Selected quad for the lemma: book_n
Text snippets containing the quad
|
ID |
Title |
Author |
Corrected Date of Publication (TCP Date of Publication) |
STC |
Words |
Pages |
|
A63931
|
The case of the bankers and their creditors stated and examined by the rules of lawes, policy, and common reason, as it was inclosed in a letter to a friend / by a true lover of his King and country, and a sufferer for loyalty.
|
Turner, Thomas, d. 1679.
|
1674
(1674)
|
Wing T3335; ESTC R23756
|
39,443
|
46
|
to be made that the King for the time being with the Advice of his Councel two Bishops two chief Justices and divers others might by His Proclamation make Ordinances for punishing offences and imposing penalties which should have the force of a Law but with this proviso that thereby no mans life or property Lands or Goods should be toucht or impeacht so then though the Royal Power was thus corroborated by this Statute yet the Parliament took care that no mans Life or Property should be ravisht from him However notwithstanding the said Restriction this Statute was thought inconvenient and thereupon repealed soon after in 1. Ed. 6. cap. 12. This Kingdome never laboured under a juster fear then in the Year 88. when it was assaild by that invincible Armada or Sea-Gyant as the Lord Bacon * His War with Spain calls it and yet every mans Right was then preserved inviolable Nay the Queen was so tender in that particular that as our Historians say She gave Express Order that not so much as an Ear of Corn should be burnt Cambden in vita Elizab. 1588. or other Goods of her Subjects devastated until the Enemy had actually Landed and was even upon the very point of possessing theâ— himself And therefore where the case of 8. Ed. 4. of plucking down the Suburbs of a City without the consent of the owners in time of War is Law 8. Ed. 4. it must be understood of an actual Invasion of the Enemy when the danger is in potentia proxima and the Fire ready to take And this manifestly appears by the Record of 11. Edw. 2. where the Mayor and Citizens of Dublin puld down the Suburbs of that City Claus 11. Ed 2. Memb. 19 Dorso pro majore civibus Dublin but it was saith the Record Super imminentem hostilem irruptionem scottorum inimicorum infra Hiberniam pro salvatione Civitatis praedictae ne dictis inimicis ad Civitatem praedictam facilior pateret ingressus c. And yet this Corporation neither would not trust to this point of Law but for their better security procured the King's Pardon which yet was cautiously enough drawn for it was Pardonamus eis euilibet de communitate Civitatis praedictae id quod ad nos pertinet de prostratione praedicta c. We Pardon as much as in us lies c. as appears by Pat. de anno 12. Edw. 2. Memb. 30. intus de pardonacione pro majore Civibus Dublin And so of the case of Gravesend Barge Mich. 6. Jacobe Cokes 12. Rep. 63. If the Ferry-man may justify to throw my Goods over-board to lighten the Vessel it must be upon an instant Tempest and inevitable peril but if the Ferry-man shall say I see a Cloud yonder my Masters its like to be a great storm and thereupon shall throw them over I doubt that is not at all justifiable in Law I shall now draw nearer our own times Cokes 3d Inst 3. and present you with a Triumvirate of precedents to say nothing of the Petition of Right in one and the self same Parliament no less then that which attain'd the name of Parliamen um Benedictum I mean that of 3. Caroli primi First the Judgement of the two Houses in that Parliament in Dr. Manwarings case Rushw Hist Collect. 3. Carol who was sentenc'd by them principally for declaring in a Sermon which he afterwards Printed that the King in Cases of imminent danger to the Kingdome might without Parliament Levy Money upon the Subject There were other collateral charges against him its true but this was the principal Journal of both Houses and to this he chiefly applyed his Defence and would have excused this Assertion by limiting it only to Cases of National Extremity but that would not serve his turn he himself submitting and the Sentence afterwards affirmed by the Kings Proclamation for suppressing the Book The second is the Commission for Loane Rushw Hist Collect 3. Caroli to carry on the War for the Palatinate in which was suggested the safety and very subsistance of the King People and Religion to be in instant danger that his Majestie 's Coffers were exhausted that the supply could not stay for a Parliament that the King upon his Accession to the Crown found himself ingaged in this War and that by advice in Parliament which I think may deserve some remark and only lending a little Money for prevention required Now I would fain know what suggestions could have possibly been more substantial or persuasive But because this course was compulsary and without consent these Commissions in the same Parliament were resolved to be illegal and so consented to be by his Majesty Poultons Statutes 3. Car. 1. cap 1. and so declared a little after in the same Parliament in the Petition of Right The third is the Commission of Excise issued to 33. Rushw Hist collect 30. Car. Lords and others of the Privy Councel in which they are commanded to raise Moneys by impositions or otherwise as in their judgements they shall find to be most convenient The Suggestions here were for the most part the same with those in the above mentioned Commission of Loane and yet adjudged by both Houses contrary to Law and the Lords desired his Majesty that this Commission of Excise might be canceld and shortly after it was canceld by the King and thereupon brought so canceld into the Lords House by the Lord Keeper and by the Lords so sent to the Commons In the last place I shall cite the Statute of 17. Car. 1. cap. 14. For the Reversal of the Judgement in the case of the Ship-writs I am not willing as well of brevity as other reasons to recite this Statute at large but I dare engage that no man shall read that Law but will say it is a most direct Judgement in the point against the violation of propriety in case of National danger If any man however shall for reasons best known to himself Arraign or Calumniate this Act of Parliament I shall say no more then this If it be Law why may I not vouch it If it be not why is it not Repeald why doth it still cumber our Statute Books I am heartily sorry to have had so invincible an occasion administred to me here of disturbing the Rest of these sleeping Muniments of propriety but this presumption also must be added to the black train of those Calamities which follow this pernicious Councel It is but natural to mankind to bring in what Arguments they can to preserve their undoubted Rights Juvenal Saty. 3. versus 152. especially when irritated by that unhappy Thing which renders men not only miserable but as the Poet saith Ridicule and contemn'd Neither have I here I hope invaded the just Regalities of his Sacred Malesty for which no person hath an higher veneration then my self but rather confirm'd them 1. Resusutaâ—i fol. 65. For as
is the Answer I shall give to this Allegation at present in the sequel of this discourse very probably I may add more These things premis'd I shall now forthwith address my self to the main business In the Argument whereof I shall observe these Gradations or steps 1. First I shall shortly put the ease as it now stands between the King and the Bankers 2. Secondly I shall prove that by this Councel of stopping payments in the Exchequer the Subjects property is invaded at Common Law 3. Thirdly that hereby it is invaded contray to the Statute Law 4. Fourthly that this Councel is expresly contray to his Majesties gracious promises and Declarations Printed and promulgated by His own especial command 5. Fifthly I shall at large answer the grand Objection of necessity and National danger supposing too our fears to be at that time just And shall prove by sundry Records and otherwise that the Subjects property is not violable but by his own consent in cases of far greater National Danger then this was I shall answer the Rapines of Ed. 1. and 3d. and because I would take up this Objection by the Roots I shall then shew what courses the Law hath provided for preservation of the Kingdome where the danger is instant and cannot stay for a Parliament 6. Sixthly I shall prove that this Councel is contray to the Pollicies hitherto used by the wisest Forreign States of the World in far greater Exigencies then ours I shall answer the Objection of some Princes not repaying Money lent them by their Subjects to retain them in better Obedience 7. Seventhly I shall prove this Councel to be contrary to common Reason and in some respects to violate the Rules of Humanity That it is pernicious to the credit of his Majesties Exchequer Then I shall truly state the case between Phillip the 2d of Spain and the Bankers of Genoa and shall prove that case essentially different from ours And Lastly shall frame a Conclusion upon the whole matter SECT 1. The Case put between the King and the Bankers I think it is now evident enough to every man that understands any thing that the concernment of the Bankers is now become the concernment of their Creditors and that both their interests are common and so inseperably twisted together that the prosperity of the latter will depend altogether upon the Fate of the former Insomuch that if the Banker never receive his debt I do not in probability see how he will be able to satisfie his Creditor we are therefore by invincible necessity obliged to maintain the right of the Banker and in order thereunto I will now put his Case which in short is no more but this A Banker lends to the King an hundred thousand pounds more or less this money is secured to the said Banker upon the Customes or any other Branch of the King's Revenues c. by Order Registred in the Exchequer or by Talley of Loane or both and then the King upon the War-like preparations of our neighbour Princes and States is advised to make stop of all payments out of the Exchequer which is executed accordingly whether by this Councel executed the Subjects property be invaded and I clearly conceive it is SECT 2. That by this Councel of stopping Payments out of the Exchequer the Subject propâ—rtâ—is in vaded at Common Law IT is an Essential principle of the Law of this Realine That the Subject hath an undoubted property in his Goods and Possessions Otherwise there shall remain no more industry no more Justice no more valour for who will labour who will hazzard his person in he day of Bâ—ttaâ— for that which is not his own How can the Subject â—y any Act of Bounâ—y ingratiate himself with his Soveraign Neither was this Right of propriety introduc there by any Charter or Edict of Princes but was the old Fundamental Law Lambards Archaion Fortes de laudibus Legum Angliae cap. 17. Dugdales Origines Jurid ciales Insinite Authorities there quoted to prove this See there Fol. 5.6 springing from the Original Frame and first Architecture of the Kingdome There were manifest Footsteps of this Law in the Britâ—ish Roman Saxon and Danish Governments here nay it was of that vigour and puissance to survive even the very Norman Conquest To prove which I shall crave leave to produce this following short memorable Record One Shirboorn a Saxon at the time of the Conquest being seized of a Castle and Lands in Norfolke William the Conquerer gave the same to one Warren a Norman of principal Quality Shirboorn dying his Heir shewed to the Conquerour that he was his Subject and that he ought to Inherit the said Castle and Land by vertue of that Law which he himself had establisht in England In this Case the Conquerour gave Judgement for Shirboorn against Warren and pronounc'd his own former gift void See for this Cambden in his Description of Norfolk And Sir John Davis Rep. 41 a. The Case of Tanistry And there it is said by Judge Calthrop that he himself had seen an Authentique Copy of this Judgement For indeed the Common Law is not more solicitous of any one thing then to preserve the property of the Subject from the inundation of the Prerogative And therefore where a custome is to pay Toll for all Cattle that shall be driven over a common Bridge this Custome shall bind the Subject but not the King but where a Custome is to pay Toll for all Cattle that shall be driven over a mans private Freehold there the Custome shall prevail against the Prerogative and what 's the Reason why because the Law will not allow the King to invade the Subjects Inheritance and Property without consent and compensation For this see the expreâ—s book of 46 of Ed 3. cited in Plowden 236. a. The Lord Barkley's case Many other cases of this nature are there recited and in other Books of our Law which for brevity I for bear to mention To come then to the Hinge upon which this point turns I do lay this down for an indisputeable ground That the Law of the Court of Exchequer is the universal Law of this Land and so is Plowden 320. b. and 321. b. The case of Mines and Cooks 2d Report 16. b. Lanes case adjudg'd Now then by the Law of the Exchequer when the King hath charged himself to the Subject by Talley and liberate as in our case to pay a summe of money out of his Customes or any other branch of his Revenue and his Collector hath received this Revenew this money though at first it appertains in property to the King yet as soon as ever the Kings Creditor comes to this Collector and shewes him his Talley and Liberate and demands payment accordingly the property of this money to the proportion of the Debt by meer operation of Law is transfer'd out of the King into the Collector or Receiver and in an instant becomes the proper and personal Money of