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.

Quest. But the Question in this case is, What the Subjects may in this case secundum legem Angl' be compelled unto in case of Necessity for defence of the Realm?

Ans. I answer, They may be compelled to this Charge (sumptibus propriis) for the Souldiers Wages, but to go out of the Realm or Shire must be at the Kings pay, according to the Common Law of England: But in time of sudden Defence there is no time to stand upon Wages. It appears both in Fitz Herbert Nat. Brevium 28. and also in my Lord Cooke in Calvins Case. The King may command His Subjects upon their Allegiance to ••o with the King as well in Wars without the Realm, as in His Wars within, and with him and without him in the Kings Service.

By the Statute of 18 E. 3. 11 E. 3. Men of A••ms, as Hoblers, Archers, are to go in the Kings Service as in England, so out of England was the matter of this Law. And my Lord F••••ch said, this was the very Common Law of England; so that it is clear these two Statutes are declara∣tory Laws in affirmance of the Common Law.

In the 7 H. 4. Title Tenure 44 there it is said, A Man is not to go with the King in his Wars out of the Realm without Wages.

And so in the 7 H. 4. Title Tenure ••••. The Subjects of England are not to go with the King beyond the Seas without their Wages, but in the Realm they are at his Command, and there is no Wages to be given.

So it is in going out of England when they are at the Kings Charges, but within at their own: And if the going forth of the County be at their own Charge, I know not but that should put an end to the Case; That the Defence of the Realm must be at the Subjects Charge. It is of dange∣rous consequence for Judges in their Judgment to rely too much upon Precedents, that perhaps went forth to the Necessity of the present times, but that is not our Case here; we are here direct∣ed to know what was used in times past in this Case before the making of this Statute: So that in this Case we take the usage not to declare or prove a Law. But that Use is declared by this Statute to be a Law; therefore we must now know what the Use was. Now that the Use was, That the Subjects of this Realm ought to be char∣ged in time of Common Danger appears by mul∣titudes of Precedents, applied rightly to the Sta∣tute of E. 3. do declare the Law upon the Sta∣tute.

And to shew what the Use was, I shall rely chiefly upon those Precedents that are most Judi∣cial; First, that of 25 E. 1. in Termino Michaelis Rot. 72. In the Abbot of Roberts-bridge Case in Banco Regis, compare that and this together, and I know not what more can be answered, than that this Use for the Subject to maintain their Peace was an Usage Law, and Custom of the Realm.

10 E. 3. m. 2. do. The King by His Writ sent a Command to send to Portsmouth one hundred Foot and twenty Horsemen to Guard the Sea: They refused to do that Service, and would not go without Wages. The King sent Answer in these very words, That no Wages were due, by reason it was a Publick Danger.

And so in 25 E. 3. cap. 8. it is generally Assent∣ed to by Parliament.

But there we have a General Law in the First Statute of 1 E. 3. which was grounded meerly on the Common Law; and so was the Statute of 25 E. 3. and the rest to the same purpose, because it was against the Right of the Realm. And this Statute of 25 E. 3. was meerly grounded upon the Petition of the Commons; then certainly this finding of Arms was intended by that Statute to be against the Right of the Realm.

Besides all this, to keep our selves to that which is Legal and Authentical; so the Parliament Roll 13 E. 3. n. 9. & 11. It is there apparent that it is not against the Right of the Land to charge the Subject, then how cometh it to be against the Right of the Realm, 25 E. 3. for then there was no Statute.

Now to bring it down to our times; In the 26 E. 3. n. 44. Every Maritine Town was charged to

keep a petty Watch, (there being some eminent danger) therefore they pray (not to be discharged) but that it might be reduced to a lesser Charge, being it was but a Petty Watch to Guard the Seas, much less then is there cause for the Sub∣ject to seek to be discharged when the Enemy is approaching.

In 5 E. 4. there was a Commission issued out to distrain every one secundum potestatem suam in mat∣ters of Array: Here is now the Judgment of the whole House of Parliament, That men according to their Ability are to be charged to joyn in Charge with the King to defend the Realm sump∣tibus propriis.

Thus much for Defence upon the Land; now for Defence upon the Sea.

In the Statute 18 E. 3. cap. 7. That they that serve the King out of the Kingdom, serve for Wages; but in case of Necessity without the Realm in times past, by no Precedents (saith my Brother Crooke) can it be proved that it was done before.

I answer, That the Sea is within the Kingdom, see the 2 E. 3. cap. 10. protect. 46. Bract. lib. 2. fol. 365. n. 3. There the Sea is made part of the King∣dom, and also in Doctor and Student, cap. 51. It is the Ancient Custom of England, That the King is Lord of the Narrow Seas.

But that which I rely most upon, is from the Statute of 1 and 18 E. 3. for they both meet in one, which is according to the Common Law; for all the difference is thereof, the Subject to go out of his own County to defend the Land or the Sea.