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.

Mr. Solicitor his Second days Argu∣ment, Novemb. 13. 1637.

May it please your Lordship,

THe last day I left at the end of R. 2. I do not love to repeat; yet in regard the Re∣cords that are of weightiest evidence for the King to men of understanding, perhaps not so clearly understood by every one that hears them, I shall sum up what hath been read. It hath appeared by the Records that have been read, that the Sea and the Land have been guarded by the Com∣mons when danger did appear to the King. If the danger were great, the whole Commons, no Age, no Sex, no Order to be spared; all Eccle∣siastical persons bound to defend. If the danger were less, those parts nearest unto it to defend. No reason to trouble the whole Kingdom, when a few would serve the turn. Those that refused were compelled by imprisonment, seisure of Goods and Lands. The Writs have expressed fully and significantly, that no wages ought to be paid by the King. That when there was ap∣parent danger, it appeareth by some Records, that one man should not serve for another. Care taken by Commission that all equality should be used in making of Contribution: And when com∣plaint, as 25 E. 1. was made against it, it was re∣medied. Yet it was not Ratione contributionis, but violentae extortionis.

This constant usage of former Kings, is of much more authority and weight then scattered Judgments here and there, or Judicial proceed∣ings in any Court; and these are not wanting. Notwithstanding I shall now proceed, and come to the time wherein so many great Lords did dye, and so much Noble blood was spilt in Civil Wars from H. 4. to H. 7. Henricus Rosas Regna Jacobus. There was not then such great cause to look to preparation for Sea, for the War was in the bowels of the Land: And the Sea and the Land make but one Kingdom, and the Reasons are the same for both. And for H. 4. when he was new∣ly come to the Crown: It appears Cl'o. 1 H. 4. pars 1. m. 12. dor'. Writs directed to the Arch∣bishops of Canterbury and York, and other Bi∣shops; and it recites that the French had prepa∣red a great Navy, which was seen on the Coasts, and intended to invade the Kingdom: And that Abbots and Priors should be arrayed, sine dilibera∣tione, &c. & juxta statum & possessiones, &c. & tridecim Millenis Centenis, &c. Rotulus viagij be∣gins 1 H. 4. to 11 H. 4. m. 20. de proclamatione faciend' to go against the Rebels of Wales de A∣ratione faciend' in the same, and Barons assign∣ed to the custody of the Marches of Wales, called Battelfield; less reason for this place of any, for they say there were Lords Marchers to defend it, m. 14. 23. De proclam' faciend' to go with the King in person against Henry Percy a Rebel, and there was an array of men by the Sea Coasts to resist the Enemies, &c. And in the same de homi∣nibus congregandis, divers other Proclamations de hominibus defensibil'.

In the same Roll de Militibus infra Comit' Lan∣cast' upon the Insurrection of the Earl of Nor∣thumberland to bring them to Pomfreit, m. 10. & 27. Again to go to the Prince, H. 5.

And in 1 H. 4. this goes to Northumberland,

Darby, Lancaster, by Robert Duke of to invade the Kingdom.

All Lords, Noblemen, Vallets, &c. & omnes homines defensibil' between sixteen and sixty; and that was juxta statum upon warning of two days, which was in defer sime Regni nostri, to go with the King, m. 20. De hominibus levandis & congre∣gandis.

And of this nature 4 H. 4. Pat'm. 11. dor'. & 10. 5 H. 4. Pat' in 28. dor'. 2. pars, principal men joyned together to array and muster over all Eng∣land; this hath appeared by the constant com∣mon Law of the Kingdom.

Before Parl' 5 H. 4. 24. Commons pray that the Commissions of Array should be considered, and the Judges advised with, and a Commission made for future ad ariand' & triand' qui de corpo∣re sunt habiles, &c. Juxta statum & facultates, &c. & ad assidend' & apportionend' with power to di∣strain, 7 H. 4. per Fitz-Harbert, Thorney Title Protection de Subjects of England not to go out of England with their King. This was upon the King's going to aid the Duke of Flanders, Reg. 7. fo. 7. Calvin's Case. Not to go without wages when they were to follow the King.

In Henry the Fifth's time.

There were then great Wars with France; but when the King went, he took care that England should be provided sor. 3 H. 5. Pat' m. 37. dor'. pars 2. de Aratione faciend' care is taken that all should be arrayed, an•• being so arrayed, should continue so arrayed, &c.

Stat. 1 E. 1. It provides that they shall not go out of their Counties, but upon the sudden com∣ing of strange Enemies, unless upon warning; they were not only to array them, but to lead them to the Coasts of the Sea out of their Coun∣ties, when and where it should be necessary, Cum aliud periculum ••mineat, notwithstanding the Statute (which is our Case). Nay, our Case is much stronger. And 3 H. 6. verbatim, with the other 6 H. 5. Pat' m. 8. dor'. pars 101.

8 H. 5. 16. dor'. This was upon the threatning upon the King of Castile to all the Counties of England.

7 H. 5. Baga Regis, Divers privy Seals to all the Counties of England, to inform the King what able men of Auncestry there were ad defen∣sionem nos' in propriis personis suis ad defensionem Regni▪ An the Return is pur defence de son Realm.

En temps H. 6.

3 H. 6. Pat' m. 37. dor'. pars secunda de Araitione facienda.

7 H. 6. pars 1. m. 7. dor'. Pat'. There it is quia datum est nobis intelligi sor Isle of Wight, Pat' 7 H. 6. 5. dor'. 1. pars.

13 H. 6. m. 3. de militibus Congregandis & ducendis, &c. versus Scotland, Pat' 13 H. 6. m. 10. dor'. pars 1. contra maliciam inimicor' &c. A full command to array all, and to bring them ad coste∣ram Maris and other places, & juxta gradus suos.

14 H. 6. pars 1. m. 20.	Arrayes.
21 H. 6. m. 40. dorso.
Pat' 28. H. 6. 11. dorso.
Pat' 29. pars 1. m. 45. dor'.
37 pars 1. Pat' m. 6. dor'.

A Book Case. 28 H. 6. 11. 6. Pl. 22. Diverse of the Clergy bad Charters to be freed from the payments of Tenths for the Defence of the King∣dom; and the Clergy did grant two shillings in the pound without Act of Parliament, and this sent by Mittimus into the Exchequer, P. 28 H. 6. Ro. 10. & Tr. 11. for levying Money upon Scire Fac'. 36 H. 6. m. 2. dor'. Regis 1. Pat'. array in the Isle of Tennet, and compel them by distress pro defensione Regni 37 H. 6. Pat' m. 1. & 6. dor'. A Writ to many Counties; Because of the great hurt done to the People by the Sea Coasts, and the great preparation to do more hurt, thereup∣on command to train and array all parts of Eng∣land pro defensione.

And 39 H. 6. m. 12. Pat' de potestat'. to array the Isle of Wight being invaded, it went to divers Counties, & juxta gradus & conditiones, &c.

39 H. 6. m. 11. & 9. dor'. A Commission to Edward Duke of York, who claimed the Crown, and was adjudged him.

31 H. 6. pro Araitione faciend quaedam persona fil' iniquitatis, &c.

Therefore is a Command pro securitate persone nostre & populi nostri ad invocandum omnes homines defensibiles to destroy them, Pat' m. 9. dor'. de vil∣la de Stamford Custodiend' m. 1. dor'. A Command given to Edward Duke of York, H. 4. which gave power to raise money and men at Bristol, Here∣ford, &c. which was cancelled, and other Writs given in the room.

En temps E. 4.

1 E. 4. Pat' m. 8. dor'. For reducing of H. 6. power congregare all the People.

1 E. 4. m. 8. Southwales on the Marches.

1 E. 4. Scot' Richard Duke of York custo•• Westm' ad omnes homines defensibiles in Cumber∣land and Westmerland, between sixteen and sixty, sint prompti in defensione Marchiar' &c. against Percy Earl of Northumberland Sco'. 10 E. 4. 11. 4. there are custodes generales versus Scot' for arming all men, as there should be cause. Pat' 3 E. 4. 3. dor'. Continue parati ad defensionem persone nostre & Regni.

8 E. 4. fo. 23. Book Case. A Subject hath pow∣er to make a Bulwark in another mans Ground. The King hath as much power over all the King∣dom as any particular Subject to make De∣fence.

9 E. 4. Pat' 11 E. 4. Arrayes. 10 E. 4. Pat' m. 13. Arrayes, in salvatione Regni, when he was like to lose his Kingdom. A Commission to raise People against the power of his great Ad∣versary and Rebel. 49 H. 6. Pat' m. 8. dor'. E. 4. who did lately enjoy the Crown by Usurpati∣on.

22 E. 4. pars 1. m. 2. pat' pro conductoribus & Waf∣fatoribus Piscat' and at the Subjects charge.

22 E. 4. 2. R. 3. m. 2. pars Pat' 1 H. 7. 3 H. 7. ut supra 3 H. 7.

Pat' 1 R. 3. dor' pars 1.

Against the Duke of Buckingham, quorumcunqut comitat' and this Juxta statum & facultates.

En temps H. 7.

Henry the Seventh was a wise Prince; his Ma∣jesties Progenitor as well as his Predecessor. He stayed not till he saw the tops of the Ships or the Drums beat, he provided for the safety of the Kingdom betimes, when War was denounced between Charles King of France, and the King of the Romans, though he was allied to both, he prepared to defend his Kingdom, Pat' 1 H. 7. dor∣so•• A Command to the Sheriffs to make Procla∣mation in England, That because we are credibly informed of War between Charles King of France, and the King of the Romans, and great hurt may

happen to this Realm and the Subjects thereof, commanding all Subjects to keep watch and ward upon the Sea Coasts, and all Beacons to be made ready to be set on fire, as in old time; and this after Tunnage and Poundage granted to him for life.

And I am sure that there are greater Wars round about us now, then there were at that time.

7 H. 7. Pat' Intus' de potestate Commissa Earl of Surrey to go to Conquer France. 7 H. 7. ca. 1. Statute in print.

1 H. 7. Pat' pars 1. A Command to Richard Fitzhugh and others to keep all in array for de∣fence against Scotland, which intend to invade the Realm ut informamur.

Stat. 1 H. 7. ca. 16. Every Subject by his duty of Allegiance is bound to Assist when need re∣quires.

En temps H. 8.

4 H. 8. Pat' A Proclamation to the Maritime Counties to be in readiness, considering that the French King had prepared a great Navy to enter this Kingdom the next Month ensuing, &c. and certain Captains deputed to lead them; and they were all to be in readiness at an hours warning upon their Allegiance.

Pat' 4 H. 8. The same Commission to Bouchier &c. in Latin.

14 H. 8. Which is not in this Roll, but in a Book of Proclamations; for before E. 4. his time, all between sixteen and sixty to be ready at one hours warning.

15 H. 8. Inhabitants of Stamford, Nottingham, and Salop, &c. to attend the Earl of Surrey upon an hours warning.

30 H. 8. Palace Treasurer omnes homines ad Arma to be ready ad deserviend' nobis in Scotland, as need shall be.

Stat. 35 H. 8. ca. 13. Remission del Loanes reci∣ting and considering.

Est duty & honour del People to assist their King in Body, Goods, Lands, and Substance in his Wars, and there it was only for offensive Wars.

Pat' 36 H. 8. pars 2. 37 H. 8. in Mr. Moyle's Book, &c.

4 & 5 Philip & Mary, Commissions of Array to go to all Gentlemen of Quality; but now but one Lieutenant of a County; and that power which the Lieutenant hath now in England, was the same with the ancient Commissions of Array in substance; so that it is no new thing. These are in force by 5 H. 4. and Common Law in Queen Maries and Queen Elizabeths time; and they did not go in the legal Array, but by the power of the Councel board.

3 & 4 Phil. & Mar. 1557. Councel board. Callis was besieged on the sudden, the Enemy making pretence of going into the Low-Countries, there went presently a Command to the Lord Warden of the Cinque Ports, Jan. 5. to make Proclamation in Kent, That all from sixteen to sixty should repair to Dover to save Callis, upon pain of death.

8 Februarij 1557. Letter of Thanksgiving to Sir John Egcombe for diligent mustering of 1000 men.

19 September 1558. Northumberland served with∣out wages.

1 September to continue Watch.

8 April 1558. Whittipoole sor not finding demy Launces, is called to the Councel Table.

These are to shew what proceedings there have been in former times.

7 Eliz. Pat' pars 5. A Commission to Muster all men against Scotland.

11 El. Pat' though not on Record, yet in a Book in the Crown Office in the Chancery with Mr. Willis.

A Commission to Array men, and provide all things prout necessitas, &c. and to inform them∣selves what Armour they had, and this to be done for our better service. But with those Commissi∣ons there went Instructions: Amongst which ob∣serve this one; We require you to consider how necessary this service committed to you is at this time for the benefit and safety of our Realm, wherein we think the more earnestness is the more requisite, because of our Subjects long con∣tinuance in Peace, and the notorious being in Arms of our Neighbours about this Realm.

If these times be not worse then that, I leave, &c.

27 El. Watson's Roll. A Warrant to the Lord Chancellor to make Lieutenants and Deputy-Lieutenants, which are the old Commissions of Array turned into English. And in 88. when that great Armado came, all the Realm was in Arms, and at the Subjects charge.

31 El. ca. 14, 15. The Subjects granted a Sub∣sidy in consideration of the Queens charge. The Subjects were at great charge both for Land and Sea, and she took it by the power of her Councel Table.

The City of London was desired to find ten Ships, and of themselves they desired to find twenty. This was the affection of those times; they did not dispute, but were ready to obey.

28 April 1588. A Letter to Sir Robert Wingfield; Whereas divers Towns in Suffolk were charged to set out a Ship, and that divers were poor and could not, a Command that the Richer should do it. A Letter to the Earl of Huntingdon, that York should contribute to a Ship charged on Hull.

A Letter to other Towns to contribute to Col∣chester; they refused; yet were compelled to do it for advancement of so necessary a Service.

The Clergy in 88. joyned, and the Archbishop was Captain.

And there were Letters for demolishing of Suburbs, 1 E. 4. Books are so for it. Town of Pool in the County of Devon, Stat. 3. Jac. c. 6. where the charge of the People in Queen Eliza∣beths time was remembred, for London was charg∣ed, and Forreigners and Sojurners were charged also to contribute, for that the charge was com∣mon.

In 88. 3000 l. Conduct-money levied for the Earl of Bath.

They did not stay here till the tops of the Ships were seen, but they made preparation in 87.

In 99. 41 El. great Troops assembled at London for defence of the Queen, when the Tumult was about the Earl of Essex.

And in 98. the Cause being common, the Charge ought to be born in common.

Nay, the Inns of Court have been charged with Arms upon the apprehending of the Earl of Es∣sex. A Letter went to the Benchers of the Inner Temple to that purpose, and all the Gentlemen did find Arms.

Amongst these Letters great levies of Horse and Foot at the Countries Charge: And where she would not have their Persons, she had their Purses and Power to extend accordingly.

95. Among the Papers of the Lord of Notting∣ham, the People sent forth a Ship at their Charge. We have the Letter only to shew they did it, and how much they did contribute.

In King James his time there was not much; the time was not only peaceable, but he was Rex P••••isicus: His Motto was, Beati Pacisici.

10 Julij, 2. Car. A Proclamation that the People should make speedy repair to several pla∣ces, and should so continue during the danger.

And for a binding Authority Car. 12. The Re∣solution of all the judges, under their hands, and enrolled in every Court at Westminster. A man would have thought that that would have given satisfaction: It would have done so in former times. And truly, that the King hath done no∣thing, nor the Judges, but what the Kings of this Realm have done before, is most apparent to all those who will read our Law Books. How of∣ten have the Judges been assembled by the King's Command, both in the outward and inward Star-Chamber, and there asked them Questions. 2 R. 3. so. 10. 8 H. 8. 190. 6. 101. the King was there, and reasoned there; Is this a new thing for Judges to deliver their Opinions? A new Doctrine. But his Majesty hath been pleased like∣wise to give way that it might be brought to a publick Debate in a Judicial way. He hopes there is very few that do oppose it, do it out of any averse∣ness from the Publick Service, but to satisfie themselves, and so to submit.

To Answer the Argument.

Before I come to answer in particular to what was objected by this learned Gentleman, Mr. St. John, who hath taken a great deal of pains, and made as much use of it as was possible for a Cause of this nature to bear. I shall in the first place give a general Answer.

1. I say, That the testimony by Records given on the other side, whereof many are vouched, which I am glad to hear of, and that men look into a bu∣siness of this nature. To make such a search, is for the honour of the King, that there is accord∣ing to the Law, the freest access to the Records that ever was in England. And that great Lord (meaning the Lord of Holland) doth know the King commanded with his own mouth, that free access should be to the Records in this business. And I appeal to all Officers that keep the Records, that I did not only give that command from the King, but desired them my self, to shew to the o∣ther party what end •• had. I say, these Records, take them at the best, they are not of such weight in point of Right, as the other are which are for the King: For if a King shall voluntarily, in case of his Subjects, or special Grace, do any thing, yet I conceive that is not of such weight as when he produces a constant use of compulsive Power from the Crown, and obeyed by the People: For if any of the Kings have spoken gentle Language, as King John when he was deposed from his Crown, I conceive that will not be so much as gentle words used in the Writs. I shall answer particularly to all the Records that have been cited: It doth much concern the King that this Argument be answered fully

The first thing that was said, is, That to seize Goods without Suit or Cause is void in Law. But this was not used as an Argument, but as an In∣troduction: But in the next place he comes to a high Objection, That there is Voluntas interna & externa; His inward Will, which he doth declare in his Chamber; and his Legal Will: And with∣al that the King cannot judge himself. 2 R. 2. f. 10, 11. which was grounded upon that Book Case. But that is not our Case. The King cannot judge in his own Person, but hath left it to their Lord∣ships, that are sworn to do equal Justice between him and his People. But to say that the King cannot judge himself, I question. Can that be wanting in the Fountain which issues in the Stream? That I utterly deny. Is it not said, Co∣ram Rege in the Kings Bench; and in the Star-Chamber, Coram Conciliis nostris? This is a new Doctrine.

And shall not the King judge? Did not King E. 4. sit in Person in the Kings Bench in a Trial of Rape? And that famous Justice Popham sit at the King's sect, and other Judges sit at the King's side, and therefore called Justiciarij à latere Regis? Sure he forgot King James, who adjudged two Ca∣ses in the Star-Chamber, that of Bellingham and Sir Thomas Lake's Case, the Book doth no way war∣rant his inference. The Book doth not say, The King shall not judge; but saith, If a man be con∣victed before the Judges, the King shall not set the Fine, because he heareth not the Case: This no way concerns our Case.

Object. That no Law can be changed, but by Act of Parliament? As a Naturalization and Legitimation. Nay, no Writ of Error, but in Parliament, till by the Statute 27 El. And the Parliament is Curia Regis, and part of the King's Body, and cited 34 H. 8. Crompton Jurisdiction. The King is at no time in such his state Royal, as in Parliament. All that was made out of this was, That this was a change of Law, viz. the Writ for Shipping. We are so far from belie∣ving that it is a change of Law, as it is the cu∣stom of all Ages in former times. Now (he says) the Parliament is the highest Court, and the King is there at highest both for magnificence and power: But yet out of the Parliament the King is King of England. It doth not follow, that be∣cause he may do it in Parliament, that therefore he cannot do it any where else. And it is too poor a comparison to say that the King should have the ordering of War as a Generalissimo over his Subjects and Vassals. All other Generals have their power from him.

Object. Oh but the King hath provision for War.

This is but a cunning insinuation to make a sur∣vey of the King's Revenue, and to insinuate with the People.

And begin with Knights Service, Tenure, and these in dangerous places, as Dover, Duresm, Che∣ster. 35 H. 6. Britt. That the King should not only have his Wards Lands to breed them up, but to maintain the War in the mean time. And that Knights-Service 37 H. 6. were instituted for ordinary defence, as Horsmen. And because the Kings of England, out of their care to have men trained up for Horsmen to follow them, that therefore they should have no aid when the King∣dom was in danger: Shall we have no Footmen, no Archers, nor Slingers to be used in War? No Guard at Sea, because he hath some Tenures of Horsmen? This doth not discharge the Subject. This is but for forty days, and was instituted to suppress the sudden incursion from Scotland, 19 R. 2. Guard. 165. old Tenures. They do restrain particularly Escuage and Knights Service to Scot∣land and Wales. 22 E. 1. for Gascoign afterwards discharged, but not for Mr. St. Johns Reason. 5▪ E.

2. Cl'o. Ro. m. 27. These were discharged of Es∣cuage; because the King was not there in person, and because it was extraordinary. 5 E. 1. Rot. Scot. 27. That Record doth shew the Kings of Eng∣land did conceive that they were somewhat less then Enemies, Rebels; for Forreign Service, I never meant to object it.

Object. Then he saith Escuage is to be assessed in Parliamento, though for the defence of the Kingdom.

Answ. If that were the proper Question, I could shew when Escuage was not by Parliament; for it was by another Reason. It was altered by an Act of Parliament 17 Johannis Stat' Runney-Mead Nullum Scutagium, for it was not so before.

Answ. 2. Because it concerneth the Subject as well as the King, 9 H. 3. ca. 37. The true Reason of the assessing in Parliament is this, Other men were to have Escuage as well as the King. Now it is a true Rule, No man shall be Judge in his own case; but therefore not the King, that holds no proportion. And Kings are thought to do no wrong. The true Reason why it was assessed in Parliament was, because the Lords would take too much. This is far from the business, I pass it over.

Object. That the King is in actual possession of the Wards.

Answ. That this should go towards maintenance of Wars, he cannot shew any Authority worth the value. Neither Bract. nor Britt. hath any such thing; for 35 H. 6. the words are par ceo, &c.

The Argument will be but thus; Because the King out of his especial care, out of his own Land provided some Tenures for that purpose, therefore he shall have nothing from the Sub∣ject.

The King did never give nor could give other mens Lands for those Tenures; for it was most apparent the Normans came not in as Conque∣rors. William was no Conqueror; for after he came in, men did recover their Lands which were their Ancestors. That was the wisdom when H. 4. took the Crown by Conquest, when he would have altered the Laws: No; take our Laws and take our Lands. An Argument no ways conducing. Because he hath some Horse by Tenure, therefore neither Foot; nor provision for Sea-fight, nor Trained Band, because provision is made by Te∣nures? This is contrary to all reason and experi∣ence. What obligation hath the Soakmans and Ploughmans Tenure? What do they pay to de∣fend them? No consideration for it. These were rather Insinuations than Arguments.

Object. Then it was said, There are like Te∣nures for Sea; and cited two or three: One to hold the King's head at Sea, and some such like: As if two or three Tenures were like to defend the Sea.

Object. It is said the Cinque Ports, that they have priviledges to that purpose.

Answ. 13 E. 3. Parl' Roll' 11. Is the Cinque Ports Service a competent provision to defend a King∣dom against Hostility? I know no Reason but the whole Body should defend it self. 13 E. 3. no. 9. appears expresly that the Commons made defence at their Charge. No man can be discharged of keeping a thing that he did not keep. So because the Subject is said discharged, an Argument that he was charged.

That of Cinque Ports is not for the defence of the Kingdom, but for intercourse of Merchandize, not quando Salus Regni periclitabatur.

Then they object, That Tenures in Ancient Demesne were Talliable without consent, and their Services for the King promised in their House, no reason that should excuse them from the general Service: For though it be true that the King's House imploys such Tenants, yet the Kingdom must be supported by them and the rest of the Subjects together.

Then he did object, That there was another way of Supply of extraordinary means; as Mines in other mens Lands. And here remembred M. 3. R. 2. Prerogative Communia, difference taken between Annual and Casual for defence, 6 R. 2. n. 42. Parl' Roll' The King would live of his own Revenues, and that the Mines should be for the desence of the Kingdom.

Answ. Onslow that argued the Case, said, The King was the most excellent person both at Sea and Land: Therefore the Royal Fish at Sea, and the Gold and Silver Mines at Land was given to him, because he was able to give a stamp on Mo∣ney. And fo. 2. R. 2. they of London prayed that the King would not put them to Charge, but live of his own. Your Authority vanisheth into Smoak.

The King must live forsooth of his ordinary Revenues. M. 3. R. 2. which expresseth that the King would at that time do so. That the King by advice, for salvation of the Kingdom, would use these things given unto him, that indeed was a reasonable thing for that time. But must it be now turned for a necessity, 6 R. 2. no. 42. pars 2. that good government be about the King? Then they Petition that he would live upon the Revenues of the Crown, and that all Wardships, Marriages, Reliefs, Forfeitures, &c. should be for the defence le Roy de bon volunt, &c. The King is willing, and doth desire much to do and ordain in this Case by the Lords of his Realm, which may be best for his honour and profit. This is not a grant∣ing of the King, but referring it to his Lords, at best, it is but a temporary desire.

Object. But he hath objected the old Customs and petty Customs, Tunnage and Poundage, of the legality of taking it, he will not speak. If the King doth impose it on Merchants, he need not take it of other Subjects. Duties to the King in this year 11. were 300000 l. and that Tunnage and Poundage was granted for ordinary and ex∣traordinary defence, 3 R. 2. 5 R. 2. 1 Mar. on condition granted that by the Statute of Winche∣ster they were bound to have Arms; and no such Statute for Sea.

I shall answer all this; but for Tunnage and Poundage reserve it for a peculiar place. They say the Courts of Justice are maintained by the Courts of Justice. The King hath a profit there∣by; but the maintenance of them cometh out of the Subjects purse: And the first fruits were for defence of the Faith, that no Heresie should creep into the Church: Therefore because the King is Lord of the English Sea, he must defend it at his own charge, and not command the body or purse of his Subjects. Pretty Argument! He saith the King hath the old Customs, which are the ancient Inheritance of the Crown, and so for petty Cu∣stoms, and that these must go towards defence of the Sea. See Judgment in the Exchequer in E. 1. time. Search into the Fine Roll 3 E. 1. and see for what causes these old Customs were. It was never said, till he spake it, that the old Customs, or lesser, were for this purpose. And for his saying, That the Statute of Winchester, 13 E. 1. doth enjoyn to keep Arms, and thereupon all de∣sence

comes. That Statute is repealed in Philip and Mary, and set afoot by King James; and a∣gain by him repealed. I shall shew before 13 E. 1. many Records for Land Service long before; for that Statute doth only set a form of Arms, and is not the beginning of Arms. So for the Objection of the King's Revenues, it signifies no∣thing, be it more or less.

Now I shall come to Tunnage and Poundage, the darling Argument, which I affirm was never given nor taken of it self simply for extraordina∣ry defence; I have seen all the grants of it. It may be when there hath been Wars abroad, and then the Subject in Parliament hath given Tun∣nage and Poundage with Tenths and Fifteenths; There they have been all said to be for the de∣fence. That Tunnage and Poundage hath been given and taken meerly for intercourse of Mer∣chants. And in that sence the King said we do and must pursue those ends for which it was grant∣ed to the Crown, I shall make that appear by Reasons, and out of the Grants themselves and other Authorities.

If Tunnage and Poundage were meerly for the defence of the Sea, How was the Kingdom to be defended before the time of the Saxons? At first time of it was six pence a year, then to two and three shillings for Tunnage and Poundage, then three shillings upon a Tun of Wine, and twelve pence a Pack on Merchandizes, that was all for Tunnage and Poundage, the rest was for old Cu∣stoms. If this was for extraordinary, how was the Kingdomdefended? When it was given for half a year; Truth, it was for the defence of the Kingdom; that is, with relation to the intercourse of Merchandize. Recital 1. Jac. saith, that it hath been taken time out of mind. Hath Tunnage and Poundage been given time out of mind, then it is since R. 1. time?

Henry the Sixth had it for life: The Statute doth express it as plain as can be. Time out of mind is beyond memory of any man living.

The very interpretation of the Statute explains it for safety of the Sea, and for the intercourse of Merchants. In all Ages before the granting of Tunnage and Poundage, the King upon a general Defence hath had other Aids then this by their own Power. Ordinary charge for an ordinary Defence. I could have given a legal Answer that it was not given unto the King. No Act of Parliament for it: Yea, but it is taken de facto. Shew your Instruments by which it was taken; that had been a legal Answer. But I shall carry the King's Honour along with his Power and Practice. 6 R. 2. Rot. Franc' 7 H. 4. no. 23. Ro. 11. Tunnage and Poundage granted to Mer∣chants to guard the Sea for intercourse of Mer∣chandize; which sheweth plainly it was for that purpose. To put it without all manner of que∣stion, 6 R. 2. no. 8. Franc' Roll. 2. Merchants & Marriners had Custodia Maris; and the King granted them 6 d. a pound. Doth any man think that he would trust the safety of his Kingdom with Merchants and Mariners? It was meerly for the guard of the Sea for Merchandize; express exception in the very Grant, that they should not be bound by this to help against Invasion of Ene∣mies, unless a Royal Power come (Regali potesta∣te excepta) therefore this was for no extraordina∣ry Service. 7 H. 4. Parl' Roll. is of the same manner. And in the Clause Roll, that the Custo∣des Maris should put there a lawful power, for the safeguard of the Sea against the Enemies of the King, except a Royal power, then noticer to the King; for it must be understood meerly for intercourse of Merchants. I can shew you a Book Case for this, 9 H. 6. 12. Q. case title Custome, Bra. 26. He saith Aids and Subsidies granted to the King, to the intent that the King by his Ad∣miral should guard the Sea, to the end that Mer∣chandize may pass and repass. Not a word for the defence of the Kingdom. And in the year 11. Car. the King was at great charge with his Navy. Cast up the Accompts of the Sea Duties, and then it will appear there is not left to him a penny for the defence of the Sea. Impositions and pressage of Wine was to furnish his House, and not for defence of the Sea. Not only upon this, but there was an ancient Lawyer that wrote the Doctor and Student (whose name was S. Jer∣maine) who wrote in H. 8. time, he tells you, lib. 2. c. 15. fo. 153. The King out of the old Customs of the Realm, as Lord of the Narrow Seas, is bound twice in the year to scoure the Seas, but not against all outward Enemies, but only to put away Pyrates and petty Robbers, History of Tunnage and Poundage. 25 E. 3. Parl' Roll' no. 11. The Commons did pray that 6 d. of 2 s. a Sack of Wooll and of Wine granted, that the Mer∣chants might have safe conduct beyond the Seas; If it would please the King, the Merchants would make their own Conduct for the Custome.

All the Rolls go in that manner, 3 R. 2. H. 4. and they cannot shew that Tunnage and Poun∣dage was made for extraordinary defence, unless for some great Defence.

Object. Next, That Sea Duties are born by e∣very man in the Kingdom, and that is secundum statum. 22 E. 3. no. 4. Parl' Roll, which saith, That it was in charge of the People, & ne my de•• Merchants.

Answ. All men must proportionably beat their Defence. What a Consequence is this? Be∣cause one penny or two pence a year out of the Subjects purse, for their Commodities, therefore their Land shall be discharged in case of extraor∣dinary Defence. Oh! say they, but this may be by Parliament. By a may be a man may answer any Argument: But a may be will never answer a Nil.

23 E. 1. Rol. 3. dorso. The Writs were in October, the Parliament at St. Martins in Win∣ter: In that to Archbishop of Canterbury, the ••ing doth but a little complement with the Clergy, and telleth them he knoweth what dan∣gers were abroad. The business of Shipping was done before the Parliament: So the Parlia∣ment might consider of it afterwards. That it was done before appears; This Parliament was not held at the day; but the King doth Pro∣rogue it till after St. Andrews day, because he was busie in preparing his Shipping; so they came about Shipping when it was gone to Sea be∣fore: For the Writ of Summons was in 1 Octob. day of meeting after St. Martins; that to the Archbishop was the 3d of September; the Ship Writs August 28. and September the 3d. then the rest the 3d and 6th of October, but all long be∣fore the meeting in Parliament, and so all ground∣ed upon (it may be.) And to say that the King, because he did a thing voluntarily, therefore he must be necessitated to it, I know not what Argument it is. H. 7. indeed did bring things to Parliament for advancement of his Ends. Did Queen Elizabeth send any of her Commands out of Parliament, and yet the Subjects give her Subsidies? 24 E. 1. Summons therefore the Cler∣gy to come, if the truce did not hold with France I

think it not fit at all times, when it standeth up∣on intelligence to communicate it to the whole people, August 26. Summons to Parliament di∣vers Writs in February and April before. No Money granted these Parliaments: therefore to tell us it might be by Parliament, it is a poor Argument. The King had great business at this time.

Object. Walsingham saith, Allegiance bindeth the King to Protection, as it doth the Subject to Tribute.

Answ. The Subject hath a double Protection from Injury and wrong. In time of Peace by his Law, and in time of danger by his power. Must this be done by the King's single person? Nay it must be done by the body of his Subjects at their charges. Indeed it is sit that particular Souldiers should be paid.

Object. Oh but they tell us that Fortescue, Chief Justice of the King's Bench, to shew the Law of England to be better than the Law of France, saith, that nothing could be taken from his Sub∣jects, that is, but in the ordinary way; Doth he say that no man shall defend himself in eminent danger? Ne verbum quidem, 27 E. 1. m. 7. Patt's. He did not buy Lands or Castles, but to defend the whole Realm: No more doth this King, but to defend himself and the whole Kingdom.

Object. In 33 E. 1. Ro. 12. It is Objected that the Clerk sued for his Salary, and had it allowed him. And the King supports the Courts by the Fines.

Answ. But they come from the Subjects, and may not the King give a Salary when he pleaseth? 14 E. 3. cap. 1. And this should be prest, that Aids, though granted in the Parliament for de∣fence, shall not be brought into example.

Object. These were not to be spent upon the safeguard of England, but Scotland and France, and so it comes not to our Case, 48 H. 3. When the Tenants came with greater charge than their Services were, that then non trahatur in exemplum.

Answ. True, if Knights Service at that time did do greater services in time of danger; it is rea∣son that it should not be drawn to be yearly to make their Tenures higher, Plow. fo. 315. b. Wiseman's Case of Myne. A Covenant to stand seized to the use of the Queen, in consideration she is the Head of the Common-wealth. No good consideration to raise an use, because there wanteth quid pro quo. And the King ex Officio is bound to do that.

Answ. Under my Lord Cook's savour, it was not in the Case; the Case was upon divers good con∣siderations, and he put in this by way of admit∣tance; I can shew when this was declared to be no Law.

Object. Next that the King hath the possession of the Cinque Ports, Tonnage and Poundage; and that this appears not to be expended, and other duties for the defence of the Sea. And that lex non facit saltum & tempus Belli, I reserve for another place, for that is one of the three things considerable in this Argument. That learned Gentleman Mr. St. John did confess, that (as necessity requires) when the safety of the Kingdom is in danger, the Subject is bound.

If it were material to make it appear whether any thing were spent or not, it should have been pleaded in the Exchequer, if he would have taken any advantage upon it.

But admitting that they had been all expended, yet the property of the Subjects Goods, say they, cannot be altered out of Parliament. He did agree the Kingdom must be defended, and did yield thus far, that the manner of it did not be∣long to the people, 6 R. 2. 2 E. 1. Men and Money belong unto Wars. The Commons did write, it belonged unto the King for ordering of it. In all times, the Caution of former Ages, was to demand it in Parliament, we shall shew in all Ages he did it without Parliament.

This is a pretty thing that the King is to direct the Wars, and yet neither Men or Money without asking his Subjects leave. And for that of Property, it being taken away, in the opening of my Argument I cleared it, I shall not trouble you with repetition of it.

Object. Oh but they tell us, the King hath borrowed Money to spend in the Wars, and pro∣mised to repay it, and that without any salvo of his Right: this is an Argument they think of con∣sideration.

Answ. 48 H. 3. 16 Patt. I know no Law that barreth the King from borrowing of Money, as he hath occasion. Is it not of necessity that the King must borrow, notwithstanding both ordi∣nary and extraordinary? Must the King carry Millions about him? His occasion may be such, that he must borrow, and also ••it it is, as it should be paid again. Doth any man think, that if the King borrow 10000 l. of any particular man, he must not be repaid again? 48 H. 3. no. 15, or 16. Power given to the Earl of Leicester to re∣sort to the City of London to have Money; great reason: Because it is the Chamber of the King; But the King's Money not being come in, de∣sireth to borrow so much of the City, and shall be paid when the other Money cometh in: the end was for the defence of the Kingdom; But therefore the King cannot command his Subjects Aid, because he borrows of his Subjects, is no Argument.

Object. Next, The Law delights in certain∣ties, as in the Aids pur file Marriel', and to make the King's eldest Son a Knight. Those are certain, 25 E. 3. All defence is uncertain till we know the offence, certain he must be a wise man that can do it. How shall a man know how to defend, and not know what the defence will require, whether ten or twenty thousand? And must it not be proportionable to the offence? Is not this to suscipere majus & minus? Where is the Argument, that because Aids which were uncer∣tain by the Common-Law, are made certain by Act of Parliament, therefore must this be cer∣tain for which there is no Act of Parliament?

Object. Oh but the Tallage in Antient De∣mesne and Burgage, they are certain, and Mr. Hampden was at 20 s. it might have been as well 20 l. this is uncertain, it doth rest only in the King's mercy.

Answ. This Writ taketh care they shall not Sess unequally: If Mr. Hampden be too high Sessed, the Sheriff might be called in question for it; but the Sheriff of Buckinghamshire is rather to be Fined for setting him at so low a rate as 20 s. We know what House Mr. Hanpden is of, and his Estate too; for anything I know it might have been 20 l. But to the legal part, some must be trusted with it, and who should be but the Sheriff, and the party is not without remedy.

Then they come at last to Authority by Juris∣diction, and that they that have priviledges are not Talliable to the use of the King, Nisi per graund cause, and that Escuage must be set in Par∣liament, which is by Act of Parliament, 17 Joh That it was called Magna Charta, and confirmed

by H. 3. so it was in Mat. Paris; he speaketh of it as a thing of a story; These were for Foraign Wars, and so not for our Case.

Object. Next, Oh but it was admitted every man was to keep Arms, 13 E. 3. 11 H. 7. cap. 18. while they are in their own Counties, to be at their own charge, but not to be drawn out of their own Counties without wages, as in 88.

H. 7. asraid of his own Title, maketh a Law that no man should be questioned for being with the King in Arms; this was to take away the oc∣casion of the peoples talking whether they went upon just ground.

That many Armies have been paid by the King, 2 E. 6. ca. 2. 28 H. 8. the Rebels in the North. The King promised satisfaction, 11 H. 7. ca. 1. the duty of the Subject is recited in it. What Argument is this? We shew in all Ages where the King commanded his people to attend him, or his Lieutenant, and you tell us that he paid other Armies, 19 H. 7. doth extend to Wars without the Kingdom as well as within, 11 H. 7. this last did expire by his death; this doth ap∣pear plainly, this was by a special gift by the King, 4 Eliz. Dyer 211. expresly it did not extend to the service o•• any other King but him, 25. E. 3. Ca. 8. None constrained to find men at Arms, but those that held by such service.

This must be understood with relation to the Tenure. They were not to come upon com∣mon Summons for Escuage; But when the whole Kingdom was in defence, that they should not come was no excuse.

Object. 26 E. 1. Regnald de Gray durst not Le∣vy men without pay: The Marginal Note clears * 1.1 this, and so no part of our Question.

And it appears, Walsingham 74, 75. that the King was actually then in Scotland, where he fell from his Horse, and lost two of his Ribs.

Object. Tr. 31 E. 1. Next place here is a re∣fusal to go without pay. The Wardens of the Marches of Cumberland, and Westmerland writ to the Barons, That whereas the Scots lay near the Marches with a great Army, and that the people could not march out of their Counties without pay.

Answ. Easily answered; There was the East Marches, and the West Marches of Scotland, several Counties belonging to each, What rea∣son had they to go out of their own Marches, un∣less they had Money for the keeping of them in their absence? Pat. 2. pars 10, or 11 E. 2. m. 26. for war of Scotland, 9 E. 2. the same discharged in the County of Norfolk, 13 E. 3. m. 38. Abbot of Ramsey, because he remained in his own Coun∣ty, it was no absolute discharge, but dum sic in∣tendit, 21 E. 3. Rott Franc'. Some are dischar∣ged from the custody of the Sea, because they were prompt at home; some from finding Hob∣bellers and Archers, and this was by reason of a Grant in Parliament; some were discharged, be∣cause of stay at home to guard the Coasts: this proveth the right both of the personal service and contribution.

Object.

Another Objection, 21 E. 3. Rott. Franc' that they should not be kept continually in Array, but suffer them to stay in their own Coun∣ties: But they were to go as soon as any notice of an Enemies coming.

Answ. This was for the wars of France, and not for the defence of the Kingdom.

Oh but 20 E. 3. m. 6. Scoc. Roll. There were exploratores & vigiles, which were incolae, but how? De assensu & voluntate; But this was no∣thing, for it was with assent in the Northern parts, and had been done in former times against Scotland, 100. Roll of Fenshaw (which I con∣ceive maketh for us rather than against us) for the Castle of Tunbridge is to Levy 15 l. for the King pro insultatione of the Castle, and to Levy it by distress, 14 E. 4. ca. 19. The King could not compel the Subject to fell Victuals for wars, nor to provide for the Castle in the Town, 29 E. 1. that was for Scotland, for payment of Vi∣ctuals, And who can command a Purveyance but the King? And that of the Castle, it was the Victualling of his own Castle, and Subjects were bound to victual their Castles, 8 E. 2. Ro. 99. Marches provided for victuals, and particular men were paid for victuals, but they do not shew from whence those Monies came.

Next is Horses for the King's Service marked, that if they were lost, might be satisfied for, 24 E. 1. Robert lost a Horse worth twenty Mark, and received in the Exchequer somewhat for wages, cited also M. 26 E. 1. Ro. 105, 106. that is only a Concordatum how men should be paid, only an Order sent down from the King what the Horse-men should have, and what the Foot-men for Yorkshire, Northumberland, and Cumberland should have, no wages from the King, but to go against Scotland; yea, that is another thing, Si contra Scotos, and that distinction upon the stating of the Case, will go throughout, 14 E. 3. 34. for Castles.

24 E. 2. 72, 78. dors. Jo. de Sandal. Barwick was taken from the Scots; and for the furnishing of Barwick Castle the people compelled to trust them.

Object.

Oh but the Prisoners and Hostages ta∣ken in war were redeemed at the King's charge, 8 E. 3. allowances in the Exchequer, 5 R. 2. ca. 11. examined in the Exchequer. The King hath a Prisoner taken in war, he is to have his Ransom, Shall not the King pay for his charges? 4 E. 2. Ro. 12. Roger de Savage, Scottish Prisoner; so because the King payeth for a Prisoner, for which he is to have benefit for his Ransom, there∣fore, &c. he is to defend the Kingdom, Dyer 162. A man in Execution cannot be forced to go to War.

Resp. Our Writ doth not desire to send men in Execution to war, for there are enough besides them.

Then again, Borrowing of Money; and they paid again for it pro negotiis urgentissimis. The King may have occasion to borrow Money, rea∣son he should pay it. Nothing to the question.

But the Case is, Whether all the people, for their wives and their families safety, and for the safety of the whole Kingdom, may not be com∣pellable, &c?

The Abbot of Gloucester gave Money to main∣tain a Damosel; the King took this Money, for the present, and paid it back again; this was ut exoneretur conscientia Regis, 26 E. 1. That for things taken away without warrant, the Ministers should answer for it, not pay nor repay, but shall hold themselves satisfied with reason.

But they Object, That in 26 E. 1. a Commis∣sion went out to enquire de rebus Captis sive pro cu∣stodia Maris, &c. and the King saies that il fera taunt & se tendeont a payse per reason.

True se tenderent a payse, &c. which is not the King, will pay or repay; but that they should hold themselves satisfied per Reason, that is, he would give them reason why they should be satis∣fied.

Notes

• * 1.1

  Paronibus eligendis pro ho••'s Scot.