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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

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

that the Laws of your Realme wherein you shall succeed are such For it shall exhibit to you and your people no small security and comfort And the same Author fo. 84. cap. 36. saith thus That the King by his Officers though the owners would say nay may take necessaries for his house at a reasonable price to be assessed by the Constable Neverthelesse he is bound by the Law to pay therefore either presētly or at a day to be limited by the higher Officers of the house For by the Laws hee may take away none of his Subjects goods without due satisfaction for the same neither doth the King there either by himselfe or his servants and officers levie upon his Subjects Tallages Subsidies or any other burthens or alter their Laws or make new Laws without the expresse consent and agreement of his whole Realme in his Parliament And thus I have done with the positive part of my argument and I will indeavour to be shorter in the rest THE SECOND PART NOw in the second place I will give an answer to all such objections that have beene made by the Counsell of the King at the Barre and by some of my Brothers in their arguments against these Statutes First it hath beene objected that the Statute de Tallagio non concedendo was not a Statute And this was insisted upon by Mr. Solicitor and not without many probabilities of the Kings not then being in England and many other things by him alledged Yet because it hath beene generally agreed by all that have argued since that it was and is an Act of Parliament and is so recited in the Petition of right I will say no more to that But thereby and by his insisting so much upon that to be no Statute I doe conceive that he understood that Statute to be as indeed it is a forceable Statute against this imposition of a charge by Writ without the consent of the Parliament The second objection was That the words Aides Tax and Tallages doe not extend to this provision of Ships of Warre and men for defence and that there is no exception of the aides which are due to the Kings Majesty for making his eldest sonne Knight nor aides for mariage nor other aids by tenures The answer is easie for the words of the Statute of the fourteenth year of King Edward the third are That they shall not from henceforth be charged or grieved to make any aide or to sustaine any charge These are words so generall that all is comprehended which charges all And for the aides of making the eldest sonne Knight and the other aides they are not generall to charge all but particular such as are charged by tenure and neede no exception And yet in the Statute of 25. Ed. 3. cap. 8. there is an exception of other then those which hold by such tenure which exception was needlesse because no charge of any in particular is within any of the acts of Parliament but such as are generall and extend to charge all the Subjects of the Realme as this doth There hath beene another objection made against the Statute of 14. Edw. 3. that it should be but temporary for the time of the continuance of those wars And my Brother Berkley did except to this Statute because it is not mentioned in The petition of right To this there needs no other answer then the Statute it selfe First the preamble and then the body of the Act viz. That from henceforth they shall not be compelled to make any aide or sustaine any charge but by the common consent of the Prelates Earles Barons Great men and Commons of our Realme of England and that in Parliament This is an absolute Statute It is true that the latter clause whereby the King was pleased that the profits to be made of his Wards Marriages Escheats and other profits should be disposed of for the maintenance of the Realme of England and of his wars in Scotland France and Gascoy and elsewhere during the said warres This was a matter of the Kings bounty and Grace and was to continue no longer And to say that because it was not particularly mentioned amongst other in The petition of right therefore it should be of no force doth not stand with any reason to impeach the Statute nor many others that are not there enumerated The last and greatest Objection that hath beene made first by my Brother Crawley and after by others and insisted upon by my Brother Iones is That this is a Prerogative or power Royall so incident to the Kings Majesty that it cannot be taken away by any act of Parliament And as it was said it is proprium quarto modo And in proofe thereof it was affirmed that when there was in the beginning of King Iames his raigne a purpose to have taken away all tenures by an act of Parliament and to have shut up the Court of Wards It was resolved by the Judges that such a Statute had beene void First I doe agree that there are many things so incident in power to a King as are not in the power of any Parliament to take away as appeares by the case of 1. H. 7. of the disposing of the right of the Kingdome power of making Warre and Leagues The power of the coine and the value of coines and many other Monarchicall powers and prerogatives which to be taken away were against naturall reason and are incidents so inseparable that they cannot be taken away by Parliament And yet I will shew you and prove that Acts of Parliament have bounded limited and qualified the Kings ancient and inherent Prerogatives of like nature and of as great importance as this is It it said in Ploydon in the case of Mines f. 332. That every Prerogative that the King hath containes in it selfe a matter of Prescription and as it is there said That before the Statute of 2. Edw. 3. cap. 12. if one held his Land by Knights service of the King in Capite and had aliened that land in fee without the Kings licence the land was forfeited to the King And the King should have had the land to him and his Successors for ever The King willeth and granteth that the King shall not hold them as forfeit But shall take a reasonable fine to be assessed in the Chancery by due Processe And in the same booke fo. 322. The Kings Majesty might by Prerogative have taken woods in any mans wood for the repaire of his Castles but by the Statute of Magna Charta cap. 21. he is excluded of that The words are Neither We nor our Bailiffe nor any other for us shall take wood of any other mans to repaire our Castles nor to doe any other thing with them but by good will of him whose wood it is And by the Statute of 25. Edw. 3. cap. 1. It is enacted that from thenceforth neither he nor any of his heires shall