must attend their prayers. And Judges must press and enforce the laws upon the subjects to compel them to contribute. all the judges is required herein; many days have been spent in the arguing of this case, as it well deserves; six days by the defendant, and six days on the king's side. It is some labour, in a case of this extent, to contract myself, according to my conscience and best knowledge: I shall seriously ponder the weight of this case, and digest it, as by the law is warrantable, and so grounding my judg And so I have done at this time: and what I have said, I have spoken to the best of my understanding, and in discharge of my conscience in a case of salus reipublicæ.-And it being high time now for me to give over, I conclude upon all my reasons and authorities cited, That as this case is upon the pleading of it, the chargement accordingly. And the judgment which I of 20s. imposed on Mr. Hampden, towards the provision of a ship, commanded by the writ of 4 Aug. 11 Car. regis, is consonant to law, and consequently, that Judgment ought to be given against him, Quod oneretur. The OPINION of Sir GEORGE VERNON, shall give, in fine, is, That Mr. Hampden ought to be charged with this 20s. and is to give satisfaction for the same. My lord Coke saith of a short case in his 11th Report, that though it be as short a case as ever was argued, yet the T ghtiest in any court for consequence: so it but 20s. but the weight thereof is of far greater 1ay be affirmed of this question, for the sum is extent: it concerneth the whole kingdom. Mr. Hampden hath demurred, and thereby hath granted all matters of fact to be true. The defendant's counsel have taken much pains for their client; and, without flattery, so have the king's counsel.-I acknowledge the laying of a charge upon the people by parliament is a safe way, if time and occasion will permit. Anno 1588, when the Invincible Armada, so termed, came into England, the provident care for the prevention thereof was out of parliament. Alas! it is not parliaments can keep us safe. Was not that detestable Gunpowder Treason, 3 Jac. devised to have been executed in the parliament time? the wisdom of the parliament did not discover this utter ruin and destruction, that had like to have happened to the king and kingdom, and to the overthrow of religion; but it was the great mercy of God that did it. This kingdom hath been always monarchical: A democratical government was never in this kingdom. In the time of the Britons, 500 years before the birth of our Saviour, when Brute came from Troy into Britain (as one writes) it had a politic and regal government; this is confirmed by the Letter from the Pope to king Lu Whereupon he said, ' Seeing I may not have any further time, I must therefore deliver my Opinion in brief, according as I have conceived it in my conscience to be, which is as follow-cius. And our king hath as much power and eth, viz. That the king, pro bono publico, may charge his subjects, for the safety and defence of the • kingdom, notwithstanding any act of parliaments. 'ment; and that it is warrantable by Gascoigne, 13 Ed. 4, 14. and moreover, that a statute derogatory from the prerogative doth not bind the king; and the king may dispense with any law in cases of necessity, 2 Hen. 7, 11.-And so concluded for the king. prerogative belonging to him, as any prince in Christendom hath. It is the king's prerogative to appoint the beginning and ending of parliaSo great a body can move but slowly. A great part of the seven months would be spent, or the parliament ended; and then we were but to begin to rig and trim our ships, to provide powder, shot, cables, &c. many of these, perhaps, to be had in foreign parts; masters and gunners, &c. to be got: ready money must be had for the providing of all these; this will require convenient time before this can be done. What hazard may the kingdom ron all this while? what policy is there to make state affairs known to the people? They may thank themselves, they would not make a ship for the service, and then they might have had it for their own use afterwards. When the kingdom is in danger, the king may command a supply for prevention thereof; and who can tell better than the king how to prevent the danger? Ne'cessitas non habet legem.' The king then must not forbear. The common law doth regard the common good above particular; as in pontage, murage and paveage. The provision of shipping hath prevented us from danger hitherto, and I hope it will stil. It hath increased the honour of the kingdom. It is known not only to ourselves, but to other princes, that our ships are of far greater burthen, strength, and better furnished, than ever was before. All which redoundeth to the king and kingdom's honour. The ship, called the Sovereign of the Sea, may be termed, the Sovereign of all Ships. To conclude: the sum assessed for this usiness, I wish it may be paid by all chearfully, for it is for a general good, for the safety of the whole kingdom: the subjects are not prejudiced by it, either in their dignities, or properties in their goods: the king's prerogatives protect the peoples liberties, and the subjects liberty the king's prerogative: it is proper for kings to command and subjects to obey. We that are the judges of the kingdom have paid it, and therefore it is fit our opinions concur with our actions in this case. And so my advice is, that Judgment ought to be given that Mr. Hampden ought to be charged with the 20s. assessed on him. The ARGUMENT of Sir GEORGE CROOKE, kt. one of the Justices of his Majesty's Court of King's Bench at Westminster, in the Exchequer-Chamber, in the great Case of SHIP-MONEY. This case of Mr. Hampden's stands upon record, and what judgment may be upon this record is the question. I find no party in this case but Mr. Hampden. A Scir' Fac' is brought against him, to shew cause why he should not be charged with the 20s. assessed upon him, towards the finding of a ship. The occasion of that was the writ of 4 Aug. which is the foundation of all; and that is directed to the sheriff of Bucks, as to other sheriffs, to prepare a ship of such a burthen, for the reasons mentioned in the writ,Quia prædones, &c.' because the kingdom is infested with pirates, &c. Quod datum est nobis intelligi, &c.' for that they do seek to draw men into captivity; and also lest we should lose the dominion of the sea; and for these reasons these writs are sent forth. For the time that they were to continue abroad, it is twenty-six weeks, so long the payment of the men to be at their charge; et quos rebelles, &c.' and if any do rebel, that they should be imprisoned. And so the record setteth forth further, that upon this writ a Certiorari went forth, and Mr. Hampden was certified not to have paid it.-Now upon all Mr. Hampden hath demanded Oyer of all the writs, and hath demurred. I must confess, this cause is a very great cause, and the greatest cause that ever came in question before any judges. And for my own part, I am sorry it should come in question in this place, more requisite it was to have it de bated in a public assembly of the whole state; for on the one side, it concerns the king in his prerogative and power royal; and on the other side, the subject, in his lands, goods, and liberty, in all that he hath, besides his life. For my own part, I am sorry that I am enforced to dissent from my brothers that have argued before me a fitter course it were for me to have argued with them privately, who have argued so learnedly: and well. I have studied all that I could to have concurred with them; but speaking, according to my own heart, (for we are to give judgment upon our oaths) in respect of my reason and conscience, I cannot concur with them; it makes me at a stand with myself, because of the arguments of so many learned men before me, and to suspect my judgment, whether it be erroneous or no. Yet I must set down my own reasons, and upon them leave them to my lords that come after me to judge on. Judgment is of the Lord; the hearts of men, and also their judgments, are in the hands of God; and when judgment is once past, we have done. For my own part, I know in this case we cannot do so well as we should, but to satisfy ourselves in our consciences and our understandings; and in this case we are to give counsel to the king according to our oaths, whether this charge be legal or not. If legal, the subject ought not to complain: if not legal, then not in the king's power thus to charge the subject.-The king's counsel have maintained this writ to be good; and the judges that have argued, in their judgments have maintained it. Then the king is advised by his judges, Whether this be legal or no? If legal, it is well; if not, then the burden lies upon us. For the king doth nothing but what he is advised.-The case hath been excellently, learnedly, and well argued on both sides; for that which was pressed by counsel on either side, did not much move, for they argue as counsel: and we are to give judgment upon our oaths, on what they have said. But the judges opinions already delivered do much trouble me. When I have been of counsel, I have argued one way, and have thought myself very clear; when I have come as a judge, and argued, I have thought clear otherwise of the case. I desire to give judgment in this case according to God's direction, and my own conscience, and that is the best. And so I do not doubt but all my brothers have gone according to their conscience, which makes me suspect myself. But every_man standeth or falleth to his own master. I desire God to guide me to a true judgment; and though, for the reasons aforesaid, I doubt myself, yet I am not of the same opinion with my brothers: but according to my conscience, I think that Judgment ought to be given for the Defendant; for which my argument shall stand upon these points. 1. I hold that this writ is not allowable by the common law, but is a writ absolutely against the common law. 2. Admit it was concilium.' And that was a law not given by the Conqueror, but allowed by him, as to be the law of the kingdom. good at common law, yet it is against divers statutes. 3. I hold, that no necessity, nor no pretence of danger, can give this cause for the writ: for if the writ be against the common law, no pretence of danger can warrant it. 4. There is no warranty by prerogative of the crown, nor power royal, for this writ. 5. That this writ is the first writ that ever was devised in this kind, and first put in practice, either in inland counties or maritime parts. 6. That there is not any one precedent, nor any one record judicial, or judgment in point of law, for the writ; if not, then I hold it not fit to be main-power, not only royal but also politic.' If tained. I come now to the writ itself. 1. I hold the motives of this writ to be insufficient to warrant the same. 2. The commands of the writ are merely against the law; bccause the commands of the writ are, to charge the subject to find a ship with men, munition, &c. against the words of the common and statute law. 3. If they were, yet the assessments of the writ are not warrantable by the law, and so no assessment: and if no good writ, then the Scir' Fac' will not lie. 4. I come to the Certiorari: and whether it be well-grounded, or no, is the question. And I bold, it doth not well issue, as this case is. 1. For the point of law. We that are judges are bound, according to the law, not according to our own imaginations, both to judge according to the law, and the law of this land, either of the common law or of the statute-law: and I see no book, nor know of any authority that doth maintain this writ; but contrariwise, there are books and authorities in law, that say, this writ ought not to be maintained. It is a rule in Littleton, that 'That which was never 'done before, cannot now be done.' I say, there cannot be produced an example of the Jike writ, I mean the writ 4 Aug. 11 Car. that ever went unto the whole kingdom, to make ships, &c. nor unto all the maritime counties, at one time; but it is the first precedent, either for inland counties, or maritime parts; and if no precedent before, then not by the law to be maintained. 2. It is against the common law of the land, which gives a man a freedom and property in his goods and estate, that it cannot be taken from him, but by his consent in specie, as in parliament, or by his particular assent: for the law puts a difference between a freeman and bondman. A bondman's goods may be taken without his consent; but not so of a freeman. Then thus stands the case, and the question ariseth, Whether this writ to command the subjects in any inland county, to prepare a ship, and provide men, munition, &c. went out by their consent? And whether allowable or no, if without their consent, for this is a charge upon the subject. And I say, no common charge upon the subject ought to be but by a common consent, or in a parliamentary course. Mr. Lambert saith, that in the Conqueror's time the king could charge the subject with no unjust taxation, nor tailage, sed per commune In the Charta in king John's time, it is plain, the liberty of the subject is there confirmed, Nullum scutagium, nullum auxilium nisi per commune concilium.' It appeareth plainly by the books, that this cannot be done but by consent in parliament. Fortescue chief justice setteth down what the law of England is in that kind, as instructions for the young prince. Saith he, The king governeth his people by this power over them were royal only, then he might change the laws of his realm, and charge his subjects with taillage, and other burdens, without their consent. Thus the king can change no laws, nor yet charge them with strange impositions against their wills. He setteth down, as the head is the chief of the body, so the king is the head of his people: He cannot take any thing from them, without their ordinary consent; the common consent it is in parliament. Cap. 3, an express clause there, hoc individuo. Shew me any book of law against this, That the king shall take no man's goods, but he shall pay for it, though it be for his own provision; or lay any burden upon his subjects, but he must do it by their consent in parliament. If this be the privilege of the subject, then it is express, the subjects ought not to have this charge imposed upon them, but by their common consent. Though it be said, a statute is the act of the king, the lords and the commons only give their con sents; I say, it is the act and grant of the commons, as well as of the lords; for what consent is given there, is given by every man of the kingdom, by the power of the voice which they gave in chusing the knights of the shires and burgesses. There is a book case 13 Hen. 4, fol. 14, expressly, That no man shall be charged without his consent in parliament. Gascoigne, chief justice, gave it as a rule. Coke's Reports, Clark's case, No man to be charged in St. Albans, but with their consent.—In the Chamberlain of London's case, to put a small sum upon a merchandize, &c. when it is for the good and benefit of the people, is a thing to be allowed through a common ordinance to be good, so they have no loss by it; as in case of murage, pontage, paveage, and tolls of markets: Taxes upon the people for these are allowed, because they are matters for use of the people, and are not as a matter of charge imposed upon the people. Fitz. Herb. Na. Br. The king hath the government of the whole kingdom, both in time of war and peace. None will deny but that he may command, that no man can doubt of; and therefore in that kind, in point of inundation, the king, by his writ, commandeth, That that shall be stopped, and be done by those that have benefit or loss by the inundation; and those only are to be charged, as come unto Kent: If an inundation be in Kent marshes, shall the county of Middlesex be charged there with? No; but those that have profit by it, or have loss by it. Vid. the 10th Report. Then here standeth the case; if that be so, the question is not now, Whether a common charge may be levied upon the subject, without consent: No question but a common charge may, if occasion, and every man ought to obey it. Another reason why the common law looketh into it is, because of the inconveniences that might insue, if this should be allowed. To charge one ship, by the same reason there might be ten ships charged. We have a pious king, and though he will not do it, yet the law looketh into this inconvenience. That of Danegelt began in the year 991. The first composition was 10,000/; the second 16,000!; the next 24,000!; the next 36,000/; and in 10 or 11 years, by five several risings, it came to 48,000l. And so, for aught that I do know, this may come to forty hundred thousand pounds. Therefore the law looketh to make certain the charges. The first double subsidy that ever was, was 31 Eliz. and the Chancellor of the Exchequer said, it did make his heart to quake to move for a double subsidy, one subsidy being granted so lately. The reason of it was, because the Spanish invasion was foreseen.After the Spanish invasion was past, then came the second grant of a double subsidy; and be said, he hoped not to live to see a subsidy granted again. 33 and 39 Eliz. it came to three subsidies, and four subsidies, but if there had been ten subsidies, what was done, was done by parliament; and the law alloweth it because of the greater inconvenience. Then it is in the judgment of the parliament for the appointing of those subsidies, as the occasion requires. But the question is, Whether, upon the allegations in this writ, there shall be a charge to impose inney upon them in the mean time, without their assent? I say not, but by a parliamentary course: in that kind the common law doth not allow it. A notable case in 14 E. 2, Banc. R. rot. 60. Heb and Lever's case in Durham. An action of trespass was brought against Lever for taking away the chest of Heb's, with goods and money in it, he pleaded not guilty; the jury gave a special verdict, That the defendant took the money; but it was upon this occasion: The Scots had invaded Durham, and burnt divers houses about Durhain; upon which the inhabitants of Durham assembled together to consult about their defence; and took an oath to obey the ordinance to be made by consent amongst them; whereof the plaintiff was one that swore, and gave his consent. Whereupon they made an order to give the Scots a sum of money to depart, but they would not be gone without ready money; whereupon they made a second ordinance, That every man's house should be searched, and where they found money, to take it: Thereupon the defendant took the money out of the plaintiff's house. The judges asked the jury, if this last order was done with the plaintiff's consent. They said it was done by reason of the occasion. Thereupon judgment was given for the plaintiff: That because it was not with his con-casion, be unprovided; because it is reason sent, that therefore they ought not to be charged. It came into the King's Bench, and they seeing of this special verdict, the judges of the King's Bench reversed the judgment; for why? What was done, was done by his own consent and proper act, because of his consent upon his oath; and therefore (said the judges) he had means to help himself against the commonality of Durham, and they to pay him again to his proportionable part. This proveth, That no man ought to part with his goods, but with his consent. The statutes of Tonnage and Poundage, as appears by all the statutes made in Rich. 2, and continued till Hen. 4, 5, 6, 7, and so downwards to king James's time, are to the end the king might have money in his coffers for the defence of the realm, and for the safe-guard of the sea, that he might not, upon a sudden oc and fitting that kings should ever have money ready against any occasion. But now it is not granted, yet it is taken, the same profit is made still and I do not doubt but the king doth imploy it for the defence of the kingdom, and safeguard of the sea. The difference between a charge and defence is much; for the first there is no law to compel the subject unto it, but by parliament: for the second, which is the defence, every man's person is bound in defence, exponere se et vitam ipsam,' upon peril thereof; but he is not bound to any charge without his consent. So in this kind Í hold, as the law standeth, that no charge ought to be imposed, but by their common consent; for you will make it all one to take away the property of the goods, which you do quodam moda, though not in specie. Power is given to distrain the goods, and to sell them; and every man is liable to the discretion of the sheriff. ་ That of Rich. 2, which is not a statute, yet doth shew, that the law was at that time, as it is the same at this day. Advice was taken in a great assembly how to charge the commons: And it was answered, That they could not be charged, but by common consent in parliament. And it was the declaration of Scroope in the parliament-house, That without consent in parliament, the commons ought not to be But admit this charge might be imposed by charged; because the commons have a consent the common law, yet I do conceive it is proin parting with their goods. It is said inhibited by the statute; for I hold, as now my Doctor and Student, That the subject hath such a property in his goods, that no man shall meddle with them, but by his consent; which is the reason they recover damages when they meddle with their goods, not by their consent. brothers the judges have held, that the statute De Tallagio non Concedendo, is a statute, notwithstanding what hath been argued at the bar to the contrary. It is apparent in our printed books; and in one of our books, the express time is mentioned when it should be made, viz. 25 Ed. 1, then it is said to begin. Taillage is an antient aid, and so is, pur file marier,' and 'pur faire fitz chevalier;' but no taillage without a common consent in parliament; so I agree with my brothers, that it is a statute. Next this statute of 25 Ed. 1, which is said to be no statute, the kingdom of England hath ever held it for a buckler for them, that no charge (without common consent) should be laid upon them. And the reason wherefore this statute was made, was in respect of the great taxes imposed on the subject without consent, in time of war. The next is 1 Ric. 3. True, the king was an usurper. Benevolences were granted; but that was no charge, as ours is, and therein the commons claimed their liberties.--Lastly; the concluding law is that of 3 Car. the Petition of Right, that no person shall be taxed without consent of parliament: and when the king was informed of the former statutes how they were; thereupon this statute 3 Car. was made, which reciteth the statute De Tallagio, and divers other statutes; and it was referred to my lords the judges (most whereof are here) whether this law doth give more than formerly from the The next statute is 14 Ed. 3, cap. 1. A great subsidy was then granted. What was then done? The king doth grant for him and his heirs not to put them to any charge hereafter, unless it be by common consent in parliament.-king. And we were all of opinion, that this Oh! but this is but for that king himself alone! -I answer, it is perpetual. If the king doth grant for him and his heirs, it doth go to all his posterity, and is a good act of parliament; so that is the second act of parliament in the negative, that no charge shall be laid on the subject, but by common consent in parliament. That which is stood upon by my brothers, is 21 Ed. 3. That statute was made to grant a subsidy upon every sack of wool; and also taxes upon merchants goods transported, 6d. in the pound. This statute thus made, the king afterwards, because few of the sacks of wool were carried over before Michaelmas, sent forth a proclamation, that 6d. in the pound should continue till Easter, and no longer but half a year after this was complained of to the king, and the king (by proclamation out of parliament) did take away the 6d. in the pound. 22 Ed. 3, in the February then next following, an express act of parliament (this subsidy so granted) to continue till Michaelmas, and by proclamation to continue, till Easter.-They confirm all till Easter, and no further continuance of it to be.-By this appeareth, that for so small a thing as 6d. in the pound for such a time as from Michaelmas to Easter, that it was a charge not to be borne but by consent in parliament. 4 Hen. 4, m. 28. A subsidy granted, that this should not be drawn into example to charge the people, but by common consent, and that in parliament.-13 Hen. 4, m. 10. There it is said, where a subsidy is granted, it shall not be granted henceforward for defence of the kingdom, or safeguard of the sea, but in parliament. Then came a parliament. What did they complain of? The patent or the office of Alnerage, though it was but a small charge, yet they set down that this was contrary to the law, that no taxes, nor no aid should be imposed on the people, without consent in parliament: the commons were then very zealous in small matters. 2 Hen. 4, m. 22. Hoc individuo. At that time a commission went forth to divers towns in the kingdom, to provide, &c. When there law did give no more than what was formerly, and was only but a reviving of the ancient privileges of the subject; it added no more, but only revived what was formerly granted. I do conclude, that no charge can be imposed upon the commons, without their consent in parliament. We that are judges, must go according to the intention and meaning of those laws. The meaning of the laws in this kind was, that no manner of charge, aid, or tax should be laid upon the subject, but by consent in parliament. The judges are to expound them according to their intention. But they say, the practice hath been otherwise. We say not now what de facto, but what de jure was done; and we, as judges, must not allow de facto, sed quid de jure factum fuerit.' To answer the great objection, it is for the defence of the kingdom: here is such a necessity and danger, as will not admit the delay of a parliament.-I hold, for my part, that no necessity nor danger can allow a charge, which is a breach of the laws. I hold it absolutely, that for a general charge of money upon the people, it cannot be upon any pretence of danger or necessity. Mens persons may be used in the case of necessity or danger; for every man is bound to defend the kingdom, but no necessity can procure this charge without a parliament. The law provideth a remedy, in case of necessity and danger; for then the king may cominand his subjects, without parliament, to defend the kingdom. How? By all men of arms whatsoever, for the land; and by all ships whatsoever, for the sea, which he may take from all parts of the kingdom and join them with his own navy; which hath been the practice of all former kings: in their necessity they have taken ships from all parts of the kingdom. 10 Ed. 3, m. 2, Scot. 10 Ed. 3, m. 16, when there was a great navy of Scots and French appeared, and intended to come and invade the kingdom, the king appointed two admirals, one towards the North, the other towards the West, and to meet together at what place he pleased; and m. 16, sent into North-Wales and SouthWales to maintain one ship, either of them |