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england_n	kingdom_n	majesty_n	scotland_n	5,404	5	8.6690	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A45252	The arguments 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 Peeres in Parliament, and the orders of the Lords for the vacating of the judgement given against the said Mr. 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.	England and Wales. Court of Exchequer.; Hutton, Richard, Sir, 1561?-1639.; Croke, George, Sir, 1560-1642.; Denham, John, Sir, 1559-1639.; Hampden, John, 1594-1643, defendant.; England and Wales. Parliament.; England and Wales. Sovereign (1625-1649 : Charles I)	1641 (1641)	Wing H3842; ESTC R16237	74,278	200

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 ●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 ma●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 oneret●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 hae● 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 honorē 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

quos rebelles et contrarios inveneris in praemissis in carcere mancipand ' in eodem moratur quousque pro eorum deliberatione ulterius duxerimus ordinand Et ulteriùs mandamus quòd citra praemiss diligenter intendatis et faciatis et exequamini cum effectu sub periculo incumbente Nolumus autem quòd colore praedicti mandati nostri plus de eisdem hominibus levari faciat quàm ad praemiss sufficiat expens necessar Et quod quisquam qui pecuniam de contributionibus ad praedict ' custag ' faciend ' levaverit eam vel partem inde aliquam penes se detineat vel ad alios usus quovis●quae sito colore appropriare praesumat volentes quòd si plus quàm sufficiat collectum fuerit hoc inter solventes pro rata portionis ipsis contingen ' exsolvat ' By vertue of this Writ Master Hampden is assessed to twenty shillings for his lands in Stoke Mandivill in that County which not being paid is 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. this Writ of quarto Augusti anno 11. Car. and the Writ of Certiorari and the Schedule annexed is sent unto the Exchequer with a command there to doe for the levying of the summes so assessed and unpaid Prout de jure et secundùm legem regni nostri Angliae fuerit faciend Whereupon a Scire facias issued out of the Exchequer reciting the said Writs to warn Master Hampden amongst others to shew cause why hee should not bee charged with this money Upon this he being summoned appeareth and demands the hearing of those Writs and Schedule which being entred thereupon he demurreth in law And whether judgement upon this whole Record be to be given against Iohn Hampden that he is to be charged or no that is the question for hee is the onely party in this Case And there is no cause why any man should say that the question is Whether judgement should bee given for the King or for the Defendant for as this case is the King is no party to the Record but onely it is a judiciall process out of the Exchequer grounded upon those former Records for the Defendant to shew cause why hee should not bee charged which hath been very elaborately argued by the Defendants Councell who demurred that hee should not be charged and by the Kings Councell very learnedly and elaborately argued that he should be charged This Case is a Case of great weight and the greatest Case of weight that ever wee reade argued by Judges in this place and therefore adjourned into this place for advice of all the Judges For of the one side it is alledged that it concerneth the King in his Prerogative and power Royall And on the other side that it concerneth all the Kings Subjects in their liberties their persons and their estates For which cause it hath made some of us to wish and move among our selves that it might have been by his Majesties favour heard and determined in another place by his Majesty and his great Councell of his Realme Where all conveniencies and inconveniencies might have been considered of provided for and prevented for present and future times and not to bee argued onely by us who are accompted his Majesties Councell at law wherein if any thing be done amisse the fault must light upon us as mis-advising the King therein But seeing that it hath pleased his Majesty that the same should be argued and determined in this place whose pleasure we must obey I must give my best advice upon my oath to the best of my skill wherein I hope not to trench upon his Highnesse Prerogative which wee are all bound by our oaths to the best of our skills to maintain and not to suffer to be diminished nor upon his Royall power but truly to deliver what I conceive the law to bee concerning the Case in question Wherein I must confesse I have been much distracted having heard so learned Arguments on both sides at the Barre and so many Records and Presidents cited on either side But they did not so much move mee for the Councell have of either side pressed such reasons and arguments and cited such Records as they thought convenient for the maintaining of their opinions and perhaps with a prejudicate opinion as I my selfe by mine owne experience when I was at the Barre have argued confidently And as I then thought the law to be of that side for whom I argued but after being at the Bench weighing indifferently all reasons and authorities have been of a contrary opinion And so the law hath been adjudged contrary to that opinion which I first confidently conceived but that which hath moved mee most and maketh me most mistrust mine owne judgement in this Case is That all my Brothers who have all argued upon their oaths and I presume have seene the Records and Presidents cited on either side have all argued one way with whose opinions I should willingly have concurred if I could have satisfied mine owne judgement with their reasons but not being satisfied I have learned that I must not runne with a multitude against mine owne conscience for I must stand or fall unto mine owne Master and therefore I shall shew mine owne reasons and leave my selfe to the judgements of my Lords and others my Brethren And whatsoever shall be adjudged I must submit unto and so doe wish all others and doe now declare mine opinion to be That as this Case is judgement ought to bee given for the Defendant But before I proceed to the Argument I desire to remove two difficulties First that by the Demurrer the danger of the Kingdome is confessed and so to be a Case of necessity To this I answer that the Demurrer confesseth not matters in fact but where the matter is legally set down but if it be not a legall proceeding then the Demurrer is no confessing of the matter in fact This appeares in the Book Case of 5. Hen. 7. fol. 1. and Cook lib. 5. fol. 69. in Burtons Case that a Demurrer is no confessing in matters of fact but where the matter precedent is sufficiently pleaded and laid downe and so it is holden in all our Bookes The second difficulty is that this Case is so resolved by all our opinions under our hands That this Writ was legall which was much pressed by Master Solicitor To this I answer that it is true I have set downe mine opinion under mine hand unto a Case in February 1636. which is that when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger his Majesty may by Writ under the great Seale of England command all his Subjects of this Kingdome at their charges to provide and furnish such number of ships with men

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

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

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

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

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

victualls and munition and for such time as his Majesty shall thinke fit for the defence and safeguard of the Kingdome from such danger And that his Majesty may compell the doing thereof in case of refusall and refractorinesse and that in such case his Majesty is the sole Judge of the danger and when and how the same is to bee prevented and avoided To this opinion I confesse I then with the rest of the Judges subscribed my hand But I then dis-assented to that opinion and then signified mine opinion to bee that such a charge could not bee laid by any such Writ but by Parliament and so absolutely in that point one other did agree with mee and dissent from that opinion which was after subscribed and some others in some other particulars from that which was subscribed But the greater part seeming to bee absolutely resolved upon that opinion some of them affirming that they had seene divers Records and Presidents of such Writs satisfying them to be of that judgement I was pressed to subscribe with them for that the greater opinion must involve the rest as it was said to bee usuall in Cases of references And that the lesser number must submit to the opinion of the more although they varied in opinion as it is in our Courts if three Judges agree in opinion against one or two where there is five Judges judgement is to be entred per Curiam if the major part agree and the others are to submit unto it So in Cases of conference and certificate of their opinions if the greater part did agree and subscribe the rest were to submit their opinions And this by more ancient Judges then my selfe was affirmed to bee the continuall practice and that it was not fit especially in a Case of this nature so much concerning the service of the King for some to subscribe and some to forbeare their subscription And that although wee did subscribe yet it did not bind any but that in point of judgement if the Case came in question judicially before us we should give our judgements as wee should see cause after the hearing of Arguments on both sides and not to be bound by this sudden resolution Hereupon I consented to subscribe but I then said in the meane time the King might be mis-informed by our Certificate under our hands conceiving us all to agree together and give him this advice under our hands and not know that there was any that dissented or was doubtfull But it was then said the King should bee truly informed thereof And thereupon we that did dissent did subscribe our hands with such protestations as aforesaid onely for conformity although contrary to the opinion I then conceived But this being before Arguments heard of either side or any Presidents seen I hold that none is bound by that opinion And if I had been of that opinion as was subscribed yet now having heard all the Arguments of both sides and the Reasons of the Kings Councell to maintain this Writ and why the Defendant is to bee charged and the Arguments of the Defendants Councel against the Writ and their Reasons why the Defendant should not bee charged to pay the mony assessed upon them And having duly considered of the Records and Presidents cited and shewed unto mee especially those of the Kings side I am now of an absolute opinion that this Writ is illegal declare my opinion contrary to that which is subscribed by us all And if I had been of the same opinion as was subscribed yet upon better advisement being absolutely settled in my judgement and conscience in a contrary opinion I thinke it no shame to declare that I doe retract that opinion for Humanum est errare rather then to argue against mine owne conscience And therefore now having as I conceived removed these difficulties I proceed to my Argument and shall shew the Reasons of mine opinion and leave the same as I have said to my Lords and Brethren My reasons and grounds that I shall insist upon are these That the command by this Writ of 4. Augusti 11. Caroli to make ships at the charge of the inhabitants of the County being the ground of this suit and cause of this charge is illegall and contrary to the Common law not being by authority of Parliament That if at the Common law it had been doubtfull yet now this Writ is illegall being expresly contrary to divers Statutes prohibiting any generall charge to bee laid upon the Commons in generall without consent in Parliament That it is not to bee maintained by any Prerogative or power Royall nor allegation of necessity or danger That admitting it were legall to lay such a charge upon Maritine parts yet to charge an Inland County as the County of Bucks is with making ships and furnishing them with Masters Mariners and Souldiers at their charge which are farre remote from the Seas is illegall and not warranted by any former President c. I shall examine the Presidents and Records cited to warrant this Writ which have been all the principall grounds of the Arguments to maintaine the same And I conceive there is not one President nor Record in any precedent time that hath beene produced and shewed unto mee that doth maintaine any Writ to lay such a charge upon any County Inland or Maritine I will examine this particular Writ and the severall parts thereof and doe conceive that it is illegall and not sufficient to ground this charge upon the Defendant The motives of this Writ are not sufficient to cause such a Writ to be sent The command of the Writ to prepare a ship at the charge of the inhabitants with munition and men is against the Common law and Statutes That to lay a charge of finding victuals and wages of Souldiers and Mariners is illegall and contrary to the Common law and divers Statutes The power of assessment given to the Sheriffe alone and to distraine for this is illegall and not warranted by any President The power of imprisoning is illegall and contrary to divers Statutes and not warranted by the Presidents That the perclose of the Writ the practice of it is contrary to it self and oppositū in objecto If this Writ were legall yet the manner of assessment by the Sheriffe as it is certified is not warranted by the Writ So consequently this summe cannot bee demanded of the Defendant by vertue of this Writ That the Certiorari and Scire facias issued not out legally and so consequently no judgement can bee given against the Defendant thereupon For the first point that this Writ of 4. Augusti 11. Car. is against the Common law my Reasons are these Because that this is the first Writ since the Conquest that went to any Inland County to prepare a ship with men and munition for ought appeareth by any Record that hath been shewed and where there was never any President before by the rule of Master Littleton fol. 23.