition to have satisfaction of 2354 l. taken by the King out of their Treasury, Now because this Record was vouched two days together, I desire it may be read, and upon the reading it will appear to be upon another pur∣pose; Sur le Roy, &c. there was cause and reason why the King should make satisfaction.

Next Record, Pat. 26 E. 1. m. 21. and that was highly magnified by them, that there was several Commissions went out to enquire of Gravamini∣bus of Woolls, and other particulars de Custod. Maris; and in this it was affirmed, that (as all the Kings Councel took their Notes) these Clau∣ses were omitted out of the Writs that concern the forfeiture of Lands, Goods, Chattels, or Sei∣sures: This Commission maketh nothing to this purpose, for like Commissions daily come, where there are Taxes laid upon men heavier then they ought to be.

Commissions granted to enquire of Grievan∣ces in this kind, wherein an answer was, if any thing unjustly be taken, it shall be restored: But not a word to impeach this Royal power. And, my Lords, for the penalties in the Writs, Pat. 31 E. 1. m. 20. power to seize the Lands and Goods of the Refusers, 20 E. 2. m. 10. under for∣feiture of all his Goods, 10 E. 3. m. 5. do. Claus. 12 E. 3. m. 18. do. That the penalties and Com∣mands were as high in this Commission as be∣fore.

Obj. Next Objection, that the Kings of Eng∣land have always consulted with the Parliament concerning the defence of the Realm, and that the Aids and Subsidies for defence have been granted by Parliament.

Ans. This is no Argument to impeach this Royal power; for if in time of War the King will consent unto it, shall this take away his Roy∣al power? In the time of E. 3. and R. 2. did that take away the Kings Royal power, that he may not ordain Standards of the money himself? He may by his Royal power erect Courts of Justice, shall that take away this from his power, because the Court of Wards was erected by Act of Par∣liament?

Obj. Next Record cited was Rot. Alm. 12 E. 3. pars 1. m. 22. That E. 3. was so penitent for what he had done, that he sent to the Archbishop of Canterbury to pray for him, and that the people would forgive him for laying those Taxes upon them, which his Wars compelled him unto, and he would never do the like.

You shall see it was only to pray for him for his Voyage into forreign parts, and so caused the Record to be read, beginning thus, De excusando Regem versus Populum, ending de Gravaminibus, dated at Barwick upon Tweed: Your Lordships see by this Record nothing, but the desire of a prayer. 1. To pray for the King for his Voyage beyond Sea, the other concerning the Charges or Impositions: Surely this Contribution com∣manded in the shipping besides, was none of these Charges, Talliages or Impositions: This his desire to the Archbishop was not only in the twelfth year of his Reign, but the like 25 E 3. 26 E. 3. and 50 E. 3. so as surely those prayers of the Archbishop were for other Causes, and not for this, which was for the defence of the Realm.

Obj. Next Objection, Fra. 7 R. 2. m. 13. That the King assigned Tunnage and Poundage to Henry Earl of Northumberla••d for guard of the Seas.

Ans. My Lords, It doth appear by the very Record it self, that this was only for an ordinary defence, and not for an extraordinary defence.

Obj. Then they insisted upon the Parliament Roll of 13 H. 4. n. 43. the Office of admeasu∣ring Linnen Cloth, a half-peny upon the Buyer and Seller, and other Fees upon long Cloth, the Parliament 13 H. 4. declares to be a void Office, and that accordingly Judgment was given 13 H. 4. Out of this he would conclude, that therefore there should be no new Office; that an Office granted with a Fee is void in Law.

Ans. For Answer unto this: 1. The reason why that was a void grant was this; it appear∣eth 4 E. 1. that the Office of all Woolls and Lin∣nen Cloth was one entire Office: If the King will grant that to another man which was to trench upon the former Office, a void Patent: Therefore a strange conclusion, that because this Office was void, therefore no new Office to be granted, 22 H. 6. fo. 9. The Office of surveying the packing of all Cloth, good Office, 27 H. 8. fo. 28. The King granted to one to be his Sur∣veyor of his Honor of—a good Office Fitz saith, because it had no Fee, therefore it was a void Of∣fice; and now at Bar it is said because it hath a Fee, it was a bad Office. If this reason may hold, all ancient Offices may fall, 39 H. 6. Office to be Marshal of the Kings Bench, 12 H. 7. 15. to be Warden of the Fleet. Nay, it taketh down all Offices that have been erected for the publick good, and upon just cause, as Offices of Subpoena in Chancery, Star-Chamber, &c. All those within time of memory must be shaken by this.

Obj. Next place objected, that these Contri∣butions, they are in substance Impositions, and that the King should not impose upon the Subject by his Charter, or by his Writ, but it must be done by common consent in Parliament: Your Lordships have observed in all my dis∣course, that I have not insisted any way upon any power of Imposition, neither is it the question in the business; for no mans property is invaded, no seisure of any mans Goods, unless they will incur for contempt, and by a wilful contempt the Sub∣ject may lose his property.

Therefore Dyer fo. 16. and 13 El. fo. 296. If the King will command his Subject to come into the Realm, and he will not, he shall forfeit for his contempt all his goods; or if he be attached to appear in the Courts of Justice, and not ap∣pear, he shall forfeit his goods, 34 H. 6. 49. 9 H. 7. 6. If a man will wilfully contemn the Kings Command by his Writ, he may be distrained; this incurreth not by an Invasion of his proper∣ty, but in respect of his contempt. Parl. 50 E. 3. m. 24. Lord Latymer he was sentenced for perswading the King to lay Impositions. My Lords, I have looked upon the Record, and there the cause of the sentence is declared, that he himself laid the Imposition, and did take up∣on him Royal power, and therefore he was just∣ly sentenced; and for the sentence of Doctor Mannering, nothing to this purpose. This Writ denieth not the property to be in the Subject, but saith, the Subject hath the property, and there∣fore commandeth the Sheriff to distrain him if he will not pay.

And for the Commission 2 Car. for the bor∣rowing of moneys for the Palatinate, this was for the recovery of the Palatinate, not for the defence of the Realm, and besides called in by special Order.

Next place they objected and shewed divers Records, that the King hath paid the wages of divers Marriners and Souldiers, and I do agree it; is that an Argument, that he may not com∣mand the Marriners to be sent out at the charge of the County to furnish the Kings Ships? this is against the Records that I have remembred. So likewise they have cited 21 E. 3. Rot. 77. ex par∣te Rem. Regis, the King commanded the Consta∣ble of his Castle of B. to build Ships, and the King to pay for them; so he doth at this day, he hath built the Sovereign of the Sea, and hath paid for it.

They have objected Doctor Cowels Book which was called in; I wish they had read the Procla∣mation, three Causes expressed: 1. Because he had writ things derogatory to the Crown. 2. For—3. For speaking irreverently of the Com∣mon Law, just to light upon the men who do not spare to wade into all the deep mysteries of Princes, who are Gods upon Earth.

For their Objection, that the King hath a Re∣venue belonging unto his Crown, for the defray∣ing of all ordinary and extraordinary charges, and for the guard of the Sea. As Tenures by Knights service, Escuage, Wards, Marriage, An∣cient Demosn, &c. Tunnage and Poundage, ser∣vice of tho Ports, and profits of the Sea.

My Lords, it is not for us that are Lawyers to look into the secret of the Kings Revenue, he hath high Officers, as Treasurer and Under-Treasurers that look unto the secret of his E∣state, and they know well whether his ordinary or extraordinary Revenuo do answer more than his Annual expence. The Story of Acteon might deter men from looking into the secrets of Prin∣ces.

For his Tenures, that Knights-service Te∣nure was originally instituted for the service of Scotland and Wales, 19 K. 2. Fitz Guard. 165 and old Tenures fol. 10. duties called Tunnage and Poundage are not given now unto the King by Acts of Parliament, and when they were given, it was for the great charges of this great de∣fence.

And besides those Acts of Tunnage and Poun∣dage only concerned the ordinary defence, the sending forth of the 75 Ships out of the Cinque-Ports, it was but for fifteen days at their own charges; and for the profit of the Sea of Stur∣geon and Whales, a proper defence for a King: And for the service of the Ports, you may re∣member by the Records shewn, they were com∣manded ultra debita: But then they have grant∣ed one Case, and I think but one, that the King may ordain a Toll in a Fair or Market, or grant Pontage, or the like, because there is an ad quod dampnum, and therefore shall be an enquiry si Pa∣tria gravatur. The King may grant a Fair with∣out an ad quod dampnum, if in his judgment, &c.

Rot. Sco. 1 E. 3. m. 8. Writ directed to the Treasurer to pay for the Shipping at Yarmouth. My Lords, it doth appear particularly in the Re∣cord, that I. S. was Admiral, and going into Scot∣land; so the defence was for a Forreign War.

It hath been mightily insisted upon, that here needeth no Command to furnish Ships by the Kings Writs, every man by the Instinct of Na∣ture will do it, where a necessity, or Royal pow∣er, or Command needs: Surely this Argument is made by the people, or to please the people; what will the consequence of it be, but the in∣troducing of a Democratical Government, when every man shall be his own Defender? The God of Hosts chose Captains and Leaders to go be∣fore his people, and commanded them but to give the people this liberty. That every man shall do as he please, and make a defence by an In∣stinct of Nature, is a strange Position.—But it hath been said in these Cases, it is better to su∣stain a mischief than an inconvenience; by this inconvenience every mans property is taken a∣way from him, as often as the King pleaseth, and what proportion he pleaseth. This though a Maxim in Law, yet it goeth unto particulars; but the loss of a Kingdom is both of Liberty and Estate; this is not to be reckoned among the mis∣chiefs, for this mischief destroyeth both Head and Members; therefore I do marvel to hear the Rule of Mr. Holborn, suffer a mischief, rather than an inconvenience.

Next Objection, Parl. 2 H. 4. n. 22. pur faire Barges, this was the Petition to the Commons; that the Commissions granted to Burroughs, Cities, and towns, for building of Barges should be re∣pealed; the Kings Answer for the present they should be repealed, but for the future, for case of necessity he should advise with the Lords: It doth not appear that these were granted for the build∣ing of any Ships for the Defence of the Realm.

These are Objections that have been made out of the Acts of Parliament, out of the Records and Reasons they have insisted upon; now I come to the Exception and objection against the Writs and Proceedings in this matter.

1. They say, there was no sufficient danger re∣presented by the Writs 4 Aug. They say the sup∣ply

by a Mittimus doth come too late, and that the words of the Mittimus are not a good affirma∣tive, quia salus &c. and it doth not appear there was any danger 4 Aug. 11. For this I have given it an Answer, that it was not necessary to represent the danger in the Writ. The King he hath se∣cret intelligence, he hath his Espies abroad, His Ambassadors beyond Sea, he knoweth the danger we know not, nay, he knows that which is not sit to be discovered; and those dangers by prepara∣tion perhaps diverted another way. It's not fit by a publick Writ to reveal the dangers.

But, My Lords, For the saisfaction of His peo∣ple he hath expressed sufficient cause enough in the VVrit. Quia salus Regni periclitabatur, &c. they say there was no danger represented at that time when the VVrit went out; that is mistak∣en, for the VVrit of Mittimus doth recite 4 Aug. and saith quod quidem praedones Pirati, &c. which shewes the danger was the cause of the issuing of those VVrits; then they expect this same word salus; it is a Physical word and signifieth health, and you must have no Metaphors in VVrits; surely the Gramarians can tell that salus is taken pro incolumitate, as well as for health, as safety, Metaphors are usual in VVrits; I dare be bold to speak there are more Metaphors in the Regi∣ster, than in any Book, Register 61. Turba, &c.

Then they have left no stone unrolled in this Case. Now they say the Kings Testimony by His VVrit is not sussicient, for that under fa∣vour it is Teste mcipso; without exception we are bound to give credit unto it, 1 Eliz. fol 105. Ne∣excat Regnum, the King assirms I. S. will go be∣yond Sea. Saith the Book, this averment of the King in his VVrit it is not Traversable, you shall not aver against it. The case remembred by Mr. Solicitor, which was mistaken by Mr. Holborn in the answer Hill. 20 E. 1. Coram Rege Rott. 14. He said these words vouched in the Record, were but the saying of the Kings Councel, and not the opinion of the Court; clear otherways, for it was the saying of the Judges, and then agreed quod Dominus Rex est Superlativum Recordum & praeccllens; will your Lordsaips give credit to the Certificate of the Marshal of the Kings Host?

To the Certificate of the Captain of a Compa∣ny if the Men be in the Kings Service, 11 H. 7. fol. 5. to the Certificate of a Bishop in case of Ba∣stardy, to the Certificate of a Mayor and Alder∣men by the Recorder, 5 E. 4. 30. 21 E. 14. 16. and will you not admit to the Certificate of the King by his Mittimus.

Next exception was taken to the Scir' Fac', that this Scirc' Fac' ought not to go forth to this as a debt to the King.

2. Reasons for it: 1. The VVrit of 4 doth direct a form of levying, which is by distress or impri∣sonment of those that are Rebels.

It is no debt to the King, and therefore ought not to be levyed by Scir. Fac.

My Lords, for this, this Duty is a Duty to the Common-wealth. It is pro defensione, Regni The∣saurus publicus respicit Regem; whosoever shall de∣tain any publick Duty, he may be questioned by the King as the Head of the body; for that it ap∣peareth 27. Ass. pl. 17. It was declared, that J. S. and J. D. had levied 100 Marks on the County for the array of certain Archers, which money did not come for the profit of the King. Out of this I observe two things. 1. This money that was for Archers, the money was levyed on the Body of the County. 2. Recovered by an Indictment at the Kings Suit, 27 Ass. pl. 17. 11 H. 4. fo. 2. the Fee of the Knight of the Shire that serves by Parliament, they are reckoned amongst publick duties; therefore the Goods of a stran∣ger may be taken within the Town to pay those Fees: If the Money be not paid, the distress may be sold, for it is for a publick Duty, 11 H. 4. 2. so is the Book Reg. 19. 2. the King commandeth the Sheriff to levy those Fees, as well within his Liberty, quam extra. Hill 20 F. 3. Rot. 57, coram Rege Juratores Hundredi de S. they make a Pre∣sentment, that J. S. and J. D. Cheif Constables of paid Wages to Archers which went not beyond Sea.

So as by this record, it appeareth, these pub∣lick duties are recoverable at the Suit of the King, Quia ad opus Domini Regis, Pat. 14 E. 1. M. 1. 14. the King commandeth an account to be taken of the murage, and how the Sums have been employ∣ed, P. 15 E. 1. coram Rege 70. Do. Rippon was be∣sieged, they gave Hostage; Promise made by the Town, that those Hostages should be redeemed; they were not, complaint made unto the King, and came to the Kings-Bench; and these Monies being 700 l. that was promised by the Town, for the bringing back of those Hostages, was or∣dered to be paid, because it was for the publick Service: So for other things that are pro communi utilitate int' Co'ia, Hill 5 E. 4. Rot. 4. Aurum Regi∣nae, due unto the Queen, may be levyed by Pro∣cess out of the exchequer in the Kings name; no∣thing more usual. This Scir' Fac' it is grounded upon the whole matter, the Writ 4 Aug. Cart. and Mittimus, and commanded that the Defen∣dants should shew cause, why they should not pay the Monies assessed upon them for the publick Service.

My Lords, I have done with the objections, I shall come to the judicial Records, 24 E. 1. ad Custodiam Maris. Bark-shire, an Inland Coun∣ty, refused to contribute; and Names of those that made Default were certified into the Ex∣chequer.

It appeareth by the Records cited, that process went out of the Exchequer in the strictest manner, a Capias in manus of their Lands, Tenements; Goods, and Chattels, and that their Bodies with Horse and Armour be sent to Portsmouth; for, besides the doing of their Services, the seizure of their Lands and Goods, 24. the same year ex parte Rem' Thesaurar', on the other side J. de. S. gave information unto the Chancellor of the Exchequer, and Barons, in absence of of the Lord Treasurer: of the Preparation of Men in Flanders, (this being remembred before to another purpose:) It appeareth after consulta∣tion had, they did resolve to send forth 2 Writs, one was to the Town, the other to T. H. Custes Maris, to call all for defence of the Maritine parts; ex parte Rem' Regis, 24 E. 1. Rot. 80. Hen∣ry Hussey was seized of the Mannor of W. in Bark∣shire, he was assessed to find a Horse pro Custod Marit'; he complained in the Exchequer, he had not the whole Mannor, and yet was assessed to find a whole Horse; he did not come and say, I ought not to be taxed; he submitted to the pow∣er, and desired a mannerly contribution, 25 E. 1. Rot 72. The Abbot of Robertsbridg Case re∣membred on both sides divers times; under fa∣vour, the joyning of the issue in the Record, is a very full proof in this Case; he brought a Re∣plevin against J. S. for taking of his Goods, an Inland Town in Kent, he pleadeth the Confir∣mation between our King and the King of France, & Leyborn assigned keeper of the Sea, the Plaintiff

was assessed unto 7. l. 7. d. Anno 22. 13. l. 23. 15. 24. and the Defendant being Collector, did di∣strain. The plantiff did not say in the Bar of this, he ought not to be taxed; but he was ses∣sed ad inveniend', &c. for such Lands.

The Defendant, saith the Plaintiff, did hold other Lands in the County, and for that Land he was Sessed; now this, doth admit the Power of taxing, Hill. 16 E. Rot. 23. coram Rege. The Jury of Norfolke did present, that Jo. Russel and others, 8 E. 3. were Hobellers elected in the Hundred of T. and staid at home; they plead, not guilty; the Jury find that Jo. Russel did per∣form the Service, but Jo. S. did not perform, therefore committed to Prison, and paid a Fine to the King. By this Record it appeareth, the Money paid to the Archers and Hoblers was at the Counties Charge.

Methinks the disclaimer, that is by the Com∣mons, 13 E. 3. Parl. N. 9. 11, is in nature of a Judg∣ment in this case, for there they did disclaim they had no conusance; and there likewise upon their own confession, that the Maritine Parts ought to defend at their own Charges, as the In-Land Parts the In-land Counties: This Confessi∣on, 13 E. 3. is a strong argument, Parl. 21 E. 3. Rot. 20. when the Commons did petition de garde le Mare answer soit garde fait; and that was at the Charge of the Country, as your Lordships know.

20 E. 3. Diverse Ordinances made, which Ordinances made had the force of a Law. The King and his Councel did ordain quod omnes illi, &c. which have such a quantity of Land, should be sessed to find one Archer. Decem libr. terrae Hobeller viginti libr. 2. Hobellar. 25 libr. unum bominem ad Arma. This appeareth, Fra. 20 E. 3. par. 1. m. 17. in the County of Bedf. and Buck. In the same year, another Ordinance, that those that did reside with their Families, cum toto posse, within six Miles of the Maritine Parts, were ex∣cused for sinding of Men without.

My Lords, upon the occasion of this Service, there were divers Refusals made. Certificate by Mittimus of their Names into the Exchequer; as in this Case: J. T. and W. G. were certified for Defaulters amongst others▪ upon this, the Court of Exchequer, they award Process against those Men, and others, which was a Cap. in manus: sei∣zure of their Lands and Goods; they came in, and pleaded, they resided infra sex leucas, with their Families, and all their Powers: Issue joyn∣ed upon this, Jury impanelled; and it appears, those that were found within six Miles, Judgment quod sine die; but for others imprisoned and si∣ned, for so much Land as they had without the six Miles, for that they were charged. If I should number unto your Lordships all the Judgments in this kind, I might speak here till to morrow morn∣ing.

P. 22 E. 3. inter Com. in the Exchequer. P. 22. E. 3. m. H. 22 E. 3. P. 25 E. 3. M. 25 E. 3. P. 〈◊〉〈◊〉 F. 3. P. 28 E. 3. And there is in a great num∣ber of other years of 29, 30 H. 4. And my Lords, according to those Judgments, Trin. 21 E. 3. R. The Writs went forth for discharging of such as have resided upon their Lands within six Miles, 21 E. 1. Pipe-Roll, discharged, because they were in the King's Service: So as, My Lords, out of these Records thus much may be collected; 1. They affirm the King's power in the assessing and levying. 2. Then they are grounded upon those Ordinances made by the King and his Coun∣cel. 3. Process went out of the Exchequer, and not in the King's Name. M. 22. E. Parl. coram Baron. Issue joyned, whether J. S. had Land to the value of 40 l. to find Hobellers: If he had them, he was to do it.

My Lords I have now done with the Judicial Precedents. I have cited some few among many other. It is now time, after so long Premises, to draw to a Conclusion.

Wherein your Lordships have heard, 1. That the King of England, that he is an absolute Mo∣narch, and that by the Common Law of England all those Jura Summae Majestatis are inherent in his Person.

This Supremum Dominium for all the Land that any Subject holdeth, it is derived from the Crown; and as Plowden putteth it, 12, 13. That there is a Tacite Condition in Law annexed upon his Grant, that his Officers may do Justice, to execute his Process severely upon his Grant.

This Tacite Condition may be subject unto a common Defence; Supreme Jurisdiction both by Sea and Land, was never yet impeached, and from him lieth no Appeal, And originally, by the Institution of the Laws of this Realm, what was once in his hand, was never granted from him; he hath absolute power of concluding War and Peace. All these are in him, as he is an absolute Monarch, and holdeth his Kingdom under none but God himself. It hath appeared, that the principal part of this Kingly Office con∣sists of the Defence of the Realm: That as his Jurisdiction is by Sea and Land, so is his De∣fence: And this hath been made appear unto your Lordships both by Precedents before the time of William the First, and since, pro communi utilitate; and in cases of necessity, the Kings of England may ordain by their Proclamation, Writs, Patents, by the Advice of Councel and Judges in Legal matters, that the King is the sole Judge of this Danger, both for the prevention of it, and for the avoiding it. Therefore for us to di∣strust that he will command too great a Power or Aid, it is a presumption against a presump∣tion of Law. It hath appeared likewise, that all the Incidents of Defence are inherent in his Ma∣jesty; we cannot build a Fort or Castle on our own ground without Licence. Your Lordships have heard the Precedents particular and gene∣ral: The Precedents which have universal Rea∣sons, quod omnes ex debito astricti sunt. Writs a∣warded by the King's Royal Power in time of Parliament, when Parliaments were, and in those years when great Aids and Subsidies were grant∣ed to the King, many times no cause declared, nor the occasion discovered. There is no Act of Parliament made to take away this Power; and the Judicial Precedents which your Lordships have heard, have affirmed this Royal Power.

My Lords, If there were no Law to compel unto this Duty, yet Nature, and the inviolate Law of Preservation ought to move us: These Vapors which are exhaled from us, will again de∣scend upon us in our Safety, and in the honour of our Nation. And therefore let us obey the Kings Commands by his Writ, and not dispute. He is the first Mover amongst these Orbs of ours, and he is the Circle of this Circumference, and he is the Center of us all, wherein we all as the Lines, should meet; he is the Soul of this Bo∣dy, whose proper Act is to Command.

But I shall need to use no perswasion to do Ju∣stice in this Cause; and therefore shall humbly desire Judgment for the King.

Finis Tertii Diei Attorney del Roy.