Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	county_n	say_a	sheriff_n	2,933	5	10.0525	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26174	The Lord Chief Justice Herbert's account examin'd by W.A., Barrister at Law, ... ; wherein it is shewn that those authorities in law, whereby he would excuse his judgment in Sir Edward Hales his case, are very unfairly cited and as ill applied.	Atwood, William, d. 1705?	1689 (1689)	Wing A4176; ESTC R2780	39,888	80

methinks he could not but observe this Contradiction Wherefore the Rule there admit it were a Judgment in Law as it was not being onely spoken obiter by one of the Judges can be applied onely to such Cases as are there cited The first is that of Coining Money which goes upon the ground in Moor's Reports where 't is said that such Statutes as give a Prerogative may be dispens'd with and that of shipping Woolls at Calice the King's Staple is of the same nature and both sufficiently shew the Distinction of malum prohibitum from malum in se to relate barely to such things as become evil by accident as they are against an accidental Prerogative Which no way interferes with the Rights of the Subjects in general or particular And I much wonder that Sir Edward Herbert should cite my Lord Vaughan in the Case of Thomas and Sorrel as confirming what he would infer from the Year-Book when Lord Vaughan says That old Rule has more confounded Mens Judgments on the Subject than rectified them and himself denies that the King can dispense with every malum prohibitum by Statute tho' prohibited by Statute onely Oh but my Lord Vaughan shews that a Dispensation does jus dare and makes the thing prohibited to all others lawful to be done by him that has it Does he say this of every malum prohibitum By no means Wherefore we must apply it to the Case then in question which concerned Wine-Licences about which the King had a Prerogative by Statute-Law And the dispensing with that falls within the Rule in Moor agreeing with the Lord Coke in the Case of Penal Statutes Yet even thus much was a Point gain'd by the Prerogative since the first of H. 7. for it is then made a Doubt before all the Judges of England in the Exchequer Chamber and adjourned over for the difficulty Whether the King could license the Shipping Woolls elsewhere than at Calice one of the very Instances which Sir Edward Herbert relies on And Chief-Justice Hussey was positive that the King could not license it tho' indeed the Chief-Baron and some others held as Fineux did afterwards Wherefore no body of less assurance than our Chief-Justice can say from these Cases results this plain Syllogism Whatever is not prohibited by the Law of God but was lawful before any Act of Parliament made to forbid it the King by his Dispensation may make lawful again to that Person who has such Dispensation tho' it continues unlawful to any body else c. In which if we grant his Major I will own the Conclusion to bring it to Sir Edward Hales his Case is not criminal Yet the Proposition is so pernicious striking at the very Foundations of our Government that if there were a Resolution in stead of an extrajudicial Opinion giving that Countenance which even that loose Opinion does not yet it ought to be rejected For if all Acts of Parliament contrary to Magna Charta are void as some have held I am sure much more so would such Resolutions of Judges be and that such an one would be contrary to that Great Charter is evident for no Man can say that all things prohibited by Magna Charta are prohibited by the Law of God. To come to Sir Edward's next Great Case as he calls it but indeed the onely one which has colour'd the Resolution to the World which is that 2 H. 7. Notwithstanding his Promise he has not been so fair to give the Words of that Case or so much of them as is material lest every body might judge of how little use it would be to him nay lest Men should be for satifying their own Eyes he has not directed to the Folio The English of the material part is thus In the Exchequer Chamber all the Justices were shewn for the King how King Edward the Fourth by his Letters Patents had constituted the Earl of N Sheriff of the same County and had granted the said Earl the Office of Sheriff of the said County for the Term of his Life with all the other Offices thereto belonging rendring to the King at his Exchequer annually 100 l. without any Account or any other thing to be given for it c. Now 1. Whether this Patent was good And also 2. How this Patent shall be intended were the Points in question And as to the first Point the Justices held the Patent good for it is a thing which may well be granted for Term of Life or Inheritance as divers Counties have a Sheriff by Inheritance and this commenc'd by a Grant of the King. Then was shewn a Resumption and then was shewn a Proviso for H. Earl of N. so that the Patent remains in its force Radcliff shews the Statute of 28 E. 3. c. 7. and 24 E. 3. c. 5. That no Sheriff shall be more than one Year c. altho' he had a Non obstante And notwithstanding this that the King shall always have his Prerogative as of the Value and the Certainty of the Land and other things granted by the King and of Woolls shipp'd and of Charters of Murder and many other Cases where the Statutes are That Patents that want these things shall be void yet the Patenrs are good with a Non obstante But without a Non obstante the Patents are void by reason of the Statutes so here the Patent with a Non obstante c. This is all that is said in the Book upon the first Point upon which 't is observable 1. By the Book it would seem that this Radcliff was but a Serjeant at Law for at the end of the Case Brian Justice demands of Brian Radcliff c. Yet indeed I find upon search that he was a Baron of the Exchequer 2. What Radcliff says is after the Resolution of the Judges over and no way influenc'd that 3. Whereas Sir Edward Herbert says the Resolution was upon 23 H. 6. c. 1. Radcliff who should better know the Subject of Debate discourses only concerning the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 5. which are barely prohibitory without any mention of Non obstantes or any voiding or disabling Clause Indeed Radcliff it being upon a sudden Discourse as the Book shews mistakes the Statutes as if they had such Clauses and Brook who cites part of the Patent which it seems he had seen says there was in it a Non obstante to the Statutes 28 E. 3. c. 7. and 12 E. 3. c. 9. Fitzherbert indeed says R. objected the 23 H. 6. but for that sit liber judex 4. But above all tho' our Chief-Justice calls them the Judges Enemies who say the Point of Non obstante is not resolv'd in this Case which he calls Confidence and that they may as well deny one of the ten Commandments 't is manifest beyond contradiction that the Resolution ended at issint que le Patent demurr en

THE LORD CHIEF JUSTICE Herbert's ACCOUNT EXAMIN'D By W. A. Barrister at Law. Wherein it is shewn That those Authorities in Law whereby he would excuse his Judgment in Sir Edward Hales his Case are very unfairly cited and as ill applied Vendidit hic auro patriam Dominumque potentem Imposuit leges fixit pretio atque refixit LONDON Printed for J. Robinson at the Golden Lion in St. Paul's Church-yard and Mat. Wotton at the Three Daggers in Fleetstreet 1689. THE Lord Chief Justice HERBERT's ACCOUNT EXAMIN'D WEre it not the Reproach of our Times to have had Men advanc'd to Courts of Judicature for other Merits besides Integrity and Learning in the Laws of their Country it might seem a great piece of Vanity in me to answer a Book stamp'd with the Name and Authority of a Chief Justice Yet perhaps I might be thought not without cause to take this as my more immediate Province having been the first of the Profession who ventur'd in Publick Companies to shew how wofully that innocent Book-Case 2 H. 7. in relation to Sheriffs has been mistook or wrested to serve for Colour to that hasty Judgment in Sir Edward Hales his feigned Case Wherefore how needful soever the Chief Justice may find it to make Protestations of his Sincerity this may supersede any such from me Nor would I willingly call his a Protestation contrary to apparent Fact especially considering that weakness of Judgment manifested by this Defence did he not give too great occasion for it 1. From the large Steps which he took to precipitate and as I am well assured to sollicit that Resolution 2. The manner in which he delivered it widely differing from what he now prints 3. The unfairness of his present Quotations And 4. The unhappiness not to say worse of those Instances which he is pleased to give of his Sincerity I shall not dispute or repeat his Lordships State of the Case But the Question upon it being Whether the King may by his Prerogative dispense with the Statute 25 Car. 2. c. 2. requiring all Persons in any Office under the King to take the Test against Popery I shall enquire 1. Whether those Books which he relies on as Authorities for his Judgment give any colour to it 2. Whether admit they did they would countenance the Resolution as he delivered it 3. Whether those Instances which he offers of his Sincerity may reasonably be taken for such 4. Whether he in any measure clears himself from the Imputation of being highly criminal His Lordship like a Master-Disputant begins as he thinks with a Definition of a Dispensation which he says is given by the Lord Cook Dispensatio mali prohibiti est de jure Domino Regi concessa propter impossibilitatem praevidendi de omnibus particularibus dispensatio est mali prohibiti provida relaxatio utilitate seu necessitate pensatâ Where I must say he very unlearnedly clogs the Definition of a Dispensing Power with the Person in whom 't is suppos'd to be lodg'd nay and the Reason too why it should be so which neither the Lord Cook nor Common Sense gives him any Warrant to bring into the Definition However it seems according to this a Dispensing Power in some Case or other is vested in the King which yet is far from proving any thing to his purpose for either the King may in all Cases dispense as to particular Persons and then his Distinction of malum prohibitum malum in se falls to the ground or else it reaches only to those Cases in which the Judgment or Flattery of Judges have ascrib'd it to him He adds out of the Lord Cook as an Enlargement upon what he calls the Definition Inasmuch as an Act of Parliament which generally prohibits any thing upon a Penalty that is POPULAR OR ONLY GIVEN TO THE KING may be inconvenient to divers particular Persons in respect of Person Time or Place for this purpose the Law gives a Power to the King to dispense with particular Persons Where the Lord Cook manifestly restrains the Penalty to such as is given the King as Head of the People upon which account only he calls it Popular nor indeed can be thought to take in what is granted to any Subject that will inform it being mention●d without distinction whether before or after an Information commenced And that the Lord Cook 's Words here ought not to be strained farther is yet more evident from the Case of Penal Statutes on which Sir Herbert's Misrepresentations will occasion my more particular Remarks As Sir Edward considering what Interest he has serv'd may be presum'd something conversant with Priests and Jesuits He might among others of less use have consulted the Learned Suarez who after the Definition which he makes to be Legis humanae relaxatio in a distinct Chapter shews with whom the ordinary Power of Dispensing which he distinguishes from that which is delegated is lodged where he says Certum est eum habere ordinariam potestatem dispensandi qui legem tulit And he gives the Reason Quia ab ejus voluntate potentiâ pendet So that none can have this power but he or they who are vested with the Legislative exclusive of others or such as have it delegated from thence That the King has not the Legislative exclusive of others is what I have formerly prov'd at large and it lies on the other side to shew that the Dispencing Power bas been delegated to him Yet thus much may be said on the contrary 1 st That the King could not in Law be presum'd to have exercis'd such a Power by himself for that the ancient Law provided that he should have a Counsel chose in Parliament who as the Charter affim'd to be declaratory of the ancient Law and sworn at the Coronation of Hen. 3. has it were sworn quod negotia Domini Regis Regni fideliter tractabunt sine acceptatione personarum omnibus justitiam exhibebunt and that it was accounted the Law long after that appears by the impeachment of Roger Mortimer 4o. E. 3. part of which was that Whereas it was ordain'd in the Parliament next after the Kings Coronation that four Bishops four Earls and four Barons should stand by the King PUR LUY COUNSEILLER without whose assent NUL GROS BUSOIGN NE SE FEUST Nevertheless Mortimer would undertake to manage all by himself accroaching Royal Power and it is easily to be shewn that such a Counsel was in use or continually insisted on as the right of the Kingdom from the time of the Charter confirm●d 28. Hen. 3. till the end of the Reign of Hen. 6. 2. A Power to grant Non obstantes to Statutes could not have been a right in the Crown at Common Law for we have clear Proofs of its odious and condemn'd beginning from the sulpureous Fountain of Rome as an honest Popish Lawyer confest with a deep sigh 35 Hen. 3.

the thing lawful nor could this in the least be inferr'd from the other because however an Act may be made void or tortious Indeed in the Reign of R. 3. whose Character blemishes the Judgments of his time it was held by all the Judges in the Exchequer-Chamber that the King might license the shipping of Wooll elsewhere than at the Staple yet even they were not of Opinion that the License made the thing lawful for then the Discoverer could not have had his share which they agreed that he ought to have and so the License was only as far as it concern'd the King. They also setled the other Point which before was a Doubt That a Pardon before an Information brought would defeat the Informer But then the Authority of the first Point is suspended by a Doubt remaining before all the Judges afterwards assembled upon a rehearing of this Cause in a more setled time Indeed they agreed the other of an Information after a Pardon but hitherto there is no manner of Proof of any Case wherein the King by his Dispensation could discharge the Penalty given not only to himself but also to an Informer who has his Action given by Statute But for this we must take a Leap downwards as far as 13 Jac. 1. which we may ballance with the 7th of his Reign when it is held by Lord Cook That where a Statute concerns the Benefit of the King alone he may dispense with it by a Non obstante And BY THE COURT that where it concerns the Benefit of the Subject the King cannot dispense 7. Whereas our Chief Justice thinks that a Statute's providing against Non obstante's shews that the King could otherwise have dispens'd with the Act by a Non obstante it is not onely unconcluding because it might be no more than an Argument of an Abuse of the Law but turns very strong against him For admit the Resolution of the Judges 2 H. 7. were as he contends yet he who makes so much of a Concession of the Commons of England assembled in Parliament when he thinks it of his Side ought surely to yield that the Judgment of King Lords and Commons is of uncontrollable Authority Wherefore when not only one but several Parliaments provide that all Non obstantes shall be void is it not plain that their Judgment was that such Non obstantes could not be set up by any Resolution of Judges And for this we have the Judgment of King Lords and Commons and that of but late days That even where a Grant is made to the King where 't will be said he is solely entrusted for the Publick Good yet it may be out of his power to defeat it by a Non obstante This appears by the Statute 19 Car. 2. c. 8. which provides That no Letters Patents granted to any Person of Exemptions from Subsidies c. shall free them from the Charges of any Sum granted by that Act and all Non obstantes in Letters Patents made or to be made in bar of any Act or Acts of Parliament for the Supply or Assistance of his Majesty are thereby declared to be void and of none effect And even where Statutes have not expresly provided against Non obstante's tho' the Statutes were such as restrain what many take to be the King's Prerogative yet if we receive the Sense of Lords and Commons the King has no Prerogative warranting Non obstante's to them as appears by the Articles against King Richard the Second one of which is For that the King contrary to the Laws and Wills of the Justices suffer'd Sheriffs to continue longer than one Year c. This were enough to set aside all Pretences taken from Calvin's Case tho' as Sir Edward Herbert pleasantly suggests it were resolv'd there That that was resolv'd 2 H. 7. which was never mention'd till after the Resolution Here is the Authority of Lords and Commons in competition with that of Mercenary Judges And if the Concessions of the Commons alone assembled in Parliament are of weight with him I know not why their Denials ought not as well to be urg'd against him which if we may do not onely the Fictions and loose Reasonings in Calvin's Case but the main Resolution there may be justly call'd meer Court-Law Such I am sure it is that the honest House of Commons 4 Jac. 1. would not bear it and any one that reads the Arguments of those Learned Men who manag'd the Conference with the Lords upon the Question of the Union of the two Kingdoms may easily see how inexcusable the Judges of that time were to proceed to the Judgment in Calvin's Case after they had been so enlightned Nor could they but know that the then Parliament was broke up because they were not so complying as the Judges shew'd themselves both then and afterwards But they secur'd their Cushions by it while Sir John Bennet Father of the present Lord Oswalston lost his in the Prerogative-Court and had a swinging Fine impos'd upon him into the Bargain several Years after upon pretence of Extortion but as I am well inform'd the real ground was his disrellishing Speech in Parliament upon this Subject 'T is well known some Princes us'd to have good Memories that way Manet altâ mente repostum c. 8. Non obstante's having no other Foundation than in the Encroachments of Princes and Servility of Judges especially if we except Cases concerning the King alone they ought not to be strain'd to any new Case The Advice of Bracton will rise up in Judgment against such Men who tells them If such things never hapned before and the Judgment is without Light from former Cases and difficult let it be adjourn'd to the Great Court. According to which Adjournments to ensuing Parliaments have been frequent in former days when there were more Learned Judges and that as often for the weightiness of the Matter as intricacy of the Points 9. But for the closing Aggravation Whereas our Chief Justice denies all indirect means for procuring Opinions and stands upon his Innocence challenging the World to lay any thing of that kind to his charge I think by this time few will the less suspect him because of his Assurance if either Threats or Sollicitations can be prov'd upon him the World will judge either of them indirect Means and I am much misinform'd if both cannot be justly charg'd If after all he can excuse himself with renouncing Infallibility and making Asseverations of keeping to the clear Dictates of his Conscience I must say Judges in former Ages have had hard luck and been made Examples to little purpose King Alfred would lose the Reputation of his Justice in hanging above thirty Judges and Parliaments have been very barbarous to proceed against others as Traytors who yet either were so ingenuous to confess their Faults or at least not so provoking as to