The Case of SHIPMONY Briefly Discoursed ACCORDING TO THE Grounds of Law Policie and Conscience AND MOST HVMBLY presented to the Censure and Correction of the High Court of PARLIAMENT Nov. 3. 1640. Printed Ann. Dom. 1640. THE Case of SHIP-MONEY Briefly discoursed GREAT â— Fires happening in Townes or Cities are sometimes the cause that other contiguous houses are spoyld and demolisht besides those which the flame it selfe ceazes So now in the case of Shipmony not onely the judgement it selfe which hath beene given against the subject doth make a great gâ—p and breach in the rights and Franchises of England but the arguments and pleadings also which conduced to that judgement have extended the mischiefe further and scarce left anything unviolated Such strange contradiction there hath beene amongst the pleaders and dissent amongst the Judges even in those Lawes which are most fundamentall that we are lefâ— in a more confused uncertainty of our highest priviledges and those customes which are most essentiall to Freedome then we were before To introduce the legality of the Ship-scot such a Prerogative hath been maintained as destroyes all other Law and is incompatible with popular liberty and such art hath beene used to deny traverse avoid or frustrate the true force or meaning of all our Lawes and Charters that if wee grant Ship-money upon these grounds with Ship-money we grant all besides To remove therefore this uncertainty which is the mother of all injustice confusion and publike dissention it is most requisite that this grand Councell and Tresâ—ault Court of which none ought to thinke dishonourably would take these Ardâ—a Regni these weighty and dangerous difficulties into serious debate an solemnly end that strife which no other place of Judicature can so effectually extinguish That the King ought to have aid of his subjects in time of danger and common aid in case of common danger is laid down for a ground and agreed upon by all sides But about this aid there remainâ—s much variety and contrariety of opinion amongst the greatest Sages of our Law and the principall points therein controverted are these foure First by what Law the King may compell aid Secondly when it is to bee levied Thirdly how it is to be levied Fourthly what kinde of aid it must be 1 Some of the Judges argue from the Law of Nature that since the King is head and â—ound to protect therefore he must have wherewithall to protect but this proves only that which no man denies The next Law insisted upon is Prerogative but it is not punctually explained what Prerogative whether the Prerogative naturall of all Kings or the Prerogative legall of the Kings of England Some of the Judges urge that by Law there is naturall allegeance due to the King from the subject and it doth not stand with that allygeance that the Princes cannot compell aid but must require the common consent therein Others presse that the Law hath â—etled a property of goods in the subject and it doth not stand with that property that the King may demand them without consent Some take it for granted that by Royall Prerogative as it is part of the Lawes of England the King may charge the Nation without publike consent and therefore it being part of the Law it is no invasion upon Law Others take it for granted that to levie money without consent is unjust and that the Kings prerogative cannot extend to any unjust thing So many contrary points of warre doe our Trumpets sound at once and in such confusion doe our Judges leave us whilest either side takes that for granted which by the other is utterly denied By these grounds Royall prerogative and popular liberty may seeme things irreconciliable though indeed they are not neither doth either side in words affirme so much though their proofes bee so contradictory King Charles his maxime is that the peoples liberty strenghteus the Kings prerogative and the Kings prerogative is to maintain the peoples liberty and by this it seemes that both are compatible and that prerogative is the more subordinate of the two The Kings words also since have beene upon another occasion That he ever intended his people should enjoy property of goodâ— and liberty of persons holding no King so great as he that was King of a rich and free people and if they had not property of goods and liberty of persons they could bee neither rich nor free Here we see that the liberty of the subject is a thing which makes a King great and that the Kings prerogative hath only for its ends to maintaine the peoples liberty Wherefore it is manifest that in nature there is more favour due to the liberty of the subject then to the Prerogative of the King since the one is ordained onely for the preservation of the other and then to salve these knots our dispute must be what prerogative the peoples good and profit will beare not what liberty the Kings absolutenesse or prorogative may admitâ— and in this dispute it is more just that we appeale to written Lawes than to the breasts of Kings themselves For we know Nationall Lawes are made by consent of Prince and people both and so cannot bee conceived to be prejudiciall to either side but where the meere will of the Prince is Law or where some few Ministers of his may alleage what they will for Law in his behalfe no mediocrity or justice is to be expected we all know that no slave or villaine can be subjected to more miserable bondage than to be left meerly to his Lords absolute discretion and we all see that the thraldome of such is most grievous which have no bounds set to their Lord discretion Let us then see what Fortescue writes not regard what Court-dependants doe interpret and his words are â—ol 84. cap. 36. Rex Angliae nec per se nec per suos Ministros Tollagia subsidia aut quaevis onera alia impoâ—it lâ—gis suis aut leges corum 〈◊〉 aut nova condit sine concessione vel asseâ—su totius regni sui in Parliamento suo expresso These words are full and generall and plain and in direct affirmance of the ancient Law and usage of England and it is not sufficient for the Kings Counsell to say that these words extend not to Ship-money for if there were any doubt the interpretation ought rather to favour liberty than Prerogative It is not sufficient for Judge Iones to say that it is proprium quarto modo to a King and an inseparable naturall Prerogative of the Crowne to raise monies without assent unlesse he first prove that such Prerogative be good and profitable for the people and such as the people cannot subsist at all without it nay such as no Nation can subsist without it This word Prerogative hath divers acceptions sometimes it is taken for the altitude of Honour sometimes for the latitude of Power So we say the Prerogative of an Emperour is greater than that of
a King and that of a King greater than that of a Duke or petty Potenâ—ate and yet of Kings we say that the King of Denmark hath not so great a Prerogative as the King of England nor the King of England as the King of France c. For here though their honour and title be the same yet their power is not Sometimes Prerogative signifies as much as Soveraignty and in this generall consideration wee say that all supreame Commanders are equall and that they all have this essential inseparable Prerogative that their power ought to be ample enough for their perfection and good of the people and no ampler because the supreame of all humane Lawes is salus populi so this Law all Lawes almost stoope God dispences with many of his Lawes rather than salus populi shall bee endangered and that iron-law which we call necessity itselfe is but subservient to this Law for rather then a Nation shall perish any thing shall be held necessary and legall by necessity But to come to the Prerogative of England and to speâ—ke of it in generall and comparatively we say it is a harmonious composure of policie scarce to be paralleld in all the world it is neither so boundlesse as to opresse the people in unjust things nor so strait as to disable the King in just things by the true fundamental constitutions of England the beame hangs even between the King and the Subject the Kings power doth not tread â—nder foot the peoples liberty nor the peoples liberty the Kings power All other Countries almost in Christendome differ from us in this module of policie some but very few allow a greater spheare of Soveraignty to their Princes but for the most part now adayes the world is given to republistes or to conditionate and restrained forms of government howsoever we ought not to condemne any Nation as unjust herein though differing from us for though they seem perhaps very unpolitick yet it is hard to be affirmed that God and Nature ever ordained the same method of rule or scope of loyality to all States whatsoever besides what dislike soever we take at other regiments yet except it be in very great excesses or defects we must not thinke change alwayes necessary since custome in those great and generall points obtains the force of another nature nature is not to be changed Divines of late have beene much to blame here in preaching one universall forme of government as necessary to all Nations and that not the moderate equall neither but such as ascribes all to Soveraignty nothing at all to popular liberty Some Lawyers also and Statesmen have deserved as ill of late partly by suggesting that our English Laws are too inâ—urious to our King and paâ—â—ly by informing that this King is more limited by Law then his Progenitors were and that till he be as the King of France is Rex Asâ—â—orum he is but a subject to his subjects and as a Minor under the command of guardians bnt what hath ensued out of the Kings jealously of his subject and overstraining his Prerogative nothing but irrepairable losse and mischiefe both to King and Commonwealth and indeed the often and great infections and insurrections which have hapned of late almost all over Europe may suffice to warn all wise Princes not to over-straine their Prerogatives too high not to gâ—ve eare to such Counsellors as some of out Judges are who affirme our Kings Prerogative to be in all points unalterable and by consequence not depending upon Law at all by another exception of this word Prerogative in England we mean such Law here establisht as gives the King such and such preheminences and priviledges before any subject such as are not essentiall to royalty but may bee annulled by the same power by which they were created That a King shall defend and maintaine his subjectes is a duty belonging to the Office not a priviledge belonging to the Crowne of a King this obligation nature layes upon him and no other power can dissolve it Also that subjects shall afford aid and joyne with their Princes in common defence is a duty arising from the allegeance of the people and not an honor redounding only to the Prince natures law hath made this a tie not to be changed or infringed for that which is annexed by an eternall superiour power cannot be made severable by a temporall humane power but that such an Emperour King or Potentate shall have such or such aid and compell it by such or such meanes at such or such times as to the particular modes and circumstances of his aid particular municipall Lawes must direct and these it would bee as dangerous to alter as it is absurd to hold unalterable In a Parlament held by King James it was debated whether or no Tenures in Capite and allowance of Purveyorâ— might bee repealed and divided from the Crowne and it was held that by â—o Act or statute they could bee taken away because they were naturally inherent to the Crowne This resolution seemes very strange to me since the Law of Tenures and Purveyors is not so naturall and essentiall to Monarchy that it cannot or may not subsist without it For if in other Countries it be held a meere politicall way perhaps an inconvenient thing then why may not the Princes Royalty and the peoples safety 〈◊〉 preserved intire without it in England And if so then why shall not the same authority have vigor to repâ—ale it which wanted not vigor to infoâ—â— it I cannot conceive that the Parliament herein reflected upon what was formall in Law to be done but rather upon what was convenient such iâ—signia supremae Majejestatis as these I did not hold it fit to be dismembred from the Crowne in policy I onely hold it a thing possible in law nay though the King enjoyes diverse such like prerogatives more as I. Jones thinkes then any Prince in Christendome yet should not I desire or advise to plâ—â—â—ke away one the least Flower out of the Regall Garland nor would it be perhaps Profitable for the State to suffer the least diminution thereof Wee know also that in England the Prerogative hath beene bound in many cases by Statute-law and restrained of diverse such priviledges as were not essentiall but meerely politicall Nullum tempus occurrit Regi this was one of the English Royalties and very beneficiall many wayes yet wee know this is in diverse cases limited by Act of Parliament and that very justly as I. Hutton argues The great and ancient Tax of Dangelt it was a Subsidue taken by the Kings of England for the common defence of the Kingdoâ—e yet this was first released by King Stephen and after abolished for ever by the statutes of Edward the first and there is no reason why an Act of Parliament should not bee as valid in our case as it was in that Wherefore it is to be admired that J. Iones should account this way
deceived her and in that dismall gust of danger it was good for her and the whole State both that she did not relye upon forced aides of money or the Swords of grieved Souldiers For this Ship-money nothing can be pretended but necessity and certainly necessity is ill pretended when the meere doing of the thing is as dangerous as that for which it is done did not this Ship-scot over-throw all pâ—polar Liberty and so threaten as great a mischiefe as any Conquest can And were not the people justly averse from it Yet meerly for the peoples 〈◊〉 to it it is dangerous to be relied upon in case of great danger Wee know Nature teacheth us all Of two Evils to chuse that which wee thinke the least though it bee not so therefore if the people apprehend this Remedy as a Thing worse then the Disease though they be mistaken therein yet that very mistake may proove fatall The Roman Army beeing harshly treated by the Senators and their proud Generall did refuse to charge upon the Enemy or to resist the charge of the Enemy they chose rather to be slaughtered by Strangers then Enthralled by their Country-men The English also in the late Scotsh invasion by reason of this and many other causes of Discontent made so â—aint resistance that they did almost in a manner Confesse That they held themselves as miserable already as the Scots could make them Thus wee see there is no necessity of levying Ship-money there is rather necessity of Repealing it And we see that presumption of Law doth noâ—â—bet this Necessity but rather crosse it And whereas I. Iones further saith That the Kings Majesty hath no benefit by Ship-money and therefore presumption is the strâ—nger that the King will not take it causelesly We may answere the Ship mony is a â—ery great benefit unto the King For iâ— not immediatly yet 〈◊〉 it is become a Revenew inasmuch as by this 〈◊〉 al other Reâ—enues of the Crowne nay and Tunnage and 〈◊〉 which were not designed only for ordinary Expences but for extraordinary imployments and publicke Charges also are now become dâ—scharged of that tie and the Common-Wealth hath quite lest all its intrest and property in them In point of benefit therefore it is all one to the Kings Majesty and in point of burthen it is all one to the Subject whether Ship-money be accâ—unted of as part of the Kings annuall Rents or no since by it his rents are enlarged And as to the Subject there is no obligation that this 〈◊〉 shal not hereafter incorporate with the rest of the Kings Majesties Intradoeâ— and be swallowed up as Tunnage and Poundage now are Thus we see what the Necessity is and presumption of Law which was so much insisted uppon and yet for a further confutation of both Time the mother of Truth hath now given us more light Now that great danger which was pretended so many yeares together for the necessity of raysing so great supplies of treasure is a small cloud blown over making it apparant that Kings may bee mis informed and by mis information take Mole-hils for Mountaines and cast heavie burthenâ— upon their subjects But I come now to my third Dâ—fficulty how a publick charge is to be laid upon the kingdome The law runs generally that in England no Tollage or pecuniary charge may bee imposed Forsque per common assent de tout la Realme or Si non per common consent de Parliement Some presidents or matters of fact appeare wherein some Kings have divers times invaded this right of the subject but upon conference had with the Iudges or petition in Parliament redresse was ever made and the subjects right re-established All the colour which can be brought to answer the Law in our case is that the words of the law are generall Taxes and Tollages but doe not by special mention restrain extraordinary impositions in time of extraordinary danger But wee know the Petition of Right 3. Car. is grounded upon former Statutes and recites divers of them and is a cleare affirmance of the common right of England and yet by that the commissions for Loanes were damned and it is evident that those Loanes were demanded for the generall defence of the Kingdome in time of imminent danger and by the same Statute not onely Loanes but all other levies of money upon what pretence of danger soever Si non per common consent are condemned as illegall and contrary to the Lawes and Rights of England Two things therefore are objected against Parliaments First that they are of slow motion and so most of the Iudges alledge Secondly that they may be perverse and refuse due aid to the King and so I. Crawley boldly suggests For answere wee say in generall First that it is the wisdome of Kings to bee alwayes vigilant and to have their eyes so open upon forraigne Princes and to maintaine such intelligence that no preparation from abroade may surprize them before recourse had to Parliament and this is very easie to insular Princes who have a competent strength of shipping Secondly to have alwayes in readinesse against all sudden surprizes a sufficient store of ammunition and arms both for sea and land-service and the revenues of the Crowne of England are sufficient for this purpose and have beene held more then sufficient in former times when hostility was greater and the Kingdome smaller Thirdly to seeke advise and assistance from Parliaments frequently in times of quiet as well as of danger as well when warre is bâ—t smoaking or kindling as when it is blown into a flame Before the conquest this was held policie and since in Edward the thirds time a statute past to this purpose and if parliaments of late bee growne into dislike it is not because their vertue is decaid it is because the corruption of the times cannot endure such sharpe remedies Fourthly to speake particularly of this case of ship-money wee say that it is a course more slow then by parliament there was more expedition used in parliament to supply King Châ—rles since hee came to the Crowne then can this way And wee say moreover that as the extremity of the Kingdome was when ship-money was demanded whatsoever was pretended to the contrary a parliament might have beene timely enough called and seasonably enough supplied the King As to the second objection of I. Crawly too unfit to come out of any honest wise mans mouth but much more for a Iudges Iudge Crooke replies that as there is nullum iniquum in Lege so neither in parliamento The three noted factions which are adverse to Parliaments are the papists the prelates and Court parasites and these may bee therefore supposed to hate parliaments because they knowe themselves hatefull to parliaments It is scarse possible for the King to finde out any other that thinkes ill of Parliaments or is ill thought of by Parliaments Of Papists little neede to bee said their enmity is confest they have
of aâ—d by ship-money or any other without publike consent to bee Proprium quarto modo to the Kings of England and since irrepeâ—lable since our Kings have in all ages done such noble acts without it and not onely defended but also enlarged their Dominions The last kinde of acceptâ—â—on of this word Prerogative is improper Thus to pardon malefactors to dispence with penall Lawes to grant Non obstantes to be free from attainders to call or discontinue to prorogue or dissolve Parliaments c. are not truly and properly called Prerogatives these all in some sense may be called Munities or indemnities belonging to the sacred person of the King as he is inviolable and subject to no force compulsion of any other And as he is the soule of Law in whose power alone it is to execute Law and yet not to be constrained thereto To grant a pardon for some malefactors for some crimes may perhaps be as heynous as to commit them and that which drawes a guilt upon the King cannot be said to be his priviledge If it might be tearmed a Royalty that the King is not questionable or punishable or to be forced to such acts as tend to the obstruction of justice it might as well be so tearmed in acts tending to the transgression of Law for in both he is alike free from any coercive or vindicative force For it is out of necessity not honour or benefit that the King hath a freedome from constraint or restraint in these cases and that this freedome is inseparable because no force can be used but by superiours or equals and he which hath either superiours or equall is no King If a King should shut up the Courts of ordinary Justice prohibit all pleadings and proceedings betweene man and man and refuse to authorize Judges for the determining of suits hee would bee held to doe a most unkingly thing and yet this may be as truly called a Prerogative as to difuse and dissolve Parliaments But it may be objected that the King besides such negative priviledge and freedome from force hath also a positive and siezing subjects lands c. in divers cases as in making Bulwarks upon any mans land for common defence c. To this it may be answered That to such power the King is not intituled by his Prerogative nor is it any benefit to him necessity herein is his only warrant for either this private inconvenience must happen or a publike ruine follow and in nature the lesse and private evill is to be chosen and here the party trespassed enjoyes safety by it and shall after receive satisfaction for his detriment Were there such apparent unavoidable necessity in the Ship-scop that either that course must be taken or the community inevitably pepâ—rish or where the King wholly disinteressed in point of profit or were there hope of restitution it could not be without consent and so not against Law So then for ought that is yet alleaged Prerogative except that which is essentiall to all Kings without which they cannot bee Kings is alterable and it ought to be deducsed out of the written and knowne Lawes of the Kingdome and Law is not to be inferred out of that we ought not to presume a Prerogative thence conclude it a Law but we ought not to cite the Law and thence prove it to be Prerogative To descend then to our owne Lawes yet there our Judges vary too What the Common Law was in this point is doubted by some and some say if the Common Law did allow the King such a Prerogative to lay a generall charge without consent then Statutes cannot alter it Some doe not accept against the force of Statute Law but avoid our particular Statutes by divers severall evasive answers Some say our Great Charter was but a grant of the King extorted by force some except against the 25. of Ed. 1. because there is salâ—o in it some against the 34. of Ed. â— as made in the Kings absence some object against the 14. of Ed. 3. as if it were temporary and because it is not particularly reâ—ited in the Petition of Right and the common evasion of all beneficiall Statutes of the Petition of right is that they binde the King from imposing pecuniary charges for the replenishing of his owne coffers but not from imposing such personall services as this Ship-scot is in time of danger and necessity J. Crawly maintaines this Ship-scot to be good by Prerogative at the Common Law and not to be altered by Statute What the Common Law was this Court can best determine but it is obvious to all men that no Prerogative can be at the Common Law but it had some beginning and that must be from either King or Subject or both and in this it is not superiour to our Statute Law and by consequence not unalterable The Medes and Persians had a Law that no Law once past should ever be repealed but doubtlesse this Law being repealed first all others might after suffer the same alteration and it is most absurd to think that this Law might not be repealed by the same authority by which it was at first enacted J. Iones sayes our Statutes restraine tollages in generall termes and cites divers cases that a speciall interest shall not passe from the King but in speciall terms but his cases are put of private grantees over whom the King ought to retaiâ—e a great preheminence but the Law is that where the whole state in grantee that grant shall have the force of a Statute because it is pro bono publico and because the whole State is in value and dignity as much to be preferred before the King as the King is before any private grantee But J. Iones sayes further if generall words shall extend to these extraordinary publike levies then they may as well extend to his ordinary private rights intradoes so cut off Aide pur faire filz Chivalier c. The contrary hereof is manifest for the intent of all our Statutes is to defend the subject against such publike tollages and impositions as every man is equally liable to and as are not due in Law otherwise or recoverable by ordinary action Now these aids c. and the Kings ordinary revenues and services are not such as are due from every man but recoverable by ordinary action Howsoever in all these doubts the Law would now be made cleare and not onely the vertue of Statutes in generall but also the true meaning of our particular Charters would be vindicated from these exceptions 2 I come now to our second difficulty when a publike charge may be laid Here the favourers of Ship-money yet agree that the King may not charge the subject meerly to fill his owne coffers or annually or when he will invade a forraigne enemy or when Pirates rob or burn Townes and Burroughs for these ordinary defence is sufficient and when there is imminent and eminent danger of
that of all kinds of government Monarchicall is the worst when the Scepter is wielded by an unjust and unskillfull Prince though it be the best when such Princes as are not seduceable a thing most rate reigne it will be great discretion in us not to desert our right in those Lawes which regulate and confine Monarchie meerly out of Law-presumption if we must presume well of our Princes to what purpose are Lawes made and if Lawes are frustrate and absurd where in doe we differ in condition from the most abject of all bond-slaves There is no Tyranny more abhorred than that which hath a controlling power over all Law and knowes no bounds but its owne will if this be not the utmost of Tyranny the Turks are not more servile than we are and if this be Tyranny this invention of ship-money makes us as servile as the Turks We must of necessity admit that our Princes are not to be mis-led and then our Lawes are needlesse or that they may be misse-led and then our Lawes are uselesse For if they will listen to ill councell they may bee mooved to pretend danger causlesly and by this pretence defeate all our lawes and liberties and those being defeated what doth the English holde but at the Kings meere discretion wherein doth the excell the Captives condition if wee shall examine why the Mahometan slaues are more miserably treated then the Germans or why the French Pesants are so beggerly wretched and bestially used more then the Hollanders or why the people of Millaine Naples Sicily are more oppressed trampled upon and inthralled then the Natives of Spayne there is no other reason will appeare but that they are subject to more immoderate power and have lesse benefit of law to releeve them In nature there is no reason why the meanest wretches should not enjoy freedome and demand justice in as ample measure as those whom law hath provided for or why Lords which are above law should bee more cruell then those which are more conditionate yet wee see it is a fatal kind of necessity onely incident to immoderate power that it must bee immoderately used and certainly this was well knowne to our incestors or else they would not have purchased their charters of freedome with so great an expence of blood as they did and have endured so much so many yeeres rather then to bee betrayd to immoderate power and prerogative let us therefore not bee too carelesse of that which they were so jealous of but let us look narrowly into the true consequence of this ship-scot whatsoever the face of it appeare to bee It is vaine to stop twenty leakes in a ship and then to leave one open or to make lawes for the restraynt of loyalty all other wayes that it may not overflow the estates of the comminalty at pleasure and yet to leave one great breach for its irruption All our Kings hitherto have beene so circumscribed by law that they could not command the goods of their subjects at pleasure without common consent but now if the King be but perswaded to pretend danger hee is uncontroleable Master of all wee have one datum est intelligi shal make our English Statutes like the politicke hedge of Goâ—eâ—ham and no better I doe not say that this King will falsifie it is enough that wee all and all that wee have are at his discretion if hee will falsifie though vast power bee not abused yet it is a great mischiefe that it may and therefore vast power it selfe is justly odious for divers reasons First because it may fall into the hands of ill disposed Princes such as were K. Iohn Henry the third Edward the second Richard the second These all in their times made England miserable and certainely had their power beene more unconsineable they had made it more miserable The alterations of times doe not depend upon the alteration of the people but of Princes when Princes are good it fares wel with the people when bad ill Princes often vary but the people is alwaies the same in all ages anâ— capable of smal or no variations If Princes would endure to heare this trueth it would bee profitable for them for flatterers alwaies rayse jealousies against the people but the trueth is the people as the sea have no turbulent motion of their owne if Princes like the windes doe not raise them into rage Secondly vast power if it finde not bad Princes it often makes Princes bad It hath often charged Princes as it did Nero from good to bad from bad to worse but Vespasian is the onely noted man which by the Empire was in melius mutatus daily experience teaches this Dangelt in England within 20. yeares increased unto a four-fold proportion Subsidies were in former times seldome granted and few at a time now Parliaments are helde by some to be of no other use then to grant them The Fox in Esop observed that of all the Beasts which had gone to visite the Lyon few of their foot-steps were to be seene retrorsum they were all printed adversum And we find at this day that it is farre more easie for a King to gaine undue things from the people then it is for the people to re-gaine its due from a King This King hath larger Dominions and hath raigned yet fewer years and enjoyed quâ—â—ter times then Queene Elizabeth And yet his taxations hath beene farre greater and his Exploits lesse honourable and the yet people is still helde in more jealousie To deny Shippe-mony which sweeps all is â—eld and accounted a rejection of naturall Allegiance I speake not this to render odious the Kings blessed government God forbid I hold him one of the mildest and most gracious of our Kings And I instance in him the rather that we may see what a bewitching thing flattery is when it touches uppon this string of unlimitable power if this ambition and desire of vast power were not the most naturall and forcible of all sinnes Angels in Heaven and man in Paradize had not falne by it but since it is Princes themselves ought to be the more cautious and cautilous of it Thirdly vast power if it neither find nor make bad Princes yet it makes the good governement of good Princes the lesse pleasing and the lesse effectuall for the common and publicke good And therefore it is a rule both in Law and Policy and Nature Non recurrendum est ad extraordinaria in jis quae fieri possunt perordinaria All extraordinary aides are horrid to the people but most especially such as the Ship-scot is whereby all liberty is over-throwne and all Law subjected unto the Kings meer discretion Queene Elizabeth in eighty eight was victorious without this Taxation and I am fully perswaded she was therefore Victorious the rather because she used it not Her Arte was to account her subjects hearts as her unfailing Exchequer and to purchase them by doing legall just things and this Arte never failed nor
little to pretend for themselves but that parliaments are growne puritannicall The prelates thinke themselves not to have jurisdiction and power enough and they knowe that Parliaments thinke they have too much and abuse that which they have much more therefore to uphold themselves and to crush their ill-willers they not only tax Parliaments of puritanisme but all puritans of sedition as much as in them lies they wed the King to their quarrell perswading him that Parliaments out of puritanisme do not so much aime at the fall of Episcopacie as Monarchy and that Episcopacie is the support of Monarchy so that both must stand and fall together Howbeit because they cannot upbraide Parliaments of attempting any thing against Monarchy further then to mainetaine due liberty therefore they preach an unlimitable prerogative and condemne all law of liberty as injurious to Kings and incompatible with Monarchy Mâ—nâ—arring denies Parliamentary power and honour Câ—well denies propriety of goods further then it the Kings discretion and Harrison accuses Iudge Hutton of delivering law against Gâ—ds Law in the case of Ship-money And the common Court doctrine is that Kings are boundlesse in authority and that they onely are Cesars friends which justifie that doctrine and from this doctrine hath growne all the jealousies of late betweene the King and his best subjects and this is that venemous matter which hath laien burning and ulcerating inwardly in the bowels of the common-wealth so long The other enemies of Parliaments are Court dependants and projectors which have taken advantage of this unnaturall dissention betwixt the King and his Subjects and have found out meanes to live upon the spoile of both by siding with the King and beeing instruments to extend his prerogative to the purchasing of preferment to themselves disaffection to the King and vexation to the common-wealth These three factions excepted and some few Courtiers which are carryed with the current of example or are left to speake unpleasing trueths there is scarce any man in all the Kings dominions which doth not wish for parliaments as the States best physick nay almost as its naturall necessary food but I will instance in three things wherein parliaments excell all other Councells whatsoever 1. For wisedome no advice can bee given so prudent so profound so universally comprehending from any other author it is truely sayd by Sir Robert Cotten that all private single persons may deceive and bee deceived but all cannot deceive one nor one all That an inconsiderable number of Privadoes should see or knowe more then whole Kingdomes is incredible vâ—x populi was ever reverenced as vox Dei and Parliaments are infallble and their acts indisputable to all but Parliaments It is a just law that no private man must bee wiser then Law publickly made Our wisâ—st Kings in England have ever most relied upon the wisedome of Parliaments Secondly no advice can bee so faithfull so loyall so religious and sincere as that which proceeds from parliaments where so many are gathered together for Gods service iâ— such a devout manner we cannot but expect that Gâ—d should bee amongst them and as they have a more especiall blessing promised them so their ends cannot bee so sinister private men may thrive by alterations and common calamities but the common body can effect nothing but the common good because nothing else can bee commodious for them Sir Robert Cotton in the life of Henry the third according to the Court Doctrine at this present saies that in Parliament Kings are ever lesse then they should be and the people more If this bee spoken of irregular Kings which will endure to heare of nothing but prerogative government it may cary some semblance of trueth but sure iâ— is good and wise Kings are ever greatest when they sit immured as it were in that honourable Assembly as the Historie of Queene Elizabeth and many of her progenitors testifies T is true K. Henry the third met with divers oppositions in Parliament Hee was there upbrayded and called dilapidator regni it was true that hee was â—o and the most unworthy of rule that ever sate sate in this Throne yet those words became not subjects I doe not justâ—fie but in some part extenuate such misdemeanors for the chiefe blame of those times is not to bee throwne upon the 〈◊〉 and commons but upon the King and his out-landiâ—â— parasites It is without all question also that in those bloudy unjust â—imes had it not beene for frequent parliaments and that soveraigne remedy which thereby was applyed to the bleeding wounds of the Kingdome no other helpe could have stanched them Even then when Parliaments were most prevalent and when they had so much provocation from so variable an uncapable a Prince they did not seeke to conditionate prerogative or to depresse Monarchy for the future though they were a little to injurious to him in person for the present Since that time also many Parliaments hâ—ve had to struggle for due liberty with insolent princes and have had power to clip the wings of Royalty and the custome of all Europe almost besides hath seemed to give such countenance to such attempts but the deepe wisedome inviolable loyalty of Parliaments to this composure of governement hath bin such that they never made any invasion upon it As it was in all former ages so it now remaines intire with all its glorious ensignes of honour and all the complements of power and may hee be as odious which seekes too alter or diminish Monarchicall governement for the future as he which seekes to make it infinite and slanders Parliaments as enemies to it or endeavors to blow such jealousies into the Kings eares 3. No advice can bee so sit so forcible so effectuall for the publicke welfare as that which is given in Parliament if any Cabinet Counsellours could give as wise sincere advice as Parliaments yet it could not bee so profitable because the hearts of the people doe not goe along with any other as with that That King which is potent in Parliament as any good King may is as it were so inskonsed in the hearts of his subjects that he is almost beyond the trayns or aimes of treason and rebellion at home nay forraign hostility cannot peiâ—ce him but through the sides of all his people It ought to bee noted also that the English have ever beene the most devoted servants coequall sweetly-moderate Soveraignty so in our English Parliaments where the Nobility is not too prevalent as in Denmark nor the Comminalty as in the Netherlands nor the King as in France Iustice and policie kisse and embrace more lovingly then elsewhere And as all the three States have alwayes more harmoniously born their just proportionable parts in England then elsewhere so now in these times in these learned knowing religious times we may expect more blessed counsell from Parliaments then ever we received heretofore May it therefore sinke into the heart of our King to adhere to
publike invasion we agree that the subject may be charged The quaere then is whether the King bee sole Judge of the danger and of the remedy or rather whether he be so sole Judge that his meere affirmation and notification of a danger foreseene by him at a distance or pretended onely to be foreseene shall be so unquestionable that he may charge the Kingdome thereupon at his discretion though they assent not nor apprehend the danger as it is forewarned J. Crooke proves the contrary thus If danger sayes he be far distant if it be in report only of French Armadoes and Spanish preparations c. though it be certaine and not pretensive yet Parliamentary aid may be speedy enough and if it be imminent then this way of Ship-scot will not be speedy enough for either the designâ— is really to have new Ships built and that will require longer time than a Parliament or else money onely is aimed at whereby to arme other Ships and for this the Law hath provided a more expedite way than by Ship-scot in case of imminent danger If then the King have power to presse all mens persons and Ships and all are bound exponere se sua and to serve propriis sumptiâ—us when imminent danger is and this defence hath alwayes beene held effectuall enough it is consequent that if he be not destitute of competent aid in present distresses he cannot pretend a greater necessity in dangers more remote when they are but suspected or perhaps pretended onely My Lord Bramston sayes here that there is a necessity of preventing a necessity and that the Sea is part of the Kingdome and therefore of necessity to be guarded as the Kingdome The answer is That the safety of the Kingdome does not necessarily depend upon the Ship-scot and so this necessity being removed the necessity grounded upon this fals off of it selfe For if the Kingdome may escape ruine at hand when it is a storme without Ship-money it may much more escape it afar off being but a cloud But grant the Sea to be a part of the Kingdome to some purposes yet how is it a part essentiall or equally valuable or how does it appeare that the fate of the Land depends wholly upon the dominion of the Sea France subsists now without the regiment of the Sea and why may not we as well want the same If England quite spend it selfe and poure out all its treasure to preserve the Seigniory of the Seas it is not certaine to exceed the Navall force of France Spaine Holland c. And if it content if selfe with its ancient strength of shipping it may remaine as safe as it hath formerly done Nay I cannot see that either necessity of ruine or necessity of dishonour can be truly pretended out of this that France Spaine Holland c. are too potent at Sea for us The dominion of the Seas may be considered as a meer right or as an honour or as a profit to us As a right it is a theame fitter for schollers to whet their wits upon then for Christians to fight and spill bloud about and since it doth not manifestly appeare how or when it was first purchased or by what Law conveyed to us we take notice of it only as matter of wit and disputation As it is an honour to be masters of the Sea and to make others strike saile to us as they passe it s a glory fitter for women and children to wonder at then for States-men to contend about It may bee compared to a chaplet of flowers not to a diadem of gold but as it is a profit to us to fence and inclose the Sea that our neighbours â—hall not surprise us unawares its matter of moment yet it concernes us but as it doth other Nations by too insolent contestations hereupon wee may provoke God and dishonour our selves we may more probably incense our friendâ— then quell our enemies we may make the land a slave to the sea rather than the sea a servant to the land but I pray Master Selden to pardon me for this transition and I returne my matter if the Kingdome could not possibly subsist without Ship-money in such a danger yet there is no necessity that the King should be so sole Judge of that danger as that he may judge therein contrary to the opinion and perhaps knowledge of other men I allow the King to be supreame and consequently sole Judge in all cases whatsoever as to the right and as to the diffusion of Judgement but as to the exercise and restraint of judgement he is not nor ought not to be accounted sole Judge In matters of Law the King must create Judges and sweare them to judge uprightly and impartially and for the subâ—ect against himselfe if Law so require yea though he be of contrary judgement himselfe and by his Letters sollicite the contrary The Kings power is as the disgestive faculty in nature all parts of the body contribute heat to it for their owne benefit that they may receive backe againe from it a better concocted and prepared supply of nourishment as it is their office to contribute so it is the stomacks to distribute And questionlesse sole judgement in matters of State does no otherwise belong to the King then in matters of Law or points of Theologie Besides as sole judgement is here ascrâ—bed to the King he may affirme dangers to be foreseeâ—e when he will and of what nature he will if â—e say onely Datum est nobis intelliâ—i as he does in his Writ c. To his sole indisputable judgement it is left to lay charges as often and as great as â—e pleases And by this meanes if he regard not his word more than his profit he may in one yeare draine all the Kingdome of all its treasure and leave us the most despicable slaves in the whole world It is ridiculous also to alleage as J. Iones does that it is contrary to presumption of Law to suspect falsity in the King for if Law presume that the King will not falsly pretend danger to vex his subjects of his owne meere motion yet no Law nor reason nor policy will presume that the King may not be induced by mis-information to grieve the people without cause The Sunne is not more visible than this truth our best Kings King Charles King Iames Queene Elizabeth and all the whole ascending line have done undue illegall things sometimes contrary to the rights and Franchises of England being mis-informed but having consulted with the Judges or States in Parliament they have all retracted and confessed their error Nay there is nothing more knowne or universally assented to than this that Kings may be bad and it is more probable and naturall that evill may be expected from good Princes than good from bad Wherefore since it is all one to the State whether evill proceed from the King mediately or immediately out of malice or ignorance and since wee know
Parliaments and to abhorre the grosse delusive suggestions of such as disparage that kinde of Councell May lie rather conâ—ide in that Community which can have no other end but their owne happinesse in his greatnesse thè◠in Papists Prelates and Projectors to whom the publick disunion is advantagious May he affect that gentle Prerogative which stands with the happinesse freedome and riches of his people and 〈◊〉 that terrible Scopter which does as much avert the hearts as it doth debâ—litaâ—e the hands and exhaust the purses of his Subjects May he at last learnd by 〈◊〉 that the grievance of all 〈◊〉 that that mischiefe which makes all mischiefes 〈◊〉 and almost hopelesse in England at this day is that Parliaments are clouded and disused and suffered to be 〈◊〉 by the ill boding incendiâ—ries of our State May it lustly enter into his beleefe that it is impossible for any Kingdome to deny publicke assent for their 〈…〉 when publicke danger is 〈…〉 and when it is fairely required and not by projects extorted that no Nation can unnaturally seeke its owne 〈…〉 may make their Subjects purses their owne private coffers if they will demand due things at due times and by due meanes 4. I come now to the last difficulty about the condition and nature of such aydes as are due by Law from the Subject to the King Though much have beene argued both at the barre and on the Bench for the King that he may raise moneyes from his Subjects without consent by Law Prerogative and necessity Yet at last because the Petition of Right absolutely crosses this tenet it is restored to us backe againe and yeelded that the King may not impose a pecuniary charge by way of Tollage but onely a personall one by way of service And now all our controversie ends in this that we must contest whether the Ship-scot be a â—ecuniary or a personall charge For though the intent of the Writ and the office of the Shâ—â—iffe be to raise moneyes onely yet the words of the Writ and the pretence of State is to build and prepare Ships of warre The Kingdome generally takes this to be a 〈◊〉 delusion and imposture and doubtlesse it is but a pick lock tricke to overthrow all liberty and propriety of goods and it is a great shame that so many Judges should be abetters to such fraudulent practice contrived against the State It is not lawfull for the King to demand moneyes as moneyes but it is lawfull to demand moneyes under another wrong name and under this wrong name all former Lawes and Liberties shall be as absolutely cancelled as if they had beene meere cobwebs or enacted onely out of meere derision If former lawes made to guard propriety of goods were just and grounded upon good reason why are they by this grosse fallacie or childish abuse defeated If they were not just or reasonable what needes such a fond subtiltie as this why should they not be fairely avoided by Law Why were they made at all But be this invention what it will yet we see it is new if it be quashed the State is but where it was we are still as our Ancestors left us and since our preceeding Kings never heretofore put it in use in the most necessitous calamitous times we may from hence inferâ—e that the plea of State necessity falls off of it selfe if we admit not of this innovation then the State suffers not but if we admit it no necessity being of it we can frame no other reason for our so doing but that our former franchises and priviledges were unjust and therefore this way they must be annulled Some of our Judges doe prove that if this were a personall service yet it were void and they cite the case of Barges and Ballingers vessells built truly for Warre in time of Imminent danger and yet these charges upon complaint made by the Subject were revoked and disclaimed But here in this case many other enormities and defects in Law Lare for if ships be intended to be built in Inland Countries a thing impossible is injoyned and if moneyes be aimed at that very ayme is against Law and if the Kingdome were to be disfranchised it were not to be done by all illegall way Besides in the Writ in the Assessement in the Sheriffes remedy against Recusants of it in the execution of Law by or after judgment many inconveniences errors and mischiefes arise many wayes and sure take the whole case as it is and since the Creation no whole Kingdome was ever cast in such a cause before Besides though the Iudges ought wholly to have beâ—â— themselves upon this to have proved this a personall service and no pecuniary charge they have roved after necessity presumption of Law and Prerogative and fearce said any thing at all hereof My Lord Brainston argues very eagerly that personall services by Sea and Land are due to the King in cases of extremity and all their records case and presidents prove no more and that men may be arrayed and ships pressed and that sumptibus populi but there is nothing proved that the meere raising of moneyes in this case is a personall service I. Iones indeed argues to this purpose If the Law intrust the King with so great a power over mens persons why not over their estates There is cleare reason for the contrary because the King if he should abuse mens personall aides could not inrich or profit himselfe thereby and we know it is gaine and profit it is Auri sacra fames which hath power over the breasts of men It is not ordinary for Tyrants to imbattaile hoasts of men and make them charge upon the Sea-billowes and then to gather up Cockles and Piwinckle shells in lieu of spoile as one did once but the World abounds with stories of such Princes as have offended in abusing their power over mens estates and have violated all right divine and humane to attaine to such a boundlesse power Good Kings are sometimes weake in coveting boundlesse power some affect rivality with God himselfe in power and yet places that power in doing evill not good for few Kings want power to doe good and therefore it misbecomes not sometimes good Subjects to be jealous in some things of good Kings But J. Iones farther sayes that Ships must be built and without money that cannot be done ergo This necessity hath beene answered and disproved already and I now adde that for the good of the Kingdome there is more necessity that Ship-money be damned then maintained Such unnaturall slavery seems to mee to be attendant upon this all-devouring project and such inâ—amy to our Ancestors our Lawes and our selves nay and such danger to the King and his posterity that I cannot imagine how any forraigne conquest should induce any thing more to be detested and abhorred Those Kings which have beene most covetous of unconfined immoderate power have beene the weakest in judgment and commonly their lives have beene poore and
toylsome and their ends miserable and violent so that if Kings did rightly understand their owne good none would more shunne uncontrollable absolutenesse then themselves How is the King of France happy in his great Prerogative or in that terrible stile of the King of Asses â—ee see that his immoderate power makes him oppresse his poore Pesants for their condition is most deplorable and yet set his power aside and there is no reason why he should not be as a Father to cherish them as a God to comfort them not as an enemy to impoverish them as a tormentor to afflict them 2. His oppression makes him culpable before God he must one day render a sad account for all the evill which he hath imposed for all the good which he hath not procured to them That the Vicegerent of God should doe the office of a tyrant will be no light thing one day 3. His sinne makes him poore for were his Pesants suffered to get wealth and enjoy it the whole Land would be his treasury and that treasury would containe twice as much as now it doth 4. His poverty makes him impotent for money being the sinewes of warre how strong would his joynts be if all his subjects were abounding in money as doubtlesse they would if they wanted not liberty and propriety besides poverty depresses the spirit of a Nation and were the King of France King of an Infantery as he is onely of a Cavalrie were he a King of men as he is onely of beasts had he a power over hearts as he hath over hands that Country would be twice as puissant as it is 5. His impotence together with all other irregularities and abuses is like to make his Monarchy the lesse durable Civill wars have ever hitherto infected and macerated that goodly Countrey and many times it hath been near it's ruine it now enjoyes inward peace but it doth no great exploits abroad nor is ever likely to doe unlesse by practising upon the distemper of other Nations should some other Prince practise in the like manner upon that and propose liberty to the grieved people much advantage might be taken but these avisoes would better proceed from that most heroick most terrible most armipatent Churchman which effects such great wonders here wee see hence that Princes by some gaine lose as the whole body pines by the swelling of the spleene we see that Rehâ—â—oam catcht an immoderate power as the Dog in the fable at a shadow but in stead of an uncertain nothing he let fall and lost a certaine substance and yet flatterers have scarce any other baiâ—e then this shadow of immoderate power whereby to poison the phantasies of weake humours undiscerning rash Princes My humble motion therefore is First that the judgement given in the Chequâ—r Chamber for Ship-money may bee reversed and damned as contrary to the right of the Subject Secondly that those Iudges which adhered to equity and integrity in this case might have some honourable guerdon designed them Thirdly that some dishonourable penalty may bee imposed upon those Iudges which ill advised the King herein and then argued as Pleaders not as Iudges especially if any shall appeare to have solicited the betraying of the Kingdome Fourthly that the meaning of our Lawes Charters may bee fully and expresly declared and the force and vertue of Statutes and publicke Grants may be vindicated from all such exceptions and objections as have beene particularly or generally made against them Fifthly that a clearer solution may be given in the foure maine points stirred how farre prerogative is arbitrary and above Law and how farre naturall Allegeance bindes to yeeld to all demands not of Parliament next how the King is sole Judge of danger as that his meere cognizance thereof shall be sufficient though there be no appearance or probability thereof Next how a necessity of publicke â—â—ine must be concluded now if Ship-money be not levied when no such ruine hath been formerly when this new plot was not devised Lastly how this Ship-scot pretending ships but intending money and really raising the same can be said to be no pecuniary tollage within our Statutes but a meere personall service Sixthly that any Officers or Ministers of State which shall attempt to lay the like taxes hereafter upon the Subject by vertue of the like void warrants may be held and taken as Felons or Traytors or forcible Intruders Seventhly that something may be inacted against forraigne and domesticall Forces also if they shall be congregated for the like purposes and that the subject may be inabled by some fit and timely remedy to be given against a military kinde of government Eighthly that the due way of publicke defence in case of imminent and eminent danger or actuall necessary warre for the pressing of men and other charges of warre such as Cote and Conduct money and all doubts thereabouts may be made more certaine and settled for the time to come Ninthly that if the Kings ordinary 〈◊〉 now taken for the Crowne be not sufficient to maintaine him as our great Master some legall order may be taken therefore and that he may be sensible of his Subjects loyalty and his Subjects live safe under him that his enemies may finde him considerable and his true friends usefull FINIS 3.