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

Sir John Finch, Lord Chief Justice of the Common Pleas, his Argument touching the Ship-Money, June 9. 1638. in the Exchequer-Cham∣ber.

AWrit under the Great Seal of England, Dated, 4 Augusti, 11 Car. went to the She∣riff of Buckinghamshire (Sir Peter Temple) com∣manding that a Ship of 450 Tun, and 180 Men be ready Furnished with all Ammunition and Tackling, at Portsmouth, for 26 Weeks; to go with other of his Majesties Ships, and of the Subjects, to defend the Dominion of the Sea, and Realm, being in danger; and for to Charge and Assess all his Majesties Subjects, and all the Inhabitants within the said County, and all Oc∣cupiers, Tenants and Ter-Tenants there, that have no part in the Ship, nor serve in the same, to contribute for and towards the Preparation and Setting forth of the Ship, according to their Abilities.

The Record of Certiorari saith, Stoke Mande∣vile is within the said County, and was Assessed upon the Lands of John Hampden Esquire, as by a Schedule of 9 Martii, 12 Car. annexed unto the Certiorari, may appear.

Whereupon a Mittimus 5 Maii, 13 Car. with the Certiorari and Schedule, was directed unto the Barons of the Exchequer, to do there for the Sum unpaid, prout de Jure & per Legem & Con∣suetudinem Regni nostri faer' faciend.

A Scire Fac. upon this went forth of the Ex∣chequer, to warn Mr. Hampden to shew Cause why he should not pay the 20 s. Upon the Re∣turn of which, Mr. Hampden appeared, and de∣manded Oyer of the Writ, Certiorari, Schedule, Mittimus and Scir. Fac. and upon hearing of them read, he Demurred; and Mr. Attorney joyned. Then my Lord Chief Baron and the Court of Exchequer Adjourned it to the Exche∣quer-Chamber, desiring the Advice of all his Majesties Judges; and look what Advice we (or the greater Number of us) give, the Court ought and must give Judgment upon it accord∣ingly.

In the Debating of this Case, there hath been great variety of Opinions amongst the Judges; a thing usual and frequent in all great Cases and Consultations; which shews commonly the dif∣ficulty of the thing, and argueth a Candor and Clearness in the Judges, between whom Combi∣nation and Conspiracy would be most odious: All that have gone before me, have in one thing agreed; That it is the greatest Cause that ever came in any of our Memories, or Memorial of—

As the Sun arising in the Horizon, shews not the Figure so clear, as when it is beholden in the Meridian; so by mixing many Impertinencies with the Case in Judgment, it hath been appre∣hended to be of a far tenderer consequence than indeed it is; yet tender and weighty it is, if equal∣ly weighed, in one Ballance we may put the Re∣gal Power, or rather the Regality itself; in the other, the Priviledges and Liberties of the Sub∣ject in his Person and Estate.

To look upon either of these, or both, through the Multiplying-Glass of Affection, is to behold neither of them truly; neither can they be so truly discerned, much less to multiply by the Glass of Phancy; and therefore Justice needs to hold the Beam straight.

I cannot fear myself, when Vulgar Censure hath exercised itself upon every one that hath delivered himself in this Matter; yet I will not say, Domine posuisti me in lubrico loco; for we that do sit here, do move in a Sphere, and should be like the Primum Mobile, according to whom, all others are to steer their Course: and Judges themselves must move steddily upon their right Poles, as I hope this Court will.

What Judge soever he be that is elevated by popular Applause, or animated by the contrary, to accumulate Honour, is fitter rather to live in Festo Romuli, quam in Politia Angliae.

Nor will I lose time in remembring the strict Oath of a Judge, who should expell all By-re∣spects, and speak his Conscience; I hope none of us forget the Duty we owe to God, to the King, and Common wealth, and to our selves. I shall endeavour to satisfie my Conscience in all that I shall say: And they forget their Duty to the first, and Humanity towards us, that say or think the contrary of any one of us. Some of us have Fortunes and Posterities, and therein have given Hostages to the Commonwealth, and have as much Interest in this Case as Mr. Hamp∣den.

Those that want those Blessings, want those Temptations that make them dream of (or hunt for) Honour or Riches, to perpetuate their Name and Families, to them nothing can be more preci∣ous than the Balm of Integrity, which will pre∣serve their Names and Memories. It cannot be presumed but that we should speak our Consci∣ences, since we well know shortly (as the Psal∣mist says) Corruption shall say I am thy Father, and the Worm I am thy Mother.

In handling this Case, no man can think I shall do other than right; and herein I am troubled rather for a Method, than Matter; rather how to dispose what I find, than find what to dispose: I shall endeavour shortly and clearly (considering the Time I have to spend, and the weightiness of the Matter about which I am to speak) to de∣liver my Opinion, with the Reasons of it; 'and my endeavour shall be rather to contract, than omit.

I have, with the best care I could, taken my Notes of all that hath been said for or against Mr. Hampden, and have, according to the mea∣sure of my understanding, weighed and ponder∣ed all that hath been spoken, both at the Bar, and by my Brothers, and bestowed many hours in Meditation about them, which the Time of Rest and Repose might have challenged.

Before I enter into the Case, I shall speak of the steps and degrees by which this Cause hath come to Judgment; whereby it will clearly ap∣pear, with what Clemency, Wisdom, Justice, and Goodness his Majesty hath proceeded in this Business.

The first Writ went out to the Port-Towns and Maritine Parts of the Land the 20th. of October, 10 Regis, upon Advice taken between his Majesty and his Counsel: Before then, of these Writs I can say nothing; for I was com∣manded at that time to attend another Service about another Employment, the Forest of Dean. But it is well known, the Resolution taken by his Majesty therein, was grounded, and relied upon the Judgment and Learning of Mr. Noy, Attorney General; a Man of great Learning, and one that had great insight into Records, by whom the Matter was first prepared, collected and digested; and afterwards imparted to some of his Majesties Learned Councel, and after∣wards to some others, eminent persons of the Commonwealth, of no less Judgment and Know∣ledge of the Laws of this Realm; and upon Consultation with my Lord Chief Baron, and his Majesties Barons of the Exchequer, his Maje∣sty commanded these Writs to be sent forth, a∣gainst the Legality of which, nothing hath been truly alledged: It is true, they are not in Judg∣ment properly before us; and if Method did not press it, I should not have mentioned them.

Primo Octobris, Anno 10. of his Majesties Reign, his Majesty was pleased to command me to serve in the Place that now I do; and those Records, Writs; Commissions, and other Precedents were brought unto me, as they had been formerly to my Lord Chief Justice, and my Lord Chief Ba∣ron; and we three did confer together, and de∣livered our Opinions in writing under our Hands.

Upon View and diligent Perusal of a multi∣tude of Ancient Records, Writs, and other Precedents of E. 1, E. 2, E. 3. and other Records of other Kings Reigns, delivered our Opinions in these Words:

That the Dominion of the Sea belongeth to the King, and that he is sole Lord and Proprietor of the same; in which respect, his Excellent Majesty these Regalities and Royal Powers is to defend, against all Hostile Actions, Intrusions and Invasions, as well for the Good of his Subjects, as strangers, importing and exporting their Commodities, and for Defence of the Kingdom; and for the better performing where∣of, the Cinque-Ports have been required to prepare such a certain Number of Ships of divers Burdens, and Men of Arms, and at such times, at their own Charges from time to time, as the same Writs, and the present Occasion required: And for the Time and Place, and Residence of their Attendance, his Majesty was the sole Appointer and only Judge: and this was the constant Ʋse in the Reigns of those Kings; and this was agreeable to the Common Law of Kingdoms.

And 15 Novembris 1634. before the next Sum∣mer, his Majesty finding the Danger to grow ge∣neral, and conceiving that there was little rea∣son that those Maritine parts should bear the whole Charge, for that the whole Realm was in∣terested therein, afterwards he required our O∣pinions, viz. my Lord Chief Justice▪ my Lord Chief Baron, and myself.

June 1635. After Conference together, we delivered our Opinions; and we upon Consulta∣tion, conceiving the Reason of the Precedents before, and the Rule of the Law and Reason, requiring, that when the whole Kingdom was in Danger, the Defence that concerned the whole Kingdom, should be born by all the Subjects of the Kingdom. This was first Verbally delivered to his Majesty; and afterwards we put it in Writing under our Hands in these Words:

Whereas the Charge of Defending of the Sea had been imposed on the Cinque-Ports; so, where the whole Kingdom is in dang••r, the whole Charge ought to be maintained by all the Subjects of the Realm.

And amongst other Writs, this to the Sheriff of Buckingham, went forth at the time aforesaid; after which, his Majesty finding some Question made of the Legality of it, he called all his Judges, not singly; nor any one in a Corner; but because he would have every one of them tru∣ly informed, required them to Ad••ise together, and every one of them by themselves to give his Opinion; according to which, we severally, and every man by himself, and all of us together, delivered our Opinions under our Hands, in this manner, viz.

That when the Good and Safety of the Kingdom in general is concerned, and the whole Kingdom in danger (of which your Majesty is the Sole Judge) your Majesty may by Writ, under your Great Seal of England, Command all the Subjects of this your Kingdom at their own Charge to provide and furnish such a Number of Ships, with Men, Munition and Victuals, and for such a time as your Majesty shall think fit for the Defence and Safeguard of the Kingdom from such Danger and Peril; and that by the Law your Majesty may compel the doing thereof, in case of Refusal.

In which (the Clause, His Majesty was the sole Judge) was only put in by Ten of us; my Bro∣ther Hutton having not seen nor weighed the Precedents, took time to Advise, and gave no Opinion till Conference between us; and my Brother Crooke had the same reason, being not ac∣quainted with those Writs; but yet subscribed his Opinion singly by himself, December 1635. viz.

That where the Good and Safety of the Kingdom is in danger, of which his Majesty is the sole Judge, his Majesty may Command all his Subjects, at their Charge, to provide and furnish such Ships at Sea with Men and Munition, as shall be necessary for▪ the Defence thereof; and this I hold to be agreeable to Law and Reason.

Though I perceived nothing of this his Opi∣nion in his Argument, yet he still holdeth it: Wherein I observe,

1. That the King is sole Judge of the Danger, and whether it be imminent.

2. Not only that the King may in such Dan∣ger Command his Subjects to defend the King∣dom in case of Necessity, but that the Charge of the Defence ought to be born by all the Realm in general; which Opinion was more indepen∣dent than the rest; for that our Opinion before it, had relation to the Precedent of Maritine parts; but this was, That the Subject might be Charged absolutely: and this was delivered by him readily and chearfully, without hesitation; he will not deny it: I speak not of this as of a thing whereby he ought to have been concluded; but that all the world should know, that his Majesties Regal and Legal Power go hand in hand together, and that his Princely Love and Affection to his Subjects is such, that he is wil∣ling to prevent all Mistakes: And I speak it also to this end, that when Judges singly deliver their Opinions to the King, not examining the

Reasons that moved them unto it, we ought to see very good and pregnant reason to vary from that Opinion, though it be not binding.

This his Majesty required for his own private Satisfaction; and this I dare boldly say was so delivered by us, that no one Judge knew the Opinion of the rest.

When his Majesty found slackness in some of his Subjects, in contributing towards this Charge, and thinking that it proceeded rather from mis∣understanding of the Law, than from want of Duty, as desirous of his Princely Love, to a∣void all Mistakes, did upon the Second of Febru∣ary 1636. send a Letter to all us his Majesties Judges and Barons of the Exchequer, thereby requiring our several Opinions; about which we all conferred, and the Particulars wherein our Opinions was required, had been long consider∣ed of before, or else we were much to blame; for we had time enough to think upon it: And though our Answer was returned the 7th. of the s••me Month of February, yet we had it in our Considerations from June 1635. fifteen Months before the Answer returned; there was no Sur∣prize, I will spare to name our Opinion then deli∣vered; for it hath been repeated before; when we came to the Debate and Voting of this, we brake the Writ into several Parts and Questions. As,

First, When the Good and Safety of the King∣dom in general is concerned, and the whole Kingdom in Danger, whether it ought not to be defended at the Charge of the whole Kingdom? And agreed it was una voce, nullo contradicente, that it ought.

Secondly, Whether the Charge of the Defence might not be commanded by the King? Which was also agreed that it might.

Thirdly, Whether the King was not the sole Judge both of the Danger, and when and how it was to be prevented? wherein my Brothers (Hutton and Crooke) did agree it likewise, that he was sole Judge of the Danger: What their Opinions are now, and wherein they differ, I shall, with their good Leave examine, and their Reasons and Differences (though indeed of the Kings being the sole Judge.) In their Argu∣ments, my Brother Crooke spake nothing of his Opinion therein, nor my Brother Hutton nothing against it; but we delivered not our Opinion upon the (By) nor was it so required by his Ma∣jesty. It was then also Declared by all of us, that we delivered not our Opinions, as binding Opinions, nor were they so required by his Ma∣jesty of all, which I dare boldly say, his Majesty was truly informed; and this was also soon af∣ter Published by his Command, and seconded by my Lord Keeper and Lord Privy Seal; the first of them using many Arguments and sound Collecti∣ons, delivered it in Charge to his Majesties Jud∣ges, to deliver it in their Circuits; which might have satisfied any that respected not their own private Benefit; and Mr. Hampden, of all, I think hath the least Cause to complain, being Assessed but 20 s. A contemptible Sum, in respect of his Annual Revenues, to bring this Case to Judg∣ment; yet his Majesties Clemency appears to be great herein, in that he would not debarr any to question the Lawfulness of it; though he hath permitted Arcana Imperii, nay Imperium ipsum (I would to God I could not say, even too licenti∣ously) to be debated at this Barr; yet I speak it not by way of Reprehension, but Admonition to the Councel, who are to be commended, in that they have done their Duty faithfully for their Clients; yet I may say, such a Ravelling and Diving into the Kings Revenue, and secret Estate of Princes, and what succeeding Kings may be, or may do, it doth not well become these pre∣sent times; it would not have been endured in the best preceding times.

It was not well done to doubt succeeding Poste∣rity, that promise as much as any of their Pre∣decessors have done before, for the Good of the Commonwealth.

It was not well to clogg the Cause with so many Precedents, impossible to be throughly ob∣served; but our Example I hope shall be a Barr hereafter; and our Care shall be to prevent it, being a great hinderance to the Expedition of Justice, and Cause of great Expence to the Sub∣jects long attendance about their Causes here, which may prove a greater Charge, than in pro∣viding Ships for Defence of the Realm.

I come now to the Case, as it stands in Judg∣ment before us; wherein my Method shall be,

First, To examine what the Case is.

Secondly, I will give my Opinion of the Case, with the Reasons thereof.

Thirdly, I will Answer the Objections made against it.

Fourthly, I will speak to the Form and Quality of the Writ of 4. Augusti, the Certiorari, the Mittimus, and Scir. Fac. out of the Exchequer; and to all these with that Brevity I can: I will speak according to the weight of the Case, where variety of Opinions give just cause to ballance them; the Case must arise out of the Record, and must stand or fall upon that.

First, For the Cause it self; and therein,

• 1. I will shew what Danger there is, that is the Ground of the Charge.
• 2. What things there are to maintain it; as for other things they tend unto the destruction of the Case.

First, I am Opinion that the Danger of the whole Kingdom ought to be expressed clearly; for else the Ground-work faileth: for if no danger, no reason for the Charge. I am of opinion, that in the Writ 4 Aug. it ought to be expressed, and not in the Mittimus: Though as my Brother Jones observed, The Mittimus comes time enough to Mr. Hampden, to give him notice; yet he was not liable to the Charge, but by the Writ of 4 Augusti

• 1. It is Objected that the Danger is not clear∣ly expressed; for it is not upon words of Cer∣tainty, but by way of Incertainty, Quod datum est nobis intelligi.
• 2. For the Causes of the Writ, that it hath not relation to the Danger of the Kingdom, but to defend the Sea-Coasts against Pyrates, &c. They are not worthy of a Royal Navy, as my Brother Crooke also observed.

But I hold, first, That the Danger is sufficient∣ly expressed, Certum est sicut se res habet, Da∣tum nobis est intelligi; a thing very ordinary with us, and in all former Writs ex Relatione, &c. quod vulgari•• ••pinio est, &c.

Although my Lord Chief Baron parallell'd this to the Case of Patents, ex certa scientia, which is nothing alike; for there, before the King pass away Land, he may be if informed he may do it; but I hold, as this Case is, the Dan∣ger will not permit it to be examined, whether there be just Cause of fear; for then it might re∣ceive

Delays, which are dangerous, and the King∣dom be lost while we are disputing.

And then for the Phrase it self, Datum est no∣bis intelligi; It is sufficient that the King knows there is a Danger; and therefore if it had been but only Intelligimus, none can deny but it had been sufficient. And what difference is there be∣tween Intelligimus, & datum est nobis intelligi? That sets forth the knowledge of the Danger, and this shews the Means whereby he does know it; ut datum est nobis intelligi: this goes further than Ex auditu Rumor est, &c. Therefore unless the King should go out of the Kingdom to see the Danger, can it be otherwise expressed?

Secondly, I hold that the Danger it self, with the Motives in the Writ, are sufficient also.

The Motives are great Depredations of the Subjects Goods and Lives; but it is not upon this I rest; for this hath relation to Pyrates lead∣ing divers Christians into Captivity: These are good Motives, and (as one of my Brothers said well) though these have Relation to Pyrates, yet Bellum Pirat. points at as much Terror as Han∣nibal ad portas.

I shall not much relie upon that, that the Ene∣mies of Christendom and of this Nation did prepare, ad Mercatores nostros ulterius molestand. Nor ad Regnum gravandum, nisi citius remedium apponatur, &c. But this, Consideratis periculis quae undique his guerrinis temporibus imminentibus, ita quod nobis & subditis nostris defensionem Maris & Regni nostri omni festinatione qua poterimus convenit, &c. shews otherwise then for the Pirates, this Defence was requisite; therefore the next Clause is, Nos volentes defensionem Regni, tuitionem Ma∣ris, securitatem Subditorum nostrorum, &c. And therefore that salva conductione Navium & Mer∣chandizarum, quae ad Regnum nostrum Angliae vene∣rent, & de codem Regno ad partes exteras transeunt, &c. take not away the former Words, or limit them.

As for the Clause in the Mittimus, I stand not upon it; nor that, Salus Regni & Populi nostri Angliae periclitabatur, &c.

3. Admit there had been no Preamble or Ex∣pressement of Danger, I hold the Command∣ment it self is sufficient setting forth of the Dan∣ger; which is, that the Ship be with other his Majesties Ships, and the Ships of other his Ma∣jesties Subjects, at Portsmouth, the first day of March next following. The Words of the Re∣cord be, Exinde cum Navibus nostris, & Navibus aliorum sidelium Subditorum nostrorum, pro tuitione Maris, & defensione nostrum & vestror. &c. And particularly to express the Danger, is not neces∣sary: for the King, the sole Arbiter both of Peace and War, best knows it: And it was the practice in former times, and so our Wisdom, for the King to express the Danger in particu∣lar, when Arms usually go before Heralds; nor is it the Use of Princes to complement, to tell the Enemy, that they will or intend to invade their Lands; and therefore I hold, though it might be more clear; yet satis est quod sufficit: I in my own Conscience am satisfied, the Danger is certain enough expressed in the Writ; and so I have done with the first Particular; The Danger: which was the Ground of this Writ. As to the Second Particular:

Secondly, What is alledged to be for the pre∣venting of that Danger, my Brother Hutton and my Brother Crooke would have it to be raising of Money, by reason of the Clause in the Writ; for the Distribution of the Surplusage: But the Record is ad assidendum omnes homines, & ad contri∣buendum Navem, vel partem, Naves non habentes, &c which shews that it cannot be for Money; neither is there any Colour of Money; for it is to find a Ship; and if they have not of their own, the must build, or buy one with their Money: But there is a great deal of difference between pay∣ment of Money and finding of a Ship: As if my Brother Crooke be required to find a Light Horse, and Arms, he must buy one, or hire with his Money, if he have none; but yet the Charge is not only for Money, but that he find a Light Horse.

Obj. But my Brother Crooke's Objection is, If any Surplusage remain, it shall be divided; and so the Sheriff is to detain no part of it, but em∣ploy it for the publick Good, and not convert it to his own proper Benefit.

Answ. To this I Answer, That this shews the Equality of the Charge, which is fittest to be by payment of Money.

Obj. My Brother Crooke hath further Objected, That an In-land County cannot build a Ship: a great Trouble for the County of Buckingham, so far from the Sea, to build a Ship.

Answ. To this I Answer, That those of Bucking∣hamshire may hire a Ship, if they may not build one; and the Words are but (Parare) not for the Building, but Preparing a Ship. And it was not meant that they should build it there▪ but that they should contribute to the Building of a Ship in a most sit and convenient place.

Now in my Opinion, the King Knowing and Declaring the whole Kingdom to be in danger, and necessarily requiring his Subjects to defend, and provide for this Danger at Sea, the King may thereupon command all his Subjects to prepare Ships to joyn with his Navy Royal against the E∣nemy of the whole Realm, to defend the whole Realm; and it is clear in the Case, and was the Meaning of us all, that the King must joyn in the Charge; it being far from us to excuse the King his Rateable Part.

My Reasons that the King may thus Charge his Subjects to joyn with him in the Defence.

First, The Defence of the Kingdom must be at the Charge of the whole Kingdom in gene∣ral.

Secondly, The Power of laying this Charge is by the Policy and Fundamental Laws of this Kingdom solely invested in the King.

Thirdly, The Law that hath given this Power to the King to do these things, hath given him Means to put these things in Execution.

In all these I shall ground my self upon Au∣thorities in Law and Precedents in all Ages.

First, That the defence of the Kingdom must be at the charge of all the Kingdom, I shall prove from the Law of Nature, which is, that every thing in Nature ought to defend it self.

Secondly, From the Rule of Reason; for quod omnes tangit ab omnibus supportari debet.

Thirdly, From the true use of all that we en∣joy, which must be abused, if not imployed to and for the good also of those that come after us, and necessary it is for our Posterity to have all sure and safe; a good Patient will spare some blood to preserve his own health, and a good

Husband will spare some piece of his best ground for Ditches and Fences to preserve the rest; and he is an ill Husband that finds not safety in what he doth.

Fourthly, From the Law of Property; as e∣very one hath a particular property in his own goods, so every one hath a property in general in anothers goods for the common good; for the Commonwealth hath a property in every Sub∣jects goods, not only in time of War, but also in time of necessity in Peace; therefore if one take away my goods without my consent, I have my Action, and recover Damages. Doctor and Stu∣dent says both a Trespass of Lands and Goods is punishable by Indictment and Trespass at the Kings Suit, as well as the Subjects; and this is by reason of the Publick Interest that the King hath in every Subjects goods for the common good. Now the Rule and Maxim before, so clearly and fully put and agreed by all, is, that in case of ne∣cessity that is apparent, the Subject ought to de∣fend the Kingdom; and my Brother Crooke a∣greed, in case of danger, so it be imminent, all men are bound in their Persons and Estates to de∣fend the Land and the Kingdom; and he says they must, then exponere se & sua, I think he ••eans a man that takes and goes a Journey may carry his money with him, se & sua, id est, omnia bona & Catalla sua; or else means, the King can∣not command their money without their con∣sent; of which I will speak in its proper place.

2. I come now to the second part of my Head geral, which is the power of laying this Charge.

By the Fundamental Laws and Policy of this Kingdom, the Soyl, Interest, and Property of the Sea, &c. is in the King. I will not speak of the Original of this Monarchy; this is fit rather for Civilians, Historians, or the Pen of a Divine, than a Judge at Westminster Hall; nor will I speak of the division of Monarchies, the Poets say, that Saturn was the first Founder of King∣doms; only this I will say, that for the excellency of the Government of this Kingdom, through Gods blessing, that none are more happy than we: Look and see in other Nations, and tell me if you can find out any place where they can, and do enjoy those mercies of Peace and plenty which we do; so as we may justly say, O Fortuna∣ti nimium, bona si sua norunt Brittani: Nor will I perplex my self with the Original of this Na∣tion and Monarchy, some Stories are fabulous, and others doubtful; not any so clear, as to set it forth certainly, though they speak truly what is sufficient for us to know; nor is he the poorest man, qui non petest numerare Pe••us, nor he one of the worst Gentlemen, that cannot shew the Ori∣ginal of his Pedigree; the Excellency of his Monarchy is sufficient that it is a Monarchy; and that is most true which Fortescue saith of the Excellency of our Laws: I agree Fortescue was a Lord Chief Justice in H. 6. time, but not Chan∣cellour of England. Sea and Land make one Kingdom, and the King is Sponsus Regni: Magda∣len Colledge Case, Sir John Davies Reports, Stat. 24 H. 8. 1 Eliz. & 1 Jac. the soyl of the Sea be∣longs to the King, who is Lord and sole Proprie∣tor of them; and good reason why it should, as is well maintained by Mr. Selden, that worthy and learned Author; and I hope shall be by his Majesty, and maintained with the Soveraignty of the Sea, without whose Navy this Authority can do little good.

The King holds this Diadem of God only, all others hold their Lands of him, and he of none but of God: But this is but to light a Candle for others; from hence only I will observe, that none other can share with him in his absolute power.

A Parliament is an Honourable Court, and I confess it an excellent means of charging the Subject, and defending the Kingdom; but yet it is not the only means.

An Honour the last Parliament was pleased to bestow on me, which never any shall with more respect remember than my self, whom they were pleased to chuse for their Speaker.

And as my Brother Hutton said, I conceive it a fit way to charge the Subjects, and I wish that some for their private humour had not sowed the Tares of discontent in that Field of the Com∣monwealth; then might we have expected and found good fruit; but now the best way to re∣deem this lost Priviledge (for which we may give those thanks only) is to give all opportune appearance of obedience and dutifulness unto his Majesties Command.

The two Houses of Parliament, without the King, cannot make a Law, nor without his Roy∣al Consent declare it; he is not bound to call it but when he pleaseth, nor to continue it but at his pleasure: Certainly there was a King before a Parliament; for how could there else be an As∣sembly of the King, Lords, and Commons? and then what Soveraignty was there in the Kingdom but this? His power then was limited by the positive Law; then it cannot be denied, but O∣riginally the King had the Soveraignty of the whole Kingdom both by Sea and Land, who hath a power of charging the whole Kingdom.

Thirdly, The Law that hath given that pow∣er, hath given means to the King by this Autho∣rity to put it in execution. It is a very true Rule, the Law commands nothing to be done, but it permits the ways and means how it may be done, else the Law should be imperfect, lame, and un∣just: Therefore the Law that hath given the In∣terest and Soveraignty of defending and go∣verning the Kingdom to the King, doth also give the King power to charge his Subjects for the ne∣cessary defence and good thereof.

And as the King is bound to defend, so the Subjects are bound to obey, and to come out of their own Counties, if occasion be, and to pro∣vide Horse and Arms in Forreign Wars; and such as are compellable now to find Guns instead of Bows and Arrows; so Munition, as Powder and Shot, &c. Then if the Sea and Land be but one entire Kingdom, and the King Lord of both, the Subject is bound as well for the defence of the Sea, as of the Land; and then all are bound to provide Ships, Men, Victuals, and ne∣cessaries for that defence; and for us Islanders, it is most necessary to defend our selves at Sea: Therefore it was the greatest Argument in 88. whether it was best to fight with the Royal and Invincible Navy or Armado of Spain at Sea, or suffer them to Land; and it was resolved clearly, that it was better to fight with them at Sea, though we lost the Battel, and our Ships then to suffer them to Land.

Obj.

But then there was Hannibal ad Por∣tas.

Answ. To this I shall answer afterwards, that here the Maritine Towns shall not help the In∣land, but each of them bear their own charge, and defend themselves: But of this I shall speak hereafter; yet undoubtedly 'tis reasonable, that

both should joyn to defend the Kingdom, in case of necessity.

Now I shall endeavour clearly to prove this by Authority in Law, and Precedents in all A∣ges. And first, it is a great Authority in Law, that there is no express Authority against it, though there have been some Books cited by my Brother Hutton, and my Brot••e: Crooke, (which I shall answer in their due place, amongst other Objections) yet there is not one Authority or O∣pinion, much less resolution or judgment in ne∣cessary time of danger, that says the King may not charge the Subjects for the defence of the Kingdom.

Secondly, All these Authorities that prove the King is trusted with the defence of the King∣dom, and in divers Cases gives him Aids, Taxes, Subsidies, &c. prove that the Subject is bound in case of danger and necessity to pay them to the King for defence of the Kingdom.

Thirdly, All the Authorities of Murage, Pon∣tage, Saltpeter, &c. shew, that for the good of the Publick the King is interested in the Estates of the Subjects, and may charge them; much more (if for the well-being then) where the being it self of the Commonwealth is at stake, and in danger.

Fourthly, The Authorities of commanding the Person of the Subject to come out of their own Counties proves it; the power of com∣manding the Person of the Subject into forreign parts is in the King, much more the Estates of men should be at his Command, in Case of neces∣sary defence of the Kingdom.

Fifthly, All the Commissions of arraying men in E. 1. time, E. 3. E. 4. H. 7. and H. 8. time, &c. They are all grounded upon the same rea∣son, and went out for the necessary defence of the Kingdom; these Writs are not to command the person, but a Ship only, ju••ta facultates suas, which are answerable in reason to the Ancient Precedents.

From Authorities ••I come to Precedents; Pre∣cedents though they be not Judgments, yet they shew the practice of the Law; and what better Book have we in the Law, than the Book of Pre∣cedents? or what is there of more Authority than that? for we have not the twelve Tables for our Common Law.

The Common Law is but the common usage of the Land; and therefore the Precedents alledged by the Kings Councel are of good Authority to prove the Law in this Case; wherein I shall not name the particulars, they have been well remem∣bred by Mr. Attorney, and Mr. Solicitor, but I will mention the substance of them.

The first Precedent was, before the Conquest, in the times of Edgar, Alfred, Ethelred, &c. the use was to defend the Kingdom at the charge of the whole Kingdom, by the Edict of the King.

A strong inference from the Precedent of the grant to the Clergy and Church of divers Privi∣ledgos, with these Exceptions of Expedit Po••∣tium, &c. in the time of Edgar, Alfred, and E∣thelred, &c.

The Councel of Enoch in Edgars time, about 606. 621. mentioned by the learned Antiquary Sir Henry Spelman, fo. 510. and after those fol∣lows, Hae sunt Constitutiones, &c. fo. 523. In which are excellent things good for Church and Commonwealth, Cap. 23. Navales expeditiones, if it be no Act of Parliament, yet nothing is more like an Act of Parliament: Take the phrase of those times, and certainly it was either an Act of Parliament, or a proof of the 〈…〉〈…〉 that without Parliament he 〈…〉〈…〉 Subject for the defence of the Kingdom, 〈…〉〈…〉 of danger; and the word 〈…〉〈…〉 used fo•• War, and sometimes for an Army, as 〈◊〉〈◊〉 giving the reason of the name says: In the th••••d place, it shews the practice of the Kings o•• ••••g∣land to charge their Subjects for the defence of the Kingdom, in case of danger.

Now if this charge of 〈◊〉〈◊〉 be no•• taken away by any of the Acts of Parliament, it ••e∣mains still, says my Brother H••••••on, and so I think it doth, or something in lie•• of it, for it is not taken away by the Act of Parliament.

1. In these Precedents, observe first, that th•••• are all upon the same common ••eason th•••• this is.

Secondly, These Writs are not limited 〈◊〉〈◊〉 their number or time; so that they prove the power was in the King to charge his Subjects.

Thirdly, In these Precedents, some were to Inland Counties, as Hu••tington, Bedford, Bucki••∣gham, Leicester, Oxford, Berks, &c. And though they went not generally to all Counties at one time, yet they went to them as occasion was; and if the danger had required, the King might, if he had pleased, have sent to all, as well as to some.

But because there never was any time when all the Munition in the Kingdom was drawn at one time to one place, may it not therefore be done? The commanding sometimes of one, sometimes of another, is an Argument they may all be com∣manded, as occasion requires.

I do not build my Opinion upon confused No∣tions, but on matters digested, on Precedents of weight, the chiefest in respect of time, and after the making of Magna Charta, 9 H. 3. 13 H. ••. m. 48. 18 H. 3. m. 7. & 13 E. 3. m. 77. 23 E. ••. m. 4. 28 E. 1. m. 23. and many other in E. 1. time; there is proving Contribution towards the maintenance of the Sea Coasts from Inlands, as 25 E. 1. m. 13. Abbot of Robertsbridge Case is a full Precedent, notwithstanding all that hath been said against it: So 9 E. 2. pars 1. 20 E. 2. m. 7. 2 E. 3. Scotch Roll. 7 E. 3. m. 9. 10 E. 3. n. 16, 17. 11 E. 3. 12 E. 3. 14, 15, 16. 18 E. 3. 46 E. 3. m. 34. 25 E. 3. Rot. Franc. m. 9. 29 E. 3. 1 R. 2. 1 H. 4. and yet H. 4. had as much reason to please the people as any King of England: So in H. 5. though busied in the glorious Con∣quest, or rather recovery of France, God forbid we should see those times: So in Ed. 4. H. 6. H. 7. H. 8. by▪ way of Offensive War, Writs and Commissions to their Subjects to contribute towards it; so in Queen Elizabeths time, Com∣missions towards the maintenance of the King∣dom, 11 Eliz. 41 Eliz. Commission to the Earl of Nottingham, 88. Letters from the Lords of the Councel, which Letters had the Queens Writ; but my Brother Crooke answered all these with this Rule of Law, Judicandum est legibus non Exemplis: To this I answer him, that Examples and Precedents are good Law; they are Autho∣rities out of the Law, and declare what the Law is, and what of more certainty digest of Writs; these are Instar Oracula Legis.

Precedents drawn up by Clerks sometimes, though they pass sub silentio, yet are they good Authorities in the Law.

The Abbot of Robertsbridge Case is a Prece∣dent of great Authority.

Ob. No Precedents goes to Inland Counties.

Ans. I answer, in truth the Precedents are

quite otherways for ordinary defence, they go to Maritine Coasts only, but where the danger is general to Inland Counties, and after another manner: For this I refer you to my Brother We∣stons Argument, these could not be so frequent; for first this danger was but seldome.

Secondly, Because we had then double hostili∣ty, one from France by Sea, and another by Land from Scotland; examine the Precedents there∣fore.

Ob.

Third Objection that my Brother Crooke made is, that we are compellable by our Persons and Arms, but not with any sum of money.

Ans. I answer with my Brother Jones, Bona Corporis are above Bona Fortunae: But this power of liberties of the persons of his Subjects, he a∣grees is in the King; then, I say, more reason that their Estates should be in his power, in this Case of necessary defence.

Secondly, The Precedents warrant the quite contrary, and Wages have been paid to Souldi∣ers by the Subject in this Case.

The third thing that I will observe in this Case is, the answering of all those Objections which have been made against it, which were three.

• 1. That Writ was against the Common Law.
• 2. That it was against the Statute Law.
• 3. Many inconveniences grow thereby.

Ob.

First, It is against the Common Law, because it is without Precedent; this is the first of this kind since the Conquest, and where there is no Precedent, the Law will not bear it, Littleton so. 32. My Lord Cooks Commentaries upon it, puts divers Cases to the same purpose.

Sol. I answer, there are Precedents for it, and the Law is so, that the King may charge his Sub∣jects towards the defence of the Kingdom in this Case.

Ob.

Second Objection is, that it is against the freedom of the Subject, that hath a true pro∣perty in his Goods, which cannot be taken away without his actual or implied consent, Lambert fo. 294. Fortescue Magna Charta 17 K. John, Matth. Paris fo. 242. Fortescue 9. Chap. 13. &c. 13 H. 4. Chamberlain of Londons Case, Regist. so. 127. Fitz. N. B. &c.

Ans. I answer, that that Authority of Lam∣bert, rehearsing the Laws of the Conquerour, is volumus & Concedimus iut omnes liberi homines totius Monarchiae Regni nostri habeant & teneant terras suas et pessessiones suas be••e et in pace liberas ab omni exactione injusta et ab omni Tallagio, ita quod nihil exigatur vel capiatur nisi per Commune Concili∣um, &c. It cannot be construed that they should not be charged, but that they should be free from all injust Taxes, the King is not concluded by the subsequent words, Om••e Tallaglum; this can∣not be so general, but the King may impose just Charges towards the necessary defence of the whole Kingdom; for this is meant, as plainly by the word Tallage, it appears, Tallagium is de∣rived from a French word, and is indeed a cut∣ting word, and therefore injusta exactio, which shews that for the most part it is taken in the worst sense; and as my Brother Crooke said it, and the manner of expounding it must be from the Law.

Secondly, my Brother Crooke quite left out these words following; (that declare and ex∣pound the former) Videlicet statuimus et firmiter praecipimus, ut omnes liberi homines totius Regni prae∣dict. sint fratres Conjurati ad Monarchiam nostram et ad Regnum nostrum pro viribus suis et facultatibus contra Inimicos pro posse suo defendendum et viriliter servandum, &c. whereby it is apparent, first that the Kingdom is to be defended by the whole Kingdom, pro facultatibus with their goods, as well as viribus by their persons.

Secondly, It comes after the Chapter of Te∣nures and Services, by which they are bound to defend, Terras et honores suos, &c. which shews that he meant not to free any from the general charge of defending of the Kingdom, in case of necessity.

Ob.

This Objection is the Charter of King John, Nullum Tallagium imponatur nisi per Com∣mune Consilium.

Ans. I answer, the words are concerning the defence of his own person, and not the King; and therefore it is excepted, nisi ad redimend. Cor∣pus nostrum, and in the Original Act these words are left out.

Scutage, Murage, and other Aids there men∣tioned, shew that only those were meant that were of private benefit, were not to be imposed by the King upon his Subjects without Parlia∣ment, but not to bar himself for the publick good.

Ob. The fourth Authority was Fortescue, which was most insisted upon by my Brother Crooke.

Before I come to the words themselves, note first the time when he wrote that Book; it was after all the Acts of Parliament that took away the Regal Power, yet it mentioneth not them; so as it must needs relate to the Common Law, it was writ when the Civil Wars were between the two Houses, and himself in Exile, no time was it then to displease the people.

Secondly, It shews the differences between Kingdoms, when a Monarch rules that challen∣geth all power over his Subjects, and between a Monarch that governs according to positive Laws.

The words that seem to be against this Charge are, 9 Cap. 26. Rex Angliae politice imperans genti suae, nec Legem ipse sine subditorum ass••nsu mutare poterit, nec subjectum populum renitentem onerare impositionibus peregrinis, cap. 13. fo. 32. Rex Ca∣put Corporis politici mutare non potest leges corporis illius, nec ejusdem populi substantias proprias subtra∣here reclamantibus eis aut invitis, et cap. 36. fol. 84. which my Brother Crooke says is the express Au∣thority: In hoc individuo; the words are, Rex Regno Angliae ibidem per se aut Ministros Tallagia, subsidia aut quaevis onera alia imponit ligeis suis; aut leges eorum mutat, vel novas condidit sine Concessione vel Assensu totius Regni sui in Parliamento suo ex∣presso, &c.

Ans. From them all, I take the true meaning of him to be; and I hold, first that the Kingdom ought to be governed by the positive Laws of the Land, and that the King cannot change nor make new Laws without a Parliament.

Secondly, The Subject hath an absolute pro∣perty in his Goods, Possessions, and Estate, nor to his own use the King cannot take them.

Thirdly, Nor for his own use the King cannot lay any Burthen, Tallage, Tax, or Imposition, without the Subjects consent in Parliament.

Fourthly, For the benefit of Trades, the King may lay sitting Impositions, and may command that which is for necessary defence of the King∣dom, which is no Command of charge, but com∣manding of imploying.

Fifthly, I answer therefore to the great Ob∣jection, that Liberty of the Subject is lost, and the Property is drowned which they have in their Estates.

First, I say all private Property must give way to the Publick; and therefore a trespass to pri∣vate men, as punished by Indictment, because it is an offence of the Publick Weal; and though e∣very man hath a property in his Goods, yet he must not use them to the detriment of the Com∣mon-Wealth; a man may give his Grass or Corn when it grows, away, or when it is in his Barn; but if he will cut it unusefully, or burn or de∣stroy his Corn, or if he throw his Goods into the Sea that it may perish, these are Crimes punisha∣ble by the Common Law; so transporting of Commodities against the Publick Good; there∣fore the direction of those Statutes for the re∣straint hereof are from the Common Law, and the reason of this is, because the Publick Pro∣perty must take place; and if in petty business it may be, then much more in time of publick, and great necessity and danger; and it is rather an averment of the Subjects Property, that in case of necessity only they may be taken away, than contrary to it.

My Brother Hutton, and my Brother Crooke a∣gree, that all are bound in case of necessity, Ex∣ponere se et sua totis viribus, to defend the King∣dom, and may he not command a part with more reason than all?

Ob.

In the next place I shall remove a scandal that hath been put upon the King, how that his Majesty hath meant to make a private personal profit by it.

Ans. What he hath done is well known, and I dare confidently say, all hath been spent without any account to himself, and that his Majesty hath been at great charge besides towards the same purpose: And I heard it from his own Royal Mouth, he spake it to me and my Lord Bramston, that can testifie as much, that he said it never en∣tred into his heart to make such use of it; and therefore said he was bound in Conscience to convert it to that use it was received for, and none other; and that he would sooner eat the Money, than convert it to his own private use: Therefore he that thinks the King makes a Re∣venue of it, doth highly slander his Majesty: But let Kings be as David was, a Man after Gods own Heart, yet they will not want a Shimei to rail on them.

Ob.

But though, blessed be God, his Majesty is so gracious and loving to his Subjects, and so just, that we need not fear that he will charge them but upon urgent necessity, yet we know not what succeeding Ages may do.

Ans. It is not well to blast succeeding Ages, and if they should hereafter charge unreasonably with∣out cause, yet this Judgment warrants no such thing. Again, it is no Argument to condemn the true use, because it may be abused: And a∣gain, the Law implies as great trust in the King as this, the King may pardon all Offences, but if he should, then none could be safe; the King may make Peace and War at his pleasure; but yet should he make Peace, when Peace would ru∣ine us, or War, when War would undo us, it would be worse than this; therefore it cannot be suspected that the King would do any thing a∣gainst Law, and the publick good of the King∣dom: Therefore the Law says the King can do no wrong, for he is Sponsus Regni, as in Magda∣len Colledge Case.

Ob.

Clarks Case, the Chamberlain of Londons Case, &c.

Ans. These Cases are nothing against this, but rather for it.

Ob.

The Record of 14 R. 2. Ro. 60. Levers Case in the Kings Bench, in an Action of Tre∣spass, for taking away his goods without his consent, had Judgment to recover in Durham; but the Case was this, one Lever of the Town of Durham brought his Action against another, for entring into his House, and taking away his Goods, and 60 l. of Money; the Defendant pleaded not guilty, and the Jury found upon a Special Verdict, that the Defendant took away his Money but upon this occasion; the Scots had invaded the Realm, and were in Durham, and would not be gone without a certain sum of Mo∣ney; whereupon the Inhabitants assembled, and amongst the rest the Plaintiff was one, and they made an Order to abide the Ordinance of the greater part, which was to give the Scots the Mo∣ney desired; and because the Money was to be paid present down, therefore they made another Order to search in all mens houses, and to take away what Money they found, according to which the Defendant searched the Plaintiffs house, and took away 60 l. and because it was without consent, the Plaintiff had Judgment to recover in Durham; but upon Special Verdict it was reversed in the Kings Bench, because with his consent: Indeed the reasons were, because he had sufficient remedy against the Commonalty. 2. He did it as a servant.

Ans. But I answer first, that though the Ordi∣dinance was good by consent, yet it followed not that it was void without consent; the que∣stion is there only, whether good by consent?

Secondly, It follows not, but that all men without consent, are bound to contribute towards general charge for necessary defence.

Ob.

Another Objection made by my Brother Crooke was, 2 R. 2. pars 1. where all the Lords and Sages met together after Parliament, and it was agreed by the Lords, that they could not charge without Parliament: This was a Decla∣ration of the Law in Parliament, and an Act of Parliament, &c.

Ans. I answer, that it was no Act, but a De∣claration in Parliament of the Law; and indeed no Declaration, but a Relation by the Chancel∣lour.

Secondly, If it had been a Declaration, yet it had not been binding without the King.

Thirdly, It is no Precedent of a good Book, it was when the King was young, and the Parlia∣ment had the Regency; Councellors, Treasu∣rers, and all his Officers about his person were chose by Parliament, and therefore no wonder they endeavoured to please the Parliament.

Fourthly, It is a Precedent that they (id est) the Lords could not charge the Commons by themselves.

Again, the Case was not for the defence of the Kingdom, but Wars in France, Scotland, and Ire∣land; these were the many Wars.

Though Subjects may be charged for necessary defence of the Kingdom, yet if Forreign Wars be together with them, it is otherwise; and therefore in the Parliament before they said, such charge belongs not unto them, and there∣fore they hold they ought not to bear it; and so that Rule of Gascoign••, 24 H. 4. fo. 4. that no man shall be charged without Parliament where Bullwarks were built, &c. it proves not, though it implies, that if it had concerned the Kingdom it had been otherwise.

Ob.

The next Objection was, the great incon∣venience that would hereupon ensue; if such a

Charge may be, then none knows what his Charge will be, for the King may command it as often as he pleases; an example hereof they put of Danegelt, that in eleven years grew from 12000 l. to 48000 l. therefore the Law hath provided a∣gainst that incertainty, and limited it to a Par∣liament.

Ans. I answer to this, that if danger encrease again, the King may command all persons when necessity, and as often as he pleases he may do it; is not this as great an inconvenience as in this Case, and yet that abates not the Writ? My Brother Crooke shewed how Subsidies increased, and yet no inconvenience in that he conceived; and indeed, this shews the provision of charge must be according to the danger.

Secondly, No abuse of any thing must take a∣way the true use thereof.

Thirdly, We cannot suspect that there will be such abuse, Ʋbi-considet Deus et Lex, et nos etiam considemus; God and the Law hath trusted his Majesty, and we should not distrust him; in time of ••mminent danger, tempore Belli, any thing, and by any man may be done, Murder cannot be punished; yet says my Brother Crooke, the King cannot charge his Subjects in no case without Parliament, no not when the Kingdom is inva∣ded actually by the Enemy; but truly, I think, as he was the first, so I think he will be the last of that Opinion, especially having delivered that the King is sole Judge of the danger before, as indeed he is; and that the King is sole Judge of the danger, not any have denied it, and therefore else it should be no danger; but when every one should say, you shall judge that the Kingdom is in danger.

Secondly, There hath and may be as great dan∣ger when the Enemy is not discerned, as when in Arms, and on the Land.

In time of War, when the course of Law is stopped, when Judges have no power or place, when the Courts of Justice may send out no Pro∣cess, in this case the King may charge his Sub∣jects; you grant, mark what you grant, when there is such a confusion as no Law, then the King may do it, when there is no Law to do it; da••o uno absurdo in••inita sequuntur.

2. There may be time of War in one part of the Kingdom, and the Courts of Justice may sit, as in 14. H. 3. R. 2. H. 7. time, War was in some parts of the Land, yet the Judges sat at Westminster-Hall.

1. Now whether a danger be to all the King∣dom, or to a part, they are alike perillous, and all ought to be charged.

2. The King may charge the Subjects for the defence of the Land; now the Land and the Sea makes but one entire Kingdom, and there is but one Lord of both, and the King bound to de∣••••nd b••••h.

3. Expectancy of danger I hold is sufficient ••round for the King to charge his Subjects; for if we stay till the danger come, it will then be too late it may be.

4. And his averment of the danger is not tra∣versable, it must be binding, when he perceives, and says there is a danger; as in 88 the Enemy had been upon us, if it had not been foreseen and provided for before it came: But I will not de∣termine the danger now; do we not see our Po∣tent Neighbours, and our Great Enemies here∣••••fore, were they not prepared for War? and was there not another Navy floated upon the Sea? and was not the Dom••n••on of the Sea threatned to be taken away? as long as this dan∣ger remains; I shall bless God for such a King a, will provide for the defence of the Kingdom timely, and rejoyce to see such a Navy as other Nations must vail to, and we are not in case without it, and should loose our glory besides.

Ob. The next Objection of my Brother Crooke was, that there is a means provided by Parlia∣ment which will not withhold Aid for the de∣fence of the Kingdom, and it were a sin to deny it in case of necessity.

And in E. 1. time, E. 2. et 4 E. 3. a Parlia∣ment was to be held every year for the defence of the Kingdom, Et propter ardua Regm.

Ans. I answer, that might well be; but then in the time of E. 1. E. 2. and E. 3. there was Pleas in Parliament, but those are now laid a∣side, and that the Subjects ought to give the King Subsidies, I will not say, that inferring that they will not do it, nor am I apt to believe it; but I hold Parliaments are the excellent means for the defence of the Kingdom, and yet they are not the only means, for then the Parlia∣ment and not the King should be the sole Judge, and have the defence of the Realm▪ or else it should give the King a charge of defence without power and means.

The Objection of the Kings Revenues, Te∣nures and Prerogative, they have been unfitly re∣membred, they have been fully answered.

The Statute of Tunnage and Poundage given to the King, for and towards the defence of the Seas, and the other Acts of Parliament that re∣strain the Kings power, so that now he cannot charge the Subject without his consent in Parlia∣ment, I shall answer in the next place; and be∣fore I come to the particular Acts, I will shew you what in my Opinion they may do.

Acts of Parliament may take away Flowers and Ornaments of the Crown, but not the Crown it self; they cannot bar a Succession, nor can they be Attainted by them, and Acts that bar them of possession are void.

Secondly, No Act of Parliament can bar a King of his Regality, as that no Lands should hold of him, or bar him of the Allegiance of his Subjects, or the Relative on his part, as trust and power to defend his people; therefore Acts of Parliament to take away his Royal Power in the defence of his Kingdoms are void (as my Lord Chief Baron said) they are void, Acts of Parlia∣ment to bind the King not to command the Sub∣jects, their persons and goods, and I say their money too, for no Acts of Parliament makes a∣ny difference: Now to the particular Statutes objected.

First, 25 E. 1. cap. 5. Confirmatio Chartar. The words are these, Aids or Taxes granted to the King shall not be taken for a Custom or Prece∣dent: And cap. 6. Moreover, we have granted for us and our Heirs, that for no business from henceforth we shall take such manner of Aids, Taxes, nor Prizes, due and accustomed; and cap. 7. a Release of Toll upon every Sack of Wooll, and grant that we will not take such things without their common assent and good will, saving to us and our Heirs the Customs granted by the Commons aforesaid.

As to the other Statutes de Tallagio non conce∣dendo, cap. 1. Nullum Tallagium imponetur nisi per commune Concilium Regni nostri, cap. 2, 3, 4, 5. &c.

First, These words must have relation to the Aids before, and there be divers Aids, as some

by Talliage, some by way of Prize upon Goods, and Ransom of his Majesties Person, &c. the King thereupon makes this Grant, which hath relation to such Aids as were granted voluntari∣ly. Secondly, Ancient Aids are there reserved, as redeeming the Kings Body, pur faire fitz Che∣valire, & pur Marrier son file Eigne; and to all other Ancient Aids which are to be understood with an ad redimendum Corpus, &c.

And to the Statute de Tallagio non concedendo, in some Books it is not in print, but mentioned in Magna Charta, Rastel, and Petition of Right, 3 Car. 1628. to be in 24. or 25. E. 1. And there∣fore I answer, first it is not in the Parliament Roll, and there is variance about it; and there∣fore it is but an abstract, and no substantial Sta∣tute.

But since it hath passed for a Statute, and it's possible it may be so, I agree with all the rest of my Brothers, that it is a Statute; and then I an∣swer first, that nullum Tallagium imponetur, &c. that is, no unlawful Talliage shall be imposed up∣on the Subject without his consent, or else Aid pur faire fitz Chevalire et pur Marrier eigne file should not have been excepted.

Secondly, No Aid shall be imposed but by the Contribution of the King and people, and here the King is taxed as well as they.

Thirdly, An Act of Parliament can by no means take it away, much less by those general words.

Ob. In the 14 E. 3. cap. 1. No man from hence∣forth shall be chargeable, but by common con∣sent in Parliament.

Ans. That though it be but Temporary in some parts, yet it is binding only secundum sub∣ject. materiam; and the words are general, as in the other Statute de Tallagio, besides the practice in that Kings time and after, best interpret it.

Ob. 25 E. 3. cap. 8. No finding of Men at Arms, unless by consent, much less finding of Ships.

Ans. This takes not away any former Law; and therefore the Precedents following 4 H. 4. shew, that it reacheth not to this Case.

Ob. 2 H. 4. m. 2. Which is absolute in the point, ••aith my Brother Crooke, where a Commis∣sion went forth for the defence of the Sea, whereof complaint was made in Parliament, with desire that it might be repealed, and it was so.

I am of the contrary Opinion, for the Peti∣tion was that it might be released, and the An∣swer was but this, that it should, but the King would treat with his Councel about it; and it was but a Repeal of his Commission then on∣ly.

Ob. 1 R. 3. cap. 2. Where the King grants that he would not hereafter charge them by Benevo∣lence, or any such Charge, but that they should be dampned by the Law by no such Charge or Imposition; (id est) by no such Charge of Mo∣ney.

Ans. That Statute is only against Benevolen∣ces, and made by a King that had reason, as we all know, to please the people for his own ends.

Ob. The Statute of Tunnage and Poundage granted for the defence of the Sea, the words are, that no Talliage or Aid shall be without Act of Parliament: Secondly, that the King hath means to defend the Realm, with a Prote∣station not to draw it into example, 4 H. 4. 13 H. 4. Parl. Roll. n. 10.

Ans. I will not argue whether Tunnage and Poundage was before this Act of Parliament, nor that time out of mind they were granted to the King; but my Answer is, that they are only for the ordinary defence of the Sea; and the Protestation of 4 H. 4. is a Protestation of the Commons only, and this Charge is not taken a∣way thereby, and Tunnage and Poundage is for and towards the defence of the Sea; so all the Acts are, and so I agree, but for extraordinaries, and but solely, in case of danger of the whole Kingdom, that they should not be granted, can∣not be collected out of these grants.

Ob. The seventh Objection is the Petition of Right, 3 Car. That no Charge shall be imposed upon the Subject, but by Parliament.

Ans. I was then Speaker of the Lower House, and I have reason to remember what then was made; and I say first, that there is no mention of this Case; secondly, there was no new thing granted, but only the Ancient Liberties confirm∣ed, taking notice of the Protestation of the Commons not to bind the King from his Ancient Right.

Thirdly, Look upon the Prayer what is de∣sired, and the main scope was; first, generally against Loan, and this could not be included in these words; secondly, imprisonment without shewing Cause; thirdly, Billeting of Souldiers; fourthly, Marriners lying within the Land.

I have now done with my third general Head, I come to the fourth and last, touching the form and legality of the Writ.

First, For the legality of the Writ, and the Objections touching the necessity, I have answer∣ed before; the main Objection is to the Body of the Writ.

First, The Command to charge the Sheriff to levy and assess Money according to his discreti∣on, which is not legal, for that the Sheriff should make it per Sacramentum by the Oath of a Jury, as in the Writs of Partition, distribution prora∣ta, &c.

Ob. The Assessment of the Sheriff is not war∣ranted * 1.1 by the Precedents, they do it not upon their knowledge, but presumption of mens E∣states; and from thence they speak against the too vast power given to the Sheriff to inhance it as they please.

Secondly, The inconvenience is great hereby; for there is by this means a great inequality in the Assessment.

Ans. I answer first to the Assessment per Sa∣cramentum, no reason why it should be here, for it is not done in the Commissions to levy Subsi∣dies, much less should it be done here for a mat∣ter of great hast; and besides the Sheriff is trust∣ed with more, for he hath the trust of the whole County, and takes an Oath to execute his Office justly, whereof this is one part.

As to that they say there is no Precedent for it; First, I say, That there is no Precedent that it hath been done by Jury, but always by the She∣riff, or such whom the King was pleased to trust; and since one must be trusted, none more fit than he.

Secondly, By example we see he speeds all, and is most ready for it.

Thirdly, I say, the Writ leads not the Assess∣ment, it commands the Ship to be provided; so if that be done there is no necessity of Assess∣ment: And if the Towns and Counties say they

will provide a Ship and do it, the•• no Assessment requisite; but if they do it not, then the Sheriff is to levie it: That the Defence may be season∣able, so as the Clause of the Assessment shews the manner of it; when a Multitude is to joyn, none more sit than he to do it, and no way better than to write to him to do it according to mens Abi∣lities.

Fourthly, The Clause of the Assessment is not only to the Sheriff, but to the Hen•••• Officer of the Town and Borrough: And though the discreti∣on of the Clause be to the Sheriff, yet it appears not that it is limited to him solely.

Obj. And whereas it was said that the Sheriff cannot Assess himself, and the Precedents war∣rant not this Assessment by the Sheriff.

Ans. I answer, All the Precedents are not a∣gainst it, but commonly it is not so, and yet there have been a multitude of Precedents thus.

As to the Inequality of it, Mr. Hampden had the least Cause of any man in England to complain, considering how he was rated.

Again, All that the Writ commands is but an Assessment Juxta facultates suas, ita quod omnes, &c. And if the Sheriff do otherwise & wrong the Sub∣jects, he is answerable: By divers Ancient Prece∣dents it appears, where the Sheriffs have been faulty this way, they have been punished; and Sir Walter Norton's Case now depending in the Star-Chamber concerns this, for thi•• abuse in le∣vying this Charge, being High Sheriff of Lincoln-Shire.

Truly, I think, as my Lord Chief Baron said, If there had not been an inequality by the abuse of the Assesses, the Charge had not been complain∣ed of; yet the like inequality is in Subsidies, and this is no just cause of Execution against it, but of accusation against the Sheriff, who is to answer it.

And I can say truly, that His Majesty hath been very careful to prevent and remedy the abuses therein, and hath often sat daily present in Coun∣cel Chamber to give His Advice herein himself; and upon His Command Reformation hath been in divers parts, and it hath been given in charge to all His Judges in their Circuits to endeavour the same in all parts: And I my self by his Com∣mand have rectified Rates in this kind unequal; and I doubt not, if necessity of danger shall still require it, or again, it may hereafter be done with all Equity.

Obj. Second Objection, That the Sheriff cannot ••ax himself, for then he should be Judge and Par∣ty in one Case; nor can be commit himself, and if he be admitted out of the Assessment, then it cannot be equal, nor cannot be according to the Writ that commands all should be Assessed accor∣ding to their Abilities rateable.

Ans. I answer, This (prima facie) carries some shew in it, but examine Causes of less con••equence, and it is easily answered. The Justices of Peace in levying of Subsidies make Rates for themselves. The Commissioners of Sewers Tax their own Lands; and so if by Jurors it were done it would be the like. There must be either new Assessors appointed, or they themselves must do it: That would bring delay, and this requires haste and expedition, and therefore fittest for this business. Authorities in Law there are divers herein, as the Writ for Levying Expences for Knights of the Shire; Direction is to the Sheriff to do it, who Assesses himself, and yet he is to Execute it. So in a Writ of Recovery, de boni•• habitantium, the She∣riff is chargeable with his part, yet to execute it: If a Fine be laid upon the whole County, he levies it, yet is chargeable with his part towards it.

Obj. The Writ is directed probis hominibus, and these cannot be charged in an Inland County.

Ans. What difference there is inter probos homi∣nes, between Inland Counties and Maritine Coun∣ties, I know not: 24 E. 3. A Writ whereby they were charged in case of necessity, as to Yarmouth it was probis hominibus, &c. True; a Grant by the King probis hominibus, is void, 1 H. 7. Dy. Pl••l. & Mar. 7 E. 4. 14.

But a Commission or Writ to Assess them good enough, probi homines, that they know not, nor see not, it is not material, for that would make them sole Judge of the danger, whenas the King only is, and this not Traversable neither.

The Writ Commands Inland Counties to find a Ship, and Mariners, which is impossible; and lex non cogit ad impossibilia: And for this my Bro∣ther Crooke put the Common Cases, that general Return 49 E. 3. 6. and Impossibilities are void, a Covenant for impossible things is void, but a Bond may be good.

Ans. I answer now to the point of Impossibili∣ty, and possible the Ship may be built in an Inland County, though to carry it to Portsmouth is impos∣sible; but 'tis possible to provide a Ship and Mar∣riners as the Writ commands, which may very well be done with Money.

Obj. But we have none but trained Souldiers, no Mariners; our Country consists in Tillage, and our men are trained up to the Plough and Husbandry.

Ans. I answer, We have the like occasion of Ploughs and Husbandry in Kent, and we have in many places no Maritine Towns, some live 20 Miles from the Sea, and yet we are justly charged to find a Ship: Precedents we have as well as you in Oxford-shire, and Buckingham-shire, or else none should be charged but Port Towns, and in parti∣cular no Law or Statute to exempt them: Until Alfreds time there was no distinction of Maritine or Inland Counties, for then all England was but one Maritine County.

Obj. The payment of Souldiers Wages for 26 weeks to be in the Kings Service, is against many Precedents; as 16 E. 2. 10 E. 3. And intirely for Wages to be paid by the County is against all the Precedents: And Tennants by Knights Ser∣vice after 40 days are to be paid by the King; and other Precedents my Brother Crooke cited, when divers refused to go out of their own County, till paid, and order taken for their pay by the King. And whereas the Counties had given Bond for payment of Souldiers Wages, they were cancel∣led, and Order made in Parliament, that Soul∣diers should be at the Kings pay, 2 E. 3. 16. 18 E. 3. cap. 7. &c.

Ans. These are easily answered, for these Pre∣cedents prove no more than payment of Wages de facto, and so the King may pay it, where it is not due; and for their refusal, I have nothing to do with that now: But 10 E. 3. m. 2. there is mention made of Bark-shire Men, commanded to carry their Souldiers forth of their own County, at their own Costs; and when the Souldiers re∣fused to go thence, no Charge or Payment for Souldiers used to be paid by their County, as in that Case; and they were forced to go and did go, and did stay there three years: So 13 E. 3. m. 8.

Obj. 1 E. 3. m. 14. None compelled to go out of their County without Wages paid. 18 E. 3. m. 6. 7. That none should go out of their Counties; and not only those that had Offices and Patents to serve the King, but all with this proviso, that the King should pay them their Wages.

Ans. 1 E. 3. It is clear, and hath the Exception in case of Necessity, and to be done as in times past.

18 E. 3. It is expressed in the Act when they go to the Kings Wars out of the Kingdom: So 19 H. 7. &c. These are all but declarative to the Common Law, Corbets Case; the reason is, be∣cause the Ligoance of the Subject is not natural but local.

But that the King shall give Wages within his Kingdom, there is no Act of Parliament for it: Now it was resolved in the Exchequer, that the Sea and Land made but one entire Kingdom, and so no going out of the Kingdom here; and conse∣quently the payment of the Souldiers wages with∣in the Kingdom is not against Law.

Obj. The last Objection is, That the Writ is illegal, because contrary to Magna Charta, Nullus liber homo imprisonetur.

Ans. As touching the Objection of the Nobili∣ty, that they are priviledged from Imprisonment, it might well have been spared, and I know not wherefore it was spoken of, unless to make them think they were more interessed than the rest of His Majesties Subjects in this Case.

Obj. But yet I say Noblemen may be impri∣soned upon contempt, as my Brother Crooke knows well; and it was resolved in the Earl of Lincoln's Case in the Star Chamber: It is true that upon Ordinary Process they are not to be brought to Tryal or Imprisoned.

Ans. Now I answer, There is no Imprison∣ment in question, but the Assessment only, Why he should not pay the Money assessed, or to shew cause to the contrary.

Secondly, Were the Writ illegal for Form and Circumstance, yet this makes not the Command it self illegal for substance.

The CERTIORARI.

Exceptions to the Certiorari, are these.

Obj. 1. The Direction of it to two Sheriffs, one out of his Office, whenas the Sheriff being, ought only to return it.

Ans. Of this there is little doubt, nothing more frequent for the Certiorari to issue out of the Chan∣cery to two parties, as to the Executors, or the Judge that took the Fine, and is removed: And so upon Commission to take a Fine by dedimus po∣••estatem, in this Case the Writ is inter brevia re∣tornabilia; and this must remain with the Old Shoriff, and are never delivered over by the Jury to the New Sheriff.

In Hoberts Case in the Kings Bench, being con∣vict of Heresie before Sir Julius Cesar Judge of tho Admiralty, Certificate to him after Master of the Rolls, and directed to him; so in Case of my Lord Paget.

Obj. The Writ is without return, saith my Lord Chief Baron; and the Certiorari, which is a year and all half after, cannot renew it.

Ans. I answer, That shall not be the Deter∣mining of it only; for the time limited expiring, shall not deprive one of his just debt.

It is not sufficient, because it appears not that Mr. Hampden was Tenant or Terretenant, or that Stoake Mandevile was within the County of Buc∣kingham.

Secondly, It appeareth not that there was any Munition or Ship preparing.

I answer, It doth sufficiently appear that Mr. Hampden was Terretenant, for that the Certiorari is to the Sheriff, who certifieth that he was Te∣nant, for it was in pursuance of the Writ; the words are, Virtute brevis Domini Regis buic S••••e∣dul' annex' certifico, quod virtute & secundum exigen∣tiam ipsius, &c. Assessam Anglice, have assessed su∣per separales homines & terrae Tenent••s Comitat. Bucks. praedict' quorum nomina subscribuntur, &c. It relates to the Place there, Tenants in the Coun∣ty of Buckingham, and makes Mr. Hampd••n one; and this in the business of Knightwood was done, and in no other manner.

Obj. Secondly, It appears not that the Ship was prepared.

Ans. To this I answer, That the Ship was done according to the Command of the Writ.

• 2. It was prepared.
• 3. If none had been prepared, the fault was for that they paid not their Money.

For the Exceptions to the Mittimus I say no∣thing, because I told you the case rests not upon these words, Ʋt Salus Regni periclitabatur, and which is only but to bring it to Issue.

The SCIRE FACIAS.

Obj. Exceptions to the Scire fac'; As first, That the King is not intituled to bring the Scir' fac'; so there is a cui oneretur, to whom he should pay the Money, for whose good or benefit Mr. Hampden should satisfie the Money assessed.

Ans. I answer, The King is interessed in all Actions of publick good, and shall recover accor∣dingly: As in cases of Highway, Pontage, Mu∣rage, &c. much more when it is for the general defence of the Realm. 1. In Quare impedit, be∣tween two common persons, though the King be neither Plantiff nor Defendant, yet the King shall recover therein many times: In case of a common Informer the King recovers the one Moyety, though not Party; so it was in the case of Knight∣wood, though no Sute was depending. Again, all Writs in the Kingdom are the Kings Writs, though no Fine; much more here for the Defence of the Realm. And it is usual for the Kings At∣torney to compel men to perform Charitable Uses, and the King may question any one for them, in the Case of Cam. Reginam by Process out of the Exchequer. Again, where it is said, Quare ipse de praedicta summa ipsum assess' & non so∣lut' in Schedul' praedict' specisicat' onerare & inde sa∣tisfac' debeat prout ulterius sibi praeceptum, &c. For thought he Writ be in the Kings Name, yet it is but for the performance of the work and charge; and though it appears not who were Collectors or Assessors, yet it appears it was done.

Upon publick Service Process goes forth in the Kings Name, but it is not then so fit it should be expressed in particular for the King, whenas it is for the general Good only.

Was not the Object. made by my Brother Den∣ham, though none more constantly or chearfully did subscribe to His Majesties Letter: Neither was this Scir▪ fac. without His Advice, being the aptest Course, and better than Trespass: But the Objection that he made was, That the King cannot do any wrong, nor take without Record, as is in Seisure upon Outlary, Attainder, or the

like; and in this case there is no Record upon the VVrit 4 Augusti, no Judgment, &c.

Ans. I answer, This Scir' fac' is not annexed to the Writ, and is a new Action, That Mr. Hampden, Oncretur & inde satisfaciet; and after that Judgment upon the Writ, and upon his say∣ing nothing why revocetur, there shall be a good Record upon which he shall be charged, 3 Queen Elizabeth L. Dyer 156. Ignoramus is sufficient Title for the King, and ground for a Melius in∣quirendum.

Obj. No Scir' fac' lies upon the Tenor of a Writ, 39 H. 6. fo. 34. 21 Eliz. L. Dy. fo. 205.

Ans. I answer, A scir. fac. upon a Recogni∣zance will lie in Chancery, but upon the Record there; yet in a Debt an Action of Debt lies upon the Tenor of a Record, 39 H. 6. the doubt was, because the Party might be subject to a double Execution, one upon the Record there, and ano∣ther upon the Tenor of the Record in another Court, 33 E. 3, Title Tenure by Transcript 8 H. 5. F. H. Error Scir. facias Register fo. 51. Re∣cord was before the Justices of the Kings Bench: The Tenor was out of the Treasury to the Barons of the Exchequer; and it is the usual Order if Re∣cognizance be forfeited to certifie the Tenor of the Recognizance, so of a Fine of Amerciament, &c. to certifie the Transcript thereof: So the Transcript was sent from Ireland upon an Act of Parliament; a Scir' fac' thereupon went against Hebcon Ba••on in England; so in Debt upon the Transcript of a Record from Ireland, a Scir' fac' here went forth.

Obj. Objected it was in the last place by my Lord Chief Baron, that Judgment in this Case would be fruitless, and none should take benefit by it upon this Record; and he puts divers Cases wherein Judgment in such Cases ought not to pass.

Ans. I answer, My Lord Chief Baron with a Judgment of his own in case of Knightwood, re∣solved here in this Court; the Case was this: The King by Writ 5 Januarii, 1 of the Kings Ma∣jesties Reign, commanded the Sheriff of Berk-shire that all that had 40 l. per Annum should be in the Ch••ncery 31 January following, to take upon them the Order of Knightwood: Sir John Darrel Sheriff of Berk-shire made his Return, (as the Sheriff of Buckingham here) All that are not Knights under the Name of Illorum, and sets down their Names; Mittimus thereupon went out of the Chancery, re∣••iting the substance of the former Writ, Vobis Mittimus presentibus, &c. with a Clause to enquire after such as were not returned, and to Fine them; and upon this Writ of Distringas to the Sheriff: My Lord Chief Baron and my Brother Denham know what Judgment was given, wherein I ob∣serve first not the Record, but the Tenor of the Record was sent into the Exchequer, yet return∣able in the Ch••ncery.

2. For the Returning of the Names of the De∣faulters done there as here.

3. Upon the Distringas thereupon was had Ex∣ecution, much more then here, upon the Scir' fac'

4. There was no more Judgment of Record to warrant it, than here in this.

Now I come to conclude, I have been some∣what too bold in taking more time than is usual, but I did it to satisfie my own Heart, according to which I must give my Judgment: what I have o∣mitted, I refer to the rest of my Brethren that went before me, and to my Lord Chief Justice that comes after me. The Reasons I shewed you whereupon I conceive by the Common Law, and Fundamental Policies of this Kingdom, That the King may charge His Subjects for the Defence of this Kingdom, and that the King may charge His Subjects to contribute towards the Defence there∣of, when it is in danger; and I hold that the King is Sole Judge of the Danger, and ought to direct the Means of Defence: And therefore this Writ of Scir' Fac', and all the Proceedings in this Case, are well grounded according to Law. My Opi∣nion therefore is, that Mr. Hampden shall be char∣ged with the 20 s. Assessed, and that my Lord Chief Baron ought to give Judgment accord∣ingly.

Finis Argumenti Sir John Finch.

Notes

• * 1.1

  Per Ch. Baron. & Crooke.