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Now I come to the Precedents. First, That of Danegelt hath been Objected: Of which there were two kinds; as Sir Henry Spelman in his Glos∣sary observes; one ad pacandum, the other ad co∣ercendum Danos; Great Sums of Money they had to go home again; from 12000 to 48000 l. per Annum, it was raised in three years: It conti∣nued
till King Stephen's Time; in which Time it is said it was released: For my part, I see not, but that it might be now put in use as formerly, had it not been for these Statutes of E. 1. and E. 3. before-mentioned; for it was not laid down when the Danger ceased; but was continued and taken up by Princes when they had a mind to it; as by William the Conqueror, and William Rufus: But since these Statutes, it was never used (and here he read the Words of the Sta∣tutes) so if these Statutes took that away, why do they not bind in our Case? which is a full Answer in my opinion to that and all other Pre∣cedents before these Statutes; there have been 200 shewed on the one side, 200 on the other; But I say, it had been better they had never made use of them: So to all the Precedents be∣fore the Statute de Tallagio concedendo, I give this general Answer, wto be of no force; for the Pre∣cedents in the Time of H. 3. which were many, yet in those Commissions for preparing of Gal∣lies, after they were made, they were at the Kings Cost; this may be done at this day. And with the Statute of 14▪ E. 3. I Answer those Pre∣cedents of 10, 11, 12 E. 3. And by the way ob∣serve the Times that were then; that Statutes were forced to be made to remedy those Evils; and surely those were the Burdens and unreason∣able Taxes which the King in the Thirteenth year of his Reign confessed he had oppressed his Subjects with, and desired they might be forgot∣en, because he was urged to it by his necessities, and not for any ill end of his own, (And so he caused the record it self to be read openly before all the Judges) 2 H. 4. 2 R. 2. a general assem∣bly called and resolved that money could not be raised but by Parliament, since this time all the Precedents that have been vouched, were for ar∣raying of men and putting them in Arms and rea∣diness.
28 H. 8. There were some forced upon their own charges, to go to suppress some Rebels in Lincoln-Shire; But afterwards were recompenced for their charges; saith the record, our pleasure is to send a messenger and a bill of charges he shall satisfie them; I do agree and there are many Sta∣tutes, that men should be arrayed; as Statute of Winchester, which are only preparations to make men ready.
Now, for that hath been urged by Mr. Attor∣ney excellent well, that the King by the Law of the land, hath a Prerogative in the Lands and Goods of his Subjects: So that the Sheriff may in some cases for him break open a man's house, and the like, because he cannot execute Justice. Tis true the King hath such a Prerogative and fit it should be used; for otherwise Justice could not be ad∣ministred, as it is in many cases; The Sheriff (tho a verdict by default) hath power by the Preroga∣tive of the King, to break into the house, and give possession; for otherwise Justice could not be administred if all laws were contemned; for which contempts the King may use his power: Again the King of his own charge maintains his Courts of Justice and is bound so to do 39 H. 6. 34 H. 6. and in lieu of these charges the Law gives these Fines and other duties; for there is upon the mat∣ter a quid pro quo, But where there is an Interest in a Subject, he cannot take it away without his consent, as he may do it in Murage and Pontage and the like; for their is a particular benefit to the Subject, so I think I am almost at an end of Answering the first and second part of the Pre∣cedents, the Ancient time was one way, the mo∣dern time another way.
In E. 4. Time Rich. 3▪ Hen. 7. Time, All for wa∣ges for Mariners, certain allowances they had, what a week and what a day.
But you say, here in this case appears no mo∣ney to be paid by the Subject, but only for a Ship to be provided by the Sheriff, and not any mo∣ney to come unto the Kings purse.
Sol. I must conclude this part with an Agree∣ment agreed by all, That if this Writ had been to Levy Money, all have agreed it had been void.
As I do take it, the Writ is to prepare a Ship of such Burden; So the Ship is the Matter; then give me leave to say this; and I say, as it appears plainly by the Record, there was no Ship pre∣pared at all: then if no Ship, no Writ can be had against him for disobedience to his Com∣mandments: Its known to all the world, it is not Ships, but Ship-money; Ship-money in every mans mouth. It hath a Name of preparing of Ships, but the end of it is to prepare Money; as in Yorkshire 12000 l.
If the Provision of a Ship had been expresly al∣ledged, it might have been traversed; and there∣fore Mr. Hampden's Councel could do nothing but Demur; and by Demurring, they confess nothing but that which is materially, and so suf∣ficiently alledged, that it might have been deni∣ed by a Traverse.
But you will Object, That I did subscribe to a contrary Opinion, and set my Hand unto it.
To this, for my own part, I must say, and say it truly, That my private Opinion was ever against it: I did subscribe; but it is true, that it was but for Conformity: for it is known to all, when a great Number meet together, the Judg∣ment is, that as the greater Number saith: Be∣sides, these words to which we subscribed our Opinion, are no ways pursued.
Secondly, Our Opinion was very suddenly required; for the King's Letter bears Date Feb. 2, and our Opinions unto it, bears Date following; and it was in a Case wherein we never heard any Argument; so that we usually do; and God forbid but that we may dissent from our private Opinions upon better Reason heard; but I am of the same Opinion now I was then.
But it will be said, we might have done it more advisedly. No man of us, but sometimes deli∣ver our Opinion, and yet after we have heard an Argument, have changed our Opinion, and gone contrary to our former Judgment.
Thirdly, If after any Arguments heard, I had been of the same Opinion that was deliver∣ed, yet this Writ doth not pursue the Direction: for though we directed that the King might Charge in case of a general Danger, yet this was, and is intended not in danger of Pyrates: but upon an imminent necessity and apparent danger, as could not be avoided; for I do agree, in time of War, when there was an Enemy in the Field, the King may take Goods from the Subject. Such a dan∣ger, & such a necessity ought to be in this Case, as in case of a Fire, like to consume all without speedy help; such a danger as tends to the overthrow of the Kingdom: Give me leave to say, that Kings of England have had great Power to take this to themselves. 17 H. 8. In the Cardinal's Time, that it was lawful to send forth Commissi∣ons throughout England to take a Sixth part of the Subjects Goods: whereupon, many upon Re∣fusal,
were sent to Prison; Lord Cobham amongst the rest sent to Prison from Huntington to Lon∣don, that at length Norfolk and Suffolk grew to such a heat, for taking away their Goods in that undue manner, that the King was forced to call a great Councel, who suppressed those kind of Writs, and the King laid the fault upon the Car∣dinal: and the Cardinal said, it was the Advice of the Kings Councel; and they denied it, and he bore the Shame.
So in the Time of Gracious Queen Elizabeth, who was a Gracious and Glorious Queen; yet in the End of her Reign, whether through Cove∣tousness, or by reason of the Wars that came upon her (I know not by what Councel) she de∣sired Benevolences. The Statute 2 R. 2. was offer∣ed; yet it went so far, that by Commission and Direction, Money was gathered in several Inns of Court; and I my self, for my part, paid 20 s. But when the Queen was informed by her Judges; that this kind of proceeding was against Law, she gave direction to repay all such Sums as were Collected; and so I (as all the rest of our House, and I think, of other Houses too) had my 20 s. repaid me again: and Privy Councellors were sent down into all parts, to tell them it was for Defence of the Realm, and that it should be Re∣paid unto them again.