21. Extracts from the Speech of Oliver St. John in the Ship-money
[November, 1637. Rushworth, ii. 481. See Hist. of Engl. viii.
My Lords, by the law the King is Pater familiae, who by the law
of economics is not only to keep peace at home, but to protect his wife and
children and whole families from injuries from abroad.
It is his vigilance and watchfulness that discovers who are our friends
and foes, and that after such discovery first warns us of them, for he only
hath power to make war and peace.
Neither hath the law only intrusted the care of the defence to His
Majesty, but it hath likewise, secondly, put the armatam potestatem 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 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 Majesty's subjects, though with their
Neither, in the third place, is His Majesty armed only with this
primitive prerogative power of generalissimo, and commander-in-chief,
that none can advance towards the enemy 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 Comitatus; and
therefore it must needs follow, that the Posse Regni is in himself.
My Lords, not to burn daylight longer, it must needs be granted that in
this business of defence the suprema potestas is inherent in His
Majesty, as part of his crown and kingly 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
command the inhabitants of each county to provide shipping for the defence of
the kingdom, 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 is only de modo, by what medium or
method this supreme power, which is in His Majesty, doth infuse and let out
itself 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 in 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 Majesty there is a two-fold power, voluntas, or
potestas interna, or naturalis; externa, or
legalis, which by all the Judges of England, 2 E. 3. fo. 11, is
expressed per voluntatem Regis in camera, and voluntatem Regis per
My Lords, the forms and rules of law are not observed; this supreme
power not working per media, it remains still in himself as voluntas
Regis interna, and operates not to the good and relief of the subject that
standeth in need.
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 in certain and
known channels: an assize in the King's Bench, or an appeal of death in the
Common Pleas, are coram non judice, though the writ be His Majesty's
command; 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 R. 3. fo. 10 & 11.
Where the party is to make fine and ransom at the King's vill and
pleasure, this fine, by the opinion of the Judges of 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 terminis, et non per Regem per se in
camera sua nec aliter coram se nisi per justitiarios suos; et haec est voluntas
Regis, scilicet per justitiarios suos et per legem suam to do it.
And as without the assistance of his Judges, who are his settled counsel
at 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 grieved 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 legitimations, nor do some other things; and yet
is the Parliament His Majesty's Court too, as well as other his Courts of
Justice. It is His Majesty that gives life and being to that, for he only
summons, continues, and dissolves it, and he by his le volt enlivens all
the actions of it; and after the dissolution of it, by supporting 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 Commune 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 Terrae, that is per 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 in trust for the good of
the whole body of the realm; for he alone is trusted with the execution of
The second thing which I observe is this, by the cases before cited it
appears, that without the assistance in Parliament. His Majesty cannot in many
cases communicate either his justice or power unto his subjects.
My Lords, I have now done with the stating of the question: the things
whereupon I shall spend all the rest of my time are these five.
1. 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.
2. 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 admit, that in
some cases the property of the subject's goods, for the 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 seem 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 point.
For the first, that to the altering of the property of the subject's
goods, though for the defence of the realm, that a parliamentary assistance is
In this it must be granted in the first place, that the law ties no man,
and much less the King, to impossibilities.
And secondly, that the kingdom must be defended.
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 this is the aids and
subsidies in Parliament.
That amongst the ardua Regni negotia, for which Parliaments 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 be pro quibusdam arduis negotiis nos et defensionem Regni
nostri Angliae et Ecclesiae Anglicanae concernentibus, And in conclusion,
the party summoned is commanded to be there sicut honorem nostrum, et
salvationem, et defensionem Regni et Ecclesiae 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 parts of the
kingdom being there met, His Majesty having 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 whatsoever is there done; so that it cannot
be done otherwise, I shall endeavour to prove to your Lordships both by reason
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 not do it: if this in the writ therefore may, without resorting
to that, be used, the same argument will hold as before in resorting to the
extraordinary, by [exclusion?] of the ordinary, and the same inconvenience
My second reason is taken from the actions of former Kings in this of
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 of
right, and that without so much as a salvo, or declaration of his
My Lords, it appears not by anything in the writ, that any war at all
was proclaimed against any State, or that if any His Majesty's subjects had
taken away the goods of any prince's subjects in Christendom, but that the
party might have recovered them before your Lordships in any His Majesty's
Courts; go that the case in the first place is, whether in times of peace His
Majesty may, without consent in Parliament, alter the property of the subject's
goods for the defence of the realm.
Secondly, the time that will serve the turn for the 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 rendezvous, the first
of March following; and thereby it appears that 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.