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Carolus Rex, &c.
To the Mayor, commonalty, and citizens of our city of London,
and to the sheriffs of the same city, and good men in the said
city and in the liberties, and members of the same, greeting :
Because we are given to understand that certain thieves, pirates,
and robbers of the sea, as well Turks, enemies of the Christian
name^ as others, being gathered together, wickedly taking by
force and spoiling the ships, and goods, and merchandises, not
only of our subjects, but also the subjects of our friends
in the sea, which hath been accustomed anciently to be defended
by tlie English nation, and the same, at their pleasure, have
carried away, delivering the men in the same into miserable
captivity: and forasmuch as we see them daily preparing all
manner of shipping farther tpniofest our merchants, and to grieve
the kingdom, unless remedj^euQt,^oonerjyp£lied7 and" their
ei ^eavoursH Be not more ma nly met wjthal; also the dangers
considered which, on every side, in these times of war do hang
over our heads, that it behoveth us and our subjects to hasten
the 4^f'^PCfi of the sea apd kin gdom with all expedition or

^ Sir Henry Marten.



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To6 Constitutional Documents- [1^34

sgeed that we can; we willing by the help of God chiefly
to provide for the defence of the kingdom, safeguard of the sea,
security of our subjects, safe conduct of ships and merchandises
to our kingdom of England coming, and from the same
kingdom to foreign parts passing; forasmuch as we, and our
progenitors, Kings of England, have been always heretofore
masters of the aforesaid sea, and it would be very irksome ^unto
us Jf that piincel^honour in our tjmes should be lost or in any
thing^^mmisEed. And although that charge of defence which
concerneth all men ought to be supported by all, as by the
laws and customs of the kingdom of England bath been accus-
tomed to be done: notwithstanding we considering that you
constituted in the sea-coasts, to whom by sea as well great
dangers are imminent, and who by the same do get more plentiful \\ *
gaijis for the defence of the sea, and conservation of our .pme^
honour in that behalf, according to the Suty of youtiJ^Heghni^
against such attempts, are chiefly bound .to set to yourTIHp!^
hand; we command firmly, enjoining you the aforesaid Mayor,
commonalty and citizens, and sheriffs of the said city, and the
good men in the same city and in the liberties, and members of
the same/ in^thfi..feith aAd..AllfigiAn6fi,JEhfii£iiL^o^_§j^fi..b2und
nntojisj and as ^ou do love us and our honour, and^ under the
forfeiture of all which you can forfeit to us, that you cause
to be prepared and brought to the port of Portsmouth, before
the first day of March now next ensuing, one ship of war of
the burden of nine hundred tons, with three hundred and fifty
men at the least, as well expert masters, as very able and skilful
mariners ; one other ship of war of the burden of eight hundred
tons, with two hundred and sixty men at the least, as well
skilful masters, as very able and expert mariners : four other
ships of war, every of them of the biuxien of fi^Q hundred tons,
and every of them with two hundred men at the least, as well
expert masters, as very able and skilful mariners: and one
other ship of war of the burden of three hundred tons, with
a hundred and fifty men, as well expert masters, as very able
and skilful mariners: and also every of the said ships with
ordnance, as well greater as lesser, gunpowder, and spears and
weapons, and other necessary arms sufficient for war, and with
double tackling, and with victuals, until the said first of March,



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r^



1634] First Writ of Ship-Mon&y 107

competent for so many men ; and from that time, for twenty-six
weeks, at your charges, as well in victuals as men's wages, and
other things necessary for war, during that time, upon defence
of the sea in our service, in command of the admiral of the
sea, to whom we shall commit the custody of the sea, before
the aforesaid first day of March, and as he, on our behalf, shall
command them to continue ; so that they may be there the same
day, at the farthest, to go from thence with our ships^ and the
ships of other faithful subjects, for the safeguard of the sea, and
defence of you and yours, and repulse and vanquishing of whom-
soever busying themselves to molest or trouble upon the sea our
n^erchants, and other subjects, and faithful people coming into
our dominions for cause of merchandise, or from thence returning
to their own countries. Also we have assigned you, the aforesaid
Mayor and Aldermen of the city aforesaid, or any thirteen, or
more of you, within thirteen days after the receipt of this writ,
to assess all men in the said city, h-ttij in tha libftrt.jftj^j and
memEers of the 'same, and the landholders in the same^ not
having a ship, or any part of the aforesaid ships, nor serving
in the same, to contrib ute to the ex penses, about the necessary
provision of the premises; and to assess and lay upon the
aforesaid city, with the liberties and members thereof, viz.
upon every of them according to their estate and substances,
and the portion assessed upon them; and to nominate and
appoint collectors in this behalf. Also we have assigned
you, the aforesaid Mayor, and also the Sheriffs of the city
aforesaid, to levy the portions so as aforesaid assessed upon
the aforesaid men and landholders, and every of them in the
aforesaid city, with the liberties and members of the same, by
distress and other due means; and to commit to prison all those
whom you shall find rebellious and contrary in the premises,
there to remain until we shall give further order for their
delivery. And moreover we command you, that about the
premises you diligently attend, and do, and execute those things
with effect, upon peril that shall fall thereon : but we will not,
that under colour of our aforesaid command, more should be
levied of the said men than shall suffice for the necessary
expenses of the premises ; or that any who have levied money
for contribution to raise the aforesaid charges, should by him



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io8 Constitutional Documents [1637

detain the same, or any part thereof; or should piesume, by any
manner of colour, to appropriate the same to other uses; willingi
that if more than may be sufficient shall be collected, the same
may be paid out among the contributors^ for the rate of the part
to them belonging.

Witness myself, at Westminster the twentieth day of
October, in the tenth year of our reign*.



20. Thb King's Case laid befobb the Judges, with tbeib

Answbb '.
[February 7, 1637. Ruthworth, ii. 355. See Hist, of Engl, viii, 207.]
Carolus Rex.

When the good and safety of the kingdom in general is
concerned, and the whole kingdom in danger, whether may not
the King, by writ under the Great Seal of England, command
all the subjects of our kingdom at their charge to provide and
furnish such a number of ships, with men, victuals, and munition,
and for such time as we shall think fit for the defence and
safeguard of the kingdom from such danger and peril, and by
law compel the doing thereof, in case of refusal or refractoriness:
and whether jn such a_case is not the King the sole judge both
of. thfijanger, and when and how the same is tcTBe prevented
and avoided ?

May it please your Most Excellent Majesty,
We have, according to your Majesty's command, every^ man
by.idmself, and all of us together, taken into serious considera-
tion the case and question signed by your Majesty, and inclosed

' In 1635 the writs were extended to the inland counties.

^ An earlier opinion had been given by the Judges at Finch's instance
in November, 1635 (Rushworth, iii. App. 249), to Sis following effect: —
< I am of opinion that, as when the benefit doth more particularly redound
to the ports or maritime parts, as in case of piracy or depredations upon
the seas, that the charge hath been, and may be lawfully imposed upon
them according to precedents of former times ; so when the good and safety
of the kingdom in general is concerned, and the whole kingdom in danger
(of which His Majesty is the only judge), then the charge of the defence
ought to be borne by iJl the realm in general. This I hold agreeably both
to law and reason.*



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i6si] speech of Oliver St John 109

in your royal letter; and we are of opinion, that when the good
and safety of the kingdom in general is concerned, and the
kingdom in danger, your Majesty may, by writ under the Qreat
Seal of England, command all your subjects* of this your
k ingdo m, at thjeir charge to provide ai^d furnish such a number
of ships, with men, victuals, and munition, and for such time
as~y6ur Majesty shall think fit for the defence and safeguard
of this kingdom from such danger and peril ; and that by law r\ 1
your Majesty maj^compel the doing thereof in case of refusal, ^ ,
or refractoriness : and we are also of opinion, that in such case ^
your Majesty is the sole judge both. of the danger, and when
and how the same is to be prevented and avoided.

John Bramston, George Croke,

John Finch, Thomas Trevor,

Humphry Davenport, George Vernon,

John Denham, Francis Crawley,

Richard Button, Robert Berkeley,

William Jones, Richard "Weston.



21. EXTBACTS TBOM THB SPEECH OF OlIVEB St. JoHN IN
THE ShIP-MONBT CASB.

[November, 1637. Ruahworth, ii. 481. See Hist, of Engl. viii. 271.]

Mj Lords, b y the law the King[ is Fater familiae, who by the
law of economics is not only to keep peace at home, but to
protect his wife and children and whole fomilies from injuries
from abroad.

It is his vigilance and watchfulness that discovers who are
our friends and foes, and that after such discovery firat warns
us of them, for he only hath power to make yrar and peace.

Neither hath the law only intrusted the care of the defence
to His Majesty, but it hath likewise, secondly, put the c^ru^'
tarn jwtestqtem and means of defence wholly in his hands ; for
when the enemy is by him discovered and declared, it is not
in the power of the subject to order the way and means of
defence, either by sea or by land, according as they shall think
fit ; for no man without commission or special license from His



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iro Constitutional Documents hesi

Majesty, can set forth any ships to- sea for that purpose ;
neither can any man, without such commission or license, unless
upon sudden coming of enemies, erect a fort, castle, or bulwark,
though upon his own ground; neither, but upon some such
emergent cause, is it lawful for any subject, without special
commission, to arm or draw together any troops or companies
of soldiers, or to make any general collections of money of any
of His Majest/s subjects, though with their consent.

Neither, in the third place, is His Majesty armed only with
this Jpriiintive prerogative power of generalissimo^ and ^om-
mander-iuachief, that none can "advance towards the^nemy
until he gives the signal, nor in other manner than according
to his direction ; but likewise with all other powers requisite ^^^
for the full execution of all things incident to so high a place, ^ " '
as well in times of eminent danger as of actual war. The
sheriff of each county, who is but His Majesty's minister, he
hath the Posse dmitatv^ ; and therefore it must needs follow,
I that iYiQ^Posse Begnija in himself.

My Lords, ikot to bum daylight longer, it must needs be
granted that in this business of deience ihe^mt^rema j^otestas
is inherent in His Majesty, as part of his crown and kingly
1 dignity.

So that as the care and provision of the law of England
extends in the first place to foreign defence, and secondly
lays the burden upon all, and for ought I have to say against
it, it maketh the quantity of each man's estate the rule whereby
this burden is to be equally apportioned upon each person ; so
likewise hath it in the third place made His Majesty the sole
judge of dangers from foreigners, and when and how the same
are to be prevented, and to come nearer, hath given him power
by writ under the Great Seal of England, to_j2iumaa&d the
inhabitants of each county to provide shipping for the defence
of'theTcmgdom, and may by law compel the doing thereof.

So that, my Lords, as I still conceive the question will not
be de persona, in whom the suprema potestas of giving the
authorities or powers to the sheriff, which are mentioned in
this writ, doth lie, for that it is in the King ; but the question
w is onlyj^ modo, by what medium or method this supreme
power, which Is in His Majesty, doth infuse and let out itself



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v^^



I'



1637] speech of Oliver St John m

into this particular; and whether or no in this cause such of
them have been used, as have rightly accommodated, and applied
this power unto this writ in the intended way of defence for the
law of England, for the applying of that supreme power, which
it hath settled iu His Majesty, to the particular causes and
occasions that fall out, hath set down methods and known
rules, which are necessary to be observed.
^ In His Mgjesty there is a two-foMjpower^/tm^^^ or''j)ote8t08
^^^g^Wj^^or 'naturaU£^^ e xterna, or leg cUis, wTiich by alT the ^
Judges oT Engl and, 2 K. 3. ib. xi, is ^xpteBQeS^^er'vWuntatem -. q^
^ ^egis in ca meray^&nd voluntatem Regis p^legem.

My Lords, the foims'^andl'ures of law are not observed;
this supreme power not working jm media, it remains still
in himself a.^ ypltmicis Regis interna, and operates not to the
good and relief of the subject that standeth in need.

To instance,

His Majesty is the fountain of bounty; but a grant of lands
without Letters Patent transfers no estate out of the King to
the patentee, nor by Letters Patents, but by such words as the
law hath prescribed.

His Majesty is the fountain of justice; and though all
justice which is done within the realm flows from this fountain,
yet it must run jn certain and known channels: an assize in the
King^sJBench, or an appeal of death in the Common Pleas,
are coram non jvdice, though the writ be His Majesty's com-
mand ; and so of the several jurisdictions of each Court, the
justice whereby all felons and traitors are put to death, proceeds
from His Majesty; but if a writ of execution of a traitor or
felon be awarded by His Majesty, without appeal or indictment
preceding, an appeal of death will lie by the heir against the
executioner. If the process be legal, and in a right Court,
yet I conceive that His Majesty alone, without assistance of
the Judges of the Court, cannot give judgment. I know
that King John, H. 3, and other Kings, have sat on the King's
Bench, and in the Exchequer; but for ought appears they
were assisted by their Judges. This I ground upon the Book
Case of 2 B. 3. fo. 10 & 11.

Where the party is to make fine and ransom at the King's
'^ will and pleasure, this fine, by the opinion of the Judges of



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112 Constitutional Documents [163^

• England, must be set by the Judges before whom the party was
convicted, and cannot be set by the King: the words of the
book are thus : In terminia, et non per Regem per se in camera 9ua
nee aliter coram ae nisi per justitiarios suoa; et haee est voluntas
Regis, scilicet per justitiarios suos et 2>cr legem suam to do it.

And as without the assistance of his Judges, who are his
settled counsel si law, His Majesty applies not the law and
justice in many cases unto his subjects; so likewise in other
cases : neither is this sufficient to do it without the assistance
of his great Council in Parliament ; if an erroneous judgment
was given before the Statute of 27 Eliz. in the King's Bench, the
King could not relieve his grieyed subjects any way but by Writ
of Error in Parliament ; neither can he out of Parliament alter
the old laws, nor make new, or make any naturalizations or legi-
timations, nor do some other things ; and yet is the Parliament
His Majesty's Court too, as well as other his QourJsoFJustice.
ItTs His Majesty that gives life and being tojhat* for he only
summons, continues^ and dissolves it, and he by his U voU enlivens
all the actions of it; and after the dissolution of it, by sup-
porting his Courts of Justice, he keeps them still alive, by
putting them in execution : and although in the Writ of Wast,
and some other writs, it is called Oommu/ne Concilium Regni,
in respect that the whole kingdom is representatively there;
and secondly, that the whole kingdom have access thither in
all things that concern them, other Courts affording relief but
in special causes ; and thirdly, in respect that the whole kingdom
is interested in, and receive benefit by the laws and things there
passed ; yet it is Concilium Regni no otherwise than the Common
Law is Lex Terras, that is j^er modum Regis whose it is; if
I may so term it in a great part, even in point of interest,
as he .is the head of the Commonwealth, and whose it is wholly
Iq trust for the good^of tfa& "whole body of'tbe realST] for he
alone is trusted with the^executioii of it. *^

The second thing which I observe is this, by the cases
before cited it appears, that with out t he assistance in Parlia-
mentj His Majesty c%QUpt in^.naany oases communicate either
his justice or power unto his subjects.



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1637] speech of Oliver St John 113

My Lords, I have now done with the stating of the question :
the Uiings whereupon I shall spend all the rest of my time are
these five.

r. Admitting that the ordinary means before-mentioned had
been all used, and that they had not been sufficient, whether in
this case His Majesty, without consent in Parliament, may,
in this case of extraordinary defence, alter the property of the
subject's goods for the doing thereof.

a. In the next place I shall endeavour to answer to some
objections which may be made to the contrary.

3. In the third place, for qualifying of this I shall admits
that in some cases the property of the subject's goods, for
die defence of the realm, may be altered without consent in
Parliament ; and I shall show what they be in particular, and
compare them and the present occasion together.

4. In the fourth place, because of some precedents of the
matter of fact, and likewise legal authorities that may Eeem to
prove a legality in this particular of shipping for the defence at
sea, whatever it be in the general ; I shall therefore endeavour
an answer to such of them as I have met withal.

And shall conclude in the last place with the authorities in
pmnt.

For the first, tha£ to the altering of the property of the
sul^ecl'ii goods, though for the defence of the realm, that a
parliamentaryX^Sfiiatancil i&oifice^sary.

In this it must be granted in the first place, that the law..

tiga-aft. jwu flPil.mttfib X^^ the King, to imjjflwihilities.

And secondly, that the ^ing^om mnat 1^ dftfeTi^^<^-
As therefore the law hath put this great trust upon His
Majesty; so when the supplies, which by the ways before
mentioned it hath put into his hands, are spent, therein it
hath provided other ways for a new supply, which is the first
thing that I shall present to your Lordships, and thia is the
aids and subsidies in Parliament.

That amongst the ardua Regni rugotia^ for which Parlia-
ments are called, this of the defence is not only one of them,
but even the chief, is cleared by this, that of all the rest none
is named particularly in the summons, but only this ; for all the
summons to Parliament show the cause of the calling of them to



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114 Constitutional Documents [1637

be pro quihuadam arduis negotils nos et dejmswnem Regni nostri
Angliae etEeclmaeAnglicanaeconcernentibus. And in conclusion,
the party eummoned is commanded to be there siciU honorem
nostrum, et salvationem, et defenaionem Regni et EoclcHae diligit.
And in all the ancient summons of Parliament, when aid
was demanded, the particular cause of defence and against what
enemy in special was mentioned.

My Lords, the Parliament^ as it is best qualified and fitted
to make this supply for some of each rank, and that through
all the paHs of the kingdom being there met, His Majesty
haying declared the danger, they best knowing the estates of
all men within the realm, are fittest, by comparing the danger
and men's estates together, to proportion the aid accordingly.

And secondly, as they are fittest for the preservation of
that fundamental propriety which the subject hath in his lands
and goods, because each subject's vote is included in whatso-
ever is there done ; so that it cannot be done otherwise, I shall
endeavour to prove to your Lordships both by reason and
authority.

My first reason is this, that the Parliament by the law is
appointed as the ordinary means for supply upon extraordinary
occasions, when the ordinary supplies will Hot do it : if this in
the writ therefore may, without resorting to that, be used, the
same argument will hold as before in rem)rting to the extra-
ordinary, by [exclusion 1] of the ordinary, and the same incon-
venience follow.

My second reason is taken from the actions of former Kings
in this of the defence.

The aids demanded by them, and granted in Parliament,
even for this purpose of the defence, and that in times of
imminent danger, are so frequent, that I will spare the citing
of any of them : it is rare in a subject, and more in a prince,
to ask and take that of gift, which he may and ought to have
ot right, and that without so much aa a mlvOt or declaration of
his right.

My Lords, it appears not by anything in the writ, that any
war at all was proclaimed against any State, or that if any



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i^] Argument of Sir Robert Berkeley 115

His Majesty's subjects had taken away the goods of any prince's
subjects in Christendom, but that the party might have re-
covered ihem before your Lordships in any His Majesty's Courts;
so that the case in the first pkce is, whether in times of peace
His Majesty may, without consent in Parliament, alter the
property of flie subject's goods for the defence of the realm.

Secondly, the time that will serve the turn For 1;he' bringing
in of the supplies and means of the defence, appears to your
Lordships judicially by the writ, that is seven months within
four days; for the writ went out Aug. 4, and commands the
ship to be at Portsmouth, the place of ( the re ndezvous^ the first
of March following ; and thereby it appears tCat the necessity
in respect of the time was not such, but that a parliamentary
consent might in that time have been endeavoured for the
effecting of the supply.



22. Extracts peom the Aegumbnt op Sir Robert
Bbrkelet, Justice of the Kino's Bench.

[1638. State Trials, iii. col. 1090. See Hist of Engl. viii. 378.]

For my clear delivery and expression of myself, I divide all
that I shall say into these four heads, (i) I will state the
case and will settle the proper question of it, as the pleadings
are. (TheJane stating and settling of a case conduceth much
to t]yt6 - Kigllt an&wetJi£-it) (2) I will consider the policy and
fundamental rules of the Common Law, applicable unto that
which upon stating the case shall appear to be the proper
question. (3) I will consider the Acts of Parliament, the
answer to petitions in Parliament, and the several Magna
Chartas of the liberties of England, which concern the King's
proceeding in this case. (4) I will answer the material
obijections, which have been made on the other side.

Upon my first general head. I hope that none doth imagine,
that it either \b or can be drawn by consequence, to be any
part of the question in this case, whether the King may at
all times, and upon all occasions, impose charges upon his

I 2



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ii6 Constitutional Documents [1638

subjects in general, without common consent in Parliament?
If that were made the question, it is questionless that he may
not. The neople of the kingdom are subjects, not slaves,
fregmen^ notyillain^to iBe tax ^^'dSTalio^et Ibasso^' "^

Though theKinff jgfjgngland^^h a monarchical power,
and haJITjwra sumrnqfi majestatisy a^djKatE^n'liHsSlute trust
settled ift Jlifl crown and person, f^r governmeni 67 Mb bubjects ;
ye$ his government is to be ggc^?lJ^^3S[g^X^^^^ I^ is one
of the questions in the jv/ramenttmi regis, at his coronation (see
the old Magna Charta^ fol. 164); Goncedis justas Ugea et conr
8uetvdine9 regni esse tuendasf And the king is to answer,
Concede, BjJdioBe laws the subjects are not^tenants^t the king's



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