a parliament, to have had provisions granted, Answ.--Note the Requirimus precedes. Also and by or before the 1st of March 11 Car. pro- the word Rogamus signifies as properly a comvision had been granted, yet the thing commandment, as a prayer. Linwood. Also the manded by the shipping-writ in August, to be words are, effectuose requirimus et rogamus,' ready in March, could have but begun in March Also, Cum princeps orat, precibus præcepta to have been then prepared, and so a whole colorat.' year apparently lost; in which time, God knows what might have become of this state.

Object. 11.-But what if the king surmise only, that there is such danger as must be prevented, when in truth there is no such matter?

Answ.-Hath not the king a conscience? The law believeth his affirmation, and for that cause they are not traversable, as appeared by my lord Dyer upon the Ne exeas regno. Rex 'est recordum superexcellens.' Teste meipso, is his language; it is against the duty of a subject to contest with him. Again, it is a rule of law, Cuillibet in arte sua credendum est;' it is the king's proper art, to have intelligence of foreign intentions, to foresee public dangers, to conclude and put in execution what is necessary for the preservation of his estate and people.

But since those writs are urged, let them be read; and it will appear, that in the matter of them, pertinent to this question, they make directly for the king. Eid. for that purpose, Rot. Sco. 12 E. 2, m. 7, dorso, but chiefly Rot. Sco. of the same year, m. 13, dors. In the writ to London there, the king reciting that the Scots fines regni Angliæ cum ingenti armatorum multitudine ingressi,' had taken the castles of the king, and of his subjects, and did still hold them, and had besieged more castles; and that the king, by the counsel of the prelates, earls, barons, and the peers of the realm, had ordained (not a word of the commons) to be at York such a day, with an army; and they had promised to be there with him sumptibus suis 'cum toto posse suo; nos considerantes quod pro tanta necessitate, fideles et subditos nostros, ut in præmissis manus apponant adju'trices decet requirere et rogare, ac de vobis specialiter confidentes, vos effectuose requirimus et rogamus quatenus ad præmissa consi'derationem debitam habentes,' they should instantly array 500 footmen, and send them to the king, sumptibus suis. Nota, All this Object. 12-26 E. 1, Pat. Roll. m. 21, hath done without warrant of parliament; and more been urged: there it appeareth that the king, court-like words, certainly, were of purpose desirous to amend gravamina populo nomine used in such a time as that was, of instant ne'suo facta,' sent commissioners to hear and de- cessity, ad faciendum populum,' than either termine what takings had been from the sub-needed, or might have been used, if it had been jects made in the king's name, but without his so thought convenient. warrant; and to punish it presently, and to do right to the parties: but as for that which should be found to have been taken by the king's warrant; Le roi voil que soit certifie, et il eut ferra tant que ils se tiendr' apaies per • reason.'

Tu regere imperio populos, rex summe,

inemento:

Hæ tibi erunt artes,' &c.

Also Mr. Hampden, by his demurrer in this ease, hath confessed all the matters in fact, which moved the king to issue this writ, and are mentioned in the writ.

Answ. Note the distinction in this case between the repayment and satisfaction by the parties for that which was taken without warrant, and the repayment, if it were taken by warrant of the king. For in case that which was taken by colour of the king's warrant was against the law, it was as tortious to the subject, as that which was taken without the king's warrant; and in all justice, the subject ought to have been restored to his right, with as much expedition in one case as the other. Also, es hath been already answered, the words are not they shall be paid' but le roi ferra tant que 'ils se tiendre apaies per reason; that is, as I conceive it, The king will give them a reasona

ble answer.

Object. 13.-Upon the words requirimus et rogamus,' in writs to the bailiffs of diverse towns, when they were sent unto to array and send men at the expences of the towns, it hath been urged, ergo the thing required is a matter of good-will, and not of right; in which case it would rather have been a Mandamus, or a Præcipimus, than a Rogamus.

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Object. 14.-Out of Pas. 26 Ed. 1, rot. 35, Commun' ex parte Rememoratoris Regis. Reginal Gray being commanded by the king to levy and conduct to the king 1,000 men out of Bromfield and Yale; he, by his letter to the king, answered, that he durst not chuse 1,000 men there, without warrant; and that he would not mewer, that is, move, in those parts without pay.

Answ. His writing that he durst not, is not to the right, but in his judgment it was not safe, or might be dangerous. Also, he durst not without warrant, it may be, he thought the king's letter, without his great or privy-seals, no sufficient warrant. Also, it appears in the record, that the king had sent him word before, that the treasurer should ordain payment; but it seems pay came not; and then it is likely soldiers would not stir without money: They commonly cry Guelt, and if they have it not, are apt to disband.

Object. 15.-Repayments commanded by the kingut conscientia regis exoneretur' ergo, the king could not take of right in these cases.

Answ. The record is 29 Ed. 1, commun' ex parte Rememorator' Regis; there is a command for repayment, Quia pro urgentissimis negotiis et pro utilitate et defensione totius regni;' the king had received of the abbess and convent of Canonleighe 6127, and had pro

guard upon the king, but would place it upon the ports. Of what strength or power the ports were in those times, I know not; but in our present age, it is apparent, they are not by many degrees, near able to defend the seas, which must notwithstanding be defended, and that defence can fall upon none but the whole realm.

mised repayment; note those words; And also, for that the abbess had petitioned the king in parliament for repayment. So here was a promise originally for repayment also in this case; a very great sum of money it was which was taken from one single corporation, more than was proportionable for them; and therefore just and conscionable, that repayment should be: this great sum was taken upon a scrutiny, 22 Ed. 1, in places where it was thought that money might be had. And upon that the foresaid sum was borrowed (unwillingly, God knows, as to the lender) of this abbess, and of divers other religious. The like scrutiny was made, temp. E. 2, and the like course for repayment, as appears Rot. Parl. 8 E. 2. And indeed, it had been before those times, and so continued, a usual thing, for our kings to look into the treasure of the religious, when they had occasion of money; and sometimes to take their silver-plate, and rich offer-with which the realm was on all parts environings, for supply of instant wants. And the religious would not fail to press upon the king's conscience, until they had restitution.

Object. 16.-12 E. 3, Ro. Alman. m. 22, dors. A letter to the archbishop to move all the people to pray and give alms for the king.

Object. 18.-Upon the Parl. 15 Pas. 2 R. 2, pars 1, where the speech of Scroope, then chancellor, is set down; he therein declared the cause of the summons of that parliament, whereby it appeareth, that a little before there had been a parliament at Glocester, and no provision for common defence was there agreed on; that after the departure of that parliament the king had assigned some prelates and lords to be of his continual council, for the year following; the said council treating and having before their eyes, the great mischiefs and perils

ed, and the summer approaching, and no ordinance made in parliament for salvation of the realm, and resistance of the enemies. And the said council durst not take upon themselves alone the ordinance of so perilous and high an act; but it was advised by them, after ChristAnsw.-I say no more, but will read what mas to assemble a great council of all the great the record is itself loquitur. Pater, &c. Cum lords of the realm, prelates and others; and 'populis regni, variis oneribus, tallagiis, et im- upon a second warning there came well near ⚫ positionibus hactenus gravetur, quod dolentes all the prelates, as well abbots as others, the ⚫ referimus, sed,' note this but, inevitabili ne- earls, barons, bannerets, and other sages of cessitate compulsi, de eisdem oneribus ipsum the realm; and then there the great perils and ⚫ relevare non valemus' so no wrong confessed; mischiefs to the realm being disclosed, by reanecessity excused it, and continuance of a son of the great apparent wars by land and sea, wrong cannot be justified. The king desires whereof no ordinance was provided; and more the archbishop to move the people, ut tan- over, it being declared before them, by the of • tam necessitatem humiliter, benigne, patien- ficers of the king, and treasurers of the war, as ter et charitative sustineant:' note those ad- to the state of the king, and of the realm, that verbs, especially humiliter.' And they would nothing remained in the treasury for the war; have a good opinion of the king, and would pray it was said, in the same council, Pur concluand give indulgences, to the end he might prospersion final, que ils ne poient cet mischiefe rein his wars for recovery of his right in France. 'medier, sans charger le common del realme, (Note, to the end, &c.') Oneribus prædictisque charge ne puit estre fait ne grant sans (quæ non ex malitia vel præsumptione voluntaria, ipsos gravant) non obstantibus.'

Object. 17.-Out of the Parl. Roll 13 E. 3, m. 9, & 11. The remembrances of the parliament. One of the points to be considered and proposed by the king, was for course to be taken for a navy at sea, and for recovery of Jersey, which the French then had conquered. Answ. In this proposition the words of the king are, Et per tant serr' les comons discharges del guard del mere;' by which words it is evident, the king conceived, that the commons were by law charged with the guard of the sea.—It is true, the commons answer, They pray in drt. del guard del mere,' that they be not charged to give counsel, it being a thing whereof they have no cognizance; but they give their advice, that they think the barons of the ports should do it, and therein they confess, that the guarding of the land belongs to the commons, sans gages demannder ou prender.' They could not deny but that the sea must be guarded. They put not the charge of that

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VOL. III.

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parliament; et per tant per assent de eux le parliament ore este somon' et in le meane temps que suffic' army ser' ordeine al mere in defence, et salvation del realme et del navie, 'et del coasts del mere a quel costages touts les seignors apprompterant voluntarement al roy, divers grand sommes del money. Et issint 'font bon gents de London, et d'auters vills, as " quod le roy per assent fuit in dit grand coun6 sell, aurit envoy pur ce cause. Et ad done a eux son royall grt. pur repayment. It hath been said, that the present question is fully answered.

Answ. I confess that this Record hath a great shew of proof, that though there be an apparent and instant time of danger to the very 'salus reipublicæ,' yet no charge upon the commons may be made, or granted, without parliament. And indeed, this is the strongest proof upon any record, that hath been urged on

Sages here are sage men, not Judges, as was objected.

4 C

ballingers in defence of the realm. Here in this parliament just occasions were given to the cominons to have complained of this charge, with the making of ballingers, charged upon them before the parliament, if it had been a wrong: but they complained not of it, for aught appears; and the king's gratification is no proof that it was as by way of recompence for a wrong; but it is plainly an argument of the king's grace to them, by way of encouragement of them in their services for the commonwealth. The like appears, m. 3, 2, Cheqr. K. Rem. inter brevia directa baronibus,'-Also it is to be known, that in all king's times, some matters have been preferred in parliament, from the commons to the king, as grievances, which in themselves have not been wrongs, or against the law: We find in our books, there may be damnum absque injuria.'

Mr. Hampden's side. But I think it will re-time of parliament) charged with the making of ceive an answer with indifferent affections, if these things be observed. 1. That this consultation and drawing in question of the using of means, was before any charge actually imposed: Which now I insist not upon, because I have formerly touched upon it.-2. The king was then in minority, the law was not then clear and settled concerning an infant king's power. You see it was debated, and not resolved, until the time of Ed. 6. Vide the case of the duchy of Lancaster. Plow. Com.-3. The example of Latimer was then fresh; and the lords, it may be, were over-wary, upon his precedent, though it could not parallel with theirs, if they had undertaken, upon so urgent occasions, to have charged the commons, without their consent in parliament.-4. Note the words of the Record, That the lords, appointed counsellors, could not advise or find any means; and it is certain, that no counsellors, none but the king himself, could command so high a matter. The king then was not there; he was at that time scarce out of his nurse's care.-5. The people at that time were wavering, and full of discontents; they had withdrawn themselves from parliament.-Alice Peers had a little before played her pranks; and the young king was not fortunate in his then governing servants.-Lastly, The thing necessary, viz. Security of the kingdom, was done by another way, viz. by lending of money, as in the Record: But put the case it had not been done one way or other, then of necessity the people must have been charged, though without, yea, though against their consent; for the kingdom must not be lost, an ultimum refugium must be found out, rather than so fatal and final a mischief and misery must be endured.

Object. 19.-Rot. Parl. 2 H. 4, n. 22. Concerning barges and ballingers, commanded to be made without assent of parliament. The commons petition saith, That this had not been done avant ceux heurs,' and prayed that the commissions might be repealed. The king's answer was, That the commissions should be repealed.

Object. 20.-Parl. 7 Ed. 4, n. 7. In the beginning of the parliament, the king himself spake to the commons, and, amongst other things, promised the commons, he would live of his own.

Answ. The king's speech stayeth not there, but goeth further, the words are these: 'I purpose to live of mine own, and not to charge my subjects but in great and urgent causes, concerning more the weal of themselves, and 'the defence of them and the realm, than mine own pleasures; as heretofore by the commons ' of this land hath been done, and borne, to my progenitors, in time of need.' Which words are remarkable: not a syllable in them of doing this only by common assent in parliament, but relatively, as heretofore, &c. which how it hath been de facto, you have heard; namely, sometimes in parliament, and sometimes out of parliament.

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please.' This needs no answer, it is agreed. But he farther saith, cap. 9, That the king may not populi substantias proprias subtrahere, re• clamantibus eis vel invitis; that he may not Tallagia et cætera onera eis imponere ipsis in'consultis ;' That he may not subjectum populum renitentem onerare impositionibus pe'regrinis.'-I answer, that 'tis most true' regulariter, et regula non facit jus, et nulla regula quin fallit.'-Cases of necessity, cases of bo

Answ. It is plain that those commissions, before that time, ceased of themselves; for they were made in Richard 2's time, and died with him. All commissions from the king are but authorities which end with that king from whom they issue. Also note, that the said Henry 4's answer in parliament goeth further, viz. But for the great necessity which the kingnum publicum,' cases of salus reipublicæ,' hath of such vessels for defence of the realm, in case the wars should bold, the king would commune with the lords of this matter, and after shew to the commons for their advice. Which words are notable to this question. It cannot be denied, but this answer to the commons' said petition in parliament is, in effect, a Rog soi avisera.'-I note that Rot. Parl. 1, R. 2, m. 52, there is a gratification by the king, in confirming of franchises to those cities and was, 'que sont ore' (that is, now in this

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are not to be comprised within ordinary rules. I have spoken so much hereof already, that now I will say no more, but conclude, that in cases of necessity, pro salute reip.' every subject must (even by rules of law) bestir himself; must contribute his best abilities: must set-to both his helping hands.-Rich men must expose their treasures. Able men of body must put on arms. Great counsellors must give their best advice. Women must not be idle. Old men and clergymen (if they have no other powers)

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,
knt. one of the Justices of his Majesty's
Court of Common-Pleas at Westminster,
delivered in the Exchequer-Chamber, in
the Great Case of SHIP-MONEY.
This is a cause of great consequence, and is
one of the greatest that ever came in question
in this kingdom, and the records are infinite that
have been cited on both sides; but by reason
of want of health, and disability of body, I have
not been able to peruse the records as I intend-
ed, and to have prepared myself, in which I am
to argue; and therefore I would desire time
until this day seven-night, to peruse the records
and compare my notes, wherein, as you may
see, I have taken great pains, [producing his
Notes to the Court] that. I may be the better
prepared to deliver my opinion in this weighty
matter: and then, God willing, I will not fail.

[But it was answered by the Court, That in regard certain days have been peremptorily appointed at first for their Arguments, it could not be altered now, nor could they give him any further time.]

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 weightiest in any court for consequence: so it but 20s. but the weight thereof is of far greater may 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 perinit. 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. not that detestable Gunpowder Treason, 3 Jac. devised to have been executed in the parlia ment 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.

Was

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 parlia'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 parliaments. So 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 serAfter he had opened the record he said, the vice, and then they might have had it for their question upon it was, Whether Mr. Hampden own use afterwards. When the kingdom is in should be charged with the 20s. imposed upon danger, the king may command a supply for him, as this case is? This case, by reason of prevention thereof; and who can tell better the weightiness of it, is adjourned from the Ex-than the king how to prevent the danger?' Nethequer hither to be argued, and the advice of 'cessitas non habet legem.' The king then

A few Notes of the ARGUMENT of Sir THOMAS

TREVOR, Knt. one of the Barons of his
Majesty's Court of Exchequer, in the great
Case of SHIP-MONEY.