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law_n	civil_a	government_n	power_n	4,282	5	4.9624	4	false

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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

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

Weapons wherewith the Subjects of this Realme have beene charged are severall and changed according to the variety of times as things have growne out of use And other manner of provision more serviceable and necessary for which there have beene directions for views and for trayning and disciplining of Souldiers to be prepared for defence that this hath beene in use no man can or ever could deny or affirme the contrary But the Armes wherewith they were charged were their own proper goods And in all the Prerogatives which have beene before by Mr. Attorney generall urged that the King hath interest in mens goods and to execute his writs by his Sheriffes upon mens persons and in their lands for giving possession and for levying amerciaments and fines and power to put some of his Subjects out of their possessions and to deliver the possession therof to others as it appeares in Ploydon in Manxells case which was vouched by Mr. Attorney generall This is very true for this is a thing which the King is bound to doe for the good of his Subjects For as it is agreed in 34. H. 6. fo. 14. The Kings Majesty is bound to keepe his Courts of Chancery and all his other Courts at his own charge And 39. H. 6. fo. 40. The King is bound to doe Law and right to all his Subjects which without these powers and prerogatives could not be performed Out of these and the like of murage and pontage there can no sound argument bee drawne to warrant this provision of Ships and men and furniture for warre when the King will so appoint But I conceive that it hath beene generally agreed by all the Judges nullo contradicente that if this Writ of 4. Augusti which is for provision of a Ship and furniture and men had beene for to have authorized the Sheriffes to have levied monies of the Subjects for that purpose That then the Writ could not have given power to have done it because that would have beene expresly against the Statutes And if that be granted then considering that these Writs to the Sheriffes are accompanied with instructions commanding and directing the levying of money and proportioning what summe is to be raised in every County for that service As in the County of Yorke and in the County of the Citie of Yorke the summe of twelve thousand pounds and the summe of eight thousand pounds for the County of Lincolne And so a proportion of money for every County for that purpose The consequence thereof may be this that this levy which hath obtained the name of Ship-money and wherein no indeavour hath ever beene made for preparing any such Ship or furniture or men as the Writ in it selfe purports is not pursued or warranted by this generall levy of ship money for it is a rule Id quod non fieri potest directe ex obliquo fieri non debet I confesse that divers of the Kings of this Realm have upon some pretended occasions taken upon them by perswasion of some Great men in their time and assumed a Royall and Monarchicall power to levy monies by Commissions and have extended that power very farre whereof you may read That in the seaventeenth yeare of King Henry the eight Cardinall Woolsie was charged to have beene the cause of directing Commissions into all Countries for the levying of the sixt part of all mens goods and the sixt part of their Plate for that the King was then determined to make warre with France and to passe the Sea himselfe This being attempted by inforcing some and sending others to prison it grew to be so generally misliked that the people rose up in divers Countries and thē the King disclaimed that it was done without his Privity The Cardinall charged it to be done first by the consent of the Counsell which they denied then he charged the Judges to be consenting which being untrue the Cardinall tooke it to himselfe And all the Commissions were recalled you may see it at large set downe in divers Chronicles And in the latter times of our gracious Queene Elizabeth upon pretence of want for expeditions in Ireland There was a generall Benevolence required and it went on for a time and so farre as it came to be voluntarily levied in the Innes of Court And I can speake it of my own knowledge I paid a sum I think but twenty shillings others paid likewise But not long after as it was said when the Queene was informed that this Benevolence was expresly against the Statute of Richard the third and against the Laws and distastfull All the monies levied was commanded to be restored and repaied and mine was and the rest was so to others as I heard and doe verily believe and this was attempted by so gracious a Queen And to speak nothing of the Commission dated the thirteenth day of October in the second yeare of our gracious Soveraigne Lord the Kings Majesty for the Loan and levying of the five Subsidies which was effected and acknowledged after not to be warranted by the Laws and Statutes This point is apparent That in time of necessities these Legall or Monarchicall Powers have been assumed in the times of other Kings And hereupon I conclude these points That the Statutes have taken away this power of charging the Subjects of this Realme with any generall and publique Charge Aide or Tallages or burthens for any businesse but onely by their consent in Parliament and no Usage Precedent or Custome if any such have been can by Law take away the force of these Acts of Parliament so long as they stand in force And I doe absolutely beleeve that if the Kings Majesty had not been perswaded by some opinions that this course was warranted by Law and Custome of the Realme that he would not have attempted the same NOw I proceed to the fifth part That the matter which is contained in the Writ of 4. Augusti Anno 11. Car. doth not contain sufficient matter to warrant this levy First the words of the Writ are not any affirmance directly of any danger for they are but Quia datum est nobis intelligi this is but of information and not ex certa scientia which are of more force The other words are but of information or suggestion Then for the matter It containes onely these points That there are many Pirats and Sea-robbers congregated upon the Sea to take away some of our Subjects into miserable Captivity and to hinder our Merchants to bring in their merchandizes and goods and the goods and Merchandizes of the Subjects of our friends comming and traffiquing hither and spoyling of our Merchants And for that the Sea hath bin and ought to be defended by Gentem Anglicanam And they inttending to trouble the Kingdome And we considering the danger every where now imminent and desiring the defence of the Realme the safe-gard of the Sea the security of our Subjects the safe conducting of the ships

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.

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 no●trum est sine facto seu defectu nostro amitti seu in ali●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 p●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 p●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 Cōmon Councell of London where they have a custome by the said Cōmon 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

making up of the Sea walls and this is done by a Jury But this charge cannot bee laid upon a County or Towne in generall but particular men that have benefit or losse or may have losse or benefit thereby And this is done upon inquiry of a Jury before the Sheriffe or Commissioners appointed So it is at this day upon the Commission of Sewers as appeareth by Coke lib. 10. fol. 142. in the Case of the Isle of Ely That the Taxation by the Commissioners of Sewers must bee upon every particular man that hath or may have loss or benefit by such inundations and making up the walls and cannot be laid upon any remote parts which are out of the levell of such losse or benefit And it must be certaine and particular upon persons certaine by reason of land or profit and cannot bee laid in generall but in these Cases there is a particular losse or benefit and in particular places but in petty charges then where the Law alloweth that which in reason is to be done that may be done without a speciall Statute for De minimis non curat Lex but in this case there is a generall charge through the Kingdome which the Law doth not permit without common consent in Parliament But it hath been alledged that this charge hath been imposed for the provision of the publick safety and defence of the Kingdome And may not this bee done when every one hath advantage by it To this I say When eminent danger and cause of defence is there must bee defence made by every man when the King shall command with his person and in such a case every man as it is said in the Presidents is bound per se sua to defend the Kingdome And I thinke no man will bee so unwise but that he will exponere se sua for the defence of the Kingdome when there is danger for otherwise hee is in danger to lose se sua But to lay a charge in generall upon a Kingdome either for making or preparing of ships or money in lieu thereof is not to bee done but by Parliament when the charge is to be borne in generall of all the Subjects To prove further that no man may have his goods taken from him but by his consent appeareth by a Record in Mich. 14. Edw. 2. Rot. 60. in the Kings Bench in a Writ of errour brought upon a Judgement given in Durham where in an action of trespasse by William Heyborne against William Keylow for entring his house and breaking his Chest and taking away 70. pounds in money the Defendant pleading not guilty the Jury found a speciall verdict That the Scots having entred the Bishoprick with an Army into Durham and making great burning and spoiles the Comminalty of Durham met together at Durham whereof the Plaintiffe was one and agreed to send some to compound with them for mony to depart and were all sworn to performe what composition should bee made and to performe what ordinance they should make in that behalfe And thereupon they compounded with the Scots for 1600. Markes But because that was to bee paid immediately they all consented that William K●ylow the Defendant and others should goe into every mans house to search what ready money was there and to take it for the making of that summe and that it should bee repaid by the Comminalty of Durham And thereupon the Defendant did enter into the Plaintiffes house and did breake open the Chest and tooke the 70. pounds which was paid accordingly towards that fine The Jury were demanded whether the Plaintiffe was present and did consent to the taking of the money they said No Whereupon the Plaintiffe had judgement to recover the said 70. pounds dammages for that otherwise hee had no remedy for his money so taken and the Defendant committed in execution for the same And thereupon the Defendant Keylow brought a Writ of errour in the Kings Bench and assigned his errours in point of judgement and there the judgement was reversed Because the Plaintiffe Heyborne had his sufficient remedy against the Comminalty of Durham for his money Because hee himselfe had agreed to this ordinance and was sworn to performe it and that the Defendant did nothing but that hee assented unto by his oath and therefore is accompted to do nothing but by his consent and as a servant unto him therefore hee was no trespasser And therefore the judgement given in Durham was reversed because hee had assented to that ordinance though hee was afterwards unwilling yet having once consented his goods were lawfully taken By which it appeareth that if hee had not particularly consented such an ordinance could not have been good to bind him although this was in a case of great danger and for defence 2. R. 2. pars 12. the Parliament Roll proved this directly although it be no Act of Parliament yet the Record is much to be regarded for it sheweth what the Law was then conceived to be For Scroope the Lord Chancellour then shewed to all the Lords and Commons assembled in Parliament that all the Lords and Sages had met together since the last Parliament and having considered of the great danger the Kingdome was in and how money might be raised in a case of eminent danger which could not stay the delay of a Parliament and the Kings Coffers had not sufficient therein the Record is That they all agreed that money sufficient could not bee had without laying a charge upon the Comminalty which say they cannot bee done without a Parliament And the Lords themselves for the time did supply the said necessity with mony they lent which Record proved directly that this charge without an Act of Parliament is illegall So upon this reason I conclude That this Writ compulsarily to charge the Subjects against their wills is not warranted by any Bookes and therefore illegall If this Writ should bee allowed great inconveniences would ensue which the Law alwaies will avoid and not permit any inconveniences That if such a charge may be laid upon the Counties by Writ without assent of Parliament then no man knoweth what his charge may bee for they may bee charged as often as the King pleaseth and with making as many ships and of what burthen and with what charge of munition victualls and men as shall be set downe Wherein I doubt not but if the Law were so the King being a very pious and just King would use his power very moderately but Judges in their judgements are not to looke to present times but to all future times what may follow upon their judgements That this inconvenience may bee it appeares by the Dane-geld first appointed in time of necessity to redeeme them from the cruelty of the Danes which often changed and still increased for in Anno Dom. 991. when it began it was 10000. pounds Anno Domini 994. it was increased to 16000. pounds and Anno

Domini 1002. it was increased to 24000. pounds and Anno Domini 1007. it was increased to 36000. pounds and Anno Domini 1012. it was increased to 48000. pounds So if this Writ bee well awarded it may bee at pleasure what bounds it shall have Also there were never but one single Subsidy and two Fifteenes used to be granted in Parliament untill 31. Elis. and then a double Subsidy and foure Fifteenes were granted Sir Walter Mildmay then Chancellour of the Exchequer moving for it and saying his heart did quake to move it not knowing the inconveniences that should grow upon it but shewed great reasons for so moving of it being immediatly after the Spanish invasion so it was granted Afterwards in 35. Elis. treble Subsidies and sixe Fifteenes were granted and in 43. Elis. foure Subsidies and eight Fifteenes and yet these were not accompted grievous neither would it have been if it had been 10. Subsidies because in Parliament and convenient times and meanes appointed for the levying of them Tonnage and Poundage were granted to this end 13. R. 2. and have continued ever since by severall grants that the King might have monies in his purse against time of need for extraordinary occasions especially for the defence of the Realme and for guarding the Seas as it is especially declared by the Statute of 1. Iac. and former Statutes But it is said that Tonnage and Poundage is not granted now to the King Therefore the King is inforced to take these extraordinary courses Though it be not granted yet I thinke it is taken and I doubt not but to the same intent and for the same purpose for which it was first granted which was for the defence of the Kingdome and the guard of the Seas Therefore in case of danger and necessity every Subject for defence of the Kingdome is bound Ligeanciae debito as some Records say and Ligeanciae suae vinculo astricti as others speake Se sua totis viribus et potestate exponere c. And in such a case the King may command the persons of his Subjects and arrest their ships to wait on his to defend the Sea Yet this also when they goe out of their Counties at the Kings charges But to command the Subjects by Writ to build new ships or to prepare ships at their charges or to lay a common charge on the Subjects in generall for matter of defence or avoidance of danger is not warrantable by the Common Law Another inconvenience is That it is left in the power of the Sheriffe to charge any mans estate at his pleasure taxing some and sparing others as his affection leadeth him And sometimes by colour thereof levying more then he need and enriching himselfe which power the Law never alloweth him although it were in lesse matters as to make an assessement for the breach of the Sea walls but to doe it by a Jury and not himselfe alone So for these reasons I conclude this Writ is against the Common law and so illegall For the second point I conceive if the Common law were doubtfull in this whether such a charge might be imposed by Writ yet now it is made cleare by divers expresse Statutes that the King is not to lay any charge upon his Subjects but by their consent in Parliament and that is by many Acts of Parliament in force and not repealed And there is no doubt but the Kings by Statute may bind them and their Successours not to lay any such charge every King being bound by oath to performe the Statu●es of his Realme The Statute of 25. Edw. 1. which is in these words Forasmuch as divers people of our Realm are in feare that the aides and taxes which they have given us before time towards our warres and other businesse of their owne grant and good will howsoever they were made might turne to a bondage to them and their heires because they might be at another time found in the Rolls and likewise for the prizes taken throughout our Realme by our ministers wee have granted for us and our heires that we shall not draw any such aides taxes or prizes into a custome for any thing that hath been done heretofore by any Roll or any other President that may be found Ibidem cap. 6. Moreover wee have granted for us and our heires as well to Archbishops Bishops Abbots Priors and other folke of holy Church as also to Earles Barons and to all the Comminalty of the land that for no businesse from henceforth we shall take such aides ●axes ●or prizes but by the common assent of the Realme and for the common profit thereof saving the ancient aides and prizes due and accustomed Which are the expresse words of that Statute Now what those ancient aides were is well knowne viz. that they were ad redimendu● c●rpu● ad f●lium pri●og●●it●● militem faciend● Et ad filiam pri●ogenitam miritandam which aides concerne not the Subjects in generall but particular men were liable thereunto by thei●●enures ●o this saving●eeded not to have been for the body of the Act extended not to them but 〈◊〉 gener●ll aide● of the Kingdome However if this Salvo as it hath beene objected would preserve this aide now in question yet the Statute made afterwards de Tallagio non concedendo being without any Salvo takes it away which sta●ute Ras●al● in his Abridgement fol. 441. in his title of Taxes abridgeth in this manner Anno 25. Edw. 1. It is ordained That the taxes taken shall not be taken in custome no● 〈◊〉 by the assent of this Realm except the ancient aides and taxes And there the taxes of Wooll of forty shillings a sacke is released Ibidem 2o. That no tallage by us or our heires in our Realm be pu● or levied without the assent of the Archbishops Bishops Earles Barons Knights● Burgesses and other free Commons of our Realm That nothing bee taken from henceforth in the name or by reason of Male tout of a sacke of Wooll Statutum de Tallagio non concedendo Master Sollicitor laboured much to prove● that there was no such Statute de Tallagio non concedendo First for that it is not to bee found in the Rolls of Parliament Secondly for that it is not set down when it was made Thirdly that it was but an abstract out of Confirmatio Chartae libertatum Master Atturney said hee would not deny it to be a Statute neither would he affirme it but yet it did not extend to take away the aide demanded by Prerogative or power Royall for defence of the Kingdome To this I answer That it was never doubted to be a Statute untill this Argument and that it is a Statute appeareth For that it is printed in the booke of Statutes as a Statute It is recited in the petition of right anno tertio Car. to be a Statute To that that it is not found in the Rolls I answer That many Statutes which are knowne Statutes

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 penalties● 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 quibu● 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 guerrin●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