than power, I leave to your lordships; that little practice that way, if it doth come home, is not sufficient to make a law, who was under will. Next for Ed. 3, for him in his best times, you see how he went, he laid not the charge on the subject at the first; afterwards there is no age wherein there were so many complaints as in his time, from the first to the last; and not only in this of shipping, which, as often as it was, there was still complaint, but in impositions on merchants, whereupon lord Latimer was imprisoned so that in point of charge, the subject did inforce him upon it in time of necessity. So that in those times the practice will not be any argument against us. That of 10 Ed. 3, he confessed that he had laid too heavy charges on the subject, and did ask forgiveness; so here was no consent, but a several dissent by their several complaints. And if I take off these three kings reigns, I take off all the force of practice concerning shipping; for from that time afterwards you will find very little, for what cometh afterwards is but for matters of arrays. The next thing is, that every practice that must bring in a law, must be constant and continual, so long together as may bring it into a custom.-Now out of what your lordships have heard, if you conceive in the times of those three kings, that they had one way and the subject another, then there is no constant practice to lay it on the subjects: And for Arrays, I conceive them to be no part of the case. And for the next; if practice make a law, it must be general through the whole kingdom; for that is our case, we are in an inland county; and observe how few writs we have that went over the whole kingdom: Nay, have you any that proveth it indeed? That they went to some inland counties it is true, but that they went to ail throughout the kingdom, you shew not. Now if you will have a practice to bring in a law, you must not bring your practice by pieces; at one time in one part, and at another time in another part: for that in one part of the inland counties alone will not be justifiable, for that was to lay a charge on the one, for the maintenance, of the whole; and that is against reason, and the reason of this writ. So to charge the whole kingdom, you must shew they went over the whole kingdom, and were obeyed by the whole kingdom; for obedience in some parts, will not bind all, so once or twice will not do it; for the writs that have been produced, many of them went to the sea towns only. Next, my lords, admit that the practice had been constant from king John's time down to Hen, 3.'s, so to this day; under favour, as the case standeth, your lordships could not find such a practice as could now introduce a law. The custom, which must be of a manor, you must not shew the beginning of it, that within time of memory the thing was not so. True, if the time had been long, and I cannot shew when it hath not been, that is time out of mind. VOL. III. To examine this upon the rule; it hath been said, that from the time of Hen. 2, Danegelt was taken: True, it was taken, de facto, but not de jure. The subject was not at that time charged both with Danegelt and shipping too. Then our course of charging the subject to find shipping, must begin since that time. But peradventure it will be said, as sir Henry Spelman in his Glossary, that when Danegelt went down, this other came in. And peradventure it will be said, this is enough to shew this begun, though but in memory; then it is but to see upon what warrant of law this begun.-If Danegelt had not been legal, then this to come in instead of that which was not legal is not sufficient. Now for Danegelt it was not legal, and so fallit fundamentum: if it had been legal, yet not so pursued in the course as is legal, so that there is no ground for it on right or wrong. That Danegelt, when it went, it went over all the kingdom, and in a proportionable way to all; yet these writs for shipping were commonly to the sea-towns, and but sometimes to some inland towns. If Danegelt were on the land, and certain, this is on the person, and uncertain; this respects both lands and goods, the other not. There is no such assurance of equal charging in this, or in the other, if Danegelt had been legal; yet whether this coming in lieu of Danegelt, being of a far different nature, be legal, I leave it to your lordships judgments. Next to examine it upon another reason, upon the reason of the practice. If the practice went over the whole kingdom from time to time, there was the more equality; but if the practice went over the kingdom but by degrees, sometimes to one part, sometimes to another, though over all the kingdom at times, yet this is not sufficient to make a law. For that act which is unreasonable in itself, and not agreeable to justice, will never make a law: for a law will never arise out of an act illegal. Now, my lords, when a charge is laid upon parts of the kingdom, which the whole should hear, it is unreasonable. I will not deny, but in manors, where you are to have a custom, sometimes on one piece, and sometimes on another; this may be good, though it goes not over the whole manor; because in this act there is nothing against justice, for here one man doth not bear the charge for the whole; but it is otherwise in our case. My Lords, I shall go further; as for the inland towns, so for the sea-towns, we do not find a general practice of all sea-towns together, sometimes to one, sometimes to another; if any to all, yet not to all oftentimes. My Lords, admitting arrays would be mate. rial in this case, as I conceive they will not; yet under favour they will be no precedent for the defending of the sea, the case doth differ.-For though the king be lord both of sea and land, and hath in them both the sole dominion; yet in the sea he hath the whole property, and in a manner all the considerable profit and pri vilege; the subject hath but the passage of the 3 T sea, and the minima to take fish, not considerable in point of benefit: But for the land, that is our own, and the land of the kingdom is the house of the kingdom. As for the charge of the land to find shipping, there will be a great deal of difference between sea-towns and inland towns: As those that live in sea-towns are in more danger from the sea, so they have more profit and privileges; and that is the reason that in the parliament 13 Ed. 3, the sea-towns should do it in regard to their profit and privileges. Though no positive law doth charge, yet in case of imminent danger, if I should say my private property is become public, it is no mischief, for so it is in some cases: for in this time of imminent danger, the king and subjects are under a law of absolute necessity, and public safety. In all human reason, when the danger is in proxima potentia, we may prevent it; thus if another man's house be on fire, mine may be pulled down to step it: so that we may see by what grounds we do go in case of absolute necessity. If the king doth command any thing And for the command to find ships, the po- concerning the property of goods, in respect of sitive law is to make those to find ships which danger, the execution may not be by any posiare chargeable, as your sea-towns, and for in- tive law merely, which in such cases do cease in land towns to find arms; because both are not furore belli; for those are acted by formalities, fitted alike, there is no reason that they should and inter arma silent leges. And in these cases, be charged alike. Upon this reason is the case as the king may command my property, so may of Beverly put before, 2 Ric. 2, where the com- the subject command the property of another: plaint is, that they are charged for shipping, the books are so, 8 Ed. 4. For hindering the being a dry town; they say they were charged landing of an enemy, bulwarks may be built on indebitè. 10 Ed. 3, Shoreham, they plead they my land without consent. So the power is not never found arms but shipping, and a good dis- only in the king in these cases of necessity, but charge. And in Mat. Paris, upon wars within the subject: and the books say not that the France, the sea-towns complain and desire help; so that the burden lies on them, if on any. My lords, I have gone over in a general way, as well as I can, and endeavoured to answer the practice; to have gone over all in particular would have required longer time than your lordships can spare. The reasous now only rest to be examined; for if no full authority, nor sufficient practice, reason alone will not argue against a fundamental rule: for we are not now to examine on reason what is fit, and what not, but to see what is the truth. The first is, that salus populi suprema lex :' the question is not, what we are to do by necessity, but what is the positive law of the land? The question must now be as before; what power is in the king, and did our forefathers in that time of peace and government leave in the crown, not in case of necessity and public danger; when, with them, salus populi' was 'su'prema lex,' and upon that they did ground the rule of government? In this case, whether or no, in their consideration, they did conceive for the public good, to leave the power in the king or not, to lay a charge on the people; there the rule came in, 'salus reipublicæ suprema lex:' and that which they looked on most, was the benefit of the multitude. So that now, my lords, it is not to dispute, whether it be better or worse, but that it was. And to shew there was no such great necessity as can countervail the possibility of prejudice the other way if there do come such a danger, then the subject is at that time under a law of preservation of life; and all which makes the subject as willing to obey, as to submit to government in the creation. This law is of an higher force than any positive law can be. But admit that this cease in this case, and all positive laws of property yield to the law of necessity; yet I admit nothing, though I might admit Jauch, and not prejudice the case. power is only in the king, but I can do it, and the law of necessity is the warrant. Then, my lords, it res:eth considerable in this case, what shall be said to be a time of necessity. I speak still by way of admittance, for I grant nothing.-It must be in a danger now acting or in proxima potentia; as fire, though not burning, yet ready to burn: that is, there must be a war, furor belli. Note, That when the king makes proclamation of war, or the king is in the field; and that indeed was not Mr. St. John's meaning, it was taken further than he meant it. It must be in such a danger, when this power is of necessity to be used, as in case of fire; there must not only be fear of fire, for one house must be first actually on fire, before the house can be pulled down, but withal such a danger, that if this be not pulled down, the other will be lost: and as in case of an enemy, a subject, out of fear of an enemy, cannot build a bulwark on another man's land, but when he is a-coming. So that none of these cases will match ours. The property yieldeth not in fear of danger; but such a danger, as help must come in nunc aut nunquam. This time is not when the king will think there is occasion to exert this power, as in the case of 1588. Though the queen and state did command the burning of those goods and provisions, if an enemy landed; which was a lawful command, and justifiable to be done, so they did land; but could not command them to burn their corn before an enemy did come. Your lordships know the king may command in case of danger the destruction of all suburbs, rather than an enemy should come in them. But if there be a fear only of wars, if the king should command it, how far that is justifiable, I leave it to your lordships judgments. All this difference appears out of the case of the Gravesend barge, Duffeild's case, 12 Jac. If there be a storm, or a leak in a ship, that the danger be actual, it is justifiable for the mastering the king's power over coinage, there was a to throw out the goods; but if he sees a cloud arise, and out of fear of a storm he threw out the goods, I doubt on a joy which way this will go with the bargeman; but if a storin do come, or a leak spring in, in that case the bargeman may do it. So you see upon what law my property yieldeth. That position generally taken, as it is said, may be of a great deal of consequence; for it doth not rest there, solely upon yielding of the laws of property: for all positive laws do cease in that danger: then the positive laws of my liberty and person also do cease. Now, whether or no you conceive all laws of liberty and person cease in this time of danger, when the danger was but conceived and not actual, that I leave to your lordships judgments. And if that rule be general, then why not the other? So we may see the difference from our case; for in that case there is no manner of loss to the subject, for he shall have allowance for his loss, or make suit to the parliament, and they can recompense him; for what is taken for the public good is but borrowed. As in case of shipping, if my goods, be cast out to save the ship, every one of the ship is to bear a share; so in our case, either the king must do it, or the parliament: so there is no prejudice. So upon the whole, my answer is, Admit the rule of Salus populi suprema lex; yet the law of practice doth not yield, till there be an actual enemy, or flagrans bellum. It is not enough that there be but an apprehension. There were divers other reasons urged, (but those two of Salus populi suprema lex;' and of private property must yield to public safety) were the two rationes cogentes; the other were but a pari et a simili; and all those I shall pass over which were only for convenience, as the granting of toll, or a corporation to make ordinance for the good of the corporation: all these will not come home in the manner. My lords, in all these cases a minore ad majus non valet, negativum valet.' But there are only two reasons urged, which require an answer: The trust that the laws put in the king in greater matters, viz. the shutting of the ports; and the Droit Royal of wars and peace. For the shutting of the ports, there is more difference in point of prejudice of the king than the subject. The king cannot shut the ports but to his own prejudice. Again, the shutting of the ports without cause of necessity, the king hath the loss as well as we; for by that he loseth his customs, and by shutting them he can gain nothing at all. And besides, there is no law at all that hinders him from that. But there is a law saith, that he shall not tax the subject without consent in parliament. The next is the Droit Royal of wars and peace. It is one thing to say, the king can make war and peace; another thing to say, he can charge. In war and peace the king is equally charged with the subject, nay more; and for those things there are no great reasons, but that in the first form of government they might be well suffered. For that cause touch necessity to counterpoise the like thing in another state; in that case the king loseth, and we lose. The king may dispense with penal statutes, and make them as none. Doth any laws say he shall not do it? The reason differeth in that case; there is a common necessity that there should be a power in somebody, for acts of parliament are but leges temporis. It is one thing for the king to have power in point of favour, and another thing in point of charge; so in case of pardon there is no hurt if he doth pardon; God forbid that he should not have power to shew mercy. My lords, there are in the case two points more which I shall move. Whether or no, admit the king could command the subjects to find ships, he can give power to the sheriffs to make the assessment as in the writ? The ground is upon this, that in all cases of politic charges the law takes an especial care to make an equality. In parliaments of old, they were always careful to make provision that way, as upon fifteenths and subsidies. And in Danegelt they went such a way, as there could be no inequality; they went by taxing of hides. Now if the law doth make this a legal way of charging, it allows the like way for assessment that is allowed in other cases, such a way as wherein there can be no inconveniency. Now how a sheriff hath that knowledge to lay it on men's estates and lands, I cannot tell. My lords, not to leave a power in the king to lay an arbitrary charge, but in the sheriff to lay more or less on any man; though the law may trust the king, yet it is a question, whether it will trust the sheriff. Nay, I ask if the sheriff be an officer of law in this case; yet the king may command any man as well. Assessments are usually made by others, and not so much by the sheriff. So I do conceive that this is a thing that doth properly belong not to the sheriff, he is not an officer sworn, and it resteth not only in the sheriff, but the undersheriff. So that if the law doth trust the king, yet whether or no this be the way to charge it, I leave it to your lordships judgments. If a hundred be charged, they have ways to lay it on themselves proportionably. The next thing is this: Admit a levy may be well-made, whether the money thus paid may be brought into the Exchequer, by a Sci. Fa. I do think that this is the first writ that ever was of this kind, I do not find it regularly. My lords, I think it is hard to find where there is a writ that commands and prescribes the manner of levy. It not only gives you power to levy, but sets the way of levying, by imposition, by distress, by selling; for my part, I know no case can match it. May it please your lordships; There was a Sci. Fa. brought against Mr. Hampdeň, and divers others, to shew cause why those sums of money assessed upon them by the sheriff of Bucks should not be paid and answered; it beareth teste the 22d May, 13 Car, and a Sciri Feci returned. Mr. Hampden demandeth Oyer of the original writ 4th Aug. 11 Car. and of the Certiorari, and the Mittimus, and of their several returns. The writ 4th Aug. which went out to provide a ship of 450 tons, with victuals, men, ammunition, &c. that writ giveth power to the sheriff to make an assessment upon the county, and giveth power of distress and imprisonment in case of non-payment. He demandeth Oyer of the Certiorari, which consists of two parts; the one to certify the sums assessed, the other to certify the names of the defaulters. And the names of those that made defaults were returned, and Mr. Hampden amongst others. He doth demand Oyer of the Mittimus, which doth recite the tenor of the first writ. Upon Oyer of all these, both of the writ 4th Aug. of the Certiorari, Mittimus and Sci. Fa. and their several returns, Mr. Hampden hath demurred in law. writ. The body containeth six parts. First, the direction that is to the sheriff of the county of Bucks, nec non unto the bailiffs and burgesses of the borough of Buckingham, and mayor and burgesses of Chipping-Wiccomb alias Wiccomb, and 'probis hominibus' of all the county. Secondly, the motives and reasons inducing this writ, which are nine in number. 1. Quia pirate et maris grassatores,' &c. That these commit spoils and depredations by sea, and take the goods of the king's subjects. 2. Be cause they carry the king's subjects into miserable captivity. 3. Because of the preparation of shipping that is made undique to infest the coasts. 4. Quia pericula imininent,' &c. 5. Quia pro defensione reg. tuitione máris,' &c. 6. Quia pro debellatione quorund' hostium satagent,' &c. 7. Quia progenitores nostri reges Angliæ dig' maris temporibus,' &c. 8. Quia onus defensionis,' &c. 9. The most prevalent, Quia hoc per legem et consuetudinem Angliæ,' &c. The body of the writ contains also several mandates to the sheriffs and head officers,quod fide et legiancia, &c. et sicut nos et honorem nostrum diligitis.' The mandates are six. 1. To provide a ship of 450 tons well manned and furnished with provision, and that was to be in readiness by the 1st of March, to continue for the space of 26 weeks, 'ad proficiscendum cum navibus nostris, &c. pro tuitione maris,' &c. 2. That the she riffs and head officers meet within 30 days, and set down what shall be taxed upon the incor 6 The case that riseth upon the record is thus. The king is lord of the sea (for that is part of the record) the seas are infested by pirates and Turks, which commit depredations, and take goods and merchandizes, both of the king's subjects and others that traffic here, and carry them away into captivity. There is prepara-porate towns. 3. A command to the head tion of shipping and imminent danger, for so the writ reciteth: A danger that the king's dominion of the sea should be lost, or at least diminished. There was a further danger, that salus reg. periclitabatur,' whether in this case the kingpro defensione reg' tuitione maris, 6 securitate subditor' et salva conductione navium,' may command his subjects per totam Angliam,' by writ under the great seal, to provide ships at their own charge and cost; and this do, when the king in his own judgment conceiveth such a danger, as doth necessarily require that aid? That under favour is the question upon the Record. officers of those incorporate towns, that within their bailiwick they make an assessment upon particular persons, and compel them to pay the same. 4. A power to the sheriffs to assess all the rest within the county, juxta statum et 'facultates.' 5. A command for the levying of these sums by distress, et quos rebelles inveneris' to imprison their persons. 6. That no part of this sum collected shall be converted to any private use; but if any money shall be remaining, it should be paid inter solvendos. My lords, the reasons expressed in this writ might justly satisfy any man's judgment without further argument; but I shall clearly maThere is in this Record, whereof your lord-nifest there is no clause or practice by this writ, ships are judges, four writs. First, That of 4th Aug, 11 Car. which goeth out of the Chancery, for setting forth this ship of 450 tons. Secondly, the Certiorari 9 Martij 12 Car. Thirdly, the Mittimus 5 Maij 13 Car. And fourthly, that of the 22 Maj 13 Car. which is the Sci. Fa. The second and the fourth writ, which is the Certiorari and Sci. Fa. they are returnable, the first and the third writ, which is the writ 4th Aug. and the Mittimus, they have no returns; but they give command, and require execution shall be done,prout de jure, et secundum 'consuetudinem reg' Angliæ fieri consuevit.' but is verified by many records, and is secun'dum legem et consuetudinem Angliæ.' The question that is made, is of a high transcendent nature; it concerneth the king, both in his ordinary and absolute power. Whether the king in those cases, where he in his royal judgment shall conceive a necessity for the defence of the realm, may command ships in this kind; whether by his royal power he may do it, or must require the aid per commune concilium in the parliament. And I conceive his majesty may do it, not only by his kingly prerogative, but jure majestatis. The first writ, which is the ground of this This power is not only inter prerogativa rebusiness, it standeth upon two parts: a pre-gis, sed inter jura summæ majestatis.' I find amble, and the body of the writ. The preamble by many records, that these writs have issued that containeth; first, a direction; and second- out in all succession of times; in the times of ly, the causes and motives of the issuing of this the Saxons before the Conquest: but I never bar might give an answer to them in their reply: many more have been added by Mr. Solicitor, and many more I shall cite which have not been remembered. find that this power was judicially questioned these writs issued: so nothing was done upon in any court at Westminster before now. I find the sudden; and we that are of the king's counquestions made touching assessments, whether sel did think it fit that most of these records they have been equal; touching the levying, should be cited in the first Argument, by Mr. whether within the warrant of the office; touch-Solicitor, to the end that the counsel at the ing the discharging of some, by reason of a grant of exemption: but to question the main power, whether the king by his royal power might command this for the defence of himself and the kingdom, was never disputed before now. But his gracious majesty, who hath declared himself, that he will rule his people according to his laws, for the satisfaction of the people, and to clear his justice and judgment, does suffer these writs to go forth, to which Mr. Hampden hath demurred, and to be questioned in this legal way to be determined by your lordships, to which I hope you will give a clear end. My position shall be thus: that the king, as he is king of England, pro defensione reg' tui⚫tione maris,' &c. when his majesty in his royal judgment conceiveth it a time of such danger, as doth necessarily require the aid commanded in this writ, that he may command and compel his subjects' per totam Angliam' to set forth ships with men and ammunition and double equipage; and this may be done, as well by the king's writ under the great seal, as by consent in parliament. ་ For the proof of this position, I shall reduce what I have to say to these heads. First, that this power is inter jura summæ majestatis,' innate in the person of an absolute king, and in the persons of the kings of England. That this power is so inherent in the king's person, it is not any ways derived from the people, but reserved unto the king when positive laws first began. And that in this case the king is sole judge of the danger, and how this danger is to be prevented and avoided: this is my first ground. The second is this, that the regal power is not confined to the politic advice, that the king must be in cathedra sitting in parliament; but that it hath been always done, either per ipsum regem, aut per regem et concilium, aut per dominos suos, aut per regem,' when he shall please to call a consultation of merchants and portsmen experienced in the service. My lords, I shall present unto your lordships, that this power is so inherent in the king, that during the time of parliament, and in those years when parliaments were sitting, these writs issued out by a regal power, without any aid or power from parliament; and that advice was not thought necessary in former times. My Lords, in the vouching of these records, I shall observe eight things. (1.) That the records we insist upon, are not grounded upon any private custom, or upon any charter, or upon any covenants, but upon the laws of the land; and there is not in any of these records any recital that these writs went out upon any of these grounds. (2.) That in all ages before the Conquest, and in the time of William 1, that these writs have issued per ipsum regem, per regem et concilium,' and did not issue upon any advice of parliament. (3.) That these records and writs were sent out, not in case of Hannibal ad portas, or an enemy discovered, or sudden invasion; but upon case of rumours, and in that a danger might happen; so not in approaching of an enemy, but in case of preparation to provide against an enemy. (4.) That the king did command shipping to be set forth in those years wherein there were parliaments, and sitting parliaments, by his royal power, without advice of parliament. (5.) That when great subsidies and aids have been given unto the king by parliament' pro defensione reg',' in the same year that writ went forth for the defence of the kingdom. (6.) That these aids have not been required only from the maritime parts, the ports, nor from the inland counties only, but per totam Angliam.' (7.) That many times when these writs issued, there have been no such causes declared, as hath been in this writ. I shall observe, that in many of these writs no cause at all is set forth in them, but only that they should repair to the place of rendezvous, and there receive further directions. (8.) I shall verify every clause of this writ by many precedents. A Mandamus, and not a Mandamus Rogantes, shipping at the charge of the county, and assessments made by the sheriffs, as commoners, and a penalty greater, not only distress and imprisonment, but extent of lands, seizing of goods, till the king was paid. These are the things I shall observe out of the precedents, when I shall come unto them. My Lords, in the fifth place, when I have laid these foundations, I shall then dispel those 3. I shall also shew unto your lordships, that mists that have been raised, remove those forces this power is implied out of the sovereign's titles that have been mustered, and answer the obgiven unto him by the common law of England.jections of those gentlemen, that will not be sa4. And also I shall insist upon precedents; and herein I shall desire your lordships to take notice that these writs have not issue out at the first any sudden advice; but that there was a great search made: first, by my predecessor, Mr. Noy, a man of great learning and profound judgment; other searches made by the king's counsel and some others; and a great number of records were considered of maturely before tisfied by the king's writ under the great seal: And in the sixth give a particular answer to the acts of parliament that they have cited, to the records that they have insisted upon, and to the reasons and authorities they have alledged. In the seventh place, I shall answer their exceptions that have been taken unto the several writs, records, and proceedings thereupon, that have been produced by us. |