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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

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 pre●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 iniqu●●m es● praesumendum in Leg● 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

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

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

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

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 Wri●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 quàm 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 cōmon 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

forces to defend c. The like writs to all other Bishops in the Kingdome A writ to the arrayers of men in the county of Norff. and to the Sheriffe of Norff. commanding them to command all great men and others that had mansions upon or neere the sea coasts to resort with all their families for defence of those coasts The like to the arrayers and to the Sheriffes often other Maritine counties A commission to the Bishop of Durham and others to array men in Durham Cumberland and Northumb. to resist the Scots A writ to William Hench and others to remove with all their families to their houses upon the sea coasts In the time of Richard the second A writ to the Bayliffe of Scardeburgh because the towne was upon the coasts of the sea and in danger by invasion carefully to look to the custody thereof c. A writ to the Maior and Bayliffes of Oxon. to repaire the walls of the town and to compell those that had lands there to contribute to the expences thereof This Record hath beene much urged by Mr. Sollicitor and Mr. Attorney that if the King have such a power to command the walls of a towne to bee repaired much more to command ships to be made which are the walls of the sea and consequently the walls of the Kingdome But this is clearly answered for that it is but a private charge of a private towne and that had beene formerly so walled and for defence safety of the town and none charged but those that have benefit thereby and so proveth nothing to the Case in question One writ to the Sheriffe of Kent and another to the Sheriffe of Essex commanding an ordinance made c. by the King and his Councell for setting up of Beacons and keeping watch about them A writ to the Archbish. of Cant. to command all his Clergy betweene 16. and 60. to bee arrayed and put in armes both horse and foot according to their qualities to bee ready to defend the Kingdome A writ to a Serjeant at armes to array all ships of warre in the Ports of Plimouth and Dartmouth and other parts in the county of Cornwall and to bring them to Hanks hook to go with the Kings Majesties ships In the same Roll are divers other writs to divers other Serjeants at armes to arrest the ships in divers other ports A commission to the Duke Albernale to array men in the West Marches towards Scotland to resist the Scots A writ to the Sheriffe of Derby and Nottingham reciting that the King certainly understood that the Scots intended with a great power to invade the Kingdome commandeth him to proclaim in all parts of his counties that all men betweene 16. and 60. should put themselves in arms competent according to their degrees to bee ready upon two dayes warning to defend the Kingdome The like writs were then directed to the Sheriffes of Lincoln Yorke and Lancaster A writ to the Archbish. of Cant. reciting Satis informati estis qualit inimici nostri Franc. alii sibi adhaerentes cum magna classe navium cum magna multitudine armator ' super mare congregat ' diversas villas per Costeram regni nostri invadere nos regnum nostrum destruere Ecclesiam Anglicanam subvertere intendunt proponunt Thereupon commandeth that the Clergy in that Diocesse be arrayed and armed and to be ready at the Kings command to goe against the enemy The like Writs were then awarded to every Bishop in England A commission to Thomas de Morley and others and to the sheriffes of Norff. and Suff. and to the Bayliffes of great Yarmouth reciting Quòd cum inimici Franc. Brittan Scot. alii sibi adhaerentes inter se obligat magna armat super mare in aestate proxim futur ordinaverunt intendunt regnum invadere c. commandeth to survey that town of Yarmouth to fortifie it Note here also notwithstanding such great danger mentioned and such distance of time yet that no Writs issued to any counties to prepare ships A commission to array all men at armes in the West-Riding in Yorkshire to bee ready to defend those parts The like Commissions to others in nineteen severall counties Commissions for arraying men for defence of the Kingdome if invasion shall be and for repressing of Rebels Commissions unto George Duke of Clarence and others to array men for defence A Commission to Iohn Lord Howard to be Captaine of all the Forces A Commission to Marquesse Mountague to array and put in armes all men beyond Trent A Commission to Rich. Fitz-Hugh c. and to the Sheriffe of Yorkshire to array and cause to bee armed all able persons Abbots and others to be ready to defend the Kingdome A Writ to the Sheriffe of Norff. and Suff. to proclaime in all parts of those counties for that there was like to be open wars between Charles of France and the King of Romans and great Navies are prepared of either side commandeth that watch and ward bee kept and beacons kept to give warning that every man be ready if need be to come and defend the Kingdome A Writ to the Sheriffe of Kent commanding him to proclaime in his county that the King bee certainly informed that the French King hath prepared and put in readinesse a great and strong Navie furnished with men of warre to invade this his Kingdome therefore commandeth all men betweene the age of 16. and 60. to put themselves in armes and to bee ready to defend the Kingdome at an houres warning Cōmissioners went to take view of all the horses of England for service and to survey all the armes to have them all put in readinesse as necessity should require Now it appeareth upon view and examination of all these Records most of them being cited by Mr. Sollicitor and M. Attorney in their severall arguments that there are none to prove the sending of any such Writs to Inland or Maritine counties to prepare such ships although there hath beene many times great danger nor yet any Writs to Maritine towns after the Stat. of 14. E. 3. to charge them to find any ships at their charges So then I conclude this point that I conceive this Writ is not warranted by any former President Now I come to examine the points of this Writ whether the same bee legall and warranted by any former Presidents and I conceive it is not For First the motives mentioned in the Writ are Quia datum est nobis intelligi which is no certain information quòd quidam praedones maris grassatores did take the Kings subjects Merchants and others and carried them into miserable captivity Cumque ipsos conspicimus navigium indies praeparantes ad mercator ' nostros molestand ' regnum nostrum gravand ' All

he to return the same to the Court whereunto he is the immediate officer and the former are not any officers So the Scire fac ' thereupon grounded I conceive is not good also the Scire fac ' to warne Mr. Hampden ad ostend ●i quid pro se habeat c. quare de praedict viginti solid onerare non debet not shewing to whom is uncertaine and insufficient Thereupon I conclude upon the whole ma●er That no judgement can be given to charge the Defendant FINIS Iudgement was given against Mr Hampden by the greater part of the Iudges And when the Iudges had delivered their opinions the Barons gave Iudgement Quod oneret●r c. Afterwards in this present Parliament begun at Westminster 3. Novembris Anno Dom. 1640. the Commons took into their considerations the extrajudiciall opinions of the Iudges the Ship-writs and this Iudgement against Mr Hampden and being read openly in the House after long debate Die Lunae septimo die Decemb. 1640. these foure severall Votes passed upon them without so much as one negative Voice to any of them viz. THat the charge imposed upon the Subjects for the providing and furnishing of Ships and the assesments for raising of money for that purpose commonly called Spip-money are against the Laws of the Realm the Subjects right of Property and contrary to former resolutions in Parliament and to The Petition of Right THat the extrajudiciall opinions of the Judges published in the Star-chamber and inrolled in the Courts at Westminster in haec verba THE CASE Charles Rex VVHen the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger whether may not the King by Writ under the Great Seal of England command all the Subjects in this Kingdome at their charge to provide and furnish such number of Ships with men victuall and munition and for such a time as hee shall think fit for the defence and safegard of the Kingdome from such danger and perill and by Law compell the doing thereof in case of refusall or refractorinesse And whether in such case is not the King the sole Judge both of the danger and when and how the same is to be prevented and avoided C. R. THEIR OPINIONS MAy it please Your most excellent Majesty We have according to Your Majesties command severally and every man by himself and all of us together taken into serious consideration the Case and questions signed by Your Majestie and inclosed in Your Letter And we are of opinion That when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger Your Majesty may by Writ under the Great Seale of England command all the Subjects of this Your Kingdome at their charge to provide and furnish such number of Ships with men victuall and munition and for such time as Your Majesty shall think fit for the defence safegard of the Kingdome from such danger and perill and that by Law Your Majesty may compell the doing thereof in case of refusall or refractorinesse And we are also of opinion that in such case Your Majesty is the sole Judge both of the danger and when and how the same is to be prevented and avoided In the whole and in every part of them are against the Lawes of the Realme the Right of Property and the liberty of the Subjects and contrary to former Resolutions in Parliament and to The Petition of Right THat the Writ following in hae● verba viz. CHARLES by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To Our right trusty and welbeloved Councellor Thomas Lord Coventry Keeper of Our great Seal of England greeting These are to will and require you that for the safegard of the Seas and defence of the Realme you issue forth or cause to be issued forth of our high Court of Chancery these ensuing Writs in the forme following with Duplicats of them under Our Great Seale of England unto the Counties Cities Townes and places hereafter ensuing and for so doing this shall be your warrant REx c. Vic. Com. nostri Buck. Ballivis Burgensibus Burgi paroch de Buckingham Maiori Ballivis Burgensibus Burgi de Chepping Wicombe alias Wicombe Ballivis Aldermannis Burgensibus Burgi de Aylesbury ac probis hominibus in eisdem Burgis parochiis membris eorundem in Villis de Agmondisham Wendover Marlowe magna ac in omnibus aliis Villis Burgis Villat Hamlet aliis locis in dicto Com. Buck. salutem Quia datum est nobis intelligi quod praedones quidam Piratae maris Grassatores tam nominis Christiani hostes Mahumetani quam alii congregat Naves bona ac mercimonia non solum Subditorum nostrorum verumetiam Subditorum Amicorum nostrorum in mari quod per gentem Anglicanam ab olim defendi consuevit nefariè diripientes spoliantes ea ad libitum suum deportavere hominesque in eisdem in captivitatem miserrimam mancipantes Cumque ipsos conspicimus Navigium indies praeparantes ad Mercatores nostros ulterius molestand regnum gravand nisi citius remedium apponatur eorumque conatui virilius obvietur consideratis etiam periculis quae undique his guerrinis temporibus imminent ita quod nobis Subditis nostris defensionem maris regni omni festinatione qua poterimus accelerare convenit Nos volentes defensioni regni tuitioni maris securitati Subditorum nostrorum salvae conductioni Navium Merchandizarum ad regnum nostrum Angliae venient ' de eodem regno ad partes exteras transeunt ' auxiliante Deo providere maxime cum nos Progenitores nostri Reges Angliae Domini maris praedict. semper hactenus extiterint plurimum nos taederet si honor iste regnis nostris temporibus depereat aut in aliquo imminuatur Cumque onus istud defensionis quod omnes tangit per omnes debeat supportari prout per legem consuetudinem regni nostri fieri consueverit Vobis praefat. Vicecom Maior Ballivis Aldermannis Burgensibus probis hominibus omnibus aliis quibuscunque supramentionat Villis Burgis Vill Hamlet locis suprad eorumque membris in fide ligeantia quibus nobis tenemini sicut Nos honorē nostr. diligitis necnon sub forisfactur omniumque quae nobis forisfacere poteritis firmiter injungend Mandamus quod unam Navem de guerra portagii quadringent quinquagint doliorum cum hominibus tam Magistris peritis quam Marinariis valentioribus expertis centum octoginta ad minus ac etiam tormentis tam majoribus quam minoribus pulvere tormentario ac hastis telis aliisque armatur necessar pro guerra sufficien cum duplici eskippamento necnon cum victual usque ad primum diem Marcii jam proximè