Prerogative to award such Writs to command men to sustaine such charge or to be contributory to it and to bee distrained or imprisoned for not payment thereof Also I conceive that this is not an Act of Royall power for if it bee illegall to impose such a charge then is it not accounted as a matter of Royall power but as a matter done upon an untrue suggestion and a matter of wrong done and wrong is not imputed to the King for hee can doe no wrong but it is imputed unto them who advised him to this course Royall power I account is to bee used in cases of necessity and imminent danger when ordinary courses will not availe for it is a Rule Non recurrendum est ad extraordinaria quando fieri potest per ordinaria as in cases of Rebellion sudden Invasion and in some other case where Martiall Law may bee used and may not stay for legall proceedings but in a time of peace and no extreme necessity legall courses must bee used and not Royall power Therefore where by the Statute of 31. H. 8. cap. 8. which was made upon suppression of Abbies when Rebellions were begun to bee stirred it is recited That sudden occasions happen which doe require speedy remedies and for lacke of a Statute the King was inforced to use Royall power It was enacted for the reasons therein mentioned That the King by the advice of his Councell therein named two Bishops two chiefe Justices and divers others and the more part of them by his Proclamation might make ordinances for punishment of offences and lay penaltiesâ— which should have the force of a Law with a Proviso that thereby no mans life lands or goods should bee touched or impeached so that therein Royall power was fortified by a Statute yet that Statute tooke care that no mans lands or goods should be taken or prejudiced but yet that Statute was thought inconvenient and therefore by a Statute of 1. E. 6. the same was repealed Bracton lib. 2. cap. 24. fol. 55. and the same is cited in Coke lib. 7. fol. 11. in Calvins Case Regis Corona est facere justitiam judicium tenere pacem sine quibuâ— Corona consistere non potest nec teneri Coke lib. 7. fol. 5. in Calvins Case cited out of Fortescue Rex ad tutelam Legis corporum bonorum erectus est which being so hee cannot take any mans goods or charge them without his assent by any Prerogative or power Royall Also there can be no such necessity or danger conceived that may cause these Writs to bee awarded to all Counties of England to prepare ships at such charge and with such men and munition without consent in Parliament For the Lawes have provided meanes for defence in time of danger without taking this course for that the King hath power to command all or any persons of his Kingdome to attend with Armes at the Sea coasts or any other parts of the Kingdome and also by his officers to make stay or arrest all or any the ships of Merchants and others having ships or as many as hee pleaseth to goe with his Navie to any parts of his Kingdome for defence thereof and to attend those to whom he appointed the guard of the Seas or Sea coasts at such times and places as they should appoint and this hath been alwaies taken and conceived to bee sufficient for defence against any Prince whatsoever and yet the same was in times when the Navie of England was not so strong as now by the blessing of God and good providence of his Majesty it is That this course was then so taken it appeareth by divers Records viz. 23. Ed. 1. m. 4. The Record reciteth that the French King had prepared a great Navie upon the Sea and purposed to invade the Kingdome Et linguam Anglicanam de terra delere and thereupon the King commanded all his ships and men with Armes to be in a readinesse to defend the Kingdome Scot. 10. Edw. 3. m. 16. reciteth that certaine Gallies in the parts beyond the Seas were prepared with provision of men and armes and other necessaries of warre and ready to invade the Land command was that divers ships should be in a readinesse to defend and the ships of the Ports of Ireland to bee sent to England to help to defend the Kingdome Scot. 10. Edw. 3. m. 22. A Writ was to the Bayliffe of Southwales reciting that the Scots and divers others confederating together prepare themselves to armes and ships in a great number and intend to invade the Kingdome command to them was to have one ship ready upon the Sea to defend their coasts Alman 12. Edw. 3. m. 10. A Writ to the Maior of London Quia hostes nostri in Galleis cum multitudine non modica congregati in diversis partibus regni hostiliter ingressi sunt civitatem praedict ' celeriter si possunt invadere proponunt the King commandeth them to shut up the City towards the water and to put all their men in Armes ready to defend c. Alman 12. Edw. 3. m. 13. A Writ to the Bailiffes of great Yarmouth Quia pro certo didicimus quòd hostes nostri Franciae adhaerentes eisdem Gallias Naves guerrinâ—s in copiosa multitudine in partibus exteris congregarunt eis hominibus ad arma alia arma parare faciunt proponunt se movere versus regnum nostrum navigium regni nostri portus prope mare scituat ' pro viribus destruere idem regnum invadere c. command to the said Towne to prepare foure ships with two hundred and forty men c. At the same time like Writs went out to twenty other Towns upon the Sea coasts Franc. 26. Edw. 3. m. 5. A Writ to the Earle of Hunt and others Quia adversarii nostri Franciae Nos Regnum nostrum invadere machinantes magnum navigium parari fecer ' armari nedum ad Regnum nostrum Angliae subitò attrahend ' ad nos domin ' nostr' totam nationem Anglicanam pro viribus subvertend ' c. commanding them to guard all the coasts of Kent and to array all able men with armes to bee ready to defend the Sea coasts 5. Henr. 4. m. 28. A Commission is to Thomas Morley and others Quòd cum inimici nostri Franciae Britan. Scotiae alii sibi adhaerentes inter se obligat magna potentia armat ' super mare in aestate proxim ' futur ' ordinaverunt intendunt Regnum nostrum Angliae invadere c. commanding them to array men with armes to defend c. 4 Henr. 8. pars 2. the King by Proclamation into the County of Kent sheweth that it is come to his knowledge of certaine that his ancient enemy the French King hath prepared and put in readinesse a great
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
or not And I am of opinion that it doth not lye but that judgement ought to be given for the Defendant both for the matter and for the manner of this proceeding And to the intent that whatsoever I shall say may the better be understood I will observe this order in my Argument First I will prove by severall Acts of Parliaments and by some Authorities in books and by some reasons that the Kings Majesty cannot at this day impose any such charge in generall upon all his Subjects as this is without their consent in Parliament Secondly I will give answer to such objections as have beene made by the Kings Counsell and by some of my Brothers against these Statutes and to such cases as they have applyed to prove the contrary Thirdly I will answer those precedents which have beene insisted upon to prove that the like charge hath beene before imposed by the Kings progenitors Kings of this Realme And I will shew some precedents of more force to the contrary Fourthly I will insist upon the disuse of the attempt of imposing any such generall charge by this way at any time since the beginning of the raigne of King Henry the fourth which is almost two hundred and fifty yeares since And many other courses and kinds of attempts for levying of monies And this way not attempted till of late Fiftly I will insist upon the Writ of 4. Augusti Anno 11. Car. That the matter therein comprised doth not containe sufficient warrant for the levying of such contribution And that the matter which is added in the Mittimus cannot supplie or make the Writ of 4. Augusti sufficient And that the Scire fac ' it selfe is insufficient Lastly I will give some answer to that which heretofore was objected by Mr. Solicitour That the Judges had formerly by a subscription to some propositions which they were required to answer his Majesty as he conceived resolved this point already My Brother Iones hath beene long and I will observe my owne method and answer him by my argument And I will contract that which I have to say in as short a manner as I can And for the first point and reason which I doe insist upon is That this power to charge the people of this Realme at this day by the King onely is taken away bounded and limited by diverse Acts of Parliaments to be done by consent of the Subjects and onely in Parliament First by the Statute of Magna Charta it is enacted that no Free-man shall be taken or imprisoned or disseised of his Free-hold or of his liberties or Free-customes or out-lawed or exiled nor by any means destroyed neither will we come upon him or send him to prison but by lawfull judgement of his Peeres or by the Law of the Land This Statute as appeares by the Inspeximus of King Edward the first sonne of King Henry the third was made of the free good will of the King for the good of the Church and for the amendment of the Kingdome And if you looke upon the last Chapter of Magna Charta cap. 38. the King grants that he and his heirs will for what concernes him well observe and keep the same in his Kingdome and will that aswell Clerkes as Lay-men shall observe the same And this was not done for nought for the Clergie and the Communalty did give to the King for these liberties the fifteenth part omnium mobilium as appeares in the same Chapter And further in the said Chapter it is contained that the said King for him and his heires did grant that neither he nor his heires should doe any thing nor procure to be done any thing whereby these liberties thus granted might be infringed or diminished And that if any thing were done by any other to the contrary it should bee void and held of no force See the Statute And then King Edward the first his Son in the five and twentieth year of his raigne The very first Chapter of that Parliament confirmed the Charter of Magna Charta for the honour of God and of the holy Church and profit of the Realm with writs to all Justices Sheriffes and others That they cause the said Charter of liberties to be published And to declare to the people that we have confirmed them in all points And that our Justices Sheriffes and other Ministers which under us have the Laws of our land to guide shall allow the same That is to wit the great Charter as the Common Law and the Charter of the Forest for the wealth of our Realme And where my brother Berkley did say in his Argument that the words of the Statute of Magna Charta were quod habeant libertates suas but that there were no particular liberties mentioned which were libertates suas To that the answer is easie for it is in the Preamble and the first Chapter Habeant libertates subscriptas tenendas in Regno nostro Angliae tenend. eis haeredibus suis imperpetuum And it cannot be denied but that the clauses of the writ of 4. Augusti which gives not onely power to distraine but if any be rebellious or contrariant to the premises to commit them to prison there to remaine untill the Kings Majestie shall for their deliverance thinke fit to order otherwayes are directly contrary to the expresse letter of this Statute of Magna Charta and so consequently against the law of the Land for this Statute is made by the said Statute of the five and twentieth of King Edward the first the law of this Land This Statute of Magna Charta hath beene ever since and now is put in use for the great priviledge of the triall of the Peers of this Realme for Treason or Felony For there Peeres is grounded upon the words of this Statute viz. per legale judicium parium suorum as you may see in Stamford in his booke of the Pleas of the Crowne fol. 152. Then by the Statute of 25. Edw. 1. cap. 5. It is enacted And for as much as diverse people of our Realme are in feare That the aides and taxes that they have given to 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 any other time found in the Rolls And likewise the prizes taken by our Ministers through the Realme we 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 beene done before bee it by Roll or any other Precedent that may bee found And in the same Parliament in the sixt Chapter it is thus We have granted for us and our heires aswell to Archbishops Bishops Abbots Priors and other folke of holy Church as also to Earles Barons and to all other the communalty of the land That for no businesse from
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
take title to present to any benefice of the right of another of any time of his predecessors And the King brought a Quare impedit and made title to an avoidance in the time of King Edward the first Sonne of King Henry the third And the Defendant pleaded this Statute and upon debate and argument although it was alleadged that this Statute had not beene put in use It was adjudged that being a Statute in force it might be put in use And so it was judged against the King And this is a strong proofe that in one of the most ancient Prerogatives incident to the King of Nullum tempus occurrat Regi which is grounded upon many reasons yet by an Act of Parliament this Prerogative was taken away See the Statute of 7. H. 8. cap 3. The informer is limited to beginne his suit within a yeare and the King within two yeares and not after hereby the Kings Prerogative of Nullum tempus is taken away and limited to two yeares The Statute of 21. Iac. cap. 2. whereby our late King Iames of famous memory was content to exclude himselfe to make any title to lands whereof he hath not beene in possession or which have not lawfully beene put in charge within sixtie yeares But enacted that such persons as doe hold those lands shall hold them still without trouble And that Patent of concealement or defective title shall not bee a putting in charge or standing in super within that Statute I might be infinite in this but I will conclude with the Statute of 21. Iac. cap. 14. That where the Kings Majesty by his Royall Prerogative may inforce the Subject in informations of intrusions to plead specially and to shew his title or to lose the possession The Kings Majesty out of his gratious disposition towards his loving Subjects and at their humble suit being willing to remit a part of his ancient Regall power is well pleased that it be enacted And be it enacted That where the Kings Majesty hath beene or shall be out of possession for the space of twenty yeares or shall not have taken the profits of any lands or tenements within the space of twenty yeares That in such case the Defendant may plead the generall issue if they thinke fit And shall not be pressed to plead specially And shall retaine the possession till the title be tried and found for the King And that no Scire facias shall be brought to put the party to a speciall pleading where an information may be fitly brought By these and many other of the like nature It must be agreed that ancient Regall and inseparable Prerogatives and powers may be and have beene qualified bounded and limited for the ease and benefit of the Subjects And give me leave to say this of Parliaments that they have beene esteemed by the wisedome of former times to be so necessary as there were acts of Parliament heretofore made in the time of King Edward the third which you may see Anno 36. Edw. 3. cap. 10. That for the maintenance of Articles and Statutes and for the redresse of divers mischiefes and grievances which daily happen it was enacted that a Parliament should be holden every yeare Another reason is that they have beene esteemed necessary for determining of difficult matters And therefore Bracton who wrote in the time of King Henry the third fo. 1 Leges Anglicanae consuetudines approbatae consensu utentium sacramento Regis confirmatae mutari non poterunt nec destrui sine consensu consilio eorum quorum consensu consilio fuerunt promulgatae sin autem aliqua nova inconsueta emerserint quae prius usitata non fuerunt in Regno et obscurum sit eorum judicium tunc ponentur judicia in respectu usque ad magnani curiam ubi per consensum curiae terminentur See to this purpose an excellent case in 2. Edw. 3. fo. 7. upon the Statute of Winchester where a robbery was done and a recovery against the hundred next adjoyning and a levy made of the Bishop of Coventries tenements of the Hundreth in Staffordshire The Bishop came into Court and pleaded a Charter of exemption made by King Richard the first and a confirmation thereof by King Edw. the first And for the difficluty upon the Charters and upon the exposition of the words of the Statute there came a Writ to remove the record into the Parliament Quindecim Pasch. and the Sheriffe was appointed to attend there with the money levied See the Register where it appeares that certaine Messengers had from the Pope served Processe upon an Officer of the Court of Chancery then held at Yorke to command him by those Bulls to appeare at Rome And for this contempt the party who served the said Processe was committed to the Castle at Yorke And at length the Kings Majesty by the intreaty of divers of the Great men of the Realme was content upon taking bond that he should answer the said contempt ad proximum Parliamentum nostrum ubicunque illud summoniri contigerit to deliver him out of prison Then the Statute of Winchester 2. the twenty eighth chapter of Concordent Clerici in Cancell de novo brevi vel attendent in prox Parliamentum The further necessity estimation which have beene taken to be of Parliaments is the number and frequencie of them For you may see by the commentaries upon Littleton fo. 100. that before the Conquest and in the Conquerors time and after till the end of King Henry the third his time there were two hundred eighty Sessions of Parliament And since almost two hundred Another reason as I conceive to be collected out of the oath which the Kings of this Realme take at their Coronation which is Printed in Magna Charta whereby the King agrees to give consent to such Lawes as shall be propounded for the profit and good of the Kingdome And that I conceive is the cause that when Bills come up being agreed by both the Houses the Kings Majesty to those he doth not allow or not like of doth make no direct deniall but Le Roy le avisera For nothing can be done without the Kings consent who hath sole power to call to prorogue and to dissolve Parliaments at his pleasure And I know not whether the last meeting in Parliament either by ill choice of the members of that House or by the great increase of the number or by the ambitious humours of some members of that houseâ— who aimed more at their owne ends and designes then the generall good of the Commonwealth Things were so carried not as was used in ancient time but so disasterously that it hath wrought such a distaste of this course of Parliaments as we and all that truly love the Commonwealth have just cause to be sorry for it NOw I come to my third head that is to give answer to such precedents as
the Law is not conceived to beare any such Writ And Sir Edward Coke in his Commentary upon Littleton fol. 81. saith that where there is no example it is a great intendment that the law will not beare it So I conceive here there never having bin a President before of any such Writ to the Sheriffe and Inhabitants of a County to prepare a ship with men and munition upon any occasion whatsoever that it is against the Common law to award such Writs For that the common law of England setleth a freedome in the Subjects in respect of their persons and giveth them a true property in their goods and estates so that without their consent that is their actuall consent or implicite by a common ordinance which they consented unto by a common assent in Parliament it cannot bee taken from them nor their estate charged And for this purpose the law distinguisheth between bondmen whose estates are at their Lords will and disposition and freemen whose property none may invade charge nor take away but by their owne free consent But here in this Case is a charge laid upon the Subjects without their consent and therefore not warranted by law which is proved by these authorities Coke in his Reports lib. 8. fol. 92. in Francis Case setteth downe this Rule Quod noâ—trum est sine facto seu defectu nostro amitti seu in aliâ—num transferri non potest Master Lambert fol. 24. setting downe the lawes of England which were confirmed by William the Conqueror hath these words Inter alia volumus concedimus quod omnes liberi homines Monarchiae Regni sui praedict ' habeant teneant terras suas bene in pace liberas ab omni exactione injusta ab omni Tallagio not mentioning there injusta Ita quòd nihil ab eis exigatur praeter servitium justè debitum Hereby it appeares there is an absolute freedome from all Tallage 17. King Iohn in Matt. Paris fol. 246. The King doth grant and confirme unto his Barons and Commons inter alia these liberties following Nullum Scutagium vel auxilium ponamus in Regno nostro nisi per Commune Concilium Regni nostri nisi ad redimendum corpus nostrum filium nostrum primogenitum mill ' faciend ' vel ad primogenitam filiam nostram maritand ' By this it appeares what was then conceived to be amongst others their liberties and then confirmed which was that no aide should bee put upon them but by Parliament for the Parliament was then called Commune Concilium That the law is so appeareth by the Treatise written by Fortescue who had been chiefe Justice of England and then Chancellour of England in King Henry the sixth his time when he wrote the booke intituled De laudibus Legum Angliae For fol. 25. cap. 9. hee saith thus That the King of England cannot alter nor change the Lawes of England at his pleasure For principatu non Regali sed et politico ipse pâ—pulo suo dominatur If his power were Royall onely then hee might change the Lawes Tallagia quoque caetera onera eis imponere ipsis inconsultis but addes That the King of England sine Subditorum assensu Leges mutare non potest nec subjectum populum renitentem onerare impositionibus peregrinis And in his 13. chap. fol. 31. hee compares the King and Subjects of England to the head and body naturall Ut non pâ—test caput corporis Physici nervos suos commutare neque membris suis proprias vires propria sanguinis alimenta denegare sic nec Rex qui caput corporis politici est mutare potest Leges corporis illius nec ejusdem populi substantias proprias subtrahere reclamantibus eis aut invitis Thus hee in this place but in fol. 84. cap. 36. hee seemes to say In hoc individuo Rex Angliae nec per se nec ministros suos tallagia subsidia aut quaevis onera alia imponit Legiis suis aut Leges eorum mutat aut nova condit sine concessione vel assensu totius Regni sui in Parliamento suo expresso which words seeme so generall that in no case he may doe it So it appeareth by the Booke case 13. H. 4. fol. 14. that the grant of the King which tendeth to the charge and prejudice of his people in generall is not good unlesse by Parliament But it is agreed there that grants of Tolls of Faires of Pontage of Pikage Murage Ferrying or such like which are for the profit good and ease of them that will take benefit thereof and not compulsory to any to pay but to them that will take the benefit of such Faires c. and being very small and reasonable summes the Law doth give allowance unto them but if they were great summes that tend to the charge of the people the Law will judge them void This appears in Sir Edw. Cokes Reports lib. 5. fol. 63. in the Case of the Chamberlain of London That an ordinance made by the CoÌ„mon Councell of London where they have a custome by the said CoÌ„mon Councell to make reasonable ordinances to bind all within the City concerning Clothes to bee brought to Blackwell Hall there alwaies to be viewed measured searched before they were sold a penny appointed for the Officer that did that service That such a charge was reasonable for that it was for the publick benefit of the City and Common-wealth And a pecuniary penalty laid for not performance of that ordinance was allowed Ibid. fol. 64. in Clarkes Case is resolved That an ordinance made by the assent of the Plaintiffe himselfe and other Burgesses for the Towne of Saint Albons of a small taxe upon the inhabitants of the Town towards the erection of the Courts other necessaries for the Terme to bee kept there It was allowed to bee good and did bind the Plaintiffe being by the Plaintiffes own consent and for the publick good of the Town Also Coke lib. 11. fol. 86. in Darcies Case citeth this out of Fitzherberts natur brev. fol. 122. That every grant of the King hath this condition in it tacite or expresse Quòd patria per donationes illas magis solito non oneretur seu gravetur And as by grant the King cannot charge his people so neither can hee by Writ lay any charge upon his people but by their consent or where they have apparent benefit thereby And that is the reason of the Writ in the Register fol. 127. Fitzh. nat. brev. fol. 113. where by breach of the Sea walls any inundation is of the Country the King who is Pater patriae and taketh care for the good and safety of his people sendeth out his Commissioners to enquire by whose default any such breach happened and to cause all that had lands and commons neere adjoyning which may have benefit of inclosed marshes or losse by such inundation to be contributory to the
to leave it to the Sheriffe to taxe them when and how hee would To that which hath beene said That this charge is not within the intention of the statutes and that a statute to prohibite such a charge for defence were void I answer That it is true if a statute were that the King should not defend his Kingdome it were void being against Law and Reason but a statute that money shall not bee charged or levied nor that men shall be charged to make or prepare ships at their owne charges without common consent in Parliament I conceive it a good Law and agreeable to Law and Reason and the King may by Parliament restraine himselfe from laying such a charge but by consent And then the King being a just and pious King as ever governed the Kingdome which wee that serve in his Courts of Justice have daily experience of would not assent unto or suffer any such charge if he may be truly informed that the imposing of this charge were against any one Law of his Kingdome as this is against so many but would say as it is said in the statute made in the 25. Edw. 3. de provisoribus reciting the statute of Carlyes made 35. Edw. 1. That the Pope should not bee permitted to present to Benefices That he was bound by his Oath to see that and other Lawes in force and not repealed to bee performed That hee would not suffer such charges to bee laid contrary to the Lawes and Statutes of his Realme and would doe as the late famous Queene Elisabeth did having required a charge upon divers her Subjects by particular letters from the Lords of her Councell of severall summes of money for present helpe towards her warres in Ireland hearing that one of her Judges being convented before her Lords for not payment of it thereby discouraging others to pay it answered that it was against the Law that the same should bee imposed there being an expresse statute against it which hee being a Judge was bound by his Oath to signifie he being as much as in him was to be a conservatour of the Queenes Oath in that behalfe The Queene I say was very angry that such an imposition had beene made against Law and commanded that it should bee stopped from further gathering and to some that had paid their monies the same were restored and therefore the principall and onely fault in the charging of his Subjects by these Writs if they bee unlawfull as I conceive they are is in those that devised them and informed him that they were lawfull and such as his Progenitours had from time to time used to send out and in his Judges who have affirmed it to bee lawfull Therefore upon this point I conclude That this charge by this Writ is illegall and is no sufficient cause to charge the Defendant Where it hath been much urged and argued by Master Sollicitor and Master Attorney that this Writ is warranted by the Kings Prerogative and power Royall to send forth such Wriâ—s for defence and safety of the Kingdome in time of danger To this I answer That I doe not conceive that there is any such Prerogative for if it were a Prerogative I should not offer to speake against it for it is part of our Oathes that are Judges to maintaine the Kings Prerogative to the best of our skills and not to suffer the same to be diminished but if it bee as I have argued it is against the Common Law and against so many Statutes that the Subjects should be inforced to sustaine or to contribute to any charge without their especiall assent and common assent in Parliament then there is no such Prerogative For whatsoever is done to the hurt or wrong of the Subjects and against the Lawes of the Land the Law imputeth that Honour and Justice to the King whose Throne is established by Justice that it is not done by the King but it is done by some untrue and unjust Informations and therefore void and not done by Prerogative This appeareth by the authorities of our Bookes for Bracton who is an ancient Writer in our Law saith Nihil aliud potest Rex in terris cum sit minister Dei ejus Vicarius quà m de jure potest And there a little after Itaque potestas sua juris est non injuriae cum sit author juris non debet inde injuriarum nasci occasio unde jura nascuntur Sir Edward Coke in the eleventh booke of his Reports in the Case of Magdalen Colledge where the question was Whether Queene Elisabeth having taken a long Lease of a Colledge being conceived to bee against the statute of 13. Elis. was sought to be maintained by her Prerogative but resolved it could not being against a statute by which she was bound although not named and there fol. 72. it is said Hoc solum Rex non potest facere quod non potest justè agere Plowdens Comment. fol. 246. 247. in the Lord Berkley's Case it is said that the Prerogative of the King cannot doe wrong and his Prerogative cannot be any warrant to do any wrong to any Plowdens Comment. fol. 487. in Nichols Case it is said by Justice Harper Although the coÌ„mon law doth allow many prerogatives to the King yet it doth not allow any that hee shall wrong or hurt any by his Prerogative 21. Edw. 3. fol. 47. in the Earle of Kents Case it is said That if the King under his great Seale doe make any grant to the hurt of any other hee shall repeale and avoid it Iure Regio for the King is accounted to be abused by untrue suggestions when hee is drawne to doe any wrong to the hurt of any other much more I say when he is drawn to do any thing to the hurt of his Subjects in generall Sir Edward Coke lib. 11. fol. 86. in Darcies Case it is said That every grant of the King hath this condition unto it Tacitè or expressè Ita quòd Patria per donationem illam magis solito non oneretur seu gravetur The Booke called Doctor and Student fol. 8. setting downe that the Law doth vest the absolute property of every mans goods in himselfe and that they cannot be taken from him but by his consent saith That is the reason if they be taken from him the party shall answer the full value thereof in dammages And sure I conceive that the party that doth this wrong to another shall besides the dammages to the party bee imprisoned and pay a fine to the King which in the Kings Bench is the tenth part of as much as hee payeth to the party So then if the King will punish the wrong of taking of goods without consent betweene party and party much more will hee not by any Prerogative take away any mans goods without his assent particular or generall So I conclude that I conceive there is not any such
Roy command to the Sheriffe De attach the body of the said Robert and he was attached and did appeare And by his Counsell alledged that upon this suggestion the King being not otherwise apprised by indictment or otherwise this suit did not lie for the King and the parties grieved may have their suits And thereupon the Court was advised and took time to speak with the Chancellor to see if he had any matter out of which the said Writ was awarded And afterwards because this Writ was grounded upon a suggestion against the Common Law therefore the said Robert was discharged which is a stronger Case then ours And for these reasons I conclude this Part that no Scire facias ought to be awarded in this case NOw it remains to give answer to that which hath been before objected and spoken of onely by Mr Solicitor that the Judges had before given their opinions to warrant the legality of this charge and subscribed their names First I doe affirme and it doth appear by my Argument that this Case now in question doth not concern nor contradict the matter of the Subscription for the matter whereunto the Subscription was made is That when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger That then for the defence of the Kingdome from such danger the King may by Writ impose the provision of Ships with furniture and men But if onely there be Pirats and Robbers of the Sea assembled together by Sea to rob spoile and take the goods and marchandises that are to be brought into the Kingdome and safe conducting of the Merchants from spoile as no other particular thing is alledged in the Writ of 4. Augusti I think it will be granted that this doth not by our opinions inable the King to make such a generall charge upon that occasion But if there were an intended Invasion that known to the Kings Majesty whom it concernes most and upon such an intention in such a case of necessity which is and may be termed a time of such danger as it may be â—it to prepare fo◠〈◊〉 of the Realme Then I am of opinion that in such a case all that hath been said that Necessitas est Lex temporis and Salus Reipublicae est summa lex and then Silent inter arma leges might be just causes for that time onely to make a preparation of Ships And in this case here doth not appeare that there was not any one Ship provided or prepared by any Sheriffe The King is the sole owner and Lord of the Sea and hath power thereof And as it was agreed in a notable Case that was adjudged in the Exchequer Mich. the fourth yeare of King Iames against one Bates wherein I was then of Councell the King may lay an Imposition upon forraine commodities to be brought into this Realme for there was 5. s. laid upon every hundred weight of Currants over and besides the 2. s. 6. d. for poundage And Bates having notice of this Imposition brought in a Ship fraighted with Currants payed the 2. s. 6. d. for poundage but refused to pay the 5. s. for every hundred weight And upon information the Case was argued at the Barre and at the Bench and it waâ—â—djudgâ—d that the Imposiâ—ion was lawfull and that the King in his prerogative had totum dominium maris and that all the Ports were the Kings and that the King had sole power to restraine or forbid the going beyond the sea the sole appointment into what Countries the Merchants should or might trade and to appoint into what countries they should not trade And for these respects the King was to maintaine the Ports to provide for the safety of the Merchants and to cleare and scowre the narrow Seas from Pirats and Robbers for the doing whereof was added the tonnage and poundage by grant in Parliament Lastly these sudden opinions when Judges heare no Arguments are of no such force as to bind them to continue the same opinion But that when they shall have heard Arguments and be better informed they may alter and change which hath usually happened Besides as it is very well knowne wee were not all of opinion but the greater number then concurring the Subscription was for conformity as sometimes is used in such cases Lastly it hath been objected that the Defendant by his generall Demurrer hath confessed all the matters to be true which are surmised in the Scire facias To this it is answered that a Demurrer confesseth the matters of fact which are sufficiently alledged but such matters in fact as are not sufficiently alledged those are not confessed but left to the judgement of the Court See these Cases so adjudged and resolved in these Books Coke Lib. 4. fo. 43. in Hudsons Case matter sufficiently alledged est confesse And according to this it is agreed in Hindes Case in the same Book fol. 71. The very expresse Case is that of Birton upon Usury which was Anno 33. 34. Eliz. where it is adjudged that a Demurrer confesseth nothing that is insufficiently alledged as where a matter of usury is alledged and is not so sufficiently alledged that it appeares to be Usurie the Demurrer doth not confesse that to be Usurie as is pretended So likewise in this case the Demurrer general doth not nor can supply the defect of the matter which should have been comprised in the Writ of 4. Augusti The Demurrer confesseth that there was such a Writ but doth neither confesse the lawfulnesse thereof nor the defect of the insufficient alledging of any matter which should have beene contained therein And thus with as much brevity and perspicuity as want of memory and other infirmities which attend upon my age would suffer me and without either preamble or protestation I conclude with that which my brother Berkley used in the beginning of his speech That the people of this Realme are Subjects and not slaves Free-men and not villeins and therefore not to be taxed De alto basso and at will but according to the Laws of this Kingdome And therefore I conclude that neither for the matter nor for the manner this Writ of Scire facias brought in this Court of Exchequer upon the tenour thereof can be maintained And therefore in my opinion I advise the Barons to give judgement accordingly for the Defendant This is the same which I did deliver in my Argument in the same manner that I did argue FINIS THE CERTIFICATE OF Sir JOHN DENHAM Knight One of the Barons of the Exchequer concerning SHIP-MONEY 26. Maii Anno Do. 1638. MAy it please your Lordships I had provided my selfe to have made a short Argument and to have delivered my Opinion with the Reasons but by reason of want of rest this last night my old disease being upon me my sicknesse and weaknesse are greatly increased insomuch that I cannot attend
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 Kâ—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
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
of those of 25. Edw. 1. 34. Edw. 1. and 14. Edw. 3. being in the negative and in force I conceive that those Writs to lay such a charge is against the Law and so the assessement by colour thereof not lawfull Now whereas the precedent Arguments have been that the Kingdome being in danger therefore these Writs went forth for the making of ships because there could not bee so suddenly any Parliament called And the Parliament is a slow body and the Kingdome may be lost whilest there is consultation And the danger is conceived to bee very great because the first Writ of 4. Augusti so mentioneth that the Pirates provide a great Navie to infest the Kingdome and it is fit with speed to provide a remedy and that the Writ of mittimus mentioneth that Salus Reipublicae periclitabatur And wee must beleeve these suggestions to bee true for the Kings Certificate by this Writ is Recordum superlativum as Master Sollicitor and my brother Berkley termed it and we must leave it upon the Kings conscience if it be not true to lay such a charge upon an untrue suggestion and the Defendant also by his Demurrer hath confessed all the suggestions in the Writ to be true therefore it must bee conceived that the Kingdome was in great danger and present remedy must be had by making these ships and may be commanded by those Writs and not to stay for a Parliament And my brother Crawley said It may bee that if a Parliament were called they will not yeeld to the going forth of such Writs although the Kingdome were never so much in danger And this charge in respect of the making of defence is not within the intention of these statutes and if it had bin expresly mentioned within a statute that such a charge should not bee imposed it had been a void statute and contrary to the Law that the Kingdome should not bee defended To all these I answer That the matter now in question is upon the Writ of 4. Augusti whether that bee legall or not and the suggestions therein bee sufficient or not for the Writ of Mittimus mentioning that Salue Reipublicae periclitabatur at the day of issuing forth of the Writ of 4. Augusti which is a year and a halfe after the first Writ doth not help it And this is not notified to the Sheriffe and Inhabitants of the County to make them the more carefull and in the greater contempt if a ship were not provided but it is onely a notification to the Barons of the Exchequer that the same was the reason why the same Writ issued forth That the suggestions are not absolute that any such danger was or such Navie was prepared by the Pirates but onely mentioneth Quia datum est nobis intelligi that the Pirates had done such mischiefe c. If such suggestions had been absolutely set downe yet wee are not alwaies bound absolutely to beleeve them because many times untrue suggestions are made in Writs and Patents and yet it doth not lye upon the Kings conscience neither doth the Law impute any fault to the King if any such be for the Law doth alwaies conceive honourably of the King that hee cannot nor will not signifie any untruth under his great Seale but is abused therein and the Law imputeth it to them that so mis-informed the King and thrust in such suggestions into the Writ and therefore all Patents grounded upon untrue suggestions are accounted void That the Demurrer confesseth nothing but that which is legally and well set downe but if it bee illegall the Demurrer confesseth it not but is well offered for that cause If the Kingdome were in danger yet a charge must not bee laid in generall upon the Subjects without their consent in Parliament for either the danger is neere and then present provision must be made by mens persons and the present ships of the Kingdome which the King may command from all parts of his Kingdome as need shall require but cannot command money out of mens purses by distraining their goods or imprisoning their persons But if the danger bee further off by reason of any forraine combinations as it is conceived it may be here then provision must bee made of ships by all the Kingdome for defence then as Philip de Comines saith fol. 179. that cloud is seene afarre off before that the tempest fall especially by a forraine war and such invasions cannot fall so soone but that the King may call his Sages together and by consent make provision for such defence So I say here if there be time to make ships or prepare ships at the charges of the Counties then is there time enough for his Majestie if hee please to call his Parliament to charge his Commons by consent in Parliament to have a subsidiary aide as alwaies hath been done in such cases and they are not so long coming or meeting when they come but to make provision for defence being for all their safeties For it appeareth by Coke lib. 9. fol. 1. in his Epistle that King Alfred made a Law that the Parliament should be held twice every yeare and oftner if need require in time of peace so that it was then conceived it was necessary to have Parliaments often to redresse inconveniences Also by a statute made 4. Edw. 3. cap. 14. It is enacted that a Parliament shall bee held once every yeare and oftner if need be Also by a statute made 36. Edw. 3. cap. 10. It is enacted for redresse of mischiefes and grievances that daily happen a Parliament shall bee holden every yeare as another time was ordained by a statute which I thinke referreth to 4. Edw. 3. Also it appeareth by the speed that was in the Parliament held in the third yeare of his Majesties raigne five Subsidies were granted two of them to bee paid within few daies after the Session of Parliament ended and therefore might as this case is beene ordered and provided for by Parliament within seven moneths as the time was betweene the Teste of the Writ and the time prefixed for ships to be prepared and sent Where it is objected that the Parliament perhaps would not have consented and so the Kingdome might have been lost It is answered That it is not to bee preâ—umed that the Parliament would deny to doe that which is fit for the safety and defence of the Kingdome their owne estates and lives being in danger if the Kingdome were not sufficiently defended for it is a Rule Nihil iniquâ—â—m esâ— praesumendum in Legâ— so of the high Court of Parliament that they would not deny that which is fitting But I confesse I doe thinke if it had beene moved in a Parliament they would never have consented to these Writs they never having been awarded before since the Conquest and if they had consented they would have taken a course how the same should have beene made with most conveniencie and not
he to return the same to the Court whereunto he is the immediate officer and the former are not any officers So the Scire fac ' thereupon grounded I conceive is not good also the Scire fac ' to warne Mr. Hampden ad ostend â—i quid pro se habeat c. quare de praedict viginti solid onerare non debet not shewing to whom is uncertaine and insufficient Thereupon I conclude upon the whole maâ—er That no judgement can be given to charge the Defendant FINIS Iudgement was given against Mr Hampden by the greater part of the Iudges And when the Iudges had delivered their opinions the Barons gave Iudgement Quod oneretâ—r c. Afterwards in this present Parliament begun at Westminster 3. Novembris Anno Dom. 1640. the Commons took into their considerations the extrajudiciall opinions of the Iudges the Ship-writs and this Iudgement against Mr Hampden and being read openly in the House after long debate Die Lunae septimo die Decemb. 1640. these foure severall Votes passed upon them without so much as one negative Voice to any of them viz. THat the charge imposed upon the Subjects for the providing and furnishing of Ships and the assesments for raising of money for that purpose commonly called Spip-money are against the Laws of the Realm the Subjects right of Property and contrary to former resolutions in Parliament and to The Petition of Right THat the extrajudiciall opinions of the Judges published in the Star-chamber and inrolled in the Courts at Westminster in haec verba THE CASE Charles Rex VVHen the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger whether may not the King by Writ under the Great Seal of England command all the Subjects in this Kingdome at their charge to provide and furnish such number of Ships with men victuall and munition and for such a time as hee shall think fit for the defence and safegard of the Kingdome from such danger and perill and by Law compell the doing thereof in case of refusall or refractorinesse And whether in such case is not the King the sole Judge both of the danger and when and how the same is to be prevented and avoided C. R. THEIR OPINIONS MAy it please Your most excellent Majesty We have according to Your Majesties command severally and every man by himself and all of us together taken into serious consideration the Case and questions signed by Your Majestie and inclosed in Your Letter And we are of opinion That when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger Your Majesty may by Writ under the Great Seale of England command all the Subjects of this Your Kingdome at their charge to provide and furnish such number of Ships with men victuall and munition and for such time as Your Majesty shall think fit for the defence safegard of the Kingdome from such danger and perill and that by Law Your Majesty may compell the doing thereof in case of refusall or refractorinesse And we are also of opinion that in such case Your Majesty is the sole Judge both of the danger and when and how the same is to be prevented and avoided In the whole and in every part of them are against the Lawes of the Realme the Right of Property and the liberty of the Subjects and contrary to former Resolutions in Parliament and to The Petition of Right THat the Writ following in haeâ— verba viz. CHARLES by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To Our right trusty and welbeloved Councellor Thomas Lord Coventry Keeper of Our great Seal of England greeting These are to will and require you that for the safegard of the Seas and defence of the Realme you issue forth or cause to be issued forth of our high Court of Chancery these ensuing Writs in the forme following with Duplicats of them under Our Great Seale of England unto the Counties Cities Townes and places hereafter ensuing and for so doing this shall be your warrant REx c. Vic. Com. nostri Buck. Ballivis Burgensibus Burgi paroch de Buckingham Maiori Ballivis Burgensibus Burgi de Chepping Wicombe alias Wicombe Ballivis Aldermannis Burgensibus Burgi de Aylesbury ac probis hominibus in eisdem Burgis parochiis membris eorundem in Villis de Agmondisham Wendover Marlowe magna ac in omnibus aliis Villis Burgis Villat Hamlet aliis locis in dicto Com. Buck. salutem Quia datum est nobis intelligi quod praedones quidam Piratae maris Grassatores tam nominis Christiani hostes Mahumetani quam alii congregat Naves bona ac mercimonia non solum Subditorum nostrorum verumetiam Subditorum Amicorum nostrorum in mari quod per gentem Anglicanam ab olim defendi consuevit nefariè diripientes spoliantes ea ad libitum suum deportavere hominesque in eisdem in captivitatem miserrimam mancipantes Cumque ipsos conspicimus Navigium indies praeparantes ad Mercatores nostros ulterius molestand regnum gravand nisi citius remedium apponatur eorumque conatui virilius obvietur consideratis etiam periculis quae undique his guerrinis temporibus imminent ita quod nobis Subditis nostris defensionem maris regni omni festinatione qua poterimus accelerare convenit Nos volentes defensioni regni tuitioni maris securitati Subditorum nostrorum salvae conductioni Navium Merchandizarum ad regnum nostrum Angliae venient ' de eodem regno ad partes exteras transeunt ' auxiliante Deo providere maxime cum nos Progenitores nostri Reges Angliae Domini maris praedict. semper hactenus extiterint plurimum nos taederet si honor iste regnis nostris temporibus depereat aut in aliquo imminuatur Cumque onus istud defensionis quod omnes tangit per omnes debeat supportari prout per legem consuetudinem regni nostri fieri consueverit Vobis praefat. Vicecom Maior Ballivis Aldermannis Burgensibus probis hominibus omnibus aliis quibuscunque supramentionat Villis Burgis Vill Hamlet locis suprad eorumque membris in fide ligeantia quibus nobis tenemini sicut Nos honoreÌ„ nostr. diligitis necnon sub forisfactur omniumque quae nobis forisfacere poteritis firmiter injungend Mandamus quod unam Navem de guerra portagii quadringent quinquagint doliorum cum hominibus tam Magistris peritis quam Marinariis valentioribus expertis centum octoginta ad minus ac etiam tormentis tam majoribus quam minoribus pulvere tormentario ac hastis telis aliisque armatur necessar pro guerra sufficien cum duplici eskippamento necnon cum victual usque ad primum diem Marcii jam proximè