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. Holborne's first daies Argument, Decemb. 2. 1637. in the Case of Hampden.

May it please your Lordships,

IN obedience to your Lordships Command, I am ready though not as I desire, nor as the Cause deserveth, it being impossible for one in so short a time to be fitted to make a reply to the life of the Cause of an Argument so long learned, and so full of Records, wherein neither labour nor learning was wanting; I may say of him as one said once, Etiam haec defensa fuisset. I shall now ra∣ther shew your Lordships what I might do than what I shall for the present, I shall proceed well, hoping the Subject will excuse, and your Lord∣ships greater care supply my defects, which have been without any default.

My Lords, The Case upon the Records stands thus: In May last there issued out of the Exche∣quer a Writ of Scir. fac. to the Sheriff of Bucks to warn my Client to shew cause why he should not pay 20 s. assessed upon him by the late Sheriff of that County, for the finding of a Ship of War up∣on the Writ of 4 Aug. 11 Car. sent into that In∣land County, and the 20 s. certified into the Chan∣cery to be unpaid and sent over into the Exchequer by Mittimus to be Levyed there. Mr. Hampden hath appeared and demanded Oyer of the Writs, 4 Aug. of the Mittimus, &c. and upon the read∣ing of them all hath Demurred in Law generally; and the King's Councel joined in Demurrer and I humbly conceive Judgment ought to be given for my Client.

My Lords, I shall proceed to the stating of the Questions, which are three.

The first, which is a chief one, is this, Whether upon the whole Record the Case so appears for the King that 4 Aug. 11 Car. being the day of the date of the Writ, the King could charge the County of Buckingham to find a Ship at their costs and charges

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by way of admittance? If he could, yet whether the King can give power to the Sheriff to assess the County, as in this Case, by a further admittance? Admit that the King have power to charge and to assess, whether he can Levy the Money unpaid by this course of Certiorari and Mittimus, as he might do if it were his own proper debt? Of the three Questions, whereof the two last remain untouch∣ed, and not Argued by us.

For the first Question, though Argued fully, yet I doubt as yet whether it standeth rightly stated. Not but that I conceive Mr. Solicitor had good colour to state it as he made it, partly by the Record, yet somewhat out of our admittance, yet by admittance only, and so expressed. Again another reason which I conceive, there was a ne∣ssicety on the King's part, so to make it as the So∣licitor stated it, or else to wave the debate.

The first Question is, Whether or no upon the whole Record the Case so appear for the King, that 4 Aug. 11 Car. being the date of the Writ, the King could by his Writ charge the County of Buckingham for finding a Ship of War. This on his Majesties part hath been stated in those words whether the King finding in his Judgment, the safety and preservation of the Kingdom and peo∣ple necessarily and unavoidably to require this Aid commanded by this Writ, might not com∣mand such Aid by Writ for saving and preserving of the Kingdom and people, wherein I confess there is not one word but hath its weight as to this Question thus made. I shall take three Ex∣ceptions which are things taken in to be granted, which I shall not argue if I can avoid them.

First, That at lest in the King's Judgment, the safety and preservation of the Kingdom was in∣dangered, 4 Aug. that is, that the Kingdom was in danger to be lost.

Secondly, If it be so that the Kingdom was in such danger, and that the danger was so instant and unavoidable, that it necessarily required this Aid by this Writ, that is, it required a present charge of Shipping presently, 4 Aug. 11 Car. to be forth∣with commanded, and that the expectation could not expect a Parliamentary consideration and Supply.

These be things wherein we differ. And lastly, For the truth of it the Certificate under the Great Seal, was sufficient in a legal way.

My Lords, To find out whether the Record doth warrant these three things, is of great impor∣tance. First, I shall seek for them in the Writ 4 Aug. and next in the Mittimus; there is no co∣lour elsewhere to look for them.

To open the Writs rightly, will clear these dis∣ferences, as I humbly conceive without any great Argument: And first, the Writ dated 4 Aug. 11 Car. I shall read the words wherein the dangers of the Kingdom are expressed, and then explain what words give that sense that is taken out of them.

Quia datum nobis intelligi quod praedones quidam p••ratae & maris grassatores tam nominis Christiani hostes Mahume•• ••ni quam alii congregati, Naves & bona & M••rcimonia non solum subditorum nostrorum verum etiam subditorum amicorum nostrorum in Mar•• quod per gentem Anglicanam ab olim defendi consuevit ••••farie diripiemes homines & ••poliantes ad libitum suum deportaverum homines—in eisdem in capti∣•••••••• miserrinut mancipantes; cumque ipsos conspicimus Navigium Indies praeparantes ad Mercatores nostros ••••••crius molestand' & ad Regnum gravand' nisi citi∣us remedium apponatur, eorumque conat' virilius 〈◊〉〈◊〉, & consideratis etiam periculis quae undique his guerrenis temporibus imminent; Ita quod nobis & subditis nostris defensione quam poterimus accele∣rare convenit. Nos volentes defenc'one Regni tui••'one Maris securitate subditor', &c. Here are the causes and occasions; all that come after are not materi∣al to the stating of the question. My Lords, in the opening of this Writ, it is true there was mention of loss by Merchants of some particular Members of the Kingdom.

And this loss but by predones Pyratae quam Ma∣humitani & alii, and though alii, yet Pyrats still and no more. Then it saith ipsi still those Pyrats daily prepared Ships, but not armed with men, What to do? Molest the Merchants ad gravan∣dum Regnum, as Pyrats still hitherto. I conceive there is not a word of danger from an Enemy but from Pyrats; not a word of danger to the King∣dom, but to Merchants, however all this is quod intelleximus. The Record goes on thus, Considera∣tis etiam periculis, &c. imminent. This part as I conceive is not so positive, the dangers are but consideratis, nor the danger to the body of the Kingdom. No word of that, or if to the King∣dom, yet nothing whether it be in point of safety, but only in point of molestation, none of all these appears; and besides, the clause is too general, not expressing any particular danger from whom or how. However, be the danger to the one or to the other, be it to the Kingdom, or to the Merchants; be it for trouble or safety, hitherto I may say that there is no mention of any such in∣stant danger as necessarily did require this instant command in the Writ, not so much as in the King's Judgment.

For ought it appears, a Parliament, even in the King's Judgment might have been called, and consideration taken for defence, here be all the premisses upon which the conclusion must arise, and hitherto nothing material to make a danger to the safety of the Kingdom, and so instant that a Supply nunc aut nunquam must come in.

Although the premisses I conceive are only con∣siderable, yet in the conclusion will be but this conv••nit accelerare, but it is fitting to hasten, but no such necessity, and though it be convenit acce∣lerare pro defenc'one Regni. If that were materi∣al, it cannot be construed but with relation to the premisses whereupon it is built, and whether in fear of trouble or danger or loss, non constat, and though it be cumomni festinac'one, yet it is quam poterimus, and that is possimus quod jure pote∣rimus, that is, by all the hast that by Law ye can make, which way that is your Lordships have heard.

Now, My Lords, under favour it appears on the Record, that there was no such instant neces∣sity but that a Parliament might have been time enough; for as it was observed, that between the Test of the Writ and the Rendezvouz, there were two hundred and odd daies, where a Parliament requireth but forty daies for meet∣ing, in the remainder of these two hundred daies, the Parliament might have considered of the means of defence, but I leave it to your Lordships to judge, notwithstanding those expences of time cunningly numbred up to your Lordships by the Solicitor. And though it be true that things are oftentimes long in settling and in deliberation; yet nature tells us, that they can be sooner done, if there be a necessity, we know that will force.

I have but opened this Writ, 4 August▪ I am now come to the Mittimus. The only doubt which I conceive in the Writ of Mittimus is

only that where the Case stands but thus in this Writ is recited the tenor of the Writ, Aug. 4. and then the Writ goes on, and saith, Quia Sa∣lus Regni, &c. and that is all the clause in the Re∣cord that gives colour to the Case so to be made. And to the whole Record we have Demurred. Here it hath been said, that we have confessed all by the Demurrer, and if that hold not, the King, who is the Judge of the danger he hath said, so he hath certified it by the Great Seal, and on these depends the weight of both these Pro∣cesses.

To this I have many Answers, but I shall se∣lect few from many others, on which I shall relie.

My first Answer is this, Here the words are that Salus Regni periclitabatur; these words in show seem to be positive, but in substance but re∣lative, and is rather but a Comment on the Writ or an abstract in point of those dangers mention∣ed in the Writ, for the clause was brought in on the retorn of the Writ, and if we have the Writ it self, the Comment thereupon or further expla∣nation thereof is not material.

Second answer, I doubt, I say no more, If the King put particular reasons into the Writ of 4 Augusti, whether the Law (I speak of the Ie∣gal course) doth permit an after Writ to put in further clauses of the same nature with the for∣mer, and to the same end.

If the Case be thus, our Demurrer will be no confession of any such danger.

In the next place admit the words in the Writ had been positive and materially expressed, yet according to our Rules of Law, it cannot make use of that sence they are now applied unto, for at the least the word Salus being only proper to a Physical natural body is applied to a body Poli∣tick. It is but a Metaphor which the Law will not indure in Writs, for it would bring in great mischief. In Writs and Pleadings Metaphors are dangerous, we know not how to take Issue upon it, and therefore is not regularly allowed, but I leave it to your Lordships Judgment.

There are no words of the danger of the loss of the Kingdom, that is such instant danger, for apply the words to a natural body as Salus J. S. is in danger, it doth not presently imply, that he is in such instant danger of Death. A Doctor will say that a Patient hath not his health, yet no dan∣ger of Death, which is the common speech, the same sence it must have in a Body Politick. If the words were good and did imply a danger, yet not such a danger as shew a danger that may hazard the loss of the Kingdom, for the words are only Salus Regni periclitabatur, and the thing may be now in Action which twenty years hence may lose the Kingdom. A man may say that safety is in danger. At the best the words will not make the Case as it is put.

Mr. Solicitor out of his great care, searching into every hole where he thought we might peep out, doubting our Demurrer would not be a Confession sufficient, he takes in another help, which is this, that if this be so declared by the King's opinion, and under the Great Seal, that this alone had been sufficient, for this there hath been urged the legal weight of the King's affir∣mation, and of a Certificate under the Great Seal, and both be concluded in this Case.

My Lords, Before I answer to this matter, I profess for my Client and my self, that we make no doubt of the King's word, and believe that there was danger, though not so apparent to us, but only both to allow it as sufficient in a le∣gal proceeding, and that his Majesty, who in his own worth deserves it, by after Princes might turn to disadvantage.

That which we urge is, how far in form of Law this may be allowed, we shall Argue, and that briefly, for the Case needeth not help.

For this point, I take it for clear under your Lordships favour, that in legal proceedings, and regularly his Majesties opinion and Certificate in things of fact, is not binding.

Yea, but they say it is matters of State and Government.

For that, To ask the question, Whether or no raising Forces thus is left to his Majesty, that stands or falls on the main cause.

My Lords, I do agree in divers Cases, the King's affirmative shall be conclusive in matters of Fact, that is, when it is not so triable else∣where, as in a Writ de Rege in consulto to stay pro∣ceedings when the King certifies in matter of Fact, the Writ must be obeyed; but the•• with∣al the matter is triable elsewhere.

But these Cases will not match ours As for that great Case of 20 E. 1. concerning the Lords Marchers, that the King was Superlativum Recor∣dum, to say no more, it is but an allegation of the King's Councel.

My Lords, The reason whereon I shall most re∣lye to avoid the sence of the Writ, Salus Regni, &c. is thus.

That though it do now appear by the Mittimus that 4 Augusti, the Kingdom was in danger of being lost, yet it is not sufficient in Law, nor can our Demurrer hurt us, because it must have so appeared in the Writ 4 Augusti itself, for the Writ and Declaration in Law must ever contain precisely so much of matter as is necessarily true to warrant the demand.

In this to see the mischief, if a danger now de∣clared makes the case, how shall the Subject know by the Writ 4 Augusti, whether to obey or no? The Law binds no man to divine.

And if this subsequent Declaration shall mend the Case, then the Subject shall be a wrong doer ex parte facti, which is against the reason of our Books.

I shall remember the Cases put by Mr. St. John to another purpose.

A Commission sent forth without cause exprest, that Commission is not good, and it is not denied by Mr. Sollcitor, that a Cause must be set to make it good in Law.

And if your Lordships be pleased to look on the Precedents, as I know you will, which the King's side shall bring unto you, your Lordships will find the danger turned from the first Writ to the last; nay, in the Writ of this year I am told it is so, out of their opinion fearing the Writ of 4 Augusti was not so good as they would have it. They put it into the Mittimus which they know could not do good, but they did it only to Cavil.

But lastly, Admit that the King had said that the Kingdom was in such instant danger of loss, and that there was an instant necessity of the com∣mand this way, and that this could not have ex∣pected consideration in Parliament, yet if the con∣trary appears in the Record, then neither was the Demurrer a Confession, nor the Certificate con∣clusive.

I could stand on many other things as that the danger should be more particular, for so are all the old Precedents: to say Salus Regni is in danger, is too general. As in a Protection they must alledge in what place the party protected is.

Secondly, In the Mittimus it should not be that Salus Regni, &c. but it should have been how Salus Regni periclitabatur, I believe it is meant so. But we must now look to Rules of Law; true, it might have been in danger before, but not tunc, as in the Case of Indictment upon the Statute of 8 H. 6. for an entry upon White-acre existens Tenementum, J. S. The Law will not take notice of the time without saying tunc existens, at the time of the entry.

My Lords, In the conclusion upon all this dis∣course, it appears I have so pared the Case, that in the Writ dated August 4. there appears no dan∣ger of the Kingdom being then lost, and that in the Mittimus there is no home express words of dan∣ger to the Kingdom instant or unavoidable. If it were so, it cometh not time enough, for it should have been in the Writ dated August 4.

And if there had been such expressing of such instant danger in the Writ, Aug. 4. and Mitti∣mus, yet not material if otherwise on Record.

And lastly, This Certificate doth not conclude us. Thus then to shew what the Case is, and what it is not, I have put out of the considerati∣on of the Case, all consideration of such danger to the safety of the Kingdom as are unavoidable.

I have left nothing in the Case but consideration of protecting Merchants against Pyrats: But for ordinary defence of the Sea. If the Case do fall thus, I humbly conceive that in this place with∣out further Argument, I might with some confi∣dence venture my Client upon your Lordships Judgment, notwithstanding any thing offered on the King's part.

Then by your Lordships command, I shall pro∣ceed, having laid aside the Mittimus, and Salus Regni, and taking the Case only on the Writ, Aug. 4. which, as I take it, is nothing of dan∣ger to the Kingdom, but against Merchants, and but of common defence. The Case stands thus,

That though there be no actual Invasion, no known or declared Enemy, yet the King out of his Judgment, Aug. 4. 11 Car. apprehendeth and foreseeth danger to the Kingdom in point to be lost, and that the danger is so instant and un∣avoidable, that it requireth this Aid, whether the King, out of Parliament, by his Regal power can command this Supply.

I have endeavoured not to mistake Mr. Solici∣tor; it were an injury to requite him so ill. In my Arguments I shall desire leave to hold his course, because the two main Questions are both of one nature though different in degrees.

Our question is in case of common good against Pyrats.

Upon the whole, My end is to shew that by the fundamental policy of England, the King can∣not out of Parliament charge the Subject neither for common good, unless in special Cases, and of a different nature, or upon different reason, nor for a necessary defence, though in the King's Judgment instant and unavoidable.

My Lords, In the Debate of these two Questi∣ons, I have learned of Mr. Solicitor, not to say all that I could, but so much as is necessary, and as he hath chalked out the way, I shall enquire of this power by Arguments upon practice constant and allowed in time of good Government, when the Liberty of the Subject was not trampled up∣on, and shew it by Acts of Parliament, reason and Authority on both.

My Lords, I am now come close to the Argu∣ments on the main. Before I begin, give me leave to profess that I am in a Dilemma. The Questi∣on will be, What the King can do in these Cases by his Regal Power? It much concerns him, and I have learned out of a Speech of his late Majesties what it is to debate such questions. Not to Argue it, were to disobey the Assignment of the Court, and to desert my Client and the Cause.

For my part, As your Lordships see I have la∣boured to decline the main Question, I should be glad it might so sleep.

I shall offer it if happily the Case fall off in the penning of the Writ, and not of the King's Power, I doubt whether the way of Argument shall do the Crown a disservice.

Out of my duty to his Majesty and Service to your Lordships, I humbly offer whether your Lord∣ships, may not think it fitting to determine the Question upon the framing of the Case before it be further Argued. And here I shall rest, or up∣on your Command, am ready to go on.

Lord Finch.

We do not use to Judge Cases by Fractions.

My Lords, Since it is your command, I shall obey, and go on notwithstanding the Bicornum Argumentum which on each side threatneth.

I hope his Majesty will excuse us for Arguing of that which cannot else be determined; and as he hath given way to an Argument, I hope his goodness will excuse us while we do our duty for our Client; and if I err in my materials, or in the way of my Arguing, it is from the defect of my wisdom, I cannot be wifer than God hath made me, and not out of my disaffection to the service.

My Lords, I hope neither his Majesty, nor your Lordships will think it a presumption if I make strict enquiry into a point of a higher na∣ture; yet thus far I assure your Lordships, that if any matter or consideration of State come in my way, I shall tread as lightly as I can; yet I must crave liberty to pick out some to refer to your Lordships consideration, and forbear these things which are unfit.

Lord Finch.

Keep you within the bounds of duty as befits one of your profession at the Bar at Westminster, and you shall have no interruption.

My Lords, I shall be very wary and tender, I shall now open the division and parts of my Ar∣gument.

My Negative part is this, That the King can∣not out of Parliament charge the Subject, not on∣ly for guard of the Sea against Pyrats, but also not for the ordinary defence of the Kingdom, though the King Judge the Kingdom inavoidably endan∣gered to be lost. And in this I must take in the de∣fence; as well the defence at Land as Sea.

My positive part regularly is, The King is to be at the charge for guarding the Sea against Pyrats, and for defence of Land and Sea against Enemies so far as he is able, and further, if he were more able; and the King hath provision and considera∣tion for both, and especially for Sea Service.

In the prosecution of these two general parts, I shall not only propose my own consideration, but join them with Mr. St. John's, as I can fur∣ther enforce them or justifie them against the Soli∣citor's denial or evasion.

And the course will necessarily bring in many of his Arguments, which I could be glad to spare if the Cause would bear it, because your Lordships should not think that I do nothing but repeat; in this way, I shall humbly endeavour to clear each

part, by giving a Reply before I descend to other Particulars; and where I conceive a new Obje∣ction, which will not fall within any former An∣swers, I will raise it, and endeavour to lay it: Into these General Questions will fall many o∣thers of great consequence.

For such as not being the main, I will not draw upon particular Debate: Where there is any thing concerning State or Revenue, I hope to admit such, and save my Clients Cause.

Having thus unfolded my form of Argument, I descend to my Negative, That the King in none of these cases, without Parliament, can charge the Subject.

First, I'll prove it from Reason, which is the Master of all Authority, as said Mr. Sollicitor; and from Reason drawn from the fundamental Policy of the frame of this English Government, in the necessary attendance of the publick ad∣vice in Parliament upon the Royal Power.

And secondly, from the absolute property the Subject hath in his Lands and Goods. From these two things I shall draw my Reasons.

For the Political advice in Parliament, I shall hereby decline all School Disputes. The Spi∣der may make Poison out of which the Bee sucks Honey: I shall omit the consideration of some points; I shall make my rise from the Judg∣ment of King James, 1619. in his Speech in Par∣liament; wherein his Majesty agrees, That the King in Concreto can do no more then the Funda∣mental Laws of the Kingdom alloweth; for more I assure my self his Majesty desireth not.

Before I enter into the Argument further, Whether the Law hath intrusted the King out of Parliament in either of the Cases put, I here profess for my Client and my self, that while we speak of Political advice, and how far a Gover∣nour subject to error and will, may use a Regal Power; we do always, with thankfulness to him, acknowledge our present happiness, to be blest with so just a Prince, and we setch it from our hearts. And were his Majesty so immortal as he deserves, and that his Successors may be Heirs to his Vertues, as well as his Crown, we should wish that the Regal Power might be free from Political advice, and unlimited.

L. Finch.

This belongs not to the Barr to talk of future Go∣vernment: It is not agreeable to Duty to have you bandy what is the hopes of succeeding Princes, when the King hath Children of his own, who are like to suc∣ceed him in his Crown and Vertues.

My Lords, For that whereof I speak, I speak as looking farr off many Ages, five hundred years hence.

My Lords, Because I might run on to further error, if I should not take your advice, I shall slip over much, and the sum of all is:

1. An Argument from the Policy of England in the necessary attendance in the particular ad∣vice in Parliament.

2. It will be from the absolute property that the Subject hath in his Goods, taking that for granted against the Book of Cowell, the Procla∣mation against it in the Year of King James, that Cowell hath written under the word Parliament, of the Kings Power out of Parliament, saith, That the power in Parliament is but a pious Policy. But this was complained of in Parliament, and by Proclamation the Book was denied. Your Lord∣ships know another Book that was sentenced up∣on the same occasion.

The use that I make of it is, If the form of English Government stand in the Regal Power, and the Subject hath property in his Goods, then the adequate reason from both these, That there∣fore the King cannot without Parliament charge the Subject in his Estate, though in pretence of Common good; Then a Prince 500 years hence, if subject to error or will, may, if he will, up∣on any occasion, or no occasion, at what rate he will, charge the Subject to the height.

As to the advice Political, If the King can do this alone, what is become of the policy for which the Political advice was made attendant to the Regal Power; Ne Respublica, &c. Secondly, If the Subject hath a property in his Goods, how is it in the power of any one alone to charge that with any Impositions? This Reason I must not leave; for on this the Case stands or falls. Though there be many Books and Cases, yet all are from Reason, but especially when these stand together.

The Reason seems so strange, that it ever holds in ordinary power: It held pro bono publico & pro defensione, he cannot make a charge in ordinary things, and the Sollicitor did not deny it. The force of this Objection Mr. Sollicitor did fore∣see. His answer stands thus:

Admit it be agreed, That by the policy of the Kingdom the King cannot charge the Subject; yet the King may without advice in Parliament in cases extraordinary, when in his Judgment the safety of the Kingdom is in instant danger, and that the business will not admit the calling of a Parliament.

He fortified this part of his distinction with strong reason; for in such cases a property must yield: For Salus populi est suprema Lex, & necessitas est lex temporis, & quod cogit defendit, all are true: And to this some home Cases were put; as for building of Bulwarks on my Land, and burning of Corn in 88. And then foreseeing the encoun∣ter of a Reply, he saith, The Subject must not say (that although the power be in the King) he will enlarge his power; For the King can do no wrong.

This prima facie hath a fair show, and may go far; yet I hope to give it a full Reply. By this distinction the whole frame of Political advice is, under favour, destroyed, I shall shew the contra∣ry by reason and experience.

For the distinction between danger ordinary and extraordinary, when the King doth think a danger, and a Parliament cannot be called, that distinction, I say, must destroy the policy in the whole: For, as I conceive, the end of that poli∣cy was but this; for else what could it be? As it will ever be in the will and desire of a good and wise Prince to do all good to the Subject, to whom this advice by Parliament can do no hurt; so in what Case soever should happen many Ages after, for that Posterity will look upon it: It should never be in the power of any Governour to become subject to will and error (if he would so do) to hurt the Kingdom.

That policy was not so much made for a good King, but looking many Ages after.

If you allow such a Prince power in extraordi∣nary Case, and make him a Judge of the occasion, then in substance though provision be made, yet after his Declaration we must make further provi∣sion.

Yet may some say, Here is a posse and esse, because he may, so he will. True, it is unmannerly to say so of any ordinary man; but, under favour, it is allowable to say, He may if he will. Then if we leave him that liberty in such Cases, he hath no re∣straint but his will.

But it is said, That the Law will not presume any such thing.

The Law doth not presume a will, but the Law looks on things that may be, as well as what will be.

True, the Books say, The King can do no wrong; which proveth it is possible for a Governour in his inclination to incline to wrong, and therefore the Law hath taken a care that he should do none; for he cannot make a disseisin, nor discontinue: There may be an inclination to an entry, but the Law, be∣cause he should do no wrong, hath made this Act void; which is not a disability in the King, but a Prerogative to make him come nearer to the Divinity in the Attributes.

I shall offer the Judgment of the several Ages in England, they ever thought it a dangerous thing where they thought any restraint fitting to allow any Exception whatsoever, though there were cause for it, lest the party that was meant to be restrained, should be judged, and then go out when he would.

Thomas a Becket he would not swear to the Laws of King H. 2. unless he might put in this Excep∣tion, Salvo honore Dei. The King never meant to violate any of these. But if that had been allow∣ed, the Clergy had been Judges of that, therefore they would not be satisfied; at this day we have an experience of the opinion of Kings themselves in this Case. I shall proceed to the practice of our Kings; in all Acts of Parliament, where they had ever a desire to declare the King limited or re∣strained. If they did admit of an Exception, they would have it in words so punctual, that they would not admit of any matter of evasion, for fear here∣by his proceeding to be at large. In the grand Char∣ter of K. John, when there was a Clause, Nullum Scutagium apponatur, true, there was a reason to except how all (not as E. 1. would have done) sa∣ving the Aids due and accustomed, but the pur faire fitz Chevalier; and so was Magna Charta, though not on the Roll; so careful they were to leave no words that give any such light.

I come to the Statutes of 25 E. 1. against Aids, saving the ancient Aids due and accustomed, no doubt but in these words there was no more sa∣ved then the Law must allow the King, and the Parliament did so mean; yet when that same Act came out, the Subject was not satisfied, and there∣fore the Statute de Tallagio was made to take a∣way the Exception in that Act.

Stat. de 28 E. 1. after the confirmation of two Charters, and divers additions, there cometh at last Salvo jure Coronae, your Lordships will find in Histories how all this was satisfied. And 29 E. 1. a Parliament held at Lincoln, the King made a confirmation without a Salvo, and yet none will deny the right of the Crown; the Lords did in∣tend to preserve that. Thus your Lordships see the Opinion of the Kingdom from time to time, how careful they ever were in all their Acts, to leave any way, whereby that which they did in∣tend for their good might be avoided: Now whe∣ther in this case there might not be an avoidance, I humbly leave it.

But before I go further, it might be demand∣ed, How came in those Savings into those Acts, if the Parliament did not like them, and if they were put in here was a trust?

I shall give a double Answer in the Case: Though a Salvo, yet it will differ from our Case; the King was not Judge there, but your Lordships to be Judges between the King and his People: But in this Case the King is to be Judge of the ne∣cessity.

But to give you the true Answer, the excepti∣on never came in originally from both Houses, not from the Commons, but from the Lords them∣selves.

This may seem strange. It was the difference of their time and ours, in making Acts of Parli∣ament, that was not a time of granting all, or denying all, but to answer some, as to some part sometimes more alteration, and sometimes an ex∣ception; and this being read, the Act drawn up upon the whole by the Kings Councel, and upon the whole course we shall find this mischief was found out 5 H. 4. And from that time all Peti∣tions were wholly granted. So your Lordships see how these Savings came in; not by the Sub∣jects, but by the pennage of the Act by the Kings Councel.

Last Example is in late times, in the late Par∣liament, in the Petition of Right now printed, which was long in debate in Parliament against Loans and Billetting of Souldiers; after the Pe∣tition had passed the lower House, that those things were against the Law, there was a Propo∣sition in the upper House concerning the addition of a Clause of Saving.

Upon the Journals it appears, that there were several Conferences between both Houses, where the Reasons are mentioned and do appear.

And on the several Conferences the Commons did not yield, but the Petition passed absolutely; and the reason was, Because to put in that Saving was to undo the Petition.

To conclude this, to shew the experience of such an Exception, sine assensu, what it hath wrought in former times, as that of Normandy, though Forreign, yet to shew what such a thing did work there; It had the same priviledges we claim, and much of their Law came in here. Lewes the 11th taxed them high: They made complaint; he on the complaint, acknowledgeth it, and would tax them no more, but on great oc∣casions, cap. 7.

Having, as I hope, taken off the Bulk of that distinction, I shall further shew how it doth not stand with the practice of our Common Law.

It is a fundamental Rule in our Law, Rather a Mischief then an Inconvenience: For when no∣thing can be so absolute in Government, but that there may be one case or other, wherein there is no provision made, all the care that men take is to choose the least. Now his Rule is rather a Mischief then an Inconvenience. Now Mischief is that which perhaps may fall out, perhaps ne∣ver; or if it doth fall out, yet seldom: For if it were a thing that might commonly fall out, it were an Inconvenience. On this fundamental Rule, the Law concerning Lands and Liberties was grounded. True, there might be a Mischief for want of this power in a case extraordinary, but the Mischief perhaps never falleth, or seldom; but to allow the other, would be a Mischief dai∣ly.

I desire your Lordships to cast your eye upon a learned Writer Commineus, fo. 107, 131, 180, 181. where in the whole, putting them altoge∣ther, speaking of the danger that might come to a State for want of power to raise Supplies for resistance, giveth a commendation to the Govern∣ment of England. True, he doth not go so far: saith he, It is hard in a Defensive War, that any preparation, which must be great and long about, can be so acted, but that Princes may take a timely notice to call together and advise by Par∣liament.

In the Low Countries, where there are Wars, though they have an Excise for ordinary, yet they do it not for extraordinary without consent in Parliament.

My Lords, I go on; Admit an Enemy ready to Land, no possibility for a Parliament, so how the case will now stand, I shall leave to your con∣sideration, Whether there be an absolute neces∣sity infra & extra to command; and then to shew there is a command, and by what Law: And by that Law that is stronger then the positive Law of the Kingdom, and doth work more in the point of fear. I put this by way of admittance.

In that case there goeth out a Writ, a Manda∣mus Rogantes; but it is in Articulo necessitatis, & quatenus a mandamus rogantes, not sub poena foris∣facturae, of all you can, but for your own salvati∣on, and safety of the Kingdom. These Writs have gone forth in such times when there hath been a near danger, and that hath served the turn: For that instinct of Nature that did make some part of the Kingdom desire Government for protecti∣on, the same instinct of Nature doth force to contribute for Defence. Nay, that is a stronger Law then ours; for that Law which ariseth from ones own Breast, as it doth command, so it doth compell. There needs no Law without, when we have a Judge within. Now in necessity there is a Law that doth compel; nay, there is a stron∣ger penalty then our Law can imagine: For our Law can make but a penalty of all that you have; But how? To the King. But when there is a danger from an Enemy, there is not only a dan∣ger of losing all that he hath, but losing Lives and Lands, and all into the hand of an Enemy.

Put the case an Enemy were landed, to shew what the powers are by our Law; for in that case, for defence, when there is particular appearance of instant and apparent danger, in that case par∣ticular Property will yield much to Necessity. These Cases our Books warrant, as building of Bulwarks on another mans Land, and burning Corn. In 88 there was an actual Danger, and then just to take Corn or Horse, or any thing to raise Supplies. But where do any of our Books say, That upon fear of danger, though in the King's Case, any can without leave make a Bulwark in my Land, I do not read, as your Lordships do ob∣serve in this case of apparent danger of the pow∣er of the King; observe withal the power of the Subject, and out of what Principle this doth grow, Whether out of a form of Law, or out of ne∣cessity? In these cases of instant Danger and a∣ctual Invasion, it is not only in the power of a King, but a Subject may do as much in divers cases▪ For if there be an actual War, the Subject, with∣out any direction may do any Act upon any Land, and invade any Property. It is the Law of neces∣sity that doth it. Nay, in that case the Subject may prejudice the King himself in point of Pro∣perty. If an Enemy be landed, and a Subject take away the Horses of the King, he may justifie it in an Action, as in case of a Castle or City. If they can justifie that there was a necessity, they may pull down the Walls, and blow up the City.

In this case there is no manner of Mischief, If Subjects Goods be taken by the King, or any man, and in that instant necessity imployed to the Pub∣lick use.

Now levis timor will not serve, for then a man cannot enter for fear of force, but such a fear as must arise from an actual and apparent Danger; then there can be no loss to the Subject in that case.

Secondly, on the other side, If Goods taken, what was taken for publick good, was taken by way of Loan, and I shall shew satisfaction made.

Mr. Holborne's second days Argu∣ment, Decemb. 4. 1637. in the Case of Hampden.

May it please your Lordships,

TO remember the Question whereupon I lest off my Argument the other day, Whether a King of England can charge the Subjects for find∣ing of Ships at their own costs only out of the King's Judgment and instant danger: 1. Whether for defence of Merchants against Pyrates? 2. Or for ordinary defence of the Sea? 3. Or for de∣fence extraordinary against an Enemy, only out of the King's apprehension of an instant danger, which cannot in his Judgment expect a Supply elsewhere?

Not to repeat, yet in a word or two I shall open my proceeding in this Question, and the rather for that I find some misapprehension, as if I had grant∣ed more then I meant, which is fit to clear.

The sum of all was but thus; That the King could not charge the Subject in any of these cases. The Reason I used was but shortly thus, That the Subjects of England, having an absolute property in their Goods and Estates, and the policy of the Parliamentary advice, being to prevent charge on∣ly, then on no occasion one might erre by weak∣ness, by any evasion, or by will; That therefore a King could not charge in any of these cases with∣out Parliament, for that so he might charge, if he would, as on occasion, so on no occasion. As to 7 l. so to 17 l.

That if this held in ordinary charges, you may not expect extraordinary occasions, though instant in the King's opinion; for so a King intended by his policy to do nothing without Parliamentary assistance he may; if he would so declare to charge at pleasure on no necessary occasion, or beyond all property.

This distinction I endeavoured to take off, shew∣ing it did destroy the end of the policy.

That there was no necessity of such a distincti∣on here, I shew'd, there was one thing which I for∣got, for destroying of the distinction from necessi∣ty, and leaving the King Judge of the necessity; that in Judgment so to do, it is all one to leave it to him arbitrarily, if he will, which is that only which was intended to be prevented, if he will. Part of the charge, if not the principal, in the lower House of Parliament against the Divine for his Sermon, I have seen; the charge for holding the King had a power in case of necessity, and lea∣ving the King Judge, and so at liberty and plea∣sure if he will. This I do but touch here; for I must make use of it in the main, and shall, under favour, make the case somewhat like.

For the other two matters, that when danger is apparent, there was no need of positive Law, I urged it thus, (Not admitting any thing wherein I desire not to be mistaken;) Admit no Writ of positive command, yet the Subject will be then under a stronger Law, which as it doth command, so it doth compell, that is, the Law of Necessity, which is the strongest of all Laws, with which the Judgment carrieth an Execution; and that this Law commandeth under as great a penalty; for though not under pain of forfeiture to the King, which, as to the clause of forfeiture, is but in Ter∣rorem.

Yet under the true pain of forfeiture of all to the Enemy, from whom we may expect no mercy, Lastly, that of an actual Invasion and Necessity withal, that not by any positive Law of the King∣dom, but of the general Law of Necessity, which is above all Laws, for the publick good, private property doth yield on all parts.

Of these two last I have but touched here, to shew what I mean, I shall speak further on them both towards my Conclusion, in my Answers to Mr. Sollicitors Objections.

I shall now proceed to make good out of the Books of Law, that our Law doth not leave it in the power of the Prince (in respect of such a Prince as possibly may be) to lay any charge upon the Subject, but only in such cases where the Law hath made such provision, that if he would, he cannot mischarge.

In this place, because it is taken for a Maxim, That the King can do no wrong; and therefore the Law doth repose this trust of charging in him, without any danger at all; I shall shew that the Law doth take notice how, and in what case the King can, as much as in him lieth, do amiss? And where the Law is sparing to leave the King any power to lay a charge on the Subject, even in small things, when the quantum rests in his Judgment. It is true, the Law doth allow the King to com∣mand payment of Moneys in some cases; yet where the quantum or occasion are subject to a tri∣al, the ground of all this is, That the Law sees that the King may incline to mistake, though as a King, he can do no wrong.

This may seem a Nicity, yet, under favour, is clear.

This resteth in the distinction of a double ca∣pacity of a King. As a natural man; and in this respect, to say he cannot erre, is strange. Human Nature is not capable of that prerogative at best, and they are subject to natural infirmities of the Body, and can dye; even so of the Understand∣ing and Will.

So you see the Law must take notice of possi∣ble mistakes in Government, and this possibility in another is no injury to a good Prince, but sets off his Merits: And this is not only true for smaller things, but even in the greatest. How many Acts of Parliament have we in print (of which your Lordships are Judges) declaring the Kings mi∣stakes in the Acts themselves, by way of com∣plaint, and providing remedy for the future, yea, in their own times.

To instance in one long since, cast your eye upon the beginning of the Acts of Parliament of F. 3. time, where we find a Statute for the Go∣vernment of the Realm.

Distinct. 2. As the Law saith, He may incline to mistake in the natural, so it hath taken care that in his politick capacity he shall not. And therefore lest the possible Errors of the natural Body should re••lect on the Body politick, the Law hath provided ancient means to prevent it, which was a Writ of ad quod dampnum N. Br. in the Writ. That if any damage to the King's Subjects, the Patent is in Law naught.

As if the King grant a Fair, and an ad quod dampnum is brought to enquire what Fairs were kept by it, the Books are full. It is true, that in some cases the Books do allow the King to lay a charge upon the Subject, yet not in every case for publick good, but only in some few, which indeed have been ancient, and indeed of the very essence of necessary traffick and intercourse between one part and another of the Kingdom; as murage to keep the Commodities sold the safer; Toll for a Fair or Market towards the maintaining of it; Pontage and pavage for the bettering of passages. And in all these cases the King may grant a sum of Money to be paid; yet as it is in this common good, some body must have the power to grant, and that same can be none but the King. So if the King should grant on no occasion, or howsoever (which is enough to me) a sum too great, greater then the benefit the Subject shall receive, it is void in Law.

If the Subject have not a quid pro quo, then no charge Rep. 5. and in this case there is a Judge of the justness of the proportion besides the King, and that is when a Patent cometh to be questioned, if a Toll be laid too high, then the same Patent is naught. Thus then you see how far it is that the Law doth agree that the King shall lay charges upon the Subject, only out of common and ordi∣nary necessity, there must be some body to have power. But then there is a further remedy of a mistake?

Here, before I leave this, I make a double use therof: First, to shew that if the Law do not per∣mit the King any absolute power in this trifle, shall the King do it in so great a matter, where you shall have no Judge but himself of the occasion and proportion.

I next observe where the Law permits the King to charge in any case arbitrarily; it is but where this power doth arise by original contract and pre∣cedent consideration and agreement for Land. And then not quatenus as a Subject, but quatenus as a Tenant only, as ratione tenurae in respect of the par∣ticular Seigniory and dependance, not in respect of the general Seigniory of the Kingdom.

My Lords, it is true, at the Common Law, the King had a power of liberty, till he was restrain∣ed by Statute; which was as aids pur faire fitz Chevalier pur file marrier pur ransome, and taxing of ancient Burrows; and these Aids were in respect of the particular Seigniory quatenus Tenants. Next thing that I observe, that the policy of the King∣dom so little delighteth in these uncertainties, though it ariseth out of contract and considerati∣on, as in case of these Aids, The Law would not allow that inconvenience of leaving them to an ar∣bitrary charge, but in some case settled a propor∣tion.

It is true in case of Ransome, because no man can tell the certainty of that which is left at large.

This I further observe by the Common Law, where the charge is in respect of the tenancy, yet if the charge come often, as the King please, there the Law did not leave it to the King's Judgment. As in Escuage, which is a profit arising to the King in respect of the Seigniory. Though the Law al∣lowed the said Aids pur faire fitz Chevalier pur file marrier, &c. because they could hapen but once; but Escuage, that might happen often, the Law would not allow that to be uncertain: It must be assessed in Parliament, as in the Charter of K. John, which was always held no more then Common Law.

My Lords, upon the whole, I desire to consider how unwilling the Law is to leave the King a liber∣ty to charge even in the Kings case at the Common Law, and how restrained by Act of Parliament; where the Common Law before did give liberty.

Next, I observe that the Law in none of the said cases, nor I believe in any other, doth admit a pow∣er to lay an immediate charge on the Subject, but only in laying a charge to be paid in respect of the benefit which he that receiveth it is fit to pay, but none compelled otherwise to receive it or pay it;

for if he will not have the benefit, he may refuse to pay it even in Cases between King and Subject.

In the Case of Toll, Pontage and Paviage, it is not laid so on the Subject, that he shall pay it whether he will or no, but as there is a benefit by Pontage, &c. which cannot be maintained without charge, and therefore just that they that have the benefit should bear it.

Lastly, I shall offer that even in these Cases, where the King doth lay a charge qua••enus Rex. It is not so left unto him either for the occasion or proportion, as that if he will lay never so much he may; if it be unreasonable the Law doth make it void; as in Case of Toll, if unreasonable.

My Inference is this, If the Law be thus careful in such small things as penny matters, whether or no the Law will make no provision in the main, but leave the Subject unto the absolute liberty of the King to charge, when he will say it is in dan∣ger, and where there is no Judge at all?

I will conclude with Book Cases in point, that the Law doth not leave a power in the King to charge, though it be in the King's Judgment pro bono publico, as in Case of granting an Office. The King cannot regularly, at this day, create an Office with a Fee, but in Law it is void, though the Office had in it self a show; nay, it may be pro bono publico.

P. 11 H. 4. 15, 16. and in 14 a Grant of an Office of Measurage with a Fee void. And that very thing 13 H. 4. was complained of in the Par∣liament, that it was against the Law, because in charge of the people to which the King answers, Let the Laws and Statutes be observed. In the Roll amongst the Adjudicats the reason is expres∣sed, Quia Sonat in prejudicium populi.

16 R. 2. The King grants to one a rate upon every Barge that passed the Bridge, in considera∣tion that the Patentee had taken upon him the Scowring of the River; in that Case the Patent was repealed.

So in case of Lights to be kept for the benefit of Seafaring men: this was in charge of the peo∣ple. This Pat' was complained of, and your Lordships know the order upon it. I omit many Cases, and conclude with that of Fortescue, De Regibus Angliae, cap. 25. speaking and commend∣ing the policy of the Government of England, pre∣ferrs it before that of France, and shews the good fruit and effect of it, and laies down this for one, That the King cannot charge without consent in Parliament, and he was a man allowed for extra∣ordinary Judgment who sheweth instructions for a Prince for future Government, being trusted more with the Government of him than any other. I conclude these Cases with this Observation.

This denying of Power of laying charges on the Subject is not only in the Case where the King would raise a benefit to himself, which a man may call Tallagia vel auxilia, but in Cases of charges which lie on the Subject, though not for the King's own benefit, though also it be pro bono pub∣lico, as in the Cases put before.

I shall now come from the Books by which I shewed what is the Common-Law, that by these grounds the King cannot charge the Subject, I shall now offer the consideration of some things which are Acts of Parliament, or have the force of Acts of Parliament.

I shall begin with that of Will. 1. for a Conque∣rour I shall not call him; for that name came in about E. 1. his time, for there being an Edward, because they could not tell how to give him a di∣stinction from the Confessor they called him E. 1. after the Conquest by the direction of Sir Roger Owen the great Antiquary. That which I shall urge, is that which he granted A. 4. That all Free-men should hold their Lands Sine omni injusta exacc'one seu Tal••' nothing to be demanded but that which was by Tenures, as in Eadmerus by Selden.

Now whether or no this be an Act of Parlia∣ment, I shall not dispute, yet in those times where a thing was granted between the King and the Subject, though it had not all the Formalities that now it hath, yet it was binding: however this is called the Conquerors Law, and I take it for a Law.

Then it resteth to examine the words, whether the words will serve our purpose to clear the Sub∣ject in point of a Sess. It is said that they should be free ab omni injusta exacc'one seu Tallagio, Ita quod, &c. by this all charges (but such as were by tenure) are called exactions; the Rule is Ʋbi lex non di∣stinguit nec nos debemus; this is a Grant, if not of right, yet of Grace, and must be taken largely, Favores amplificandi.

The Subject could not have demanded of him, especially that of 40 s. if it had not been the Law of the Land before.

I shall humbly leave it, whether this be not the Law by which Edward the Confessor laid down the Danegelt: for the Danegelt was not only against Pyrats at Sea as Robbers, they were indeed Pyrats men strong at Sea, but all other Enemies. These called the King of Man Archipirata, that is, a powerful King at Sea, and that these Pyrats were only strong enemies, and it was to raise men not obviare erupc'onem but irrupc'onem, not so much to keep them within their own Kingdom, as to keep them from falling on the Land. And by the Hi∣story of those times, when this was raised by rea∣son of the Danes Landing in Northumberland and Essex, and so upon that Eruption of the Danes, Danegelt raised is called by Cambden in his Britt. Irrupc'one Hostium; and Lambert in his Saxon Laws; But let it be irrupc'one or erupc'one, or be it Danegelt to keep them from coming out or Land∣ing here, both of them was for the publick service.

When this had been so much complained of in Edward the Confessors time, it is clear he damp∣ned it, and Ingulphus is an Author without excep∣tion in this, and Tilburiensis not to be compared to him.

Ingulphus was a great Courtier and Favourite of William the Conqueror; and to think that he had not a better knowledge of what the Confessor did than Tilburiensis, who wrote many score years af∣ter, is much to be wondred at. And it is strange that Ingulphus, who was so much bound to the Confessor, should carry a Law down to Cr••yland to the prejudice of so great a Lord, if he had not been sure of it.

Tilburiensis was urged as if he speaks that it had been paid to the Conquest. He wrote in H. 2's time; and my Lords observe what he was: an Officer in the Exchequer, and for the rules of the Chequer he teacheth them well: But for History against Ingulphus I leave him.

If this were laid down by E. the Confessor, then I conceive this Law of Will. 1. was but the Law of E. the Confessor, and there was no ground for him to require a Law to lay any charge but what was before; Tilburiensis makes this good, for he himself saith that the Conqueror laid it down, and speaks of taking it up again; if it were laid down, I would know by what Law or particular direction it was laid down, if not by this; for nothing in all the Laws of the Confessor can cause to lay it down, but this, and thus far he standeth with Ingulphus.

I shall further shew how these Aids and Tal∣lages were meant here. It is a clear ground that exceptio sirmat regulam in non exceptis. An excepti∣on often doth enlarge the meaning of the word beyond the ordinary fence: As if I grant to J. S. all my Trees here, my Apple-trees pass not; but if I grant all my Trees, except my Pear-trees, there my Apple-trees do pass, because this shew∣eth that I meant all my Fruit-trees in the word Trees: I apply it thus, here is a discharge of all Taxe, except by Tenures. Now I shall shew that Tenures were for defence and service of the Kingdom in the proper place, when I shall shew what provision and means the Law hath allowed the King for defence.

My last Observation is this, This was not a Charter betwixt the King and his Tenants: but betwixt the King and Kingdom, and so something must be laid down which was due to the King.

There are two kinds of Aids:

• 1. From the Tenants.
• 2. From the Commons: one was by command from the King without any more, the other by Act of Parliament.

But here Mr. Solicitor hath taken that ground∣ed Argument, of which I have taken to find out a contrary sense, that is, Sumus fratres conjurati ad Reg∣num defendendum; wherefore these Aids not pos∣sibly meant here; But this is contradictory.

By inference to overthrow a thing express, is against the Law. If the words be express that there shall be no Tallage, then by an Inference to say, that the defence of the Kingdom is not meant, is hard. True, all in their Allegiance are bound to defend the Kingdom: all are to fight for it. Acts of Parliament tell us where we may do it, when and how, but that we must give Aid, is ano∣ther thing.

It is one thing to supply with the body, another thing to give and pay money. And if there be any Invasion, proposse suo every Free-man is bound to defence: But whether for every defence of the Kingdom we must give an Aid, is another thing; Acts of Parliament will be the best expositors of things so long since: For as Custom and use will make a Common-Law: So likewise will it de∣clare an antient Act of Parliament.

Now I shall come to that of King John, Quod nullum Seutagium vel auxilium ponatur. The credit of this I shall first clear. It is not only in Matth. Paris verbatim, who writ in H. 3's time, the on∣ly Historian than living. But,

The Original of it was shewed under Seal the last Parliament by Mr. Selden, and these very words were read, Nullum scutagium, &c. and my Lords, though this be no where on the Roll to be found, yet this no waies lessens the authority of it. It is no part of the essence of a Statute to be found on Record; if all should be burned by mischance, what would become of the Law? Though the Rolls be all burnt, yet the Judges know what are Acts and what not, though they have nothing to make it good but their own Ma∣nuscrips, or Printed Books, or Tradition. A man cannot plead against an Act of Parliament null' tale Record, that is the Judgment in the Case in the eighth Report Princes Case. The Dutchy of Cornwall stands supported only by an Act of Parlia∣men, not upon Record. That which I shall shew to make this an Act of Parliament appeareth out of the words. There are two things Scutagium & auxilium; Scutagium ariseth from the Tenant, and Auxilium from the Subject.

To shew that Auxilium is laid down; by this it appears that he could not Assess Scutage with∣out Parliament.

I hope to shew that Scutage was for the defence of the Kingdom, and is such a provision, that no King hath a better, and such a one as will raise in England above 40000 men.

Yea, but saith Mr. Solicitor not assessed, that is, not meant to bind the King but the Subject. The King can do no wrong; Doth any man think that the Commons did come to the King to bind themselves and leave the King at liberty?

I come now to Argue from the exceptions, Exceptio firmat regulam in non exceptis. This excep∣tion sheweth the latitude of the words to be to discharge of all Aids. That there had not been care had of the particular Aid, Quatenus a Tenant, they were afraid even those were swallowed up; true, I do not conceive that was a thing of neces∣sity. But as the King may have it in if he would: So the Subjects had no Reason to deny it him, for it was but just, and was never meant to be taken from him; nay, the Lords themselves had reason to take care themselves that this was not discharged: For in all these Cases the King hath no more than a Common person, for he hath p••r file marrier, so he hath his Aid pur faire Ransome. And that appeareth upon 21 E. 1. Relcase from a Lord unto his Tenant, so that there was reason that the King and Lords should take care of this, yet they were afraid that those words would be so strong against publick Aid, as that it would take away private Aid. Last Reason, That this Auxilium must be said publick: For look in all the King's desires (when they did desire Aids) still their Introduction is the defence of the Kingdom, which is a cause of the Parliament, which appear∣eth by Speeches there on Record. Nothing can be intended of these private Aids for himself. I have done with the Charter of King John.

I next come unto Magna Charta, 9 H. 3. For Magna Charta, I humbly conceive that this Charter at first when it was granted, was no more than ver∣batim the Charter of King John, and originally had in it, very probably, this very clause of Nul∣lum Scutagium. My reason for it, First upon all Hi∣stories, That after King John had granted a Char∣ter, the Pope he would have discharged him of it as far as in him lay, but that still the Lords and Commons made claim. He died, Henry the third comethin: A difference between the King and the French. Then was promised this Charter should be confirmed. Histories say at his second Coronation, he gave his Oath to confirm the Char∣ter of King John. Then in 9. the Lords demand∣ed it; he was unwilling, because it was gotten by duresse. But the King said, we are sworn to it and must confirm it. And in Mat. Paris it is said ex∣presly, that the Lords did call for the Charter of King John, and there it was read and confirmed verbatim. And M. Paris lived in the King's Court, and he was adeo familiaris, that it is said he eat with him at his Table, and at that time he writ this Book, and sure he durst not have written it, if it had not been true. But we find it not now on Record? How this might possibly slip, I shall tell you, 1. We have no original Enrollment of Mag. Charta; no Mag. Charta but that of King John. If it be true which Histories say, that H. 3. did revoke his Charters, it is possible that these Rolls might perish in that time.

Authority of the King at Oxford did inforce them to bring in their Records; doubtless they would not leave the Enrollments.

Next step to look for it is 28 E. 1. confirmed thereand is exemplified, the Original may be lost in so long a time. What became of all Parlia∣ment Rolls till 4 E. 3. All perished by fire or some other mischance. Things were afterwards put together, and upon the Roll, this was not the Ori∣ginal Enrollment of 8 H. 1 and written on the Roll, where Acts of later time are written, and with the same hand. If it were once in King John it must be left out somewhere.

Observe one thing more, that is, As this of Scutagium and Auxilium doth concern the Subject in their Lands. There is also a clause concern∣eth the Subjects in their persons. Nullus liber ho∣mo imprisonetur, that might be taken for ordinary imprisonment. But then there cometh provision for the King that he should not do it, which is non super eum Mittemus; such words as that a man knoweth not what to make of them. But in the Charter of King John it is Nec cum in Carcerem mit∣temus. In this great thing we see the mistake, and how the other happened I cannot tell.

I now come to E. 1. time, wherein I hope to make good those Acts of Parliament that we have vouched, and here lieth a main endeavour: 1. Was of 25 E. 1. which is not denied to be an Act nor cannot; the other is de Tallagio non concedendo, which is so full that it cannot be evaded, and therefore is denied to be an Act. 1. For the Act 25 E. 1. which is against Aids and Tallages not to be taken without consent of the Kingdom; I hum∣bly conceive that by these words Aids and Tal∣lages used in former Acts, that this was meant of charges for a publick defence of the Kingdom com∣plained of, and not denied; I shall bring home the Roll of 25 E. 1. That the King doth not promise to pay them by reason, to have words for their Money.

But that they must have a reasonable satisfacti∣on, I will shew that was the sence given upon the Record. 1. For the practice of the times, that there were Ship Writs went forth. These Writs went forth in more terrible terms than any I ever saw, Sub poena forisfactur. vitae & membrorum, 24 E. 1. was the Writ; I am sure such a Writ by the Common-Law would not have maintained, that if they did it not, the King should hang them. This Writ was the grievance upon the Subject, and this Act refers to that. True, there was other grie∣vances 4, and 5. but this was one; and these Aids which were then for the defence of the Kingdom, were included within the rest, appears. The King in reading the Articles, speaketh that what was done was done for defence. Though true, he had Wars in Poictou, and in other places beyond the Seas, yet as true that it was a War to be kept from hence by defence. That part was for the defence cannot be denied, and yet no distinction to be made between a Foreign War and defence, and both equally grievances to the Commons.

After this Act of 25 E. 1. there cometh out a Commission, and this was in pursuance of the pro∣mise that the King did make at his going into Flanders, and that was to enquire of those Grie∣vances in the Articles; and amongst the rest there was de Lanis & Coriis taken away pro defensione maris; and to that the King saith there, that for those things pays pur reason. There hath been an answer given unto this, and much stood upon that the King should say upon this Commission to en∣quire of Grievance pro custod' maris; if it were so he would il ferre taunt que il tienerent appaid pur rea∣son. That this should be no more than that the * 1.1 King should give a reason why he did it, I questi∣on; as if he should send forth Commissions and afterwards dispute it; or if he did do it, whether lawful or not: That is not the way of sending out Commissions.

Suppose that the King should say, he would give them a reason for it, this Commission did go forth to enquire of those Grievances. And if the King had not said he would give any satisfaction; yet it is enough that it is enquired of ut de grava∣mine: It is a wrong upon the Subject, Princes may lay Taxes, yet the Subject doth not call for satisfa∣ction: A Princely word that it should be done.

But when the King doth say pays per reason, to think that that is no more than that he would give some reason for it, is a strange inference.

In a Bargain they use to say, you shall hold your self content with reason, you cannot have your own demand, but he is satisfied one way or other, so here.

To begin with a Record 21 E. 1. Parl. Book de Peticion' of the Commons, and they did desire restauration of all their Moneys, 25 E. 1. there was 2 de Lanis & Victualibus, within that Com∣mission, so the Money and the things taken, and enquired upon by that Commission, 26 E. 1. were for defence, and here ordinatum est per con∣cilium quod Rex satisfaciet eis quam citius poterit, upon this Petition they desired satisfaction. The Commission twenty six ordered by the Parliament that the King should satisfie them as soon as he came, so that they should hold them∣selves content, Ita quod se contentos hab••a••t, so you see not satisfaction by reason to justifie them, but the King should satisfie them one way or other. It is that they should have something for it, and not that they should have reason why they should have nothing.

But I rest not here, There is one Parl. Roll re∣maining before 4 E. 3. and that was 8 E. 2. pro Priori & Fratribus Sancti Johannis Jerusalem. It is there set forth that E. 1. did command his Trea∣surer and Barons of the Exchequer to make satis∣faction for wages taken in Scrutinio. To the Cler∣gy and Layety v••luti pro Lanis & Coriis, &c. and that satisfaction should be part by Money and part by releasing of debts, so as thus the King had no meaning, 26 E. 1. to pay Money back presently, but would give them satisfaction one way or other by payment of debts, or releasing of debts, as it was explained by that of E. 2.

Another Record P. 27 E. 1. Roll 36. satisfacti∣on was there given for an eighth and fifth. These things which were taken before 25 E. 1. com∣plained of, and that confessed by Mr. Solicitor. So as I conceive, though it had been enough that there had been an enquiry of these things as upon a Complaint, though there had been no more an∣swer. If an answer make it better, it is no answer to say, that they should have satisfaction by words, but either in money or releasing debts; If none at all, Confession had been enough.

I shall now come to take of the Solicitors excep∣tion to 25 E. 1. where he endeavoureth to shew that this Money for Shipping could not be intend∣ed within the Body of the Act, and if it was, yet it was excepted in the saving of the Act.

Objection stands thus, No Aids were charged but such as were granted, and we do not shew that these were granted. And there is a word beyond that, and that is Prizes: How far that extends I leave.

But if in the body of the Act, yet excepted in the saving all antient Aids due and accustomed.

For the saving of such an Aid due and ac∣customed

surely was meant there.

In this answer lieth this question, Whether these were the antient Aids due or not by the Common Law? This will stand or fall on the body of the Argument.

I shall tell you what these Aids were and can∣not be these. There were other Aids mentioned in the Charter of King John, as pur faire fitz Chevaleir, &c.

That which takes off all, If these Aids were part of the grievance, though for defence, then they cannot be meant in the saving, for that destroys the purpose of the Act; and for that saving, it ne∣ver came by the Commons nor the Lords, but the form being so to grant in part, and as the King would grant it, so they must take it. Histories say that they did not like the same, and therefore desired an absolute Act.

It was said that Aids and defences were meant of Foreign ones. If the King and Council were so wary as to put in such a saving as before was not in the Act; it shews what care they had to have what they could have, if by the Law they might have them for Foreign defence, and not at home; they that put in the saving, would have put in a di∣stinction. I shall leave the consideration of this Act to your Lordships, how far it shall extend to Aids for the desence of the Kingdom in that Case. I shall go on and conclude with the Statute de Talla∣gio non concedendo, that Act of 25 E. 1. was indeed so well penned that it gave Mr. Solicitor a very probable colour to make those handsome An∣swers.

The Lords did desire a better Act, not with these words, No such Aids, for (such) is a relative word, and those are dangerous words. Next, if no more meant by the saving, than pur faire fitz Chevaleir, &c. and yet to have left these in general and not in particular, had left a way open to que∣stion what they had been. And in Walsingham the Lords were not satisfied with it, though it was signed and passed the Great Seal. It is true, that at this time a Pardon did pass to these Lords: The words are so strong that this was denied, and much said, and very colourable too.

It is true, That this Charter is no where on Re∣cord, that we find, but for that an answer is given before.

It is said, That is no Act but only penned as a Charter, that exception was once made by the Council on other occasions.

Acts of Parliament were then penned; so Mag. Charta, and Charta de Foresta are but in form of Charters.

Yea, but we cannot tell when it was. How ma∣ny Acts of Parliament are there which we know not when they were? Historians best tell that. It is hard to find it when the Records are lost: But this will appear to be in the time of E. 1. There is the Pardon to those Earls, 24 E. 1. Then we find a Parliament, we know that the Rolls of those times were miscarried and lost: sure it must be after the Stat. 25 E. 1.

But then there is an Exception from the diversi∣ty of the penning. Sometimes Nullum Tallagi∣um ponetur, sometimes ponetur.

We know upon the Entry of the Rolls, there have been divers mistakes in the entring of pone∣tur, if it be with a dash it may easily be mista∣ken, and so only vitium scriptoris and nothing else.

Then let us enquire what it was, if it be no Act.

It is said that it is no Act, but an extract out of 25 E. 1. and that he urged several waies upon several occasions.

By the penning of it, it doth appear that he that wrote it was a Schollar, and not mistaken. To make a thing absolute, that was but relative, for Nullum to make it Tale, and to make that without a saving that had a saving, is a strange kind of saving.

Yea this cannot be an Act, for at that time there was a Pardon to divers Lords.

If that be true which Histories say, when this Act was published, the Lords were not satisfied with it, and these were the main Lords to whom the Pardon was granted, that were not satisfied. And to make their Pardon the stronger, they did weave it into the very body of the Act.

And for Walsingham he is of great credit. They say further, that this was no Act, for this takes away these 3 Aids and Tallages. This is not so, Acts speak of it, and Practice speaks of it, and there∣fore no Law and Practice of Ship Writs ever since, and for desence of the Kingdom.

For the Aids that is a good Act, yet those were not intended, nor included within that Act, and therefore that practice is not contrary, because it is not in the words of the Act, nor in the mean∣ing of the Act.

For the Aids therein questioned, the Question was between the King and the Commons, and not between the King and Tenants. Then, that not being the question, there must be a conside∣ration according to the occasion and the doubt made: But to take this Nullum auxilium ponamus. These are not Aids put on the Tenant but fruits of a Seigniory: As the Dutchy riseth not in the King's Command but from the Law, and so not within these words, Nullum Auxilium ponamus. And so all the practice ever since, will well stand with this Act. And to say Shipping is not meant because of the practice since, is nothing. Let me establish once the Law, and no matter for the pra∣ctice. If the Law be once settled, we must reduce Precedents to Law, and not Law to Precedents.

And for the practice, yet still the Subject makes a continual claim against them.

My Lords, To prove that this is an Act, Wal∣singham entred it in his time, who did not write very long after it.

Though it hath been said that he was a Monk, and what he writ he took up in the Street and Market-place, yet I will not think so of Walsing∣ham, who was ever held an Historian of great cre∣dit. And no Historian whatsoever durst set down an Act of Parliament, if he had not a sure war∣rant for it, it had been little less than Forgery.

In the next place it hath been said, Histories are no Authorities in Law.

True, they shall not tell me what the Law is, yet they are good to tell us of res gesta, whether there hath been such things or no. He tells us not that this was for Shipping or not for Ship∣ping, but tells us that there was such a thing.

I have seen and searched after this Act, and I have found it in an antient Manuscript in Hen. the fourth's time, and it goes in the name of Statutum de Tallagio non concedendo, and find it mentioned no where, but still find it mentioned as a Statute.

I have an Abridgement of H. 8. and there it is put in as a Statute; I will not urge positively but probably, and that an Act in 13 H. 4. A com∣plaint for laying of Taxes on the Subject. The answer is, Let the Laws and Statutes be observed. This is that positive Act that doth more reach it than any other.

But the main Answer that I rely upon, if they deny the truth of an Historian, for Res ge∣sta, is this.

If from time to time it hath been conceived an Act, what more strong? What makes our Com∣mon Law, but general Opinion and allowance? And should we doubt of any thing whereof we find the Acts of Parliament themselves, I am a∣fraid we should shake many things done by the Common Law.

That which I rely upon is, the late Judgment of the late Parliament, to which your Lordships will give all reverence. This, my Lords, did not pass sub silentio, but was made a Question, and something proposed on the King's part, Whether an Act or not? In the conclusion, it came into the Petition of Right. The very first Statute mentioned in that Petition was this, De Tallagio non conceden∣do, made in E. 1. time. How far this question pas∣sed at the Committee, it is better known to your Lordships, and is the thing whereon it is built.

If this had not been an Act, it had been dange∣rous to have put it into the upper House. But it being there read, your Lordships knew what was done upon it.

This Petition being thus debated in both Hou∣ses, I shall leave it to your Lordships, how far you will make this Question; and his Majesty in his Answer did not deny the same: But both King and Councel agreed that it is a Law.

Notes

• * 1.1

  Ve le paroll del Record.