The annals of King James and King Charles the First ... containing a faithful history and impartial account of the great affairs of state, and transactions of parliaments in England from the tenth of King James MDCXII to the eighteenth of King Charles MDCXLII : wherein several material passages relating to the late civil wars (omitted in former histories) are made known.

The Argument of Judg Hutton.

THe King by his Writ 4 Augusti Informs, that there were certain Piratae & Maris Gras∣satores, and they were gathered together in Ho∣stile manner to hinder all our Merchants from landing their goods in our Ports, or for having any free passage to foreign parts: And reciteth that there are Wars abroad, and that considering these perils and dangers, and that the Defence of the Subjects consists in the defence of the Sea; which at all times belongs unto the Kingdom, and the charge of the defence to be supported by all, the King is sorry that in his time it should fall a∣way and not be defended; Hath sent forth a Writ therefore to the Sheriff of Buckingham (as to other Counties) to provide a Ship of such a burden against 1 Martii, and to come to Ports∣mouth, and there to remain for 26 weeks, and to do as shall be directed them for the defence of the Kingdom, and the Writ directed, That all that are Inhabitants shall be Assessed for the providing of this Ship with men and muniti∣on: By force of this Writ, Mr. Hampden being assessed at 20 s. there went forth a Certiorari a year and a half after, directed to the two She∣riffs of the County of Buckingham, to certifie what Sums they had assessed by vertue of the said Writ 4 Aug. Two several Certificates into the Chancery of this Mr. Hampden 20 s. 5 Muii, 13 Car. The King by Mittimus out of Chancery re∣cites, that when he had awarded the Writ 4 Aug. to the Sheriff of Bucks, and that it was for the de∣fence of the Kingdom, and security of the Sub∣jects, he doth send this Writ 4 Aug. and Certi∣orari, and commands the Barons to do that which appertaineth to be done; whereupon a Scir. Fac. is awarded, whereupon Mr. Hampden hath ap∣peared and demanded Oyer of the Scir. Fac. mitti∣mus, Certiorari, and the Writ 4 A••g. And hath joyned in demurrer. And how this Scir. Fac. li∣eth is the question, and I am of opinion that this Scir. Fac. doth not lie, and that Judgment in this case ought to be given against the King.

For the better understanding of the Court, I shall observe, in the method of my proceed∣ing.

1. Whether a charge of this nature may by the King be imposed by original Writ; only un∣der the great Seal of England, without a Parlia∣ment? wherein I hold it cannot be proved by authority and reasons, unless in time of Actual war and invasion.

2. I will answer those objections made only be∣fore by them that have argued, that these Statutes do not extend to this kind of Prerogative, that this Prerogative is not taken away by any of these Statutes.

3 I will answer the Precedents, both by Pre∣cedents of equal nature and by some reasons, whereupon I will conclude that this Prerogative and Power which is monarchial is included, and taken from the King, and that this must be done by Parliament.

4. I will answer some objections that now and before have been made by Mr. Solicitor, &c.

5. I will insist upon this Writ, that it neither containeth matter sufficient in the Writ it self; nor is there matter to warrant any such Levy, as is pretended, neither is the same lawful, nor

can it be mended by the Mittimus, nor can be commanded by those Sheriffs that are in this case no Sheriffs upon the matter.

Now, as my brother Jones hath taken a great deal of time, I will not be drawn from my own order by what he hath said, but answer him in his Argument.

First I say that this power of Assessing of mo∣ney being a general charge; cannot be by the law at this day, (unless in time of actual war,) imposed upon the people, but by the Act of Par∣liament.

The Acts of Parliament that have been men∣tioned.

The first was magna charta; which is an anci∣ent and great Statute, it cometh unto us with an Inspeximus from E. 1. Confirmed 30 several times; the words are, dedimus & concedimus has libertates subscriptas in perpetuum, nullus liber ho∣mo capiatur vel imprisonetur, aut dissesietur de libero Tenemento suo vel libertatibus, &c. aut aliquo modo distringatur, aut in carcerem mittitur, nisi per le∣gale Judicium parium suorum, vel per legem terrae. King William the conqueror made those Laws and swore men unto those Laws, and then King Edward in the last chapter, commands them to be kept, and he will keep them so long as con∣cerned him, and all his people for ever, and for this they granted him a 15 part of all their goods, and it is a Statute clear to this day, Stamford 172. to be tryed per pares, as the Ba∣rons at this day have for their tryal the privi∣ledge of this Statute.

Next Statute 25 E. 3. Ca. 5. reciting: and for∣asmuch as divers of our people, &c. wee have granted for us and our heirs, that we shall not draw such aid and prize into custom, for any thing done heretofore by any other rule or Prece∣dent that may be found, so their is now not only for tax for war, but for any other business what∣soever; fors{que} de Comon Assent de tout la Realm, saving the Ancient aids and prizes due and ac∣customed, and this saving is nothing; for these Statutes extend to no particular; for if any ex∣tend to aid by Tenure, all England is not bound unto this, but some few, the Statute extends to such aids as the whole Kingdom is Subject unto; none will say that all the people hold of the King pur file marier.

The Statute of 34 E. 1. concerning certain Liberties granted by the King to his Commons, this is 1524 printed 25 H. 8. no Talliage to be taken or levied to us, our heirs or successors with∣out the good will, assent of Arch-Bishops, and Bi∣shops, or other Burgesses, free men of the Realm. This Statute hath been quarelled with all; but the words thereof are very effectual.

Statute 14 E. 2. agreed to be perpetual by my brother J••nes; for my part I can see no reason why it should not be so, the Statute reciteth that whereas the Barons and Commons of our Realm have granted of their good free will, the King an aid towards his wars as well on this side the Sea as beyond; the ninth Sheep the ninth Sheafe, &c. the ninth part of all their goods; And we Will and Grant for us and our Heirs that the same so charged, shall not be brought into example to make any Aids, he doth not say such Aids; and that in the Parliament, no man can say against these words, they are so full and absolute.

The Statute of 25 E. 3. Enacts that none shall be compelled to find Hoblers; si il ne soit per Common Consent in Parliament; The reason given in the Parliament-Roll is very Observable Car ceo est encounter le droit del Realm; these words are in the Roll; and yet left out in the printed Statutes; But the reason I know not.

This Statute of 25 E. 3. is confirmed by the Statute of 4. H. 4.

The Statute 1 R. 2. a very good Statute, though in a young Kings time, enacted and done by the Lords and Commons in Parliament, there hath been made Injunctions to charge the Subject.

Now H. 4. invented divers benevolences and that is recited; that whereas divers inventions, &c. (All the world I think is full of Inventions) It is enacted from henceforth that the Subject shall be no ways Charged with any such like Charge, they gave it the name of Benevolences; But indeed were impositions, and great charges collected with that name.

I conclude with that of the Statute of the King, the petition of right which reciteth the Statute de Tallagio very many particular things are menti∣oned there, men not to be compelled to lend mo∣ney, without common consent in Parliament; which is rather a confirmation, then an affirma∣tion of those Statutes; I have done with the words of the Statute.

For the Authority of the Year-Books.

I will confirm those two Authorities cited by my Brother Crooke, though my Brother Jones slight the Authority. 13 H. 4. The principal Case being then a Grant of an Office of Measu∣rage of Cloth, and put in practice; and being granted out of Parliament, condemned to be void; for the King can grant no common Charge on his People, but in Parliament. And though my Brother Jones saith, that perhaps such a Charge was Damnum, but not Irjuria, surely had not there been more in it, it had not been damned as not Legal.

The other Authority is that of Fortescue, (though my Brother Jones in that Book doth omit that which is material; for that man he was sworn Chief Justice of England, afterwards made Chancellor, who faith expresly in his Ninth Chapter, That the King of England cannot alter any Law; that he governeth his People not only by Royal, but by Politique Power and can lay no Charge upon them but by Parliament.

The King can change no Law, nor make Land Gavel-kind which is not; nor make Land devisa∣ble which is not; which he might do, if it were to be done by Power Royal. Fortescue conclu∣deth with this excellent Saying, fol. 26. 6. Re∣joyce therfore Sovereign Prince, and be glad; for the Law of your Realm administreth to you and to your People no small Security and Comfort, &c. Pre∣rogative strengtheneth Ability, Liberty maintain∣eth Prerogative. Cap. 38. is strong and full a∣gainst the King; which my Brother Jones was pleased to omit: The King may by his Officers take Necessaries for his House; nevertheless he is bound by Law to pay for it; for by the Laws he ought not to take any of the Subjects Goods without making satisfaction for the same; nei∣ther can he lay any Talliage, Subsidy, or other Burden, or make new Laws, or alter old Laws, without express Agreement of his People in Par∣liament.

I have done with the Positive part of my Ar∣gument; I will not trouble you long: I will An∣swer

some Objections now made, and heretofore made against these Statutes.

1. For the Statute de Tallagio non concedendo; True, it was very probable it was no Statute, but an Extract out of the Statute 25 E. 1. . which is upon Record; the other not being to be found upon the Roll. It is averr'd (una voce) it was a Statute, though not without probability no Sta∣tute; as it was learnedly observed by Mr. Solicitor, in respect of the Kings Absence, being beyond the Sea: only I collect this out of his Argument, that he thought that that Statute did tend very far against the King; which he could Answer no way, but to take it away, therefore he thought it a Statute of some force.

Next, my Brother Barkely would have the Statute 14 E. 3. to be but a temporary Sta∣tute, and during the continuance of those wars, the first part of the Statute is absolute; but the latter part is but a temporary Statute, and during the continuance of those wars; it must needs be perpetual, because it is granted for the King and his Heirs.

Next Objection, by my Brother Jones and Brother Crawley, That this Power Royal is a part of the Prerogative appertaining to his Person, and inherent to the Crown, a Proprium quarto modo, so inseparable, that an Act of Parliament can∣not take it away.

Sol. I confess there are some inseparable Pre∣rogatives belonging to the Crown, such as the Parliament cannot sever from it: And I will prove unto you out of Book-Cases and Statutes, that the King cannot release his Tenures in Capite. It was endeavoured a Law should be made, that the Court of Wards should be shut up: It was re∣solved, that it had been a void Law; such is the Care for the Defence of the Kingdom, which be∣longs inseparably to the Crown, as Head and su∣preme Protector: so that if an Act of Parl. should eract, that he should not defend the Kingdom, or that the King should have no Aid from his Sub∣jects to desend the Realm, these Acts would not bind, because they would be against Natural Reason; but in our Case here, there is no such thing; for therein is no Act that restrains the King to lay any Charge at all, but only ties him to one Means by which he should come by it, to wit, by Parliament. If before the Statute, a Man Alien Land held of the King, without Li∣cence, the King shall seize the Land, and have it forseited to him and his Heirs for ever. Now by that Statute the Prerogative is restrained to a reasonable Fine only; this was as inherent in his person, as any thing could be; and yet it is re∣strained by Parliament.

Before Magna Charta, the King might take any Mans Goods for his Provision, and cut any mans VVoods down to Build or Repair his Ca∣stles; yet since that Statute, it is Enacted, That Nullus Vicecomes, 〈◊〉〈◊〉 Ballivus noster capiet Equos, &c. nisi redd••t h••e••ationem, n••c capiemus boscum ali••••••m ad Cas••ra, vel ad alia agenda nostra, nisi per vol••••tatem ••jus, ••ujus Bos••us ille fuerit: And to this day this Statute is of force, that the King cannot take these things, nor use his Preroga∣tive.

This Prerogative of Nullum Tempus occurrit Regi, is a great one, yet in some Case of Lapse of Churches, this Prerogative is taken away by the Statute of 25 E. 3. cap. 1. where the King granteth for him and his Heirs, not to Present, but in his own time; and this being pleaded, 11 H. 4. fol. 7. is adjudged against the King, not∣withstanding the Rule of Nullum Tempus occurrit Regi.

The Statute of 7 H. 8. cap. 3. concerning Re∣straint of Informations, and that of 21 Jac. whereby the King excludeth himself, to make a Title to any Lands whereof he had not been in possession within 60 years before this time; he was tied to no time, but unlimited; and yet this great Prerogative is thus bounded. 30 E. 3. cap. 10. Parliaments to be holden every year one or more, oftner if need be, because of divers mis∣chances that may happen. It is to be acknow∣ledged as a Gracious Favour from his Majesty to his Subjects, that he would admit of this Case to be argued in an ordinary Court of Justice, and not reserve it to the Parliament; to which place all such weighty Causes are most fit to be reserved. I am satisfied in my Conscience, be would do nothing in this Case, if he were justly informed, or may be informed he ought not to do it by Law.

The Laws of England mutari non poterunt with∣out consent of Councel gathered together, si in∣usitatum emerserit (saith Fortescue) as this Case is ore, it is referred to the next Parliament; si ali∣quid aut inconsueta, then it is to be put to the Parliament.

2 E. 3. fol. 7. There ariseth a new Question concerning the Statute of Winchester, about re∣covering by Actions against the Countrey, when Robberies were committed; there the Case in respect of the difficulty, was referred to the Par∣liament; and there the Sheriff was warned to have his Money.

You shall see a Notable Case in the Register 224. among the Writs of Two that were at York, and served by a Clerk in the Chancery there, to appear at Rome; and because of this Contempt, they were committed to Prison, and a Writ came to Bail them, returnable coram nobis in Par∣liamento. So Matters of Difficulty were Adjourn∣ed into Parliament.

Westm. 2. cap. 28. In novo casufiat novum Reme∣dium in Parliamento, to resolve Cases of Diffi∣culty, Statutes have Enacted, That there should be Two Parliaments every year. 4 E. 3. cap. 4. which was a great Confirmation of this Realm. Lit. 110, 180. Parliaments frequent. I know not what to say, that this Kingdom that hath thus long flourished, should now forget her frequent kind of Government by Parliament, whether by reason of things past, or some Disaster fallen, that this which is the Ancient way (I do not say that Parliaments is the Government, but that Kings have governed by Parliament) is so much out of use now adays; I do not prescribe Pow∣er to the Parliament to govern the Realm, but the Publick have been governed by the Parlia∣ment.

There was seen too much of the Ambitious Humour of some in the last Parliament, that stir∣red up nothing but Confusion and Discontent∣ment, as we now feel it to our great prejudice.

PRECEDENTS.

Now I come to the Precedents. First, That of Danegelt hath been Objected: Of which there were two kinds; as Sir Henry Spelman in his Glos∣sary observes; one ad pacandum, the other ad co∣ercendum Danos; Great Sums of Money they had to go home again; from 12000 to 48000 l. per Annum, it was raised in three years: It conti∣nued

till King Stephen's Time; in which Time it is said it was released: For my part, I see not, but that it might be now put in use as formerly, had it not been for these Statutes of E. 1. and E. 3. before-mentioned; for it was not laid down when the Danger ceased; but was continued and taken up by Princes when they had a mind to it; as by William the Conqueror, and William Rufus: But since these Statutes, it was never used (and here he read the Words of the Sta∣tutes) so if these Statutes took that away, why do they not bind in our Case? which is a full Answer in my opinion to that and all other Pre∣cedents before these Statutes; there have been 200 shewed on the one side, 200 on the other; But I say, it had been better they had never made use of them: So to all the Precedents be∣fore the Statute de Tallagio concedendo, I give this general Answer, wto be of no force; for the Pre∣cedents in the Time of H. 3. which were many, yet in those Commissions for preparing of Gal∣lies, after they were made, they were at the Kings Cost; this may be done at this day. And with the Statute of 14▪ E. 3. I Answer those Pre∣cedents of 10, 11, 12 E. 3. And by the way ob∣serve the Times that were then; that Statutes were forced to be made to remedy those Evils; and surely those were the Burdens and unreason∣able Taxes which the King in the Thirteenth year of his Reign confessed he had oppressed his Subjects with, and desired they might be forgot∣en, because he was urged to it by his necessities, and not for any ill end of his own, (And so he caused the record it self to be read openly before all the Judges) 2 H. 4. 2 R. 2. a general assem∣bly called and resolved that money could not be raised but by Parliament, since this time all the Precedents that have been vouched, were for ar∣raying of men and putting them in Arms and rea∣diness.

28 H. 8. There were some forced upon their own charges, to go to suppress some Rebels in Lincoln-Shire; But afterwards were recompenced for their charges; saith the record, our pleasure is to send a messenger and a bill of charges he shall satisfie them; I do agree and there are many Sta∣tutes, that men should be arrayed; as Statute of Winchester, which are only preparations to make men ready.

Now, for that hath been urged by Mr. Attor∣ney excellent well, that the King by the Law of the land, hath a Prerogative in the Lands and Goods of his Subjects: So that the Sheriff may in some cases for him break open a man's house, and the like, because he cannot execute Justice. Tis true the King hath such a Prerogative and fit it should be used; for otherwise Justice could not be ad∣ministred, as it is in many cases; The Sheriff (tho a verdict by default) hath power by the Preroga∣tive of the King, to break into the house, and give possession; for otherwise Justice could not be administred if all laws were contemned; for which contempts the King may use his power: Again the King of his own charge maintains his Courts of Justice and is bound so to do 39 H. 6. 34 H. 6. and in lieu of these charges the Law gives these Fines and other duties; for there is upon the mat∣ter a quid pro quo, But where there is an Interest in a Subject, he cannot take it away without his consent, as he may do it in Murage and Pontage and the like; for their is a particular benefit to the Subject, so I think I am almost at an end of Answering the first and second part of the Pre∣cedents, the Ancient time was one way, the mo∣dern time another way.

In E. 4. Time Rich. 3▪ Hen. 7. Time, All for wa∣ges for Mariners, certain allowances they had, what a week and what a day.

But you say, here in this case appears no mo∣ney to be paid by the Subject, but only for a Ship to be provided by the Sheriff, and not any mo∣ney to come unto the Kings purse.

Sol. I must conclude this part with an Agree∣ment agreed by all, That if this Writ had been to Levy Money, all have agreed it had been void.

As I do take it, the Writ is to prepare a Ship of such Burden; So the Ship is the Matter; then give me leave to say this; and I say, as it appears plainly by the Record, there was no Ship pre∣pared at all: then if no Ship, no Writ can be had against him for disobedience to his Com∣mandments: Its known to all the world, it is not Ships, but Ship-money; Ship-money in every mans mouth. It hath a Name of preparing of Ships, but the end of it is to prepare Money; as in Yorkshire 12000 l.

If the Provision of a Ship had been expresly al∣ledged, it might have been traversed; and there∣fore Mr. Hampden's Councel could do nothing but Demur; and by Demurring, they confess nothing but that which is materially, and so suf∣ficiently alledged, that it might have been deni∣ed by a Traverse.

But you will Object, That I did subscribe to a contrary Opinion, and set my Hand unto it.

To this, for my own part, I must say, and say it truly, That my private Opinion was ever against it: I did subscribe; but it is true, that it was but for Conformity: for it is known to all, when a great Number meet together, the Judg∣ment is, that as the greater Number saith: Be∣sides, these words to which we subscribed our Opinion, are no ways pursued.

Secondly, Our Opinion was very suddenly required; for the King's Letter bears Date Feb. 2, and our Opinions unto it, bears Date following; and it was in a Case wherein we never heard any Argument; so that we usually do; and God forbid but that we may dissent from our private Opinions upon better Reason heard; but I am of the same Opinion now I was then.

But it will be said, we might have done it more advisedly. No man of us, but sometimes deli∣ver our Opinion, and yet after we have heard an Argument, have changed our Opinion, and gone contrary to our former Judgment.

Thirdly, If after any Arguments heard, I had been of the same Opinion that was deliver∣ed, yet this Writ doth not pursue the Direction: for though we directed that the King might Charge in case of a general Danger, yet this was, and is intended not in danger of Pyrates: but upon an imminent necessity and apparent danger, as could not be avoided; for I do agree, in time of War, when there was an Enemy in the Field, the King may take Goods from the Subject. Such a dan∣ger, & such a necessity ought to be in this Case, as in case of a Fire, like to consume all without speedy help; such a danger as tends to the overthrow of the Kingdom: Give me leave to say, that Kings of England have had great Power to take this to themselves. 17 H. 8. In the Cardinal's Time, that it was lawful to send forth Commissi∣ons throughout England to take a Sixth part of the Subjects Goods: whereupon, many upon Re∣fusal,

were sent to Prison; Lord Cobham amongst the rest sent to Prison from Huntington to Lon∣don, that at length Norfolk and Suffolk grew to such a heat, for taking away their Goods in that undue manner, that the King was forced to call a great Councel, who suppressed those kind of Writs, and the King laid the fault upon the Car∣dinal: and the Cardinal said, it was the Advice of the Kings Councel; and they denied it, and he bore the Shame.

So in the Time of Gracious Queen Elizabeth, who was a Gracious and Glorious Queen; yet in the End of her Reign, whether through Cove∣tousness, or by reason of the Wars that came upon her (I know not by what Councel) she de∣sired Benevolences. The Statute 2 R. 2. was offer∣ed; yet it went so far, that by Commission and Direction, Money was gathered in several Inns of Court; and I my self, for my part, paid 20 s. But when the Queen was informed by her Judges; that this kind of proceeding was against Law, she gave direction to repay all such Sums as were Collected; and so I (as all the rest of our House, and I think, of other Houses too) had my 20 s. repaid me again: and Privy Councellors were sent down into all parts, to tell them it was for Defence of the Realm, and that it should be Re∣paid unto them again.

Exceptions to the Writ.

Now for the Exceptions to the Writ it self, I must Answer my Brother Barkley, That no Con∣ceit afterwards (if the first Writ be not good) will help it. The Writ is said to contain matter sufficient; quia dàtum est nobis intelligi, quod qui∣dam Piratae, Naves & bonorum Sub••itor. nostr. &c. and lead our men into miserable Captivity; and provide Ships, Mariners, &c. ad Gravandum Regnum. Now nothing here at all for the defence of the Kingdom: here is no Cognoscimus hostium Adventus, as the Writs did anciently run.

Again, Pyrates are to be withstood with ordi∣nary Defence, which appertaineth to the King himself; but for extraordinary Defence for Inva∣sion, when the Kingdom is like to be overthrown, there indeed the whole Kingdom is to contribute to the Defence; and our Resolution was, when such a Danger was apparent, the whole Kingdom in danger, then the Defence to be extraordi∣nary.

Obj. But you Object, That though there be no Danger set forth in the Writ, yet it is in the Mittimus certified, Salus Populi periclitabatur.

Sol. The Writ issued 4 Aug. 11 Car. the Mit∣timus came not out till two years after; now the Councel perceiving the first Writ was not suffi∣cient, they politickly add to the Mittimus this Clause of Salus Regni periclitabatur; so this com∣ing so long after, cannot make that which was not Legal ab initio, to be good by Matter ex post fact. This could not be helped by any subsequent Matter (as in Case of a Fine, &c.) This was much stood upon by my Brother Barkley: But I shall Answer him with Two Cases not to be de∣nied

1. Vernon's Case, Report 4. A Man conveys Land to the Use of himself for Life, the Re∣mainder to J. S. for Life, the Remainder to his VVife for her Joynture; though in this Case, J. S. die before the Husband, so that now it falls out to be advantageous to the VVife, as if it had been limitted to her immediately after the Death of her Husband, yet 'tis resolved, that because it is not so limited in the beginning, no good Joynture to Barr her of her Claim to her Dower.

Also in Chenayes Case, Report 5, A VVill un∣certain (and so not good) shall not be holpen by an After-Averment, subsequent to alter the E∣state; so it is in our Case, if the VVrit were not Legal when it first issued, no subsequent Matter shall make it good.

The VVrit commands the Sheriff, Et quos Rebelles invenerit, to imprison, and to distrain all such as refuse to pay.

This is direct against the Statute of Magna Charta; None ought to be distrained, or impri∣soned, but by the lawful▪ Judgment of his Peers, and according to the Laws of the Land, never contained in any VVrit before; nor any such VVrit can be maintained. Besides, the VVords of the VVrit are to Rate every man in the Coun∣ty secundum Statum & Facultates. Shall the She∣riff be a Judge and a Party? If Assessment up∣on himself be not done according to the VVrit, he must be the Judge and the Party▪ never such a VVrit before. All Sheriffs must pay nothing for themselves, or every Sheriff must Sess him∣self, 8 H. 6. Dy. 320. So for the VVrit, for the Reasons aforesaid, I hold it to be against the Law.

For Demurrer.

Again, No Ship was prepared; if it had been prepared, it had been their own Goods; and therefore the making of the Ship might have been pleaded, that there was never a Ship; and then the Sheriff might have been punished for not on beying the Kings Commandment.

It hath been said, he hath confessed all Matters contained in the VVrit; whereas in a Demurre he confesseth not Matter of Fact; but with suffi∣cient, 30 Eliz. Lord Cooke 23. resolves the same.

But to the VVrit of Scire Fac. I conceive it not Legal: No such VVrit can go forth to two She∣riffs of one County; they being neither of them Sheriff at this time; for it went out after they were out of their Sheriffwick; therefore some Return should have been made by Inquisition. I never see nor heard of any VVrit that went to two Sheriffs of one County (as it was to Bucking∣ham) and so two Sheriffs made two several Re∣turns.

Again, This Money cannot be levied by Scire Fac. because the VVrit directs other Means, ei∣ther to distrain, or to imprison, therefore not by Scire Fac. for it is contrary to the words of the VVrit; and seeing the Sheriff hath not followed that Direction, he must Answer the Contempt.

But here to Answer my Brother Trevor, I do agree in some Cases, if a Certificate or Present∣ment, that a Bridge was out of Repair, or a High-way stopt, there shall go a Scire Fac. upon that; but that tells to whom the Money is to be paid: this VVrit doth not demand the Money to be paid the King for not preparing a Ship: It must be by Office, or Inquisition of Record, if a Legal Certificate, as it is; 2 E. 3. fol 2. The King commands by his VVrit, the Sheriff of Leicester to Summon J. S. &c. to come and meet him with Ayd, to go into Scotland; he spent the Money to a great value: There went a VVrit out of the Exchequer against this man,

to Attach him; yet after long Debates it was held fit, the King must be first informed by mat∣ter of Record.

I agree, the King as he is Lord of the Sea, may lay Imposition; but then he ought to de∣fend the Merchants Goods from the Pyrates: That famous Case of Mich. 4 Jac. in which Case I was of Councel, of Imposition of 5 s. a Tun upon Currants; one Bates stood out, and would not pay it; adjudged that, that Imposition was lawful, for the King may make an Impositi∣on, for he hath the Rule of the Sea, and hath power to hinder Merchants to Traffique; and if they Traffique, he secures them.

To conclude with that which my Brother Barkley said, That the Subjects of England are Free-men, and not Slaves, Subjects, and not Vil∣lains: Here is no apparent necessity of any In∣vasion; therefore by the Law they cannot be thus compelled by Writ to part with the Interest in their Goods; if an apparent necessity, they were without limit or stint. Thus have I, with as much perspicuity as those imperfections which attend my Age would give me leave, set you forth my Reasons, and without any further Pro∣testation, I conclude both for matter and form, that you are not to give Judgment for the King.

Baron Denham his Opinion presented in Writing; as also his further Declara∣tion of that Opinion (upon some mis∣construction thereof) with his Reasons presented in the Court also in Writing.

May it please your Lordships;

I Had provided my self for to have made a short Argument, and to have delivered my Opinion, with the Reasons; but by reason of want of rest the last night (my old Disease being upon me) my Sick∣ness and weakness are greatly increased, insomuch that I cannot attend the business as I desired; and if my Opinion be required, it is for the Plaintiff.

Serjeants-Inn, Fleetstreet, 26 Maii, 1638.

His second Certificate directed to the Lord Chief Justice Bramston, 28 Maii 1638.

My Lord,

UNderstanding that some misconstruction was taken by some in the Declaration of my Opinion, which I desired your Lordship the last Saturday to deliver in my Name; for fur∣ther satisfaction therein, I have sent again, al∣though I was most desirous to have passed my Vote in silence, in this work of weight, by reason I heard not the four last Arguments; yet I deli∣vered my Opinion for the Plaintiff, which I took to be Mr. Hampden, by reason it appeareth by the Record, that he coming in upon Process, Queri∣tur de Colore praemissorum graviter vexatum & hoc ••ninus juste, which satisfied me that he was Plain∣tiff: And therefore I now declare my Opinion for Mr. Hampden, who did demur.

I shall only deliver these two Reasons for the maintaining of my Opinion.

The first is, that the Kings Majesty is sola & suprema Justitia Regni: And the Rule of the Law is, and hath always been, that his Majesty can do no wrong: And thereupon ariseth another Rule of our Law, which I give for my second reason; That the Kings Majesty being of a Corporate Capacity, can neither take any Lands or Goods from any of his Subjects, but by and upon a Judgment of Record, which (according to our daily experience in the Exchequer) there must precede some Judgment in that or some other Court of Record, whereby his Majesty may be entitled either to the Lands or Goods of a Sub∣ject; as namely, where seizures of Goods is made for his Majesty, either upon Outlawries, Attainders, or matters of the like nature; as in Cases of seizures in the Court of Exchequer, where seizures are given by Statutes, yet without a Judgment in that Court upon a Tryal for the King, the Goods are not to be recovered to the use of the King, as forfeited.

Upon consideration whereof, and comparing the same with his Majesties Royal Writ, I find no Judgment thereupon had, nor given, which was the chiefest Reasons of my Opinion for Mr. Hampden.

28 Maii, 1638.

Finis Opinionis Baron. Denham.