writ.

upon their own coasts of the sea, for the de- my part, I hold this point of necessity, or danfence of the kingdom. And in Rot. Alm.ger, cannot be held a sufficient ground for this 12 Ed. 3, writs went for the arresting of ships in all parts of the kingdom. Rot. Viag. 1 H. 4, m. 12, writs issued to all archbishops and bishops, shewing imminent danger, that they should be ready in arms, to come and assist ad custodiendum mare,' whithersoever he should appoint them. But in that time, when the danger was such, yet no ships appointed to be prepared throughout the land. Aud 5 ten.

4, that all the men of all parts should come together in such a place this was only an arraying of men to be in readiness. 3 H. 5, to the same purpose. And 1 Hen. 7, which was much stood upon, of a rumour of wars between the king of the Romans and the French king, which might, perhaps, in the end tend to an invasion of this kingdom, there was an arraying of men, from 16 to 60, and gathering of ships, and taking order for watch and ward upon the seacoasts, but no command to make ships. 4 Hien. 8, pars 2, there the king by proclamation saith, that the enemy is ready to enter, ships are furnished with men of war to invade the kingdom.' What then? What was done then? It is no more, but that every county in England have men in readiness to assist, from 16 to 60, to defend the kingdom, and to have good watches and wards upon the sea-coasts.

The next thing is this; yea, but this is maintained by prerogative and royal power. I say for that, by my oath I am bound to maintain all the true prerogatives of the king; and we that are servants to the king must maintain his prerogatives, and, to the best of our skill, not suffer them to be diminished. But I hold there is no such prerogative in this kind.

The

The prerogative is, that which the law presumeth, That the king can do no wrong." and so it is in Bracton, Rex potest facere quod de jure potest facere.' 11 Rep. Magdalen-College Case, 246. Plowden's Comment. king can do no wrong, nor any act to wrong the subject. Bracton, Hoc non potest agere 'quod non potest agere juste.' Therefore if this charge be against the law, so much to the prejudice of the subjects, as I conceive it to be, the king will never do it; for it is done by misinformation that it hath been usually done, and may be justly done. 21 Edw. 3, a patent is made, which is a wrong to the subject: the king, de jure regis, ought to revoke the patent; for the law hath that honourable conceit of the king, That he can do no wrong.' A king, therefore, to have a royal power or prerogative to do that by his writs, to command any thing to be done that is against the express laws of the kingdom, to the infringing of the liberties of his subjects, is not admitted by the law: the royal power is to be taken away; for as it is before said by Fortescue, he can change no law, nor charge his people, but by common consent in parliament. So, for my part, I hold that this same charge upon the subjects, by his royal authority, it is not allowable.

But, I pray you, in all these times of Hen. 8, Hen. 7, Hen. 5, Hen. 4, were there ever any writs went forth for ships into any county? It doth not appear that any county was to prepare or make any ships; but only men in arms: so the law makes provision, in time of danger, by help of their persons, and with ships, not with a pecuniary charge; for that cannot hold for any, nor can be done without parliament. And if new ships must be made, it must be The king, we know, is a most just and made by parliament. If so be the writs be to pious king, that he will do nothing against his make ships, then let the sheriffs make them, laws; if he did know it to be against law, he and shew for their discharge upon record, that would never desire it. When a judge of the they are made and prepared. But to appoint land was called in question, in queen Elizaby writs ships to be made, and by their direc-beth's time, about denying some loan, delivertions appoint the sheriffs to levy money to paying his opinion against the same, he said, it was off some of the ships, was never yet done, this being a precedent of the first impression. The law did always account the parliament able to provide and to give sufficient aid, and most fit to consult de arduis regni; and there is a consent of and grant of the commons to what is done, they are actors in it.

By the old law of Alfred, parliaments were to be held twice a year; and by express statute made 4 Edw. 3, 14, an express law was made, that every year a parliament should be held, especially if need required. And by another statute, for avoiding of grievances that daily happened, a parliament should be held once a year. Then it is to be conceived, a parliament may be called, and things may be charged that way. And for the objection, that a parliament is not the speediest way to prevent the danger; the imagination of man cannot invent a danger, but course may be taken for defence, till a parliament be had. So, for

against his oath, and against the law, to advise her majesty to it. With which she rested satisfied. If the judges say, by law the king may do this, he may do it: if they say no, but by act of parliament, he will never do it. But it is said, the king taketh the course, more ma'joruin.' There is not any precedent especially maintained, by any judicial record, that warranteth this course: and if there were any precedents, we are to judge according to the law, and not according to precedents; not to judge what hath been done, but what of right hath been done. 11 Rep. Magdalen-College Case, though there be many precedents, that maintaineth not a right; the question is still, Whether a right or not?

But admit that precedents could make it to be lawful, yet I hold there is not any one precedent to maintain this case.

For, first, I say there is no one precedent goeth to inland counties all over England, before

now. I say, to maritime counties to prepare, Ed. 3, m. 9, command is to assist the admiral as my brother Berkley confessed, that he knew with their ships, as occasion shall require. 10 none for any inland counties, but 1 Ric. 2, 11, Ed. 3, 11, a prec pt to port-towns only, to 52, their writs went out to divers inland towns, bring their ships to Portsmouth, for 13 weeks, but not to counties, to make ships; and besides furnished with victuals, &c. 2 Ed. 3, 16, not to these, were not any to inland counties.-To this depart without licence. 10 Ed. 3, 12 Ed. 3, I say, those writs that went out at that time Rot. Alm, writs only to part-towns, ad custowere done by conveyance in parliament: for diend' mare.' 12 Ed. 3, m. 12, a command an order was made in parliament, that all that to Henry Hussey, &c. ad congregand. hohad any charters, the antient cities, boroughs, 'mines, and to attend on the sea-coasts. But and towns, that had any charters of liberties, these were the causes of making the law, 14 should there be examined; and appoints how, Ed. 3, that there should be no further charge and by whom; and have their liberties con- laid on the subject: so that all before that stafirmed without fine, if they would produce ships | tute do not prove our case. 15 Ed. 3, a cusfor the defence of the kingdom. But yet in tody of the ports commanded, and warrants to this record not one inland county or maritime arrest ships. 16 Ed. 3, command to the carl county is charged, nor no inland town, but of Dover, &c. to prepare ships against an those that would have their liberties confirmed. enemy that intends to come to subvert the Now to look upon the precedents of king kingdom, and to set up beacons; which is the John's time, 6 Job. 9 Job. 14 Joh. &c. here be first original of beacons that I observe. All the six precedents in court; and I have looked these precedents in Ed. 3's time, were but to into every precedent on the king's side, to satisfy keep men and ships in readiness, and to bring myself; and all those precedents are only for them to the sea-coasts. 46 Ed. 3, m. 3, that arresting of ships, that they should not go forth the French made great preparation, whereupon of the realm; and 15 Johan, all ships to be they are commanded all to array, both clergy ready as the king shall have occasion.--Then and laity, to guard the sea-coasts. And in we come to Hen, 3d's time: 13 Hen. 3, m. 5, those times, when there was more likelihood of 13, &c. there are six of these records, I have danger than now, no writs came out then, but read them all; they are no more, but only to only to array men, and keep them in readiness. port-towns, to arrest ships, and the rest to have 50 Ed. 3; to array men in Norfolk to defend men at arms, in readiness upon the sea-coasts, the coasts. 29 Ed. 3, command to the bishop and that but for forty days. of Durham, and into Cumberland and Northumberland, to have their men in readiness. A number of these precedents in that king's reign.-For Rich. 2's time, it doth not appear by any one record there is any thing for ships, but only for the custody of the sea.--And for Hen. 4, Ilen. 5, Hen. 6's time until 2 Eliz. they are all concerning matters of arms, not to make ships. And when the rebellion in the North was in the queen's time, then by writs men were commanded to be in readiness, for defence of the kingdom.

Then for the precedents of Edw. 1's time, all of them being examined, not any one of them go to the counties. 13 Ed. 1, 77, divers ships are appointed to be made, but it is ad sumptum regis, and only unto sea-towns; the record shews, that by the barons of the exchequer they have an allowance for it. 23 Ed. 1, m. 5, same roll, a writ to the sheriff of Norfolk, to compel them to maintain their sea-coasts. 14 Ed. 1, a writ ad congregandas centum naves paratas,' and armed men to be put in them. So to command in that kind the king The next thing we come to is the writ itself. may, and we must obey; he commands ships For my part, i hold it to be illegal; mark the ready made, not to make them. Afterwards, recital of the writ, it is no more but quod da14 Ed. 1, rot. 17, several writs to the archbi-tum est nobis intelligi,' &c. not a plain affiroshops and bishops, to attend with their arms in ation, as apparency of it. Then the motives readiness, to maintain the coasts. 14 Ed. 1, are, because the pirates do infest the seas: rot. 78, a writ to the county of Berks, a thing Such motives as never were in any writ before. much stood on; it is only for matter of array, All former writs were not to provide great navies if it be well looked into, and no matter of in respect of pirates; there is no such great danmaking or finding of ships; and divers other ger of them. 15 Ed. 1, it is there set down, writs in this king's reign, for maintaining of when pirates infested the seas, they took order armies in their proper counties: and no man that there should be only 10 ships to scour the can deny but that every man in his proper coasts. 16 Ed. 3, &c. Command that men county is to go to defend the kingdom. And should be arrayed, lest the enemy should inalso for having of all ships of above 40 tons in vade the kingdoin; but no mention made of pireadiness: but to make new ones, in any inland rates, for they will be removed with a few ships. county, is not warranted by any precedent, that Mark the times when great pirates were upon I can see; though I have looked over all the the sea, they would be glad to sculk away when records that have been brought unto me; no, the king's navy came towards them. Now that not in maritime counties, to make ships. this should bring the king's navy to sea, is against the law of the land, and are not motives sufficient to induce a charge of this kind.

For the procedents of Ed. 2's time, 9 Ed. 2, &c. to put them all together, they are only to congregate ships to be in readiness, but not to make new ships.-To come to Ed. 3's time. 7

VOL. III.

Secondly, The very commands of the writ itself are unlawful, in respect of the inconveni

4 D

⚫ences to an inland county; whereas there was. never any inland county charged in that kind before, as coast-towns that have been heretofore charged with soldiers, and had none, were discharged. When Bodmin in Cornwal was charged with finding of a ship, they shewed they never had ship nor mariners there, and that divers of them were imprisoned for not finding such a ship; whereupon commission

issued to the admiral to examine the truth thereof: And because it was found they had no mariners, they were discharged. But Mr. Solicitor answered, this was done by the admiral, beyond his commission; but 13 Ed. 3, the same year, there was a wiit awarded to Chichester in the county of Sussex, to find a ship, and they complained they had not any ships used to arrive there, nor riariners therein inhabiting; and thereupon they were discharged, upon a writ out of the Chancery: So I say, inland counties that are not wont to have ships, the law doth not appoint them to do that which they cannot do, nor will not expect from them that which is impossible.

sessment in that kind is not legal. Then the
clause, Si rebelles fuerint, &c. to imprison
them, then to give power of imprisonment tə
the sheriff: Clauses have been in former writs,
in cases of arrays, to distrain, if they refuse to
pay; never in case of levying money, to impr. 1
son for it; it is clearly against Magna Charta
to be imprisoned, unless he be indicted, or ty
due process of law.

The next thing is the last clause of the writ, 'If more be gathered than shall be needful, to 'be returned amongst those that have paid a? That sheweth the ship must be done: we are now upon the record, and by this record it doth not appear that a ship is made. It appeaN Mr. Hampden was assessed 20s. towards the making of a ship. It is said, If the money be paid, others can provide ships. This is not ac cording to law, to command a ship of war of 450 tons, and to turn it into money; for fa ship were made by a county, the county should have it again, but in this case it is otherwise; this Scir' Fac' is brought to have the money.

For the Certiorari, it is directed to a sherif out of office que del residue de ceo,' and ought not so to be, for all writs are directed to the present sheriff; so for the old sherias to shew cause what they have doue, and the new sheriff's to make their return, he is the immed ate officer of the court. Admit the Scir' Fac' should go forth, it would do something, one rare, &c.' to whom, or how, nothing here; but ‘Scir' Fac' quare onerari non debet;' bu to whom onerari,' it doth not appear.

The pursuance of this writ is against law; it appoints them to provide a ship, hire men, and provide victuals and wages for them, 26 weeks, &c. I say, this is against law plainly, and against divers statutes, and no law doth warrant it; for soldiers, which are the king's servants, ought to have their pay from the king, the general rendezvous. 15 Joban. m. 3, ships commanded to be at the ports upon the king's pay. Tenants by knights service, after forty days, were to be at the king's charge. 17 Ed. Besides, if the sheriff levy money in that kind 1, 16 Ed. 3, it appeareth there, the king, upon and bestow it on a ship, it is well. If not so the invasion of the Scots, many men being lost, bestowed, then those that received the money are appointed soldiers, and their wages paid, and accountable to those of whom they had it. In what to Durham, and what to Newcastle, &c. Ed. 3's time, soldiers received money to go to 31 Ed. 1, in the Exchequer, writs went out to service in war, yet staid at home, but were levy men to resist the Scots, and they would not compelled to repay it to the county where they stir without their wages. 16 Ed. 3, to pay received their wages. Also two high constat les soldiers wages. 2 Ed. 3, rot. 16, there it is set having received money for soldiers, were indictdown in parliament what soldiers have received ed for not employing it accordingly, and adfor their wages. 26 stat. 18 Ed. 3, cap. 7, sol-judged to restore it to the county where they diers are not to go out of their counties without pay. 10 Ed. 3, the men of Bucks stood upon it, and would not go out of their county to the coasts of Southampton without wages. Rot. Alm. 12 Ed. 3, m. 12. A writ to compel all men to make munition for ships, for the town; and thereupon H. and B. they were commanded to maintain the men of the same town. Claus. 13 Ed. 3, m. 14, men of arms for the defence of the sea-coasts complained their wages were not paid them: ordered, the town from whence they came should pay them. The statute of 11 H. 7, cap. 1, provides, that soldiers that go out of their own counties to attend the king in his war, shall have their wages from the time they go from their houses, to be paid by the king's own oflicers.

I hold that this assessment is not lawful and allowable; then it the assessment thus made falls to the ground, the power to the sheriff to assess doth; and he may do it as he lists, put more upon one than another, therefore an as

received it, and to find sureties. So it doth not appear that this ship was builded, there is no preparation for a ship; the sum assessed is not legal; then the writ is not legal, be cause it varieth from all the precedents formerly; it varieth in the time, of 26 weeks, before that but for 13 weeks; in the manner, for soldiers wages to inland counties, which was never before. I say, it varieth from all the precedents in that kind. And so I hold this particular writ is not sufficient, nor warranted by the law, and that Judgment in this case ought to be given for Mr. Hampden.

The ARGUMENT of Sir GEORGE CROOKE, knight, one of the Justices of his Majesty's Court of King's-Bench at Westminster, in the great Case of SHIP-MONEY, as it was presented to the King's Majesty.

The Case is this upon the Record-The king by writ under the great seal, dated 4 Aug.

anno 11 of his reign, directed to the sheriff of the county of Bucks, and to all the men in that County, commandeth them in these words: Motives of this Whit, which are five.

Quia

ad ultimum ad proficiscend' ex inde cum navibus nostris et navibus aliorum subditorum 'nostrorum. 1. Pro tuitione maris. 2. Et 'defensione vestrum et vestror. 3. Repulsioneque et debellatione quorumcunq' mercatores nostros et alios subditos et fideles præ'dict' in dominia nostra ex causa mercaturæ se 'divertentes vel ab inde ad proprium decimantes super mare gravare seu molestare satagen'tium.'

Clauses of the Assess-1. Assignavimus autem te præfat' vicecom' Bucks ad assidend' 'omn' hom' in villis de Agmondesham, Wendover et Marlow Magna et in omnibus alis villis villat' burgis hamlettis et aliis locis in

• datum est nobis intelligi, quod prædones quidam pirati ac maris grassatores tam nominis Christiani hostes Mahumitani quam alii con'gregati naves et bona et mercimonia non solum subditorum nostrorum, verum etiam subditorum amicorum nostrorum in mari quod per gentem Anglicanam ab olim defendi consuevit nefarie diripientes et spoliantes et ad libitum suum deportavere hominesque in cisdem in captivitat' miserrimam mancipantes. 2. Cumque ipsos conspicimus navigium in 'dies preparantes ad mercatores nostros ulte-com' Bucks prad' et terræ tentes in iisd' narius molestand' et ad regnum gravand' nisi vem vel partem navis præd' non habentes vel 'citius remedium apponatur eorumque conatui in ead' non deservientes ad contribuend' exvirilius obvietur. 3. Consideratis etiam peri-pensis circa provisionem præmissorum neces'culis quæ undique his guerrinis temporibus įm- sar'. 2 Et saper' præd' vill' bug' hamlett' minent, ita quod nobis et subditis nostris de- 'et locor' membris eorumq' sic ut præfertur ad fensionem regii omni festinatione qua poteri-assidend' et ponend' viz. quemlib' eorum juxta mus accelerare convenit. 4. Nos volentes statum suum et facultates suas. 3. Et pordefensione regni, tuitione maris, securitate' tioncs super ipsos assessat' per districtiones 'subditorum nostrorum salva conductione na- 'aliosve modos debitos levand'. 4. Et collec'vium et merchandizarum ad regn' nostrum 'tores in hac parte nominand' et constituend'. Angliæ venient' et de eodem regno ad partes 5. Ac omnes eos quos rebelles et contrarios exteras transeunt' (auxiliante Deo) maxime inveneris in præmissis in carcere mancipand providere; cum nos et progenitores nostri re- ' in eod' moratur' quousque pro eor' deliberages Angliæ domini maris prædicti semper hac- tione ulterius duxerimus ordinand'.' tenus extiterunt, et plurimum nos tæderet si 'honor iste regius nostris temporibus depereat aut in aliquo minuatur. 5. Cumque onus istud defensionis quod omnes tangit per omnes debet supportari prout per legem et consuetu'dinem regui Angliæ fieri consuevit.

Charges of this Writ, which are thrce.— Vobis præfat' vicecom' balliv' burgensibus majoribusque probis hominib' et omnib' aliis, quibuscunque supra mentionat' in burgis villis, villatis, hamlettis et locis supradictis eorumque membris. 1. In fide et legiantia vestra quibis nobis tenemini. 2. Et sicut nos et 'honorem nostrum diligitis. 3. Nec non sub 'forisfactur' omnium quæ nobis forisfacere po'teritis firmiter injungend' mandamus.

Commands of the Writ, which are five.-' 1. Quod unam navem de guerra, portagii 450 'doliorum. 2. Cum hominib' tam magistris 'peritis quam marinariis valentioribus et ex'pertis, centum et octoginta ad minus. 3. Ac tormentis com majoribus quam minoribus pulvere tormentario ac hastis et telis aliisque ar'maturis pro bello sufficientibus. 4. Et cum ' duplici eskippamento, nec non victualibus us" que ad primum diem Martii jam proxim' sequen' ad tot homines competen'. 5. Et abinde in viginti et sex septimanas ad custagia vestra, tam in victualibus quam hominum salariis et aliis ad guerram necessariis per tempus illud super defensionem maris in obsequio nostro, in comitiva custodis maris, cui custodiain maris ante prædict' primum diem Martii committemus et prout ipse ex parte nostra 'dictaverit moratur parari, et ad portum de Portsmouth circa decimum primum diem Martii duci facias. Ita quod sint ib' in eod' die

Preclose of the Writ for the Ease of the Subject. Et ulterius mandamus quod circa præmissa diligenter intendatis et faciatis et exe'quemini cum effectu sub periculo incumbente. Volumus autem quod non colore præd' man' dati nostri. 1. Plus de iisd' hominibus levari 'fac': quam ad præmiss' sufficien' ad expensas 'necessar'. 2. Aut quod quisquam qui pecu'niam de contribuentibus ad præd' custag' fa

ciend' levaverit ead' vel partem inde penes se ' detineat. 3. Vel ad alios usus quovis quæsito colore appropriare præsumat. 4. Volentes 'quod si plusquam sufficiat collectum fuerit hoc inter solventes pro ratu portionis ipsis contingen' exsolvatur.'

By virtue of this Writ, Mr. Hampden is assessed to 20s. for his lands in Stoake Mandevile in that county, which, not being paid, is certified amongst others into the Chancery, upon a writ of Certiorari, dated 9 Mar. 12 Car. by a schedule thereunto annexed. And by a writ of Mittimus, teste 5 Mar. 13 Car. this writ of 4 Aug. 11 Car, and the writ of Certiorari, and the schedule annexed, is sent into the Exchequer, with a command there to do, for the levying of sums so assessed and unpaid, prout 'de jure et secundum legem regni nostri An

6

glia fuerit faciend';' whereupon a Sci' Fa' issued out of the Exchequer, reciting the said writ, to warn Mr. Hampden amongst others, to shew cause why he should not be charged with this money. Upon this he bring summoned, appeared, and demandeth the hearing of those writs and schedule, which being read unto him, thereupon he demurreth in law. And whether judgment upon this whole Record be to be given