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.

Obj. Mr. Holborn objects that salus Regni peri∣clitabatur is not to be taken in part of the Case, because it is not in the Writ 4 Augusti, but put in after in the Mittimus; and then Mr. Hampden could not know that in 11 Car. salus Regni pericli∣tabatur, and therefore refuseth to pay the Asses∣ment upon this Writ: Then it is further object∣ed, that the Clause of salus Regni periclitabatur is put since into other VVrits.

Sol. To this I answer: (1.) It is true, it is not in express terms in the VVrit 4 Augusti 11 Car. but it is in words equivalent. (2.) If not equi∣valent, yet this Clause doth enforce the words in the first Writ. (3.) This Clause is by way of ex∣planation and signification, what the reasons were to move the King to send forth the first VVrit; and the Barons were to take notice of that, with other reasons, Dowmans Case; where a Fine is levied, a subsequent Declaration may serve to declare to what use a Precedent Fine shall be.

To sum up what I have said, the state of our Case is Dominium Maris periclitabatur, salus Regni periclitabitur. This defence is pro defensione Reg∣ni, tuitione Marts, securitate subditorum, &c. Now whether to set the Commonwealth free and in safety from this peril of ruining and destruction, the King may not of his Regal Authority, with∣out consent in Parliament, impose a charge upon his Subjects to joyn with his Majesty for such time as he shall think fit in the expences for the pro∣vision of a Navy, ad Guerram, for the defence a∣fores••••d: This is the question of our Case; I would be loath to upbraid with odious terms, though truly the expression hath not a compari∣son, the Tenent is so dangerous, as to hold that the Weal Publick must be exposed to utter sub∣version, ••ather than to impose a Charge on the Subjects without Parliament for defence thereof, but we must stay and expect till a Parliament be called, in which interim it's possible and proba∣ble the Kingdom may be subdued, and brought to final ruine and desolation. Indeed some Jews were of that mind that they would not defend their Country on the Sabbath day, by which means, in process of time, it came to be the ut∣ter ruine of their Estate.

I come to my second Head, concerning the Fundamental policy and Rules of Law, and rea∣sons of Law for the Government of this Realm, such as are pertinent to the Case.

It is plain, even before the Romans time; the Frame of this Kingdom was a Monarchial E∣state, and after the Heptarchy ended, it hath still continued Monarchial, and our gracious Sove∣raign is a Monarch, and the Rights of a Monarch appertains to him; and yet still with this, so they be secundum Legem & consuetudinem Angliae: And the King is by Oath (as Edward the Confessor was) obliged to confirm the Liberties of the Sub∣ject, as it appears by Magna Charta.

Where Mr. Holborn did suppose a Fundamen∣tal policy in the Creation of the frame of our Commonwealth, that the King inclining to Er∣rour might be restrained, &c.

He was utterly mistaken herein; I agree, that the Parliament is a most ancient Court, where the King and Peers be in person; there indeed the King and Commons may in a fitting manner par∣ler lour minds, and make known their grievances for redress thereof: But for the former policy I deny, the Law doth not know such a King-yoak∣ing policy: The Law is a trusty servant of the Kings; the Law is the Kings Instrument or means whereby he governeth, I never heard nor read that Lex est Rex, but most true that Rex est Lex, because Rex est via Legis, et sentietur habere omnia Jura in scrinio pecto•• is sui.

There are two Maxims of the Law of England which disproveth Mr. Holborn's supposed Po∣licy.

First, That the King is trusted with the state of the Commonwealth.

Second, That the King can do no wrong; and upon these two Maxims are grounded Jura sum∣mae Majestatis, as to summon and dissolve Parlia∣ments, concluding War and Peace, setting the stamp upon Money; and amongst the rest, I must add this of the Regal power, to command pro∣vision, in case of necessity, for defence of the Commonwealth, for the preservation of the very Salus Reipublicoe, otherwise I cannot understand how the King can be said to have the free and Majestical power of a Monarch.

True, the King is bound to defend his people against forreign Enemies. so saith Fitz Herbert in his N. B. Defender Son Royalme against Sea and Land Enemies, Juramentum Regis est Ecclesiam Dei, populi pacem ex integro servare.

Thirdly, Bracton and Glanvil say, that to a King haec duo Arma et Leges sunt necessaria, that a King must have Arms as well to defend his Subjects, as Laws to govern them; if he must have these things, he must be inabled with means to per∣form these things, and must not be dependant on his Subjects for the same, Quando quis aliquid con∣cedit, concedere videtur et medium sine quo res esse non potest: So that when the Law assigns the de∣fence of the Kingdom to the King, it gives him power also to raise the means sine quo non, with∣out which he cannot do it; and by the Funda∣mental policy of our Law the King ex mero Jure ought to have it, and the people of meer duty are bound to yield unto the King a supply for de∣fence of the Kingdom; but when the Parliament it self granteth a supply, it is not meerly a Be∣nevolence to the King, but they do an Act of Ju∣stice and duty to the King, and yet is a Token of the Commons hearty affection too, Parliament Roll 9 H. 4. N. 7. that proveth the Right of the Commons to grant supplies to the King; and that it is no Benevolence, but a Duty, 19 H. 6. 64. Hovenden 77. le Roy Inherit en Parliament, &c. Que Roy defendra son people, que le people graunt a leux de lour biens en Ayde de cel defence, que prone Inheritance: Besides, I prove my Opinion unan∣swerable by the Writs of Summons to Parlia∣ment, commanding the Subjects to chuse Knights and Burgesses; the words are, Ita quod, &c. ple∣nam potestatem habetis ad faciendum, &c. Milites, &c. super Negotia ante dict. &c. I deny not but ac∣cording to the Record 9 H. 4. they may offer their Grievances, but there is a principal Duty belonging unto the Commons to matters agreed on for the Defence of the Kingdom.

Then let the Case be this, the King wanteth present provision for necessary defence of the Kingdom; this provision must be speedily made, or it would be dangerous to stay for a Parlia∣ment:

In this case this is a duty from the Subject; for there is a necessity things must be done, but the Parliament cannot be pursued, Ask what is to be done in this case? is the duty lost for want of this form of Parliament? I do not understand it is: If it were a meer Benevolence, then such Benevolence could not be asked without assent in Parliament.

4. I say, that by our fundamental Law, the Parliament is the most Honourable and Highest Court that is, Commune concilium Regis & Regni, the greatest, most honorable and supreme Court in the Kingdom; yet give me leave to say, that it is but a Concilium of the Kings, the King may call it, prorogue it, and dissolve it at his good plea∣sure: we must consider it is a great body, it mo∣veth slowly; suddain dispatches cannot be ex∣pected; though the Parliament cannot err, the Parliament-men may; some men make scruples were there is no cause; some have finister ends and breed delay and disturbances.

In H. 4. time the people called one Parlia∣ment, Parliamentum indoctorum; and another cal∣led (saith my Lord Cooke) the white-Crow Parli∣ament: And in E. 3. time, called the good Parli∣ament, though a Parliament be a good way, yet mo••a trahit periculum; the rule of festina lente is most dangerous.

5. Dominium Maris is most considerable by e∣very Englishman, It's apparent in the continuance or not continuance of the Dominion of the Sea to the Crown, not only the Bonum esse but the es∣se of the Common-wealth consists: Slowness therein is a want of such sensibleness as every Subject out of right and great reason ought to have.

Sco. 10 E. 3. m. 3. A writ issued forth to all the Kingdom, Peers and commons, reciting quod con∣siderantes Dominium Maris periclitabatur, &c. si tal••s honor Laederetur, &c. Igitur omnes homines te∣nentur pro defensione Regni, contra hostes exponere se et sua; this writ issued to all Earls, Barons and Knights in the Kingdom upon David de Bruse his great Navy at Sea; Reciting, tantis periculis, &c. and those that were remiss to assist therein, the King would repute as his Enimies; and that they should treat with the Bishops and other great men for the defence of the Kingdom, and the King will requite them.

6. Of the necessity and danger of the Common∣wealth, not to speak of necessity in the general, but of the necessity in point of Goverment: 2 H. ••. A penal Law is made, and a clause which mak∣eth it; the King shall not dispence with the Law, that clause is void, and a Non obstante, may be of that Non obstante, no reason for this is given, but only because it taketh away the necessary power of the King out of his Hands.

Salus Reipublicae est supremum Lex; 36 H. 8. 8 E. 4. In cases of necessity and danger, and for the Publick defence a Bulwark may be erected upon any mans ground without his consent; A woman shall not have a Dower of a Castel of defence, though Dower be favoured in the Law; and the reason is, to divide such a strength of the King∣dom would be dangerous. An Alien Merchant may likewise take a house so long as he tradeth, yet when he ceaseth Trading the King shall have the interest of this house, because it is posible Sa∣lus Reipublicae may happen to be in danger, if the Alien continue.

If not to be done when Salus Reipublicae is in danger, yet if it be pro bono publico, it may be done: 44 E. 3. fo. 19. 5. Rep 63. The Chamberlain of London's case; where it is resolved, that the Inha∣bitants of a Town, without a Custom, may make By-Laws pro bono publico, and bind those that are absent.

If a house be on fire, to save other houses, it may be pulled down; and also in the case of the Boat to Gravesend, Lawful for the Master to Cast forth the Goods into the Thames, to save the mens lives in the Boat; and he is not by Law an∣swerable for the loss; 10. Rep. one bound by prescription to make Walls and a Damm against Waters, this man so bound unto it, is not able to do it; In this case there is an equity grounded up∣on Salus populi, and a Writ de Reparatione faciend. may be brought against all those within the Le∣vel to contribute for the present repair: If two joint-Tenants be of a house, the one shall have a writ de Reparatione faciend' against the other; where the word Tenetur is observable; now every man hath an interest in the Common-wealth; the King above all others, and therefore may com∣mand his Subjects to contribute with him for the saving of the Common-wealth.

13 E. 4. 14. Which concerneth the validity of measuring of cloath, It is said by the Gascoigne, the King may charge the people of his Realm without assent of his Commons, to a thing which may be for the common good: Besides observe that there is no Precedent of any civil Action, brought for any thing done in former time to Judgment, but only that one of the Abbot of Ro∣berts-Bridg, Case 26 E. 3. And in that one case, it is acknowledged, that mens Lands and Tene∣ments were agisted; that is, assessed for mony to contribute ad Custodiend' Maris; by the Kings command only, without a tax by consent in Par∣liament, was good in Law; and I observe, when the very case happened, and was in agitation, and gave fair cause of Demurrer, if the Law had been otherwise, for it was at that time, when the Statute de Tallagio, was in making.

Lastly I do observe that upon complant in Parliament, and upon occasion in former times, no one record can be cited, that when charges have been imposed without Common consent in Parliament, for defence of the Kingdom in an in∣stant time of necessity, that it hath been against the liberty of the Subject: As for that of 2 R. 2. where it was in deliberation before the charge imposed, there it was deemed unjust. Many things are denied to be Lawful before they be done; which once done may be good Law.

4 H. 4. m. 26. 6 H. 4. 9. For the safeguard of the Sea, and Defence of the Realm, they grant∣ed a Subsidy; with a Protestation not to charge the Subject any more: Out of this record observe there is not a word that the Subject should not be charged without consent in Parliament; on the other side, there are infinite Precedents aptly Cited by Mr. Sollicitor, to prove, that the Sub∣jects have been commanded to provide Gallies, proprijs sumptibus, to Array Souldiers in case of necessary defence, and those Subjects as well in Inland Counties, as in Maritine; among which Writs, 48 H. 3. Rot. Cl. m. 2. 10 E. 3. a Writ to the Town of Bedford, propter fortuitas causas cum necesse sit, quod securitate Regni, &c. Fra. 21 E. 3. pars 2. m. 9. 11. Subsidies for wools had been granted for a time, they did ordain quod Subsidi∣um levetur us{que} such time.

Cl. 1 R. 2. m. 18. A Writ was directed to Cambridge, Huntingdon, &c. to provide several Barges: By this Writ the King did declare that those which had 20 Nobles and upwards in goods should

Contribute and none others; and by distress to compel them unto the same. I Conclude my se∣cond general head, with this Tenent by my Judgment approved, that when the good and safety of the Kingdom in general is concerned, and the Kingdom in danger, the King may by Writ under the Great Seal of England, Com∣mand all his Subjects at their charge to provide for the defence of the Kingdom, and may by Law compel the doing thereof.

My third general head is to answer the Acts of Parliament, and Petitions in Parliament, touch∣ing the case now in Question.

First, for St. Edwards Laws which are funda∣mental, and are only that the people should have their liberty, Dangelt is mentioned in those Laws: not a word pertinent to this case.

Secondly, I find Magna Charta made by H. 1. to be freed ab omnibus G••ldis; which signifieth a sum of money, a German word, yet in this time Dangelt was paid 12d. de Hida. Wita signifieth an Amerciament.

It is said, that Magna Charta was made at Running Mead, said to be a Statute, Nullum Scuta∣gium aut Auxilium capiatur; The words pinched upon, are Nullum auxilium; I will answer this fur∣ther, together with other Statutes which are Sta∣tuta Revera.

As for that of Running Mead it is no Statute, nor ever was taken for any Statute, saving where∣in it doth concur with Magna Charta. Where are the 25 Barons appointed by the Statute in King John's Time? That Statute of Magna Charta, 9 H. 3. hath it not in: And it is that Magna Charta of 9 H. 3. and not that of King John, that hath so many Confirmations; so there is some∣thing in it, that Magna Charta in King John's time was not confirmed, pressed from unfortunate King John: But I observe, that after that Nul∣lum Auxilium, there followeth a Nisi ad Corpus Regis redimendum: Then I Argue if an Auxilium may be ad Corpus Regis redimendum, then certain∣ly a fortiori, for the safety of the Common∣wealth: But Megna Charta 9 H. 3. hath no spe∣cial words in it, only general words, quod liberi sint & habeant libertates suas: where (Suas) de∣notes two things. (1) A Right of the Subjects liberty: (2) His liberty; that is such liberties as it is fit for Subjects to have; the words are not omnes libertates but libertates suas.

14. H. 7. fol. 11. The King releaseth to the Prior of St. Bartholomews, to be as free in his Land, as the King in his Crown; yet he is taken still as a Subject, and shall pay a Fine.

This Statute 9 H. 3. cap. 20. proveth the Kings Right to dispose of the Body of his Subjects for the Defence of the Kingdom.

Statute of Confirmatio Chartarum, Que nullas prizes, savants les Ancient Aydes, &c. This Sta∣tute is not stood upon.

For the Statute de Tallagio non concedendo, though the King's Solicitor did excellently beat it down to have been no Statute; yet I agree it is a Statute: Nullum Tallagium ponatur sine assensu Parliament••. These Words indeed are general; but for a true Exposition of these Words, the occasion of the hard pressing of the times are to be considered. E. 1. had great Wars with France, Wales, and Scotland, and Flanders, both at the Confirmatio Chartarum, and De Tallagio non conce∣dendo. In the 22th. Year of this Kings Reign, the King commanded Scrutinie to be made throughout the Kingdom, to supply his Wars; that where they found Money, they took it as a Loan, without the Consent of the Subje••••, and in Religious Houses also; so that was somewhat against the Law: Bo••un and Big••t, 〈◊〉〈◊〉 and Marshal of England, did stand for the Pas∣sing of the Statute D•• Tallagio non concedendo, with∣out the saving of the Ancient Aids in Mag•••••• Charta, as pur ••ile marier, &c. (they 〈◊〉〈◊〉 notwithstanding) also the King's Power to array and send Souldiers, did still continue, as doth appear by the continual practice in that King and his Successors. I doubt not but most have read the notable Remonstrance publickly set forth by King E. 1. in the 25th. Year of his Reign, con∣cerning his proceedings in this Business: There he tells us, He did not take these Monies to build Monasteries with, but for the Honour of the Kingdom, and the Safety thereof.

The next Statute 14 E. 3. the second Parlia∣ment of that Year: In which Statute the King willeth and granteth, that the same Grant which is so chargeable, shall not be had in Example, &c. And that the Profits of Wards and Marriages, &c. shall be spent upon the Maintenance of the Realm, and for Wars, &c. Note the general Clause alledged in this Statute, is in the middle part of this Statute, and is not a Clause per se; therefore, certainly I say, this middle part is but temporary: That Statute is not meant to be a perpetual Discharge of all manner of Aids; for notwithstanding that Clause, King E. 3. After∣wards and during his Reign, did as freely charge the Subject for the Defence of the Realm, as be∣fore. It is worthy of Observation, that this Sta∣tute 14 E. 3. is not mentioned in the Petition of Right, as the Statute de Tallagio non concedendo is: And yet if this had been a perpetual Statute, as great Reason to have mentioned this, as any other.

Next Statute is, The Petition of Right, 3 Car. (This reciteth the Statute of Tallagio, 25 E. 3.) against Loans: Then cometh the Petition it self, That no man hereafter be compelled to yield to grant Loans, Benevolences, or such like Charge, without consent in Parliament: And the King's Answer is, Soit droit fait. In this, his Majesty himself, in his Second Speech, saith to both Houses, and most justly, That it must needs be granted, he had confirmed no New, but only granted the Ancient Liberties: No express Clause in any of these Statutes, that no Charge shall be imposed for any necessary Defence of the Kingdom. Certainly, if such a Clause had been used, I doubt of the validity of it: I be∣lieve neither E. 1. nor King Charles would have yielded to such a dishonourable Act: I say, that according to all Rules of Law for exposition of Statutes, the general Words must have a reason∣able intendment to the Maker thereof; nam Li∣tera occidit; For to make a Law for the Good of the Commonwealth, and to keep the Let∣ter thereof, will prove the Bane and Ru∣ine of it. The Statute of W. 2. saith, That Te∣nant in Tail, shall not, neque per Factum, neque per Feoffamentum, do any Act to the prejudice of his Issue; yet if the Disseisor grants a Rent to the Disseisee, for a Release, whereby he may defend the Land, the Issue shall hold the Land Charged.

The Statute of Gloncester, That Tenant for Life and Years, shall make no Waste; yet a Waste whereby the Land is made the better, that is no Waste within the Statute. Dyer, fol. 361.

4 E. 4. fol. 3. 14 E. 3. An Information for eve∣ry Sack of Wool carried out of the Kingdom by Merchants, they were to give Sureties to bring in Bullion, viz. two Marks for every Sack; then Silver Plate was not so common as it is now.

The Defendant pleads two Statutes to dis∣charge him of the finding of Sureties. The first is, 36 E. 3. cap. 11. Where the King, in con∣sideration of a Subsidy of 3 s. upon every Sack of Wool granted by the Commons for three years, grants that after those three years nothing shall be taken of the Commons, except the anci∣ent Custom of half a Mark upon every Sack of Wool. And the other was, 45 E. 3. That no Imposition or Charge should be laid upon Wools without the Subjects Consent in Parliament, other than the Subsidy granted al Roy; yet it was adjudged, that the finding of a Surety to bring in Bullion, was not taken away by the general words of either of those Statutes, because the intent of the Makers of those Statutes, was not to take it away: Besides, every Statute is to be taken for the most Advantage for the King.

Pasch. 13 Jac. Camera Stellata: Whereas by the Statute of R. 3. The Subject should not be Charged by any Charge called a Benevolence, or by such like, yet one Sir Oliver St. John, being brought ore tenus to the Bar, it was Resolved by the whole Court of Star-Chamber, and Judges there, That a Commission to Treat what men would give voluntarily, was not within the Sta∣tute; and he was grievously Sentenced. I con∣clude this with Mr. Solicitor's Saying of W. 1. Qu••d omnes liberi sint ab omni injusta exactione, &c. You see here are several Wards referring to an Act of Parliament; yet cap. 59. he hath these Words, Quod sint fratres conjurati pro facultati∣bus ad Regnum nostrum defendendum. This lat∣ter Clause sheweth the intention of the first.

I have done with the Statutes; from which I have cleared the present Question.

Besides these Statutes, Mr. Hampden's Councel urged the Statute of Winchester; That no Soul∣diers should go forth of their own Counties without Wages.

This Statute of 1 E. 3. doth not extend to Case of Necessity. I find a Complaint by the Commons, that there were Commissions to Ar∣ray Men of Arms, and that the King hath not before this time given any Wages, 18 E. 3. cap. 7. Men of Arms chosen to go out of England at the Kings pay; this is when they go for the King's Service out of England: This Service is in Eng∣land; for the Sea is part of the Kingdom. That of 25 E. 3. is only for particular men.

The Statute 4 H. 4. answers it self, That in case of Necessity, it shall be Charged. Rot. Pl. 5. H. 4. n. 24. It appeareth there, Commissions were directed to Gentlemen, for the conducting of Souldiers unto the Sea-Coasts; wherein there were some Clauses that were perillous: These Commissions being delivered to the Commons in Parliament; the Commons, upon deliberation amongst themselves, did obliterate divers Clau∣ses, and prayed no Commissions of Arrays might go forth, then as in the Copy they had presented; the Tenor of the Copy was enrolled; one Mr. Hampden named therein for a Commissioner, be∣sides Eleven others. And in this Commission of Array, there was a Recital of the Invasion by the Enemy, and burning of certain Places; and that if they should go on or come again, the King∣dom might be in great danger. The King assign∣ed Commissioners to Array men at Arms, that were fit to bear Arms, and todistrain others that had Estates, to find Allowance towards the Charge of those that had Arrayed, secundum sta∣tum & facultates suas, and to make Beacons, &c. And this Commission was for Buckingham, and Hampden a Commissioner.

I come to my Fourth General Head; to An∣swer their most material Objections.