Historical Collections of Private Passages of State: Volume 3, 1639-40. Originally published by D Browne, London, 1721.
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The Argument of Mr. Justice Hutton.
The King's Majesty, by his Writ under the great Seal of England, bearing date the Fourth Day of August, in the Eleventh Year of his Reign, directed to the Sheriff of the Country of Bucks, and to the Bailiff and Burgesses of the Borough and Parish of Buckingham, and to and to all honest Men in the same, and in all the Towns, Villages, and Places in the said County, sendech Greeting Reciting that where he is given to understand, that certain Robbers, Pyrates and Spoilers by Sea, as well Enemies to the Name of Christians, as Mahometans, and others being assembled together, not only to take and spoil our Ships and the Goods and Merchandizes, but also teh 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 carry the Men in those Ships into most miserable Captivity, and there keep them:
And the King doth see that they daily provide Ships to vex our Merchants, and grieve our Kingdom, unless speedy Remedy be 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 God's Assistance) to provide, the rather for that he and his Progenitors, Kings of England, have been Lords of the Sea.
Therefore the King by his Writ commanded, that a Ship of War of the burthen of Four Hundred and Fifty Tuns, fitted and furnished with all things necessary for War, 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 Weeks then next following, and with Wages for so many Men or War for that time, to Portsmouth, into the Company of such other Ships of our Subjects, and our own as shall be there, under the Government of such a Man, to whom before that Day we shall commit the custody of the Seas: and to go from thence with the King's Ships, and the Ships of other our faithful Subjects, for the Defence of the Sea, and the repulsing and overcoming of any whatsoever, which shall molest and hinder the coming in, or going out of our Merchants, or other upon the Seas.
A Power is given by the Writ to the Sheriff, and to the Mayors, and any two of them for Corporate Towns, whereof the Sheriff to be one, to assess what Sums the Mayors and Corporations shall pay towards this Charge; if they do not, then to be done by the Sheriff alone.
A general Power to the Sheriff, to assess all the Inhabitants of all other Towns, Villages, Hamlets and Places, and the Ter-tenants, other than 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 Premisses, upon every Man according to his Estate and Faculty: And such Portions so to be assessed upon them, to levy by distress, or other due Means.
And a Power to commit to Prison all such as the Sheriff shall find rebellious, or contradicting the Premisses; there to remain until the King's Majesty shall think fit to give order for their Enlargement.
And by Virtue of this Writ, Sir Peter Temple, then Sheriff of the said Country, did assess upon the Desendant Twenty Shillings, towards this Charge, which was after allowed by the succeeding Sheriff Sir Henry Proby, and the Desendant was required to pay it, but refused.
And then by a Certiorari out of the Chancery directed to those Sheriffs, which had been Sheriffs betwixt the fourth Day of August, in the Eleventh Year, and the first of March then following, to certify what Sum of Money had been assessed upon the Defendant for Contribution.
Then by a Writ of Mittimus, out of the Chancery, bearing date the fifth Day of May, in the Thirteenth Year of the King's Majesty's Reign the Writ of 4 Augusti Anno undecimo Car. And the Schedule returned into the Chancery, whereby the Desendant was so assessed, are sent into the Exchequer,to proceed against the Desendant, for the levying of the Sum of Twenty Shillings, which he hath not paid, and proceed there to do that which of right, and according to the Custom, ought to be done for the levying thereof.
In this Writ of Mittimus it is contained, that the Writ bearing date the fourth of August, Anno.II Car. was granted for the Desence of the Realm, the safeguard of the Sea, the security of the Subjects, and for that the safety of the Kingdom was in Danger.
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 of May, in the Thirteenth Year of the King's Majesty's Reign, against the said John Hampden, to shew what he bath to say for himself, why the said Sum so assessed upon him and not paid, ought not by him to be satisfied, and to do farther what that Court should think fit to order.
First I will prove by several Acts of Parliaments, and by some Authorities in Books, and by some Reasons, that the King's Majesty cannot at this day, impose any such charge in general upon all his Subjects as this is, without their consent in Parliament.
Secondly, I will give answer to such Objections, as have been made by the King's Council, 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 been infifted upon, to prove the like charge hath been before imposed by the King's Progenitors, Kings of this Realm; 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 general Charge, by this way, at any time since the beginning of the Reign of King Henry the Fourth, which is almost two Hundred and Fifty Years since: And many other courses and kinds of Attempts for levying of Moneys; and this way not attempted till of late.
Fifthly, I will insift upon the Writ of 4 Augusti Anno II Car. That the matter therein comprised doth not contain sufficient Warrant, for the levying such Contribution. And that the matter which is added in the Mittimus, cannot supply or make the Writ of 4 Augusti sufficient; and that the Scire Facias it self is insufficient.
Lastly, I will give some Answer to that which heretofore was objected by Mr. Solicitor; 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.
And for the first Point and Reason, which I do insift upon, is, That this Power to charge the People of this Realm at this Day, by the King only, is taken away, bounded and limited by divers Acts of Parliaments, to be done by consent of the Subjects, and only in Parliament.
First, By the Statute Magna Charta it is enacted that no Freeman shall be taken, or imprisoned, or disseised of his Freehold, or of his Liberties or Free Customs or Outlawed, or Exiled, nor by any means destroyed; neither will we come upon him, or send him to Prison, but by lawful Judgment of his Peers, or by the Law of the Land.
This Statute, as appears by the Inspeximus of King Edward the First, Son of King Henry the Third, was made of the free good Will of the King, for the good of the Church, and for the Amendments of the kindom
And if you look upon the laft Chapter of Magna Charta, cap.38. the King grants, that he and his Heirs will, for what concerns him, well observe and keep the fame in his Kingdom, and will that as wellClerks, as Lay-men, shall observe the fame; and this was not done for nought, for the Clergy and Commonalty, did give to the King for these Liberties, the fifteenth part omnium mobilium, as appears in the fame Chapter.
And further in the said Chapter it is contained, that the said King, for him and his Heirs did grant, that neither he nor his Heirs should do anything; nor to procure to be done anything whereby these Liberties thus granted might be insringed or diminished: And that if any thing were done by any other to the contrary, it should be 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 Reign, the very first Chapter of that Parliament, confirmed the Chapter of Magna Charta, for the Honour of God, and of the Holy Chruch, and profit of that Realm, with Writs to all Justices, Sheriffs, and others, that they cause the said Charters of Liberties to be publish'd: And to declare to the people, that we have confirmed them in all points; and that our Justices and Sheriffs, and other Ministers, which under us have the Laws of our Land to guide, shall allow the fame. That is, to wit, the great Charter, as the common Law, and the Charter of the Forest, for the wealth of our Realm.
And where my Brother Berktey did say in his Argument, that the Words of the Statute of Magna Charta were, quod babeant libertates suas, but that there were no particular Liberties. To that the Answer is easy, for it is in the Preamble, and the first Chapter, Habeant libertaties subscriptas tenendas in Regno nostro Anglia tenend. eis & baredibus suis, imperpetuum. And it cannot be denied but that the Clauses of the Writ of 4 Augusti, which give not only Power to destrain, but if any be Rebellious or contrariant to the Premisses, to commit them to Prison, there to remain until the King's Majesty shall for ther Deliverance think fit to order other ways, are directly contrary to the express 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 been ever since, and now is put in use for the great Priviledge of the Tryal of the Peers of this Realm for Treason or Felony, for there [Peers] is grounded upon the Words of this Statute (viz.) Per legale judicium Parium suorum, as you may see in Stamford in his Book of the Pleas of the Crown, fol. 152.
Then by the Statute of 25 Edw.I.cap. 5 It is enacted 'And foras much as divers People of our Realm are in fear, that the Aids and Taxes, that they have given to us before time towards our Wars and other Business, of their own grant and good will, howsoever they were made, might turn to Bondage to them and their Heirs, because they might be at any other time founded in the Rolls: And likewise the Prizes taken by our Ministers thro the Realm, we have granted for us and our Heirs, that we shall not draw any such Aids, Taxes, or Prizes, into a Custom for anything that hath been done before, be it by Roll, or any other Precedent that may be found.
Aud in the fame Parliament, in the sixth Chapter it is thus: 'We have granted for us and our Heirs as well to Archbishops, Bishops, Abbots, Priors, and other Folk of Holy Church, as also to Earls, Barons, and to all other the Commonalty of the Land, That for no Businefs from henceforth, we shall take such manner of Aids, Taxes, or Prizes but by the common consent of the Realm, and for the common Profit thereof: Saving the ancient Aids or Prizes due and accustomed.
Then in 34 Edw. I Cap. I. It is enacted, 'No Tallage nor Aid shall be taken or levied by us or our Heirs in our Realm, without the good will and assent of Archbishops, Bishops, Earls, Barons, Knights, Burgesses, and other Freemen of the Land.
They by a Statute made the Fourteenth Year of King Edward the Third, it is in this manner, 'That whereas the Prelates, Earls, Barons, and Commons of our Realm of England in our Parliament holden at Westminster upon Wednesday in Mid lent, in the Fourteenth Year of our Reign over England, and the first over France, have granted to us of their free and good Will in aid of the speed of our great Businefs which we have to do, as well on this side the Sea, as beyond the Ninth Sheaf, the Ninth Fleece, and the Ninth Lamb, to be taken by two Years next coming after the making of the fame, and the Citizens and Burgesses of Cities and Boroughs, the very Ninth part of all their Goods; and the Foreign Merchants and others which live not of Grain, nor of Flock of Sheep, the Fifteenth Part of their Goods to the Value. We willing to provide for the indempnity of the said Prelates, Earls, and other of the Commonalty: and also of the Citizens, Burgesses, and Merchants aforesaid, will and grant for us and our Heirs to the fame Prelates, Earls, 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 Aid, or to sustain the Charge, if it be not by common consent of the Prelates, Earls, Barons, and other great Men and Commons of our 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 find Men of Arms, Halberts, or Achers, other than such as hold by such Services, if it be not by common consent and grant in Parliament, for that is against the common right of the Realm. Which last Words [for that is against the common right of the Realm] are in the Parliament Roll, but left out of the Printed Books of the States.
Then in the first Year of King Richard the Third, and in the second Chapter it is recited, That the Commons of this Realm, by new and unlawful inventions have been put to importune charge, especially by a new Imposition, called, A Benevolence; it is enacted, that the Subjects and Commonalty of this Realm, from henceforth in no wife be charged by any such Charge or Imposition, called a Benevolence, nor any other such Charge.
Then comes the Act of Parliament, made in the Third Year of the King's Majesty's own Reign, 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 Loan of Money against the good will and liking of the Subjects, Billetting of Soldiers, and Mariners, in Men's Houses, there to fojourn against their Wills, Commissions of Martial Law in time of Peace They do therefore humbly pray you, that no Man hereafter be compelled to yield 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.
First, By the Case of 13 Hen. IV. fol. 14,15, and 16. which were long debated, It appears that the King had granted an Office, for the measuring of Cloth in London, and a Power to take so much for his Labour.
37. Hen.8. Broke Pattents Pla. 100 14 Hen.4.f.9. 97 Hen.6.f.27 8 Hen. 6.f.19. concurring Fortescuein his Bookde Laude Legum Anglia, fol.23. cap.9. He was made Ld. Chief Justice of the King's Bench An.19.Hen.6. and made Chancellor of England as is said in the Book.
There was a Writ under the great Seal 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 Return, that there was no such Office, it is adjudged a good Return; 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 speciallassent 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 Leaf, 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. VIII. Broke in Patents, Plucito 100. The King's Majesty may erect the Markets and Fairs with Toll incident: For that concerns only such as will buy: But the King cannot grant Toll Travert, not a thorough Toll, nor alter or change Laws or Customs of the Realm, nor make Land deviseable or Gravel-kind or Borough Englisb, or change Gravel-kind or Borough English to be descendable to the Heir; which is so agreed in divers Books.
Then in the Book of Fortescue, of his Commendation of the Laws of England, it is thus written in the Ninth Chapter, the five and twentieth Leaf, the King of England cannot alter or change the Laws of his Realm at his Pleasure; for why, he governeth his People by Power, not only Royal, but also Politick: If his Power over them were only Royal, then he might change the Laws of his Realm, and charge his
Subjects with Tallage and other Burthen without their consent; and such is the Dominion which the Civil 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 Politick; for he can neither change Laws without the consent of his Subjects, nor yet charge them with strange Impositions against their Wills. Rejoice therefore, O Sovereign Prince, and be glad that the Laws of your Realm, wherein you shall Succeed, are such, for it shall exhibit to you and your People no small Security and Comfort.
And the same Author, fol 84.cap, 36. faith 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; Nevertheless he is bound by the Law to pay therefore, either presently, or at a Day to be limited by the higher Officers of the House: Fy by the Laws he may take away none of his Subjects Goods, without due satisfaction for the same; neither doth the King there either by himself or his Servants and Officers, levy upon his Subjects Tallages, Subsidies, or any other Burthens, or alter their Laws, or make new Laws, without the express Consent and Agreement of his whole Realm in his Parliament.
The Second Part.
First, it hath been 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 King's not then being in England, and many other things by him alledged; yet because it hath been 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 no Statute, I do 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 whole words, Aids, Tax, and Tallages, do not extend to this Provision of Ships of War, and Men for Defence, and that there is no exception of the Aids which are due to the King's Majesty, for making his eldest Son Knight, nor Aids for Marriage, nor other Aid by Tenures.
The Answer is easy, 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 Aid, or to sustain any Charge.
These are Words so general, that all is comprehended which charges all; and for the Aids of making the eldest Son Knight, and the other Aids, they are not general to charge all, but particular, such as are charged by Tenure, and need no Exception.
And yet in the Statute of 25 Edward III.cap. 8. there is an Exception (of other than those which hold by such Tenure) which Exception was needless, because no charge of any particular is within any of the Acts of Parliament, but such as are general, and extend to charge all the Subjects of the Realm, as this doth.
There hath been another Objection made against the Statute of 14 Ed. III. 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, than the Statute itself, First the Preamble, and then the Body of the Act, (Via) That from hence forth they shall not be compelled to make any Aid, or sustain any Charge but by the common consent of the Prelates, Earls, Barons, great Men, and Commons of our Realm 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 Realm of England and of his Wars in Scotland, France and Gascoyn, and elsewhere, during the said Wars; This was a Matter of the King's 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 been made, first by my Brother Crawley, and after by others, and insisted upon by my Brother Jones, is, That this is a Prerogative, or Power Royal, so incident to the King's Majesty, that it cannot be taken away by any Act of Parliament; and it was said, it is proprium quarto modo: And in proof thereof it was affirmed, that when there was in the beginning of King Fames his Reign 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 been Void.
First I do agree, that there are many Things incident in Power to a King, as are not in the Power of any Parliament to take away, as appears by the Case of 1. Hen. VII. of the disposing of the Right of the Kingdom, Power of making War and Leagues, the Power of the Coin, and the Value of Coins, and many other Monarchical Powers and Prerogatives which are to be taken away, were against natural Reason, and are incidents so inseparable, that they cannot be taken away by Parliament.
It is said of ploydon, in the Case of Mines, sol. 332.That every Prerogative that the King hath, contains in itself a matter of Prescription, and as it is there said, That before the Statute of 2.Edw. III.cap. 12. if one held his Land by Knights Service of the King in Capite, and had aliened that Land in see, without the King's Licence, the Land was forfeited to the King; and the King should have had the Land to him and 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 Process.
And in the same Book, sol. 322. The King's Majesty might by prerogative have taken Woods in any Man's Wood, for the repair of his Castles: But by the Statute of Magna Charta, cap.21 he is excluded of that the Words are [Neither we nor our Bayliffs, nor any other for us] shall take Wood of any other Man's, to repair our Castle, nor to do any other thing with them, but by good will of him whose Wood it is.
And by the Statute of 25 Edward III. cap.I. It is enacted that from thenceforth, neither he, nor any of his Heirs, shall take Title to present to any Benifice of the Right of another, of any time of his Predecessors.
And the King brought a Luare Impedit, and made Title to an avoidance in the time of King Edward the First, Son of K. Henry the Third; And the Desendant pleased this Statute, and upon Debate and Argument altho' it was alledged, that this Statute had not been 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 proof, 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 Act of Parliament this Pregogative was taken away.
See the Statute of 7 Hen. VIII. cap.3. The Informer is limited to begin his Suit within a Year, and the King within two years, and not after, hereby the King's Prerogative of Nullum tempus is taken away, and limited to two Years.
The Statute of 21 Fac. cap. 2. whereby our late King Fames, of Famous Memory, was content to exclude himself to make any Title to Lands, whereof he hath not been in Possession, or of which have not lawfully been put in Charge within sixty Years: But enacted, that such Persons as do hold those Lands, shall hold them still without Trouble: And that Patent of concealment, or defective Title, shall not be 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 Fac. cap.14. That where the King's Majesty by his Royal Prerogative, may inforce the Subject in Informations of Incrusions, to plead especially, and to shew his Title, or to lose the Possession, the King's Majesty out of his gracious Disposition towards his loving Subjects, and at their humble suit (being willing to remit a part of his ancient Regal Power) is well pleased that it be enacted, and be it enacted, That where the King's Majesty hath been, or shall be out of possession, for the space of Twenty Years, or shall not have taken the Profits of any Lands, or Tenements within the space of Twenty Years; That in such Case the Desendant may plead the general lssue, if they think fit, and shall not be pressed to plead specially; and shall retain the Possession, till the Title be tried and found for the King. And that no Scire sacias shall be brought to put the Party to a special pleading, where an Information may be fitly brought.
By these, and many other of the like Nature, it must be agreed, that Ancient, Regal, and Inseparable Prerogatives, and Powers, may be, and have been qualified, bounded, and limited, for the Ease and Benefit of the Subjects.
And give me leave tosay this of Parliaments, that they have been esteeme'd by the wisdom 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 redress of divers Mischiefs and Grievances which daily happeen, it was enacted that a Parliament should be holden every Year.
Another Reason is, that they have been esteemed necessary for determining of difficult Matters: And therefore Bracton, who wrote in the time of King Henry the Third, sol 1. Leges Anglicane & consuetudines approbat consensu utentium, & sacramento Regis confirmat; mutari non potuerunt nec destrui sinne consensu consilin eorum, quorum consensu & consiliofuerunt promulgat: sin autem aliqua nova & inconsueta emerserint, que prius ustata cumfuerunt in Regno, & obscurum sit eorum judicium, tunc ponentur judicia in respectu usque ad magnam Curiam, ubi per consensum Curi & terminentur.
See to this purpose an excellent Case in 2 Edw. 3 sol. 7. upon the Statute of Winchester, where a Robbery was done, and a Recovery against the Hundred next adjoining, and a Levy made of the Bishop of Coventry's Tenements, of the Hundred of Staffordsbire. The Bishop came into Court and pleaded a Charter of Exemption made by King Richard the First: And for the difficulty 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 Sheriff was appointed to attend there with the Money levied.
See the Register, where it appears that certain Messengers had from the pope served Process upon an Officer of the Court of Chancery, then held at rork, to command him by those Bulls to appear at Rome: And for this Contempt, the Party who served the said Process, was committed to the Castle of York: And at length the King's Majesty by the intreaty of divers of the Great Men of the Realm, was content, upon taking Bond, that he should answer the said Contempt, ad proximum Parliamentum, ubicunque illud summoniri contigeri, to deliver him out of Prison.
The further Necessity and Estimation which have been taken to be of Parliaments, is number and frequency of them. For you may see by the Commentaries upon Littleton, sol. 100. that before the Conquest, and in the Conqueror's time, and after, till the end of King Henry the Third's 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 Realm take at their Coronation, which is printed in Magna Charta, whereby the King agrees to give consent to such Laws, as shall be propounded for the profit and good of the Kingdom.
And that I conceve, is the Cause, that when Bills come up, being agreed by both the Houses, the King's Majesty, to those he doth not allow, or not like of, doth make no direct denial, but Le Roy de avisera. For nothing can be done without the King's 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 House, who aimed more at their own Ends and Designs, than the general good of the Commonwealth, things were so carried, not as was used in ancient time, but so disastrously, that it hath wrought such a distaste of this Course of Parliaments as we, and all that truely love the Commonwealth, have just Cause to be sorry for it.
The Third Part.
Now I come to my Third Head, that is, to give Answer to such Precedents as have been shewed and insisted upon, to prove that the Kings of this Realm have made such Impositions, even in the matter of Shipping.
And herein first they have insisted upon a Tribute or Imposition, called Dane-gelt, which was begun in Etheldred's time, which as it was said, was double, ad placandos Danos, vel ad coercendum Danos, which was very Grievance and of long continuance: For as it was said by my Brother Crook, it was fist Ten Thousand Pound yearly, then increased to Sixteen Thousand, then to Twenty four Thousand, then to Thirty six Thousand yearly. 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 Tax, King Henry the First granted to the Citizens of London to be quit and free from Dane-gelt. And the same King about the 30th Year of his Reign, in Redemption of his sin did grant that Danicum Tributum should be totally released for seven Years, as it appears in Sir Henry Spelman's Book 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 ensued a strong Argument, that if such a Thing as the Dane-gelt, which had so long continued, were not taken away by these Acts of Parliament, it might have been put in use: For no Man will maintain that this Tribute of Dane-gelt can now be imposed at this Day by the King's Writ under the great Seal, which it might be if these Statutes had not taken it away.
And for this purpose, in the Statutes made 34 Edw. 1. cap. 8. the King grants to Clerks and Lay-men, that they shall have their Laws, Liberties, and free Custom as they have used the same at any time when they had them best. And if any Statutes have been made, or any Customs brought in by us, or our Ancestor to the contrary, that they shall be avoid and frustrate for evermore.
And concerning the generality of Precedents, which have been made use of on the one side, and on the other, out of Membrana's Patents and Commissions, and Answers to Petitions in the Roll of Parliament (to Petitions) I am very sorry that such obsolete and ancient Things have been mentioned, amny of which in my Judgment, had been better to have slept in silence, than to have been spoken of in these times.
But 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 ballivat 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 certain Barges and Billingers, without the assent of parliament,a nd in another manner than had been done before: The Commons did pray the King that the said Commissions might be repealed, and that they should be 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 Realm, in case that the War do come, the King will commune of this matter with the Lords, and after he will shew it to the Commons to have their consent.
The Fourth Part.
That is, since the time of R. 2. and H. 4. there hath been no such thing attempted, and that this dissuse is a sufficient matter to prove the unlawfulness. For since that time, though there have been in the Reigns of many Kings, occasion of Employments both of Ships for the desence of the Sea, and service of the Land, yet the course and order of Defence hath been by several other ways; as by Commissions to provide Men to serve for Wages, and by Indentures of Covenants, which were very frequent to be made between the Captain 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 Modern Times, have been this way all for Wages.
This is prov'd by an Indenture made in 15 Ed. 4. and Sir W.Pirton, Kt. reciting that the King had disposed of an Army of 4000 Men for the Narrow Seas, and the keeping of them; and that he should have constantly 460 Men under him, for four Months, the King's Majesty was to find the Ships furnished with Guns, Powder, Artillery, and Victual, and that the said W.Pirton should take Wages for every of his Company, viz two Shillings a Weeks and the times appointed for the Payment thereof.
And 28H.it appears by a Letter under the Privy Signet then, when by command Men were raised in the County of Lancaster, and by command coming towards the County of Lincoln to aid the suppression of Rebels, the Rebels having submitted before they came, they were commanded to return, and for their Charges in their Entertainment, and conveying of them, a reasonable Bill should be made, and sent to the king by a trusty Messenger, and he would cause a convenient Recompense to be delivered accordingly.
And for that which hath been insisted upon, that there hath been Commissions of Array, and Provision for Arms, and for preparing Armour from time to time, it is not to be denied, that first by several Statutes, as that of Winchester, and divers since, the Armour and Weapons, wherewith the Subjects of this Realm have been charged, are several, and changed according to the variety of times, as things have grown out of use, and other manner of Provision more serviceable and necessary, for which there have been Directions for Views, and for Training and Disciplining of Soldiers to be prepared for Defence. That this hath been in use no Man can, or ever could deny, or affirm the contrary. And in all the Prerogatives which have been before by Mr.Attorney. General urged that the king hath Interest in Mens Goods, and to execute his Writs by his Sheriffs 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 ther Possessions, and to deliver the Possession thereof to others, as it appears in Ploydon in Mancell's Case, which was vouched by Mr.Attorney General.
For as it is agreed in 34. H.6.fol.14. The King's Majesty is bound to keep his Courts of Chancery, and all his other Courts, at his own Charge. And 39. H.6.fol. 40. The King is bound to do law and Right to all his Subjects, which without these Powers and Prerogatives would not be performed.
But I conceive that it hath been generally agreed by all the judges (nullo contradicente) that if this Writ of Aug.4. which is Provision of a Ship and Furniture andMen,had been to have Authorised the Sheriffs 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 been expresly against the Statues; and if that be granted, then considering that these Writs to the Sheriffs,are accompanyed with Instructions commanding and directing the levying of Money, and proportioning what Sum is to be raised in every County for that Service: As in the County of York, and in the County of the City of York, the Sum of 12000 l. and the Sum of 8000 l. for the County of Lincoln, and so a Proportion of Money for every County for that purpose. The Consequence may be this, That this Levy which hath obtained the Name of Ship-Money, and wherein no endeavour hath ever been made for preparing any such Ship, or Furniture, or Men, as the Writ in it self purports, is not pursued, or waranted by this general Levy of Ship-Money. For it is a Rule, Id quod non potest fieri directe, ex obliquo fieri non debet.
I consess 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 Royal and Monarchical Power, to levy Monies by Commissions, and have extended that Power very far, whereof you may read, that in the 17th Year of K.H. 8.C Woolsey was charged to have been the cause of directing Commissions into all Countries for the levying the 6th part of all Mens Goods, and the 6th part of their Plate, for the King was then determined to make War with France, and to pass the Sea himself. This being attempted by enforcing some, and sending others to Prison, it grew to be so generally disliked, that the People rose up in divers Countries, and then the King disclaimed that it was done without his Privity. The Card. charged it to be done first by the Council; which they denied. then he charges the Judges to be consenting, which being untrue, the Card. took it to himself; and all the Commissioners were recalled; you may see it at large set down in divers Chronicles. and in the latter time of our graciousQ.Eliz. upon pretence of want for Expeditions in Ireland there was a general Benevolence required, and it went on for a time, and so far as it came to be voluntarily levied in the Inns of Court. And I can speak it of my own Knowledge, I paid a Sum, I think but 20 s. and others paid likewise. But not long after (as it was said) when the Q. was informed that this Benevolence was expresly against the Statute of R.3. and against the Laws, and distasteful; all the Monies levied was commanded to be restored, and repaid, and mine was, and the rest was so to others, as I heard, and do 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 Year of our gracious Sovereign Lord the King's Majesty, for the loan and levying of the five Subsidies which was affected, and acknowledged after not to be warranted by the Laws and Statutes: This Point is apparent, that in time of Necessities, these Illegal or Monarchical Powers have been assumed in the time of other Kings.
And hereupon I conclude these Points, that the Statutes have taken away this Power of charging the Subjects of this Realm with any general and Publick Charge, Aids, or Tallages, or Burthens for any Business, but only by their consent in Parliment, and no Usage, Precedent, or Custom, if such have been, can by Law take away the force of these Acts of Parliament, so long as they stand in force.
And I do absolutely believe, that if the King's Majesty had not been perswaded by some Opinions, that this Course was warranted by Law and Custom of the Realm, that he would not have attempted the same.
The Fifth Part.
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 of but Information, and not excerta scienta, which are of more force. The other Words are but of Information or Suggestion.
Then for the matter it contains only these Points, That there are many Pyrates and Sea-Robbers congregated upon the Sea to takeaway 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 coming and traffiquing hither, and spoiling of our Merchants; and for that the Sea hath been, and ought to be defended by Gentem Anglicanam, and they intending to trouble the Kingdom.
And we considering the danger every where now imminent, and desiring the defence of the Realm, the safe-guard of the Sea, the security of our Subjects, the safe conducting of the Ships of our Merchants, and of their Merchandizes, to come into our Realm, and to go forth of the Realm, and willing to provide for their Aids, do therefore direct this Writ.
Here is no matter of any publick Danger to all the Subjects, no intended coming upon the Land, but do rob and spoil as Pyrates by Sea, and Conspirators to molest Merchants, to hinder Traffique, to take some Prisoners, as have been done heretofore, sometimes by the Dunkirkers, and many times by the Pyrates to Argiers,
All this is but such a Defence as doth require but the ordinary Defence, to the which the King's Majesty is solety bound for to see perform'd, for the ordinary Benefits that he hath of Customs, and Subsidies of Wines, and other Profits, besides the Tonnage and Poundage; and the Ships which are provided by the Cinque Ports for which they have many Priviledges.
Another Reason to prove that the Writ doth not contain sufficient matter to induce a general Charge (is to be collected.) That this being perceived, it is contained more amply, and laboured to be aided and supplied by the Words put into the Mittimus, Which are of more Efficacy; for therein is contained, which is not in the Writ of 4 Augusti: Quod pro Defensione Regni, & tuition Maris; and for that, sales Regni nostri Anglie & Populi nostripericlitabitur: And the recitical of [Datum est nobis intelligi] is omitted, but hereby assirmed positively.
Hereunto I make this Answer, Quod in initio non valet, tractatu temporis non convalescet: Besides the date of the Writ of Muttimus of the fifth of May, Anno 13 Car.Regis, which is almost two Years after the Writ of 4 Augusti did issue, and this is a very late Supply; and there fore that Cafe was vouched by my Brother Berkley, which was Dowman's Case, Anno 25 & 26 Eliz and reported by my Lord Coke in his Ninth Book, wherein it is adjudged, that when a Fine or Recovery is suffered, and no uses declar'd, That an Indenture subsequent declaring that the Fine or Recovery was to such uses, shall be sufficient in Law to lead to the uses of those proceeding Assurances; which I agree to be good Law: But that doth not resemble this Case, for this must be good in the Foundation, or no subsequent Declaration can make that good which at first was not, And that I prove by two Cafes directly adjudged.
There first is Vernon's Case,Anno 14 Eliz. adjudged and reported by my Lord Coke in his Fourth Book upon the Statute of Joynture, A Man intending to make a Joynture to his Wife to bar her of her Dower, maketh a Feossment of his Land to the use of himself for Life, and then to the use of a Friend for his Life, and then to the use of his Wife for a Joynture; altho' by success of time it happeneth that the Friend die in the Life of the Feosser, and so the Wife's Estate becomes immediate to begin upon her Husband's Death, and might have been a good Joynture, if it had been so made at First, yet this Case is adjudged to be no Joynture, for it was not good in the Foundation, and that which was defective in the Original, is not good by any Accident subsequent.
And in Lord Cbeney's Case reported by my Lord Coke in his Fifth Book,fol. 62. in the four and thirtieth Year of Queen Elizabeth, it is resolved upon the Statute of Wills, that the Estate contained in a Will in Writing, which is the Foundation and Ground, must be such as is expressed in the Written Original Will, and that no averment of subsequent Proof of Intention of Explanation can add or supply any thing to that Original.
Another Exception is, that by the Writ, all the King's Majesty's Subjects are to be rated and taxed to Contribution, other than such as have part in the Ship, or else do serve therein. And thereby the Sheriff of every County must either not be taxed, or not Contribute, for it is inconvenient, nor can be done, that every sheriss should Tax himself.
Next for the Writ of Certiorare, that is very unusual to be directed to two several Sheriffs, being then no Sheriffs, to certify what Taxations they had made upon that Writ; They were then no Officers: But it should either have come by Inquisition, or by the return of the then present Sheriff, to have ratisied what his Predecessors had done in their times, and not this way which was never before heard of.
Fourthly, The Scire Facias ought to be awarded out of a Presentment, or Inquisition, whereby the matter may be found, whereby the King is entituled, or upon some Presentments which concern the Common-wealth, as Presentments that a common Bridge is in decay, and that either a particular Man is bound to repair it, or that it is in default of the Country, or of the Inhabitants of such a Hundred; and the like for repair of High-ways. There I agree as was said by my Brother Trevor, a Scire Facias is usually awarded out of the Exchequer; but I conceive these prove, that without a Presentment or Inquisition that no Scira Facias doth properly lie, or ought to be awarded.
And therefore I will conclude this with the Case of 2 Edw. III. fol. 2. The King by his Writ directed to the Sheriff of Lancaster, reciting, That where Sir John Langton had delivered divers Sums of Money to one Robert his Companion, to come to the King in aid of his Wars in Scotland, and the said Robert did not come, but did spoil and did take the Goods and Chattels of divers of our Subjects in the said Country, and did rob, and spoil, and waste the Goods of our Subjects to the Value of two ThousandPounds, ut accepimus le Roy, command to the Sheriff, De attach the Body of the said Robert, and he was attached, and did not appear. And by his Counsel 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 fee 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 stranger Cafe than ours. And for these Reasons I conclude this Part, that no Scira Facias ought to be awarded in this Cafe.
The Sixth Part.
Now it remains to give Answer to that which hath been before objected; and spoken of only by Master Solicitor, that the Judges had before given their Opinions to warrant the legality of this Charge, and subscribed their Names.
First, I do affirm, and it doth appear by my Argument, that this Cafe 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 Kingdom in general is concerned, and the whole Kingdom is in danger, that then for the Defence of the Kingdom from such Danger, the King may by Writ impose the Provision of Ships with Furniture and Men.
But is only there be Pyrates and Robbers of the Sea, assembled together at Sea to rob, spoil, and take the Goods and Merchandizes that are to be brought into the Kingdom, and safe conducting of the Merchants from spoil, 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 general charge upon that Occasion.
But is there were an intended Invasion, and that known to the King's Majesty, whom it concerns most, and upon such an Intention, in such a cafe of Necessity, which is and may be termed a time of such danger, as it may be fit to prepare for defence of the Realm, then I am of Opinion, that in such a Cafe, all that hath been said, that Necessitas est Lex temports,and Salus Reipublic & est summa Lex, and then Silent inter arma leges, might be just Causes for that time only to make a Preparation of Ships. And in this Cafe here doth not appear that there was not any one Ship provided or prepared by the Sheriff.
The King is the sole Owner and Lord of the Sea, and hath, Power thereof; and as it was agreed in a notable, Cafe that was adjudged in the Exchequer Mich the fourth Year of King James against one Bates wherein I was then of Counsel, the King may lay an Imposition upon Foreign Commodities to be brought into this Realm, for there was five Shillings laid upon every hundred Weight of Currans, over and besides the two Shillings Six Pence for Poundage: And Bates having Notice of this Imposition, brought in a Ship fraughted with Currans, and paid the two Shilling fix Pence for Poundage, but refused to pay the five Shillings for every hundred Weight : And upon Information, the Cafe was argued at the Bar, and at the Bench; and it was adjudg'd, that the Imposition was lawful, and that the King in his Prerogative had totum dominium maries, and that all the Ports were the King's and that the King had sole Power to restrain 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 maintain the Ports, to provide for the safety of the Merchants, and to clear and fcowre the Narrow Seas from Pyrates and Robbers, for the doing whereof was added the Tonnage and Poundage by grant in Parliament.
Lastly these sudden Opinions, when Judges hear 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 inform'd, they may alter and change, which hath usually happened. Besides, as it is very well known, we were not all of Opinion, but the greater Number the concurring, the Subscription was for conformity, as sometimes is used in such Cafes.
To this it is answered, That a Demurrer consesseth the matters of Fact, which are susisiciently alledged; but such matters of Fact as are not Sufficiently alledged, those are not consessed, but left to the Judgment of the Court.
See these Cafes so adjudged and resolved in these Books, Coke Lib. 4. fol. 43. in Hudson's Cafe, matter sussiciently alledged est consesse: And according to this it is agreed in Hind's Cafe, in the fame Book, fol. 71.
The very express Cafe, is that of Briton upon Usury, which was An. 33, & 34 Eliz. where it is adjudged that the Demurrer consesseth nothing that is sussisiciently alledged; as where a matter of Usury is alledged, and is not so susiciently alledged, that it appears to be Usury, the Demurrer doth not consess that to be Usury, as is pretended.
So likewise in this Cafe, the Demurrer general doth not, not can supply the defect of the matter which should have been comprized in the Writ of 4Augusti. The Demurrer consesseth that there was such a Writ, but doth neither consess the lawfulnefs thereof, nor the defect of the insufficient alledging of any matter which should have been contained therein.
And thus with as much Brevity and Perspieuity 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 Realm are Subjects, and not Slaves; Freemen, and not Villains; and therefore not to be taxed De also & basso, and at Will, but according to the Laws of this Kingdom.
And therefore I conclude, that neither for the matter, nor for the manner, this Writ of Scria Facias brought in this Court of Exchequer, upon the Tenour thereof, can be maintained. And therefore in my Opinion, I adivse the Barons to give Judgment accordingly for the Defendant.
The Argument of Sir George Crooke, Knight, one of the Judges of the King's-Bench, upon the Case of the Scire Facias out of the Exchequer, against John Hampden, Esq; Decimo quarto Aprilis, Anno Domini, 1638.
- 1. Quia datum est nobis intelligi, Quod Predones quidam Pirati, ac maris Grassatores, tam nominis Christiane hostes Mahumetani, quam alii congregati, Naves, ac bona, ac mercimonia non solim subditorum nostrorum, verum etiam Subditorum amicorum nostrorum in mari, Quòd Per gentem Anglicanam obolim defendi consuevit, nefarie diripientis & spoliantis ad libitum suam, deportauere hominesque in eisdem in captivitatem miserimam mancipantes.
- 2. Cumque ipsos conspicimus navigium indies preparantes ad Mercatores nostrus ulterius molestand', Et ad regnum grauand, nisi citins remedium apponatur, eorumque conatum virilius obuietur.
- 3. Consideratis etiam periculis que undique his guerrinis temporibus imminent; It a quòd nobis & Subditis nostris defensionem maris & regni omni festinatione quâ Poterimus acceller are convenit.
- 4. Nos volentis defensione regni, tutione maris, securitate Subditorum nostrorum, salue conductione navium & marchandizarum ad regnum nostrum Anglie venientum, & de eodem regno ad Partes exteras transeuntium (auxiliante Deo) Providere; Maxime cum nos & Progenitores nostre Regis Anglie, Domini maris Predicti, semper hactenus extiter, & plurimum nos lader', si honor iste Regius nostris temporibus depereat aut in aliquo minuatur.
- 5. Cumque onus istud defensionis quod omnes tangit, per omnes debeat supportari, prout per legem & consuetudinem regni angle fieri consuevit.
Vobis prafatis Vicecomitibus, Ballivis, Burgens. Majoribus, probis hominibus, & omnibus aliis quibuscunque supramentionat' in Burgis, Villis, Villatis, Hamlettis, & locis supradictis, eorumque membris in side & ligeancia, quibus nobis tenemini, & sicut nos. & honorem nostum diligitis: Necnon sub forisfactur' omnio que nobis forisfacere poteritis firmiter injungemus.
Mandamus quòd unam novem de guerra, portagii 450. dolior cum hominibus, tam magistris peritis, quam marinariis volentior & expertis centum & octoginta ad minus, Ac tormentis tam majoribus quam minoribus, pulida tormentario, ac hastis, & telis, aliisque armatoris necessariis pro guerra sufficien. Et cum duplici Escippamento, necnon victaalibus usque ad primum diem Martii tunc proxime. sequentem, ad tot homines competen'; & ab inde in viginti & six septiman' ad custagia vesta tam in victualibus, quom homin' salariis, & aliis ad guerram necessariis per tempus illud super defensionem maris in obsequio nostro in Commit' custodis maris, cui custodiammaris ante prodict'primum diem Martii committemus, & prout ipse ex parte nostra dictaverit moratur parari; Et ad portum de Portsmouth citra dictum primum diem Martii duci faciatis. It a quo'd sint ibidem eodem die adultimum ad prosiciscend' exinde cum navibus nostris, & navibus aliorum fidelium Subditorum nostrorum pro tuitione maris & defensione vestrum & vestrorum, repulsineque, debellationeque quorumcunque Mercatorum nostrorum, & alios Subditos & fideles predictos in Dominia nostra ex causa Mercatur' se divertentes, vel abinde ad propr' declimantes super mare gravare, sue molestare satagent'; Assignavimus autemte profatum Vic' Bucks ad assidend' omnes bomines in villes de Agmundesbam, Wendov', & Marloe magna & in omnibus aliis Villis, Vilatis, Burgis, Hamlettis, & aliis locis in Com' Bucks, & terrœ tenentes in eisdem navem vel partem navis prod'non habentes vel in eadem non deservientes, ad contribuend' expenis. erge provisionem promis, necessar.
Et super prodictas Villas, Villatas, Burgos, Hamlettas, & locos cum membriseorunderin, sic ut profertur, assidend' & ponend' viz. Quemlibet eorum super statum suum, & facultates suus, & portiones super ipsos assessat' per destrictiones, aliosve modos debitos levand' & Collectores in hac parte nominand' & constituend', Ac omnes eos quos rebelles & contratios inveneris in promissis in carcere mancipand' in eodem moratur, quonsque pro eorum deliberatione ulterius duxerimus ordinand'.
Et ulterius mandamus quoòd ciětra premiss. diligenter intendatis, & faciatis, & exequamini cum affectu sub periculo incumbonte. Nolumus, autem, quoòd colore predicti mundati nostri, plus de eisedm bominibus levari faciat, quàm ad prœmiss, sufficiat expens, necessar, Et quod quisquam qui pecuniam de contributionibus ad predict' custag' faciend' levaverit, eam, vel partem inde aliquam penes se detineat, vel ad alios usus, quovis quasito colore appropriare prosumat, volentis quòd siplus quœm sufficiat collectum fuerit, boc inter solventes pro rata portionis ipsis contingen' exsolvat.
By virutue of this Writ, Mr. Hampden is assessed to Twenty Shillings for his Land in Stoke Mandivil in that County, which not being paid is certified (amongst others) into the Chancery upon a Writ of Certiorari, dated 6 Martii, Anno 12 Car. by a Schedule thereunto annexed And by a Writ of Mittimus Teste, 5 Maii 13 Car. this Writ of quarto Augusti, Anno 11 Car. and the Writ of Certiorari, and the Schedule annexed is sent unto the Exchequer, with a Command there to do for the levying of the Sums so assessed and unpaid (Prout de jure, & secundum legem regni nostrin Anglio fuerit faciend'.) Whereupon a Scire Facias issued out of the Exchequer, reciting the said Writs, to warn Mr. Hampden, amongst others, to shew Cause why he should not be charged with this Money. Upon this being summoned, appeareth, and demands the hearing of those Writs and Schedule, which being entred, there upon he demurreth in Law.
And whether Judgment upon this whole Record be to be given against John Hampden, that he is to be charged or no, that is the Question. For he is the only Party in this Cafe And there is no Cause, why any Man should say,that the Question is, Whether Judgment should be given for the King, or for the Defendant; for, as this Cafe is, the King is no Party to the Record, but only it is a judicial Process out of the Exchequer, grounded upon those former Records for the Defendant, to shew Cause why he should not be charged, which hath been very elaborately argued by the Defendant's Counsel (who demurred) that he should not be charged; and by the King's Counsel very learnedly and elaborately argued, that he should be charged.
This Case is a case of great Weight, and the greatest Case of Weight that ever we read argued by Judges in this Place; and therefore adjourned into this Place, for advice of all the Judges : For of the one side it is alledged, that it concerneths the King in his Prerogative and Power Royal; and on the other side, that it concerneth all the King's Subjects in their Liberties, their Persons, and their Estates : For which cause it hath made some of us to with and move among our selves, that it might have been (by his Majesty's Favour) heard and determined in another place by his Majesty, and his great Council of his Realm : Where all Conveniences and Inconveniences might have been considered of, provided for, and prevented for present and future times, and not to be argued only by us, who are accompted his Majesty's Counsel at Law; wherein if any thing be done amiss, the Fault must light upon us, as mis-advising the King therein : But seeing that it hath pleased his Majesty, that the same should be argued and determined in this place, whose Pleasure we must obey, I must give my best Advice upon my Oath to the best of my skill; wherein, I hope not to Trench upon his Highness's Prerogative, which we are all bound by our Oaths, to the best of our skills, to maintain, and not to suffer to be diminished; nor upon his Royal Power : But truly to deliver what I conceive the Law to be, concerning the Case in Question.
Wherein I must confess, I have been much distracted, having heard so learned Arguments on both sides at the Bar; and so many Records and Precedents cited on either side. But they did not so much move me; for the Counsel have on either side pressed such Reasons and Arguments, and cited such Records, as they thought convenient for the maintaining of their Opinions; and perhaps with a prejudicate opinion, as I my self, by my own experience, when I was at the Bar, have argued confidently : And as I then thought the Law to be of that side for whom I argued; but after, being at the Bench, weighing indifferently all Reasons and Authorities, have been of a contrary Opinion: And so the Law hath been adjudged contrary to that Opinion, which I first confidently conceived; but that which hath moved me most, and maketh me most mistrust my own Judgment in this Cuse, is, That all my Brothers (who have all argued upon their Oaths, and, I presume, have seen the Records and Precedents cited on either side) have all argued one way, with whose Opinion I should have willingly concurred, if I could have satisfied mine own Judgment with their Reasons; but not being satisfied, I have learned, that I must not run with a Multitude against mine own Conscience. For, I must stand or fall unto my own Master; and therefore I shall shew my own Reasons, and leave my self to the Judgments of my Lords, and others my Brethren. And whatsoever shall be adjudged, I must submit unto, and so do wish all others; and do now determine mine Opinion to be, That, as this Case is, Judgment ought to be given for the Defendant.
To this I answer, that the Demurrer consesseth not matters in Fact, but where the matter is legally set down, but if it be not a legal Proceeding, then the Demurrer is no consessing of the matter in Fact.
This appears in the Book Case of 5 Hen. VII. fol. 1. and Cook, lib. 5. sol. 69.in Burton's Case, that a Demurrer is no consessing in matters of Fact; but where the matter precedent is sufficiently pleaded and laid down, and so it is holden in all our Books.
To this I answer, that it is true, I have set down mine own Opinion under mine Hand unto a Case in February 1636. which is, that when the good and safety of the Kingdom in general is concerned, and the whole Kingdom is in Danger, his Majesty may, by Writ under the great Seal of England, command all his Subjects of this Kingdom at their Charges to provide and furnish such Number of Ships with Men, Victal, and Munition; and for such time as his Majesty shall think sit for the Defence and safeguard of the Kingdom from such Danger: And that his Majesty may compel the doing thereof (in case of refusal and refractoriness) and that in such Case his Majesty is the sole Judge of the Danger, and when, and how the same is to be prevented and avoided.
To this Opinion I confess, I then with the rest of the Judges subscribed my Hand: But I then dis-assented to that Opinion, and then signified my Opinion to be, that such a Charge could not be laid by any such Writ, but by Parliament; and so absolutely in that Point one other did agree with me, 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 be absolutely resolved upon that Opinion, some of them affirming, that they had seen divers Records and Precedents of such Writs, satisfying them to be of that Judgment, I was pressed to subscribe with them: For that the greater Opinion must involve the rest, as it was said to be usual 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, Judgment 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 than my self) was affirmed to be the continual Practice; and that it was not sit, especially in a Case of this Nature, so much concerning the service of the King, for some to subscribe and some to forbear their Subscription. And that although we did subscribe, yet it did not bind any, but that in point of Judgment, if the Case came in question Judicially before us, we should give our Judgments as we 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 mean 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 diffented, or was doubtful: But it was then said, the King should be truly informed thereof. And thereupon, we that did diffent, did subscribe our Hands with such Protestations as aforesaid, only for Conformity, although contrary to the Opinion I then conceived.
But this being before Arguments heard of either side, or any Precedents seen, I hold that none is bound by that Opinion; and if I had been of that Opinion that was subscribed, yet now having heard all the Arguments of both sides, and the Reasons of the King's Counsel to maintain this Writ, and why the Defendant is to be charged, and the Arguments of the Defendant's Counsel against the Writ, and their Reasons why the Defendant should not be charged to pay the Money assessed upon them: And having duly considered of the Records and Precedents cited and shewed unto me, especially those of the King's side, I am now of an absolute Opinion, that this Writ is illegal, and 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 Judgment and Conscience, in a contrary Opinion, I think it no shame to declare, that I do retract that Opinion, for Humanum est errare, rather than to argue against my own 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.
- 1. That the command, by this Writ of Aug. 4 11 Caroli, to make Ships at the charge of the Inhabitants of the County (being the ground of this Suit, and cause of his charge) is illegal and contrary to the Common Law, not being by Authority of Parliament.
- 2. That if at the Common Law it had been doubtful, yet now this Writ is illegal, being expresly contrary to divers Statutes prohibiting any general Charge to be laid upon the Commons in general, without consent in Parliament.
- 3. That it is not to be maintained by any Prerogative, or Power Royal, nor allegation of Necessity or Danger.
- 4. That admitting it were legal 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 Soldiers at their Charge which are far remote from the Seas, is illegal, and not warranted by any former Precedent, &c.
- 5. I shall examine the Precedents and Records cited to warrant this Writ, which have been all the principal Grounds of the Arguments to maintain the same. And I conceive, there is not one Precedent or Record in any precedent time, that hath been produced and shewed unto me, that doth maintain any Writ to lay such a Charge upon any County, Inland, or Maritine.
- 6. I will examine this particular Writ, and the several parts thereof, and do conceive that it is illegal, and not sufficient to ground this Charge upon the Defendant.
- 1. The Motives of this Writ are nor sufficient to cause a Writ to be sent.
- 2. The Command of the Writ, to prepare a Ship at the Charge of the Inhabitants
And as by Grant the King cannot charge his People, so neither can he 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. Fitzherb. Nat. Brev. fol. 113. where, by Breach of the Sea-Wall, any Inundation of the Country, the King, who is Pater Patriœ, 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 near adjoining, which may have Benefit of inclosed Marshes, or loss by such Inundation, to be contributary to the making up of the Sea-Walls; and this is done by a Jury: But this Charge cannot be laid upon a County or Town in general, but particular Men that have Benefit or Loss, or may have Loss or Benefit thereby: And this is done upon enquiry of a Jury before the Sheriffs or Commissioners appointed.
So it is at this Day upon the Commission of Sewer, as appeareth by Coke, lib. 10.fol. 142, in the Case of the Isle of Eley; That the Taxation by the Commissioners of Sewers must be 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 level of such Loss or Benefit: And it must be certain and particular upon Persons certain, by Reason of Land or Profit, and cannot be laid in general; but in these Cases there is a particular Loss or Benefit, and in particular Places, and but in petty Charges; and then where the Law alloweth that which in Reason is to be done, that may be done, without a special Statute; for, De minimis non curat Lex: but in this case there is a general Charge through the Kingdom, which the Law doth not permit without common consent in Parliament.
To this I say, When imminent Danger and cause of Defence is, there must be 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 president, is bound per se & sua to Defend the Kingdom. And I think no Man will be so unwise, but that he will exponere se & sua for the Defence of the Kingdom, when there is Danger; for otherwise he is in danger to lose se & sua. But to lay a Charge in general upon a Kingdom, either for making or preparing of Ships or Money in lieu thereof, is not to be done but by Parliament, when the Charge is to be born in general 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 Mic. 14. E.2 Rot. 60. in the K. Bench in a Writ of Error brought upon a Judgment given in Durham; where, in an Action of Trespass by W Heyborne against W. Keylow, for entering his House, and breaking his Chest, and taking away 70 l. in Money, the Defendant pleading Not Guilty, the Jury found a special Verdict, That the Scots having entered the Bishoprick with an Army into Durham, and making great burning and spoils, the Communalty of Durham met together at Durham, whereof the Plaintiff was one, and agreed to send some to compound with them for Money to depart, and were all sworn to perform what Composition should be made, and to perform what Ordinance they should make in that behalf; and thereupon they compounded with the Scots for 1600 Marks But because that was to be paid immediately, they all consented that William Keylow the Defendant, and others, should go into every Man's House to search what ready Money was there, and to take it for the making of that Sum, and that it should be repaid by the Commonalty of Durham: And thereupon the Defendant did enter into the Plaintiffs House, and did break open the Chest, and took the 70 l. which was paid accordingly towards that Fine. The Jury were demanded whether the Plaintiff was present, and did consent to the taking of the Money? They said, No. Whereupon the Plaintiff had Judgment to recover the said 70 l. and Damages; for that otherwise he 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 Error in the King's-Bench, and assigned his Errors in point of Judgment, and there the Judgment was revers'd:
- 1. Because the Plaintiff Heybourne had his sufficient Remedy against the Commonalty of Durham for his Money.
- 2. Because he himself had agreed to this Ordinance, and was sworn to perform it; and that the Defendant did nothing but what he assented unto by by his Oath; and therefore is accounted to do nothing but by his Consent, and as a Servant unto him; therefore he was no Trespasser. And therefore the Judgment given in Durham was reversed, because he had assented to that Ordinance; though he was afterwards unwilling, yet having once consented, his Goods were lawfully taken: By which it appeareth, that if he 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.
- In the second Year of King Richard II. Pars prima, 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-Chancellor, 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 Kingdom was in, and how Money might be raised in a case of imminent Danger, which could not stay the Delay of a Parliament, and the King's Coffers had not sufficient therein; The Record is, That they all agreed, that Money sufficient could not be had without laying a Charge upon the Commonalty; which (say they) cannot be done without a Parliament. And the Lords themselves for the Time did supply the said Necessity with Money they lent. Which Record proved directly, that this Charge, without an Act of Parliament, is illegal.
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 be, for they may be charged as often as the King pleaseth, and with making as many Ships, of what Burthen, and with what Charge of Munition, Victuals and Men, as shall be set be down: 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 Judgments, are not to look to present Times, but to all future Times, what may follow upon their Judgments.
That this Inconvenience may be, it appears by the Dane-gelt, first appointed in Time of Necessity to redeem them from the Cruelty of the Danes, which often changed, and still increased; for in Anno Domini, 991, when it began, it was Ten thousand Pounds; and Anno Domini 994, it was increased to Sixteen thousand Pounds; and Anno Domini 1002, it was increased to Twenty-four thousand Pounds; and Anno Domini 1007, it was increased to Six and thirty thousand Pounds; and in Anno Domini 1012, it was increased to Eight and forty thousand Pounds. So if this Writ be well awarded, it may be at Pleasure what Bounds it shall have.
Also there were never but one single Subsidy and two Fifteens used to be granted in Parliament, until the One and thirtieth Year of Queen Elizabeth, and then a double Subsidy and four Fifteens were granted, Sir Walter Mildmay, then Chancellor 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 immediately after the Spanish Invasion; and so it was granted. Afterwards, in the Five and thirtieth Year of Queen Elizabeth, Treble Subsidies, and fix Fifteens were granted; and in the Three and fortieth Year of Queen Elizabeth, Four Subsidies and Eight Fifteens: And yet these were not accounted grievous; neither would it have been, if it had been Ten Subsidies, because in Parliament, and convenient Times and Means appointed for the levying of them.
Tonnage and Poundage were granted to this End, 13 R.2. (and have continued ever since by several Grants) that the King might have Monies in his Purse against Time of Need for extraordinary Occasions; especially for the Defence of the Realm, and for guarding the Seas, as it is especially declared by the Statute of 1 Jac. and former Statutes.
Though it be not granted, yet I think 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 Kingdom, and the Guard of the Seas.
Therefore in case of Danger and Necessity, every Subject, for Defence of the Kingdom, is bound Ligeanciœ, debito as some Records say; and Ligeanciœ fuœ vinculo astricti, as others speak; Se & Sua totis viribus & 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 desend the Sea: Yet this also (when they go out of their Countries) at the King's 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 general, for Matter of Defence or Avoidance of Danger, is not Warrantable by the Common Law.
2. Another Inconvenience is, That it is lest in the Power of the Sheriff to charge any Man's Estate at his Pleasure; taxing some, and sparing others, as his Affection leadeth him. And sometimes by Colour thereof, levying more than he need, and enriching himself; which Power the Law never alloweth him, although it were in less Matters; as to make an Assessment for the Breach of the Sea-Walls, but to do it by a Jury, and not himself alone
For the second Point, I conceive, if the Common Law were doubt ful in this, whether such a charge might be imposed by Writ, yet now it is made clear by divers express 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 King by Statute may bind them and their Successors not to lay any such Charge, every King being bound by Oath to perform the Statutes of his Realm.
For as much as divers People of our Realm are in fear that the Aids and Taxes which they have given us before time towards our Wars and other Business of their own Grant and Good Will, (howsoever they were made) might turn to a Bondage to them and their Heirs, because they might be at another time found in the Rolls; and likewise for the Prizes taken throughout our Realm by our Ministers, We have granted for us and our Heirs, that we shall not draw any such Aids, Taxes, or Prizes into a Custom for any thing that hath been done heretofore by any Roll, or any other Precedent that may be found.
Ibidem, cap. 6. Moreover we have granted for us and our Heirs, as well to Archbishops, Bishops, Abbots, Priors, and other Folk of Holy Church; as also to Earls, Barons, and to all the Commonalty of the Land that for no Business from henceforth we shall take such Aids, Taxes, nor Prizes, but by the common assent of the Realm, and for the common Profit thereof, saving the ancient Aids and Prizes due and accustomed. Which are the Express Words of that Statute.
Now what those ancient Aids were, is well known, viz. that they were, ad redimendum corpus, ad filium primogenitum militem facien': Et ad filiam primogenitam maritandam. Which Aids concern not the Subjects in general, but particular Men were liable thereunto by their Tenures; so this saving needed not to have been; for the Body of the Act extended not to them, but to general Aids of the Kingdom.
However, if this Salvo, as it hath been objected, would preserve this Aid now in Qustion; yet the Statute made afterwards de Tallagio non concedendo, being without any Salvo, takes it away; which Statute Rostal in his Abridgment, fol, 441. in his Titleof Taxes, abridgeth in this manner.
Ibidem, 2. That no Tallage by us or our Heirs in our Realm, be put or levied, without the assent of the Archbishops, Bishops, Earls, Barons, Knights, Burgesses, and other Free Commons of our Realm, That nothing be taken from henceforth in the Name, or by Reason of Male tout of a Sack of Wool, Statutum de Tallagio non concedendo.
- 1. For that it is not to be found in the Rolls of Parliament.
- 2. For that it is not set down, when it was made.
- 3. That it was but an Abstract out of Confirmatio Chartœ libertatum.
Master Attorney said, he would not deny it to be a Statute, neither would he affirm it; but yet it did not extend to take away the Aid manded by Prerogative, or Power Royal, for Defence of the Kingdom.
- 1. For that it is printed in the Book of Statutes a Statute.
- 2. It is recited in the Petition of Right, 3 Car. to be a Statute.
- 3. To that, that it is not found in the Rolls, I answer, That many Statutes which are known 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. I. cap. I. for so it is set down in the great printed Book of Statutes Anno 1618. to be the first Chapter of the Statutes therein made, viz. in these Words:
The only Doubt then is, Whether this Statute extendeth to Aids for Defence of the Kingdom; which I think it doth; for it is the precise Words, That no Tallage or Aid shall be taken or levied, but by consent in Parliament; which extendeth to all manner of Aids.
Bodin faith fol. 97. by a Law made in the time ofEdw. 1 that it was provided and enacted, That no Tax, Tallage, nor Aid, shall be 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 Foreign Parts, and so held still to be a Statute in force.
We willing to provide for the Indemnity of the said Prelates, Earls, Barons, and other the Commonalty of the Realm; and also the Citizens, Burgesses and Merchants aforesaid, will grant for us and our Heirs, to the she same Prelates, Earls, Barons, and Commons, Citizens, Burgesses and Merchants, that the same Grant shall not 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 Aids, nor sustain Charge, if it be not by the common Assent of the said Prelates, Earls Barons, and other Great Men, and Commons of the said Realm of England,and that in the Parliament; and that all she Profits arising of the said Aid, and of Wards, Marriages, Customs, and Escheats, and other Profits arising of our said Realm of England, shall be set and dispended upon the maintenance of the safeguard of this Realm of England, and of our Wars of Scotland, France, and Gascoin, and in no place elsewhere, during our said Wars.
By the Statute it appeareth, that it is expresly provided, That the Subjects should not be from thenceforth charged nor grieved to make any Aid, nor sustain any charge, but by common assent, and that in Parliament; which is as express 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 Towns 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 Wars ended, which appeareth by the last Clause, for Employment of those Profits of his Wards, &c. towards those Wars. I conceive it appeareth to bean absolute and perpetual Statute; for it is granted for him and his Heirs, which is in perpetuity; and also it appears by Plowd. his Commentaries, fol. 457. in Sir Thomas Wroth's Case, where a Grant is by the Name of the King, which is in his politick Capacity; this extended against him, his Heirs and Successors, although they be not named.
Also the intendment of this Law appeareth to be for the Security of the Subjects from thenceforth for all future Ages; and then the Office of Judges is, as appears by Sir Edward Coke's Reports, lib. 3. fol. 7. and Plovden's Commentaries in Byston and Stud's Case, to construe Statutes according to the true Intent of the Makers thereof, which was in this Case, That it should be a perpetual Security for them, and to little purpose it had been to make a Statute to continue but during the time of the Wars,
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 Realm, the Subjects shall not be compelled to contribute to any Tax, Tallage, Aid or other like charge not set by Parliament, in which this Statute is as well intended as other Statutes, and as far, as if it had been expresly cited.
21 Edw. III. part 2m. 11. A Subsidy being granted by Parliament, viz Forty Shillings of every Sack of Wool transported before Michaelmas following, and Six Pence of every Twenty Shillings, of Merchandize, for the safeguarding of the Merchants Defence of the Coasts, &c.
After Michaelmas, 31 Octob. 21 Edw, III. by Writ the Collectors were commanded to continue the Collection of the Subsidies until Easter. But 26 November 21 Edw. 3. the King by Writ commanded the stay of the Collection of the Six Pence in the Twenty Shillings, and to continue the Collection of the Subsidies upon the Sacks of Wool until Easter.
22.Edw. III. 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 Wool longer than the Parliament had granted it; and provided, that it should not be continued longer than Easter by the procurement of no Person.
By this it appeareth, that the Parliament being careful, that the time for levying of a Susidy granted, should be enlarged by any Power, much less would they admit of a Writ, to lay a charge without grant by Parliament.
By this appeareth, that if Men be not compellable to find a Man at Arms, unless it be by common assent in Parliament, much less is any bound to be contributary to the preparing of a Ship with 180 Men at Arms, and Victuals, and Wages of the Soldiers for a time, unless it be by common assent in Parliament.
Rot. Parliamenti 2 Hen. IV. 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 Boroughs within the Realm, to make Barges and Barringers, without assent in Parliament, and otherwise than hath been done before these Hours; the Commons do pray the King, that those Commissions may be Repealed, and that they may not be of any force or effect. To which it is answered, that the King willeth, that the said Commissions be repealed in all Point, which is an absolute and perfect Stature; but then there is added these Words, But for the great Necessity that he hath of such Vessels for Defence of the Realm, in case that the Wars shall happen, he will treat with his Lords of this matter, and afterwards will shew it unto the Commons, to have their Counsel and Advice in this Point; so by this Record it appeareth that the Commons did conceive, That no Cities, Boroughs, nor Towns, without assent in Parliament, were to be charged with the making of such Vessels, to which the King agreeth. And that from that day to this very day, (until the making of these Writs) in no Age (although the Kingdom hath been many times in danger of Invasion, and hath been invaded) there do appear any Records that ever I have seen, or any Writs directed to Towns or Cities, at their charges to make or prepare any Ships or Vessels whatsoever.
And whereas it hath been 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 conser with the Commons) is a gentle denial of that Act, as the experience is at this Day: Roy se avisera is a denial 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 be made, went out ever since until this Writ.
13. Hen.IV. nu. 10. A Grant is of a Subsidy of Woolls Woolsels, Hides, and other things there mentioned, and of Tonnage and Poundage for one year, for the Defence of the Marches of Callice, &c. and for the Defence of the Realm, and safeguard of the Sea; and therein is this express Proviso, viz. provided always, That this Grant of a Subsidy of Woolls, &c. and of Tonnage and Poundage in time to come, shall not be taken in example, to charge the Lords or Commons of this Realm with any manner of Subsidy, for the safeguard of. Callice, &c. nor for the Defence of the Realm, nor for the safeguard of the Seas, unless it be by the Wills of the Lords and Commons of this Realm; and that by a new Grant to be made, and that in free Parliament to come. By this it appeareth, that it was then provided, that no charge should be laid upon the Lords and Commons, No, not for the Defence of the Realm, but by Grant in full Parliament.
13. Hen. IV. nu 33. 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 levy upon the Sale of every Broad Cloth, an Half penny of the Buyer, and an Half 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 Highness's Progenitors made to the contrary; by which it is ordain'd, That no Tallage nor Aid shall be granted nor levied, without Assent and Consent of the Lords and Commons of your Realm, as by the said Statute fully is declared: Wherefore they pray, that such Letters Patents, thereof made, shall be 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 Aid shall be levied without grant in Parliament.
1.Rich. III. cap. 2. It is enacted in these Words: Our Sovereign Lord the King remembring how the Commons of this Realm by new and unlawful Inventions, and inordinate covetise against the Laws of this Realm, have been 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 Sums of Money, &c.
It is enacted and ordained, That the Subjects and Commons of this Realm from henceforth shall in no wise be 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 Realm hereafter; but shall be damned and annulled 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, or such like Charge, that is, no Charge of Money shall be 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 Year of his Majesty's Reign, where reciting, that it was enacted by a Statute made in the Time of Edward I. commonly called, Statum de Tallagio non concedendo, that no Tallage or Aid shall be laid or levied by the King or his Heirs in this Realm, without the Good-will and Assent of the Archbishops, Bishops, Earls, Barons, Knights, and other the Freemen of the Commonalty of this Realm. And by a Statute of 25 Edw. III, That none shall be compelled to make any Loans to the King, because such Loans 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 Realm, your Subjects have inherited this Freedom. That they shall not be compelled to contribute to any Tax, Tallage, Aid, nor other like Charge not set by Parliament: And then they pray, that none hereafter be compelled to make or yield any Gift, Loan, Benevolence, Tax, or any 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 be done, as is desired, which is a full and perfect Statute, shewing in this point the Liberties of the Kingdom, 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 be compelled to be contributory to any Tax, Tallage, Aid, nor any-like Charge not set by Parliament.
By reason of all which Statutes, especially of those of 25 Edward I. 34 Edward I. and 14 Edward III. being in the Negative and in Force, I conceive that those Writs, to lay such a Charge, is against the Law, and so the Assessment by colour thereof not lawful.
Now, whereas, the precendent Arguments have been, that the Kingdom being in Danger, therefore these Writs went forth for the making of Ships, because there could not be so suddenly any Parliament called; and the Parliament is a slow Body; and the Kingdom may be lost, whilst there is Consultation: And the Danger is conceived to be very great, because the first Writ of 4 Augusti so mentioneth, that the Pirates provide a great Navy to infest the Kingdom, and it is fit, with Speed, to provide a Remedy; and that the Writ of Mittimus mentioneth, that Salus Republicœ periclitabatur. And we must believe these Suggestions to be true; for the King's Certificate by this Writ is, Recordum Superlativum, as Master Solicitor and my Brother Berkley termed it; and we must leave it upon the King's 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 be conceived, that the Kingdom 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 be, that if a Parliament were called, they will not yield to the going forth of such Writs, although the Kingdom 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 been expresly mentioned within a Statute, that such a Charge should not be imposed, it had been a void Statute, and contrary to the Law, that the Kingdom should not be defended.
- 1. To all these I answer, That the Matter now in question is upon the Writ of 4 Augusti, whether that be legal or not; and the Suggestions therein be sufficient or not for the Writ of Mittimus, mentioning that Salus Republicœ periclitabitur, at the Day of issuing forth the Writ of 4 Augusti (which is a Year and half after the first Writ) doth not help it: And this is not notified to the Sheriff and Inhabitants of the County, to make them the more careful, and in the greater Contempt, if a Ship were not provided; but it is only a Notification to the Barons of the Exchequer, that the same was the Reason why the said Writ issued forth.
- 2. That the Suggestions are not absolute, that any such Danger was, or such Navy was prepared by the Pirates, but only mentioneth, Quia datum est nobis intelligi, that the Pirates had done such Mischief, &c.
- 3. If such Suggestions had been absolutely set down, yet we are not always bound absolutely to believe them, because many times untrue Suggestions are made in Writs and Patents; and yet it doth not lie upon the King's Conscience, neither doth the Law impute any Fault to the King, if any such be; for the Law doth always conceive honourably of the King, that he cannot nor will not signify any Untruth under his Great-Seal; but is abused therein, and the Law imputeth it to them that so misinformed the King, and thrust in such Suggestions into the Writ: And therefore all Patents grounded upon untrue Suggestions are accounted void.
- 4. That the Demurrer confesseth nothing but that which is legally and well set down; but if it be illegal, the Demurrer confesseth it not, but is well offered for that Cause.
- 5. If the Kingdom were in Danger, yet a charge must not be laid in general upon the Subjects, without their consent in Parliament; for either the Danger is near, and then present Provision must be made by Men's Persons, and the present Ships of the kingdom, which the King may command from all parts of his kingdom, as Need shall require; but cannot command Money out of Men's Purses, by distraining their Goods, or Imprisoning their Persons: But if the Danger be further off, by reason of any foreseen Combinations (as it is conceived it may be here) then Provision must be made of Ships by all the Kingdom for Defence; then (asPhilip de Comines saith, fol. 179) that Cloud is seen afar off, before that the Tempest fall, especially by a Foreign War; and such Invasions cannot fall so soon, 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 Majesty (if he please) to call his Parliament, to charge his Commons by consent in Parliament to have a subsidiary Aid, as always 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 all their Safeties.
For it appeareth by Coke, lib. 9. fol. I. in his Epistle, that King Alfred made a Law, that the Parliament should be held twice every Year; and oftner, if Need require, in time of Peace; so that it was then conceived, it was necessary to have Parliaments often to redress Inconveniences
Also by a Statute made 4 Edw. cap. 14. It is enacted, That a Parliament shall be held once every Year, and oftner, if Need be: Also by a Statute made 36 Edw. III. cap 10. It is enacted, for redress of Mischiefs and Grievances that daily happen, a Parliament shall be holden every Year; as another time was ordained by a Statute, which I think referreth to 4 Edw. III.; also it appeareth by the speed that was in the Parliament held in the Third Year of his Majesty's Reign, Five Subsidies were granted, Two of them to be paid within few Days after the Session of Parliament ended; and therefore might (as this Case is) been order'd and provided for by Parliament, within seven Months, as the time was between the Teste of the Writ, and the time prefixed for Ships to be prepared and sent.
It is answered, That it is not to be presumed, that the Parliament would deny to do that which is fit for the Safety and Defence of the Kingdom, their own Estates and Lives being in Danger if the Kingdom were not sufficiently defended; for it is a Rule, Nihil iniquum est preœsumendum in Legs; so of the High Court of Parliament, that they would not deny that which is fitting: But I confess I do think, if it had been 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 been made with most conveniency, and not to leave it to the Sherist to Tax them when and how he would.
7. To that which hath been said, That this Charge is not within the Intention of the Statutes, and that a Statute to prohibit such a Charge for Defence were void: I answer that it is true, if a Statute were that the King should not defend his Kingdom, it were void, being against Law and Reason; but a Statute that Money shall not be charged or levied, nor that Men shall be charged to make or prepare Ships at their own Charges, without common consent in Parliament, I conceive it a good Law, and agreeable to Law and Reason; and the King may by Parliament restrain himself from laying such a Charge but by Consent. And then the King, being a just and pious a King as ever governed the Kingdom (which we 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 Kingdom, as this is against so many; but would say, as it is said in the Statute made in the 25 Edw. III. de provisoribus, reciting the Statute of Carlyes, made 35 Edw. I. That the Pope should not be permitted to present to Benefices, That he was bound by his Oath to fee that and other Laws in Force, and not repealed, to be performed, That he would not suffer such Charges to be laid, contrary to the Laws and Statutes of his Realm; and would do as the late Famous Queen Elizabeth did, having required a charge upon divers her Subjects by particular Letters from the Lords of her Council of several Sums of Money, for present help towards her Wars 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 be imposed, there being an Express Statute against it, which he being a Judge, was bound by his Oath to signify, he being, as much as in him was to be, a Conservator of the Queen's Oath in that behalf: The Queen, I say, was very angry, that such an Imposition had been made against Law, and commanded, that it should be stopped from further gathering, and to some that had paid their Moneys, the same were restored; and therefore the principal and only Fault in the charging of his Subjects by these Writs(if they be unlawful, as I conceive they are) is in those that devised them, and informed him that they were Lawful, and such as his Progenitors had from time to time used to send out; and in his Judges, who have affirmed it to be Lawful; therefore upon this Point I conclude, That this Charge by this Writ is illegal, and is no sufficient Cause to charge the Defendant.
Where it hath been much urged and argued by Master Solicitor and Master Attorney, that this Writ is warranted by the King's Prerogative and Power Royal, to send forth such Writs for Defence and Safety of the Kingdom in time of Danger.
To this I answer, That I do not conceive, that there is any such Prerogative; for if it were a Prerogative, I should not offer to speak against it; for it is a part of our Oaths that are Judges, to maintain the King's Prerogative to the best of our skills, and not to suffer the same to be diminished; but if it be (as I have argued it is) against the Common Law, and against so many Statutes, that the Subjects should be inforced to sustain, or to contribute to any Charge, without their special 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 Laws of the Land, the Law imputeth that Honour and Justice to the King (whose Throne is established by Justice) that it is done by the King, but it is done by some untrue and unjust Information; and therefore void, and not done by Prerogative,
This appeareth by the Authorities of our Books; for Bracton, who is an ancient Writer in our Law, saith, Nihil aliud potest Rex in terris, cum sit minister Dei, & ejus Vicarius, quàm de jure potest: And there a little after Itaque potestas sua juris est, & non injuria; cum sit Author juris, non debet inde injuriarum nasci occasio unde juris nascuntur, Sir Edward Coke, in the eleventh Book of his Reports, in the Case of Magdalen Colledge, where the Question was, Whether Queen Elizabeth having taken a long Lease of a Colledge, being conceived to be against the Statute of 13 Eliz. was sought to he maintained by her Prerogative; but resolved it could not, being against a Statute, by which she was bound, altho' not named; and there fol. 72. it is said, Hoc solum Rex non potest facere, quod non potest juste⪹ agere.
Plowden's Comment, fol. 487 in Nichol's Case it is said by Justice Harper, altho' the Common Law doth allow many Prerogatives to the King, yet it doth not allow any that he shall Wrong or Hurt any by his Prerogative.
21 Edw. III. fol. 47. in the Earl of Kent's Case it is said, That if the King under his great Seal do make any Grant to the Hurt of any other, he shall repeal and avoid it Jure Regio; for the King is accounted to be abused by untrue Suggestions, when he is drawn to do 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 general.
Sir Edward Coke, lib. 11. fol. 86. in Darcy's Case it is said, That every Grant of the King hath this Condition unto it, Tacitè or expresse. It a quòd Patria per donationem illam magis solito non oneretur seu gravetur
The Book called Doctor and Student, fol. 8. setting down, that the Law doth vest the absolute property of every Man's Goods in him, 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 Damages. And sure I conceive, that the Party that doth this Wrong to another, shall, besides the Damages to the Party, be imprisoned, and pay a Fine to the King, which in the King's Bench is the Tenth part of as much as he payeth to the Party: So then, if the King will punish the Wrong of taking of Goods without consent between Party and Party, much more will he not by any Prerogative take away any Man's Goods without his assent, particular or general.
So I conclude, that I conceive there is not any such Prerogative, to award such Writs, to command Men to sustain such Charge, or to be contributory to it, and to be distrained or imprisoned for not Payment thereof.
Also I conceive, that this is not an Act of Royal Power; for if it be illegal to impose such a charge, then is it not accounted as a matter of Royal 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 he can do no Wrong, but it is imputed unto them who advised him to this Course.
Royal Power, I account, is to be used in Cases of Necessity and imminent Danger, when ordinary courses will not avail; for it is a Rule, Non recurrendum est ad extraordinaria, quando fiert potest per ordinaria; as in Cases of Rebellion, sudden Invasion, and in some other Case, where Martial Law may be used, and may not stay for legal Proceedings; but in a time of Peace and no extream Necessity legal Courses must be used, and not Royal Power.
Therefore, where by the Statute of 3 Hen. VIII. cap. 8. which was made upon suppression of Abbies, when Rebellions were begun to be stirred, it is recited, That sudden Occasions happen which do require speedy remedies, and for lack of a Statute the King was inforced to use Royal Power; it was enacted for the Reasons therein mentioned, That the King by the Advice of his Council therein Named, two Bishops, two chief Justices, and divers others, and the more part of them, by his Proclamation, might make Ordinances for Punishment of Offences, and lay Penalties, which should have the force of a Law, (with a Priviso, that thereby no Man's Life, Lands or Goods should be touched or impeached:) So that therein Royal Power was fortified by a Statute; yet that Statute took care, that no Lands or Goods should be taken or prejudiced: But yet that Statute was thought inconvenient, and therefore by a Statute of 1.E. VI. the same was repealed.
Bracton, lib.2. cap. 24. fol.55. and the same is cited in Coke lib. 7 fol.11. in Calvin's Case, Regis Corona est facere justitiam & judicium, & tenere pacem, sine quibus Corona consistere non potest, nec teneri.
Coke, lib. 7. fol. 5 in Calvin's Case, cited out of Fortescue, Rex ad tutelam Legis, corporum, & bonorum erectus est; which being so, he cannot take any Man's Goods, or charge them without his assent, by any Prerogative or Power Royal.
Also there can be no such Necessity or Danger conceived, that may cause these Writs to be awarded to all Counties of England, to prepare Ships at such Charge, and with such Men and Munition, without consent in Parliament.
For the Laws have provided Means for Defence in time of Danger without taking this Course, for that the King hath Power to command all, or any Persons of the Kingdom, to attend with Arms at the Sea-coasts, or any other part of the Kingdom; 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 he please, to go with his Navy to any parts of his Kingdom for Defence thereof, and to attend those to whom he appointed the Guard of the Sea or Sea-coasts, at such times and places as they should appoint: And this hath been always taken and conceived to be sufficient for Defence against any Prince whatsoever; and yet the same was in times when the Navy 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. Edw. I. m. 4, The Record reciteth, that the French King had prepared a great Navy upon the Sea, and purposed to invade the Kingdom, Et linguam Anglicanam de terra delere; and thereupon the King commanded all Ships and Men with Arms to be in a readiness to Defend the Kingdom.
Scot 10.Edw. III.m. 16 Reciteth, that certain Gallies in the parts beyond the Seas were prepared with Provision of Men and Arms, and other Necessaries of War, and ready to invade the Land, Commad was, that divers Ships should be in a readiness to Defend, and the Ships of the Ports of Ireland to be sent to England to help to Defend the Kingdom.
Scot. 10. Edw. 3. m. 22. A Writ was to the Baliff of Southwales, reciting, that the Scots and divers other Consederating together, prepare themselves to Arms and Ships in a great Number, and intend to invade the Kingdom, 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 Major of London, Quia hostes nostri in Galliis, cum multitudine non modica congregati, in divers is partibus regni hostiliter ingressi sunt, & civitatem prædict celeriter si possunt invadere proponunt; the King commandeth them to shut up the City towards the Water and to put all their Men in Arms ready to Defend, &c.
Alman. 12. Edw. 3. m. 13. A Writ to the Bailiffs of Great Tarmouth; Quia pro certo didicimus, quòd hostes nostri Franciæ, & adhœrentes eisdem, Gallias & Naves guerrinas in copiosa multitudine in partibus exteris congregarunt, & eis bomnibus, arma, parare faciunt, & proponunt se movers versus regnum nostrum, & navigium regni nostri, & portus prope mare scituat' pro viribus destruere, & idem, regnum invadere, &c. Command to the said Town to prepare four Ships with two Hundred and Forty Men, &c. At the same time, like Writs went out to Twenty other Town upon the Sea coasts.
Fran 29 Edw. 3. m. 5. A Writ to the Earl of Hunt. and others; Quia adversarii nostri Franciœ, Nos & Regnum nostrum invadere machinantes, magnum navigium parari fecer' & armari, nedum ad Regnum nostrum Angliœ subito attrahend, ad nos & dome nostr, & totam nationem Anglicanam pro viribus subvertend', &c. Commanding them to guard all the Coasts of Kent, and to array all able Men with Arms, to be ready to Defend the Sea-coasts.
5 Henr. 4. m. 28. A Commission to Thomas Morley, and others; Quoòd cum inimici nostri Franciœ, Britan. Scotiœ, & alii sibi adhærentes, inter se obligat' magna potentia armat Super mare in æstate proxim' futur' ordinaverunt, & intendunt Regnum nostrum Angliœ invadere, &c. Commanding to array Men with Arms to Defend, &c,
4 Henr. 8. Pars 2. The King by Proclamation into the County of Kent sheweth, that it come to his Knowledge of certain, that his ancient Enemy the French King, hath prepared and put in readiness a great and strong Navy, furnished with Men of War to invade the Kingdom of England, the King appointed the Lord of Alburgeny and others, to put Men in array, and to be ready to Defend that County.
Anne 1588. when the great Invasion was by the Navy termed the Invincible Navy, which was foreseen long before, this Course of preparing Ships by every County of the Kingdom, was not taken or appointed; yet in all these times, when there appeared such danger of Invasions, there never went any such Writs into any the Counties of England, to provide Ships, but the Navy of England, and the Army of England was always accounted sufficient for the Defence of the Kingdom. So I conclude this Point, that I conceive this Course cannot be taken by any Prerogative or Royal Power, nor any allegation of Necessity or Danger.
4. For the fourth Point, I conceive that if it were legal to lay such a Charge upon Maritine Parts, yet to charge any Inland, County with making of Ships, and furnishing them with Masters, Mariners, and Soldiers at their Charge, which are far remote from the Seas, is not legal, nor warranted by any former Precedent; for it commandeth an unreasonable and impossible thing; and then the Writ commanding such a thing as is unreasonable and not possible for the Parties commanded of themselves to perform, without help of other Counties, is always illegal; for it is a Rule, that Lex non cogit ad impossibilia; therefore if one by Covenant bind himself to do a thing impossible, the Covenant is void. The appears by the Book-Case in 40 Edw. 3. fol. 6 where the Case is expresly, that is a Man do Covenant to do a thing that is impossible, the Covenant is void, and the Deed is void in that Respect. Also the Book in 2 Edw. 4 sol. 2. if a Feoffment be made upon Condition to be void if the Feoffee do not a thing which is impossible, this Feoffment is good, and the Condition void, for it was the Fault of the Feoffer to such a Condition; and this appeareth by the Case of an Arbitrement. If the Arbitrator award that one shall enter into Bond with such a one as his Surety to pay a Sum of Money, or to do any other Act, it is void as to the finding of a Surety at the least; for it is not in his Power to compel him to be his Surety, therefore the Law accounteth it unreasonable, and so void. And this appeareth by the Book-Case, 27 Ed. 4 sol. 5. wherein it is so resolved.
So this Writ commanding the Sheriff and Inhabitants of an Inland County to find a Ship furnished with Masters and Mariners, whereas there is not any Shipwright that hath skill to make Ships, nor any Masters or Mariners ever there inhabiting to guide a Ship; (for they are still conversant about Matters of the Plough, and seeding Cattel, and Husbandry, and are trained up by Musters for skill of Arms to Desend the Counties and not with Sea Affairs; for most of the County never saw a Ship, nor know what belongeth to Masters or Mariners of Ships; and the Country is not bound to seek out of the County for such Men, and perhaps if they should, they cannot know where to hire them:) Therefore when such Writs to Inland Counties have been awarded to find a Ship with Masters and Mariners, it being conceived by Mis-information that they were Maritine Towns, and had Ships and Mariners dwelling with them, the truth thereof being made appear to the contrary, they have been discharged, as appears by a Record in 13 Edw. 3. pars 2. m. 14. where a Writ went to the Admiral of the Fleet, those Parts upon Complaint to the King, by the Men of Bodmin in the County of Cornwal, that they were unjustly charged to find a Ship with Masters and Mariners, whereas that Town was no Port Town, nor adjoining to the Sea, but far within the Land, nor ever had Ships lying there, nor Mariners, nor Seamen, not ever used to find any such for Sea service; and that their Major and Officers were imprisoned for not finding such a Ship; thereupon the King appointed to have it enquired, whether their Allegations were true, and if it were true signified that he would not have them so unjustly charg'd, but that they should be discharged thereof; which sheweth that it was then accounted unjust to lay such a Charge upon a Town, that was an Inland Town, and had no Mariners inhabiting in it, much more when such a Charge is upon an Inland County, which is much further remote from the Sea, and cannot perform by themselves that which the Writ Commandeth.
But this Record being objected by the Defendant's Counsel, Master solicitor gave Answer, that the same was because the Admiral of his own Authority had charged them, which was not according to his Commission, for he was only to charge the Ports and Sea-Towns; but that the same way not be done by the King's Writ, the Record doth not prove.
But to this I Answer, That I conceive it is all one when such a charge is laid upon a Town by Writ, which is an Inland Town; for so it appeareth by another Record of the same Year, viz. 13 Edw. 3. pars 1 m.14. where a Writ was directed to the Admiral of the Fleet, Ab ore Thamesi.e versus partes Occidentalis, reciting where the King by his Writ to the Town of Chichester, had commanded the Major and Commonalty there, that they should make Unam Navem, & duos Escularios de guerer parari, with Mariners and Men at Arms to be at Portsmouth such a Day, to go with the King's Ships; and that they had complained that they had not, nor ever had any Ships arriving in that Town, nor had any Seamen, or Mariners dwelling there; and that it appeared unto the King by Inquisition of a Jury returned into his Chancery, this Allegation to be true: Therefore because the King would not have them indibetè prœgravari (for so be the Words of the Record) the King commandeth the Admiral that they shall not be troubled nor distrained for not performance of such Service; whereby it appeareth, that if they, being within few Miles of the Sea, should not be charged to find such a Ship, much more Inland Counties, which are much further remote from the Seas, are not justly to be charged with finding any Ship and Mariners: Therefore I conclude this Point, that I conceive this Writ in that Respect, is not legal, nor warranted by any former Precedent.
The fifth and great Point hath been (and indeed the chief Argument hath been a multitude of Records and Precedents which have been cited, that should warrant these Writs,) and that the King hath done nothing, but what his former Progenitors have done, and have lawfully done, and that he doth now but more majorum, and that which always in ancient times hath been done and allowed; and therefore ought now to be allowed.
I confess this Allegation much troubled me, when I heard those Records cited, and so learnedly and earnestly pressed by Master Solicitor, and afterwards by Master Attorney, to be so clear, that they might not be gainsaid; but that they proved a clear Prerogative, or at least a Royal Power, that the King might do so, especially when my Brother Weston and my Brother Berkley, who had seen the Records, pressed them, and relyed upon them for the Reasons of their Judgments; I say, I was much doubtful thereupon, until I had perused all those Records sent me by the King's Counsel, and satisfied my Judment therein.
But now I answer, That if there were any such Precedents (as I shall shew that there is not one shewed to me to prove this Writ to be usual)yet it were not material, for now we are not to argue what hath been done de facto, for many things have been done which were never allowed; but our Question is, What hath been done, and may be done de jure: And then, as it is said in Coke, lib. 4.fol.33.in Mitton's Case, Judican' est legibus, non exemplis: and lib.II. fol. 75. in Magdalen Colledge Case it is said, Multitudo errantium non parit errori Patrocinium and l.4.f.94. in Slade's Case, Multitude of Precedents, unless they be confirmed by Judicial Proceedings in Courts of Record, are not to be regarded; and none of these were ever confirmed by Judicial Record, but complained of.
But to give a more clear answer unto them, I say, that in my Opinion upon view and serious reading of all the Records that have been sent me on the King's Part (for I have read them all over verbatim) and I presume they sent all that were conceived to be material; and I having taken Notes of every one of them, and diligently considered of them, I conceive there is not any Precedent or Record of any Writ which maintains this Case; for there is not any Precedent or Record of any such Writ sent to any Sheriff of any Inland County, or Maritine County, to Command the making of Ships at the Charge of the County, but this is, the first Precedent that ever was since the Conquest, that is produced in this kind. But it is true, that before 25 Ed. I. there have been some Writs to Maritine Towns and Ports, and other Towns, as London, &c.
Where they have had Ships, and Mariners to provide and prepare Ships, and to send them to places where the King places where the King pleased to appoint upon any just Cause of fear of any Danger, for Defence; and great Reason that they having Ships, and Masters of Ships, and Mariners, should be at the King's Command to bring all, or as many as he pleaseth for Defence of the Sea and Kingdom, being those that had the most Benefit of the Seas, and likely to have the Loss, if the Seas and Coasts were not duly guarded, and those were most commonly appointed to be at the King's Charge; but sometimes, upon some Necessity, they were appointed to be at the Charge of the Towns and Parts adjoining, which I think was the true cause of the Complaint in Parliament, in 25 Ed. I. and the making of that Statute for staying that Course; for there is no Record afterwards of any such Writ in King Edw. the First's Time, after that Statute to Maritine Towns, to prepare or send Ships at the charge of the Towns. And none after, until the time of Edw. III. and then the Wars being between him and the French K. in An. 10, 11, 12, 13. of Ed. III. were the most Writs awarded to the Maritine Towns, to send Ships at their Charge sufficiently furnished. And those, I think were the principal Cause of the making of the Stat. of 14 E. III. c. 1. and after that Stat. no such Writs, nor any Commission for that Purpose were awarded to make any Ships at the Charge of Maritine Towns, until 1 R. II.m. 18. when Writs were awarded to many Maritine Towns, and Inland Towns, for the making of Ships, which Record was much pressed by Master Attorney, and afterwards by my Brother Weston, and my Brother Berkley to prove that this Course was, and might be practised after the Statute of 14 E. III. for sending forth such Writs, and allowed. But that Record is fully satisfied, for it was grounded upon an Ordinance in Parliament, in 1 R. II m. 25. that all ancient Cities, and Boroughs Towns, that would have their Liberties confirmed, without any charge of Fine, save only to make a Ship of War for Defence of the Realm; so this was not compulsory to any, but voluntary to those that would have their Liberties confirmed: And afterward in 1 H. IV. Commissions were awarded for the making of such Vessels for War; but those issuing forth, without any Ordinance of Parliament, were complained of in Parliament, 2 H. IV. m. 22 as to be against the Liberty of the Subject, as appeareth by the Statute before recited, and the Commissions expresly repealed. And since that time of 2 H. IV no such Writs issued forth in any Age to any Maritine Town, to cause Ships, or prepare Ships at their own Charge for the King's Service, until these late Writs.
And now I shall take a short view of all the Records that have been cited and sent unto me; and leave them to the Judgment of my Lords and others, if any of them prove these Writs to be usual and legal.
The Records in the Time of King John.
Three of these are to arrest and make stay of all Ships that they should not go out of the Kingdom, but to be ready for the King's Service; and the other was to bring Ships of particular Towns to the Mouth of the Thames for the King's Service.
A Writ to the Sheriff of Norfolk, commanding him to cause them which were appointed to attened at the Sea-coasts in that County, and having served forty Days, intended to depart, that they should stay eight Days longer by reason of the Danger, and longer, if need require.
A Writ to the Men of Essex, Norfolk and Suffolk appointed to attend for the guarding of the Sea-coasts, reciting, that the King had appointed T de M. Custodem maris, & partium maritinarum within their Counties, commanding them to assist him, and to perform therein what he required.
Another Writ to the Sheriff of Norfolk and Suffolk, reciting that certain Constables of those Counties were appointed to asses Men at Arms sufficient for the guarding of the Sea-coasts, commanding him to distrain, and compel them so assessed for to go.
Writs to the Sheriff of Lincoln, York, and Northumberland, reciting, that he had commanded A.de B. ad congregand & capiena' centum Naves between Ley, and Barwick, & ad homines potentes in eisdem navibus ponend', Commanding them to assist him there.
A Writ out of the Exchequer to Adam de Guerdon, & aliis, Guardians of the Sea-costs in the County of Southampton to distrain the Abbot of Reading for to find nine Horses, which he was assessed for that Service.
Writs to all Archbishops, Bishops, Earls, &c in the Counties of Somerset, Devonshire, and Cornwal, to attend with their Horsemen and Footmen for Defence of the Sea-coasts in those Parts when they shall be required by the Guardian of those Coasts.
A Writ out of the Exchequer directed to all Archbishops, Bishops, Earls, &c. the County of Norfolk, and to the Sheriff of Norfolk, reciting, that Peter de Rutlin was appointed ad custodiam partium maritinarum illarum, Commanding them to assist him.
A Writ out of the Exchequer, directed to the Sheriff of Berks, reciting that the King was informed by Adam de Guerdon, Guardian of the Seacoasts in the County of Southampton, that those Men of the County of Berks, that were come to the defending of the Sea-coasts in those Parts, came not as they were warned, Commanded to distrain them and compel them, &c.
A Writ to the Bailiffs of Great Yarmouth, reciting, that the King was imformed, that certain of Flanders and French in a great Multitude, apparelled like Fishermen, intending to invade their Town, warning them to gather their Ships together, and all their Arms to defend themselves against such Attempt.
A Writ to all Sheriffs and Bailiffs, &c. reciting that he had appointed some therein named, Ad congregand' numerum Navium, & Galliar' major, &c. commanding the Sheriffs in their several Counties to be assisting unto them therein,
A Writ of Supersedeas to the Guardian of the Seas in the County of Southampton to distrain Hugh Plessis to find Arms for his Lands in that County for the guarding of the Seas, because he was in service with the King.
A Writ to the Sheriff of Essex to discharge for the Winter time, those that lay at the Sea-coasts with their Arms to defend their Coast, but commanding them to be in a readiness when they should be again Commanded.
A Writ to the Sheriff of Lancaster, reciting, that whereas the King had formerly Commanded him to go to all the Ports and Towns where Ships were, Commanding the Bailift of the Ports to have all the Ships of the Burthen of 400 Tuns at Winchester by such a Day, now commandeth the Sheriff to see them made ready and sent.
In the Exchequer (shewed by the Defendant's Counsel) Writs were to several Matitine Towns, and other Towns upon the Sea-coasts, where Ships were usually made, to make Ships and Gallies, and that the King will allow and pay for them when he knoweth the Charge there of.
A Writ to all the Men in the Towns upon the Sea-coasts and Ports of the Sea between Southampton and Falmouth, reciting that the King had appointed John de Norton, to make Provision of a Navy in the said Towns and Ports at their Charges, commanding them to perform what he in that behalf shall require.
A Writ to the Bailiffs of Yarmouth, reciting that where the King had commanded all the Ships of the burden of 50 Tuns, from the Thames Mouth towards the West part to be at Portsmouth such a Day, &c, and they had sent two Ships, that the Masters and Mariners complained that they could not serve without Wages, and therefore appointed them to send them Wages.
A Writ to the Bailiffs of Yarmouth, commanding them to send all their Ships of the burthen of 30 Tuns and above, to Orewell, in Suffolk, with double Tackling, Victuals, and other Things necessary for one Month.
A Writ to the Sheriff of Norfolk, and Suffolk, commanding him to arrest all Barons, Baronets, Knights, and Esquires, which were commanded to attend the King at Coventry, at such a Day therein named, and came not, to be before the King and his Council at London to answer.
A Writ to the Archbishop of Canterbury, commanding him to array all his Servants and Family to be ready to Defend the Kingdom, if any Invasion should be. The like Writs at that time to all the Bishops.
A Writ to the Major and Bailiff of Southampton, commanding them to cause all their Ships of the burthen of 40 Tuns and above, to be furnished with Men at Arms, and Victuals, ready to defend the Land, if any Invasion should happen.
A Writ to Bartholomew de Insula, for Custody of the Sea-coasts in the County of Southampton, and therein is a command to John Tichborn and others for the County Southampton, and to William de Pershiore and others for the County of Berks, and to John Mandit and others for the County of Wilts, to array Men with Arms, and to have them in readiness to Defend the Coasts of the County of Southampton
A Writ to William Clinton, Guardian of the Cinque Ports, and others, to survey all the Ships of the Cinque Ports, and other Ports from the Mouth of the Thames unto Portsmouth, and to cause them to be furnished with Arms and Victuals for 13 Weeks from the time they shall go from Portsmouth.
A Writ to the Admiral of the Fleet from the Mouth of the Thames unto the West Parts, to keep upon the Seas the Ships of the Cinque Ports, and other Ships arrested to defend the Kingdom against any Attempt of Invasion.
A Writ to the Arrayers of Men for the County of Berks to compel them of that County assigned and assessed for the keeping of the Seacoasts in the County of Southampton to go to Portsmouth by a day therein appointed.
A Commission, reciting that the King had appointed all the Ships from the Mouth of the Thames Northward to be arrested, and to cause them to be furnished with Munition, Men, and Victuals, and to be brought to yarmouth; and that the Men of Lin refused to contribute to the Expences of the Charge of the Men sent in the Ship from that Town, and the furnishing of that Ship; and therefore commanded the Commissioners therein named, to assess them that refuse so to contribute, and to distrain them for it.
A Writ to all Archbishops, Bishops, &c. and to the Sheriff of Kent, and to the Barons of the Cinque Ports, and all others in that County, commanding them to be assisting to J. de Cobham, to whom the Custody of the Seas in those Parts is committed, and to defend those Coasts against Foreign Invasion.
A writ to the Bailists of Tarmouth, reciting by his Writ he had Command four Ships of War of that Town to be made ready with Men, Munition, and Victuals for Three Months, at the Charges of the Town, to be brought to Orewell, and that they failed to come at their Day, to the great Peril of the Land; therefore commandeth the Bailists to compel them at another Day therein prefixed to be at the same Place. There it is set down that the like Writs were awarded to the Bailiffs of seventeen other Towns, for the sending their Ships, being charged some for one Ship, and some for two Ships.
A Supersedeas for the Abbot of Ramsey, for being charged with Arms for the guarding of the Coasts of Norfolk for his Lands in Norfolk, because he was by Command attending with all his Forces in the County of Huntington, for the safety of those Parts.
These being all the Records shewed, it appeareth that there were no Writs issuing out in those Times to any Sheriffs of Inland Counties, or Maritine Counties, to make or prepare Ships for any Occasion whatsoever, but only to Martine Towns to send their Ships, or to prepare Ships at their own Charges.
A Writ to the Archbishop of Canterbury, reciting the danger of Invasion by the French to hurt the Church and Kingdom, to array all his Clergy in his Diocess, &c. to be ready to go with the King's Forces to Defend, &c.
A Writ to the Arrayers of Men in the County of Norfolk, and to the Sheriff of Norfolk, commanding them to command all great Men and others, that had Mansions upon or near the Sea-coasts, to resort with all their Families for Defence of those Coasts.
This Record hath been much urged by Master Sollicitor and Master Attorney, that if the King have such Power to Command the Walls of a Town to be repaired, much more to Command Ships to be made, which are the Walls of the Sea, and consequently the Walls of the Kingdom. But this is clearly answered, for that it is but a private Charge of a private Town, and that had been formerly so walled, and for Defence and Safety of the Town, and none charged but those that have Benefit thereby, and so proveth nothing to the Case in Question.
A Writ to the Archbishop of Canterbury, to command all his Clergy between Sixteen and Sixty to be arrayed and put in Arms, both Horse and Foot, according to their Qualities, to be ready to Defend the Kingdom.
A Writ to a Serjeant at Arms, to array all Ships of War in the Ports of Plimouth and Dartmouth and other Ports in the County of Cornwal, and to bring them to Hank's Hook to go with the King's Majesty's Ships.
A Writ to the Sheriff of Derby, and Nottingham, reciting that the King certainly understood, that the Scots intended with a great Power to Invade the Kingdom, commandeth him to Proclaim in all Parts of his Counties, that all Men between Sixteen and Sixty should put themselves in Arms competent, according to their Degrees, to be ready upon two Days warning to Desend the Kingdom.
A Writ to the Archbishop of Canterbury, reciting, Satis informati est is qualit. inimici nostri Franc. & alii sibi adhœrentes, cum magna classe navium, cum magna multitudine armator' super mare congregat,' diversas villas, per Costeram regni nostri invadere, & nos & regnum nostrum destruere, & Ecclesiam Anglicanam subvertere intendunt & proponunt: Thereupon Commanded, that the Clergy in that Diocess be arrayed and armed, and to be ready at the King's Command to go against the Enemy.
A Commission to Thomas de Morley and others, and to the Sheriffs of Norfolk and Suffolk, and to the Bailiffs of great Yarmouth, reciting, Qu'òd cum inimici Franc. Britan. Scot. & aliii sibi adhœrentes, inter se obligat. magna armat. super mare in œstate proxim. futur. ordinaverunt & intendunt regnum invadere, & &c. commandeth to survey that Town of Yarmouth, and to fortify it.
A Writ to the Sheriff of Norfolk, and Suffolk, to Proclaim in all Parts of those Counties, for that there was like to be open Wars between Charles of France, and the King of Romans, and great Navies are prepared of either side, commandeth that Watch and Ward be kept, and Beacons kept, to give warning that every Man be ready, if need be, to come and defend the Kingdom.
A Writ to the Sheriff of Kent, commanding him to Proclaim in his County that the King be certainly informed, that the French King hath prepared and put in Readiness a great and strong Navy, furnished with Men of War, to invade this his Kingdom; therefore commandeth all Men, between the Age of Sixteen and Sixty to put themselves in Arms and to be ready to Defend the Kingdom at an Hours warning.
Now it appeareth upon View and Examination of all these Records, most of them being cited by Master Solicitor and Master Attorney in their several Arguments, that there are none to prove the sending of any such Writs to Inland or Maritine Counties to prepare such Ships, although there hath been many times great Danger; not yet any Writs to Maritine Towns after the Statute of 14 Edw. III. to charge them to find any Ships at their Charges: So then I conclude this Point, that I conceive this Writ is not warranted by any former Precedent.
1. First, the Motives mentioned in the Writ are, Quia datum est nobis intelligi, which is no certain Information quòd quidam prœdones & maris grassatores, did take the King's Subjects, Merchants, and others, and carried them into miserable Captivity.
2. Cumque ipsos conspicimus navigium indies Prœparantes ad mercator' nostros molestand', & regnum nostrum gravand'. All these and those following I conceive are not sufficient Motives, and were never in any Precedent before to have a Royal Navy prepared, for the former Precedents are, that great Princes in open times of Hostility had provided great Navies with Munition and Soldiers, with Intent to Invade the Kingdom, as appeareth by the former Precedents; and against such Provision it was necessary to provide a Royal Navy, the King's Ships, and all the Ships of the Kingdom to be gathered to withstand them; but to make such Preparations against Pyrates, it was never put in any Writ before: For when Pyrates infested the Seas, they came as it were by stealth to Rob and to do Mischief, and they never dare appear, but when they may do Mischief, and escape away by their Lightness; but against them the usual Course hath been, that the Admiral or his Deputy with some few Ships have scoured the Coasts, and not to imploy a whole Navy, and this appeareth by the Record of 25 Edw. I. m.9. where William Leybourn, the Admiral, was appointed upon such an Occasion with Ten Ships to lye upon the Seas; and the usual Practice hath been, when they hover upon the Seas; by sending a few Ships of War to scatter them, and to make them absolutely to flee away: And there is no doubt of loss of the Dominion of the Seas by any Act that Pyrates can do, neither convenient that every County of the Kingdom should prepare Ships against them.
2. The Command of this Writ to provide a Ship of 450 Tons at the Charges of the County, furnished with Masters and Mariners, which is impossible for them to do for the Reasons before alledged; and therefore is illegal, and not warranted by former Precedents.
The Command of the Writ to find Wages for the Soldiers for Twenty six Weeks after they come to Portsmouth, when they are out of their Counties, and in the King's Service, is illegal, being against the course of Pecedents in divers times, and against divers express Statutes: And this appeareth by divers Records, 15. John. In the Writs of Summons of the Tenants by Knight's Service, it is expresly mentioned, that after their Forty Days Service (for so many Days they were to do Service by their Tenures) they should be satisfied ad denarios Regis.
Pasch. 26 Edw. I amongst the Writs of the Exchequer it is there set down, that the Footmen of Cheshire, being 1000 which were appointed to go to the Defence of the Borders upon Scotland, would not stir out of the County without their Wages; and there is set down, that one there in named was sent down with Money to pay the said Footmen.
Mich. 26 Edw. I. Inter Brevia irretornab. in the Exchequer, by Reason of the Invasion of the Scots, many Thousands of Soldiers were taken from divers Parts of the Kingdom, ad vadia Regis, and there mentioned, that Clerks were sent down with Money to pay the Soldiers of several Counties their Wages.
Inter Brevie in the Exchequer, the Wardens of the Marches of Scotland signified unto the Barons, that the Men of Cumberland, and Westmorland, appointed for the Defence of the Marches, would not stir out of their Counties without Wages, whereupon Order was given for Wages for them.
In the Exchequer it was ordered in Parliament, that where some Soldiers had received of some of the King's Officers Moneys for their Wages, were fain to give Bond for repayment, that those Bonds should all be delivered.
But to clear all Doubts, the express Statute of 18 Ed. III. cap. 7. is, That Men of Arms, Hoblers, and Archers, chosen to go in the King's Service out of England shall be at the King's Wages from the time they go out of their Counties where they were chosen, until the time they come home again.
Those that had any grant of Lands from the King, and those that had any Offices of the Grant of the King, are to serve the King in his Wars, but in both it is appointed, they shall have Wages from the time they come from their Houses, until they shall return.
It is enacted, That no Captain receiving Soldiers serving by Sea or by Land, shall receive any Wages for more Soldiers, or more time than they serve, and shall enter the Days of their entring into Wages upon pain, &c.
All which Records and Statutes do prove, that the Soldiers should be at the King's Wages; therefore the Command for Soldiers Wages for Twenty six Weeks when they go from Portsmouth, is illegal, and expresly against the said Statutes; and so the Assessment being entire as well for the Wages as the other Charges, I hold to be clearly illegal, and not to be demanded.
4. That the Command of this Writ to the Sheriff to assess Men at his own Discretion, is not legal, nor warranted by the Precedents; for the Precedents are commonly that Assessments for Contribution for making or fetting out of Ships, have been by Commissioners, which by Presumption had Knowledge of such Matters as commonly Sheriffs have not. Also this leaveth to the Sheriff too great a Power to value Mens Estates, as to enhaunce whom he will, and to favour whom he will.
5. That the Power to the sheriffs and Mayors of Towns, &c. to imprison, especially as it is used for Non-Payment of Money, is illegal, and expresly against divers Statutes; for it is provided by Magna Charta, c. 29. Quod nullus capiatur vel imprisonetur, nec super eum ibimus nisi per Judiciam Parium Suor' vel per legem terrœ.
Also by the Statute made Mich. 37 Edw. III. cap. 18. it is recited, that by that great Charter none should be taken or imprisoned but by due Process of Law, yet by colour of this Writ the Sheriff may imprison any Person, yea, any Peer of the Realm; for altho' Peers are not to be arrested upon ordinary Process between party and party, as it was resolved in the Countess of Rutland's Case, in Coke l 6. fol. 23 yet for a Contempt, and upon Proces, of Contempt, which is always for the King, any Peer may be imprisoned, as it is resolved by all the Lords and all the Judges in the Star-Chamber in the Earl of Lincoln's Case: And so the Sheriff by colour of this Writ may arrest any Peer, as for a contempt in not paying; but by the Book Case, 2 Ed. III fol.2. it is resolved, that a Writ to imprison one upon Suggestion before he be indicted, and without due Process of Law, was illegal; so for the Case I hold this Writ to be illegal.
6. The last Clause of this Writ is, That by colour of this Writ more should not be gathered than will be sufficient for the necessary Expences of the Premisses; and that none that levy any Money towards these Contributions, shall detain the same with them, or imploy the same to other uses: And that if more than did suffice were collected, it should be paid amongst those that paid, after a rateable Proportion. These are unreasoble Clauses; but as the Course is taken, it is not to be performed: For no Ship, nor Tackling, nor Munition, nor Men, nor Wages, nor Victuals being provided, it is not to be known whether more be gathered or less than would suffice; and there being Money gathered, it is of Necessity either detained with the Collector or Sheriff, or employed to other uses than are appointed by the Writ, so the Writ is not performed and the Money assessed and collected is not duly made or collected, and the Money assessed and unpaid cannot be duly demanded.
7. Admitting that the Writ were legal, and the Commands therein legal, yet the Assessment, as it is certified, is not sufficient to charge the Defendant; for it is not certified that any Ship with Munition and Men, and Wages for Men, and Victuals were prepared, and this is a Year after the time that it should have been prepared and sent to Portsmouth; and if it were not prepared, there is no cause to charge the Defendant: And that not appearing to be done, it shall be conceived not to be done; for if a Man be charged with Money in Consideration of a thing to be done before a certain time, if the thing be not performed according to the Time, none can be charged for not being Contributory to it after the time is past; for it is the Nature of a Condition precedent to have a Duty or Sum of Money to be paid after the Condition performed, and there he that will have the Duty, must shew that the Condition is performed: This appeareth in the Case of 15 H. VII. 1. & Coke l. 7. fol.9. Ughtrees's Case. And if the Ship be not prepared according to the Writ, nor Money imployed for preparing a Ship, for and in the Name of the Country, then every one that paid any Money, either voluntarily, as in Obedience to the Writ, or compulsorily upon Distress, may demand their Money again of the Sheriff, or of them that received it; for as they paid their Money, so it must be disposed of, and cannot be disposed of otherwise by any Command whatsoever, altho' it be under the Great Seal; for the Command being under the Great Seal to prepare and furnish a Ship to such purpose as in the Writ mentioned, and they paying it to that purpose, it cannot be otherwise disposed, altho' it be more for their Advantage: For private Men having Interest therein, that cannot be taken from them, nor dispensed withal; therefore in Coke lib. 7.fol.27, in the Case of Penal Laws, it is resolved, That if the Penalty appointed to be forfeited upon a Penal Statute be given to the Poor of the Parish where the Offence is committrd, the King cannot dispense with the Penalty for that Offence, because the Poor have an Interest therein, but if the Penalty be given, part to the King, and part to the Poor, the King may dispense with his own Part, but not with the part of the Poor.
And where it is said, that this is by way of Accomodation, because the Country cannot well know how to provide to content, and perhaps with more Charge. To this is answered, they must to it at their Peril, if the Writ be legal, and then if it be done, they shall have the Benefit thereof; for as my Brother Weston, and my Brother Berkley have both agreed, if the Ship were made when the Service is done, the County for which it was made shall have the Benefit of the Ship and Munition, and of the Service of the Men, being made more expert against another time, and the Ship may with some easy charge serve again, and nothing lost but the Expences of the Victuals, and the Kingdom shall be so much the more strenthened by having so many Ships made or prepared; and they may have Account of their Money how it was bestowed, and if any surplusage be gathered, to have it restored: And that the Law is so, that if Money be received of the County and not imployed accordingly, the Party so receiving it is accountable to pay a Fine for the same to the King, and to the County, for the Mony appeareth by two Records, the one in Hill. 16 Ed. III. Rot. 23. in the King's-Bench, where two Soldiers were indicted, for that they 8 Ed. III. taking three Pounds apiece towards their Armour, and to the bringing them to the place where they were appointed to serve the King in England in Wars, went not, but tarried still in their Houses, and retained the Armour and the Money they had received for that purpose: They thereupon being convented, pleaded Not Guilty; and the one was found to go in Service according to the appointment, so he was discharged: And other was found that he received the Money, and went not to do the Service, nor restored the Arms nor Money; thereupon he was committed to the Prison, and paid to the King a Fine, and found Sureties to pay the Money to the Hundred again, from whom he had received it.
The other was Hill. 20. Ed. III. Rot. 57. in the King's-Bench, where two High Constables were indicted for that they 8 Ed. III. had received six Marks of the Towns in their Hundreds to set forth Soldiers and had not set them forth, but retained the Money, which they denying, it was found that they had received the Money, which they denying, it was found that they had received the Money for that purpose, and disbursed 41 s. 6 d. thereof towards the setting forth of the Soldiers, but had retained 38 s. 6 d. and not disbursed it; thereupon they fined and imprisoned, and inlarged upon Sureties to pay the Money they had retained undisbursed at the next time when the King commanded Soldiers for those Parts; by both which Records, being for Offences done so long before, it appeareth that those that have received Money of the Country to prepare Ships, they are answerable unto the King or his Successors to pay a Fine for their Employment of it otherwise, and are chargeable to those of the County of whom they received it, for Re-payment thereof.
8. For the last Point I conceive, that this Certiorari directed to the two that were late Sheriffs at the time of the Assessment, and not to the Sheriff that was at the time of the Certiorari awarded; who is the only and immediate Officer to return the Writs, is not legal; for it is the first that hath been seen of that kind, for all Writs are directed to some immediate Sheriff, requiring him to demand of the former Sheriffs what they did upon the former Writ, and they are to return to him what hath been done, and he to return the same to the Court, whereunto he is the immediate Officer, and the former are not any Officers.
Judgment was given against M. Hampden by the greater Part of the Judges: And when the Judges had delivered their Opinions, the Barons gave Jugment, Quod oneretur, &c.
Afterwards in this present Parliament begun at Westminster, 3 Novembris, Anno Dom. 1640. the Commons took into their Considerations the extrajudicial Opinions of the Judges, the Ship-Writs, and this Judgment against Mr. Hampden; and being Read openly in the House, after long Debate, Die Lunæ, septimo die Decem. 1640.these four several Votes passed upon them, without so much as one Negative Voice to any of them, (viz.)
- 1. THat the Charge imposed upon the Subjects for the providing and furnishing of Ships, and the Assessments for raising of Money for that purpose, commonly called Ship Money, are against the Laws of the Realm, the Subject's Right of Property, and contrary to former Resolutions in Parliament, and to the Petition of Right.
- 2, That the extrajudicial Opinions of the Judges, published in the Star-Chamber, and inrolled in the Courts at Westminster, in hæc verba,
Charles Rex. When the good and safety of the Kingdom in general is concerned, and the whole Kingdom in Danger, Whether may not the King by Writ under the Great Seal of England command all the Subjects in this Kingdom, at their Charge, to provide and furnish such Number of Ships, with Men, Victual, and Munition, and for such time as he shall think fit, for the Defence and Safeguard of the Kingdom from such Danger and Peril, and by Law compel the doing thereof, in Case of Refusal or Refractoriness; and whether in such Case is not the King the sole Judge both of the Danger, and when and how the same is to be prevented and avoided?
May it please your most Excellent Majesty, We have, according to your Majesty's Command, severally, and every Man by himself, and all of us together, taken into serious Consideration the Case and Questions signed by your Majesty, and inclosed in your Letter: And we are of Opinion, that when the good and safety of the Kingdom in general is concerned, and the whole Kingdom in danger, your Majesty may by Writ under the Great Seal of England, command all the Subjects of this your Kingdom, at their Charge, to provide and furnish such Number of Ships, with Men, Victual, and Munition, and for such time as your Majesty shall think fit for the Defence and Safeguard of the Kingdom from such Danger and Peril; and that by Law your Majesty may compel the doing thereof in Case of Refusal or Refractoriness. And we are also of Opinion, that in such a Case your Majesty is the sole Judge both of the Danger, and when and how the same is to be prevented and avoided.
In the whole, and in every part of them are against the Laws of the Realm, the Right of Propery, and the Liberty of the Subjects, and contrary to former Resolutions in Parliament, and to the Petition of Right.
Charles by the Grace of God, King of England, Scotland, France and Ireland, Defender of the Faith, &c. To our right Trusty and Well-beloved counsellor, Thomas Lord Coventry, Keeper of our Great seal of England, Greeting. These are to will and require you for the safeguard of the Seas, and Defence of the Realm, you issue forth or cause to be issued forth of our High court of Chancery these ensuing writs in the Form following, with Duplicates of them, under our Great Seal of England, unto the Counties, cities, Downs and places hereafter ensuing, and for so doing this shall be your Warrant.
Rex, &c, Vic. Com. nostri Buck. Ballivis & Burgensibus Burgi & paroch. de Buckingham: Majori, Ballivis, & Burgensibus Burgi de Chepping Wicombe, alias Wicombe: Ballivis, Aldermannis, & Burgensibus Burgi de Aylesbury, ac probis hominibus in eisdem Burgis & parochiis, & membris eorundem, & in Villis de Agmondisham; Wendover, & Marlowe magna, ac in omnibus aliis Villis, Burgis, Villat Hamlet. & aliis locis in dicto Com. Buck. Salutem. Quia datum est nobis intelligi, quod prœdones quidam, Piratœ & maris Grassatores tam nominis Christiani hostes, Mahumetani, quam alii congregat. Naves & bona ac mercimonia non solum Subditorum nostrorum, verum etiam Subditorum Amicorum nostrorum in mari, quod per gentem Anglicanam ab olim defendi consuevit, nefariè deripientes & spoliantes ea, ad libitum suum deportavere, hominèsque in eisdem in captivitatem miserrimam mancipantes. Cumque ipsos conspicimus, Navigium indies Prœparantes ad Mercatores nostros ulterius molestand & regnum gravand. nisi citius remedium apponatur, eorumque conatui virilius obvietur: Consideratis etiam periculis quœ undique his guerrinis temporibus imminent, ita quod nobis & Subditis nostris defensionem maris & regni, omni festinationem qua poterimus accele. rare convenit: Nos volentes defensioni regni, tuitioni maris, securitati Subditorum nostror' Salve conductioni Navium & Merchandizar ad reg' nostr' Angl' venient' & de eodem regno ad partes exteras transeunt'. (auxiliante Deo) providere; maxime cum nos & Progenitores nostri Reges, Angliœ Domini maris prœdict. semper hactenus extiterint, & plurimum nos tœderet, si honor iste regnis nostriis temporibus depereat, aut in aliquo imminuratur. Cumque onus istud difensionis quod omnes tangit. per omnes debeat supportari, prout per legem & consuetudinem regni nostri fieri consueverit. Vobis prœfat. Vicecom. Major. Ballivis, Aldermannis, Burgensibus, probis hominibus, & omnibus aliis quibuscunque supramentionat. Villis, Burgis, Vill. Hamlet. & locis suprad. eorumque membris in side & ligeantia quibus nobis renemini, & sicus nos & honorem nostr. diligitis, necnon sub fores factur' omniumque quœ nobis forisfacere poteritis firmiter injungend Mandamus, quod unam Navem de guerra portagii quadringent & quinquagint. doliorum cum hominibus tam Magistris peritis quam Marinariis valentioribus & expertis, centum & octoginta ad minus, ac etiam tormentis tam Majeribus quam minoribus pulvere tormentario ac hastis & telis, aliisque armatur. necessar, pro guerra sufficien. & cum duplici eskippamento, necnon cum Victual. usque ad primum diem Martii jam proximè' sequentem ad tot homines competent & ab inde in viginti sex septimanas ad custagia vestra tam in victual. quam hominium salariis & aliis ad guerram necessariis per tempus illud super defensionem maris in obsequio nostro in Comit custodis maris cui custodiam maris ante prœdict primum diem Martii committimus, & prout ipse ex parte nostra dictaverit morat' prœparari; Et ad portum de Portsmouth citra dictum primum diem Martii, duci faciatis. Ita qu'òd sint ibidem eodem die ad ultimum ad proficiscend' exinde cum navibus nostris, & navibus aliorum fidelium Subditorum nostrorum pro tuitione maris & defensione vestrum & vestrorum repulsioneque, debellatione & quorumcunque quœ Mercatores nostros, & alios Subditos & fideles prœdictos in Dominia nostra ex cansa Mercatur' se divertentes, vel abinde ad propr' declinantes super mare gravare, seu molestare satagent': Assignavimus autem vos prœfat. Vicecom. com nostri Buck. Majores, & Ballibos Villarum & Burgorum prœdict' aut aliquos sex vel plures vestrum, quorum te prœfat. Vic. Com. nostri Buck. unum esse volumus, infra triginta dies post receptionem bujus Brevis ad assidend. quantum de custagiis prœdict. super prœdict. Burg. & Paroch. de Buckingham ac prœdict. Burg. de Chepping Wicombe, alias Wicombe, & prœd. Burgi de Aylesbury, cum membris eorundem, & Vill. de Agmondishem, Wendover, & Marlowe magna, cum membr. eorundem, separatim poni aut assideri debeat. Et si bujusmodi Assessamenta infra prœd. triginta dies per vos sex vel plures vestrum fieri non contigerint, tunc assignavimus te prœfat. Vic. Com nostri Buck. ad. assident, bujusmodi super prœd. & Burgos & membr. eorundem faciend. prout rationabiliter videris faciend. Et volumus quod de tota facto tuo tu prœfat. Vic. Buck. sub sigillo tuo prœd. Burgo & Paroch. & membris eorundem, & terr' tenen. eisdem (Navem vel partem Navis prœd. non habentes, vel i eadem non deservientes) ad contribuend, expens. circa provisionem prœmissorum necessar. & super prœd. Burg. & Paroch. cum membr. eorundem sic ut prœfertur assidend. & ponend. viz. quemlibet eorum juxta statum suam & facultates suas & portiones super ipsos assessas per districtones aliosve modos debit. levand. Et. Collectors in hac parte nominand. & constituend.& omnes eos quos Rebelles & contrarios inveneritis in prœmissis, carceri mancipand. in eod, moratur, quousque pro eorum deliberatione ulterius duxerimus ordinand Assignavimus etiam te prœfat. Majorem Villœ & Burgi de Chepping Wicombe ad assidend omnes homines in prœd. Vill. & Burg. & membr. ejusdem, & terr. tenen. in eisdem Navem vel partem Navis non habentes, vel in eadem non deservientes ad contribuend. expensis circa provisionem prœmissor. necessar. Et super prœd. Burgum cum membris ejusdem sic ut prœfertur assidend. & ponend. videl. quemlibet eorum juxta statum suum & facultates suas & portiones super ipsos assesses per districtones aliosve modos debitos levand. Et Collectores in hac parte nominand. & constituend. & omnes eos quos Rebelles & contratios inveneris in prœmissis, carceri mancipand. in eod. moratur quousque pro eorum deliberatione ulterius duxerimus ordinand. Assignavimus etiam vos prœfat. Ballivos, Aldermannos, & Burgenses, Burgi de Aylesbury prœd. ad assidend. omnes homines in eodem Burgo & membris ejusdem & ter tenen. in eisdem (Navem vel partem Navis prœd. non habentes. vel in eadem non deservientes) ad contribuend. expensis circa provisionem prœmissorum necessar. & super prædict. Burgum & membr. ejusdem sic ut præfertur assidend. & ponend. videl. quemlibet eorum juxta statum suum & facultates suas & portiones super ipsos assessas per districtiones aliosve modos debitos levand. Et Collectores in hac parte nominand. & constituend & omnes eos quos rebelles & contrarios inveneritis in prœmissis, carciri mancipand. in eod. moratur. quousque pro eorum deliberatione ulterius duxerimus ordinand. Et ulterius assignavimus te prœfat. Vic. Cum. nostri Buck. ad assidend. omnes homines in prœd. villis de Agmondisham, Wendover, & Marlowe magna & in membris eorundem, ac in omnibus aliis Villis, Burgis, Villat. Hamlet. & aliis locis in dicto Com. Buck. & terr. tenen in eisnem (Navem vel partem Navis prœd. non habentes, vel in eadem non deservientes) ad contribuend. expensis circa previsionem prœmissorum necessar. Et super prœd. Villas, Burg. Vill. Hamlet. & locos, cum membris eorundem, sic ut prœfertur assidend. & ponend. videl. quemlibet eorum juxta statum suum. & facultates suas, & portiones super ipsos assessas per districtones aliosve modos debitus levand. Et Collectores in hac par tenominand. & constituend. & omnes eos quos rebelles & contrarios inveneris in prœmissis, carceri mancipand, in eod. moratur quousqe proeorum deliberatione ulterius duxerimus ordinand. Et ulterius vobis mandamus quod circa prœmissa. diligent. intendatis, & ea faciatis, & exequamini cum effectu sub periculo incumb. Nolumus autem quod colore predicti mandati nostri plus de eisdem hominibus levari fac. quam ad prœmissa sufficiet expensas necessar. out quod quisquam qui pecuniam de contributionibus ad prœd. custag. faciend. levaverit, eam vel partem inde aliquam penes se detineat, vel ad alios usus quovis quesito colore appropriare prœsumat, volentes quod si plus quam sufficiat collectum fuerit, hoc inter solventes pro rata portionis ipsis contingen. exsolvatur. T. &c.
And the other Writs, commonly called the Ships Writs, are against the Laws of the Realm, the Right of Property, and the Liberty of the Subjects, and contrary to former Resolutions in Parliament, and to the Petition of Right.
4. That the Judgment in the Exchequer in Mr. Hampden's Case, a Transcript whereof followeth in hœc verba (viz. Quod Separalia brevia prœdicta & retorna eorundem, ac schedul. prœdict. eisdem annexat. ac materia in eisdem content. sufficien. in lege exist. ad prœf. job. Hampden de predictis viginti solidis super ipsum in forma & ex causa prœd. assessis, onerand Ideo Consideratum est per eosdem Barones, quod prœd. Johannes Hampden de eisdem viginti solidis oneretur, & inde satisfaciat.) In the Matter and Substance thereof, and in that it was conceived that Mr. Hampden was any way chargeable, is against the Laws of the Realm, the Right of Property, the Liberty of the Subjects, and contrary to former Resolutions in Parliament, and to the Petition of Right.
These Votes were afterwards transmitted by the House of Commons to the Lords, and delivered by Mr. Jaint-John now his Majesty's Solicitor-General, at a Conference of both Houses of Parliament, held 16 Car. 1640.
Die Mercur. 20. die Jan. 1640.
I. That the Ship-Writs, the extrajudicial Opinions of the Judges therein, both first and last, and the Judgment given in Mr. Hampden's Case, and the Proceedings thereupon in the Exchequer-Chamber, are all illegal, and contrary to the Laws and Statutes of this Realm, contrary to the Rights and Proprieties of the Subjects of this Realm, contrary to former Judgments in Parliaments, and contrary to the Petition of Right.
II. That the extrajudicial Opinions enrolled in the Exchequer-Chamber, and in other Courts concerning Ship-money, and all the Proceedings thereupon are illegal in part and in whole, and contrary to the Laws and Statues of this Realm, and contrary to the Rights and Proprieties of the Subjects of this Realm, and contrary to former Judgments in Parliaments. and contrary to the Petition of Right.
Die Veneris, 26 die Februarii, 1640.
Upon the Report of the Right Honourable the Lords Committees appointed to consider of the Way of Vacating of the Judgment in the Exchequer concerning Ship-money, It was Ordered by the Lords Spiritual and Temporal in the High Court of Parliament assembled, That the Lord Keeper or the Master of the Rolls, the two Lord Chief Justices, and the Lord Chief Baron, and likewise the Chief Clerk of the Star-Chamber, shall bring into the Upper House of Parliament the Record in the Exchequer of the Judgment in Mr. Hampden's Case concerning Ship-Money; and also the several Rolls in each several Court of Kings Bench, Common-Pleas, Exchequer, Star-Chamber, and Chancery, where in the Judges extrajudicial Opinions in the Cases made touching Ship-money be entered, and that a Vacat shall be made in the Upper House of Parliament of the said several Records. And likewise the Judgment of Parliament touching the Illegality of the said Judgments in the Exchequer, and the Proceedings thereupon, and touching the Illegality of the extrajudicial Opinions of the Judges in the said several Courts concerning Ship-money, be annexed and apostiled unto the same: And that a Copy of the Judgment of the Parliament concerning the Illegality of the said Judgment in the Exchequer, and the said extrajudicial Opinions of the said Judges concerning Ship-money, be delivered to the several Judges of Assize; And that they be required to publish the same at the Assizes in each several County within their Circuits, and to take care that the same be entered and enrolled by the several Clerks of Assizes; And if any Entry be made by any Custos Rotulorum, or Clerk of Assize, of the said Judgment in the Exchequer, or of the said extrajudicial Opinions of the Judges, that several Vacats be made thereof, per judicium in Parliament: And that an Act of Parliament be prepared against the said Judgment and extrajudicial Opinions, and against the Proceedings touching Ship-money.
That the Resolutions of the Judges touching the Shipping-money, and the Judgment given against Mr. Hampden in the Exchequer, and all the Proceedings thereupon, are against the Great Charter, and therefore void in Law.
That Vacats and Cancellations shall be made of the Resolutions of the Judges touching the Shipping-money; and of the Enrolments thereof in the several Courts, and of the Warrants for Ship-Writs, and Proceedings therein; and the Judgment given against Mr. Hampden, and Proceedings thereupon; and that Entries be made of those Vacats upon the several Rolls, according to the Form read in the House.
Ordered, That these Resolutions be added to the former Judgments of this House concerning Shipping-money, which the Judges are to publish at the Assizes in their several Counties, and to be Entered and Enrolled in the several Counties by the Clerk of the Assizes.