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.

Sir Edward Littleton his Majesties Soli∣citor General his first Days Argument in the Case of Hambden, Novemb. 11. 1637.

May it please your Lordships,

MAy the 22th. last issued out a Scire fac' out of the Exchequer to the Sheriff of the County of Buckingham, to warn Mr. Hambden to shew cause why the 20 s. should not be charged on him, towards the sinding of a Ship of War, with Men, Munition and Victuals, expressed in a Writ Dated 4 August. 11 Car. And the Sums and the Names of the Defaulters was certified into the Chequer by a Mittimus Dated 5 Maii, 13 Car to be there pro∣ceeded upon, for the levying of the 20 s. accord∣ing to the Law and Custom of England. Mr. Hampden appeared, and desired that all the Writs might be read to him: They being read, he de∣murred; and Mr. Attorney joyned with him in Demurrer, and adjourned out of the Exchequer into this Court, to have the Advice of all the Judges of England.

Before I enter into my Argument, because the true stating of our Question, in this, and all other things, doth exceedingly conduce to the clearing of the thing in question; I shall in the first place observe the Writ Dated 4 Aug. 11 Car. (the ground of this Assess) which was directed into Buckinghamshire; and others into all the Counties of England; and this was for raising Ayds for Ships for the Defence of the Kingdom, with a notable Circumstance, Quia Salus Regni periclita∣batur; which being expressed in the Record, is confessed by the Defendants Demurrer; and not only so, but testified by the King himself under the Great Seal in the Mittimus, and in all Mat∣ters especially concerning the publick Safety, the King is Recordum superlativum & superpraecellens, as in the great Case of the Earls of Clocester and Hereford, 20 E. 1. So that the Question is only this:

Whether the King finding in his Judgment the Safety and Preservation of the Kingdom and People, necessarily and unavoidably to require the Ayd commanded by the Writ, may not com∣mand

such Ayd as the Writ for saving and pre∣serving the Kingdom and People?

Having stated the Question, I shall now dis∣card diverse things, as impertinent to the Que∣stion: not that I, that am sworn Councel for the King, do agree in those things against the King; but that they are now in question.

It is not now in question what may be imposed by the King upon the Subject, for defence, at their Charge, for Conquest or for Conservation of Foreign Countries or Territories beyond the Sea.

Neither is it in question what may be laid by the King upon his Subjects, for vindicating Inju∣ries done by foreign Princes.

Neither is it in question, Whether Arbitrary Impositions or Taxes may be laid at pleasure on the Subject for the meer increase of the Reve∣nue of the Kings Treasure.

Neither, Whether an ordinary and common Defence, for preservation of the Kingdom, though necessary, may be thus imposed.

But the Question is, Quando Salus Regni peri∣clitabatur? In truth the Question is, Whether we can be charged salvatione nostri & nostrorum?

Again, It is not in Question, Whether the Subject hath a property in his Goods, or can lose them without consent in Parliament? I shall shew that his Property shall remain unto him not∣withstanding this Assess. And the Argument on the contrary savours more of Malignity than Rea∣son, to say, That by this, the Subject shall lose his Property in his Goods.

It was rightly admitted, That the Law of Property must give place to the Law of Nature for common Defence. The levying of a Debt or Duty publick or private, upon any Subject, is so far from deferring the Estate, that it doth af∣firm it: He hath as good Property that payeth Debts to the King, as he that doth not.

We are agreed de re the Kingdom is to be de∣fended; no man in his five Sences will deny that.

De Personis; according to that equitable Rule in the Writ, Quod omnes tangit, & per omnes debet supportari. We are in this, as in the Conqueror's Laws; Sumus fratres conjurati ad Regnum defen∣dendum.

De Persona, whom the Law hath intrusted with the Defence of the Kingdom, viz. the King; the only difference is de modo, whether the right Me∣dia be observed by the King? And while we are disputing whether he may do it, I am told he may do it in Parliament; and I shall be sorry to hear that there is no Salvation for the People but in Parliament. And while this was the Question, though a great deal of Care was had, and though it was done with Advantage and Policy, yet the Bulk and Mass of what was said, shall appear to fall quite off, as nothing to the purpose. There were multiplicity of Particulars, and a pretty Survey of the King's Revenues, no ways con∣cerning the Case, and as much mistaken in it as he that reckoned without his Host.

He hath done like a discreet Gentleman, and went as near the Question as his Client would let him: He hath agreed Cases more prejudicial than this: as thus; It was admitted, that if there be an actual War, though there be but light Skirmishes, the King may do it; nay if there be but a War denounced, though there be never a Blow stricken, sure then it cannot be done; Quando Salus Regni periclitatur.

This is the true State of the Question.

Before I go further, I am not ignorant, and therefore cannot but be sensible with what dis∣advantage I come to argue this Case, every man being a party interessed that hears me; but I fear not but that I shall satisfie all parties: I have Truth to conduct me; Et magna est Veritas, & praevalebit.

The Method whereby I may maintain the Right of my Master and the Crown, is this,

I shall first ground it upon Reason. Every hu∣mane Proposition is of equal Authority; only Reason makes the difference.

I shall ground my Reason upon the Law 1. Of Nature. 2. Of State. 3. Publick Safety, Ne∣cessity and Conveniency; neither shall it be against the Statute-Law, Common Law, or any of the Hereditary Rights and Liberties of the Subjects of England, but consonant to, and warranted by all.

I shall not only prove it ex rationibus cogenti∣bus; or as Lawyers say; ex visceribus causae, but de similibus ad similia.

I shall confirm it by a Bed••oll of Examples and Precedents of former Ages, and compare them with this, and see if the Case be altered.

• 1. I shall shew it from the Foundation of the Kingdom, to that which they call the Norman Conquest.
• 2. From the Norman Conquest, to that of Magna Charta, made 9 H. 3.
• 3. From Magna Charta to the Statute de Tallagio non concedendo, made 25 E. 1.
• 4. From De Tallagio non concedndo, to the first time of granting of Tunnage and Poundage.
• 5. From Tunnage and Poundage to this very day; and that the Petition of Right doth no way concern the Dispute.

I shall confute all Precedents, Objections, Reasons, Inconveniencies, Authorities and Re∣cords, of which a great number were cited, that there shall not be a Syllable left. And in that,

• 1. I will either shew that the Record is mista∣ken, or impertinent, not to the Question.
• 2. Or those that are pertinent, I'le agree them, or take the force of them away, that none of them shall be able to stand in the way of the King in this way of Defence.

The Fundamental Reason is the exact Rule of the Law in the 10th Rep. (cited by that Learned Gentleman Mr. St. John) Salus Populi suprema Lex: All other Laws positive are subordinate to this Law, and to be regulated by it. We are not to talk of positive Laws, till we have a Kingdom to use them. Glanvil saith, Regiam Majestatem non solum Armis oportet esse decoratam, sed & Legibus. Arms to defend us, Laws to protect us. Bracton, fol. 1. In Regibus duo sunt necessaria, Arma & Le∣ges; and gives the Reason: If no Arms, the Kingdom would be at least as a prey to the Ene∣mies: And truly it is a strange Imposture, that the Law should so provide, that the King can give us by his Writ a Remedy for White Acre and Black Acre for a Clod of Earth, and not to be able to give a Writ to defend the Kingdom when it is in eminent danger.

Nay, positive Laws are abrogated, by reason, when the Safety of the Kingdom and People are in danger: As in Rome, a man in the night might not come over the Wall; but if an Enemy did approach the City, then it was lawful for him to do it.

Reas. 2. In the next place, I take that ground which is taken in all Laws. The Common-wealth is to be preferred before all private estates, 13 H. 3. fo. 15. Opinion of Shelley, rather than this shall suffer, the Law will turn some preju∣dice to particular persons, who are but a part of the Common-wealth, 21 H. 7. fo. 28. 8 E. 4. fo. 23. Bro.

40. 29 H. 8. Dyer 36. If the enemy doth ap∣proach; for the defence of the Kingdom, one man may make Bulwarks and Forts in another man's Soil, and shall not the King keep the Out∣works at Sea, lest the Enemy should Land at our doors?

Reas. 3. By the King's Command, Suburbs may be razed. In 88. when three great Land Armies, 20000 Foot, and 1000 Horse; 30000 Foot, and 1000 Horse; 20000 Foot, and 1000 Horse. Now lest other Armies should Land in other places, direction was given to keep them from Landing, but if they could not keep them from Landing, then that they should burn down Houses, and come and destroy all whatsoever, that they might not have food and provision to stay there. Where is the Law of Property in this Case, which is so much talked of? The publick and private are so near connext, that they can hardly be separated. The publick loss falls im∣mediately, and by consequence upon particular persons. Be a man in what condition he will be, if the publick loss come to the State, though it fall on his Wedding-day, he shall suffer in it. It is impossible to save private fortunes, if the publick be lost, Ʋnaquaeque pars amat Co••'a, bo∣num totius, &c. And another saies very well: No man repines at that which is done for the Common-wealth. If a Subject then can be ena∣bled, without Parliament, to make Bulwarks and Forts in another man's ground, shall not the King that is Pater Patriae do the like for the de∣fence of the whole?

Reas. 3. My third Reason is, to inform, or rather to mind your Lordships, that the Crown hath many Powers and Prerogatives over the Estates of private persons. May not the King enter into another man's House, or at the least Out-houses, and dig for Salt-Peter, because it is for the defence, 11 Rep. 81. Bowles his Case; and enter into his Lands and dig Royal Mines? There is Proprietas, Dominium, that belongs to the Subject; but hath not the power over all with∣out the property Ratione protectionis Jurisdictionis, &c. Private interest must give place to a com∣mon good. Private prejudice, that any man hath is very well repaired by the publick utility that comes on the Kingdom; Fishermen may justifie their going on the Land of others to Fish, because it is pro bono publico, 8 E. 4. 18, 19. 6. 29 H. 8. Dyer 36. 21 H. 7, 28. A man may pull down the House of another, when the next to it is on Fire.

Jam tuae res agitur, paries cum proximus ardet. The private must suffer for the publick Cause, 22 E. 4. fo. 2. 6. 26 E. 1. fo. 45. If two men are fighting, a man may part them and put them into several Houses, because it is for the good of the Common-wealth. If a mad man be abroad, he may be taken, whipped, and imprisoned, lest he do violence to himself and others, 22 E. 4. fo. 45. A Chirurgion may cut off one Member to save the rest, 22 Ass. Plo. 56.

Necessity is the Law of time and Action. Ma∣ny things are lawful by necessity, which otherwise are not, Quicquid necessitas cogit, defendit; and the Law of time must regulate the Law of the place in such publick things. If a Storm arise at Sea, to cast out Goods into the Sea is lawful for the safety of other Goods, and they whose Goods are not lost, shall be sharers with the others. If it be for safety of Lives, all must be cast out, Daffeild's and Mowse's Case, P. 6. Com' P. 16. but if the party hath taken more in than is fitting, and that be the cause of casting away the Goods and not the Tempest, there the party had his re∣medy.

48 H. 3. There was a sudden Summons to be in Arms both at Sea and Land; They plead there was not a just time of Summons; The King tells them that no man shall excuse himself for want of convenient time of Summons; nay, they shall not alledge the time of Harvest, &c. It being safer to be somewhat diminished in Estate, than the publick to suffer, necessitas est lex tempo∣ris; what ever is done for publick safety is best, the Laws are tributary, and must give place to the Law of necessity.

What talk we of Formalities, when we are like to lose the Kingdom, when the keeping of the Laws would end the Common-wealth? But this needs not, for I shall shew that his Majesty hath trod in the steps of all those Kings who have worn the Diadem, and swayed the Scepter of this Kingdom.

In the next place I shall shew divers exempti∣ons, A Custodia Maritima, not only ancient but late, I will put you one, that is King's Colledge in Cambridge, 21 H. 6.

When these Grants are made, it extends to ordinary defence of the people, and not to ex∣traordinary, no more than if the King Grant an exemption to a man that he shall not be of a Jury; yet if there be no other, that shall not excuse him; Matth. Paris 838. he speaks of Priviledges granted to the Archbishop of Canterbury, Lon∣don, &c. All are granted in Liberam Eleemosynam, they are bound to do nothing but to pray, and yet not exempted from publick defence, Nec adeo libertates, &c. sed propter publicam utilitatem Reg∣ni ut pro ea resisteret hostem. I shall give Mr. Saint John's Argument an answer by and by; yet by the way, if Tenures, Feods Military did begin as was alledged out of Britton in the Conqueror's time. How was the Kingdom defended before, if Wardships, Marriages, and Accidents there∣upon did not go to the foundation of the King∣dom, what was before?

The King is as much Lord of Sea as Land▪ Aeque Dominus Maris ••t telluris. Selden Mare 〈◊〉〈◊〉, 6 R. 2. Doctors and Studients, lib. 2. 51. 5 Rep. 108. It is observed by a great Lawyer, of wh•••• consequence it is to have power at Sea. The Na∣val Dominion of England is of great consequence and use, for it is called Dotem Regni. If then the Kingdom of England consist of Land and Sea▪ I hope we shall not stand at half defence to de∣fend the Land, and leave the Sea. Roll. Parl. 2 R. 2. Ro. 25. It is a great advantage to have defence at Sea, else we should have hot War at our Thresholds; while the Sea is in safety, men may go to Plough, and have the Court of Justice open.

The King's of England, of themselves, of their Prerogative Royal, in times of Foraign War, denounced, intended, or suspected, for the preservation of publick safety, may seize the Lands of Priors, Aliens, 48 E. 3. fo. 10. 22 E. 4. 43, 44. 14 H. 4. 36. And can the Kings of England take the possessions of Aliens? and can∣not

he enforce his natural born Subjects to defend the Land and Sea? God forbid.

Nay if we would parvis componere magna, we shall find in lesser Cases of consequence, (if they have relation to defence) he may do it, as the King may lay a charge on the Subject for muring of a Town; the reason is, because they have be∣nefit by it in time of danger, and hath not all the Kingdom safety by the Navy at Sea? 3 E. 3. Ass. 445. Westm. 1. ca. 3. 13 H. 4. fo. 14, 15. Sir John Davies Reports, fo. 13. Hit. fo. 58. 33 E. 1. 105. Parl. Book, Wals. 14 E. 1. 60. 7 E. 3. pat'. m. 2. And the King did not only command it, but took an account of it; and if it was not done, he took it into his own hands, Tr'. 27 E. 1. m. 14. Ex Thess. Murage of Carliste taken into the King's hands, Pat' 14 E. 1. pars 1. m 14. and the surplusage paid into the Exchequer, and this agrees with the reason of all Laws, where they have a benefit, they must contribute to the charge, 10 Rep. 141. out of 44 E. 3. Nay, for lesser things, as for Paynage and Pontage the King may impose that for a publick good, and the King may distrain all Terr-Tenants, and Land owners, to make contribution, Secundum statum & facul∣tates.

The King may dispose of the preparation for defence, he may compel men to be Knighted, be∣cause it was for defence, 19 E. 2. Cl'o m. 16. Mat. Paris 12. 37. Westm'. 465. No man is exempted from defence, Judges are not exempted, yet Judges are not to fight; yet when it comes to ne∣cessity they are not exempted, T. 5 E. 4. Moyle 13 H. 4. fo. 23. Clergy-men compelled; Nay, a Serjeant at Common-Law sworne at Common-Pleas is compellable; Sir Jo. Halbert in Henry the Sevenths time, was compelled to be a Knight, 9, or 29 H. 6. Rolfe, a stout Serjeant, Pleaded that he was a Serjeant at Common-Law, and not bound to be a Knight, but he is forced to it; but why talk we of these? There ought to be a Com∣mon-wealth before there are Laws, and private ought to give way to publick.

Eminent dangers and perils to a State, doth dispence with ordinary proceedings in Law, Inter arma silent leges.

Reas. 9. Nay, if there be but Rumours of Wars, Laws are silent, we must look then to the Kingdom upon Rumours and Opinions, p. 15 E. 1. B. R. Ro. 70. dors. The Scotch Army they besiege Rippon, the People they promise a sum of Money to them to depart, and give them in Hostages; and that Money should be levied amongst themselves; when the War was over, they would not do it, but they were compelled to it in 14 E. 2. B. R. 60. The Scots besiege Duresme, but they must have ready money; they would not take Hostages. While this peril was on them they met together, and swore that what should be agreed amongst themselves they should stand to. It was ordered, They should go into the Houses of others, and take what money they could find for this purpose. They took from one man sixty pounds; Oh, he was not satisfied, he had a property in his Goods: He brought an Action, and at Duresme it was adjudged for him: but when by a Writ of Error, it was brought into Westminster-Hall, into the King's Bench, Judgment was reversed. And in the time of Queen Elizabeth greater things was done upon lesser occasion.

Reas. 10. The next thing, is the Ships taken from time to time, and the Command of Persons, Watches, Beacons, shuting up of Ports, which are the Gates of the Kingdom, 14 or 10 E. 4. Pa. m. 12. dor'. 3 H. 5. 18. dorso. A number of other things commanded by the King for safety; when the Law considers what may happen, it is not material what doth happen; nay, if there be but vulgaris opinio it is enough, much more when the King, by his own Judgment, foresees it, 6 Rep. 64. Clark's Case, there they were com∣pelled to build a Hall in St. Albanes for the Judges to sit in, much more in this Case; see Cleggat's Case for Triumphs; and if for State, shall not the King compel for safety of the King∣dom? 12 Jac. & Hill. Hawk's Case for paving of the Way, he may take Corn out of the Sacks of those that come by.

Reas. 11. It is a Droit Royal to meddle with War and Peace, Subjects have nothing to do withal, Parl' Roll' 13 E. 3. no. 5. 19 E. 4. fo. 160, or 6. Bryan, Chief Justice, saith, That if all the Subjects of England do War with the Subjects of another Kingdom, this is no War, but if the King denounce it, it is War, 22 E. 1. Vascon, m. 16, or 10. they must have a power from the King; true, Henry the Seventh brought Military Discipline to the Parliament to advan∣tage his own ends. Sometimes dangers are fit to be communicated to the people, and sometimes not. The King should best know what is done abroad, who hath his close Council of War, he knows what is done abroad, what can the people tell of these things? and it is very fit that prepa∣ration be made aforehand. It is not good to find the Kingdom without a Navy, especially when such combustion is abroad, 18 Eliz. c. 23. It is as much to prevent danger as to remove it, when it is in being, 1 E. 6. Mar. 1. A de∣sired provision to be made before hand; and this hath been the practice of all times. Jervasius Til∣buriensis, Black Book in Henry the Seconds time, Danegelt before the Conquest paid Annually, but afterwards when there were Bella or Opiniones Bellorum, and datum est nobis intelligi Audito Ru∣more, &c. are frequent in the Records; nay, if there be but vulgaris opinio. Ay, but perhaps dangers will not come? But if they come unawares, where are we then? In the said Case between the Earls of Gloucester and Hereford, there was a great Tumult between them about the Marches of Wales, and this was contrary to the King's Command, and exception was then taken because there was no Record to warrant the Scire Facias. The King did affirm it, Et * 1.1 Dominus Rex in multis casibus est supralegem, &c. Dominus Rex est Recordum superlativum & super∣precellens.

It is Treason for any Subject to raise an Army, unless a Town be besieged.

Henry the Seventh was a wise King, and he had his Spies abroad in the time of Peace, to see how things went, and his Navy prepared; and the preparation of a Navy doth much more good than the spilling of blood: And so hath our Na∣vy these two years done a great deal of good to the Kingdom, and Honour to the King.

Now I come to Authorities: But first we shall observe what an Authority shall be in this Case.

I conceive there may be, and are direct and full examples in point for compelling the Subjects at their own charge to guard the Sea and Land, though they are not ••uled in particular Courts of

Justice, nay, under favour, they are stronger than any Judgment. There were then no need of Suits in Courts of Justice; If men would pay, what need Judgment?

I conceive that though I find not direct Autho∣rity in Printed Books, yet Records are as good testimonies, and greater than Reports that are but Extracts, and but second Authorities drawn out of them, and those that concern Jus publi∣cum came not into ordinary debate, but remains inter Arcana Imperii, and those will speak fully.

I shall observe that our Precedents are not on∣ly in open War and Hostility, but upon Opinions, Rumours, Relations, and Informations of War.

I shall shew this in all Ages to Queen Eliza∣beth; and if it be not so full in the years of King Stephen, and Henry the Fourth, who were Usur∣pers, 'tis no wonder if they had had right to the Crown, as his Majesty hath, they would not have used Complements, but Fide & legiantia quibus nobis tenemini.

Before the Conquest, I find that King Edgar had his Tenants, who swore to co-operate with him per terram & per mare. King Etheldred he did command, that he that had 310 Hides of Land, should find a Ship; and those that had less, should find other Arms, and at their own charge. For every Ship eight Oars ut tempore pr'is. That was Canutus, and it was Tributum Classiale.

My Lords for Danegelt, If those Kings that were called in by the people, did lay this on the people, much more our natural born King, which shews it to be an undoubted right: For it is not likely that they would put that in practice which was not an undoubted right.

In the Laws of the Confessor by Mr. Lambert, and the black book in the Exchequer, it was some∣times one shilling, sometimes two, annually in usus Maritin', and still the charge lies on the Subject; this shews an inherent right in the Crown, and it was paid for several purposes, but still at the Subjects charge. And to say, it should not be so, because of the word Statutum, cannot be, for in those times Statutum (as in Cicero) was a Con∣stitution; there was no Parliament then; and if it now doth alter from that way, truly petty circum∣stances, when the substance is observed, alters not the Case. There must be a defence, and it was not certain, doth not the danger suscipere majus & minus; and the King may say as E. 1. said, Nay, I have heard him say, that he hath bought neither Mannors, Lands, &c. with it.

After the Conquest, the Danegelt is supposed to be released by the Confessor, because he dream∣ed he saw the Devil danceing upon the Dane-gold. But the black Book saith that it was paid in the Conquerors time; it was then quitted till there were Bella or opiniones Bellorum. Neither was it released by W. Rufus, or H. 1. King Stephen swore that he would release it at his Coronation: but Nihil horum tenuit; nay, it was unpaid in H. 2. time, 4 H. 2. Pipe Roll, and though the name be al∣tered, yet other things came in the room of it.

And now I'le begin with Doomsday-book, which began in the 14 of the Conqueror, and ended the 20 year. There were divers Towns and Shires charged, and there we may see what assistance they did give both for Sea and Land. In the black Book fo. 56. they that waited on the King's Revenue li∣ber non erit for publick things. And in King John's time, which was a troublesome time, 5 Joh. Pat. no. 17. and 7 Joh. Claus. m. 9. they gave a fourth part of their Revenues for defence. And there was a command for staying of all Ships, and to repair to a certain place appointed, and to come to those great things, when King John was deposed by the Pope; the King of France made preparation, and England made preparation. And all Ships were im∣breviated, because he would not put all upon Land Forces. And so 88. Mat. Paris, fo. 312. It is said the people were ad liberationes nostras, but that voyage was to Poictou; if it were ad lib' nos••ras; yet the command of the persons and Ships 〈◊〉〈◊〉 at the Kings; and true, all Mariners 〈…〉〈…〉 paid, and no question immediately by the 〈◊〉〈◊〉 hand; but it was first raised and levied os the people.

Whereas for Escuage and Knights Service, the Summons was quod intersuis cum equis & armis, &c. ex inde profecisti nobiscum; but this was only to come with their Horses and Arms, by reason of their Tenures. And it further appears, that Earls, Barons, Knights, and Free-men, all that had Arms were to come ad defendend' caput suum & Regis, & quod nullus remaneat qui arma portare possit; Nay, those that had neither Lands nor Arms, yet all must come; and if they had nothing to maintain themselves withal, they were to be ad solidatos no∣stros, which shews, all the rest were not at the King's charge, 5 Joh. Cl'o m. 1. Qui ad arma habet vel qui here••' possit. If the King could command for Land, he may for Sea, for both are one King∣dom. In H. 3. there are divers Arrayes▪ 14 H. 3. Cl'o 7. dor'. when the King went into France, there went a Command to all the Sheriffs of Eng∣lands Ports, to swear those that staid behind to Arms, as they were sworn in King John's time. All this shews they were bound to Arms.

The Statute of the Conqueror, which they stiled a Statute, That there should be no Tallage; Tallages must not be understood of those kind of Aids, as in that famous year of 48 H. 3. And observe when that year is; not only after Mag. Charta, but confirmed by 20 H. 3. when he was of full Age.

48 E. 3. Cl'o m. dor'. Divers Captains & Consta∣bularii, and three divers not able to maintain them∣selves, and the King's command that they should be paid de Co'i Comitatus.

48 E. 3. m. 2. de pecunia levand' circa tuitionem maris. The King commands there, that they should come out of their Counties; Summons is two fold, 1. Of Escuage, which is servitium de∣bitum. 2. General for defence cum necesse fuerit.

48 H. 3. Cl'o m. 3. pro Militibus secundi Johannis & m. 6. dor'. quod omnes qui nobis & Coronae nostrae jure astring', &c. All Free-men must do this ser∣vice, 48 H. 3. m. 4. dor' Cl'o Vic' Essex.

48 H. 3. Cl'o m. 3. dor'. Nullus excludatur sexus aut ordo.

48 H. 3. Cl'o m. 7. Citizens of London, and the men of Greenwich were commanded to keep the Thames that none should enter per ora eorundem, the men of Greenwich plead that they were di∣strained upon common Summons for their Service in Kent. And the King commanded, That they should be freed in Kent, and joine in defence of the Thames.

Cl'o 48 H. 3. m. 11. dor'. to excuse one who pretended he did attend in another place with all his strength. This shews that he ought to at∣tend the defence.

Nay, 48 H. 3. m. 4. when they refused to come, the King commanded to seize their Lands, and take the profits, and answer them into the Ex∣chequer.

48 H. 3. Pat' m. 5. He commands them to at∣tend,

letting all things apart, 48 H. 3. Pat' 48 H. 3. Pat' m. 10. or 5. Like Writ to Dunwich, Ipswich, Dover, and per Costera Maris; nay, when some went away when their forty daies was expired, the King tells them that propter Inopinatos casus they should stay.

Pat' 48 H. 3. m. 4. 100 Marks paid by the Ab∣bot of St. Augast for Stipends for those at Sea for desence of the Sea.

M. 5. dor'. when they would have went away they were commanded upon pain of all they had to stay.

Bracton lib. 5. 336. cum fuerit in exercitu cum Do∣mino Rege, &c. speaking there of Law Suits, what may be a good excuse for absence, saith, ex causa ne∣cessitatis, rei publice causa aut cum Rege in Armis.

E. 1. Stat. of Winchester, 8 E. 1. finding of Arms begun not upon that Statute, but how in what manner they ought to be rated.

23 E. 1. Cl'o m. 4. de contributione faciend', Yar∣mouth, Jernmouh.

A Command to the Collectors of Money ad Custodiam Maris, and he that was in Gascoigne was discharged of Grace, but not of right.

Pat' 23 E. 1. m. 4. Ita quod omnes compellere possitis ad custodiam maris cum necesse fuerit. Pat' 23 E. 1. m. 6. Pro Will' de Stoaks fuerint custodes Maretine & m. 5. & 7. custodes maris de Jernmouth, and divers men taken both Archers and Slingers.

Pat' m. 5. de hominibus eligendis ad arma, m. 7. omnibus & singulis Marinettis between London and the mouth of the Thames. M. 6. de Navibus ca∣piendis.

Cl'o 23 E. 1. m. 5. marit faciend' in diversis Civi∣tatibus.

Pat' 24 E. 1. m. 16. de partibus Maritinis muni∣endie & Custodiend'.

M. 6. & 17. de Navibus & Galeis inter Villam de Linne & Barwick.

Tr' 24 E. 1. Ro. 62. Inter B. pro Rege, there a Writ issued to such and such men to find ten Horsemen; one affirmed that he had three Horses in Scotland, and some in Cobham in Kent. The King makes enquiry, whether it were so or not, and finding that he had not so many as he said, commanded that they should be distrained not only for the contempt to the King, but for the danger the Kingdom might lie in for want thereof, 24 E. 1. Rot. 78. power to compel men to make defence juxta facultates. And the County of Berks, which was an In-land County, upon refusal a Capias in manus, and to answer them in the Exchequer, and the form of Wages to be set down, 24 E. 1. Lord T'ror' Remem'. A Writ from the Barons to Assess all the people without the King; news being of 1000 men coming, Cl'o, 25 E. 1, m. 26. dor'. Willielmo de Ripo. It was recited, that the people have been at a great charge, made, because Winter came in the King willing to spare them Watches; and Beacons were commanded to be set up and kept, and the People to depart, but to return again up∣on notice.

25 E. 1, 2. pat' 5. Custodie of the Maritine was with six Ships; by which it appears, that Custodia Maris, and Custodia Maritima are con∣vertible.

Abbot de Robertsbridge, 25 E. 1. Roll 72. Cl'o pl't. The Case.

The Abbot of Robertsbridge brought a Replevin against one in B. that lies in the Confines of Kent and Sussex, so (Campestris.) The Officers did avow, by reason of War between France and England, the Abbot was Assessed three several years, at several sums; nay, the fourth time, and no hurt done. But now if the Writ go out but two years together (oh inauditum!) But what doth he Plead? Doth he deny the Writ? No, he Pleads he was Assessed for other Lands. He found a Horse ad custodiam praedictam; so that the Horse for Land, and the Money for Sea. I conclude as Selden, Aut ad ipsum Mare aut ad tam littus quam mare.

After the Stat. De Tali' non concedendo, 27 E. 1. pat' m. 3. de Navibus congregandis, 31 E. 1. pat' m. 20. malefacientibus in Marchiis Angliae. A Commission went out, That all shall be in Arms against Scotland.

In all elder time there was such a connexion be∣tween France and Scotland, that we had alwaies a double War, and therefore could not expect all Forces at one place.

In the time of E. 2.

Pat' 2. pars 9 E. 2. m. 26. pro Rege de Navigio providendo variis sumptibus faciend'. I see with what Policy Mr. St. John went, and what multi∣plicity of Records he cited, and opened them with as much skill as ever I knew any man; but I desire to go in the naked truth. It shall appear to all the World, that the King hath done nothing but what his Predecessors have done. And that there is not more testimony to prove Litt'. first Case that the Heir at Law shall have his Patrimo∣ny, than there is to prove this the King's un∣doubted right.

Pat' 15 E. 2. m. 15. dor'. all between 16 and 60 to be ready.

Parl' Roll, 5 E. 2. m. 4. Ordinances that the King, without the assent of his Barons, could not make War but those were repealed and damned, 15 E. 2: Parl' Roll m. 31. It was prejudicial to the Royal pow∣er of the King, a blemish of his Royal Signature.

Cl'o 17 E. 2. m. 10. dor'. not when they were warned to be ready.

19 E. 2. pat' 2. pars m. 21. 19 E. 2. pat' pars m. 6. To all Bishops of England to be ready for the de∣sence. Pat' 19 E. 2. pars 1. m. 29.

Cl'o 20 E. 2. m. 2. & 7. de hominibus qui domi reman∣serunt, &c. should contribute to those that went. It was to 40 or 50 Counties. Nos considerantes quod justum & consonum, that those should expose both body and purse for the utility of the King∣dom, Cl'o 20 E. 2. m. 7, Cl'o 20 E. 2. m. 11. or 10 dor'.

In the time of E. 3.

Cl'o 2 E. 3. or 7. de Navibus muniendis. A command that all Ships of forty Ton and up∣wards, with the Men, Munition, and Victuals, that they should be in readiness at their own charge, m. 2. Mariners are warned to come per duos menses at their own charge.

7 E. 3. Scoc. m. 19. de portubus contra adventum, &c. Et datum est nobis intelligi, &c. it appears that it was done tam per mare quam per terram; and a di∣rection to all Archbishops to be attending, and the posse Comitatus to be arrayed secundum statum & facultates.

Cl'o 9 E. 3. m. 13 dor'. All from 16 to 60 to be arrayed Armis competentibus. And now I come to that famous year of 10 E. 3. Scot. m. 31, or 23. men for Land and Sea, Scot. 10 E. 3. m. 21. dor'. omnes ad defensionem ex debit. Astring'. Scot. 10 E. 3. m. 23. dor'. & 24. de Proclam' faciend', to all Englands, and others. M. 12. m. 23. M. 20. in Villa de Lenne.

M. 14. dor'. prout fieri consueverit, &c. To all Counties, Nos considerantes quod omnes ratione li∣geancie sue astringuntur M. 1. dor' through all Coun∣ties the like observed, especially nequimus resistere Correctionem, &c. sine auxilio vir'.

M. 2. de Navibus supervidendis, and in that are the very words of the Writ.

M. 12 & 13. Jernemuth.

M. 25. de Portubus custodiend' In-lands as well as others, Berks, Wilts, Leicest', North'ton, &c.

M. 16. Navibus supervidendis, &c. nos adverten∣tes circum quaque aut hec tempora.

Alium 10 E. 3. m. 13. 1. pars.

Cl'o 1 pars 12 E. 3. m. 13. dor'.

Alium 2 pars 12 E. 3. m. 33. versus boreales duplici eskippamento, and to contribute, and those that refuse to Assess juxta statum.

Cl'o 12 E. 3. m. 14 dor'. Archers.

Alium 12 E. 3. m. 6. 2 pars. Order that but one Bell should be rung, that when the enemies come, all should ring.

Alium 12 E. 3. pars 2. m. 3. supervidend' quod om∣nes araiat. considerantes quod omnes, &c. se & sua ex∣ponere astringuntur pro salvatione, &c.

Alium 12 E. 3. p. 2. m. 10. because hostes nostri in multitudine non modica, &c. All that have reddi∣tus, &c. were to attend.

Alium 13 E. 3. m. 1. de supervidend' Vili' South'∣ton. Et in 5.

Cl'o 13 E. 3. m. 38. dor'. A Writ directed Cu∣stodibus terre Maritinae. The Abbot of Ramsey lived in Huntington, yet distrained for Sea in Norfolk. Cl'o 1 pars 14. dor'.

Cl'o 13 E. 3. m. 14 dor'. Wilts. All great men to draw near to save their own lives.

Cl'o 13 E. 3. m. 14. dor'. County of Oxon', and an In-land, and yet Custodia terrae Maritinae m. 15. & 17.

M. 17 E. 3. B. R. Rott'. 15. A Supersedeas granted H. 17 E. 3. m. 24. recovered wages of the Town for 40 daies Scot. 20 E. 3. no. 14 versus Scot.

M. 21 E. 3. Rot. 4. B. R. qu' detain Souldiers.

M. 31. Payment of Wages.

22 E. 3. Parl' Roll' No. 4. There the Com∣mons were at great Charge for guarding the Sea, and pray remedy; but not for the right, but for the excess.

Fran' 21 E. 3. m. 24. dorso. 22 E. 3. pars 2. Pat' m. 1.

Fran' 22 E. 3. m. 5. dor' pro Johanne Cooke, Fran' 26 E. 3. m. 5. & 4. quia est vulgaris opinio &c. And this recited, Nos considerantes, &c. quod omnes per Juramentum, &c. And this was for the Sea, and goes to all Inland Towns.

And as they talk of Kings in Field, I hope Kings use not to go into the Field in person.

34 E. 3. Fran' m. 34. pro Clero Araiando Cl'o. 33 E. 3. m. 89. dor'.

Cl'o. 43 E. 3. m. 1. de Navibus arestand'.

Cl'o. 43 E. 3. m. 14. or 13. de hominibus arian∣dis. 45 E. 3. Clo. m. 8. ut intellectimus Parl' Roll' 46 E. 3. no. 20. The Commons complain that, Whereas the Sea was so noble, that all the World called the King, The King of the Sea, &c. They pray as of grace, &c.

Fran' 47 E. 3. no. 20. for guarding of the Sea shore.

50 E. 3. per no. 105. 31 E. 3. per no. 25. The Charge is not put upon the people without com∣mon consent.

The King is not to do it but for the grand ne∣cessity, and for defence of the Realm.

In Richard the Second's time.

Cl'o. 1 R. 2. m. 7. first part of Scardburgh, Pat' 1. pars 1. R. 2. m. 12.

1 R. 2. Pat' pars 1. m. 42. dor' Beacons.

1 R. 2. Pat' 13. dor'. 2 R. 2. Fr' m. 15.

4 R. 2. Scot' m. 9. King of Castile pro compellen∣do bomines pro custod' Maritin'.

7 R. 2. m. 9. Totus Clerus apponere manus adju∣trices Archbishop of York.

Ro. Scot' in 47. R. 2.

8 R. 2. m. 5. Archers.

Notes

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