Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	error_n	trespass_n	writ_n	1,916	5	10.2530	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A42930	Synēgoros thalassios, A vievv of the admiral jurisdiction wherein the most material points concerning that jurisdiction are fairly and submissively discussed : as also divers of the laws, customes, rights, and priviledges of the high admiralty of England by ancient records, and other arguments of law asserted : whereunto is added by way of appendix an extract of the ancient laws of Oleron / by John Godolphin ...	Godolphin, John, 1617-1678.	1661 (1661)	Wing G952; ESTC R12555	140,185	276

is said to be a Truth how fatal soever built upon this double foundation First because the Court of Admiralty proceeds by the Civil Law Secondly because if an erroneous sentence be given in that Court no Writ of Errour but an Appeal doth lye according to the Statute of 8 Eliz. cap. 5. Reason is or should be the source or fountain of all humane Laws no Waters rise higher then their Springs The first enquiry therefore will be what a Court of Record is or what Court may properly be said to be a Court of Record which being known and considered if you be not then satisfied you may if you please farther enquire whether the being of Record be such an essential qualification to a Court as without which it is incapable of taking such Stipulations I say such Stipulations as the Court of Admiralty hath ever used to take and de jure ought to take The Lord Coke makes this description of a Court of Record Every Court of Record is the Kings Court albeit another may have the profit wherein if the Judges do erre a Writ of Errour doth lye But the County-Court the Hundred-Court the Court-Baron and such like are no Courts of Record And therefore upon their Judgments a Writ of Errour lyeth not but a Writ of false Judgment for that they are no Courts of Record because they cannot hold plea of Debt or Trespass if the debt or damage do amount to forty shillings or of any Trespass Vi Armis It is observable that it is here said that every Court of Record is the Kings Court So is the high Court of Admiralty styled the Kings Court as appears not only by the Title or preliminary Description but also by the second Article or Proposition in the Resolutions upon the Cases of Admiral Jurisdiction subscribed in Anno 1632. by the Reverend Judges in Presence of His Late Majesty of ever Blessed Memory and the Lords of His Majesties most Honourable Privy Councel And whereas in the said description of a Court of Record it is said They are no Courts of Record because they cannot hold Plea of Debt or Trespass if the debt or damage do amount to forty shillings or of any Trespass Vi Armis it is well known that the Court of Admiralty can hold Plea of a Debt or Trespass Maritime if the debt or damage do amount to as many thousands of pounds as there are pence in forty shillings and not only of Trespass Vi Armis but also of Maihem yea of Death it self Wherefore as the former character of a Courts being of Record may be applyed to the high Court of Admiralty as the Kings Court So the other character of a Courts not being of Record is no way applicable to the said Court of Admiralty But in the said description of a Court of Record it is said that every Court of Record is the Kings Court wherein if the Judges do erre a Writ of Errour doth lye the question then is whether it be a question whether a Writ of Errour doth lye in the Consistory Court of the University of Cambridge which Queen Elizabeth by her Charter dated 26 April Anno 3 Reg. made a Court of Record And Writs of Errour did also properly lye in any Court where they have power to hold Plea by the Kings Charter or by Prescription in any summe either in Debt or Trespass above the summe of forty shillings In which sense the Court of Admiralty as aforesaid is sufficiently qualified as a Court of Record which though eminent enough for its practice and interest in the Realm and so not probable to have escaped a particularization among the other fore-mentioned Courts the County-Court Hundred-Court and Court-Baron as no Courts of Record by reason of any oblivion yet is not there instanced among those other Courts not of Record And the County is called a Court of Record Westm 2. cap. 3. Anno 13 Ed. 1. But it seems by Britton cap. 27. that it is only in these causes whereof the Sheriff holdeth Plea by special Writ and not those that are holden of course or custome And whereas Brook seemeth to say That no Court Ecclesiastical is of Record yet Bishops certifying Bastardy Bigamy Excommunication the vacancy or plenarty of a Church a Marriage a Divorce a Spiritual intrusion and the like are credited without farther enquiry or controlment This only by the way and in transitu If it be said the Court of Admiralty is no Court of Record because it proceeds by the Civil Law it may be demanded by what Law the Consistory-Court of Cambridge proceeds which Q. Elizabeth as aforesaid made by her Charter a Court of Record For the King may make a Court of Record by his Grant which seems to allay that Antipathy that is supposed between a Court of Record and a Court proceeding by the Civil Law a Law allowed received and owned as the Law of the Admiralty of England Yet Serjeant Harris in the Case of Record against Jobson argued That a Recognizance taken in the Court of Admiralty to stand to the Order of the Court is void and that it hath been so adjudged So it 's argued it is not said Resolved It is a happiness as well as a truth what was once said in Dr. James his Case That the King is the indifferent Arbitratour in all Jurisdictions and of all Controversies touching the same and that it is a Right of his Crown to distribute to them that is to declare their bounds It is no novel doctrine to assert that Stipulations taken in the high Court of Admiralty for appearance or performance of its own Acts Orders and Decrees are in modo procedendi quasi Accessorium quoad Principale And the Modern Reporter in a Case depending before the Commissioners of Ensurance between Oyles and Marshal says That it being moved in the Kings Bench for a Prohibition and a Rule there given to shew cause why a Prohibition should not be granted to the Court of Ensurance it was then declared That if they had Jurisdiction of the Principal matter they had Jurisdiction of matters also incident thereto And what are Recognizances taken in the Court of Admiralty for Appearance and performance of its own Acts and Decrees more then Stipulations Judicio sisti judicatum solvi Insomuch as to deny the right or power of taking such Stipulations seems in effect as to imply an inhibition of the whole Jurisdiction for without such Stipulations in praeparatorio Litis the subsequent Judgement be it for Plaintiff or Defendant would prove but vain and elusory And a Judgement without due and effectual execution is quasi sententia inanimata without such stipulations Justice may be perverted into Injustice for default of that which is the complement or ultimate design of all Justice viz. Facultas suum cuique tribuendi The Practice of taking such Stipulations for the Legality thereof according to

ought it to be doubted but that in those days there was a true Church of Beleevers as also true Sacrifices and as some hold true Sacraments and therefore not to be conceived but that there was also some Ecclesiastical Law then in force which afterward became much more clear under Moses Law And by way of additament to this in tract of time was the Canon Law established in every Christian Common-wealth which received not as some suppose it 's Original at that time when the General and Universall Councils began to be first held as under Constantine but in the days of the Apostles themselves who gave divers Rules and made many Canons touching Divine W●rship and in order to the salvation of Souls And thus Laws being introduced into the world it could not be but there must be Jurisdictions also without which the Law is but a dead Letter For the clearer understanding whereof know That the word Jurisdictio without the Letter c etymologizeth it self For it is not so called from Juris and dictio as some would have it but from Juris and ditio And so Jurisdictio is quasi juris potestas But this pleaseth not Calvin who in this matter following Ferrand would derive it from Juris dictio and doth charge Accursius with an errour in Judgement for holding it to be derived from Juris ditio though he confesses that Bartol himself and many others do follow Accursius therein whose opinion seems to have the best congruity with reason in the energy of Law though Ferrand's Opinion seems to out-weigh if the comprized matter should be ballanced only by the letters of the word but indeed of the two Accursius hath by farre the more numerous Retinue So that Jurisdictio taken in the large sense as the Genus generalissimum or Plenissima Jurisdictio is nothing else but Potestas de jure Publico introducta cum necessitate juris dicendi aequitatis statuendae The word Jurisdictio taken in this large sense doth properly signifie that Office or Function which the lawful Magistrate doth hold and exercise by the ordinary right of his just power and authority Of Jurisdictions taken in this large sense there are three species or kinds in the Law There is Imperium Merum Imperium Mixtum Jurisdictio simplex And it is called Imperium because it proceeds from the Authority of the Judge and not from any right inherent or residing in the party The first of these viz. Imperium Merum is that Jurisdiction which respecting only the Publick utility is exercised Officio Judicis Nobili and by way of Accusation This hath the power of the Sword contra homines facinorosos and all Capital Offenders And is so called from its purity simplicity and immixture with either of the other kinds of Jurisdictions Of this Imperium Merum Bartoll makes Six several degrees which Jason contracts into Four but Zasius into Three Of these Six degrees of Imperium Merum the First is Merum Imperium Maximum And this resides only in the Prince or in the Supreme Authority In this Bartol doth lodge the Legislative Faculty or power of enacting Laws also the calling a General Council or the summoning a Parliament also the power of Confiscation of Delinquents goods In a word under this Merum Imperium Maximum are contained all things competible to Princes or the Supreme Magistrate And to these particulars which Bartol mentions under this head the DD do add one more and that is the creating of Tabellions General or Publick Notories The Second degree is Merum Imperium Majus This extends to the taking away of life and hath the power of the Sword Under this head also is that Potestas gladii in homines facinerosos forementioned but derivative from the Prince The Third degree is Merum Imperium Magnum under which head is comprehended Deportation or perpetual banishment But these two last degrees Jason comprehends under one and the same head For says he under the power of the Sword in facinerosos homines is comprehended three kinds of Capital Causes viz. First when the Life Natural is taken away either in whole or in part as by dismembration amputation or mutilation Secondly when the Life Civil is taken away as by loss of Liberty and by perpetual imprisonment for such are dead in Law Thirdly when a man is deprived of his Franchise Freedome or Priviledges which he had in any place by a Natural or Civil Right The Fourth degree is Merum Imperium Parvum under which head is comprehended Relegation or temporal exilement which is no more then an extermination whereby a man is commanded out of the confines of his own Country for a season And although Deportatio Relegatio be often used promiscuously in the Law for one and the same yet the Law discriminates them by very different Characters For in Deportation there is a perpetual in Relegation but a temporal banishment And as they differ in the Circumstance of Time so also in the Circumstance of Place For in Relegation the party is only circumscribed and it's part of his punishment that he shall not go out of the limits of such a certain place So Shimei the Benjamite that cursed David in his way to Mahanaim was after Davids death confined by his son Solomon unto Hierusalem and not to pass over the Brook Kidron who upon occasion of his going afterwards to Gath exceeded the limits of his circumscription and for so doing was put to death by Benaiah at the Kings command But now in Deportation the party is not so confined to or circumscribed by any certain place but is quite banished and exiled out of all the precincts of his own Country Again in Deportation the party cannot take his goods with him in Relegation he may but this difference holds not always Likewise under this head is comprized every Corporal punishment provided it be Tortura ad poenam Delicti For if it be Tortura only ad investigationem veritatis then it may be otherwise The Fifth degree is Merum Imperium Minus under which is comprized that moderate Coertion by Corporal Castigations which are ad vindictam Maleficii to distinguish it from Coertio verbalis per officium Merum and is competible with the Office or Function of Magistrates in Authority Also Cognizance of such crimes as are of the lesser and inferiour kind Of this and the last precedent degree or member of Imperium Merum Jason makes but one as forme●ly but one of the Second and Third degrees So that although here be Six species degrees or members of Imperium Merum according to Bartolls accompt yet here are but Four according to Jasons computation and to him in this matter the DD do generally incline rather then unto Bartoll The Sixth and last degree is Merum Imperium