Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	justice_n	writ_n	1,630	5	9.1550	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

And this was the opinion of Sir Iohn Fortescue that reverend and honourable Judge a very learned professor of the Common Law and chiefe Justice of the Kings Bench Fortescu de laudibus Leg. Ang. cap. 9. in the time of Henry 6. ●●s words are these in his book De laudibus Legum Angliae cap. 9. Non Potest Rex Angliae ad libitum leges mutare regni sui principatu namque nedum regali sed politico ipse dominatur Si regali tantum praeesset iis leges mutare posset tallagia quoque cateraonera imponere ipsis inconsultis quale dominium leges civiles indicant cum dicunt quod principi placuerit legis habet vigorem sed longè aliter potest Rexpoliticis imperans quia nec leges ipse sine subditorum assensu mutare poterit nee Subjectum populum renitentem enerare peregrinis impositionibus In which place I must intepret unto you that peregrinae impositiones be not strange and unheard of impositions as was urged by the worthy gentleman that spake last but impositions upon traffique into and out of forrain Countreyes which is the very thing in question Fortescue de laud. Leg. Ang. cap. 36. further in the thirty sixth Chapter he sayeth of the King of England Neque Rex ibidem per se aut ministros suos tallagia Subsidiae aut alia quaevis onera imponit ligeis suis aut leges corum mutat velnovas condit sine concessione vel assensu totius regni sui in Parliamento So he maketh these two powers of making Law and imposing to be concomitant in the same hand and that the one of them is not without the other He giveth the same reason for this as we doe now but in other words because as he saith in England it is principatus mixtus politicus the King hath his Soveraigne power in Parliament assisted and strengthened with the consent of the whole kingdome and therefore these powers are to be exercised by him only in Parliament In other Countreyes they admit the ground of the Civil Law quod principi placuerit legis habet vigorem Because they have an absolute power to make Law they have also a power to impose which hath the force of a Law in transferring property Ph. Com. l 4 cap. 1. l 5. ca. 8. Philip Comynes that lived at that time in his fourth book the first chapter the fifth booke the eighth chapter taketh notice of this policie of England and commends it above all other States as setled in most security And further to our purpose layeth this ground That a King cannot take one penny from his Subjects without their consent but it is violence And you may there note the mischiefs that grew to the kingdome of France by the voluntary impositions first brought in by Charles the seventh and ever since continued and encreased to the utter impoverishment of the Common people the losse of their free Councell of three estates And if this power of imposing were quietly setled in our Kings considering what is the greatest use they make of assembling of Parliaments which is the supply of money I doe not see any likelihood to hope for often meetings in that kind because they would provide themselves by that other meanes And thus much for my first reason grounded upon the naturall constitution of the policie of our kingdome and the publike right of our nation 2. Com. Law For the point of Common Law which is my second Reason it hath been well debated and nothing left unspoken that can be sayd in it and therefore I will decline to speak of that which other men have well discussed and the rather for that there is nothing in our Law-book directly and in point of this matter neither is the word imposition found in them Dier 1. E. 165. untill the case in my L. Dier 1. Eliz. 165 for we shall finde this businesse of an higher strain and alwayes handled elsewhere as afterwards shall appeare yet I will offer some answers to such objections as have been made on the contrary in point of Common Law and have not been much stood upon by others to be answered The objections that have been made are these that from the first Book of the Law to the last no man ever read any thing against the Kings power of imposing No judgement was ever given against it in any of the Kings Courts at Westminster Other points of prerogative as high as this disputed and debated his excesse in them limited as in the book of 42. 42. Ass p. 5. Ass pl. 5. where the Judges took away a Commission from one that had power given by it to him under the great Seale to take ones person and to seise his goods before he was indicted 1. 2. E. Dier 175. So Master Scrogs case 1. 2. El. Dier 175. the power of the King in making a Commission to determine a question of right depending between two parties notably debated and ruled against the King that hee could not grant it To this I answer that causes of this nature of which the question now handled is have ever been taken to be of that extraordinary consequence in point of the Common right of the whole kingdome that the State would never trust any of the Courts of ordinary justice with the deciding of them but assumed the cognisance of them into the high Court of Parliament as the fittest place to decide matters 2. Ed. 3.7 so much concerning the whole body of the kingdome As 2. Ed. 3.7 it appeares that Ed. 1. had granted a Charter to the men of great Yarmouth that all the ships of Merchants comming to the port of Yarmouth should land their goods at their haven and not at any other haven at that port as at Garneston and little Yarmonth which were members of that port This was very inconvenient for the Merchants and a great hurt to traffique and therefore the Charter was questioned in the time of Ed. 2. and adjudged good by the Counsell but the parties not contented with this judgement in the second yeer of King E. 3. by an order in Parliament made upon a petition there exhibeted against this grant brought a Scire facias out of the Chancery returnable in the kings bench to question againe the lawfullnesse of the Patent and in that suit the cause was notably Debated and those reasons much insisted upon that have been enforced in this case As that of the Kings power in the custodie of the ports But the matter so depending in the ordinary Court of justice a Writ came out of the Parliament and did adjourne it thither againe where it gave occasion of a good Law to be made to prevent the like grants and to make them voyd notwithstanding any judgement given upon them and to make such judgements also void The Statute is 9. E. 3. c. 1. 9. E. 3. c. 1. everyal en and denizen may

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.

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

2. That no office of the Kings 34. E. 3. c. 2. or of his heires shall take any goods of any manner of person without the assent and good will of the party to whom the goods belonged The same is declared in many other statutes made against prisages and purveyances Neither have ever any Kings attempted to go plainly directly against that right but have devised certaine legall colours and shadowes for their wrongfull doing in that kind Commissions Loans or Privie Scales Benevolence which I doe find were of three sorts by way of Commission by way of Loan by way of Benevolence Commissions of another were the most insolent for they went out as it were by authority to levy ayd of the people upon great necessity of the Common wealth These were condemned in Parliament 21. E. 3. Num. 16. upon a grevious complaint made of the use of them by the Commons unto the King in Parliament wherein the people doe pray the King that he would be pleased to remember how at the parliament held the 17. year of his raign and at the last Parliament That is the Parliament it was then accorded and granted by their said Lord the King and his counsell that there should goe out no commissions out of chauncery for hobbeleries Archers and other charges to be levied upon the people if they were not granted in Parliament which ordinances were not observed by reason whereof the people were impoverished and decayed for which they prayed the King that he would be pleased to take pity of his people and the ordinances and grants made to his people in Parliament to affirme and hold And that if such Commissions goe out without assent of Parliament that the Commons which are grieved thereby may have writs of supersedeas according to the said Ordinance and that the people be not bound to obey them To this the Kings answer is Siul tiel imposition fuit fait per grand necessitie ceo del assent des Prelates Countes Barons aut grandes ausomes des Commons adonque presents Neant moins nostre Seignior le Roy●ne voet que tiel imposition non duement fait soit treit in consequence eins voet que les ordinaunces dont cest petition fait mention soit bienment gardes The latest time that ever King attempted that course of exaction was 17. Stowes annals 17. H. 8. H. 8. upon the taking of the French King at Pavie by the forces of Charles the fifth Cardinall Wolsey having a purpose to put the King into a warre about that quarrell and finding his cophers empty advised this way to send out Commissions and by them to levie ayd of the people according to the value of their estate But this gave such discontent to the whole Realme that it caused in many places an actuall rebellion and the Cardinall being called to give an account of this bad advice did justifie this fact by the example of Joseph who advised Pharaoh to take the fifth part of his subjects goods But when hee saw that would not serve the turne he falsely laid it upon the Judges informing the King he did it by their advice being resolved by them of the lawfulnesse of the fact So you see that great Churchmen found more safety in matter of government of our Common-wealth in making a false report of a point of the Common-law than in a true text of the Scripture And if any Churchmen will endeavour by application of the text of Scripture to overthrow the ancient lawes and liberties of the Kingdome I would advise them to be admonished by the ill successe of the Cardinall in this particular action and by the miserable catastrophe of his whole life and fortunes Loans and Privie Seales Loanes and apprests were those which we call Privie Seales which though they were more moderate in shew yet being made against the good will of the parties were as injurious indeed as the other The Commons in Parliament Rot. pat 25. E. 3. num 16. 25. E. 3. Num. 16. made a grievous complaint to the King against the use of them and prayed that none from thenceforth should be compelled to make loans against their will and they gave this reason in their petition for that it is against reason and the franchise of the land and prayed that restitution might bee made to those that have made such loanes To this the Kings rescript was It pleaseth our Lord the King it be so Lastly came in those kinde of exactions Benevolence which were termed by the faire name of Benevolences but they became so odious as they gave the occasion of a good law to bee made against themselves and against all other shifts and devices by what new termes soever imposed upon the subjects the Law is 1. R. 3. cap. 2. and is thus 1 R. 3. c. 2. The King remembring how the Commons of this his Realme by n●● and unlawfull inventions and inordinate covetise against the law of this Realme have beene put to great servitude and important charges and exactions and especially by a new imposition called a Benevolence enacteth by the advice c. That the Subjects and Commons of this land from henceforth shall in no wise be charged by any such charges or impositions called a Benevolence nor by such like thing But if you will deny that the King doth in this case t●ke the goods of his subject without his assent then you must fall upon mine other alternative proposition That the Kings Patent hath in this case the power of a law to alter property for how can he recover the imposed by a legall course of proceeding and by judgement in his Court but upon a title precedent him before the action brought which title must bee a property in the same imposed and how cometh he by that property but by his owne Letters Patents by which he declareth he will have that same as an imposition For the judgement giveth not the right but only doth manifest and declare it and giveth execution of it So in this point the question is whether the Kings Patent hath the force and power of the Law or not for if it bee not maintained that it hath it can never be concluded that he can transferre the property of his subjects goods to himselfe without the assent of them for quod meum est sine facto meo alterius fieri non potest And if you give this power to the Kings Patent you subject the law and take away all rules and bounds of setled government and leave in the subject no property of his owne neither doe you by this advance the Kings power and prerogative Bracton l. 1. c. 8. but you make him no King for as Bracton saith Rex est ubi dominatur lex non voluntas So we see that the power of imposing and power of making Lawes are convertibilia coincidentia and whosoever can doe the one can doe the other