universal consent of all mankind in this Realme as well future as present I shall not here insist upon the Grand Charter or upon any other Bulworks of propriety of that nature though possibly pertinent enough to my purpose but shall rather choose at present to apply my self to a Statute Law of much fresher date and memory and design'd for the Relief of this very particular case And that is the Statute of 190 of his now Majesty Chap. 12. which I shall recite so far as it concerns my purpose verbatim Whereas it hath been found by experience upon the late Act for Twelve hundred and fifty thousand pounds made at Oxford and other Acts of Parliament since that time that the power of Assigning of Orders in the Exchequer upon those Acts without Revocation hath been of great use and advantage to the persons concerned in them and to the Trade of this Kingdome and given great Credit to His Majesties Exchequer Be it Enacted and it is hereby Enacted by the King 's most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled That every person or persons Native or Forreigner Bodies Politique or Corporate to whom any Moneys shall be due in your Majesties Exchequer and shall have any Order Registred in the Office of the Auditor of the Receipt for the payment thereof out of any branch of your Majesties Revenue That such person or persons Native or Forreigner Bodies Politique or Corporate their Successors Executors Administrators or Assigns respectively by Endorsement of their Order may Assign and transfer their Right Title Interest and Benefic of such Order or any part thereof to any other which being notified in the Office of the Auditor of the Receipt aforesaid and an Entry and Memorial thereof also made in the Book of Registry aforesaid for such Orders which the Officers shall on request accordingly make shall Entitle such Assignee his Executors Administrators and Assigns or Successort respectively to the benefit thereof and payment thereon Now it will be plain to any man that shall consider this Statute that the Parliament doth therein admit an unquestionable duty of the Mony to the Lenders in the Exchequer for so are the words Every person to whom any mony shal be due in your Majesties Exchequer c. and the makers of this Act could never mean that nothing should be transferd to the Assignee For indeed all the Powers of the Universe can never make me Donor of that which never appertained to me nor I never had in me to give And therefore this money must first of necessity vest in my self in point of property Nit dat quod non habet before I can transfer it to another person so then if this Law secure this money to my Assignee a multo fortiori to my self Now that this Statute secures this money to my Assignee I shall prove by three unanswerable reasons as I suppose all drawn out of the Bowels of this very Law it self First the Inducements of this Statute appear in the preamble thereof to be Advantage to the persons concern'd To the Trade of the Kingdome and also great credit to the Exchequer Therefore the makers of this Law could never design a transferring of the husk or shell only that is of the Order or Paper but even of the fruit it self I mean the money in specie for that is it which carryes the Advantage the Trade and the credit with it and not the Order or writings as many of us find by wofull Experience Secondly there is no man doubts but that the moneys lent upon the Oxford Act of 17. Car. 2. cap. 1. for 1250000 l. And upon the Pole-mony Bill 18. Car. 2. cap. 1. And upon the Act of 19. Car. 2. cap. 8. for 1256000 l. were unquestionably secured to the Assignees of the Lenders by those several Acts why then I say that all moneys since that time Lent into the Exchequer charg'd upon any branch of the King's Revenue are equally secur'd to them by this Act and that not only first because this Act in the preamble thereof refers expresly to those other Acts But Secondly then which I think nothing can be plainer because the moneys secured by this Act to the Assignees are secured with almost all the same numerical identical words with which the moneys lent upon the three other Acts are secured And this will be obvious to any person that shall curiously compare all these Acts together to the which for brevity sake I am inforc't to refer my Reader Lastly this Act declares in express terms that the Assignees of such Orders for money due in the Exchequer their Executors Administrators and Assignes in infinitum shall be Entituled To the Benefit of such Orders and Payment thereon which words being so plain that he that runs may read and wrote as it were with a Beame of the Sun I think there can be no place left for farther cavil or subterfuge in this matter I had almost forgot to observe that this Law the King being therein concerned is a general Act of Parliament Cooks 4th Rep. 77. a. Hollands Case Plowd Lord Barkley's case ibid. Wimbishes case of the which not only the Judges but even every individual Subject of this Kingdome ought to take knowledge of course for as the inferiour Members saith the Book cannot estrange themselves from the actions and passions of the head no more can any Subject be a stranger to the concernments of his Sovereign This I would add to those Answers I gave before to the Objection that this affair was private and that few persons were concernd in the present Case of the Bankers and their Creditors now I proceed SECT 4. That this Counsel of stopping up the Exchequer is expresly contrary to His Majesties gracious promises and Declarations Printed and publish't by His own especial Command MY design all along in this discourse being to discover the pestilence and mischief of this Councel in relation as well to his Majesty as his people I cannot with better advantage discharge my self of the Province I have undertaken in this Section and manifest how unhandsomly his Majesty hath been treated by this Adviser then by considering a while the sanctimony of promises among Princes Nothing then I say is more sacred or tremendous among Princes then their publik Faiths and Declarations This the Emperour Tiberius understood well when he said Caeteris mortalibus in eo stant concilia quod sibi conducere putant Tacit. Ann. lib. 4. principum vero c. Inferiour persons may order their Councels as they best sort with their advantages but the condition of Potentates is different whose actions are principally to be directed to Fame and Glory Cambden and Baker vita Elizab Regina And for this reason Q. Elizabeth in her private Letters to K James was used to admonish him that a Prince must be such a lover
the grand Objection of this case the validity of which I am necessitated though with reluctancy in my self to consider because if this Objection prove impregnable the Councel of stopping the Exchequer may seem to be built upon a good or at leastwise an exccusable foundation and so in all that I have hitherto said I shall seem to have trifled with and eluded my Reader And herein because I pretend not to any Arcanums of State I shall handle this point by way of Admittance and shall suppose that the fears and jealousies which at the time of shutting the Exchequer did possess this State were just and such as might well fall upon constant and deliberating mindes The Objection then will run thus Ob. Ob. That our Neighbour Princes and States were making vast preparations for War that the Heavens about us were black and Cloudy and where the storm might fall no man could Divine That Necessitas est Lex temporis Quae non habet Legem That necessity and self preservation superintend all Lawes That it is more eligible to lop off one member from the Body Politique or at least wise to let an Arm or perhaps a finger thereof blood then that the whole should be endangered c. Sol. Sol. The Objection I must confess is important and weighty and will deserve a substantial Answer In order thereunto I must in the first place mind my Reader that I have as I suppose by irrafregable Argument proved the property of the Subject in this case violated I will then add that it is a Fundamental Law of this Realm that the Subjects propriety is not violable no not in cases of National Danger without his own free and voluntary consent and that First by the consent of his own individual person or Secondly by that of his Representatives in Parliament to whom â—e hath delegateâ— his consent To prove this I could produce infinite Records of Parliament and other Courts but for brevities sake shall content my self with some few doing herein like one that chooseth 5 or â— full eares of Wheat out of a select sheaf who must necessarily leave behind him as good as he takes The first Record therefore that I shall insist upon will be that memorable one of 14. Ed. 2. in a Writt of Error upon a judgement given in Durham in Trespass by Heyburne against Keylow for entring his house breaking his Chest and taking away 70 l. in money upon a special verdict the case was this The Scots had entred the Bishoprick with a formidable Army making great burnings and spoil Mich. 14. Fd. 2. B R. Rot. 60. the Commonalty of Durham whereof the Plaintiff was one apprehensive of the common danger consulted together and at length agreed to send their agents to compound with the Scots for money to depart and were all sworn the Plaintiff being one to perform such composition and also what Ordinance should be made in that behalt thereupon they compounded with the Scots for 1600 Marks but because this Money was to be paid without the least delay they all consented that Keylow the Defendant and others should go into every mans house to search for ready Money to make up the said summe and that it should be repayd by the same Commonalty and thereupon the Defendant entred the Plaintiffs house and took the said 70 l which was paid toward that Fine The Jury were demanded whether the Plaintiff was present and consented to the taking of the Money they said no. Whereupon the Plaintiff had Judgement to recover the 70 l. upon this Judgement the Defendant brings his Writt of Error in the Kings Bench and assigns errour in point of Law and there the Judgement was reverst because Heyburn whose Money it was had agreed to this Ordinance and was sworn to perform it and Keylow had done nothing but by the express consent of Heyburn and therefore was no Trespassor and that Heyburn had no other remedy for his Money but against the Commonalty of Durham By which it appeareth that if the owner of the money had not particularly concented such Ordinance could not have bound him and yet this was in a case of imminent danger and for publique defence The next is a Record of the Parliament of 20 Ri. 2. some little time before this Session Rot. Parl. 2. Fi. 2. pars 1. â— the French had actually invaded this Realm they had burnt Portsmouth Dertmouth Plymouth Rye and Hastings they had possest themselves of the Isle of Wight beseiged Winchelsy and at length entring the Thames with their victorious Fleet came up to Graves end and burnt most part of that Town and which was yet worse in the North the Scots had burnt Roxborough and were ready to over run all the North of England the Realme being thus beset both by Sea and Land with the united puissance of two mighty Kingdomes and like a Candle burning at both ends the publique Treasure also exhaust a great Councel was forthwith call'd of the Prelacy Baronage and other great men and Sages or Judges of the Nation to consult about these difficulties they came at length to a final resolution the which Scroop then Lord Chancellour delivered to all the Lords in the ensuing Parliament which as the Roll above quoted saith was thus That unce the last Parliament the said Councel met and considering the great danger the Kingdome was in and how money might be raised for the Common Defence which could not wait the delay of a Parliament and how the Kings Coffers had not sufficient in them they all concluded that money could not be had for such defence without laying a charge upon the Commonalty and that such charge could not be imposed without a Parliament and the Lords thereupon supplyed the present necessity with their own money and advised a Parliament for farther supply and Repayment of themselves which was accordingly done I think no man will pretend that our late danger to say no more was greater than this and yet because there was no other course in those times thought lawful for the raising Treasure upon the Subjects Goods then by their own ascent in Parliament only that course was then thought fittest to be practised which was such as ought to be obeyed The next Record is the Statute of 31. Hen. 8. cap. 8. some years before this King had dissolved the lesser Old booke of Statutes 31. He. 8. cap. 8. and in the year of this Statute the greater Monasteries which being a new precedent made a great noise and the event thereof was apprehended with terrour and amazement all over the Christian world this administred secret seeds of discontent to many of the people which after broke out into open Rebellions as our Chronicles declare in several parts of the Kingdome this King though standing as much upon his praerogative as any of his Predecessors to provide against the like suddain eruptions of this Torrent which would not stay for Parliaments procures a Statute
this Prince would be negligent in paying his own that was so just in satisfying his Fathers Debts as we find by our Records so that upon the whole matter Pot. 4. Ed. 1. Memb. 19. intut notwithstanding this Objection I think we may concurr well enough with Sir William Herle Ch. Justice of the Common Pleas who in 5. of Edw. 3. saith of this Ed. 1 Pasch 5. Ed 3 casus 5. in whose time he lived Que fuit pluis sage Roy que unques fuit That he was one of the wisest Kings that ever was in the World For Ed. 3. his Rapines likewise produc't very benificial Lawes to the Subject as will be manifest to any man that shall peruse the Statutes of that time Fot Alminiae 12. Ed. 3 Mem. 22 in Dorso De excusando Râ—ge populam versut They were actions which he never justified but excused alway with singular Resentments As appears by his Letter extant upon Record to John Stratford then Arch-bishop of Canterbury in the which he recounts the Tallages and Exactions with which he had burdened his people which be faith he could not mention without inexpressible grief of mind and there excuseth himself upon the inevitable necessity of his warrs and desires the Arch-bishop to satisfy the people and to stir them up to pray for him hoping ere long he should make them compensation and give them comfort Ob. There remains yet one Objection with which I am infore't to encounter se defendendo because I perceive it ready to assail me And that is that the Parliament is a great Body I speak it with all due reverence and moves slowly and therefore if the Law allow not some other course as this of stopping the Exchequer or the like in raising money in case of suddain Danger the Kingdome may be lost before the Parliament can supply Sol. To this I answer That all Warrs are either Offensive or Defensive If it be Offensive it cannot be suddain for it is the King 's own Act and the result of mature deliberation and so their may be time enough to call a Parliament if it stand with his Sacred Majestie 's good will and pleasure If it be a Defensive War by Forreign invasion which I shall to avoid Cavil agree may be suddain though a great Statesman tells us Comines fol. 79. that these Clouds are commonly visible afar off before the Tempest fall I say if by Forreign Invasion then first the impulse of self-preservation an indelible Character wrote on every man's mind by the very band of Nature will dispose all Mankind to expose their Lives and Estates which otherwise they must inevitably lose And this seems to be the case of this Kingdome in the Year 88. â—ambden viâ—â— Eliza. for there was then no Parliament sitting but many of the Worthies of that time some of whose names are transmitted to Posterity at their own private charges brought in men and Ships to the Common Defence But Secondly if we are to suppose that men must be drag'd and haled to their own preservation I say then the Law hath provided that in case of Forreign invasion every Subject within the Land high or low whether he hold of the King or not may be compel'd at his own charge to serve the King in person To prove this I can vouch Authorities from Common Law Statutes and Records which for brevity I will not quote at large but least any man should doubt hereof will only point where they may be found Common Law see 7. H. 4. Brook Tenures 44. 73. Fitch Protection 100. Coke 7. Re. 7. b. Calvins case 2 Rolls Title Imposition 165. c. 1 Inst 69. b. in fine For Statute Laws see among many others 1. Ed. 3. cap. 5.11 H. 7. cap. 1.11 H. 7. cap. 18. c. For Records among many others that I have seen I will crave leave to vouch two The First is 14. Johannis Regis Math. Paris 223. Matth. Westm 92. where upon an imminent French invasion King John issues our Writts in which he summons all his Subjects high and low to repair forthwith to Dover Ad defendendum caput nostrum saith the Record capita suae quod nullue remaneat qui Arma portare possit sub nomine * Base Cowardise or Turwail so the glossaries Culvertagij perpetuae servitutis c. The other is upon a French invasion too design'd against this Kingdome in 26. Ed. 3. the which being a Record so apposite to my purpose I shall recite somewhat more at large Rot. Franciae Anno 26. Ed. 3. Memb. 5. Rex dilecto consanguineo fideli suo Henrico Duci Lancastriae salutem Quia Adversarij nostri Franciae nos Regnum nostrum Angliae invadere machinantes ad nos Dominium nostrum totam nationem Anglicanam pro viribus destruend Nos considerantes omnes Incolas dicti Regni cujuscunque conditionis extiterint cum versetur commune periculum teneri de jure pro patriâ pugnare eam contrae hostiles aggressus defensare vobis mandamus quod omnes homines defensabiles tam milites Armigeros quam alios quoscunque de dictoÌ„ ducatu cujuscunque status seu conditionis fuerint arraiari quemlibet eorum iuxta statum faculates suas Equitaturis Armit competentib us muniri c. I shall conclude this Section with a case of very recent Memory and of singular Notoriety throughout the whole Kingdome I mean that of the Conflagration of our Ships by the Dutch not many years past in the River of Chatham There prevail'd at that time an universal jealoufy among the people that upon this occasion some suddain stop might be put upon the Exchequer and thereupon the Bankers were exercised with restless solicitations for the speedy payment of their Debts The King for the sedation of these Fears and apprehensions See the Declaration at the end of this Treatise is advised and not without infinite prudence to issue forthwith his Declaration to preserve inviolable the course of payments in the Exchequer which was accordingly done Now 〈◊〉 see what were the grounds of this Declaration Why truly they are exprest there to be First Least the Credit of the Bankers who had been so useful to the King might be weakned Secondly Least the King's Securities might be undervalued Lastly Least in consequence the publick Safety might be endangered Now all that I shall say is this That of what valew in reason of State it may be I know not but to men of vulgar Negotiation it seems a Riddle and matter inextricable that these considerations which at that time appeard to have been of so politique and valuable Regard within the space of two or three years upon a like occasion should be thought by this Advisor clearly Obsolete and altogether void of Prudence And the Credits of the Exchequer Royal securities and the publique safety so little by him consulted Idem manens idem
the Lord Bacon well notes such Liberties give vent and discharge oftentimes to popular discontentments and besides the Prince is hereby instructed in what part the Subject is pincht and griev'd when perhaps he shall attain this information no other way And therefore Augustus Caesar one of the happiest and greatest Prince it may be that the Sun ever saw when he was told at any time Eutropius lib. 8. that even his own person and his Edicts were too boldy discourst of in Rome Boterus de politia lib. 7. c. 8. Quod in Civitate libera linguas quoque civium liberas esse oportere That in a free City the Citizens discourse ought also to be free And this candid profession of his might possibly be no mean ingredient in the composition of his own felicities Thuanus writing to the great Henry the 4th of France Thuani Epistola ante Historiam suam ad Hen. 4. Franciae unto other Laudatives of that Princes Reign adds this as none of the meanest Ea est Domine rarae tuorum temporum faelieitas saith he in quibus unicuique sentire quae velit quae sentiat eloqui licet Such Great Sir is the rare happiness of your times that in them every man may think what he pleaseth and speak what he thinketh And of the same complexion was that serene Age in which the excellent Emperour Trajan Reign'd as Cornelius Tacitus who was then living affirms from whom the said Thuanus seems to have borrowed the very individual words before recited Taciti Hist lib. 1. in proemio I write not this in countenance of clamour and scurrilities against those things which I have alwayes reverenced and held sacred but under favour in our present case where all nature is big and in travail to be delivered of speech I hope her voice shall not be stifled and supprest Thirdly I shall redargue this Objector with that principle which the Advisers of this calamity have thought so puissant I mean exigences and invincible necessity a necessity of no ordinary nature neither but of near allyance to that thing which we proverbially say breaks through stone walls that in hard winterly weather infuseth boldness even into Brutes that also where nature languisheth and the means wherewith she should be supported are unjustly substracted from her The old Comicke saith well 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pecunia Anima sanguis est mortalibus Money is the lise and blood of mankind To deprive a man wrongfully then of that little money which he possesseth what is it but to deprive him of his blood yea of his life I know the great and opulent men of the world cannot descend so low as to conceive how much it importeth poor men and their Families to be in a moment dispoild of all their subsistence and to be bereav'd perhaps of a few poor weather-beaten water-drencht Reliques which they had rescued out of the wrecks of their Fortunes in the late dreadful storm of Rebellion but yet they may please to believe that we are as much paind with the pressures of our Little fortunes as they are with those of their great ones I speak this not out of any pride I take in comparing great things with small but only to dispose my Reader to a favourable construction of my words if my zeal may seem to transport me beyond the bounds of decency Lastly I am not altogether without hope but that something possibly may happen to be said in this Scribble that may conduce to the healing up this wound again For the Physitians have a good Aphorism Primus gradus sanitatis est novisse morbum The first degree of health is to know the nature of the disease I know some men are apt enough to alledge that this case is the less considerable because but a few persons are therein concerned In this place I shall say no more but that this Assertion is a great mistake For first out Money being expended for the defence of the Kingdome it was laid out upon the publick utility and certainly it will be very disproportionable that the common advantage should be maintained by a private contribution and upon this reason a person of great Honour and prudence not long since in an Audience of the whole Kindome doubted not to affirm That this concern was little less then national But because this may seem to many to be but a precarious and begging Argument and being founded upon a consideration of service and advantage some time since done may in this ungrateful Age prove but of mean regard I will therefore Secondly demonstrate this matter to be of Epidemical concernment in point of continuing and permanent interest In order to this I will suppose that the King owes a Banker 1000 l. this Banker owes me the like summ I ow as much to a third be to a fourth and so in infinitum and the Banker my self and the third person have little else to satisfie our Creditors than this 1000 l. which is owing severally to us which case may be well supposed to have hapned since the stop of the Exchequer In this case then I say it will be most evident that if the King never payeth the Banker the Banker can never pay me or I the third person or he the fourth so that by a necessary chain of consequences the 4th person and his Creditors in infinitum are as much grieved by the King's non-payment of the Banker as I may self who am the Bankers immediate Crediâ—or For as I said before money is the blood of the Body Pollitique and we know if the circuâ—at on thereof be stopt in one Member that blood can neâ—er be transmitted to the â—eighâ— ouring Vein and thereupon not only that part but the whole body in fine becomes Feavourish and languishant The like may be said of Rents Executorships Legacies c. And I doubt not but every man's consideration and the particular interests of most persons will furnish them with infinite instances of like nature in a very little time But if this Reason prove not sufficiently praevalent in this matter I must be inforc'd to go a step higher and to say Thirdly That if this proceeding fall out to be an invasion of property as I think I shall anon prove it is then I say every individual person will be interressed in the Fate of this Cause The Principal Creditours of the Bankers have been computed to a number little inferito this The Creditors by consequence are far more For by the same reason that the Rights of Ten thousand men may be violated the Rights of Twenty thousand men may and so in infinitum And I think it is obvious to every man that the publique and Parliamentary Cares and wisdome of this State have been extended in point of redressing Grievances not only to bodies of men in number much infeririour to ours but oftentimes even to particular persons where the presures have been enormous This
is the Answer I shall give to this Allegation at present in the sequel of this discourse very probably I may add more These things premis'd I shall now forthwith address my self to the main business In the Argument whereof I shall observe these Gradations or steps 1. First I shall shortly put the ease as it now stands between the King and the Bankers 2. Secondly I shall prove that by this Councel of stopping payments in the Exchequer the Subjects property is invaded at Common Law 3. Thirdly that hereby it is invaded contray to the Statute Law 4. Fourthly that this Councel is expresly contray to his Majesties gracious promises and Declarations Printed and promulgated by His own especial command 5. Fifthly I shall at large answer the grand Objection of necessity and National danger supposing too our fears to be at that time just And shall prove by sundry Records and otherwise that the Subjects property is not violable but by his own consent in cases of far greater National Danger then this was I shall answer the Rapines of Ed. 1. and 3d. and because I would take up this Objection by the Roots I shall then shew what courses the Law hath provided for preservation of the Kingdome where the danger is instant and cannot stay for a Parliament 6. Sixthly I shall prove that this Councel is contray to the Pollicies hitherto used by the wisest Forreign States of the World in far greater Exigencies then ours I shall answer the Objection of some Princes not repaying Money lent them by their Subjects to retain them in better Obedience 7. Seventhly I shall prove this Councel to be contrary to common Reason and in some respects to violate the Rules of Humanity That it is pernicious to the credit of his Majesties Exchequer Then I shall truly state the case between Phillip the 2d of Spain and the Bankers of Genoa and shall prove that case essentially different from ours And Lastly shall frame a Conclusion upon the whole matter SECT 1. The Case put between the King and the Bankers I think it is now evident enough to every man that understands any thing that the concernment of the Bankers is now become the concernment of their Creditors and that both their interests are common and so inseperably twisted together that the prosperity of the latter will depend altogether upon the Fate of the former Insomuch that if the Banker never receive his debt I do not in probability see how he will be able to satisfie his Creditor we are therefore by invincible necessity obliged to maintain the right of the Banker and in order thereunto I will now put his Case which in short is no more but this A Banker lends to the King an hundred thousand pounds more or less this money is secured to the said Banker upon the Customes or any other Branch of the King's Revenues c. by Order Registred in the Exchequer or by Talley of Loane or both and then the King upon the War-like preparations of our neighbour Princes and States is advised to make stop of all payments out of the Exchequer which is executed accordingly whether by this Councel executed the Subjects property be invaded and I clearly conceive it is SECT 2. That by this Councel of stopping Payments out of the Exchequer the Subject propâ—rtâ—is in vaded at Common Law IT is an Essential principle of the Law of this Realine That the Subject hath an undoubted property in his Goods and Possessions Otherwise there shall remain no more industry no more Justice no more valour for who will labour who will hazzard his person in he day of Bâ—ttaâ— for that which is not his own How can the Subject â—y any Act of Bounâ—y ingratiate himself with his Soveraign Neither was this Right of propriety introduc there by any Charter or Edict of Princes but was the old Fundamental Law Lambards Archaion Fortes de laudibus Legum Angliae cap. 17. Dugdales Origines Jurid ciales Insinite Authorities there quoted to prove this See there Fol. 5.6 springing from the Original Frame and first Architecture of the Kingdome There were manifest Footsteps of this Law in the Britâ—ish Roman Saxon and Danish Governments here nay it was of that vigour and puissance to survive even the very Norman Conquest To prove which I shall crave leave to produce this following short memorable Record One Shirboorn a Saxon at the time of the Conquest being seized of a Castle and Lands in Norfolke William the Conquerer gave the same to one Warren a Norman of principal Quality Shirboorn dying his Heir shewed to the Conquerour that he was his Subject and that he ought to Inherit the said Castle and Land by vertue of that Law which he himself had establisht in England In this Case the Conquerour gave Judgement for Shirboorn against Warren and pronounc'd his own former gift void See for this Cambden in his Description of Norfolk And Sir John Davis Rep. 41 a. The Case of Tanistry And there it is said by Judge Calthrop that he himself had seen an Authentique Copy of this Judgement For indeed the Common Law is not more solicitous of any one thing then to preserve the property of the Subject from the inundation of the Prerogative And therefore where a custome is to pay Toll for all Cattle that shall be driven over a common Bridge this Custome shall bind the Subject but not the King but where a Custome is to pay Toll for all Cattle that shall be driven over a mans private Freehold there the Custome shall prevail against the Prerogative and what 's the Reason why because the Law will not allow the King to invade the Subjects Inheritance and Property without consent and compensation For this see the expreâ—s book of 46 of Ed 3. cited in Plowden 236. a. The Lord Barkley's case Many other cases of this nature are there recited and in other Books of our Law which for brevity I for bear to mention To come then to the Hinge upon which this point turns I do lay this down for an indisputeable ground That the Law of the Court of Exchequer is the universal Law of this Land and so is Plowden 320. b. and 321. b. The case of Mines and Cooks 2d Report 16. b. Lanes case adjudg'd Now then by the Law of the Exchequer when the King hath charged himself to the Subject by Talley and liberate as in our case to pay a summe of money out of his Customes or any other branch of his Revenue and his Collector hath received this Revenew this money though at first it appertains in property to the King yet as soon as ever the Kings Creditor comes to this Collector and shewes him his Talley and Liberate and demands payment accordingly the property of this money to the proportion of the Debt by meer operation of Law is transfer'd out of the King into the Collector or Receiver and in an instant becomes the proper and personal Money of
* Cromwel Sequestrators Committee mens decimators c Lyon and give it to the Rich men that have many Flocks Herds For nothing is more evident then that many of those wretched person that had but one hundred pound in all the world had that All taken from them towards the Defence of the Kingdome when many others that were worth hundred thousands expended not a farthing at that time And now what I shall say more Pudet haec opprobia nobis Et dici potuisse non potuisse refelli Now for the Influences this Councel may have upon his Majesties Exchequer in all likelyhood they cannot prove very propitious and benigne Few things have been more dear to Princes then the Reputation and Glory of their Exchequers And Queen Elizabeth wars so punctual in this particular that in her time they say it went for a Proverb As sure as Checke Lord Herberts H. 8. For as a great Authour Writes Outward esteem and Reputation is the same to great persons and Things which the Skin is to the Fruit which though it is but a slight and delicate cover yet without it the Fruit will be subject to discolour and Rot. He that hath a mind to contemplate the Consequences of a discredited Treasury let him but consider the Cases of Henry the second of France Reported by Bodine Bodine Lib 2. cap 4 in fine Lord Herberts Hen 8. last leaf but one and of our King Henry the 8th by the Lord Herbert for I would rather they should declare them then I And I am afraid that when men shall be importun'd to lend money upon any future Occasion they will be apt enough to discourse within themselves That that which hath been done may be done again and that the Moneys of other men were secured unto them by Declarations and Acts of Parliaments and that they cannot expect higher securities then these c. It is true indeed when the Exchequer is again opened this Objection will be in good measure answered but till that time I fear it will remain not inconsiderable I shall no farther puâ—sue the Pestilence of this Câ—uncel in this particular it being so obvious to the meanest understanding but shall now state the Case between Phillip the Second of Spain and the Bankers of Genoa as I have extracted it out of the best Authors I could find which treat upon that Subject Charles the Fifth Emperour of Germany had for a long season revolved in his mind how he might render the State of Genoa obsequious and dependant upon himself Thuani First lib. 61. anno Dom. 1575. Metarani Hist Belgica Lib. 5. Bodine de repu Lib. 6. Campanella Spanesh Monarchy c. 21. Helyns Colmography in Genoa Lassels Voyage into Italy 1 part pa. 99. cum multis alus and this he did among other reasons that he might as occation served with the greater faâ—ility Transport his Armyes out of Spain thorough this Territory into Italy In order to this sundry Experiments had he made which yet by the jealousies of that people were alwayes readred improsperous Charles being as he was a Prince of prodigious Subtility falls upon new Councels he considered he had to do with a people that dealt much in Money and were generally great Bankers and Merchants and therefore concluded that if by extraordinary Vsuries he could allure their Money into his Exchequer he should then be in possession of the best Hostages they could give him for their Fidelity and Observance This Emperour dying Phillip his Son after his Fathers Example to make these birds more confident and less jealous of the Snare proceeds for some time to feed these unhappy money-changers with excessive Vsury till by this fine Dexterity he had conveyed into his bands no less then 420. Datch Tun of Gold some say eleven others eighteen millions of Gold and then secures this Debt to them very fairly upon the Tribuâ—es of Spain and the Indies The filly Birds were now very secure and Sate fair and there wanted nothing but the drawing the Net Thereupon King Phillip being exhausted with his Low-Country Wars and with all sensible of the weight of so ponderous a Debt takes occasion at first to cavil at some little misreckonings in the Accounts and a while after insisted that he had heretoâ—oâ—e paid them more Interest money then they ought to have received and therefore quoth he that overplus ought in all reason to be deducted out of the Principal and thereupon by publique Edict taking the Opportunity likewise of some Civil discords which at that time raged among them forthwith stops their Pensions issuable out of the said Tributes And then to fortiâ—y this Act by secret Combination with the Pope to render the Action more specious procures a Bull from his Holiness to confirm all that he had done however for so much Principal Money as was afterward agreed to be due which in the year 1600. I find was One Million and half of Gold the Crown of Spain hath ever since to this day justly and Honurably satisfied the Interest This is the true state of this Case according to my discovery thereof Now it will be evident to any person that shall compare these two cases together that they differ each from other in sundry essential circumstances For First this Severity of King Phillip was not exerted upon Children and Subjects but upon a Forreign State of which Spain had then just causes of Apprehension and Jealousy and so the Action well enough consistent with the Rules of Policy Secondly the Envy and Enormity of this Feate was by a curious Legerdemain juggled upon his Holiness and King Phillip to all outward appearance rendred innocent thereof Helin's Cosmograph This Debt saith Peter Heylin was cut off by the Pope's Authority that so King Phillip might be obliged to that See Hoc debitum saith Metaranus per pontificis decretum propter ingentes usuras fuit diminutum moderatum Bodin de Rep. lib. 9. cap. 2 This Debt by the Pope's Decree was moderated upon pretence of excessive Vsury And Bodine Droling facetiously upon the proceeding Metarini Hist Belg. Lib. 5. sed risu dignares est saith he quod non modo Genuensibus verum etiam Philippo c. It was thought very pleasant and ridicule that not only the Genoeses but Phillip also should be interdicted he because he took money to Vsury they because they lent it However they were both this being done only by compact and to give the better grace to this neat Emuncture or wipe in a little time absolved again Thirdly in this case the Interest Money was and is punctually satisfyed and I wish I could affirm as much in ours Fourthly I do not find that this Debt of the Genoeses was secured unto them by any Act of the Cortes or Parliament of Spain and so the Common Faith of that Nation inviolate But in our case our Debt is secured to the Bankers and their Assignees by National Obligation
There be many things which possibly I have forgot and some things which I have perhaps industriously omitted If any matter have fallen from me inconsiderately as in so long a Discourse may easily happen I do with unspeakable humility and Prostration beg Pardon requesting this one Favour that no persons would censure me or those worthy persons in my condition until they have first represented our Cases to them selves as their own Protesting in the last place that I have written nothing but with a mind at all times ready to sacrifice the Body it dwells in to the Honour and Safety of my Gracious Soveraign and his Kingdomes And upon that glorious account prepared alwayes to suffer more then He or They deserve that advised His Majesty to the stopping the Exchequer Illud omnium maximè tenendum erit a Principâ— ut fortunis alienis temper atum fuisse cognoscatur Nam citius parentum cadem oblivioni dant Homines quam Fortunarum suarum direptioneâ— Nic. Machiavelli princeps Cap. 17. His Majesties Declaration To all His Loving Subjects to preserve Inviolable the Securities by Him given for Moneys and the due Course of Payments thereupon in the Receipt of the EXCHEQUER WHereas We are given to understand That divers of Our good and Loyal Subjects Goldsmiths and others who have advanced to Us great Summs of Money for the Publick Service which are sufficiently secured unto them upon several Branches of Our Revenue and other moneys arising by several late Acts of Parliament have upon occasion taken from the late Attempt of the Dutch Fleet and the false Reports spread thereof been prest in an unusual manner with many sudden Demands by their Creditors for present Payment through Fears and Apprehensions which may weaken the Credit of Our said Subjects ☜ who have been so useful to Us bring an undervalue on Our said Securities and in consequence indanger the Publick Safety in this present Conjunctur We have therefore thought fit as well for satisfying the minds of our good Subjects whose fears so transported them to call for their moneys in such a manner as for the allaying such Jealousies and misapprehensions as may be taken up by those concerned in the said Securities to Declare as we do hereby declare that as the Course of Payments in our Exchequer hath hitherto been punctual and according to the due Order even in this time of disturbance and interruption of Payments amongst our Subjects so Our stedfast resolution for preserving inviolable to all such Our good Subjects who have Lent or Advanced any moneys for Our service as aforesaid All and every the Securities and Assignements any wayes made by Us for and towards the Repayment and satisfaction of the said several summs of money ☞ And that We will not upon any occasion whatsoever permit or suffer any Alteration Anticipation or Interruption to be made of our said Subjects Securities but that they shall from time to time receive the Moneys so secured unto them in the same Course and Method as they were charged ☞ and ought to be satisfied Which resolution we shall likewise hold firm and sacred in all Future Assignements and Securities to be by Us Granted upon any other Advance of Money by any of our Subjects upon any Future Occasion for Our Service And we cannot doubt upon the publishing this our Royal Word and Declaration of our sincere Intention but that all reasonable persons will rest satisfied that their feâ—â—s were causeless their respective Interests in no danger at all and that no evil can happen to them on this Occasion since the Securites by Us to them given being inviolable we doubt not but that our said Subjects will satisfie every person both their Principal and Interest as they have formerly done with untainted Reputation And of this our Declaration we straitly charge and Command our High Chancellor of England the Lords Commissioners of our Treasury the Chancellor and Under-Treasurer of our Exchequer and all other our Officers and Ministers whatsoever whom it doth or may concern to take notice and duly to observe the same as they will be answerable to Us at their utmost perils Given at Our Court at whitehall this 18th day of June 1667. And in the Nineteenth year of Our Reign THE Postscript TO THE Letter THus Sir I have as you see according to the Model of my weak Talent discovered the Enormity and pernicious Influences of this Advice I â—ake God to witness I have done this without the least Malice or Designe against any man's person of what Degree or Quality soever Indeed if any man shall come from behind the Curtain with a bare open face shall say I am the Man that gave this Advice That person I must confess and only that person hath not escapt my Animadversions and from him only and no body else I hope I can with Reason expect Reproof And then let all Mankind judge whether of the two is more to be blamed he that hath lead his Prince out of the old via Regia or King's high way into by and untrodden Paths unknown to the Law and to walk upon Precipices or he that hath given an honest Alarm or Outcry of this evil Dealing The Lord Treasurer Burleigh under whose old English Councels this Kingdome flourisht and became formidable to all the world Cottoni posthuma p. 313. and one perhaps that better understood the Genius and temper of this Nation then this Advisor was used to tell his Queen Madam sayes he Win Hearts and you 'l be sure of Hands and Purses vita Dionisâ— And Dion in Plutarch doth admonish the Son of King Dionysius That the Love of the subject obtaind by vertue and Justice is the strongest guard and security of a Prince The great God of Heaven and Earth and my own Conscience will be my Compurgators and Witnesses that whatever I have said in this Discourse I have done it with a most ardent and passionate Desire of the Prosperity of my dread Soveraign and an unfeined Love to my dear Countreymen and to raise and enkindle as well as I could an universal Disposition in this Kingdome towards the Payment of this Debt That thereupon so considerable a part of the English Nation as are concern'd with the Bankers may not be overwhelm'd with an inevitable Ruine and that so great a Member thereof may not be ravisht and torn limbmeal from the Body of this Common-wealth I shall probably be thought by some persons to have prosecuted this Argument with a warmer Zeal then became mee and to have sallied out sometimes perhaps into Extravagancies and Inconsideration I can only Reply that the Authors and Testimonies by me vouched are Authentique and of approved Credit and by me truly and carefully quoted That after I have sacrificed my Person and Fortunes to mine Allegiance in the Late Rebellion no man I hope will suppose that I should now become Apostate or Renegado to so glorious a Cause That Necessity and the want of a mans own are spurs sharp and invincible And Lastly that I have been actuated all along in this Discourse with no other Impulses of mind then those which loosen'd the Tongue of the Dumb Son of King Craesus when he saw a Soldier ready to offer violence to his Father crying out It is the King At whose Royal Feet I am alwayes ready upon Occasion to lay down my Life together with that poor Mite or Fragment of Estate which the Rebbeis and this Advisor have left me Praying in the Scripture Language That God would strike through the Loins of all them that hate His Majesty but that upon his own Head his Crown may for ever flourish I am Sir your most Affectionate Servant S. R. Errata Reader Some faults thou art desired to amend which by reason of the absence of the Author and haste have escaped the Press As in the third page of the Letter in the first sheet Line 18. for irradicated read irradiated c. The Poyntings also in many places are to be amended FINIS
to be made that the King for the time being with the Advice of his Councel two Bishops two chief Justices and divers others might by His Proclamation make Ordinances for punishing offences and imposing penalties which should have the force of a Law but with this proviso that thereby no mans life or property Lands or Goods should be toucht or impeacht so then though the Royal Power was thus corroborated by this Statute yet the Parliament took care that no mans Life or Property should be ravisht from him However notwithstanding the said Restriction this Statute was thought inconvenient and thereupon repealed soon after in 1. Ed. 6. cap. 12. This Kingdome never laboured under a juster fear then in the Year 88. when it was assaild by that invincible Armada or Sea-Gyant as the Lord Bacon * His War with Spain calls it and yet every mans Right was then preserved inviolable Nay the Queen was so tender in that particular that as our Historians say She gave Express Order that not so much as an Ear of Corn should be burnt Cambden in vita Elizab. 1588. or other Goods of her Subjects devastated until the Enemy had actually Landed and was even upon the very point of possessing theâ— himself And therefore where the case of 8. Ed. 4. of plucking down the Suburbs of a City without the consent of the owners in time of War is Law 8. Ed. 4. it must be understood of an actual Invasion of the Enemy when the danger is in potentia proxima and the Fire ready to take And this manifestly appears by the Record of 11. Edw. 2. where the Mayor and Citizens of Dublin puld down the Suburbs of that City Claus 11. Ed 2. Memb. 19 Dorso pro majore civibus Dublin but it was saith the Record Super imminentem hostilem irruptionem scottorum inimicorum infra Hiberniam pro salvatione Civitatis praedictae ne dictis inimicis ad Civitatem praedictam facilior pateret ingressus c. And yet this Corporation neither would not trust to this point of Law but for their better security procured the King's Pardon which yet was cautiously enough drawn for it was Pardonamus eis euilibet de communitate Civitatis praedictae id quod ad nos pertinet de prostratione praedicta c. We Pardon as much as in us lies c. as appears by Pat. de anno 12. Edw. 2. Memb. 30. intus de pardonacione pro majore Civibus Dublin And so of the case of Gravesend Barge Mich. 6. Jacobe Cokes 12. Rep. 63. If the Ferry-man may justify to throw my Goods over-board to lighten the Vessel it must be upon an instant Tempest and inevitable peril but if the Ferry-man shall say I see a Cloud yonder my Masters its like to be a great storm and thereupon shall throw them over I doubt that is not at all justifiable in Law I shall now draw nearer our own times Cokes 3d Inst 3. and present you with a Triumvirate of precedents to say nothing of the Petition of Right in one and the self same Parliament no less then that which attain'd the name of Parliamen um Benedictum I mean that of 3. Caroli primi First the Judgement of the two Houses in that Parliament in Dr. Manwarings case Rushw Hist Collect. 3. Carol who was sentenc'd by them principally for declaring in a Sermon which he afterwards Printed that the King in Cases of imminent danger to the Kingdome might without Parliament Levy Money upon the Subject There were other collateral charges against him its true but this was the principal Journal of both Houses and to this he chiefly applyed his Defence and would have excused this Assertion by limiting it only to Cases of National Extremity but that would not serve his turn he himself submitting and the Sentence afterwards affirmed by the Kings Proclamation for suppressing the Book The second is the Commission for Loane Rushw Hist Collect 3. Caroli to carry on the War for the Palatinate in which was suggested the safety and very subsistance of the King People and Religion to be in instant danger that his Majestie 's Coffers were exhausted that the supply could not stay for a Parliament that the King upon his Accession to the Crown found himself ingaged in this War and that by advice in Parliament which I think may deserve some remark and only lending a little Money for prevention required Now I would fain know what suggestions could have possibly been more substantial or persuasive But because this course was compulsary and without consent these Commissions in the same Parliament were resolved to be illegal and so consented to be by his Majesty Poultons Statutes 3. Car. 1. cap 1. and so declared a little after in the same Parliament in the Petition of Right The third is the Commission of Excise issued to 33. Rushw Hist collect 30. Car. Lords and others of the Privy Councel in which they are commanded to raise Moneys by impositions or otherwise as in their judgements they shall find to be most convenient The Suggestions here were for the most part the same with those in the above mentioned Commission of Loane and yet adjudged by both Houses contrary to Law and the Lords desired his Majesty that this Commission of Excise might be canceld and shortly after it was canceld by the King and thereupon brought so canceld into the Lords House by the Lord Keeper and by the Lords so sent to the Commons In the last place I shall cite the Statute of 17. Car. 1. cap. 14. For the Reversal of the Judgement in the case of the Ship-writs I am not willing as well of brevity as other reasons to recite this Statute at large but I dare engage that no man shall read that Law but will say it is a most direct Judgement in the point against the violation of propriety in case of National danger If any man however shall for reasons best known to himself Arraign or Calumniate this Act of Parliament I shall say no more then this If it be Law why may I not vouch it If it be not why is it not Repeald why doth it still cumber our Statute Books I am heartily sorry to have had so invincible an occasion administred to me here of disturbing the Rest of these sleeping Muniments of propriety but this presumption also must be added to the black train of those Calamities which follow this pernicious Councel It is but natural to mankind to bring in what Arguments they can to preserve their undoubted Rights Juvenal Saty. 3. versus 152. especially when irritated by that unhappy Thing which renders men not only miserable but as the Poet saith Ridicule and contemn'd Neither have I here I hope invaded the just Regalities of his Sacred Malesty for which no person hath an higher veneration then my self but rather confirm'd them 1. Resusutaâ—i fol. 65. For as