that the Laws of your Realme wherein you shall succeed are such For it shall exhibit to you and your people no small security and comfort And the same Author fo. 84. cap. 36. saith thus That the King by his Officers though the owners would say nay may take necessaries for his house at a reasonable price to be assessed by the Constable Neverthelesse he is bound by the Law to pay therefore either presētly or at a day to be limited by the higher Officers of the house For by the Laws hee may take away none of his Subjects goods without due satisfaction for the same neither doth the King there either by himselfe or his servants and officers levie upon his Subjects Tallages Subsidies or any other burthens or alter their Laws or make new Laws without the expresse consent and agreement of his whole Realme in his Parliament And thus I have done with the positive part of my argument and I will indeavour to be shorter in the rest THE SECOND PART NOw in the second place I will give an answer to all such objections that have beene made by the Counsell of the King at the Barre and by some of my Brothers in their arguments against these Statutes First it hath beene objected that the Statute de Tallagio non concedendo was not a Statute And this was insisted upon by Mr. Solicitor and not without many probabilities of the Kings not then being in England and many other things by him alledged Yet because it hath beene generally agreed by all that have argued since that it was and is an Act of Parliament and is so recited in the Petition of right I will say no more to that But thereby and by his insisting so much upon that to be no Statute I doe conceive that he understood that Statute to be as indeed it is a forceable Statute against this imposition of a charge by Writ without the consent of the Parliament The second objection was That the words Aides Tax and Tallages doe not extend to this provision of Ships of Warre and men for defence and that there is no exception of the aides which are due to the Kings Majesty for making his eldest sonne Knight nor aides for mariage nor other aids by tenures The answer is easie for the words of the Statute of the fourteenth year of King Edward the third are That they shall not from henceforth be charged or grieved to make any aide or to sustaine any charge These are words so generall that all is comprehended which charges all And for the aides of making the eldest sonne Knight and the other aides they are not generall to charge all but particular such as are charged by tenure and neede no exception And yet in the Statute of 25. Ed. 3. cap. 8. there is an exception of other then those which hold by such tenure which exception was needlesse because no charge of any in particular is within any of the acts of Parliament but such as are generall and extend to charge all the Subjects of the Realme as this doth There hath beene another objection made against the Statute of 14. Edw. 3. that it should be but temporary for the time of the continuance of those wars And my Brother Berkley did except to this Statute because it is not mentioned in The petition of right To this there needs no other answer then the Statute it selfe First the preamble and then the body of the Act viz. That from henceforth they shall not be compelled to make any aide or sustaine any charge but by the common consent of the Prelates Earles Barons Great men and Commons of our Realme of England and that in Parliament This is an absolute Statute It is true that the latter clause whereby the King was pleased that the profits to be made of his Wards Marriages Escheats and other profits should be disposed of for the maintenance of the Realme of England and of his wars in Scotland France and Gascoy and elsewhere during the said warres This was a matter of the Kings bounty and Grace and was to continue no longer And to say that because it was not particularly mentioned amongst other in The petition of right therefore it should be of no force doth not stand with any reason to impeach the Statute nor many others that are not there enumerated The last and greatest Objection that hath beene made first by my Brother Crawley and after by others and insisted upon by my Brother Iones is That this is a Prerogative or power Royall so incident to the Kings Majesty that it cannot be taken away by any act of Parliament And as it was said it is proprium quarto modo And in proofe thereof it was affirmed that when there was in the beginning of King Iames his raigne a purpose to have taken away all tenures by an act of Parliament and to have shut up the Court of Wards It was resolved by the Judges that such a Statute had beene void First I doe agree that there are many things so incident in power to a King as are not in the power of any Parliament to take away as appeares by the case of 1. H. 7. of the disposing of the right of the Kingdome power of making Warre and Leagues The power of the coine and the value of coines and many other Monarchicall powers and prerogatives which to be taken away were against naturall reason and are incidents so inseparable that they cannot be taken away by Parliament And yet I will shew you and prove that Acts of Parliament have bounded limited and qualified the Kings ancient and inherent Prerogatives of like nature and of as great importance as this is It it said in Ploydon in the case of Mines f. 332. That every Prerogative that the King hath containes in it selfe a matter of Prescription and as it is there said That before the Statute of 2. Edw. 3. cap. 12. if one held his Land by Knights service of the King in Capite and had aliened that land in fee without the Kings licence the land was forfeited to the King And the King should have had the land to him and his Successors for ever The King willeth and granteth that the King shall not hold them as forfeit But shall take a reasonable fine to be assessed in the Chancery by due Processe And in the same booke fo. 322. The Kings Majesty might by Prerogative have taken woods in any mans wood for the repaire of his Castles but by the Statute of Magna Charta cap. 21. he is excluded of that The words are Neither We nor our Bailiffe nor any other for us shall take wood of any other mans to repaire our Castles nor to doe any other thing with them but by good will of him whose wood it is And by the Statute of 25. Edw. 3. cap. 1. It is enacted that from thenceforth neither he nor any of his heires shall
he to return the same to the Court whereunto he is the immediate officer and the former are not any officers So the Scire fac ' thereupon grounded I conceive is not good also the Scire fac ' to warne Mr. Hampden ad ostend â—i quid pro se habeat c. quare de praedict viginti solid onerare non debet not shewing to whom is uncertaine and insufficient Thereupon I conclude upon the whole maâ—er That no judgement can be given to charge the Defendant FINIS Iudgement was given against Mr Hampden by the greater part of the Iudges And when the Iudges had delivered their opinions the Barons gave Iudgement Quod oneretâ—r c. Afterwards in this present Parliament begun at Westminster 3. Novembris Anno Dom. 1640. the Commons took into their considerations the extrajudiciall opinions of the Iudges the Ship-writs and this Iudgement against Mr Hampden and being read openly in the House after long debate Die Lunae septimo die Decemb. 1640. these foure severall Votes passed upon them without so much as one negative Voice to any of them viz. THat the charge imposed upon the Subjects for the providing and furnishing of Ships and the assesments for raising of money for that purpose commonly called Spip-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 THat the extrajudiciall opinions of the Judges published in the Star-chamber and inrolled in the Courts at Westminster in haec verba THE CASE Charles Rex VVHen the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger whether may not the King by Writ under the Great Seal of England command all the Subjects in this Kingdome at their charge to provide and furnish such number of Ships with men victuall and munition and for such a time as hee shall think fit for the defence and safegard of the Kingdome from such danger and perill and by Law compell the doing thereof in case of refusall or refractorinesse 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 C. R. THEIR OPINIONS MAy it please Your most excellent Majesty We have according to Your Majesties command severally and every man by himself and all of us together taken into serious consideration the Case and questions signed by Your Majestie and inclosed in Your Letter And we are of opinion That when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger Your Majesty may by Writ under the Great Seale of England command all the Subjects of this Your Kingdome at their charge to provide and furnish such number of Ships with men victuall and munition and for such time as Your Majesty shall think fit for the defence safegard of the Kingdome from such danger and perill and that by Law Your Majesty may compell the doing thereof in case of refusall or refractorinesse 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 In the whole and in every part of them are against the Lawes of the Realme the Right of Property and the liberty of the Subjects and contrary to former Resolutions in Parliament and to The Petition of Right THat the Writ following in haeâ— verba viz. CHARLES by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To Our right trusty and welbeloved Councellor Thomas Lord Coventry Keeper of Our great Seal of England greeting These are to will and require you that for the safegard of the Seas and defence of the Realme you issue forth or cause to be issued forth of our high Court of Chancery these ensuing Writs in the forme following with Duplicats of them under Our Great Seale of England unto the Counties Cities Townes and places hereafter ensuing and for so doing this shall be your warrant REx c. Vic. Com. nostri Buck. Ballivis Burgensibus Burgi paroch de Buckingham Maiori Ballivis Burgensibus Burgi de Chepping Wicombe alias Wicombe Ballivis Aldermannis Burgensibus Burgi de Aylesbury ac probis hominibus in eisdem Burgis parochiis membris eorundem in Villis de Agmondisham Wendover Marlowe magna ac in omnibus aliis Villis Burgis Villat Hamlet aliis locis in dicto Com. Buck. salutem Quia datum est nobis intelligi quod praedones quidam Piratae maris Grassatores tam nominis Christiani hostes Mahumetani quam alii congregat Naves bona ac mercimonia non solum Subditorum nostrorum verumetiam Subditorum Amicorum nostrorum in mari quod per gentem Anglicanam ab olim defendi consuevit nefariè diripientes spoliantes ea ad libitum suum deportavere hominesque in eisdem in captivitatem miserrimam mancipantes Cumque ipsos conspicimus Navigium indies praeparantes ad Mercatores nostros ulterius molestand regnum gravand nisi citius remedium apponatur eorumque conatui virilius obvietur consideratis etiam periculis quae undique his guerrinis temporibus imminent ita quod nobis Subditis nostris defensionem maris regni omni festinatione qua poterimus accelerare convenit Nos volentes defensioni regni tuitioni maris securitati Subditorum nostrorum salvae conductioni Navium Merchandizarum ad regnum nostrum Angliae venient ' de eodem regno ad partes exteras transeunt ' auxiliante Deo providere maxime cum nos Progenitores nostri Reges Angliae Domini maris praedict. semper hactenus extiterint plurimum nos taederet si honor iste regnis nostris temporibus depereat aut in aliquo imminuatur Cumque onus istud defensionis quod omnes tangit per omnes debeat supportari prout per legem consuetudinem regni nostri fieri consueverit Vobis praefat. Vicecom Maior Ballivis Aldermannis Burgensibus probis hominibus omnibus aliis quibuscunque supramentionat Villis Burgis Vill Hamlet locis suprad eorumque membris in fide ligeantia quibus nobis tenemini sicut Nos honoreÌ„ nostr. diligitis necnon sub forisfactur omniumque quae nobis forisfacere poteritis firmiter injungend Mandamus quod unam Navem de guerra portagii quadringent quinquagint doliorum cum hominibus tam Magistris peritis quam Marinariis valentioribus expertis centum octoginta ad minus ac etiam tormentis tam majoribus quam minoribus pulvere tormentario ac hastis telis aliisque armatur necessar pro guerra sufficien cum duplici eskippamento necnon cum victual usque ad primum diem Marcii jam proximè
THE ARGVMENTS OF Sir RICHARD HUTTON Knight One of the Judges of the Common Pleas AND Sir GEORGE CROKE Knight One of the Judges of the Kings Bench TOGETHER WITH THE CERTIFICATE OF Sir JOHN DENHAM Knight One of the Barons of the Exchequer Vpon a Scire facias brought by the Kings Majesty in the Court of Exchequer against John Hampden Esquire AS ALSO The severall Votes of the Commons and 〈◊〉 PARLIAMENT and the Orders of the Lords for 〈◊〉 vacating of the Judgement given against the said 〈◊〉 Hampden and the vacating of the severall Rolls in each severall Court wherein the Judges extrajudiciall Opinions in the Cases made touching SHIP-MONEY are entred LONDON Printed by M. Flesher and R. Young the Assignes of I. More Esquire 1641. THE ARGVMENT OF Mr. Justice HUTTON A Scire facias brought by the Kings Majestie in the Exchequer against Iohn Hampden The case upon the pleading appeares to be this THE Kings Majesty by his writ under the great Seale of England bearing date the fourth day of August in the eleventh yeare of his raigne directed to the Sheriffe of the County of Buck and to the Bailiffe and Burgesses of the Borough and parish of Buckingham and to the Mayors of divers particular Townes in the said County of Buckingham and to all honest men in the same and in all the Townes Villages and places in the said County sendeth greeting reciting that where hee is given to understand that certaine Robbers Pirates and spoilers by Sea as well enemies to the name of Christians as Mahumetans and others being assembled together not onely to take and spoile our Ships and the goods and merchandizes but also the goods and merchandizes of the Subjects of our friends upon the Sea and which had of old been used to be defended at their pleasures and to take and carrie the men in those ships into most miserable captivity and there keepe them And the King doth see that they daily provide ships to vex our Merchants and grieve our Kingdome unlesse speedy remedy bee provided therein And considering the perils which in these times of war are every where imminent The King for the defence of the Sea the security of his Subjects the safe conduct of the Ships and merchandizes being willing by Gods assistance to provide the rather for that he and his progenitors Kings of England have beene Lords of the Sea And where this charge of publique defence which concerneth all ought to be supported by all as by the Laws and Customes of this Realme of England it had been done Therefore the King by his Writ commanded that a Ship of warre of the burthen of foure hundred and fifty Tunnes fitted and furnished with all things necessary for warre and one hundred and eighty men able and sufficient victualled and this to be done before the first of March And then at that time to come so prepared furnished and victualled for the space of twenty six weekes then next following and with wages for so many men of warre for that time to Portchmouth into the companie of such other ships of our Subjects and our owne as shall bee there under the government of such a man to whom before that day wee shall commit the custody of the Seas and to goe from thence with the Kings ships and the ships of other our faithfull Subjects for the defence of the Sea and the repulsing and overcomming of any whosoever which shall molest and hinder the comming in or going out of our Merchants or others upon the Seas A power is given by the writ to the Sheriffe and to the Mayors and any two of them for Corporate townes whereof the Sheriffe to be one to assesse what summes the Mayors and Corporations shall pay towards this charge if they doe not then to be done by the Sheriffe alone A generall power to the Sheriffe to assesse all the inhabitants of all other Townes Villages Hamlets and places and the Tertenants other then such as shall have a part of the said ship or shall serve in the said ship to contribute towards the necessary expence for the provision of the premises upon every man according to his estate and faculty And such portions so to be assessed upon them to levie by distresse or other due meanes A power to name Collectors And a power to commit to prison all such as the Sheriffe shall find rebellious or contradicting the premises There to remaine untill the Kings Majestie shall thinke fit to give order for their inlargement And by vertue of this writ Sir Peter Temple then Sheriffe of the said County did assesse upon the Defendant twenty shillings towards this charge which was after allowed by the succeeding Sheriff Sir Henry Proby and the Defendant was required to pay it but refused And then by a Certiorare out of the Chancery directed to those Sheriffes which had beene Sheriffes betwixt the fourth day of August in the eleventh yeare and the first of March then following to certifie what sum of money had been assessed upon the Defendant for contribution They certified the said summe of twenty shillings Then by Writ of Mittimus out of the Chancery bearing date the fift day of May in the thirteenth year of the Kings Majesties raigne the writ of 4. Augusti Anno undecimo Car. and the Schedule returned into the Chancery whereby the Defendant was so assessed are sent into the Exchequer to proceede against the Defendant for the levying of the summe of twenty shillings which he hath not paid and proceede there to do that which of right and according to the custome ought to bee done for the levying thereof In this Writ of Mittimus it is contained that the writ bearing date the fourth of August Anno 11. Car. was granted for the defence of the Realme the safegard of the Sea the security of the Subjects and for that the safety of the Kingdom of England was in danger But these causes are not expressed in the Writ but other particular causes And upon the tenours of these Writs depending in the Chancery thus sent into the Exchequer this Writ of Scire fac ' is awarded bearing date the twentieth day of May in the thirteenth yeare of the Kings Majesties raigne against the said Iohn Hampden to shew what hee hath to say for himselfe why the said summe so assessed upon him and not paid ought not by him to be satisfied and to doe further what that Court should thinke fit to order To which writ the Defendant appeared in Trinitie Tearme and praied the sight of the writ of the fourth of August and the Certiorare and the Mittimus and they are all entred in haec verba Whereupon the Defendant did demurre generally And Master Atturney generall joyned in demurrer and the Record being read there and opened the Court did adjourne it into the Exchequer Chamber before any argument there at the Barre The sole Question is Whether this Scire fac doth lye
henceforth we shall take such manner of aides taxes or prizes but by the common consent of the Realme and for the common profit thereof Saving the ancient aides and prizes due and accustomed Observe the words in this Statute that for no businesse he shall take any manner of aides taxes or prizes but by the common consent of the Realme The words of this Statute are so plaine for no businesse as they include all and admit any exposition Then in 34. Edw. 1. cap. 1. It is enacted No tallage nor aide shall be taken or levied by us or our heires in our Realme without the good will and assent of Archbishops Bishops Earles Barons Knights Burgesses and other Free-men of the land Then by a Statute made in the fourteenth yeare of King Edward the third it is in this manner That whereas the Prelates Earles Barons and Commons of our Realme of England in our Parliament holden at Westminster upon Wednesday in Mid-lent in the fourteenth year of our Raigne over England and the first over France have granted to us of their free and good will in aide of the speed of our great businesse which we have to doe aswell on this side the Sea as beyond The ninth sheafe the ninth fleece and the ninth Lamb to be taken by two years next comming after the making of the same And the Citizens and Burgesses of Cities and Boroughs the very ninth part of all their goods And the foraine merchants and others which live not of graine nor of flocke of sheepe the fifteenth part of their goods to the value We willing to provide for the indempnitie of the said Prelates Earles and other of the Communalty and also of the Citizens Burgesses and Merchants aforesaid will and grant for us and our heires to the same Prelates Earles Barons and Commons Citizens Burgesses and Merchants that the said grant which is so chargeable shall not another time be had forth in example nor fall to their prejudice in time to come nor that they be from henceforth charged nor grieved to make any aide or to sustaine the charge if it be not by common consent of the Prelates Earles Barons and other great men and Commons of our said Realm of England and that in Parliament Then by the Statute made in the five and twentieth year of King Edward the third cap. 8. it is enacted That no man shall be compelled to finde men of armes holberts or archers other then such as hold by such services if it bee not by common consent and grant in Parliament for that is against the common right of the Realme Which last words for that is against the common right of the Realme are in the Parliament Roll but left out of the printed books of the Statutes And this Act of Parliament is recited by an Act of Parliament made in the fourth yeare of the raigne of King Henry the fourth the 13. Chapter and enacted and observed in all things Then in the first yeare of King Richard the third and the second chapter it is recited That the Commons of this Realme by new and unlawfull inventions have beene put to importune charge especially by a new imposition called A benevolence It is enacted That the Subjects Communalty of this Realm from henceforth in no wise be charged by any such charge or imposition called a Benevolence nor by any other such charge Then comes the Act of Parliament made in the third yeare of the Kings Majesties owne raigne called The Petition of right whereby the Statute made in the time of King Edward the first commonly called the Statute De tallagio non concedendo is mentioned and many particular incroachments recited to be made upon the liberties of the Subject And many particulars being recited it is required to be enacted That no loane of money against the will and good liking of the Subjects Billeting of Souldiers and Mariners in mens houses there to sojourne against their wills Commissions of Martiall laws in times of peace They doe therefore humbly pray you that no man be hereafter compelled to yeeld or make any gift loan benevolence tax or such like charge without common consent by act of Parliament whereunto his Majesty consented with this subscription Soit Droit fait come est Desire And these are the Statutes whereupon I relie that this charge cannot be laid upon the Subject by this Writ onely without the aide of some act of Parliament Now for authorities of Booke cases and other authorities concurring herewith First by the Case of 13. Hen. 4. fol. 14 15 and 16. which were long debated It appeares that the King had granted an office for the measuring of Cloth in London and a power to take so much for his labour There was a Writ under the great Seale directed to the Mayor of London commanding him to put the Patentee in possession and the Patentee had put it in practice and divers had paid money to the Patentee And yet after upon a returne that there was no such office it is adjudged a good returne And it is there agreed That the King cannot by his Patent create or erect a new office in charge of his people without the speciall assent of the Commons And the King cannot grant to any that he shall take of every Carriage that shall come over such a bridge such a sum And it is said there in the sixteenth leafe that a common charge though it sound to the profit of the people cannot be granted out of Parliament And this in my opinion is a strong case in the point Then see 37. Hen. 8. Broke in Patents placito 100. The Kings Majestie may erect Markets and Faires with tolls incident For that concernes onely such as will buy but the King cannot grant toll Travert nor a Thorow toll nor alter or change Laws or Customes of the Realme nor make land deviseable or gavel-kinde or Borough English or change gavel-kinde or Borough English to be descendable to the heire which is so agreed in divers Books Then in the booke of Fortescue of his commendation of the Laws of England it is thus written in the ninth chapter the five and twentieth leafe The King of England cannot alter or change the Laws of his Realme at his pleasure For why he governeth his people by power not onely Royall but also politique If his power over them were onely Royall thē he might change the Laws of his Realme and charge his Subjects with tallage and other burthens without their consent And such is the dominion which the Civill law purports when they say that the will of a Prince hath the force of a Law But from this much differeth the power of a King whose government over his people is politique for he can neither change Laws without the consent of his Subjects nor yet charge them with strange impositions against their wills Rejoyce therefore O Soveraign Prince and be glad
are not found in the Rolls as Magna Charta is not And as touching the time I conceive it to be made in 34. Edw. 1. cap. 1. for so it is set down in the great printed book of Statutes anno 1618. to bee the first chapter of the Statutes therein made viz. in these words No tallage or aide shall be taken or levied by us or our heires in our Realme without the good will and assent of Archbishops Bishops Earles Barons Knights Burgesses and other Freemen of the land And that it is a Statute all my brethren the Judges have agreed The onely doubt then is Whether this Statute extendeth to aides for defence of the Kingdome which I thinke it doth for it is the precise words That no tallage or aide shall bee taken or levied but by consent in Parliament which extendeth to all manner of aides Bodin saith fol. 97. by a Law made in the time of Edw. 1. that it was provided and enacted That no taxe tallage nor aide shall bee imposed but by grant in Parliament and by this Law the Subjects of England have defended themselves ever since as with a buckler whereby it appeareth that notice was taken of this Law in forraine parts and so held still to be a Statute in force The next Statute is 14. Edw. 3. cap. 1. which reciteth the grant of the great Subsidy of the ninth fleece of the ninth Lamb c. formerly granted and thereupon these words follow Wee willing to provide for the indemnity of the said Prelates Earles Barons and other the Comminalty of the Realme and also of the Citizens Burgesses and Merchants aforesaid will and grant for us and our heires to the same Prelates Earles Barons and Commons Citizens Burgesses and Merchants that the same grant shall not bee had forth in example nor fall to their prejudice in time to come Nor that they bee from henceforth charged nor grieved to make any aide nor sustaine charge if it bee not by the common assent of the said Prelates Earles Barons and other great men and Commons of the said Realme of England and that in the Parliament And that all the profits arising of the said aide and of Wards marriages Customes and Escheats and other profits arising of our said Realme of England shall be set dispended upon the maintenance of the safeguard of this Realme of England and of our warres of Scotland France and Gascoin and in no place elsewhere during our said warres By this statute it appeareth that it is expresly provided That the subjects should not be from thenceforth charged nor grieved to make any aide nor sustaine any charge but by common assent and that in Parliament which is as expresse as may be and exclusive to any charge otherwise which I conceive was made against the appointment of making or preparing and sending of ships at the charges of the Townes whence they were or sending men out of their Counties at the charges of the County Now where it is alledged by my brother Weston and my brother Berkley that this was but a temporary statute and ended when his warres ended which appeareth by the last clause for employment of those profits of his Wards c. towards those warres I conceive it appeareth to bee an absolute and perpetuall statute for it is granted for him and his heires which is in perpetuity And also it appeares by Plowd his Cōmentaries fol. 457. in Sir Thomas Wroth's Case where a grant is by the name of the King which is in his politicke capacity this extended against him his heires and successours although they bee not named Also the intendment of this Law appeareth to bee for the security of the subjects from thenceforth for all future ages and then the office of Judges is as appeares by Sir Edward Cokes Reports lib. 3. fol. 7. and Plowdens Commentaries in Byston and Studs Case to construe statutes according to the true intent of the makers thereof which was in this Case That it should bee a perpetuall security for them and to little purpose it had been to make a statute to continue but during the time of the warres Also where it is alledged that the statute of 14. Edw. 3. is not mentioned in the Petition of right which is some Argument that it was not conceived to be a continuing statute To that I answer that in that Petition of right it is said That by the statutes there recited and other the good Statutes of this Realme the Subjects shall not be compelled to contribute to any Taxe Tallage Aide nor other like charge not set by Parliament in which this Statute is as well intended as other Statutes and as farre as if it had beene expresly recited Also it appeareth by all the bookes of Statutes that this Statute is printed as a Statute continuing whereas others expired are so set downe as expired 21. Edw. 3. pars 2. m. 11. A Subsidy being granted by Parliament viz. forty shillings of every sacke of Wooll transported before Michaelmas following and six pence of every twenty shillings of merchandize for the safe guarding of the Merchants defence of the Coasts c. After Michaelmas viz. 31. Octob. 21. Edw. 3. by Writ the Collectors were commanded to continue the collection of those Subsidies untill Easter But 26. Novemb. 21. Edw. 3. the King by Writ commanded the stay of the collection of the six pence in the 20 shillings and to continue the collection of the Subsidies upon the sackes of Wooll untill Easter 22. Edw. 3. Parliament mem. 16. the Parliament being holden in Lent the Commons complained of this continuance of the collection of the Subsidy upon the sacks of Wooll longer then the Parliament had granted it and provided that it should not be continued longer then Easter by the procurement of no person By this it appeareth that the Parliament being carefull that the time for levying of a Subsidy granted should not bee inlarged by any power much lesse would they admit of a Writ to lay a charge without grant by Parliament 25. Edw. 3. m. 8. it was enacted That no man should bee compelled to find men at armes other then such as hold by such services except it be by common assent in Parliament By this it appeareth that if men bee not compellable to find a man at armes unlesse it bee by common assent in Parliament much lesse is any bound to bee contributory to the preparing of a ship with 180. men at armes and victuals and wages of the souldiers for a time unlesse it be by common assent in Parliament Rot. Parliamenti 2. Hen. 4. nu 22. an Act of Parliament as I account in the very point is in these words For that of late divers Commissions were made to divers Cities and Burroughs within the Realme to make Barges and Barringers without assent in Parliament and otherwise then hath beene done before these houres The Commons do pray the King that
the Law is not conceived to beare any such Writ And Sir Edward Coke in his Commentary upon Littleton fol. 81. saith that where there is no example it is a great intendment that the law will not beare it So I conceive here there never having bin a President before of any such Writ to the Sheriffe and Inhabitants of a County to prepare a ship with men and munition upon any occasion whatsoever that it is against the Common law to award such Writs For that the common law of England setleth a freedome in the Subjects in respect of their persons and giveth them a true property in their goods and estates so that without their consent that is their actuall consent or implicite by a common ordinance which they consented unto by a common assent in Parliament it cannot bee taken from them nor their estate charged And for this purpose the law distinguisheth between bondmen whose estates are at their Lords will and disposition and freemen whose property none may invade charge nor take away but by their owne free consent But here in this Case is a charge laid upon the Subjects without their consent and therefore not warranted by law which is proved by these authorities Coke in his Reports lib. 8. fol. 92. in Francis Case setteth downe this Rule Quod noâ—trum est sine facto seu defectu nostro amitti seu in aliâ—num transferri non potest Master Lambert fol. 24. setting downe the lawes of England which were confirmed by William the Conqueror hath these words Inter alia volumus concedimus quod omnes liberi homines Monarchiae Regni sui praedict ' habeant teneant terras suas bene in pace liberas ab omni exactione injusta ab omni Tallagio not mentioning there injusta Ita quòd nihil ab eis exigatur praeter servitium justè debitum Hereby it appeares there is an absolute freedome from all Tallage 17. King Iohn in Matt. Paris fol. 246. The King doth grant and confirme unto his Barons and Commons inter alia these liberties following Nullum Scutagium vel auxilium ponamus in Regno nostro nisi per Commune Concilium Regni nostri nisi ad redimendum corpus nostrum filium nostrum primogenitum mill ' faciend ' vel ad primogenitam filiam nostram maritand ' By this it appeares what was then conceived to be amongst others their liberties and then confirmed which was that no aide should bee put upon them but by Parliament for the Parliament was then called Commune Concilium That the law is so appeareth by the Treatise written by Fortescue who had been chiefe Justice of England and then Chancellour of England in King Henry the sixth his time when he wrote the booke intituled De laudibus Legum Angliae For fol. 25. cap. 9. hee saith thus That the King of England cannot alter nor change the Lawes of England at his pleasure For principatu non Regali sed et politico ipse pâ—pulo suo dominatur If his power were Royall onely then hee might change the Lawes Tallagia quoque caetera onera eis imponere ipsis inconsultis but addes That the King of England sine Subditorum assensu Leges mutare non potest nec subjectum populum renitentem onerare impositionibus peregrinis And in his 13. chap. fol. 31. hee compares the King and Subjects of England to the head and body naturall Ut non pâ—test caput corporis Physici nervos suos commutare neque membris suis proprias vires propria sanguinis alimenta denegare sic nec Rex qui caput corporis politici est mutare potest Leges corporis illius nec ejusdem populi substantias proprias subtrahere reclamantibus eis aut invitis Thus hee in this place but in fol. 84. cap. 36. hee seemes to say In hoc individuo Rex Angliae nec per se nec ministros suos tallagia subsidia aut quaevis onera alia imponit Legiis suis aut Leges eorum mutat aut nova condit sine concessione vel assensu totius Regni sui in Parliamento suo expresso which words seeme so generall that in no case he may doe it So it appeareth by the Booke case 13. H. 4. fol. 14. that the grant of the King which tendeth to the charge and prejudice of his people in generall is not good unlesse by Parliament But it is agreed there that grants of Tolls of Faires of Pontage of Pikage Murage Ferrying or such like which are for the profit good and ease of them that will take benefit thereof and not compulsory to any to pay but to them that will take the benefit of such Faires c. and being very small and reasonable summes the Law doth give allowance unto them but if they were great summes that tend to the charge of the people the Law will judge them void This appears in Sir Edw. Cokes Reports lib. 5. fol. 63. in the Case of the Chamberlain of London That an ordinance made by the CoÌ„mon Councell of London where they have a custome by the said CoÌ„mon Councell to make reasonable ordinances to bind all within the City concerning Clothes to bee brought to Blackwell Hall there alwaies to be viewed measured searched before they were sold a penny appointed for the Officer that did that service That such a charge was reasonable for that it was for the publick benefit of the City and Common-wealth And a pecuniary penalty laid for not performance of that ordinance was allowed Ibid. fol. 64. in Clarkes Case is resolved That an ordinance made by the assent of the Plaintiffe himselfe and other Burgesses for the Towne of Saint Albons of a small taxe upon the inhabitants of the Town towards the erection of the Courts other necessaries for the Terme to bee kept there It was allowed to bee good and did bind the Plaintiffe being by the Plaintiffes own consent and for the publick good of the Town Also Coke lib. 11. fol. 86. in Darcies Case citeth this out of Fitzherberts natur brev. fol. 122. That every grant of the King hath this condition in it tacite or expresse Quòd patria per donationes illas magis solito non oneretur seu gravetur And as by grant the King cannot charge his people so neither can hee by Writ lay any charge upon his people but by their consent or where they have apparent benefit thereby And that is the reason of the Writ in the Register fol. 127. Fitzh. nat. brev. fol. 113. where by breach of the Sea walls any inundation is of the Country the King who is Pater patriae and taketh care for the good and safety of his people sendeth out his Commissioners to enquire by whose default any such breach happened and to cause all that had lands and commons neere adjoyning which may have benefit of inclosed marshes or losse by such inundation to be contributory to the
forces to defend c. The like writs to all other Bishops in the Kingdome A writ to the arrayers of men in the county of Norff. and to the Sheriffe of Norff. commanding them to command all great men and others that had mansions upon or neere the sea coasts to resort with all their families for defence of those coasts The like to the arrayers and to the Sheriffes often other Maritine counties A commission to the Bishop of Durham and others to array men in Durham Cumberland and Northumb. to resist the Scots A writ to William Hench and others to remove with all their families to their houses upon the sea coasts In the time of Richard the second A writ to the Bayliffe of Scardeburgh because the towne was upon the coasts of the sea and in danger by invasion carefully to look to the custody thereof c. A writ to the Maior and Bayliffes of Oxon. to repaire the walls of the town and to compell those that had lands there to contribute to the expences thereof This Record hath beene much urged by Mr. Sollicitor and Mr. Attorney that if the King have such a power to command the walls of a towne to bee repaired much more to command ships to be made which are the walls of the sea and consequently the walls of the Kingdome But this is clearly answered for that it is but a private charge of a private towne and that had beene formerly so walled and for defence safety of the town and none charged but those that have benefit thereby and so proveth nothing to the Case in question One writ to the Sheriffe of Kent and another to the Sheriffe of Essex commanding an ordinance made c. by the King and his Councell for setting up of Beacons and keeping watch about them A writ to the Archbish. of Cant. to command all his Clergy betweene 16. and 60. to bee arrayed and put in armes both horse and foot according to their qualities to bee ready to defend the Kingdome A writ to a Serjeant at armes to array all ships of warre in the Ports of Plimouth and Dartmouth and other parts in the county of Cornwall and to bring them to Hanks hook to go with the Kings Majesties ships In the same Roll are divers other writs to divers other Serjeants at armes to arrest the ships in divers other ports A commission to the Duke Albernale to array men in the West Marches towards Scotland to resist the Scots A writ to the Sheriffe of Derby and Nottingham reciting that the King certainly understood that the Scots intended with a great power to invade the Kingdome commandeth him to proclaim in all parts of his counties that all men betweene 16. and 60. should put themselves in arms competent according to their degrees to bee ready upon two dayes warning to defend the Kingdome The like writs were then directed to the Sheriffes of Lincoln Yorke and Lancaster A writ to the Archbish. of Cant. reciting Satis informati estis qualit inimici nostri Franc. alii sibi adhaerentes cum magna classe navium cum magna multitudine armator ' super mare congregat ' diversas villas per Costeram regni nostri invadere nos regnum nostrum destruere Ecclesiam Anglicanam subvertere intendunt proponunt Thereupon commandeth that the Clergy in that Diocesse be arrayed and armed and to be ready at the Kings command to goe against the enemy The like Writs were then awarded to every Bishop in England A commission to Thomas de Morley and others and to the sheriffes of Norff. and Suff. and to the Bayliffes of great Yarmouth reciting Quòd cum inimici Franc. Brittan Scot. alii sibi adhaerentes inter se obligat magna armat super mare in aestate proxim futur ordinaverunt intendunt regnum invadere c. commandeth to survey that town of Yarmouth to fortifie it Note here also notwithstanding such great danger mentioned and such distance of time yet that no Writs issued to any counties to prepare ships A commission to array all men at armes in the West-Riding in Yorkshire to bee ready to defend those parts The like Commissions to others in nineteen severall counties Commissions for arraying men for defence of the Kingdome if invasion shall be and for repressing of Rebels Commissions unto George Duke of Clarence and others to array men for defence A Commission to Iohn Lord Howard to be Captaine of all the Forces A Commission to Marquesse Mountague to array and put in armes all men beyond Trent A Commission to Rich. Fitz-Hugh c. and to the Sheriffe of Yorkshire to array and cause to bee armed all able persons Abbots and others to be ready to defend the Kingdome A Writ to the Sheriffe of Norff. and Suff. to proclaime in all parts of those counties for that there was like to be open wars between Charles of France and the King of Romans and great Navies are prepared of either side commandeth that watch and ward bee kept and beacons kept to give warning that every man be ready if need be to come and defend the Kingdome A Writ to the Sheriffe of Kent commanding him to proclaime in his county that the King bee certainly informed that the French King hath prepared and put in readinesse a great and strong Navie furnished with men of warre to invade this his Kingdome therefore commandeth all men betweene the age of 16. and 60. to put themselves in armes and to bee ready to defend the Kingdome at an houres warning Cōmissioners went to take view of all the horses of England for service and to survey all the armes to have them all put in readinesse as necessity should require Now it appeareth upon view and examination of all these Records most of them being cited by Mr. Sollicitor and M. Attorney in their severall arguments that there are none to prove the sending of any such Writs to Inland or Maritine counties to prepare such ships although there hath beene many times great danger nor yet any Writs to Maritine towns after the Stat. of 14. E. 3. to charge them to find any ships at their charges So then I conclude this point that I conceive this Writ is not warranted by any former President Now I come to examine the points of this Writ whether the same bee legall and warranted by any former Presidents and I conceive it is not For First the motives mentioned in the Writ are Quia datum est nobis intelligi which is no certain information quòd quidam praedones maris grassatores did take the Kings subjects Merchants and others and carried them into miserable captivity Cumque ipsos conspicimus navigium indies praeparantes ad mercator ' nostros molestand ' regnum nostrum gravand ' All
these and those following I conceive are not sufficient motives and were never in any President before to have a royall Navie prepared for the former Presidents are that great Princes in open times of hostility had provided great Navies with munition and souldiers with intent to invade the Kingdome as appeareth by the former Presidents and against such provision it was necessary to provide a royall Navie the Kings ships and all the ships of the Kingdome to be gathered to withstand them but to make such preparation against Pirats it was never put in any Writ before for when Pirats infested the seas they came as it were by stealth to rob and to doe mischiefe and they never dare appear but when they may doe mischiefe and escape away by their lightnesse but against them the usuall course hath beene that the Admirall or his Deputy with some few ships have scoured the coasts and not to imploy a whole Navie and this appeareth by the Record of 25. E. 1. m. 9. where Will. Leyborne the Admirall was appointed upon such an occasion with ten ships to lye upon the seas and the usuall practice hath beene when they hover upon the seas by sending a few ships of war to scatter them and to make them absolutely to flye away there is no doubt of loss of the dominion of the seas by any act that Pirats can do neither convenient that every county of the Kingdom should prepare ships against them The command of this Writ to provide a ship of 450. tuns at the charges of the county furnished with Masters and Mariners which is impossible for them to doe for the reasons before alledged and therefore is illegall and not warranted by former President The command of the Writ to find wages for the souldiers for 26. weeks after they come to Portsmouth when they are out of their counties and in the Kings service is illegall being against the course of Presidents in divers times and against divers expresse statutes and this appeareth by divers Records 15. Ioh. In the Writs of Summons of the Tenants by Knights service it is expresly mentioned that after their 40. daies service for so many daies they were to doe service by their tenures they should be satisfied ad denarios Regis Pasch. 26. E. 1. amongst the Writs of the Exchequer it is there set down that the footmen of Cheshire being 1000. which were appointed to goe to the defence of the borders upon Scotland would not stirre out of the county without their wages and there is set downe that one therein named was sent down with monie to pay the said footmen Mich. 26. E. 1. Inter Brevia irretornab in the Exchequer by reason of the invasion of the Scots many thousands of souldiers were taken from divers parts of the Kingdome ad vadia Regiâ— and there mentioned that Clerkes were sent downe with mony to pay the souldiers of severall counties their wages In the Exchequer in accompt the wages of land souldiers for severall counties and the wages of Mariners are set downe what the wages that was paid came to by day both by sea and land Inter Brevia in the Exchequer the Wardens of the Marches of Scotland signified unto the Barons that the men of Cumberland and Westmerland appointed for the defence of the Marches would not stirre out of their counties without wages whereupon order was given for wages for them Commissions went out to pay the souldiers which served out of severall counties for defence against Scotland In the Exchequer it was ordered in Parliament that where some souldiers had received of some of the Kings officers monies for their wages were fain to give bond for repayment that those bonds should all be redelivered But to clear all doubts the expresse statute of 18. E. 3. c. 7. is That men of armes Hoblers and Archers chosen to go in the Kings sâ—rvice out of England shall be at the Kings wages from the time they goe out of their counties where they were chosen untill the time they come home againe Those that had any grant of lands from the King and those that had any offices of the grant of the King are to serve the King in his wars but in both it is appointed they shall have wages from the time they come from their houses untill they shall returne It is enacted That no Captaine receiving souldiers serving by sea or by land shal receive any wages for more souldiers or more time then they serve and shall enter the daies of their entring into wages upon pain c. All which Records and Statutes do prove that the souldiers should be at the Kings wages therefore this command for souldiers wages for 26. weekes when they goe from Portsmouth is illegall and expresly against the said Statutes and so the assessment being entire as well for the wages as the other charges I hold to bee clearly illegall and not to be demanded That the command of this Writ to the Sheriffe to assesse men at his owne discretion is not legall nor warranted by the Presidents for the Presidents are commonly that assessements for contribution for making or setting out of ships have been by Commissioners which by presumption had knowledge of such matters as commonly Sheriffes have not Also this leaveth to the Sheriffe too great a power to value mens estates as to inhaunce whom he will to favour whom he will That the power to the Sheriffes Maiors of townes c. to imprison especially as it is used for non-payment of the mony is illegall and expresly against divers Statutes for it is provided by Magna Charta c. 29. Quòd nullus capiatur vel imprisonetur nec super eum ibimus nisi per judicium Parium suor ' vel per legem terrae Also in 5. Ed. 3. cap. 9. that none shall bee attached or his goods seized contrary to the forme of the great Charter Also by the statute made Mich. 37. E. 3. cap. 18. it is recited that by that great Charter none should bee taken or imprisoned but by due processe of law yet by colour of this Writ the Sheriffe may imprison any person yea any Peere of the Realm for although Peers are not to be arrested upon ordinary process between party party as it was resolved in the Countesse of Rutlands case in Cok. l. 6. fol. 32. yet for a contempt and upon processe of contempt which is alwaies for the King any Peere may be imprisoned as it is resolved by all the Lords and all the Judges in the Star-chamber in the Earle of Lincolnes case and so the Sheriffe by colour of this Writ may arrest any Peer as for a contempt in not paying but by the Booke case 2. E. 3. fo. 2. it is resolved that a Writ to imprison one upon suggestion before hee be indicted and without due processe of law was illegall so for the case I hold this Writ to be illegall The last
clause of this Writ is That by colour of this Writ more should not be gathered then will be sufficient for the necessary expences of the premisses and that none that levie any mony towards these contributions shall detaine the same with them or imploy the same to other uses and that if more then did suffice were collected it should bee paid amongst those that paid after a rateable proportion These are reasonable clauses but as the course is taken it is not to be performed for no ship nor tackling nor munition nor men nor wages nor victuals being provided it is not to be known whether more be gathered or lesse then would suffice and there being mony gathered it is of necessity either detained with the Collector or Sheriffe or imployed to other uses then are appointed by the Writ so the writ is not performed and the money assessed and collected is not duely made nor collected and the mony assessed and unpaid cannot be duely demanded Admitting that the Writ were legall the commands therein legall yet the assessment as it is certified is not sufficient to charge the Defendant for it is not certified that any ship with munition men and wages for men and victuals were prepared and this is a yeare after the time that it should have beene prepared sent to Portsmouth and if it were not prepared there is no cause to charge the Defendant and that not appearing to be done it shal be conceived not to be done for if a man be charged with mony in consideration of a thing to be done before a certaine time if the thing be not performed according to the time none can bee charged for not being contributory to it after the time is past for it is in nature of a condition precedent to have a duty or summe of mony to be paid after the condition performed and there he that will have the duty must shew that the condition is performed This appeareth in the case of 15. H. 7.1 Cok l. 7. fo. 9. Ughtrees case And if the ship be not prepared according to the Writ nor mony imployed for preparing a ship for and in the name of the county then every one that paid any mony either voluntarily as in obedience to the Writ or compulsorily upon distresse may demand their mony again of the Sheriffe or of them that received it for as they paid their mony so it must be disposed of and cannot be disposed of otherwise by any coÌ„mand whatsoever although it be under the great Seale for the command being under the great Sâ—ale to prepare and furnish a ship to such purpose as in the Writ is mentioned and they paying it to that purpose it cannot bee otherwise disposed although it bee more for their advantage for private men having interest therein that cannot bee taken from them noâ— dispenced withall therefore in Cok li 7. fol. 27. in the case of penall laws it is resolved That if the penalty appointed to be forfeited upon a penall statute be given to the poore of the Parish where the offence is committed the King cannot dispense with the penalty for that offence because the poore have an interest therein but if the penalty be given part to the King and part to the poore the King may dispense with his owne part but not with the part of the poore And where it is said that this is by way of accommodation because the country cannot well know how to provide to content and perhaps with more charge To this is answered they must doe it at their perill if the Writ be legall and then if it be done they shall have the benefit thereof for as my brother Weston and my brother Berkley have both agreed if the ship were made when the service is done the county for which it was made shall have the benefit of the ship and the munition and of the service of the men being made more expert against another time and the ship may with some easie charge serve again and nothing lost but the expences of the victuals and the Kingdome shall be so much the more strengthened by having so many ships made or prepared and they may have account of their mony how it was bestowed and if any surplusage bee gathered to have it restored And that the law is so that if mony be received of the county and not imployed accordingly the party so receiving it is accountable to pay a fine for the same to the King and to the county for the money appeareth by two Records the one in Hill 16. E. 3. rot 23. in the Kings Bench where two souldiers were indicted for that they 8. E. 3. taking 3. li. a piece towards their armour and to the bringing them to the place where they were appointed to serve the King in England in warres went not but tarried still in their houses and retained the armour the mony they had received for that purpose They thereupon being convented pleaded not guilty and the one was found to go in service according to the appointment so hee was discharged and the other was found that he received the mony and went not to doe the service nor restored the armes nor mony thereupon he was committed to the prison paid to the King a fine and found sureties to pay the mony to the Hundred again from whom he had received it The other was Hill 20. Ed. 3. rot 57. in the Kings Bench where two high Constables were indicted for that they 8. E. 3. had received 6. Markes of the townes in their Hundreds to set forth souldiers and had not set them forth but retained the mony which they denying it was found that they had received the mony for that purpose and disbursed 41. s. 6. d. thereof towards the setting forth of souldiers but had retained 38. s. 6. d. and not disbursed it thereupon they were fined and imprisoned and after inlarged upon sureties to pay the mony they had retained undisbursed at the next time when the King commanded souldiers for those parts By both which Records being for offences done so long before it appeareth that those that have received mony of the country to prepare ships they are answerable unto the King or his Successors to pay a fine for their imployment of it otherwise and are chargeable to those of the county of whom they received it for repayment thereof For the last point I conceive that this Certiorari directed to the two that were late Sheriffes at the time of the assessment and not to the Sheriffe that was at the time of the Certiorari awarded who is the only and immediate officer to return the Writs is not legall for it is the first that hath beene seen of that kindâ— for all Writs are directed to some immediate Sheriffe requiring him to demand of the former Sheriffes what they did upon the former Writ and they are to returne to him what hath been done and
Stat. of 25. Edw. 1. cap. 6. 34. Edw. 1. cap. 1. 14. Edw. 3. cap. 1. 25. Edw. 3. cap. 8. Confirmed by an act of Parliament in 4. Hen. 4. 1. Rich. 3. cap. 2. Anno 3. Car. 13. H. 4. fo. 14.15.16 37. H. 1. Broke Patenâ—s Pla. 100. 14. H. 4. fo. 9. 37. H. 6. fo. 27. 8. H. 6. fo. 19. concurring Fortescue in his booke de Laude legum Angliae fo. 25. cap. 9. He was made Lord chiefe Justice of the Kings bench Anno 19. Hen. 6. and made Chancellor of England as is said in the Booke The same author cap. 36. fo. 84. Object 1. Resp. 1. Object 2. Resp. 2. Object 3. Resp. 3. Object 4. Ploy fo. 332. The Case of Mynes fo. 322. 25. Edw. 3. cap. 1. 11. H. 4. fo. 7.8 The Statute of 7. H. cap. 3. 21. Iac. cap. 2. 21. Iac. cap. 14. 36. Edw. 3. cap. 10. Bracton fo. 1. The Stat. of Winchester 13. Edw 1. Libr. 2. Edw. 3. fol 7. Vide â—e Register fo. 27 â— The Statute Winch. 2. cap. 28. Dr. and Student fo. 12. The third part The first Precedent Spelman fo. 200. Resp. 1. 34. Ed. 1. cap. 8. The commission bearing date the 20. of November An. 27. Edw. 1. 2 Hen. 4. Num. 22. The fourth part 34. H. 6. fo. 14. 17. H. 8. Anno Dom. 1525. The attempt to have a Benevolence for Queene Elizabeth The fifth part 25. 26. Eliz. Cook l. 9. f. 1. in Dowmans Case Coke li 4. Vernons case Coke l. 5. f. 68. le Signior Chenyes case Excep 2. 8. H. 6.19.18 H. 3.9 Eliz. The Scire fac Reason 1. 2. 3. 4. The sixt part Mich. 4. Iac. Bates his case The Letter râ—quiring answer was dated 2. Fâ—b The answer 7. Fâ—b Obj. upon the Def. generall Demurrer Resp. Lib. 4. fo. 43. in Hudsons Case Et fol. 71. Hindes Case The motives of the Writ which are five The charges in this Writ are three The commands of this Writ which are five The end for which this ship is to be prepared The clause of the assâ—ssement for the expences The purclose of the Writ Object Sol. Object Sol. 25. Edw. 1. Ibid. cap. 6. Object Sâ—l Bod. fol. 97. Edw. 1. 14. Ed. 3. ca. 1. Ob. Sol. 21. Edw. 3. p. 2. m. 11. 22. Ed. 3. m. 16. â—5 Ed. 3. m. 8. Ob. Sol. 13. H. 4. nu 10. 13. H. 4. nu 33. Object Sol. 1. Cok. lib 9. fo. 1 4. Ed. 3. ca. 14. 36. Ed. 3. c. 10. 4. Edw. 3. Id est Walmesley come Hutton Glaâ—vill aâ—xi Ob. Sol. Bract. lib. 3. fol. 1â—â— Plowd com fo. 246 247. Plowd com fol. 487. 21. Ed. 3. fo. 47. Cok. l. 11. f. 86. Doct. Stud. fol. 8. 31. H. 8. c. 8. 1. E. 6. Bract. l. 2. c. 24. fol. 55. Cok. l. 7. fol. 11 Cok. l. 7. fol. 5. 23. Ed. 1. m. 4. 10. Ed. 3. m. 16. 10. Ed. 3. m. 22. 12. Ed. 3. m. 10. 12. Ed. 3. m. 13. 26. Ed. 3. m. 5. 5. H. 4. m. 28. 4. Hen. 8. p. 2. Ob. Sol. 6. Joh. m. 11. 9. Joh. m. 3. 14. Joh. m. 2. 17. Joh. m. 7. 15. Joh. m. 4. 15. Joh. m. 6. 14. H. 3. m. 14. 14. H. 3. m. 5. 48. H. 3. m. 4. 48. H. 3. m. 2. 48. H. 3. m. 3. 48. H. 3. m. 7. 23. Ed. 1. m. 5. Ibid. 24. Ed. 1. m. 17. 24. Edw. 1. Rot. 62. 24. Ed. 1. m. 16. 24. Edw. 1. â—ot 78. Ibid. 24. Edw. 1. Rot. 81. 24. Edw. 1. int. Com. ☞ Nota. 24. Ed. 1. m. 9. 24. Ed. 1. m. 26. 25. E. 1. m. 12. Ibid. 13. Ibid. 14. 21. Ed. 1. m. 20. 23. Edw. 1. Rot. 77. Pat. 9. Ed. 2. parâ— 2. Claus. 20. E. 2. m. 8. 20. Ed. 2. m. 10 20. Ed. 2. m. 7. 15. Ed. 2. m. 15 15. Ed. 2. m. 15. 16. Ed. 2. m. 13. 19. Ed. 2. m. 6. 2. Ed. 3. m. 92. Scot. 7. Ed. 3. m. 19. 10. Ed. 3. m. 25. Ibid. Scot. 10. E. 3. m. 2. Scot. 10. Ed. 3. m. 2. Scot. 10. Ed. 3. m. 16. Scot. 10. Ed. 3. m. 16. 10. Edw. 3. m. 12. Scot. 10. E. 3. m. 22. Ibid. Scot. 10. Ed. 3. m. 21. Alm. 12. Ed. 3. m. 12. Alm. 12. Ed. 3. m. 13. Claus. 12. Ed. 3 m. 16. 12. Ed. 3. m. 8. Alm. 12. Ed. 3. m. 10. Alm. 13. Ed. 3. m. 12. Claus. 13. Ed. 3 m. 35. Claus. 13. Ed. 3 m. 38. Claus. 13. Ed. 3 m. 14. Claus. 13. Ed. 3 m. 14. Scot. 20. Ed. 3. m. 14. Ibid. 20. Ed. 3. m. 15. Rot. Franc. 21. E. 3. m. 31. Franc. 25. E. 3. m. 20. ☞ Nota. Franc. 26. E. 3. m. 5. Franc. 46. E. 3. m. 34. Franc. 50. E. 3. m. 47. Scot. 29. Ed. 3. m. 13. Franc. 40. E. 3. m. 31. 1. R. 2. m. 7. Eod. Rot. m. 12 Eod. Rot. m. 42 Scot. 7. R. 2. m. 8. Franc. 11. R. 2. m. 13. Scot. 21. R. 2. m. 3. Rot. Vierg 1. H. 4. m. 11. Claus. 1. H. 4. m. 12. Note that although this great danger be mentioned yet no command to any county to prepare ships Pat. 5. H. 4. pars 2. m. 28. Pat. 3. H. 5. pars 2. m. 37. Pat. 13. H. 6. m. 10. Pat. 39. H. 6. m Pat. 39. H. 6. m. 12. Pat. 39. H. 6. m. 1. Pat. 10. Ed. 4. m. 12. Pat. 10. Ed. 4. m. 13. Pat. 49. H. 6. m. 22. Pat. 1 H. 7. pars 1. 1. H. 7. pars 3. 4. H. 8. pars 2. 11. Elis. 30. Edw. 1. Trin. 31. E. 1. 19. Ed. 2. Hil. 2. Ed. 3. Rot. 16. 19. H. 7. cap. 1. 11. H. 7. cap. 1. 2. 3. E. 6. c. 2. Object Sol. MemoraÌ„d quod xxvii dic â—eb 1640. anno regni Dom. Regis Car. 16. istud irrotul omnia sing in eodeÌ„ contenta express vacant per judic. Domiâ— spuÌ„â—liuÌ„ temporal in Cur. Parliamenti Per Ioh. Brown Cleric Parliam
Prerogative to award such Writs to command men to sustaine such charge or to be contributory to it and to bee distrained or imprisoned for not payment thereof Also I conceive that this is not an Act of Royall power for if it bee illegall to impose such a charge then is it not accounted as a matter of Royall power but as a matter done upon an untrue suggestion and a matter of wrong done and wrong is not imputed to the King for hee can doe no wrong but it is imputed unto them who advised him to this course Royall power I account is to bee used in cases of necessity and imminent danger when ordinary courses will not availe for it is a Rule Non recurrendum est ad extraordinaria quando fieri potest per ordinaria as in cases of Rebellion sudden Invasion and in some other case where Martiall Law may bee used and may not stay for legall proceedings but in a time of peace and no extreme necessity legall courses must bee used and not Royall power Therefore where by the Statute of 31. H. 8. cap. 8. which was made upon suppression of Abbies when Rebellions were begun to bee stirred it is recited That sudden occasions happen which doe require speedy remedies and for lacke of a Statute the King was inforced to use Royall power It was enacted for the reasons therein mentioned That the King by the advice of his Councell therein named two Bishops two chiefe Justices and divers others and the more part of them by his Proclamation might make ordinances for punishment of offences and lay penaltiesâ— which should have the force of a Law with a Proviso that thereby no mans life lands or goods should bee touched or impeached so that therein Royall power was fortified by a Statute yet that Statute tooke care that no mans lands or goods should be taken or prejudiced but yet that Statute was thought inconvenient and therefore by a Statute of 1. E. 6. the same was repealed Bracton lib. 2. cap. 24. fol. 55. and the same is cited in Coke lib. 7. fol. 11. in Calvins Case Regis Corona est facere justitiam judicium tenere pacem sine quibuâ— Corona consistere non potest nec teneri Coke lib. 7. fol. 5. in Calvins Case cited out of Fortescue Rex ad tutelam Legis corporum bonorum erectus est which being so hee cannot take any mans goods or charge them without his assent by any Prerogative or power Royall Also there can be no such necessity or danger conceived that may cause these Writs to bee awarded to all Counties of England to prepare ships at such charge and with such men and munition without consent in Parliament For the Lawes have provided meanes for defence in time of danger without taking this course for that the King hath power to command all or any persons of his Kingdome to attend with Armes at the Sea coasts or any other parts of the Kingdome and also by his officers to make stay or arrest all or any the ships of Merchants and others having ships or as many as hee pleaseth to goe with his Navie to any parts of his Kingdome for defence thereof and to attend those to whom he appointed the guard of the Seas or Sea coasts at such times and places as they should appoint and this hath been alwaies taken and conceived to bee sufficient for defence against any Prince whatsoever and yet the same was in times when the Navie of England was not so strong as now by the blessing of God and good providence of his Majesty it is That this course was then so taken it appeareth by divers Records viz. 23. Ed. 1. m. 4. The Record reciteth that the French King had prepared a great Navie upon the Sea and purposed to invade the Kingdome Et linguam Anglicanam de terra delere and thereupon the King commanded all his ships and men with Armes to be in a readinesse to defend the Kingdome Scot. 10. Edw. 3. m. 16. reciteth that certaine Gallies in the parts beyond the Seas were prepared with provision of men and armes and other necessaries of warre and ready to invade the Land command was that divers ships should be in a readinesse to defend and the ships of the Ports of Ireland to bee sent to England to help to defend the Kingdome Scot. 10. Edw. 3. m. 22. A Writ was to the Bayliffe of Southwales reciting that the Scots and divers others confederating together prepare themselves to armes and ships in a great number and intend to invade the Kingdome command to them was to have one ship ready upon the Sea to defend their coasts Alman 12. Edw. 3. m. 10. A Writ to the Maior of London Quia hostes nostri in Galleis cum multitudine non modica congregati in diversis partibus regni hostiliter ingressi sunt civitatem praedict ' celeriter si possunt invadere proponunt the King commandeth them to shut up the City towards the water and to put all their men in Armes ready to defend c. Alman 12. Edw. 3. m. 13. A Writ to the Bailiffes of great Yarmouth Quia pro certo didicimus quòd hostes nostri Franciae adhaerentes eisdem Gallias Naves guerrinâ—s in copiosa multitudine in partibus exteris congregarunt eis hominibus ad arma alia arma parare faciunt proponunt se movere versus regnum nostrum navigium regni nostri portus prope mare scituat ' pro viribus destruere idem regnum invadere c. command to the said Towne to prepare foure ships with two hundred and forty men c. At the same time like Writs went out to twenty other Towns upon the Sea coasts Franc. 26. Edw. 3. m. 5. A Writ to the Earle of Hunt and others Quia adversarii nostri Franciae Nos Regnum nostrum invadere machinantes magnum navigium parari fecer ' armari nedum ad Regnum nostrum Angliae subitò attrahend ' ad nos domin ' nostr' totam nationem Anglicanam pro viribus subvertend ' c. commanding them to guard all the coasts of Kent and to array all able men with armes to bee ready to defend the Sea coasts 5. Henr. 4. m. 28. A Commission is to Thomas Morley and others Quòd cum inimici nostri Franciae Britan. Scotiae alii sibi adhaerentes inter se obligat magna potentia armat ' super mare in aestate proxim ' futur ' ordinaverunt intendunt Regnum nostrum Angliae invadere c. commanding them to array men with armes to defend c. 4 Henr. 8. pars 2. the King by Proclamation into the County of Kent sheweth that it is come to his knowledge of certaine that his ancient enemy the French King hath prepared and put in readinesse a great
and strong Navie furnished with men of warre to invade the Kingdome of England the King appointed the Lord of Alburgeny and others to put men in array and to bee ready to defend that County Anno 1588. when the great invasion was by the Navie termed the Invincible Navie which was fore-seene long before this course of preparing ships by every County of the Kingdome was not taken or appointed yet in all these times when there appeared such danger of invasions there never went any such Writs into any the Counties of England to provide ships but the Navie of England and the Army of England was alwaies accounted sufficient for the defence of the Kingdome So I conclude this point that I conceive this course cannot bee taken by any Prerogative or Royall power nor any allegation of necessity or danger For the fourth point I conceive that if it were legall to lay such a charge upon maritine parts yet to charge any Inland County with making of ships and furnishing them with Masters Mariners and Souldiers at their charge which are farre remote from the Seas is not legall nor warranted by any former President for it commandeth an unreasonable and impossible thing and then the Writ commanding such a thing as is unreasonable and not possible for the parties commanded of themselves to performe without help of other Counties is alwaies illegall for it is a Rule That Lex non cogit ad impossibilia therefore if one by Covenant bind himselfe to doe a thing impossible the Covenant is void This appears by the Book case in 40. Ed. 3. fo. 6. where the Case is expresly That if a man do covenant to doe a thing that is impossible the Covenant is void and the deed is void in that respect Also the Book in 2. Ed. 4. fol. 2. If a feoffment bee made upon condition to bee void if the feoffee do not a thing which is impossible this feoffment is good and the condition void for it was the fault of the feoffor to annexe such a condition this appeareth by the case of an Arbitrement If the Arbitrator award that one shall enter into bond with such a one as his surety to pay a summe of money or to doe any other act it is void as to the finding of a surety at the least for it is not in his power to compell him to bee his surety therefore the Law accounteth it unreasonable and so void and this appeareth by the Booke Case 17. Ed. 4. fol. 5. wherein it is so resolved So this Writ commanding the Sheriffe and Inhabitants of an Inland County to find a ship furnished with Masters and Mariners whereas there is not any Shipwright that hath skill to make ships nor any Masters or Mariners ever there inhabiting to guide a ship for they are still conversant about matters of the Plough and feeding Cattell and Husbandry and are trained up by musters for skill of Armes to defend the Countries and not with Sea affaires for most of the County never saw a ship nor know what belongeth to Masters or Mariners of ships and the Country is not bound to seeke men out of the County for such men and perhaps if they should they cannot know where to hire them Therefore when such Writs to Inland Counties have been awarded to find a ship with Masters and Mariners it being conceived by mis-information that they were maritine Townes and had Ships and Mariners dwelling with them the truth thereof being made to appeare to the contrary they have been discharged as appeares by a Record in 13. Edw. 3. pars 2. m. 14. where a Writ went to the Admirall of the Fleet Those parts upon complaint to the King by the men of Bodmin in the County of Cornwall that they were unjustly charged to find a ship with Masters and Mariners whereas that Towne was no Port Towne nor adjoyning to the Sea but farre within the Land nor ever had ships lying there nor Mariners nor Sea-men nor ever used to find any such for Sea service and that their Maior and Officers were imprisoned for not finding such a ship Thereupon the King appointed to have it enquired whether their allegations were true and if it were true signified that hee would not have them so unjustly charged but that they should bee discharged thereof which sheweth that it was then accounted unjust to lay such a charge upon a Towne that was an Inland Town and had no Mariners inhabiting in it much more when such a charge is upon an Inland County which is much further remote from the Sea and cannot performe by themselves that which the Writ commandeth But this Record being objected by the Defendants Councell Master Sollicitor gave answer that the same was because the Admirall of his owne authority had charged them which was not according to his Commission for he was onely to charge the Ports and Sea Townes but that the same may not bee done by the Kings Writ the Record doth not prove But to this I answer That I conceive it is all one when such a charge is laid upon a Towne by Writ which is an Inland Town for so it appeareth by another Record of the same yeare viz. 13. Edw. 3. pars 1. m. 14. where a Writ was directed to the Admirall of the Fleet Ab ore Thamesiae versus partes Occidentales reciting where the King by his Writ to the Towne of Chichester had commanded the Maior and Comminalty there that they should make unam Navem duos Escularios de guerra parari with Mariners and men at armes to bee at Portsmouth such a day to goe with the Kings ships and that they had complained that they had not nor ever had any ships arriving in that Towne nor had any Sea-men or Mariners dwelling there and that it appeared unto the King by Inquisition of a Jury returned into his Chancery this allegation to bee true therefore because the King would not have them indebitè praegravari for so bee the words of the Record the King commandeth the Admirall that they shall not be troubled nor distrained for not performance of such service whereby it appeareth that if they being within few miles of the Sea should not bee charged to find such a ship much more Inland Counties which are much further remote from the Seas are not justly to bee charged with finding any Ships and Mariners Therefore I conclude this point That I conceive this Writ in that respect is not legall not warranted by any former President The fifth and great point hath beene and indeed the chiefe Argument hath been a multitude of Records and Presidents which have been cited that should warrant these Writs and that the King hath done nothing but what his former Progenitors have done and have lawfully done and that hee doth now but more Majorum and that which alwaies in ancient times hath beene done and allowed and therefore ought now to be allowed I confesse this