| this charge, and prayed that the commission exception of the law of reason and equity, as might be repealed. And the king upon this aforesaid, is this power reserved to the king. calls in the commission. Shall this be a dis- Impossibilities are to be excepted out of all claimer of the king's right? He saith, he will laws: Nemo tenetur ad impossibilia.' Pospeak with his lords. This is only a satisfac-verty and impossibilities, as one answered, were tory answer. Besides, the king was but an more mighty goddesses than either force or usurper. Now to say this answer of the king's love. is a resolution in the case, is a great mistake.He that will go through this load of precedents that have been vouched on both sides, he had need to have more time than Mr. Holborne, who spent four days. You have alledged precedents both before the Conquest and since: that of the Danegelt, though it was a heavy yoke, yet it was necessary to be borne: whether it was granted by parliament or no, non constat. I say, it is a good precedent, and I hold it good without parliament. Some distressed kings, as king John, Henry 2, and Richard 2, they did indeed do that by borrowing, which they might have took of right. Now, to give an answer to the statutes of 25 Ed. 1, and 14 Ed. 3, and the Petition of Right of 3 Car. Admit, I say, there were an express act, That the king, were the realm in never so much danger, should not have aid from his subjects, but in parliament, it is a void act; will any man say such an act shall bind? This power is as inseparable from the crown, as the pronouncing of war and peace is: such an act is manifestly unreasonable, and not to be suffered; saith Doctor and Student, To foliow the words of the law, were, in some cases, injustice, and against the good of the commonwealth; wherefore, in some cases, it is necessary to leave the words of the law, and to follow that which reason and justice requireth: and to that intent equity is ordained, which is no other but an exception of the law of God, or law of reason, from the general rules of the law of man: Which exception is tacitly understood, in every general law. This imposition without parliament appertains to the king originally, and to the successor ipso facto, if he be a sovereign in right of his sovereignty from the crown. You cannot have a king without these royal rights, no, not by act of parliament. But now you will say, where is this danger? How doth this necessity appear? If you would find it, you need not to enquire for it either by sea or land; but in this very record, the writ sheweth, and the most favourable construction is to be had for the king; as in Plowden's Comment. 336, the Case of Mines of gold and copper. Now all this while I have been in the general, and in a manner in propositions; I come now to application. Before I descend to it, I shall shew upon what part of the record I shall ground myself. Though in the Mittimus it besalus regni periclitabatur,' which is said to be metaphorical, for that it asketh no great answer; it is good enough, as in the writ of Oyer and Terminer, omnes qui habent dam num vel salvationem,' are bound to contribute. Will you bind the king to the language of J. S. May he not express himself in what legal manner he pleaseth? You say, that this phrase of salus regni is too general: if it be alledged, and you demur upon it, you confess this for the most advan→ tage for the king; as in the Case of Mines. It is not alledged in the Scir' Fac'; this might have been made a good question.-But without all these, I conceive the writ 4 Aug. containeth the causes for this great preparation, and expresseth them in particular. What if it were no more but this, lest we should lose the dominion of the seas? What is it to be called Dominus Maris, and not to maintain it, but to suffer this princely honour to perish, and others to become masters of it? What havoc and confusion would follow? And this is the true intention of the issuing forth of this writ. that the pirates do take and spoil our merchants, carry our men into captivity: what will you say to this? Let them take our men, and let us have a parliament, and we will bring them home again: the land was never without thieves, nor the seas without robbers. Next, Consideratis etiam periculis, &c. that is, the danger is so evident, and so great, in these warlike times, that of necessity defence must be made, both by sea and land.Next is great oppression used at this time, Again, these acts bind not, for that favour-Datum est nobis intelligi quod prædones, &c." able construction, in case of the king, is to be bad in all cases, Doctor and Student, fol. 27. It is not possible to make any general rule in law, but it shall fail in some particular case: if a law were made in a city, that no man, under pain of death, should open the gates of the city before sun-rising, yet if the citizens, before that hour, flying before their enemies, came to the gates of the city, and one, for saving the citizens, open the gates before the hour appointed, yet he offendeth not the law, for that case of necessity is excepted from the said general law by equity. So for the statute in Edward the third's time, not to give any relief to a sturdy beggar, upon pain of imprisonment; yet if one relieves him with clothes in the extremity of cold winter, to save his life, he shall be excused by the same statute. By such an Next, paratum periculum et preparans, &c.' Now these ships go for the defence of the sea against this danger, et vestrum et vestro rum. The writ saith the whole kingdom is in danger, both by sea and land; and you have confessed this by your demurrer. But you complain before you are hurt, because you have seven months liberty, a parliament might be called in that time: now in this time of imminent danger, it is no time to call a parliament. You say it hath continued for three years. | Put the case the danger continueth for three! Upon these solid reasons, as upon a firm years, and then ceaseth, and then the king foundation, the Mandamus of the writ is ceaseth to lay a charge, and the danger begins grounded, and followeth in the next place. again the next year; what! Shall not the king require aid as the danger increaseth? And now to conclude, without repetition: it doth appear by this record, that the whole kingdom is in danger, both by sea and land, of ruin and destruction, dishonour and oppression; and that the danger is present, imminent and instant, and greater than the king can, without the aid of his subjects, well resist: whether must the king resort to parliaments? No. We sue the danger is instant, and adinits of no delay | Shall we go home, and sit together in careless security? Not so. But let us resort to our pious and just king, whose prerogative and right of sovereignty is to defend the realin, and to maintain his subjects liberties. And so I give Judgment for the king. The ARGUMENT of Sir ROBERT BERKLEY, THE CASE. In Aug. 11, of the king's reign, there issued out of the court of Chancery his majesty's writ, directed to the sheriff of the county of Bucks, and the head officers of villages and buroughs in that county, et probis hominibus,' that is, to all the king's good subjects, in onnibus ، villis, burgis, et aliis locis in coin' Bucks. I may call this writ, a special writ, or a commission upon the case. It is not a sic volo; it beginneth with divers weighty reasons or causes, pro ratione, of the issuing of it; as, 1. His majesty had intelligence that certain pirates, et maris grassatores,' as well Mahometans as others, were congregati upon the sea, quod ab olim per gentem Anglicanam defendi consuevit;' and did daily rob and spoil the ships and the goods of the subjects of the king, and of his confederates, and did captivate the persons of those whom they took.-2. His majesty did conspicere, that those men did navigia indies præparare, ad mercatores ulterius molestandos, et ad regnum gravand' nisi citius ' remedium ponatur.'-3. His majesty did consider the perils, qua undique illis guerrinis temporibus imminebant, ita quod regi et sub، ditis suis defensioni maris et regni, omni fes tinatione, quâ poterit, conveniebat accelerare.' -4. His majesty's royal resolution was, 'De، fensioni regni, tuitioni maris, securitati subditorum, et salvæ conductioni navium et mer3 chandizarum providere.' Maxime pro eo quod' the king and his progenitors domini maris predict' semper hactenus extiterunt, et plurimum tæderet regem, si honor iste regius 'suis temporibus dispereat, aut in aliquo minuatur.-5. Lastly, his majesty called to mind a Regula juris et rationis; Onus istud defensionis quod omnes tangit, per omnes debet supportari, prout per legem et consuetudinem regni Angliæ fieri consuevit.' 6 | | | The Mandanus is, 1. That all they to whom the writ is directed, should among them, providere unam navem de guerra,' of such a burden, and with so many men, and other particulars, as are mentioned at large in the writ. -2. That this ship, so furnished, be ready at Portsmouth by the first of March then following, and from that time, for 26 weeks, to go with his majesty's and other subjects ships, and to attend the direction of those to whom his majesty should then commit the custody of the seas, for tuition of the sea, and defence of the realm.-3. That all this be performed, 'ad custagia' of themselves tam in victualibus quam hominum salariis, et aliis ad guerram necessariis.' After the Mandamus, an Assignavimus, or commission to the sheriff and the head officers cometh, and then directions to them. The commission to the sheriff is inter alia, That he shall make an assessment secundum 'facultates cujusque,' for contribution to the expence of the provisions aforesaid, shall appoint collectors, shall levy the money to be assessed (if it be denied) ، per districtiones ، aliosve modos debitos, and shall ، carceri mancipare' those who shall be contrarii et rebelles.-The directions to the sheriff begin with a clause of Nolumus.' The king forbids that the sheriff shall levy more than is necessary for the expences: that any money levied shall be appropriate to any other use, quovis quæsito colore:' and then, lastly, in case that more be collected than shall be useful, the king commands that restitution be made of it. After this bill, 9 Martii 12 of the king (which is above a year after the ship should have been ready at Portsmouth) a writ of Certiorari issued out of the Chancery, directed to the several sheriff's pro tempore of Buckinghamshire. —That Certiorari recites the writ of August 11. And for that the king was informed, that some had not paid the stins assessed upon them, but refused to do the same; the king commands the said sheriffs respectively to certify into the Chancery the names of such refusers, and the sums assessed upon the.n. The sheriffs accordingly make returns in a schedule annexed to the Certiorari. In one of the schedules there is, inter alia, · Stoke Mandevile, Mr. John Hampden, 1.' After this, by writ of Mittimus out of the Chancery, tested in May last, the tenure of the writ of Aug. 11, with these words, * quod quidem brev' pro eo quod regn' nostr' Angliæ et popul' nost' ejusdem periclitabatur emanari curavimus inter alia brevia ad hujusmodi provisionem, et assessament' faciend' per singulas ، comitatus Augliae,' &c. And also this record of the writ of Certiorari, with the return of it, and schedule annexed, are sent into the court of Exchequer.-By that Mittimus the king commands the lord treasurer and barons, quod in spectis those records, they should facere ulterius inde pro levatione, collectione et receptione' of the sums unpaid, prout de jure, et ❝ secundum legem et consuetudinem regni Angliæ fuerit faciend' et non aliter.'-By which (prout) but especially by the (non aliter) the king's honour and care of justice are singularly eminent; for the levying the money anew is not commanded,nay, it is forbidden, unless, ‘Jus, • Lex, et Consuetudo Angliæ.' do warrant it. After this, and in the same month of May last, the barons awarded a writ of Scir' Fac' into Buckinghamshire, against those whose names are in the schedule aforesaid, thereby commanding the sheriff to warn them to appear in the Exchequer by a day, to shew cause, if they can, why they should not be charged with the payment of the sums of money assessed upon them and unpaid.—The Scir' Fac' is always a judicial writ; and certainly the barons have proceeded very judicially and gravely, in awarding of it. In weighty cases, especially, if they be not of common impression, proceeding tento pede is truly judicial.--Upon that Scir' Fac' Mr. Hapden is returned garnished.-He appearing, and having heard the several writs and records before-mentioned, without taking the common or any other protestation, hath demurred generally. The words of his demurrer are, That materia contenta in the same records, minus 'sufficiens in lege existit ad ipsum onerandum.' -He doth not say, that materia is minus vera; but, acknowledging the matter contained in the writ to be true, he putteth the cause de bono et malo, upon sufficiency or insufficiency, in point of the law, for charging him.-Mr. Attorney for the king hath joined in demurrer.-Upon this demurrer, one main or grand question, and some other inferior questions, have been started. Because I have time little enough for the grand question, I will not trouble you with arguing, or so much as singling out the other inferior questions. My brother Weston hath spoken to some of them, I concur with him. The grand question is shortly this: Whether, as this case is, or in this special case, (as it is upon the pleading) the charges imposed by the king upon his subjects, for provision of shipping, without common consent in parliament, be good in law, yea or no? 6 This is a question of extraordinary weight, of infinite consequence, the greatest that ever came before judges of ordinary courts of justice. Qui ad pauca respicit, facile pronunciat; but he that will determine in this question, must respicere ad multa, eaque magua et ardua.'-Upon the debate of this question at the bar; elaborate, learned and strong arguments have been made on either side. And truly, for my part, I have laid the question to my heart. All the arguments which have been made in it, I have been present at, and specially heeded. All the records which have been brought to the judges, on either side, I have read over as seriously as I could. I have likewise considered of the reasons and authorities in law, pertinent to this case. And upon my VOL. III. | pains, deliberation and study, I have concluded with myself, and in mine own understanding am satisfied, and think I shall satisfy others, that as this case standeth, upon the records in the pleading, or in this special case; the charge imposed is good in law, and consequently that Judgment ought to be given against Mr. Hampden, quod oneretur. For my clear delivery and expression of myself, I divide all that I shall say into these four heads.-1. I will state the case, and will settle the proper question of it, as the pleadings are. (The true stating and settling of a case conduceth much to the right answer of it.)-11. I will consider the policy and fundamental rules of the common law, applicable unto that which upon stating the case shall appear to be the proper question.-III. I will consider the acts of parliament, the answer to petitions in parliatent, and the several Magna Charta's of the liberties of England, which concern the king's proceeding in this case.-IV. I will answer the inaterial objections, which have been made on the other side. Upon my FIRST General Head.—I hope that noue doth imagine, that it either is, or can be drawn by consequence, to be any part of the question in this case, whether the king may at all times, and upon all occasions, impose charges upon his subjects in general, without common consent in parliament? If that were made the question, it is questionless, That he may not.— The people of the kingdom are subjects, not slaves, freemen, not villains, to be taxed de alto et basso. Though the king of England hath a monarchial power, and hath jura summa majesta 'tis,' and hath an absolute trust settled in his crown and person, for government of his subjects; yet his government is to be 'secundum leges regni.-It is one of the questions in the juramentum regis,' at his coronation, (see the old Magna Charta, fol. 164.) Concedis justa leges et consuetudines regni esse tuendus? And the king is to answer, Concedo.-By those laws the subjects are not tenants at the king's will, of what they have.-They have in their lands Feodum simplex,' which by Littleton's description is, hæreditas legitima, vel pura.→ They have in their goods a property, a peculiar interest, a meum et tuum. They have a birthright in the laws of the kingdom. No new laws can be put upon them; none of their laws can be altered or abrogated without common consent in parliament. Thus much I speak to avoid misapprehensions and misreports upon that which I shall say in this case; not as if there were cause of saying so much upon any thing challenged on the king's side. We have in print his majesty's own most gracious Declaration, that it is his maxim, that the people's liberties strengthen the king's prerogative, and that the king's prerogative is to defend the people's liberties. Secondly, Though Mr. Hampden's counsel have spent all their powder in citing a multitude of records, beginning with one in king 4 A John's time, and so downwards, to prove, That the king's ministers have paid, that the barons have been by writs commanded sometimes to pay, sometimes to make allowances, out of the king's moneys or dues,-in cases of foreign auxiliary, and voluntary wars: in cases of particular or ordinary defence of the realm, as upon rebellion of subjects, or inroads by enemies, into parts, marches, or maritime; such enemies I mean, as are not greatly formidable, as are apt to run away when they hear of any force coming against them: in cases of setting forth ships, for scouring the seas from petty pirates, so that merchants may have safe passage: in cases where victuals, or other provisions, were taken from particular persons, by way of purveyance, for soldiers, or for the king's army: in cases of borrowing of money by the king's officers, for war, or ordinary or extraordinary defence: in cases of taking money or goods against the owner's consent, by warrant for the king's use, for war, or other manner of defence: in cases where particular men's ships, horses, or armour, were lost in the wars: in cases where private meu's houses were used in the king's service: lastly, in cases of general and extraordinary defence, where the king had sufficient aids for that purpose granted to him in parliament. Although I confess it be true, that the king in all these cited cases, must pay of his own, without imposing upon the subject; yet I say that those cases come not close to our case: for every of those cases hath a manifest, particular, and just reason; but none of these reasons are applicable to the case now in question, as is easy to demonstrate, if a inan would enter into every of these particulars; which I forbear, for saving of time.-And these records being taken away, the multitude of the vouchers on Mr. Hampden's side will be greatly abated. Thirdly, The case of the ancient tribute called Danegelt, of which Mr. Hampden's counsel hath spoken, though it come nearer than any of the former mentioned cases, yet it much differs from the charge imposed in our case. It hath been said on Mr. Hampden's side. 1. That Danegelt was not imposed, but by common assent of parliament. 2. That after it was so imposed, it was released by Edward the Confessor. 3. That it hath been now so long uncollected, that it is scarce known what it was. To the first I answer, That the proof urged that it was created by parliament, is at the best but a conjecture. It hath been said, that the words of Leges Edw. Contessoris, c. 12, are in one place, statutum est Danegeldum annuatim reddi, &c.' and in another place, Danegeldi redditio primitus instituta est, &c.' And statutum is a proper word for an act of parliament, a statute. But in my understanding it is apparent, that it had not creation by common assent in parliament, but only by regal authority; or at the most by the king, with his great lords assents, which in those, and after times, was frequent. My reasons are, 1st. In Tilbu rieusis, or the Black Book of the Exchequer, 1. 1, c. 28, the words are express, ́ A regibus Anglicis statutum est, &c.' no mention of any others who joined in that statutum. 2dly, It appears by the said Leges Edw. Confess. c. 12, that at the beginning of Danegelt, omnis ecclesiæ libera erat;' the reason given, quia magis confidebant ecclesiæ orationibus, quam armorum defensionibus:' and yet in the addition to the said Leges, it appears that William Rufus imposed that tribute upon the church also, and that without common assent. For the words are, Danegeldum concessum est ei a baronibus, non lege statutum neque firmatum;' and certainly those barons by whom it was concessum, were not all the baronage, for it is plain, that the bishops and mitred abbots did not consent. 3dly, In that clause where statutum est' is used, in Leges Edw. Confess. the Danegelt is said to be 12d. ' ex unaquaque ' hida;' and afterwards it doth appear that it was made 4s. by William Rufus, ex unaquaque hida, ecclesiæ non excepta;' which increase was most unjust, if no more but 12d. was limited by common assent at first. To the second, I answer, with sir Henry Spelman's distinction, there were two kinds of Danegelt; one, ad pacandos Danos; another, ad arcendos Danos,' and other pirates. It may be, that the Confessor released that ad pacandos,' for the Danes troubled not this kingdom in his time, they had enough to do then at home, and so there was no cause of collection of any taxes ad pacandos Danos: and though it was de facto exacted by the Danish kings before Edward the Confessor, viz. Canute, Harold Harefoot, and Hardicanute, it was unjustly taken by them, the cause of grant of it ceasing in their time of sovereignty here; and that might be the cause of the Confessor's dream, that he saw the devil dancing upon the money collected in his time for Danegelt: which supposition of a vision occasioned him to release it, as it is written. But certainly the Danegelt ad arcendos,' &c. was not released by Edward the confessor : for it appears in Tilburiensis, before cited, that Danegeldum sub indigenis regibus s‹ Ivebatur usque ad tempus Willielmi primi;' if sub indigenis regibus,' then under the Confessor. Again, it appears in Leges II. 1, c. 16, that Danegelt was in that king's time a duty to the king for the words are, Dauegeldum si ad terminum non reddatur recta emendetur;' ergo, not released by his predecessor Edward the Confessor. I further find in Ranulphus Cestrensis, that Stephanus rex, regnum iniens, 'Danegeldum, i. e. 2s. ad hidam, quos anteces'sores sui singulis annis accipiebant, in æternum 'condonavit:' which condonavit' shews that he as a king de facto, had a right to it, ergo, not formerly released. But for the validity of such a release by k. Stephen, a manifest usurper, tending to the diminution of the crown, cspecially if it were of a tribute granted to the crown by act of parliament, see 9. E. 4, f. 2. causa ex unaquaque hida 4 solidos, ecclesia non excepta.' To the third I answer, That it is true, it is obscure what the Danegelt was; you have heard by what has been cited, mention of 1s. 2s. and 4s to be the sum of it; and truly, I think, it was more or less, according to the occasion of the money for the defence: the tribute ad pacandos Danos,' I believe at first was but 12d. out of every hide, yet afterwards increased by the three successive kings, Danes themselves, for I find it was at first but about 10,000l. per ann. it after was raised to 30,000/.usus virorum fortium, qui perlustrantes mari The Black Book of the Exchequer, written in king Henry 2's time, in that part which is Tilburiensis's work, or the Magister ad Discipulus, it is lib. c. 28, not c. 11, as it is misprinted in learned sir Henry Spelman's Glossary. Ad Danos arcendes, a regibus Anglicis statutum est, ut de singulis hidis jure quodam perpetuo duo solidi argentei solverentur in 6 then to 40,000l. and lastly to near 50,000l. tima impetum hostium reprimerent.--Qui which huge sum was in these times a burden igitur principaliter pro Danis institutus est hic insupportable to the people. But however, redditus, Danegelium dicitur, hic sub indithe uncertainty of the sun, especially if you geurs regibus solvebatur usque ad tempora understand that which was collected, ad ar- regis Willielmi primi. Ipso namq; regnante, 'cendos Danos,' is a clear proof, that it was not tam Dani' quam cæter' terræ marisq; prædon' created by act of parliament, for then the sum 'hostiles cohibetur incursus. Cum ergo diu thereby certain could not be mounted.-Allsolvisset terra, sub ejusdem regis imperio, nohistorians do agree, that the original time of luit hoc ut annuatim solveretur, quod fuerat Danegelt was iħ k. Ethelred's reign. I ob- urgente necessitate bellicæ tempestatis cxcserve, that k. Ethelred shewed himself weaktum, nec tamen omnino propter inopinatos caand improvident, in that he looked not to raise sus dimitti.-Raro igitur temporibus ejus vel means for defence of his realm against the Danes in time; but when the Danes were masters, then he began to provide against them. And for that cause divers of our historians write, that he was called by a nick-name, Ethelred the Unready. But, on the other side, we the subjects of England, who enjoy ourselves and what we have in peace, through his majesty's royal care and providence, have cause to yield to our sovereign k. Charles, the honourable name of Charles the Ready, or Charles the Provident. successorum ipsius solutum est, hoc est cum ab exteris gentibus bella vel opiniones bello'rum insurgebant.-Verum quocunq; tempore solvatur ab ipso, liberi sunt qui assident ad Scaccarium, ut dicitur, et vicecomites, &c. Leges H. 1, c, 16. Danegeldum, i. e. 12d. ex unaquaq; hida per annum, si ad terminuin non reddatur, wita emendet.r.' Fourthly, I affirm, with some clearness, under favour, That the charge now demanded is not within the ancient acceptation or signification of the words, Aids, Mises, Prizes, Taxes, or Talliages, which it is to be agreed cannot be exacted by the king, without consent in parlinment. Neither is it within the compass of the word Subsidy, which may not be levied, but upon grant of it in parliament. Aids, if you take the word in a general sense, they were of two kinds: 1. Such as were aids and services too, as pur faire fitz chevalier, par file marier.' That kind of aid, common persons, who had seigniories, had right unto, as well as the king. No colour of comprehending this kind of aids, within the word, Aids, pertinent to this question-To the 2d kind of aids, were sums of Lege the words of the authorities under money from the subject to the king, by way of written, from whence many observations and help, ad agendo regis;' as for making of casgood conclusions may be drawn touching Dane-tles, building of bridges, helps for voluntary or Bat, to return, the differences between the antrent Danegelt and the charge in our case are apparent and many; for the Danegelt was, 1. Annual: ours is due only in case of necessity. 2. It was collected out of hides of land, and thence called Hidage: ours is collected out of personal as well as real estates. 3. It was a tribute of money: ours a provision of shipping and armour in kind. 4. It was ngainst pirates: ours is for common defence of sea and land. 5. It was not general: clergy and clergymen were originally exempt: ours is general, upon all without exception. g. It. auxiliary wars, or for the king to do his plea sure with, and the like.-See Parl. Roll 11 Ilen. 4, n. 45, 20,000 marks granted to the king by the name of an Aid, ent a fair son 'pleasure.' And Rot. Parl. 25 Ed. 3, n. 12, where the application of the word Aid to such a purpose, is distinguished from other payment to the king.-Mises were presentations in kind of a benevolence, upon a king's first coming to his crown; such are yielded at this day in Wales, to a prince of Wales.-Prises are taking of part of the subjects goods from them to the king's use, without pay; hence prisage of wines at this day. Taxes et Tallages, in Quinzim. B. 9, 34 II. 8, Nota par exposition de ceux del Eschecq; |