NOTES

                OF THE JUDGMENT DELIVERED BY

                      SIR GEORGE CROKE

                 IN THE CASE OF SHIP-MONEY.



                           EDITED,

      FROM THE MS. IN POSSESSION OF THE EARL OF VERULAM,

                             BY

                  SAMUEL RAWSON GARDINER,

              DIRECTOR OF THE CAMDEN SOCIETY.




              PRINTED FOR THE CAMDEN SOCIETY.


                       M.DCCC.LXXV.

PREFACE.

The notes of Croke's judgment in the Hampden case, for the publication of which the Society has to thank its President, are much more brief than either of the two reports printed in the State Trials, but have the advantage of autograph corrections by Croke himself. The judgment attracted considerable attention at the time as being the first delivered in favour of the defendant. Words inserted by Croke are printed in italics. Words scratched out with the pen are given between brackets in the notes. Croke's handwriting is so minute and illegible that I have had considerable difficulty in decyphering it, but, with the kind assistance of Mr. Kingston, I believe that I have succeeded in interpreting it correctly, with the exception of the figure referred to in note e at p. 8.

The Notes taken of the Argument by me in the Eschequer Chamber the first Saturday in Easter Terme, 14 Caroli, beinge 14th Aprilis 1638.

This is a case of as great consequence as ever came judicially into any Courte, therefore it behoveth us to be as carefull in delivering judgement in it. I have deliberately scanned what hath beine said of both sides at the barre by the counsell. I have considered maturely of what hath beine delivered by my brothers; uppon hearing of their grave judgements I endeavoured as much as in mee lay to conforme my owne opinion to theirs, much suspecting that my owne judgement was not guided aright when I heard them all judicially uppon their oathes give their judgement against my single opinion. Yet, because every one hath a private conscience to satisfie and give accoumpt of to God, I cannott be swayed by any thing that hath beine yet saide to give my judgement with the multitude; but in my opinion judgement ought to be given for the defendant. However, when judgement shalbe given in this Courte one waye or other, myne and all other men's judgements and consciences must be regulated accordingly; but to shewe that judgement ought not to be given against Mr. Hampden, I shall deliver my reasons, which shall stand upon these positions.

1. That the writt of 4 Aug. directed to the sherife of Bucks to provide a shipp, with munition, &c., at the charge of the inhabitants of the county and to rate them, &c., is against the common lawe, for that is not by assent in Parliament.
2. That it is against diverse stattuts.
3. 2 That no pretence of prerogative, royall power, necessity , or danger, doth or can make it good.
4. That it is not warranted by any presidents vouched, especially not by any one recorde judiciall; but rather in my understandinge expresse records against the legality of these writts. To examyne the parts of this writt. To examyne the parte of this work.
5. That the motives of the writt are not sufficient to lay this charge uppon the county, and are not warranted by former presidents.
6. If they were, yet the command of the writt is against the lawe.
7. If the writt were legall, yet the manner of assessment by the sherife as it is certified is not warranted by the writt.
8. That the cerciorare and scire facias issued not out legally, and so consequently no judgement can be given agaynst the defendant thereupon. The mittimus is that the barrons shall proceed secundum legem et consuetudines Regni Anglie; so wee are not to judge here according to conveniency or state policy, but according to the common law and custome of England we are to judge. Wee fynde in our bookes, recordes, or stattutes; if wee cannott fynde it to be lawe by these wee cannott judge it to be lawe. Therefore Mr. Litleton, sect. 108, discoursing uppon the Stattute of Merton, saies that wee shall never intende that to be lawe which never was putt in use, and uppon which no action hath beine brought. This reason aplyed to our case induces mee to conceave that this writt is not agreable to the comon law, because before this tyme there was never any such writt to charge a county.

The comon law of England settes a freedome in the subjects in respect of their persons, and gives them a true property in their 3 goods and estates; soe that without their consent (that is to say their private actuall consent or implicyte in Parliament) it cannot be taken from them. And as to this purpose the lawe distinguishes betweene bondmen, whose estates are at their lords will and disposition, and freemen, whose property none may invade; for in our case here is a charge layde uppon the free subject without his consent, and therfore not warranted by the lawe. Lambert saies no unjust taxation nor any other tallage may be layde on the subject. 17 K. John, the King saies, nullum tallagium, nullum scutagium, nullum auxilium, &c. without common consent in Parliament. Fortescue, Chancellor and Cheife Justice of England in Henry VI. tyme, that knewe well the lawes of England, in his booke De Laudibus Legum Anglie, &c. fo. 25, 9 chapter, saies that the K. of England cannot alter nor change lawes of England at his pleasure, for principatu nedum Regali sed et politico ipse populo suo dominnatur. If his power were royall onely, then he might change the lawes, tallagia quoque et cetera onera eis imponere ipsis inconsultis; but addes that the K. of England sine subditorum assensu leges mutare non potest, nec subjectum populum renitentem onerare impositionibus peregrinis; and in his 13 chapter, fol. 31, he compares the K. and Comons of England to the head and body naturall : Ut non potest caput corporis phisici, nervos suos commutare, neque membris suis proprias vires, et propria sanguinis alimenta denegare sui, nec Rex, qui caput corporis politici est, mutare potest leges corporis illius, nec ejusdem populi substantias proprias subtrahere reclamantibus eis, aut invitis. Thus he in this place; but in fol. 84 he seemes to saye, in hoc individuo Rex Anglie nec per se nec ministros suos tallagia, subsidia, aut quaevis onera alia imponit ligiis suis aut leges eorum mutat aut nova condit sine concessione vel assenssu totius regni sui in Parliamento suo expresso; which wordes seeme generail, that in no case he may doe it; so the yeare booke of 13 H. IV. 14, 4 shewes that a small charge of 1d. cannot be layde on the subject in generall but by Parliament; yet the lawe allowes in some private cases, where there is a small charge layde, soe as there be apparent particular benefitt to those that are taxed, that a charge may be layde, as the cases of murage and pontage, and the case of 5 Reporte, 54, Clarke's case, where townes by bye lawes made betweene them may lay charges and rate one another toward the better government of the towne; but in these cases the tax must be very small, and if the murage or pontage be too great the judges shall judge of it and dissalow it; Soe in the Register, 127, uppon an inundation of the sea uppon the inland marshes, the King may awarde a commission to compell those who are within the danger to repaire the banks, and lay a proportionable charge to keepe out the sea. So may the Commissioners of Sewers doe, 10 Report, 142. But in these cases there is a particular actuall losse repaired or a particular benefitt, and these are but in petty trifles; and in such cases the comon lawe may allowe it, Quia de minimis non curat lex. But in our case there is a publique generall charge throughout counties, which the lawe will not suffer.

Ob[jection]. But it hath beine said this charge is for publique defence; and may not this be done when every one hath advantage by it?

A[nswer]. Yes, there may be a charge, and there ought to be a publique defence, but this must be done in a due and ordinary way, scilicet 14 E. II. rot. 60. by Perliament, in which the subject may give his consent. In 14 E. II. rot. 60, in B.R., there it appeares that the Scotts had invaded Durham; the inhabitants compounded with them for moneyes, and gave hostages for the payment; hereuppon, because moneyes could not presently be rated and gathered, the towne ordered there should be search made, and where moneyes were founde that they should be taken towards the redemption of the hostages. Hereuppon, moneyes being founde with J. S., they were taken. J. S. brought his action in Durham, and there judgement was given for 5 him. But afterwards comeing into the King's Bench by error, the judgement for him was reversed. The reasons on recorde are,

1. Because he had his remedy over against the inhabitants;
2. Because his particular assent to the ordinance did appeare, soe that, tho' he were afterwards unwilling, yet haveing once consented his goods might be seized. By which it seemes that if he had not particularly assented at all, that such an ordinance would not have beine good to charge him by the law, though this were a cause of danger and defence.

2 R. II pars primo. The notable roll of 2 R. II. pars 1, proves as much, which, though it be no Act of Parliament, yet it being a recorde uppon deliberacion resolved, showes what the lawe was then conceaved to be, where all the lords and sages considered how money might be raised in a case of imminent danger, such as they all could take notice of, and such as could not brooke the delay of a Parliament, and the King's cofers, the record saies, that they all said, that moneyes sufficient could not be had but by laying a charge uppon the subject, which, say they, cannott be done but by Parliament; and therfore some of the lords themselves suplyed the King with moneyes, and expected a Parliament for theire payment, a case which methinkes is now before us or a stronger; and therfore this charge without Parliament is illegall, and reason it should be so, for otherwise the law would suffer a great inconvenience; for admitt a power to charge 20s. now, it may be as well 20 li. hereafter, and no judge to mittigate or controll it. And though justice and mercy shine in our King now, so that wee knowe he will not demaunde but what is needfull, yet the lawe, foreseing inconveniences, will not allowe this charge, least if the King would demande unreasonable charges he might doe it. An example of this inconvenience you have in the Danegeld, which at the first imposition in anno 991 was 10,000 li.; the next, anno 994, was 16,000 li.; the next, 1002, was 24,000 li.; the next was 1007, which was 36,000 li.; the next was 1012, which was 48,000 li. So never but single subsedies and 6 fifteenes were used to be granted in Parliament untill a 31 Q. Eliz., then a double subsedy and so double fifteenes was granted. Afterwards in 35 Eliz. treble subsedyes and fifteenes were granted, and 43 Eliz. 4. subsidies and 8 fifteenes. And yet this is not grevious were it 10 subsedies, because in Parliament.

Tonnage and poundage were granted to this end, 13 R. II., and have continued ever since by severall grants, that the King might have moneyes in his purse against tyme of need for extraordinary occasions, especially for the defence of the realme and for guarding e the seas, as it is specially declared by the stattute of 1st Jac. and former statuts. Ob[jection] But it is sayd that tonnage and poundage is not granted now to the King, therefore the King is enforced to take these extraordinary corses.

A[nswer]. Though it be not granted, yet I thinke it be taken, and I doubt not but to the same intent and for the same for which it was first granted, which was for defence of the kingdome. Therfore in case of danger and necessity every subject for defence of the kingdome is ligeancie debito, as some records say, and ligeancie sue vinculo astricti, as others speake, se et sua totis viribus et potestate exponere, &c. And in such a case the K. may comande the persons of his subjects, and arrest their shippes to wayte on his for to defende the sea; yet this too, when they go out of theyr countyes, at the K.'s charges. But to comande the subject by writt to builde new shipps or to prepare shipps at theyr charges, or to lay a common charge on the subjectes in generall for matter of defence or everyday danger, is not warrantable by the comon lawe.

But admitt that the comon lawe were doublfull that by any course of prerogative or royall power this charge for defence or in tyme of danger might be, yet the Kings of England, by diverse Acts of Parliament, have given and allowed this liberty to theyr subjects, that they shall not be charged but by theyr assent in Parliament, 7 and have restrayned themselves to exercise this prerogative or royall power otherwise, 25 E. I. ca 5, where the K. grants a tout la comunalty de la terre, that where the subjects had granted ayds towards his warres nul tiel manners des aydes, mises, ne prises ne prendrons forsque de comon assent de tout le roialme; saves les ancient eydes et prises dues et accustomes; and what those ancient aydes were is commonly knowne, that they were ad redimendum corpus, ad filium primogenitum milittem faciendum, et primogenitam filiam maritandam, which aydes concerne not the subjects in generall but particular and liable thereunto by tenures; so that savinge need not have bene, for the body of the Act extended not to them but to generall aydes of the kingdome. However if this (salvo), as it hath beine objected, would preserve this ayde now in question, yet the stattute made afterwards, De Statt. de Tallag. no concedendo. Tallagio non Concedendo, being without any salvo, takes it away, which stattute, although it were very probably argued by Mr. Solicitor to be no stattute because it cannott be founde uppon recorde, yet it all wayes hath beine receaved a stattute, and all books printed as a statute in force. And all my brothers that have argued before have agreed it to be a stattute in force: and I doubt not but it is a stattute in force.

The words of this stattute are, Nullum tallagium vel auxilium per nos vel heredes nostros in posterium in regno nostro ponetur seu tenetur sine voluntate et assensu archiepiscoporum, episcoporum, comitum, baronum, civium, burgensium, omniumque liberorum hujus regni. A lawe so full that I doe not see how wee can exempte this ayde out of it; a lawe with which Boden, p. 97, saies, in his Republica, the subjects of England have ever since defended themselves against all aydes demanded by their prince, as with a buckler.

8 The statute of 14 E. III., ca. 1, the King in playne words grants that no charge shalbe layde upon his subjects without their consents in Parliament. A stattute so clere that they who have argued have endeavoured to give it this answere, by making it a temporary stattute, intended to last but during the King's life; which answere, in my judgement, cannott stand with the wordes of the Act, for, had the King intended it should last no longer then during his owne life, to what purpose doth he grante for him and his heires?

The stattute of 21 E. III. gave the King a certaine new tax uppon packs of woolls and wool fells* and goods transported beffor Michaelmas and uppon marchandize 6d. in the pound to be imported before Michaelmas. The King by proclamation, [3l] October, after added a further tyme until Easter; which afterwards, in 22 E. III., was dissallowed in Parliament, but the former tax till a further tyme.

The stattute of 4 H. IV. num. 28, the Commons granted subsedies to the King for defence of the kingdome, with this caution, that they should not be drawne into example, &c.; which caution was added to no purpose at all, if the King might of himselfe comande them by writt.

13 H. IV. num. 10. That a charge should not be layde uppon the subject, ne pur defence del roialme, sauns Parliament.

13 H. IV. num. 43, the King erected an office of aulnager to mesure clothes, and annexed a fee of one penny to be paid him for the mesuring of it. The office was for publique good, yet, because there was a charge uppon the subject by it, though it were but a 1d., yet in Parliament putt dowhe and dissalowed, as against the lawe.

2 H. IV. num. 22. There, in hoc individuo, a commission was awarded to diverse townes to provide barringers for defence, the 9 comission was complayned of in Parliament, and declared to be of no force.

The stattute 1 K. III., ca. 2, 'tis enacted that henceforth no benevolence or such like charge shalbe imposed on the subject but in Parliament. Note this: no such like charge,

Lastly, the concluding lawe is the Act of 3 Car., where a comission was awarded in which as many causes to levy money were recited as are in this writt: as the safegard of the common wealth, want of moneyes for public defence, &c. Yet, uppon complaynt and petition by the Commons, this comission was called in; and in the Petition of Right all these stattutes (saving the stattute of 14 E. III.) are particularly mencioned. And though it hath beine conceaved that that stattute was not in force, because not mencioned there, yet it is to be noted that there was in their petition wordes which may include this stattute of 14 E. III. (as diverse other stattutes); so that, notwithstanding this conjecture, that may remayne a lawe in force, all those stattutes which were included in the Petition of Right being confirmed, by which confirmacion the King granted nor allowed of no more then was formerly given by the old stattutes, as all the judges did then declare in Parliament. Soe that, because wee ought to judge according to the intention and meaning of these stattutes, I conceave that the law makers did intende to restrayne the King to require any aydes but in Parliament; and therfore, in my opinion, this writt is against diverse stattutes.

Objection. But it hath beine objected that first here is an extreame necessity and danger, and will you the King stay the delay of Parliament before he can comande aydes for the defence of the kingdome in such an imminent perill.

An[swer]. I answerd that the King is not lefte by lawe so naked that he may not comande aydes and helps from his subjects in such a case of necessity; for there are two sortes of aydes, there is an ayde by way of imposition of a charge, and there is an ayde by way of personall attendance. The King in such a case of danger may comande the persons of his subjects, and their shipps too, to attende 10 his shipps in any place to defende the sea, and they must obay and performe ther personall defence; but to lay a charge to provide new shipps, that he cannot doe.

Scott Roll.
10 E. III. m. 2.
10 E. III. m. 16.
Alm.
12 E. III. m. 12.
13 E. III. m. 13. That he may doe the one is prooved by the precedents vouched. Where the invasion of enemyes appeared the King appoynted 2 admiralls for the defence of the sea, and comanded the navies of Ireland to attende them, and comanded all the shipps of his subjects throughout the realme to be arrested for his service; and this without question the King may doe.

That which is done by K. H. VII. in the 10th of his raygne, uppon credible informacion of an intended invasion, was but to keepe wach and ward, to cause men to be in armes, and in readinesse for defence.

So that, this power being in the King in such a case of .danger, the objection and fancy of a suddaine surprizall irremediable will not hold, and indeed these are those aydes which the King by writt may comande out of Parliament; which, though it be a great body, and mooves but slowly, yet anciently it was kept twice a-yeare; and by the stattute of 4 E. III., ca. 14, it was enacted that a Parliament should be held every yeare, uppon which ground also the law doth not feare a suddaine danger so unavoydable but that it may be prevented by Parliamentary aydes.

11 Ob[jection]. But it hath beine further objected that this is an inherent prerogative in the crowne, which the common lawe preserves inviolable.

Ans[wer]. If it were a prerogative royall in the crowne, which the law sees to be so, God forbidd but that wee should mayntayne it. 'Tis part of our oath to preserve the King's prerogative entire, but the lawe doth not judge this a prerogative in the King; for the law saies that the King can doe no wrong to his subjects, as they can doe no wrong to him; for, Com. [Gardiner's note:: Plowden's Commentary.] 246, Tort ne poet este fait al Roy [Gardinder's note: Sic; but the arguemnt requires, as it stands in State Traisl, lii, 1161, that the King can do no wrong.].. Therfore also, 10 Rep., Hoc tantum Rex potest quod de jure potest. And in 11 Rep. col. 72: Hoc tantum Rex non potest quod non potest injuste agere. And 21 E. III. 47, to the same purpose. Soe that that which the King would doe, if it be against the comon lawe or stattuts, the lawe doth not judge to be a prerogative in the Kinge.

By the stattute 31 H. VIII. royall power was granted to the King to make lawes by proclamation, but the stattute of 1 E. VI. tooke it away.

But it hath beine againe urged that the King in this case doth nothing but more majorum, and that he treades onely in the stepps of his auncestors.

If it were so, I might answere that judicandum est legibus non exemplis, for consuetude errori non prebet patrocinium, specially since the records and presidents are not judiciall or setled uppon debate of judges, but onely things acted and passed over in silence without dispute; and our bookes are that by such recordes the judges ought not to be much swayed, as 4 Rep. fol. 94, is; yet in my opinion, uppon viewe and serious reading of all the presidents, I doe not fynde one where there is any power given to any sherife to charge a whole county to provide a new shipp, specially to any inland county.

12 Ob[jection]. To this assertion the Recorde of 1 R. II. num. 12, is objected against mee, where there is a command to inland townes to make barringers at their owne costs and charges.

An[swer]. To this, I answere that uppon the beginning of this King's raygne there were some townes who came to renewe their charters, and in consideration that this might be done without paying any fine in Chancery they were comanded to make this provision; yet this was but to townes, not to any county. I shall therefore runne over the records shortely; for I have read and taken notes of every one that was brought mee by the counsell of either side.

Presidents.

First then the recordes of—

Temp. E. I.

Temp. E. II

All the presidents of this King's tyme were onely ad congregandum for the King's service, which the King may doe without controversy.

Temp. E. III.

And I thinke I may confidently affirme, that before 10 E. III. there was never any comande to provide any new shipps at the charge of the subject. And after the stattute of 14 E. III. vizt. :

Temp. R. II.

In this King's tyme there was no comande to provide shipps but onely to the Cinque Ports ad custodiam maris; and after his raygne never issued any writt to comande any shipps for defence of the sea.

15 Thus haveing runne through all the presidents, I will now precede to examine the writt it self.

The Examinacion of the Writt.

1. The writt recites, that datum est nobis intelligi, that quidam prsedones et marini grassatores did take the King's subjects, marchants and others, and carried them into miserable servitude.

There is no datum est nobis intelligi of any iminent danger to the kingdom, but onely of piratts, which recitall, for ought that I finde, was never putt in any writt by which aydes of shipping was comanded before the tyme; for, when they molested the coastes and hovered uppon the sea for booty, the King usually sent out a few shipps, and scattered them presently.

2. The comande of the writt to the sherife of Bucks to provide a shipp of such a burthen, and to provide victualls for 26 weekes. This comande is conceaved impossible, and therfore against lawe. Therfore,

2 [sic]. The comande is not only to provide a shipp to attende the King's shipps, but to furnish her with victualls for 26 weekes, the tyme of the rendezvous being within this tyme.

16 This comande I conceave not warrantable; because, though the King may comande his subjects' persons and shipps for defence, yet, after the tyme of their meeting, the King is to pay them their wages. Now, victualls is part of their wages, which yet must be provided by this comande after their rendevous, which is not legall.

That the souldiers have allwayes beine at the King's pay, and not at the subjects, appeares most evidently by the records of—

3. The next comande of the writt to the sherife is to imprison quos rebelles invenerit. This is against Magna Charta, by which every one is free from imprisonment unlesse it be done uppon indyctment or other legall processe.

There is no exception of peeres of the realme, but they are so; if they pay not the sherif's rate they may be imprisoned by the sherife. This I conceave very illegall, for a noble man is so priviledgd in respect of person by the lawe that no capias lies against him unlesse it be in case of comtempt. So that I conceave that this writt will not be a warrant sufficient to ground the scire facias uppon, so that that will fall too of it selfe.

Next this certiorare is without president, for it is directed to that sherife who laid the taxe and made the rate, he at the time of the certiorare being out of his office, which he cannott gett againe by this certiorare.

The certiorare, therefore, should have beine directed to the new sherife to have distrayned the old sherife to have made his retorne, and not as now it is.

17 Lastly, it doeth not appeare in the recorde that the sherife hath provided any shipp to which Mr. Hampden is rated at this 20s., and then he ought not to pay it.

Thus I have to my best power examined the proceedings of this cause, and uppon my reasons and grounds allredy delivered am of opinion that, notwithstanding any thing appearing judicially to mee in this recorde, judgment ought to be given that Mr. Hampden ought not to be charged with this twenty shillings.

{Indorsed) Rex versus Hampden.

Notes taken of my argument by Mr. Last.