21. Extracts from the Speech of Oliver St. John in the Ship-money Case.
[November, 1637. Rushworth, ii. 481. See Hist. of Engl. viii. 271.]
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 consent.
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 legem.
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 it.
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 necessary.
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 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 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 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 of right, and that without so much as a salvo, 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 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.
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