« PreviousContinue »
My second reason is taken from the actions of former Kings in this of the defence.
The aids demanded by them, and granted in Parliament, even for this purpose of the defence, and that in times of imminent danger, are so frequent, that I will spare the citing of any of them : it is rare in a subject, and more in a prince, to ask and take that of gift, which he may and ought to have of right, and that without so much as a salvo, or declaration of his right.
My Lords, it appears not by anything in the writ, that any war at all was proclaimed against any State, or that if any His Majesty's subjects had taken away the goods of any prince's subjects in Christendom, but that the party might have recovered them before your Lordships in any His Majesty's Courts ; so that the case in the first place is, whether in times of peace His Majesty may, without consent in Parliament, alter the property of the subject's goods for the defence of the realm.
Secondly, the time that will serve the turn for the bringing in of the supplies and means of the defence, appears to your Lordships judicially by the writ, that is seven months within four days; for the writ went out Aug. 4, and commands the ship to be at Portsmouth, the place of the rendezvous, the first of March following; and thereby it appears that the necessity in respect of the time was not such, but that a parliamentary consent might in that time have been endeavoured for the effecting of the supply.
13. EXTRACTS FROM THE ARGUMENT OF SIR ROBERT BERKELEY,
JUSTICE OF THE KING's BENCH. [1638. State Trials, iii. col. 1090. See Hist. of Engl. viii. 278.] For my clear delivery and expression of myself, I divide all that I shall say into these four heads. (1) I will state the case, and will settle the proper question of it, as the pleadings are. (The true stating and settling of a case conduceth much to the right answer of it.) (2) I will sid the policy and fundamental rules of the Common Law, applicable unto that which upon stating the case shall appear to be the proper question. (3) I will consider the Acts of Parliament, the answer to petitions in Parliament, and the several Magna Chartas of the liberties of England, which concern the King's proceeding in this case. (4) I will answer the material objections, which have been made on the other side.
Upon my first general head. I hope that none doth imagine, that it either is or can be drawn by consequence, to be any part of the question in this case, whether the King may at all times, and upon all occasions, impose charges upon his subjects in general, without common consent in
arliament? If that were made the question, it is questionless that he may not. The people of the kingdom are subjects, not slaves, freemen, not villains, to be taxed de alto et basso.
Though the King of England hath a monarchical power, and hath jura summae majestatis, and hath an absolute trust settled in his crown and person, for government of his subjects ; yet his government is to be secundum leges regni. It is one of the questions in the juramentum regis, at his coronation (see the old Magna Charta, fol. 164); Concedis justas leges et consuetudines regni esse tuendas? And the king is to answer, Concedo. By those laws the subjects are not tenants at the king's will, of what they have. They have in their lands Feodum simplex, which by Littleton's description is, haereditas legitima, vel pura. They have in their goods a property, a peculiar interest, a meum et tuum. They have a birthright in the laws of the kingdom. No new laws can be put upon them; none of their laws can be altered or abrogated without common consent in Parliament.
Thus much I speak to avoid misapprehensions and misreports upon that which I shall say in this case ; not as if there were cause of saying so much upon anything challenged on the King's side. We have in print His Majesty's own most gracious Declaration, that it is his maxim, that the people's liberties strengthen the King's prerogative, and that the King's prerogative is to defend the people's liberties.
Secondly, though Mr. Hampden's counsel have spent all their powder in citing a multitude of records, beginning with one in King John's time, and so downwards, to prove that the King's ministers have paid, that the barons have been by writs commanded sometimes to pay, sometimes to make allowances, out of the King's moneys or dues,-in cases of foreign auxiliary, and voluntary wars : in cases of particular or ordinary defence of the realm, as upon rebellion of subjects, or inroads by enemies, into parts, marches, or maritime; such enemies I mean, as are not greatly formidable, as are apt to run away when they hear of any force coming against them : in cases of setting forth ships, for scouring the seas from petty pirates, so that merchants may have safe passage : in cases where victuals, or other provisions, were taken from particular persons, by way of purveyance, for soldiers, or for the King's army: in cases of borrowing of money by the King's officers for war, or ordinary or extraordinary defence : in cases of taking money or goods against the owner's consent, by warrant for the King's use, for war, or other manner of defence : in cases where particular men's ships, horses, or armour, were lost in the wars : in cases where private men's houses were used in the King's service : lastly, in cases of general and extraordinary defence, where the King had sufficient aids for that purpose granted to him in Parliament. Although I confess it be true, that the King in all these cited cases must pay of his own, without imposing upon the subject; yet I say that those cases come not close to our case : for every of those cases hath a manifest, particular, and just reason; but none of thes
reasons are applicable to th case now in question, easy to demonstrate, if a man would enter into every
of these particulars; which I forbear, for saving of time. And these records being taken away, the multitude of vouchers on Mr. Hampden's side will be greatly abated.
Thirdly, the case of the ancient tribute called Danegelt, of which Mr. Hampden's counsel hath spoken, though it come nearer than any of the former mentioned cases, yet it much differs from the charge imposed in our case.
Fourthly, I affirm, with much clearness, under favour, that the charge now demanded is not within the ancient acceptation or signification of the words, aids, mises, prizes, taxes, or talliages, which it is to be agreed cannot be exacted by the King, without consent in Parliament. Neither is it within the compass of the word subsidy, which may not be levied, but upon grant of it in Parliament.
Aids, if you take the word in a general sense, they were of two kinds : (1) Such as were aids and services too, as pur faire fitz chevalier, pur file marier. That kind of aid, common persons, who had seigniories, had right unto, as well as the King. No colour of comprehending this kind of aids, within the word, aids, pertinent to this question. To the second kind of aids, were sums of money from the subject to the King, by way of help, ad agenda regis; as for making of castles, building of bridges, helps for voluntary or auxiliary wars, or for the King to do his pleasure with, and the like.. Mises were presentations in kind of a benevolence, upon a King's first coming to his crown ; such are yielded at this day in Wales to a Prince of Wales. Prises are taking of part of the subject's goods from them to the King's use without pay; hence prisage of wines at this day.
1 Corrected from Stowe MSS. 187/2.
Fifthly, it cannot be said that the present case is to be stated so, as unless the charge commanded be obeyed, an assured infallible ruin and subversion of this kingdom will happen, and that instantly. In such a case, quid non is lawful, and happy he who by doing any exploit can save the ship from sinking, the body from falling.
Sixthly, it is to be observed that the principal command in the Shipping-Writ is not to levy money, it is to provide a ship ; which ship being to be provided at the charge of a multitude, in regard the thing cannot be done any manner of way, but by the means of that which is mensura rerum, namely, money, therefore the instructions in the ShippingWrit are not only apt, but necessary; that an assessment be made, whereby proportionable sums of money may be collected for the provision of the thing commanded. And thereupon it may be said, that the sum assessed upon every one, and in our case upon Mr. Hampden, is not a debt vi termini, but is rather a duty to be performed as a means conducing to the principal end. The refusal of performance of which duty is a refusal to obey the principal thing commanded, qui negat medium, destruit finem. And the principal thing commanded, being of a kind concerning the commonwealth, the King, who is the head, the sovereign of the commonwealth, and who hath, as incident to his regal office, power of coercion, is by law to exercise such his power of coercion, to inforce such as refuse to join with others in performance of that which is commanded for the commonwealth. And this being the true state and way of the proceedings in the present case, it is apparent, that, though the Scire Facias against Mr. Hampden be in the King's name, yet it is not to have execution as for the King's money, or as for a debt due to the King from Mr. Hampden. But as is manifest, if the whole contexture of the Writ of Scire Facias be observed, it is nothing else but to bring on a declaratory payment. That Mr. Hampden ought onerari to the payment of the 20s. assessed upon him. So that with his 208., together with the other money of Buckinghamshire men, assessed also upon every of them particularly, the ship commanded from the county of Buckingham may be provided.
Seventhly and lastly, having declared of what nature our case is not, I come now to tell you what the state of it is. The true state of our question must be made out of the whole record or pleading of the case, the matter of fact wherein the defendant hath confessed (as I noted in the beginning). In the writ of Aug. 11 Car. and in the Writ of Mittimus, there are causes expressed of the issuing of the writ of Aug. 11, or the Shipping-Writ; those causes are several, but not to be severed, all of them are to be laid together into the balance.
1. Piratae congregati, upon the English seas. 2. Piratae navigium indies preparantes, ad mercatores ulterius molestandos, et ad regnum gravandum. 3. Pericula are undique regno Angliae, in his guerrinis temporibus. Those pericula do imminere regno, nisi citius remedium ponatur ; where the word citius is a comparative word, relative to slow ways of remedy, amongst which Parliaments is one. 5. Regi et subditis convenit, omni qua poterint festinatione accelerare, ad regni defensionem, maris țuitionem, et securitatem subditorum.
Out of all those positions it appears that there is in the case real and manifest peril; not panicus terror, fear without cause; tempora are de facto guerrina, there is de facto navium congregatio.
Again, we must observe, that in this case: 1. The command is, ad proficiscendum cum navibus regis. So the King himself is to join with the subject in the common defence. Here is not a quod tibi fieri non vis. Here is rather a contributio than a tributio. 2. The ships and arms to be provided are to continue the subject's own in property. The King doth not assume the property of them to himself; he only commands them to be made and used for the common defence. This appears by the words ad proficiscendum cum navibus nostris. So the writ sets a distinction between naves nostrae (that is, the King's) and the ships to be provided. See the like of this, m. 28 and 29 Ed. 1, Communia, with the King's Remembrancer, for galleys commanded upon the like occasion ; and P. 5, E. 2, and P. 13, E. 2, with the King's Remembrancer, inter brevia directa baronibus. 3. The subjects are commanded, in this case, to be at the expenses, tam in victualibus, quam hominum salariis ad guerram necessariis. This I shall prove clearly anon, to be consonant to law, and warranted by many precedents in the like cases. 4. All the counties