certified into the Chancery, and by writ of Mit timus dated 5 Maii 13 Car. sent into the Exchequer, and there to be proceeded upon according to the course of the law. The sheriff of Bucks is commanded to warn the parties named to appear, and to shew cause why they should not be charged with those several sums assessed upon them.-Hereupon Mr. Hampden' appeareth, and demandeth Oyer of the writ 4 Aug. of the Certiorari and Mittimus, and their several returns; they being all read unto him, he saith that these several writs, and the returns thereof, and the schedules thereunto annexed, do not contain any sufficient matter to charge him to pay the 20s. and thereupon demurred. Mr. Attorney General saith, that they do contain sufficient matter to charge him. And thereupon the demurrer is joined. The demurrer

power of concluding war and peace: All these are in him as he is an absolute monarch, and holdeth his kingdom under none but God himself. It hath appeared also, that a principal part of this kingly office consists in the defence of the realm; that as his jurisdiction is by sea and land, so is his defence. And this hath been made appear to your lordships, both by precedents before William the 1st, and since: pro cominuni utilitate,' and, in case of necessity, the kings of England may ordain, by their proclamation, writs or patents, by the advice of their council, or judges, in legal matters. That the king is the sole judge of this danger, both for the prevention of it, and for the avoiding of it. Therefore for us to distrust that he will command too great a power or aid, it is a presumption against the presumption of law. It hath appeared likewise that all the in-being joined, the record was read in the Exchecidents of defence are likewise inherent in his majesty. We cannot build a fort or castle on our own ground, without license from him. Your lordships have heard the precedents, particular and general; precedents which have universal reasons,quod omnes ex debito astricti sunt;' Writs awarded by the king's royal power, in times of parliament, when parliainents were sitting, and in those years when great aids and subsidies were granted to the king, many times no cause declared, nor the occasion discovered.-There is no act of parliament made to take away this power: And the judicial precedents which your lordships have heard, have affirmed this power.

My lords, if there were no law to compel to this duty, yet nature and the inviolate law of preservation ought to move us. These vapours that are exhaled from us, will again descend upon us in our safety, and in the honour of our nation. Therefore let us obey the king's command by his writ, and not dispute it. He is the first mover amongst these orbs of ours; and he is the circle of this circumference; and he is the center of us all, wherein we all, as the lines, should meet; he is the soul of this body, whose proper act is to command.-But I shall need to use no persuasions to your lordships to do justice in this cause: and therefore I shall humbly desire Judginent for the king.

In Easter Term last, there was a writ of Scir' Fac' went out of the Exchequer, directed to the sheriff of Bucks, reciting, That whereas divers several sums of money, specified in a schedule annexed to the writ, by virtue of the writ 4 Aug. 11 Car. were assessed upon the several persons in the schedule named, towards the providing of a ship of war mentioned in the writ, which sums being so assessed, and not paid, by writ of Certiorari 9 Martii 12 Car. under the great seal of England, the names of those several persons and sums assessed are

quer; and the cause appearing to be of great weight, it was adjourned unto this place in the Exchequer Chamber, to have the advice of all the judges of England.

Upon this record, I am to deliver my opinion; and I take it there is sufficient matter to charge Mr. Hampden with this 20s. And so I give Judgment for the king.

Here have been twelve days spent in the arguing of this case at the bar: I will confine myself to two hours and less, though not tied unto any time. The way to be short, is shortly to find out the points.-But I must first observe, in what state this cause cometh in judgment before us. There is a rule in law, that if a man shall demur generally to the writ,, he doth confess all other matters in fact that are anledged. The reasons of it are apparent: because matters of fact are to be tried by jury, and matters of law by the judges. So in this case all the danger alledged by the writ, is confessed; and the matter in law is that which we that are judges are to deliver our opinions upon.

It hath been objected, by Mr. Holborne, that we are tied to the writ 4 Aug. for that writ is the ground of all, and upon that doth all the rest depend. It is true, that if he had relied upon the writ, it had been so. But his demurrer is this: That the writ, and the rest of the proceedings with the schedules, do not contain matter sufficient: so that now they have not put to us the writ 4 Aug. alone, but all the rest, mus, it is confessed, that in that there is an exto give judgment upon. For the writ of Mittipression, that salus regni periclitabatur,' which is not in the writ 4 Aug.-To this he hath taken exception, thatsalus regni periclitaba' tur,' the danger is at the present time of the Mittimus, and doth not say, periclitatur,' 4 Aug. 11 Car. and therefore this expression now in the Mittimus cannot make good the defect thereof in the writ of 4 Aug.-To this I answer, that the demurring to all, hath confessed all, and yet the matter in the writ is sufficient to express the danger.

Then he objected, that salus signifies health, and not safety; and that the physicians term it so. But salus signifies safety as well as health.

They say, that the general defence of the sea | records. 1. For the Ports; they are of two lieth upon the king; because he hath where-kinds, the Cinque Ports, and the Ports at large. withal to do it. I would willingly disburden myself as much as I can of the objections: a general answer I shall give to these particulars.

What services are due from the Cinque Ports, is expressed in Libr' Rubrico, in the Exchequer, that they were to find 52 ships, and 24 men in every ship, for fifteen days; which cometh to 1188 men. The ports at large are tied to no certain service; it will appear by most of these records which I shall apply, that the Cinque Ports have been charged with more than their due, and the ports at large equally with the Cinque Ports. Pat. 25 Joh. m. 6, the king sent his writ to the Cinque Ports, and thereby commandeth, quod omnes naves

They say, the king hath personal service, the service of tenants, by knights service, escuage, castle-guard, grand serjeamy, petty serjeanty. Is the king bound by these to the defence of the kingdom? Ile that doth look on their originals, will not say so; for these are tenures reserved upon the several grants made by the king; and no more reason is there that the king, by this, should be tied to defend the king-parate, &c. et homines;' he doth not here tie dom, than there is for the lords, that are subjects, and have the like tenure, that they should be bound to the defence of the sea.

They say, he hath besides these, wards, marriages, reliefs, fines, issues, amerciaments, primer seisin, fines of alienation, respites of homage, all fruits of the tenures; which all must go towards the defence of the kingdom.

I auswer these profits are casual; besides, if he be not bound in respect of the tenures, as aforesaid, he cannot be bound by the fruits

of them.

It hath been objected, that the king hath the profit of the sea, as royal fishes, whales, &c. wrecks at sea, treasure trove, royal mines,| &c.-I answer, these he hath by his prerogative, and not for the defence; neither are they fit for a subject to have.

them to a number, but all must go. Claus. 17 Joh. m. 7. Here the king sent his writ Baronibus suis de Rye, a member of the Cinque Ports, Quod venire faciatis omnes naves apud Quinque Portus; this was general, as the others; all the ships, not tied to the number of 52. Claus. 14 Hen. 3, m. 13. A writ went out to Portsmouth, being a port at large, to provide a galley, et eam munire faciant cum hominibus, et quod prompti et parati sint ad proficiscend' cum necesse fuerit.' So here is a particular charge upon Portsmouth, not bound unto it, to provide a galley with all manner of munition. Claus. 25 Ed. 1, m. 5, dors. A writ went unto Guernsey, a port at large, to make a ship ready as often as need should require, ' de contributione faciend' pro navibus quoties opus fuerit." Pat. 9 Ed. 2, pars 2, m. 26. A writ goeth You say, he hath particular service from the forth, and that was directed, Ballivis et probis Cinque. Ports and other places, as from Maiden, hominibus comit' Southampton,' to make proColchester, and other places; and besides, he visionem navigii sumptibus propriis;' no prohath all manner of customs, and in regard of mise from the king to pay this again. Claus. these he is bound to provide for the defence of 20 Ed. 2, m. 7. A writ goeth to the sheriff of the sea. It is true, the king must, for an ordi- London, and that reciteth a charge formerly nary defence, use the means the law hath al- laid upon the city, and upon Kent, for finding lowed him; but that is not now the question of 12 ships; London to find 9 ships, and Kent it is for an extraordinary defence. The ques-3, and forty men in every ship, ad sumptus tion now ariseth, if it were asked any man, whether, they do think in their conscience that the king is able of himself, out of these, to prepare a royal navy, without help from the subject? None are so senseless as to think it. There be some other things, to which I shall | give a general answer. It appeareth by many records, that the king hath paid wages to soldiers, and sometimes hath hired ships; and unless there had been a consideration, the king would not have done it.-To this I answer, it was for ordinary defence, and he is bound to do it; and if he engaged himself by promise to repay unto them their charges, I can say no more but this, that every honest man that makes a promise will perform it, and so is the king bound to perform his promise: for that which honesty binds others to the performance of, honour binds the king.

:

I shall come to those things to which a more particular answer is to be given. The charge lieth general upon the whole kingdom, which I shall divide into three parts. 1. The Ports. 2. The Maritime Counties. And, 3. The Inland Counties: And to these three I will apply the

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illarum.' Claus. 20 Ed. 2, m. 8. A writ directed to the bailiff of Yarmouth, which is none of the Cinque Ports, and they were charged with two ships at their own costs. And the same command, in the same roll, for all ships of 50 tons to be ready. Rot. Scot. 10 Ed. 3, m. 12. That writ reciteth the general obligation that they are bound in to defend the kingdom, almost in the same words mentioned in this writ; it reciteth, that every man should be assessed juxta statum et facultates,' so there was a contribution; then cometh in the clause ultra illam pecuniæ summam debit' pro

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servitiis.' It is true, indeed, the king did pay towards this, but it is expressed to be of his mere grace and favour. 10 Ed. 3, m. 2, dors. A writ to Winchelsea, a member of the Cinque Ports, and that was, Quod omnes naves sint paratæ,' both of the ports et aliarum villarum ;' and the reason is expressed, because without their help the king was not able to defend the kingdom; and appointed them, by that writ, that the ships should be ready victualled for thirteen weeks; whereas the ordinary time was but for fifteen days. Vas. 12 Ed. 3, m. 8.

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There a writ goeth forth to the sheriff of Kent, and to the barons of the Cinque Ports, whereby they were all commanded to look to the custody of the sea-coasts; here are the maritime towns and port towns joined together. 25 Ed. 3, m. 22, dors. A writ to Southampton, ad congre⚫ gandum naves.' In the same roll, in. 8, more writs to other towns. Pat. 12 Ed. 3, pars 4, m. 3. There was a command that all that dwell within the isle of Thanet, from 16 to 60, should be ready to defend the sea-coasts, and this was juxta statum et facultates. Rot. Alm. 13 Ed. 3, m. 12, Yarmouth charged with 4 ships, and in each ship 24 men: whereas usually it was but 21 men in a ship, now I think they are come to sixscore men in a ship. There are an infinite number of rolls to this purpose, to charge the port towns.

will do it. A man cannot excuse himself, that because he never paid, tithe to such a vicar, or such a parson, that therefore he will never pay it.

have been charged formerly for this manner of defence. They objected, that the county of Bocks is an inland county, and that Mr. Hampden dwells there; and therefore no reason he should contribute to the defence; no inland county ever did it, say they. There may be two reasons, why, in former times, the writs for the most part went to the ports and maritime counties. 1. Because they have the bonent of the seas by exportation and importation of their goods. And, 2. Because they are continually in danger of pirates and robbers; and far nearer for a sudden defence, than the inland counties are. But this cannot be held for a sufficient reason, that they only that are near the danger should be put to defend the whole kingdom. I am sure the inland countics receive great pains and profits by the commoI come now to my second division, which is dities from the port-towns; and they are the maritime towns. Pat. 48 Hen. 3, m. 4, dors. more in safety, the stronger the sea-coasts are A writ went to the sheriffs of Norfolk, reciting, kept: and therefore no reason but that they That ships and soldiers had staid there long, should contribute towards the charge of the deand that they were intending to depart, because fence of the sea. For all the writs, save one their forty days were past: Command was, that commission, have gone to be for the general they should stay, ' donec aliud inde mandatum defence of the kingdom; then no reason but 'fuerit.' Claus. 23 Ed. 1, m. 5, dors. There inland counties should be charged. If they were writs directed to the sheriffs of Southamp- say they never did it, it is a strange prescripton, Dorset and Wilts, these three are all mari-tion, that because they never did it, they never time counties; A command, that they should raise three thousand men to defend the coasts. Pat. 24 Ed. 1, m. 17. A writ directed to the sheriffs of Lincoln, York, and Northumberland, to assist certain commissioners to take up an hundred ships, with a competent number of men, these are to maritime counties: The like writs go to the sheriffs of Sussex and Southampton, and these for the preparation of ships, and to take them wheresoever they are to be found. Rot. Pat. 25 Ed. 1, m. 6, writs went to Southampton, Devon, Cornwal, Dorset, and many other places that were maritimne towns, for arresting of ships, and raising of men. But the rolls I might most insist upon, are only these; I'll but name them: Pat. 24 Ed. 1, m. 16, Ex parte Remem. Regis, et rot. 78, Claus. 25 Ed. 1, m. 26, Claus. 13 Ed. 3, m. 14, pars 1, dors. Scot. 10 Ed. 3, m. 22. By all which it appears, not only the ports, but the maritime counties have contributed towards the charge of the defence of the kingdom. And the other side do hardly deny it, but that the maritime towns may be charged.-I will open it plain, that it is for their ease to bring in the inland counties. This cause is not of so great consequence, as is conceived; for if the port-towns and maritime towns may be charged, then it bringeth but in the inland counties. In England and Wales there are fifty-two counties, thirty-three of these are maritime counties; so the inland counties are but nineteen at the most, and they contribute but to a fourth part of the charge for the defence of the kingdom. And so much to my second division of mari

time towns.

3. To the third division, which is of Inland Counties, that they have been charged; I shall make that appear, that the greater part of them

I shall go to the records that charge the inland counties. Claus. 48 Hen. 3, m. 2, a writ directed to the mayor and bailiti of Bedford, an inland county; it doth recite, that divers of that town were called to go with the king towards the sea-coasts, contra hostilem invasionem, et nunc necesse est, et causas fortuit' ut levari fac' et expensas;' and appoint at what rate they should levy it, the horsemen were to have eight pence per day, and the footmen four pence. Claus. 48 Hen. 3, m. 7. A writ directed to the sheriff of Huntingdon, whereby the men of that county were commanded to go to London and from thence to the sca-coasts, for the defence of the kingdom. Rot. Scot. Ex. Remem. Regis 21 Ed. 1, m. 78, dors. A writ is directed to the sheriffs of Berks, and this is to distrain men to make good the custody of the sea-coasts. Rot. 26 Ed. 1, m. 5. The like writs were directed to the sheriffs of Hertford, Essex, Nottingham, Derby, Huntington, Cambridge, &c. and almost to all the inland counties, pro custodia maritima,' all to come to London, and to go from thence to the seacoasts, for the defence thereof. Claus. 13 Ed. 3, pars 1, m. 14. dors. A writ goeth out to Oxford, ad distringendum,' for wages,

pro

⚫ custodia maritima; one mau was distrained, and he pleaded he had been charged in Wilts, and ought not to be charged in another county, and for this there went a Supersedeas. Rot. Viagii 1 Hen. 4, m. 10. A writ was directed to the sherils of Nottingham and Derby, two inland counties, and this was to proclaim quod omnes homines, inter 16 & 60, parati sint, &c.'

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to go with the king, within the kingdom, where be pleased. Claus. 1 Ric. 2, m. 18. Writs were directed to the mayor and bailiffs of Huntgton and Cambridge. This roll is cited by the counsel for the defendant; and in part it maketh for the defendant, and in part against him. The effect of it is this: the writ is directed to the bailiff of Huntington, and this recites a former writ to provide barges, called Ballingers, with forty and fifty oars a-piece, like to a galley, at the charge of the most rich men, and this was ad custod, maris.' And the like writs went to the towns of Nottingham, Glou- | cester, and Warwick, and divers other places; these vessels were not devised then, I find them used before in Edward the third's time. In the Parliament Rolls, 2 Ed. 4, m. 22, the cominons did complain that a commission was gone forth for the making of these barges. Troe, upon a petition of the commons, the king saith, he will advise with his lords: there is no more done; but upon this they cease. I have now done with the precedents on the king's side.

The next act of parliament is 14 Edw. 3, the second parliament of that year, three parlia| ments being held that year. The commons grant the king a certain sum of money, for the great business he had as well on this side the sea, as beyond; but after a cessation of the troubles, then the king is to be at the charge of the future defence; thereupon the king granteth this shall not be had in exemplum, and that they shall not afterwards be taxed without parliament: and this is the strongest thing that I have heard objected.-It requireth a good answer; the words are plain, no charge no question; but this is a charge. I looked into the Petition of Right, and it is not there mentioned, nor amongst those acts of parliament that are in the margin; but the reason why it was omitted, I know not.-I observe in this act of parliament a subsequent clause, that will go far to the answer of this objection; for neither in the acts of parliament, nor in the Petition of Right, is there any mention made of the defence of the kingdom; if the king had been I shall now come to that which hath been bound to defend the kingdom, could the parliasaid on the defendant's side for their discharge. | ment have accepted this as a kindness at his And, first, for the acts and petitions in parlia- hands? 14 Edw. 3. This act was made, yet the ment, which are weighty and considerable.— | aids continued, none of these writs found till 24 First, for the statute De Tallagio non Conceden- | do, which was in the time of Edw. 1, it hath been doubted, whether this be a statute or no. I see no colour of doubt, but that this is a statute; it is printed amongst the statutes, and ever accounted for a statute: and in the Petition of Right, it is recited for a statute. And to say it is no statute, because the ParliamentRoll is wanting; if it should be disallowed, itriculo;' and that they shall array the men in would draw a great inconvenience with it: for private men might embezzle the records, and then if the records were wanting, the act of parliament should be void.

It is an act of parliament, no question; but the question is, whether the provision made by this writ, be within the meaning of this statute. And I conceive it is not; for there are two words in this statute observable, Taillage and Aid. By no aid' here, will you take away the aid 'pur fils marrier, or pur faire fitz chavalier?' By no taillage,' will you have it so, the king shall demand no sum of money? Then if you will give it this large construction, you will take away all fines and amerciaments that are due to the king, all lawful impositions; and surely this was not the intent and meaning of this statute: but it was only to take away all taxes and taillages that were unlawful. If they were lawful, this statute meddled not with them. -Now that no taillage is to be taken, it appears in the Parliament-Rolls, 13 Hen. 4, m. 42, where an office was granted by the king, with a fee, for the measuring of linnen-cloth, that the subject should pay him a certain sum of money for every piece measured; whereupon at the parliament, the commons complain, that this was an unjust imposition, and they desire that they might not be charged with this kind of taillage, which, as was apparent, was unjust, and so they had present relief against it.

VOL. III.

Ed. 3, Rot. Franc. 24. Ed. 3, m. 9, & 26, there went out commissions to array men, to the counties of Suffolk, Dorset and Somerset, for the defence of the maritime parts; within eleven years after the making of the statute, Rot. Franc. 26 Ed. 3, m. 5, the like writs to the earl of Huntington, Considerantes quod omnes incolæ tenuntur de jure ad defendend' in pe

this county, and to bring them ad custodiend' mare;' and by this it is recommended for the erecting of beacons, which is the first direction of that nature; so here is a new charge, and within eleven years after the making of the statute. The same year likewise there went writs to the sheriffs of Nottingham, Derby, Salop, Berks, Middlesex, Bucks, Northampton, &c. So though these writs go almost into every county, and divers other writs of the like nature, as Rot. Franc. 28 Edw. 3, m. 34, yet as I said in no act of parliament extant, nor in any writ that ever went forth that I can find, there is any thing appears to charge the king with the defence of the kingdom, and in all of them, no distinction made between the port-towns, maritime-towns, counties, and inland-counties; but that all of them are generally chargeable. And for the rest of the acts of parliament, they all mentioned in the Petition of Right, and therefore I pass them over. There is in those acts, provision against loans and grievances; but this clause, for the defence of the kingdom, I find it inentioned in no act of parliament but this of 14 Ed. 3, before mentioned.

I will now come to the petitions in parliament: Rot. Parl. 13 Ed. 3, m. 9, 11. It was there declared to the commons, that the French had invironed the island of Guernsey, and all this was for default of a navy upon the sea; and therefore it was needful to consider how this

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