Weapons wherewith the Subjects of this Realme have beene charged are severall and changed according to the variety of times as things have growne out of use And other manner of provision more serviceable and necessary for which there have beene directions for views and for trayning and disciplining of Souldiers to be prepared for defence that this hath beene in use no man can or ever could deny or affirme the contrary But the Armes wherewith they were charged were their own proper goods And in all the Prerogatives which have beene before by Mr. Attorney generall urged that the King hath interest in mens goods and to execute his writs by his Sheriffes upon mens persons and in their lands for giving possession and for levying amerciaments and fines and power to put some of his Subjects out of their possessions and to deliver the possession therof to others as it appeares in Ploydon in Manxells case which was vouched by Mr. Attorney generall This is very true for this is a thing which the King is bound to doe for the good of his Subjects For as it is agreed in 34. H. 6. fo. 14. The Kings Majesty is bound to keepe his Courts of Chancery and all his other Courts at his own charge And 39. H. 6. fo. 40. The King is bound to doe Law and right to all his Subjects which without these powers and prerogatives could not be performed Out of these and the like of murage and pontage there can no sound argument bee drawne to warrant this provision of Ships and men and furniture for warre when the King will so appoint But I conceive that it hath beene generally agreed by all the Judges nullo contradicente that if this Writ of 4. Augusti which is for provision of a Ship and furniture and men had beene for to have authorized the Sheriffes to have levied monies of the Subjects for that purpose That then the Writ could not have given power to have done it because that would have beene expresly against the Statutes And if that be granted then considering that these Writs to the Sheriffes are accompanied with instructions commanding and directing the levying of money and proportioning what summe is to be raised in every County for that service As in the County of Yorke and in the County of the Citie of Yorke the summe of twelve thousand pounds and the summe of eight thousand pounds for the County of Lincolne And so a proportion of money for every County for that purpose The consequence thereof may be this that this levy which hath obtained the name of Ship-money and wherein no indeavour hath ever beene made for preparing any such Ship or furniture or men as the Writ in it selfe purports is not pursued or warranted by this generall levy of ship money for it is a rule Id quod non fieri potest directe ex obliquo fieri non debet I confesse that divers of the Kings of this Realm have upon some pretended occasions taken upon them by perswasion of some Great men in their time and assumed a Royall and Monarchicall power to levy monies by Commissions and have extended that power very farre whereof you may read That in the seaventeenth yeare of King Henry the eight Cardinall Woolsie was charged to have beene the cause of directing Commissions into all Countries for the levying of the sixt part of all mens goods and the sixt part of their Plate for that the King was then determined to make warre with France and to passe the Sea himselfe This being attempted by inforcing some and sending others to prison it grew to be so generally misliked that the people rose up in divers Countries and thē the King disclaimed that it was done without his Privity The Cardinall charged it to be done first by the consent of the Counsell which they denied then he charged the Judges to be consenting which being untrue the Cardinall tooke it to himselfe And all the Commissions were recalled you may see it at large set downe in divers Chronicles And in the latter times of our gracious Queene Elizabeth upon pretence of want for expeditions in Ireland There was a generall Benevolence required and it went on for a time and so farre as it came to be voluntarily levied in the Innes of Court And I can speake it of my own knowledge I paid a sum I think but twenty shillings others paid likewise But not long after as it was said when the Queene was informed that this Benevolence was expresly against the Statute of Richard the third and against the Laws and distastfull All the monies levied was commanded to be restored and repaied and mine was and the rest was so to others as I heard and doe verily believe and this was attempted by so gracious a Queen And to speak nothing of the Commission dated the thirteenth day of October in the second yeare of our gracious Soveraigne Lord the Kings Majesty for the Loan and levying of the five Subsidies which was effected and acknowledged after not to be warranted by the Laws and Statutes This point is apparent That in time of necessities these Legall or Monarchicall Powers have been assumed in the times of other Kings And hereupon I conclude these points That the Statutes have taken away this power of charging the Subjects of this Realme with any generall and publique Charge Aide or Tallages or burthens for any businesse but onely by their consent in Parliament and no Usage Precedent or Custome if any such have been can by Law take away the force of these Acts of Parliament so long as they stand in force And I doe absolutely beleeve that if the Kings Majesty had not been perswaded by some opinions that this course was warranted by Law and Custome of the Realme that he would not have attempted the same NOw I proceed to the fifth part That the matter which is contained in the Writ of 4. Augusti Anno 11. Car. doth not contain sufficient matter to warrant this levy First the words of the Writ are not any affirmance directly of any danger for they are but Quia datum est nobis intelligi this is but of information and not ex certa scientia which are of more force The other words are but of information or suggestion Then for the matter It containes onely these points That there are many Pirats and Sea-robbers congregated upon the Sea to take away some of our Subjects into miserable Captivity and to hinder our Merchants to bring in their merchandizes and goods and the goods and Merchandizes of the Subjects of our friends comming and traffiquing hither and spoyling of our Merchants And for that the Sea hath bin and ought to be defended by Gentem Anglicanam And they inttending to trouble the Kingdome And we considering the danger every where now imminent and desiring the defence of the Realme the safe-gard of the Sea the security of our Subjects the safe conducting of the ships
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
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.
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 noâ—trum est sine facto seu defectu nostro amitti seu in aliâ—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 pâ—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 pâ—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 CoÌ„mon Councell of London where they have a custome by the said CoÌ„mon 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
to leave it to the Sheriffe to taxe them when and how hee would To that which hath beene said That this charge is not within the intention of the statutes and that a statute to prohibite such a charge for defence were void I answer That it is true if a statute were that the King should not defend his Kingdome it were void being against Law and Reason but a statute that money shall not bee charged or levied nor that men shall be charged to make or prepare ships at their owne charges without common consent in Parliament I conceive it a good Law and agreeable to Law and Reason and the King may by Parliament restraine himselfe from laying such a charge but by consent And then the King being a just and pious King as ever governed the Kingdome which wee that serve in his Courts of Justice have daily experience of would not assent unto or suffer any such charge if he may be truly informed that the imposing of this charge were against any one Law of his Kingdome as this is against so many but would say as it is said in the statute made in the 25. Edw. 3. de provisoribus reciting the statute of Carlyes made 35. Edw. 1. That the Pope should not bee permitted to present to Benefices That he was bound by his Oath to see that and other Lawes in force and not repealed to bee performed That hee would not suffer such charges to bee laid contrary to the Lawes and Statutes of his Realme and would doe as the late famous Queene Elisabeth did having required a charge upon divers her Subjects by particular letters from the Lords of her Councell of severall summes of money for present helpe towards her warres in Ireland hearing that one of her Judges being convented before her Lords for not payment of it thereby discouraging others to pay it answered that it was against the Law that the same should bee imposed there being an expresse statute against it which hee being a Judge was bound by his Oath to signifie he being as much as in him was to be a conservatour of the Queenes Oath in that behalfe The Queene I say was very angry that such an imposition had beene made against Law and commanded that it should bee stopped from further gathering and to some that had paid their monies the same were restored and therefore the principall and onely fault in the charging of his Subjects by these Writs if they bee unlawfull as I conceive they are is in those that devised them and informed him that they were lawfull and such as his Progenitours had from time to time used to send out and in his Judges who have affirmed it to bee lawfull Therefore upon this point I conclude That this charge by this Writ is illegall and is no sufficient cause to charge the Defendant Where it hath been much urged and argued by Master Sollicitor and Master Attorney that this Writ is warranted by the Kings Prerogative and power Royall to send forth such Wriâ—s for defence and safety of the Kingdome in time of danger To this I answer That I doe not conceive that there is any such Prerogative for if it were a Prerogative I should not offer to speake against it for it is part of our Oathes that are Judges to maintaine the Kings Prerogative to the best of our skills and not to suffer the same to be diminished but if it bee as I have argued it is against the Common Law and against so many Statutes that the Subjects should be inforced to sustaine or to contribute to any charge without their especiall assent and common assent in Parliament then there is no such Prerogative For whatsoever is done to the hurt or wrong of the Subjects and against the Lawes of the Land the Law imputeth that Honour and Justice to the King whose Throne is established by Justice that it is not done by the King but it is done by some untrue and unjust Informations and therefore void and not done by Prerogative This appeareth by the authorities of our Bookes for Bracton who is an ancient Writer in our Law saith Nihil aliud potest Rex in terris cum sit minister Dei ejus Vicarius quà m de jure potest And there a little after Itaque potestas sua juris est non injuriae cum sit author juris non debet inde injuriarum nasci occasio unde jura nascuntur Sir Edward Coke in the eleventh booke of his Reports in the Case of Magdalen Colledge where the question was Whether Queene Elisabeth having taken a long Lease of a Colledge being conceived to bee against the statute of 13. Elis. was sought to be maintained by her Prerogative but resolved it could not being against a statute by which she was bound although not named and there fol. 72. it is said Hoc solum Rex non potest facere quod non potest justè agere Plowdens Comment. fol. 246. 247. in the Lord Berkley's Case it is said that the Prerogative of the King cannot doe wrong and his Prerogative cannot be any warrant to do any wrong to any Plowdens Comment. fol. 487. in Nichols Case it is said by Justice Harper Although the coÌ„mon law doth allow many prerogatives to the King yet it doth not allow any that hee shall wrong or hurt any by his Prerogative 21. Edw. 3. fol. 47. in the Earle of Kents Case it is said That if the King under his great Seale doe make any grant to the hurt of any other hee shall repeale and avoid it Iure Regio for the King is accounted to be abused by untrue suggestions when hee is drawne to doe any wrong to the hurt of any other much more I say when he is drawn to do any thing to the hurt of his Subjects in generall Sir Edward Coke lib. 11. fol. 86. in Darcies Case it is said That every grant of the King hath this condition unto it Tacitè or expressè Ita quòd Patria per donationem illam magis solito non oneretur seu gravetur The Booke called Doctor and Student fol. 8. setting downe that the Law doth vest the absolute property of every mans goods in himselfe and that they cannot be taken from him but by his consent saith That is the reason if they be taken from him the party shall answer the full value thereof in dammages And sure I conceive that the party that doth this wrong to another shall besides the dammages to the party bee imprisoned and pay a fine to the King which in the Kings Bench is the tenth part of as much as hee payeth to the party So then if the King will punish the wrong of taking of goods without consent betweene party and party much more will hee not by any Prerogative take away any mans goods without his assent particular or generall So I conclude that I conceive there is not any such
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 penaltiesâ— 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 quibuâ— 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 guerrinâ—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
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
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
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
take title to present to any benefice of the right of another of any time of his predecessors And the King brought a Quare impedit and made title to an avoidance in the time of King Edward the first Sonne of King Henry the third And the Defendant pleaded this Statute and upon debate and argument although it was alleadged that this Statute had not beene put in use It was adjudged that being a Statute in force it might be put in use And so it was judged against the King And this is a strong proofe that in one of the most ancient Prerogatives incident to the King of Nullum tempus occurrat Regi which is grounded upon many reasons yet by an Act of Parliament this Prerogative was taken away See the Statute of 7. H. 8. cap 3. The informer is limited to beginne his suit within a yeare and the King within two yeares and not after hereby the Kings Prerogative of Nullum tempus is taken away and limited to two yeares The Statute of 21. Iac. cap. 2. whereby our late King Iames of famous memory was content to exclude himselfe to make any title to lands whereof he hath not beene in possession or which have not lawfully beene put in charge within sixtie yeares But enacted that such persons as doe hold those lands shall hold them still without trouble And that Patent of concealement or defective title shall not bee a putting in charge or standing in super within that Statute I might be infinite in this but I will conclude with the Statute of 21. Iac. cap. 14. That where the Kings Majesty by his Royall Prerogative may inforce the Subject in informations of intrusions to plead specially and to shew his title or to lose the possession The Kings Majesty out of his gratious disposition towards his loving Subjects and at their humble suit being willing to remit a part of his ancient Regall power is well pleased that it be enacted And be it enacted That where the Kings Majesty hath beene or shall be out of possession for the space of twenty yeares or shall not have taken the profits of any lands or tenements within the space of twenty yeares That in such case the Defendant may plead the generall issue if they thinke fit And shall not be pressed to plead specially And shall retaine the possession till the title be tried and found for the King And that no Scire facias shall be brought to put the party to a speciall pleading where an information may be fitly brought By these and many other of the like nature It must be agreed that ancient Regall and inseparable Prerogatives and powers may be and have beene qualified bounded and limited for the ease and benefit of the Subjects And give me leave to say this of Parliaments that they have beene esteemed by the wisedome of former times to be so necessary as there were acts of Parliament heretofore made in the time of King Edward the third which you may see Anno 36. Edw. 3. cap. 10. That for the maintenance of Articles and Statutes and for the redresse of divers mischiefes and grievances which daily happen it was enacted that a Parliament should be holden every yeare Another reason is that they have beene esteemed necessary for determining of difficult matters And therefore Bracton who wrote in the time of King Henry the third fo. 1 Leges Anglicanae consuetudines approbatae consensu utentium sacramento Regis confirmatae mutari non poterunt nec destrui sine consensu consilio eorum quorum consensu consilio fuerunt promulgatae sin autem aliqua nova inconsueta emerserint quae prius usitata non fuerunt in Regno et obscurum sit eorum judicium tunc ponentur judicia in respectu usque ad magnani curiam ubi per consensum curiae terminentur See to this purpose an excellent case in 2. Edw. 3. fo. 7. upon the Statute of Winchester where a robbery was done and a recovery against the hundred next adjoyning and a levy made of the Bishop of Coventries tenements of the Hundreth in Staffordshire The Bishop came into Court and pleaded a Charter of exemption made by King Richard the first and a confirmation thereof by King Edw. the first And for the difficluty upon the Charters and upon the exposition of the words of the Statute there came a Writ to remove the record into the Parliament Quindecim Pasch. and the Sheriffe was appointed to attend there with the money levied See the Register where it appeares that certaine Messengers had from the Pope served Processe upon an Officer of the Court of Chancery then held at Yorke to command him by those Bulls to appeare at Rome And for this contempt the party who served the said Processe was committed to the Castle at Yorke And at length the Kings Majesty by the intreaty of divers of the Great men of the Realme was content upon taking bond that he should answer the said contempt ad proximum Parliamentum nostrum ubicunque illud summoniri contigerit to deliver him out of prison Then the Statute of Winchester 2. the twenty eighth chapter of Concordent Clerici in Cancell de novo brevi vel attendent in prox Parliamentum The further necessity estimation which have beene taken to be of Parliaments is the number and frequencie of them For you may see by the commentaries upon Littleton fo. 100. that before the Conquest and in the Conquerors time and after till the end of King Henry the third his time there were two hundred eighty Sessions of Parliament And since almost two hundred Another reason as I conceive to be collected out of the oath which the Kings of this Realme take at their Coronation which is Printed in Magna Charta whereby the King agrees to give consent to such Lawes as shall be propounded for the profit and good of the Kingdome And that I conceive is the cause that when Bills come up being agreed by both the Houses the Kings Majesty to those he doth not allow or not like of doth make no direct deniall but Le Roy le avisera For nothing can be done without the Kings consent who hath sole power to call to prorogue and to dissolve Parliaments at his pleasure And I know not whether the last meeting in Parliament either by ill choice of the members of that House or by the great increase of the number or by the ambitious humours of some members of that houseâ— who aimed more at their owne ends and designes then the generall good of the Commonwealth Things were so carried not as was used in ancient time but so disasterously that it hath wrought such a distaste of this course of Parliaments as we and all that truly love the Commonwealth have just cause to be sorry for it NOw I come to my third head that is to give answer to such precedents as
have beene shewed and insisted upon to prove that the Kings of this Realme have made such impositions even in the matter of Shipping And herein first they have insisted upon a tribute or imposition called Danegelt which was begunne in Etheldreds time which as it was said was double ad placandos Danos vel ad coercendum Danos which was very grievous and of long continuance For as it was said by my Brother Croke it was first tenne thousand pounds yearly then increased to sixteene thousand then to twenty foure thousand then to thirty six thousand yearely And from twelve pence for every hide of Land to twelve shillings for every hide of land This Tribute continued after the Danes for in the time of the Normans it became to be called a tallage or taxe King Henry the first granted to the Citizens of London to be quit and free from Danegelt And the same King about the thirtieth yeare of his raigne in redemption of his sinne did grant that Danicum Tributum should be totally released for seaven yeares as it appeares in Sr. Henry Spelmans booke intituled Glossarium fol. 200. To this I give this answer that by the Statute of 34. Edw. 1. De tallagio non concedendo but by Parliament this was taken away And thereupon insues a strong argument that if such a thing as the Danegelt which had so long continued were not taken away by these acts of Parliament it might have beene put in use For no man will maintaine that this tribute of Danegelt can now be imposed at this day by the Kings Writ under the great Seale which it might be if these Statutes had not taken it away And for this purpose in the Statutes made in the foure and thirtieth yeare of King Edw. 1. cap. 8. The King grants to Clerkes and Lay-men that they shall have their laws liberties and free customes as they have used the same at any time when they had them best And if any Statutes have beene made or any customes brought in by us or our Ancestors to the contrary that they shall be void and frustrate for evermore And concerning the generality of precedents which have beene made use of on the one side and on the other out of Membrana's Patents and Commissions and answers to petitions in the Rolls of Parliament to Petitions I am very sorry that such obsolete and ancient things have beene mentioned many of which in my judgement had beene better to have slept in silence then to have beene spoken of in these times But for a generall answer to all such as have beene shewed before the Statutes de Tallagio non concedendo And the Statute of 14. Ed. 3. may be given And that is that they are of no force being now expresly taken away by the said Statutes And to such as have been shewed since some in the time of Edward the third they are but very few and being directly contrary to the Statute then in force they are not available to prove the lawfulnesse of this Taxation besides King Edward the third acknowledged that he had charged his people with great burthens and desired that they might be forgotten And that he was urged to it by necessity and not for any ill end of his owne as appeared upon the reading thereof in Court And lastly there were many effectuall precedents shewed that for imbarging of Ships and for building of Gallies at Bristow specially set downe in number and the content and so in divers Port Townes And they are injoyned in fide quanobis tenemini et sicut honorem nostram diligitis exhereditationem nostram vitare sicut nos ipsos indempnos servare volueritis herein is a strong command and as great necessity And yet there was a Clause in these Commissions viz. Et vestrum quod ad illud posueritis cum illud sciverimus in exitibus Balivat ' allocari faciemus And in 2. Hen. 4. Parliament recites that where divers Commissions were made to divers Cities Boroughs and Towns to command the making of certaine Barges and Billingers without the assent of Parliament and in another manner then had beene done before The Commons did pray the King that the said commissions might be repealed and that they should bee of no force or effect And the King answered that the said commissions should be repealed for ever But for the great necessity of such Vessels for the defence of the Realme in case that the Wars doe come the King will commune of this matter with the Lords and after he will shew it to the Cōmons to have their consent And so I leave those precedents which together with some other Objections have beene fully answered by my brother Croke and proceed to my further point THat is that since the time of Richard the second and Henry the fourth there have beene no such thing attempted and that this disuse is a sufficient matter to prove the unlawfulnesse For since that time though there have beene in the raignes of many Kings occasion of imployments both of ships for the defence of the Sea and service of the Land yet the course and order of defence hath been by severall other waies As by commissions to provide men for to serve for wages And by Indentures of covenants which were very frequent to be made betweene the Captaine and the King that he should covenant to serve with so many men for such particular times and for such wages as were comprised therein and the precedents of moderne times have beene this way all for wages This is proved by an Indenture made in the fifteenth yeare of Edward the fourth and Sr. William Pirton Knight reciting that the King had disposed of an Army of foure thousand men for the narrow Seas and the keeping of them And that he should have constantly foure hundred sixtie men under him for foure moneths The Kings Majesty was to finde the ships furnished with Guns Powder Artillery and Victuall and that the said William Pirton should take wages for every of his Companie viz. two shillings a week and the times appointed for the payment thereof And the eight and twentieth of King Henry the eight it appeares by a letter under the privy Signet then when by command men were raised in the County of Lancaster and by command comming towards the county of Lincolne to aide the suppression of rebells The rebells having submitted before they came they were commanded to returne and for their charges in their entertainment and conveying of thē a reasonable bil should be made and sent to the King by a trusty messenger and he would cause a convenient recompence to be delivered accordingly And for that which hath beene insisted upon that there hath beene Commissions of Array and provision for Armes and for preparing Armour from time to time It is not to be denied That first by severall Statutes as that of Winchester and divers since The Armour and
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 â—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 waâ—â—djudgâ—d that the Imposiâ—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
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 Kâ—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
Domini 1002. it was increased to 24000. pounds and Anno Domini 1007. it was increased to 36000. pounds and Anno Domini 1012. it was increased to 48000. pounds So if this Writ bee well awarded it may bee at pleasure what bounds it shall have Also there were never but one single Subsidy and two Fifteenes used to be granted in Parliament untill 31. Elis. and then a double Subsidy and foure Fifteenes were granted Sir Walter Mildmay then Chancellour of the Exchequer moving for it and saying his heart did quake to move it not knowing the inconveniences that should grow upon it but shewed great reasons for so moving of it being immediatly after the Spanish invasion so it was granted Afterwards in 35. Elis. treble Subsidies and sixe Fifteenes were granted and in 43. Elis. foure Subsidies and eight Fifteenes and yet these were not accompted grievous neither would it have been if it had been 10. Subsidies because in Parliament and convenient times and meanes appointed for the levying of them Tonnage and Poundage were granted to this end 13. R. 2. and have continued ever since by severall grants that the King might have monies in his purse against time of need for extraordinary occasions especially for the defence of the Realme and for guarding the Seas as it is especially declared by the Statute of 1. Iac. and former Statutes But it is said that Tonnage and Poundage is not granted now to the King Therefore the King is inforced to take these extraordinary courses Though it be not granted yet I thinke it is taken and I doubt not but to the same intent and for the same purpose for which it was first granted which was for the defence of the Kingdome and the guard of the Seas Therefore in case of danger and necessity every Subject for defence of the Kingdome is bound Ligeanciae debito as some Records say and Ligeanciae suae vinculo astricti as others speake Se sua totis viribus et potestate exponere c. And in such a case the King may command the persons of his Subjects and arrest their ships to wait on his to defend the Sea Yet this also when they goe out of their Counties at the Kings charges But to command the Subjects by Writ to build new ships or to prepare ships at their charges or to lay a common charge on the Subjects in generall for matter of defence or avoidance of danger is not warrantable by the Common Law Another inconvenience is That it is left in the power of the Sheriffe to charge any mans estate at his pleasure taxing some and sparing others as his affection leadeth him And sometimes by colour thereof levying more then he need and enriching himselfe which power the Law never alloweth him although it were in lesse matters as to make an assessement for the breach of the Sea walls but to doe it by a Jury and not himselfe alone So for these reasons I conclude this Writ is against the Common law and so illegall For the second point I conceive if the Common law were doubtfull in this whether such a charge might be imposed by Writ yet now it is made cleare by divers expresse Statutes that the King is not to lay any charge upon his Subjects but by their consent in Parliament and that is by many Acts of Parliament in force and not repealed And there is no doubt but the Kings by Statute may bind them and their Successours not to lay any such charge every King being bound by oath to performe the Statuâ—es of his Realme The Statute of 25. Edw. 1. which is in these words Forasmuch as divers people of our Realm are in feare that the aides and taxes which they have given 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 another time found in the Rolls and likewise for the prizes taken throughout our Realme by our ministers wee 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 been done heretofore by any Roll or any other President that may be found Ibidem cap. 6. Moreover wee have granted for us and our heires as well to Archbishops Bishops Abbots Priors and other folke of holy Church as also to Earles Barons and to all the Comminalty of the land that for no businesse from henceforth we shall take such aides â—axes â—or prizes but by the common assent of the Realme and for the common profit thereof saving the ancient aides and prizes due and accustomed Which are the expresse words of that Statute Now what those ancient aides were is well knowne viz. that they were ad redimenduâ— câ—rpuâ— ad fâ—lium priâ—ogâ—â—itâ—â— militem faciendâ— Et ad filiam priâ—ogenitam miritandam which aides concerne not the Subjects in generall but particular men were liable thereunto by theiâ—â—enures â—o this savingâ—eeded not to have been for the body of the Act extended not to them but 〈◊〉 generâ—ll aideâ— of the Kingdome However if this Salvo as it hath beene objected would preserve this aide now in question yet the Statute made afterwards de Tallagio non concedendo being without any Salvo takes it away which staâ—ute Rasâ—alâ— in his Abridgement fol. 441. in his title of Taxes abridgeth in this manner Anno 25. Edw. 1. It is ordained That the taxes taken shall not be taken in custome no◠〈◊〉 by the assent of this Realm except the ancient aides and taxes And there the taxes of Wooll of forty shillings a sacke is released Ibidem 2o. That no tallage by us or our heires in our Realm be puâ— or levied without the assent of the Archbishops Bishops Earles Barons Knightsâ— Burgesses and other free Commons of our Realm That nothing bee taken from henceforth in the name or by reason of Male tout of a sacke of Wooll Statutum de Tallagio non concedendo Master Sollicitor laboured much to proveâ— that there was no such Statute de Tallagio non concedendo First for that it is not to bee found in the Rolls of Parliament Secondly for that it is not set down when it was made Thirdly that it was but an abstract out of Confirmatio Chartae libertatum Master Atturney said hee would not deny it to be a Statute neither would he affirme it but yet it did not extend to take away the aide demanded by Prerogative or power Royall for defence of the Kingdome To this I answer That it was never doubted to be a Statute untill this Argument and that it is a Statute appeareth For that it is printed in the booke of Statutes as a Statute It is recited in the petition of right anno tertio Car. to be a Statute To that that it is not found in the Rolls I answer That many Statutes which are knowne Statutes
are not found in the Rolls as Magna Charta is not And as touching the time I conceive it to be made in 34. Edw. 1. cap. 1. for so it is set down in the great printed book of Statutes anno 1618. to bee the first chapter of the Statutes therein made viz. in these words No tallage or 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 Freemen of the land And that it is a Statute all my brethren the Judges have agreed The onely doubt then is Whether this Statute extendeth to aides for defence of the Kingdome which I thinke it doth for it is the precise words That no tallage or aide shall bee taken or levied but by consent in Parliament which extendeth to all manner of aides Bodin saith fol. 97. by a Law made in the time of Edw. 1. that it was provided and enacted That no taxe tallage nor aide shall bee imposed but by grant in Parliament and by this Law the Subjects of England have defended themselves ever since as with a buckler whereby it appeareth that notice was taken of this Law in forraine parts and so held still to be a Statute in force The next Statute is 14. Edw. 3. cap. 1. which reciteth the grant of the great Subsidy of the ninth fleece of the ninth Lamb c. formerly granted and thereupon these words follow Wee willing to provide for the indemnity of the said Prelates Earles Barons and other the Comminalty of the Realme 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 same grant shall not bee had forth in example nor fall to their prejudice in time to come Nor that they bee from henceforth charged nor grieved to make any aide nor sustaine charge if it bee not by the common assent of the said Prelates Earles Barons and other great men and Commons of the said Realme of England and that in the Parliament And that all the profits arising of the said aide and of Wards marriages Customes and Escheats and other profits arising of our said Realme of England shall be set dispended upon the maintenance of the safeguard of this Realme of England and of our warres of Scotland France and Gascoin and in no place elsewhere during our said warres By this statute it appeareth that it is expresly provided That the subjects should not be from thenceforth charged nor grieved to make any aide nor sustaine any charge but by common assent and that in Parliament which is as expresse as may be and exclusive to any charge otherwise which I conceive was made against the appointment of making or preparing and sending of ships at the charges of the Townes whence they were or sending men out of their Counties at the charges of the County Now where it is alledged by my brother Weston and my brother Berkley that this was but a temporary statute and ended when his warres ended which appeareth by the last clause for employment of those profits of his Wards c. towards those warres I conceive it appeareth to bee an absolute and perpetuall statute for it is granted for him and his heires which is in perpetuity And also it appeares by Plowd his Cōmentaries fol. 457. in Sir Thomas Wroth's Case where a grant is by the name of the King which is in his politicke capacity this extended against him his heires and successours although they bee not named Also the intendment of this Law appeareth to bee for the security of the subjects from thenceforth for all future ages and then the office of Judges is as appeares by Sir Edward Cokes Reports lib. 3. fol. 7. and Plowdens Commentaries in Byston and Studs Case to construe statutes according to the true intent of the makers thereof which was in this Case That it should bee a perpetuall security for them and to little purpose it had been to make a statute to continue but during the time of the warres Also where it is alledged that the statute of 14. Edw. 3. is not mentioned in the Petition of right which is some Argument that it was not conceived to be a continuing statute To that I answer that in that Petition of right it is said That by the statutes there recited and other the good Statutes of this Realme the Subjects shall not be compelled to contribute to any Taxe Tallage Aide nor other like charge not set by Parliament in which this Statute is as well intended as other Statutes and as farre as if it had beene expresly recited Also it appeareth by all the bookes of Statutes that this Statute is printed as a Statute continuing whereas others expired are so set downe as expired 21. Edw. 3. pars 2. m. 11. A Subsidy being granted by Parliament viz. forty shillings of every sacke of Wooll transported before Michaelmas following and six pence of every twenty shillings of merchandize for the safe guarding of the Merchants defence of the Coasts c. After Michaelmas viz. 31. Octob. 21. Edw. 3. by Writ the Collectors were commanded to continue the collection of those Subsidies untill Easter But 26. Novemb. 21. Edw. 3. the King by Writ commanded the stay of the collection of the six pence in the 20 shillings and to continue the collection of the Subsidies upon the sackes of Wooll untill Easter 22. Edw. 3. Parliament mem. 16. the Parliament being holden in Lent the Commons complained of this continuance of the collection of the Subsidy upon the sacks of Wooll longer then the Parliament had granted it and provided that it should not be continued longer then Easter by the procurement of no person By this it appeareth that the Parliament being carefull that the time for levying of a Subsidy granted should not bee inlarged by any power much lesse would they admit of a Writ to lay a charge without grant by Parliament 25. Edw. 3. m. 8. it was enacted That no man should bee compelled to find men at armes other then such as hold by such services except it be by common assent in Parliament By this it appeareth that if men bee not compellable to find a man at armes unlesse it bee by common assent in Parliament much lesse is any bound to bee contributory to the preparing of a ship with 180. men at armes and victuals and wages of the souldiers for a time unlesse it be by common assent in Parliament Rot. Parliamenti 2. Hen. 4. nu 22. an Act of Parliament as I account in the very point is in these words For that of late divers Commissions were made to divers Cities and Burroughs within the Realme to make Barges and Barringers without assent in Parliament and otherwise then hath beene done before these houres The Commons do pray the King that
those Commissions may bee repealed and that they may not bee of any force or effect to which it is answered That the King willeth that the said Commissions be repealed in all points which is an absolute and perfect Statute but then there is added these words But for the great necessity that hee hath of such vessels for defence of the Realme in case that the warres shall happen hee will treat with his Lords of this matter and afterwards will shew it unto the Commons to have their counsell and advice in this point So by this Record it appeareth that the Commons did conceive That no Cities Burroughes nor Townes without assent in Parliament were to bee charged with the making of such vessels to which the King agreeth And from that day to this very day untill the making of these Writs in no age although the Kingdome hath beene many times in danger of invasion and hath beene invaded there doe appeare any Records that ever I have seene or any Writs directed to any Townes or Cities at their charges to make or prepare any ships or vessels whatsoever And whereas it hath beene objected and especially insisted upon by my brother Berkley That this latter part that the King will treat with his Lords concerning them and after conferre with the Commons is a gentle deniall of that Act as the experience is at this day Roy se avisera is a deniall of an Act Hereunto I answer That it is an absolute Act for it is an absolute assent unto the Petition and that which came after was but a plausible excuse for that such Commissions had gone out and this further consultation never appeared to be made nor ever any such Writ or Commission for such vessels to bee made went out ever since untill this Writ 13. Hen. 4. nu 10. A grant is of a Subsidy of Woolls Woolfels Hides and other things there mentioned and of Tonnage and Poundage for one yeare for the defence of the Marches of Callice c. and for the defence of the Realme and safeguard of the Sea And therein is this expresse proviso viz. Provided alwaies that this grant of a Subsidy of Wools c. and of Tonnage and Poundage in time to come shall not bee taken in example to charge the Lords or Commons of this Realme with any manner of Subsidy for the safeguard of Callice c. nor for the defence of the Realme nor for the safeguard of the Seas unlesse it bee by the wills of the Lords and Commons of this Realme and that by a new grant to be made and that in full Parliament to come By this it appeareth that it was then provided That no charge should be laid upon the Lords or Commons no not for the defence of the Realme but by grant in full Parliament 13. Hen. 4. nu 43. A Petition was in Parliament reciting that there was an office granted of Alnager within London and the Suburbs of the same with fees to that appertaining where any such office never was nor any such fees appertaining thereunto and that by colour thereof they levie upon the sale of every Broad cloth an halfe penny of the buyer and an halfe penny of the seller and upon sale of every hundred Ells of Canvas a penny of the seller and a penny of the buyer wrongfully against the Statute in the time of your Highnesse Progenitors made to the contrary by which it is ordained That no tallage nor aide shall bee granted nor levied without assent and consent of the Lords and Commons of your Realme as by the said Statute fully is declared Wherefore they pray that such Letters Patents thereof made shall bee void and holden for none And this was granted whereby it appeareth that it is declared then in Parliament that these Statutes were and did continue that no tallage or aide shall bee levied without grant in Parliament 1. Ric. 3. cap. 2. It is enacted in these words Our Soveraigne Lord the King remembring how the Commons of this Realme by new and unlawfull inventions and inordinate covetice against the Lawes of this Realme have beene put to great servitude and importune charges and exactions and especially by a new imposition called a Benevolence whereby divers subjects of this land against their wills and liberties have paid great summes of money c. It is enacted and ordained That the Subjects and Commons of this Realme from henceforth shall in no wise bee charged by such charges or imposition called a Benevolence or by such like charge and that such exactions called a Benevolence before that time taken shall be taken for no example to make any such or any like charge of any his Subjects of this Realme hereafter but shall bee damned and adnulled for ever By this it appeareth that it is expresly provided That the Subjects shall not be charged by way of Benevolence which is in nature of a free gift nor such like charge that is no charge of monie shall bee upon the Subject for any pretence whatsoever be it for defence in time of danger or the guarding of the Seas The last and concluding statute is the Petition of right made in the third yeare of his Majesties raigne where reciting that it was enacted by a statute made in the time of Edward the first commonly called Statutum de Tallagio non concedendo that no tallage or aide shal be laid or levied by the King or his heires in this Realme without the good will and assent of the Archbishops Bishops Earles Barons Knights and other the Freemen of the Comminalty of this Realme And by a statute of 25. Edw. 3. That none shall be compelled to make any loanes to the King because such loanes were against reason and the franchise of the land And by another statute That none shall be charged by any impositions called a Benevolence By which statutes and other the statutes of this Realme your Subjects have inherited this freedome That they shall not bee compelled to contribute to any taxe tallage aide nor other like charge not set by Parliament And then they pray that none hereafter bee compelled to make or yeeld any gift loane benevolence taxe or such like charge without common consent by Act of Parliament And after five other things there mentioned the conclusion is All which they pray as their rights and liberties unto which the King answers Let right bee done as is desired which is a full and perfect statute shewing in this point the liberties of the Kingdome prayed and allowed which was not done without the advice of the Judges then being whereof I was one whose opinions were then demanded and resolved that the same did not give any new liberty but declared what the liberty of the subject was in this amongst others that they should not bee compelled to be contributory to any taxe tallage aide nor any like charge not set by Parliament By reason of all which statutes especially
of those of 25. Edw. 1. 34. Edw. 1. and 14. Edw. 3. being in the negative and in force I conceive that those Writs to lay such a charge is against the Law and so the assessement by colour thereof not lawfull Now whereas the precedent Arguments have been that the Kingdome being in danger therefore these Writs went forth for the making of ships because there could not bee so suddenly any Parliament called And the Parliament is a slow body and the Kingdome may be lost whilest there is consultation And the danger is conceived to bee very great because the first Writ of 4. Augusti so mentioneth that the Pirates provide a great Navie to infest the Kingdome and it is fit with speed to provide a remedy and that the Writ of mittimus mentioneth that Salus Reipublicae periclitabatur And wee must beleeve these suggestions to bee true for the Kings Certificate by this Writ is Recordum superlativum as Master Sollicitor and my brother Berkley termed it and we must leave it upon the Kings conscience if it be not true to lay such a charge upon an untrue suggestion and the Defendant also by his Demurrer hath confessed all the suggestions in the Writ to be true therefore it must bee conceived that the Kingdome was in great danger and present remedy must be had by making these ships and may be commanded by those Writs and not to stay for a Parliament And my brother Crawley said It may bee that if a Parliament were called they will not yeeld to the going forth of such Writs although the Kingdome were never so much in danger And this charge in respect of the making of defence is not within the intention of these statutes and if it had bin expresly mentioned within a statute that such a charge should not bee imposed it had been a void statute and contrary to the Law that the Kingdome should not bee defended To all these I answer That the matter now in question is upon the Writ of 4. Augusti whether that bee legall or not and the suggestions therein bee sufficient or not for the Writ of Mittimus mentioning that Salue Reipublicae periclitabatur at the day of issuing forth of the Writ of 4. Augusti which is a year and a halfe after the first Writ doth not help it And this is not notified to the Sheriffe and Inhabitants of the County to make them the more carefull and in the greater contempt if a ship were not provided but it is onely a notification to the Barons of the Exchequer that the same was the reason why the same Writ issued forth That the suggestions are not absolute that any such danger was or such Navie was prepared by the Pirates but onely mentioneth Quia datum est nobis intelligi that the Pirates had done such mischiefe c. If such suggestions had been absolutely set downe yet wee are not alwaies bound absolutely to beleeve them because many times untrue suggestions are made in Writs and Patents and yet it doth not lye upon the Kings conscience neither doth the Law impute any fault to the King if any such be for the Law doth alwaies conceive honourably of the King that hee cannot nor will not signifie any untruth under his great Seale but is abused therein and the Law imputeth it to them that so mis-informed the King and thrust in such suggestions into the Writ and therefore all Patents grounded upon untrue suggestions are accounted void That the Demurrer confesseth nothing but that which is legally and well set downe but if it bee illegall the Demurrer confesseth it not but is well offered for that cause If the Kingdome were in danger yet a charge must not bee laid in generall upon the Subjects without their consent in Parliament for either the danger is neere and then present provision must be made by mens persons and the present ships of the Kingdome which the King may command from all parts of his Kingdome as need shall require but cannot command money out of mens purses by distraining their goods or imprisoning their persons But if the danger bee further off by reason of any forraine combinations as it is conceived it may be here then provision must bee made of ships by all the Kingdome for defence then as Philip de Comines saith fol. 179. that cloud is seene afarre off before that the tempest fall especially by a forraine war and such invasions cannot fall so soone but that the King may call his Sages together and by consent make provision for such defence So I say here if there be time to make ships or prepare ships at the charges of the Counties then is there time enough for his Majestie if hee please to call his Parliament to charge his Commons by consent in Parliament to have a subsidiary aide as alwaies hath been done in such cases and they are not so long coming or meeting when they come but to make provision for defence being for all their safeties For it appeareth by Coke lib. 9. fol. 1. in his Epistle that King Alfred made a Law that the Parliament should be held twice every yeare and oftner if need require in time of peace so that it was then conceived it was necessary to have Parliaments often to redresse inconveniences Also by a statute made 4. Edw. 3. cap. 14. It is enacted that a Parliament shall bee held once every yeare and oftner if need be Also by a statute made 36. Edw. 3. cap. 10. It is enacted for redresse of mischiefes and grievances that daily happen a Parliament shall bee holden every yeare as another time was ordained by a statute which I thinke referreth to 4. Edw. 3. Also it appeareth by the speed that was in the Parliament held in the third yeare of his Majesties raigne five Subsidies were granted two of them to bee paid within few daies after the Session of Parliament ended and therefore might as this case is beene ordered and provided for by Parliament within seven moneths as the time was betweene the Teste of the Writ and the time prefixed for ships to be prepared and sent Where it is objected that the Parliament perhaps would not have consented and so the Kingdome might have been lost It is answered That it is not to bee preâ—umed that the Parliament would deny to doe that which is fit for the safety and defence of the Kingdome their owne estates and lives being in danger if the Kingdome were not sufficiently defended for it is a Rule Nihil iniquâ—â—m esâ— praesumendum in Legâ— so of the high Court of Parliament that they would not deny that which is fitting But I confesse I doe thinke if it had beene moved in a Parliament they would never have consented to these Writs they never having been awarded before since the Conquest and if they had consented they would have taken a course how the same should have beene made with most conveniencie and not