go in this case. And his majesty did not deny the same, but both king and council agreed it is a law.

The Third Day's ARGUMENT of
Mr. HOLBORNE.

My Lords; As the other day, so now again with your lordships' favour, I shall be bold to sum up my last day's argument in a very few words; and by the way clear my meaning, wherein I was any whit obscure, as also add where I was defective, yet briefly in both.

My lords, the general question the other day, being concerning the king's power to lay a charge of money upon the subject; and my general ground against it being but this, that though the laws did intrust the king in many great powers in government, and with the whole government, according to the laws; that yet by doing of acts, which charge or prejudice the subject in his estate, the law did see that it was possible that kings, as men, might err, and therefore did make provision, that their acts, if against law, should be void, as in case of a disseisin or discontinuance, or where they were to pass grants, that there should go before an ad quod damnum; and also, that if they were passed, and were to the prejudice of another, that regularly in that case, the law did make them naught, and that they were to be repealed.

And I shewed how this did hold, especially in laying charges upon the subject. I shewed that the law was not willing to leave the king power to charge in any case, notwithstanding where the occasion might be common, and did require, for the maintenance of traffick and commerce between them, so to hold them still as within one body. The law must leave in somebody a power to charge, which would be left in none but the king as supreme governor. The cases for this were the monies to be paid for murage, pontage, paveage, ferriage, and the like. That in those cases, though the king was trusted with a power to lay a charge; yet the law did not leave the charge arbitrarily in the king's breast, so, but that if it were unreasonable, the grant was naught, and the proportion was to receive trial by another, upon whose judgment it must stand or fall, which were either the judges or a jury; like to that case which I might have put, but did not, of a fine uncertain upon a copyhold. I also shewed, that in some cases the law did allow to demand arbitrarily upon some subjects, sums of money, yet that was not upon the subjects, quatenus subjects; but upon some subjects, quatenus tenentes, which did rise upon the jus rentulare, as to marry his daughter, to make his son a knight, or for ransom, or upon those who were little better than villains, the king's burgesses, whom the law did not so much regard; yet the policy of the kingdom, in those cases, did afterwards restrain the king to a certainty, by act of parliament.

Afterwards I went to the cases which were in point, that the king could not lay a charge

upon the subject, though for a public good; and instanced in the case of the grant of the office of measurage, with a fee, adjudged void, quia sonat in oppressione populi:' 22 Ed. 3, Pat. 31. The king granted to one Pawley, an otice of alneage of worsted; and because in charge and burden of the people, and a new grant, adjudged void, and was repealed.

I begin with that of 4 Will. 1, which I now find more clearly to be an act of parliament, out of an ancient manuscript of the church of Litchfield, mentioned to this purpose in Ead-` inerus. Here I endeavoured to answer to Mr.. Solicitor, when he said, that there was another law of the Conqueror's, which explained this; and shewed, that the charges for the public defence were not meant, because it is said in another place of the same law, quod omnes sunt

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fratres conjurati ad regnum defendendum." To this my answer is, that they are so for their bodies, fratres conjurati,' to serve, but not to be charged. Yet I must confess it is pro viribus et facultatibus' to defend the realin; where pro facultatibus' may seem to imply, that they were bound to be subject to charges, secundum facuitates.' Under favour, pro 'viribus et facultatibus,' are but words of like nature; viribus, that is facultates, natural powers, not substance; for it is not only that they should be Fratres conjurati ad regnum 'defendend.' but also ad pacem dignitatem coronæ, &c. et ad judicium reg' et justitiam faciend.'

I went next to the charter of king John, which I observe to be but common law; it is inrolled, remaineth under seal, and is recited verbatim in Matth. Paris.

I went next to the acts of parliament, 25 Ed. 1, against aids and taillages; there I laboured to shew, that the act was made against aids and taillages, though for the public defence; and that was out of the Articles, whereupon the statute was made, and upon the king's answer to the Articles: next out of the commons, which was after the statute, to enquire of the griev ance mentioned in the articles, to the end there might be satisfaction, which was promised upon the Articles; where, in the commons, the whole inquiry was de gravaminibus.—It is enough for me that this commission was grounded upon the former articles, and that here this very thing, pro defensione reg' was inter grava

mina.' It had been strange, when the king had confessed upon the articles, that he would not legally justify them, and upon the commission, in pursuance of the articles, had called them Gravamina, and so to be inquired of, that now when they were found he would justify them in any point, and say, 'a pais pur reason,' give them a reason for what he did, as Mr. Solicitor saith.

Next I did conclude with the statute De Tallagio non Concedendo; and there my labour was to prove this to be a statute: and I am sorry I spent upon it so much time, if that had not been denied by Mr. Solicitor to be a statute. But now I understand, by the king's

defence on this side. And where there is no distinction, why not for the one as well as the other? It must, under favour, be conceived for either or both. And between this time of 14 Ed. 3, and 25 Ed. 3, your lordships have heard from Mr. St. John, some complaints in parliament, for charging the counties with Hobbellers, and going out of their counties, which are not really compleat, only for proportion in regard of their success, but also for the thing itself.

2 Ed. 3, m. 21. The commons pray to be discharged of the guard of the sea; and that the king would keep it at his own charge. This shews the judgment of both houses, and the weight of it is very great; for when there is any difficult point concerning the liberty of the subject, it is referred by the judges to the parliament, to be there decided: of that reverence is the parliament.

But it hath been said, this is rather a matter of prayer than right. Under favour, the matter shews that they claim in point of right: and it is to be supposed, that they would not make such an unreasonable request, as to lay that wholly on the king, if they of right ought to do it. And if words were put in a fair language, it was but a fit and humble language for so great a prince as Ed. the 3d was. But Ed. the Sd gave no relief; yet that doth shew the judgment of the two houses; and as there was no granting, so there was no express denial. A handsome prayer, and a handsome answer. 14 Ed. 3, Parliament-Roll, there it appears there was a charge of 2s. on all woolfells, and this for defence of the sea; and in the 15th taken away in the parliament.

I shall conclude this with the 25 of Ed. 3. No Hobbellers were to go out of their counties, unless by common consent. This statute is general for defence; there is no exception: if an enemy do invade, the parliament believes the kingdom is provided for. Yea, saith Mr. Solicitor, the subject is not charged to go out of the county, that is, upon summons, ad exercitum; for summons is twofold. First, a summons ad exercitum, and then a general summons. By the summons ad exercitum, only those were to go that did hold by tenure; and they say it is encounter droit, to be charged out of their counties. It is true, about this time there are some records of 16 and 18 Ed. 3, in the Exchequer, where charges are laid on the subject for hobbellers, and such things: but you shall find in the Exchequer that the money came thence, which was before the statute; these things were the grievances complained of. So the practice there will not expound the statute, for the contrary practice did beget the statute. But the last of these, in 24 Ed. 3, who was an active prince, and maintained wars, and so had great occasion for moneys, and so charged the people higher than they would endure; for which he did afterwards repent, and desired to be prayed for, and therefore there were divers impositions on merchants; all which I pass over, only this out of the Roll, 50 Ed. 3,

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m. 24. It is the lord Latimer's Case, a privycounsellor and chamberlain to the king; there was # complaint in parliament against him for divers things, whereof one was for laying an inposition upon merchandize. In his justification he pleads the command of the king; and for that particular he was sentenced, imprisoned, fined and ransomed; so careful were they to revive that law. And that sentence of his, 2 Ric. 2, made the great lords so unwilling to talk of the defence without parliament.

And so I come to that of 2 Ric. 2, upon which I must insist, for that it is of great weight. It doth appear, as well by the consultation itself, as by history, that the realm was in great danger from several parts; as from France, Scotland, &c. and that the danger was so instant, that it could not stay for a parliamentary supply: therefore the council of the king were to consider of it; they know not what to advise; they meet together, they had no time to call a parliament; but the lords, both temporal and spiritual, and sages of the realm, considered what to do, when the safety of the kingdom laid so at the stake. The resolution of these lords and sages, who were, as I conceive, the judges, propter excellentiam, conclude that there was no way but by parliament, and all this was for delence, and against an instant danger, which could not expect summons of parliament. And the lords themselves rather lend money out of their own purses, than adventure that which Latimer did; which indeed was the ground which made them wary.

To this there were many answers, yet all will fall off. It is true, that it is no act of parliament; yet such a resolution, that had it been 300 years before, would have done much. The weight of this is thus: if this had been a parliament, there is little doubt what this resolution would have done: for the matter we have the resolution of the upper house; and how the commons would have resolved in a point of liberty, we may easily conceive. Here we have the judges opinions in point of the legal power of the king, what the king would do, as well as what he should do: and in things of this nature, the judges are the king's council. And as in the great council, (the parliament) they sit there for counsel in things that belong to matters of law, so at this time in this assembly, which was instead of a parliament, these were not left out, being best able to declare the rule; and this was about two years after Edward the third's death he could not then have any other than the council of his grandfather; and of their resolution was that the king could not charge the subject out of parliament: and though it was no act of parliament, yet it had the honour to be so accounted, else it had never been entered upon the parliament-roll.

But it is said, by way of objection, that Richard the second was then an infant. True, he was so, but he had a brave man for his protector, John of Gaunt; and he had doubtless a select council, and they were as fearful as might be, that nothing should be done that might

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wrong the king in his prerogative. It is true, they had a power of doing things by parlia ment, yet that was no act to restrain the king, but an act of necessity: the king was an infant, and therefore it was requisite, that during his minority nothing should be done but in parliament, especially that concerned the kingdom; which was not a usurping of the regal power, but a provident care of the kingdom and him: and they do protest in that roll against incroachments upon the royal power; and to say that is good, which is to an ill intent, is a strange construction.

They say that this consultation was for foreign wars; for that Brest and Calais were in danger, and to be provided for: and for foreigu wars it is agreed the kingdom could not be charged. To this I answer, admit a mixture of wars, yet every one looks home first: we have a care of ourselves first: but they would have made no such difference, if the debate had been for both. However, the lords conclude the king cannot charge without parliament.

But I cannot leave this objection, but shall give a particular answer; though Brest and CaJais might be in danger, yet that was no part of this consultation; for it is said in that consultation, that in a former parliament, sufficient provision was made for them. True, they were in danger, but provided for in parliament before; and that which clears all, under favour, there is not a word in that consultation, but is merely for the defence, and no relation to a foreign war. I end this king's reign with the 8 and 9 Ric. 2, rot. 10, where is a consultation with Johm of Gaunt for foreign wars, and others mixed together. It appears the subject is not chargeable out of parliament.

And so I come to Henry the fourth's time. 2 Hen. 4, hath been urged, and an answer given to several commissions for Calais, and for the defence: there was then a complaint, and a desire that those commissions might be recalled. It is true, we find not this granted expressly; but as no grant, so no denial; and as we take it, it was granted. This time of Henry the fourth did yield many instances that the king cannot charge, though for the publick defence. I shall remember a record which the other day I vouched. Par. Rol. 13 Hen. 4, m. 43. It was upon an action of the case which we find in the books, 11 Ilen. 4, which was pleaded in 13 Hen. 4. There was an office of measurage erected and granted, and a fee granted in it; this was complained of in parliament: first, an action was begun at law 11, and in 13 Hen. 4, a complaint in parliament; and they complain that this was against the statute, that no taxes nor taillages should be laid upon the subject; and the answer is, let the statute be observed. This use I make of it; this doth not only shew the confession of the thing, that this ought not be laid, but that, this statute, De Tallagio non Concedendo, was to be a statute: and this statute was not for aids that come to the king in particular, but against any charge laid by the king upon the subject, though it be pro

bono publico; and upon the record, the judg ment was delivered so, because sonat in prajudicium populi.

I shall remember the grants of tonnage and poundage to Hen. 4, and the grants usually to him were temporary and upon occasion, and not for life, until afterwards; and in his time they were for the defence of the sea and kingdom: and it was granted upon condition, that it should be confessed it was granted of loan, and not of right. 9 Hen. 4, m. 16, and 11 Hen. 4, m. 45, and 13 Hen. 4, m. 10, which is the fullest; they make a protestation it shall not be drawn into example; yet all that time were imminent dangers.-But it was said, we cannot shew that purely, and simply, and solely, it was ever granted, but with a mixture of other things, as that of tenths and fifteenths.But the parliament was so wary, that they did sever them, and lay the tenths and fifteenths by themselves, and tonnage and poundage by itself; for though they are the same acts, yet upon the matter they are several.

I am now come to Henry the 5th's time; and for him there is not much, but like Henry 4, Parliament Roll, 1 Hlen. 5, m. 17, a grant of tonnage and poundage for the defence of the realm, and sate-guard of the sea, with a protest ation that they should not be charged for the time to come. I think after this time we find no more protestations or grants upon condition. But that which I argue from these grants made in this manner, is, sure it was the opinion of the parliament, that they were not bound; and the king by his acceptance doth acknowledge so much: no landlord accepts that from the tenant as a gift, which he may command as a duty; and to take it on terins so advantageous for the subject, and not only give an acquittance for it, but put it on record as in point of right. here is an affirmation of the commons; and though they cannot make a law, yet that which they do, and the king accepts, shall be of a strong proof. Again: It is true, you shall not charge the subject with tonnage and poundage without parliament; but shall not the subject be charged another way?

But

To what end would that protestation have served, that the king should do it another way? And it is all one, if the commons bear the charge of defence, whether they bear it by tonnage and poundage, or otherwise; for that which falls on the particular, falls on the other. To charge them thus, were as if the king should say, though I cannot charge you this way by tonnage and poundage, yet I will charge you another way. In the time of Henry the 6th there is little. I come next to the time of Edw. 4, wherein, though there is not much upon statute, yet there is a speech of his that shews much of this. 7 Ed. 4, Parl. Roll. 1, there was a speech made and cited. The king first protests, which was not immediately upon his coming to the crown, that he will live of his own, and not charge the commons but in cases extraordinary, and those burdens too should be secundum morem mojorum; and that he hopes they will be as tender