Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	appear_v	error_n	writ_n	1,717	5	9.5204	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A67804	The rights of the people of England, concerning impositions stated in a learned argument, by Sir Henry Yelverton ... ; with a remonstrance presented to the Kings most excellent Majesty, by the honorable House of Commons, in the Parliament, An. Dom. 1610 ...	Yelverton, Henry, Sir, 1566-1629.; England and Wales. Parliament. House of Commons.	1679 (1679)	Wing Y28; ESTC R12698	49,930	134

THE RIGHTS Of the People of England Concerning IMPOSITIONS Stated in a Learned Argument by Sir Henry Yelverton Knight and Baronet late one of the Justices of the Court of Common-pleas With a Remonstrance presented to the Kings most excellent Majesty by the Honorable House of Commons in the Parliament An. Dom. 1610. Annoque Regis Jac. 7. London Printed for William Leake and John Leake at the Crown in Fleetstreet betwixt the two Temple-Gates 1679. TO THE Courteous READER THis excellent Treatise of the no less worthy Author happily falling into my hands I instantly thought it my duty to make that publick which had given so much useful satisfaction to many learned and judicious in private remembring that antient Adage Bonum quò communius eò praestantius I hope it is needless to commend either the Reverend Author deceased the Treatise its use or stile since the Authority by which it is published is a sufficient argument of their known worth If thou kindly accept of his good meaning whose onely aim in the publishing hereof was the Common good it will be an encouragement to him and others to present to thy view what may hereafter fall into his hands worthy thy further perusal Thine J. B. 20. Maii. 1641. AT a Committee appointed by the Honourable House of Commons for examination of Books and of the licencing and suppressing of them c. It is Ordered That this Treatise be published in Print Sir Edward Deering Kt. and Baronet ☞ There is lately come forth An exact Abridgment of the Records in the Tower of London from the reign of King Edward the Second unto Richard the Third of all the Parliaments holden in each Kings reign and the several Acts in every Parliament together with the Names and Titles of all the Dukes Marquesses Earls Viscounts and Barons summoned to every of the said Parliaments Collected by Sir Robert Cotton Knight and Baronet And are to be sold by William Leak at the Crown in Fleetstreet betwixt the two Temple gates A Remonstrance delivered to His Majesty in writing after the inhibition given by Him to the Commons House of Parliament aswell by word of mouth as by Letters not to proceed in the examining his Right to Impose without assent of Parliament To the Kings most excellent Majesty Most gracious Sovereign WHereas we your Majesties most humble Subjects the Commons assembled in Parliament have received first by message and since by speech from your Majesty a command of restraint from debating in Parliament your Majesties right of Imposing upon your Subjects goods exported or imported out of or into this Realm yet allowing us to examine the grievance of these Impositions in regard of quantity time and other circumstances of disproportion thereto incident We your said humble Subjects nothing doubting but that your Majesty had no intent by that command to infringe the antient and fundamental right of the Liberty of Parliament in point of exact discussing of all matters concerning them and their possessions goods and rights whatsoever which yet we cannot but conceive to be done in effect by this command do with all humble duty make this Remonstrance unto your Majesty First We hold it an antient general and undoubted right of Parliament to debate freely all matters which do properly concern the Subject and his right or estate which freedom of debate being once fore-closed the essence of the liberty of Parliament is withthal dissolved And whereas in this case the Subjects right on the one side and your Majesties Prerogatives on the other cannot possibly be severed in debate of either We alledge that your Majesties Prerogatives of that kinde concerning directly the Subjects right and interest are daily handled and discussed in all Courts at Westminster and have been ever freely debated upon all fit occasions both in this and all other former Parliaments without restraint which being forbidden it is impossible for the Subject either to know or to maintain his Right and Propriety to his own Lands and Goods though never so just and manifest It may further please your most excellent Majefty to understand that we have no minde to impugn but a desire to inform our selves of your Highness Prerogative in that point which if ever is now most necessary to be known and though it were to no other purpose yet to satisfie the generality of your Majesties Subjects who finding themselves much grieved by these new Impositions do languish in much sorrow and discomfort These Reasons Dread Sovereign being the proper Reasons of Parliament do plead for the upholding of this our antient Right and Liberty Howbeit seeing it hath pleased your Majesty to insist upon that Judgment in the Exchequer as being direction sufficient for us without further examination Upon great desire of leaving your Majesty unsatisfied in no one point of one of our intents and proceedings We profess touching that Judgement that we neither do nor will take upon us to reverse it but our desire is to know the Reasons whereupon the same was grounded and the rather for that a general conceit is had That the Reasons of that Judgement may be extended much further even to the utter ruine of the antient liberty of this Kingdom and of your Subjects Right of propriety to their Goods and Lands Then for the Judgment it self being the first and last that ever was given in that kind for ought appearing unto us and being onely in one Case and against one man it can binde in law no other but that person and is also reversible by Writ of error granted heretofore by Act of Parliament and neither he nor any other Subject is debarred by it from trying his Right in the same or like cafe in any of your Majesties Courts of Record at Westminster Lastly We nothing doubt but our intended proceeding in a full examination of the right nature and measure of these new Impositions if this restraint had not come between should have been so orderly and so moderately carried and imployed to the manifold necessities of these times and given your Majesty so true a view of the state and right of your Subjects that it would have been much to your Majesties content and satisfaction which we most desire and removed all causes of fears and jealousies from the loyal hearts of your Subjects which is as it ought to be our careful endeavour Whereas contrariwise in that other way directed by your Majesty we cannot safely proceed without concluding for ever the right of the Subject which without due examination thereof we may not do We therefore your loyal and dutiful Commons not swerving from the approved steps of our Ancestors most humbly and instantly beseech your gracious Majesty that without offence to the same we may according to the undoubted Right and Liberty of Parliament proceed in our intended course of a full examination of these Impositions That so we may chearfully pass on to your Majesties business from which this stop hath by diversion

Patents of his own will and power absolute without assent of Parliament he be so lawfully intituled to that he doth impose as that thereby he doth alter the property of his subjects goods and is enabled to recover these impositions by course of Law I think he cannot and I ground my opinion upon these foure reasons 1. It is against the naturall frame and constitution of the policie of this kingdome which is jus publicum regni and so subverteth the fundamentall Law of the Realme and induceth a new forme of state and government 2. It is against the municipall Law of the Land which is jus privatum the Law of property and of private right 3 It is against divers Statutes made to restraine our King in this point 4. It is against the practice and action of our Common wealth contra morem majorum and this is the modestest rule to limit both Kings Prerogatives and Subjects Liberties Upon the first and fourth of these foure principal grounds I will more insist then upon the second and third both for that in their own nature they are a more proper matter for a Councel of State to the judgement of which I apply my discourse and they have not been enforced by others As also for that the other two as more fit for a barre and the Courts of ordinary justice have by some professors of the Law been already most leardnedly and exquisitely discussed For the first it will be admitted for a rule and ground of State that in every Common-wealth and government there be some rights of Soveraignty jurae Majestatis which regularly and of common right doe belong to the Soveraign power of that State unless Custome or the provisional ordinance of that State doe otherwise dispose of them which Soveraigne power is potestas suprema a power that can controule all other powers and cannot be controuled but by it self It will not be denied that the power of imposing hath so great a trust in It by reason of the mischiefes may grow to the Common-wealth by the abuses of it that it hath ever been ranked among those rights of Soveraign power Then is there no further question to be made but to examine where the Soveraigne power is in this Kingdome for there is the right of imposition The Soveraigne power is agreed to be in the King but in the King is a twofold power the one in Parliament as he is assisted with the consent of the whole State the other out of Parliament as he is sole and singular guided merely by his own will And if of these two powers in the King one is greater than the other and can direct and controule the other that is Suprema Potestas the Soveraigne power and the other is subordinata It will then be easily proved that the power of the King in Parliament is greater than his power out of Parliament and doth rule and controule it for if the King make a grant by his Letters Patents out of Parliament it bindeth him and his successors he cannot revoke it nor any of his Successours But by his power in Parliament he may defeate and avoyd it and therefore that is the greater power If a judgement be given in the Kings Bench by the King himselfe as may be and by the Law is intended a writ of Error to reverse this judgement may be sued before the King in Parliament which writ must be granted by the Chancellor upon bill indorsed by the King himself 1. H. 7.19 6. Lib. Intrac fol. 302. c. 1. as the book is 1 H 7.19.6 And the forme of the writ of Error is that it being directed to the Chiefe Justice of the Kings Bench Quia in recordo pr●cessu ac etiam in redditione judicii l●quelae quae fuit in Curiâ nostrâ coram nobis Error intervenis manifestus ad grave damnum c. Nos errorem si quis fuerit modo debito corrigi pariibus praedictis plenam celerem justitiam fieri volentes in hâc parte vobis mandamus quòd Recordum processum loquelae illius cum omnibus ea tangentibus in praesens Parliamentum nostrum sub sigillio tuo disti●●●è apertèmittas hoc breve ut inspectis c. n●s de Consilto advisamento Domi norum spiritualium temporal●um ac Communitatis in Parliamento nostro praedicto existentis alterius pro errore illo corrigen●o fieri faciamus qu●d de jure secundum legem consuetudinem Regni nostri Angliae fuerit faciendum So you see the Appeal is from the King out of the Parliament to the King in Parliament the writ is in his name the rectifying and correcting the errours is by him but with the assent of the Lords and Commons The booke is not so that the Cōmons should meddle than which there can be no stronger evidence to prove that his power out of Parliament is subordinate to his power in Parliament for in Acts of Parliament be they lawes grounds or whatsoever whatsoever else the Act and power is the Kings but with the assent of the Lords and Commons which maketh it the most soveraigne and supreame power above all and controulable none Besides this right of imposing there be others in the Kingdome of the same nature As the power to make lawes the power of Naturalization the power of erection of arbitrary Government the power to judge without appeale the power to legitimate all which do belong to the King only in in Parliament Others there be of the same nature that the King may exercise out of Parliament which right is grown unto him in them more in those others by the use and practice of the Common-wealth as denization coynage making warr which power the King hath time out of minde practised without the gain-saying and murmuring of his subjects But these other powers before mentioned have ever been executed by him in Parliament and not otherwise but with the reluctation of the whole Kingdome Can any man give me a reason why the King can only in Parliament make lawes No man ever read any law whereby it was so ordained and yet no man ever read that any King practised the contrary Therefore it is the originall right of the Kingdome and the very natural constitution of our State and policy being one of the highest rights of Soveraigne power So it is in naturalization legitimation and the rest of that sort before recited It hath been alleaged that those which in this Cause have enforced their reasons from this Maxime of ours That the King cannot alter the Law have diverted from the question I say under favor they have not for that in effect is the very question now in hand for if he alone out of Parliament may impose he altereth the Law of England in one of these two maine fundamental points He must either take his Subjects goods from them without assent of the party which is against the Law or else he

safely come into the Realm of England with their goods and Merchandizes and safely tarry and safely return paying the Subsides Customs and other profits reasonably due Upon the words of this Law was great advantage taken in this that besides Custom and Subsidy which comprehend all the certain and ordinary duties the King hath upon the wares and goods of Merchants there are other profits spoken of to be due These they affirm cannot be understood but of Impositions by the King without assent of Parliament To this I answer if they were not duties due to the King besides Custom and Subsidy which might satisfie the intention of these words this objection might have had some colour in it but it is plain that besides these two there are other profits due to the King upon Merchants goods as Scavage Tonage and the like And you shall finde a Petition in Parliament Rot. Par. 50. E. 3. nu 163. 50. E. 3. against the raising of these above the old rate The eighth Law is 15. E. 3. stat 2. c. 5. E. 3. Stat. 2. cap. 5. whereby it is enacted that every Merchant may freely buy and sell and pass the Sea with their Merchandizes of Wooll and all other things paying the Custom of old time used according to the Statute made in the last Parliament in Midlent which was the Stat. 14. E. 3. stat 2. cap. 2. This Law doth expresly exclude the novelty of Impositions The ninth Law is that 18. E. 3. stat 1. ca. 3. whereby it is enacted 18 E. 3. stat 1. c. 3 That the Sea be open to all manner of Merchants to pass with their Merchandizes where it shall please them The tenth is 27. E. 3. stat 2. c. 2. 27. E. 3. stat 2 cap. 2 for the assurance of Merchants-strangers and other the King doth will and grant for him and his Heirs that nothing shall be taken over the due Customs not taken of them to his use by colour of suit or in other manner against their wills The eleventh is 38. E. 3. cap. 2. 38 E. 3. cap. 2. that all manner of Merchants aliens and Denizens may buy and sell all manner of merchandizes and freely carry them out of the Realm paying the Customs and Subsidies thereof due The last is 22. H 8. cap. 8. by which it was enacted that Tables should be set up in Ports 22. H. 8. cap. 8. by which the certainty and very duty of every Custom Toll and Duty or sum of money to be demanded and required of Wares and Merchandizes shall and may plainly appear and be declared to the intent that nothing be exacted otherwise then in old time hath been used and accustomed By this late Law it appeareth that the judgment of the whole Parliament was at that time That nothing was due upon Wares and Merchandizes but that which which was certain and had been antiently due by which Impositions are excluded whose qualities are novelty and incertainty as being set on as present occasion moveth and proportioned for quantity and other circumstances as the will of the King directeth These are the Laws which I conceive most directly tend to the restraining the Kings of England from the exercise of that irregular power of imposing at the first offered by them to be put in execution yet not pressed as their right and never practised but upon opposition of the whole State and at last deserted and given over until of late as by that which followeth in the fourth place will appear My fourth and last assertion is Custom 4 That this practise of imposing without assent of Parliament is contra morem Majorum In this I will make an historical perlustration of the times past whereby I will discover and make known what passages have been in this business in this Kingdom and especially the high Court of Parliament for the space of 300 years and more last past since the beginning of the reign of E. 1 sithence which time and not before this Kingdom hath grown into the glory and reputation of foraigne traffique And as a worthy Gentleman of the Kings learned Councel made certaine considerations upon this question framed and strengthened out of the greatness of his wit and reason so I grounding my self upon the practice of former times which is the safest rule whereby to square the right both of King and people in this Common-wealth where their right is jus consuetudinarium a right that groweth by use and practice I will propose unto you certaine observations out of the action and experience of former times untill the raignes of the two late Queenes by which you may the better ground and frame your judgements in the determination of the right in this question My first observation is in point of circumstance that there never was any Imposition set but in time of actuall war and duplicatis vexillis they were set on very rarely and sparingly but for a short rime and that certaine and definite and upon some few commodities and that by the assent of the Merchants that were to beare the burthen In our time the occasion not so sensible the continuance to be perpetual the number many hundreds almost no kinde of Commodity spared I will give you some few Instances of these circumstances out of the Records themselves The maletole of Wooll set on by King ε. I. 22. E. 1. orig Scace Rent Thes which gave the occasion of the Stat. 25. yeare of his raigne was given by Merchants The Record saith Mercatores gratanter concesserunt in subsidium guerrae Regis 22. E. 1. men Scac. R. Thes T. Mich. Rot. parl 17. E. 3. nu 28. It further sheweth it was for his necessity of Warre which then was great also For the time of E. 3. there need not many instances for his whole raigne was almost an actuall warfare As in the sixt year of his raigne for his war in Scotland and Ireland In the thirteenth year of his raigne for his war in France severall Impositions were ser on In the seventeenth year of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Merchants Rot. parl 50. E. 3. nu 18. and it was in the time of VVar. In the twentieth yeare of King E. 3. it appeareth in the Record that the Imposition then put upon VVools was by the assent of Merchants for two years for the necessity the King had in his passage ovet the sea to recover his right and to defend the Realme My second observation is Never any Imposition was set on by the King out of Parliament but complaint was made of it in Parliament and not one that ever stood after suck complaint made but remedy was afforded for it Et quod Rex inconsulio fecit consulto revocavit his Soveraigne power controlled his subordinate In which it is a thing very notable that the King in no one Case