Leveller Tract No. 282: Henry Parker, The Case of Shipmoney (Nov. 1640)

[Henry Parker], The Case of Shipmony briefly discoursed, according to the Grounds of Law, Policy, and Conscience. And most humbly presented to the Censure and Correction of the High Court of Parliament, Nov. 3. 1640. Printed Anno Dom. 1640.

[Henry Parker, 1604-1652]

Henry Parker, one of the most prolific writers in the cause of Parliament in the civil war era, has also been dubbed the clearest and most realistic. A graduate of St. Edmund Hall, Oxford, he was called to the bar at Lincoln’s Inn in 1637. Parker quickly put his talents to work in support of the Presbyterian, and later the Independent, opponents of the Crown. During the civil war and Interregnum Parker held a series of important posts for Parliament. He served as secretary to Parliament’s army under the Earl of Essex, then in 1645 as secretary to the House of Commons where he prepared various declarations, and finally as secretary to Cromwell’s army in Ireland. He died in Ireland late in 1652, aged forty-eight.

Parker was renowned among his contemporaries and is recognized among modern historians as one of Parliament’s most important theorists. His first published tract, the anonymous “The Case of Shipmony Briefly Discoursed” reprinted here, was prepared for presentation to the Long Parliament on the day it convened. Three editions appeared. It is not only a vigorous denunciation of a levy widely condemned as an abuse of the royal prerogative but underlines for us the grave constitutional threat contemporaries saw in shipmoney itself and, even more, in the legal reasoning with which the royal judges had upheld it. With crystal clarity Parker forges the link between political grievance and constitutional menace. The Long Parliament went on to outlaw shipmoney.

Great Fires happening in Townes or Cities, are sometimes the cause that other contiguous houses are spoiled and demolisht, besides those which the flame itselfe seizes. So now, in the case of Shipmoney, not only the judgement itselfe which hath been given against the subject, doth make a great gap 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 been amongst the pleaders, and dissent amongst the Judges, even in those Lawes which are most fundamentall, that we are left in a more confused uncertainty of our highest priviledges, and those customes which are most essentiall to Freedome, than we were before. To introduce the legality of the Ship-scot,1 such a prerogative hath been maintained, as destroyes altogether Law, and is incompatible with popular liberty: and such Art hath been 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 wee grant all besides. To remove therefore this uncertainty, which is the mother of all injustice, confusion, and publicke dissention, it is most requisite that this grand Councell and Treshault Court2 (of which none ought to thinke dishonourably) would take these Arduis Regni, these weighty and dangerous difficulties, into serious debate, and 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 times of danger, and common aid in case of common danger, is laid downe for a ground, and agreed upon by all sides. But about this aid there remaines 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 bee 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 bound 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 allegeance that our Princes cannot compell aid, but must require the common consent therein. Others presse, that the Law hath setled 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 publick 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 King’s 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 irreconcileable, 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 people’s liberty strengthen the King’s prerogative, and the King’s prerogative is to maintaine the people’s liberty; and by this it seemes that both are compatible, and that prerogative is the more subordinate of the two. The King’s words also since have been upon another occasion, That he ever intended his people should enjoy property of goods, 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 King’s prerogative hath only for its ends to maintaine the people’s liberty. Wherefore it is manifest, that in nature there is more favour due to the liberty of the subject, than to the Prerogative of the King, since the one is ordained only for the preservation of the other; and then to solve these knots, our dispute must be, what prerogative the people’s good and profit will beare, not what liberty the King’s absolutenes or prerogative may admit: and in this dispute it is more just that wee 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 alledge 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 Lord’s absolute discretion: and wee all see that the thraldome of such is most grievous, which have no bounds set to their Lord’s discretion. Let us then see what Fortescue writes, not regard what Court dependents doe interpret, and his words are for 84. Cap. 36. Rex Anglia nec per se nec per suos Ministros Tollagia subsidia aut quavis onera alta imponit legis suis, aut leges corum mutat, aut nova condit sine concessione vel assensu totius regni sui in Parliamento sui expresso.3 These words are full, and generall, and plaine, and in direct affirmance of the ancient Law and usage of England, and it is not sufficient for the King’s 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 Jones to say that it is proprium quarto modo4 to a King, and an inseparable naturall prerogative of the Crowne to raise monies without assent, unlesse he first prove that such prerogative bee 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 has divers acceptions: sometimes it is taken for the altitude of Honour, sometimes for the latitude of Power. So wee say the prerogative of an Emperour is greater, than that of a King and that of a King, greater than that of a Duke, or petty Potentate: and yet of Kings we say that the King of Denmarke has 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 honor 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 essentiall inseparable Prerogative, that their power ought to be ample enough for the perfection, and good of the people, and no ampler: because the supreame of all human lawes is salus populi. To 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 wee call necessity itselfe, is but subservient to this law: for rather than a Nation shall perish, any thing shall be held necessary, and legal by necessity. But to come to the Prerogative of England, and to speake of it in generall, and comparatively; wee say it is a harmonious composure of policy, scarce to be parralled in all the world, it is neither so boundlesse as to oppresse the people in unjust things, nor so straite as to disable the King in just thinges. By the true fundamentall constitutions of England, the beame hangs even between the King and the Subject: the King’s power doth not tread under foot the people’s liberty, nor the people’s liberty the King’s power. All other Countries almost in Christendome, differ from us in this module of policy: some, but very few, allow a greater sphere of Soveraignty to their Princes; but for the most part now adays the world is given to republists, or to conditionate and restrained forms of government. Howsoever wee 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 bee affirmed that God and Nature ever ordained the same method of rule, or scope of royalty to all States whatsoever. Besides what dislike soever wee take at other regiments, yet except it bee in very great excesses or defects, wee must not thinke change always necessary, since custome in those great and generall points obtaines the force of another nature & nature is not to be changed. Divines of late have been 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 libertie. Some Lawyers also and Statesmen have deserved as ill of late, partly by suggesting that our English lawes are too injurious to our King; and partly by informing, that this King is more limited by law than his Progenitors were, & that till hee be as the King of France is Rex Asinorum,5 hee is but a subject to his subjects, and as a Minor under the command of guardians: but what hath ensued out of the King’s jealousy of his subjects, and overstraining his prerogative? Nothing but irreparable losse, and mischiefe both to King and Commonwealth. And indeed the often and great defections, and insurrections, which have happened of late, almost all over Europe,6 may suffice to warne all wise Princes, not to overstrain their Prerogatives too high; nor to give care to such Counsellors as some of our Judges are, who affirme our King’s Prerogative to be in all points unalterable, and by consequence not depending upon law at all. By an other exception of this word Prerogative in England, we mean such law here establisht as gives the King such and such preeminences, and priviledges: before any subject, such as are not essentiall to royalty, but may be annulled by the same power, by which they were created. That a King shall defend and maintaine his subjects, is a duty belonging to the Office, not a priviledge belonging to the Crowne of a King; this obligation nature lays upon him, and no other power can dissolve it. Also that subjects shall afforde aide, and joine with their Princes in common defence, is a duty arising from the allegiance of the people, and not an honor redounding only to the Prince; nature’s 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 human 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 be as dangerous to alter, as it is absurd to hold unalterable. In a Parliament held by King James, it was debated, whether or no Tenures in Capite,7 and allowance of Perveyors8 might bee repealed and divided from the Crowne; and it was held that by no 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 bee held a meere politicall way, perhaps an inconvenient thing, then why may not the Prince’s Royalty, 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 when imminent danger is, and this defence hath alwayes beene held effectuall enough, it is consequent that if hee be not destitute of competent Aid in present distresses, he cannot pretend a greater necessity in dangers more remote, when they are but suspected or perhaps pretended only.

My Lord Bramston sayes here, that there is a necessity of preventing a necessity: and that the Sea is part of the Kingdome, and therefore of necessity to bee guarded as the kingdome. The answer is, That the safety of the Kingdome does not necessarily depend upon the Ship-scot, and so this necessity being removed, the necessity grounded upon this, falls off of itselfe. For if the Kingdome may escape ruine at hand when it is a storme, without Ship-money, it may much more escape it afar off, being but a cloud. But grant the Sea to be a part of the Kingdome to some purposes, yet how is it a part essentiall, or equally valuable, or how does it appeare that the fate of the Land depends wholly upon the dominion of the Sea? France subsists now without the regiment of the Sea, and why may not we as well want the same? If England quite spend itselfe, and poure out all its treasure to preserve the Seigniory of the Seas, it is not certaine to exceed the Navall force of France, Spaine, Holland, &c. And if it content itselfe with its ancient strength of shipping, it may remaine as safe as it hath formerly done. Nay I cannot see that either necessity of ruine, or necessity of dishonour can bee truly pretended out of this, that France, Spaine, Holland, &c. are too potent at Sea for us.

The dominion of the seas may be considered as a meer right, or as an honour, or as a profit to us. As a right it is a theme fitter for schollers to whet their wits upon, than for Christians to fight and spill bloud about: and since it doth not manifestly appeare, how or when it was first purchased, or by what law conveyed to us, wee take notice of it only as matter of wit and disputation. As it is an honour to bee masters of the sea, and to make others strike saile to us as they passe; it’s a glory fitter for women and children to wonder at; than for Statesmen to contend about. It may bee compared to a chaplet of flowers, not to a diadem of gold: but as it is a profit to us to fence and inclose the sea, that our neighbours shall not surprise us unawares, it’s matter of moment, yet it concernes us but as it doth other Nations. By too insolent contestations hereupon, wee may provoke God, and dishonour ourselves; we may more probably incense our friends, than quell our enemies, wee may make the land a slave to the sea, rather than the sea a servant to the land. But I pray Master Selden to pardon me for this transition, and I returne my matter. If the Kingdome could not possibly subsist without Ship-money in such a danger, yet there is no necessity that the King should be so sole Judge of that danger, as that he may judge therein contrary to the opinion, and perhaps knowledge of other men. I allow the King to be supreame, and consequently sole Judge in all cases whatsoever, as to the right, and as to the diffusion of Judgement; but as to the exercise, and restraint of judgment, he is not, nor ought not to be accounted sole Judge. In matters of Law the King must create Judges, and swear them to judge uprightly, and impartially, and for the subject against himself, if law so require; yea though hee bee of contrary judgement himselfe, and by his Letters sollicite the contrary. The King’s power is as the disgestive faculty in nature, all parts of the body contribute heat to it for their owne benefit, that they may receive backe againe from it a better concocted and prepared supply of nourishment, as it is their office to contribute, so it is the stomacke’s to distribute.

And questionlesse sole judgement in matters of State, does no otherwise belong to the King, than in matters of Law, or points of Theology. Besides, as sole judgement is here ascribed to the King, hee may affirme dangers to be foreseene when he will, and of what nature he will: if he say only, Datum est nobis intelligi,13 as he does in this Writ, &c. To his sole indisputable judgement it is left to lay charges as often and as great as he pleases. And by this meanes, if he regard not his word more than his profit, hee may in one yeare draine all the Kingdome of all its treasure, and leave us the most despicable slaves in the whole world.

It is ridiculous also to alledge, as J. Jones does, that it is contrary to presumption of Law to suspect falsity in the King: for if Law presume that the King will not falsly pretend danger to vexe his subjects, of his owne meere motion, yet no Law nor reason nor policy will presume, that the King may not be induced by misinformation to grieve the people without cause. The Sunne is not more visible than this truth, our best Kings, King Charles, King James, Queene Elizabeth, and all the whole ascending line, have done undue illegall things at some times, contrary to the rights and Franchises of England, being misinformed, but having consulted with the Judges, or States in Parliament, they have all retracted, and confessed their error. Nay there is nothing more knowne, or universally assented to than this, that Kings may be bad; and it is more probable and naturall that evill may bee expected from good Princes, than good from bad. Wherefore since it is all one to the State, whether evill proceed from the King mediately or immediately, out of malice, or ignorance. And since wee know that of all kindes of government Monarchicall is the worst, when the Scepter is weilded by an unjust or unskilfull Prince, though it bee the best, when such Princes as are not seduceable (a thing most rare) reigne, it will bee great discretion in us not to desert our right in those Lawes which regulate and confine Monarchy, meerly out of Law-presumption, if wee must presume well of our Princes, to what purpose are Lawes made? and if Lawes are frustrate and absurd, wherein doe we differ in condition from the most abject of all bondslaves?

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 Turkes are not more servile than we are and if this be Tyranny, this invention of ship-money makes us as servile as the Turkes. We must of necessity admit, that our Princes are not to be misse-led, and then our Lawes are needlesse; or that they may be misse-led, and then our Lawes are useless. For if they will listen to ill counsell, they may be moved to pretend danger causlesly; and by this pretence defeate all our lawes and liberties, and those being defeated, what doth the English hold, but at the King’s meere discretion, wherein doth he excell the Captive’s condition? If we shall examine why the Mohametan slaves are more miserably treated, than the Germans, or why the French Pesants are so beggarly, wretched, and beastially used more than the Hollanders, or why the people of Milan, Naples, Sicily are more oppressed, trampled upon, and inthralled than the Natives of Spaine? 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 than those which are more conditionate. Yet we see it is a fatall kind of necessity only incident to immoderate power, that it must be immoderately used: and certainly this was well known to our ancestors, or else they would not have purchased their charters of freedome with so great an expence of bloud as they did, and have endured so much so many yeares, rather than to bee betrayed 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 be. It is vaine to stop twenty leakes in a ship, and then to leave one open, or to make lawes for the restraint of royalty all other ways, that it may not overflow the estates of the Commonalty at pleasure, and yet to leave one great breach for its irruption.

All our Kings hitherto have been so circumscribed by law, that they could not command the goods of their subjects at pleasure without common consent. But now if the King bee but perswaded to pretend danger, hee is uncontroleable Master of all we have, one datum est intelligi, shall make our English Statutes like the politick hedge of Goteham, and no better. I doe not say that this King will falsifie, it is enough that we all, and all that we have are at his discretion if he will falsifie, though vast power be not abused, yet it is a great mischiefe that it may, and therefore vast power itselfe is justly odious, for divers reasons. First, because it may fall into the hands of ill disposed Princes, such as were King John, Henry the third, Edward the second, Richard the second. These all in their times made England miserable, and certainly had their power beene more unconfineable, 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 well with the people, when bad ill. Princes often vary, but the people is always the same in all ages, and capable of small, or no variations. If Princes would endure to heare this truth it would bee profitable for them, for flatterers always raise jealousies against the people; but the truth 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 made Princes bad. It hath often changed Princes, as it did Nero from good to bad, from bad to worse: but Vespasian is the only noted man which by the Empire was in melius mutatus: daily experience teaches this. Dangelt in England within twenty yeares increased to a fourefold proportion.

Subsidies were in former times seldome granted, and few at a time, now Parliaments are held by some to bee of no other use than to grant them. The Fox in Aesop observed that of all the beasts which had gone to visite the Lion, few of their footesteps were to be seene retrorsum: they were all printed Adversum. And we finde at this day that it is farre more easie for a King to gaine undue things from the people, than it is for the people to regaine its due from the King. This King hath larger dominions, and hath raigned yet fewer yeares and enjoyed quieter times than Queen Elizabeth; and yet his taxations have been farre greater, and his exploits lesse honorable, and the people is still held in more jealousy. To deny ship-money which sweeps all, is held a rejection of naturall allegiance. I speake not this to render odious the King’s blessed government, I hold him one of the mildest, and most gracious of our Kings; and I instance in him the rather, that wee may see, what a bewitching thing flattery is, when it touches upon 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 Paradise had not fallen by it; but since it is, Princes themselves ought to be more cautious of it. Thirdly, vast power if it neither finde nor make bad Princes, yet it makes the good government of good Princes the lesse pleasing, and the lesse effectuall, for publick good: and therefore it is a rule both in law and policy, and nature, Non recurrendum est ad extraordinaria, in iis quae fieri possunt per ordinaria.14 All extraordinary aides are horrid to the people, but most especially such as the ship-scot is, whereby all liberty is overthrowne, and all law subjected to the King’s meer discretion.

Queen Elizabeth in 88. was victorious without this taxation, and I am perswaded she was therefore victorious the rather, because shee used it not. Her art was to account her subjects’ hearts as her unfailing Exchequer, and to purchase them by doing legall just things, and this art never deceived her, and in that dismall gust of danger it was good for her and the State, both that she did not rely upon forced aides of money, or the words of grieved souldiers; for this Ship money nothing can bee pretended but necessity, and certainly necessity is ill pretended, when the meer doing of the thing, is as dangerous as that for which it is done. Did not this Ship-scot over-throw all popular liberty, and so threaten as great a mischife as any conquest can? and were not the people justly averse from it? Yet meerly for the people’s disaffection to it, it is dangerous to bee relied upon in case of great danger.

We know Nature teacheth us all, of two evils to chuse that which wee thinke the least, though it bee not so; therefore if the people apprehend this remedy as a thing worse than the disease, though they be mistaken therein, yet that very mistake may prove fatall. The Roman Army being harshly treated by the Senators, and their proud Generall, did refuse to charge upon the enemy, or to resist the charge of the enemie, they chose rather to bee slaughtered by strangers, than enthralled by their countreymen. The English also in the late Scotch invasion, by reason of this and many other causes of discontent, made so faint resistance, that they did in a manner confesse, that they held themselves as miserable already as the Scots could make them. Thus we see there is no necessity of levying Ship-money, there is rather necessity of repealing it: and wee see that presumption of Law doth not abet this necessity, but rather crosse it. And whereas J. Jones further saith, That the King hath no benefite by Ship-money, and therefore presumption is the stronger, that the King will not take it causelesly; wee may answer: The Ship-money is a very great benefite to the King for if not immediatly, yet mediatly it is become a revenue, inasmuch as by this addition all other revenues of the Crowne, nay and Tunnage and Poundage, which were not designed only for ordinary expences, but for extraordinary imployments, and publicke charges also, are now become discharged of that tie, & the Common-wealth hath lost all its interest and property in them. In point of benefit therefore it is all one to the King, and in point of burthen it is all one to the subject, whether Ship-money bee accounted of as part of the King’s annuall rents, or no, since by it his rents are enlarged: and as to the subject there is no obligation, that this levie shall not hereafter incorporate with the rest of the King’s In-traders and be swallowed up as Tunnage and Poundage now are. Thus we see what the necessitie is, and presumption of Law, which was so much insisted upon; and yet for a further confutation of both, Time, the mother of Truth, hath now given us more light. Now that great danger which was pretended so many years together for the necessity of raising so great supplies of treasure, is as a small cloud blown over, making it apparant that Kings may bee mis-informed; and by mis-information take Molehils for Mountaines, and cast heavie burthens upon their subjects.

3. But I come now to my 3d Difficultie, How a publick charge is to be laid upon the kingdome. The Law runs generally, that in England no Tollage or pecuniary charge may bee imposed Fors que per common assent de tout la Realme, or, Sinon per common consent de Parliament. Some presidents, or matters of fact appeare, wherein some Kings have divers times invaded this right of the subject, but upon conference had with the Judges, or petition in Parliament, redresse was ever made, and the subject’s right re-established. All the colour which can be brought to answer the Law in our case, is, that the words of the law are general of Taxes & Tollages, but do not by special mention restrain extraordinary danger. But wee know the Petition of Right, 3. Car. is grounded upon former Statutes, and recites divers of them, and is a cleare affirmance of the common right of England; and yet by that the commissions for Loanes were damned. And it is evident that those Loanes were demanded for the generall defence of the Kingdome in time of imminent danger; and by the same Statute, not only Loanes, but all other levies of money upon what pretence of danger soever, Si non per common consent, are condemned as illegall, and contrary to the Lawes and Rights of England. Two things therefore are objected against Parliaments: First, that they are of slow motion, and so most of the Judges alledge. Secondly, that they may be perverse, and refuse due aid to the King, and so J. Crawly boldly suggests. For answer we say in generall: First, that it is the wisdome of the Kings to be alwayes vigilant, and to have their eyes so open upon forraigne Princes, and to maintaine such intelligence that no preparation from abroad may surprize them before recourse had to Parliament; and this is very easie to Insular Princes, who have a competent strength of shipping, Secondly, to have alwayes in readinesse against all sudden surprizes, a sufficient store of amunition and arms both for sea and land-service: and the revenues of the Crowne of England are sufficient for this purpose, and have been held more than sufficient in former times, when hostility was greater, and the Kingdome smaller. Thirdly, to seek advice and assistance from Parliaments, frequently in times of quiet, as well as of danger, as well when war is but smoking, or kindling, as when it is blowne into a flame. Before the conquest this was held policie, and since in Edward the third’s time, a statute past to this purpose; and if Parliaments of late be growne into dislike, it is not because their vertue is decayed, it is because the corruption of the times cannot endure such sharp remedies. Fourthly, to speak particularly of this case of ship-mony, we say that it is a course more slow than by Parliament: there was more expedition used in Parliament to supply King Charles, since he came to the Crowne, than can this way. And we say moreover, that as the extremity of the Kingdom was when Ship-money was demanded, whatsoever was pretended to the contrary, a Parliament might have beene timely enough called, and seasonably enough supplied the King. As to the second objection of J. Crawly, too unfit to come out of any honest wise man’s mouth, but much more for a Judge’s, Judge Crooke replies, that as there is nullum iniquum in Lege, so neither in Parliamento.15 The three noted factions which are adverse to Parliaments, are the Papists, the Prelates, and Court Parasites; and these may be therefore supposed to hate Parliaments, because they know themselves hatefull to Parliaments. It is scarce possible for the King to finde out any other that thinkes ill of Parliaments or is ill thought of by Parliaments. Of Papists little need to bee said, their enmity is confest, they have little to pretend for themselves, but that Parliaments are grown Puritanicall. The Prelates thinke themselves not to have jurisdiction and power enough; and they know that Parliaments think they have too much, and abuse that which they have much more: therefore to uphold themselves, and to crush their ill-willers, they not only tax Parliaments of Puritanisme, but all Puritans of sedition. As much as in them lies, they wed the King to their quarrell, perswading him that Parliaments out of Puritanisme, doe not so much aime at the fall of Episcopacie, as Monarchy: and that Episcopacie is the support of Monarchy, so that both must stand and fall together. Howbeit because they cannot upbraid Parliaments of attempting anything against Monarchy further than to maintaine due liberty, therefore they preach an unlimitable prerogative, and condemne all law of liberty as injurious to Kings, and incompatible with Monarchy. Manwarring denies Parliamentary power and honour, Cowel16 denies propriety of goods, further than at the King’s discretion, and Harrison17 accuses Judge Hutton of delivering law against God’s Law, in the case of Ship-money. And the common Court doctrine is that Kings are boundlesse in authority, and that they only are Cesar’s friends which justifie that doctrine; and from this doctrine hath grown all the jealousies of late betweene the King and his best Subjects; and this is that venemous matter which hath lain burning, and ulcerating inwardly in the bowels of the common-wealth so long. The other enemies of Parliaments, are Court dependants, and projectors, which have taken advantage of this unnaturall dissention betwixt the King and his Subjects; and have found out meanes to live upon the spoile of both, by siding with the King, and being instruments to extend his Prerogative to the purchasing of preferment to themselves, disaffection to the King, and vexation to the common-wealth. These three factions excepted, and some few Courtiers which are carried with the current of example, or are left to speake unpleasing truths, there is scarce any man in all the King’s dominions, which doth not wish for Parliaments, as the State’s best physick, nay almost as its naturall necessary food: but I will instance in three thinges wherein Parliaments excell all other Counsells whatsoever.

1. For wisdome, no advice can be given so prudent, so profound, so universally comprehending, from any other author; it is truly said by Sir Robert Cotton, that all private single persons may deceive and bee deceived; but all cannot deceive one, nor one all.

That an inconsiderable number of Privadoes should see or know more than whole Kingdomes, is incredible: vox populi was ever reverenced as vox Dei, and Parliaments are infallible, and their acts indisputable to all but Parliaments. It is a just law, that no private man must bee wiser than Law publickly made. Our wisest Kings in England, have ever most relied upon the wisdome of Parliaments.

Secondly, no advice can bee so faithfull, so loyall, so religious and sincere, as that which proceeds from Parliaments, where so many are gathered together for God’s service in such a devout manner, we cannot but expect that God should bee amongst them: and as they have a more especiall blessing promised them; so their ends cannot be so sinister. Private men may thrive by alterations: and common calamities, but the common body can affect nothing but the common good, because nothing else can be commodious for them. Sir Robert Cotton in the life of Hen. 3. according to the Court Doctrine at this present, sayes, that in Parliament Kings are ever lesse than they should be, and the people more. If this bee spoken of irregular Kings, which will endure to heare of nothing but Prerogative government, it may carry some semblance of truth: but sure it is, good and wise Kings are ever greatest when they sit immured, as it were, in that honorable assembly: as the History of Queen Elizabeth and many of her Progenitors testifies. Tis true, Hen. the third, met with divers oppositions in Parliament. He was there upbraided, and called dilapidator regni;18 it was true that he was so, and the most unworthy of rule, that ever sate in this Throne; yet those words became not subjects. I doe not justifie, but in some part extenuate such misdemeanours; for the chiefe blame of those times is not to bee throwne upon the Peeres and Commons, but upon the King and his outlandish Parasites. It is without all question also that in those bloudy unjust times, had it not been for frequent Parliaments, and that soveraigne remedy which thereby was applied to the bleeding wounds of the Kingdome, no other helpe could have stanched them.

Even then, when Parliaments were most prevalent, and when they had so much provocation from so variable and uncapable a Prince, they did not seeke to conditionate prerogative, or to depresse Monarchy for the future, though they were a little too injurious to him in person for the present.

Since that time also many Parliaments have had to struggle for due liberty with insolent Princes, and have had power to clip the wings of Royalty; and the custome of all Europe almost besides hath seemed to give some countenance to such attempts; but the deepe wisdome, and inviolable loyalty of Parliaments to this composure of government hath beene such, that they never made any invasion upon it. As it was in all former ages, so it now remaines intire with all its glorious ensignes of honour, and all the complements of power; and may he be as odious which seekes to alter or diminish Monarchicall government for the future, as he which seekes to make it infinite, and slanders Parliaments as enemies to it, or indeavours to blow such jealousies into the King’s eares.

3. No advice can be so fit, so forcible, so effectuall for the publicke welfare, as that which is given in Parliament: if any Cabinet Counsellors could give as wise and sincere advice as Parliaments, yet it could not be so profitable, because the hearts of the people doe not goe along with any other, as with that.

That King which is potent in Parliament, as any good King may, is as it were so insconsed in the hearts of his subjects, that he is almost beyond the traines or aimes of treason and rebellion at home, nay forraigne hostility cannot pierce him, but through the sides of all his people.

It ought to be noted also, that as the English have ever beene the most devoted servants of equall, sweetly-moderate Soveraignty; so in our English Parliaments, where the Nobility is not too prevalent, as in Denmark, nor the Comminalty, as in the Netherlands, nor the King, as in France, Justice and Policie kisse and embrace more lovingly than elsewhere. And as all the three States have alwayes more harmoniously borne their just proportionable parts in England than elsewhere, so now in these times, in these learned, knowing, religious times, we may expect more blessed counsell from Parliaments than ever, wee received heretofore. May it therefore sinke into the heart of our King to adhere to Parliaments, and to abhorre the grosse delusive suggestions of such as disparage that kinde of Councell. May he rather confide in that Community which can have no other end but their owne happinesse in his greatnesse, than in Papists, Prelates, and Projectors, to whom the publick disunion is advantagious. May hee affect that gentle Prerogative which stands with the happinesse, freedome, and riches of his people; and not that terrible Scepter which does as much avert the hearts, as it does debilitate the hands, and exhaust the purses of his Subjects. May he at last learne by experience, that the grievance of all grievances, that that mischiefe which makes all mischiefes irremediable, and almost hopelesse in England at this day, is that Parliaments are clouded, and disused, and suffered to be calumniated by the ill boding incendiaries of our State. May it lastly enter into his beleefe, that it is impossible for any Kingdome to deny publicke assent for their Prince’s aid, either in Parliament or out, when publicke danger is truly imminent, and when it is fairely required, and not by projects extorted: that no Nation can unnaturally seeke its owne ruine, but that all Kings, like Constantine, may make their Subjects’ purses their owne private coffers, if they will demand due things, at due times, and by due meanes.

4. I come now to the last difficulty about the condition and nature of such aides as are due by Law from the Subject to the King. Though much hath beene argued both at the barre and on the Bench, for the King, that he may raise monies from his Subjects, without consent by law, prerogative, and necessity. Yet at last, because the Petition of Right absolutely crosses this tenet, it is restored to us backe againe, and yeelded, that the King may not impose a pecuniary charge by way of Tollage, but only a personall one by way of service. And now all our controversie ends in this, that we must contest, whether the Ship-scot be a pecuniary, or a personall charge. For though the intent of the Writ, and the office of the Sheriffe be to raise monies only, yet the words of the Writ, and the pretence of State, is to build and prepare Ships of warre. The Kingdome generally takes this to bee a meere delusion and imposture, and doubtlesse it is but a picklock tricke, to overthrow all liberty and propriety of goods, and it is a great shame that so many Judges should be abetters to such fraudulent practice contrived against the State. It is not lawfull for the King to demand monies as monies, but it is lawfull to demand monies under another wrong name, and under this wrong name all former Lawes and Liberties shall be as absolutely cancelled, as if they had beene meere cobwebs, or enacted only out of meere derision. If former laws made to guard propriety of goods were just, and grounded upon good reason, why are they by this grosse fallacy, or childish abuse defeated. If they were not just, or reasonable, what needs such a fond subtiltie as this? Why should not they bee fairely avoided by Law? Why were they made at all? But be this invention what it will, yet wee see it is new; if it be quashed, the State is but where it was, we are still as our Ancestors left us; and since our preceeding Kings never heretofore put it in use in the most necessitous calamitous times, we may from hence infer, that the plea of State necessitie falls off of itselfe; if we admit not of this innovation, then the State suffers not; but if wee admit it, no necessity being of it, wee can frame no other reason for our so doing, but that our former franchises and priviledges were unjust, and therefore this way they must bee annulled. Some of our Judges doe prove, that if this were a personall service, yet it were void; and they cite the case of Barges, and Ballingers vessells, built truly for warre in time of imminent danger, and yet these charges upon complaint made by the Subject, were revoked, and disclaimed. But here in this case many other enormities and defects in Law are, for if ships bee intended to be built in Inland Countries, a thing impossible is injoined; and if monies be aimed at, that very aime is against Law: and if the Kingdome were to be disfranchised, it were not to bee done by an illegall way.

Besides, in the Writ, in the Assessement, in the Sheriffe’s remedie against recusants of it, in the execution of Law, by, or after Judgement, many inconveniences, errors, and mischiefes arise many wayes: and sure take the whole case as it is, and since the Creation no whole Kingdome was ever cast in such a cause before.

Besides, though the Judges ought wholly to have bent themselves upon this, to have proved this a personall service, and no pecuniary charge, they have roved after necessity, presumption of Law, and Prerogative, and scarce said anything at all hereof.

My Lord Bramston argues very eagerly, that personall services by Sea and Land are due to the King in cases of extremity, and all their records, cases, and precedents prove no more, and that men may be arrayed, and ships pressed, and that sumptibus populi;19 but there is nothing proved that the meere raising of monies in this case, is a personall service. J. Jones indeed argues to this purpose: If the Law intrust the King with so great a power over men’s persons, why not over their estates? There is cleare reason for the contrary: because the King, if he should abuse men’s personall aides, could not inrich or profit himselfe thereby, and we know it is gaine and profit, it is Auri sacra fames20 which hath power over the breasts of men. It is not ordinary for Tyrants to imbattaile hoasts of men, and make them charge upon the Sea-billowes, and then to gather up Cockles and Piwinckle shells in lieu of spoile, as one did once. But the world abounds with stories of such Princes, as have offended in abusing their power over men’s estates, and have violated all right divine and human, to attaine to such a boundless power.

Good Kings are sometimes weake in coveting boundlesse power; some affect rivality with God himselfe in power, and yet places that power in doing evill, not good: for few Kings want power to doe good, and therefore it misbecomes not sometimes good Subjects to be jealous in some things of good Kings. But J. Jones farther sayes, that Ships must be built, and without money that cannot be done: ergo. This necessity hath beene answered, and disproved already: and I now adde, that for the good of the Kingdome there is more necessity that Ship-money bee damned than maintained. Such unnaturall slavery seems to mee to bee attendant upon this all-devouring project, and such infamy to our Ancestors, our Lawes, and ourselves, nay and such danger to the King and his posterity, that I cannot imagine how any forraigne conquest should induce anything more to be detested and abhorred.

Those Kings which have beene most covetous of unconfined immoderate power, have beene the weakest in judgement, and commonly their lives have beene poore and toilsome, and their ends miserable, and violent: so that if Kings did rightly understand their owne good, none would more shunne uncontrollable absolutenesse than themselves.

How is the King of France happy in his great Prerogative? or in that terrible style of the King of Asses? Wee see that his immoderate power makes him oppresse his poore Pesants, for their condition is most deplorable, and yet set his power aside, and there is no reason why he should not be as a father to cherish them, as a God to comfort them, not as an enemy to impoverish them, as a tormentor to afflict them.

2. His oppression makes him culpable before God: he must one day render a sad account for all the evill which hee hath imposed, for all the good which he hath not procured to them. That the Vicegerent of God should doe the office of a tyrant, will be no light thing one day.

3. His sinne makes him poore: for were his Pesants suffered to get wealth and enjoy it, the whole land would be his treasury, and that treasury would containe twice as much as now it doth.

4. His poverty makes him impotent, for money being the sinewes of warre, how strong would his joints be, if all his subjects were abounding in money, as doubtlesse they would, if they wanted not liberty, and propriety? Besides, poverty depresses the spirit of a Nation: and were the King of France, King of an Infantery, as he is only of a Cavalry, were he a King of men, as he is only of beasts, had he a power over hearts as he hath over hands, that Country would be twice as puissant as it is.

5. His impotence, together with all other irregularities, and abuses is like to make his Monarchy the lesse durable. Civill wars have ever hitherto infected and macerated that goodly Country, and many times it hath been near its ruine. It now enjoys inward peace, but it doth no great exploits abroad, nor is ever likely to doe, unlesse by practising upon the distemper of other Nations. Should some other Prince practise in the like manner upon that, and propose liberty to the grieved people, much advantage might be taken: but these avisoes would better proceed from that most heroick, most terrible, most armipotent Churchman, which effects such great wonders here. Wee see hence that Princes by some gaine lose, as the whole body pines by the swelling of the spleene. We see that Rehoboam catcht at immoderate power, as the dog in the fable at a shadow, but instead of an uncertain nothing, he let fall and lost a certaine substance; and yet flatterers have scarce any other baite than this shadow of immoderate power, whereby to poison the phantasies of weake humours, undiscerning rash Princes.

My humble motion therefore is: First, that the judgement given in the Chequer Chamber for Ship-money, may bee reversed, and damned, as contrary to the right of the Subject.

Secondly, that those Judges which adhered to equity and integrity in this case, might have some honourable guerdon21 designed them.

Thirdly, that some dishonourable penalty may bee imposed upon those Judges which ill advised the King herein, and then argued as Pleaders, not as Judges; especially if any shall appeare to have solicited the betraying of the Kingdome.

Fourthly, that the meaning of our Lawes & Charters, may bee fully and expresly declared, and the force and vertue of Statutes and publicke Grants, may be vindicated from all such exceptions and objections as have beene particularly or generally made against them.

Fifthly, that a clearer solution may bee given in the foure maine points stirred, how farre prerogative is arbitrary and above Law; and how farre naturall allegeance bindes to yeeld to all demands not of Parliament: next, how the King is sole Judge of danger, as that his meere cognizance thereof shall be sufficient, though there be no appearance or probability thereof. Next, how a necessity of publicke ruine must bee concluded now, if Ship-money be not levied, when no such ruine hath been formerly, when this new plot was not devised. Lastly, how this Ship-scot pretending ships, but intending money, and really raising the same, can bee said to bee no pecuniary tollage within our Statutes, but a meere personall service.

Sixthly, that any Officers, or Ministers of State, which shall attempt to lay the like taxes hereafter upon the Subject, by vertue of the like void warrants, may be held and taken as Felons, or Traitors, or forcible Intruders.

Seventhly, that something may be inacted against forraigne or domesticall Forces also, if they shall be congregated for the like purposes; and that the subject may bee inabled by some fit and timely remedy to bee given against a military kinde of government.

Eighthly, that the due way of publicke defence, in case of imminent and eminent danger, or actuall necessary warre, for the pressing of men, and other charges of warre, such as Cote and Conduct money,22 and all doubts thereabouts, may be made more certaine, and settled for the time to come.

Ninthly, that if the King’s ordinary Revenues now taken for the Crowne, be not sufficient to maintaine him, as our great Master, some legall order may be taken therefore, and that he may be sensible of his Subjects’ loyalty, and his Subjects live safe under him, that his enemies may finde him considerable, and his true friends usefull.