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'borough, and in the members thereof, and the 'laud-tenants in the same, not having the ship aforesaid, or any share thereof, or not serving therein, to contribute to the expences about provision of the necessary premises; and to assess and lay upon the aforesaid borough 'with the members thereof, so as aforesaid, that is to say, every one of them according to their 'estate and goods, or employment, and the portions on them assessed, by distresses, or 'other due ways and means to levy, and col'lectors in that behalf to nominate and appoint; and all those whom you shall find rebellious and refractory in the premises to imprison, 'there to remain tili for their delivery we shall 'further think fit to order and direct. And moreover, we have appointed you the afore'said sheriff of our county of Bucks to assess every man in the aforesaid towns of Agmondesham, Wendover, and Great Marlow, and in the members thereof, and in all the other towns, villages, boroughs, hamlets, and other places in the aforesaid county of Bucks, and the land-tenants in the same, not having the ship aforesaid, or any share thereof, or not serving in the same, to contribute to the expences about the provision of the necessary premisses, and to assess and lay upon the said towns, villages, burroughs, hamlets and places, 'with the members thereof, so as aforesaid, that is to say, every one of them according to 'their estate and goods, or employment; and the portions on them assessed by distresses or other due ways and means to levy, and collectors in that behalf to nominate and appoint; and all those whom you shall find rebellious and refractory in the premisses to im'prison, there to remain till for their delivery we shall further think fit to order and direct. And further, we command you all, that you diligently apply yourselves to the premisses, and effectually do and execute the same, as you shall answer the contrary at your peril, But our will and pleasure is, not that under 'colour of our mandate aforesaid, you cause to 'be levied from the said persons more than 'shall suffice for the necessary expences of the premisses; or that any one who shall levy any 'money of the contributors to the charges aforesaid, detain the same or any part thereof in his own possession, or presume to appro'priate it to other uses under any pretence or colour whatsoever. It being our will, that if more shall be collected than is sufficient, that the same be paid back again to those who 'shall have so paid the same, according to every 'man's respective share and proportion. Witness myself at Westminster the 4th day of August in the 11th year of our reign.

powder, pikes and spears, and other arms necessary for war, with double tackling; as also with competent victuals for so many men, until the 1st day of March now next ensuing; and from thence for 26 weeks at your 4 costs, as well in victuals, as the men's wages, and other things necessary for war by that time, on account of defending the sea at our command in company with the admiral; to whom we shall before the aforesaid 1st day of < March, commit the custody of the sea, to be and remain where he on our behalf shall ap'point; and that you cause the same to be brought into the port of Portsmouth before the said 1st day of March, so that they may 'be there that day at farthest; thence to pro'ceed with our ships, and the ships of other loyal subjects for the Protection of the Sea, the Defence of you and yours, to repel and vanquish all those whosoever they are, that ' endeavour to molest and annoy on the sea our merchants and other loyal subjects aforesaid, coming into our dominions on account of traffic, or returning thence to their own country. We have also appointed you the sheriff of our county of Bucks, the bailiff and mayor of the boroughs and parish aforesaid, or any two or more of you, of whom our will is, that you the aforesaid sheriff of our county of Bucks be one, within 30 days after the receipt of this Writ, to assess as much of the Charges aforesaid upon the aforesaid boroughs of Buckingham and Chipping Wiccombe alias Wiccombe with their members, as ought severally to be laid on or assessed. And if such Assessment within the afo esaid 30 days shall not happen to be made by you, two or more of you; then we have appointed you the afore'said sheriff of our county of Bucks, to make 'such assessment upon the aforesaid boroughs, < and parish, and members, as you shall see 'reasonable to be done. And our will is, that of your so doing, you the aforesaid sheriff of Bucks wholly certify under your seal the mayor and bailiffs aforesaid. We have also appointed you the aforesaid bailiff of the borough and parish of Buckingham, to assess every man in the said borough and parish, and in the members thereof, and the landtenants in the same, not having the ship aforesaid, or any share thereof, or not serving therein, to contribute to the expences about provision of the necessary premises; and to assess and lay upon the aforesaid borough and parish with the members thereof, so as aforesaid, that is to say, every one of them according to their estate, goods, and employment, and the portions on them assessed, by dis❝tresses, or other due ways and means to levy, and collectors in that behalf to nominate and appoint; and all those whom you shall find rebellious and refractory in the premises to imprison, there to remain till for their deli- ss. Charles, by the grace of God, of Engvery we shall further think fit to direct. Weland, Scotland, France and Ireland, king, de

have also appointed you the aforesaid mayor of the borough of Chipping Wiccombe alias Wiccombe, to assess every man in the same

VOL. III.

6

He prayeth also Ŏyer of the aforesaid writ 'Scire facias above mentioned, and it is in like

'manner read unto him.

fender of the faith, &c. To those who were sheiffs of our county of Bucks between the 4th day of August, in the 11th year of our reign,

31

and the 1st day of March then next ensuing, upon the aforesaid borough and parish of 'to those who were bailiffs of the burrough and Buckingham, and upon the aforesaid borough parish of Buckingham, and the mayor and of Chipping-Wiccombe alias Wiccombe, so bailitis of the burrough of Chipping Wic- as aforesaid, then to be severally and discombe alias Wizcombe, in the said county of tinctly laid, that is to say, every one of them Bucks, within the time atoresaid, greeting. according to their estate and goods, or eWhereas by our Writ made under our great ployment, and the portions upon them assess'seal of England, bearing date the aforesaid 4th 'ed by distresses, or other due ways and means day of August in the 11th year abovesaid, for to levy, and collectors in that behalf to nomithe defence of the kingdom, the protection of nate and appoint, in manner and form as in the sea, the security of our subjects, and the the said writ was commanded. And whereas by safe convoy of the ships and merchandize our said writ we moreover appointed the shecoming to our kingdom and passing thence to ' riff of our said county of Bucks to assess every foreign parts; we commanded the sheriff of man in the aforesaid towns of Agmondesham, our county of Bucks, the bailiff of the bur- Wendover, Great Marlow, and in the mem'rough and parish of Buckingham, as also the 'bers thereof, and in all the other towns, vilburgesses of the said burrough, the mayor and 'lages, boroughs, hamlets, and other places in bailiffs of Chipping Wiccombe alias Wic-the aforesaid county of Bucks, and the land

4

combe, as also the burgesses of the said bur

rough, and the good men in the said burroughs

and parish, and in the said burroughs and pa'rish and meinbers of the same, and in the towns of Agmondesham, Wendover, and "Great Marlow, and in all other places, towns, burroughs, villages, hamlets, and other places in the said county of Bucks, that you should 'cause to be fitted out one ship of war of the ⚫ burden of 450 tuns, with men, as well skilful 'officers as able and experienced mariners, 180 at least, as also with a sufficient quantity of cannons, muskets, pikes and spears, gunpowder, and other arms necessary for war, with double tackling, as also with competent 'victuals for so many men, at a certain day in the said writ contained, and from thence for 26 weeks at the costs of the men and landtenants of the burroughs, parish, towns, villages, hamlets, and other places above mentioned in the said county of Bucks, as well in 'victuals, as the men's wages, and other things " necessary for war, by that time, for defending the sea; and that you should cause the same to be brought into the port of Portsmouth within the time in the said writ limited. whereas by the said Writ, we appointed the Sheriff of our county of Bucks aforesaid, the bailiff of the burrough and parish of Buckingham aforesaid, and the mayor of the burrough of Chipping-Wiccombe alias Wiccombe aforesaid, or any two or more of them, of whom our will was that the Sheriff of our said county of Bucks should be one, to assess as much of the costs aforesaid, upon the aforesaid burrough and parish of Buckingham, and upon the aforesaid burrough of Chipping-Wiccombe alias Wiccombe with their members as ought severally to be laid on, or assessed. And

And

whereas we appointed the bailiff of the burrough and parish of Buckingham, and the mayor of the burrough of Chipping-Wiccombe alias Wiccombe, severally and respectively toassess every man in the said several beroughs and parish, and the members thereof, and the land-tenants in the same, not having the ship aforesaid or any share thereof, or not serving therem, to contribute to the expences about the provision of the necessary premisses: And

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tenants in the same, to contribute to the expences about the provision of the necessary premisses, and the other things to do and exexecute in manner and form as by the said writ was commanded. And because some men and land-tenants in the said county, boroughs, parish, towns, villages, hamlets, and other places, by several taxations, and sums of money, by you upon them respectively laid and assessed towards the contribution of the burden aforesaid, according to the exigency of the writ aforesaid, have not yet paid and satisfied the same, but have refused, and yet gainsay to pay 'the same, as we are informed. And whereas our late will was to be certified as well of the names of the men and land tenants who had 'been assessed towards the contribution of the expences abovesaid, and had not paid the money so assessed, as also of the several portions or sums of money laid upon them. You nevertheless in contempt of us, have sent nothing upon the return of our wit limited. We therefore command you, the late sheriff of our county of Bucks, as we heretofore have commauded that you, you certify to us, as well of 'the names of the men, and land tenants, in the aforesaid county, by virtue of our said writ by you respectively assessed, as the syms of money on them so assessed, which they have not yet paid, nor satisfied, but refuse to pay the same; as also of the several portions and sums of money, by you the aforesaid late sheriff of our county of Bucks upon them as-essed, reduced into writing, with all things touching the same, into our Chancery, distinctly and openly under your seals, without delay, or at farthest before the 26th day of April next ensuing, wheresoever you shall then be, together 'with this writ. And we command you the aforesaid late bailiff of the borough and parish of Bu kingham, and the mayor of the borough of Chipping Wiccombe, alias Wiccombe, as we hereto one have commanded you, that you severally certify us, as well of the names of 'the aforesaid men and land tenants in the borough and parish of Buckingham, and borough of Chipping Wiccombe alias Wiccombe, by virtue of our said wri first above mentioned by you respectively assessed, as the sums of

money on them so assessed, which they have not yet paid, nor satisfied, but refuse to pay the same; as also of the several portions and sums of money by you upon them respectively assessed, reduced in like manner into writing, with all things touching the same, into our Chancery aforesaid, distinctly and openly without delay, or at farthest before the 26th day of April next ensuing, wheresoever you shall then be, together with this

• writ.

'annexed, do certify unto our said lord the king into his Chancery, that the men and land tenants of the county of Bucks aforesaid, or any ' one of them whose names are expressed in cer'tain schedules to this Writ annexed, who were assessed by sir Peter Temple knight and baro'net, late sheriff of the county of Bucks afore'said, whilst he was in the office of sheriff of the county aforesaid, in the several portions and sums of money placed at their several names Witness myself at Westminster, the above, to contribute to the expences about the 59th day of March, in the 12th year of our providing of the ship; by virtue, and according • reign. EYRE. At which day, Peter Temple to the exigency of the Writ of our said lord the and Heneage Proby returned the aforesaid king, issued out of his Chancery, and there writ, by indorsement thus, $s. The execution 'inrolled of record, directed amongst others to of this Writ appears in certain Schedules to 'the sheriff of the said county of Bucks, bearthis Writ annexed. The tenor of which Sche-ing date the 4th day of August, in the 11th <dules as to the aforesaid John Hampden returned by the aforesaid Peter Temple follows in these words. ss. Bucks. ss. I Peter Temple knight and baronet, who was sheriff of the ' county of Bucks, that is to say, between the 4th day of August, in the 11th year of the reign of our lord Charles now king of England, • &c. and the 22nd day of February then next following; on which day I went out of my office of sheriff of the county of Bucks aforesaid; by virtue of the said Writ of our lord the king to this Schedule annexed, do certify unto our said lord the king into his Chancery, that by virtue, and according to the exigency of the writ of our said lord the king issued out of his Chancery, and there inrolled of record, and, amongst others, directed to the sheriff of the said county of Bucks, bearing date the 4th day of August, in the 11th year aforesaid; have assessed upon several men and land te"nants of the county of Bucks aforesaid, whose names are under-written, the several portions ⚫ and sums of money at their particulars placed below, to contribute to the expences about the providing of the ship in the said writ mentioned; which said portions and sums of money, or any parcel thereof, before my going out of my office of sheriff of the county afore'said, the said men and land tenants, or any of them whose names are under-written, have not paid, but have refused to pay the same to 'my hands, or the hands of the collector by me "in that behalf appointed, by virtue of the writ last mentioned, viz. Stoake Mandiville, ss. Mr. John Hampden, esq. 17. And the tenure of the other Schedule by the aforesaid Heneage Proby in like manner returned, and to the 'said Writ annexed also, follows in these words: ss. There is to be accompted upon by the assessors, high constables, petty constables within the said county in general, which cannot be accompted for by sir Peter Temple, being as it is conceived short 41.''

'I Heneage Proby, esq. who was sheriff of the county of Bucks between the 22nd day of February, in the 11th year of the reign of our lord Charles now king of England, &c. and from the said day and year, to the first day of March then next following; by virtue of the • Writ of our said lord the king to this Schedule

year aforesaid, have not paid, but have refused to pay the same to ffeneage Proby being sheriff of the said county of Bucks, next after the going out of sir Peter Temple knight ' and baronet, from the office of sheriff of the 'said county, or to the bands of the collector ' in that behalf appointed by virtue of the Writ last mentioned. And further, the aforesaid John Hampden in like manner prayeth Oyer of the aforesaid Writ of Mittimus, of which ' mention is made in the Writ of Sciri Facias, aforesaid, and it is read unto him in these 'words: ss. Charles by the grace of God, of England, Scotland, France, and Ireland, king, 'defender of the faith, &c. To the treasurer and barons of his Exchequer, greeting: By the tenor of a certain Writ of ours made 'under our great seal of England, bearing date 'the 4th day of August, in the 11th year of our reign, inrolled in the rolls of our Chancery; by which we commanded the sheriff of our county of Bucks, the bailiff and burgesses of the borough and parish of Buckingham, the mayor or bailiff and burgesses of the borough of Chipping Wiccombe alias Wiccombe, and the good men in the said boroughs, parish, and the members thereof, and in the towns of Ag'mondesham, Wendover, and Great Marlow; and in all other boroughs, towns, villages, hamlets, and other places in the said county of Bucks; that for the defence of the kingdom, 'the protection of the sea, the security of the subjects, and safe convoy of the ships and merchandize coming to our kingdom of England, and thence going to foreign parts, they 'should fit out one ship of war of the burden of 450 tuns, with men, as well skilful officers as able and experienced mariners, a hundred and 'fourscore at least; as also with a sufficient. quantity of cannons, muskets, gunpowder, pikes and spears, with other arms necessary for war, and with double tackling; as also 'with competent victuals for so many men at a certain day, and from thence for twenty-six weeks at the costs of the men and land-tenants of the boroughs, parish, towns, 'villages, hamlets, and other places above mentioned in the said county of Bucks, as well in victuals as the men's wages, and ' other things necessary for war for that time,

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6

sufficient in the law to charge the said John

Hampden on or with the payment of the aforesaid sum of 20 shillings on him in the 'Schedule aforesaid, in the manner and form 'aforesaid taxed and assessed, or any parcel thereof; to which he hath no necessity, or

*combe alias Wiccombe, and in the rest of the ciency of the aforesaid several Writs above

boroughs, towns, villages, hamlets, and other

on account of the defence of the sea under our command, in company of the admiral to 'be and remain; and that they should cause ⚫ the same to be brought into the port of Portsmouth about the time limited in the said ⚫ writ; and that they should respectively assess "every man in the said borough and parish ofis obliged by the law of the land to make an"Buckingham, and borough of Chipping-Wic- swer: Whereupon by reason of the insuthmentioned, their Returns, the Schedules to them annexed, and the matter in the said Writs and Schedules contained, he the said John Hampden prayeth Judgment, If our 'said now lord the king ought or is willing fur'ther to assess or charge him with the aforesaid 20s. or any parcel thereof. ROB. HOLBORNE. And John Banks knight, Attorney-General of our now lord the king who sueth for our said lord the king, being present here in court, the same day in his proper person, saith, that 'the aforesaid several Writs, and their Returns, and the Schedules aforesaid to the same an

places in the said county of Bucks, and the 'members thereof, and the land-tenants in the same, to contribute to the expences about the provision of the necessary premisses, and ' other things to do and execute in manner and 'form as was commanded by the said writ: We send to you being present the inclosed writ; for that the safety of our kingdom of England, and our people thereof were in danger, which we have taken care to have-issued out of our Chancery amongst other writs, to 'make such provision and assessment through

( every county, city, borough, town, village, nexed, and the matter in the same con'hamlets and places of our kingdom of Eng-tained, are sufficient in the law to charge land, and of Wales, and the members thereof,

6

out of our Chancery aforesaid lately issuing, and there in like manner inrolled. And also a certain other Writ of ours to certify us into 'our Chancery, as well of the names of the men and land-tenants in the aforesaid borough and parish of Buckinghai, and borough of Chipping-Wiccombe alias Wiccombe, and in the rest of the boroughs, towns, villages, hamnlets, and places of the said county of Bucks, who by our command aforesaid were assessed to contribute towards the provision of the premisses, and have not paid the sums of money upon them so assessed: as also of the several portions and sums of money so charged and laid upon the said men and lani-tenants; 'as likewise certain certificates by virtue of the 'said writ reduced in writing, and sent into our Chancery. We also send you being present the inclosed, commanding you, that having inspected the writs and certificates afore'said, you further cause to be done thereupon for the levying, collecting, and receiving all and singular the aforesaid sums of money of the aforesaid contribution as yet unpaid, as by right, and according to the law and custom of our kingdom of England hath been used to 'be done. Witness myself at Westminster the 5th day of May in the 18th year of our reign. EYRE. As in the said Writs and Schedules 'thereunto aunexed, certified into the Exchequer of our said lord the king, and there in the custody of the remembrancer of our said lord the king remaining of record more fully is 'contained. Which being read, heard, and by him understood, the said John Hampden complaineth, that by colour of the several Writs, their Returns and Schedules to them annexed, ' he hath been grievous y vexed and disquieted, and that unjustly; because he saith, that the 'aforesaid several Writs above mentioned, . their Returns and Schedules to them annexed, and the matter in them contained, are not

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the aforesaid John Hampden with the aforesaid 20s. upon him assessed in the form, and 'for the cause aforesaid; which said matter, 'he the said Attorney-General of our said lord 'the king, for and in behalf of our said lord the king, is ready to verify; and which matter the aforesaid John Hampden doth not deny, nor any wise make Auswer thereunto, but ( wholly refus:th to admit the verification thereof, and therefore prayeth judgment; and that the aforesaid John Hampden be charged with the said 20s, and satisfy the same.

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"JOHN BANKS."

The First Day's ARGUMENT of Mr. ST. JOHN,*

on behalf of Mr. HAMPDEN, before all the Judges in the Exchequer Chamber, in the Great Case of SHIP-MONEY.

May it please your lordship; Pasch' xiijo Car' a Sciri Facias issued to the sheriff of Bucks,

*"Mr. Saint John, who was in a firm and entire conjunction with the other two, was a lawyer of Lincolns-Inn, known to be of parts and industry, but not taken notice of for pre-ctice in Westminster-IIall, till he argued at the Exchequer-Chamber the case of Ship-money on the behalf of Mr. Hampden; which gave him much reputation, and called him into all courts, and to all causes, where the king's prerogative was most contested. He was a man reserved, and of a dark and clouded counte nance, very proud, and conversing with very few, and those, men of his own bumour and inclinations. He had been questioned, committed, and brought into the Star Chamber, many years before, with other persons of great name and reputation (which first brought his name upon the stage) for communicating some paper among themselves, which some men at that time had a mind to have extended to a design of sedition; but it being quickly evident

reciting, That whereas several sums of money mentioned in a Schedule to that Writ annexed, by a writ under the great seal of England, dated 4 Augusti 11 Car' sessed upon several persons for providing of a ship of war, were not paid: and that upon a Certiorari dated 9 Martij 13 Caroli, these sums and the several persons upon whom they were assessed, were certified into the Chancery, and from thence by Mittimus dated 5 Maij, were sent into the Exchequer, that process might be issued against these defaulters: thereupon the sheriff is commanded, Quod sciri faceret' to those several persons to appear in the Exchequer Octab' Trinitat' 13 Caroli, to shew cause why they should not pay those sums assessed upon them. The Sheriff returns, Quod sciri fecit' Jobu Hampden, esq. who was assessed at 20s. and he hath not paid it. Mr. Hampden hath appeared and demanded Oyer of the Scir' Fac' of the Schedule of the writ dated 4 Augusti, the Certiorari and the Mittimus, and of their several Returns, and hath thereupon demurred

in law.

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fore the command, without cause shewn, and that sufficient in law too, would be void.

In the second place therefore they are set down to be these: Pro defensione Regui, 'tuitione Mari-, securitate Subditorum, et salva conductione Navium,' both outward and inward, the Sea being infested with pirates, and more shipping being daily prepared ad Regnum gravandum; these are the ends.

In the third place, the legality of it, that every man secundum statum et facultates' should be hereunto assessed, is thus inforced. First, from Custom and continued use, in these words; That the Sea 'per gentem Anglicanam ab olim defendi consuevit.' And secondly, this Use proved to be from a common ground of equity; Onus defensionis, quod omnes tangit, per omnes debet supportari:' And the Rule of Equity backed by the Common Law in these words, Prout per legem et consuetudinem regni Angliæ fieri consuevit.' The argument stands thus; All have benefit by defence of the realm, and therefore by law the Charge ought to be borne by all.

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The Writ dated 4 Augusti 11 Car' because Then it is further inferred, that every man, it is the ground of the issuing forth the Sci fa', even by his allegiance, is bound to contribute to and so by necessary consequence, is that which this Charge, the command being in fide et first occasioned any process against him, it willlegiancia quibus nobis tenemini.' Of these be the subject from whence will be fetched all that shall be said either for or against my client. I will endeavour by breaking it into parts, more clearly to present it to your lordships view.

parts the Writ consists, which all being put together, in brief declare the scope and end of the issuing forth thereof to be the Defence and Safety of the kingdom; a thing so necessary, The thing commanded is, that this county that it must needs be legal: for it is too near should provide a Ship of war of 450 tons, with and too narrow a conceit of the wisdom and 180 men, guns, gunpowder, double tackling, policy of the law to think, that whilst the care victuals, and all other things necessary, and to thereof should be confined only to the preserbring her to Portsmouth by the 1st of March vation of the general members of the body polifollowing, and from that time to provide her of tic from the wrougs and pressures that might be victuals, mariners wages, and all other neces-offered from others to the fellow-members, that saries for 26 weeks. For effecting this, there is power given to assess each person within the county secundum statum et facultates,' and to bring in these sesses by distress, ' et quos rebelles invenirent' to imprison their persons. My lords, if the Writ had staid here, and gone no further, the command though full in word, it had been void in law, because as yet it appears not for what end this ship was to be provided. 40 Ass. Plow. A Commission to seize mens goods notoriously suspected of felony, before conviction, adjudged void, because there

that the prosecution would not be attended with success, they were all shortly after discharged; but he never forgave the court the first assault, and contracted an implacable displeasure against the church purely from the company he kept. He was of an intimate trust with the earl of Bedford, to whom he was in some sort allied (being a natural son of the house of Bullingbrook) and by him brought into all matters where himself was to be concerned. It was generally believed, that these three persons, with the other three lords mentioned before, were of the most intimate and entire trust with each other, and made the engine which moved all the rest."

in the mean time it will leave the whole to the violence and will of enemies: so that whilst each subject, considered as a part of the whole, hath a known and sure estate in Lands, and real property in his Goods, not to be impeached by any whatsoever within the realin; yet considered all together as they make the Unut Compositum,' they should have in them only Præcariam Possessionem,' or Tenancy at Will in regard of Foreigners. My lords, this cannot be; for the law is so careful herein, that even afar off it foresees and prevents all dangers in this kind; and that is the reason that an alien, though a friend, hath not capacity to purchase any land in the realm. And if the law be so quick-sighted, as that to prevent but possibility of danger, it keeps such strangers from having any land within the realm, which desire to come by it peaceably and for valuable considerations; by this we may easily see the great care it hath to prevent apparent dangers, which usually proceed from open force and violence. Which further appears by the greatness of the punishment which the law inflicts upon offenders in this kind, which is High-Treason, of all other the greatest. 13 Eliz. Dyer 298. Story* con

See vol. 1. No. 59.