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 Barkley his Argument.

IN August 11 Car. there issued forth out of the Court of Chancery his Majesties Writ, direct∣ed to the Sheriff of Bucks, and to the Bailiffs and Burgesses of the Borough and Parish of Buckingham, to the Mayor, Bailiffs, and Burgesses of the Borough of Chipping, Wiccomb, ac probis hominibus in eisdem Burgis, and to all his Majesties Subjects, in omnibus aliis Villis, Burgis, &c. in Dom. Com. Buck.

The King by that Writ recites, that he had intelligence quod praedones quidem Piratae & Maris Grassatores congregati fuerunt Naves & bona ac Mercimonia non solum Subditorum nostrorum, verum etiam Subditorum amicorum nostrorum in Mari quod per Gentem Anglicanam ab olim defendi consu••••t, that they did daily commit unsufferable mischiefs to the Merchants, and carry them into miserable Captivity; and that his Majesty did Conspicere Navigium indies praeparantes ad Mercatores nostros ulterius molestand. & ad Regnum gravand. unless present remedy were had. And besides, his Ma∣jesty considering periculis quae undique his guerri∣nis temporibus imminent; it a quod nobis & Subditis nostris defensionem Maris & Regni omni sestinatio∣ne qua poterimus accelerare convenit; and his Ma∣jesties resolution being defensione Regni, Tuitione Maris, securitate subditorum nostrorum, salva con∣ductione Navium, & Merchandizum ad Regnum no∣strum Angl. veniend. & de codem Regno ad partes

exteras transeund. (auxiliante Deo) maxime provi∣de••e, co pro quod, his Majesty and his Predecessors were Lords of the Sea, and was loth such an Ho∣nour should perish in his time: And besides, the King calling to mind the just rule, quod omnes tan∣git per omnes debet supportari prout per Legem & consuetudinem Regni Angliae fieri consueverit; for these causes his Majesty by his Writ commandeth the Sheriff, and all those to whom it was direct∣ed, ex side & Ligeantia sicut nos & honorem no∣strum diligitis, that he should providere unam Na∣vem de Guerra of the burden of 450 Tun, fur∣nished with Men, Munition, &c. that this Ship so furnished should be ready at Portsmouth by the first of March, for the space of 26 Weeks, at their costs and charges, ad proficiscend. cum Navi∣bus nostris, and to go with his Majesties Subjects to attend those to whom his Majesty should com∣mit the custody of the Sea; and this to be pro tuitione Maris & defensione vestrum & vestrorum. After this there cometh a Commission to the She∣riff, and to the Bayliffs and Mayor of the Bo∣roughs and Parishes aforesaid, or to any two or more of them, whereof the Sheriff to be one ad assidendum omnes homines in iisdem Burgis & Paro∣chiis & Membris ejusdem, & terre tenentes in eis∣dem, to contribute towards the providing of a Ship, and this Assessment to be made secundum statum suum & facultates suas: And to distrain and cast into prison quos rebelles et contrarios inve∣••••rit in premissis.

Last of all, for further direction, his Majesty forbids the Sheriff to lay any more upon his Sub∣jects than is necessary for the service, et quod si plus quam sufficiat collectum fuerit, his Majesty commands it should be restored, and the Sheriff is not to appropriate the money to any other use than the Writ commands.

9 Martii 12 Car. there issued out of Chancery a C••rtiorari, and this was above a year after the Ship should have been ready at Portsmouth: This Writ reciteth the Writ 4 Augusti, and for that the King is informed that some of his Subjects have refused to pay those sums assessed upon them towards the providing of a Ship of War, com∣mands the Sheriff to certifie the names of such persons so refusing, and the sums assessed upon them; the Sheriff he makes a return, and certi∣fieth John Hampden Esquire was assessed at 20 s. and refused to pay the same.

After this 5 Maii following there issues a Mit∣timus out of Chancery, with this Clause in it; Quod quidem breve, pro eo quod salus Regni nostri Angl. et populi nostri ••jusdem periclitabatur Edicta Cancellaria nostra emanari curavimus inter alia Bre∣via ad hujusmodi provisionem et assessamentum faci∣end. per singulos Com. Civitat. Burg. &c. By this Mittimus the King most justly and honourably commandeth the Treasurer and Barons of the Exchequer that they should pro levatione, collectione et receptione omnium et singularum pred. denar. sum∣mar. de praedictis contributionibus adhuc non solut. fieri fac. prout de jure et secundum Legem et con∣suctud. Regni nostri Angl. fuerit faciend.

After this, and in May last, the Barons in the Exchequer very judicially awarded the Writ, (which is the Exchequer Writ of Grace) a Scire Facias into Buckinghamshire, against those whose names were in the Schedule, and had not paid the sums assessed upon them: And by this Scire fac. they were to shew cause why they should not be charged with the payment of the sums of money ••ssessed upon them; upon this Scire Facias Mr. Hampden is returned garnished, he appearing hath demurred generally; the words of his De∣murrer are, Qaod materia in eisdem Brevibus con∣tent. minus sufficient. in lege existen. ad onera••dum ipsum Johannem Hampden de aut solutione pred. summae vigint. solid. s••per ipsum ••odo et forma pred. taxat. aut assessat. &c. He doth not say that the matter is not true, but is not sufficient in Law; by which words he doth acknowledge the mat∣ters contained in the Writ to be true: Mr. At∣torney hath joyned with him in Demurrer; upon this Demurrer, one grand question and some in∣feriour have been stirred: Because I have time little enough for the grand question, I will omit the inferiour.

The grand question is, whether as the Case is, the Charge imposed by the King on his Subjects for provision of Shipping without consent in Parliament be good in Law yea or no; this is a question of extraordinary weight, and infinite consequence, the greatest that ever came before Judges (as I think) of ordinary Courts of Justice; and therefore qui ad pauca respicit facile respon∣det: But he that will answer this question, must respicere multa et ardua.

Upon debate of this question, elaborate, learn∣ed and strong Arguments have been made on ei∣ther side.

I have laid this question to my heart, and all the Arguments made I have diligently attended, and read over the Record considered of the Au∣thorities and reasons of Law, and upon all my pains, and deliberation, and judgment, I have concluded with my self, and am satisfied in my Conscience, and so I hope I shall satisfie others, that as this case is, I say in this special Case the charge imposed is good in Law, and that Judg∣ment ought to be given against Mr. Hampden, and for the King.

And for my better method herein, I shall di∣vide my Argument into four Heads.

• 1. First, I shall state the Case, and settle that which is the proper question: The true stating of a Case conduceth much to the right answer of it.
• 2. In the second place, I will consider the Fun∣damental Rules of the Common Law appliable to the stating of this question.
• 3. I will consider the Acts of Parliament, and Answers to Petitions in Parliament, and Magna Charta, which concerneth his Majesties proceed∣ings in this Case.
• 4. I will answer the material Objections made on the other side.

Touching my first Head for setling the questi∣on in this case, I hope none will imagine that it is drawn by consequence to to be the question in this case, whether the King can at all times, or upon all occasions, impose upon his Subjects without consent in Parliament: He may not, the Subjects are Free-men, not Slaves, to be taxed as Villains, though the King of England hath a Mo∣narchical power Jure summae Majestatis, yet in Judgment is to be secundum Legem et consuetudi∣nem Angl.

The Subjects here have Feodum simplex in their Lands, and in their Goods a property, a meum et tuum, a Birth-right in the Laws of the King∣dom; no new Laws can be put upon them, no old Laws to be abrogated without consent in Parlia∣ment: It is his Majesties Maxim declared in print, that the peoples liberty doth strengthen the Kings Prerogative.

Again, though Mr. Hampdens counsel have spent most of their powder in Records, to prove

that the Kings Ministers have paid, that the Ba∣rons have been commanded to pay, and to make allowances, in case of forreign and voluntary Wars, and in case of particular or ordinary de∣fence of the Realm, as in scouring of the Seas, or in making payment in case of Loans or mo∣neys borrowed, or disbursted in the building of his Castles, in cases where particular mens Ships were lost in the War, for keeping of Hostages in War, or in extraordinary defence, where the King had sufficient aid for that purpose granted in Parliament: in these cases I confess the King ought to make payment upon particular and just account: But these Cases come not home to our Case, for these Cases have just reasons for them, and these Records being taken away, the multi∣tude of the Vouchers on Mr. Hampdens side will be greatly abated.

As for the ancient charge of Danegelt, though it come nearer than any of the forementioned Cases, yet it much differs from the Cases on our parts. It hath been said that this Danegelt was not imposed but by common consent in Parlia∣ment, and afterwards was released by Edward the Confessor, and now so long since uncollect∣ed, that it is not known what it was.

1. First, I say, it was not granted by Parlia∣ment, but it was imposed by the King by a Coun∣cel with his Baronage, and that doth plainly ap∣pear in the Black Book in the Exchequer, and by Gervasius Tilburiensis. Again, for the Release that is by King Edward the Confessor, there are two sorts of Danegelt, the one was ad pacendas Da∣nes, the other ad Coercendos Danes; the first was to give them money to be gone, and not to trou∣ble the Country; yet that ad pacendos Danes was taken by Canutus a Danish King, and so continued till Edward the Confessors time, for there was then no cause of gathering that Tribute; so that S. Edward the Confessor had just cause to dream he saw the Devil dance upon a heap of Danegold, so raised when no necessity for it; and so he re∣leased the same.

The other kind of Danegelt ad Coercendos Da∣nes, exacted Tempestate Belli, as saith Sir Henry Spelman in his Glossacium Cap. 11. & Cap. 28. This Imposition was not released by Edward the Con∣sessor; the words of the Black Book are, that this continued until E. 1. time, noluit hoc solvi, but shou'd be left prop••er inopinatas causas, tempore belli, &c. The Clergy-men were free from this Da••••gelt, and the reason of that was quia pro o∣rationibus, &c.

The difference between our Case and that of Danegelt appeareth to be this: (1.) That Dane∣gelt was Annual, ours is due only in case of ne∣cessity. (2.) That Danegelt was a Tribute money, ours is provision Shipping and Armour in kind. (3.) That of Daneguilt was chiefly against Pyrats, ours against Enemies by Sea and Land. (4.) Ours is general on all without exception, so was not Danegelt, the Clergy was exempted; I will add this to Danegelt, that King Ethelred who was ta∣ken to be the first Imposer of it, was a weak and improvident King, he looked to provide against the Danes when they had got the Mastery of the Sea, and not before; and for that cause he was called Ethelred the unready: But on the other side, we the Subjects of England have cause to yield unto his Majesty the Name of Charles the Ready, or Charles the Provident.

4. I say with some clearness, under favour, that the Charge now demanded is not within the sig∣nification of the words Aid, Prizes, Taxes, or Talliages, which is most certain cannot be ex∣acted by the King but in Parliament.

Aids, they were helps from the Subjects for making of Castles, building of Bridges, helps for voluntary Wars, or the like; two kinds of Aids, one such as is before-mentioned, (2.) Such as were Aids and Services, as Aid pur File marier, pur faier Fitx Chivalier.

Mises, they were sums of money for the Kings first coming to the Crown, as at this day is yielded in Wales to the Prince of Wales.

Prizes, are taking away part of the Subjects goods for the Kings use without paying for them: Hence Prisage of Wine which is a due unto the King, that is the Kings Butler shall have to the Kings use one Vessel before, and another behind the Mast.

Taxes and Talliages, by them were meant Tenths, Fifteenths, and other Subsidies granted by Parliament; and this appeareth by Brooke T.

Tenths that is on the Clergy, and is to be le∣vied on their Land; and the Fifteenth on the Lay people of goods properly; Tenth part of the goods in a Borough, and Fifteenth part in the Country; and this was levied anciently upon their goods, but now upon their Lands secundum Ratam Terrarum; so that now all know their cer∣tainty: In some places, part levied upon goods, part upon Lands, Parl. 11. H. 4. N. 25. Parl. 25. E. 3. N. 12. where you shall find express diffe∣rences between Aids, Taxes, and Talliages.

What Subsidies are, we know our Case is within none of these.

5. I confess it must be acknowledged that our present Case doth not go so far, as that an assu∣red ruine and subversion doth fall, and that in∣stantly, unless the Charge commanded be sup∣plied this way; that is not our Case, I will now tell you what the state of our Case is.

The State must be made out of the Writs and Records themselves, out of the Writ 4 Augusti 11 Car. and out of the Mittimus 5 Maii 13 Car. in which a further danger is expressed than in the Writ 4. Though the Causes be several, yet they are not to be severed, they must be all of them laid together in the balance; Quod Predones, qui∣dem Pirati & Maris Grassatores Congregati fue∣runt, Naves & bona Subditorum deripientes & spo∣liantes hominesque in Captivitatem mancipantes prae∣parantes ulterius molestandum et ad Regnum gravan∣dum nisi citius Remedium apponatur; Consideratis etiam periculis quae undique his Guerrimis tempori∣bus imminent: Ita quod nobis et subditis nostris de∣fensionem Maris et Regni omni festinatione qua po∣terimus accelerare convenit; out of these Circum∣stances it appeareth there is apparent peril not without cause Tempora Guerrina. Again we must observe, that in this Case the Command is ad proficiscendum cum Navibus Regis; here is not a quid tibi sieri non vis; here is rather a contributio than Tributio; the King doth not assume part of them to himself, he Commands them to be used for the common defence: And note, the distin∣ction in the words of the Writ, ad proficiscendum cum Navibus nostris; so there they have a distin∣ction from his Ships, their property still conti∣nueth in them, and the service being performed, the Subject shall have them again, 1. M. 28. and 29 E. 1. on the Kings Remembrancer side, and Pas. 13 E. 2. ex parte Rem. Regis inter Brevia; there the Subjects are commanded to be at the expences ad Guerram necessariam; this is conso∣nant to Law, and warranted by many Precedents, as the whole Kingdom is concerned, so the King∣dom

in general is changed; as the reasons are general, so the Charge is general, and the King himself is to joyn in provision for the common defence: The final end of all this preparation is pro defensione Regni, Tuitione Maris securitate sub∣ditorum nostrorum salva conductione Navium et Mer∣chandizarum: And lastly, that salus Regni peri∣clitabatar.

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.

Obj.

It hath been Objected by Mr. St. John, 2 R. 2. 10, & 11. That there is Potestas in Curia, & Potestas in Camera, and that Fines must be As∣sessed by the Judges in Curia, and not per Regem in Camera.

It is true, in Matters that are in a Legal way it is so; but in 8 E. 4. there is Potestas ordinaria, & Potestas absoluta, in extraordinary Cases, as in this, such absolute Power still followeth the per∣son, and presence of Kings, Hil. 2. E. 3. Pl. 6. Book at large, one had Money in his hands to pay Souldiers, and he committed Outrages; and a Writ directed to Attache him, and brought in∣to the King's Bench; and Scroope Chief Justice said, it was founded upon a Suggestion, and was against Common Law. No doubt, if a man hath Money of the King's in his hands, and Rout the Countrey, no doubt but a Writ may be sent forth, though ordinarily an Indictment goeth before an Attachment; Rex est Capitalis Justic' Angl. The King draweth a power of Majesty along with him, insomuch that in his presence a Lord cannot meddle with his own Villain.

Obj.

But you will say, The King hath often paid the Charge of Provision for Wars, and made repayment to the Subjects for their Dis∣bursements.

Sol. If you will go to viewing, I will shew you ten to one, where the Subject hath been Charged without Repayment, when the King had it of Right: But those that were upon bor∣rowing, the Repayment was due and just: But if there be other Sums that were repaid by the King, and he not bound of Right to pay; shall we pu∣nish him for his Goodness? The Case of Mines may be fitly applied to this purpose; where all Mines of Gold and Silver are the King's, the Subject hath nothing to do therewith. The Earl of Northumberland's Councel shewed, that it was usual for the Subject to have part of the Oar upon getting of the Mine: I Answer, That it was of the King's Goodness, because he gave the People some of the Oar; shall this bind the King? If the Subject hath had it exgratia Regis, this doth not abridge the King's Right.

23 E. 1. ex parte Rem. Regis, 77. There was a Case; Writs did issue to divers for the ma∣king of Gallies; and this was done per Regem & Concilium, not per commune Concilium; this was pro defensione Regni: And although the King saith he will be at the Charge of the making of them, yet it commands them to take Timber wheresoever they find it; though Magna Charta be, Non capere Boscum alicujus sine Volun∣tate.

Obj.

Mr. Holborn objects Disusage for many years, of this kind of Charge for defence.

Sol. Disusage doth not take away the King's Right; as appears by 11 H. 4. And these of Galleys in specie, agree with making of Ships; Gallies were necessary in those times, in these times Ships.

Mr. St. John set down the Means the King had, and Billeted the way how to employ the same

for the Defence of the Kingdom; as in Tenures and Escuage, His Customes, Tunnage and Pound∣age: I say no more, I would to God all that would serve.

And for that of Escuage, 7 E. 3. it is forinsecum servitium, to be done in a Forein Realm. The forty days they account to begin, when the King did set foot on Scotland or Wales, or any Country of the Enemies. There are two kinds of Escuage, as appears by the Black Book in the Exchequer, and by Gervasius Tilburiensis, lib. 1. 26. And the one of those kinds of Escuage is laid upon every Free∣hold within the Kingdom, and a Mark levied up∣on the Land: That is not your Escuage by Te∣nures, which Mr. St. John speaks of, but another kind of Escuage.

Again, Lords, Barons, and Earls, they had some held of them by Escuage; if the immediate Lords did not go, they went not neither: Now here is the proper Escuage you would have for the Defence of the Kingdom.

Object.

Oh, but you say this Charge is over the whole Realm, proper only to the Ports to be liable unto it.

Sol. To this Objection I answer, Quod omnes tangit per omnes debet supportari, & qui sentit com∣modum sentire debet & onus: The In-land men have profit by it, reason they therefore should contribute. And I say, there is most reason to excuse the Cinque Ports, prout 3. Rep. Sir William Herbert's Case, and 11 H. 7

Again, for the division of Shires, it was in Al∣freds time; the Realm is to be considered but as one Body; there are times when all the Shires of the Kingdom are to be considered as one entire Body. It is said in the Scripture, If one Member suffer, doth not all the rest suffer with it? If reason to ex∣cuse any part of the Realm, most reason to excuse the Cinque Ports.

But for direct Precedents in the Case, I refer my self to those cited by my Brother Weston, that went to In-land Counties. Besides, upon the Commission of Sewers, it doth appear all that were in the Level or Reach are to be assessed to∣wards the Reparation, so is the Book Pasch. 25 E. 2. Banco Regis Rot. 70. It appeareth Rippon was set about with the Scots, and they gave Ho∣stages to the Scots, till they procured Money to redeem them: It appeareth by the Record, that all they that had Safeguard by those Hostages were compelled to bear their ratable shares for the Re∣demption of those Hostages.

Cl. 23 E. 1. m. 4. A Writ issued out to the Arch-Bishop of Canterbury, sicut lex justissima, quod omnes tangit ab omnibus defendend', This was not by Par∣liament, for there was no Parliament between 21 & 24 E. 1. That Writ sheweth how the Ene∣mies did intend Anglicanam Linguam delere, and command the Arch-Bishop and the Clergy, to come within a short day, tractandum nobiscum, &c. Though the Parliament be a necessary way to pro∣vide for Defence, but while we are arguing per∣haps too late to provide.

Obj.

Oh, but then, say they, here is an ill con∣sequence befallen the People, to have a Charge laid without Parliament.

Sol. I am sure the danger of the loss of the Kingdom is the greater; chuse the lesser evil, if you have two evils.

Obj.

Here is an Annual Charge, the Subjects have paid it since 11. and doubt they shall pay it still.

Sol. Were it Annual, it were against Law; but it is not of it self per se an Annual Charge, but so long as the necessity continueth, the Charge must serve, cessante causa cessit effectus; and truly the continuance of this must be left to His Gracious Majesties Justice.

Obj.

Oh, but it was agreed if Hanibal ad port as; that's necessity to admit of this Charge.

Sol. Here is the same reason at this time, Fla∣grante Bello, and therefore the same Law, to avoid further mischief. Security is the most dangerous thing both for Body and So••l.

Obj.

The Statute of Tunnage and Poundage is for the Defence of the Sea. That Tunnage and Poundage must pay all the Charges the King can be at, that it is enough to make a Stock for the Kingdom: And that though this be not now granted to the King, yet it is taken de facto.

I answer: My Lord chief Baron knows, that the granting of Tunnage and Poundage doth not stay for a Parliament. In the Petition of Right the King hath expressed He cannot want it: And when the King dies to whom it is granted for Life, the Successors have taken it both before, and un∣til it be granted unto them. And for the words, 1. Jac' penned by the Commons: 1. It recites, That all others the Kings Right, Noble and Fa∣mous Progenitors, Kings of England time out of mind, have had Tunnage and Poundage, I can∣not say this is altogether true of Tunnage and Poundage, but of Customs time out of mind; So if the Kings of England have had it time out of mind, it is a Right for it time out of mind. They say it is for the Defence of the Realm: The very words of the Statute are, Towards this great loss and charges, which may be laid out by the King. And saith further, Although the same do nothing counter∣vail the great Charge of your Majesty.

Obj.

It hath been objected, That it appeareth by computation, a Parliament might have been holden within six months time.

Sol. I answer, Say, the King should call a Par∣liament, sometime spent before the Parliament be set, and then in treating and concluding, when the Parliament hath done; this Command of the Kings 4 Augusti 11 Car. to be done 1 Martii that should be but to begin at the end of the Parliament, they reckoned here without their Host.

Obj.

What if it be surmised by the King, That there is a Danger, and no such thing.

Sol. I am sorry to see this; Hath not our King a Conscience as well as King E. 1, and King E. 3. had? Besides, the King is Recordum Superexcellens: Is it not sufficiently proved with a Tesie m••ipso: Besides, the King saith the Danger is great; he hath the best Intelligence, better than the Learn∣ed Judge, or wisest Merchant; you must believe men in their own Arts: It is the Kings Art to know of Forein Matters and Intentions; we must believe the King in this Art, sua credendum, &c. Let us look into the Records, he hath confessed all this to be true, then ex ore suo, I may give Judgment against Mr. Hampden, & non refert quod sit notum Judicii, sed quod notum in forma Judicii.

To take notice of the Parliament Roll 26 E. 1. m. 21. The King desirous to reform the Gravami∣na, he sent forth Commissions to do right to eve∣ry party, and to enquire what was taken by the VVarrant of the King. The words are, That the Kings Pleasure, is the Commissioners should return what was taken by warrant, & que ils si tiendrent a payes per reason; it is no more, but the King will give them a Reason, or it was satisfied in Rea∣son.

Object.

Here have been many Records objected,

That the Writs in former times were only Roga∣m••s, &c.

Sol. But they are effectuose Rogamus & requirimus: Sco. 12 E. 2. m. 7. do. & 13. do. there are the words rogamus & requirimus; A Writ directed to Lon∣don, reciting, that the Scots infinibus Regni had ta∣ken the Castles of the Kings, and His Subjects, and had besieged more Castles. The words of the Writ are, Nos considerantes necessitatem, &c. vos requirimus & rogamus instanter, to array 500 men, and send them to York sumptibus propriis.

Obj. You object, p. 26 E. 1. Ro. 35. ex parte Rem Re∣gis, the Letter of one Reynold de Gray, by which it appeareth he was to array 1000 men; he an∣swered by his Letter to the King, that he durst not do it.

Sol. He doth not say, he ought not to do it; besides, it is that he durst not do it without war∣rant; then with warrant he durst do it. Further he saith, he could not move in those parts with∣out pay; the King had sent him word the Trea∣surer should ordain payment: For Souldiers it is common for them to cry together, they must have pay, or will not stir: No marvel if Reynold de Gray could not get them stir without pay.

Object. In 29 E. 1. a great sum of Money was taken from the Abbess of B. pro urgentissimis nego∣tiis; and repayment was promised, and made ac∣cordingly.

Sol. It was then paid, ut exoneretur conscientia; the King made a Conscience in the doing of that Act, which was a Scrutinie.

Object. Rot. Alm' 12 E. 3. m. 22. do. And that is a Letter to the Arch-Bishop of Canterbury, wherein the King desireth the Arch-Bishop to move the People to have a good Opinion of Him, to pray for Him, and give Alms, because he had laid Taxes upon them through necessity.

Sol. But it was to the end the King might pros∣per in His Wars, to desire their Prayers: Let any man judge, if this be a confession of any wrong done by the King.

In 13 E. 3. Parl. Roll 10, 11. A course was to be taken for a Navy to defend the Sea; the Com∣mons say, it belongs to the Cinque Ports: It was desired of the Commons to give a Subsidy, and they should be discharged of the Guard of the Sea; but the Guard▪ of the Land, that belongeth unto the Commons, sansgage; they cannot deny but the Sea must be guarded. Of what strength the Ports were then, I know not, but now they are not able to defend the Sea, then of conse∣quence it must fall upon the whole Realm.

Object. Your great Objection is that of 2 R. 2. Parl. Roll pars 1. Rot. 15. The Killing Record, that the People should not be charged but in Par∣liament: The Grandees were there assembled, Scroope, then Chancellor, made a Speech, That there was no Ordinance made for salvation of the Realm: And the said Councel answered, They durst not take upon them alone to make an Ordi∣nance of so High a business, as to lay a General Charge upon the Subject, but advistes a Grand Councel of the Lords and Commons of the Realm might be called for the doing thereof. Upon this all the Prelates, as well Abbots as other Ba∣rons, &c. & autres Sages, m••et. Oh forsooth, it is said, autres Sages, was the Judges, but by that is meant the other minores Barones of the Realm. It was said in the said Councel, This mischief they could not remedy without charging the Sub∣jects, and that cannot be done but by Parliament; and for that end a Parliament was summoned. The Lords did lend Money voluntarily unto the King in that Councel, and so did the good Peo∣ple of London; to whom the King (by assent made in the said Great Councel) engaged Himself for Repayment thereof. I pray you note, That in this Case, this was before any actual Charge im∣posed. King Richard the 2d. He was in His Mino∣rity: The Law is not clear concerning the Kings Infancy; whether the Infancy of a King be not a disability: The Example of Latimer was fresh in those Lords Memories, they took heed by other mens Harms.

My true Answer is, The thing was done ano∣ther way; by lending the King Money, provisi∣on was made for the Defence of the Kingdom: If it had not been done that way by a voluntary lending of Money, it must have been charged without Parliament; scarce a good Subject that will let the Kingdom be destroyed rather than lend Money without Parliament▪

Rot. Parl. 1. R. 2. m. 52. A Command for the making of Barges; here was cause to complain, if this had been a wrong. The Record saith, Be∣cause they were good Subjects, the King did con∣firm their Franchises unto them: Many things may be grievances and yet no wrong; there may be a loss without a wrong. The Commission in R. 2ds time expired with His Death. And in H. 4ths time, the Commons petition, That he would live of His own, and not charge the Subjects for the Defence of the Realm, as heretofore hath been done by His Progenitors. The King answer∣eth, He will advise with His Lords.

Object. The last Authority which was objected, was Fortescue, they say, he being a great Judge, he saith, the King of England was Corpus Politi∣cum, that he cannot do what he will, but accord∣ing to the Law of the Realm, and not impose a Charge on His Subjects without consent in Parlia∣ment.

I answer, It is most true, so our Gracious King doth, unless in case of necessity; in such a case Rich Men must then expose their Treasure, Able Men must put on their Arms, others not able, must attend their Prayers, and Judges must press and enforce the Laws to make them to contribute, &c.

What I have said, I have spoken to the best of my understanding, and in discharge of my Con∣science; I conclude upon all, That as this Case is the Charge of 20 s. imposed on Mr. Hampden is consonant to Law, and Judgment ought to be gi∣ven against him, Quod oneretur, &c.

FINIS.