Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	baron_n	chief_a	common_a	3,528	5	7.0134	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A45252	The arguments of Sir Richard Hutton, Knight, one of the judges of the Common Pleas, and Sir George Croke, Knight, one of the judges of the Kings Bench together with the certificate of Sir John Denham, Knight, one of the Barons of the Exchequer, vpon a scire facias brought by the Kings Majesty in the Court of Exchequer against John Hampden, Esquire : as also, the severall votes of the Commons and Peeres in Parliament, and the orders of the Lords for the vacating of the judgement given against the said Mr. Hampden, and the vacating of the severall rolls in each severall court, wherein the judges extrajudiciall opinions in the cases made touching ship-money are entred.	England and Wales. Court of Exchequer.; Hutton, Richard, Sir, 1561?-1639.; Croke, George, Sir, 1560-1642.; Denham, John, Sir, 1559-1639.; Hampden, John, 1594-1643, defendant.; England and Wales. Parliament.; England and Wales. Sovereign (1625-1649 : Charles I)	1641 (1641)	Wing H3842; ESTC R16237	74,278	200

assessis onerand Ideo consideratum est per eosdem Barones quod praedictus Iohannes Hampden de eisdem viginti solidis oneretur inde satisfaciat In the matter and substance thereof and in that it was conceived that Mr Hampden was any way chargeable is against the Laws of the Realme the right of Property the liberty of the Subjects and contrary to former Resolutions in Parliament and to the Petition of Right These Votes were afterwards transmitted by the House of Commons to the Lords and delivered by Mr St Iohn now his Majesties Solicitor generall at a conference of both Houses of Parliament held 16. Car. 1640. Die Mercur. 20. die Ian. 1640. It was resolved by the Lords upon the question Nemine contradicente THat the Ship-writs the extrajudiciall opinions of the Judges therein both first and last and the Judgement given in Mr Hampdens Case and the proceedings thereupon in the Exchequer Chamber are all illegall and contrary to the Lawes and Statutes of this Realme contrary to the Rights and Proprieties of the Subjects of this Realme contrary to former Judgements in Parliaments and contrary to the Petition of Right Likewise resolved upon the Question Nemine contradicente THat the extrajudiciall opinions inrolled in the Exchequer Chamber and in other Courts concerning Ship-money and all the proceedings thereupon are illegall in part and in whole and contrary to the Laws and Statutes of this Realm contrary to the rights and proprieties of the Subjects of this Realm and contrary to former Judgements in Parliaments and contrary to the Petition of Right Die Veneris 26. die Februarii 1640. VPon the report of the Right Honourable the Lords Committees appointed to consider of the way of vacating of the Judgement in the Exchequer concerning Ship-money It was ordered by the Lords Spirituall and Temporall in the high Court of Parliament assembled That the Lord Keeper or the Master of the Rolls the two Lo Chiefe Justices and the Lo Chiefe Baron and likewise the Chiefe Clerke of the Star-chamber shall bring into the Upper House of Parliament the Record in the Exchequer of the Judgement in Mr Hampdens Case concerning Ship-mony and also the severall Rols in each several Court of K. Bench Common Pleas Exchequer Star-chamber and Chancery wherein the Judges extrajudiciall opinions in the Cases made touching Ship-money be entred and that a Vacat shall be made in the Upper House of Parliament of the said severall Records And likewise the Judgement of Parliament touching the illegality of the said Judgements in the Exchequer and the proceedings thereupon and touching the illegality of the extrajudiciall opinions of the Judges in the said severall Courts concerning Ship-money be annexed and apostiled unto the same And that a Copie of the judgement of the Parliament concerning the illegality of the said Judgement in the Exchequer and the said extrajudiciall opinions of the said Judges concerning Ship-money be delivered to the severall Judges of Assize And that they be required to publish the same at the Assizes in each severall County within their Circuits and to take care that the same be entred and inrolled by the severall Clerks of Assizes And if any entry be made by any Custos Rotulorum or Clerke of Assize of the said Judgement in the Exchequer or of the said extrajudiciall opinions of the Judges that severall Vacats be made thereof per judicium in Parliamento And that an Act of Parliament be prepared against the said Judgement and extrajudiciall opinions and against the proceedings touching Ship-money Memorandum quod vicesimo septimo die Febr. 1640. Annoque regni Regis Dn̄i nostri Caroli Angliae decimo sexto VAcatur istud Recordum et Iudicium inde habitum per considerationē et judicium Dn̄orum Spiritual et Temporal in Curia Parliam et irrotulamentum ejusdem cancelatur Memorand quod vicesimo septimo die Feb. prae● IStud Irrot. et omnia et singula in eodē contenta et expressa vacantur per judicium Dn̄orum Spiritualium et Temporal in Curia Parliam ANd that all the Rolls be rased crosse with a pen and subscribed with the Clerke of the Parliaments hand All which was accordingly done in open Court After this it was resolved upon the Question Nemine contradicente THat the resolutions of the Judges touching the Shipping-money and the Judgment given against Mr Hampden in the Exchequer and all the proceedings thereupon are against the Great Charter and therefore void in Law Resolved upon the Question Nemine contradicente THat Vacats and Cancellations shall be made of the Resolutions of the Judges touching the Shipping-money And of the inrolments thereof in the severall Court● and of the Warrants for Ship-writs and proceedings therein And the Judgement given against Mr Hampden and proceedings thereupon And that entries be made of those Vacats upon the severall Rolls according to the forme read in the House Eodem die ORdered that these resolutions be added to the former Judgements of this House concerning Shipping-money which the Judges are to publish at the Assizes in their severall Counties and to be entred and inrolled in the severall Counties by the Clerk of the Assizes FINIS In Iudge CROOKES Argument correct PAge 3. l. 13. reade valentioribus l. 15. r. pulvere p. 19. l. 13. r. injusto p. 21. l. 17. r. piccage p. 23. l. 16. r. Commissions p. 28. l. 7. r. proveth p. 29. l. 2. r. proveth p. 30. l. 2. r. Dane-guilt p. 35. l. 6. r. 394. a. p. 57. l. 3. r. Carlile ibid. for 35. r. 30. p. 70. l. penult r. seek for such men l. ult. dele for such men p. 74. l. 7. dele and p. 76. l. 14. continue the line p. 101. in marg. for 2. put 3. p. 106. l. 15. r. so for that cause In Iudge HUTTONS Argument Page 14. l. 10 11. reade and can admit no other p. 16. l. 17. r. to be observed p. 17. l. 19. r. humbly pray your Majesty p. 19. l. 10. r. toll Traverse p. 24. l. 20. r. Gasconie l. ult. other Statutes p 35. l. 21. dele to Petitions p. 36. l. 1. dele for l. 16. r. the record in Court p. 37. l. 6. r. The Parliament roll recites l. ult. r. fourth point p. 44. l. 20. r. these illegall p. 46. l. 9. r. per Gent●m p. 47. l. 2. r. of Argiers l. 12. r. with all the other particulars 48. l. 23. r. to lead the uses of those preceding p. 49. l. 24. r. fol. 68. p. 50. l. 22. r. it is very p. 55. l. 9. dele not p. 57. l. 17. r. Burton 28. Aprilis Anno. 14. Car. Regis Annoque Do. 1638. Buck. ss. This Writ is dated 9. Martii An. 12. Car. The Writ of Mittimus beares date the 5. of May● Anno 13. Car. Regis An. 9. H●n 3. Magna Charta cap. 29. See the l●st chapter of Magna Charta cap. 38. Statute of 25. Edw. 1. Stamford fol. 152. 25. E. 1. ca. 5. The

or not And I am of opinion that it doth not lye but that judgement ought to be given for the Defendant both for the matter and for the manner of this proceeding And to the intent that whatsoever I shall say may the better be understood I will observe this order in my Argument First I will prove by severall Acts of Parliaments and by some Authorities in books and by some reasons that the Kings Majesty cannot at this day impose any such charge in generall upon all his Subjects as this is without their consent in Parliament Secondly I will give answer to such objections as have beene made by the Kings Counsell and by some of my Brothers against these Statutes and to such cases as they have applyed to prove the contrary Thirdly I will answer those precedents which have beene insisted upon to prove that the like charge hath beene before imposed by the Kings progenitors Kings of this Realme And I will shew some precedents of more force to the contrary Fourthly I will insist upon the disuse of the attempt of imposing any such generall charge by this way at any time since the beginning of the raigne of King Henry the fourth which is almost two hundred and fifty yeares since And many other courses and kinds of attempts for levying of monies And this way not attempted till of late Fiftly I will insist upon the Writ of 4. Augusti Anno 11. Car. That the matter therein comprised doth not containe sufficient warrant for the levying of such contribution And that the matter which is added in the Mittimus cannot supplie or make the Writ of 4. Augusti sufficient And that the Scire fac ' it selfe is insufficient Lastly I will give some answer to that which heretofore was objected by Mr. Solicitour That the Judges had formerly by a subscription to some propositions which they were required to answer his Majesty as he conceived resolved this point already My Brother Iones hath beene long and I will observe my owne method and answer him by my argument And I will contract that which I have to say in as short a manner as I can And for the first point and reason which I doe insist upon is That this power to charge the people of this Realme at this day by the King onely is taken away bounded and limited by diverse Acts of Parliaments to be done by consent of the Subjects and onely in Parliament First by the Statute of Magna Charta it is enacted that no Free-man shall be taken or imprisoned or disseised of his Free-hold or of his liberties or Free-customes or out-lawed or exiled nor by any means destroyed neither will we come upon him or send him to prison but by lawfull judgement of his Peeres or by the Law of the Land This Statute as appeares by the Inspeximus of King Edward the first sonne of King Henry the third was made of the free good will of the King for the good of the Church and for the amendment of the Kingdome And if you looke upon the last Chapter of Magna Charta cap. 38. the King grants that he and his heirs will for what concernes him well observe and keep the same in his Kingdome and will that aswell Clerkes as Lay-men shall observe the same And this was not done for nought for the Clergie and the Communalty did give to the King for these liberties the fifteenth part omnium mobilium as appeares in the same Chapter And further in the said Chapter it is contained that the said King for him and his heires did grant that neither he nor his heires should doe any thing nor procure to be done any thing whereby these liberties thus granted might be infringed or diminished And that if any thing were done by any other to the contrary it should bee void and held of no force See the Statute And then King Edward the first his Son in the five and twentieth year of his raigne The very first Chapter of that Parliament confirmed the Charter of Magna Charta for the honour of God and of the holy Church and profit of the Realm with writs to all Justices Sheriffes and others That they cause the said Charter of liberties to be published And to declare to the people that we have confirmed them in all points And that our Justices Sheriffes and other Ministers which under us have the Laws of our land to guide shall allow the same That is to wit the great Charter as the Common Law and the Charter of the Forest for the wealth of our Realme And where my brother Berkley did say in his Argument that the words of the Statute of Magna Charta were quod habeant libertates suas but that there were no particular liberties mentioned which were libertates suas To that the answer is easie for it is in the Preamble and the first Chapter Habeant libertates subscriptas tenendas in Regno nostro Angliae tenend. eis haeredibus suis imperpetuum And it cannot be denied but that the clauses of the writ of 4. Augusti which gives not onely power to distraine but if any be rebellious or contrariant to the premises to commit them to prison there to remaine untill the Kings Majestie shall for their deliverance thinke fit to order otherwayes are directly contrary to the expresse letter of this Statute of Magna Charta and so consequently against the law of the Land for this Statute is made by the said Statute of the five and twentieth of King Edward the first the law of this Land This Statute of Magna Charta hath beene ever since and now is put in use for the great priviledge of the triall of the Peers of this Realme for Treason or Felony For there Peeres is grounded upon the words of this Statute viz. per legale judicium parium suorum as you may see in Stamford in his booke of the Pleas of the Crowne fol. 152. Then by the Statute of 25. Edw. 1. cap. 5. It is enacted And for as much as diverse people of our Realme are in feare That the aides and taxes that they have given to us before-time towards our warres and other businesse of their owne grant and good will howsoever they were made might turne to a bondage to them and their heires because they might be at any other time found in the Rolls And likewise the prizes taken by our Ministers through the Realme we have granted for us and our heires that we shall not draw any such aides taxes or prizes into a custome for any thing that hath beene done before bee it by Roll or any other Precedent that may bee found And in the same Parliament in the sixt Chapter it is thus We have granted for us and our heires aswell to Archbishops Bishops Abbots Priors and other folke of holy Church as also to Earles Barons and to all other the communalty of the land That for no businesse from

to leave it to the Sheriffe to taxe them when and how hee would To that which hath beene said That this charge is not within the intention of the statutes and that a statute to prohibite such a charge for defence were void I answer That it is true if a statute were that the King should not defend his Kingdome it were void being against Law and Reason but a statute that money shall not bee charged or levied nor that men shall be charged to make or prepare ships at their owne charges without common consent in Parliament I conceive it a good Law and agreeable to Law and Reason and the King may by Parliament restraine himselfe from laying such a charge but by consent And then the King being a just and pious King as ever governed the Kingdome which wee that serve in his Courts of Justice have daily experience of would not assent unto or suffer any such charge if he may be truly informed that the imposing of this charge were against any one Law of his Kingdome as this is against so many but would say as it is said in the statute made in the 25. Edw. 3. de provisoribus reciting the statute of Carlyes made 35. Edw. 1. That the Pope should not bee permitted to present to Benefices That he was bound by his Oath to see that and other Lawes in force and not repealed to bee performed That hee would not suffer such charges to bee laid contrary to the Lawes and Statutes of his Realme and would doe as the late famous Queene Elisabeth did having required a charge upon divers her Subjects by particular letters from the Lords of her Councell of severall summes of money for present helpe towards her warres in Ireland hearing that one of her Judges being convented before her Lords for not payment of it thereby discouraging others to pay it answered that it was against the Law that the same should bee imposed there being an expresse statute against it which hee being a Judge was bound by his Oath to signifie he being as much as in him was to be a conservatour of the Queenes Oath in that behalfe The Queene I say was very angry that such an imposition had beene made against Law and commanded that it should bee stopped from further gathering and to some that had paid their monies the same were restored and therefore the principall and onely fault in the charging of his Subjects by these Writs if they bee unlawfull as I conceive they are is in those that devised them and informed him that they were lawfull and such as his Progenitours had from time to time used to send out and in his Judges who have affirmed it to bee lawfull Therefore upon this point I conclude That this charge by this Writ is illegall and is no sufficient cause to charge the Defendant Where it hath been much urged and argued by Master Sollicitor and Master Attorney that this Writ is warranted by the Kings Prerogative and power Royall to send forth such Wri●s for defence and safety of the Kingdome in time of danger To this I answer That I doe not conceive that there is any such Prerogative for if it were a Prerogative I should not offer to speake against it for it is part of our Oathes that are Judges to maintaine the Kings Prerogative to the best of our skills and not to suffer the same to be diminished but if it bee as I have argued it is against the Common Law and against so many Statutes that the Subjects should be inforced to sustaine or to contribute to any charge without their especiall assent and common assent in Parliament then there is no such Prerogative For whatsoever is done to the hurt or wrong of the Subjects and against the Lawes of the Land the Law imputeth that Honour and Justice to the King whose Throne is established by Justice that it is not done by the King but it is done by some untrue and unjust Informations and therefore void and not done by Prerogative This appeareth by the authorities of our Bookes for Bracton who is an ancient Writer in our Law saith Nihil aliud potest Rex in terris cum sit minister Dei ejus Vicarius quàm de jure potest And there a little after Itaque potestas sua juris est non injuriae cum sit author juris non debet inde injuriarum nasci occasio unde jura nascuntur Sir Edward Coke in the eleventh booke of his Reports in the Case of Magdalen Colledge where the question was Whether Queene Elisabeth having taken a long Lease of a Colledge being conceived to bee against the statute of 13. Elis. was sought to be maintained by her Prerogative but resolved it could not being against a statute by which she was bound although not named and there fol. 72. it is said Hoc solum Rex non potest facere quod non potest justè agere Plowdens Comment. fol. 246. 247. in the Lord Berkley's Case it is said that the Prerogative of the King cannot doe wrong and his Prerogative cannot be any warrant to do any wrong to any Plowdens Comment. fol. 487. in Nichols Case it is said by Justice Harper Although the cōmon law doth allow many prerogatives to the King yet it doth not allow any that hee shall wrong or hurt any by his Prerogative 21. Edw. 3. fol. 47. in the Earle of Kents Case it is said That if the King under his great Seale doe make any grant to the hurt of any other hee shall repeale and avoid it Iure Regio for the King is accounted to be abused by untrue suggestions when hee is drawne to doe any wrong to the hurt of any other much more I say when he is drawn to do any thing to the hurt of his Subjects in generall Sir Edward Coke lib. 11. fol. 86. in Darcies Case it is said That every grant of the King hath this condition unto it Tacitè or expressè Ita quòd Patria per donationem illam magis solito non oneretur seu gravetur The Booke called Doctor and Student fol. 8. setting downe that the Law doth vest the absolute property of every mans goods in himselfe and that they cannot be taken from him but by his consent saith That is the reason if they be taken from him the party shall answer the full value thereof in dammages And sure I conceive that the party that doth this wrong to another shall besides the dammages to the party bee imprisoned and pay a fine to the King which in the Kings Bench is the tenth part of as much as hee payeth to the party So then if the King will punish the wrong of taking of goods without consent betweene party and party much more will hee not by any Prerogative take away any mans goods without his assent particular or generall So I conclude that I conceive there is not any such