guerra, upon every sack of wool five marks; | three marks upon woolfells; upon every pack of skins five marks: and this was granted of their own free-will, and this was to continue for two or three years: 22 Ed. 1, m. 2, Sine Roll. where it is there relicted. Next year, before Confirma' Charta, all the laity, except cities, boroughs, and ancient demesn, had granted to the king in subsidium pro guerra, the 11th part of their goods, 24 Ed. 1, m. 2, Pat. pars 2. And the summer before Confirma' Chart' an 8th granted by all the laity, except the cities and boroughs; and they granted a fifth, and this was still for the war, 25 Ed. 1, m. 11, Pat. The application is this: Those many aids of these several kinds having been granted for the war, divers men of that time did doubt and fear, that however threy meant it but for a certain time, yet being not so clearly expressed, it might bind them for the future; and that they so doubted, appeareth by Confirma' Char'. And forasmuch as divers of our realm are in fear, that the aid and taxes which they have given us before time towards our war and other business, of their own gifts and goodwills, might turn to a bondage to them and their heirs; and likewise for the prizes taken, we do grant for us and our heirs, that we shall draw no such aid, taxes, nor prizes, into a custom, for any thing done heretofore, be it by rule or any other precedent that may be found. Then my lords, for no occasion such manner of aids, taxes, or prizes shall be taken but by common consent; but it endeth not so, saving the antient aids and prizes due and accustoined. This being the state of the case, be pleased to observe the complaint of the people; this kind of aid, it is plain, was never meant there, when 'salus populi periclitabatur,' and may be levied notwithstanding the statute: for the act is only against such kind of aids as had been voluntarily granted by the people, some by merchants, and some by others, that they should not be taken against their wills hereafter, but by consent in parliament. Such is a relative, it is not general no aids, but no such aids.

Secondly, it refers to those that were voluntarily granted to the king for Scotland and Wales, and his other wars. And another reason why these aids that had been for the custody of the sea, could not be said to have come of their good-wills: for observe the abbot of Robertsbridge's case, it appears plainly it was done against their wills, for the custody of the sea, by virtue of the king's writ.

August before Confirm' Char' those that had given an 8th part, they did obtain expressly Jetters patents, that such their free gifts, hereafter might not be in servitutem, 25 Ed. 1, that is the very thing doubted in Confirm. Char'. Now those that had granted an 8th had no reason to do it, for they had a charter to free them, but the other had not: and therefore the statute might well say, some did tear. So upon the whole matter, there are no other aids but these voluntarily granted at that time, none in the body of the act but those granted

with a good-will, for those foreign wars; and the forty shillings received by the king upon every sack of wool, with three marks granted 22 Ed. 1, was by the merchants only for the war in Gascoigne; and thereupon it was enacted, that the king should not take such things but by consent.

There is also in the statute Confirina' Char' an exception, that all antient aids due and accustomed were excepted; and therefore what kind was meant in the body of the act, the exception makes clear, antient aids excepted; this was an ancient aid; and therefore never meant there to introduce a new law, that no aid should be taken, but no such aid. No imposition should be taken; but the practice of all ages shews this hath been levied ever since, from time to time, which is an interpretacion of the words of the law. This I do open, to make way to the statute De Tallagio non Concedendo. Thrice in the statute is this word (such) but that they should make use of that statute De Tallagio non Concedendo, of itself, without relation to that; whereas it will appear it is a mere extract out of this, and no statute itself: for debate of that; this De Tallagio is the same with that Confirm' Char', it is a plain extract of it, or some other thing at some other time. Sometime in some printed book, nul'lum Tallagium,' no aids shall be taken by the king: sometimes without notes of time when made, and at the best it is no more, but it is said it was made in the time of Ed. 1.

6

If we shall compare Confirma' Char', and the articles that were in this, we shall find it to be nothing but an extract out of that statute, and that it was no act of parliament. And to make it appear it was an extract taken out of it, observe the general heads, De Tallagio nun Concedendo. First the charter against prizes. Secondly, Another against wool. Thirdly, A general confirmation of the laws and liberties. Fourthly, A pardon to divers lords there.These are the things in which they would make it a statute of itself, all expressed in Confirm' Char' they do not differ in substance. A sixth head is the very year of the 25 Ed. 1, for the pardon of those lords was made 5 Nov. 25 Ed. 1, this same was sealed by tire king word by word, proved by the statute-roll, the very same roll that bath Confirm' Char'. the next fol. The monk did mistake this statute. No man will believe a monk, that wrote sevenscore years after, against a record.

I shall shew what was sent over into Flanders, and that was Confirm' Char. and did bear date the 10th of October, the king being then in Flanders, and was there sealed by the king himself. That it may appear, there is no manner of question of it, here is the very copy of the statute-roll; and the whole Confirm. Char'. is recited verbatim, in witness, 10 October 25, of our reign: whereas Walsingham saith, that this very charter, word for word, was sealed in Flanders, under the great seal of England, 5 Nov. 25 of our reign, and sent back into England. For the statute-roll

of the kingdom, 2 Rich. 2, Rot. Parl. This parliament taking notice of the king's tender age, they took much power unto themselves. There was to be a council for the governing of the kingdom in general; but the counsellors should be chosen to govern the state for two years, and these counsellors not to be removed from the king without the parliament; and more than that, his treasurer was to be governed by the parliament, and his counsellors chosen in parliament.

At the end of the Petition of Right, neither lords nor commons, jointly nor severally, can make a new law without his consent; and that your lordships, and none but you, are the interpreters of the law, wise king James did declare.

The next thing considerable is, tempus belli to defend it. It is when the condition of the time is such, that the current of justice and law is by such violence stopped, as judges do not sit, nor sheriff's dare execute their office, nor any court is open, especially the Chancery, which is Officina Justitiæ. It was said there was a time when the king might command this levy, to which they did agree: They did agree the king might command this levy when he hath proclaimed a war, though no stroke strucken, no danger, nor armies, nor opinion of any force coming; this doth put it into the king's power by their own consent. And by all reason, 19 Ed. 4. 6. Brian's Opinion. How many wars have been proclaimed in this latter age? No war denounced in 1588, though consulted of in Spain; and they did not think fit to denounce a war, saith sir Walter Raleigh; those days are past. Now they begin by the sword, not by the trumpet or herald.

In the next place, they say, if the king be in the field with his banners displayed; this they say was tempus belli. Cannot the course of justice sit then, but there must be a peace? 39 Ed. 3, Rot. 10. Did not the court of justice sit then? Our ordinary printed books shew what causes of law then were. And in Henry 6's time, in all our civil wars, and in Henry the 7's time, they sat then. But the true time, to make it tempus belli, is to make a war against the king.

In the North, towards Scotland, when the enemy approaches, is it necessary that it must be a time of peace, because the court of justice sits at Westminster-hall? There may be then a strong war in the North and West, as ever was in England, when the court of justice sits here. That tempus belli may be in some places of the kingdom, and in some places not, appeareth 33 Ed. 3, and who shall discern if there be any danger?-They agreed in general, the king may do it, and that the power of discerning is in his majesty: I shall leave it in the king, till Mr. St. John finds a third person to do it. 13 Hen. 4, for the murage, they say that this doth only charge those things that are venalia, for men are not compelled to go to market. How shall they then live? True, it is not compulsory to go thither, but it is compulsory to pay the money.

1 Ric. 2, m. 176, pars 2. A petition from the city of London, to bave all owners of lands to be rated with them in the danger of wars, not having lands in tenure to do it.-This doth make for us; that not only merchants, but every man in the lieu of tenure to do it. The lord St. Albans saith of Henry 7th, that kings may fall from their absolute power when they see cause, but not be compelled to do it. They say supplies are called those things, sine qua non the kingdom may not be defended: And because there is a way by parliament, therefore no other way.

They say, it will not be affirmed that the king hath the same power for an offensive, as defensive war; I affirm, nor defend nothing; the parliament is a great body, and the kingdom may be lost in the interim. Then they alledge there is forty days for essoinage, and the like for parliament. Many times things are impossible, and inconvenient to be done by parlia

ment.

First, impossible; the necessity may be such that it will not brook the delay of a parliament. 48 Hen. 3, summons to the Cinque Ports. They come day and night to the king when any danger is. It hath been said, that there are seven months between the teste of the writ and the ships being at Portsmouth; in that time a parliament might have been summoned. The great one, and the true answer is, that this resteth still in the king's judgment. If the king hath intelligence that foreign states will set out the next spring a fleet, and for conveniency of his people sendeth seven months before-hand to raise this aid; hath the people any cause to complain of this? Mr. Hampden hath not paid the money yet, being two year● after.

If they should have gone by parliament, see what rubs in this case might be. Forty days are spent before the parliament sits: Then when they meet in parliament there is a ceremony in choosing of a Speaker, solemnities in these take up time: Then the lords take things into consideration, then they must have conferences and dispuses with both houses; before they agree, the kingdom may be lost: In the mean time, suppose this comes in some reasonable time, to make assessments first in the cities, then in the burroughs, then particular assemblies, then divisions; and after all this, there must be collectors appointed to levy the money; what a great deal of time is spent in all this, every man may see.

Our county, say they, is an inland county, and they cannot find a ship suddenly; and therefore the greater the king's mercy and favour to lend them his ships instead thereof. When all this is done, and ships provided, reasonable time must be allowed to sail from the North to Portsmouth; but this doth solely rest in the judgment of the king.

31 Hen. 8, cap. 8, an act of parliament not to take away any of their inheritance or lands. Here is no lands or goods taken away; only let them contribute to the defence of them

selves, and all is done. Mr. Hampden hath had none of his goods touched. They say, for shipping it was done in king John's time at the subjects charge; but they do not meddle with land-service at that time. 15 Johan. 13, dors. Rot. Claus. king John had business beyond the sea. That this was rather for beyond sea, than the kingdom, appeareth thus: The writ saith, to have such ships as would carry eight or six horses, and that must needs be for some foreign service, and not for land-service at home. And it appeareth, Rot. Claus. m. 1, dors. the king was well landed at Rochel.

For the terms of the law, which concerns bidage and other things, Bract. 37, and some services introduced by common consent, I will not trouble you with it. To come to the case of the abbot of Robertsbridge, that arms was laid on by the statute of Winchester. That will not serve, arms was long before that time, They say the assess was in time of war; the French had burnt Dover, 23 d. 1, and that the assessment was not made by the king's authority: but it appears it was by the king's authority, by virtue of his writ, 25 Ed. 1, Lo. Treas. Rememb. Leybourne was admiral of all the kingdom; and was Custos Maris et Maritim' for some parts: but that it was for land-service, and not for sea-service. Custos Maris et Maritim' are terms convertible; he that doth one, defends the other. They have left no stone unturned to take away the force of this case. They tell us now, the clergy was put out of the king's protection this year, and so it appears in the Exchequer; but they have not shewed any such writ delivered into the common-pleas, only Spencer's word of mouth, that they should have no privilege there. Suppose it were so in other courts: 25 Ed. 1, it appears plainly, that the clergy came all to be in the king's protection, and gave ransoms: and this cause was not till Michaelmas after. And whereas it is said, this abbot's case did only concern the land-service, it proveth both the one and the other; money for the sea-service, horse and man for the land-service.-Oh! they say, 29 Ed. 1, Mag. Char. was not observed; and instanced John de Gray and Philip's case. Whatsoever was the practice of that time, is not material. And for that of the Charter of the Forest, they say, though it be there said, 'Nullus emittat vitam vel membrum pro venatione nostra,' yet one was beheaded. But what is all this to the safe custody of the sea? Nay, they have not shewed your lordships, that there was any thing in that great charter for the custody of the sea. 51 Hen. 3. fol. 84, Britt. 117, Flet. et Fitz-Her. Lord Coke on Littleton. Perhaps question might be about this in the exchequer at this time, the case of Shoreham discharged of land-service, because they found shipping. They that were nearest danger most fit for that defence; as the king, in the tenth year of his reign, sent only to maritime towns. 2 Ric. m. 42. They say Beverly was discharged, because it was an inland town, therefore no inland town ought

VOL. III.

to pay. A writ directed to William Russel, adiniral, commandeth only the sea coasts.

13 Ed. 3, m. 35, Rot. Claus. Part. 1, afterwards discharged, because of other service. And for that of Beverly, a complaint that they were to contribute to such a town to find a ship; they say they have privileges, but the special reason why it was freed, was for reverence the king did bear to St. John de Beverly. Mr. St. John knows it; 120 ships granted to the two admirals, North and West, for service beyond the sea. 31 Ed. 1, ' de inveniendo' horses, because of great business in his wars abroad, he bound them to make galleys for foreign service. True, the king at this time was in Scotland, and kept his Christmas there. Then come to 31 Ed. 1, as though he should do it by service of the Cinque Ports: Newcastle upon Tyne at their own charges: but when into Scotland at the king's pay, then they came to this. 10 Ed. 3, m. 6, Rot. Claus. sent for ships into North-Wales and South-Wales; the writ did say, that wages used not to be paid for such service; and did express in his writ, satisfaction should be given unto them, not of right,' but de gratia: and reciteth that clause, that the people were bound unto it. 2 Ed. 3, 16 dors. That there should be three hundred pounds to relieve the fishermen, the king should not have it of the people of that town. They say all these records being matter of fact, did occasion the making of many statutes of redress. 14 Ed. 3, cap. 1, great aid for Scotland, France, and Gascoigne; 15 Ed. 3, m. 9, contrary to Mag. Char. 22 Ed. 3, m. 4, 36 Ed. 3, m. 9, no goods to be taken without consent: these are things comprehended within the Petition of Right. 37 Ed. 3, m. 2, speaketh only of the great aids. 23 Ed. 3. Galleys made; they say the king paid for them: that is, upon the king's own promise; but they say that is nudum pactum. Then they say, is the king's word nothing? 13 Ed. 3, m9, called a parliament, propounded as on the king's part; they are not liable to the defence of the sea. If the commons have nothing to do with the | guard of sea, why is it propounded unto them?

20 Ed. 3. m.- That the guard of the sea henceforward be made at the charge of the king, as hath been promised, and there the people discharged. They do not affirm in their own case there was any right. 21 Ed. 1, rot. Franc. m. 9. 2s. on merchants wools, and 6d. poundage for a certain time, and to cease tam quam, &c. 22 Ed. 3, 28. upon a sack of wool may cease. All these things were granted for foreign wars; and if the cause should cease, then the thing should cease. 2 Hen. 4, commission for building of galleys, the king would confer with the lords about it: then 19 Hen. 4, 17, 21. touching the guard of the sea, not bound unto it.

4 Hen. 4, 28 m. Tonnage and Poundage not to be taken without common consent. A protestation of the commons doth not bind the king, and concluded with nullum tempus occurrit regi.

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