made that the court of wards should be shut | 2 Ed. 3, fol. 7. There ariseth a new ques up, it was resolved it had been a void law; such is the care for the defence of the kingdom, which belongeth inseparably to the crown, as head and supreme protector of the kingdom: So that if an act of parliament should enact that he should not defend the kingdom, or that the king should have no aid from his subjects to defend the kingdom, these acts would not bind, because they would be against natural reason. But in our case here, there is no such thing; for there is no act that restrains the king to lay any charge at all, but only ties him to one means, by which he would come by it, to wit, by parliament. If before the statute a man alien land held of the king without licence, the king shall seize the land, and have it forfeited to him and his heirs for ever. Now by that statute the prerogative is restored to a reasonable fine only; this was as inherent in his person as any thing could be, and yet it is restrained by parliament. Before Mag. Char. the king might take any man's goods for his provision, and cut any man's woods down, to build or repair his castles: yet since that statute it is enacted, Nullus vicecomes nec ballivus noster capiet equos, &c. nisi reddat liberationem. Nec capiemus boscum alien' ad castra vel ad alia agenda no tra, nisi per voluntatem illius cujus 'boscus ille fuerit.' And to this day this statute is of force, that the king cannot take these things, nor use his prerogative.-The prerogative of Nullum tempus occurrit regi,' is a great one; yet in some case of lapse of churches, this prerogative is taken away by the statute of 25 Ed. 3, cap. 1, where the king granteth for him and his heirs, not to present but in his own time: and this being pleaded 11 Hen. 4, fol. 7, is adjudged against the king, notwithstanding the rule of Nullum tempus ' occurrit regi.' tion concerning the statute of Winchester, about recovery by actions against the county where robberies were committed; there the case in respect of the difficulty was referred to the parliament, and there the sheriff was warned to have his money.-You shall see a notable case in the Register fol. 224, among the writs, of two that were at York, and served by a clerk in the Chancery there to appear at Rome; and because of this contempt they were committed to prison, and a writ came to bail them, returnable coram nobis in parliamento: so matters of difficulty were adjourned into parliament. Westminster 2 cap. 28. In nova causa fiat novum remedium in parliamento.' To resolve cases of difficulty, statutes have enacted that there should be two parliaments every year, viz. 4 Ed. 3, c. 4, which was a great confirmation of the liberties of this realm. Littleton 110, 180, parliaments ought to be frequent. I know not how it comes about, that this kingdom which hath thus long flourished by parlia ments, should now forget her frequent kind of government by parliament, whether by reason of something past, or some disaster now fallen out, that this which is the antient way (I do not say that parliaments is the government, but kings have governed by them) is so much out of use now-a-days.-I do not prescribe power to the parliament to govern the reaim, but the public have been governed by the parliament. There was seen too much of the ambitious hu mour of some in the last parliament, that stirred up nothing but confusion and discontentment, as we now feel it to our great prejudice. Now I come to precedents. First, that of Danegelt hath been objected; of which there were two kinds, as sir Henry Spelman in bis Glossary observes; the one ad pacandum, the other ad coercendum Danos; great sums of money they had to go home again, from 12,000l. to 48,000l. per annum; and it was raised in three years: it was continued until king Stephen's time; at which time it is said it was released. For my part, I see not but that The statute of 7 Hen. 8, c. 3, concerning restraint of informations, and that of 21 Jac. whereby the king excludeth himself to make a title to any land, whereof he had not been in possession within 60 years before this time, heit was tied to no time, but unlimited; yet this great prerogative is thus bound. 30 Ed. 3, cap. 10, parliaments to be holden every year one, or oftner if need be, because of divers mischances that may happen. It is to be acknowledged as a gracious favour from his majesty to his subjects, that he would admit of this case to be argued in any ordinary court of justice, and not refer it to the parliament, to which place all such weighty causes are most fit to be referred. I am satisfied in my conscience he would do nothing in this case, if he were justly informed, or may be informed he ought not to do it by law. The laws of England mutari non poterunt, without consent of counsel gathered together: Si inusitatum emerserit,' saith Fortescue (as the case of ours is) it is referred to the next parliament; si aliquid inconsuetum,' then it is to be put to the parliament. might now be put in use as formerly, had it not been for those statutes of Ed. 1, and Ed. 3, before-mentioned: for it was not laid down when the danger ceased, but was continued and taken up by princes when they had a mind to it, as by William the Conqueror, and William Rufus; but since these statutes it was never taken (and here he read the words of the statutes.) So if these statutes took that away, why do they not bind in our case? Which is a full answer, in my opinion, to that and all other precedents before these statutes: there have been shewed 200 on each side; but I say, it had been better they had never made use of them. So to all the precedents made before the statute De Tallagio non Concedendo, I give this general answer, to be of no force. For the precedents in Hen. 3's time, which were many; yet in those commissions for preparing of galleys, after they were made they were at the king's cost: This may be done at this time.--And with the statute of 14 Ed 3, I answer those precedents of the 10, 11, 12 Ed. 3, and by the way observe the times that were then, that statutes were forced to be made to remedy those evils; and surely those were the burdens and unreasonable taxes which the king, in the 13th year of his reign, confessed he had oppressed his subjects with, and desired they might be forgotten, because he was urged to it by his necessities, and not for any ill end of his own, (and so he caused the record itself to be read openly before all the judges.) 2 Hen. 4, 2 Rich 2. A general assembly called and resolved, That money could not be raised but by parliament. Since this time, all the precedents that have been vouched were for arraying men, and putting them in readi ness. 28 Hen. 8. There were some forced upon their own charges to go to suppress some rebels in Lincolnshire, but afterwards were recompensed for their charges; saith the Record, Our pleasure is to send a messenger, and on a bill of charges he shall satisfy them. I do agree, and there are many statutes that men should be arrayed, as the statute of Winchester, which are only preparations to make men ready. Now for that which hath been urged by Mr. Attorney excellently well, that the king by the law of the land, hath a prerogative in the lands and goods of his subjects; so that in some cases, the sheriff may for him break open a man's house, and the like, because otherwise he cannot execute justice.-True, the king hath such a prerogative, and fit it should be used; for otherwise justice could not be administered, as it is in many cases, the sheriff, though a verdict by default, hath power by prerogative of the king to break into the house, and give possession; for otherwise justice could not be administered, if all laws were contemned for which contempt the king may use his power.-Again, the king of his own charge maintains his courts of justice, and is bound so to do, 39 Hen. 6, 34 Hen. 6. And in lieu of these charges the law gives him those fines and other duties; so there is upon the matter a quid pro quo: but where there is an interest in a subject, he cannot take it away without his consent, as he may do it in nurage and pont age, and the like; for there is a particular benefit to the subject. So I think I am almost at an end of answering the first and second part of the precedents; the antient time was one way, and the modern time another way. In Ed. 4, Ric. 3, Hen. 7's times, they are all for wages of the mariners, certain allowances they had; what a week, what a day is set down.--But you say, here in this case appears no money to be paid by the subject, but only for a ship to be provided by the sheriff, and not any money to come into the king's purse.-1 must conclude this part with what is agreed by all, that if this writ had been to levy money, it had been void.—As I do take it, the writ is to prepare a ship of such a burden; so the ship is the matter: then give me leave to say this, and I say, as it appears plainly by the record, there was no ship prepared at all; then if no ship, no writ can be had against him for disobedience. It is known to all the world, it is not ships, but Ship-Money: Ship-Money is in every man's mouth. It hath a name of preparing ships, but the end of it is to prepare money, as in Yorkshire 12,000l.-If the provision of a ship had been expressly alledged, it might have been traversed, and therefore Mr. Hampden's counsel could do nothing but demur; and by demurring, they confessed no-. thing but what is materially and sufficiently alledged, so that it might have been denyed by a traverse. But you will object, that I did subscribe to a contrary opinion, and set my hand unto it.-To this, for my own part, I must say, and I can truly say it, 1. My private opinion was ever against it. I did subscribe, but it was but for conformity; for it is known to all, when a great number meet together, the judgment is that which the greater number saith: besides these words to which we subscribed are no wise pursued. 2. Our opinions were very suddenly required; for the king's letter bears date Feb. 2, and our opinions upon it bear date Feb. 7, following; and it was in a case wherein we never heard any argument: and we usually do, and God forbid but we may dissent from our private opinions upon a better reason heard. But I am of the same opinion now that I was then.—But it will be said, we might have done it more advisedly. No man of us but sometimes delivers his opinion, and yet after we have heard an argument, have changed our opinions, and gone contrary to our former judgment. 3. If after any arguments beard I had been of the same opinion that was delivered, yet this writ doth not pursue the direction thereof; for though we agreed, that the king might charge in case of a general danger, yet this was, and is intended, not a danger of pirates, but an imminent necessity, and apparent danger, which could not be avoided. For I do agree in the time of war, when there is an enemy in the field, the king may take goods from the subject; such a danger, and such a necessity, ought to be in this case, as in case of a fire like to consume all without speedy help, such a danger as tends to the overthrow of the kingdom. Give me leave to say, that kings of England have exercised great power in taking this to themselves. 17 Hen. 8, in the Cardinal's time, it was counted lawful to send forth commissions throughout England, to take a sixth part of the subjects goods; whereupon many upon refusal were sent to prison; the lord Cobham among the rest sent to prison from Huntingdon to London : at length Norfolk and Suffolk grew to such a heat for taking away their goods in that undue manner, that the king was forced to call a great council, who suppressed those kind of writs; and the king laid the fault upon the cardinal; and the cardinal said it was the advice of the king's council, and they denied it; so he bore the shame.-So in the time of queen Elizabeth, who was a gracious and a glorious queen, yet in the end of her reign, whether through covetousness, or by reason of the wars that came upon her, I know not by what counsel, she desired benevolence; the statute of 2 Ric. 2, was pressed, yet it went so far, that by commission aud direction money was gathered in every inn of court; and I myself, for my part, paid 20s. But when the queen was informed by her judges, that this kind of proceeding was against law, she gave directions to pay all such sums, as were collected, back; and so I (as all the rest of our house, and as I think of other houses too) had my 20s. repaid me again: and privy counsellors were sent down to all parts, to tell them that it was for the defence of the realm, and it should be repaid them again. 6 Now for the exceptions to the writ itself, I must answer my brother Berkley, that no allegation afterwards (if the writ be not good) will belp it. The writ is said to contain matter sufficient, Quia datum est nobis intelligi quod quidam piratæ naves et bona subditor' nostror' &c.' and lead our men into miserable captivity, and provide ships, mariners, &c. ad gravandum regnum nostrum.' Now here is nothing for the defence of the realm, no cognos'cimus hostium adventus;' as the writs did antiently run. Again, pirates are to be withstood with ordinary defence, which appertaineth to the king himself; but for extraordinary defence against invasion, when the kingdom is like to be overthrown, there indeed the whole kingdom is to contribute to the defence. And our resolution was, when such a danger was apparent, the whole kingdom in danger, then the defence to be extraordinary. estate so it is in our case, if the writ were Bot legal when it first issued, no subsequent matte shall make it good. The writ commands the sheriff et quos ' rebelles invenerit' to imprison, and to distrain all such as refuse to pay. This is directly against the statute of Mag' Char' none ought to be distrained or imprisoned, but by the lawful judgment of bis peers, and according to the laws of the land; it was never contained in any writ before, nor can any such writ be maintained.-Besides, the words of the writ are to rate every man secundum statum et 'facultates,' shall the sheriff be a judge and party? If the assessment be done according to the writ, he must be judge and party: never such a writ before. All sheriffs must pay nothing themselves, or every sheriff must assess himself, 8 Hen. 6, Dyer 320. So, for the reasons aforesaid, I hold the writ to be against law. Again, no ship was prepared: if it had been prepared, it had been their own goods; if not, it might have been pleaded that there was never a ship; and then the sheriffs might have been punished for not obeying the king's com mands.--It hath been said, he hath confessed all matters contained in the writ; whereas in a demurrer he confesseth no matter of fact, but what is sufficiently set down, 30 Eliz. Coke 23, resolves the same. But to the writ of Sci' Fa' I conceive it not legal; no such writ can go forth to two sheriffs of one county, they being neither of them sheriff at this time; for it went out after they were out of their sheriff-wick: therefore some return should have been made by inquisition. I never did see or hear of any writ that went to two sheriffs of one county, as it was to returns. Again, this money cannot be levied by Sci' Fa', because the writ directs other means, either to distrain or to imprison; therefore not by Sci' Fa', for 'it is contrary to the words of the writ. And secing the sheriff hath not followed that direction, he must answer the contempt. But you object, that though there be no dan-Bucks; and so two sheriffs made two several ger set forth in the writ, yet in the mittimus it is certified, Quod salus regni periclitabatur.' -The writ issued 4 Aug. 11 Car. the mittimus came not out till near two years after: now the counsel perceiving the first writ was not sufficient, they politicly add to the mittimus this clause of salus regni periclitabatur:' so this coming so long after, cannot make that which was not legal ab initio, to become good by matter er post factum; this could not be helped by any subsequent matter, as in case of a fine, &c.-This was much stood upon by my brother Berkley; but I shall answer him with two cases not to be denyed: the first, Vernon's Case in the 4th Report. A man conveys land to the use of himself for life, the remainder to I. S. for life, the remainder to his wife for her jointure, though in this case I. S. die before her husband, so that now it falls out to be as advantageous to the wife, as if it had been limited her immediately after the death of the husband: yet it is resolved, because it is not so limited in the beginning, no good jointure to bar her of her claim to her dower. Also in Chenie's Case, 5 Report. A will uncertain (and so not good) shall not be holpen by an after-averment subsequent to alter the But here to answer my brother Trevor; I da agree in some cases of a certificate, or presentment, that a bridge was out of repair, or a high-way stopt, there shall go a Sci' Fa' upon that; but that tells to whom the money shall be paid. But here the writ doth not demand the money to be paid to the king for not preparing a ship; that must be by office or inquisition on record, if a legal certificate, as it is 2 Ed. 3, fol. 2. The king commands the sheriff of Leicester to summon I. S. &c. to come and meet him with aid, to go into Scotland; he spent the money to a great value: there went a writ out of the exchequer to attach this man yet after long debates it was held fit, the king must be informed by matter of record. I agree, that the king, as he is lord of the sea, may lay impositions; but then he ought to defend the merchants goods from pirates. That judgment on record, (according to our daily experience in the exchequer) there must precede some judginent in that or some other court of record, whereby his majesty may be intitled either to the lands or goods of a subject, as namely where seizure of goods is made for his majesty either upon outlawries, attainders, or matters of the like nature; as in cases of seizures in the court of Exchequer, where seizures are given by statutes; yet without a judgment in that court upon a trial for the king, the goods are not to be recovered to the use of the famous Case of Mich' 4 Jac. in which case I The OPINION of Sir JOHN DENHAM, knt. one of the Barons of his Majesty's Court of Exchequer, in the great Case of SHIPMONEY, presented in Writing. May it please your Lordship; I had provided myself to have made a short argument, and to have delivered my opinion, with my reasons: but by reason of want of rest the last night, (my old disease being upon me) my sickness and weakness are greatly increased, insomuch that I cannot attend the business, as I desired. And if my Opinion be required, it is for the Plaintiff. Upon consideration whereof, and comparing the same with his majesty's royal writ, I find no judgment thereupon had nor given; which were the chiefest reasons of my Opinion for Mr. Hampden. The ARGUMENT of Sir HUMPHRY DAVENPORT, knt. Lord Chief Baron of the Exchequer, in the great Case of SHIP-MONEY in the Exchequer-Chamber. My Lords; There have appeared unto us upon this Record many several arguments, and excellently made; it comes now to my course, to express my own opinion. It appeareth upon this record, that Pasch. 13 Car. a Sci' Fa' issued out of the Exchequer to the sheriff of Bucks, reciting, Whereas several sums of money mentioned in a schedule to that writ annexed, by virtue of the Writ 4 Aug. assessed upon several persons for providing of a ship, were not paid, whereby he was commanded, quod scire faceret,' to those several persons in the schedule annexed named, to appear in the Exche Serjeant's-inn, Fleet-street, May 26, 1638. Sir JOHN DENHAM's second CERTIFICATE, di-quer, Octab' Trin' 13 Car, to shew cause why rected to the Lord Chief Justice Brampston, 28 Maii 1638. My Lords; Understanding that some misconstruction was taken by some, of the declaration of my opinion, which I desired your lordship upon the last Saturday to deliver in my name; for further satisfaction therein I have sent again, although I was most desirous to have passed my vote in silence in this work of weight, by reason I heard not the four last arguments: yet I delivered my opinion for the plaintiff, which I took to be Mr. Hampden, by reason it appeareth by the Record that he coming in upon process, Queritur de colore præmissorum graviter vexatum et hoc minus juste;' which satisfied me that he was plaintiff; and therefore I now declare my Opinion for Mr. Hampden who did demur. C I shall only deliver these two reasons for the maintaining of my opinion. The 1st is, that the king's majesty is sola et suprema justitia regni,' and the rule of the law is and hath always been, that his majesty can do no wrong; and thereupon ariseth another rule of our law, which I gave for my second reason. The king's majesty being of a corporate capacity, can neither take any lands or goods from any of his subjects, but by and upon a VOL, HI. they should not pay those sums of money assessed upon them. Thereupon a Certiorari 9 Mar. 13 Car. was directed to the sheriffs of Bucks, to certify the sums, and the several persons upon whom they were assessed, and of the warning given unto them to pay the same: The Certiorari being returned, and in court in April 13 Car. Then on 5 May there came a writ of Mittimus out of the Chancery, by which the said former writs were sent to the barons of the Exchequer; which Mittimus recites the Writ 4 Aug. and not the Record itself: and the barons are commanded, that they should thereupon proceed, as by the Mittimus is required. Upon these Records, thus certified, there issued out of the court of Exchequer a Sci' Fa' that is now in debate, which was awarded against the parties mentioned in the schedule; and Mr. Hampden being returned, hath appeared, and demandeth Oyer of the Writ 4 Aug. 11 Car, of the Certiorari 9 Mar. 13 Car. and of the Mittimus 5 Maii 13 Car. Upon Oyer of these, and reading them unto him, as was demanded, Mr. Hampden hath demurred in law, alledging, That the writs, and every of them, and the returns of them, and the matters therein contained are not suf ficient to charge him with the sum of 20s. on him charged: and thereupon demandeth judg4 H mayor of Buckingham, and to the bailiffs and burgesses of Chipping-Wiccombe, and parishes of the county of bucks, et pro omnib' hominib'' of those towns, and all others dwelling in that county; these are the persons who are charged with this particular, that they should before the 1st of March then following at their own costs, prepare and provide a ship of war of 450 tons, furnished and fitted with men, ammunition, and victuals, to be brought to Portsmouth at their charge, at or before the said 1st day of March; and from thence, to be maintained at their own proper costs and charges, for the space of 26 weeks then next following, to attend such noble persons, to who the king should be pleased to commit the custody of the sea, and to pursue their directions. ment, if the king will be pleased any further to | proceed upon this writ. To this demurrer, thus tendered by Mr. Hampden, Mr. Attorney hath joined, alledging, That the writs mentioned, and all of them, and the matters therein contamed, are good and sufficient in law to charge the de-charged. And by that writ, 4 Aug. they were fendant with the sum of 20s. and demandeth judgment thereupon for the king; and that the defendant Hampden should be charged with the sum of 20s. and thereupon make satisfaction; but to whom is not expressed upon the record. This demurrer being thus warily joined on both sides, there have been several arguments thereupon at the bar and bench, excellently, no doubt, argued, and very fully. There hath been introduced and pressed to the court (whereof there have been several notes delivered) a number of records appertaining to the question; fo far forth, that in one of the arguments at the bar, there were excellently well remembered, at the least above 300 re-scends from the persons to whom the writ was cords, and great authorities. The Second sort of those two mandates de directed unto some few, and that is upon the matter to the sheriff of Bucks, and to the mayor of Buckingham, and the bailiffs and burgesses of Chipping-Wiccombe: to these is given and limited a power by the writ, distributively, as therein is appointed, respectively to tax and assess the whole county, secundum 'statum et facultates.' And those that they should find to be rebels, they should distrain them, or by any due means commit them to prison, there to remain until his majesty sends forth an order for their deliverance. This I conceive to be the end of those two man. dates mentioned and comprised in the Writ 4 Aug. 11 Car. After this Writ 4 Aug. 11 Car, almost a year and an half, then cometh the Certiorari out of chancery, dated 9 Mar. 12 Car. directed to the sheriff of Bucks, who, with the other referees, should certify unto the king the names of such Upon this record, the demurrer being thus joined, my purpose is, after my meanness, (not being able to give an account of every particular) to make a summary collection of what I shall say, and with that shortness and brevity that appertains to be (the weight of the cause not deserted) upon the duty of my place, and upon my oath, which I have learned and hold to be ligamentum fidei inter Deum et animamn,' to declare unto this court what I do conceive to be just upon the question arising upon the records, wherein my meaning is to retain my-do self unto the parts of the record. Judgment is not here to be given, but a judicial advice; and according to the number of voices here, judgment must be given in the exchequer, without respect to any of our particular opinions who sit in this court. I shall do my best endeavour to open unto you such questions, as do appear to me upon the record to be aptly and fitly de-persons as were assessed, and what they were bated before us. assessed, and who have performed the assess-, The state of the question out of the recordment, and who not. That writ was returnable will appear to be this, That 4 Aug. 11 Car. 26 April then next following. And therein there issued out of chancery a Writ, not re- Mr. Hampden appears as a defendant to the turnable unto the sheriff of Bucks: This Writ Sci' Fa'; therein was he certified to have been was inter breva irretornabilia,' according to taxed to the sum of 20s, for his lands in the the stile in that court, and in the court of ex- town of Stoke Mandeville, and that he did rechequer. By this Writ 4 Aug, which I do con- fuse to pay it, and did not pay it unto him, nor ceive to be the original main ground of this re- any of the collectors that were appointed.cord, it appears what was the occasion and This being returned into chancery, and no ground that writ was awarded. It was touch-order there made, or any rule, that the sum ing and in respect of certain grievous incur-imposed on Mr. Hampden should be paid, 5 sions by the pirates upon the seas, who commit depredations, and take the goods and merchandize, both of the king's subjects and others that traffic here, and carry them into captivity; and this is said to be to the great damage of the Kingdom. That the times were dangerous, and bostile times, tempora hostilia; and therefore, it was fit there should be a convenient remedy provided by the kingdom for defence thereof; and thereupon, in that writ, two several mandates or commands are imposed. 6 The first' was a command and direction to the sheriff of the county of Bucks, and to the Maii then following, in the same term cometh a Mittimus, reciting the effect of those writs, which is directed to the lord treasurer and barons of the Exchequer; herein the tenor of the writ (and not the writ itself) is certified into the Exchequer: and withal it certifieth the rest of the record, together with the schedules annexed to those writs; and by that it is commended to the court that they should proceed to do for the further receipt and collection of the sums behind, as by the law and custom of the kingdom of England should be required.— And upon this certificate here cometh a writ |