allegation much troubled mee when I heard those Records cited and so learnedly and earnestly pressed by Master Sollicitor and after by Master Atturney to bee so cleare that they might not bee gain-said but that they proved a cleare Prerogative or at least a Royall power that the King might do so especially when my brother Weston and my brother Berkley who had seene the Records pressed them and relyed upon them for the reasons of their judgements I say I was much doubtfull thereupon untill I had perused all those Records sent me by the Kings Councel and satisfied my judgement therein But now I answer That if there were any such Presidents as I shall shew that there is not one shewed to mee to prove this Writ to be usuall yet it were not materiall for now we are not to argue what hath beene done de facto for many things have been done which were never allowed but our question is What hath beene done and may bee done de jure And then as it is said in Cok. lib. 4. fol. 33. in Mittons Case Iudicand ' est legibus non exemplis and lib. 11. fol. 75. in Magdalen Colledge Case it is said Multitudo errantium non parit errori patrocinium and lib. 4. fol. 94. in Slades Case Multitude of Presidents unlesse they bee confirmed by Judiciall proceedings in Courts of Record are not to be regarded and none of these were ever confirmed by Judiciall Record but complained of But to give a more cleare answer unto them I say That in my opinion upon view and serious reading of all the Records that have beene sent mee on the Kings part for I have read them all over verbatim and I presume they sent all that were conceived to bee materiall and I having taken notes of every one of them and diligently considered of them I conceive there is not any President or Record of any Writ which maintaines this Case for there is not any President or Record of any such Writ sent to any Sheriffe of any Inland County or Maritine County to command the making of ships at the charge of the County but this is the first President that ever was since the Conquest that is produced in this kind but it is true that before 25. Ed. 1. there have been some Writs to Maritine Townes and Ports and other Townes as London c. Where they have had ships and Mariners to provide and prepare ships and to send them to places where the King pleased to appoint upon any just cause of feare of any danger for defence and great reason that they having ships and Masters of ships and Mariners should bee at the Kings command to bring all or as many as hee pleaseth for defence of the Sea and Kingdome being those that had the most benefit of the Seas and likely to have the losse if the Seas and Coasts were not duely guarded and those were most commonly appointed to bee at the Kings charge but sometimes upon some necessity they were appointed to be at the charge of the townes and parts adjoyning which I thinke was the true cause of the complaint in Parliament in 25. E. 1. and the making of that statute for staying that course for there is no Record afterwards of any such Writ in King Edw. 1. his time after that statute to Maritine townes to prepare or send ships at the charge of the townes and none after untill the time of Edward the third and then the warres being betweene him and the French King in Annis 10 11 12 13. of Edw. 3. were the most Writs awarded to the Maritine townes to send ships at their charge sufficiently furnished and those I thinke were the principall cause of the making of the statute of 14. Edw. 3. cap. 1. and after that statute no such Writs nor any Commissions for that purpose were awarded to make any ships at the charge of Maritine townes untill 1. Ric. 2. m. 18. when Writs were awarded to many Maritine townes and Inland townes for the making of ships which Record was much pressed by Mr. Atturny afterwards by my brother Weston my brother Berkley to prove that this course was and might be practised after the stat of 14. Ed. 3. for sending forth such Writs allowed but that Record is fully satisfied for it was grounded upon an ordinance in Parliament in 1. Ric. 2. m. 52. that all ancient Cities Burroughes and Townes that would have their liberties confirmed should have them confirmed without any charge of fine save onely to make a ship of warre for defence of the Realme so this was not compulsary to any but voluntarie to those that would have their liberties confirmed And afterwards in 1. H. 4. Commissions were awarded for the making of such Vessels for warre but those issuing forth without any ordinance in Parliament were complained of in Parliament 2. H. 4. m. 22. as to be against the liberty of the Subject as appeareth by the Statute before recited and the Commissions expresly repealed And since that time of 2. Henr. 4. no such Writs issued forth in any age to any Maritine Towne to cause ships or prepare ships at their owne charge for the Kings service untill these late Writs And now I shall take a short view of all the Records that have been cited and sent unto mee and leave them to the judgement of my Lords and others if any of them prove these Writs to be usuall and legall The Records in the time of King John THree of these are to arrest and make stay of all ships that they should not goe out of the Kingdome but to bee ready for the Kings service and the other was to bring ships of particular Townes to the mouth of the Thames for the Kings service A Commission to guard the Seas to Iohn de Marshall and to the Sheriffe of the County of Lincolne and all others to attend his commands Writs to the Barons of the Cinque Ports and divers other Townes to have their ships ready for the Kings service In the time of King Henry the third A Writ to the Bailiffe of Portsmouth to prepare one Gally A Commission to the Bishop of Rochester and others and to the Sheriffe of Kent to cause all men at armes in that County to bee sworne and to assesse them what armes they should find A Writ to the Sheriffe of Norfolke commanding him to cause them which were appointed to attend at the Sea coasts in that County and having served forty daies intended to depart that they should stay eight daies longer by reason of the danger and longer if need require The like was sent to the Sheriffe of Suff. and Essex A Writ to the Maior of Bedford commanding him to provide for the expences of them that were sent from thence for the guarding of the Seas yet it is but for eight daies more after the date of the Writ A Writ to the men of Essex
quos rebelles et contrarios inveneris in praemissis in carcere mancipand ' in eodem moratur quousque pro eorum deliberatione ulterius duxerimus ordinand Et ulteriùs mandamus quòd citra praemiss diligenter intendatis et faciatis et exequamini cum effectu sub periculo incumbente Nolumus autem quòd colore praedicti mandati nostri plus de eisdem hominibus levari faciat quà m ad praemiss sufficiat expens necessar Et quod quisquam qui pecuniam de contributionibus ad praedict ' custag ' faciend ' levaverit eam vel partem inde aliquam penes se detineat vel ad alios usus quovisâ—quae sito colore appropriare praesumat volentes quòd si plus quà m sufficiat collectum fuerit hoc inter solventes pro rata portionis ipsis contingen ' exsolvat ' By vertue of this Writ Master Hampden is assessed to twenty shillings for his lands in Stoke Mandivill in that County which not being paid is certified amongst others into the Chancery upon a Writ of Certiorari dated 9. Martii anno 12. Car. by a Schedule thereunto annexed And by a Writ of mittimus Teste 5. Maii 13. Car. this Writ of quarto Augusti anno 11. Car. and the Writ of Certiorari and the Schedule annexed is sent unto the Exchequer with a command there to doe for the levying of the summes so assessed and unpaid Prout de jure et secundùm legem regni nostri Angliae fuerit faciend Whereupon a Scire facias issued out of the Exchequer reciting the said Writs to warn Master Hampden amongst others to shew cause why hee should not bee charged with this money Upon this he being summoned appeareth and demands the hearing of those Writs and Schedule which being entred thereupon he demurreth in law And whether judgement upon this whole Record be to be given against Iohn Hampden that he is to be charged or no that is the question for hee is the onely party in this Case And there is no cause why any man should say that the question is Whether judgement should bee given for the King or for the Defendant for as this case is the King is no party to the Record but onely it is a judiciall process out of the Exchequer grounded upon those former Records for the Defendant to shew cause why hee should not bee charged which hath been very elaborately argued by the Defendants Councell who demurred that hee should not be charged and by the Kings Councell very learnedly and elaborately argued that he should be charged This Case is a Case of great weight and the greatest Case of weight that ever wee reade argued by Judges in this place and therefore adjourned into this place for advice of all the Judges For of the one side it is alledged that it concerneth the King in his Prerogative and power Royall And on the other side that it concerneth all the Kings Subjects in their liberties their persons and their estates For which cause it hath made some of us to wish and move among our selves that it might have been by his Majesties favour heard and determined in another place by his Majesty and his great Councell of his Realme Where all conveniencies and inconveniencies might have been considered of provided for and prevented for present and future times and not to bee argued onely by us who are accompted his Majesties Councell at law wherein if any thing be done amisse the fault must light upon us as mis-advising the King therein But seeing that it hath pleased his Majesty that the same should be argued and determined in this place whose pleasure we must obey I must give my best advice upon my oath to the best of my skill wherein I hope not to trench upon his Highnesse Prerogative which wee are all bound by our oaths to the best of our skills to maintain and not to suffer to be diminished nor upon his Royall power but truly to deliver what I conceive the law to bee concerning the Case in question Wherein I must confesse I have been much distracted having heard so learned Arguments on both sides at the Barre and so many Records and Presidents cited on either side But they did not so much move mee for the Councell have of either side pressed such reasons and arguments and cited such Records as they thought convenient for the maintaining of their opinions and perhaps with a prejudicate opinion as I my selfe by mine owne experience when I was at the Barre have argued confidently And as I then thought the law to be of that side for whom I argued but after being at the Bench weighing indifferently all reasons and authorities have been of a contrary opinion And so the law hath been adjudged contrary to that opinion which I first confidently conceived but that which hath moved mee most and maketh me most mistrust mine owne judgement in this Case is That all my Brothers who have all argued upon their oaths and I presume have seene the Records and Presidents cited on either side have all argued one way with whose opinions I should willingly have concurred if I could have satisfied mine owne judgement with their reasons but not being satisfied I have learned that I must not runne with a multitude against mine owne conscience for I must stand or fall unto mine owne Master and therefore I shall shew mine owne reasons and leave my selfe to the judgements of my Lords and others my Brethren And whatsoever shall be adjudged I must submit unto and so doe wish all others and doe now declare mine opinion to be That as this Case is judgement ought to bee given for the Defendant But before I proceed to the Argument I desire to remove two difficulties First that by the Demurrer the danger of the Kingdome is confessed and so to be a Case of necessity To this I answer that the Demurrer confesseth not matters in fact but where the matter is legally set down but if it be not a legall proceeding then the Demurrer is no confessing of the matter in fact This appeares in the Book Case of 5. Hen. 7. fol. 1. and Cook lib. 5. fol. 69. in Burtons Case that a Demurrer is no confessing in matters of fact but where the matter precedent is sufficiently pleaded and laid downe and so it is holden in all our Bookes The second difficulty is that this Case is so resolved by all our opinions under our hands That this Writ was legall which was much pressed by Master Solicitor To this I answer that it is true I have set downe mine opinion under mine hand unto a Case in February 1636. which is that when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger his Majesty may by Writ under the great Seale of England command all his Subjects of this Kingdome at their charges to provide and furnish such number of ships with men
THE ARGVMENTS OF Sir RICHARD HUTTON Knight One of the Judges of the Common Pleas AND Sir GEORGE CROKE Knight One of the Judges of the Kings Bench TOGETHER WITH THE CERTIFICATE OF Sir JOHN DENHAM Knight One of the Barons of the Exchequer Vpon a Scire facias brought by the Kings Majesty in the Court of Exchequer against John Hampden Esquire AS ALSO The severall Votes of the Commons and 〈◊〉 PARLIAMENT and the Orders of the Lords for 〈◊〉 vacating of the Judgement given against the said 〈◊〉 Hampden and the vacating of the severall Rolls in each severall Court wherein the Judges extrajudiciall Opinions in the Cases made touching SHIP-MONEY are entred LONDON Printed by M. Flesher and R. Young the Assignes of I. More Esquire 1641. THE ARGVMENT OF Mr. Justice HUTTON A Scire facias brought by the Kings Majestie in the Exchequer against Iohn Hampden The case upon the pleading appeares to be this THE Kings Majesty by his writ under the great Seale of England bearing date the fourth day of August in the eleventh yeare of his raigne directed to the Sheriffe of the County of Buck and to the Bailiffe and Burgesses of the Borough and parish of Buckingham and to the Mayors of divers particular Townes in the said County of Buckingham and to all honest men in the same and in all the Townes Villages and places in the said County sendeth greeting reciting that where hee is given to understand that certaine Robbers Pirates and spoilers by Sea as well enemies to the name of Christians as Mahumetans and others being assembled together not onely to take and spoile our Ships and the goods and merchandizes but also the goods and merchandizes of the Subjects of our friends upon the Sea and which had of old been used to be defended at their pleasures and to take and carrie the men in those ships into most miserable captivity and there keepe them And the King doth see that they daily provide ships to vex our Merchants and grieve our Kingdome unlesse speedy remedy bee provided therein And considering the perils which in these times of war are every where imminent The King for the defence of the Sea the security of his Subjects the safe conduct of the Ships and merchandizes being willing by Gods assistance to provide the rather for that he and his progenitors Kings of England have beene Lords of the Sea And where this charge of publique defence which concerneth all ought to be supported by all as by the Laws and Customes of this Realme of England it had been done Therefore the King by his Writ commanded that a Ship of warre of the burthen of foure hundred and fifty Tunnes fitted and furnished with all things necessary for warre and one hundred and eighty men able and sufficient victualled and this to be done before the first of March And then at that time to come so prepared furnished and victualled for the space of twenty six weekes then next following and with wages for so many men of warre for that time to Portchmouth into the companie of such other ships of our Subjects and our owne as shall bee there under the government of such a man to whom before that day wee shall commit the custody of the Seas and to goe from thence with the Kings ships and the ships of other our faithfull Subjects for the defence of the Sea and the repulsing and overcomming of any whosoever which shall molest and hinder the comming in or going out of our Merchants or others upon the Seas A power is given by the writ to the Sheriffe and to the Mayors and any two of them for Corporate townes whereof the Sheriffe to be one to assesse what summes the Mayors and Corporations shall pay towards this charge if they doe not then to be done by the Sheriffe alone A generall power to the Sheriffe to assesse all the inhabitants of all other Townes Villages Hamlets and places and the Tertenants other then such as shall have a part of the said ship or shall serve in the said ship to contribute towards the necessary expence for the provision of the premises upon every man according to his estate and faculty And such portions so to be assessed upon them to levie by distresse or other due meanes A power to name Collectors And a power to commit to prison all such as the Sheriffe shall find rebellious or contradicting the premises There to remaine untill the Kings Majestie shall thinke fit to give order for their inlargement And by vertue of this writ Sir Peter Temple then Sheriffe of the said County did assesse upon the Defendant twenty shillings towards this charge which was after allowed by the succeeding Sheriff Sir Henry Proby and the Defendant was required to pay it but refused And then by a Certiorare out of the Chancery directed to those Sheriffes which had beene Sheriffes betwixt the fourth day of August in the eleventh yeare and the first of March then following to certifie what sum of money had been assessed upon the Defendant for contribution They certified the said summe of twenty shillings Then by Writ of Mittimus out of the Chancery bearing date the fift day of May in the thirteenth year of the Kings Majesties raigne the writ of 4. Augusti Anno undecimo Car. and the Schedule returned into the Chancery whereby the Defendant was so assessed are sent into the Exchequer to proceede against the Defendant for the levying of the summe of twenty shillings which he hath not paid and proceede there to do that which of right and according to the custome ought to bee done for the levying thereof In this Writ of Mittimus it is contained that the writ bearing date the fourth of August Anno 11. Car. was granted for the defence of the Realme the safegard of the Sea the security of the Subjects and for that the safety of the Kingdom of England was in danger But these causes are not expressed in the Writ but other particular causes And upon the tenours of these Writs depending in the Chancery thus sent into the Exchequer this Writ of Scire fac ' is awarded bearing date the twentieth day of May in the thirteenth yeare of the Kings Majesties raigne against the said Iohn Hampden to shew what hee hath to say for himselfe why the said summe so assessed upon him and not paid ought not by him to be satisfied and to doe further what that Court should thinke fit to order To which writ the Defendant appeared in Trinitie Tearme and praied the sight of the writ of the fourth of August and the Certiorare and the Mittimus and they are all entred in haec verba Whereupon the Defendant did demurre generally And Master Atturney generall joyned in demurrer and the Record being read there and opened the Court did adjourne it into the Exchequer Chamber before any argument there at the Barre The sole Question is Whether this Scire fac doth lye
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
Weapons wherewith the Subjects of this Realme have beene charged are severall and changed according to the variety of times as things have growne out of use And other manner of provision more serviceable and necessary for which there have beene directions for views and for trayning and disciplining of Souldiers to be prepared for defence that this hath beene in use no man can or ever could deny or affirme the contrary But the Armes wherewith they were charged were their own proper goods And in all the Prerogatives which have beene before by Mr. Attorney generall urged that the King hath interest in mens goods and to execute his writs by his Sheriffes upon mens persons and in their lands for giving possession and for levying amerciaments and fines and power to put some of his Subjects out of their possessions and to deliver the possession therof to others as it appeares in Ploydon in Manxells case which was vouched by Mr. Attorney generall This is very true for this is a thing which the King is bound to doe for the good of his Subjects For as it is agreed in 34. H. 6. fo. 14. The Kings Majesty is bound to keepe his Courts of Chancery and all his other Courts at his own charge And 39. H. 6. fo. 40. The King is bound to doe Law and right to all his Subjects which without these powers and prerogatives could not be performed Out of these and the like of murage and pontage there can no sound argument bee drawne to warrant this provision of Ships and men and furniture for warre when the King will so appoint But I conceive that it hath beene generally agreed by all the Judges nullo contradicente that if this Writ of 4. Augusti which is for provision of a Ship and furniture and men had beene for to have authorized the Sheriffes to have levied monies of the Subjects for that purpose That then the Writ could not have given power to have done it because that would have beene expresly against the Statutes And if that be granted then considering that these Writs to the Sheriffes are accompanied with instructions commanding and directing the levying of money and proportioning what summe is to be raised in every County for that service As in the County of Yorke and in the County of the Citie of Yorke the summe of twelve thousand pounds and the summe of eight thousand pounds for the County of Lincolne And so a proportion of money for every County for that purpose The consequence thereof may be this that this levy which hath obtained the name of Ship-money and wherein no indeavour hath ever beene made for preparing any such Ship or furniture or men as the Writ in it selfe purports is not pursued or warranted by this generall levy of ship money for it is a rule Id quod non fieri potest directe ex obliquo fieri non debet I confesse that divers of the Kings of this Realm have upon some pretended occasions taken upon them by perswasion of some Great men in their time and assumed a Royall and Monarchicall power to levy monies by Commissions and have extended that power very farre whereof you may read That in the seaventeenth yeare of King Henry the eight Cardinall Woolsie was charged to have beene the cause of directing Commissions into all Countries for the levying of the sixt part of all mens goods and the sixt part of their Plate for that the King was then determined to make warre with France and to passe the Sea himselfe This being attempted by inforcing some and sending others to prison it grew to be so generally misliked that the people rose up in divers Countries and thē the King disclaimed that it was done without his Privity The Cardinall charged it to be done first by the consent of the Counsell which they denied then he charged the Judges to be consenting which being untrue the Cardinall tooke it to himselfe And all the Commissions were recalled you may see it at large set downe in divers Chronicles And in the latter times of our gracious Queene Elizabeth upon pretence of want for expeditions in Ireland There was a generall Benevolence required and it went on for a time and so farre as it came to be voluntarily levied in the Innes of Court And I can speake it of my own knowledge I paid a sum I think but twenty shillings others paid likewise But not long after as it was said when the Queene was informed that this Benevolence was expresly against the Statute of Richard the third and against the Laws and distastfull All the monies levied was commanded to be restored and repaied and mine was and the rest was so to others as I heard and doe verily believe and this was attempted by so gracious a Queen And to speak nothing of the Commission dated the thirteenth day of October in the second yeare of our gracious Soveraigne Lord the Kings Majesty for the Loan and levying of the five Subsidies which was effected and acknowledged after not to be warranted by the Laws and Statutes This point is apparent That in time of necessities these Legall or Monarchicall Powers have been assumed in the times of other Kings And hereupon I conclude these points That the Statutes have taken away this power of charging the Subjects of this Realme with any generall and publique Charge Aide or Tallages or burthens for any businesse but onely by their consent in Parliament and no Usage Precedent or Custome if any such have been can by Law take away the force of these Acts of Parliament so long as they stand in force And I doe absolutely beleeve that if the Kings Majesty had not been perswaded by some opinions that this course was warranted by Law and Custome of the Realme that he would not have attempted the same NOw I proceed to the fifth part That the matter which is contained in the Writ of 4. Augusti Anno 11. Car. doth not contain sufficient matter to warrant this levy First the words of the Writ are not any affirmance directly of any danger for they are but Quia datum est nobis intelligi this is but of information and not ex certa scientia which are of more force The other words are but of information or suggestion Then for the matter It containes onely these points That there are many Pirats and Sea-robbers congregated upon the Sea to take away some of our Subjects into miserable Captivity and to hinder our Merchants to bring in their merchandizes and goods and the goods and Merchandizes of the Subjects of our friends comming and traffiquing hither and spoyling of our Merchants And for that the Sea hath bin and ought to be defended by Gentem Anglicanam And they inttending to trouble the Kingdome And we considering the danger every where now imminent and desiring the defence of the Realme the safe-gard of the Sea the security of our Subjects the safe conducting of the ships
of our Merchants of their merchandizes to come into our Realme and to goe forth of the Realme and willing to provide for their aid doe therefore direct this Writ Here is no matter of any publique danger to all the Subjects no intended comming upon the Land but to robbe and spoile as Pirates by Sea and conspirators to molest Merchants to hinder traffique to take some prisoners as have bin done heretofore sometimes by the Dunkirks and many times by the Pirats to Argiers All this is but such a defence as doth require but the ordinary defence to the which the Kings Majesty is solely bound for to see performed for the ordinary benefits that he hath of Customes and Subsidies of Wines and other profits besides the Tunnage and Poundage And the Ships which are provided by the Cinque ports for which they have many priviledges This matter contained in the Writ by all the particulars doth not comprize any generall assault or attempt to be made for taking any Townes as hath beene beforetime Another reason to prove that the Writ doth not containe sufficient matter to induce a generall charge is to be collected That this being perceived it is contained more amply and laboured to be aided and supplied by the words put into the Mittimus which are of more efficacie For therein is contained which is not in the Writ of 4. Augusti Quod pro defensione Regni tuitione maris And for that Salus Regni nostri Angliae populi nostri periclitabatur And the recitall of Datum est nobis intelligi is omitted but hereby affirmed positively And where my Brother Berkley insisted That the matter contained in the Mittimus was sufficient to supply the Writ of 4. Augusti if it were not so fully expressed as it should have beene Thereunto I make this answer Quod in initio non valet tractatu temporis non convalescet Besides the date of the Writ of Mittimus is the fift of May Anno 13. Car. Regis which is almost two years after the Writ of 4. Augusti did issue And this is a very late supply And therefore that Case was vouched by my Brother Berkley which was Dowmans Case An. 25. 26. Eliz. and reported by my Lord Cooke in his ninth booke wherein it is adjudged that when a Fine or Recovery is suffered and no uses declared That an Indenture subsequent declaring that the fine or recovery was to such uses shall be sufficient in Law to lead to the uses of those proceeding assurances Which I agree to be good Law But that doth not resemble this case for this must be good in the foundation or no subsequent declaration can make that good which at the first was not And that I prove by two Cases directly adjudged The first is Vernons Case Anno 14. Eliz. adjudged and reported by my Lord Coke in his fourth booke upon the Statute of joyntureâ— A man intending to make a joynture to his Wife to barre her of her Dower maketh a Feoffement of his land to the use of himselfe for his life and then to the use of a friend for his life and then to the use of his wife for a joynture Although by successe of time it happeneth that the friend dye in the life of the feoffor and so the wives estate becomes immediate to begin upon her husbands death and might have beene a good joynture if it had beene so made at the first yet this case is adjudged to be no joynture for it was not good in the foundation and that which was defective in the Originall is noâ— good by any accident subsequent And in the Lord Chenyes Case reported by my Lord Coke in his fift Booke fo. 62. in the foure and thirtieth year of Queene Elizabeth It is resolved upon the Statute of Wills that the estate contained in a Will in writing which is the foundation and ground must be such as is expressed in the written originall Will and that no averment or subsequent proofe of intention or explanation can adde or supply any thing to that Originall And as in these cases the originall foundation cannot be supplied by subsequent addition So the Writ of 4. Augusti being the Originall cannot be supplied by subsequent explanation Another Exception is that by the Writ all the Kings Majesties Subjects are to bee rated and taxed to contribution other then such as have part in the Ship or else doe serve therein And hereby the Sheriffe of every County must either not be taxed or not contribute for it is inconvenient nor can be done that every Sheriffe should taxe himselfe Next for the Writ of Certiorare that is very unusuall to be directed to two severall Sheriffes being then no Sheriffes to certifie what taxations they had made upon that Writ They were then no Officers but it should either have come by Inquisition or by the return of the then present Sheriffe to have certified what his predecessors had done in their times and not this way which was never before heard of And then touching the Scire facias it selfe I am of opinion that it doth not lie for many causes First the summe so assessed doth not appertain to the King And for the Kings Majesty to have a Scire facias for to inforce him to do or pay that which belongs to another is not usuall Secondly it is not shewed that any Ship or provision of men or munition was prepared or provided which is a contempt in the Sheriffe Thirdly the direction by the Writ is to distrain or to commit to Prison such as shall refuse and no other course appointed by the said Writ for the levying thereof Fourthly the Scire facias ought to be awarded out of a Presentment or Inquisition whereby the matter may be found whereby the King is entituled or upon some Presentments which concern the Common-wealth as presentments that a common bridge is in decay and that either a particular man is bound to repaire it or that it is in default of the County or of the inhabitants of such a Hundred And the like for repaire of high-waies there I agree as was said by my Brother Trevor A Scire facias is usually awarded out of the Exchequer But I conceive these prove that without a presentment or inquisition that no Scire facias doth properly lye or ought to be awarded And thâ—refore I will conclude this with the Case of 2. Edw. 3. fo. 2. the King by his Writ directed to the Sheriffe of Lancaster reciting That where Sr. Iohn Langton had delivered divers summes of money to one Robert his Companion to come to the King in aide of his warres in Scotland And the said Robert did not come but did spoile and take the Goods and Chattels of divers of our Subjects in the said County and did rob and spoile and wast the goods of our Subjects to the Value of two thousand li. ut accepimus le
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
victualls and munition and for such time as his Majesty shall thinke fit for the defence and safeguard of the Kingdome from such danger And that his Majesty may compell the doing thereof in case of refusall and refractorinesse and that in such case his Majesty is the sole Judge of the danger and when and how the same is to bee prevented and avoided To this opinion I confesse I then with the rest of the Judges subscribed my hand But I then dis-assented to that opinion and then signified mine opinion to bee that such a charge could not bee laid by any such Writ but by Parliament and so absolutely in that point one other did agree with mee and dissent from that opinion which was after subscribed and some others in some other particulars from that which was subscribed But the greater part seeming to bee absolutely resolved upon that opinion some of them affirming that they had seene divers Records and Presidents of such Writs satisfying them to be of that judgement I was pressed to subscribe with them for that the greater opinion must involve the rest as it was said to bee usuall in Cases of references And that the lesser number must submit to the opinion of the more although they varied in opinion as it is in our Courts if three Judges agree in opinion against one or two where there is five Judges judgement is to be entred per Curiam if the major part agree and the others are to submit unto it So in Cases of conference and certificate of their opinions if the greater part did agree and subscribe the rest were to submit their opinions And this by more ancient Judges then my selfe was affirmed to bee the continuall practice and that it was not fit especially in a Case of this nature so much concerning the service of the King for some to subscribe and some to forbeare their subscription And that although wee did subscribe yet it did not bind any but that in point of judgement if the Case came in question judicially before us we should give our judgements as wee should see cause after the hearing of Arguments on both sides and not to be bound by this sudden resolution Hereupon I consented to subscribe but I then said in the meane time the King might be mis-informed by our Certificate under our hands conceiving us all to agree together and give him this advice under our hands and not know that there was any that dissented or was doubtfull But it was then said the King should bee truly informed thereof And thereupon we that did dissent did subscribe our hands with such protestations as aforesaid onely for conformity although contrary to the opinion I then conceived But this being before Arguments heard of either side or any Presidents seen I hold that none is bound by that opinion And if I had been of that opinion as was subscribed yet now having heard all the Arguments of both sides and the Reasons of the Kings Councell to maintain this Writ and why the Defendant is to bee charged and the Arguments of the Defendants Councel against the Writ and their Reasons why the Defendant should not bee charged to pay the mony assessed upon them And having duly considered of the Records and Presidents cited and shewed unto mee especially those of the Kings side I am now of an absolute opinion that this Writ is illegal declare my opinion contrary to that which is subscribed by us all And if I had been of the same opinion as was subscribed yet upon better advisement being absolutely settled in my judgement and conscience in a contrary opinion I thinke it no shame to declare that I doe retract that opinion for Humanum est errare rather then to argue against mine owne conscience And therefore now having as I conceived removed these difficulties I proceed to my Argument and shall shew the Reasons of mine opinion and leave the same as I have said to my Lords and Brethren My reasons and grounds that I shall insist upon are these That the command by this Writ of 4. Augusti 11. Caroli to make ships at the charge of the inhabitants of the County being the ground of this suit and cause of this charge is illegall and contrary to the Common law not being by authority of Parliament That if at the Common law it had been doubtfull yet now this Writ is illegall being expresly contrary to divers Statutes prohibiting any generall charge to bee laid upon the Commons in generall without consent in Parliament That it is not to bee maintained by any Prerogative or power Royall nor allegation of necessity or danger That admitting it were legall to lay such a charge upon Maritine parts yet to charge an Inland County as the County of Bucks is with making ships and furnishing them with Masters Mariners and Souldiers at their charge which are farre remote from the Seas is illegall and not warranted by any former President c. I shall examine the Presidents and Records cited to warrant this Writ which have been all the principall grounds of the Arguments to maintaine the same And I conceive there is not one President nor Record in any precedent time that hath beene produced and shewed unto mee that doth maintaine any Writ to lay such a charge upon any County Inland or Maritine I will examine this particular Writ and the severall parts thereof and doe conceive that it is illegall and not sufficient to ground this charge upon the Defendant The motives of this Writ are not sufficient to cause such a Writ to be sent The command of the Writ to prepare a ship at the charge of the inhabitants with munition and men is against the Common law and Statutes That to lay a charge of finding victuals and wages of Souldiers and Mariners is illegall and contrary to the Common law and divers Statutes The power of assessment given to the Sheriffe alone and to distraine for this is illegall and not warranted by any President The power of imprisoning is illegall and contrary to divers Statutes and not warranted by the Presidents That the perclose of the Writ the practice of it is contrary to it self and oppositū in objecto If this Writ were legall yet the manner of assessment by the Sheriffe as it is certified is not warranted by the Writ So consequently this summe cannot bee demanded of the Defendant by vertue of this Writ That the Certiorari and Scire facias issued not out legally and so consequently no judgement can bee given against the Defendant thereupon For the first point that this Writ of 4. Augusti 11. Car. is against the Common law my Reasons are these Because that this is the first Writ since the Conquest that went to any Inland County to prepare a ship with men and munition for ought appeareth by any Record that hath been shewed and where there was never any President before by the rule of Master Littleton fol. 23.
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
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
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
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