The annals of King James and King Charles the First ... containing a faithful history and impartial account of the great affairs of state, and transactions of parliaments in England from the tenth of King James MDCXII to the eighteenth of King Charles MDCXLII : wherein several material passages relating to the late civil wars (omitted in former histories) are made known.

Baron Weston his Argument.

IN Easter Term last, there was a Writ of Scir' fac' went out of the Exchequer, directed to the Sheriff of Buckingham; reciting, That where∣as divers several Sums of Money specified in a Schedule annexed unto the Writ, by virtue of the Writ 4 Aug. 11. Car. was sessed upon several persons in the Schedule named, towards the pro∣vision of a Ship of War, mentioned in the writ; which Sums to Assessed, and being not paid, by VVrit of Certiorari, 9 Maii, 12 Car. under the Great Seal of England, the Names of those se∣veral persons and Sums assessed, are certified into the Chancery: and by Writ of Mittimus, Dated 5. Maii, 13 Car. sent into the Exchequer, and there to be proceeded upon according to the course of Law; the Sheriff of Buckingham is commanded to warn the Parties named in the Schedule, to appear, and shew cause why they should not be charged with those several Sums of Money assessed upon them.

Hereupon, Mr. Hampden appeareth, and de∣mandeth Oyer of the Writ 4. August. of the Cer∣tiorari and Mittimus, and their several Returns: They being all read unto him, he saith, That these several Writs and the Returns thereof, and the Schedules thereunto annexed, do not con∣tain any sufficient matter to charge him to pay the 20 s. and thereupon Demurred.

Mr. Attorney General saith, That they do con∣tain sufficient matter to charge him; and here∣upon the Demurrer is joyned.

The Demurrer being joyned, the Record was read in the Exchequer: The Cause appearing to be of great weight, it was Adjourned unto this Place in the Exchequer-Chamber, to have the Ad∣vice of all the Judges of England.

Upon this Record, I am to deliver my Opini∣on, and I take it that there is sufficient matter to charge Mr. Hampden for this 20 s. and so I give Judgment for the King.

Here hath been twelve days spent in the Argu∣ing of this Case at Bar; I will confine my self un∣to two hours and less, though not tied unto any time. The way to be short, is shortly to find out the Points: But I must first observe in what state this Cause cometh to Judgment before us.

There is a Rule in Law, if a man shall demur, generally unto the Writ, he doth confess all other matters in Fact that are alledged: The Reason of it is apparent; because matters in Fact are to be tried by Jury, and matters of Law, by Jud∣ges; so, in this Case, all the danger alledged by the Writ, is confessed, and the matter in Law is that which we that are Judges, are to deliver our Opinion upon.

It hath been Objected by Mr. Holborne, That we are tied unto the Writ 4. August; for that VVrit is the Ground of all, and upon that doth all the rest depend. It is true, If he had relied upon this Writ, it had been so: But his Demur∣rer is this; That the VVrit and the rest of the Proceedings with the Schedule, do not contain matter sufficient; so that now they have not put unto us the VVrit 4. Aug. alone, but all the rest, to give Judgment upon.

For the VVrit of Mittimus, it is confessed, that in that there is an Expression, That Salus Regni periclitabatur, which is not in the former.

To this he hath taken exception, That Salus Regni periclitatur, the danger is at the present time of the Mittimus, and doth not say, pericli∣tabatur in 4. Aug. 11 Car. And therefore this Ex∣pression now in the Mittimus, cannot make good the Defect thereof in the VVrit Aug.

To this I answer, That the demurring to all, hath confessed all; and yet the matter in the VVrit is sufficient to express the Danger.

The Second Objection, That Salus signifieth Health, and not Safety; that the Physitians term it so; but Salus signifieth Safety, as well as Health; so it is Englished in Cooper's Dictionary, and so it is taken by Poets and Historians, for Safety.

The next Objection was to the VVrit 4. Aug. That if there were a Danger, it must be plainly expressed in the VVrit: The words are, Datum est nobis intelligi, &c. How cometh the King to understand it? the danger must be expressed.

Sol. For this, I hold it more fit for a Statesman to give an Answer than my self; that the King should discover his Intelligence; whether it be fit to make known to all the world the danger the Kingdom is in. But yet I find, that in the said Writ, 4. August. there is expressed both dan∣gers by Pyrates on the Sea; the Dominion of the Sea like to be lost? That these are dangers to the whole Kingdom; for the Certiorari, I find it directed only to the Sheriff. That the VVrit of Mittimus is directed to the Court of Exchequer; and therefore he could not take notice of these VVrits. VVhatsoever I shall take advantage of, it must be contained in the VVrit 4. Aug.

In this VVrit, three things, as Dangers, are expressed▪

1. The danger by Pyrates. 2. The danger in loosing the Dominion of the Narrow Sea. And, 3. The great Peril in this time of VVar.

For the Pyrates; I shall not meddle with them: they are but petty Robbers, still running away. The Ports must defend themselves against those; the Inland County is in no danger of them. I will not insist upon the Dominion of the Narrow Seas, though that is considerable; for in the De∣fence of that, consists much the preservation of the Kingdom: But I shall insist on the Danger of the Kingdom, expressed in the VVrit 4. August. Thus, consideratis etiam periculis undique, &c. there is danger, there is peril round about us, and it is by reason that there are now times of VVar; we see Danger on every side.

There are two things trouble this Point. 1. The Subjects suspect that this is only a Pretence, and that the Kingdom is not in danger.

2. That there being great Sums of Money raised upon this occasion, that this in the end will be drawn to be Annual and perpetual; but if they were satisfied the Kingdom was really in danger, likely they would be content to pay the Money till the danger were over.

Sol. For my part, I Answer to these two Ob∣jections; that it is an unworthy Supposition: I must be satisfied, and I am, that the Kingdom was in danger, for two things; one Reason is, because it is so expressed in the Writ 4 Aug. It cannot be denied, but that the Kingdom may be in danger; it hath been Conquered, and so it may be again; therefore it is necessary that it should be foreseen and prevented, and some must do it; and who better than the King, that hath the Care and Charge of the Kingdom? He saith the Kingdom is in danger, and hath so declared it by his Writ; why I should not believe it, when the King hath declared it by his Writ, I know not.

2. My other Reason of the Danger is, that it is so de facto; It cannot be unknown unto any Man, that, for these three or four years last past, great Navies have been at Sea, and great Forces on Land: If we should have but an ordinary De∣fence at the Sea by Shipping, no man can suppose, but that those Navies being so great, may land where they will, and in as many places as they will; what a spoil would they make before such time as any resistance could be made against them?

Object. They object here, that these Navies which are at Sea, they are ingaged in Wars one with another; we are safe enough, we need not fear.

Sol. I answer, I think they are ingaged in good earnest: But who knoweth how soon these wars may end? they may end by Mediation of Friends, or by the death of some one Person; and when there is a great Navy at Sea, and forces at Land, how easy is it to remember an old Quarrel, or to pick a new one.

These things perswade me the Kingdom is in danger, and a very just cause to make preparati∣on for defence: And if every man will be so per∣swaded, they will not deny the payment of the Money, till such time as an ill use be made of it. An Example of this nature hath happened in for∣mer times.

In H. 7 time, it appeareth by a Record on the Kings part, Pat. 1. H. 7. pars 3. Do. There were wars between the King of the Romans and the King of France; they were both Friends unto H. 7. they ow'd him no ill will; yet by reason of these wars, great Forces at Sea and great Forces at Land; the King durst not trust them, but sent forth His Proclamations, to command that Watch and Ward be kept over the Sea-Coasts; and Com∣mandment to all His Subjects, that upon a short warning they should be ready for defence of the Kingdom: so this may be well an example for the course that is now taken for Defence of the King∣dom.

I shall now come unto those Reasons, and unto the Records that have been objected on either side; I shall begin with the Kings Side, because that layeth a charge upon the Defendant. It hath been objected. That some of them are not war∣ranted by the Records.

First, say they, here is a Ship commanded to be provided, and Money must be levied; but in the end, when this great sum of Money is colle∣cted, it must be disbursed no man knows how; no such thing in the Record.

Sol. To this I answer, The Record saith, A Ship must be provided, and the Sheriff is to rate the County secundum facultates, towards the same; not a word of any Money to be paid unto the King. It is a Ship that the Sheriff is to build, and to ••ess Money towards it. They have said be∣sides, Here is in the Writ a Command for the Im∣prisonment of the pa••ty, and his Liberty is taken away dearer than his Life▪ and his Goods, wherein he hath an absolute property, shall be taken away; these things, they say, are not warranted by the Writ, nor by any thing in the Record.

I answer, It is not warranted by the Proceed∣ings in this Case; for the Scire fac' is not to shew cause why the Parties Goods should not be sold, or be imprisoned, but why he should not be char∣ged with the Money assessed upon him. They say, the general Defence of the Sea lieth upon the King, because he hath wherewith to do it.

Answ. I would willingly disburden my self as much as I can of these Objections. A general Answer I shall give unto these Particulars.

They say, The King hath personal Services, the Services of Tenants by Knight-Service, Escu∣age, Castle-Guard, Grand Sergeancy, Petty Ser∣geancy: Is the King bound by these to the De∣fence of the Kingdom? He that doth look on their Originals will not say so, for these are Tenures reserved upon the several Grants made by the King, and no other reason is there, that the King by this should be tied to defend the King∣dom; then it is for the Lords that are Subjects, that have the like Tenures, that they should be bound to the Defence of the Sea.

They say, He hath besides these, Wards, Mar∣riages, Reliefs, Fines, Issues, Amerciaments, Pre∣meire Seisin, Fines of Alienation, Respits of Ho∣mage; all Fruits of the Tenure: And therefore must go towards the Defence of the Kingdom.

Answ. I answer, These Profits are casual; be∣sides, if he be not bound in respect of his Tenures aforesaid, he cannot be bound by the Fruits of them.

Object. It's objected, the King hath the Profits of the Sea, as, Royal Fishes, Whales, Wrecks at Sea, Treasure Trove, Royal Mines, &c.

I answer, These he hath by His Prerogative, and not for Defence of the Kingdom; neither are they fit for a Subject to have. You see He hath particular Services; as Services from the Five Ports and other Places, as Maulden, Colchester in Essex; and besides, He hath all manner of Cu∣stoms; and in regard of these He is bound to provide for the Defence of the Sea.

Sol. It is true, the King must for an ordinary Defence use the Means the Law hath allowed him; but that is not now the Question; it is for an Ex∣traordinary Defence the Question now ariseth. If it were asked any man, whether they do think in their Conscience, that the King is able of Him∣self, out of these, to prepare a Royal Navy, with∣out help from the Subject; none so senceless to think it.

There be some other things to which I shall give a general Answer.

It appeareth by many Records, that the King hath paid Wages unto Souldiers, and sometimes hath hired Ships; and unless there hath been a consideration, the King would not have done it.

To this I answer, That it was for Ordinary Defence, and he is bound to do it; and if He en∣gaged Himself to repay unto them their Charges, I can say no more but this, Every honest Man that makes his Promise will perform it, and so is the King bound to perform His Promise: That which Honesty binds others to perform, Honour binds the King to.

I shall come unto those things, to which a more particular answer is to be given.

The Charge lyeth general upon the whole Kingdom, which I shall divide into three Parts.

• 1. The Ports.
• 2. The Maritine Counties. And
• 3. To the In-land Counties. And to these three I will apply the Records.

1. For the Ports they are of two kinds, The Cinque Ports, and the Ports at large: What Ser∣vices are due by the Cinque Ports, are expressed in Libro Rubro in the Exchequer, That they were to find 57 Ships, and 24 Men in every Ship, and that for 15 days, which cometh unto 1188 men.

The Ports at large are tied to no certain Ser∣vice: It will appear by most of these Records which I shall apply, that the Cinque Ports have been charged with more than their due, and the

Ports at Large equally with the Cinque Ports.

Pat. 15. Jo. m. 6. The King sent His Writ un∣to the Cinque Ports, and thereby commandeth Qued omnes Naves parati, &c. & Homines, &c. He doth not here tie them to a Number, but all must go, if there be 500.

Cl. 17 Jo. m. 7. Here the King sent His Writ Baronibus suis de Rye, a Member of the Cinque Ports, Quod venire faciatis omnes naves apud Cinque Portas. This was general as the other; All the Ships, not tied to the number of 77.

Cl. 14 H. 3. m. 13. A Writ went out unto Ports∣mouth, being a Port at Large, to provide a Gal∣ley & eam munire faciat cum hominibus & quod sint prompti & parati ad proficiscendum, cum necesse fuerit; so here is a particular Charge upon Portsmouth, not bound unto it to provide a Ship with all man∣ner of Munition.

Cl. 25 E. 1. m. 5. do. A Writ went unto Guarn∣sey, a Port at Large, to make a Ship ready as of∣ten as need should require, de contributione facien∣da pro Navibus quoties opus fuerit, Pat. 9 E. 2. pars 2. m. 26. A Writ goeth forth, and that was dire∣cted, Ballivis, & probis hominibus Com' Southamp∣ton, to make provisionem navigii sumptibus propriis, no Promise of the King to pay this again.

Cl. 20 E. 2. m. 7. A Writ goeth unto the Sheriff of London, (and that reciteth a Charge formerly laid upon this City and upon Kent) for finding of 12 Ships, London to find 9, and Kent to find 3; and 40 Men to be in every Ship, & sumptor illor'

Cl. 20 E. 2. m. 8. A Writ directed to the Bailiffs of Yarmouth, which is none of the Cinque Ports, and this was charged with two Ships at their own Charges; and the like Command in the same Roll, for all Ships of 50 Tun and upwards to be all ready.

Sco. 10 E. 3. m. 12. That Writ reciteth the Ge∣neral Obligation that they are bound in, to defend the Kingdom, almost in the same words mention∣ed in this Writ: It reciteth, That every man should be sessed juxta statum & facultates; so there was a Contribution: Then cometh in the Clause, Ʋltro illius pecuniae summam debet pro servitiis suis. It is true indeed, the King did pay towards this, but it is expressed to be of His meer Grace add Fa∣vour.

10 E. 3. m. 2. do. A Writ unto Winchelsley, one Member of the Cinque Ports; and this was Quod omnes naves sint parati, both of the Ports, & alia∣rum villarum.

And the Reasons are expressed, Because with∣out their Help, the King was not able to defend the Kingdom; and appointeth them by that Writ, that the Ships should be ready victualled for thirteen weeks, whereas the ordinary time was but 15 days.

Vasc. 12 E. 3. m. 8. There a Writ goeth forth, directed unto the Sheriff of Kent, to the Major and Barons of the Cinque Ports, whereby they were all commanded to look unto the Custody of the Sea Coasts; here is the Maritine Towns and Port Towns joyned together.

25 E. 3. m. 22. do. A Writ to Southampton ad Con∣gregandum naves; in the same Roll, m. 8. more Writs to other Towns.

Pat. 12 E. 3. pars 4. m. 3. There was a Com∣mand, That all that dwell within the Isle of Tha∣net, every one from 16 to 60▪ should be ready to defend the Sea Coasts, and this was juxta statum & Facultates.

Alm' 13 E. 3. m. 12. Yarmouth charged with four Ships, 24 Men in a Ship, whereas usual but 21. Now I think they are come to six score men in a Ship. There are an infinite number of Rolls to this purpose to charge the Port Towns.

I come now to my second Division, which is Maritime Towns.

Pat. 48 H. 3. m. 4. do. A Writ went to the She∣riff of Norfolk, reciting, that Ships and Souldiers had staid there long, and that they were intended for departure, because their 40 days were past; Command was given unto them, that they should stay, Donec aliud inde mandatum fuerit.

Cl. 23 E. 1. m. 5. do. There was a Writ directed unto the Sheriff of Southampton, Dorset, and Wilts; These 3 Counties are all Maritine Counties, and were commanded, that they should raise 300 men to be at Winchester to defend the Sea Coasts.

Pat. 24 E. 1. m. 17. A Writ directed unto the Sheriff of Lincoln, York, and Northumberland, to assist certain Commissioners to take up 100 Ships, with a competent number of Men; these are to Maritine Counties.

The like VVrit goeth to the Sheriff of Sussex and Southampton, and this for the Preparation of Ships, and to take them where ever they they are to be found.

Pat. 25 E. 1. m. 6. VVrits went to Southampton, Devon, Cornwal, Dorset, and many other places that were Maritine Towns, for arresting of Ships and raising of Men: But the Rolls I might most insist upon are only these, I'le but name them.

Pat. 24 E. 1. m. 16. ex parte Re' Regis, & Rot 78. Cl. 25. E. 1. m. 26.

Cl. 13 E. 3. pars 1. m. 14. do.

Sco. 10 E. 3. m. 22. By all which it appears, that not only the Ports, but the Maritine Counties, have contributed towards the Charges of the De∣fence of the Kingdom. And the other side do hardly deny, but that the Maritine Towns may be charged.

I will open it plain, that it is for their ease to bring in the In-land Counties: This Cause is not of so great consequence as it is conceived, for if the Port Towns and Maritine Counties may be charged, then it bringeth but in the In-land Counties.

In England and Wales there are Fifty two Coun∣ties, Thirty three of these are Maritine Coun∣ties, so the In-land Counties are but Nineteen at most; and they contribute but to a fourth part of the Charge for the Defence of the Kingdom. And so much to my second Division of Maritine Towns.

To the third Division, which is of In-land Counties that they have been charged; I shall make that appear, that the greater part of them have been charged formerly for this manner of Defence.

Object. They object, that the County of Bucks is an In-land County, that Mr. Hampden dwells there, and therefore no reason he should contri∣bute to the Defence; no In-land County ever did it, say they.

There may be two Reasons wherefore in for∣mer time the VVrits (for the most part) went to the Ports and Maritine Counties; Because they have the Benefit of the Seas by exportation and importation of their Goods. And secondly, Be∣cause they are continually in danger of Pirates and Robbers, and far nearer for a suddain De∣fence than the In-land Counties are. But this cannot be held for a sufficient Reason, that they only that are near the Danger should be put to defend the whole Kingdom. I am sure the In-land Counties receive a great Gain and Profit by the Commodities from the Port Towns, and they

are the more in safety the stronger the Sea Coasts are kept: And therefore no reason, but that they should give towards the Charge of the De∣fence of the Sea. For all the Writs, save one Commission, have gone to be for the general De∣fence of the Kingdom. Then no reason but In∣land Counties should be charged. If they say they did never do it, it is a strange prescription, that because they never did it, therefore they will ne∣ver do it. A man cannot excuse himself, that be∣cause he never paid Tithe to such a Vicar or such a Parson, that therefore he will never pay it.

I shall go to the Records that do charge the In∣land Counties. Cl. 48 H. 3. m. 2. directed unto the Major and Bayliffs of Bedford, an Inland Coun∣ty, it doth recite, that divers of this Town were called to go with the King towards the Sea Coasts, contra hostilem invasionem & nunc necesse est, & cau∣sae forem' ut levar' fac' & expensas, &c. and ap∣points at what rate they should levy it; The Horsemen were allowed 8 d. a day, and the Foot∣men 4 d. a day.

Cl. 48 H. 3. m. 7. A Writ directed unto the Sheriff of Huntingdon; the Men of that County were commanded to go to London, and from thence unto the Sea, for the Defence of the King∣dom.

Scac' ex parte Rem Regis, 24 E. 1. Rot. 78. Dor. A Writ is directed unto the Sheriff of Bark-shire, and this is to distrain men to make good the Cu∣stody of the Sea Coasts. Fr. 26 E. 1. m. 5. Like Writs were directed to Essex, Hartford, Notting∣ham, Darby, Huntingdon, Cambridge, &c. and almost to all the In-land Counties, pro custodia maritina, all to come to London, and to go from thence to the Sea Coasts for defence thereof.

Cl. 13 E. 3. pars 1. m. 14. do. A Writ goeth out to Oxon, ad aistringendum, for Wages, pro custo∣dia Maritina; one man was distreined, he plead∣ed he had been charged in Wilt-shire, and ought not to be charged in another County again; and for this distress there went a Supersedeas.

Rot. viagii 1. H. 4. mem. 10. A Writ was direct∣ed to the Sheriffs of Nottingham and Darby, two In-land Counties; and this was to proclaim, quod omnes homines inter 16 & 60 parati sint, &c. to go with the King within the Kingdom to what parts he pleased.

Cl. 1 R. 2. m. 18. Writs were directed to the Major and Bayliffs of Huntingdon and Cambridge: this Roll is cited by the Councel of the Defendant, and in part it maketh for the Desendant, and in part against him; the Effect of it is this: The Writ directed to the Bayliffs of Hunt'; and this recites, a former Writ to provide Barges, called Ballanger, with forty and fifty Oars apeece, like unto a Galley, at the charge of the most Rich men; and this was ad custod' Maris; and the like Writ went unto the Town of Nothingham, Gloucester, and Warwick, and divers other places: These Vessels were not devised then, I find them used in E. 3 d's time.

In the Parliament Roll 2 E. 4. N. 22. The Com∣mons did complain, that a Commission is gone forth for the making of these Barges; true, upon a Petition of the Commons, the King, saith he, will advise with his Lords; there is no more done, but upon this they cease. I have now done with the Precedents on the Kings Side; I shall now come to that which hath been said on the Defen∣dants part for their discharge: And first for the Acts and Petitions in Parliament, which are weighty and considerable.

1. For the Statute de Tallagio non concedendo, which was in the Time of E. 1. It hath been doubted whether this is a Statute or no: I see no colour of doubt, but that this is a Statute; it is printed among the Statutes, and ever accounted for a Statute; and in the Petition of Right, it is recited. And to say it is no Statute, because the Parl. Roll is wanting, if it should be disallow∣ed, it would draw a great inconvenience with it, for private men might imbezle the Records, and then if the Records were wanting, the Acts of Parliament should be void.

It is an Act of Parliament no question; but the question is, whether the Provision required by this Writ be within the meaning of this Statute; I conceive it is not: For there are two words in this Statute observable, Talliage and Aid; by no Aid here will you take away the Aid par file mar∣rier, par faire fitz Chevalier; by no Talliage will you have it so, that the King shall demand no sum of Money, then if you will give it this large con∣struction, it will take away all Fines and Amerci∣aments which are due unto the King, all Lawful Impositions; and surely this was never the intent and meaning of this Statute; but it was only to take away all Taxes and Talliages that were un∣lawful, if they were lawful, this Statute medleth not with them. Now that no Talliage is to be ta∣ken, it appears in the Parliament Roll, 13 H. 4. N. 42. where an Office was granted by the King with a Fee for the measuring of Linnen Cloth, that the Subjects should pay unto Him a certain sum of Money for every piece measured; where∣upon at the Parliament the Commons Petition, That this was an unjust Imposition, and they did desire that they might not be charged with this kind of Talliage, which, as was apparent, was un∣just, and so they had present relief against it.

Next Act of Parliament, 14 E. 3. the second Parliament of that year, (three Parliaments being held that year) the Commons they grant unto the King a certain sum of Money for the great Busi∣ness he had on this side the Sea, as well as beyond. But after a cessation of the Troubles, then the King is to be at the charge for future Defence: Thereupon the King granteth this shall not be had in exemplum, and that they shall not afterwards be taxed without Parliament. And this is the strongest thing that I have heard objected: It re∣quireth a good answer, the words are plain; no Charge, no Question; but this is a Charge, I look∣ed into the Petition of Right, and it is not there mentioned, nor among those Acts of Parliament that are in the Margent; but the reason why it is omitted, I know not.

I observe by this Act of Parliament a subsequent Clause, that will go far to the answering of this Objection; for in Acts of Parliament, nor in the Petition of Right, there is no mention made of the Defence of the Kingdom: If the King had been bound to defend the Kingdom, could the Parliament have accepted this as a kindness at his hands? 14 E. ••. This Act was made, yet the Aid continued, none of these VVrits found till 24 Rot. Franc' 24 E. 3. m. 9. N. 26. There went out Com∣missions to array men for the County of Sussolk, Somerset, Dorset, &c. for the Defence of the Ma∣ritine Towns: This is now within eleven years after the making of the Statute.

Franc. 26. E. 3. m. 5. The like unto the Earl of Huntingdon, Considerantes quod omnes Incolae tenen∣tur de Jure ad defendendum in periculo, and that they shall array the men of this County, and bring them ad custodiend. Mare; and by this it is recommended for the erecting of Beacons which

is the first Direction of that nature; so here is a new Charge, and this within eleven years after the making of the Statute. The same year like Writs to the Sheriff of Nottingham, Darby, Salop, Barkshire, Middlesex, Buckingham, Northampton, &c. So all these Writs go almost into every Coun∣ty of the Kingdom; and divers other Writs of the like nature, as Fra. 28 E. 3. m. 34. but, as I said, in no Act of Parliament extant, nor in any Writ that ever went forth that I can find; there is not any thing appears to charge the King for the Defence of the Kingdom, and in all of them no distinction made between your Port Towns, Maritine Counties, and In-land Counties; but that all in general are chargeable. And for the rest of the Acts of Parliament, they are all men∣tioned in the Petitions of Right, and therefore I pass them over. There is in the Acts provision against Loans and Crievances, but this Clause for the Defence of the Kingdom, I find it menti∣oned in no Act of Parliament, but this of 14 E. 3. before mentioned.

I will now come to the Petitions in Parlia∣ment.

Parliament Roll 13 E. 3. N. 9. 11. It was there declared unto the Commons, that the French had environed the Island of Guernsey; and all this was for default of a Navy upon the Sea, and therefore it was needful to consider how this might be re∣gained: It was answered by the Commons, That concerning the Right and Guard of the Sea, they desired to give no Advice, saying, They have no cognizance of things concerning the Sea, but if there be occasion, the Cinque Ports are to be charged: Said further, That in the Marches of Scotland, they were to defend the Kingdom a∣gainst the Scots; but that this kind of Defence should lie upon them, was never heard of.

I will give you an Answer unto your Acts of Parliament and Petitions in Parliament by putting of a Case; I will admit that you have an Act of Par∣liament, as strong as you can make it, that the whole Charge for the Defence of the Kingdom should lie upon the King and not upon the Subject, in case of any sudden Invasion. Admit there were a greater Power at Sea than the King is able to make defence against, then, I pray, whether should this Act give way to the present necessity, or the Kingdom should be lost? Is it not better to endure a mischief than an inconvenience? Then if you say, the Acts of Parliament should give way to necessity, then you have answered all that you have objected. This is not the only cause of necessity, I shall put you another Cause, when Acts of Parliament must give way to necessity; That if a man be attainted of Treason, he is there∣by disinabled to inherit by Act of Parliament; but if the Kingdom should descend to such a man, then the Acts of Parliament should give way to it, and there needs no Act to avoid it; and shall not the Acts of Parliament give way unto necessity for the defence of the Kingdom? What though there have been Petitions in Parliament, to have it de∣creed that this kind of Charge should not be laid upon the Subject: Admit it had been so decreed in Parliament, yet by the Law of Equity they ought to be changed, and in all reason they are to be charged towards the Defence, and that for three respects.

First, for the Reason given in the Writ, Quod omnes tangit per omnes debet supportari, which is but Equity.

2. Next Reason, That the King is trusted with the Defence of the Kingdom, and therefore fit he should have means to do therewith. But you say, He may call a Parliament, and they will give him Means. 'Tis true, this thing in question, if done by Parliament, had been done by the happiest means. But because he might have it by Parliament, must he therefore have it no other ways? The questi∣on now is, whether it may be done without a Par∣liament or no? what is done, is done by the Great Seal, which is the next Authority unto a Parliament. VVhat if an Enemy had come be∣fore the Parliament had met, or before they had granted any Aid, should the safety of the King∣dom depend upon such contingencies, God for∣bid; will you have Forces on both sides, and re∣strain the King to this power by Parliament, which may be so dilatory, that the Kingdom may be lost in the mean.

3. Many inconveniencies might happen both to the King and Subject, if this should be suffered, if the Kind should be restrained of His Royal Power, it would turn to his contempt both at home and abroad; and all this while the matter is not so great, it is but parting with a little Money secun∣dum Statum & Facultates, and not all that a man hath, for the King desires not that. It is true as Mr. Holborne hath said, That in former times they have been careful not to leave too much power unto the King; but you would leave Him so little, as would have him in contempt both at home and abroad. The worst that comes to the Subject, is but to yield their help to the King at such times of danger, with a small part of their Estate, and then it would make Forein Nations that know of it, afraid of us, which now by this occasion have encouragement to attempt that which otherwise they would not.

It hath been objected, That if the King may raise Moneys in this manner without a Parlia∣ment, many inconveniencies may sollow, it would be a means to keep back a Parliament.

To this Objection I answer, It is no means to keep back a Parliament, for there are many other means of calling a Parliament besides for the De∣fence of the Kingdom; as for making of Good Laws, redressing of Grievances. The King may be engaged in a Forein War, and then the Sub∣jects must help Him; but to call a Parliament al∣ways, is not necessary: For when the Kingdom was in the greatest danger that ever it was in, as in 88, and in the Rebellion in the North, yet then no Parliament was called in either of these Dangers.

2. Next Objection: If this course be admitted, the King may pretend a Danger when there is none, or a great Danger, when a small, and so may raise a great Sum of Money, and the Subjects shall have but little profit.

I shall give three answers to this Objection: 1. If this power be in the King, and that power be just and equal, then it is not to be taken from Him, because He may imploy it otherwise; if he misuse His power, the fault is His own.

2. Next Answer, That this Objection cannot be made, unless you suppose injustice in the King; make what Laws you will, if the King be unruly, He will break through them.

3. The third Answer: If it so fall out, that the VVrit going out upon this pretence, and that great Sums of Money are levied, and the Money is imployed to another use, it were a great incon∣venience; but in this case there is no such fear, for the VVrit is expresly to make a Ship: And if they would have taken any advantage upon that, the Council ought to have pleaded it, and the

Judgment ought to appear there upon Reccord: There appears no Money in this Case to be com∣ing unto the King's hands: But it is said in the Writ, Volumus autem, &c. We will that no part of the Money be converted to any other use than to the Provision of a Ship.

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.

FINIS.