forsomuch that before this time the said Offences Extortions Contempts c. might not nor as yet may be conveniently Punished by the due Order of Law except it were first found and presented by the Verdict of Twelve â—â—en thereto duely Sworn who for the Causes before Recited will not find nor present the Truth wherefore be it by the Advice and Assent of the Lords Spiritual and Temporal and the Commons in this present Parliament Assembled and by Authority of the same Enacted Ordained and Established That from henceforth as well the Iustices of Assize as the Iustices of the Peace in every County of the said Realm upon Information Note it was to be without any Presentment or Indictment found by any Grand or Petty Jury for the King c. shall have full Power Authority by their Discretion to hear determine all Offences c. Here you see Matters were left to be determined by Judges and Justices Without Iuries in a Summary Chancery-Method only according forsooth to their Discretion Yet still there was a Proviso THat no such Information should extend to Treason Murder or Felony nor to any other Offence for which any Person should lose Life or Member Nor to lose by or upon the same Information any Lands Tenements Goods or Chatteis to the Party making the same Information Which deserves Particular Notice Yet observe how the same Reverend Lord Coolt in the Place before-cited descants on this Act. By Pretext saith he of this Law Empson and Dudley did commit upon the Subject unsufferable Pressures and Oppressions and therefore this Statute was Justly soon after the Decease of Henry the Seventh Repeal'd by an Act of Parliament 1 H. 8. Cap. 8. A good Caveat to Parliaments to leave all Causes to be measured by that Golden and Strait-Mete-Wand of the Law and not to the incertain and crooked Cord of Discretion It is not almost Credible continues the same Judicious Author to fore-see when any Maxim or Fundamental-Law of this Realm He means as to this particular Case Tryals per Pais that is by Juries is Altered what dangerous Inconveniences do follow Which most expresly appears by this Most Vnjust Strange Act For hereby not only Empson and Dudley themselves but such Justices of Peace Corrupt Men as they caused to be Authorized Committed most grievous and heavy Oppressions and Exactions Grinding of the Faces of poor Subjects by Penal Laws be they never so Obsolete or unfit for the Time Suppose for a Parallel in our Times putting the Statutes against Popish Recusants in Execution against Protestant Dissenters at a Juncture when Popery was just ready to over-run us all by Information only without any Presentment or Tryal by Jury being The Antient Birth-Right of the Subject But to Hear and Determine the same by their Discretion These and other like Oppressions and Exactions by or by Means of Empson and Dudley and their Instruments brought Infinite Treasures to the King's Coffers whereof the King in the End with great Grief and Compunction Repented This Statute of 11 H. 7 We have Recited and shewed the Inconveniencies thereof to the end that the like should never hereafter be attempted in any Court of Parliament And that others might avoid the Fearful End of these Two Time-Servers Empson and Dudley Thus far that Oracle of our English Laws Wherein be pleased to observe First That he sticks not to call even an Act of Parliament most Vnjust and Strange And in the Second Part of his Institutes fol. 51. Vnjust and Injurious because it Altered a Fundamental-Law of the Realm viz. Denyed Tryal by Juries a most Essential Part of English Freedom and never to be parted with Secondly Observe what became of these Two Wicked Men though they had such a Colour of Law to bear them out They were in the Beginning of the Reign of King Henry the Eighth first Indicted for other base Practises in Finding of False Offices for the King to the Dammage and Disherison of His Subjects Which Indictment ran as follows see Cook 's Instit Part the Fourth fol. 198. Juratores praesentant quod Richardus Empson nuper de London Miles c. In English thus THe Jurors present That Richard Empson late of London Knight late Counsellor of the most Excellent Prince Henry the Seventh late King of England on the Tenth Day of May in the Twentyeth Year of the said late King and divers Times before and after at London c. Not having God before his Eyes but as the Son of the Devil imagining the Honour Dignity and Prosperity of the said late King and the Prosperity of His Kingdom of England not at all to Value or Regard But to the end that he might obtain to be a more Singular Favourite of the said late King whereby he Himself might be made a Noble or Great Man and Govern the whole Kingdom of England at his Pleasure Falsly Deceitfully and Treasonably Subverting the Laâ—y of England did amongst other Things the Day and Year afore-said at London in the Parish and Ward afore-said procure and cause to be found divers false Inquisitions and Offices of Intrusions and Alienations of divers Leige-Subject's Mannors Lands and Tenements that they held the Mannors Lands and Tenements in those Inquisitions specified of our Lord the King in Capite or otherwise when in Truth it was not so And afterwards when the said Leige-Subjects of our Lord the late King would have tendered and alledged Traverses to the said Inquisitions in the Court of Him the said late King according to the Law of England they could not be admitted to those Traverses But he the said Richard Empson debar'd and delay'd them from the same 'till they had agreed with him to pay divers Great and Insupportable Fines and Redemptions as well for the Profit of the said late King as for the proper private Advantages of him the said Richard to the great Impoverishment of the said Subjects And that the said Richard the Day and Year afore-said in the Parish and Ward afore-said and several Times before and after divers Leige-Subjects of the said late King holding of out said Lord the King divers Mannors Lands and Tenements by Knight's-Service and themselves being by the Death of their Ancestors under Age and so in the Wardship of the King by Reason of their Tenure when they came to lawful Age and ought to have had due Livery of their Mannors Lands and Tenements according to the Custom and Law of England and would have Prosecuted the same according to the Course of Chancery did refuse them so to do and totally deny and erclude until they had made with him the said Richard divers great Fines and Redemptions more than they could bear as well for the Gain of the said late King as for the private Benefit of him the said Richard Whereby many of the said late King's People were by such Grievances and Vnjust Extortions many wayes vered Insomuch that the Subjects of the said late
Votes being Transmitted by the Commons to the House of Lords Their Lordships did Concur therein And on Fryday the 26. of February 1640. It was Ordered by the Lords Spiritual and Temporal in the High Court of Parliament Assembled That the Lord-Keeper or Master of the Rolls the Two Lord Chief Justices and the Lord Chief Baron and likewise the Chief Clerk of the Star-Chamber should bring into the Upper House of Parliament the Records of the Judgment against Mr. Hampden concerning Ship-Money in each of those several Courts and that a Vacat thereof should be made And that a Copy of the Judgment of the Parliament concerning the Illegality thereof should be Delivered to the several Judges of Assize and that they should be required to Publish the same in all the Circuits Which on the 27. of the same February was done accordingly the said Records being Vacated and the Rolls Cross'd with a Pen in the House of Lords and Subscribed with the Clerk of the Parliament's Hand And soon after several of the before-named Judges were Impeached for the same in Parliament And not daring to stand the Shock some of them as the Lord Chief Justice Finch Fled beyond the Seas and others Absconded And soon after came on the Unnatural Civil-Wars so Destructive to King and Kingdom which though no way Justifiable yet it cannot be denyed but they were not a little Occasion'd and the Animosities of the People blown into an Untameable Flame by these base Traiterous Proceedings of those Sycophant Judges And Woe unto those say Sacred Oracles by whom Offences come However after so many dismal Experiences and fair Warnings and the Miraculous Restauration of His present Majesty our Gracious Soveraign whom God long Preserve a Prince of Incomparable Lenity and Good-natur'd beyond Example it might be hoped that none Preferr'd to the Publick Seats of Justice durst to have Acted â—o contrary to His Royal Incimations as to violate those Laws which He Himself has Sworn to Maintain and Intrusted them to Administer Yet so Base and Extravagant are some as even to abuse the Favours of the Best of Princes and puff't up with Preferment will take no Admonition from the Falls of their Head-strong Predecessors but still presume to sully those Ermins the Emblems of Innocency and Integrity which they wear and adventure on the same Destructive Precipices You have heard how heinously our Prudent Ancestors resented the Violation of their Liberties though by an Act in Tryals of the Free-born People of England Without Iuries Next to which is the Ruffing Hectoring and Over-awing of Juries For What real Difference is there betwixt allowing no Juries at all and Menacing them into a Compliance contrary to Law and their own Consciences with the Corrupt Humours and Time serving Interests of ill Judges Of this Crime the Lord Chief Justice Keeling about the Year 1666. a Time when God's General Judgments on this Sinful Land might have awakened them to greater Circumspection and Uprightness was not only Guilty but Question'd for the same even by That very Parliament which was never extraordinarily Celebrated for bringing Publick Vermine to Punishment Yet such a Sense they had of these ill Practises that in their Journal we find the following Votes on this Occasion Die Mecurii 11º Decembris 1667. THE House Resuming the Hearing of the rest of the Report touching the Matter of Restraint upon Juries and upon the Examination of divers Witnesses in several Cases of Restraints put upon Juries by the Lord Chief Justice Keeling Resolved as followeth First That the Proceedings of the said Lord Chief Justice in the Cases now Reported are Innovations in the Tryals of Men for their Lives and Liberties and that he hath used an Arbitrary and Illegal Power which is of dangerous Consequence to the Lives and Liberties of the People of England and tends to the Introducing of an Arbitrary Government Secondly That in the Place of Judicature the Lord Chief Justice hath Undervalued Vilified and Contemned Magna Charta the great Preserver of our Lives Liberties and Property Thirdly That he be brought to Tryal in Order to Condign Punishment in such Manner as the House shall judge most Fit and Requisite And again Die Veneris 13º Decembris 1667. Resolved THat the Precedents and Practice for Fining or Imprisoning of Jurors for Giving their Verdicts is Illegal Here you see the ill Practices of that Chief Justice were Branded in Parliament and he was ordered to be Prosecuted though by reason of the Houses being Prorogued and he himself not long after Dying in Discontent we do not find there were any further Proceedings made therein At the Sessions for London Sept. 1670. William Penn and William Mead Two of the People commonly called Quakers being Indicted For that they the Fourteenth of August before did with others to the Number of Three Hundred in Grace-Church-Street Unlawfully and Tumultuously Assemble c. by reason whereof a great Tumult did there happen in Contempt of the King great Disturbance of the Peace Terror of the People c. And the Jury after having been several times sent back and kept close from the Saturday till the Monday Morning bringing them in Not Guilty Sir John Howel then Recorder of London presumed to Fine the said Jury Forty Marks a Man and to Lye in Prison till paid Being thus in Custody Edward Bushel one of the said Jury-Men brought his Habeas Corpus in the Court of Common-Pleas and upon a long Argument it was Adjudged by the whole Court That the said Fining and Commitment was Illegal Whereupon the said Bushel was Discharged and left to bring his Action for False Imprisonment against the said Recorder Which Case is Reported by Vaughan at that time Chief Justice of the said Court in his Reports Licensed and Approved of by the present Lord Chancellor of England Sir William Scroggs since Lord Chief-Justice of the King 's Bench my Lord North Chief-Justice of the Common-Pleas and all the Judges of England But as to the Illegality of any Courts Imposing upon Menacing Fineing or Imprisoning Juries see a small Treatise Entituled The English-Man's Right Printed for R. Janeway 1680. and another called The Grand Iury-Man's Oath and Office Explained Sold by Langley Curtis on Ludgate-Hill both well worthy the Perusal of every True English-Man What Proceedings have been since or rather are at this instant pendent against Judges for Hectoring of Juries and other Illegal Arbitrary Proceedings are too fresh in every Bodies Memory to need a Recital Instead of which I shall rather Insert the Form of the Oath Taken by Judges at their first Admittance to that Office which runs as follows The OATH of a JUDGE In Dorso Claus ' de Anno 20. Edw. 31. Part. Prima YE shall Swear That Well and Truly ye shall Serve our Sovereign Lord the King and His People in the Office of Justice And that ye shall Counsel our Sovereign Lord the King in His Needs And that ye shall not give any
and Imitable Ones Memoria Justi in Aetermun In the Reign of King H. 4. His Son and Heir apparent then a Wild Youth but afterwards as Solid and Renowned a King as most that have sway'd the English Scepter hearing that one of his Companions was Arraigned for Felony before the Lord Chief Justice of England I am sorry my narrow Reading has not brought me acquainted with his Honourable Name came to the Bar and offered to take away the Prisoner by force but being withstood by the said Chief Justice stepped to him and Struck him over the Face whereat the Judge nothing daunted rose up and with a Gravity becoming his Dignity told him That he did not this Affront to Him but to the King his Father in whose Place he sate and therefore forthwith Committed him to Prison The Prince Over-aw'd with the Majesty of the Sage Judge's Expressions calmly Suffered himself to be carried away by an ordinary Tip-Staff which being told the King He not a little Rejoyced both that he had a Judge of such Couragious Integrity and a Son of such Submissive Obedience to his Laws Vide Baker fol. 163. The Famous Queen Elizabeth having required a Charge upon divers of Her Subjects by particular Letters from the Lords of Her Council of several Sums of Money for present Aid towards Her Wars in Ireland hearing that one of Her Judges viz. Mr. Justice Walmesley being conven'd before the said Lords for Non-Payment thereof thereby Discouraging others had Answered That it was Contrary to Law that the same should be Imposed there being an Express Statute against it which He being a Judge was bound by his Oath to signifie to Her Majesty he being as much as in him lay a Conservator of the Queens Oath in that behalf Her Majesty was much Offended that any such Imposition had been pretended to and Commanded that it should be stopped from further Gathering and to such as had paid it their Money by Her express Order was Restored Judge Crooks Argument in Hampden's Case p. 57. In the 29th of the same Queen Her Majesty having Erected a New-Office in the Common-Pleas for making of Supersedeas on Exigents She Grants it to one Cavendish Her Servant sends to have him admitted but the Judges delay the doing thereof On this Reason because the Prothonotaries and Philizers Claimed the making those Writs The Queen sends a Sharp Letter and Commands them forthwith to Admit him Then She sends a more positive Command requiring the Reason of their Contempt and Disobedience The Judges return the beforementioned Reason to the Lord Keeper and Earl of Leicester no mean Man in those Days upon which the Queen sends a Fourth Peremptory Message for their Admitting him with this Reason That if the others were put out they were Rich and Able Men and that Her Courts of Justice were Open where they might Demand their Right for this was not to debar them Therefrom but only to put them to their Action The Honest Judges roturned this Answer That the Queen had taken Her Oath for the due Execution of Justice According to Law and they did not doubt but when Her Majesty was Informed it was against the Law She would Act therein as became her For their own parts they had taken an Oath to God to Her and the Common-Wealth And if they should do it without Process of Law before them and only upon Her Command put the others out of Possession though the Right remained to them it were a Breach of their Oath and therefore if the Fear of God were not Sufficient they told Her the Punishment that was Inflicted upon their Predecessors for Breach of their Oaths citing Thorpe c. might be a sufficient Warning to them Whereupon the Queen hearing these Reasons was Satisfied and the said Judges heard no more of this Business To Descend nearer our own Times we cannot omit that grand Example of Uprightness the ever Famous Sir Matthew Hale late Lord Chief Justice of the King's-Bench a Miracle for all other parts of Polite and Serious Learning as well as profound Knowledge in the Laws of England Of whom I shall yet not offer any particular Instances since his whole Life was one continued Thred of Sincere and Understanding Justice For as easily you might have justled the Sun out of the Ecliptick as to have warp'd him from his constant Road of Integrity An exact Standard whereby Future Princes may measure the Qualifications of their Judges for though he were a most Loyal and Zealous Servant to the Crown yet he was so far from being ever Impeached by the Representative Body of the Nation that no one Single Person no not of those that were Cast before him were ever heard to complain of his Conduct And if any Latter Judges have been dismiss'd by false Tales of Sycophant Whisperers or for opposing base Illegal Arbitrary Interests as they have the Invaluable Satisfaction of a good Conscience for their Comfort so they may be assured they still appear more Glorious in the Eyes of all good English-Men at present and will be Recorded more Venerable to Posterity than any Robes or Preferment sullied with Bribery Flattery or Treacherous Compliances could renden them However we hope the Various Examples we have here Enumerated from Authentick Records and Histories may be sufficient to Deterr future Judges from Ill Courses and satisfie all the World both in the Justice of the Parliaments late Proceedings in this Case and the Reasonableness of their Vote and intended Bill That Judges henceforth should hold their Places and Salaries not Ad Placitum but Quam Diu se bene gasserint Which was the principal Aim of these Papers Fiat Justitia FINIS
King did manifoldly murmur and bear ill Will against the said late King to the great Peril of Him the said late King His Kingdom of England and the Subversion of the Laws and Customs of this Realm 'T is true saith my Lord Cook Fourth Part of his Institutes fol. 41. in this Indictment Which Mutatis mutandis we are to suppose was alike against Dudley the Word Proditorie That is to say Treasonably was used but for Aggravation and as a Preparative for a Prosecution to Greater Offences For they were not to escape with a Charge of Misdemeanor only But in the same Year they were both Indicted of High-Treason both by the Common-Law and Act of Parliament And in the Second Year of King Henry the Eighth they both Lost their Heads Thus that Profound Judge speaks of them who 4. Instit fol. 41. concludes the Story of these Time-serving Self-designing Judges with this most remarkable Epiphonema Qui eorum vestigiis insistunt eorum Exitus prehorrescant Those that shall dare tread their Steps let them dread or expect the like dismal Ends. Sir Richard Baker the Best perhaps for want of a better of our Modern English Historians gives somewhat a more particular Account of the Fate of these Two Corrupt Hucksters of Law and Justice Which be pleas'd to Peruse in his own Words fol. 254. Speaking of King Henry the Eighth's general Pardon at his first coming to the Crown and how he Ordered Restitution to be made of all Goods unjustly taken from any He Adds And because the Instruments of such Injustice are Always most Odious and nothing gives the People so much Contentment as to see their Persecutors Punished He therefore caused Empson and Dudley the Two Chief Actors of the late unjust Proceedings to be Committed to the Tower and divers of their Inferior Agents called Promoters The Raskally Informers Pensionary Affidavit-Men or if you please Robin Hogg's of that Age As Camby Page Derby Wight Simpson and Storckton to be set on the Pillory in Cornhil with Papers on their Heads and then to Ride through the City with their Faces to the Horse-Tails with the shame whereof in Seven Days after they all Dyed in Newgate Shortly after a Parliament was called whereof Sir Thomas Ingleby was chosen Speaker And therein Empson and Dudley were Accused of High-Treason and after Arraigned Edmund Dudley in Guild-Hall on the Seventeenth of July and Sir Richard Empson at Northampton in October following And on the Seventeenth of August the Year following Which was Anno Domini 1510. they were both of them Beheaded on the Tower-Hill and their Bodies and Heads Buryed the one at White-Fryars the other at the Black And also by an Act of 1 H. 8th Cap. 6. the before-recited Injurious Statute of 11 H. 7. was made void and repeal'd and the Reason thereof is yielded for that by Force of the said Act it was manifestly known that many Sinister and Crafty Feigned and Forged Informations had been pursued against divers of the King's Subjects to their great Dammage and wrongful Vexation For it is not Credible saith the Lord Cook Second Part of his Institutes fol. 51. What horrid Oppressions and Exactions to the undoing of Infinite Numbers of People were Committed by Colour of that Act shaking the Fundamental-Law of the Land The ill Success whereof and the Fearful Ends of these Two Oppressors should deter others from Committing the like and admonish Parliaments That instead of this Ordinary and Precious Tryal per Legem Terrae they bring not in Absolute and Partial Tryals by Discretion So much touching Empson and Dudley those Names of Ignomony and Detestation Let us now proceed to the Famous Case of Ship-Money in the Reign of King Charles the First and the Extrajudicial and Ilegal Opinions of the Judges therein Delivered with the dismal Consequences thereof as well to themselves as to the King and whole Realm KING Charles the First came to the Crown 27 March 1625. In the Three First Years of His Reign he call'd Three several Parliaments but none of them Complying to give so much Money as was Expected But rather insisting upon Complaints against Buckingham the then Grand Favourite and to have Publick Grievances Redressed They were all Dissolved in Discontent and no more Parliaments spoken of till that of the Thirteenth of April 1640. which was likewise suddenly Dissolved During this long Interval or Absence of those whom the Laws had Entrusted with Keeping the Right Keys of the Publick Purse there were some that would needs be Tampering to Pick it I mean several little Intrigues were set on Foot to Supply the Court and get Money from the Subjects without their Common Consent in Parliament that good Old Course which Never Fail'd any KING upon any Just Occasion or where they knew it should not be diverted to the KING 's Dishonor and the Nations further Grievance Of this kind were 1. The Privy Seals issued 2. Benevolence required 3. Commissions of Loan 4. The Business of Knighthood whereby all persons Seiz'd of Lands and Rents of Forty Pounds per Annum or upwards were by Proclamation Summon'd either to appear and take upon them the Degree of Knighthood or else were liable to be Fined for Respite of the same Which alone saith Baker fol. 449. brought an Hundred Thousand Pounds or more into the Exchequer But all this was still thought too little These Devices might serve for a present Shift once and no more but there wanted a Continual Fund or Constant Supply as oft as the Court wanted or thought fit to require Mony without being beholden to Parliaments Whereupon 5ly By the fatal Advice as 't is said of Noy the then Attorney General the King was put upon this Project of raising Mony by Issuing out Writs Commanding his Subjects to be Rated and Assessed in such and such Sums for Building and Equipping of Ships for the publick Defence of the Kingdom Which the said Attorney perswaded his Majesty might be Justified by antient Precedents In pursuance hereof the King in the Nineth Year of his Reign Issued out certain Writs of that kind to the Sea-Ports and Maritine Parts of the Realm And finding for the most part a punctual Obedience and good Advantage thereby it was in short time after advised to Extend the same Charge to all the Counties of this Realm though never so remote from the Seas wherein meeting with some â—hat refused to pay as Conceiving the same Unlawful the Judges who by their Oaths are the Kings proper Counsellors in all difficulties concerning the Law were to be Consulted with So a Letter was Written to them from the King in these Words Baker's Chron. fol. 455. To our Trusty and well-beloved Sir John Bramston Knight Chief Justice of our Bench Sir John Finch Knight Chief Justice of our Court of Common pleas Sir Humphrey Davenport Knight Chief Baron of our Court of Exchequer And to the rest of the Judges of our Court of Kings Bench Common Pleas and the
Barons of our Court of Exchequer Charles Rex TRusty and Well-beloved We greet you well Taking into our Princely Consideration that the Honour and Safety of this our Realm of England the Preservation whereof is Only Entrusted to our Care was and is more nearly concern'd than in late or former times as well by divers Counsels and Attempts to take from us the Dominion of the Seas of which we are sole Lord and Right Owner and Proprietor and the Loss whereof would be of greatest Danger and Peril to this Kingdom and other our Dominions and many other ways We for the avoiding of these and the like Dangers well Weighing with our self that where the Good and Safety of the Kingdom in general is concern'd and the whole Kingdom in Danger there the Charge and Defence ought to be Borne by all the Realm in general did for the preventing so publick a Mischief resolve with our self to have a Royal Navy prepared that might be of Force and Power with Almighty God's Blessing and Assistance to Protect and Defend this our Realm and our Subjects therein from all such Perils and Dangers And for that purpose we Issued forth Writs under our great Seal of England Directed to all our Sheriffs of our several Counties of England and Wales Commanding thereby all our said Subjects in every City Town and Village to provide such a Number of Ships well-furnish't as might serve for this Royal Purpose and which might be done with the greatest Equality that could be In performance whereof though generally throughout all the Counties of this our Realm we have found in our Subjects great Chearfulness and Alacrity which we Graciously Interpret as a Testimony as well of their Dutiful Affection to us and our Service as of the Respect they have to the Publick which well becometh every good Subject Nevertheless finding that some few happily out of Ignorance what the Laws and Customs of this Realm are or out of a desire to be eased in their Particulars how General soever their Charge be or ought to be have not yet Paid and Contributed to their several Rates and Sessments that were set upon them And foreseeing in our Princely Wisdom divers Suits and Actions are not unlike to be Commenced and Prosecuted in our several Courts at Westminster We desirous to avoid such Inconveniencies and out of our Princely Love and Affection to all our People being willing to prevent such Errors as any of our Loving Subjects may happen to run into have thought fit in a Case of this Nature to Advise with you our Judges who we doubt not are well Studied and Informed in the Rights of our Sovereignty and because the Tryals of our several Courts by the Formalities in Pleading will require a long Protraction We have thought fit by this Letter directed to you All to require your Judgments in the Case as it is set down in the Inclosed Paper which will not only gain Time but also be of more Authority to over-rule any Prejudicate Opinions of others in the Point Given under Our Signet at Our Court of White-Hall the Second of February in the Twelfth Year of Our Reign 1636. The CASE propounded in the Paper inclosed was thus worded Charles Rex WHen the Good and Safety of the Kingdom in General is concern'd and the whole Kingdom in Danger Whether may not the KING by Writ under the Great Seal of England Command all the Subjects in His Kingdom at their Charge to Provide and Furnish such Number of Ships with Men Victuals and Munition and for such Time as He shall think fit for the Defence and Safe-guard of the Kingdom from such Danger and Peril And by Law compel the Doing thereof in case of Refusal or Refractoriness And Whether in such Case is not the KING the sole Judge both of the Danger and when and how the same is to be prevented and avoided To which the JVDGES delivered their Opinions as followeth May it please Your most Excellent Majesty WE have according to Your Majestie 's Command severally and every Man by himself and All of us together taken into Serious Consideration the Case and Questions Signed by Your Majesty and inclosed in Your Letter And We are of Opinion That when the Good and Safety of the Kingdom in General is Concern'd and the whole Kingdom in Danger Your Majesty may by Writ under the Great Seal of England Command all the Subjects of This Your Kingdom at their Charge to Provide and Furnish such Number of Ships with Men Victuals and Ammunition and for such Time as Your Majesty shall think fit for the Defence and Safe-guard of the Kingdom from such Peril and Danger And that by Law Your Majesty may Compel the Doing thereof in case of Refusal or Refractoriness And we are also of Opinion That in such Case Your Majesty is the sole Judge both of the Danger and when and how the same is to be prevented and avoided John Bramston John Finch Hum. Davenport John Denham Richard Hutton William Jones George Crook Thomas Trevor George Vernon Robert Barclay Francis Crawley Richard Weston But it is to be noted That though all the Judges did thus Sign this Answer yet it was not according to all their Opinions for Crook and Hutton dis-assented and declared That such a Charge could not be laid by any such Writ but by Parliament But the Major-Part of the Judges being absolutely Resolved upon that Opinion pressed them to Subscribe likewise with the rest for that the Greater Number must involve and conclude the Less which they said was usual in all Cases of Reference And that the Lesser Number must submit to the Opinion of the More although they varied in Opinion As in the Courts of Law If Three Judges agree in Opinion against One or Two where there is Five Judges Judgment is to be Entred per Curiam if the Major Part agree and the Others are to submit unto it c. These are the very Words of Judge Crook excusing himself for having thus Subscribed See the Arguments on Hampden's Case p. 12. Having thus got the Business back't with the Subscriptions of all the Judges of England the same were Enrolled in all the Courts of Westminster-Hall And now they began to Prosecute briskly all the Defaulters amongst whom the Chiefest was John Hampden of Buckingham-shire Esquire who had upon one of these Ship Writs directed to the Sheriff of that County been Assessed Twenty Shillings for his Lands in Stoke-Mandevil in that County which not being paid was Certified amongst others into the Chancery upon a Writ of Certiorari Dated 9 Martii Anno 12. Car. by a Schedule thereunto annexed and by a Writ of Mittimus Teste 5 Maii 13 Car. transmitted into the Exchequer with a Command there to do for the Leavying of the Sums so Assessed and Unpaid Prout de Jure secundum Legem Regni nostri Angliae suerit faciendum So as of Right and according to the Law of our Kingdom of
England was to be done whereupon a Scire Facias issued out of the Exchequer reciting the said Writs to warn Mr. Hampden amongst others to shew Cause why he should not be Charged with this Money Upon this he being Summoned Appeared and demanded Oyer of those Writs and Schedule which being Entred he Demurr'd in Law that is demanded the Opinion and Judgment of the Court of Exchequer Whether this Writ were sufficient in Law to Force him to pay the said Twenty Shillings This being a Great and General Case the Barons of the Exchequer desired the Assistance of the rest of the Judges who did Joyn accordingly The Case was argued first by Councel on both Sides and next by the Judges severally of whom Sir Richard Hutton Knight one of the Judges of the Common-Pleas and Sir Richard Crook Knight one of the Judges of the King 's Bench in large and learned Arguments since Printed did shew the Illegality of such Writs and gave their Opinion That the Defendant Hampden ought not to be Charged But the rest of the Judges were resolved to carry the Point for the King and accordingly gave their Opinions That the Defendant ought to be Charged And then it was the Part of the Barons of the Exchequer to give Judgment which was Entred in these Words Quod seperalia Brevia predicta Retorn ' eorundem ac Schedul ' praedict ' eisdem Annex ' ac materia in eisdem content ' sufficient ' in Lege Exist ' ad praefat Johannem Hampdem de predictis viginti solidis super ipsum informa ex causa praedictae Assessae onerand Ideo consideratum est per eosdem Barones quod prâ—â—…ctus Johannes Hampden de eisdem viginti solidis oneretur inde satisfaciat That the said several Writs and Returns thereof and the Schedules thereunto annex't and the Matter in the same contained are sufficient in Law to Charge the said John Hampden with the Twenty Shillings upon him in the Form and by Vertue of the Assessment afore-said imposed Therefore it is considered by the said Barons That the said John Hampden shall be Charged and shall satisfy the same This Judgment was imposed as such an Infallible Determination of the Law in this Case that no further Dispute would be allow'd thereof to any others insomuch that a Person of Honour having a Case depending in the King 's Bench was denyed any Argument or Debate concerning the Right of Ship-Money for no other Reason but that it had been by the former Judgment decided already in the Exchequer It may perhaps be said This Imposition of Ship-Money was small and inconsiderable Mr. Hampden a Gentleman of a fair Fstare was Assessed but Twenty Shillings And Why should any Body-scruple such a petty Business when the King Commanded it Was not the Remedy far worse than the Disease Why should any Subject exspend a great deal of Money in Law to avoid Payment of so Trivial a Sum Or What Harm could accrue to the Publick by the Judges allowing the King Power to Impose such an Assessment when it was for the Defence of the Realm from Eminent and Imminent Danger and he exerted that Power so favourably c. In Answer to such Objections it must be said That true it is it was then only Mr. Hampden's Case but the whole Nation every individual Subject of England was concern'd in it nay so far concern'd that all his Estate and Liberty was therein given up The Question was not Quantum but Quo Jure If Publick Danger might give the King Title to lay Impositions without a Parliament and He alone were Judge of such Danger When might it not be alledged If Twenty Shillings were Assessed on Mr. Hampden that Year How did it appear but Twenty Pounds might be required the next and Two Thousand Pounds the Year following And What Use what Occasion would the Court have had for ever afterwards of a Parliament But as to the Illegality of these Ship-Writs I refer the Reader to Judge Crook's Argument where the same is Demonstrated to be against the Common-Law against divers Statutes not to be maintain'd by any Prerogative or Power Royal unwarrantable by any former Precedents c. Let us see then what were the Consequences of these Extrajudicial Opinions and this Illegal Judgment of the Judges First As to the King They thereby mis-led him as much as in them lay to Discompose the Harmony of Government to Entrench upon the Property of His Subjects and contrary to his Intentions by Colour of Right to violate the Laws which no doubt that Good Prince meant to have preserv'd Inviolable Secondly As to the Subjects They were not only hereby Injured but their Affections Alienated from their Sovereign which to occasion is no doubt a very High because almost Irreparable Treason The Genuine Sense of these Resolutions being no less than this That the King of England as often as Himself pleaseth may declare the Kingdom to be in Danger and that so often His Majesty for Prevention of such Dangers may by His Writ under the Great Seal of England alter the Property of the Subject's Goods without their Consent in Parliamen and that in such Proportions as His Majesty shall think fit And besides may deprive them of the Liberty of their Persons and that in such Manner as Himself shall please Thirdly As to the Judges themselves It prov'd deservedly Fatal For no sooner was a Parliament Call'd but they were call'd to Account for these their Illegal Opinions and Judgment And after a long Debate on Monday the Seventh of December 1640. these Four several Votes Passed upon them without so much as One Negative Voice to any of them viz. First THat the Charge imposed upon the Subjects for the Providing and Furnishing of Ships and the Assessments for Raising of Money for that purpose commonly called Ship-Money are against the Laws of the Realm the Subjects Right of Property and contrary to former Resolutions in Parliament and to the Petition of Right Secondly That the Extrajudicial Opinions of the Iudges Published in the Star-Chamber and Inrolled in the Courts at Westminster before Recited in the whole and in every part of them are against the Laws of the Realm the Right of Property and the Liberty of the Subjects and contrary to former Resolutions in Parliament and to the Petition of Right Thirdly That the Writ to the Sheriff of Bucks particularly Recited and the other Writs commonly called Ship-Writs are against the Laws of the Realm the Right of Property and the Liberty of the Subjects and contrary to former Resolutions in Parliament and to the Petition of Right Fourthly That the Iudgment in Mr. Hampden's Case as before Recited in the matter and substance thereof and in that it was conceived that Mr. Hampden was any way Chargeable is against the Laws of the Realm the Right of Property the Liberty of the Subjects and contrary to former Resolutions in Parliament and to the Petition of Right These