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cause_n	great_a	king_n	war_n	4,472	5	6.2395	4	true

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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

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

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