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.

Obj.

But for the Assessement it self to the She∣riff, I do not say that I do find he hath like power in any other Case of Law, Commission of Sew∣ers may be directed to the Sheriff, but not to give power to Assess Mens Goods.

Resp. I Answer, That this is in case of Necessi∣ty; for the very main Case is but a Case of Ne∣cessity; the ordinary and usual way is per Sacra∣mentum.

My Lord Finch gave an excellent Answer to that, and warranted it by Law, That the Sheriff hath no such unlimited power granted him, he is not made Judge of the Estates of Men, but only to pursue the Direction of the Writ, to Assess them as he is commanded, and not secundum dis∣cretionem suam, but as my Lord Crooke, 5 Rep. 99. he must do it secundum Legem, & secundum Ar∣bitrium: That is to say, according to Law and Reason; but it is impossible in such a Case of Ne∣cessity, to put it into such an Equality, to make it without exception: but in as much as in him lieth, he ought to order it proportionably; his Power is not unlimited; for by his Discretion he is to discern Right and Wrong, between Sub∣stance and Shadow; and he must do within the Bonds of Law and Right.

In the Chamberlain of London's Case, They might Rule and Assess in Bono publico; as in ma∣king of a High-way, to a Church, or the like, wherein the Subject is brought to no Distress or Inconvenience; so as the greater part in such a Case as this, shall ever bind the lesser part; be∣ing it is pro Bono publico; yet this Assessement can∣not make a Law a Debt or a Duty, but is only a Means to bring this Duty to a Certainty, and so make it a Duty, so that he be Rated in an equal proportion.

Hath M. the Sheriff Rated Mr. Hampden dis∣proportionably according to his Estate and De∣gree? If he have let him tell: If the Sheriff have followed his own Will, and done corruptly, then he hath done contrary to the Intent of the Writ; it turneth upon the Sheriff himself; and a great Offence it is for a publick Minister of Justice to abuse himself in such a place of Justice.

The Sheriff returns, he hath Assessed 20 s. which is no great Sum; and also confesseth upon the Record, that it is an equal Assessement.

When Mr. Hampden appeared upon the Scire Fac. he demanded Oyer of the Writs, and so De∣murred in Law, which is upon the Matter (being a general Demurrer) a Confession.

And as for the Scire Fac. my Lord Finch hath handled it fully, and hath cited the same Books and Authorities that I intended to have cited; and so hath prevented me in that; and also in Bodman's Case in Cornwal, and upon the Excep∣tions super Tenorem Recordi in 9 H. 6. fol. 23.

And the Reason why he should not have Execu∣tion super Tenorem Recordi, is, because otherwise the Subject might be Charged double, and divers Cases were put upon suing forth Execution upon the Tenor of the Record, and yet no Execution can go out of the Chancery at the first, because it is not retornable by the Sheriff; but it is sent out of the Chancery by Mittimus into the Exchequer, 24 H. 6. 4 H. 6.

But it is true, That it doth concern every one to be satisfied in the Truth of the Case; for if the Sheriff should not Assess per Sacramentum, it might be made another way.

And as for the Certiorari, my Lord Finch hath also cited the said Books and Authorities which I also intended; therefore I forbear to insist upon that.

There is another Exception to the Record, quod oneretur, and not know to whom it should be; nor Money demanded to the King by the first Writ, no nor by the second Writ, therefore can give no Judgment, quod satisfaceret Domino Regi: Then if Judgment shall not be given for the King, then for whom? Non constat; it doth not appear to whom it is due, for any thing I can see in this Record.

Truly for my own part, of all the Exceptions that I have heard, none sticketh with me, but this Exception; for I do not know any Precedent, that a Judgment was given, and not say to whom: This Scruple (I confess) still remaineth with me: I must needs say, That in my Opinion, I do rather incline (as far as I am well satisfied) that this is a good Exception, according, and upon those Reasons that my Lord Chief Baron gave; and yet I am not so far satisfied that it is Law.

I must rather incline as my Opinion inclines; that against the Inclination of my own Opinion, as I have gone through all the rest with the War∣rant of my own Conscience, I cannot go upon any string in the Thing of the least weight, but I must deliver my Opinion as it inclines: and therefore upon these Reasons that I have heard, and upon consideration taken winh my self, I do rather incline to the Opinion of my Lord Chief Baron, and upon his Reasons, which I think was in that, with the lesser Number; but for my O∣pinion in all other Points, I agree with the Ge∣neral Vote of the Court.