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.

Judge Crawley his Argument.

THe Record hath been opened; therefore I shall spare that Labour.

I conceive the Case in question to be this; Whether the King, by his Right of Sovereignty, may Charge the Subject in Case of Necessity; to contribute with him to the necessary Defence of the Kingdom, without the Subjects Consent in Parliament?

Mr. St. John, who I take to be the Mouth of the Defendants Councel, confesseth, that this Question is not so much de Re, if a Necessity; but de Modo, if done without a Parliament.

This is one of the greatest Cases that ever came in Judgment before the Judges of the Law. The Kings Right and Sovereignty in a high point, is concerned; the Honour and Safety of the Kingdom is concerned on the one side, and the Liberty of the Subject in this particular, and the Property of his Goods on the other side.

This is the first Cause of this kind that ever came to Judgment, that I know of. Kings have not suffered their Right of Sovereignty to be de∣bated

at the Bar, as now it is; for these are Ar∣cana Regni, not fit for publick Debate: The Use of the Law was to have Cases debated; as saith one, No man knows what Metal the Bell is of till he hears it Ring. This Bell hath been rung roundly, very laboriously on both sides.

The Subjects have objected, That they may bring Actions against Officers of the King, for the Assessements by virtue of this writ: But for that I find no Precedent, save only one; which is in 25 E. 1. The Abbot of Roberts-Bridges Case: And he was taxed double for this Matter of Defence for Sea and Land, in two several places; and therefore he brought his Action to be discharged in one place. But in Cases of this Nature, they Petitioned in Parliament to the King for Redress; as appears by many Prece∣dents.

In Bracton, who writ after H. 3. his Time, and who inclined unto those times, when the Li∣berty of the Subject was strongly maintained; he saith, fol. 5. Totum Regnum petiatur quod, &c. They used to Petition the King. But now you have Actions brought against the King's Officers in the King's Bench, Common Pleas, and here in this Court: And it pleaseth the King to bring this Scire fac. to the end the Right of this Cause may be tried by the Judges of the Law.

In the Eleventh Report, and in my Lord Cook's Commentaries upon Littleton, fol. 110. saith, That the Laws and Customs of the Parliament are ob∣scure.

Lex est Consuetudo Parliamenti, querenda est ab omnibus, ignota à multis, & cognita à paucis. As Tully said of one that would define Anima; said, it was Musica Harmonia, who was a Musitian: Homo non multum recessit ab Arte sua. I, for my own part, will keep my self to mine own Art of the Books of the Law and Statutes; and if I use the Help of others, I hope you will pardon me for that. I will briefly expound my Order and Method throughout the Case.

First, I will remove some few impertinent Dis∣courses, which are not in the Record, as being out of the Ring of this Bell.

Secondly, I shall propound, That the sole Care of the Defence at Sea and Land (Jure Regio) ap∣pertains to the King, and none other, and that he is the sole Judge of this.

Thirdly, That the sole Charge of the Defence in ordinary Cases, regularly and legally apper∣taineth to the King.

Fourthly, That the Extraordinary Charges of the Defence ought to be supplied by Parliament; and upon this Rule, Quod omnes tangit, ab omnibus debet supportari.

Fifthly, If the Defence be of Necessity, and the Danger great, and so great as the King's Re∣venue is not sufficient to supply the Occasion, then the Rule comes to be in use, Qui sentit Commo∣dum, sentire debet & Onus. And if it be gene∣ral, Quod omnes tangit, ab omnibus dibet suppor∣tari.

Sixthly, In the Defence where all ought to joyn, the Sea and Land ought to assist and con∣tribute one to another.

Seventhly, I say there are some particular Cases, in which this Charge of the Defence cannot be imposed by Parliament.

Eighthly, That the King solely is intrusted by the Law to impose this Charge on the Sub∣jects.

Ninthly, These being my Generals, I shall come to my Minor, and conclude, That this Charge is justly imposed without Parliament.

As to the first Impertinency; you speak of Tunnage and Poundage: Is there any such Grant on Record? Shall we take notice of a thing that is not in Rerum natura? I say, I wish it had been granted; for qui ausert Medium, destiuit Finem; He that taketh away ordinary means of Preserva∣tion, is the Author of Ruine and Destruction: You see it is taken, you cannot tell by what right. If this were material, you wrong your Clients; you pleaded it not: and if not material, you wronged us, and your Auditors, and your selves to talk of it.

You say, This Ship-Money hath been Charged for these three years together: Is this Discourse within the Record? If not, you speak without book.

You say the King hath imposed great Sums of Money upon Merchandizes: But what is this to this?

Then you talk of a Property the Subject loseth hereby; but this rather to abuse the People with∣out either colour or shadow; it was ad facien∣dum, or rather inficiendum populum: if you at the Bar had not spoke it, Argumenti gratia, it could not have proceeded, but out of the depth of Malice or Ignorance, or both: If one be found guilty of Murder, and the Judge knoweth the contrary,, what shall be done? he ought to ac∣quaint the King therewith; for it is the King's Right of Sovereignty to pardon; but the Judge hath no such power: I say the sole care apper∣taineth to the King only, and he is the sole Judge both of the Defence at Sea and Land, Fitz. N. B. fol. 113. Le Roy de droit sit sauer et defender son Realm, cie bien vers la Mare, come vers les Enemies, Register, fol. 127. Rex, &c. pro eo quod nos dig∣mitatis nostrae Reg. ad providend. salvationem Regni nostri circumquaque sumus astricti, Fortescue. c. 37. Omnes Potestat. Regiae deferre, &c. in defensione & tuitione Regni; I think no man will oppose this.

But we will come unto the Third; the sole Charge of the Defence regularly and legally ap∣pertains to the King, Bract. fol. 1. In Rege qui recte regit, necessaria sunt h••c duo, Arma & Le∣ges, &c. with which Words accords Justinian in his Proemium to his Institutes, from whence that is taken.

In Plowden 315. in the Case of Mines, one Reason why he saith Royal Mines belong unto the King, is,

Because he is the Head, and the People his Members; and he is to preserve the Subject two ways; by Arms to defend them against all Hosti∣lity; and by Law to preserve them from Ene∣mies, 3 Rep. 11. The Bodies, Lands and Goods of the Kings Debtors were liable to Execution; Quia the saurus Regis est pacis vinculum, & Bellorum Nervi, 11 Rep. The King's Treasure is the Li∣gament of Peace, the Preserver of the Honour and safety of the Realm, and the Sinews of Wars, and is of high estimation in Law, in re∣spect of the necessity thereof: That the imbez∣ling of Treasure-Trove, though not in the King's Chest, is Treason; and Treasure, and other va∣luable things are so incident to the Crown, that they cannot go from the Crown; He hath on the Land Wardships, Escheats, Amerciaments, &c. for the maintenance of his Honour and Digni∣ties Royal: For the Sea, he hath Sturgeons, Whales, &c. these do little towards an Army to defend the Sea. The Reason wherefore the King hath the Customs, is for the protection of

Merchants upon the Sea against Pyrates and Ene∣mies of the Realm: so I shall conclude this Point, that the ordinary defence both for Care and Charge of Sea and Land appertaineth unto the King.

Next is this, which is my Fourth: That ex∣traordinary Charge of Defence regularly ought to be supplied by Parliament, and cannot be done without. Albeit Subsidies be of Gift and Grant, yet this is of Right and Reason, The King is Pater Patriae; if the Son give unto the Father, when he wants, it is his Duty; 19 H. 6. In the Rector of Cheddington's Case; whether the King may grant a Discharge of 15th.; if the King may grant a Discharge to one, he may do so to all, fol. 63. It is against Law the King should not have Subsidies of his People in Case of Ne∣cessity and Danger: The same Law that willeth the King should defend the People, the same Law tells us we should grant unto the King Aids for the Defence. This is to be done in Parlia∣ment regularly; and that this extraordinary Charge cannot be imposed but in Parliament, these are their Objections.

I come now to the Statute de Tallagio non con∣cedendo; which without question is a Statute, be∣ing in our Printed Books; and in the Petition of Right, 3 Car▪ it is recited as a Statute, and esta∣blished. The Words of that are, Nullum Talla∣gium sine assensu Parliamenti. And 14 E. 3. c. 1. There the King expresses himself; He will not impose any Charge or Aid on the Subject, but in Parliament. Fortescue reciteth this to be the Law, No Charge without Parliament. And Bodin, Lib. 1. fol. 97. saith, That the Statutes of England are as a Buckler to defend the Subjects a∣gainst the King, for laying any Charge upon them, but by Parliament: and in his 6th. Book magni∣fieth this Kingdom for the due observing of this Law. Other Kings have in this Point no more than the King of England; for that it is not in the power of any Prince in the World, at his Pleasure to raise Taxes on the People, no more than to take another mans Goods from him. And yet nevertheless, if the Necessity and Danger of the Commonwealth be such, as it cannot stay for the Calling of a Parliament, the King in his Wisdom and foresight, may lay a Charge with∣out their Consent; and this is by the Law, Jure Gentium. The Rule of Law and Reason holdeth, quod omnes tangit, &c.

And so I come unto my Fifth Head: If the Defence be of necessity, and the King's Trea∣sure doth not suffice to defray the Charge, then instead of the Rule, Quod omnes tangit, ab omni∣bus debet suppertari: This Rule succeeds; Qui sentit Commodum, sentire debet & Onus. If the Treasure of the King will not defray the Charge, I do not conceive he is bound to sell or pawn his Crown, or his Lands: Some Princes have been so courteous to do it, and paid it again. You say at Bar, he must spend all and more if he had it: I will put this Case (in the 10th. Rep.) One is bound at the Common Law by Prescription, to repair a Wall against the Sea; yet in Case of Ne∣cessity, in avoydance of publick Mischief, the Prescription ceaseth; yet in this Case, Reparati∣on must be done, then cometh this Rule, Quando Impotentia excusat, tunc qui sentit Commodum, sen∣t••re debet & onus: And if he be not able to do it, tha Charge being so extraordinary, shall he not have Contribution? The Law compelleth not Impossibilities: So the King is bound to defend the Kingdom by Land and Sea; but if the De∣fence be so great, as the Danger tends to the subversion of the Kingdom, and the King not able to make Defence, the King and his Subjects ought to contribute to this Charge in due propor∣tion: Ʋbi est eadem Ratio, ibi est eadem Lex. If the Law make this provision for a small Level of Ground, à fortiori for the Commonwealth in time of Necessity and Danger.

Sixthly, In this joint Charge of Defence, the Land ought to assist the Sea: Nay, it is not pos∣sible any Island should be defended without the wooden Walls of the Navy at Sea. Canutus the Dane entred Thames Mouth with an Army, and afterwards went and Landed in Dorsetshire; and again Shipped his Men, and entred in Severn; then entred in Worcestershire; then he saileth back again to other parts of the Kingdom; so he that is Master of the Sea, may make great spoil of the Land at pleasure. The Netherlands ha∣ving a great Navy, the Spaniards fortified strong∣ly, as soon as the Wind serveth, set Sail, and were 80 Miles off before the Spaniards could March with their Forces to make Resistance: They presently got a strong Place, and after∣wards failed suddenly to another Place, and took that also. These are now Examples for Islands to have the Mastery of the Sea.

Our Grand Army at Tilbury in 88, what good had they done, if the Spaniards had been Masters of the Sea?

It is not possible for an Inland County to be safe without a Navy at Sea; as appeareth in Sir Walter Rawleigh's History of the World; and if the Sea must defend the Land, why should not the Land be contributory for defence of Sea and Land? There are several Precedents, where Writs have gone to Inland Towns, to charge them to go unto the Custody of the Sea. Cl. 48 H. 3. 24 E. 1. 26 E. 3, &c. Writs have gone into Berk-shire, Oxford, &c. Inland Counties, to command them to con∣tribute towards the Defence of the Sea.

To the Seventh; That in Case of instant dan∣ger, the Imposition cannot be by Parliament: I will here••n consider the Nature of the Danger, as Mr. Solicitor readily pursued it. If it concern the Essence, Subversion, Destruction and Ruine of the Kingdom, Quando Hannibal ad Por∣tas; for the Senators then to sit down in their Robes, is rather a Charge, than ought else. It is no time then to call a Parliament; no well advised man will think it fit.

Here are Pericula visa; the Danger is certain, none will say it is fit to call a Parliament.

This Kingdom of England hath been 4 times conquered, and therefore we have reason to fore∣see the danger: first conquered by the Romans; then by the Saxons, then by the Danes, and last∣ly by the Normans.

The Moralists did make three parts of provi∣dence. 1. Memoria Praeteritorum. 2. perspicientia presentium. 3. providentia futurorum. It much con∣cerns the King, the head of the Common-wealth to be Circumspect in the Prevention of publick danger: Conjectures and Probabilities are to be regarded; Now, put the case, upon a probable and a voiolent presumption, a potent Enemy is prepared, and ready to come; Is it not fit that there should be a defence prepared instantly? Besides, there may be Just Reasons of State, why an Enemy is not fit to be revealed in Parliament; for if great preparations be, and very probable against us, then to discover them an Enemy, is to give them occasion to become a Challenger; no man can know the Certain event of things future:

one may be a freind in shew, to the Kingdom, or a Neuteral, not yet openly discovered; yet we may be mistaken in our opinion of them.

I leave this to your Consideration, whether it be fit or no to discover our thoughts in Parlia∣ment of an Enemy.

The Eight, that in these cases of necessity and danger, the King Jure Gentium, may charge the Subject without his Consent in Parliament, by his Regal Prerogative; for in the King there are two Prerogatives; Regale & Legale Prerogativum; which concern his Person, Lands and Goods.

Now for the Prerogatives Royal of a Monar∣chy, they may be resembled unto a Sphear; the Primus motor is the King; It is observed that e∣very Planet but one, hath a little Orb by it self, that moveth in its Petty compass; so the Centre is the Common-wealth, the King is the first mo∣ver.

I will repeat some of these Prerogatives; for they are by all Laws and by our Laws.

• 1. The first Regal Prerogative is this that con∣taineth all the rest; that the King may give Laws unto his Subjects; and this doth not detract from him when he doth it in Parliament.
• 2. To make Peace and War 19 E. 4. 6.
• 3. To Create Supreme Magistrates.
• 4. That the last Appeal be to the King.
• 5. To pardon offences.
• 6. To Coin money.
• 7. To have Allegiance, Fealty, and Homage.
• 8. To impose taxes without Common consent;

These I say are the Principal; I have many more of them, and allowed, and in case of necessity the King may impose without Consent in Parlia∣ment.

Comines fo. 179 saith, That if the Cloud be seen but asar of, the King without the consent of the Subjects cannot tax them; but if the Cloud be o∣ver head, the King may call certain wise persons unto him, and tax his Subjects.

You say, If the King move a War offensive, it is time enough to call a Parliament: If Defen∣sive, this cloud is seen long before, But (Oh good Sir) is this always true? is not the cloud some∣times even over the head, before descried: Read him, and he will tell you, in time of peace we ought to fortisie; But in these cases where the danger is eminent, saith Bodine Lib. 1. C. 47. the King ought not to expect a Parliament; but is to raise Monies suddenly: and such impo∣sitions laid upon the Subjects are Just and necessary. This is the opinion of those Writers, who wrote not according to the Law of any one Kingdom; but according to the Law of Reason: I could vouch these two Authors concerning the right of Soveraignty, which they give to Kings, to impose charges on the Subjects without Con∣sent of Parliament, in time of necessity.

Obj. But what if the King will levy mony up∣on pretence of defence, in time of danger, and dispose it otherways, and the danger not so ap∣parent.

Sol. I say, so Pious and Just a King will never pretend a danger, if it were not revera; And if any man will think the King will charge himself and his Subjects to no purpose, far be it from my thoughts to think so.

This money thus taxed, is imployed accord∣ingly, for the defence of the Kingdom; together with the Kings own money which he would not do upon pretences.

Again, the King is Pater Patriae, therefore by the Law of nature he is intrusted with the De∣fence of the Kingdom. And this power to tax his people is but a Consequence of that.

To say, in time of extraordinary danger and necessity boni viri sunt sibi leges, I say for every man to be his own Judge, is for every man to do what he listeth, Mr. Holborn tels you, if it rest in a Kings power thus to tax the Subjects, whereas Mr. Hampden is now taxed at 20 s he may be the next year at 20 l; for, saith he, if he may when he will, then he may what he will: Its an ill conse∣quence you make; you magnifie Parliaments: great reason we ha••e for it, let us do so too of Kings, let none think dishonourably of Kings, no question they will regard the Laws of God, and to make such objections is not so well handled.

Now we come to Precedents and Acts of Par∣liament for Precedents, my Brother Weston hath taken pains to repeat them. Two Precedents the Defendants Councel have much relyed on.

Rot. Parl. 2 R. 2. pars 1. I have here the record, and in truth it were a great ease to the Judges, and to the cause, to Avouch them truly. This of R. 2. was in the Kings Minority, and no order being taken for provision for the defence of the Kingdom against the next Summer, and nothing was found in the Kings Treasury; and for conclu∣sion, they say, they cannot this mischeif reme∣dy without a Parliament, whereupon a Parlia∣ment was called, and the King in the mean time having monies lent him, he gave security to repay it. Consider this, the King at this time was but an Infant: It was a very troublesome time, many of those that were Parliament-men made default to attend, excusing themselves, they had other business. This then that was done, was but a meer Resolution in troublesome times, this is no such binding business, that it should be so much made of.

Parl. 2 H. 4. N. 22. A Commission went forth for the providing of Barges, and the Commons Petitioned to avoid this charge, that the Com∣mission may be repealed: Admit the King upon this, Call in the Commission; shall this be a dis∣claymer of the Kings Right? he saith he will speak with his Lords, this is only a satisfactory answer: besides the King was but an usurper. Now to say that this answer of the Kings is a Resolution in the case, is a great mistake.

He that will go through this Load of Prece∣dents that have been vouched on both sides, he had need have more time, then Mr. Holborn, who spent 4 days. You have alledged Precedents both be∣fore the Conquest and since, that of the Danegelt, though a heavy yoke, yet it was necessary to be born, whether it was granted by Parliament or no, Non Constat, I say it is a good Precedent and I hold it good without Parliament; some distress∣ed Kings, as King John: Hen. 2. and R. 2. they did indeed do that by borrowing, which they might take by right.

Now to give answer to the Statutes of 25 E. 1. 14 E. 3. and the Petition of right 3 Car. Admit, I say, there were an expresse Act that the King (were the Realm in never so much danger) should not have aid from his Subjects but in Parliament, it were a void Law; will any man say such an Act shall bind: This power is as unseparable from the Crown, as the pronouncing of War and Peace is; such an Act is manifestly unreasonable, and not to be suffered, saith Doctor and Student; to follow the words of the Law, were in some Cases against Justice, and the good of the Common-wealth; wherefore in some cases it is necessary to leave the words of the Law, and to follow that which

Reason and Justice require; and to that intent Equity is ordained which is no other but an exce∣ption of the Law of God, or the Law of reason from the general rules of the Law of man, which exception is secretly understood in every general Law. This power of imposition without Parli∣ament, appertains to the King originally, and to the successor ipso faclo if he be Soveraign in right of Soveraignty from the Crown; you cannot have a King without these Royal Rights, no not by Act of Parliament.

Again, these Acts bind not; for a favourable construction in Case of the King is to be had, Doctor and Student 27. not possible to make any general rule of ••aw, but shall fail in some par∣ticular case: If a Law were made in a City, that no man under the pain of death should open the Gates of the City before the Sun-rising, yet if the Citizens before that hour, flying from their E∣nemies, come to the Gates of the City, and one for saving of the Citizens openeth the Gates be∣fore the hour appointed by the Law, yet he of∣fendeth not the Law, for that Case of necessity is excepted from the said general Law by Equi∣ty; so for the Statute in E. 3. time, not to give any relief to a Sturdy Beggar upon pain of im∣prisonment; yet if one relieve him with Cloaths in extremity of cold in Winter to save his life, he shall be excused by the said Statute, by such an Exception of the Law of Reason and Equity, as aforesaid.

Improbabilities are to be excepted out of Laws; Nemo tenetur ad impossibilia, Poverty and Impossibilities (as one answered) were more mighty Goddesses than either force or love.

But now you will say, where is this danger? how doth this necessity appear? if you will find it, you need not enquire for it by Sea or Land, but In this very Record; the Writ sheweth it, the most favourable construction for the King is to be had, as in Plowdens Com. 336. Case of Mines of Gold and Copper.

Now all this while I have been in the general, and in a manner in Propositions, I come now to Application: before I descend unto it, I shall shew upon what part of the Record I shall ground my self, though in the Mittimus it be salus Regni periclitabatur, and said to be Metaphorical, for that it asketh no great Answer; it is good e∣nough as in the Writ of Oyer and Terminer, Om∣nes qui habent damnum vel salvationem are bound to contribute, will you tye the King to the lan∣guage of I. S. may not he express himself in what legal manner he pleaseth? you say this phrase of Salus Regni, &c. is to be general: If it be alledged, and you demur upon it, you con∣fess this for the most advantage for the King, as in the case of Mines; it is not alledged in the Scire fac. this might have been made a good que∣stion. But without all these, I conceive the Writ 4. containeth matter sufficient; that Writ of 4. containeth the cause for this great prepara∣tion, and expresses them in particular; what if it were no more but this, least we should lose the Dominion of the Seas? what is it to be call∣ed Dominus Maris, and not to maintain it, but to suffer this Princely Honour to perish, and o∣thers to become Masters of it; what havock and confusion would follow? And this is the true intention of the issuing forth of this Writ.

Next consideratis etiam periculis; that is, the danger so evident and so great in these Warlike times, that of necessity defence must be made both by Sea and Land.

Next is great oppression used at this time, Da∣tum est nobis Intelligi quod praedones, &c. That the Pyrates do take and spoil our Merchants goods, and carry our men into Captivity; what will you say to this? let them take our men, and let us have a Parliament, and we will bring them home again; the Land was never without Thieves, nor the Sea without Pyrates.

Next Paratum periculum & preparans; now these Ships go for defence of the Sea against this danger, & vestrum & vestrorum. The Writ faith the whole Realm is in danger both by Land and Sea; you have confessed this in your Demurrer.

But you complain you are hurt; because you have seven Months liberty, a Parliament might be called in that time.

Now in this time of imminent danger, is no stay to call a Parliament.

You say it hath continued for three years; put the case the danger continue for three years, and ceaseth, and then the King ceaseth to lay a charge, and the danger begins again next year; what shall not the King require Aid as the dan∣ger encreaseth.

And now to conclude without repetition, it appeareth by this Record, that the whole King∣dom is in danger both by Sea and Land of m∣ine, destruction, dishonour, and oppression, and that the danger is present, imminent, and in∣stant, and greater than the King (without the aid of his Subjects) can well resist, whether then must the King resort to Parliaments? No, we see the danger is instant, and admits no delay; Shall we go home, and sit together in careless security? not so, but let us resort unto our pious and just King, whose Prerogative and Right of Sove∣raignty is to defend the Realm, and to maintain his Subjects Liberty: And so I give Judgment for the King.

Finis Argument. Justic. Crawley.