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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

Prerogative to award such Writs to command men to sustaine such charge or to be contributory to it and to bee distrained or imprisoned for not payment thereof Also I conceive that this is not an Act of Royall power for if it bee illegall to impose such a charge then is it not accounted as a matter of Royall power but as a matter done upon an untrue suggestion and a matter of wrong done and wrong is not imputed to the King for hee can doe no wrong but it is imputed unto them who advised him to this course Royall power I account is to bee used in cases of necessity and imminent danger when ordinary courses will not availe for it is a Rule Non recurrendum est ad extraordinaria quando fieri potest per ordinaria as in cases of Rebellion sudden Invasion and in some other case where Martiall Law may bee used and may not stay for legall proceedings but in a time of peace and no extreme necessity legall courses must bee used and not Royall power Therefore where by the Statute of 31. H. 8. cap. 8. which was made upon suppression of Abbies when Rebellions were begun to bee stirred it is recited That sudden occasions happen which doe require speedy remedies and for lacke of a Statute the King was inforced to use Royall power It was enacted for the reasons therein mentioned That the King by the advice of his Councell therein named two Bishops two chiefe Justices and divers others and the more part of them by his Proclamation might make ordinances for punishment of offences and lay penalties● which should have the force of a Law with a Proviso that thereby no mans life lands or goods should bee touched or impeached so that therein Royall power was fortified by a Statute yet that Statute tooke care that no mans lands or goods should be taken or prejudiced but yet that Statute was thought inconvenient and therefore by a Statute of 1. E. 6. the same was repealed Bracton lib. 2. cap. 24. fol. 55. and the same is cited in Coke lib. 7. fol. 11. in Calvins Case Regis Corona est facere justitiam judicium tenere pacem sine quibu● Corona consistere non potest nec teneri Coke lib. 7. fol. 5. in Calvins Case cited out of Fortescue Rex ad tutelam Legis corporum bonorum erectus est which being so hee cannot take any mans goods or charge them without his assent by any Prerogative or power Royall Also there can be no such necessity or danger conceived that may cause these Writs to bee awarded to all Counties of England to prepare ships at such charge and with such men and munition without consent in Parliament For the Lawes have provided meanes for defence in time of danger without taking this course for that the King hath power to command all or any persons of his Kingdome to attend with Armes at the Sea coasts or any other parts of the Kingdome and also by his officers to make stay or arrest all or any the ships of Merchants and others having ships or as many as hee pleaseth to goe with his Navie to any parts of his Kingdome for defence thereof and to attend those to whom he appointed the guard of the Seas or Sea coasts at such times and places as they should appoint and this hath been alwaies taken and conceived to bee sufficient for defence against any Prince whatsoever and yet the same was in times when the Navie of England was not so strong as now by the blessing of God and good providence of his Majesty it is That this course was then so taken it appeareth by divers Records viz. 23. Ed. 1. m. 4. The Record reciteth that the French King had prepared a great Navie upon the Sea and purposed to invade the Kingdome Et linguam Anglicanam de terra delere and thereupon the King commanded all his ships and men with Armes to be in a readinesse to defend the Kingdome Scot. 10. Edw. 3. m. 16. reciteth that certaine Gallies in the parts beyond the Seas were prepared with provision of men and armes and other necessaries of warre and ready to invade the Land command was that divers ships should be in a readinesse to defend and the ships of the Ports of Ireland to bee sent to England to help to defend the Kingdome Scot. 10. Edw. 3. m. 22. A Writ was to the Bayliffe of Southwales reciting that the Scots and divers others confederating together prepare themselves to armes and ships in a great number and intend to invade the Kingdome command to them was to have one ship ready upon the Sea to defend their coasts Alman 12. Edw. 3. m. 10. A Writ to the Maior of London Quia hostes nostri in Galleis cum multitudine non modica congregati in diversis partibus regni hostiliter ingressi sunt civitatem praedict ' celeriter si possunt invadere proponunt the King commandeth them to shut up the City towards the water and to put all their men in Armes ready to defend c. Alman 12. Edw. 3. m. 13. A Writ to the Bailiffes of great Yarmouth Quia pro certo didicimus quòd hostes nostri Franciae adhaerentes eisdem Gallias Naves guerrin●s in copiosa multitudine in partibus exteris congregarunt eis hominibus ad arma alia arma parare faciunt proponunt se movere versus regnum nostrum navigium regni nostri portus prope mare scituat ' pro viribus destruere idem regnum invadere c. command to the said Towne to prepare foure ships with two hundred and forty men c. At the same time like Writs went out to twenty other Towns upon the Sea coasts Franc. 26. Edw. 3. m. 5. A Writ to the Earle of Hunt and others Quia adversarii nostri Franciae Nos Regnum nostrum invadere machinantes magnum navigium parari fecer ' armari nedum ad Regnum nostrum Angliae subitò attrahend ' ad nos domin ' nostr' totam nationem Anglicanam pro viribus subvertend ' c. commanding them to guard all the coasts of Kent and to array all able men with armes to bee ready to defend the Sea coasts 5. Henr. 4. m. 28. A Commission is to Thomas Morley and others Quòd cum inimici nostri Franciae Britan. Scotiae alii sibi adhaerentes inter se obligat magna potentia armat ' super mare in aestate proxim ' futur ' ordinaverunt intendunt Regnum nostrum Angliae invadere c. commanding them to array men with armes to defend c. 4 Henr. 8. pars 2. the King by Proclamation into the County of Kent sheweth that it is come to his knowledge of certaine that his ancient enemy the French King hath prepared and put in readinesse a great and strong Navie furnished with men of warre to invade the Kingdome of England the

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

henceforth we shall take such manner of aides taxes or prizes but by the common consent of the Realme and for the common profit thereof Saving the ancient aides and prizes due and accustomed Observe the words in this Statute that for no businesse he shall take any manner of aides taxes or prizes but by the common consent of the Realme The words of this Statute are so plaine for no businesse as they include all and admit any exposition Then in 34. Edw. 1. cap. 1. It is enacted No tallage nor aide shall be taken or levied by us or our heires in our Realme without the good will and assent of Archbishops Bishops Earles Barons Knights Burgesses and other Free-men of the land Then by a Statute made in the fourteenth yeare of King Edward the third it is in this manner That whereas the Prelates Earles Barons and Commons of our Realme of England in our Parliament holden at Westminster upon Wednesday in Mid-lent in the fourteenth year of our Raigne over England and the first over France have granted to us of their free and good will in aide of the speed of our great businesse which we have to doe aswell on this side the Sea as beyond The ninth sheafe the ninth fleece and the ninth Lamb to be taken by two years next comming after the making of the same And the Citizens and Burgesses of Cities and Boroughs the very ninth part of all their goods And the foraine merchants and others which live not of graine nor of flocke of sheepe the fifteenth part of their goods to the value We willing to provide for the indempnitie of the said Prelates Earles and other of the Communalty and also of the Citizens Burgesses and Merchants aforesaid will and grant for us and our heires to the same Prelates Earles Barons and Commons Citizens Burgesses and Merchants that the said grant which is so chargeable shall not another time be had forth in example nor fall to their prejudice in time to come nor that they be from henceforth charged nor grieved to make any aide or to sustaine the charge if it be not by common consent of the Prelates Earles Barons and other great men and Commons of our said Realm of England and that in Parliament Then by the Statute made in the five and twentieth year of King Edward the third cap. 8. it is enacted That no man shall be compelled to finde men of armes holberts or archers other then such as hold by such services if it bee not by common consent and grant in Parliament for that is against the common right of the Realme Which last words for that is against the common right of the Realme are in the Parliament Roll but left out of the printed books of the Statutes And this Act of Parliament is recited by an Act of Parliament made in the fourth yeare of the raigne of King Henry the fourth the 13. Chapter and enacted and observed in all things Then in the first yeare of King Richard the third and the second chapter it is recited That the Commons of this Realme by new and unlawfull inventions have beene put to importune charge especially by a new imposition called A benevolence It is enacted That the Subjects Communalty of this Realm from henceforth in no wise be charged by any such charge or imposition called a Benevolence nor by any other such charge Then comes the Act of Parliament made in the third yeare of the Kings Majesties owne raigne called The Petition of right whereby the Statute made in the time of King Edward the first commonly called the Statute De tallagio non concedendo is mentioned and many particular incroachments recited to be made upon the liberties of the Subject And many particulars being recited it is required to be enacted That no loane of money against the will and good liking of the Subjects Billeting of Souldiers and Mariners in mens houses there to sojourne against their wills Commissions of Martiall laws in times of peace They doe therefore humbly pray you that no man be hereafter compelled to yeeld or make any gift loan benevolence tax or such like charge without common consent by act of Parliament whereunto his Majesty consented with this subscription Soit Droit fait come est Desire And these are the Statutes whereupon I relie that this charge cannot be laid upon the Subject by this Writ onely without the aide of some act of Parliament Now for authorities of Booke cases and other authorities concurring herewith First by the Case of 13. Hen. 4. fol. 14 15 and 16. which were long debated It appeares that the King had granted an office for the measuring of Cloth in London and a power to take so much for his labour There was a Writ under the great Seale directed to the Mayor of London commanding him to put the Patentee in possession and the Patentee had put it in practice and divers had paid money to the Patentee And yet after upon a returne that there was no such office it is adjudged a good returne And it is there agreed That the King cannot by his Patent create or erect a new office in charge of his people without the speciall assent of the Commons And the King cannot grant to any that he shall take of every Carriage that shall come over such a bridge such a sum And it is said there in the sixteenth leafe that a common charge though it sound to the profit of the people cannot be granted out of Parliament And this in my opinion is a strong case in the point Then see 37. Hen. 8. Broke in Patents placito 100. The Kings Majestie may erect Markets and Faires with tolls incident For that concernes onely such as will buy but the King cannot grant toll Travert nor a Thorow toll nor alter or change Laws or Customes of the Realme nor make land deviseable or gavel-kinde or Borough English or change gavel-kinde or Borough English to be descendable to the heire which is so agreed in divers Books Then in the booke of Fortescue of his commendation of the Laws of England it is thus written in the ninth chapter the five and twentieth leafe The King of England cannot alter or change the Laws of his Realme at his pleasure For why he governeth his people by power not onely Royall but also politique If his power over them were onely Royall thē he might change the Laws of his Realme and charge his Subjects with tallage and other burthens without their consent And such is the dominion which the Civill law purports when they say that the will of a Prince hath the force of a Law But from this much differeth the power of a King whose government over his people is politique for he can neither change Laws without the consent of his Subjects nor yet charge them with strange impositions against their wills Rejoyce therefore O Soveraign Prince and be glad

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

the Law is not conceived to beare any such Writ And Sir Edward Coke in his Commentary upon Littleton fol. 81. saith that where there is no example it is a great intendment that the law will not beare it So I conceive here there never having bin a President before of any such Writ to the Sheriffe and Inhabitants of a County to prepare a ship with men and munition upon any occasion whatsoever that it is against the Common law to award such Writs For that the common law of England setleth a freedome in the Subjects in respect of their persons and giveth them a true property in their goods and estates so that without their consent that is their actuall consent or implicite by a common ordinance which they consented unto by a common assent in Parliament it cannot bee taken from them nor their estate charged And for this purpose the law distinguisheth between bondmen whose estates are at their Lords will and disposition and freemen whose property none may invade charge nor take away but by their owne free consent But here in this Case is a charge laid upon the Subjects without their consent and therefore not warranted by law which is proved by these authorities Coke in his Reports lib. 8. fol. 92. in Francis Case setteth downe this Rule Quod no●trum est sine facto seu defectu nostro amitti seu in ali●num transferri non potest Master Lambert fol. 24. setting downe the lawes of England which were confirmed by William the Conqueror hath these words Inter alia volumus concedimus quod omnes liberi homines Monarchiae Regni sui praedict ' habeant teneant terras suas bene in pace liberas ab omni exactione injusta ab omni Tallagio not mentioning there injusta Ita quòd nihil ab eis exigatur praeter servitium justè debitum Hereby it appeares there is an absolute freedome from all Tallage 17. King Iohn in Matt. Paris fol. 246. The King doth grant and confirme unto his Barons and Commons inter alia these liberties following Nullum Scutagium vel auxilium ponamus in Regno nostro nisi per Commune Concilium Regni nostri nisi ad redimendum corpus nostrum filium nostrum primogenitum mill ' faciend ' vel ad primogenitam filiam nostram maritand ' By this it appeares what was then conceived to be amongst others their liberties and then confirmed which was that no aide should bee put upon them but by Parliament for the Parliament was then called Commune Concilium That the law is so appeareth by the Treatise written by Fortescue who had been chiefe Justice of England and then Chancellour of England in King Henry the sixth his time when he wrote the booke intituled De laudibus Legum Angliae For fol. 25. cap. 9. hee saith thus That the King of England cannot alter nor change the Lawes of England at his pleasure For principatu non Regali sed et politico ipse p●pulo suo dominatur If his power were Royall onely then hee might change the Lawes Tallagia quoque caetera onera eis imponere ipsis inconsultis but addes That the King of England sine Subditorum assensu Leges mutare non potest nec subjectum populum renitentem onerare impositionibus peregrinis And in his 13. chap. fol. 31. hee compares the King and Subjects of England to the head and body naturall Ut non p●test caput corporis Physici nervos suos commutare neque membris suis proprias vires propria sanguinis alimenta denegare sic nec Rex qui caput corporis politici est mutare potest Leges corporis illius nec ejusdem populi substantias proprias subtrahere reclamantibus eis aut invitis Thus hee in this place but in fol. 84. cap. 36. hee seemes to say In hoc individuo Rex Angliae nec per se nec ministros suos tallagia subsidia aut quaevis onera alia imponit Legiis suis aut Leges eorum mutat aut nova condit sine concessione vel assensu totius Regni sui in Parliamento suo expresso which words seeme so generall that in no case he may doe it So it appeareth by the Booke case 13. H. 4. fol. 14. that the grant of the King which tendeth to the charge and prejudice of his people in generall is not good unlesse by Parliament But it is agreed there that grants of Tolls of Faires of Pontage of Pikage Murage Ferrying or such like which are for the profit good and ease of them that will take benefit thereof and not compulsory to any to pay but to them that will take the benefit of such Faires c. and being very small and reasonable summes the Law doth give allowance unto them but if they were great summes that tend to the charge of the people the Law will judge them void This appears in Sir Edw. Cokes Reports lib. 5. fol. 63. in the Case of the Chamberlain of London That an ordinance made by the Cōmon Councell of London where they have a custome by the said Cōmon Councell to make reasonable ordinances to bind all within the City concerning Clothes to bee brought to Blackwell Hall there alwaies to be viewed measured searched before they were sold a penny appointed for the Officer that did that service That such a charge was reasonable for that it was for the publick benefit of the City and Common-wealth And a pecuniary penalty laid for not performance of that ordinance was allowed Ibid. fol. 64. in Clarkes Case is resolved That an ordinance made by the assent of the Plaintiffe himselfe and other Burgesses for the Towne of Saint Albons of a small taxe upon the inhabitants of the Town towards the erection of the Courts other necessaries for the Terme to bee kept there It was allowed to bee good and did bind the Plaintiffe being by the Plaintiffes own consent and for the publick good of the Town Also Coke lib. 11. fol. 86. in Darcies Case citeth this out of Fitzherberts natur brev. fol. 122. That every grant of the King hath this condition in it tacite or expresse Quòd patria per donationes illas magis solito non oneretur seu gravetur And as by grant the King cannot charge his people so neither can hee by Writ lay any charge upon his people but by their consent or where they have apparent benefit thereby And that is the reason of the Writ in the Register fol. 127. Fitzh. nat. brev. fol. 113. where by breach of the Sea walls any inundation is of the Country the King who is Pater patriae and taketh care for the good and safety of his people sendeth out his Commissioners to enquire by whose default any such breach happened and to cause all that had lands and commons neere adjoyning which may have benefit of inclosed marshes or losse by such inundation to be contributory to the

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

these and those following I conceive are not sufficient motives and were never in any President before to have a royall Navie prepared for the former Presidents are that great Princes in open times of hostility had provided great Navies with munition and souldiers with intent to invade the Kingdome as appeareth by the former Presidents and against such provision it was necessary to provide a royall Navie the Kings ships and all the ships of the Kingdome to be gathered to withstand them but to make such preparation against Pirats it was never put in any Writ before for when Pirats infested the seas they came as it were by stealth to rob and to doe mischiefe and they never dare appear but when they may doe mischiefe and escape away by their lightnesse but against them the usuall course hath beene that the Admirall or his Deputy with some few ships have scoured the coasts and not to imploy a whole Navie and this appeareth by the Record of 25. E. 1. m. 9. where Will. Leyborne the Admirall was appointed upon such an occasion with ten ships to lye upon the seas and the usuall practice hath beene when they hover upon the seas by sending a few ships of war to scatter them and to make them absolutely to flye away there is no doubt of loss of the dominion of the seas by any act that Pirats can do neither convenient that every county of the Kingdom should prepare ships against them The command of this Writ to provide a ship of 450. tuns at the charges of the county furnished with Masters and Mariners which is impossible for them to doe for the reasons before alledged and therefore is illegall and not warranted by former President The command of the Writ to find wages for the souldiers for 26. weeks after they come to Portsmouth when they are out of their counties and in the Kings service is illegall being against the course of Presidents in divers times and against divers expresse statutes and this appeareth by divers Records 15. Ioh. In the Writs of Summons of the Tenants by Knights service it is expresly mentioned that after their 40. daies service for so many daies they were to doe service by their tenures they should be satisfied ad denarios Regis Pasch. 26. E. 1. amongst the Writs of the Exchequer it is there set down that the footmen of Cheshire being 1000. which were appointed to goe to the defence of the borders upon Scotland would not stirre out of the county without their wages and there is set downe that one therein named was sent down with monie to pay the said footmen Mich. 26. E. 1. Inter Brevia irretornab in the Exchequer by reason of the invasion of the Scots many thousands of souldiers were taken from divers parts of the Kingdome ad vadia Regi● and there mentioned that Clerkes were sent downe with mony to pay the souldiers of severall counties their wages In the Exchequer in accompt the wages of land souldiers for severall counties and the wages of Mariners are set downe what the wages that was paid came to by day both by sea and land Inter Brevia in the Exchequer the Wardens of the Marches of Scotland signified unto the Barons that the men of Cumberland and Westmerland appointed for the defence of the Marches would not stirre out of their counties without wages whereupon order was given for wages for them Commissions went out to pay the souldiers which served out of severall counties for defence against Scotland In the Exchequer it was ordered in Parliament that where some souldiers had received of some of the Kings officers monies for their wages were fain to give bond for repayment that those bonds should all be redelivered But to clear all doubts the expresse statute of 18. E. 3. c. 7. is That men of armes Hoblers and Archers chosen to go in the Kings s●rvice out of England shall be at the Kings wages from the time they goe out of their counties where they were chosen untill the time they come home againe Those that had any grant of lands from the King and those that had any offices of the grant of the King are to serve the King in his wars but in both it is appointed they shall have wages from the time they come from their houses untill they shall returne It is enacted That no Captaine receiving souldiers serving by sea or by land shal receive any wages for more souldiers or more time then they serve and shall enter the daies of their entring into wages upon pain c. All which Records and Statutes do prove that the souldiers should be at the Kings wages therefore this command for souldiers wages for 26. weekes when they goe from Portsmouth is illegall and expresly against the said Statutes and so the assessment being entire as well for the wages as the other charges I hold to bee clearly illegall and not to be demanded That the command of this Writ to the Sheriffe to assesse men at his owne discretion is not legall nor warranted by the Presidents for the Presidents are commonly that assessements for contribution for making or setting out of ships have been by Commissioners which by presumption had knowledge of such matters as commonly Sheriffes have not Also this leaveth to the Sheriffe too great a power to value mens estates as to inhaunce whom he will to favour whom he will That the power to the Sheriffes Maiors of townes c. to imprison especially as it is used for non-payment of the mony is illegall and expresly against divers Statutes for it is provided by Magna Charta c. 29. Quòd nullus capiatur vel imprisonetur nec super eum ibimus nisi per judicium Parium suor ' vel per legem terrae Also in 5. Ed. 3. cap. 9. that none shall bee attached or his goods seized contrary to the forme of the great Charter Also by the statute made Mich. 37. E. 3. cap. 18. it is recited that by that great Charter none should bee taken or imprisoned but by due processe of law yet by colour of this Writ the Sheriffe may imprison any person yea any Peere of the Realm for although Peers are not to be arrested upon ordinary process between party party as it was resolved in the Countesse of Rutlands case in Cok. l. 6. fol. 32. yet for a contempt and upon processe of contempt which is alwaies for the King any Peere may be imprisoned as it is resolved by all the Lords and all the Judges in the Star-chamber in the Earle of Lincolnes case and so the Sheriffe by colour of this Writ may arrest any Peer as for a contempt in not paying but by the Booke case 2. E. 3. fo. 2. it is resolved that a Writ to imprison one upon suggestion before hee be indicted and without due processe of law was illegall so for the case I hold this Writ to be illegall The last