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The Case is this upon the Record.
THe King, by Writ under His Great Seal, da∣ted 4 Augusti Anno 11 of His Reign, directed to the Sheriff of the County of Bucks' and to all the men of that County, commandeth them in these words.
1, Quia datum est nobis intelligi; quod praedones * 1.1 quidam Piratae, ac maris Grassatores, tam nominis Christiani, bostes Mahumetani, quam alij c••ngr••gati,
Naves, et bona, et Mercimonia non solum subditorum nostrorum, verum etiam Subditorum amicorum nostro∣rum in Mari, quod per gentem Anglicanam ab olim defendi consuevit, nefarie diripientes & spoliantes ea ad libitum suum, deportavere, homines{que} in eisdem in Captivitatem miserimam mancipantes.
2. Cum{que} ipsos conspicimus Navigium indies prepa∣rantes ad Mercatores nostros ulterius molestandum, et ad Reg••••um Gravand', nisi citius remedium appo∣natur, eorum{que} conatus virilius obvietur.
3. Consideratis etiam periculis, quae undi{que} his guer∣rinis temporibus imminent; ita quod nobis & Subdi∣tis nostris defensionem Regni omni festinatione, qua poterimus, accellerare convenit.
4. Nos volentes defensione Regni, tuitione Maris, securitate subditorum nostrorum, salva conductione Navium & Merchand••zarum, & Regno nostro Angliae venientium, & de eodem Regno ad partes exter as transcu••••ium (auxiliante Deo) providere; Maxime cum nos & Progenitores nostri Reges Angliae, Domini Maris praedicti, semper hactenus extiterunt, & pluri∣mum no•• lederet, si honor iste Regius nostris tempori∣bus depereat, aut in ali quo minuatur.
5. Cumque onus istud defensionis quod omnes tangit, per omnes debet supportari, prout per legem & consue∣tudinem Regni Angliae sieri consuevit.
Vobis praefat' Vicecom', Ballivis, Burgensibus, Majoribus, probis hominibus, & omnibus aliis quibus∣cunque * 1.2 supra mentionatis in Burgis, Villis, Villat is, Hamlettis, & locis supradictis, ••orumque membris, 1. In side & ligeantia quibus nobis tenemini. 2. Et sicut nos & honorem nostrum diligitis. 3. Necnon sub forisfactur' omnium quae nobis forisfacere poteritis fir∣miter injungendum.
1. Mandamus quod unam navem de Guerra, porta∣gii 450 doliorum. * 1.3
2. Cum hominibus tam magistris peritis, quam ma∣rinariis valentioribus & expertis centum & octoginta ad minus.
3. Ac tormentis, tam majoribus, quam minoribus, pulvere tormentario, ac hastis & telis, aliisque arma∣tu••ts pro guerra sussicientibus.
4. Et cum duplici Esippamento, necnon victualibus usque ad primum diem Martii jam proximum sequen∣tem, & tot hominibus competent'.
5. Et abinde in viginti & sex septimanas ad custa∣gia vestra, tam in victualibus, quam homin' salariis, & aliis ad guèrram necessariis, per tempus illud super defensionem Maris in obsequio nostro in Comitiva cu∣stodis Maris, cui custodiam maris ante praedictum primum diem Martii committimus, & prout ipse ex parte nostra dictaverit, moratur parari; Et ad por∣tum de Portsmouth citra dictum primum diem Martii duc•• fac': Ita quod sint ibidem eodem die ad ultimum ad proficiscend' exinde cum navibus nostris & navibus aliorum fidelium subditorum nostrorum, 1. pro tuitione Maris, 2. & desenstone vestrum & vestrorum, 3. re∣pulsione que * 1.4 & debellatione quorumcunque mercat' no∣stros & alios subditos & fideles praedictos in Dominio nostro ex causa M••rcuturae se divertentes, vel abinde ad propr' declinantes super mare gravare seu molestare sat agentium.
Assignavimus autem te praefat' Vicecom' Bucks' ad * 1.5 assidend' omnes homines in villis de Agmundesham, Wendover, & Marlow magna, & in omnibus aliis Villis, Villatis, Burgis, Hamlettis, & aliis locis in Com' Bucks', & terrae tenentes in eisdem navem vel partem navis praed' non habentes, vel in eadem non de∣s••rvi••ntes ad contribuend' expens. circa provisionem praemissorum necessarium.
2. Et super praedict' Vill' Villat' Burg' Hamlett' & locos cum membris eorundem, sic ut prefertur, assi∣dend' & ponend' viz. Quemlibet corum super statum suum & facultates suas.
3. Et portiones super ipsos assessat' per districtiones aliosve modos debitos levand.
4. Et Collectores in hac parte nominand' & consti∣tuend'.
5. Ac omnes eós, quod Rebelles & contrarios inve∣neris in praemissis, carcere mancipand', in eodem mora∣tur quous{que} pro eorum deliberatione ulterius duxerimus ordinand'.
Et ulterius mandamus qaod circa praemissa diligen∣ter intendatis & faciatis, et exequamini cum effectu * 1.6 sub periculo incumbente: Nolumus autem, quod co∣lore predicti mandati nostri,
By virtue of this Writ, Mr. Hampden is assessed to 20 s. for his Lands in Stoke Mandevil in that County, which not being paid, is certified amongst others in the Chancery upon a Writ of Certi••rari, dated 9 Martii, Anno 12 Caroli, by a Schedule thereunto annexed. And by a Writ of Mittimus Teste 5 Maii 13 Car. This Writ of 4 Augusti 11 Caroli, and the Writ of Certiorari and the Sche∣dule 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 et secun∣dum legem Regni nostri Angliae fuerit faciend'. Whereupon a Scire fac' issued out of the Exche∣quer, (reciting the said Writs) to warn Mr. Hampden, amongst others, to shew cause why he should not be charged with this Money. Upon this, he being summoned, appeareth, and demands the hearing of these Writs and Schedule, which being entred, thereupon 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 Case: 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 Case is, the King is no party to the Record, but only it is a Judicial Process out of the Exchequer, ground∣ed upon the former Records, for the Defendant to shew cause why he should not be charged; which hath been very elaborately argued by the Defendants Councel, who demurred that he should not be charged; and by the Kings Councel very learnedly and elaborately argued, that the Defendant 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 concerneth the King in His Prerogative and Power Royal; and on the other side, that it concerneth all the Kings Subjects in their Liberties, their Persons, and their Estates; for which it hath made some of us to wish and move among our selves, that it might have been by His Majesties Favour heard and determined in another place, by His Majesty and His Great Councel 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 accounted his Majesties Coun∣cel at Law; wherein, if any thing be done amiss, the fault must light upon us, as misadvising the King therein: But seeing it hath pleased his Ma∣jesty, that the same should be argued and deter∣mined in this place (whose Pleasure we must o∣bey) I must give my best Advice upon my Oath, to the best of my skill; wherein, I hope not to trench upon his Highness Prerogative (which we are all bound by our Oaths, to the best of our skills to maintain) and not to suffer to be dimi∣nished; nor upon his Royal Power; but truly to deliver what I conceive the Law to be con∣cerning the Case in Question.
Wherein I must confess I have been much di∣stracted, 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 Councel have of either side pressed such Reasons & Arguments, and cited such Records as they thought conveni∣ent for the maintaining of their Opinions, and perhaps with a prejudicate Opinion, as I my self by mine own experience, when I was at the Bar, have Argued considently, and as I then thought the Law to be of that side for whom I argued: But after, being at the Bench, weighing indiffe∣rently 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 mo∣ved me most, and maketh me most mistrust my own Judgment in this Case, is that all my Bro∣thers (who have all argued upon their Oaths, and I presume have seen the Records and Prece∣dents cited on either side) have all argued one way; with whose Opinions I should willingly have concurred, if I could have satisfied my own Judgment with their Reasons; but not be∣ing satisfied, I have learned that I must not run with a multitude against my 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 o∣thers my Brethren; and whatsoever shall be ad∣judged, I must submit unto, and so do wish all others; and do now declare my Opinion to be, that as this Case is, Judgment ought to be given for the Defendant.
My Reasons and Grounds that I shall insist up∣on, are these:
1. That the Command by this Writ of 4 Aug. 11 Car. to make Ships at the Charge of the In∣habitants of the County (being the Ground of this Suit, and Cause of this 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 ex∣presly 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 Pre∣togative or Power Royal, nor Allegation of Ne∣cessity or Danger.
4. That admitting it were Legal to lay such a Charge upon Maritine Parts, yet to charge any In-land County (as the County of Bucks is) with making Ships, and furnishing them with Masters, Mariners and Souldiers, at their Charge, which are far remote from the Seas, is illegal, and not warranted by any former Precedent.
5. I shall examine the Precedents and Records cited to warrant this Writ, which have been all the principal Grounds of the Arguments to main∣tain the same; and I conceive there is the chief Ground-work; being in my Notes; but I forgot it.
But before I proceed to the Argument, I de∣sire do remove two Difficulties.
1. That by the Demurrer the Danger of the Kingdom is confessed, and so to be a Case of Ne∣cessity.
To this I Answer, that the Demurrer Confes∣seth not Matters in Fact, but where the Matter is legally set down; but if it be not a Legal Pro∣ceeding, then the Demurrer is no confessing of the Matter in Fact.
This appeareth in the Book-Case of 5 H. 7. fol. 1. And Cooke lib. 5. fol. 69. in Burton's Case That a Demurrer is no confessing Matters of Fact, but where the Matter precedent is sufficiently pleaded or laid down, and so it is holden in all our Books.
2. The second Difficulty is, That this Case is so resolved by all our Opinious under our Hands, that this Writ was Legal, which was much pres∣sed by Mr. Solicitor.
To this I Answer, That it is true, I have set down my Opinion under my Hand unto the first voluntarily, in Decemb. 1635. which was thus▪
I am of Opinion, that where the Good and Safety of the Kingdom in general is concerned, and the whole Kingdom is in danger (of which his Majesty is the only Judge) there the Charge and Defence ought to be born by all the Realm in general.
This I hold to be agreeable both to Law and Reason; this Opinion I do still hold, and will alwaies maintain; for where the Kingdom is in danger, the King may command every person of his Kingdom with all his Force and Means to come to defend it at all times, and in all places of his Kingdom where he pleaseth; and the King is the sole Judge of the Danger, and of War and Peace; and if any do not perform his Com∣mands therein, he is fineable and punishable in a deep measure.
The Second Subscription was in Febr. 1636, Which is, That when the Good and Safety of the Kingdom in general is concerned, and the whole Kingdom in danger, his Majesty may by Writ under the Great Seal of England, com∣mand all his Subjects of this Kingdom, at their Charges, to provide and furnish such Number of Ships with Men, Victuals and Munition, and for such time as his Majesty shall think fit, 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 refra∣ctoriness: and that in such case his Majesty is the Judge of this 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, and I then disassented to that Opinion, and then signi∣fied 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 opini∣on which was after subscribed; and some others in some other particulars from that which was subscribed; but the greater part seeming absolutely to be resolved upon that opinion, some of them af∣firming that they had seen divers Records & Pre∣cedents 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 conferences. And for that the lesser number must Submit to the opinion of the more, although they varied in their opinion; as it is in our Courts; if three Judges agree in opinion against one or two, where there are 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 for∣bear their Subscription. And that although we did subscribe, it did not bind any, but that in point of Judgment, if the Case came in questi∣on judicially before us, we should give our Judg∣ment as we should see cause, after the hearing the Arguments on both sides, we were not to be bound by this sudden resolution.
Hereupon I consented to subscribe, but I then said, that in the mean time, the King might be misinformed by our Certificate under our hands; conceiving us all to agree together, and give him this advice under our hands, and not know that there was any that dissented, or was doubt∣ful; but it was then said, the King should be truly informed thereof; and there upon, we that did assent, did subscribe our hands with such pro∣testations as aforesaid; only for Conformity; al∣though contrary to the opinion I then conceived.
But this being before arguments heard on ei∣ther 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 have∣ing heard all the arguments on both sides, and the Reasons of the Kings Councel to maintain this writ, and why the Defendant is to be charg∣ed, and the arguments of the Defendants Coun∣cel against the Writ, and the reasons why the Defendant should not be charged to pay the mo∣ney assessed upon him: And having duly conside∣red of the Records and Precedents Cited and and Shewed unto me, especially those of the Kings side, I am now of an absolute opinion, that this Writ is illegal, and declare my opinion to be contrary to that which is subscribed by us all. And if I had been of the same opinion as was subscrib∣ed, yet upon better advisement, being absolute∣ly setled 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 then to argue against mine own conscience: And therefore now having (as I conceive) removed those difficulties, I proceed to my argument, and shall shew the reason of my opinion, and leave the same, as I said to my Lords and Brothers: Not one Precedent nor Re∣cord in any Precedent time, that hath been pro∣duced or shewed unto me, that doth maintain a∣ny writ to lay such a charge upon any County, Inland or Maritine.
I will examine this particular Writ and the se∣veral parts thereof, and do conceive that it is il∣legal, and not sufficient to ground this charge upon the Defendant.
1. The motives of this Writ are not suffici∣ent to cause such a Writ to be sent.
2. The command of the Writ, to prepare a Ship at the charge of the Inhabitants, with Mu∣nition and Men, is against the Common Law and Statutes.
3. That to lay a charge of finding victuals, and Wages of Souldiers and Mariners, is ille∣gal, and contrary to the Common Law, and di∣vers Statutes in point.
4. The power of assessment given to the She∣riff alone, and to destrain for this, is illegal and not warranted by any Precedent.
5. The power of imprisoning is illegal, and contrary to divers Statutes, and not warranted by the Precedents.
6. That the Perclose of the Writ, and the practice of it, is contrary to it self, and Opposi∣tum in objecto.
7. If this writ were legal, yet the manner of the Assessment by the Sheriff, as it is certified, is not warranted by this Writ: quietly this same cannot be demanded of the Defendant by vertue of this Writ.
8. That the Certiorari and Scir' Fac', issued not legally; and so consequently no Judgment can be given against the Defendant thereupon.
For the first point that this Writ of 4. Aug. 11 Car. is against the Common-Law: My reasons are these.
1. Because that this is the first Writ, since the Conquest, that went out to any In-land Coun∣ty, to prepare a Ship with Men and Mu∣nition, for ought appeareth by any record that hath been shewed; and where there was never any Precedent by Assent, by the rule of M. Littleton fo. 23. the Law is conceived not to bear any such Writ. And Sr. Edward Cooke in his Commentary upon Littleton fo. 81. saith, that there is no exam∣ple, it is a great intendment, that the Law will not bear it.
So I conceive here, there never having been a Precedent before of any such Writ to the Sheriff and Inhabitants of a County, to prepare Ship with Men and Munition, upon any occasion what∣soever, that it is against the Common Law to a∣ward such Writs.
2. For the common Law of England setteth a freedom in the Subjects, in respect of their per∣sons, and giveth them a true property in their Goods and Estates, so that without their consent or implicity by a common ordinance, which they consented unto by a Common assent in Parlia∣ment, it cannot be taken from them, nor their Estates charged, And for this purpose, the Law distinguisheth between Bondmen, (whose estates are at their Lords will and disposition;) and free∣men, whose property none may invade, charge, or unjustly take away, but by their own free con∣sent; and therefore not warranted by Law; which is proved by these authorities
Cooke in his Rep. l. 8 f. 92. in Francis Case, setteth down this Rule, Quod nostrum est, sine fa∣cto seu defectu nostro amitti, seu in alienum transfer∣ri non potest.
Mr. Lambert, fol. 24. setting down the Laws of England which were confirmed by William the Conqueror, hath these words: Inter alia, volu∣mus & concedimus, quod omnes liberi homines Mo∣narchiae Regni sui predict', habeant & teneant, ter∣ras suas & possessiones suas bene & in pace liberas ab omni exactione injusta, & ab omni Tallagio (not mentioned there injusta) Ita quod nihil ab eis exi∣gatur praeter servitium suum juste debitum: Hereby it appears, there is an absolute freedom from all Tallage: 17 King John in Mat. Paris, fo. 246. the King doth grant and confirm unto his Barons and Commons inter alia, these Liberties follow∣ing: Nullum Scutagium vel auxilium ponamus in
Regno nostro, nisi per Commune Concilium Regni no∣stri, nisi ad redimendum corpus nostrum, filium no∣strum primogenitum miilt. faciend', vel ad primogeni∣tam filiam maritand'. By this it appears, what was then conceived to be amongst others, their Libertie, and then confirmed, which was, that no aid should be laid upon them but by Parlia∣ment; for the Parliament was then called Com∣mune Consilium.
That the Law is so, appeareth by the Treatise written by Fortescue, who had been Cheif Justice of England, then Chancellor of England in H. 6. time, when he wrought the Book entituled. De laudibus Legum Angliae. For fol. 25. 9. Cap. he saith thus, That the King of England cannot al∣ter nor change the Laws of England at his plea∣sure.
For, Principatu Regali, sed et politico ipse populo suo dominatur: If his power were Royal only, then he might change the Laws, Tallagia quoque & caetera onera eis imponere, ipsis in consultis; but adds, that the King of England, sine Subdito∣rum assensu Leges mutare non potest, nec Subjectum populum renitentem onerare impositionibus peregrinis, And in this 13 Chapter fo. 31. he compares the King and Subjects of England, to the Head and Body natural, Ʋt non potest caput corporis Physici nervos suos commutare, ne{que} membris suis proprias vi∣••es, & propria sanguinis alimenta denegare sui: nec Rex, qui caput corporis politici est, mutare potest Le∣ges corporis illius, nec ejusdem populi substantas pro∣prias subtrahere ••eclamantibus eis, aut invitis: Thus he in this place: But in fol. 84. cap. 36. he seems to say, in hoc individuo Rex Angliae nec per se, nec per ministros tallagia, subsidia, aut quaevis onera alia imponit Legibus suis, aut leges eorum mutat, aut nova condit, sine concessione vel assensu totius Regni sui in Parliamento suo expresso: Which words seem so general, that in no case he may do it.
So it appeareth by the Book Case, 23 H. 4. fo. 24 that the grant of the King which tendeth to the charge and prejudice of his people in ge∣neral, is not good, unless it be by Parliament. But it is agreed there, that grants of Tolls, of Fairs, of Pontage, Pikage, Murage, Ferrying, or such like, which are for the profit, good, and ease of the people, and profit of them that will take benefit thereof, and not compulsory to any to pay, but to them that will take the benefit of such fees, and being very small and reasonable sums, the Law doth give allowance to them, but if they were great sums, that tend to the charge of the people, the Law will Judg them void.
This appearerh in Sr. Edward Cook his Reports, lib. 5. fo. 63. in the case of the Chamberlain o•• London, that an ordinance made by the Com∣mon Council of London, where they gave a Cu∣stom by their Common Councel, to make reaso∣nable ordinances, to bind all within the City concerning Cloaths to be brought to Blackwel-Hall, there always to be viewed, measured, and searched before they were sold, and a penny upon a broad cloath appointed for the Officer that did that service, that such a charge was rea∣sonable, for that it was for publick benefit of the City and Common Wealth: And a pecuniary pe∣nalty laid for not performance of that Ordinance, was allowed.
Ibid fol. 64. in Clarks Case, is resolved, that an ordinance made by the assent of the Plaintiff himself, and other Burgesses for the Town of St. Albans, for a small tax upon the Inhabitants of the Town towards the Erection of the Courts, and other necessaries for the Term to be kept there; was allowed to be good, and did bind the Plaintiff, being by the Plaintiffs own consent, and for the publick good of the Town.
Also Cooke, l. 11. fol. 86 in Darcies Case, citeth this out of Fitz. Natur. Bre. fo. 122. That every grant of the King hath this Condition in it, Ta∣cit, or express, Quod Patria per donationes illas magis solito non oneretur seu gravetur; 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 127. and Fitz. Nat. Br. fol. 113. Where by Breach of the Sea-walls any Inundation is of the Country, the King, who is Pater Patriae, and taketh care for the Good and Safety of his People, sendeth out his Com∣mission to enquire by whose default any such Breach happened; and to cause all that had Lands or Commons, 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 Loss or Benefit, or may have Loss or Benefit thereby; and this is done upon enquiry of a Jury before the Sheriffs or Commissioners ap∣pointed.
So it is at this day upon Com••••ssion of Sewers; as appeareth by Cooke, lib. 10. fo. 42. in the Case of the Isle of Ely, That the ••axation by the Commissioners of Sewers, must be upon every particular man, that hath or may have Loss or Be∣nefit by such Inundations and making up of the Walls, and cannot be laid upon any remote parts which are out of the Level of such Loss or Bene∣fit; and it must be certain, and particular upon persons certain, by reason of Loss or Profit, and cannot be laid in general upon a Town: But in those Cases there is a particular Loss or Benefit, and in particular places, and but in petty Char∣ges; 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 throughout the Kingdom, which the Law doth not permit without common consent in Parliament.
But it hath been alledged, That this Charge hath been imposed for the provision of the Pub∣lick Safety and Defence of the Kingdom; and may not this be done when every one hath ad∣vantage by it?
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 Precedents, 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 by all the Subjects.
To prove further, That no man may have his Goods taken from him, but by his Consent, ap∣peareth by a Record in Mich. 14 E. 2. Rot. 60. in the Kings Bench, in a Writ of Error brought up∣on a Judgment given at Durham; where an A∣ction of Trespass by William Heyborne, against William Keylowe, for entring his House, and breaking his Chest, and taking away 70 l. in Mo∣ney,
the Defendant pleading Not Guilty, the Jury found a Special Verdict, That the Scots having entred the Bishoprick of Durham with an Army, and making great Burning and Spoils, the Commonalty of Durham met together at Dur∣ham, (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 mans House, to search what ready Mo∣ney was there, and to take it for the making up 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 the Fine. The Jury was demanded, whether the Plaintiff was present, and did consent to the payment of the Money? They said, No: whereupon the Plaintiff had Judgment, to recover the said 70l. and Damages; for that otherwise he had no Remedy for his Money; and the Defendant committed in ••••••ention for that Sum; and there∣upon, the Desany a••t Keylow brought a Writ of Errour in the ••••••igs Bench, and assigned his Er∣rours in point of Judgment; and there the Judgment was reversed; and the Reasons set down in the Record, were,
1. Because the Plantiff Heyborne had his suffi∣cient Remedy against the Commonalty of Dur∣ham for his Money.
2. Because he himself had agreed to this Or∣dinance, and was sworn to perform it; and that the Defendant did, nothing but that the Plaintiff had assented unto by his Oath; and therefore is accounted to do nothing but by his Consent, and as Servant unto him; therefore he was therein no Trespasser: and therefore the Judgment given in Durham was reversed, because he had assented to that Ordinance, though afterwards he was un∣willing, 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.
2. R. 2. pars 1. The Parliament-Roll proveth this directly; although it be no Act of Parlia∣ment, yet the Record is much to be regarded; for it sheweth what the Law was thei•• 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 ha∣ving considered of the great danger the Kingdom was in, and how Money might be raised in Case of imminent danger, which could not stay the delay of a Parliament, and the Kings Coffers had not sufficient therein; The Record is, That they all agreed, that Money sufficient could not be had without laying a Charge upon the Commo∣nalty; which (say they&pucn;; cannot be done with∣out a Parliament. And the Lords themselves, for the time, did supply the said Necessity with Money they lent. Which Record proveth direct∣ly that this Charge without an Act of Parliament is illegal.
So upon these reasons, I conclude that this Writ compulsarily to charge the Subjects against their wills, is not warranted by any Books, and therefore illegal.
If this Writ should be allowed, great Incon¦veniences would ensue, which the Law alwaies will avoid, and not permit any Inconveniences.
First, That if any such 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 of∣ten as the King pleaseth, and with making as many Ships, and of what Burdens, and with what Charge of Munition, Victuals, and Men, as shall be set 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 mode∣rately; but Judges, in their Judgments, are not to look to present times only, but also to all future times, what may follow upon their Judgments.
That this inconvenience may be, it appears by the Danegelt, 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 10000 l. Anno Domini 994. it was increased to 16000 l. and An. Dom. 1002. it was increased to 24000 l. and An. Dom. 1007. it was increased to 36000 l. and An. Dom. 1012. it was increased to 48000 l. 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 Parlia∣ment, until 31 Eliz. and then a double Subsidy and Four Fifteens were granted, Sr. Walter Mildmay, then Chancellor of the Exchequer mo∣ving for it, and saying, his heart did quake to move it: not knowing the Inconveniences that should grow upon it, he shewed great reasons for his so moving it, being minded
the Spanish invasion, and so it was granted.
Afterwards in 35. Eliz. Treble Subsidies, and Six Fifteens were granted: and in 43 Eliz. 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 ap∣pointed for the levying of them.
Tunnage and Poundage were granted to this end, in 13 R. 2. (and have continued ever since by several grants) until this Kings time, where∣in it was unhappily questioned in Parliament, but the end thereof was that the Kings might have monies in their purses against time of need for extraordinary occasions; especially for the de∣fence of the Realm, and for guarding of the Seas, as it is especially declared by the Statute of •• Jac. and former Statutes, and for other necessary uses as the King pleased.
Obj. But it is said that Tunnage and Poundage is not now granted to the King, and therefore the King is inforced to these extraordinary courses.
Sol. Though it be not granted, yet I think it is taken; and I doubt not but to the same intent, and for the same purposes employed, for which it was first granted; which was, for the Defence of the Kingdom, and Guard of the Seas.
Therefore, in Case of Danger and Necessity, every Subject (for Defence of the Kingdom) is bound Ligeantiae debito, as some Records say, and ligeantiaes suae 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 defend the Sea; yet with this also (when they go out of their Counties) at the
King's charges, but to command the Subject by VVrit 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 a∣voidance of danger, is not warrantable by the Common Law.
Another inconvenience is, that it is left in the power of the Sheriff to charge any mans Estate at his pleasure, taxing some, and sparing others, as his affection leadeth him, and sometimes by co∣lour thereof, levying more than he need, and en∣riching himself; which power the Law never al∣loweth him, although it were in less matters, as to make an Assesment for the breach of Sea walls, but to do it by a Jury, and not by himself a∣lone.
So, for these reasons, I conclude this VVrit is against the Common Law, and so illegal.
I conceive if the Common Law were doubtful in this, whether such a Charge might be imposed by VVrit, yet now it is made clear by divers ex∣press 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 Parlia∣ment in force, and not repealed: And there is no doubt but the King by Parliaments may bind them and their Successors
every King being bound by Oath to per∣form the Statutes of this Realm.
The Statute of 25 E. 1. cap. 5. which is in these words:
Forasmuch 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 of them and their Heirs, because they might be at another time found in the Rolls, and likewise for the Prizes taken through∣out 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 ••••ne 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, Ab∣bots, Priors, and other Folk of Holy Church; as al∣so to Earls, Barons, and all the Commonalty of the Land, that for no business from henceforth we shall take Aids, Taxes, nor Prizes, but by the common as∣sent of the Realm, and for the common profit thereof (savi••g the ancient Aids and Prizes due and accu∣stomed) which are the express words of that Statute. Now what those ancient Aids were, is well known, that they were ad redimendum Corpus, ad Filium Primogenitum Militem faciend.; & ad Fi∣liam Primogenitam Maritand. Which Aids con∣cern net 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 ob∣jected, would preserve this Aid now in question, yet the Statute made afterwards de Tallagio non concedendo, being without any Salvo, takes it a∣way; which Statute, Rastal in his Abridgment, ••ol 441. in his Title of Taxes, abridgeth it in this manner:
Anno 25 E. 1. It is Ordained, That the Taxes ta∣ken, shall not be taken in Custom, nor but by the as∣sent ••f this Realm, except the ancient Aids and Taxes: And there the Taxes of Wooll of 40 s. a Sack is released.
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, Bur∣gesses, and other free Commons of our Realm, that nothing be taken from henceforth in the name, or by the reason of Male tout, of a Sack of a Wooll; Sta∣tute de Tallagio non concedendo
Mr. Solicitor laboured much to prove, that there was no such Statute de Tallagio non conc••∣dendo.
Mr. 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 demanded by Prerogative or Power Royal for the defence of the Kingdom.
Sol. To this I answer, this was never doubted to be a Statute until this Argument; and that it is a Statute, appeareth.
To that, that it is not found in the Rolls, I an∣swer, that many Statutes which are known Sta∣tutes are not found in the Rolls, as Magna Charta is not.
And as touching the time, I conceive it to be made in 24 E. 1. cap. 1. for so it is set down in the great Book of Statutes, printed Anno 618. to be the first Chapter of the Statutes therein made, viz. in these words.
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.
And that it is a Statute, all my Brothers the Judges have agreed.
The only doubt then is, whether this Statute extendeth to Aids for the defence of the King∣dom, which I think it doth; for it is the precis••&pucn;; words, that no Tallage nor Aid shall be taken or levied, but by consent in Parliament, which ex∣tendeth to all manner of Aids.
Boden saith, fo. 97. by a Law made in the time of E. 1. that it was provided and enacted, that no Tax, Talliage, nor Aid shall be imposed, but by grant in Parliament; and by this Law the Subjects of England have defended themselves e∣ver since, as with a Buckler, whereby it appear∣eth that notice was taken of this Law in for∣reign parts, and so held still to be a Statute in force.
The next Statute is 14 E. 3. cap. 1. which re∣citeth the grant of the great Subsidy of the ninth Flcece, ninth Lamb, &c. formerly granted; thereupon these words follow.
We willing to provide for the Indempnity of the said Prelates, Earls, Barons, and others the Common∣alty of the Realm; and also of the Citizens, Bur∣gesses, and Merchants aforesaid, will and grant for us and our Heirs, to the same Prelates, Earls, Ba∣rons, and Commons, Citizens, Burgesses, and Mer∣chants, 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 Aid, nor sustain charge, if it be not by the common assent of the said Prelates, Earls, Ba∣rons, and other Great Men, and Commons of the said
Realm of England, and that in the Parliament; and that all the 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 Gascoign, and in no place elsewhere, during our said Wars.
By this Statute it appeareth, that it is expresly provided, that the Subjects should not be from henceforth charged nor grieved to make any Aid, nor sustain any charge, but by common as∣sent, and that in Parliament, which is as express as may be, and exclusive to any charge other∣wise, which I conceive was made against the ap∣pointment of making or preparing, and sending out of Ships at the charge of the Towns wherein they were, or sending men out of their own Counties at the charge of the County.
Now where it is alledged by my Brother We∣ston, and my Brother Barkley, that this was but a Temporary Statute, and ended when his Wars ended, which appeareth by the last Clause, for imployment of those profits of his Wards, &c. to∣wards those Wars; I conceive it appeareth to be an absolute and perpetual Statute, for it is granted for him and his Heirs, which is in perpe∣••uity: And also it appeareth by Plowden his Com∣mentaries, fo. 457. in Sir Thomas Wroths Case, where a grant is by the name of the King, which is in his Politick Capacity; this extendeth a∣gainst 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 thence∣forth for all future Ages; and then the Office of Judges is, as appeareth by Sir Edward Cook his Reports, lib. 3. fo. 7. and Plowdens Commenta∣ries in Eiston and Studs Case, to construe Statutes according to the true intent of the Makers there∣of, which was in this Statute, that it should be perpetual security for the Subjects; and to little purpose it had been to make a Statute to conti∣nue but during the time of the Wars, or during the Kings life.
Obj. Also where it is alledged, that this Sta∣tute of 14 E. 3. is not mentioned in the Petition of Right, which is some Argument that it was not conceived to be a continuing Statute.
Sol. To that I answer, that in that Petition of Right it is said, that by the Statute there recited, and other the good Statutes of this Realm, the Subjects shall not be compelled to any Tax, Tal∣liage, Aid, nor other like charge not set by Par∣liament, in which this Statute is as well intended as other Statutes, and as far as if it had been ex∣presly recited. Also it appeareth by all the Books of Statutes, that this Statute is printed as a Statute continuing, whereas others expired are so set down as expired.
21 E. 3. pars 2. m. 11. A Subsidy being grant∣ed by Parliament, viz. 40 s. of every Sack of Wooll transported before Michaelmas following, and 6 d. of every 20 s. of Merchandize for the safe guarding of the Merchants, defence of the Coasts, &c. After Michaelmas, viz. 31 Octob. 21 E. 3. by Writ the Collectors were command∣ed to continue the Collection of those Subsidies until Easter. But 26. Novemb. 21 E. 3. the King by Writ commanded the stay of the 6 d. in the 20 s. and to continue the Collection of the Sub∣sidies upon the Sacks of VVooll until Easter.
22 E. 3. Parl. m. 16. The Parliament being holden in Lent, the Commons complained of this continuance of the Collection of the Subsidy up∣on the Sacks of VVooll longer than the Parlia∣ment had granted it, and provided that it should not be continued longer than Easter by the pro∣curement of no person.
By this it appeareth, that the Parliament be∣ing careful, that the time for levying of a Subsidy granted, should not be inlarged by any Power, much less would they admit of a VVrit to lay a charge without grant by Parliament.
25 E. 3. m. 8. It was Enacted, That no man should be compelled to find Men at Arms, other than such as hold by such services, except it be by common assent in Parliament.
By this it appeareth, that if men be not com∣pellable 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 Souldiers for a time, unless it be by common assent in Parliament.
Rot. Parliamenti 2 H. 4. n. 22. An Act of Par∣liament (as I account it in the very point) is in these words; For that of late divers Commissi∣ons were made to divers Cities and Boroughs within the Realm, to make Barges and Barrin∣gers, without assent of Parliament, and other∣wise than hath been done before these hours: The Commons do pray the King, that these Commissions may be repealed, and that they may not be of any force or effect; to which it is an∣swered, that the King willeth that the faid Com∣missions be repealed in all points, which is an ab∣solute and perfect Statute: but then there is ad∣ded 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 Re∣cord it appeareth, that the Commons did con∣ceive, that no Cities, Boroughs, nor Towns, without assent of Parliament, were to be charged with the making of such Vessels; to which the King agreeth; and 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 not appear any Records that ever I I have seen, of any Writs directed to any Towns or Cities, at their charges to make or prepare any Ships or Vessels whatsoever.
Sol. Hereunto I answer, that it is an absolute Act, for it is an absolute assent to the Petition, and that which came after was but a plausible ex∣cuse; for that such Commissions had gone out, and this further Consultation never appeared to be made, nor never any such Writ or Commission for such Vessels to be made, went out ever since until this Writ.
13 H. 4. n. 10. A grant is of a Subsidy of VVoolls, VVooll-fells, Hides, and other things there mentioned, and of Tunnage and Poundage for one year for the defence of the Marches of Calice, &c. and for the defence of the Realm, and safeguard of the Sea; and therein is the ex∣press
proviso, viz. Provided always, that this grant of a Subsidy of Woolls, &c. and of Tun∣nage and Poundage in time to come, shall not be taken in example, to charge the Lords or Com∣mons of this Realm with any manner of Subsi∣dy for the safeguard of Calice, &c. nor for the defence of the Realm, nor for the safeguard of the Seas, unless it be by the will of the Lords and Commons of the Realm, and that by a new grant to be made, and that in full Parliament to come: by this it appeareth, that it was then pro∣vided, that no charge should be laid upon the Lords or Commons, no not for the defence of the Realm, but by grant in full Parliament.
13 H. 4. n. 43. A Petition was in Parliament, reciting, that there was an Office granted of Al∣nager within London, and the Suburbs of the same, with Fees to that appertaining, where any such Office never was, nor any such Fees apper∣taining thereunto; and that by colour thereof, they levy ob. of the buyer, and ob. of the seller; and upon sale of every hundred Ells of Canvas▪ a peny of the seller, and a peny of the buyer, wrongfully against the Statutes in the time of your Highness Progenitors made to the contra∣ry; by which it is ordained, that no Talliage 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 made thereof 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 Talliage or Aid shall be levied without grant in Parlia∣ment.
1 R. 2. cap. 2. It is enacted in these words; Our Soveraign Lord the King, remembring how the Commons of this Realm by new and unlaw∣ful inventions, and inordinate Covetize 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 Be∣nevolence, 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 Impositions, called a Benevolence, or by such like charge; and that such exactions, called a Ben••volence, 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 provi∣ded, that the Subjects shall not be charged by way of Benevolence (which is in nature of a free gifts nor such like charge•• that is, no charge of money shall be upon the Subjects for any pre∣tence 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 Maje∣sties Reign, where reciting, that it was enacted by a Statute made in the time of E. 1. commonly called, Statutum de Tallagio non concedendo, that no Tallage or Aid shall ••e 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 Sta∣tute of 25 E. 3. 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 Benevo∣lence; by which Statutes, and other the good Sta∣tutes of this Realm, your Subjects have inherited this freedom▪ That they shall not be compelled to contribute to any Tax; Tallage, Aid, or other like charge not set by Parliament.
And then they pray, that none hereafter be compelled to make or yield any Gift, Loan, Be∣nevolence, Tax, or such like charge, without common consent by Act of Parliament.
And after five other things there mentioned, the conclusion is, all which they pray is their Rights and Liberties; unto which the King an∣swers, let Right be done, as is desired, which is a full and perfect Statute, shewed in this point the liberty of the Kingdom prayed and allowed, which was not done without the advice of the Judges then being, whereof I was one; whose O∣pinions were then demanded, and resolved, that the same did not give any new liberty, but de∣clared what the liberty of the Subject was in this amongst others, that they should not be compel∣led to be contributary to any Tax, Tallage, Aid, nor any like charge not set by Parliament.
By reason of all which Statutes, especially of those of 25 E. 1. ••4 E. 1. and 14 E. 3. being in the Negative, and in force; I conceive that these Writs, to lay such a charge, is against the Law, and so the Assesment by colour thereof not law∣ful.
Obj. Now whereas the precedent 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 a Consultation: And the danger is con∣ceived to be very great, because the first Writ of 4 Augusti so mentioneth, that the Pyrates pro∣vide 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 Reipublicae periclitabatur: And we must believe these suggestions to be true; for the Kings Cer∣tificate by rhis Writ is, Recordum superlativum, as Mr. Solicitor and my Brother Berkley termed it; and we must leave it upon the Kings Conscience (if it be not true) to lay such a charge upon an untrue suggestion: And the Defendant also by his Demurrer hath confessed all the suggestions in the Writ to be true; therefore it must be con∣ceived that the Kingdom was in great danger, and present remedy must be had by making of these Ships, and must be commanded by these Writs, and not to stay for a Parliament: And my Brother Crawley said, it may be that if a Par∣liament were called, they will not yield to the going forth of such Writs, although the King∣dom were never so much in danger.
And this Charge (in respect of the making of the 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 de∣fended.
Answ. 1. To all these I answer, That the mat∣ter now in question is upon the Writ of 4 Au∣gusti, whether that be legal or not, and the sug∣gestions therein be sufficient or not; for the Writ of Mittimus mentioning, that Salus Reipub. peri∣clitabatur, at the day of the issuing of the VVrit
of 4 Augusti (which is a year and a half after the first VVrit) doth not help it: And this is not no∣tified to the Sheriff and Inhabitants of the Coun∣ty, to make them the more careful, and in the greater contempt, if a Ship were not provided: but it is only a notification of the Barons of the Exchequer, that the same was the reason why the same issued forth.
Answ. 2. That the suggestions are not abso∣lute, that any such danger was, or such Navy was prepared by the Pyrates, but only mentioneth, Quia datum est nobis intelligi, that the Pyrates had done such mischief.
Answ. 3. If such suggestions had been abso∣lutely set down, yet we are not always bound ab∣solutely to believe them, because many times un∣true suggestions are made in VVrits and Patents; and yet it doth not lye upon the Kings Consci∣ence, neither doth the Law impute any fault to the King, if any such be; for the Law doth al∣ways conceive honourably of the King, that he cannot, nor will not signifie any untruth under his Great Seal; but he is abused therein, and the Law imputeth it to them that so misinformed the King, and thrust in such suggestions into the VVrit; and therefore all Patents grounded upon untrue suggestions are accounted void.
Answ. 4. That the Demurrer confesseth no∣thing, 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 Clause.
Ans. 5. If the Kingdom were in danger, yet a charge must not be laid in general upon the Sub∣jects without their consent in Parliament; for either the danger is near, and then the present provision must be made by mens 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 mens purses, by distraining of their goods, or imprisoning their persons: But if the danger be further off, by reason of any forreign Combi∣nations (as it is conceived it may be here) then provision must be made of Ships by all the King∣dom for defence; then, as Philip Comines, fol. 179. that Cloud is seen far off, before that the ••empest fall, especially by a Forreign VVar; and such Invasions cannot happen so soon, but that the King may call his Sages together, and by con∣sent make provision for such defence.
So I say here, if there be a time to make Ships, or prepare Ships at the charges of the Counties; then is there time enough for his Ma∣jesty (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, but to make provision for defence, being for all their safeties.
For it appeareth by Cook, lib. 9. fo. 1. 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, that it was necessary to have Parliaments often to redress inconveni∣ences.
Also by a Statute made 4 E. 3. cap. 14. It is Enacted, that a Parliament shall be held once e∣very year, and oftner, if need be: Also by a Statute made 36 E. 3. 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 E. 3. Also it appears by the speed that was in the Parliament held in 3d. of his Majesties Reign, five Subsidies were grant∣ed, two of them to be paid within few days af∣ter the Session of Parliament ended; and there∣fore might (as this Case is) have been ordered and provided for by Parliament, within 7 Months, as the time was between the Test of the Writ, and the time prefixed for Ships to be prepared and sent.
Sol. It is answered, that it is not to be presu∣med, 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 de∣fended; for it is a Rule, Nihil iniquum est prae∣sumendum in Lege: 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 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 Sheriff to tax them how, and when he would.
Sol. I answer, that it is true, if a Statute were that the King should not defend the Kingdom, it were void, being against Law and Reason; but a Statute that Money shall not be charged or le∣vied, nor that men shall be charged to make or prepare Ships at their own charges, without com∣mon consent in Parliament, I conceive were 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 in Par∣liament: And then, the King, being a just and pious 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 were truly informed, that the imposing of this charge were against any one Law of this Kingdom, as this is against so many; but would say (as it is said in the Statute made 35 E. 1. that the Pope should not be per∣mitted to present to Benefices) that he was bound by his Oath to see that, and other Laws in force, and not repealed, to be performed, that he would not suffer such charges to be laid con∣trary to the Laws and Statutes of his Realm, and would do as the late famous Queen Elizabeth did, when having required a Charge, upon divers her Subjects by particular Letters from the Lords of her Councel, of several sums of money, for pre∣sent help towards her Wars in Ireland, hearing that one of her Judges being Convented before her Lords for not payment of it, thereby dis∣couraging others to pay it, answered, that it was against the Law that the same should be impo∣sed, there being an express Statute against it, which he being a Judge was bound by his Oath to signifie, he being, as much as in him was, to be a Conservator of the Queens Oath in that behalf; the Queen, I say, was very angry that such an Im∣position had been made against Law, and com∣manded that it should be stopped from further gathering, and to some that had paid their mo∣neys, 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 u∣sed to send out, and in his Judges who have af∣firmed 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 Desendant.
Sol. 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 part of our Oaths that are Judges, to maintain the Kings Prerogative to the best of our skill, and not to suffer the same to be dimi∣nished, but if it be (as I have argued that 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 the especial consent or common assent in Parlia∣ment, 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 not done by the King, but it is done by some untrue and unjust Information; and therefore void, not done by Prerogative.
This appeareth by the Authorities of our Books; for Bracton, lib. 3. fo. 107. who is an an∣cient VVriter in our Law, said, Nihil aliud potest Rex in terris, cum sit Dei minister, & Vicarius quam de Jure potest: And there a little after, Ita∣que potestas Juris sua est, & non injuriae cum sit Au∣thor Juris, non debet inde injuriarum nasci occasio unde juranascuntur. Sir Edward Cook in the ele∣venth Book of his Reports, in the Case of Mag∣delen Colledge, where the Question was, whether Queen Elizabeth having taken a long Lease of a Colledge, being conceived to be against the Sta∣tute of 13 Eliz. it was sought to be maintained by her Prerogative, but resolved it could not, be∣ing against a Statute, by which she was bound, al∣though not named; and there fo. 72. it is said, Hoc solum Rex non potest facere, quod non potest in∣juste agere. Plowdens Comment, fo. 246. & 247. in the Lord Berkleys Case it is said, that the Pre∣rogative of the King cannot do wrong, and his Prerogative cannot be any warrant to do any wrong to any.
Plowdens Comment. fo. 487. in Nichols Case, it is said by Justice Harper, although the Common Law doth allow many Prerogatives unto the King, yet it doth not allow any that he shall hurt or wrong any by his Prerogative.
21 F. 3. fo. 47. the Earl of Kents 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 ge∣neral.
Sir Edward Cook lib. 11. fo. 86. in Darceys Case, it is said, that every grant of the King hath this Condition unto it, Tacite or Expresse; Ita qnod Patria per Donationem illam magis solite non oneretur seu gravetur.
The Book called Doctor and Student, fo, 8. set∣ting down, that the Law doth vest the absolute property of every mans goods in him; and that they cannot be taken from him but by his con∣sent, saith, that is the reason, that if they be ta∣ken from him, the party shall answer the full va∣lue thereof in damages: And sure, I conceive, that the party that doth this wrong to another, shall besides the damages to the party, be impri∣soned, and pay a Fine to the King, which in the Kings 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 mans goods without his assent, particular or ge∣neral.
So I conclude, that I conceive that there is not any such Prerogative, to award such Writs, to command men to sustain such Charge, or to be contributary to it, and to be distrained or im∣prisoned for non-payment thereof.
Also I conceive, that this is not an Act of Roy∣al Power; for if it be illegal to impose such a Charge, then it is not accounted as a matter of Royal power, but as a matter done upon an un∣true 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 conceive, is to be used in Cases of necessity and imminent danger, when ordinary courses will not avail, for it is a Rule, Non re∣currendum est ad extraordinaria, quando fieri potest per ordinaria; as in cases of Rebellion, sudden In∣vasion, and in some other cases where Martial Law may be used, and may not stay for legal pro∣ceedings; but in a time of Peace, and no extra∣ordinary necessity, legal courses must be used, and not Royal Power.
Therefore where by the Statute of 31 H. 8. cap. 8. which was made upon the Suppression of Ab∣bies, when Rebellions were begun to be stirred; it is recited, That sudden occasions happening, which do require speedy remedies, and for lack of a Statute, the King was enforced to use Royal Power: It was enacted for the Reasons therein mentioned, That the King, by the Advice of His Council therein named, 2 Bishops, 2 Chief Ju∣stices, and divers others, or the more part of them, by His Proclamation may make Ordinances for Punishment of Offences, and lay Penalties which should have the force of a Law (with a Pro∣viso that thereby no mans 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 mans Life, Lands, nor Goods should be taken or prejudiced; and yet that Statute was thought inconvenient, and there∣fore by a Statute of 1 E. 6. the same was repealed.
Bracton lib. 2. cap. 24. fo. 55. and the same is cited in Cook lib. 7. fo. 11. in Calvins case, Regis co∣rona est facere justitiam et judicium, et tenere pacem sine quibus Corona consistere non potest, nec tenere.
Cooke lib. 7. fo. 5. in Calvins Case cited out of Fortescue, Rex ad tutelam Corporum et bonorum erect∣us est; which being so, he cannot take any mans Goods, or charge him without his assent by any Prerogative or Royal Power.
Also there can be no such necessity or danger conceived, that may cause these Writs to be a∣warded
warded to all Counties of England, to prepare Ships at such a 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 His Kingdom, to attend with Arms at the Sea Coasts, to defend the Coasts, or any o∣ther parts of the Kingdom. And also by His Offi∣cers, to make stay or arrest of all, or any the Ships of Merchants and others, having Ships, or as many as he pleaseth, to go with His Navy to any parts of this 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 Eng∣land was not as now (by the blessing of God, and good providence of His Majesty) it is.
That this course was then so taken, it appear∣eth by divers Records, viz. 23 E. 1. m. 4. The Record reciteth, that the French King had pre∣pared a great Navy upon the Sea, and purposed to invade the Kingdom, Et linguam Anglicanam do terra delere; and thereupon the King comman∣ded all His Ships and Men with Arms to be in rea∣diness, to defend the Kingdom.
Sco. 10 E. 3. m. 16. reciteth, That certain Gal∣lies in the parts beyond the Seas were prepared with provision of Men and Arms, and other ne∣cessaries of War, and ready to invade the Land, command was, That divers Ships shall be in rea∣diness to defend; and the Ships of the Ports of Ireland be sent into England, to help to defend the Kingdom.
Sco. 10. E. 3. m. 22. A Writ was to the Bailiff of South Wal••s, reciting, That the Scots, and di∣vers others confederating together, prepare them∣selves 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: The like Writ was then to North Wales.
Alm. 12 E. 3. m. 10. A Writ to the Major of London, Quia hostes nostri in Galliis cum multitudine non modicacongregati, in diversis partibus Regni hosti∣liter ingressi sant & civitatem praedict. celeriter si possunt invadere proponunt: The King commandeth them to shut up the City towards the Water, and to put all their men in Arms ready to defend, &c.
Alm' 13 E. 3. m. 13. A Writ to the Bayliff of Great Yarmouth, Quia pro certo dediscimus quod ho∣stes nostri Franc' & adherentes eisdem Gallias & na∣ves gu••••rinas in copiosa multitudine in partibus exter∣••••s congregarunt, & eis hominibus ad arma & al' ar∣ma parar•• saciunt & proponunt se movere versus Reg∣num nostrum, et navigium Regni nostri et portus prope mare 〈◊〉〈◊〉' pro viribus destruere et idem Regnum invadere, &c. Command to the said Town to pre∣pare 4 Ships, with 240 Men, &c.
At the same tim•• like Writs went forth to twen∣ty other Towns upon the Sea Coasts, Franc' 26 E. 3. m. 5. A Writ to the Earl of Humingdon and others, Quia adversa•• it nostri Franc' nos & Regnum nostrum invadere m••chinames, magnum navigium pa∣rare f••••er' & armari nedum ad Regnum nostrum An∣glicum su••ito attrahend', sed ad nos et Dominium no∣strum et totam nationem Anglicanam pro viribus sub∣••••r••••nd', &c. Commanding them to Guard all the Sea Coasts of Kent, and to array all men rea∣•••• with Arms to defend the Sea Coasts.
5 H. 4. m. 28. A Commission is to Thomas Morley and others, Quod cum inimici nostri Franc' Brittan' Sco' et al' sibi adherentes inter se obligati magna potentia Armat' super mare in ••stat' prox' fu∣tur' ordinaverunt Regnum nostrum Angli•• invadere, &c. commanding them to array Men with Arms to defend, &c.
4 H. 8. pars secunda; The King by Proclama∣tion into the County of Kent, sheweth, that it is come to His Knowledge of certain, that His An∣cient Enemy the French King, hath prepared and put in readiness a great and strong Navy, furnish∣ed with Men of War to invade the Kingdom of England; The King appoints the Lord of Aber∣gaveny and others, to put men in array, and to be ready to defend that County.
Anno 1588, when the great Invasion was by the Navy, termed, The Invincible Navy, which was foreseen long before: This course of prepa∣ring Ships by every County of the Kingdom was not appointed. Yet in all these times, when there appeared so great dangers of Invasions, there ne∣ver went any such Writs into any the Counties of England to provide Ships: But the Navy of Eng∣land and 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 Dan∣ger.
For the 4th point, I conceive, That if it were legal to lay such a Charge upon Maritine Parts, yet to charge any In-land County with making of Ships, and furnishing them with Masters, Mari∣ners and Souldiers at their Charge, which are far remote from the Seas, is not legal, nor warrant∣ed by any former Precedent; for it commandeth an unreasonable and impossible thing by them to be done: And then a 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; If one by Covenant bind himself to do a thing im∣possible, the Covenant is void.
This appeareth by the Book-Case in 40 E. 3. fo. 6. where the Case is expresly, That if a man do covenant to do a thing that is impossible, this Covenant is void, and the Deed is void in that respect: Also the Book in 2 E. 4. fo. 2. If a Feoff∣ment 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 annex such a Con∣dition; and this appeareth by the Case of an Ar∣bitrement: If the Arbitrator award that one shall enter into Bond with such an 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 unrea∣sonable, and so void; and this appeareth by the Book, Case 17 E. 4. fo. 5. wherein it is so re∣solved.
So this Writ, commanding the Sheriff and In∣habitants of an In-land County to find a Ship fur∣nished with Masters and Mariners, whereas there is not any Ship-Wright that hath skill to make Ships, nor any Masters nor Mariners ever there inhabiting, to guide a Ship; for they are still conversant about matters of the Plough, and feeding Cattel, and Husbandry, and are trained up by Musters for skill of Arms to defend the Countries, but not with Sea Affairs; for most of
the County never saw a Ship, nor know what be∣longeth to Masters or Mariners of Ships; and the County is not bound to seek out of the County for such men; and perhaps if they should, they can∣not tell where to hire them: Therefore when such Writs to In-land Towns have been awarded to find a Ship with Masters and Mariners, it be∣ing conceived by information, that they were Maritine Towns, and had Ships and Mariners dwelling with them; the truth thereof being made to appear to the contrary, they have been dis∣charged as it appeareth by a Record in 13 E. 3. pars 2. m. 14. where a Writ went to the Admiral of the Fleet: These Ports, upon complaint to the King, by the men of Bodmyn 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 adjoyning to the Sea, but far within the Land, nor ever had Ships lying there, nor Mariners, nor Seamen, nor e∣ver used to find any such for Sea-Service; and that their Majors and Officers were imprisoned for not finding such a Ship; thereupon the King appointed to have it inquired, whether their Al∣legations were true, and if it were true, signified, that he would not have them so unjustly charged▪ but that they should be discharged thereof; which sheweth▪ that it was there accounted unjust to lay such a Charge upon a Town that was an In-land Town, and had no Mariners inhabiting in it, much more when such a Charge is upon an In-land 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 Defen∣dants Councel, Mr. Sollicitor gave answer, the same was because the Admiral of his own Autho∣rity had charged them, which was not according to his Commission, for he was only to charge the Port Towns and Sea Towns, but that the same may not be done by the Kings 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 In-land Town; for so it ap∣peareth by another Record of the same year, viz. 13 E. 3. pars 1. m. 14. where a Writ was directed to the Admiral of the Fleet, ab ore Thamisis versus partes occidentales, reciting, That where the King by His Writ to the Town of Chichester command∣ed the Major and Commonalty there, that they should make unam navem & duos escularios de guer∣ra 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 dwel∣ling 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 indebite pregravari (for so be the words of the Record) the King com∣mandeth the Admiral, that they should 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 In-land Counties which are much further remote from the Seas are not justly to be charged with finding any Ships and Mariners; therefore I conclude this point, that I conceive this Writ in that respect is not legal, nor warranted by any former Prece∣dent.
The fifth and great point hath been, and in∣deed the chief Argument ••ath ••een a multitude of Records and Precedents which have been cited that should war••ant these Writs, and that the King hath done nothing but what His former Pro∣genitors have done, and have lawfully done, and that he doth now but More Majorum; and that which always in ancient time hath been done and allowed, and therefore ought now to be done.
I confess, these Allegations much moved me when I heard these Records cited, and so learn∣edly and earnestly pressed by Mr. Sollicitor▪ and after by Mr. Attorney, to be so clear, that they might not ••e gainsaid; but that they proved a clear Prerogative, or at least a Royal Power tha•• the King might do so especially when my Bro∣ther Weston and my Brother Barkley (who had seen the Records) pressed some of them, and relied upon them for the Reasons of their Judgments▪ I say, I was much doubtful thereupon, until I so perused all these Records sent me by the King's Councel, and satisfied my Judgment therein.
But now I answer, That if there were any such Precedents (as I shall shew that there was 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 ••••••••ure; and then, as it is said i•• Cooke lib. 4. fol. 33. in Witt••n's Case, Judic••••dum, est legibus, non exemplis: And lib. 11. fol. 75. in Magdalen College Case it is said, Multitude erran∣tium non parit errori patrocini••m: And lib. 4▪ fol. 94. in Slades Case, Multitude of Precedents, un∣less they are confirmed by Judicial Procedings in Courts of Record, are not to be regarded; and none of these were ever confirmed by Judicial Re∣cord, 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 Kings part; for I have read them all over verbatim, and I presume they sent all that were conceived to be material, and I having tak∣en notes of every one of them, I conceive that there is not any Precedent or record of any such Writ sent to any Sheriff of any Inland Counties, 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 preduced in this kind; but it is true, that before 25 E. 1. 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 plac•••• 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 Ma∣sters of Ships, and Mariners, should be at the Kings command, to bring all, or as many as he pleaseth, for the defence of the Sea and King∣dom, 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 no be at the Kings charges: But sometimes upon necessity they were appointed to be at the charges of the Towns and
parts adjoyning, which I think was the true cause of the complaint in Parliament, in 26 E. 3. and the making of that Statute for the staying of that course; for there is no record afterwards of any such Writs in R. E. 1. time after that Sta∣tute to Maritine Towns to prepare or send Ships at the charge of the Towns, but in time of E 3. then the wars begin between him and the French King: in Annis 10, ••1, 12, & 13. of E. 3. were the most Writs awarded to the Maritine Towns to fend Ships at their charges sufficiently furnish∣ed; and those I think were the principal cause of the making of the Statute of 14 E 3. Cap. 1. and after that Statute, no such Writs, nor any Com∣missions for that purpose, were awarded to any Maritine Towns and Inland Towns for the mak∣ing of Ships but one, which Record was much pressed by Mr. Weston, and my Brother Barkley, to prove that this course was and might be pra∣ctised after the Stat. of 14 E. 3. for sending forth such Writs, and allowed; but that Record is ful∣ly satisfied; for it was grounded upon an ordi∣nance in Parliament in 1 R. 2. m. 52. That all an∣cient Cities, Boroughs and Towns, that would have then confirmed their Charter without any charge of Fine, save only to make a Ship of War for Defence of the Realm, so this was not Com∣pulsary to any, but voluntary to those that would have their liberties confirmed, and afterwards in 1 H. 4. Commissions were awarded for making of such vessels of War, But those isshing forth without any ordinance of Parliament, were com∣plained of in Parliament, 2 H. 4. as to be against the liberty of the Subject, as appeareth by the Statute before recited, and those Commissions expresly repealed, and since that time of 2 H. 4. no such Writ issued forth in any age to any Mari∣tine Towns to make Ships, or prepare Ships at their own charge for the Kings service, until these late Writs.
This general answer I give to all the Records; and now I shall take a short view of all the Re∣cords that have been cited, and sent to me, and leave them to the Judgment of my Lords and o∣thers, if any of them prove these Writs usual and Legal.
6 Jo. m. 1. 9 J. m. 3. 14 J. m. 2. 17 J. m. 7. Three of these are to arrest & make Stay of 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.
15 J. m. 4. A Commission to Guard the Seas to John de Marshal, and to the Sheriff of the Coun∣ty of Lincoln, and all others to attend his Com∣mands.
15 J. Writs to the Barons of the Cinque-Ports, and divers other Towns, to have their Ships rea∣dy for the King's Service.
14 H. 3. m. 14. A Writ to the Bayliffs of of Portsmouth, to prepare one Galley.
14 H. 3. m. 5. A Commission to the Sheriff of Rochester, and others, and to the Sheriff of Kent, to cause all men to be in Arms in that County, and to Assess them without Arms they should find.
48 H. 3. m. 4. A writ to the Sheriff of Norfolk, commanding him to cause them which were ap∣pointed to attend all the coasts in that County, and having served Forty days intended to depart, they should stay Eight days longer, by reason of the danger, and longer if need require.
The like was sent to the Sheriff of Suffolk and Essex.
48 H. 3. m. 2. A Writ to the Mayor of Bed∣ford, commanding him to provide for the expen∣ces of them that were sent from thence, for the guarding of the Seas; yet it is but for Eight days more after the date of the Writ.
48 H. 3. m. 3. 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. Custod Maris, & partium Maritinarum within their Counties, com∣manding them to assist him and to perform there∣in what he required.
48 H. 8. m. 7. A Writ to the Sheriff of Cam∣bridge and Huntington, to command all men of those Counties able to bear arms to come to the King in London.
25 E. 3. m. 5. A Writ to those of Essex, Nor∣folk, and Suffolk, reciting that such persons were appointed, ad custod' Marit' in those Coun∣ties, commanding them to attend them.
Ibid. Another Writ to the Sheriff of Norf••lk and Suffolk reciting, that certain Constables of those Counties were appointed to assess men at Arms sufficient for the guarding of the SeaCoasts, commanding them to distrain and compel them, so Assess'd, to go.
24 E. 1. m. 17. Writs to the Sheriff of Lincoln, York, and Northumberland, reciting, that he had commanded A. de. B▪ Ad congregand' & capiend' Centum naves between Leigh and Barwick, et ad homines potentes in eisdem Navibus ponend' com∣manding them to assist him therein.
24 E. 1. Rot. 62. A Writ out of the exchequer to Adam de Guerdo, et aliis Gardiani of the Sea Coasts in the County of Southampt, to distrain the Abbot of Reading for to find 9 Horses, which he was Assessed at for that service.
24 E. 1. m. 16. Writs to all Arch-Bish. Bishops, Earls, &c. in the Counties of Somerset, Devon, and Cornwal, to attend with their horsmen and footmen, for defence of the Sea Coasts in those parts, when they shall be required by the Guardian of those Coasts.
24 E. 1. Rot. 78. A Writ out of the Exchequer directed to all Arch-Bishops, Bishops, Earls, &c. in the County of Norfolk, reciting that Peter de Ruilin was appointed ad custodiam, partium Ma∣ritinarum illarum commanding them to assist him.
24 E. 1. Rot. 78. A Writ out of the exchequer to the Sheriff of Berks, reciting that the King was informed by Adam de Griden guarding of the Sea coasts in the County of Southampt. that those men of the County of Berks, which were assigned to come to the defending of the Sea coasts in those parts, came not as they were warned, command∣ing to distrain them and compel them &c.
The like Writs were awarded to the Sheriff of of Wilts and Southampt. &c.
24 E. 1. Rot. 81. A Writ to the Bailiff of great Yarmouth, reciting, that the King was in∣formed,
that certain of Flanders and French in a great multitude apparelled like Fishermen, in∣tending to invade their Towns: warning them to gather their Ships together, and all their Arms to defend themselves against such At∣tempt.
24 E. 1. Inter Commun. A Writ to all Sheriffs and Bailiffs, &c. Reciting, that he had appoint∣ed some therein named ad Congregandum nume∣rum navium & Galliarum Majorum &c. Com∣manding the Sheriffs in their several Counties to be assisting unto them therein.
24 E. 1. m. 9. A Writ to the Guardian of the Seas in the County of Southampt. to discharge Hugh Plessis, to find Arms for his Lands in that Coun∣ty, for the guarding of the Seas, because he was in service with the King.
24 E. 1. m. 26. A Writ to the Sheriff of Essex, * 1.8 to discharge for the Winter time, those that stay at the Sea Coasts with their Arms to defend the Coasts; but commanding them to be in a readi∣ness, when they should be again Commanded.
The like Writs were then awarded to divers Sheriffs of Maritine Counties, to the same pur∣pose.
25 E. 1. m. 12. A Writ to the Sheriff of Lan∣caster, reciting, that whereas the King had for∣merly commanded him to go to all the ports, and Towns, where Ships were: Commanding the Bailiffs of the Ports to have all the Ships of the burden of Forty Tuns at Winchelsey by such a day; now commandeth the Sheriff to see them made ready and sent.
Ibid. 13. The like writs directed to the She∣riff of Lincoln, York, Northumberland, and Cum∣berland.
Ibid. 14. The like Writ directed to 19 other ports and Towns in other Counties.
21 E. 1. m. 26. A Commission to send away men at Arms in the county of Westmorland.
24 E. 1. Rot. 77. In the Exchequer shewed by the Defendants Councel, Writs were to several Maritine Towns upon the Sea Coasts, and other Towns 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 thereof.
Pat. 9 E. 2. pars 2. A Writ to all men in the Towns upon the Sea Coasts and ports of the Sea, between Southampt. and Falmouth, reciting, that the King had appointed John de Norton to make provision for a Navy in the said Towns and Ports at their charges, commandeth them to perform what he in that behalf shall require.
Claus. 20 E. 2. m. 8. A Writ to the Bailiffs of Yarmouth, reciting that where the King had com∣manded all the Ships of the Burdens of 50 Tuns from the Thames mouth towards the VVest parts 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 appointeth them to send them wages.
20 E. 2. m. 10 A writ to the Bailiffs of Yar∣mouth, commanding them to send all their Ships of the Burthen of 30 Tuns and above to Orewell in Suffolk, with double tackling, Victuals and o∣ther things necessary for one month.
The like VVrits at the same time to other Towns to the number of 34.
20 E. 2. m. 10. A Writ to the Mayor of Lon∣don, to provide 3 Ships with Men and Muniti∣on to go with 9 Ships of Kent to guard the Sea Coasts,
15 E. 2. m. 15. A Writ to the Sheriff of Nor∣folk Commanding him to warn all Barons, Baro∣nets, Knights, and others of that County, to attend the King at Coventry, at such a day to go with the King.
15 E. 2. m. 15. A Writ to the Sheriff of Nor∣folk and Suffolk, commanding them to arrest all Barons, Baronets, Knights, and Bsquires, which were commanded to attend the King at Coven∣try, at such a day therein named and came not, to be before the King and his Councel at Lon∣don.
The record saith, like Writs were then Awarded to divers other Sheriffs of other Coun∣ties
16 E. 2. m. 13. A Commission to array all per∣sons between the Ages of 16 to 60, with Arms, convenient to come to the King, when they shall be required.
19 E. 2. m. 6. A Writ to the Arch-Bishop of Canterbury, Commanding him to array all his ser∣vants and families, to be ready to defend the Kingdom, if any invasion should be.
The like Writs at that time to all Bishops.
2 E. 3. m. 92. A Writ to the Mayor, and Bai∣liffs of Southampt. Commanding them to cause all their Ships of the Burden of 40 Tuns and above, to be furnished with men of Arms and Victuals, ready to defend the Land if any Invasion shall happen.
Scoc. 7 E. 3. m. 19. A Commission to Hugh Courtney to guard the Seas, in the Counties of Devon, and Cornwall, and commanding all others to assist him.
10 E. 3. m. 25. The like commission to Hugh Courtney, for guarding the Seas in the same Coun∣ties.
Idem A Writ to Bartholomew de Insula, for Custody of the Sea Coasts in the County of South∣ampt. and therein is a command by John Titchborn, and others for the County of Southampt. and to William de Parshiore and others, for the County of Berk and to Jo. Meridit, and others, for the County of of Wilts to array men with Arms, and to have them in readiness to defend the Coasts of the County of Southampt.
Sco. 10 E. 3. m. 2. A Writ to Will. Clinton Guardian of the Cinque Ports, and others to sur∣vey all the Ships of the Cinque Ports, and other Ports, from the mouth of the Thames unto Ports∣mouth, and to cause them to be furnished with Arms, and Victuals for 13 weeks, from the time they shall go from Portsmouth.
Sco. 10 E. 3. m. 2. A Writ to the Mayor of Winchelsey, to cause the Ships appointed for that Town to be furnished with men, and Arms, and Victuals, and other necessaries for Thirteen weeks.
Sco. 10 E. 3. m. 16. A Writ to the Admiral of the Fleet, from the mouth of 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 any Invasion.
The like Writ was then to the Admiral of the Fleet, from the Mouth of the Thames unto the North-parts, with like Command to hold the Ships together upon the Sea.
Scoc, 10 E. 3. m, 16. A Writ commanding the Ships of the Ports of Ireland to be sent hither to Guard the Seas there.
10 E. 3. m. 12. A Writ to the Bailiffs of Yar∣mouth, to cause the Men of that Town to contri∣bute to the Charges of the Ships, and Men, and Victuals sent from thence for the defence of the Kingdom.
Scoc. 10 E. 3. m. 22. A Writ to all the Bayliffs of Liberties and Men of South-Wales, to have one Ship riding upon the Seas for the Defence of those parts.
Idem. The like unto the Men of North-Wales,
Scoc. 10 E. 3. m. 21. 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 Sea-Coasts in the County of South∣hampton, to go to Portsmouth by a Day therein ap∣pointed.
Alm. 12. E. 3. m. 12. A Commission 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 Lynn refused to contribute to the Expences of the Charge of the Men sent in the Ship from the Town, and the furnishing of that Ship; and therefore commandeth the Commissioners therein named, to assess them that refuse so to contribute, and to distrain them.
Alm. 12 E. 3. m. 13. The like to compel the Men of Bardesey to contribute for the Expences of the Men of that Town.
Clause 12. E. 3. m. 17. The like to compel the Men of Surrey and Sussex to contribute to the Expences of the Men of those Counties that attend for the Guarding of the Sea-Coasts there.
Vasc. 12. E. 3. m. 8. 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.
Alm. 12 E. 3. m. 10. A Writ to the Mayor of London, reciting the danger of Invasion; and commanding to shut up the Gates towards the Water, if the Enemies approach.
Alm. 13. E. 3. m. 12. A Writ to the Bayliffs of Yarmouth, ••eciting by his Writ he had com∣manded 4 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 Grewel; and that they failed to come at their Day, to the great peril of the Land; therefore commandeth the Bayliffs to compel them at another Day therein prefixed, to be at the same place.
There is set down, that the like Writs were awarded to the Bayliffs of 17 other Towns, for sending their Ships, being Charged some for one Ship, and some for two Ships.
Claus. 13. E. 3. m. 38. A Supersedeas for the Abbot of Ramsey, for being Charged with Arms for Guarding of the Coasts in Norf. for his Lands in Norf. because he was by command at∣tending with all his Forces in the County of Hun∣ting. for the Safety of those Parts.
Claus. 13. E. 3. m. 14. A Writ of Supersedeas to the Arrayers of Arms in the County of Oxon, to discharge John Mawdi•••• to serve there, be∣cause he attended in Wilts.
Claus. 13. E. 3. m. 14. A Writ unto the Ar∣rayers of Arms in the County of Wilts, which is only concerning the Payment of Souldiers wa∣ges then attended to Guard the Sea-Coasts.
These being all the Records shewed, it ap∣peareth, that there were no Writs issuing out of those times to any Sheriffs of In-land Counties, or Maritine Counties, to make or prepare Ships upon any occasion whatsoever; but only to Ma∣ritine Towns, to send their Ships, or prepare Ships at their own Charges.
The Records shewed me since 14 E. 3. do not shew any Writs to be awarded to any Maritine Town to prepare Ships at the Charge of the Towns.
But these Records of 1 R. 2. and 1 H. 4. which I have before answered; and they, since that time, shewed unto me (except such as I have formerly mentioned in my Argument) are these.
Scoc. 20. E. 3. m. 14. A Commission to Nicho∣las de Cartlape, to Array Men to resist the Scots.
Idem. A VVrit to the Mayor of York to Array all their Men to be ready when they shall be re∣quired.
20 E. 3. m. 15. A Commission concerning the Arrays of Men in the Counties of Derby and Not∣tingham, and to punish them as came not when they were appointed.
Rot. Franc. 21. E. 3. m. 31. A VVrit to the Arrayers of Men in the County of Southampton, to discharge the Abbot of Battail to find Arms for the Sea-Coasts there.
Franc. 25. E. 3. m. 23. A Commission to John Bodingham for the Custody of the Ports and Ma∣ritine parts in Cornwal, and to Array all the Men to be in readiness
There is set down that the like Commission is to others in several Counties.
Franc. 26. E. 3. m. 5. A Commission to the Earl of Huntingdon and others, to have the Cu∣stody of the Ports in Kent, and to Array Men, and to set up Beacons, &c. which is the first I observe in this kind.
The like Commissions then to several other persons to Array Men in several Counties, as Warw. Oxford, Berks, Bucks, &c.
Franc. 46. E. 3. m. 34. A VVrit to the Arch∣bishop of Canterbury, reciting the danger of the Invasion by the French, to hurt the Church and Kingdom; commanding him to Array all his Clergy in his Diocess, and to be ready to go with the King's Forces, &c.
The like VVrits to all other Bishops in the Kingdom.
Franc. 50 E. 3. m. 47. A Writ to the Arrayers of Men in the County of Norfolk, and to the Sheriff of Norf. commanding them to command all Great Men and others that had Mansions up∣on or near the Sea-Coasts, to resort with all their Families, for defence of the Coasts.
The like to the Arrayers, and to the Sheriffs of Ten other Maritine Counties.
Scoc. 29. E. 3. m. 13. A Commission to the Bi∣shop of Durham and others, to Array Men in Durham, Cumberland and Northumberland, to re¦sist the Scots.
Franc. 40 E. 3. m. 31. A VVrit to William Zouch and others, to remove with all their Fa∣milies
to their Houses upon the Sea-Coasts.
1 R. 2. m. 7. A VVrit to the Bayliffs of Scar∣burgh, because their Town was upon the Coasts of the Sea, and in danger by Invasion, carefully to look to the Custody thereof, &c.
Eodem. Rot. m. 12. A Writ to the Mayor and Bayliffs of Oxford, to repair the Walls of the Town, and to compel those that had Lands there, to contribute to the Expences thereof: This Record hath been much urged by Mr. Solicitor and Mr. Attorney, that if the King have such a power to command the walls of a Town to be re∣paired, much more to command Ships to be made, which are the walls of the Sea, and consequent∣ly the walls of the Kingdom; but this is clearly answered; for that it is but a private Town, and that wich hath formerly been so walled, and for defence and safety of the Town, and none char∣ged but those that had benefit thereby, and so proveth nothing to the Case in question.
Eodem. Rot. m. 42. One Writ to the Sheriff of Kent, and another to the Sheriff of Essex, com∣manding them to perform an Ordinance made by the King and his Councel, for setting up of Bea∣cons, and keeping watch about them.
Scoc. 7. R. 2. m. 8. A Writ to the Archbishop of Canterbury, to command all his Clergy be∣tween 16, and 60, to be Arrayed and put in Arms, both Horse and Foot, according to their Qualities, to be ready to defend the King∣dom.
Franc. 11. R. 2. m. 13. A Writ to Serjeants at Arms to Arrest all Ships of VVar in the Ports of Plymouth and Dartmouth, and other parts in the County of Cornwal, and to bring them to Hancks Hook, to go with the Kings Majesties Ships.
In the same Roll divers other VVrits to di∣vers other Serjeants at Arms, to Arrest the Ships in divers other Ports.
Scoc. 21. R. 2. m. 3. A Commission to the Duke Albnall. to Array Men in the VVest-Marches to∣wards Scotland, to resist the Scots.
Rot. Vioagii, 1 H. 4. m. 11. A VVrit to the Sheriff of Derby and Nottingh. reciting that the King certainly understood that the Scots intended with a great Power to invade the Kingdom, com∣mandeth him to proclaim in all parts of his Counties, that all men between 16, and 60, should put themselves into Arms competent, according to their Degrees, to be ready upon two days warning to defend the Kingdom.
The like Writs were then directed to the She∣riff of Lincolne, York, and Lancaster.
Claus. 1 H. 4. m. 12. A Writ to the Arch-Bi∣shop of Canterbury, Satis informati estis qualiter ini∣mici nostri Franc. & alii sibi adhaerentes, cum mag∣na elasse Navium, cum magna multitudine Arma∣torum, * 1.9 super mare congregat, diversas villas per Costeram Regni nostri invadere, & nos & Regnum nostrum destruere, & Ecclesiam Anglicanam subvertere intendunt & proponunt; Thereupon commandeth that the Clergy in that Diocess be arrayed and Armed, and to be ready at the Kings command to go against the Enemy.
The like Writs were then awarded to every Bi∣shop of England.
Pat. 5 H. 4. pars 2. m. 28. A commission to Thomas de Morley, and others, and to the She∣riff of Norfolk and Suffolk, and to the Bailiffs of Great Yarmouth, reciting, quod cum inimici Franc▪ Brittan', Scotiae & alii sibi adhaerentes, inter se ob∣ligat. magna potentia Armat. super Mare in Estat. proxim' futur' ordinaver' & intendunt Regnum in∣vadere, &c. Command to survey the Town of Yarmouth and fortifie it.
Note here also notwithstanding such great danger mentioned, and such distance of time, yet no Writs issued to any Counties to prepare Ships.
Pat. 3 H. 5. pars 2. m. 37. A Commission to Array all men at Arms in the West Riding in York∣shire, to be ready to Defend those parts.
The like Commission to others in 19 several Counties.
Pat. 13 H. 6. m. 10. Pat. 39 H. 6. m. 12. Pat. 39. H. 6. Pat. 39, H. 6. m. 1. Commission for arraying men for the defence of the King∣dom, if Invasion shall be, and for repressing of Rebels.
Pat. 10 E. 4. m. 12. Commissions to George Duke of Clarence & al. to Array men for De∣fence.
Pat. 10 E. 4. m. 13. Commissions to Marquess Mountague to array and put in Arms all men be∣yond Trent,
Pat. 1 H. 7. pars 1. A Commission to Richard Fitzhugh and others, and to the Sheriff of York∣shire, to array and to cause to be Armed all able persons, Abbots and others, to be ready to De∣fend the Kingdom.
1 H. 7. pars 3. A Writ to the Sheriff of Nor∣folk and Suffolk, to proclaim in all parts of these Counties, for that there was like to be open Wars between Charles of France and the King of the Romans, and great Navies are prepared of either side, commanding that watch and ward be kept, and Beacons kept to give warning that e∣very man be ready if need be, to come and De∣fend the Kingdom.
4 H. 8. pars 2. A Writ to the Sheriff of Kent, commanding him to proclaim in his County, that the King being certainly informed that the French King hath prepared a great and strong Navy, furnished with men of War, to invade this Kingdom: Therefore commandeth all men within the age of 16 to 60, to put themselves in Arms to be ready to defend the Kingdom at an hours warning.
11 Eliz. Commissioners went to take view of all the horses of Engl. for service, and to survey all the Arms, to have them all in readiness as necessity should require.
Now it appeareth upon view and examination of all these records (most of them being cited by Mr. Sollicitor and Mr. Attorney, in their several Arguments,) they are none of them to prove the sending of any such writs to Inland or Maritine Counties, to prepare such Ships, although there have been many times of great danger, nor yet any VVrits to Maritine Towns, after the Statute of 14 E 3. to charge to find any Ships at their Charges; So then I conclude this point, that I conceive this VVrit is not warranted by any former Precedent.
Now I come to examine the point of this writ whether the same be legal and warranted by any former Precedents? and I conceive it is not.
First, the motives mentioned in the VVrit,
are quia datum est nobis intelligi (which is no cer∣tain information) Quod quidam praedones & Maris Grassatores, did take the Kings Subjects, Mer∣chants and others, and carried them into misera∣ble Captivity.
Secondly, Cum{que} ipsos conspicimus Navigium indies preparantes ad Mercatores 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 Prece∣dents are, that great Princes in open time of Ho∣stility, had provided great Navies with Muniti∣on, and Souldiers, with intent to invade the King∣dom, as appeareth by the former Precedents, and against such provision it was necessary to pro∣vi•••• a Royal Navy, the Kings Ships, and all the Ships of the Kingdom to be gathered to with∣stand them: But to make such preparation a∣gainst Pirates, it was never put in any VVrit be∣fore; for when Pirates infested the Seas, they came as it were by stealth to Rob and do mis∣chief, and they never dare appear, but when they may do mischief and escape away by their light∣ness, 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 the whole Navy, and this appeareth by a Re∣•••••••• of 25 E. 1. m. 9. Will. Leighborn the admi∣•••••• 〈◊〉〈◊〉 appointed upon such an occasion with 〈◊◊〉〈◊◊〉 to lie upon the Seas for the safeguard of the Merchants, and the usual practice hath been wh••n they hover upon the Sea, by sending a ••••w Ships of war to scatter them, to make them ••••solutely to fly away, and there is no doubt of loss of the Dominion of the Seas by any Act Pyrates can do, neither is it convenient that eve∣ry County of the Kingdom, should prepare Ships against them.
Thirdly, the command of this writ is to pro∣vide a Ship of 450 Tuns, at the charges of the County, furnished with Masters and Mariners, which is imposible for them to do for the reasons before alleaged, and therefore is illegal, and not wa••anted by any former precedent.
The command of this VVrit as to find wages for Souldiers, for 26 weeks after they come to Portsmouth, when they are out of their Counties; and in the Kings service is illegal being against the Course of Precedents in divers times, and against divers express Statutes, and this appear∣eth by divers records.
••5 Jo. In the VVrits of Summons of the Te∣nants by Knights service, it is expresly mentio∣ned, that after 40 days service (for so many days they were to do service by their Tenures) they should be satisfied ad denarios Regis.
Pasch. 26 E. 1. Amongst the VVrits of the ex∣••••equer, it is there set down, that the foot-men of Ch••shi••••, being 1000, which were appointed to go to the defence of the Borders upon Scot∣land, would not stir out of that Country without wages, and there is set down that one therein named was sent down with money to pay the said foot-men.
M••ch. 26. E. 1. Inter Brevia irretornabilia in the Exchequer, by reason of the Invasion of the Scots, many Souldiers were taken from divers parts of the Kingdom, ad vadia Regis; and there is mentioned, that Cle••ks were sent down with Money to pay the Souldiers of several Counties their wages.
30 E. 1. In the Exchequer in Account the wa∣ges for Land-Souldiers for several Counties, and the wages of Mariners are set down, what the wages that was paid came to by day, and by week, both by Sea and by Land.
Tr. 31. E. 1. Inter Brevia in the Exchequer, the VVardens of the Marches of Scotland signified to the Barons, that the Men of Cumberland and Westmerland, appointed for the defence of the Marches, would not stir out of their Counties without wages; whereupon Order was given for wages for them.
19 E. 2. Commissions went out to pay the Souldiers which served out of several Counties, for defence against Scotland.
Hill, 2. E. 3. Rot. 16. In the Exchequer, it was Ordered in Parliament, that where some Souldi∣ers had received of some of the Kings Officers Money for their wages, were fain to give Bonds for repayment, that those Bonds should be all re∣delivered.
1 E. 3. cap. 5. That no man shall be compelled to go out of his Shire, but where Necessity re∣quireth, by sudden coming of strange Enemies into the Countrey; and then shall be done as hath been done in times past, which I conceive to be at the Kings wages, when any are out of their Counties.
But to clear all doubts, the express Statute of 18 E. 3. cap. 7. is, that Men of Arms, Hoblers and Archers, chosen to go in the Kings service out of England, shall be in the Kings wages, from the time they go out of their Counties where they were chosen, until the time they came again.
1. 19 H. 7. cap. 1. Those that had any grants of Lands from the King. And
2. 11 H. 7. cap. 1. 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 shall come from their houses, until they return.
2 and 3 E. 6. cap. 2. It is enacted, that no Cap∣tain receiving Souldiers, serving by Sea or by Land, shall receive any wages for more Soul∣diers, or more time than they serve, and shall en∣ter the days of their entring into wages, upon pain, &c.
3. All which Records and Statutes do prove, that the Souldiers should be at the Kings wages; therefore this Command for Souldiers wages for 26 weeks, when they go from Portsmouth, is il∣legal, and expresly against the said Statutes; and so the Assesment being entire, as well for the wages as the other charges, I hold it to be clear∣ly 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 Prece∣dents are commonly, that Assesments for Con∣tribution for making or setting 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 inhaunce whom he will, and favour whom he will.
5. That the power to the Sheriff and Mayors of Towns, &c. to imprison, especially as it is used, is illegal, and expresly against divers Statutes; for it is provided by Magna Charta, cap. 29. Quod nullus capiatur vel imprisonetur, nec super eum ibi∣mus nisi per judicium Parium suorum vel per Legem terrae.
Also in the 5 E. 3. cap. 9. That none shall be
attached, nor his goods seized, contrary to the form of the great Charter.
Also by the Statute made in the 37 E. 3. cap. 18. it is recited, that by that great Charter none should be taken or imprisoned but by due pro∣cess of Law; yet by colour of this Writ, the Sheriff may imprison any person, yea any Peer of the Realm; for although Peers are not to be ar∣rested upon ordinary Process between party and party, as it was resolved in the Countess of Rut∣lands Case in Cook lib. 6. fo. 32. yet for a Con∣tempt, and upon Process of Contempt, which is always for the King, any Peer may be imprison∣ed, as it is resolved by all the Lords, and all the Judges in the Star-Chamber, in the Earl of Lin∣colns 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 E. 3. fo. 2. it is resolved, that a Writ to imprison one upon suggestion before he be Indicted, or without due process of Law, was illegal: So for this Clause I hold this Writ to be illegal.
6. The last Clause of this Writ is, that by co∣lour of this Writ more should be gathered than will be sufficient for the necessary expences of the premises; and that none that shall levy any mo∣ney towards these Contributions, shall detain the same with them, or imploy the same to o∣ther uses; and if more then did suffice were col∣lected, it should be paid amongst those that paid after a ratable proportion: These are reasonable Clauses, but as the course is taken, it is not to be performed; for no Ship, nor Tackling, nor Mu∣nition, nor Men, nor Wages, nor Victuals being provided, it is not to be known whether more to be gathered, or less than would suffice; and there being money gathered, it is of necessity ei∣ther detained with the Collector or Sheriff, or imployed to other uses than are appointed by the Writ, so the Writ is not performed, and the mo∣ney assessed and collected is not duly paid nor collected, and the money assessed and unpaid, cannot duly be demanded.
7. Admitting that the Writ were legal, and the Commands therein legal, yet the Assesment, as it is certified, is not sufficient to charge the De∣fendant; for it is not certified that any Ship with Munition, and Men, and Wages for Men and Vi∣ctuals was 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 one be charged in consideration of a thing to be done, before a certain time to pay a sum of money, if the thing be not performed according to the time, none can be charged for not payment of the money after the time is past; for it is in 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. 7. 1. and Cook lib. 7. fo. 9. Ʋghtreds Case: And therefore if the Ship be not prepared according to the Writ, nor money imployed for preparing a Ship for and in the name of the County, then every one that paid any money, either voluntarily, as in obedience to the Writ, or compulsarily 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 Com∣mand whatsoever, although it be under the Great Seal; for the Command being under the Great Seal to prepare and furnish a Ship to such a purpose, as in the Writ is mentioned, and they paying it to that purpose, it cannot be other∣wise disposed, although it be more for their ad∣vantage; for private men having interest therein that cannot be taken from them, nor dispensed withall: Therefore in Cook lib. 7. fo. 37. in the Case of Penal Laws, it is resolved, that if the pe∣nalty appointed to be forfeited upon a Penal Sta∣tute to be given to the poor of a Parish where the offence is committed, the King cannot di∣spence with the penalty for that offence, because the poor have an interest therein; but if the pe∣nalty be given part to the King, and part to the poor, the King may dispence with his own part, but not with the part of the poor.
Obj. And where it hath been said, that it is by way of Accommodation, because the Country cannot well know how to provide to content, and perhaps with more charge.
Sol. To this is answered, they must do it at their peril, if the VVrit be legal; and then if it be done, they shall have the benefit thereof: For (as my Brothers Weston and Berkley have both a∣greed) if the Ship were made when the service is done, the County for which it is made shall have the benefit of the Ship and the Munition, and of the service of the Men, being made more expert against another time, and the Ship may with some easie charge serve again, and nothing lost but the expence of the Victuals, and the Kingdom shall be so much the more strengthen∣ed, 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 ga∣thered, 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 re∣ceiving it, and detaining it, or misimploying it, is to pay a Fine unto the King for the same, and is accountable for the money, appeareth by two Records.
The one in Hill. 16 E. 3. Rot. 23. in the Kings-Bench, where two Souldiers were Indicted, for that they S. E. 3. taking 3 l. a piece towards their Armour; and to the bringing them to the place where they were appointed to serve the King in England in his VVars, they went not, but tarried still in their houses, and retained the Armour, and the money which 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 the other was found that he received the money, and went not to do the ser∣vice, nor restored the Arms nor Money; there∣upon 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 E. 3. Rot. 37. the Kings-Bench; there two High-Constables were Indict∣ed, for that they S. E. 3. had received six Marks of the Towns in their Hundreds to set forth Souldiers, and had not set them forth, but re∣tained the money, which they denying, it was found that they had received the money for that purpose, and had disbursed 41 s. 6 d. thereof to∣wards the setting forth of Souldiers, but had re∣tained 38 s. 6 d. and not disbursed it; thereup∣on they were fined and imprisoned, and after in∣larged,
upon Sureties to pay the money they had retained undisbursed, at the next time the King commanded Souldiers for those parts: By both which Records, being for offences done so long before, it appeareth, that those that have recei∣ved money of the Country to prepare Ships, and not imployed it accordingly, they are answerable to the King, or his Successors, to pay a Fine for their imployment of it otherwise: and are chargeable to those of the County, of whom they received it, for repayment thereof.
8. For the last point, I conceive, that this Cer∣tiorari directed to the two that were late She∣riffs at the times of the Assesment, and not to the Sheriff that was at the time of the Certiorari warded, who is the only immediate Officer to return the VVrits, is not legal; for it is the first that hath been seen of that kind, for all VVrits are directed to some immediate Sheriff, requiring him to demand of the former Sheriffs, what they did upon the former VVrit; and they are to re∣turn to him what hath been done, and he to re∣turn the same unto the Court whereunto he is an immediate Officer, and the former are not a∣ny Officers; so the Scire Facias thereupon grounded, I conceive is not good: Also the Scire Fac. to warn Mr. Hampden, ad ostendend. si quid pro se habeat, & quare de praedict. vigint. solid. oncrari non debet, not shewing to whom, is uncer∣tain and insufficient: Therefore I conclude up∣on the whole matter, that no Judgment can be given to charge the Defendant.
The Mo∣tives of this Writ which are five.
The Charge of this W••it which are three.
The Com∣mands of the Writ which are five.
The End for which this Ship is to be.
The Clau∣••••s of the Assess.
The Pe•••• close of the Writ for the ease of the Sub∣ject.
That this Writ is n••t to be m••••ntain∣ed ••y the Peroga∣tive or Power. Royal
Note all ••••••se Re∣••••r••s are 〈◊◊〉〈◊◊〉 and ••ngre∣ga••ng S••••ps but ••••e to 〈◊〉〈◊〉 or ••••••are 〈◊〉〈◊〉 at the charg∣•••• of the Co••ties.
Note al∣though this great danger be mention∣ed, yet no command to prepare Ships.