22. Extracts from the Argument of Sir Robert Berkeley, Justice of the King's Bench
[1638. State Trials, iii. col. 1090. See Hist. of Engl. viii. 278.]
For my clear delivery and expression of myself, I divide all that I shall say into these four heads. (1) I will state the case and will settle the proper question of it, as the pleadings are. (The true stating and settling of a case conduceth much to the right answer of 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 objections, which have been made on the other side.
Upon my first general head. I hope that none doth imagine, that it either is 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 subjects in general, without common consent in Parliament? If that were made the question, it is questionless that he may not. The people of the kingdom are subjects, not slaves, freemen, not villains, to be taxed de alto et basso.
Though the King of England hath a monarchical power, and hath jura summae majestatis, and hath an absolute trust settled in his crown and person, for government of his subjects; yet his government is to be secundum leges regni. It is one of the questions in the juramentum, regis, at his coronation (see the old Magna Charta, fol. 164); Concedis justas leges et consuetudines regni esse tuendas? And the king is to answer, Concedo. By those laws the subjects are not tenants at the king's will, of what they have. They have in their lands Feodum simplex, which by Littleton's description is, haereditas legitima, vel pura. They have in their goods a property, a peculiar interest, a meum et tuum. They have a birthright in the laws of the kingdom. No new laws can be put upon them; none of their laws can be altered or abrogated without common consent in Parliament.
Thus much I speak to avoid misapprehensions and misreports upon that which I shall say in this case; not as if there were cause of saying so much upon anything challenged on the King's side. We have in print His Majesty's own most gracious Declaration, that it is his maxim, that the people's liberties strengthen the King's prerogative, and that the King's prerogative is to defend the people's liberties.
Secondly, though Mr. Hampden's counsel have spent all their powder in citing a multitude of records, beginning with one in King John's time, and so downwards, to prove that the King's ministers have paid, that the barons have been by writs commanded sometimes to pay, sometimes to make allowances, out of the King's moneys or dues, in cases of foreign auxiliary, and voluntary wars: in cases of particular or ordinary defence of the realm, as upon rebellion of subjects, or inroads by enemies, into parts, marches, or maritime; such enemies I mean, as are not greatly formidable, as are apt to run away when they hear of any force coming against them: in cases of setting forth ships, for scouring the seas from petty pirates, so that merchants may have safe passage: in cases where victuals, or other provisions, were taken from particular persons, by way of purveyance, for soldiers, or for the King's army: in cases of borrowing of money by the King's officers for war, or ordinary or extraordinary defence: in cases of taking money or goods against the owner's consent, by warrant for the King's use, for war, or other manner of defence: in cases where particular men's ships, horses, or armour, were lost in the wars: in cases where private men's houses were used in the King's service: lastly, in cases of general and extraordinary defence, where the King had sufficient aids for that purpose granted to him in Parliament. Although I confess it be true, that the King in all these cited cases must pay of his own, without imposing upon the subject; yet I say that those cases come not close to our case: for every of those cases hath a manifest, particular, and just reason; but none of these reasons are applicable to the case now in question, as is easy to demonstrate, if a man would enter into every of these particulars; which I forbear, for saving of time. And these . records being taken away, the multitude of vouchers on Mr. Hampden's side will be greatly abated.
Thirdly, the case of the ancient tribute called Danegelt, of which Mr. Hampden's counsel hath spoken, though it come nearer than any of the former mentioned cases, yet it much differs from the charge imposed in our case.
Fourthly, I affirm, with some clearness, under favour, that the charge now demanded is not within the ancient acceptation or signification of the words, aids, mises, prizes, taxes, or talliages, which it is to be agreed cannot he exacted by the King, without consent in Parliament. Neither is it within the compass of the word subsidy, which may not be levied, but upon grant of it in Parliament. Aids, if you take the word in a general sense, they were of two kinds: (1) Such as were aids and services too, as pur faire fitz chevalier, pur file marier. That kind of aid, common persons, who had seigniories, had right unto, as well as the King. No colour of comprehending this kind of aids, within the word, aids, pertinent to this question. (2) To the second kind of aids, were sums of money from the subject to the King, by way of help, ad agenda regis; as for making of castles, building of bridges, helps for voluntary or auxiliary wars, or for the King to do his pleasure with, and the like ..... Mises were presentations in kind of a benevolence, upon a King's first coming to his crown; such are yielded at this day in Wales to a Prince of Wales. Prises are taking of part of the subject's goods from them to the King's use without pay; hence prisage of wines at this day.
Fifthly, it cannot be said that the present case is to be stated so, as unless the charge commanded be obeyed, an assured infallible ruin and subversion of this kingdom will happen, and that instantly. In such a case, quid non is lawful; and happy he who by doing any exploit can save the ship from sinking, the body from falling.
Sixthly, it is to be observed that the principal command in the Shipping-Writ is not to levy money, it is to provide a ship; which ship being to be provided at the charge of a multitude, in regard the thing cannot be done any manner of way, but by the means of that which is mensura rerum, namely, money, therefore the instructions in the Shipping-Writ are not only apt, but necessary; that an assessment be made, whereby proportionable sums of money may be collected for the provision of the thing commanded. And thereupon it may be said, that the sum assessed upon every one, and in our case upon Mr. Hampden, is not a debt vi termini, but is rather a duty to be performed as a means conducing to the principal end. The refusal of performance of which duty is a refusal to obey the principal thing commanded, qui negat medium, destruit finem. And the principal thing commanded, being of a kind concerning the commonwealth, the King, who is the head, the sovereign of the commonwealth, and who hath, as incident to his regal office, power of coercion, is by law to exercise such his power of coercion, to inforce such as refuse to join with others in performance of that which is commanded for the commonwealth. And this being the true state and way of the proceedings in the present case, it is apparent, that, though the Scire Facias against Mr. Hampden be in the King's name, yet it is not to have execution as for the King's money, or as for a debt due to the King from Mr. Hampden. But as is manifest, if the whole contexture of the Writ of Scire facias be observed, it is nothing else but to bring on a declaratory payment. That Mr. Hampden ought onerari to the payment of the 20s. assessed upon him. So that with his 20s., together with the other money of Buckinghamshire men, assessed also upon every of them particularly. the ship commanded from the county of Buckingham may be provided.
Seventhly and lastly, having declared of what nature our case is not, I come now to tell you what the state of it is. The true state of our question must be made out of the whole record or pleading of the case, the matter of fact wherein the defendant hath confessed (as I noted in the beginning). In the writ of Aug. 11 Car. and in the Writ of Mittimus, there are causes expressed of the issuing of the writ of Aug. 11, of the Shipping-Writ; those causes are several, but not to be severed, all of them are to be laid together into the balance.
1. Piratae congregati, upon the English seas. 2. Piratae navigium indies preparantes, ad mercatores ulterius molestandos, et ad regnum gravandum. 3. Pericula are undique regno Angliae, in his guerrinis temporibus. 4. Those pericula do imminere regno, nisi citius remedium ponatur; where the word citius is a comparative word, relative to slow ways of remedy, amongst which Parliaments is one. 5. Regi et subditis convenit, omni qua poterint festinatione accelerare, ad regni defensionem, maris tuitionem, et securitatem subditorum.
Out of all those positions it appears that there is in the case real and manifest peril; not panicus terror, fear without cause; tempora are de facto guerrina, there is de facto navium congregatio.
Again, we must observe, that in this case: 1. The command is, ad proficiscendum cum navibus regis. So the King himself is to join with the subject in the common defence. Here is not a quod tibi fieri non vis. Here is rather a contributio than a tributio. 2. The ships and arms to be provided are to continue the subject's own in property. The King doth not assume the property of them to himself; he only commands them to be made and used for the common defence. This appears by the words ad proficiscendum, cum navibus nostris. So the writ sets a distinction between naves nostrae (that is, the King's) and the ships to be provided. See the like of this, m. 28 and 29 Ed. 1, Communia, with the King's Remembrancer, for galleys commanded upon the like occasion; and P. 5, E. 2, and P. 13, E. 2, with the King's Remembrancer, inter brevia directa baronibus. 3. The subjects are commanded, in this case, to be at the expenses, tam in victualibus, quam hominum salariis ad guerram necessariis. This I shall prove clearly anon, to be consonant to law, and warranted by many precedents in the like cases. 4. All the counties of the kingdom, that is, all the kingdom in general, is charged, not any spared; the clergy, the King himself, are to join in the provisions. 5. The final end and scope of all this preparation is defensio regni, tuitio maris, retentio dominii maris, securitas subditorum, salus reipublicae.
Now whether to set the commonwealth free and in safety from this peril of ruin and destruction, the King may not, of his own royal authority, and without common assent in Parliament, impose a charge upon his subjects in general to provide such shipping as is necessary in his royal judgment, to join with His Majesty's own ships to attend them for such time as His Majesty in his royal wisdom shall think fit, and also to enjoin them to be themselves at the expenses, tam in victualibus quam hominum salariis et aliis ad guerram necessariis?
I would be loth to irritate any differing in opinion from me with provoking or odious terms; but I cannot more fully express myself (and so I desire it may be taken as an expression, and not as a comparison) than in saying, that it is a dangerous tenet, a kind of judaizing opinion, to hold that the weal public must be exposed to peril of utter ruin and subversion, rather than such a charge as this, which may secure the commonwealth, may be imposed by the King upon the subject, without common consent in Parliament. So that the security of the commonwealth, for the very subsistence of it, must stay and expect until a Parliament provide for it; in which interim of time, it is possible, nay, apparently probable, yea, in a manner to be presumed, that all may be, yea, will be brought to a final period of destruction and desolation.
All know that the Jews were so strict, that they would not use means for defence of themselves and their country upon their Sabbath. Their enemies took the advantage, and ruined their state.
The Second General Head. I now come to my second general head, wherein I proposed to consider of the fundamental policy, and maxims, and iules of law, for the government of this realm, and of the reasons of law pertinent to our case, which are very many. I will briefly and severally point at those which make impression on me. I. It is plain that as originally, even before the Romans' time, the frame of this kingdom was a monarchical state, so for divers hundreds of years past, upon the Romans' desertion of it, and after the heptarchy ended, it was, and continued, and still continueth monarchical. And our gracious sovereign is a monarch, and the rights of free monarchy appertain unto him; and yet still with this, that he must leges ad consuetudines regni servare, et praecipue leges et consuetudines et libertates a glorioso rege Edwardo (that is, Edward the Confessor) clero populoque concessas; as appears in the old Magn. Chart. fol. 164, tit. juramentum regis quando coronatur.
2. Where Mr. Holborne supposed a fundamental policy in the creation of the frame of this kingdom, that in case the monarch of England should be inclined to exact from his subjects at his pleasure, he should be restrained, for that he could have nothing from them, but upon a common consent in Parliament.
He is utterly mistaken herein. I agree the Parliament to be a most ancient and supreme court, where the King and Peers, as judges, are in person, and the whole body of the Commons representatively. There Peers and Commons may, in a fitting way, parler lour ment, and show the estate of every part of the kingdom; and amongst other things, make known their grievances (if there be any) to their sovereign, and humbly petition him for redress.
But the former fancied policy I utterly deny. The law knows no such king-yoking policy. The law is of itself an old and trusty servant of the King's; it is his instrument or means which he useth to govern his people by. I never read nor heard that lex was Rex; but it is common and most true that Rex is lex, for he is lex loquens, a living, a speaking, an acting law: and because the King is leys loquens, therefore it is said that Hex censetur habere omnia jura in scrinio pectoris sui.
There are two maxims of the law of England, which plainly disprove Mr. Holborne's supposed policy. The first is, 'That the King is a person trusted with the state of the commonwealth.' The second of these maxims is, 'That the King cannot do wrong.' Upon these two maxims the jura summae majestatis are grounded, with which none but the King himself (not his high court of Parliament without leave) hath to meddle, as, namely, war and pence, value of coin, Parliament at pleasure, power to dispense with penal laws, and divers others; amongst which I range these also, of regal power to command provision (in case of necessity) of means from the subjects, to be adjoined to the King's own means for the defence of the commonwealth, for the preservation of the salus reipublicae. Otherwise I do not understand how the King's Majesty may be said to have the majestical right and power of a free monarch.
It is agreed that the King is, by his regal office, bound to defend his people against foreign enemies; our books are so, Fitzherbert, Natura brevium, fol. 118, Est a intendre que le roy doit de droit; saver et defendre son realme com' vers le meere, com' vers enemies. Juramentum Regis, cited before, servabis ecclesiae Dei, clero, et populo, pacem ex integro secundum vires tuas; if ex integro, then against all disturbers of the general peace amongst them, most chiefly, in my judgment, against dangerous foreigners.
Bracton and Glanvill, in the front of their books, published that the King must have arms as well as laws; arms and strength against foreign enemies, laws for doing justice at home. Certainly if he must have these two necessaries, he must be enabled with means for them, and that of himself, not dependent ex aliorum arbitrio; for it is regula juris, lex est, quando quis aliquid alicui concedit, concedit et id sine quo res ipsa esse non potest.
3. Though I have gone already very high, I shall go yet to a higher contemplation of the fundamental policy of our laws: which is this, that the King of mere right ought to have, and the people of mere duty are bound to yield unto the King, supply for the defence of the kingdom. And when the Parliament itself doth grant supply in that case, it is not merely a benevolence of the people, but therein they do an act of justice and duty to the King. I know the most solemn form of Parliament, and of the humble expression of the Commons, of their hearty affection and goodwill to their King, in tendering to him their bills of subsidies or fifteenths.
4. I confess, that by the fundamental law of England, the Parliament is commune concilium regis et regni, that it is the greatest, the most honourable and supreme court in the kingdom; that no man ought to think any dishonourable thing of it: yet give me leave to say that it is but a concilium; to say so is no dishonour to it: the King may call it, prorogue it, dissolve it, at his pleasure; and whatsoever the King doth therein, is always to be taken for just and necessary. We must consider that it is a great body, moves slowly; sudden despatches cannot be expected in it. Besides, though the Parliament cannot err, parliament-men may de facto; every particular member of the House hath his free voice; some of them may chance to make scruples, where there is no cause; it is possible some of them may have sinister ends; these things breed delays, so they may disturbances. I would to God the late woeful experience of this kingdom had not verified these speculations. Yea, there have been, in former times, censures of Parliaments themselves: the Good Parliament, temp. Ed. 3, parliamentum indoctorum, temp. Hen. 4, and in the same King's time, if we believe my Lord Coke, 11, fo. 113, Brangwit, id est, the White-Crow Act. These matters are considerable in such cases as ours is. Wherein apparently Mora trahit periculum, and to follow the rule, Festina lente, is most dangerous.
5. The point of retentio dominii maris (which is in the case) is not of an ordinary consideration; for, besides the ancient inheritance and right which the crown of England hath in it, it is obvious to every judgment, that in the continuance or not continuance of it to the crown, not only the bene esse, but even the esse itself of the commonwealth doth consist; and therefore it behoveth the subjects accelerare to the tuition of it: slowness is an argument of stupidity, or want of that sensibleness of the diminution of that right which every subject ought of right, and hath a concerning reason, to propose to himself.
 Corrected from Stowe MSS. 187/2.
 One of Hampden's counsel.
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