Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	king_n	realm_n	1,598	5	9.5501	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A45252	The arguments of Sir Richard Hutton, Knight, one of the judges of the Common Pleas, and Sir George Croke, Knight, one of the judges of the Kings Bench together with the certificate of Sir John Denham, Knight, one of the Barons of the Exchequer, vpon a scire facias brought by the Kings Majesty in the Court of Exchequer against John Hampden, Esquire : as also, the severall votes of the Commons and Peeres in Parliament, and the orders of the Lords for the vacating of the judgement given against the said Mr. Hampden, and the vacating of the severall rolls in each severall court, wherein the judges extrajudiciall opinions in the cases made touching ship-money are entred.	England and Wales. Court of Exchequer.; Hutton, Richard, Sir, 1561?-1639.; Croke, George, Sir, 1560-1642.; Denham, John, Sir, 1559-1639.; Hampden, John, 1594-1643, defendant.; England and Wales. Parliament.; England and Wales. Sovereign (1625-1649 : Charles I)	1641 (1641)	Wing H3842; ESTC R16237	74,278	200

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

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

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

Roy command to the Sheriffe De attach the body of the said Robert and he was attached and did appeare And by his Counsell alledged that upon this suggestion the King being not otherwise apprised by indictment or otherwise this suit did not lie for the King and the parties grieved may have their suits And thereupon the Court was advised and took time to speak with the Chancellor to see if he had any matter out of which the said Writ was awarded And afterwards because this Writ was grounded upon a suggestion against the Common Law therefore the said Robert was discharged which is a stronger Case then ours And for these reasons I conclude this Part that no Scire facias ought to be awarded in this case NOw it remains to give answer to that which hath been before objected and spoken of onely by Mr Solicitor that the Judges had before given their opinions to warrant the legality of this charge and subscribed their names First I doe affirme and it doth appear by my Argument that this Case now in question doth not concern nor contradict the matter of the Subscription for the matter whereunto the Subscription was made is That when the good and safety of the Kingdome in generall is concerned and the whole Kingdome in danger That then for the defence of the Kingdome from such danger the King may by Writ impose the provision of Ships with furniture and men But if onely there be Pirats and Robbers of the Sea assembled together by Sea to rob spoile and take the goods and marchandises that are to be brought into the Kingdome and safe conducting of the Merchants from spoile as no other particular thing is alledged in the Writ of 4. Augusti I think it will be granted that this doth not by our opinions inable the King to make such a generall charge upon that occasion But if there were an intended Invasion that known to the Kings Majesty whom it concernes most and upon such an intention in such a case of necessity which is and may be termed a time of such danger as it may be ●it to prepare fo● 〈◊〉 of the Realme Then I am of opinion that in such a case all that hath been said that Necessitas est Lex temporis and Salus Reipublicae est summa lex and then Silent inter arma leges might be just causes for that time onely to make a preparation of Ships And in this case here doth not appeare that there was not any one Ship provided or prepared by any Sheriffe The King is the sole owner and Lord of the Sea and hath power thereof And as it was agreed in a notable Case that was adjudged in the Exchequer Mich. the fourth yeare of King Iames against one Bates wherein I was then of Councell the King may lay an Imposition upon forraine commodities to be brought into this Realme for there was 5. s. laid upon every hundred weight of Currants over and besides the 2. s. 6. d. for poundage And Bates having notice of this Imposition brought in a Ship fraighted with Currants payed the 2. s. 6. d. for poundage but refused to pay the 5. s. for every hundred weight And upon information the Case was argued at the Barre and at the Bench and it wa●●djudg●d that the Imposi●ion was lawfull and that the King in his prerogative had totum dominium maris and that all the Ports were the Kings and that the King had sole power to restraine or forbid the going beyond the sea the sole appointment into what Countries the Merchants should or might trade and to appoint into what countries they should not trade And for these respects the King was to maintaine the Ports to provide for the safety of the Merchants and to cleare and scowre the narrow Seas from Pirats and Robbers for the doing whereof was added the tonnage and poundage by grant in Parliament Lastly these sudden opinions when Judges heare no Arguments are of no such force as to bind them to continue the same opinion But that when they shall have heard Arguments and be better informed they may alter and change which hath usually happened Besides as it is very well knowne wee were not all of opinion but the greater number then concurring the Subscription was for conformity as sometimes is used in such cases Lastly it hath been objected that the Defendant by his generall Demurrer hath confessed all the matters to be true which are surmised in the Scire facias To this it is answered that a Demurrer confesseth the matters of fact which are sufficiently alledged but such matters in fact as are not sufficiently alledged those are not confessed but left to the judgement of the Court See these Cases so adjudged and resolved in these Books Coke Lib. 4. fo. 43. in Hudsons Case matter sufficiently alledged est confesse And according to this it is agreed in Hindes Case in the same Book fol. 71. The very expresse Case is that of Birton upon Usury which was Anno 33. 34. Eliz. where it is adjudged that a Demurrer confesseth nothing that is insufficiently alledged as where a matter of usury is alledged and is not so sufficiently alledged that it appeares to be Usurie the Demurrer doth not confesse that to be Usurie as is pretended So likewise in this case the Demurrer general doth not nor can supply the defect of the matter which should have been comprised in the Writ of 4. Augusti The Demurrer confesseth that there was such a Writ but doth neither confesse the lawfulnesse thereof nor the defect of the insufficient alledging of any matter which should have beene contained therein And thus with as much brevity and perspicuity as want of memory and other infirmities which attend upon my age would suffer me and without either preamble or protestation I conclude with that which my brother Berkley used in the beginning of his speech That the people of this Realme are Subjects and not slaves Free-men and not villeins and therefore not to be taxed De alto basso and at will but according to the Laws of this Kingdome And therefore I conclude that neither for the matter nor for the manner this Writ of Scire facias brought in this Court of Exchequer upon the tenour thereof can be maintained And therefore in my opinion I advise the Barons to give judgement accordingly for the Defendant This is the same which I did deliver in my Argument in the same manner that I did argue FINIS THE CERTIFICATE OF Sir JOHN DENHAM Knight One of the Barons of the Exchequer concerning SHIP-MONEY 26. Maii Anno Do. 1638. MAy it please your Lordships I had provided my selfe to have made a short Argument and to have delivered my Opinion with the Reasons but by reason of want of rest this last night my old disease being upon me my sicknesse and weaknesse are greatly increased insomuch that I cannot attend

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

or not And I am of opinion that it doth not lye but that judgement ought to be given for the Defendant both for the matter and for the manner of this proceeding And to the intent that whatsoever I shall say may the better be understood I will observe this order in my Argument First I will prove by severall Acts of Parliaments and by some Authorities in books and by some reasons that the Kings Majesty cannot at this day impose any such charge in generall upon all his Subjects as this is without their consent in Parliament Secondly I will give answer to such objections as have beene made by the Kings Counsell and by some of my Brothers against these Statutes and to such cases as they have applyed to prove the contrary Thirdly I will answer those precedents which have beene insisted upon to prove that the like charge hath beene before imposed by the Kings progenitors Kings of this Realme And I will shew some precedents of more force to the contrary Fourthly I will insist upon the disuse of the attempt of imposing any such generall charge by this way at any time since the beginning of the raigne of King Henry the fourth which is almost two hundred and fifty yeares since And many other courses and kinds of attempts for levying of monies And this way not attempted till of late Fiftly I will insist upon the Writ of 4. Augusti Anno 11. Car. That the matter therein comprised doth not containe sufficient warrant for the levying of such contribution And that the matter which is added in the Mittimus cannot supplie or make the Writ of 4. Augusti sufficient And that the Scire fac ' it selfe is insufficient Lastly I will give some answer to that which heretofore was objected by Mr. Solicitour That the Judges had formerly by a subscription to some propositions which they were required to answer his Majesty as he conceived resolved this point already My Brother Iones hath beene long and I will observe my owne method and answer him by my argument And I will contract that which I have to say in as short a manner as I can And for the first point and reason which I doe insist upon is That this power to charge the people of this Realme at this day by the King onely is taken away bounded and limited by diverse Acts of Parliaments to be done by consent of the Subjects and onely in Parliament First by the Statute of Magna Charta it is enacted that no Free-man shall be taken or imprisoned or disseised of his Free-hold or of his liberties or Free-customes or out-lawed or exiled nor by any means destroyed neither will we come upon him or send him to prison but by lawfull judgement of his Peeres or by the Law of the Land This Statute as appeares by the Inspeximus of King Edward the first sonne of King Henry the third was made of the free good will of the King for the good of the Church and for the amendment of the Kingdome And if you looke upon the last Chapter of Magna Charta cap. 38. the King grants that he and his heirs will for what concernes him well observe and keep the same in his Kingdome and will that aswell Clerkes as Lay-men shall observe the same And this was not done for nought for the Clergie and the Communalty did give to the King for these liberties the fifteenth part omnium mobilium as appeares in the same Chapter And further in the said Chapter it is contained that the said King for him and his heires did grant that neither he nor his heires should doe any thing nor procure to be done any thing whereby these liberties thus granted might be infringed or diminished And that if any thing were done by any other to the contrary it should bee void and held of no force See the Statute And then King Edward the first his Son in the five and twentieth year of his raigne The very first Chapter of that Parliament confirmed the Charter of Magna Charta for the honour of God and of the holy Church and profit of the Realm with writs to all Justices Sheriffes and others That they cause the said Charter of liberties to be published And to declare to the people that we have confirmed them in all points And that our Justices Sheriffes and other Ministers which under us have the Laws of our land to guide shall allow the same That is to wit the great Charter as the Common Law and the Charter of the Forest for the wealth of our Realme And where my brother Berkley did say in his Argument that the words of the Statute of Magna Charta were quod habeant libertates suas but that there were no particular liberties mentioned which were libertates suas To that the answer is easie for it is in the Preamble and the first Chapter Habeant libertates subscriptas tenendas in Regno nostro Angliae tenend. eis haeredibus suis imperpetuum And it cannot be denied but that the clauses of the writ of 4. Augusti which gives not onely power to distraine but if any be rebellious or contrariant to the premises to commit them to prison there to remaine untill the Kings Majestie shall for their deliverance thinke fit to order otherwayes are directly contrary to the expresse letter of this Statute of Magna Charta and so consequently against the law of the Land for this Statute is made by the said Statute of the five and twentieth of King Edward the first the law of this Land This Statute of Magna Charta hath beene ever since and now is put in use for the great priviledge of the triall of the Peers of this Realme for Treason or Felony For there Peeres is grounded upon the words of this Statute viz. per legale judicium parium suorum as you may see in Stamford in his booke of the Pleas of the Crowne fol. 152. Then by the Statute of 25. Edw. 1. cap. 5. It is enacted And for as much as diverse people of our Realme are in feare That the aides and taxes that they have given to us before-time towards our warres and other businesse of their owne grant and good will howsoever they were made might turne to a bondage to them and their heires because they might be at any other time found in the Rolls And likewise the prizes taken by our Ministers through the Realme we have granted for us and our heires that we shall not draw any such aides taxes or prizes into a custome for any thing that hath beene done before bee it by Roll or any other Precedent that may bee found And in the same Parliament in the sixt Chapter it is thus We have granted for us and our heires aswell to Archbishops Bishops Abbots Priors and other folke of holy Church as also to Earles Barons and to all other the communalty of the land That for no businesse from