Then he did object, there was another way of supply of extraordinary means, as mines in other men's lands; and here he remembered m. 3 Rich. 2, Prerogative Comm', difference taken between annual and casual revenues for Defence. Then he objected, Rot. Parl' 6 Rich. 2, 11, 42, that the king would live of his own revenues, and that the mines, &c. should be for the defence of the kingdom. Onslowe, who argued the case, said, that the king was the most excellent person both at sea and land; therefore the royal fish at sea, and the gold and silver mines at land, were given to him, because he was able to give a stamp on money. And so 2 Rich. 2, they of London prayed that the king would not put them to charge, but live on his own, and so your authority vanisheth into smoke. lesser were for this purpose. And for this saying that the statute of Winchester, 13 Ed. 1, doth enjoin keeping of arms, and thereupon all defence comes, that statute was repealed by Philip and Mary, and set a-foot by king James, and again by him repealed. I shall shew before the 13 Ed. 1, many records for land-service long before: for that statute doth only set a form of arms, and is not the beginning of arms. So for the objection of the king's revenues, be it more or less. Now I shall come to Tonnage and Poundage, the darling argument; which I affirm was never given nor taken, of itself simply, on extraordinary defence; I have seen all the grants of it: it may be when there have been wars abroad, and then the subjects in parliament have given Tonnage and Poundage with Tenths and Fifteenths, they have been all said to have been for the defence. Tonnage and Poundage hath been given and taken merely for an intercourse of merchants; and in that sense the king said, was granted to the crown. I shall make that appear by reason, and out of the grants themselves and other authoritics. The king must live, forsooth, of his ordinary revenues. M. 3, Rich. 2, which expresseth, that the king at that time would do so; that the king, by advice for salvation of the king-we do and must pursue those ends for which it dom, would use these things given unto him; that indeed was a reasonable thing for that time, but must it be now turned for a necessity? 6 Rich. 2, m. 42, pars 42, that good government be about the king; then they petition that he would live upon the revenues of the crown, and that all wardships, releases, marriages, &c. should be for the defence. The king is very willing to do and ordain in this case, as by the lords of the realm may be thought best for his honour and profit; this is not a granting of the thing, but a referring it to his lords, at best it is but a temporary desire! -But oh! he hath the old Customs, and PettyCustoms, Tonnage and Poundage; of the legality of taking of it he will not speak. If the king doth impose it on the merchants, he needeth not to take it of his other subiects. Duties to the king in this year, came to 300,000l. and that Tonnage and Poundage was granted for ordinary and extraordinary defence. 3 Rich. 2, 5 Rich. 2, 1 Mar. granted on condition, that by the statute of Winchester, they were bound to have arms, and no such statute for the sea. If Tonnage and Poundage were merely for the defence of the sea, how was the kingdom to be defended before in the time of the Saxons? At the first it was 6d. a year, then to 2s. and 3s. for tonnage and poundage; then 3s. upon a ton of wine, and 8d. a pack on merchandize, that was all for tonnage and poundage, the rest was for old customs. If this was for extraordinary, how was the kingdom defended when this was given for half a year? Truth, it was for defence of the kingdom, that is, with relation to the intercourse of merchandize; the recital 1 Jac. saith, it hath been taken time out of mind. Hath tonnage and poundage been given time out of mind? Then it was before Richard 1st's time: H. 6, he had it for life, the statute doth express it as plain as may be; time out of mind is beyond the memory of any man living. The very interpretation of the statute explains it to be for the safety of the sea, and intercourse of merchants. In all ages before the granting of tonnage and poundage, the kings, upon a general defence, have had other aids than this by their own power. Ordinary charge for an ordinary defence.-I could have given a legal answer, that it was not given unto the king; no act of parliament for it. Yea, but it is taken de facto. Shew your instruments then by which it was taken; that had been a general answer. I shall answer all this; but for Tonnage and Poundage, I shall refer it for a particular place. They say, the courts of justice are maintained by the king, the king hath a profit thereby, but the maintenance of them cometh out of the subject's purse; and the first-fruits were for the defence of the faith, that no heresy should creep into the church. Therefore, because the king is lord of the English sea, he must defend it at his own charge, and not command the body nor purse of his subjects towards it. A pretty argument! He saith, the king hath the old customs, which are the ancient inheritance of the crown, and so for petty customs, and that these must go for the defence of the sea. See a judg-out all manner of question, 6 Ric. 2, m. 8. ment in the Exchequer, in Edward 1st's time; search into the Fine Roll 3 Ed. 1, and see for what causes these old customs were. It was wever said till he spake it, the old customs or VOL. III. But I shall carry the king's honour along with his power and practice: Rot. Franc. 2 Rich. 2. 7 Hen. 4, m. 23, Rot. 11. Tonnage and Poundage granted to merchants to guard the sea for intercourse of merchandize; which sheweth plainly it was for that purpose. To put it with Franc. Roll. pars 2. Merchants and mariners had Custodia maris, and the king granted them 6d. a pound: doth any man think that he would trust the safety of his kingdom with merchants 3 P 6 till after St. Andrew's day, because he was busy in preparing his shipping; so they came about shipping when it was gone to sea before, for the. writ of summons was the 1st of October, the day of meeting after St. Martin's; that to the archbishop was the 31st of September; the ship writs Aug. 28, and Sept. 31, then the rest, the 3rd and 6th of October; but all long before the meeting of the parliament, and so all grounded upon (it may be.) And to say that the king, because he did a thing voluntarily, therefore he must be necessitated to it, I know not what argument it is. Henry 7, indeed, did bring things to parliament for the advancement of his own ends; did queen Elizabeth send any of her commands out of parliament? and yet the subjects gave her subsidies. 24 Ed. 1. Summons. there for the clergy to come if the truce did no hold with France. I think it not fit at all times, when it standeth upon intelligence, to communicate it to the whole people. 26 Aug. Summons to parliament, divers writs in February and April before, no money granted in these parliaments; therefore to tell us it might be by parliament is a poor argument.-Walsingham saith, Allegiance bindeth the king to protection, as well as it doth the subject to tribute. and mariners? It was merely for the guard of | the sea for merchandize; express exception in the very grant, that they should not be bound by this to help against invasion of enemies, unless a royal power come, regali potestate excepta; therefore this was no extraordinary service. 7 Ilen. 4, Rot. Parl. is in the same manner. And in the Close Roll, that the Custodes maris should put there a lawful power for the safeguard of the sea against the enemies of the king, except a royal power; then notice to the king, so it must be understood merely for intercourse of merchants. I can shew you a Book-case for this, 9 Hen. 6, 12. Quer. Case Title Custom. Bract. 26, he saith, That Aids and Subsidies are granted to the king, to the intent that the king, by his admiral, should guard | the sea, to the end that merchandize may pass and repass; not a word of the defence of the kingdom. And in anno 11, the king was at great charge with his navy; cast up the accounts of the sea duties, and then it will appear there is not left to him a penny for the defence of the sea. Impositions and prizage of wine was to furnish his house, and not for defence of the sea. Not only upon this, but there was an ancient writer that wrote the Doctor and Student, whose name was St. Jermine, who wrote in Henry the 8th's time; he tells you, lib. 2, c. 15, fo. 153. The king, out of the old customs of the realm, as lord of the narrow seas, is bound twice in the year to scour the seas, but not against all outward cnemies, but only to put away pirates and petty robbers. History of Tonnage and Poundage. 25 Ed. 3, Parl. Roll. m. 11, the commons did pray, that 6d. of the 28. a sack of wool, and of a ton of wine granted, that the merchants might have safe conduct over the sea, if it would please the king: the merchants for that would make their own couduct. All the Rolls go in that manner. 3 R. 2, 2 Hen. 4, and they cannot shew that Tonnage and Poundage was ever granted for extraordinary defence, unless for some great defence. Next he alledged that sea duties were borne by every man in the kingdom, and that secundum statum; 22 Ed. 3, m. 4, Parl. Roll, which says it was in charge of the people, et nemy des merchants. All men must bear proportionably their share in the charge of defence; what consequence is this? because the first or second year out of the subject's purse for their commodities, therefore their lands shall be discharged in cases of extraordinary defence. Oh! say they, but this may be done by parliament. By a may-be a man may answer any argument; but a may-be will never answer a bill. 23 Ed 1, Rot. 3, dors. the writs were in October, the parliament at St. Martin's in winter. In that to the archbishop of Canterbury, the king doth but a little compliment with the clergy, and telleth them he knoweth what dan gers were abroad; the business of shipping was done before the parliament, so the parliament might consider of it afterwards. That it was done afore, appears; this parliament was not held at the day, but the king doth prorogue it The subject hath a double protection from injury and wrong, in times of peace by his laws, and in times of war by his power: must this be done by the king's single person? Ne, it must be done by the bodies of his subjects at their charges. Indeed it is fit that particular soldiers should be paid.-Oh! but they tell us, that Fortescue, Chief Justice of the King's-Bench, to shew the law of England to be better than the law of France, saith, that nothing could be taken from the subjects but by parliament. That is in the ordinary way; doth he say, that no man shall contribute to defend himself in imminent danger? Ne verbum quidem.' 27 Ed. 1, m. 7. Pat. there the king saith he did not buy lands, manors, or castles with it, but did it to defend the whole realm; no more doth our king, but only to defend himself and the kingdom. And In 33 Ed. 1, rot. 10. It is objected that a clerk sued for his salary, and had it allowed him, and the king supports his courts by the fines. But they came from the subject. may not the king give a salary when he pleaseth? 14 E. 3, c. 1, and this were prest to prove, that aids, though granted in parliament for defence, should not be brought into example. These were not to be spent for the safeguard of England, but Scotland and France; and so it comes not to our case. 48 Hen. 3. When the tenants came with greater charge than their service required, non trahatur in exemplum.' True, if tenants by knights service at that time did no greater service than they were bound in time of danger, it is but reason that it should not be drawn to be yearly, to make their tenures higher. Plowden fo. 315. Wiseman's case. A covenant to stand seized to the use of the queen, in consideration she is head of the commnonwealth, held no good consideration to raise an I use, because there wanteth quid pro quo; and the king, er officio, is bound to do that.-Under my lord Coke's favour, it was not in the case. The case was upon divers good considerations, and he put this in by way of admittance. I can shew when this was declared to be no law. Next, they alledge, the king is in possession of the service of the Cinque Ports, and of tonnage and poundage, and this appears not to be expended; and of other duties for the defence of the sea, and Lex non facit saltum.'-Tempus belli, I reserve for another place, for that is one of the three things considerable in this argument. That learned gentleman, Mr. St. John, did confess that (as necessity requires) when the safety of the kingdom is in danger, the subject is bound. If it were material to make it appear whether any thing were spent or not, it should have been pleaded at the Exchequer, if he would have taken any advantage upon it. man that can do it. How shall a man know how to defend, and not know what the defence will require? whether ten or twenty thousand? and must it not be proportionable to the offence? Is not this suscipere majus et minus? Where is the argument, that because aids, which were uncertain at common law, are made certain by act of parliament, therefore must this be certain, for which there is no act of parliament ?-Oh! but the Taillage in ancient demesne and burgage, they are certain; and Mr. Hampden he was assessed at 20s. it might have been as well 201. this is uncertain, it doth rest only in the king's mercy. The writ taketh care they shall not assess unequally: if Mr. Hampden be too high assessed, Mr. Hampden might call the sheriff in question; but the sheriff of Bucks is rather to be fined for setting him at so low a rate as 20s. We know what house Mr. Hampden is of, and But admitting they had been all expended, his estate too; for any thing 1'know it might yet the property of the subjects goods, saith he, have been 201. well enough.-But to the legal cannot be altered out of parliament. He did part, some must be trusted with it, and who agree the kingdom must be defended, and did should be but the sheriff? and the parties not yield, that for the manner of it, it did not belong without remedy if over-rated. Then they come to the people. 6 Ric. 2, 2 Ed. 1, men and to authority by jurisdiction, and that they that money belong to the wars; the commons did have privileges are not talliable, nisi pur acknowledge it belonged to the king for order-grand cause,' and that escuage must be set by ing in all times; the caution of fornier ages was to demand it in parliament. We shall shew in all ages, the king did it without parliament. This is a pretty thing, that the king is to direct the war, and yet shall have neither men nor money without asking his subjects leave. And for that of property being taken away, in the opening of my argument I cleared it, I shall not trouble you with repetition of it.-Oh! but they tell us, the king hath borrowed money to spend in the wars, and promised to repay it, and that without a Salvo of his right; this is an argument they think worth consideration. 48 Hen. 3, 16 Pat. I know no law that barreth the king from borrowing of money, as he hath occasion. Is it not of necessity that the king must borrow, notwithstanding both ordinary and extraordinary? Must the king carry millions about him? His occasions may be such as he must borrow, and also fit it is that it should be paid again. Doth any man think, that if the king doth borrow 10,000/. of any particular man, he must not be repaid again? 48 H. 3, m. 15 or 16. Power is given to the earl of Leicester to resort to the city to borrow money. Great reason, because it is the chamber of the king. -But the king's money not coming in, he desireth to borrow so much of the city, and it shall be paid when the other money cometh in; the end was for the defence of the kingdom. But that therefore the king cannot command aid from his subjects, because he borrows of his subjects, is no good argument. Then he saith, the law delights in certainties, as in the aids 'pur file marier,' and to make his eldest son a knight; these are certain, 25 Ed. 3. All defence is uncertain, till we know the offence; certainly he must be a wise parliament, which is by act of parliament; 17 Johannis, that it was called Magna Charta; and so it was in Matth. Paris, and confirmed by Hen. 3.-He speaketh of it as a thing of story, and these were for foreign wars, as so not to our case. Oh! but it was admitted every man was to keep arms. 13 Ed. 3, 11 H. 7, cap. 18, and whilst they are in their own counties, to be drawn out of their own charge; but not to be drawn out of their own counties without wages. Henry the seventh, afraid of his own title, makes a law, that no man should be questioned for being with the king in arms: this was to take away the occasion of the people's talking, whether they went upon just ground. That many armies have been paid by the king. 2 Ed. 6, cap. 2, 28 Hen. 8, the rebels in the North the king promiseth satisfaction. 11 Hen. 7, cap. 1, the duty of the subject is recited in it.-What argument is this? We shew in all ages where the king commanded his people to attend him or his lieutenant, and you tell us that he paid other armies. 19 Hen. 7, doth extend to wars without the kingdom, as well as within. 11 Hen. 7, this last did expire with his death, this doth appear plainly, this was by especial gift by the king. 4 Eliz. Dyer 211. Expressly it did not extend to the service of any other king but him. 25 Ed. 3, cap. 8. None constrained to find men at arms, but those that held by such service. This must be understood with relation to the tenure, they were not to come upon common summons for escuage; but when the whole kingdom was in danger, that they should not come, was no excuse.-Oh! 26 Ed. 1, Reygnod de Gray durst not levy men without pay. The * * Baronibus elegendis pro hominibus Scot. marginal note clears this, and so no part of our | go against Scotland: yea, that is another thing, question; and it appears by Walsingham, fo. si contra Scotos;' and that distinction, upon 74, 75, that the king was actually then in Scot-stating of the case, will go throughout 14 Ed. 3, land, where he fell from his horse, and lost two of his ribs. In the next place they say, Trin. 31 Ed. 1, there is a refusal to go without pay. The wardens of the marches of Cumberland and Westmorland writ to the barons, that whereas the Scots lay near the marches with a great army, that the people would not march out of their counties without pay.-This is easily answered; there were the East marches, and the West marches of Scotland, several counties belonging to each: what reason had they to go out of their own marches, unless they had money for the keeping of them in their absence? Rot. Pat. 10, or 11 Ed. 2, pars 2, m. 26, for war of Scotland, 9 Ed. 2, the same discharged in the county of Norfolk. 13 Ed. 3, m. 38, the abbot of Ramsey, because he remained in his own County, discharged; it was no absolute discharge, but dum sc intendit. 21 Ed. 3, Rot. Franc. Some are discharged from the custody of the sea, because they were prompti at home; some for finding hobellers and archers, and this was by reason of a grant in parliament; some were discharged, because of their stay at home to guard the coasts. This proveth the right of the personal service, and of the contribution. Another objection is that of 21 Ed. 3, Rot. Franc. that they should not be kept continually in array, but suffer them to stay in their own counties; but they were to go as soon as there was any notice of an enemy. This was for the wars of France, and not for the defence of the kingdom. Oh! but 20 Ed. 3, m. 6, Rot Scot. there were Exploratores et vigiles,' which were Incolarum;' but how de assensu et voluntate? But this was nothing, for it was with assent in the Northern parts, and had been done in former times against Scotland. Then the 100 Roll of Feversham, which I conceive rather maketh for us, than against us; for the castle of Tunbridge is to levy 157. for the king, pro salvatione of the castle, and to levy it by distress. 14 Ed. 4, cap 19, the king could not compel the subject to sell victuals for wars, nor to provide for the castle in the town, 29 Ed. 1. That was for Scotland for payment of victuals, and who can command a purveyance but the king? and that of the castle, it was the victualling of his own castle, and subjects were bound to victual their castles, 8 Ed. 2, rot. 99, the marches provided for victuals, and particular men paid for victuals, but they do not shew from whence that money came. The next is horses for the king's service marked, that if they were lo-t they might be satisfied for. 24 Ed. 1, Robert - lost a horse worth 20 marks, and received satisfaction in the Exchequer, somewhat also for wages, m. 26, Ed. 1, rot. 105, 106. That is only a Concordat how men should be paid, what the horsemen should have, and what the footmen; for Yorkshire, Northumberland, and Cumberland, were to have no wages from the king, but to 34. for castles. 24 Ed. 2, 72, 78, dors. John de Sandell. Berwick was taken from the Scots, and for furnishing of Berwick castle, the people are compelled to trust him. Oh! but the prisoners taken in the war, and hostages, were at the king's charge. 8 Ed. 3, allowances in the Exchequer for it. 5 Ric. 2, cap. 11, examined in the Exchequer.-The king, if he hath a prisoner taken in the war, he is to have his ransom; shall not the king pay for his charge? 4 Ed. 2, Rot. 12. Roger de Salvage, a Scotish prisoner, the king bore bis charges; so because the king payeth the charges of a prisoner for which he hath benefit by his ransom, therefore he is to defend the kingdom. Dyer 162. A man in execution cannot be forced to go to war. Our writ doth not desire to send men in execution to go to war, for there are enough besides them. Then they object the borrowing of money, and the king paid again for it, pro negotiis urgentissimis. The king may have occasion to borrow money, and reason he should pay it; nothing to the question. But the case is, whether all the people, for their wives, and for their families safety, and for the safety of the whole kingdom, may not be compelled to contribute to it? The abbot of Gloucester gave money to maintain a damsel, the king took his money for the present, and paid it back again. This was ad exonerand conscientiam: that for things taken away without warrant, the minister should answer for it, not pay and repay, but shall hold themselves satisfied with reason. But they object, that 26 Ed. 1, a commission went out to inquire, de rebus captis, sive pro custodia maris, &c.' and the king saith, that il fera taunt que se tenderont a payse pur reason.' True, 'se 'tenderont a payse, &c.' which is not to be understood, that the king will pay or repay; but that they should hold themselves satisfied pur reason, that is, he would give them reason why they should be satisfied." The Third Day's ARGUMENT of Sir EDWARD May it please your lordship; I shall go on where I left; only inform you of one Record, 1 Hen. 4. The writ that went for the array of the bishop of Canterbury, which doth recite, that whereas there was danger upon the sea, he and all his clergy should manus apponere adjutrices.' I speak of this, because it was at so low a time as Hen. 4, and it was, pro salut' populi.' 6 Coia' PI' 14 Jac. Between Weaver and Ward, command came from the king and council, that the Train-bands in London should be mustered for the training and making of them ready to defend the kingdom. One in the training hurt his companion, and he thereupon brought his action against him: and this was pleaded in bar, that he was mustered by pecial command; and this was adjudged a good justification, because it was for the preservation of the land: 28 Hen. 8, which recited that the king did pay them in Lincolnshire; but for the other, he saith, that he shall remember their pains. Coke saith, Chronicle Law is not much to be regarded. True, he saith, Chronicle histories may shew us the times, but if it tell us what the law is, we are not to believe them. No historian, that I ever knew yet, ever read the Records, and therefore no true history; for the most part they are taken up in Paul's, or the street. To take something in consideration, by way of stating the case, upon the statute Confirma, Char. and the other De Tallagio non Concedendo, that is, that no aid shall be levied but by consent in parliament. I shall now go on. It was objected, that by the statute of William 1, the people should enjoy their lands freely,sine omni injusta exactione sive tallagio. This was for money to be received for a general thing; but that it was not for this thing appeareth in one chapter, that knight-service tenures should do what be- The first statute is, that no such aid shall longed to it. The rest sunt fratres conjurati be levied, the nature of it, and the acts themad monarchiam Angliæ defendend': 14 Ed. 3, selves rightly compared, there remains no scruchap. 1: 25. Ed. 3: 1 Ed. 1, Walsingham 184.ple against the case. Three things for the true All these are set aside by the statute, and concern not our question. Ours is rateable and proportionable, according to old practice. And it is one thing to compel a particular man, and another thing to set an equal rate upon the whole kingdom. understanding thereof must be considered. First, What kind of aids had been in use before 25 Ed. 1, and for what they are taken, Secondly, How and what remedy was given by that statute. And, Thirdly, How far that statute De Tallagio non Concedendo is in force and authority in this case. Ult. Feb. 3 Car. A Commission of Loans for the Defence of the Kingdom. They mean For the first, it appeareth in the common the commission, which was a consideration to story, that in 21 Ed. 1, the king of France had levy monies, by reason of the necessity of the seized all the duchy of Gascoigne, upon pretimes. It appeareth in the Journal Book to tence that he did not appear at his parliament be for impositions, or otherwise to raise monies at Paris upon a summons. Thereupon the first not concerning this question. It appears by took a course for the regaining of his duchy, that, that the king gave a gracious answer unto and the war continued with various success, it; and that it was done for the present time till 25 Ed. 1. And he had also war with Scotonly, a warrant for advice only. It was done land and Wales. For though Wales was taken to raise money in general; but no determina-12 Ed. 1, yet there was one Madox who pretion of right, and said, at your desires it shall be cancelled. Then there was a commission for Loans, 5 Feb. 2 Car, and this they say was for the defence of the kingdom. It appears it was for the defence of the Palatinate and Denmark, and for that a bishop was sentenced for his mistaking; Mr. Pym brought up the Articles against him. I shall now come to an objection, worthy the making by Mr. St. John; and because it is a thing not truly understood, but taken at random, I shall crave your lordship's patience: and that is the statute De Tallagio non Concedendo, 25 Ed. 1, made after the king went into Flanders, and agreed upon here by the prince as viceroy, and afterwards sent into Flanders to be sealed by the king, as it is put in some books. The words are general: no Taillage to be taken without the consent of the lords in parliaments. For this I desire the liberty to inform you of the story of the times, to make a better answer. This is not all, in some Statute-Books it is not mentioned; in others, no king's reign mentioned. And in Ed. 1, no year of it, and now they would apply it to the 25 Ed. 1, and this they would ground upon the compelling of Aid, 23 & 24 Ed. 1. And the commission in 24 Ed. 1, did issue upon that, and consequently that this aid was the aid complained of, and then redressed. Walsingham, a monk of St. Albans, they rely upon for this, that wrote some seven-score years after the thing was done. Sir Edward And be tended himself to be of the blood of the prince, |