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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

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

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

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

have beene shewed and insisted upon to prove that the Kings of this Realme have made such impositions even in the matter of Shipping And herein first they have insisted upon a tribute or imposition called Danegelt which was begunne in Etheldreds time which as it was said was double ad placandos Danos vel ad coercendum Danos which was very grievous and of long continuance For as it was said by my Brother Croke it was first tenne thousand pounds yearly then increased to sixteene thousand then to twenty foure thousand then to thirty six thousand yearely And from twelve pence for every hide of Land to twelve shillings for every hide of land This Tribute continued after the Danes for in the time of the Normans it became to be called a tallage or taxe King Henry the first granted to the Citizens of London to be quit and free from Danegelt And the same King about the thirtieth yeare of his raigne in redemption of his sinne did grant that Danicum Tributum should be totally released for seaven yeares as it appeares in Sr. Henry Spelmans booke intituled Glossarium fol. 200. To this I give this answer that by the Statute of 34. Edw. 1. De tallagio non concedendo but by Parliament this was taken away And thereupon insues a strong argument that if such a thing as the Danegelt which had so long continued were not taken away by these acts of Parliament it might have beene put in use For no man will maintaine that this tribute of Danegelt can now be imposed at this day by the Kings Writ under the great Seale which it might be if these Statutes had not taken it away And for this purpose in the Statutes made in the foure and thirtieth yeare of King Edw. 1. cap. 8. The King grants to Clerkes and Lay-men that they shall have their laws liberties and free customes as they have used the same at any time when they had them best And if any Statutes have beene made or any customes brought in by us or our Ancestors to the contrary that they shall be void and frustrate for evermore And concerning the generality of precedents which have beene made use of on the one side and on the other out of Membrana's Patents and Commissions and answers to petitions in the Rolls of Parliament to Petitions I am very sorry that such obsolete and ancient things have beene mentioned many of which in my judgement had beene better to have slept in silence then to have beene spoken of in these times But for a generall answer to all such as have beene shewed before the Statutes de Tallagio non concedendo And the Statute of 14. Ed. 3. may be given And that is that they are of no force being now expresly taken away by the said Statutes And to such as have been shewed since some in the time of Edward the third they are but very few and being directly contrary to the Statute then in force they are not available to prove the lawfulnesse of this Taxation besides King Edward the third acknowledged that he had charged his people with great burthens and desired that they might be forgotten And that he was urged to it by necessity and not for any ill end of his owne as appeared upon the reading thereof in Court And lastly there were many effectuall precedents shewed that for imbarging of Ships and for building of Gallies at Bristow specially set downe in number and the content and so in divers Port Townes And they are injoyned in fide quanobis tenemini et sicut honorem nostram diligitis exhereditationem nostram vitare sicut nos ipsos indempnos servare volueritis herein is a strong command and as great necessity And yet there was a Clause in these Commissions viz. Et vestrum quod ad illud posueritis cum illud sciverimus in exitibus Balivat ' allocari faciemus And in 2. Hen. 4. Parliament recites that where divers Commissions were made to divers Cities Boroughs and Towns to command the making of certaine Barges and Billingers without the assent of Parliament and in another manner then had beene done before The Commons did pray the King that the said commissions might be repealed and that they should bee of no force or effect And the King answered that the said commissions should be repealed for ever But for the great necessity of such Vessels for the defence of the Realme in case that the Wars doe come the King will commune of this matter with the Lords and after he will shew it to the Cōmons to have their consent And so I leave those precedents which together with some other Objections have beene fully answered by my brother Croke and proceed to my further point THat is that since the time of Richard the second and Henry the fourth there have beene no such thing attempted and that this disuse is a sufficient matter to prove the unlawfulnesse For since that time though there have beene in the raignes of many Kings occasion of imployments both of ships for the defence of the Sea and service of the Land yet the course and order of defence hath been by severall other waies As by commissions to provide men for to serve for wages And by Indentures of covenants which were very frequent to be made betweene the Captaine and the King that he should covenant to serve with so many men for such particular times and for such wages as were comprised therein and the precedents of moderne times have beene this way all for wages This is proved by an Indenture made in the fifteenth yeare of Edward the fourth and Sr. William Pirton Knight reciting that the King had disposed of an Army of foure thousand men for the narrow Seas and the keeping of them And that he should have constantly foure hundred sixtie men under him for foure moneths The Kings Majesty was to finde the ships furnished with Guns Powder Artillery and Victuall and that the said William Pirton should take wages for every of his Companie viz. two shillings a week and the times appointed for the payment thereof And the eight and twentieth of King Henry the eight it appeares by a letter under the privy Signet then when by command men were raised in the County of Lancaster and by command comming towards the county of Lincolne to aide the suppression of rebells The rebells having submitted before they came they were commanded to returne and for their charges in their entertainment and conveying of thē a reasonable bil should be made and sent to the King by a trusty messenger and he would cause a convenient recompence to be delivered accordingly And for that which hath beene insisted upon that there hath beene Commissions of Array and provision for Armes and for preparing Armour from time to time It is not to be denied That first by severall Statutes as that of Winchester and divers since The Armour and

are not found in the Rolls as Magna Charta is not And as touching the time I conceive it to be made in 34. Edw. 1. cap. 1. for so it is set down in the great printed book of Statutes anno 1618. to bee the first chapter of the Statutes therein made viz. in these words No tallage or aide shall be taken or levied by us or our heires in our Realme without the good will and assent of Archbishops Bishops Earles Barons Knights Burgesses and other Freemen of the land And that it is a Statute all my brethren the Judges have agreed The onely doubt then is Whether this Statute extendeth to aides for defence of the Kingdome which I thinke it doth for it is the precise words That no tallage or aide shall bee taken or levied but by consent in Parliament which extendeth to all manner of aides Bodin saith fol. 97. by a Law made in the time of Edw. 1. that it was provided and enacted That no taxe tallage nor aide shall bee imposed but by grant in Parliament and by this Law the Subjects of England have defended themselves ever since as with a buckler whereby it appeareth that notice was taken of this Law in forraine parts and so held still to be a Statute in force The next Statute is 14. Edw. 3. cap. 1. which reciteth the grant of the great Subsidy of the ninth fleece of the ninth Lamb c. formerly granted and thereupon these words follow Wee willing to provide for the indemnity of the said Prelates Earles Barons and other the Comminalty of the Realme and also of the Citizens Burgesses and Merchants aforesaid will and grant for us and our heires to the same Prelates Earles Barons and Commons Citizens Burgesses and Merchants that the same grant shall not bee had forth in example nor fall to their prejudice in time to come Nor that they bee from henceforth charged nor grieved to make any aide nor sustaine charge if it bee not by the common assent of the said Prelates Earles Barons and other great men and Commons of the said Realme of England and that in the Parliament And that all the profits arising of the said aide and of Wards marriages Customes and Escheats and other profits arising of our said Realme of England shall be set dispended upon the maintenance of the safeguard of this Realme of England and of our warres of Scotland France and Gascoin and in no place elsewhere during our said warres By this statute it appeareth that it is expresly provided That the subjects should not be from thenceforth charged nor grieved to make any aide nor sustaine any charge but by common assent and that in Parliament which is as expresse as may be and exclusive to any charge otherwise which I conceive was made against the appointment of making or preparing and sending of ships at the charges of the Townes whence they were or sending men out of their Counties at the charges of the County Now where it is alledged by my brother Weston and my brother Berkley that this was but a temporary statute and ended when his warres ended which appeareth by the last clause for employment of those profits of his Wards c. towards those warres I conceive it appeareth to bee an absolute and perpetuall statute for it is granted for him and his heires which is in perpetuity And also it appeares by Plowd his Cōmentaries fol. 457. in Sir Thomas Wroth's Case where a grant is by the name of the King which is in his politicke capacity this extended against him his heires and successours although they bee not named Also the intendment of this Law appeareth to bee for the security of the subjects from thenceforth for all future ages and then the office of Judges is as appeares by Sir Edward Cokes Reports lib. 3. fol. 7. and Plowdens Commentaries in Byston and Studs Case to construe statutes according to the true intent of the makers thereof which was in this Case That it should bee a perpetuall security for them and to little purpose it had been to make a statute to continue but during the time of the warres Also where it is alledged that the statute of 14. Edw. 3. is not mentioned in the Petition of right which is some Argument that it was not conceived to be a continuing statute To that I answer that in that Petition of right it is said That by the statutes there recited and other the good Statutes of this Realme the Subjects shall not be compelled to contribute to any Taxe Tallage Aide nor other like charge not set by Parliament in which this Statute is as well intended as other Statutes and as farre as if it had beene expresly recited Also it appeareth by all the bookes of Statutes that this Statute is printed as a Statute continuing whereas others expired are so set downe as expired 21. Edw. 3. pars 2. m. 11. A Subsidy being granted by Parliament viz. forty shillings of every sacke of Wooll transported before Michaelmas following and six pence of every twenty shillings of merchandize for the safe guarding of the Merchants defence of the Coasts c. After Michaelmas viz. 31. Octob. 21. Edw. 3. by Writ the Collectors were commanded to continue the collection of those Subsidies untill Easter But 26. Novemb. 21. Edw. 3. the King by Writ commanded the stay of the collection of the six pence in the 20 shillings and to continue the collection of the Subsidies upon the sackes of Wooll untill Easter 22. Edw. 3. Parliament mem. 16. the Parliament being holden in Lent the Commons complained of this continuance of the collection of the Subsidy upon the sacks of Wooll longer then the Parliament had granted it and provided that it should not be continued longer then Easter by the procurement of no person By this it appeareth that the Parliament being carefull that the time for levying of a Subsidy granted should not bee inlarged by any power much lesse would they admit of a Writ to lay a charge without grant by Parliament 25. Edw. 3. m. 8. it was enacted That no man should bee compelled to find men at armes other then such as hold by such services except it be by common assent in Parliament By this it appeareth that if men bee not compellable to find a man at armes unlesse it bee by common assent in Parliament much lesse is any bound to bee contributory to the preparing of a ship with 180. men at armes and victuals and wages of the souldiers for a time unlesse it be by common assent in Parliament Rot. Parliamenti 2. Hen. 4. nu 22. an Act of Parliament as I account in the very point is in these words For that of late divers Commissions were made to divers Cities and Burroughs within the Realme to make Barges and Barringers without assent in Parliament and otherwise then hath beene done before these houres The Commons do pray the King that

and strong Navie furnished with men of warre to invade the Kingdome of England the King appointed the Lord of Alburgeny and others to put men in array and to bee ready to defend that County Anno 1588. when the great invasion was by the Navie termed the Invincible Navie which was fore-seene long before this course of preparing ships by every County of the Kingdome was not taken or appointed yet in all these times when there appeared such danger of invasions there never went any such Writs into any the Counties of England to provide ships but the Navie of England and the Army of England was alwaies accounted sufficient for the defence of the Kingdome So I conclude this point that I conceive this course cannot bee taken by any Prerogative or Royall power nor any allegation of necessity or danger For the fourth point I conceive that if it were legall to lay such a charge upon maritine parts yet to charge any Inland County with making of ships and furnishing them with Masters Mariners and Souldiers at their charge which are farre remote from the Seas is not legall nor warranted by any former President for it commandeth an unreasonable and impossible thing and then the Writ commanding such a thing as is unreasonable and not possible for the parties commanded of themselves to performe without help of other Counties is alwaies illegall for it is a Rule That Lex non cogit ad impossibilia therefore if one by Covenant bind himselfe to doe a thing impossible the Covenant is void This appears by the Book case in 40. Ed. 3. fo. 6. where the Case is expresly That if a man do covenant to doe a thing that is impossible the Covenant is void and the deed is void in that respect Also the Book in 2. Ed. 4. fol. 2. If a feoffment bee made upon condition to bee void if the feoffee do not a thing which is impossible this feoffment is good and the condition void for it was the fault of the feoffor to annexe such a condition this appeareth by the case of an Arbitrement If the Arbitrator award that one shall enter into bond with such a one as his surety to pay a summe of money or to doe any other act it is void as to the finding of a surety at the least for it is not in his power to compell him to bee his surety therefore the Law accounteth it unreasonable and so void and this appeareth by the Booke Case 17. Ed. 4. fol. 5. wherein it is so resolved So this Writ commanding the Sheriffe and Inhabitants of an Inland County to find a ship furnished with Masters and Mariners whereas there is not any Shipwright that hath skill to make ships nor any Masters or Mariners ever there inhabiting to guide a ship for they are still conversant about matters of the Plough and feeding Cattell and Husbandry and are trained up by musters for skill of Armes to defend the Countries and not with Sea affaires for most of the County never saw a ship nor know what belongeth to Masters or Mariners of ships and the Country is not bound to seeke men out of the County for such men and perhaps if they should they cannot know where to hire them Therefore when such Writs to Inland Counties have been awarded to find a ship with Masters and Mariners it being conceived by mis-information that they were maritine Townes and had Ships and Mariners dwelling with them the truth thereof being made to appeare to the contrary they have been discharged as appeares by a Record in 13. Edw. 3. pars 2. m. 14. where a Writ went to the Admirall of the Fleet Those parts upon complaint to the King by the men of Bodmin in the County of Cornwall that they were unjustly charged to find a ship with Masters and Mariners whereas that Towne was no Port Towne nor adjoyning to the Sea but farre within the Land nor ever had ships lying there nor Mariners nor Sea-men nor ever used to find any such for Sea service and that their Maior and Officers were imprisoned for not finding such a ship Thereupon the King appointed to have it enquired whether their allegations were true and if it were true signified that hee would not have them so unjustly charged but that they should bee discharged thereof which sheweth that it was then accounted unjust to lay such a charge upon a Towne that was an Inland Town and had no Mariners inhabiting in it much more when such a charge is upon an Inland County which is much further remote from the Sea and cannot performe by themselves that which the Writ commandeth But this Record being objected by the Defendants Councell Master Sollicitor gave answer that the same was because the Admirall of his owne authority had charged them which was not according to his Commission for he was onely to charge the Ports and Sea Townes but that the same may not bee done by the Kings Writ the Record doth not prove But to this I answer That I conceive it is all one when such a charge is laid upon a Towne by Writ which is an Inland Town for so it appeareth by another Record of the same yeare viz. 13. Edw. 3. pars 1. m. 14. where a Writ was directed to the Admirall of the Fleet Ab ore Thamesiae versus partes Occidentales reciting where the King by his Writ to the Towne of Chichester had commanded the Maior and Comminalty there that they should make unam Navem duos Escularios de guerra parari with Mariners and men at armes to bee at Portsmouth such a day to goe with the Kings ships and that they had complained that they had not nor ever had any ships arriving in that Towne nor had any Sea-men or Mariners dwelling there and that it appeared unto the King by Inquisition of a Jury returned into his Chancery this allegation to bee true therefore because the King would not have them indebitè praegravari for so bee the words of the Record the King commandeth the Admirall that they shall not be troubled nor distrained for not performance of such service whereby it appeareth that if they being within few miles of the Sea should not bee charged to find such a ship much more Inland Counties which are much further remote from the Seas are not justly to bee charged with finding any Ships and Mariners Therefore I conclude this point That I conceive this Writ in that respect is not legall not warranted by any former President The fifth and great point hath beene and indeed the chiefe Argument hath been a multitude of Records and Presidents which have been cited that should warrant these Writs and that the King hath done nothing but what his former Progenitors have done and have lawfully done and that hee doth now but more Majorum and that which alwaies in ancient times hath beene done and allowed and therefore ought now to be allowed I confesse this