much, attached, became additionally serious and religious, and at the same time devoted himself more sedulously to his public duties. He determined not only to resist the payment of ship-money, but to try the question, so as to make far and wide its illegality known. He consulted his legal friends, Holborne, St. John, Whitelock, and others, on the best means of dealing with it, and encouraged by his example, thirty freeholders of his parish of Great Kimble, in Buckinghamshire, also refused payment. No sooner, therefore, had Charles obtained the opinion of the judges, than he determined to proceed against Hampden in the court of Exchequer. The case was conducted for the crown by the attorney-general. Sir John Banks, and the solicitor-general. Sir Edward Littleton. The sum at which Hampden was assessed was only twenty shillings: the trial lasted for twelve days before the twelve judges, that is, from the 6th to the 18th of December, 1637.
It was argued on the part of the crown that the practice was sanctioned by the annual tax of Dane-gelt, imposed by the Saxons; by former monarchs having pressed ships into their service, and compelled the maritime counties to equip them; that the claim on the part of the king was most reasonable and patriotic, for if he did not exercise this right of the crown, in cases of danger, before the parliament could be assembled serious damage might accrue. The crown lawyers ridiculed the refusal of a man of Mr. Hampden's great estates to pay so paltry a sum as twenty shillings; and declared that the sheriff of Bucks ought to be fined for not putting upon him twenty pounds. But it was replied upon the part of Hampden, that the amount of the assessment was not in question, it was the principle of it. That the Dane-gelt could give no evidence in the case, the imperfect accounts to be drawn on the subject from our ancient writers being too vague and uncertain. Nor could the practice of any monarch before or after Magna Charta, establish any law on the subject, for Magna Charta abrogated any arbitrary customs that had gone before, and strictly and clearly forbade them afterwards. That no breach of that great charter could be pleaded against it, for it was paramount and perpetual in its authority. That various statutes since, and last of all the Petition of Right, assented to by the king himself, made any such taxation without consent of parliament illegal and void. That the very asking of loans and benevolences of different monarchs was sufficient proof of this, for if they had the right to tax, they would have taxed, and not borrowed. That the most arbitrary prince that ever sate on the English throne, Henry VIII., when he had borrowed, and was not disposed to repay, did not consider his own fiat sufficient to cancel the debt, but called in parliament to release him from the obligation. They reminded the judges of the great Edward I.'s confirmation of the charters, and of the statute De Talllagio non concedendo. As to the plea of imminent danger from foreign invasion, as in the case of the great Armada, as the crown lawyers had instanced, such cases, they argued, were next to impossible; notices of danger, as in the case of the Armada itself, being obtained in almost every instance in ample time to call together parliament. That in this case, there was no urgency whatever to prevent the summoning of a parliament; for neither the insolence of a few Turkish pirates, nor even the threats of neighbouring states were of consequence enough to warrant the forestalling of the constitutional functions of parliament.
The crown lawyers, baffled by this unanswerable statement, then unblushingly took their stand on the doctrine that the king was bound by no laws, but all laws proceeded from the grace of the king, and that this was a right which all monarchs had reserved from time immemorial. It was a pitiful sight to see men to whom the nation looked for the sound and faithful maintenance of the constitution,—namely, the judges, following in this outrageous course, and echoing the barefaced violation of common sense uttered by the attorney and solicitor general; as if king John had made any reservation from the sweeping clauses of Magna Charta, which was wrung from him; or as if it were not in the knowledge of all men that Charles himself had assented fully and unequivocally to the very fact which they were denying. Justice Crawley declared that the right of such arbitrary impositions resided ipso facto in the king as king, that you could not have a king without these rights, no, not by act of parliament. "The law," said judge Berkeley, "knows no such king-yoking policy. The law is an old and trusty servant of the king's; it is his instrument or means which he useth to govern his people by. I never read or heard that Lex was Rex, but it is common and most true that Rex is Lex." The pliable Finch, who did not need anybody to sit on his skirts here, as they had done when he was speaker of the commons, said, "Acts of parliament are void to bind the king not to command the subjects, their persons, and goods, and, I say, their money, too, for no acts of parliament make any difference." Certainly they made no difference to him, and if these base lawyers could have talked away the rights of the people of England, they would have done it for their own selfish interests. When Holborne contended that it was not only for themselves, but for posterity, that they were bound to preserve the constitution intact, Finch testily exclaimed—"It belongs not to the bar to talk of future governments; it is not agreeable to duty to have you bandy what is the hope of succeeding princes, when the king hath a blessed issue so hopeful to succeed him in his crown and virtues." But Holborne replied, "My lord, for that whereof I speak, I look far off—many ages off; five hundred years hence I "
But all the judges were not of that stamp; Hutton and Croke, who had dissented when the opinion of the judges was first taken, now made a bold stand against the illegal practice. As the ruin of a judge who thus dared to act in upright independence, was pretty certain at that time, we may estimate the degree of virtue necessary to such decision, and the noble self-sacrifice of lady Croke, who bade her husband give no thought to the consequences of discharging his duty, for that she would be content to suffer want, or any misery with him, rather than he should do or say anything against his judgment and conscience.
The case was not decided till the Trinity Term, the third term from the commencement of the trial, when, on the 12th of June, 1638, judgement was entered against Hampden in the Court of Exchequer. But even then five of the judges had the courage to decide for Hampden, though three of them did this only on technical grounds, conceding the
