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
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
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