the kingdom; commanding them to proclaim in all parts in their counties, That all men between sixteen and sixty, should put themselves into arms, competent according to their degrees and qualities, to be ready upon two days warning at any time, to defend the kingdom. The like writs were then directed to the sheriffs of Lincoln, York and Lancaster. Claus, 1 Heu. 4, m. 12. A writ to the archbishop of Canterbury: "Satis informati estis qualiter inimici mei Franciæ et alii sibi adhærentes, cum magna classe navium, cum 'magna multitudine armator' super mare congregator' diversas villas per costerum regn' 'mei invadere, et nos et regnum meum destruere, et ecclesiam Anglicanam subvertere intendunt et proponunt;' thereupon commands, That the clergy in that diocess be arrayed and armed, and to be ready to go against the enemy. The like writs to all other bishops in England. Nota, Although this great danger be mentioned, yet no command to prepare ships. Pat. 5 Hen. 4, part 2, m. 28. A commission to Thomas de Morley, and others, and to the sheriffs of Norfolk and Suffolk, and to the bailiffs of Great Yarmouth, reciting, Quod 'cum inimici Franciæ, Scotiæ, et alii sibi ad'hærentes se obligat' magna potentia armat' super mare in æstat' proxim' futur' ordinaver' ' et intendunt reg' invadere,' &c. Command to survey the town of Yarmouth, and fortify it. Nota, Here also, though such great danger and distance of time, yet no writs issued to any counties to prepare ships. 6 Pat. 3 Hen. 5, part 2, m. 37. A cominission to array all men at arms in the West Riding in Yorkshire, to be ready to defend those parts.-The like commissions to others, in nineteen other several counties. Pat. 13 Hen. 6, m. 10, Pat. 39 Hen, 6, m. 11. Pat. 39 Hen. 6, m. 12. Pat. 39 Hen. 6, m. 1. Commissions for arraying of men for the defence of the kingdom, if invasion shall be; and for repressing of rebels. Pat. 10 Ed. 4, m. 12. Commissions to Geo. duke of Clarence, et al' to array men for de fence. Pat. 10 Ed. 4, m. 13. A commission to John lord Howard, to be captain of all the forces. Pat. 49 Hen. 6, m. 22. A commission to marquess Mountague, to array and put in arms all men beyond Trent. Pat. 1 Ilen. 7, part 1. A commission to Richard Fitz-Hugh, and others, and to the sheriff of Yorkshire, to array and cause to be armed, all able persons, abbots and others, to be ready to defend the kingdom. 1 Hen. 7, part 1. A writ to the sheriffs of Norfolk and Suffolk, to proclaim in all parts in those counties, for that there was likely to be open war between Charles king of France and the king of the Romans, and great navies are prepared on either side; commands. That watch and ward be kept, and beacons kept to | give warning; and that every man be ready, if need be, to come and defend the kingdom. 4 Hen. 8, part 2. A writ to the sheriff of Kent, commanding him to proclaim in that county, That the king being certainly informed, that the French king had prepared a great and strong navy, furnished with men of war, to invade the kingdom; therctore commandeth all men between the age of sixteen and sixty, to put themselves in arms, to be ready to defend the kingdom at an hour's warning. 11 Eliz. Commissioners went to take a view of all the horses in England fit for service, and to survey all the arms, to have them all put in readiness, as necessity should require. Now it appeareth upon view and examination of all these Records, most of them being cited by Mr. Solicitor and Mr. Attorney, in their several arguments, there are none of them to prove the sending of any such writs to inland or maritime counties to prepare ships; although there have been many times great danger; nor yet any writs to maritime towns, after the sta tute of 14 Ed. 3, to charge them to find any ships at their charges. So then I conclude this point, That I conceive this writ is not warranted by any former precedent. Now I come to examine the point of this writ, Whether the same be legal and warranted by any former precedent: and I conceive it is not. 1. The motives mentioned in the writ are, 'Quia datum est nobis intelligi,' which is no certain information: Quod quidam pra dones' et maris grassatores,' did take the king's subjects, merchants, and others, and carried them into miserable captivity. Cumque ipsos con spicimus navig' indies præparantes ad mercatores nostros molestand' et reg' nost' gravan'dum.'-All these, and those following, I conceive are not sufficient motives, and were never in any precedent before to have a royal navy prepared. For the former precedents are, that great princes in open time of hostility had provided great navies with ammunition and soldiery, with intent to invade the kingdom, as appeareth by the former precedents: and against such provisions it was necessary to provide the royal navy, the king's ships, and all the ships of the kingdom, to be gathered together to withstand them. But to make such preparations against pirates, it was never put in any writ before; for when pirates infested the seas, they came as it were by stealth, to rob and to do mischief; and they never dared appear but when they may do mischief, and escape away by their swiftness. But against them, the usual course hath been, that the admiral or his deputy with some few ships have secured the coast, and not to employ the whole navy. And this appeareth by a record, 25 Ed. 1, m. 9, William Leighbourn the admiral was appointed upon such an occasion with ten ships to lie upon the seas, for the safeguard of the mer. chants: and the usual practice hath been, when they hover upon the sea, by sending a few ships of war to scatter them, and make them fly away. And there is no fear of the loss of the dominion of the sea, by any act pirates can do; neither is it convenient that every county of the kingdom should provide ships against them. 2. The command of this writ is to provide a ship of 450 tons at the charges of the county, furnished with masters and mariners; which is impossible for them to do for the reasons before alledged, and therefore is illegal, and not warrantable by any former precedent. 3. The command of this writ to find wages for soldiery for 26 weeks after they came to Portsmouth, when they are out of their county, and in the king's service, is illegal; being against the course of precedents in divers times, and against divers express statutes, and this appeareth by divers records. 15 Johan. In the writs of summons of the tenants by knights service, it is expressly mentioned, that after forty days service, for so many days they were to do service by their tenure, they should be satisfied ad denarios regis. But to clear all doubts, the express statute of 18 Edw. 3, cap. 7, is, That no men of arms, hobbellers and archers, chosen to go in the king's service out of England, shall be in the king's wages from the time they go out of the counties where they were chosen, until they come again. 19 Hen. 7, cap. 1. Those that had any grants of lands from the king; and 11 Hen. 7, cap. 1, those that had any offices of the grant of the king, are to serve the king in his wars: but in both it is appointed, they shall have wages from the time they shall come from their houses, until they return. 2 & 3 Edw. 6, cap. 2. It is narrated, That no captain receiving soldiers serving by sea or land, shall receive any wages for more soldiers, or more time than they shall serve; and shall enter the days of their entering into wages, upon pain, &c. All which records and statutes do prove, that the soldiers should be at the king's wages; therefore the command for soldiers wages for twenty-six weeks, when they go from Portsmouth, is illegal, and expressly against these statutes and so the assessment being entire, as well for the wages, as the other charges, I hold it to be clearly illegal, and not to be de Pasch. 26 Edw. 1. Amongst the writs of the exchequer it is there set down, that the footmen of Cheshire being 1000, who were appointed to go for the defence of the borders of Scotland, would not stir out of their counties with-manded. out wages; and there it is set down, that one therein named was sent down with money to pay the said footmen. Mich. 26 Ed. 1, inter Brin' irrot' in the exchequer, by reason of the invasion of the Scots, many thousands of soldiers were taken from divers parts of the kingdom ad vadia regis. And there it is mentioned, that clerks were sent down with money to pay the soldiers of several counties their wages. 30 Edw. 1. 1n the exchequer in account, the wages for land soldiers for several counties, and the wages for mariners, are set down, what the wages that were paid came to by the day, and by the week, both by sea and by land. Trin' 31 Ed. 1, inter Brevia in the exchequer, the wardens of the marches of Scotland signified to the barons, that the men of Cumberland and Westmoreland, appointed for the defence of the marches, would not stir out of their counties without wages; whereupon order was given for wages for them. 19 Edw. 2. Commissions went out to pay soldiers, who served out of the several counties, for defence against Scotland. Hil' 2 Edw. 3, rot. 16. In the exchequer; it was ordered in parliament, That whereas some soldiers had received of some of the king's officers, money for their wages, they were fain to give bonds for repayment, and that those bonds should be all-redelivered. 1 Edw. 3, cap. 5. That no man shall be compelled to go out of his county, but where necessity required by sudden coming of strange enemies into the county; and then shall be done, as hath been done in times past: which, I conceive, is to be at the king's wages, when any are out of their counties. 4. That the command of this writ to the sheriff, to assess men at his own discretion, is not legal, nor warranted by the precedents: for the precedents are commonly, that assessments for contribution, for making or setting out of ships, have been by commissioners, which by presumption had knowledge of such matters, as commonly sheriff's have not. Also, this leaveth to the sheriff too great a power to value men's estates, as to inhance whom he will, and to favour whom he will. 5. That the power to the sheriff and mayors of towns, &c. to imprison, especially as it is used, is illegal, and expressly against divers statutes, for it is provided by Mag' Char' cap. 29, Quod nullus capiatur vel imprisonetur, nec super eum mittimus, nisi per judicium parium 'suorum, vel per legem terræ.' Also, 5 Edw. 3, cap. 9, That no man shall be attached, or his goods seized, contrary to the form of Mag' Chart'.-Also, by the statute made 37 Edw. 3, cap. 18, it is recited, That by that Great Charter, none should be taken or imprisoned, but by due process of law; yet by colour of this writ, the sheriff may imprison any person, yea, any peer of the realm: for although peers are not to be arrested upon ordinary pro cess between party and party, as it is resolved in the countess of Rutland's Case, in Coke lib. 6, fol. 32, yet upon contempt, and upon process of contempt, which is always for the king, any peer may be imprisoned, as it is resolved by all the lords, and all the judges, in the StarChamber, in the earl of Lincoln's case: and so the sheriff, by colour of this writ, may arrest any peer, as for a contempt in not paying. But by the book-case, 2 Edw. 3, fol. 2, it is resolved, That a writ to imprison one upon sugges tion, before he be indicted, or without due process of law, was illegal. So for this clause, I hold this writ to be illegal. 6. The last clause of this writ is, That by colour of this writ, no more should be gathered than will be sufficient for the necessary expence of the premises, and that none who shall levy any money towards these contributions, shall detain the same with them, or employ the same to other uses; and if more than did suffice were collected, it should be repaid amongst those that paid, after a rateable proportion. But as the course is taken, it is not to be performed: for no ship, nor tackling, nor ammunition, nor men, nor wages, nor victuals being provided, it is not to be known, whether more be gathered, or less than would suffice: and there being money gathered, it is of necessity either detained with the collector, or the sheriff, or employed to other uses than are appointed by the writ; so the writ is not performed: and the money assessed and collected, is not duly paid nor collected; and the money assessed and unpaid, cannot be duly demanded. 7. Admitting the writs were legal, and the commands therein legal, yet the assessment, as is certified, is not sufficient to charge the defendant; for it is not certified, that any ships with ammunition, and men, were prepared: and this is a year after the time it should have been prepared and sent to Portsmouth. And if it were not prepared, there is no cause to charge the defendant; and that not appearing to be done, it shall be conceived not to be done.-For if one be charged, in consideration of a thing to be done, before a certain time to pay a sum of money, if the thing be not performed according to the time, none can be charged for not payment of the money after the time is past: for it is in nature of a condition precedent, to have a duty or sum of money to be paid after the condition performed; and there, he that will have the duty, must shew that the condition is performed. This appeareth in the case of 15 Hen. 7, and Coke, lib. 7, fol. 9, Ughtred's case. And therefore, if the ships be not prepared according to the writ, nor money employed for preparing a ship for and in the name of the county: then every one that paid any money, either voluntarily as in obedience to the writ, or compulsorily upon distress, may demand their money again of the sheriff, or of them that received it for as they paid their money, so it must be disposed of, and cannot be disposed of otherwise by any command whatsoever, although it be under the great-seal for the command being under the great-seal, to prepare and furnish a ship to such a purpose as in the writ is mentioned, and they paying it to that purpose, it cannot be otherwise disposed, although it be more for their advantage; for private men having interest there in, that cannot be taken from them, nor dispensed withal. Therefore, in Coke, lib. 7, fol. 37, in the Case of Penal Laws, it is resolved, That if the penalty appointed to be forfeited upon a penal statute, be given to the poor of | the parish where the offence is committed, the king cannot dispense with the penalty for that offence, because the poor have an interest therein; but if the penalty be given part to the king, and part to the poor, the king may dispense with his own part, but not with the part of the poor. Object.-And where it hath been said, That it is by way of accommodation, because the country cannot well know how to provide to content, and perhaps with more charge, Respons. To this it is answered, They must do it at their peril, if the writ be legal; and then if it be done, they shall have the beneit thereof. For as my brothers Weston and Berkley have both agreed, if the ship were made when the service was done, the county for which it was made shall have the benefit of the ship, ammunition, and victuals, and of the service of the men, being made more expert against another time; and the ship may with some easy charge serve again, and nothing lost, but the expence of the victuals; and the kingdom shall be so much the more strengthened by having so many ships made or prepared; and they may have account of their money how it was bestowed; and if any surplusage be gathered, to have it restored. And that the law is so, that if the money be received of the county, and not employed accordingly, the party so receiving it, and detaining it, or misemploying it, is to pay a fine to the king for the same, and is accountable for the money, appears by two records. The one in Hill. 16 Edw. 3, rot. 23, B. R. where two soldiers were indicted, for that they taking 37. a-piece towards their arms, and the bringing of them to the place where they were appointed to serve the king in England in his wars, they went not, but tarried still in their houses, and retained the armour and the money which they had received for that purpose. They thereupon being convented, pleaded Not Guilty; and the one was found to go in the service according to the appointment, so he was discharged; and the other was found, that he received the money, and went not to do the service, nor restored the arms nor money; and thereupon he was committed to the prison, and paid to the king a fine, and found sureties to pay the money to the hundred from whom he had received it.-The other was Hill. 20 Ed. 3, rot. 37, B. R. There two high-constables were indicted, for that they, 5 Edw. 3, had received 6 marks of the towns in their hundreds, to set forth soldiers, and had not set them forth, but detained the money; which they denying, it was found that they had received the money for that purpose, and had disbursed 10s. 6d. thereof towards the setting forth of soldiers, but had retained 38s. 6d. and not disbursed it: thereupon they were fined and imprisoned, and afterwards enlarged upon sureties to pay the money they had retained undisbursed, at the next time the king commanded soldiers from those parts. By both which records, being for offences done so long before, it appeareth, that those that have received money of the country to prepare ships, and not employed it accordingly, are answerable to the king and his successors, to pay a fine for mis-employment of it, and are chargeable to those of the county of whom they received it for payment thereof. I say it is a great case; it concerns the king in his royal prerogative, and the subject in his interest, in his land and goods, and liberty of his person. They that have spoken already, and they that shall speak after me, shall hardly escape the censure of the people, of some that have some understanding, of some peradventure that have less, and of some that have none at all, but speak according to their opinions, af per solos artifices judicarenter:' we should be happy to be judged by them that are learned; but when it is by them that understand not, then it is turned into calumny and reproach. 8. For the last point, I conceive, that this Certiorari directed to the two that were late sheriffs at the time of the assessment, and not to the sheriff that was at the time of the Cer-fections, or wills. Fælices essent artifices, si tiorari awarded, who is the only immediate officer to return the writs, is not legal; for it is the first that hath been scen of that kind: for all writs are directed to some immediate sheriff, requiring him to demand of the former sheriffs, what they did upon the former writ; and they are to return to him what hath been done, and he to return the same to the court, whereunto he is an immediate officer; and the former are not any officers. So the Sci' Fa' thereupon grounded, I conceive is not good: Also the Sci' Fa' to warn Mr. Hampdenad ostendendum 'si quid pro se habeat, et quare de prædict' vigint' solid' onerar' non debet,' not shewing to whom, is uncertain, and is insufficient. Thereupon I conclude upon the whole matter, that no Judgment can be given to charge the Defendant.* The ARGUMENT of Sir WILLIAM JONES, knight, 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. In Easter Term there issued forth a Sci' Fac' and this doth rehearse divers sums of money assessed upon divers persons in the county of Bucks, for providing a ship of 450 tons, with men, ammunition, &c. to attend the king's navy for defence of the kingdom. And afterwards upon a Certiorari out of Chancery, directed to the sheriff, to certify those assessments, and the names of those that made default of payment, Mr. Hampden was returned to be assessed at 20s. and hath made default. Upon this return the king by Mittimus out of the Chancery sent the writ, the Certiorari, and the return, to the barons of the Exchequer, to do as the court shall think fit. Thereupon a Sci' Fa' went forth to the sheriff to summon Mr. Hampden to shew cause why he should not pay the 20s. assessed upon him: He was returned warned, and appears and demands Oyer of the several writs and their returns, and of the Sci' Fa': and upon all this he demurreth in law, and Mr. Attorney hath joined in demurrer with him. And my Lord Chief Baron and the rest of the barons have adjourned this hither, to desire the advice of all their brothers of the law; and indeed it requires advice, for it is as great a case as ever came to be advised on before judges. * An abridgment of these Judgments of Croke, in the handwriting of Archbishop Sancroft, is among Tanner's MSS. in the Bodleian Library. Some have taxed them that have gone, or will go with the king, as though they were fearful, and went about to captivate the liberty of the people, and take away their goods. Some are taxed on the other side, if on the contrary, that they are given to popularity: so as I may say as the Psalmist, Domine, me posuisti in lubrico loco;' for it is impossible to escape their tongues, and between those two decks of censure I am like to fall. And however I may fall with my sentence, with God's grace I shall make no shipwreck of my conscience. 6 I am trusted by the king to display his justice equally to all, and sworn to dispense his just prerogative, as well as the subject's liberty; and if we do otherwise than as judges, we do as false men. If any man offend contrary to his oath, he doth forfeit his lands, goods and tenements. I shall not therefore for any respect do against my own conscience; but descend to give judgment, not regarding the watry mouths of others. The king's counsel, and the counsel at the bar, have spoken so largely to this business, and it is spoken to by my brothers so fully, that I can hardly say any thing but what hath been said before; so I will select some few things, to satisfy my own conscience, though I cannot satisfy any man's else; which I will do as plainly as I can, and as I ought to do. And if there had not been a variety of contestation, I should have spoken very little; but now necessity requireth that I must enlarge myself a little more. 1. I will state the question, and in it put many things objected out of doors. The question is, whether the king of England, when he perceiveth danger to be imminent to the kingdom, and a necessity of defence, may not by his writ send to all counties as well inland as maritime, to require them, at the charge of the county, for a convenient time to provide shipping, with men and ammunition, &c. but no money to come to his purse, but the ships to go to defend the kingdom. The question stands not, whether the king may draw it to be a perpetual charge upon the subject, which under favour be cannot; for this goeth upon a fear of danger, which continueth but for a time, and therefore this cannot be perpetual; for when the occasion ceaseth, the taxes must likewise cease. There is a case to this purpose, 39 Hen. 6, fol. 39, Protection. Brooke. A pro tection granted to one for three years, and the question was, whether a good protection: the rule is, the king may grant a protection for one year, and at the year's end, renew it for another year it the occasion require it, and so for a third year; yet he cannot at the beginning give a protection for three years together. So in this case, though the king may, upon an emergent occasion, command ships, yet by reason of that occasion he cannot make it pcrpetual, for the occasion may cease. 2. In this case, I will not exempt the king's majesty himself, to bear a part of the burden; the head and body must go together, he must join with his subjects in the defence of the kingdom. 3. The question is not, whether for a foreign war he may command this charge; it must be only in defence of the kingdom in case of imminent danger. 4. It is not whether the king may lay this to draw a sum of money into his own purse, for the king sends to have no money; but to provide a ship and if the sheriff accordingly provides a ship, there is an end of the business; all this is out of the case. As Catlyn chief-justice compared a fine to Janus Bifrons having two faces, the one looking backwards, the other forwards; so may I of my argument: I shall first look backwards, and tell you quid fecimus, what we have done; and then forwards, and tell you quid faciemus, what we shall do.-The quid fecimus rests in the advice we have given to his majesty in the case, and the opinion of the judges subscribed with their hands delivered over to his majesty, (which was read at large by him.) The advice we gave consists of four assertions. 1. That when the kingdom is in danger, all the kingdom is to join in the charge of defence. -2. What shali be adjudged a danger, and what not, his majesty is the sole judge thereof, and of the means how to prevent and avoid it, -3. That in case of danger he hath power to send to inland counties, as well as to maritime, to assist to defend against invasion. 4. That the king hath a power of compulsion, to punish those who refuse to contribute to this charge. This opinion being jointly and severally delivered by us, declared by my lord keeper in the Star-Chamber, in the presence of us the judges, before the lords of the council, with an intimation as if it were the full consent of all the lords of the council before hand, and there commanded to be inrolled in all the courts at Westminster; yet we so delivered our opinions, that if better reason was shown to alter them, we might recede from them; for we had better recurrere, than male currere, Now to the second point, quid faciemus, whether to stand to this opinion or not, and then whether this book or record will warrant it, and how far it differeth from what we have done, I shall speak my conscience. I am an old man and ready for my grave, my tongue and my heart shall go together. I am of the same opinion I was then; and conceive what we then delivered was according to law; with all modesty submitting to those that have been or shall be of a contrary opinion, for the grounds of law and nature support it. 1. Salus populi est suprema lex. Qui sentit commodum, sentire debet et onus. Quod omnes tangit, ab omnibus debct supportari. What do these rules intimate else, but that when a danger is imminent, the charge must lie upon the whole kingdom), and the burden must be borne by all? And that is not denied by them that were of counsel on the other side. It must not be every kind of fear and rumour that must draw this kind of burden upon the subjects; but such a danger as the king in his understanding perceiveth doth require a speedy defence. 2. That the king is sole judge of this danger, and how to prevent and avoid it, is not to be literally understood, for we are his judges deputed, but our judgment flows from him. Judgment is settled in the king, he is the fountain of justice, from whence all other proceeds. Bracton saith Rex vicarius Dei est in terra sua.' We are judges cumulative, not primitive; so he is the supreme judge. In the parliament the king is the sole judge, the rest are but advisers. 22 Ed. 3, fol. 3. Here it is that the old fashion of penning of statutes was Rex statuit.' 7 Hen. 7. Afterwards it came to be with the advice of the lords and commons. Trin. 6 Hen. 6, rot. 41, Banc. Reg. There was a prior brought a writ of annuity against one in Ireland, there was judgment in the Common-Pleas; then at length a writ of error in parliament; the judgment affirmed; afterwards a writ of error in the King's-Bench here, and both judgments reversed. And in the entry of the judgment the record saith, Nos cum assensu et ad requisition' commu'nitat' do reverse the judgment. Where note, the king is the man that is the sole judge thereof. (By the way observe, out of this record, the power of the king's-Bench in England; for upon this record it appears a writ of error was brought in the King's-bench in England to reverse a writ of error in parliament in Ireland.) This sheweth the king in parliament is the sole judge, the rest but advisers. So, as I said before, he is the only supreme judge of the danger himself, and of the way of prevention, whether by his council or by his parliament. The third assertion is, that the king without parliament, in case of imminent danger, hath power to send to inland and maritime counties to provide ships. And I think he may do so by the fundamental laws, common laws, and statute laws, and by the precedents. First of all, for the common laws, (here I leave the divines to talk of the king's power, who under favour take more liberty than is fitting to say in a pulpit; for he that will have the statute De Tallagio non Concedendo, if it be a statute, to bind the king, such a man is not Cæsar's friend, but speaks without his book) Bracton saith, that by the general law of monarchy, the subject's goods are at the king's plea |