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and the people’s safety bee preserved intire without it in England? And if so, then why shall not the same authority have vigor to repeale it, which wanted not vigor to inforce it? I cannot conceive that the Parliament herein reflected upon what was formall in Law to bee done, but rather upon what was convenient. Such
insignia suprema Majestatis as these, I doe not hold it fit to bee dismembred from the Crowne in policie; I only hold it a thing possible in Law, nay though the King enjoy divers such like prerogatives more, as
J. Jones thinkes, than any Prince in Christendome, yet should not I desire or advise to plucke away one the least Flower out of the Regal 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 been bound in many cases, by Statute-Law, and restrained of divers such priviledges as were not essentiall, but meerly politicall.
Nullum tempus occurrit Regi:9 This was one of the English Royalties, and very beneficiall many wayes; yet wee know this is in divers cases limited by Act of Parliament, and that very justly, as
J. Hutton argues. The great and ancient Tax of Dangelt, it was a Subsidie taken by the Kings of England, for the common defence of the Kingdome; 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 bee admired, that J.
Jones should account this way of aid by Ship-money, or any other, without publicke consent, to bee
Proprium quarto modo10 to the Kings of England, and so unrepealeable, since our Kings have in all ages, done such noble acts without it; and not only defended, but also enlarged their dominions. The last kinde of acception of this word Prerogative, is improper. Thus to pardon malefactors, to dispence with penall Lawes, to grant
Non obstantes, to bee free from attainders, to call or discontinue, to prorogue or dissolve Parliaments, &c. are not truely and properly called Prerogatives: these all in some sense may bee called Munities, or indemnities, belonging to the sacred person of the King, as hee is inviolable, and subject to no force and compulsion of any other. And as he is the soule of Law, in whose power alone it is to execute Law, and yet not to bee constrained thereto. To grant a pardon to some malefactors for some crimes, may perhaps bee as heinous as to commit them; and that which drawes a guilt upon the King, cannot bee said to bee his priviledge. If it might bee tearmed a Royalty, that the King is not questionable, or punishable, or to bee forced in such acts as tend to the obstruction of justice, it might as well be so tearmed in acts tending to the transgression of Law: for in both hee is alike free from any coercive, or vindicative force. For it is out of necessity, not honour, or benefit, that the King hath a freedome from constraint, or restraint in these cases; and that this freedome is inseparable, because no force can be used but by superiours, or equals, and hee which hath either superiors or equals, is no King. If a King should shut up the Courts or ordinary Justice, and prohibit all pleadings and proceedings betwixt man and man, and refuse to authorise Judges for the determining of suits, hee would bee held to doe a most unkingly thing: and yet this may be as truly called a Prerogative, as to disuse and dissolve Parliaments. But it may bee objected, that the King besides such negative priviledge and freedome from force, hath also a positive of seizing subjects’ lands, &c. in divers cases, as in making Bulwarkes upon any man’s land for common defence &c. To this it may be answered, That to such power the King is not intitled by his Prerogative, nor is it any benefite to him, necessitie herein is his only warrant: for either this private inconvenience must happen, or a publick ruine follow and in nature the lesse and private evill is to bee chosen: and here the party trespassed, enjoyes safety by it, and shall after receive satisfaction for his detriment. Were there such apparant unavoidable necessity in the Ship-scot, that either that course must bee taken, or the community inevitably perish, or were the King wholly disinterested in point of profit, or were there hope of restitution, it could not bee without consent, and so not against Law. So then, for ought that is yet alledged, Prerogative, except that which is essentiall to all Kings, without which they cannot bee Kings, is alterable, and it ought to be deduced out of the written and knowne Lawes of the Kingdome, and Law is not to be inferred out of that; wee ought not to presume a Prerogative, and thence conclude it to be Law, but we ought to cite the Law, and thence prove it to be Prerogative. To descend then to our owne Lawes, yet there our Judges vary too. What the Common Law was in this point is doubted by some, and some say if the Common Law did allow the King such a prerogative to lay a generall charge without consent, then Statutes cannot alter it.
Some doe not except against the force of Statute Law, but avoid our particular Statutes by divers several evasive answers. Some say our Great Charter was but a grant of the King, extorted by force; some except against the 25. of Ed. I. because there is a salvo in it; some against the 34. of Ed. I. as made in the King’s absence; some object against the 14. of Ed. 3. as if it were temporary, and because it is not particularly recited in the Petition of Right. And the common evasion of all beneficiall Statutes, and of the Petition of right, is, that they binde the King from imposing pecuniary charges for the replenishing of his owne coffers, but not from imposing such personall services, as this Ship-scot is, in time of danger and necessity. J. Crawly maintains this Ship-scot to bee good by Prerogative at the Common Law, and not to be altered by Statute. What the Common Law was, this Court can best determine; but it is obvious to all men, that no Prerogative can be at the Common Law, but it had some beginning, and that must bee from either King or Subject, or both: and in this, it is not superiour to our Statute Law, and by consequence not unalterable. The Medes and Persians had a Law, that no Law once past, should ever bee repealed; but doubtlesse this Law being repealed first, all others might after suffer the same alteration, and it is most absurd to think that this Law might not bee repealed by the same authority by which it was at first enacted. J. Jones sayes, our Statutes restraine tollages in generall termes, and cites divers cases, that a speciall interest shall not passe from the King, but in special termes. But his cases are put of private grantees, over whom the King ought to retaine a great preheminence: but the Law is, that where the whole state is grantee, that grant shall have the force of a Statute, because it is pro bono publico, and because the whole state is in value and dignity as much to be preferred before the King, as the King is before any private grantee. But J. Jones sayes further, if generall words shall extend to these extraordinary publick levies, then they may as well extend to his ordinary private rights, and intradoes, & so cut off Aide pur faire filz Chivaleir, &c. The contrary hereof is manifest, for the intent of all our Statutes is to defend the subject against such publick tollages and impositions, as every man is equally liable to, and as are not due in Law otherwise, or recoverable by ordinary action. Now these aides, &c. and the King’s ordinary revenues and services, are not such as are due from every man, but recoverable by ordinary action. Howsoever in all these doubts the Law would now bee made cleare, and not only the vertue of Statutes in generall, but also the true meaning of our particular Charters would be vindicated from all these exceptions.
2. I come now to our second difficulty, when a publicke charge may bee laid. Here the favourers of Ship-money yet agree, that the King may not charge the subject meerly to fill his owne coffers, or annually, or when he will invade a forraigne enemy, or when Pirates rob, or burn Townes and Burroughs, for these ordinary defence is sufficient: and when there is imminent and eminent danger of publick invasion, we agree that the subject may be charged.
The Quaere then is, whether the King bee sole Judge of the danger, and of the remedy, or rather whether he be so sole Judge, that his meere affirmation and notification of a danger foreseene by him at a distance, or pretended only to be foreseene, shall be so unquestionable, that he may charge the Kingdome thereupon at his discretion, though they assent not, nor apprehend the danger as it is forewarned. J. Crooke proves the contrary thus: If danger, sayes he, be far distant, if it be in report only of French armadoes, and Spanish preparations, &c. though it bee certaine, and not pretensive, yet Parliamentary Aid may be speedy enough: and if it be imminent, then this way of Ship-scot will not bee speedy enough; for either the designe is really to have new Ships built, and that will require longer time than a Parliament; or else money only is aimed at, whereby to arme other Ships, and for this the Law hath provided a more expedite way than by Ship-scot, in case of imminent danger.
If then the King have power to presse all men’s persons and ships, and all are bound exponere se, & sua,11 and to serve propriis sumptibus,12
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