SHIP-MONEY AND THE WELL-BEING OF THE PEOPLE [FALKLAND (Lucius Cary, 1609/10-1643, M.P. in the Short and Long Parliaments, 1640-1641, Moderate Royalist, from 1633 2nd Viscount [Scottish])]

Contemporary Manuscript Copy of his magnificent SPEECH AGAINST SHIP-MONEY in the Commons debate that voted the king's Writ for Ship-money illegal, saying "Mr Speaker, I rejoice very much to see this day, and the want hath not lain in mine affections but in my lungs, if ... my yea hath not been as loud as any man's in the house" (para.1), and apologizing "if ... I seem ... to trench upon another's profession, and ... the work of another robe", (a lawyer's), "since I have been entrusted by the Report of a learned Committee", that on Ship-money, set up 1st December, but "History alone is enough to shew this Judgment", in R. v Hampden, 1637-1638, "contrary to our laws and logic" and "destructive to our properties which every free and noble person values, no less than his possessions".
Falkland's "natural disposition is far from inclining to severity" (para. 2), and indeed he has "particular obligations to their callings" against whom he is to speak, but believes "no meat undigested lies heavier upon the stomach, than this unsaid, would have lain upon my conscience" (para. 3).
"The Constitution of this Commonwealth hath established, or rather endeavoured to establish ... the security of our goods, and the security of those laws which should secure us our goods, by appointing for us Judges ... so sworn ... that the greatest person in the kingdom cannot continue the least violence upon the meanest. But this security, (Mr. Speaker) ... hath ... turned ... itself into a battery against us" and "those ... dogs to defend the flock, have been the wolves to worry it" (para. 4).
The Judges' "greatest crime" is to have declared "an opinion and a judgment ... such as came not within their cognizance ... they being ... neither philosophers, nor politicians", in which case "when ... the law of the land ceaseth", the law "of General Reason and Equity ... returns to her throne ... where Salus Populi [the Well-being of the People] becomes not only Suprema but Sola Lex [Supreme, the Only Law]", so that whatever applies to the king over our money applies equally to us in treating of "his and one another's". And indeed the Judges contradicted "many and clear ... Acts of Parliament ... and those in this very Case" and "very Reign" and needed only "to have consulted with ... their own memories" (para. 5).
The Judges supposed "weighty and imminent dangers, in the most serene, quiet, & halcyon days ... a few contemptible Pirates, being our most formidable enemies", and while the Writ claimed "it could not stay for a Parliament, which requires but 40 days stay", the Writ itself was "content to stay seven months which is that times four times over" (paras. 6,7).
Falkland hints that Judges were coerced, (para. 9), is indignant that, having given the king "the sole judgment of necessity" they claimed to have "left us our liberties and properties" (para. 10), and that, "which I confess moved me most", in transforming "free subjects ... into ... villeins", they "disabled us by legal and voluntary supply to express our affections to His Majesty, and ... cherish his to us" (para. 11).
"Mr. Speaker, the cause of all the miseries we have suffered ... is, that a most excellent Prince hath been most infinitely abused, his Judges telling him that in law, his Divines ... that in Conscience ... his Councillors ... that in Policy he might do what he pleased", now, since "words having done nothing", the only course is "taking away this Judgment and these Judges together, and of regulating their successors by their most exemplary punishment" (para. 12). "I will only say, we have accused a great person of High Treason", the Earl of Strafford, "for intending to subvert our fundamental laws, and introduce an arbitrary government", a charge which applies no less to the Judges (para. 13).
"We only accuse, the House of the Lords condemns", but he is wary of their possible leniency. Slowly but steadily he points the finger at "one I must not lose in the crowd" (para. 14), namely Finch, now Lord Keeper presiding over the Lords, whose place "admits him to His Majesty's ear, trusts him with His Majesty's conscience" and "puts the ... unlimited power of the Chancery into such hands, which in the safest would be dangerous", no one here is secure while "he who hath undone us already by Wholesale, hath a power left in him by Retail" (para. 15).
He quotes ironically Finch's own words "in the beginning of the Parliament ... that His Majesty never required any thing from any of his Ministers but Justice and Integrity", and moves that if Finch "shall be found guilty of tampering with Judges against public security (who hath thought tampering with witnesses in a private case worthy of so severe a fine); if he shall be found to have gone before the rest to this Judgment, and to have gone beyond the rest in this Judgment", then "in punishment for it, the justice of this House may not deny to him that due honour to precede and exceed the rest" (para. 16), paragraphs lightly numbered in margin in pencil to correspond with the version in Rushworth's Historical Collections, Vol. 4, 4 sides folio, House of Commons, Monday 7th December tiny closed edge tear on side 3, a few tiny holes but perfectly legible, otherwise in fine condition

From 1629 to 1640 Charles I ruled without Parliament, so the great issues of the day were fought out in the Courts. The question of a royal Writ of Ship-money, to be paid instead of supplying a ship to the Royal Navy, and which from 1634 Charles collected in lieu of a vote of supply, was not so straightforward as hindsight may suggest. Charles wished to protect English ships against French, Dutch and North African attack. But was such a Writ legal in peace time? Was it legal in inland counties? Was it legal without consent of Parliament? But most of all, was it legal without the consent of the people?
In 1637, John Hampden refused to pay Ship-money on parts of his estate, though he had complied on others. He was tried in the Exchequer Chamber by all 12 Common-law Judges of England. On the preliminary point of the Writ itself, Sir John Finch, Chief Justice of the Common Pleas, browbeat those who disagreed into voting it legal. The king could charge his subjects for the defence of the kingdom; and he was the sole judge of the danger. Hampden was finally convicted by 7 votes to 5.
The Long Parliament of 1640 was like an uncoiled spring. While the Commons voted some money to help the king's army face the Scots in the North, there was never seen such a flood of committees, debates and resolutions on the old grievances. On 10th November 1640, the Commons sent up to the Lords, charging the Earl of Strafford, suspected of wishing to restore absolute power to the Crown, with High Treason. His legal adviser, Sir George Radcliffe, Finch's son-in-law, followed on the 13th November, as did Archbishop Laud on 18th December. Petitions for release from imprisonment without charge, especially from Puritan preachers, were readily granted.
On 27th November a Committee was appointed concerning the Property of the Subject in his Goods. This was set down to be urgently debated on 7th December 1640. Also on the 7th Oliver St. John delivered the Report of the Committee on Ship-money (set up 1st December). Lord Falkland in this present speech treats of both at the highest philosophical level. In the 1630s his house, at Great Tew in Oxfordshire, had been the scene of many such discussions.
Members who were later on opposite sides in the Civil War, a thing never contemplated at this moment, voted unanimously that Ship-money and the judgment in R. v Hampden were illegal. Lord Falkland and 15 others were "to go forthwith to the several judges, to know how they were solicited or threatened ... three to go to a judge" On 8th December the Committee for the Property of the Subject in their Goods was asked to collect all the evidence, from the Petition of Right (1628) onwards, and prepare a charge of High Treason against Finch and the rest of the judges.who gave their opinion on Ship-money. Finch fled the country on 22nd December.
Rushworth (available in British History Online) has considerable variant phrasing. Note also the following.
Para. 1. MS: if my yea hath not been as loud R: if ... I have been as loud, (omitting 'not').
Para. 2. MS: no less than his possessions. R: more than his profession.
Para. 10. MS: [The Judges] contemned us enough to offer to persuade us. R: they yet continue to persuade us.
Para. 11. MS: cherish his to us. R adds: that is by Parliaments.
Para. 12. R: by his Judges, telling him that by Policy he might do as he pleased, (omitting the Divines and Councillors).
Para. 15. MS: [Finch] hath prostituted his own conscience. R: ... prostrated . .
Provenance: From a small group of papers, 1640-1641, one marked "brought these papers from Woodhey 1741". Woodhey Hall, near Nantwich, was in 1741 among the Cheshire properties of Lionel Tollemache, 4th Earl of Dysart. His grandmother Grace was the daughter of Sir Thomas Wilbraham, (1630-1692, 3rd and last Baronet of Woodhey). Sir Thomas, a Royalist, in 1651 married heiress Elizabeth Mytton (1632-1705, the architect). Elizabeth was also stepdaughter to Sir William Brereton (1604-1661), who had led the campaign in Cheshire to abolish bishops.

Item Date:  1640

Stock No:  55795      £1250

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