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
A96414	A learned and necessary argument to prove that each subject hath a propriety in his goods shewing also the extent of the kings prerogative in impositions upon the goods of merchants exported and imported out of and into this kingdome : together with a remonstrance presented to the Kings Most Excellent Majesty by the Honourable House of Commons in the Parliament holden anno dom. 1610, annoq[ue] regis Jacobi, 7 / by a late learned judge of this kingdome.	Whitelocke, James, Sir, 1570-1632.; England and Wales. Parliament. House of Commons.	1641 (1641)	Wing W1995aA; ESTC R42765	49,132	72

A learned and necessary ARGUMENT To prove that each Subject hath a Propriety in his Goods Shewing also The extent of the Kings Prerogative in Impositions upon the Goods of Merchants exported and imported out of and into this Kingdome Together with a Remonstrance presented to the Kings most excellent Majesty by the honourable House of Commons in the Parliament holden Anno Dom. 1610. Annoque Regis Jacobi 7. By a late learned Judge of this Kingdome LONDON Printed by Richard Bishop for Iohn Burroughes and are to be sold by Richard Hassell Book-seller in Bristoll 1641. To the Courteous Reader THis excellent Treatise of the no lesse worthy Author happily falling into my hands I instantly thought it my duty to make that publick which had given so much usefull satisfaction to many learned and judicious in private remembring that ancient Adage Bonum quò communius eò praestantius I hope it is needlesse 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 knowne worth If thou kindly accept his good meaning whose only ayme 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 perusall Thine I. 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 DERING Knight and Baronet A Remonstrance delivered to his Majestie 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 Soveraigne 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 Realme yet allowing us to examine the greivance 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 ancient and fundamentall 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 doe with all humble duty make this Remonstrance unto your Majesty Frist we hold it an ancient generall and undoubted right of Parliament to debate freely all matters which doe properly concerne the subject and his right or estate which freedome of debate being once fore-closed the essence of the liberty of Parliament is withall dissolved And whereas in this case the subjects right on the one fide and your Majesties prerogative on the other cannot possibly bee severed in debate of either Wee 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 Parlialiaments without restraint which being forbidden it is impossible for the subject either to know or to maintaine his right and propriety to his owne lands and goods though never so just and manifest It may further please your most excellent Majesty to understand that wee have no minde to impugne but a desire to informe our selves of your Highnesse Prorogative in that point which if ever is now most necessarie to be knowne and though it were to no other purpose yet to satisfie the generalitie of your Majesties Subjects who finding themselves much grieved by these new impositions doe languish in much sorrow and discomfort These reasons Dread Soveraigne being the proper reasons of Parliament doe plead for the upholding of this our ancient Right and Libertie Howbeit seeing it hath pleased your Majestie to insist upon that judgement 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 our intents and proceedings We professe touching that judgement that wee neither doe 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 generall conceit is had That the reasons of that judgement may bee extended much further even to the utter ruine of the ancient liberty of this Kingdome and of your subjects right of proprietie to their goods and lands Then for the judgement it selfe 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 errour granted heretofore by act of Parliament And neither be nor any other subject is debarred by it from trying his right in the same or like case 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 betweene should have been so orderly and so moderately carried and employed 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 wee most desire and removed all causes of feares and jealousies from the loyall hearts of your Subjects which is as it ought to bee our carefull endeavour whereas contrariwise in that other way directed by your Majestie wee cannot safely proceede without concluding for ever the right of the subject which without due examination thereof wee may not doe Wee therefore your loyall and dutifull Commons not swarving from the approved steps of our Ancestours most humbly and instantly beseech your gracious Majestie that without offence to the same we may according to the undoubted right and liberty of Parliament proceede in our intended course of a full examination of these new impositions That so wee may cheerefully passe on to your Majesties businesse from which this stop hath by diversion so long withheld us And we your Majesties most humble faithfull and loyall Subjects shall ever according to our bounden duty pray for your Majesties long and happy reigne over us The question is whether the King without assent of Parliament may set impositions upon the wares and goods of merchants exported and imported out of and into this Realme THree things have been debated in this Parliament that have much

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 priuatum 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 subiects liberties Upon the first and fourth of these foure principall grounds I will more insist then upon the second and third both for that in their owne nature they are a more proper matter for a Councell of State to the judgement of which I apply my discourse and they have not beene 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 beene already most learnedly 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 Sovereignty jura Majestatis which regularly and of common right doe belong to the Soveraign power of that State unlesse Custome or the provisionall 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 selfe 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 beene ranked among those rights of Soveraigne 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 owne 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 successours 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 Errour 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 himselfe as the book is 1 H. 1 H. 7.19.6 7.19.6 And the forme of the writ of Error is that it being directed to the Chiefe Justice of the Kings Bench Lib. ntrac fol. 302. c. 1. Quia in recordo processu ac etiam in redditione judicii loquelae quae fuit in Curiâ nostrâ coram nobis Error intervenit manifestus ad grave damnum c. Nos errorem si quis fuerit modo debito corrigi partibus praedictis plenam celerem justitiam fieri volentes in hâc parte vobis mandamus quòd Recordum processum loquela illius cum omnibus ea tangentibus in praesens Parliamentum nostrum sub sigillo tuo distinctè apertè mittas hoc breve ut inspectis c. nos de Consilio advisamento Dominorum spiritualiū temporalium ac Communitatis in Parliamento nostro praedicto existentis ulterius pro errore illo corrigendo fieri faciamus quod de jure secundum legem consuetudinem Regni nostri Angliae fuerit faciendum So you see the Appeale 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 The book is not so that the Cōmons should meddle but with the assent of the Lords and Commons 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 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 by 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 doe belong to the King only in Parliament Others there be of the same nature that the King may exercise out of Parliament which right is growne unto him in them more in those others by the use and practice of the Common-wealth as denization coynage making warre 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 beene 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 naturall 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 fundamentall points He must either take his Subjects goods from them without assent of the party which is against the Law or else he must give his owne Letters Pattents the force of a Law to alter the property of his subjects goods which is also against the Law That the King of England cannot take his subjects goods without their consent it need not be proved more then a principall it is jus indigena an old homeborne right declared to be Law by divers statutes of the Realme As in 34. E. 3. cap.

these they affirme 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 Custome and Subsidie which might satisfie the intention of these words this objection might have had some colour in it but it is plaine 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. parl 50. E 3. nu 163. 50. E. 3 against the raising of these above the old rate The eight Law is E. 15. E. 3. stat 2. ta 5. 3. stat 2 ca. 5. whereby it is enacted that every Merchant may freely buy and sell and passe the sea with their Merchandizes of Wooll and all other things paying the Custome of old time used according to the Statute made 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. 18. E. 3. stat 1. ca. 3. E. 3 stat 1. ca. 3. Whereby it is enacted that the sea be open to all manner Merchants to passe with their Merchandizes where it shall please them The tenth is 27. 27. E. 3. st 2. ca. 2. E. 3. stat 2. ca. 2. for the assurance of Merchant strangers and other the King doth will and grant for him his heires that nothing shall be taken over the due Customes nor taken of them to his use by colour of sale or in other manner against their wils The eleventh is 38. E. 3. ca. 2. 38 E. 3. ca. 2. that all manner Merchants aliens and denizens may buy and sell all manner of Merchandizes and freely carry them out of the Realm paying the Customes and Subsidies thereof due The last is 22. H. 8. ca. 8. 22. H. 8. ca. 8. by which it was enacted that Tables should be set up in ports by which the certainty and very duty of every custome toll and duty or summe of money to be demanded and required of wares and Merchandizes shall and may plainely appeare and be declared to the intent that nothing be exacted otherwise then in old time hath beene used and accustomed By this late Law it appeareth that the judgement of of the whole Parliament was at that time that nothing was due upon Wares and Merchandizes but that which was certaine and had beene anciently 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 Lawes 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 untill of late As by that which followeth in the fourth place will appeare My fourth and last assertion is Custome 4 that this practiseof imposing without assent of Parliament is contra morem Majorum In this I will make an historicall perlustration of the times past whereby I will discover and make knowne what passages have beene in this businesse in this Kingdome and especially in the high Court of Parliament for the space of 300 yeares and more last past since the beginning of the raigne of E. 1. sithence which time and not before this Kingdome hath growne into the glory and reputation of foraigne traffique And as a worthy Gentleman of the Kings ●earned Councell made certaine considerations upon this question framed and strengthened out of the greatnesse of his wit and reason so I grounding my selfe upon the practise of former times which is the safest rule where●y 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 practise 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 time 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 perpetuall the number many hundreds almost no kinde of Commodity spared I will give you some few Instanof these circumstances ces out of the Records themselves The maletole of Wooll set on by King E. 22. E. 1. orig Scacc. Rent Thes 22. E. 1. mem Scac. R. Thes T. Mich. 1. 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 It further sheweth it was for his necessity of warre which then was great also For the time of E. Rot. parl 17. E. 3. nu 28. 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 warre in Scotland and Ireland In the thirteenth year of his raigne for his war in France severall Impositions were set on In the seventeenth yeare of E. 3. the Record in the Tower mentioneth that forty shillings Imposition was upon a sacke of Wooll by the grant of Merchants and it was in the time of Warre In the twentieth yeare of King E. 3. Rot. parl 20. E. 3. nu 18. it appeareth in the Record that the Imposition then put upon Wools was by the assent of Merchants for two yeares for the necessity the King had in his passage over 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 such complaint made but remedy was afforded for it Et quod Rex inconsultò fecit consulto revocavit his Soveraigne power controlled his subordinate In which it is a thing very notable that the King in no one Case ever claimed or so much as ever named his right or prerogative which no doubt would have been done if it had been thought due but gave satisfaction to the complaint by one of these three waies either by discharging them quite and making some good Law against them Secondly by intreating the people to hold them some short time by their favour Thirdly by waving his present possession and taking that of their