Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	case_n	court_n	writ_n	2,874	5	9.1804	5	true

Text snippets containing the quad

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

the businesse as I desire And if my Opinion be required it is for the Plaintife JO DENHAM Serjeants-Inne in Fleetstreet 26. Maii 1638. His second Certificate directed to the Lo Chiefe Iustice Bramston 28. Maii 1638. My Lo VNderstanding that some misconstruction was taken by some in the declaration of mine opinion which I desired your Lordship the last Saturday to deliver in my name for farther satisfaction therein although I was most desirous to have passed my Vote in silence in this work of w●igh● by reason I heard not the last foure Arguments yet I delivered my opinion for the Plaintife which I took to be Hampden by reason it appeared by the Record that hee comming in upon Processe Queritur se colore praemissorum graviter vexari hoc minus juste c. which satisfied me that he was Plaintife And therefore I now declare my opinion for Mr Hampden who did demur I shall onely deliver these two Reasons for maintaining of my Argument THe first is That His Majesty is Sola suprema Iustitia regni And the rule of the Law is and hath alwayes been That his Majesty can doe no wrong And thereupon ariseth another Rule in our Law which I give for my second Reason That the Kings Majesty being of an incorporate capacity can neither take any lands or goods from any of his Subjects but by and upon a Judgement of Record which according to our daily experience in the Exchequer there must precede some Judgement in that or some other Court of Record whereby His Majesty may be entituled either to the Lands or goods of a Subject As namely where seisures of goods of a Subject is made for His Majesty either upon Outlawries Attainders or matters of the like nature as in Cases of Seisure in the Court of Exchequer where Seisures are given by the Statute yet without a Judgement in that Court upon a tryall for the King the goods are not to be recovered to the use of the King as forfeited Upon consideration whereof and comparing the same with His Majesties Royall Writ I find no Judgement thereupon had or given which were the chiefest reasons of my opinion for Mr Hampden 28. Maii 1638. FINIS The Argument of Sir George Crooke Knight one of the Judges of the Kings Bench upon the case of the Scire facias out of the Exchequer against Iohn Hampden Esquire decimo quarto Aprilis Anno Domini 1638. The Case is this upon the Record THe King by Writ under his great Seale dated 4to Augusti anno 110 of his reigne directed to the Sheriffe of the County of Bucks and to all the men of that County commandeth them in these words Quia datum est nobis intelligi Quòd Praedones quidam Pirati ac maris Grassatores tam nominis Christianae hostes Mahumetani quàm alii congregati Naves ac bona ac mercimonia non solùm Subditorum nostrorum verùm etiam Subditorum amicorum nostrorum in mari Quòd per gentem Anglicanam ob olim defendi consuevit nefariè diripientes spoliantes ad libitum suum deportavere hominesque in eisdem in captivitatem miserrimam mancipantes Cumque ipsos conspicimus navigium indies praeparantes ad Mercatores nostros ulterius molestand ' Et ad regnum gravand ' nisi citiùs remedium apponatur eorumque conatum viriliùs obvietur Consideratis etiam periculis quae undique his guerrinis temporibus imminent Ita quòd Nobis Subditis nostris defensionem maris regni omni festinatione quâ poterimus accellerare convenit Nos volentes defensione regni tuitione maris securitate Subditorum nostrorum salva conductione navium merchandizarum ad regnum nostrum Angliae venientium de eodem regno ad partes exteras transeuntium auxiliante Deo providere Maximè cum Nos Progenitores nostri Reges Angliae Domini maris praedicti semper hactenus extiter plurimum nos laeder ' si honor iste Regius nostris temporibus depereat aut in aliquo minuatur Cumque onus istud defensionis quod omnes tangit per omnes debeat supportari prout per legem consuetudinem regni Angliae fieri consuevit Vobis praefatis Vicecomitibus Ballivis Burgens Maioribus probis hominibus omnibus aliis quibuscunque supramencionat ' in Burgis Villis Villatis Hamlettis locis supradictis eorumque membris in fide ligeancia quibus nobis tenemini sicut nos honorem nostrum diligitis Necnon sub forisfactur ' omnia quae nobis forisfacere poteritis firmiter injungemus Mandamus quòd unam navem de guerra portagii 450. dolior ' cum hominibus tam magistris peritis quàm marinariis valentior expertis centum octoginta ad minus Ac tormentis tam majoribus quàm minoribus pul●●● tormentario ac hastis telis aliisque armatoriis necessariis pro guerra sufficien ' Et cum duplici Escippamento necnon victualibus usque ad primum diem Martii tunc proximè sequentem ad tot homines competen ' ab inde i● viginti sex septiman ' ad custagia vestra tam in victualibus quàm homin ' salariis aliis ad guerram necessariis per tempus 〈◊〉 super defensionem maris in obsequio nostro in Comit ' custodis maris cui custodiam maris ante praedict ' primum diem Martii committemus prout ipse ex parte nostra dictaverit moratur parari Et ad portum de Portsmouth citra dictum primum diem Martii duci faciatis Ita quòd sint ibidem eodem die ad ultimum ad proficiscend exinde cum navibus nostris navibus aliorum fidelium Subditorum nostrorum pro tuitione maris defensione vestrum vestrorum repulsioneque debellationeque quorumcunque Mercatorum nostrorum alios Subditos fideles praedictos in Dominia nostra ex causa Mercatur ' se divertentes vel abinde ad propr ' declinantes super mare gravare seu molestare satagent ' assignavimus autem te praefatum Vic' Bucks ad assidend ' omnes homines in villis de Agmundesham Wendov ' Marloe magna in omnib●s aliis Villis Villatis Burgis Hamlettis aliis ●ocis-in Com' Bucks terrae tenentes in eisdem navem vel partem navis praed ' non habentes● vel in eadem non deservientes ad contribuend ' expens erga provisionem praemiss necessar Et super praedictas Villas Villatas Burgos Hamlettas locos cum membris eorundem sic ut praefertur assidend ● ponend ' viz. Quemlibet eorum super statum suum facultates suas portiones super ipsos assessat ' per districtiones aliosve modos debitos levand' Collectores in hac parte nominand ' constituend ' Ac omnes eos

victualls and munition and for such time as his Majesty shall thinke fit for the defence and safeguard of the Kingdome from such danger And that his Majesty may compell the doing thereof in case of refusall and refractorinesse and that in such case his Majesty is the sole Judge of the danger and when and how the same is to bee prevented and avoided To this opinion I confesse I then with the rest of the Judges subscribed my hand But I then dis-assented to that opinion and then signified mine opinion to bee that such a charge could not bee laid by any such Writ but by Parliament and so absolutely in that point one other did agree with mee and dissent from that opinion which was after subscribed and some others in some other particulars from that which was subscribed But the greater part seeming to bee absolutely resolved upon that opinion some of them affirming that they had seene divers Records and Presidents of such Writs satisfying them to be of that judgement I was pressed to subscribe with them for that the greater opinion must involve the rest as it was said to bee usuall in Cases of references And that the lesser number must submit to the opinion of the more although they varied in opinion as it is in our Courts if three Judges agree in opinion against one or two where there is five Judges judgement is to be entred per Curiam if the major part agree and the others are to submit unto it So in Cases of conference and certificate of their opinions if the greater part did agree and subscribe the rest were to submit their opinions And this by more ancient Judges then my selfe was affirmed to bee the continuall practice and that it was not fit especially in a Case of this nature so much concerning the service of the King for some to subscribe and some to forbeare their subscription And that although wee did subscribe yet it did not bind any but that in point of judgement if the Case came in question judicially before us we should give our judgements as wee should see cause after the hearing of Arguments on both sides and not to be bound by this sudden resolution Hereupon I consented to subscribe but I then said in the meane time the King might be mis-informed by our Certificate under our hands conceiving us all to agree together and give him this advice under our hands and not know that there was any that dissented or was doubtfull But it was then said the King should bee truly informed thereof And thereupon we that did dissent did subscribe our hands with such protestations as aforesaid onely for conformity although contrary to the opinion I then conceived But this being before Arguments heard of either side or any Presidents seen I hold that none is bound by that opinion And if I had been of that opinion as was subscribed yet now having heard all the Arguments of both sides and the Reasons of the Kings Councell to maintain this Writ and why the Defendant is to bee charged and the Arguments of the Defendants Councel against the Writ and their Reasons why the Defendant should not bee charged to pay the mony assessed upon them And having duly considered of the Records and Presidents cited and shewed unto mee especially those of the Kings side I am now of an absolute opinion that this Writ is illegal declare my opinion contrary to that which is subscribed by us all And if I had been of the same opinion as was subscribed yet upon better advisement being absolutely settled in my judgement and conscience in a contrary opinion I thinke it no shame to declare that I doe retract that opinion for Humanum est errare rather then to argue against mine owne conscience And therefore now having as I conceived removed these difficulties I proceed to my Argument and shall shew the Reasons of mine opinion and leave the same as I have said to my Lords and Brethren My reasons and grounds that I shall insist upon are these That the command by this Writ of 4. Augusti 11. Caroli to make ships at the charge of the inhabitants of the County being the ground of this suit and cause of this charge is illegall and contrary to the Common law not being by authority of Parliament That if at the Common law it had been doubtfull yet now this Writ is illegall being expresly contrary to divers Statutes prohibiting any generall charge to bee laid upon the Commons in generall without consent in Parliament That it is not to bee maintained by any Prerogative or power Royall nor allegation of necessity or danger That admitting it were legall to lay such a charge upon Maritine parts yet to charge an Inland County as the County of Bucks is with making ships and furnishing them with Masters Mariners and Souldiers at their charge which are farre remote from the Seas is illegall and not warranted by any former President c. I shall examine the Presidents and Records cited to warrant this Writ which have been all the principall grounds of the Arguments to maintaine the same And I conceive there is not one President nor Record in any precedent time that hath beene produced and shewed unto mee that doth maintaine any Writ to lay such a charge upon any County Inland or Maritine I will examine this particular Writ and the severall parts thereof and doe conceive that it is illegall and not sufficient to ground this charge upon the Defendant The motives of this Writ are not sufficient to cause such a Writ to be sent The command of the Writ to prepare a ship at the charge of the inhabitants with munition and men is against the Common law and Statutes That to lay a charge of finding victuals and wages of Souldiers and Mariners is illegall and contrary to the Common law and divers Statutes The power of assessment given to the Sheriffe alone and to distraine for this is illegall and not warranted by any President The power of imprisoning is illegall and contrary to divers Statutes and not warranted by the Presidents That the perclose of the Writ the practice of it is contrary to it self and oppositū in objecto If this Writ were legall yet the manner of assessment by the Sheriffe as it is certified is not warranted by the Writ So consequently this summe cannot bee demanded of the Defendant by vertue of this Writ That the Certiorari and Scire facias issued not out legally and so consequently no judgement can bee given against the Defendant thereupon For the first point that this Writ of 4. Augusti 11. Car. is against the Common law my Reasons are these Because that this is the first Writ since the Conquest that went to any Inland County to prepare a ship with men and munition for ought appeareth by any Record that hath been shewed and where there was never any President before by the rule of Master Littleton fol. 23.

assessis onerand Ideo consideratum est per eosdem Barones quod praedictus Iohannes Hampden de eisdem viginti solidis oneretur inde satisfaciat In the matter and substance thereof and in that it was conceived that Mr Hampden was any way chargeable is against the Laws of the Realme the right of Property the liberty of the Subjects and contrary to former Resolutions in Parliament and to the Petition of Right These Votes were afterwards transmitted by the House of Commons to the Lords and delivered by Mr St Iohn now his Majesties Solicitor generall at a conference of both Houses of Parliament held 16. Car. 1640. Die Mercur. 20. die Ian. 1640. It was resolved by the Lords upon the question Nemine contradicente THat the Ship-writs the extrajudiciall opinions of the Judges therein both first and last and the Judgement given in Mr Hampdens Case and the proceedings thereupon in the Exchequer Chamber are all illegall and contrary to the Lawes and Statutes of this Realme contrary to the Rights and Proprieties of the Subjects of this Realme contrary to former Judgements in Parliaments and contrary to the Petition of Right Likewise resolved upon the Question Nemine contradicente THat the extrajudiciall opinions inrolled in the Exchequer Chamber and in other Courts concerning Ship-money and all the proceedings thereupon are illegall in part and in whole and contrary to the Laws and Statutes of this Realm contrary to the rights and proprieties of the Subjects of this Realm and contrary to former Judgements in Parliaments and contrary to the Petition of Right Die Veneris 26. die Februarii 1640. VPon the report of the Right Honourable the Lords Committees appointed to consider of the way of vacating of the Judgement in the Exchequer concerning Ship-money It was ordered by the Lords Spirituall and Temporall in the high Court of Parliament assembled That the Lord Keeper or the Master of the Rolls the two Lo Chiefe Justices and the Lo Chiefe Baron and likewise the Chiefe Clerke of the Star-chamber shall bring into the Upper House of Parliament the Record in the Exchequer of the Judgement in Mr Hampdens Case concerning Ship-mony and also the severall Rols in each several Court of K. Bench Common Pleas Exchequer Star-chamber and Chancery wherein the Judges extrajudiciall opinions in the Cases made touching Ship-money be entred and that a Vacat shall be made in the Upper House of Parliament of the said severall Records And likewise the Judgement of Parliament touching the illegality of the said Judgements in the Exchequer and the proceedings thereupon and touching the illegality of the extrajudiciall opinions of the Judges in the said severall Courts concerning Ship-money be annexed and apostiled unto the same And that a Copie of the judgement of the Parliament concerning the illegality of the said Judgement in the Exchequer and the said extrajudiciall opinions of the said Judges concerning Ship-money be delivered to the severall Judges of Assize And that they be required to publish the same at the Assizes in each severall County within their Circuits and to take care that the same be entred and inrolled by the severall Clerks of Assizes And if any entry be made by any Custos Rotulorum or Clerke of Assize of the said Judgement in the Exchequer or of the said extrajudiciall opinions of the Judges that severall Vacats be made thereof per judicium in Parliamento And that an Act of Parliament be prepared against the said Judgement and extrajudiciall opinions and against the proceedings touching Ship-money Memorandum quod vicesimo septimo die Febr. 1640. Annoque regni Regis Dn̄i nostri Caroli Angliae decimo sexto VAcatur istud Recordum et Iudicium inde habitum per considerationē et judicium Dn̄orum Spiritual et Temporal in Curia Parliam et irrotulamentum ejusdem cancelatur Memorand quod vicesimo septimo die Feb. prae● IStud Irrot. et omnia et singula in eodē contenta et expressa vacantur per judicium Dn̄orum Spiritualium et Temporal in Curia Parliam ANd that all the Rolls be rased crosse with a pen and subscribed with the Clerke of the Parliaments hand All which was accordingly done in open Court After this it was resolved upon the Question Nemine contradicente THat the resolutions of the Judges touching the Shipping-money and the Judgment given against Mr Hampden in the Exchequer and all the proceedings thereupon are against the Great Charter and therefore void in Law Resolved upon the Question Nemine contradicente THat Vacats and Cancellations shall be made of the Resolutions of the Judges touching the Shipping-money And of the inrolments thereof in the severall Court● and of the Warrants for Ship-writs and proceedings therein And the Judgement given against Mr Hampden and proceedings thereupon And that entries be made of those Vacats upon the severall Rolls according to the forme read in the House Eodem die ORdered that these resolutions be added to the former Judgements of this House concerning Shipping-money which the Judges are to publish at the Assizes in their severall Counties and to be entred and inrolled in the severall Counties by the Clerk of the Assizes FINIS In Iudge CROOKES Argument correct PAge 3. l. 13. reade valentioribus l. 15. r. pulvere p. 19. l. 13. r. injusto p. 21. l. 17. r. piccage p. 23. l. 16. r. Commissions p. 28. l. 7. r. proveth p. 29. l. 2. r. proveth p. 30. l. 2. r. Dane-guilt p. 35. l. 6. r. 394. a. p. 57. l. 3. r. Carlile ibid. for 35. r. 30. p. 70. l. penult r. seek for such men l. ult. dele for such men p. 74. l. 7. dele and p. 76. l. 14. continue the line p. 101. in marg. for 2. put 3. p. 106. l. 15. r. so for that cause In Iudge HUTTONS Argument Page 14. l. 10 11. reade and can admit no other p. 16. l. 17. r. to be observed p. 17. l. 19. r. humbly pray your Majesty p. 19. l. 10. r. toll Traverse p. 24. l. 20. r. Gasconie l. ult. other Statutes p 35. l. 21. dele to Petitions p. 36. l. 1. dele for l. 16. r. the record in Court p. 37. l. 6. r. The Parliament roll recites l. ult. r. fourth point p. 44. l. 20. r. these illegall p. 46. l. 9. r. per Gent●m p. 47. l. 2. r. of Argiers l. 12. r. with all the other particulars 48. l. 23. r. to lead the uses of those preceding p. 49. l. 24. r. fol. 68. p. 50. l. 22. r. it is very p. 55. l. 9. dele not p. 57. l. 17. r. Burton 28. Aprilis Anno. 14. Car. Regis Annoque Do. 1638. Buck. ss. This Writ is dated 9. Martii An. 12. Car. The Writ of Mittimus beares date the 5. of May● Anno 13. Car. Regis An. 9. H●n 3. Magna Charta cap. 29. See the l●st chapter of Magna Charta cap. 38. Statute of 25. Edw. 1. Stamford fol. 152. 25. E. 1. ca. 5. The

quos rebelles et contrarios inveneris in praemissis in carcere mancipand ' in eodem moratur quousque pro eorum deliberatione ulterius duxerimus ordinand Et ulteriùs mandamus quòd citra praemiss diligenter intendatis et faciatis et exequamini cum effectu sub periculo incumbente Nolumus autem quòd colore praedicti mandati nostri plus de eisdem hominibus levari faciat quàm ad praemiss sufficiat expens necessar Et quod quisquam qui pecuniam de contributionibus ad praedict ' custag ' faciend ' levaverit eam vel partem inde aliquam penes se detineat vel ad alios usus quovis●quae sito colore appropriare praesumat volentes quòd si plus quàm sufficiat collectum fuerit hoc inter solventes pro rata portionis ipsis contingen ' exsolvat ' By vertue of this Writ Master Hampden is assessed to twenty shillings for his lands in Stoke Mandivill in that County which not being paid is certified amongst others into the Chancery upon a Writ of Certiorari dated 9. Martii anno 12. Car. by a Schedule thereunto annexed And by a Writ of mittimus Teste 5. Maii 13. Car. this Writ of quarto Augusti anno 11. Car. and the Writ of Certiorari and the Schedule annexed is sent unto the Exchequer with a command there to doe for the levying of the summes so assessed and unpaid Prout de jure et secundùm legem regni nostri Angliae fuerit faciend Whereupon a Scire facias issued out of the Exchequer reciting the said Writs to warn Master Hampden amongst others to shew cause why hee should not bee charged with this money Upon this he being summoned appeareth and demands the hearing of those Writs and Schedule which being entred thereupon he demurreth in law And whether judgement upon this whole Record be to be given against Iohn Hampden that he is to be charged or no that is the question for hee is the onely party in this Case And there is no cause why any man should say that the question is Whether judgement should bee given for the King or for the Defendant for as this case is the King is no party to the Record but onely it is a judiciall process out of the Exchequer grounded upon those former Records for the Defendant to shew cause why hee should not bee charged which hath been very elaborately argued by the Defendants Councell who demurred that hee should not be charged and by the Kings Councell very learnedly and elaborately argued that he should be charged This Case is a Case of great weight and the greatest Case of weight that ever wee reade argued by Judges in this place and therefore adjourned into this place for advice of all the Judges For of the one side it is alledged that it concerneth the King in his Prerogative and power Royall And on the other side that it concerneth all the Kings Subjects in their liberties their persons and their estates For which cause it hath made some of us to wish and move among our selves that it might have been by his Majesties favour heard and determined in another place by his Majesty and his great Councell of his Realme Where all conveniencies and inconveniencies might have been considered of provided for and prevented for present and future times and not to bee argued onely by us who are accompted his Majesties Councell at law wherein if any thing be done amisse the fault must light upon us as mis-advising the King therein But seeing that it hath pleased his Majesty that the same should be argued and determined in this place whose pleasure we must obey I must give my best advice upon my oath to the best of my skill wherein I hope not to trench upon his Highnesse Prerogative which wee are all bound by our oaths to the best of our skills to maintain and not to suffer to be diminished nor upon his Royall power but truly to deliver what I conceive the law to bee concerning the Case in question Wherein I must confesse I have been much distracted having heard so learned Arguments on both sides at the Barre and so many Records and Presidents cited on either side But they did not so much move mee for the Councell have of either side pressed such reasons and arguments and cited such Records as they thought convenient for the maintaining of their opinions and perhaps with a prejudicate opinion as I my selfe by mine owne experience when I was at the Barre have argued confidently And as I then thought the law to be of that side for whom I argued but after being at the Bench weighing indifferently all reasons and authorities have been of a contrary opinion And so the law hath been adjudged contrary to that opinion which I first confidently conceived but that which hath moved mee most and maketh me most mistrust mine owne judgement in this Case is That all my Brothers who have all argued upon their oaths and I presume have seene the Records and Presidents cited on either side have all argued one way with whose opinions I should willingly have concurred if I could have satisfied mine owne judgement with their reasons but not being satisfied I have learned that I must not runne with a multitude against mine owne conscience for I must stand or fall unto mine owne Master and therefore I shall shew mine owne reasons and leave my selfe to the judgements of my Lords and others my Brethren And whatsoever shall be adjudged I must submit unto and so doe wish all others and doe now declare mine opinion to be That as this Case is judgement ought to bee given for the Defendant But before I proceed to the Argument I desire to remove two difficulties First that by the Demurrer the danger of the Kingdome is confessed and so to be a Case of necessity To this I answer that the Demurrer confesseth not matters in fact but where the matter is legally set down but if it be not a legall proceeding then the Demurrer is no confessing of the matter in fact This appeares in the Book Case of 5. Hen. 7. fol. 1. and Cook lib. 5. fol. 69. in Burtons Case that a Demurrer is no confessing in matters of fact but where the matter precedent is sufficiently pleaded and laid downe and so it is holden in all our Bookes The second difficulty is that this Case is so resolved by all our opinions under our hands That this Writ was legall which was much pressed by Master Solicitor To this I answer that it is true I have set downe mine opinion under mine hand unto a Case in February 1636. which is that when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger his Majesty may by Writ under the great Seale of England command all his Subjects of this Kingdome at their charges to provide and furnish such number of ships with men

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

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

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-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