At last my motion was allowed; and the lords appointed the two chief justices, chief baron, and baron Altham, to have consideration of it.

Note, the king by his proclamation or other ways cannot change. any part of the common law, or statute law, or the customs of the realm, 11 Hen. 4. 37. Fortescue De laudibus Angliæ legum, cap. 9. 18 Edw. 3. 35, 36, &c. 31 Hen. 8. cap. 8. hic infra : also the king cannot create any offence by his prohibition or proclamation, which was not an offence before, for that was to change the law, and to make an offence which was not; for ubi non est lex, ibi non est transgressio: ergo, that which cannot be punished without proclamation, cannot be punished with it. Vide le stat. 31 Hen. 8. cap. 8. which act gives more power to the king than he had before, and yet there it is declared that proclamations shall not alter the law, statutes, or customs of the realm, or impeach any in his inheritance, goods, body, life, &c. But if a man shall be indicted for a contempt against a proclamation, he shall be fined and imprisoned, and so impeached in his body and goods. Vide Fortescue, cap. 9, 18, 34, 36, 37, &c.

But a thing which is punishable by the law, by fine, and imprisonment, if the king prohibit it by his proclamation, before that he will punish it, and so warn his subjects of the peril of it, there if he permit it after, this as a circumstance aggravates the offence; but he by proclamation cannot make a thing unlawful, which was permitted by the law before and this was well proved by the ancient and continual forms of indictments; for all indictments conclude contra legem et consuetudinem Angliæ, or contra leges et statuta, &c. But never was seen any indictment to conclude contra regiam proclamationem.

So in all cases the king out of his providence, and to prevent dangers, which it will be too late to prevent afterwards, he may prohibit them before, which will aggravate the offence if it be afterwards committed and as it is a grand prerogative of the king to make proclamation, (for no subject can make it without authority from the king, or lawful custom,) upon pain of fine and imprisonment, as it is held in the 22 Hen. 8. Proclamation B. But we do find divers precedents of proclamations which are utterly against law and reason, and for that void; for quæ contra rationem juris introducta sunt non debent trahi in consequentiam.

An act which was made, by which foreigners were licensed to merchandise within London; Hen. 4. by proclamation prohibited the execution of it; and that it should be in suspense usque ad proximum parliament, which was against law. Vide dors. claus.

8 Hen. 4. Proclamation in London. But 9 Hen. 4. an act of parliament was made, that all the Irish people should depart the realm, and go into Ireland before the feast of the Nativity of the Blessed Lady, upon pain of death, which was absolutely in terrorem, and was utterly against the law.

In the same term it was resolved by the two chief justices, chief baron and baron Altham, upon conference betwixt the lords of the privy council and them, that the king by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land by his proclamation in a high point; for if he may create an offence where none is, upon that ensues fine and imprisonment: also the law of England is divided into three parts, common law, statute law, and custom; but the king's proclamation is none of them: also malum aut est malum in se, aut prohibitum, that which is against common law is malum in se, malum prohibitum is such an offence as is prohibited by act of parliament, and not by proclamation.

Also it was resolved, that the king hath no prerogative, but that which the law of the land allows him.

Lastly, if the offence be not punishable in the star-chamber, the prohibition of it by proclamation cannot make it punishable there and after this resolution, no proclamation imposing fine and imprisonment was afterwards made, &c.

188. Act against Monopolies

(1624. 21 & 22 James I. c. 3. Prothero, 275-277.)

FORASMUCH as your most excellent Majesty, in your royal judgment and of your blessed disposition to the weal and quiet of your subjects, did in the year of our Lord God, 1610, publish in print to the whole realm and to all posterity, that all grants of monopolies, and of the benefit of any penal laws, or of power to dispense with the law, or to compound for the forfeiture, are contrary to your Majesty's laws; which your Majesty's declaration is truly consonant and agreeable to the ancient and fundamental laws of this your realm: and whereas your Majesty was further graciously pleased expressly to command, that no suitor should presume to move your Majesty for matters of that nature; yet nevertheless, upon misinformations and untrue pre

tences of public good, many such grants have been unduly obtained and unlawfully put in execution, to the great grievance and inconvenience of your Majesty's subjects, contrary to the laws of this your realm and contrary to your Majesty's royal and blessed intention so published as aforesaid: for avoiding whereof and preventing of the like in time to come, may it please your most excellent Majesty * that it may be declared and enacted, and be it declared and enacted *** that all monopolies and all commissions, grants, licences, charters and letters patents to any person, bodies politic or corporate, whatsoever, for the sole buying, selling, making, working or using of anything within this realm or the dominion of Wales, or of any other monopolies, or of power to dispense with any others, or to give licence or toleration to do anything against the tenor of any law or statute, or to give or make any warrant for any such dispensation, licence or toleration, or to agree or compound with any others for any penalty or forfeitures limited by any statute, or of any grant or promise of the benefit of any forfeiture, penalty or sum of money that shall be due by any statute, before judgment thereupon had, and all proclamations, inhibitions, restraints, warrants of assistance, and all other things whatsoever, any way tending to the instituting or countenancing of the same are altogether con

trary to the laws of this realm, and so are and shall be utterly void and of none effect.

II. And be it further enacted, that all monopolies and all such commissions, grants [&c.], and all other things tending as aforesaid ought to be and shall be for ever hereafter tried and determined according to the common laws of this realm, and not otherwise.

V. Provided nevertheless, that any declaration beforementioned shall not extend to any letters patents and grants of privilege for the term of one and twenty years or under, heretofore made of the sole working or making of any manner of new manufacture within this realm to the first and true inventor or inventors of such manufactures, which others at the time of the making of such letters patents and grants did not use, so they be not contrary to the law, nor mischievous to the state by raising of the prices of commodities at home or hurt of trade, or generally inconvenient, but that the same shall be of such force as they were or should be if this Act had not been made. *

that this Act

VI. Provided also, and be it enacted, that any declaration
beforementioned shall not extend to any letters patents and grants
of privilege for the term of fourteen years or under, hereafter to
be made, of the sole working or making of any manner of new
manufactures within this realm, to the true and first inventor and
inventors of such manufactures *
IX. Provided also,
shall not in any
wise extend or be prejudicial unto the city of London or to any
city, borough or town corporate within this realm, for any grants,
charters or letters patents to them ** granted, or for any cus-
toms used by or within any of them, or unto any corporations,
companies or fellowships of any art, trade, occupation or mystery,
or to any companies or societies of merchants within this realm
erected for the maintenance
of any trade of merchan-

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chas I. new.

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189. The Petition of Right

of Eng. (1628, June 7. 3 Charles I. c. I. 5 S. R. 23. Gardiner, 66–70.)

HUM

To the King's Most Excellent Majesty.

UMBLY show unto our Sovereign Lord the King, the Lords
Spiritual and Temporal, and Commons in Parliament assem-
bled, that whereas it is declared and enacted by a statute made in
the time of the reign of King Edward the First, commonly called
Statutum de tallagio non concedendo, that no tallage or aid shall
be laid or levied by the King or his heirs in this realm, without
the good will and assent of the Archbishops, Bishops, Earls, Barons,
Knights, Burgesses, and other the freemen of the commonalty of
this realm and by authority of Parliament holden in the five and
twentieth year of the reign of King Edward the Third, it is de- V
clared and enacted, that from thenceforth no person shall be com-
pelled to make any loans to the King against his will, because such
loans were against reason and the franchise of the land; and by
other laws of this realm it is provided, that none should be charged
by any charge or imposition, called a Benevolence, nor by such
like charge: by which, the statutes before-mentioned, and other
the good laws and statutes of this realm, your subjects have inher-
ited this freedom, that they should not be compelled to contribute

to any tax, tallage, aid, or other like charge, not set by common consent in Parliament:

II. Yet nevertheless, of late divers commissions directed to sundry Commissioners in several counties, with instructions, have issued, by means whereof your people have been in divers places volanassembled, and required to lend certain sums of money unto your Majesty, and many of them upon their refusal so to do, have had an oath administered unto them, not warrantable by the laws or statutes of this realm, and have been constrained to become bound to make appearance and give attendance before your Privy Council, and in other places, and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted: and divers other charges have been laid and levied upon your people in several counties, by Lords Lieutenants, Deputy Lieutenants, Commissioners for Musters, Justices of Peace and others, by command or direction from your Majesty or your Privy Council, against the laws and free customs of this realm.

III. And where also by the statute called, 'The Great Charter of the Liberties of England,' it is declared and enacted, that no freeman may be taken or imprisoned or be disseised of his freehold or liberties, or his free customs, or be outlawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, or by

the law of the land: "lue process of law.

IV. And in the eight and twentieth year of the reign of King Edward the Third, it was declared and enacted by authority of Parliament, that no man of what estate or condition that he be, should be put out of his lands or tenements, nor taken, nor imprisoned, nor disherited, nor put to death, without being brought to answer by due process of law:

V. Nevertheless, against the tenor of the said statutes, and other the good laws and statutes of your realm, to that end provided, divers of your subjects have of late been imprisoned without any cause showed, and when for their deliverance they were brought before your Justices, by your Majesty's writs of Habeas Corpus, there to undergo and receive as the Court should order, and their keepers commanded to certify the causes of their detainer; no cause was certified, but that they were detained by your Majesty's special command, signified by the Lords of your Privy Council, and yet were returned back to several prisons, without being charged with anything to which they might make answer according to the law.

VI. And whereas of late great companies of soldiers and mariners have been dispersed into divers counties of the realm, and

quartering of soldeers among inhabitants, without their consent. King trying to save mons.