Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	action_n	case_n	writ_n	3,269	5	9.4187	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A55325	Discourse of trade, coyn, and paper credit, and of ways and means to gain, and retain riches to which is added the argument of a learned counsel upon an action of a case brought by the East-India-Company against Mr. Sands the interloper.	Pollexfen, John, b. ca. 1638.; Pollexfen, Henry, Sir, 1632?-1691. Argument of a learned counsel upon an action of the case brought by the East-India-Company against Mr. Thomas Sands, an interloper.	1697 (1697)	Wing P2778; ESTC R17145	112,364	258

Case 7 Rep. 17. where 't is said That Infidels are perpetui inimici there is perpetual Hostility there can be no Peace an Infidel can maintain no Action nor have any thing within this Realm and to prove this there is cited R. 282.12 H. 8.4 1. Supposing the Law to be as these Books intend and as the other side urge them and the Consequence will be that the Plaintiff can't maintain this Action but that the Charter granted to them is void The Reason that is given in Michelburn's Case is grounded upon this That the King hath the Care and Preservation of Religion by the Law vested in him That his Subjects shall not trade with Infidels lest thereby they may be brought to relinquish the Catholick Faith and adhere to Infidelism And that the King shall take care that Licences to trade be only given to such as the King hath Confidence in that they will not decline their Religion Supposing this then your Patent must be naught for then it is only grantable to Persons in whom such Confidence may be 1. Your Corporation or Body Politick is indefinite as to Persons the Members thereof are daily changeable some go out sell their Stocks or dye others buy their Stocks and are daily coming in to be Members of your Company I doubt you do not much examine nor care how fixed or certain those are in Religion that come into your Company How then can there be any Confidence in a Body Politick The Law saith that a Body Politick hath neither Soul nor Conscience What Confidence then concerning their Religion can there be in a Body Politick 2. 'T is not only the Members of the Company that were at the Time of the Corporation but those that after should be Members and their Sons their Apprentices Factors and Servants that are licensed by this Patent If licensing to trade with Infidels be a Trust and Prerogative in the King to be given to such Persons in whom the King can have Confidence that they will not be conversing with Infidels change or prejudice This can't be granted to a Body Politick and their Successors which may have Continuance for ever or to their Sons Factors Apprentices and Servants Persons altogether unknown not born nor in rerum natura when the Patent was made Suppose such a Licence to you to trade with Enemies I say 3. Supposing it to be in the King's Prerogative in Preservation of Religion to licence yet he can't grant this Prerogative to you that you shall have Power to grant Licence to whom you will Yet all this is done by your Patent for you have not only thereby Power granted you for your Apprentices Factors and Servants which are Persons that you your selves nominate and appoint at your Discretions and undoubtedly very religious But by your Patent it is expresly granted that the Company for any Consideration or Benefit to themselves may grant Licences to any Merchant Stranger or other to trade to or from the Indies And that the King will not without the Consent of the Company licence any other to trade Can this be a good Grant Can the King grant from himself his Kingly Care and Trust for Preservation of Religion to you that you shall manage it and that the King will not use such his Power without your Consent So that supposing that there is by the Law such a Trust reposed in the King for Preservation of Religion as you would have it yet the Grant to you is void in it self and then you have no more Right than we and consequently can maintain no Action against us 2. To consider the Books that you have cited to maintain this religious Point 1. Brownlow's Reports a Book printed in the late Times not licensed by any Judge or Person whatsoever The Roll is Michelburn against Bathurst Mich. 7 Jac. B. C. Rot. 3107. setting forth that the King had granted the Plaintiff his Commission to go with his Ship Tiger to the East-Indies to spoil and suppress the Infidels and to take from them what he could That there were Articles betwixt the Parties for Account and Shares of what should be got and upon those Articles a Suit in the Admiralty And what is it that is in the Case Nothing to the purpose but the Book mentions only what my Lord Coke said upon the Motion for the Prohibition Only a sudden occasional Saying not upon any Argument or Debate nor to the then Case So that a Man must be very willing that will much rely upon such a Saying I can't call it an Authority 2. For Calvin's Case That an Infidel is perpetuus Inimicus and can maintain no Action or have any thing and that we are in perpetual Hostility and no Peace can be made with them It is true that this is said in Calvin's Case but there was nothing there in Judgment that gave Occasion for it so that I can't think that it was much considered before it was spoken The Books there cited to prove it are Reg. 282. And all that I can find therein is that in a Writ of Protection granted to the Hospitallers of the Hospital of St. John's of Jerusalem it is said that the Hospital was founded in Defence of Holy Church against the Enemies of Christ and Christians But doth this prove that Infidels are perpetui Inimici with whom no Peace can be made that can maintain no Action The other Book cited is 12 H. 8.4 a Trespass brought for taking away a Dog and in the debating whether this Action did lye or not it is said That if the Lord beat his Villain an Husband his Wife or a Man outlawed or a Traitor or a Pagan they shall have no Action because they are not able to sue an Action So that this also is but Discourse and sudden Thoughts and Sayings where the thing was not in Question And what Authority is there in such Sayings It is true that Christian Religion and Pagaism are so contrary one to the other as impossible to be reconciled no more than Contradictions can be reconciled But because they can't be reconciled that therefore there should be perpetual War betwixt them and us perhaps is an irreligious Doctrine and destroys all Means of convincing Infidels to the Faith And besides these extrajudicial and occasional Sayings in these Books cited are of little Authority For I can't find any Book or Case much less Judgment or Authority for such Opinions in so great a Point as this is But on the other side if a Man considers the general Course and Practice Trade and Commerce and legal Proceedings a Man would think That my Lord Coke could not be in earnest in what he hath said about Infidels For let a Man consider what a great Part of the World we have Commerce with that are Infidels as Turks Persians the Inhabitants of Barbary and other Countries Spain and Portugal were also possessed by the Moors who were Infidels till about the Year 1474. about 200

Years since they were driven out for till then for near the Space of 700 Years the Moors possessed both Spain and Portugal Have we not Leagues and Treaties with the Princes and Inhabitants of the Infidel Countries receiving Embassadors from them and sending Embassadors to them and Ministers always residing with them Have we not from Time to Time Peace or War with them in like manner as with Christian Kings and Countries If Infidels be perpetui Inimici if in perpetual Enmity then we may justifie the killing of them as those that we are in Hostility with wheresoever we meet with them 17 E. 4.13 b. 2 H. 7.15 Adjudged that any Man may seize and take to his own Use the Goods of an alien Enemy 'T is the Price of his Adventure and Victory over his Enemy If an Infidel be any Enemy any Man may then take away the Goods of an Infidel and have them to his own Use And this would be a good Trade if this be so Mr. Sollicitor in his Argument was pleased to cite many ancient Rolls out of H. 3. and E. 1. and about those Times concerning those Princes handling the Jews In Mr. Pryn's Book that he calls The second Part of a short Demurrer to the Jews long discontinued Remitter into England printed in 1656. In which Book I believe an hundred Records and Histories are cited to shew how they were about those times handled The Time that they did exact and much enrich themselves by Usury to the great Impoverishment of the People And that the Princes of those Times polled them taxed them and took it from them again at Pleasure But besides Mr. Pryn Stat. of Merton C. 5. made 20 H. 7. was my Lord Coke saith 2 Inst 89. principally intended against the usurious Jews Stat. de Judaismo 18 E. 1. Recites that the King's People were disinherited by the usurious Jews And enacts That no Jew for the suture shall take Usury My Lord Coke saith 2 Inst 507. that 15060 Jews thereupon departed the Kingdom But for the Use that in arguing is made of this matter of the Jews and of the King 's seizing their Estates and pardoning for dealing with them 1. As for those ancient Records in general Time hath hidden the Knowledg of the Laws and Transactions of those Times It is impossible to know what the Laws of those Times were or rightly to distinguish betwixt legal and violent Acts And to bring Inferences from thence to conclude in Judgment now is Notum per Ignotius Or like Dependencies which unless latter Times have concurred or agreed with are only fit to make Disorder and Confusion 2. But that which is deducible from thence is not as I conceive what hath been endeavoured That is that they had no Property because the Princes of those Times took from them their Estates when they pleased or taxed them how and in what manner they pleased But perhaps the Reason was because those People lying under the Curse and being a vagrant People without Head Prince or Governour or Country it was no Difficulty to tax or take from them at Pleasure being hated of the People where they lived For it could not be as they would have it that they should be amongst us as alien Enemies for an alien Enemy can make neither Bargain nor Contract nor be capable of Property But the Subject may at his Will and Pleasure fall upon and take all that he hath to his own Use as upon the King's Enemies and what he can take from him is his own Acquisition as the Prize of his Adventure and Conquest over his Enemy And to prove this two Books are cited 17 E. 4. and 2 H. 7. But by what is admitted by them that they were great Usurers and had great Estates It is evident that they were treated as alien Amies How could they else in such Multitudes live amongst us How could they be Usurers or get Estates if they could not make Contracts How is it possible they could preserve their Bodies or Estates against the King's Subjects unless they had the King's Protection and treated as alien Amies And of latter Times how many of them have lived amongst us driven great Trades have had and have at this present considerable Estates Let it be now adjudged that any Man that will may take away their Estates that they can have no Remedy or Action for any Debt owing to them but instead thereof may be beaten and imprisoned as Enemies to the King And we shall probably see what the Success of such a Judgment will be The Act of Navigation made the 12 Year of the King 12 Car. 2. cap. 18. concerning Trade shews that Infidels have the same Liberty of Trade as others That Act being made for Encrease of Shipping and Navigation and prohibiting Goods to be imported by any foreign Ships except the Ships of the same Country where the Goods do grow or arise distinguisheth not betwixt Infidel and Christian Countries But expresly saith That Currants nor Commodities of the Growth of the Turkish or Ottoman Empire shall be imported but by English Ships except Ships of the Built of that Country or Place where the Growth is and whereof the Master of the Mariners is of that Country or Place This Clause shews plainly that the Infidels of the Turkish and Ottoman Empire have Liberty of Trade here And the Acts of Tunnage and Poundage tax all their Merchandizes without saying brought in In Southern How 's Case 2 Cr. 469. where a Man imployed another to sell Jewels for him in Barbary as true Jewels and he sold them to the King of Barbary for 800 l. as true Jewels when they were counterfeit and thereupon the King of Barbary finding himself cheated imprisoned the Plaintiff that sold them to him till he repaid his Mony In that Case 't was of all sides admitted and not as much as objected that this Contract was void because the King of Barbary was an Infidel So that this Opinion that Infidels are perpetual Enemies and in perpetual Hostility can maintain no Action nor have any thing amongst us hath no Authority for its Foundation but only some extrajudicial Sayings without Debate or Consideration And is against all the continual Practices of Princes and People at all Times Perhaps 't is no small Part of Religion that Men should speak and deal plainly and uprightly one with another We do know that Religion hath been too often made a Cloak and Vail for other Ends and Purposes It should not be so And I hope will not be so used in this Case The Statutes that I have cited of Magna Charta c. 9. E. 3. 25 E. 3.2 and 11 R. 2. All declare and enact the Freedom of Trade in general Words except only such as are in War with the King In none of them is there any Exception of Trade with Infidels Can it be imagined that in those Days we had no Trade with Turkey or Barbary Our

sold them in England against the Will of the Company to their Prejudice and Impoverishment against the Form of the Letters Patents to the Damage of the Company 1000 l. 1. You have not alledged that he had no License from the King 2. You have not shewn any Loss or Damage that you have Did he buy so much Merchandize in the Indies as that he left not there sufficient for you to furnish your Ships withall so that they came home empty No such thing is alledged Or did he here export to sell so much Merchandize as not sufficient left for you to buy here No such thing alledged in your Declaration Or did he bring home here so much as that there were not Buyers sufficient for his Goods and your's also No such thing is alledged Or is the Truth so as that hereby your imposing your Prizes upon your own Commodities selling at your own Rates and exacting what you thought fit was hindred and for this you would maintain an Action It will be the first Time I think that a Man did ever recover Damages for being hindred of imposing and exacting his own Prizes or having the Advantage of his Monopoly A Commoner may bring an Action of the Case against a Stranger who puts in his Cattel into the Common provided that thereby the Common be impaired and the Commoner have not sufficient Common as before but have a Damage otherwise he can maintain no Action Resolved that for every feeding of the Beasts of a Stranger in a Common Co. 9 Rep. 113. the Commoner shall not have an Assize or Action upon the Case but the feeding ought to be such that thereby the Commoner cannot have Common of Pasture for his own Beasts 'T is the Consequence the Loss of his Common that gives him Cause of Action 'T is not alledged in the Declaration that your Trade was any thing the worse No Damage to you appears by it What Reason is there that you should recover Damages where you have not sustained any Loss And if you have alledged none in your Declaration how can your Declaration be good It then contains no Cause of Action The last Point in that Case is there resolved 11 Co. Rep. 88. b. Rols Abr. 1 part 106. that admitting the Patent good yet no Action would lye In that Case the Queen by her Letters Patents had granted to Mr. Darcey that he his Servants Factors and Deputies the whole Trade Traffick and Merchandize of Cards for 12 Years should have and use That none else should use the Trade nor buy or sell Cards That the Defendant did contrary to this Patent sell Cards 1. Adjudged that this was a Monopoly and the Patent void 2. That if the Patent had been good yet no Action would have lyen against the Defendant upon it 2. But for another Reason you can't maintain this Action It is grounded upon the Restraint and Prohibition of others to trade contained in the Letters Patents That Restraint or Prohibition is not an absolute Restraint or Prohibition but sub modo under a Pain of Forfeiture of Ship and Goods One half to the King another half to you that are the Company Now supposing all that you can desire That this Patent should have the Force and Vertue of an Act of Parliament yet such an Action as this could not be maintained upon it but you must sue for the Forfeiture For whensoever a new Law is made you must take that new Law as it is and it can't be extended Co. 7 Rep. 37. 11 Rep. 59. and Pl. Com. 206. All prove it Stat. E. 6. gives treble Damages for not setting out of Tithes Can the Party wave this Way and bring an Action of the Case Yet here the Damages are given to the Party The like of all other penal Statutes a Man must forfeit only the Penalty the Statute inflicts So that this Action cannot as I conceive be maintained So that to conclude 1. That which this Company claims in this Case by this Patent to have the sole Trade to the East-Indies in their Politick Capacity excluding all others is a Monopoly and ingrossing against the common Law the ancient Statutes the Statute of Monopolies 21 Jac. And therefore they have no Right to have what they claim 2. That what the Defendant hath in this Case done he hath lawfully done and therefore not to be punished 3. That though the Company had a lawful Claim to the Trade in such manner as in their Declaration set forth and the Defendant have done what he ought not yet they can't maintain this Action And upon the whole matter Whether best for the Company to have Judgment for them or against them may deserve their Thoughts And this being so great in the Conseqence as the whole Trade of the Kingdom depending upon it I have laboured the more The ancient Laws the ancient Ways is what I endeavour and against new Ways upon any Pretence whatsoever Some Books printed for B. Aylmer at the Three Pigeons in Cornhil THE Works of the Most Reverend Dr. John Tillotson late Lord Archbishop of Canterbury containing Fifty four Sermons and Discourses on Several Occasions together with the Rule of Faith Being all that were published by his Grace himself and now collected into one Volume To which is added an Alpabetical Table of the Principal Matters Price 20 s. Six Sermons viz. 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