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.

My Lord Chief Baron Davenport his Argument.

My Lords;

THere hath appeared unto us (upon this Re∣cord) many several Arguments, and excel∣lently made; it comes now to my course to ex∣press my own Opinion.

It appeareth upon this Record, that Pasch. 13 Car. a Scire Fac. issued out of the Exchequer to the Sheriff of Bucks, reciting, that whereas several sums of money, mentioned in a Schedule to that Writ annexed, by vertue of the Writ 4 Augusti, assessed upon several persons for pro∣viding of a Ship, and were not paid; whereby he was commanded quod Scir. fecerit to those se∣veral persons in the Schedule annexed named, to appear in the Exchequer Octab. Trin. 13 Car. to show cause why they should not pay those sums of money assessed upon them: Thereupon a Cer∣tiorari 9 Martii 13 Car. was directed to the She∣riff of Buckingham, to certifie the sums, and the several persons upon whom they were assessed, and of the warning given unto them to pay the same: The Certiorari being returned, and in Court, in April 13 Car.

Quinto Maii, then came there a Writ of Mit∣timus out of the Chancery, by which he said the former Writs were sent unto the Barons of the Exchequer, which Mittimus recites the VVrit 4 Augusti, and not the Record it self; and the Barons are commanded, that they should there∣upon proceed, as by the Mittimus is required.

Upon these Records thus certified, there issued out of the Court of Exchequer a Scire Fac. that is now in debate, which was awarded against the parties mentioned in the Schedule; and Mr. Hampden being returned, hath appeared, and de∣mandeth

Oyer of the Writ 4 Augusti 11 Car. of the Certiorari 9 Martii 13 Car. and of the Mitti∣mus 5 Maii 13 Car. Upon Oyer of these, and they being read unto him as hath been demanded, Mr. Hampden doth demur in Law, alledging, that the VVrits, and every of them, and the Re∣turns of them, and the matters therein contain∣ed, are not sufficient to charge him for the sum of 20 s. on him charged; and thereupon demandeth Judgment, if the King will be pleased any fur∣ther to proceed upon this VVrit.

To this Demurrer thus tendred by Mr. Hamp∣den, Mr. Attorney hath joyned in Demurrer, al∣ledging, that the Writs mentioned, and all of them, and the matters therein contained, are good and sufficient in Law to charge the Defen∣dant with 20 s. and demandeth Judgment there∣upon for the King; and that thereupon Judg∣ment would proceed for the King, that the De∣fendant Hampden should be charged with the sum of 20 s. and thereof make satisfaction, but to whom is not expressed upon the Record.

This Demurrer thus warily joyned on both sides, there hath been thereupon several Argu∣ments, both at the Bar and Bench, excellently (no doubt) argued, and very fully: There hath been introduced and pressed to the Court (and where∣of there hath been several Notes delivered) a number of Records appertaining to the questi∣on, so far forth, that in one of the Arguments at the Bar, there was excellently well remem∣bred, at the least upon the particular of Records and great Authorities, above 300.

Upon this Record the Demurrer being thus joyned, my purpose is, after my meanness, (being not able to give an account of every particular) to make a summary Collection of that I am to say, and with that shortness and brevity that ap∣pertains to me (the weight of the Cause not de∣serted) upon the duty of my place, and upon my Oath, which I have learned, and hold to be Ligamentum sidei inter Deum & Animam, to de∣clare unto this Court what I do conceive upon the Question arising upon this Record, wherein my meaning is to retain my self unto the parts of the Record.

Judgment is not here to be given, but a Judi∣cial advice; and according to the number of voices, here Judgment must be given in the Ex∣chequer, without any respect of our own particu∣lar Opinions which sit in this Court.

I shall do my best endeavour to open unto you such questions as do appear to me upon the Re∣cord to be aptly and fitly debated before us.

The state out of the Record will appear to be this.

That 4 Augusti 11 Car. there issued out of Chancery a Writ not returnable unto the Sheriff of Buckingham; this Writ was inter Brevia irre∣tornabilia, according to those stiles in that Court, and in the Court of Exchequer.

By this Writ 4 Augusti, which I do conceive to be the original main ground of this Record.

It appears what was the occasion and ground that VVrit was then awarded; it was touching, and in respect of certain grievous Incursions by the Pyrates upon the Sea-coasts, who commit de∣predations, and take Goods and Merchandizes both of the Kings Subjects, and others that traf∣fique here, and carry them into Captivity; and this is said to be to the great damage of the Kingdom; that the times were dangerous and hostile times, tempora hostilia, and therefore it was sit there should be a convenient remedy pro∣vided by the Kingdom for defence thereof; and thereupon in that VVrit two several Mandates or Commands are imposed: The first of those was a Command and direction unto the Sheriff of the County of Buckingham, and to the Mayor of Buckingham, and to the Bayliffs and Burgesses of the Borough of and Parishes of the County of Buckingham, & probis hominibus of those Towns, and of all others dwelling and inhabi∣ting in that County; these are the persons who are charged.

By that same Writ 4 Augusti, they were char∣ged with this particular, that they should before the first of March then following, at their own costs, provide and prepare a Ship of VVar, of the burden of 450 Tun, furnished and sitted with Victuals, Men and Munition, that they should be ready to be brought to Portsmouth, at their own charge, at or before the first day of March, and from thence to be maintained at their own pro∣per Charges for the space of 26 weeks then fol∣lowing, to attend such Noble persons to whom the King should be pleased to commit the Custo∣dy of the Sea, and to pursue their directions.

The second sort of those two Mandates de∣scends from the persons, to whom the VVrit was directed unto some few, and that is upon the matter unto the Sheriff of Buckingham, and to the Mayor and Burgesses of the Town of Chip∣ping Wicomb, to those is given and limited a power by the VVrit distributively, as therein is appointed respectively, to tax and assess the whole County secundum statum & facultates, and those that they should find to be Rebels, they should distrain them, or by any due means com∣mit them to Prison, there to remain, until his Majesty send forth an Order for their delive∣rance. This I do conceive to be the end of those two Mandates mentioned and comprised in the Writ 4 Augusti 11 Car.

After this Writ 4 Augusti 11 Car. almost a year and a half, then cometh forth the Certiorari out of the Chancery, dated 9 Martii 12 Car. direct∣ed unto the Sheriff of Buckingham, who with the other Referrees should certifie unto the King the names of such persons as were assessed, and when they were assessed, and who have performed the Assessment, that Writ was returnable 26 Aprilis then next following, and therein Mr. Hampden appears as a Defendant unto the Scire Fac. there∣in was he certified to have been taxed to the Sum of 20 s. for the Town of Stoak Mandevil, and that he did refuse to pay it, and did not pay it un∣to him, nor unto any of the Collectors that were appointed: This being returned into Chancery, and no Order there made, or any Rule that the Sum imposed on Mr. Hampden should be paid; then in 5 Maii then following the same Term, cometh a Mittimus, reciting the effect of those Writs, and is directed to the Lord Treasurer, and Barons of the Exchequer; herein the Tenor of the Writ 4 Augusti, and not the Writ it self, is certified into the Exchequer; and withall cer∣tifieth the rest of the Record, together with the Schedules annexed unto those Writs, and by that is commended unto the Court, that they should proceed to do for the further receipt and collection of the Sums behind, as by the Law and Custom of the Kingdom of England should be required; and upon that Certificate here cometh a Writ of Scire Fac. directed to the Sheriff of Buckingham, to give notice to the persons that were defective, and that they should appear, and shew cause, if they could say any thing, why they

should not be charged therewith according to the Laws and Customs of the Realm; and the Writ is so returned, and upon that return Mr. Hampden appears at the day in person, and after Oyer of the proceedings hath demurred.

Upon this Record, this being the Case, and the Demurrer thereupon joyned, we are to see what is the Law and Custom of England upon the matter extant in this Record, for I intend not to expatiate besides the Record, but to stick close to it, as it is in the Case now depending in Court upon this Record; and therein I shall re∣strain my self unto some few general Heads, nor will not be long I trust in any thing.

1. The first thing is, whether these two Pow∣ers and Mandates mentioned in this Writ 4 Aug. 11 Car. (the original ground thereof) the one for preparation of a Ship, and furniture, and of the residue therein mentioned, and the other for the Taxation, at pleasure of the Sheriff and per∣sons therein referred, and that expressed upon the Motives in the Writ 4 Augusti; whether (I say) that these same Mandates were and are good in Law, according to the Law and Custom of the Kingdom of England, upon the matter upon this Record, that is the first question; if that do fail, then the Scire Facias is at an end; if there is no Legal Charge imposed upon the Country, then he ought to be discharged.

2. The second question upon the principal Head, admitting that these were legal in them∣selves, according to the Tenor of the Writ, to see then how it is reduced by the Record; there∣in I shall offer unto consideration, whether that upon this Certificate upon the Writ 9 Martii out of the Chancery, after the time so past for exe∣cution of the first Writ, which is irreturnable, that upon that it be so legal, and according to the course of Law conveyed over by the Record to be a sufficient ground and warrant of the Scire Facias here brought, is the second question.

3. The third question: This Writ of Scire Fac. issued out, the Defendant appeared, and de∣murred in Law, whether hereupon there be such matter therein, that they may charge the Defen∣dant with the sum imposed upon him, so that the King may have a Judgment and Execution upon it; that I conceive to be the last que∣stion.

This Cause is a Cause of great weight, and doth nearly concern every one of us to have a special eye unto it; it is not an usual question in our Books, whereof we have much view.

However it be in the Record to which we are now tyed, it concerns highly the Prerogative of the King, and the Estate of the Subject: In my Conscience I think, for the Act that was done was a gracious Act, an honourable Act, a Royal Act, and proceeding upon just Cause, that there should be a present remedy for the avoiding of the inconveniencies that did appear, no doubt for our good: Herein, though it be known to e∣very one that knoweth me, but especially to my self, if I partake of the Rule that every man is bound unto, Nosce te ipsum, knows withal, that no man is more bound, nor oweth a more ten∣der care to preserve the Kings Prerogative, and to do that which may advance the same, as we are all bound unto by the great Oath that we have received upon our Promotion: And in that particular, I profess none more bound than my self.

Upon this I have been told, and I have truly looked into the Records, so far forth as my meanness will give leave, and according to what I understand of the Law and Custom of the Kingdom of England to be upon this Re∣cord.

I must needs say, though I do confess in my own particular unwillingly, that upon this Re∣cord Judgment ought to be given for the Defen∣dant, Quod Johannes Hampden sit quietus, &c. however, with submission to the greater Vote of my Brothers: For first, I do conceive that this Charge thus commanded, and thus taxed, is not warrantable by the Laws and Customs of the Kingdom of England: I shall therefore offer unto the consideration of the Court, the several dis∣cussions upon the Writ.

First, For the Writ 4 Augusti 11 Car. directed to the Sheriff of Buckingham, to the Mayor and Burgesses of Buckingham, and Bayliffs and Bur∣gesses of Chipping Wicomb, & probis hominibus Com. Bucks. Hereby are they charged upon their Allegiance, that they should before 1 Martii fol∣lowing, prepare at their own costs and charges, per probos homines, throughout all the County, a Ship of War well furnished; and that the same Ship of War they shall maintain at their own costs and charges for the space of 26 weeks, to attend the Kings Navy for the custody of the Sea, as the King shall appoint and direct.

This first part, I take it not warrantable by the Law and Custom of England, in respect being a matter of so great a charge, and by them being an Inland County impossible to be performed to prepare a Ship before that time, being no Mari∣tine County, but an Inland County: This I do take in it self, that this is not a Charge to be im∣posed upon by the name of probos homines, or of the particular men there named, except it were by their own consent and approbation, and with their consent I agree a Charge upon probos homi∣nes, so they receive nothing to their own use, is good enough; whereof I find an excellent Re∣cord, 24 E. 1. a Writ that issued out of the Ex∣chequer, and whereof there is the Record re∣maining to this day enrolled, and certified to be a true Copy; there it is directed, in case of ne∣cessity, when the King is absent beyond the Sea, upon Information of the discovery of a present and instant incursion of the Enemies in Flanders and France, under colour of coming as Fisher∣men, to surprize the Town of Yarmouth, and all the parts of the Coast thereabouts; my Lord Treasurer that then was (the King being beyond the Sea) the Under-Treasurer who had the cu∣stody of the Sea, and the Barons of the Exche∣quer, caused a Writ to be directed unto the Bay∣liffs & probis hominibus, and no doubt of it, in the Judgment of our Predecessor himself was good Law, and the Writ legally executed, upon the instant necessity appearing: But Fortescue speaks not so much of the necessity, as hath been observed; therefore it is not good to conclude upon some general words in him, that in no case of necessity the Charge may be laid, for the scope of the whole Book considered well will not war∣rant it, the intent of it is not against Cases of ex∣tremity; you see not in the Case, but that there∣in the Regal course must be observed, according to the Law and Custom of the Kingdom of Eng∣land: But when I do consider of the first charge of preparing of a Ship at their own charges, and of the consideration of the next charge in the same Writ for Taxation, I do not see, nor I do not perceive how the same do agree, but that the one is repugnant unto the other; for that

the former part commands the Charge to be ge∣nerally by all, and by this last power it is limited to be done by a particular person, and that to be done at his Will, and as he shall think fit, where∣by the Sheriff and Bayliffs thus imployed, are ex∣cluded from the Charge, for they can do no Act upon themselves; it should have been done per Sacramentum proborum hominum, considering these two different Powers, I hold the Law so to be clear in this point: It appeareth not upon this Record that they were assenting unto it, or agreed upon any Ordinance herein. Now the Power of the Preparation, it is upon the whole, upon the Sheriff himself, Major, Bayliffs, & probos homines. But when you come to the latter ipso facto, by the Laws and Customs of the Realm, a great part of the former is removed directly from those that were therewithal chargeable: Power and Taxa∣tion is appointed; to whom? to the Sheriff; and how can he Tax himself; he and all his Estate and Goods within the County of Buckingham under the first Charge, and all discharged by the power of Taxation limited in the second Clause; & therein I take it that this same is not legal according to the Custom & Laws of England, the one doth not agree with the other; if you ask me the reason of it, my Brother Hutton hath given it; That the Charge is upon the Sheriff, and not possible for the Sheriff to Tax himself, he cannot find himself inter Rebelles; he cannot commit himself to Prison, there to remain till such time as the Kings Maje∣sty shall deliver him, that he cannot do: So for other Referrees of Buckingham exempted like∣wise: If they can do this, then clearly the for∣mer Charge imposed by the first, and said to be done by them all, is out of doors. Now it can∣not be done according to the Law of England up∣on the Sheriff, upon his Land. This point, I think, is very evident in our Books, 18 H. 8. If a Defen∣dant that is Sheriff be to be summoned, and he return that he cannot do it, Justice H. was of O∣pinion that that return was not good, for he might summon himself, 8 E. 3. But if it come to a fur∣ther Question, That if there be any Execution to be done where another will be prejudiced, he can∣not do it, as to impannel a Jury upon a Writ where he is a party which may prove a prejudice to another, for if he do it, it is not lawfully done. As it is in Dyer, 8, and 9. Of the Sheriff in a com∣mon Recovery, so upon these Authorities for the first Question; I could it manifest, that this Act which the Sheriff is charged to do, is afterwards by this second Power discharged. These two Powers do not cohere, and therefore not warrant∣able by the Laws and Customs of the Realm of England.

Concerning the first of these Questions, my O∣pinion is clear, that there is a material and legal Exception appearing upon the self same Writ: My Reason is, The Sheriff is the Great Officer of the County, but when he must do it, I take it legally, he ought to do it according to the Duty of his Place by the Law of England: That I do not take to be at his will and pleasure to lay one thing upon one, and another thing upon another; for my part, I conceive this must be done per Sa∣cramentum; he is not to be Judge in case of un∣certainties when a division of Charge and Taxes is to be made; where things are put in certainty in any of the Kings Courts, there he may execute, as, take a mans Goods, Imprison, &c. But in such cases of uncertainty, the Law hath annexed to his Office a way and means how to reduce the thing to a certainty, and that is, per Sacramentum proborum hominum, As in the Case of Perceners, if they have a mind to make Partition of their In∣heritance, they may do it by agreement between them if they will, or by making of Lots by a third person, the elder shall choose; but if she her self make the Partition, she shall not both divide and choose, that alters the case for execution, when it is in propria persona. But admit they cannot a∣gree, the Judgment of the Law is, that the She∣riff shall go in his proper person into the ground; shall he in his discretion make the Partition as he pleaseth? No; the Judgment is, The Sheriff shall go in person unto the Land, and that there per Sacramentum, per Inquisitionem, to be taken by chosen Jurors, they must consider of it; upon such a thing so done per Sacramentum, then indeed it is in the Sheriffs Power, he may now chuse whe∣ther he will prefer the elder or the younger. But for our Case that this should be done by a Sheriff, by his discretion, while the Interest of several persons are concerned as it were to make a Rape, I do not find that, in a Book of Law, I must con∣fess. In that Act which is done by the Law, there can be no error or partiality: So in Fitzh N. B. in his Writ de onerando pro rata portione, see what there is to be done; it goeth to the Sheriff, he is trusted with the doing of this, but he is trusted by legal means, what shall he there do? Where 20 Acres of Land held of the King in chief, they are sold to several hands, there must be a Writ de onerando pro rata, for discharge of the Rent; but this must be done per Sacramentum, not by the sole power of the Sheriff. Hereof I find a notable Precedent; it is true it is not in our Books of Law, but in an Historian, yet he doth set it down in that manner as a man may trust him so far; Matt. Paris, fo. He saith and sheweth us there, That 17 H. 3. 8 years after the making of the Statute of Magna Charta authorized by Parliament, That the King himself in His Parliament was pleased (that according to the Institutions of Par∣liaments) to require Concilium & Auxilium for the Kings Wars, where by the way let me ob∣serve, that Auxilia from the Subjects to the King granted in Parliament are not meerly voluntary, but Duties, to give Moneys for supply of necessi∣ties of State; and in that I agree with the Opinion of my Predecessor Ho. Chief Baron, 19 H. 6. the King is bound to defend the Kingdom; the same Law that binds him to the Defence of the whole Realm, gives the King a right of Inheri∣tance to claim Subsidies for the defence thereof. But to return to Matt. Paris: It appeareth there, that the King in Parliament did demand Aid of His Subjects, Concilium & Auxilium, their Coun∣cel as they were bound, their Help as they were able; it is said there, that they made choice of the Earl of Chester, to give their Answer, who at first held not fit to do it, alledging their Estates were but weak, that by the Law of the Kingdom they that had been there in person, they for their Escuage might not be touched: The Prelates they were more courteous in their Answer, they desired time to assemble themselves together, many be∣ing far distant: Thereupon was a time assigned until Mens. Pasch. In the mean time they all con∣sidered, the Lords on the one side, and the Lords Spiritual on the other side; and being demanded a Fifteenth of their Goods, they answered, So as they might have their Ancient Laws established unto them, for which there had been so much trouble, they would willingly assent unto it: The King consented unto it; and thereupon the Sta∣tute of Magna Charta was there confirmed upon

grant of the Fifteenth to His Majesty. But when they came afterwards, they did all agree, That for necessity, and for the Kings Charges in His Wars, which did require a speedy Supply, they were contented to yield to Him a Fourth part of their Goods to be levied in this manner; that is, for so it is mentioned expresly in Matt. Paris, and the Form is there set down de verbo in verbum; there it is set forth, how the Collection and the manner of it should be; it is in this manner, I have it here to read it; That every Sheriff within his County should return a Juror in every Town, that to four Gentlemen of good value and ac∣counted principal men in every Town power is given they should do (as a Jury to set forth upon their Oaths) Assessments reasonable according to their Estate and Power; and because it appeared then there, the very exception now taken, that the Assessors could not tax themselves, they had power to tax the residue; therefore a Power was given to two others of every Town, and they should be sworn, and upon their Oaths tax the four former Assessors. This tells unto me what the Ancient and Usual manner was of Taxes and Assesses by the Custome of England; the manner was not at the voluntary pleasure of the Great Officer of the County: That they that did tax others, should be taxed by others. And this Opinion is directly in Matt. Paris, that the Laws of England were so; and therefore for my own part, for the Sheriff to tax at his discretion, I know no Law for it.

Stat. 1 E. 3. by the true Record according to the Manuscript of the Exchequer Book here, in French it is there, cap. 7. And so it appeareth in the Tower there enrolled; it is expresly there up∣on a complaint made, that they held themselves agrieved with an Assessment, their grief was, That whereas Aids were granted to the Crown more than formerly was used, &c. and Taxes not rightly laid upon them by the Sheriffs and Commissioners. This grievance thus complained of here in Parliament, and the manner of their taxing disliked; the King saith, that from thence∣forth the Taxations and Assessments should be made as in ancient manner and not otherwise: Here is an express Negative, no taxes to be done but by Jury, which excludes in my Opinion this same Tax thus done; that is by his own power and discretion, is not warrantable by the Law of the Land: And herein give me leave, as I think in my Conscience, and as I think the truth, if this Inconvenience had not tended to a Grievance in very many particulars, we should never have heard of this Question, but by this means it com∣eth in question, both the one and the other; for the Act it self, it is a Gracious and a Loyal Act. It is requisite and necessary as the State and Con∣dition (if it so appear upon this Record) of the Kingdom may be in, That there be a Supply ac∣cording to the necessity, for the King is Lord of the Sea, as it was argued at Bar in a Case brought in question before us the Barons in the Exchequer, where we did unanimously agree and adjudge, That the King was, and is, in my Conscience, rightly true Lord of the very propriety and own∣ership of the Sea: The occasion upon which this grew, a Question was, as I conceive, upon the writing of two Books, the one called Mare Libe∣rum, That no Ownership of the Sea should belong to the King, whereas it is the Sea of our Sove∣reign, and defence by Sea under Almighty God, that is our Protection; and if we should suffer any else to have an Interest in it, it would hazard the whole Kingdom. But in answer to this Book Mr. Selden hath very learnedly writ a notable Book called Mare Clausum, approved of by His Maje∣sty, and enrolled in the Exchequer by Command from His Majesty, and there to remain. But since there is another Book written (which I had at my Argument) by one Pontanus, directed to the great Chancellor of the K. Denmark, and he undertaketh therein to make an Answer to every particular Chap. in Mr. Selden's Book; and truly, as I think in my poor Opinion, though weak, Mr. Selden hath a Judgment in Law against him upon a nihil dicit.

Of how great consequence the Dominion of the Sea is to this Kingdom who knows not? So that without question the Tax was very fit to be done, if the Power given to the Sheriff had been as war∣rantable. But this same second Power to free himself and lay it upon the residue, is not good nor warrantable by the Law. Thus much for the First Question concerning the Powers contained in the Writ 4 Augusti, which doth not resort unto the Rule and Custom of the Kingdom of Eng∣land.

In the next place, let us see whether the Writ mentions Causes sufficient for the Issuing of it: For the Incursions of Pirates, I conceive it no just Cause. But the Expressions in the Writ, as, Quod datum est nobis intelligi, ut informatur, vulgaris opi∣nio est & rumor est, &c. If the King do undertake it upon this, He is not to shew how He discover∣eth it: I am satisfied in my Opinion upon view of the Precedents; it is sufficient if the King do alledge Quia datum est nobis intelligi, or Quia in∣telleximus, &c. It is enough, for it is so in these Precedents, Quod vulgaris opinio, &c. All these, or any of these containing such a matter, that the Kingdom is in danger, I do agree the same doth conclude the party, and that the King is the Sole Judge of it; the Case is not traversable; the Writ must be obeyed, agreeing with the Laws and Customs of England. That this may be done by the Kings Writ, excellent and strong Argu∣ments have been made, that this Imperial Power belongeth to the Crown, I heartily acknowledg it; His Power declareth it so, Reason it should be so; not voluntary at His Pleasure, but it is according to His Politique Capacity, not exclu∣ding His Natural Imperiality, Quia Rex he doth it not, but Quia Rex Angliae he doth it; so I find it in Fortescue: The Grounds premised in this Writ, that the Kingdom was in present danger, truth, in my Conscience it was so; and if that had not been done so, England had heard of it be∣fore this day. Therefore there must be an ex∣pression of the Kingdom to be then instantly in danger, or such a preparation in such a conveni∣ent time, or else it will be in a great danger; but that must be expressed, for I hold the Law to be so. Doctor and Student saith, It is the old Cu∣stom of the Land the King shall defend the Sea: True; Against whom? Against Pirates and pet∣ty Robbers, but not against a sudden Invasion at his own Charge. These Praedones which were spoken of in the Laws of King Edward, when Danegelt was given, they were in that condition that they endangered the whole Kingdom. They did occasion that of Danegelt from 16 to 26 a Hide; William Rufus to 46 a Hide, imposed up∣on a just ground, to repel the Danes, being com∣mon Enemies; and was continued until H. 2d's time, but since taken away by several Statutes, 25 E. 1. &c.

That same Danegelt which was heretofore im∣posed upon the Kingdom by the Terror of the Danes continued still though the name be altered; It is mentioned in the Red Book in the Exchequer to be used in H. 1. time, but after the time of H. 2. I hold that they are taken away by those Sta∣tutes before mentioned of E. 1. &c. And there∣fore if for private danger this Assessment be im∣posed, it is not according to the Laws and Cu∣stoms of the Realm.

I am over-troublesome and shall hardly hold out; give me leave to proceed to the Second Consideration: And admitting those Charges in the First Writ to be legal, the next Considerati∣on to be had, is, Whether the Centiorari and the Mittimus do legally revive the First Writ, it being a Writ irreturnable, and not excluded according to the Tenor of it within that limited and prefix∣ed time.

This Certiorari issued long after the first Writ, dated a year and an half after; and in my Opi∣nion this cannot be, for the nature of a Writ not returnable is to command a positive thing to be done within such a time; if it be not done accor∣dingly, there is an end of the Force of that Writ. So that here in our case the Power given to the Sheriff being not executed in due time by him, but done out of time, cannot be renewed now; for otherwise you would make a man an Offender by a Relation, which being a Fiction of Law, can∣not so operate, nor be made penal unto him for non-performance; though afterwards by the Mit∣timus these words, Salus Regni periclitabatur come in, yet they will not revive or make good the Commands of the First Writ: If the First Writ had been returnable, and return made, and a de∣fault according to the Return, the Writ had been still continued; and must have been informed by another Court, presented by a Jury upon default, and upon presentment and indictment, shall have his remedy to the King; but it being not so, it is but a suggestion, upon which a S••ire facias cannot issue, as in Butler and Bakers Case, 3 Rep. And being not returnable, is but dead in Law, and being certified upon the second Writ, is not good, it cannot be to relate to make him a wrong Doer; to that purpose is the case cited in 26 E. 3. Leice∣stershire Case, reciting, Whereas one Sir John de La••gston, that he had delivered certain Moneys to Robert de, &c. and that he had wasted such a Mannor, and taken away goods to the value of ••000 l. And thereupon it was commanded he should be Attached by his Body; he appeared at his day, and because, &c. he was discharged of it: And according to that I find it 7 E. 3. there it was suggested to be made in one Kings time, and whereas it was not, and there abated: Then the question, Whether the King may do it or no? He giveth the Answer, That where it concerneth the King in his own Right, there the King may do it; but when the Title came to the King from another party, there it is otherwise.

Upon this I do conceive this same brev. irretor∣rabi•• falleth short of making him punishable, as if it had been a Writ returnable. Let the Writ 4 Augusti be never so good, the Writ thereupon is not legally issued.

Next thing is upon the Scire facias; the questi∣on is upon this Record, Whether this doth apper∣tain unto the King? I conceive it doth not apper∣tain unto the King: My reason is this, Because in the very Writ 4 Augusti, it is expresly provided sor by that, that it shall be imployed to no other use but for the Preparation of the Ship therein mentioned, by no means to any other purpose: It doth not now appear who were Collecters therein appointed to receive the Money, where∣by to become chargeable over to the King, it doth not appear upon this Record that any Ship was provided, or that any fault was in them that were imployed, or of Surplusage in the Collecters hands; though it was a worthy and gracious Act of His Majesty, yet this is not so legally executed as the King may have a Writ of Scir' fac'.

If Judgment be for the King, it must be with this limitation, that it must not go to the proper Coffer of the King (as my Brother Jones observed) And in my Conscience, if it were paid unto him, he is a loser by it; you see what t••e VVrit is; you should be charged upon, for what? on••rars & satisfacere, one Ship, non constat, there was any Ship, or any Collecter, or any Act concerning it. This Money was pre-ordained only to prepare a Ship, and to be imployed meerly upon that, and for no other purpose; and this appeareth not at all, whether any Ship made yea or no: for whom shall we give Judgment? The scir' fac' is, That Mr. Hampden should shew cause why he should not satisfy the Sum imposed upon him; but whom he should satisfy, or to whom the Money should be paid non constat, well penned upon the Demurrer, si Dominus Rex valet aut debeat onerari le Defend'. But oneretur & inde sat isfac'; nothing of that put into the Record to bring this unto the King; therefore Quod oneretur, cannot be executed at all, according to the Books of 39 E. 3. and 49 E. 3. where if Judgment be to be given, and cannot be executed, there it shall not be given at all. So the Judgment required upon this Demurrer, is upon the matter, oneretur, and shall by no colour come unto the King; God knows, it belongs unto him, and that deservedly, but in legal course non constat. Therefore to give Judgment quod onere∣tur, and not know to whom; to the King he can∣not; for this reason I cannot see how Judgment can be quod oneretur.

But hereupon another thing troubleth me very much, and which in my Opinion makes it clear, that Execution cannot be made upon this Scire facias, and that is the Mittimus to us in the Ex∣chequer, which by Recordum ipsum is not certi∣fied, but only the Tenor of the Record. I do conceive the Law to be so upon this difference, as it is taken in a Case excellently well argued 33 H. 6. where it is said, If the Record be in any other Court whence Execution may be awarded, and the Tenor of that Record is by Mittimus sent in∣to another Court where Execution may be like∣wise awarded; in such a case a Scire fac' cannot issue upon such a Record, for this is but an Ex∣tract of the Record. So if a man should sue out Execution upon a Judgment given before the Ju∣stices of Assize, what will you do with this, and he have no goods within the Precinct? You must remove this: How do you remove it? Not by certifying the Tenor of the Record, but ipsum Recordum: But if the Record it self be certified into the Chancery, and sent by Mittimus into the Common Pleas, that is good, as we are Judges of the Record, no other Court can give Judgment upon that Record, but we.

Here is sent unto us the Tenor of the Writ, and not the Record it self that I can find, and so two Executions may be upon one Judgment, 3•• H. 6.

A Transcript or Tenor of a Recognizance came out of Chancery into the Common Pleas, to have Execution & non allocatur. And so it is Dy. 4, & 5, and 22 of the Queen; there was a Transcript there of a Recognizance to the intent that they might have a Scire fac. upon it, and held clearly by the Court, that upon the Tenor of a Record, no Scire fac' could lye. So all this appearing up∣on the very first Branch of the Record, that this fame was meerly a Tenor of the Record, and not Reco••dum ipsum; I do not know how upon this Record there can be Execution.

Thus have I done with the several Discussions of the Writ and Record, which upon my Reasons before alledged, I conceive it not sufficient in Law to Charge Mr. Hampden.

I come now to the great Question concerning the danger of the Kingdom, and our Certificate to His Majesty: Give me leave (according to our former Resolution made in Answer to His Ma∣jesties Question proposed) to speak of what we did certifie; and in my Conscience, truly, and I hold it real, That when any part of the Kingdom is in danger, actually in danger, or in expectancy of danger, and the same expressed by His Writ, I do agree the King may without Parliament charge the Subjects towards the Defence; For necessitas est Lex temporis: Invain to call help when the Enemy is landed. Clearly, I hold the King to be the Sole Judge, and the Danger being certified so by His Majesty, I hold it not Traversable. And in such a Case he may without Parliament charge the Subject, so that the very Cause be expressed effectually upon the Record, that the Kingdom was in danger: But if a Parliamentary Advice may be called, and the danger not so eminent, then regularly no such Charge can be laid out of Parliament; legally and rightly I hold things done by the Advice of Parliament were the best. But if it be so that the necessity will not admit the delay of Parliament when the Enemy is in view and expectant; that is such a Danger as we did certifie to the King in our Opinion to be; and in E. 3. time Writs issued the Parliament sitting.

To say, there cannot be Incursions but that they may be known within seven months, where∣in a Parliament might be had, is a great hazard to the Kingdom.

It is probable indeed the danger may be disco∣vered before it come, but it is possible it may come unexpected. In 88; when that great Inva∣sion was, at which time, if the Queen should not have used Her Royal Prerogative without calling a Parliament, the Kingdom perhaps might have been lost by the delay, and yet great expectation was then of a Parliament.

So if William the First, not William the Conque∣ror, for he did not conquer the Kingdom, he conquered the King of the Kingdom; his coming was sudden, he landed at Hastings; and was not the King advised of this at York? Did he not then make all haste by Post, raised a sudden Army and bad him Battel, and Will. the Conqueror had the Victory not of the Kingdom, but against the King. Lam••ert saith, He came not in per Conquestum, but pe•• acquisitionem. After that he was Crowned and received by the Londoners, he sent forth Commissions to all the Counties of England, to en∣quire per Sacramentum, what the Ancient Laws of England were, and of the State of the King∣dom, and Certificate made thereof; and that of Danegelt certified to be a Tribute enforced. I say in times of Necessity the King may command this Aid by his Writ under the Great Seal, when the Danger is instant, nay the expectation is not tra∣versable.

Obj.

Then upon every Certificate that the K. makes that he is of Opinion that the danger is in∣stant or expectant, this Charge may come by that means to be Annual.

Sol. No: We need not fear that the King will require it but upon just Occasion; the Law pre∣sumes it: And legally it cannot be laid upon the Subject but in such Cases of Necessity as aforesaid. By the Charters of Will. the 1. K. John, and H. 3. no Charge without Parliament by the Stat. of 10 E. 3 None is forced to go out of his County, 14 E. 3. I hold it to be a general Statute, and doth bind, but doth not bind in case of necessity; for they are not to be understood to be binding in all Cases.

The Charter of K. John as it is inrolled (not as it is printed) according to Mag. Cha. saving two Clauses that are not now in Mag. Cha. hath this exemption in it to the Subject, of these and these Immunities; No Tax nor Tallage but by a Parli∣ament. But he excepts three Cases, 1. Nisi ad re∣dimend' corpus nostrum, pur Faier Fitz Chevalier, & pur file marier. These Prerogatives of the K. are not bound up by the Parliaments: The very Com∣mons themselves did agree to these 3 Cases. As for the Stat. de Tallagio, I hold to be a good Stat. and much for the Liberty of the Subject; but if you come to a Case of Necessity, they will not stand in force.

There is an Omission in the Printed Stat. 25 E. 3. which is in the Records of the Tower (as it was observed by my Brother Hutton) of these words, Car ceo est encounter le droit del Realme; how this comes to pass I know not, I caused it to be search∣ed, and I find these words only in the Articles upon the Roll, where they do complain for find∣ing of Hoblers, and are grieved for it, and give this as a reason, Car ceo est encounter droit del Realm; And the Answer which the K. gave unto it, was a Royal Answer to the thing proposed; but those words are left out of it: But if it were the Right of the Subject (le droit del Realme) as Littleton saith, that cannot dye.

And certainly in Case of Necessity there is a Right belonging to the K. to prevent danger; for legally when the safety of the Kingdom is in dan∣ger, in danger apparent, in that Case the K. hath a Power of Prerogative do compel Aid. And if an Act of Parliament should be made to restrain such a Charge on the Subject in case of necessity, it would be, felo de se, and so void, for it would de∣stroy that Regale Jus.

So to this great question of imposing this Charge in case of Necessity, I am of Opinion it may be done without Parliament, as it was in 88, so long as the present and apparent danger continueth; and I am of Opinion (as I was when we gave in our Certificate to His Majesty) That the King is the Sole Judge of the Danger, and how to pro∣vide against it. But however, I do conceive upon this Record vpon which I am to give Judgment, That the Mandates in the Writ 4 Augusti are not good in Law, nor according to the Laws and Cu∣stoms of the Kingdom of England, nor well grounded upon the Certificate; and that the In∣formation afterwards cannot make a former Writ good which was first defective: And the Sheriffs which were, their Return is not effectual, upon which Judgment may be given.

I cannot see how Judgment can be given quod oneretur, and not tell to whom, and nothing visi∣ble in this Record to whom we may find it; and therefore in my Opinion Judgment is to be gi∣ven for Mr. Hampden.

FINIS.