The courts, however, seemed of contrary mind to the rest of the nation. In November, 1635, at the instance of Sir John Finch, the following extra-judicial opinion was delivered Extra-judicial opinions by the judges:—“I am of the opinion that, as when the benefit doth more particularly redound to the ports or maritime parts, as in case of piracy or depredations upon the seas, that the charge hath been, and may be lawfully imposed upon them according to precedents of former times; so when the good and safety of the kingdom in general is concerned, and the whole kingdom in danger (of which his Majesty is the only judge), then the charge of the defence ought to be borne by all the realm in general. This I hold agreeably both to law and reason.”[358]
On the 7th February, 1637, Charles laid the case before the judges of the Exchequer extra-judicially in much the same terms as the opinion of 1635. He requested an answer to the following question:—“When the good and safety of the Kingdom in general is concerned, and the whole Kingdom in danger, whether may not the King, by writ under the Great Seal of England, command all the subjects of our Kingdom at their charge to provide and furnish such a number of ships, with men, victuals, and munition, and for such time as we shall think fit for the defence and safeguard of the kingdom from such danger and peril, and by law compel the doing thereof, in case of refusal or refractoriness: and whether in such a case is not the King the sole judge both of the danger, and when and how the same is to be prevented and avoided?”[359] The opinion of the judges was ostensibly unanimous in favor of the crown; Coke and Hutton as a matter of fact dissented, but subscribed on the principle that the opinion of the majority should be that of the whole body.
In the face of this sweeping and conclusive opinion delivered privately to the king, there was apparently no hope for any one who should have to answer in that court for refusal. Hampden’s Case, 1637 Shortly thereafter, however, such a case came up. John Hampden, a gentleman of Buckinghamshire, had refused to pay the assessment of 20s. which was laid upon some of his lands, and by reason of his refusal was summoned to the Exchequer. He appeared and answered to the charge in November, 1637. He was defended by the brilliant Oliver St. John and Mr. Holborne. Solicitor General Littleton and Attorney General Bankes conducted the case for the crown.
The question upon which the case was argued may be phrased as follows: “Whether the king had a right on his own allegation of public danger to require an inland county to furnish ships, or a prescribed sum of money by way of commutation, for the defense of the kingdom?”[360] The argument for Hampden can be summed up under five heads:
The case for the defendant
I. The law and constitution of England provide certain ordinary revenues for the defense of the realm. These comprehend the military forces provided by those holding lands by military tenure; the liability of the Cinque Ports and others holding similarly to provide a quota of ships, by reason of their tenure; the feudal and other revenues inherent in the crown; the customs on wool and leather, and tunnage and poundage, and other special dues which were wont to be granted to the king in time of danger.[361]
II. The law and constitution of England provide certain extraordinary revenues when the ordinary revenues should prove insufficient, and for the defense of the realm. Chief among these were the subsidies and aids which were granted in Parliament. That Parliament was the only body capable of levying these charges was exhibited by the fact that the kings of England were wont to denominate their arbitrary exactions as “loans” and “benevolences.”
III. The statutes of the realm provided in most emphatic language that no tax should be levied on the subject without the consent of Parliament. The charter of the Conqueror, Magna Carta, especially Confirmatio Cartarum and De Tallagio non Concedendo, the statutes passed subsequently under Edward III, and more than all the others, the Petition of Right, showed the utter illegality of the ship money.
IV. The citations by the crown of exactions similar to the ship money did not demonstrate the lawfulness of the demand; they merely showed precedents of such a general levy. The case must be decided by law, not by precedents,—“judicandum est legibus non exemplis.”
V. In the present instance, the perils which the king cited were insufficient to justify an unusual demand for money. The precedent of the arbitrary actions of Queen Elizabeth at the time of the Armada could in no wise be taken as a justification for so great an exercise of the prerogative when the nation was at peace with the world; the piratical acts of Turkish corsairs or even the insolence of rival neighbors could not be reckoned amongst those imminent perils for which a Parliament could provide too tardily.[362]