Object. 3. By the same Reason the King com∣mandeth his Subjects to provide one Ship this Year; by the same reason he may command two Ships next Year.
To this I Answer, If the Danger be greater, the Defence is to be greater, then the Supply must be greater; but no man can suppose that that the King will impose that on his Subjects, when there is no need.
I shall now come to the two last Exceptions: 1. That the Power cannot be given to the She∣riff by the Writ Aug. 4. to Tax every man secun∣dum statum & facultates; that this is too great a Power to be committed to the Sheriff.
To that I Answer, That I conceive the Sheriff to be the most indifferent man for that purpose; for if there were Commissioners or many men ap∣pointed for doing thereof, they might perchance be partial to their Friends; and the Sheriff ha∣ving all the Free-holders Names, and the Bayliffs for his Ministers, that know the Estates of most men; therefore without all doubt he is the fittest person.
For the Exception to the Scir. fac. it hath been objected, that the King cannot by that course le∣vy Moneys; because the King having no Interest in the Money, he cannot levy it by Scir. fac. nei∣ther doth it appear in the Writ to whom this Money is to be paid.
Sol. I confess, this Point, though not spoken unto by the Defendant, is of most difficulty. Though no person certain be named, to whom this Money is to be paid; and the Sheriff is only to levie it according to the Writ; and the King providing a Ship, I suppose the Scire fac. may issue for it; for if a common person claim any thing, or be wronged or debarred from his Right, he hath by the Law a Writ for his Remedy; and shall not the King have the like Remedy for this Ship, being for the general Defence of the King∣dom, with which he is intrusted, to prevent a Wrong to be done to the Commonwealth?
But in this Case the Scire fac. is not for Mr. Hampden to shew cause why he did not pay the Money to the Sheriff; but why he doth not pay the Money Assessed towards the making of this Ship; which for ought I know, when it hath done the Service, is the Subjects again, at whose Charge it was provided; for they might have either hired a Ship, or bought a Ship. In F. N. B. it is held, the King may (for the good of his People) send forth Writs for removing of Com∣mon Nusances, and for repairing of Bridges, and the like; and why may not the King send forth Writs for so necessary a Service, as to de∣fend the Kingdom?
Cl. 1 R. 2. m. 7. A Writ went out to the May∣or and Bayliffs of Oxford, to repair the Walls and Ditches about the Town; and why not as well to repair the wooden walls of the whole Kingdom, as the walls and Ditches of a Town? The King hath Charge and Power over all, to see all done.
But it hath been said, that when this Money is gathered, we know not what is become of it.
I Answer them with the Common Roll in Scac. 24 & 25 of E. 3. Where a Commission went forth to levy Money for Maritine Defence; but what was done thereupon, is not expressed: But at that time there was a Cause adjudged in the Exchequer, a Norsolk Cause; where divers being commanded to go to the Wars against the Scots, and had thereupon Armor and wages allowed them, afterwards comes a Counter-Command to some of them not to go; and two men that had wages, went not; whereupon a Writ went out, and they ordered to repay the Money; and the Jury found the one guilty; but the other go∣ing to the Wars afterwards by a second Directi∣on, was quit, and the first gave Security for Re∣payment of his wages, being 30 s. and also for the Armor.
It hath lastly been Objected, That this Taxa∣tion ought to be secundum Legem & Consuetudinem Angliae, and this ought not to be by Writ, but by Parliament.
To this I Answer, That from King John's time, till H. 4. his time, there hath been an U∣suage and Custom to send forth Writs of this nature; and since that time till now, not the like Command.
About H. the 4th. his Time, began your Tun∣nage and Poundage; so long as he had that, the Defence was made at his own Charges.
There is no Act for taking this Charge by Writ away; it is become a general Custom: and the general Custom makes the Law of England; and we are to examine and try new Causes by the Reason of the old Law, and now compare what hath been done in former times.
I shall make an end: For my own part, I am perswaded in my Conscience, that there is im∣minent danger: I am satisfied in it, both by the King's Writ, and that which is apparent; and there is a necessity, that this danger should be prevented. I do conceive this Writ to be ground∣ed upon this danger of Necessity, and that the danger appears sufficiently in the Writ; there∣fore I conceive that the Proceedings are Legal, and that there is good and sufficient Cause to charge Mr. Hampden, and that he ought to pay the Twenty Shillings Assessed upon him.