Obj.
Then upon every Certificate that the K. makes that he is of Opinion that the danger is in∣stant or expectant, this Charge may come by that means to be Annual.
Sol. No: We need not fear that the King will require it but upon just Occasion; the Law pre∣sumes it: And legally it cannot be laid upon the Subject but in such Cases of Necessity as aforesaid. By the Charters of Will. the 1. K. John, and H. 3. no Charge without Parliament by the Stat. of 10 E. 3 None is forced to go out of his County, 14 E. 3. I hold it to be a general Statute, and doth bind, but doth not bind in case of necessity; for they are not to be understood to be binding in all Cases.
The Charter of K. John as it is inrolled (not as it is printed) according to Mag. Cha. saving two Clauses that are not now in Mag. Cha. hath this exemption in it to the Subject, of these and these Immunities; No Tax nor Tallage but by a Parli∣ament. But he excepts three Cases, 1. Nisi ad re∣dimend' corpus nostrum, pur Faier Fitz Chevalier, & pur file marier. These Prerogatives of the K. are not bound up by the Parliaments: The very Com∣mons themselves did agree to these 3 Cases. As for the Stat. de Tallagio, I hold to be a good Stat. and much for the Liberty of the Subject; but if you come to a Case of Necessity, they will not stand in force.
There is an Omission in the Printed Stat. 25 E. 3. which is in the Records of the Tower (as it was observed by my Brother Hutton) of these words, Car ceo est encounter le droit del Realme; how this comes to pass I know not, I caused it to be search∣ed, and I find these words only in the Articles upon the Roll, where they do complain for find∣ing of Hoblers, and are grieved for it, and give this as a reason, Car ceo est encounter droit del Realm; And the Answer which the K. gave unto it, was a Royal Answer to the thing proposed; but those words are left out of it: But if it were the Right of the Subject (le droit del Realme) as Littleton saith, that cannot dye.
And certainly in Case of Necessity there is a Right belonging to the K. to prevent danger; for legally when the safety of the Kingdom is in dan∣ger, in danger apparent, in that Case the K. hath a Power of Prerogative do compel Aid. And if an Act of Parliament should be made to restrain such a Charge on the Subject in case of necessity, it would be, felo de se, and so void, for it would de∣stroy that Regale Jus.
So to this great question of imposing this Charge in case of Necessity, I am of Opinion it may be done without Parliament, as it was in 88, so long as the present and apparent danger continueth; and I am of Opinion (as I was when we gave in our Certificate to His Majesty) That the King is the Sole Judge of the Danger, and how to pro∣vide against it. But however, I do conceive upon this Record vpon which I am to give Judgment, That the Mandates in the Writ 4 Augusti are not good in Law, nor according to the Laws and Cu∣stoms of the Kingdom of England, nor well grounded upon the Certificate; and that the In∣formation afterwards cannot make a former Writ good which was first defective: And the Sheriffs which were, their Return is not effectual, upon which Judgment may be given.