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into Flanders, and that was to inquire of those grievances in the articles, and among the rest there was de lanis et coriis' taken away pro | defensione maris;' and to that the king saith there, pay pour reason,' There hath an answer been given unto this, and much stood upon, that the king should say upon this commission to inquire of grievance pro custod' maris,' if it were so il ferra taunt ils teneront appayer pur reason.' [Veu le Parol del Record.] That this should be no more, than that the king would give a reason why he did it, I question. As if he should send forth commissions, and afterwards dispute it, or if he did do it, whether lawful or not, that is not the way of sending out commissions. Suppose that the king should say he would give them a reason for it, this commission did go forth to enquire of those grievances. And if the king had not said he would have given any satisfaction, yet it is enough that it is inquired of as a grievance. It is a wrong upon the subject, princes may lay taxes, yet the subject doth not call for satisfaction. A princely word that it should be done. -But when the king doth say pais pur rea'son,' to think, that that is no more than that he would give some reason for it, is a very strange inference. In a bargain they use to say, you shall hold yourself content with reason, you shall not have your own demand, but he is satisfied one way or other; so here.

Those things which were taken before 25 Ed. 1, complained of, and that confessed by Mr. Solicitor; so as I conceive, though it had been enough that there had been an inquiry of these things as upon a complaint, though there had been no more answer. If any answer make it better, it is no answer to say, that they should have satisfaction by words, but either in money or releasing debts; if none at all, confession had been enough.

I shall now come to talk of Mr. Solicitor's exceptions to the 25 Ed. 1, where he endeavoured to shew that this money for shipping could not be intended within the body of the act; and if it was, yet it was excepted in the saving of the act.

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The objection stands thus. No aids were charged but such as were granted, and we do not show that these were granted; and there is a word beyond that, (prizes) and how far that extends, I leave to your lordships judgments. But if in the body of the act, yet excepted in the saving all antient aids due and accustomed ; for the saving such an aid due and accustomed surely was meant there. In this answer lieth this question, whether these were the antient aids due, or not, by the common law? this will stand or fall on the body of the argument. I shall tell you what these aids were, and they cannot be these; there were other aids inertioned in the charter of king John, as pur To begin with a record. 21 Ed. 1, Parlia- 'faire fitz chevalier,' &c. That which takes off ment Book. A petition of the commons, and all, is, If these aids were part of the grievance, they did desire restoration of all their monies. though for the defence, they cannot be meant 25 Ed. 1, there were two de lanis et victuali- in the saving, for that destroys the purpose of bus' within that commission so the monies the act. And for that saving, it never came in and the things taken were inquired upon by by the commons, nor the lords; but the form that commission, 26 Ed. 1, were for defence, being so, to grant in part, and as the king would and here' Ordinatum est per concilium quod grant it so they must take it: Histories do say rex satisfaciet eis quam citius poterit.' Upon they did not like it, and so they desired an abthis petition they desired satisfaction. For solute act. It was said, that aids and defences goods taken upon the aforesaid commission, 26 were meant of foreign ones. If the king and ordered by parliament, that the king should council were so wary as to put in such a saving satisfy them so soon as he can, so that they as before was not in the act, it shews what should hold themselves content, Ita quod se care they had to have that they could not have. contentos haberent.' So that you see, not If by the laws they might have them for foreign satisfaction by reason, to justify them, but the defence and not at home; they that put in the king should satisfy them one way or other. It saving would have put in a distinction. I shall is that they should have something for it, and leave the consideration of this act to your lordnot that they should have reason shewn them ships, how far it shall extend to aids for the dewhy they should have nothing. fence of the kingdom in that case.

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But I rest not here, there is one parliamentroll remaining before 4 Ed. 3, and that was 8 Ed. 2. Pro priore et fratribus Sti Johannis Jerusalem.' It is there set forth, that Ed. 1, did command his treasurer and barons of his exchequer, to make satisfaction for wages taken in Scrutinio to the clergy and laity, veluti pro 'lanis et coriis;' and that satisfaction should be part by money and part by releasing of debts; so as thus the king bad no meaning, 26 Ed. 1, to pay back money presently, but would give them satisfaction one way or other, by payment of debts, or releasing of debts, as was explained by that of Ed. 2. Another record P. 27. Ed. 2, Rot. 36. Satisfaction was there given for an eighth and a fifth.

I shall go on, and conclude with the statute De Tallagio non Concedendo. That act of the 25 Ed. 1, was indeed so well penned, that it gave Mr. Solicitor a very probable colour to make those plausible answers. The lords did desire a better act, not with these words, 'No such Aids;' for such' is a relative word, and those are dangerous words.

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Next, if no more be meant by the saving than pur faire fitz chevalier,' &c. and yet to have left these in the general, and not in the particular, had left a way open to question what they had been. And in Walsingham it appears the lords were not contented with it, though it was signed and had passed the great seal. It is true, that at this time a pardon did

And to say shipping is not meant, because of the practice since, is nothing. Let me establish once the laws, and no matter for the practice. If the laws be once settled, we must reduce precedents to laws, and not laws to precedents.And for the practice yet, still the subject makes a continual claim against them.

pass to those lords; the words are so strong, and so not within these words nullum auxilium that this was denied to be an act: and much ponamus.' And so all the practice ever since said, and very colourable too, to that pur-will well stand with this act. pose. It is true, that this act is no where on record, that we find; but for that an answer hath been given before.-It is said, that is no act, but only penned as a charter; that exception was once made by the king's council on another occasion. Acts of parliament were then penned so; Mag. Charta, and Charta de Foresta, are but in form of Charters.-Yea, but we cannot tell when it was. How many acts of parliament are there which we know not when they were? Historians best tell that. It is hard to find it when the records are lost. But this will appear to be in the time of Ed. 1. There is the pardon to those earls in 25 Ed. 1. We know that the rolls of those times miscar ried and were lost, and sure it must be after the statute of 25 Ed. 1.

My Lords, to prove this is an act, Walsingham entered it in his time, who did not write very long after it. Though it hath been said that he was a monk, and what he wrote he took up in the street and market place; yet I will not think so of Walsingham, who was ever held an historian of very great credit. And no historian whatsoever durst set down any thing for an act of parliament, if he had not a sure warrant for it. It had been little less than forgery.

In the next place, it hath been said, histories are no good authorities in law. True, they shall not tell me what the law is, yet they are good to tell us of res gesta, whe

But then there is an exception from the diversity of the penning; sometimes nullum ⚫ tallagium ponetur,' sometimes ponatur.' We know, upon the entering of the rolls, there have been divers mistakes in the entering of pona-ther or no there hath been such things done. tur;' if it be with a dash, it may easily be mistaken, and so only vitium scriptoris, and nothing else.

Then let us enquire what it was if it be no act. It is said it is no act, but an extract out of 25 Ed. 1, and that he urged several ways upon several occasions. By the penning of it, it doth appear, that he that wrote it was a scholar, and not mistaken, to make a thing absolute that was relative; for nullum to make it tale, and to make that without a saving that had a saving, is a strange kind of saving. Yea, this cannot be an act; for at that time there was a pardon granted to several great lords. If that be true, which history saith, when this act was published, the lords were not satisfied with it; and these were the lords to whom the pardon was granted that were not satisfied. And to make their pardon the stronger, they did weave it into the very body of the act: and for Walsingham, he is of great credit among the historians. They say further, that this is no act, for this takes away those three aids, pur faire fitz chevalier, file marrier,' and pur corpus redimend. This is not so, acts of parliament speak of it, and practice speaks of it, and therefore no law; and practice of ship writs ever since, and for defence of the kingdom. For the aids, that is a good act; yet those were not intended nor included within that act, and therefore that practice is not contrary, because it is not within the words of the act, nor in the meaning of the

act.

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For the aids therein questioned, the question was between the king and the commons, and not between the king and tenants; then that being the question, there must be a consideration according to the occasion and the doubt made. But to take thus nullum auxilium ponamus,' these are not aids put on the tenants, but fruits of a signory, as the duty riseth not from the king's command, but from the laws,

He tells us, not that this was for shipping, or not for shipping, but tells us there was such a thing. I have searched after this act, and I have found in an antient manuscript in Hen. 4.'s time where it is, and it goes there under the name of Statutum de Tallagio non Concedendo; and I find it mentioned no where, but still find it mentioned as a statute. I have an abridgement of Hen. 8.'s time, and there it is put in as a statute. I will not urge positively, but probably, and that an act in Hen. 4.'s time. 13 Hen. 4, a complaint of laying taxes on the subject; the answer is, 'let the laws and statutes 'be observed:' this is that positive act that doth reach it more than any other.

But the main answer that I rely upon, is, that if they deny the truth of an historian for res geste as this. If from time to time it hath been conceived an act, what more strong? what makes our common law, but general opinions and allowances? And should we doubt of many things, whereof we find the acts of parliament themselves, I am afraid we should shake many things done by the common law. That which I rely upon is, the judgment of the late parliament, to which your lordships will give all reverence. This, my lords, did not pass sub silentio, but was made a question, and something proposed on the king's part, whether an act or not? in the conclusion it came into the Petition of Right. The very statute mentioned in that Petition was this, De Taliagio non Concedendo, made in Ed. 1.'s time. How far this question passed at the committee, it is better known to your lordships, and is the thing whereon it is built. If this had not been an act, it had been dangerous to have put it into the upper house; but it being there read, your lordships know what was done upon it.

The Petition being thus debated in both houses, I shall leave it to your lordships consideration, how far you will make this question to

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 office of alneage of worsted; and because in charge and burden of the people, and a new grant, adjudged void, and was repealed.

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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 Eadmerus. 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 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 realm; where pro facultatibus' may seem to imply, that they were bound to be subject to charges, secundum facultates.' 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 gravamina.' It had been strange, when the king had confessed upon the articles, that he would not legally justify them, and upon the comission, 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.

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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

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side, that this was no statute, but made and | scaled at the same time with that of the 25th, and meant to be no more than that of the 25th. This seemeth strange: for why should they be both at one time? Next, how came they so much to differ, if made at the same time? Why are there some things in the sta-home, this war is not foreign, but for defence. tute De Tallagio non Concedendo, which are not in the statute of the 25th?-But the Teste will clear all. First for the Teste of that of the 25th, it was Teste Ed' principe, and sealed by no more than the king: To this the archbishops and lords put their hands and seals. But, however, I am glad to hear it now confessed to be a statute; for then we have no more to do, but to see whether the charge of the defence were within the meaning of these words, wherein sure the words are general enough; and what reasons have been given, why by the expositions of these, charges of defence should be excepted, you have heard; and what my answers have been unto them, I leave to your lordships judgments.

and in England too where the Scots are, and this a defensive war. Further for the wars of Scotland, if that should be called a foreign war; if the king should go thither and make a war, yet by the rules of the king's council, if a war in foreign parts is but to prevent a war at

peace

I come now to Ed. the 3d's time, 17 Ed. 3, Parl. Roll. Whereas commissions have been avarded to the people and shires, to prepare men at arms for Scotland and Gascoigne, or elsewhere, at the charges of the shires, contrary to law; the king hath not, before this time, given wages, whereby the people have been at great charge, and much impoverished. The king wills, that it be done so no more. Ay, but it was said, this was to Scotland and to Gascoigne ; and that this was foreign war; and that was denied, though not admitted.— I answer, that in those times, Scotland held in fee of the seignory of England; and in those times the king of England was Dominus directus Scotiæ: and so Ed. 1, when he determined that quarrel between Bruce and Baliol, and gave judgment by writ, settled Baliol king of Scotland, and did justify it; and it is remaining in the rolls of Scotland, in Mr. Squire's office. When there was a treaty of between Baliol and Ed. the 1st, he refused to acknowledge the signory of England; and there the parliament resolves he should rather have a war than lose this. So see Selden upon Fortescue. War in Scotland, not foreign war, but like to that in Wales: and so was it ever since held, since the conquest, to be within the signory of England. By the statute of 12 Ed. 1, and by the statute of Hen. 8, it appeareth to be within the fee of England. War against one another, cannot be called a foreign war; as in the war to Scotland, Wales, and elsewhere, which is not meant of foreign parts; for then it would have been expressed where, as well as Gascoigne. And by the histories of those times, we shall find there were armies carried to no other place. Nay, to shew this elsewhere is meant in England, see the 1 Ed. 3. Parliament-roll before this parliament. The Scots invaded England, as appears by a writ of Ed. 3, where is mention of an invasion, and thereupon requires aid. If there be wars in Gascoigne, and if occasions to Scotland,

Another act made on this occasion, that the king wills, 1 Ed. 3, c. 5, that no men henceforth shall be charged to arm themselves, otherwise than formerly in the kingdom of England; and not to be compelled to go out of their counties, unless upon the sudden coming of an enemy, and in case of necessity, and then to be done as in times past: this statute coming in the same year when the complaint was made for carrying men out of their counties at their own charges.

Here I observe that the subject shall not go out of his county, not only at sudden coming of enemies, but likewise on necessity, and both together. And when it is said, it shall be done as formerly, it as an allowance that they had formerly been paid. So then, if this be a stronger case, admit here an actual coming of enemies, nay, sudden, nay, here is a necessity, and the subject is to go out of his country, pro posse suo, yet he had his allowance.

Perhaps it may be asked, why should not the subject pay? Is not the kingdom in danger? are they not to defend it, posse suo? They are so in their counties; and if they go out, the law hath provided a supply. Parliament-roll, 13 Ed. 3, there was a time when there were known enemies, actual wars in France; they intended to divert the war by bringing it home to our own doors: the enemies threatened much, nay, did much hurt; yet did not Ed: 3, command these supplies this way, but called a parliament, and there consideration was had in parliament for supply, and that the kingdom has ships enough, if they were willing; and this was in way of Defence.

From all this I conceive that it is strongly inferred that he could not force them: and when the lords and commons did meet, to take consideration for the wars against France and Scotland, the commons laid the whole charge on the Cinque Ports, they disclaimed to have any thing to do with it. And for the landservice, they said, let those of every county reside there, but no charge on the subject in pursuance of this. Claus. 13 Ed. 3, m. 11, et 14. dors. The town of Bodmin doth shew the execution of this judgment; it being agreed, that the sea-towns, and bordering shores, should look unto it.

I shall agree that some inland towns are bound by use and tenure, but no otherwise, 4 Ed. 3. c. 1, that the people are not compelled to make any aid out of parliament; and that the aid granted shall not be drawn into example; and that the aid granted is for the defence of the sea. But it hath been said, that they are aids granted for foreign wars, for the wars in France. True, they were in part granted, some for the wars in France, and part also for

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.

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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 Sd was. But Ed. the 3d 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,

VOL. III.

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m. 24. It is the lord Latimer's Case, a privycounsellor and chamberlain to the king; there was a complaint in parliament against him for divers things, whereof one was for laying an im position 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 in-. stant, 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 defence, 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 parlia ment, 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 36

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