and therefore there was a general Answer, Soit droit fait.' But now what was granted by the last Answer more than by the former, only that the law was left more absolute?

supply; and it appears by the Commission, | prerogative : but this Answer did not satisfy : that there was a necessity which could not stay for a supply another way, and your lordships know what was done in this. This Commission was not to borrow of a few, but it was general, with an equal and proportionable weight; and this, as it appears, was for the defence of the kingdom. It hath been said, that mention is made of supply for the l'alatinate, and to send aids to Denmark. True, it is so; but that of the Palatinate, and that of Denmark, do upon the matter concern us; for that war being upon our resolutions, there was a kind of engagement laid upon us.

In that Commission, there appears more than a possible danger to the kingdom; there was a necessity, yet this was laid down, it held not; and in pursuance thereof there was an Order, whereof we have a copy; it is in the Exchequer noved by the king's Attorney for staying the proceedings for money spent about Loans, which was by his majesty's gracious command, wherein his majesty did prevent the commons

desire.

The Petition goes on, that there were soldiers billeted in several parts, and there was a charge; and this was after a late foreign war, an enemy then known and declared; there was a necessity for instant defence, and to stand upon our guard; the enemy might in a short time have been upon our coasts: yet your lordships know what was said to that. And as the Petition looks back to those things that are taken off their hands, so it looks forward, and provides, that no such things should be taken | hereafter by the power of the king alone, although upon matter of necessity. And all this was a Petition not of favour merely, but in point of right, according to our laws and statutes, which are the statute 25 Ed. 1, the statute De Tallagio non Concedendo, and Magna Charta, the ground of all. And to all these his majesty promiseth such things should be done no more. And they not content with this, his majesty gives this answer, Soit droit fait.'

I cannot leave this great strength thus, but bring it home to this very case. The substance of this Petition being for charging of the subject out of parliament by the royal power, when this Petition had passed the lower house, it came to the lords; and upon some motion, there was a proposition of a Saving to be put in the end of the Petition, saving the sovereign's power, which his majesty is entrusted with for the defence of the kingdom. All this your lordships know, that after several conferences, in the conclusion the Petition passed without any Saving.

My lords, upon what reason this Saving was left out, your lordships may see by the record, which your lordships and the rest of the house best know, and whether upon this reason or not. That the laws the Petition went on, whether the Saving would stand with those laws.

My lords, it appears that the first Answer was, that the laws should be put in execution; yet in the close there is put in a saving of the

As to that commission of advice for consideration of means to raise supplies, and it was for defence, and a necessary defence, and that did not bear delays, that commission was laid down by his majesty; yet in that there was no more than this consideration, how supplies might instantly be raised, which could not endure delays by impositions or otherwise, that is still lawful ways. If there had been any to lay a charge on the subject by way of loan, then that commission had not been excepted against; yet his majesty was pleased to lay down this upon the desire of the house.

I conclude with that which I conceive to be the judgment of both houses in point. It is the judgment of both houses against the Sermon touched upon by Mr. St. John, which I shall press as far as it will be applicable to our case. -The Sermon was to shew the power of the king in case of necessity to lay a charge on the subject without a parliament. When this came into the lower house, this was the main and principal charge, I say not the sole charge. When it came into the upper house, there it was pressed against that divine by the king's counsel; and it appears by the journals of the upper house, that the crime was, that he should shew the king's power to charge the subject without parliament. It appears by the said journals, that the Doctor's excuse was, that he meant nothing but to shew what kings might do in extreme necessity of danger. And your lordships may read in his Sermon, that he speaks of necessity, not attending the slow motion of parliamentary advice; so that it is pinched on extreme necessity: but neither one excuse nor the other did serve his turn. The offence is acknowledged, submission made in both houses, and the Sermon called in by proclamation. Ay, but, saith Mr. Solicitor, this Sentence was for other matters. I say not, but that the Sentence was for this thing alone: there were other things, but they were only by the bye; only occasioned by this. Now how far this case comes to our case, I leave to your lordships judgments.

The Fourth Day's ARGUMENT Of

Mr. HOLBORNE.

May it please your lordships; I have thus, far gone on in my proof from reason, books, cases and authorities, all being of highest nature, that is, by the laws of England; that the king cannot charge his subjects without their consent in parliament, though it be pro bono publico, or for case of necessity. It now re maineth that I offer, what either the practice hath ever been in the best times, and the contrary practice decried from time to time.-In this I shall do a work of supererogation. It is not material what the practice is, if the laws be once settled. A law once made, over-ruleth

all practice afterwards. And as a law is law and 29 Ed. 1, m. 10, he contracts for his ships, before practice, so it is law against practice : | and they go at his charges. P. 76, Ed. 1, Rot. yet because practice may be an expositor of 35, Reginald de Grey, when the Scots entered law, especially where the words may seem the kingdom, he was commanded to bring seageneral, I shall shew from age to age, that the men out of their counties, and he durst not subjects without their consent could not be without money; and thereupon he had money charged. out of the exchequer.

But the answer was, This was for Scotland.

From the practice of the kings themselves, even in all ages, that on extraordinary occa--For that no doubt this war was at home, for sions they have resorted unto parliaments; and in the 26 the Scots had entered the kingdom. when they could not do good by that, they have Br. Trin. 32 Ed. 1, Rot. 11. made many borrowings, as appears by the Parliament-Rolls. What other courses they have taken, your lordships have heard upon the former argument. And when the king received these supplies, it came voluntarily, and with protestation, that those things should not be drawn into example.

I shall go now to the practice of the subjects part. First, I shall go as high as the Saxons time. That of Danegelt did begin by a common consent and in the very laws in Mr. Lambert, it is said statutum est. Though it always did not signify a statute, yet when it was written by one that knew the laws, and writ of the laws, it must be so taken. Tilbutiensis saith, as it was the act of the king, so it was the petition of the commons; Statutum est a regibus,' still the king. It is strange in that time of Ethelred, when Danegelt was so great and common as it was, the subject being easily drawn unto it, that the king should not ask it, when he might have it for asking. But this Danegelt being raised by Ethelred upon emergent occasions, as it was not like to be always, so the provision was not for all times. After him came in some of the Danish kings, and they continued the Danegelt. And what became of those that were the collectors of the Danegelt between Ethelred and the Confessor, doth appear in Huntingdon, and how the people did decry it in general; then it was laid down ut gravissimum, as appears in Ingulphus. Edward the Confessor he laid it down. At the Conquest, still they go on with the Danegelt. It was part of the terms made by the people with several kings, that it should be be laid down: and king Stephen did promise to lay it down; though notwithstanding they did now and then take it up. In Hen. 2's time yet still more complaints, and that was left out of the charter of king John.-The use of all this is, That though there were a practice under pretence for defence of the kingdom, yet the people did decry it; it was not such a practice as could bring in a law.

I come now to Ed. 2's time; there is not much against us, but for us. This I shall observe, that the first writ that went out was 9 Ed. 2. It is true a Mandamus went out for shipping, and against an enemy, and for defence of the kingdom: but how? Not a • Mandamus 'firmiter injungentes,' nor sub pœna forisfacturæ,' but a Mandamus rogantes,' and the means of compelling quatenus honorem ⚫ nostrum et salvationem vestrum diligitis.' So you see how the course of the law altered in that time.

I come to Ed. 3, for I will but touch upon every time, and offer but one thing to shew the practice in it. As I find a statute in the beginning of his reign, concerning provision made for wars, so I find an execution, Rot. Scot. 1 Ed. m. 8, there went out two writs, and they were concerning raising of shipping, and in respect of the Scots entering that year. This is that I put it for, to shew that upon that occasion 1 Ed. 3, soldiers were paid, although for the wars in Scotland. It doth recite that the Scots had entered the land that year, and did make further preparation; and if they could not have their peace on their own terms, they would proceed. Consideratis etiam periculis," for it was in articulo necessitatis; he giveth a command that there should be ships, but it is a mandamus rogantes,' nothing at all by compulsion or forfeiture in the writ, sicut 'honorem nostrum.' It appears by the writ, that he said, he sent money at that time for the victuals for the soldiers; and this very writ was pro salvatione regni,' and that we could not be safe without shipping: and this was in a pure and innocent time.

I will not say, that in all the actions of Ed. 3, he never broke this rule: your lordship know what wars he had, and what necessities, and what those necessities brought him to; but he was so far from justifying of himself as it ap pears by Daniel's History, that he sent to the archbishop of Canterbury, to pray for him, and desired the people not to think ill of him When Danegelt was thus laid down for the for laying those charges upon them in case of time of king John, Hen. 3, and Ed. 1, in necessity. 12 Ed. 3, Rot' Alm'. Your lordwhich times practice for shipping will not be ships shall see upon that acknowledgment, how material, for in all those times the very ship- he began to alter his course. Parliament Roll, ping itself was decried, parl' 25 Ed. 1, there 13 Ed. 3, though he laid charges before now, the very charges of the subjects for shipping he calls a parliament, and desires supplies for were the complaint, the complaint is the thing shipping that way; and that acknowledgment I am upon. After the 25 Ed. 1, and the sta-12, will answer home that famous year of 10 tute De Tallagio non Concedendo, the course of these proceedings did alter; for before in 14 he sent forth writs under a great penalty,

Ed. 3.-Next, my lords, to shew the decrying of the people in this time of shipping itself in the rolls of 21 and 51 Ed. 1, there the people

The king for the guarding of the seas bath all the natural profits thereof; as all great fishes, whales, sturgeon, &c. and all other profits of the sea, if the king would take them; and so letters of marque; and though some of them are got into the subjects hands, yet originally they did belong to the king. So the old Customs by the common law, antiqua consuetudo: and so holdeth sir John Davies in the My lords, from the consideration of the in- customs of Ireland. So Prizes and Imposi terest of the kingdom in the estate of the tions are for the defence of the sea. prince, the parliaments have so often offered Tonnage and Poundage, which was originally their service to the king: And the parliament granted for ordinary, but oftentimes upon in former times did require a band in the nam-emergent occasions, it appears it was granted

My lords, I shall now upon the whole'observe what I have made good, either upon those general statutes, that the king shall lay no charge, or rather by the books, that the king cannot charge for little things; or upon the practice of times, wherein every time the king hath been at the charge, and when it hath been on the subject they have decried it. How you, my lords, believe it in point of right, I leave it to your judgments.

with reference to toll; and such things are nothing to our main case; and that book will prove strongest against the king. The main case was concerning a new office of measurage erected with a fee: this was pro bono publico, yet an action_brought ; it began in 11 Ed. 4. Then cometh the parliament in 13, and this was complained of to be against the statutes, that provide that no taxes should be laid. The answer is, let the statute be observed.

pro salvatione regni, and not granted amongst other things, but by itself. But in latter times, when it was settled upon the prince for life, then it was for extraordinary defence, and to have money in readiness for an instant occasion: for it is said, in the very grant to king James, that the king must not be without money; and therefore, towards his charges upon an instant he must have it. And though it was granted on particular occasions, yet that is enough that it was granted on great To the case of toll, which for common neoccasions; and this was granted out of their cessity to maintain traffic, and because there love to him, The words of the act 1 Jac. | must be a power in somebody, and without a speak of a sudden invasion; now whether this fee not possible to maintain the charge, it is is by sea or land, it is general. allowed it may be done by the king: but in our case here is no common necessity, here is a thing that may seldom or never happen. The ground of granting toll is this, because it is pro bono publico; yet if not for common necessity, the king could not do it.-Next, the toll is not so much a charge, it is quid pro quo : in the 5th Report it is said there, that it is no charge; for the benefit in the thing itself will quit the charge. Again, toll is but inter minimum, this of weight; and though an argument will hold a minori ad majus in the negative, because a man cannot do a less, therefore not a greater; but not in affirmatives, because he can lay those, therefore greater, non sequitur. Next, for toll; no man is forced to pay toll, because no man is compelled to come to the market; if he will come voluntary and receive the benefit, then there is reason he should pay it; but this is not our case. Lastly, the law doth allow in this necessity, in case of toll, to the king a power to grant, yet the law doth not leave the king absolute judge of the quantum: for if the toll be not proportionable to the benefit, the patent is to be avoided, as in case of a fine uncertain. Now, iny lords, in our case here is no judge of the proportion but the king; so the argument is thus: If the law admit not the king to charge but in common necessity, then not in cases that may happen but seldom or never; if not in small things, then not in greater.

My lords, I shall go on to the answer of Mr. Solicitor; I have made a reply to all his answers to our positive part. It remains I should offer an answer to his positive part. First, I shall give a general answer to his whole argument; for if the case be, as we conceive it is, that the point of salus regni is not now in question, the argument will fall off. How far salus regni is in the case notwithstanding, I shall argue over, and examine the nature of his proofs.

I am sure be had none from parliament, either act or declaration of both houses; what there is, is against him. The answer of the king, with the judgment of both houses, is a main thing in point of right. I did not receive any legal material record, but that of the abbot of Robertsbridge, nor any book-cases in point, where it is said the king shall charge, but the books 13 Ed. 4. I shall answer these first, practice next, and reasons last.

To begin with the case of the abbot of Robertsbridge, which was opened by both sides. It was 25 Ed. 1, the abbot had land agisted ad custodiam maris; and in an action brought, the abbot pleads that he had found a horse for the same land. Here is an argument, that the abbot doth admit that the king might agist ad custod' maris: now if that admittance in this case should be of any authority to alter your judgments, I shall leave it. The abbot's counsel did no more than a discreet counsel would have done. If an action be brought for words, and it appears the action will not lie, what then? If the abbot had a plea that he was agisted to find a horse, what reason had he to put himself on matter of law with the king? So the authority can be nothing against us; and at the best the case did rest there, and went no further.

For the book-case, 13 Ed. 4, where it is said, that the king can lay a charge, that book is

I come now to practice: and for practice, where there is no opinion, either for records or books to warrant it, it is something weak, especially when there is no urgent occasion. For the practice, I shall give this general answer: if I can satisfy your lordships by authorities of parliament, how the law standeth; the contrary practice, either before or after, is not material; and for that, I must leave it to your lordships.

Your lordships have heard us read the words of the acts of parliament, and explain our meaning thereon, and we have brought them home to our case. It will be hard to make an exception if the act be general.-For, my lords, the practice, it consists of two parts. First, arrays of men. Secondly, of shipping, and for. shipping; de navibus congregandis,' or 'muni'endis' and inveniendis.'

For practice of arrays, I shall lay them by, and give them a general answer: for there were

doth make a law, such use it must be as doth prove a tacit consent.-Next, as the use must bind the kingdom, so it must be general over all the kingdom; it is not enough to be at some times and seldom, but it must be semper eadem. And, lastly, it must be reasonable.

very few, if any, that went from the beginning | becometh a common law: so as still, if an use of Rich. 2, but only to see if they be armed, et prompti, and that is made by the statute of Winchester. It is one thing to see that they be armed and in readiness; and another thing, at whose charge they shall go that appears not out of those arrays. There is no doubt but the subject, on the statute of Winchester, ought to be ready with arms, and in his county to make defence; and upon occasion he ought to go out of his county, but at whose charge, that is the question. And if those writs of array were the same with the commissions now to the lieutenant, yet I know not how; this is my argument in the case: and so your lordships see that a great number of the arrays falls off this way. But if arrays had been, and at the subjects charge, yet against the statute; I leave it to your lordships to judge, how far practice shall be an argument. But for shipping, for writs de navibus congregandis,' those are nothing; for the matter is, whether they shall be paid before they go, and many of the ship-writs are of that nature. No doubt but the king may commandad congregandas naves,' to use them upon occasion; but the matter is, at whose charge they shall be. And for all the writs that are to find ships, I hope those writs are not concluding.

I shall examine on these rules, for these are undoubted rules to examine a law by, the writs of Hen. 3, Ed. 1, and Ed. 3. In all these times the practice, as to this, will not make a law; here will be no proof of a consent.-First, For Hen 3, to 28 Ed. 1, here the subject, as before the complaints, which begot the charter of king John, was upon the charges imposed on the subjects; so afterwards, until the 25 Ed. 1, the law of the liberty of the subject was not settled for though king John did grant his charter, yet the pope did dispense with him, and he broke it, and so it rested till 9 Hen. 3. So all this time the subjects of England were under power; and what in that time he might do by duress, was not by consent. Then, 9 Hen. 3, he made a charter, yet from time to time he broke it, though he desired to be excommunicated if he did it; and so it rested until 25 Ed. 1, and then with much ado was gotten a Confirmatio Chartarum : yet this satisfied not at all. Till 28 Ed. 1, Mag. Chart. not observed. I could shew divers cases point

The statute 28 Ed. 1, saith expressly, that this charter was not observed; and it was once a punishment for those that were the breakers thereof. Now when acts of parliament declare that the law of the liberty of England was not observed, I shall not need to shew any record how it was broken: so that all the practice in Hen. 3's time, though much, yet that will not serve the turn; for that government was more of force than law. But for that of Hen. S's time, I shall give a further answer; the very courts of justice were shut up, then it was in flagrante bello.

My lords, for those writs that are sumptibus propriis; a writ, and no more, without execu-blank against these. tion, is not a practice sufficient to make a law, no more than a common evidence, when to prove right by usage. Now whether or no they have shewed a general execution, by obeying and doing it at their own charge, or money levied upon them, I leave it to your lordships; I see no proof. It may be, such writs might be; but that there was an execution of them at their own charge, or money levied on them, we see no such thing. And if writs were to find shipping in these times, it is like the monies were returned by the counties, and so the receipt might shew it, especially if inland counties, where nothing could be had from them but money.

But, my lords, to examine on those grounds, whereby a practice must make a law: if this charge be within the words of the law, no practice can take this out of the way of exception. The practice must either shew that was the common law, and so generalis consuetudo, or must declare the meaning of a statute by constant consent; which must be of those that could consent, and those which did not express a disassent.

We are now upon inquiry as on practice, though the king cannot generally lay a charge, yet whether he can do it in this case, to make an exception of law; it must be done by use and practice; as to make a law practice doth not make common law, but as it is a proof of common consent: for all laws are made two

And for Ed. 1's time, all the main ones considerable were immediately before the making of that statute; if rightly apprehended, they did particularly occasion that statute; so the subject did deny it, and it is a dis-assent.

After 28 Ed. 1, little considerable; and Ed. 1, when he made 28 Ed. 1, when the charters were confirmed, yet he had his salve jure corone, which did not please the subject; and afterwards, notwithstanding he made some grants in parliament, yet sometimes he did revoke. Your lordships know what a great renunciation he made; but as some of our historians observe, when he had occasions for moneys he did grant, but otherwise did not; so that in all his time the subjects did not consent, but as much as they could; did dis-assent: and in the 25th, you see how the practice did alter for commanding of ships.

Next for Ed. 2, for his time, we see how he went. In the beginning of his reign he sends but a mandamus rogantes. In the end of his reign, whether his government was more of law