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A86390 The libertie of the subject against the pretended power of impositions. Maintained by an argument in Parliament an[o]. 7[o]. Jacobi Regis. / By William Hakevvil of Lincolns Inne Esq. Hakewill, William, 1574-1655. 1641 (1641) Wing H210; Thomason E170_2; ESTC R9193 77,405 152

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fourteene twelve yeeres her age of consent and nine yeeres capable to bee endowed a yeere and a day given to sue an appeale the like limitation of a yeere and day in very many other Cases In effect who reduced all the known grounds of the Common law to that certainty that now they are Because wee cannot tell how or when they began shall wee therfore conclude that they began by the kings absolute power and inferre that by the same reason they may bee changed at his pleasure If the king may increase his Fines upon the purchase of Originall writts which by the same reason hee may doe that hee may doe his Custome nay hee hath more colour for this then for that because there is no Statute against this hee might easily raise that revenue to the value of his Customes But no man can nor will I hope offer to mainteine it to bee lawfull You see the weakenesse and the dangerous consequence of this argument by comparing it to other cases of like nature To say the truth all these things began no man can say certainly when or how but by a tacit consent of king and people and the long approbation of time beyond the memory of any man and yet no man can directly affirm but that most of them might begin by Act of Parliament though now there bee no Records extant of such antient Parliaments The first Parliament was not kept 9 H. 3 though it be the first in our bookes If we will give credit to other Records and to our best Chroniclers The antiquity of Parliaments we shall heare and reade of divers Parliaments in the Reigne of King John and of his Predecessor Rich. 1. and in the Reign of H. 2. of two famous Parliaments one at Claringdon in Wiltshire the other at Gedington in North-Hamptonshire And although our Chronicles say that the first Parliament kept in this Realm was held 19 Aprilis 16 H. 1. yet I am of opinion that William the Conqueror held Parliaments for what can be else understood by these words Per commune consilium totius Regni nostri stabilitum fuit which I finde in Mr. Lamberts collection of the ancient Lawes of England in the beginning of the Lawes of W. the Conqueror Many of the Statutes of E. 1. have no other words Nay long before him in the yeere of our Lord 712. in the time of Inas King of the West-Saxons I assure my selfe there were Parliaments held and that of the three Estates as at this day as may appeare by these words in the beginning of the Lawes of King Inas in Mr. Lambert Suasu Instituto Episcoporum nostrorum omnium Senatorum nostrorum natu majorum populi nostri in frequentia magna And more plainly in the conclusion of some other of his Lawes Hoc factum fuit per commune consilium assensum Procerum Comitum omnium Sapientium Seniorum Populorum totius Regni per praeceptum Regis Inae which are the same in Latine which ours is in English By the King the Lords Spirituall and Temporall and the Commons VVhy might not the Custome upon Woolls be first granted at one of these Parliaments as well as to have it first begun by the Kings absolute power There is no more probability of the one than the other because most of the ancient Records were burnt in H. 2. time when the Exchequer was burnt shall we conclude therefore that there were ne●er any such You see the weaknes of this Argument in all the points thereof I leave it and passe to another The King may say they restrain the passage of Merchants at his pleasure The second Argument that the King may totally restrain the importing and exporting of merchandizes therfore he may do it sub modo by laying of an Imposition answered which they prove by divers Records 2 E. 1. m. 18. Ro. Par. 2 E 1. m. 17. Ro. fin 31 E. 1. n. 44. Ro. Pat. 17 H. 6. Ro. Clo. in dorso Upon which they inferre that if he may restraine a Merchant that he shall not passe at all he may much more so restraine him that he shall not passe except he pay a certaine sum of money For this say they is lesse than totally to restraine him And Cui licet quod majus licet etiam quod minus Of this Argument my L. Dyer gave light in his case of Impositions 1 Eliz. and this hath been diversly inforced by all that have argued for Impositions In answer of which I will consider how farre the king may restrain the passage of Merchants and then will examine the consequence of the Argument For my part I think the king cannot restrain the passage of Merchants but for some speciall cause wherein to define certainly and resolutely to say for what causes he may and for what not I will not undertake Onely let me inform you that there is not one of these presidents vouched by them to prove the kings power to restraine but they are upon speciall reasons as by reason of Enmity with such a Nation from whence they are restrained or because such a Commodity may not be spared within the kingdome Besides they are not restraints from all places and of all manner of Merchandizes but from certain places onely and for certain sorts of Merchandizes And for my part I thinke that restraints in all these cases and of like nature are by the Common-Law left to the kings absolute power For if it were otherwise it should be in the power of a Merchant for a little private lucre to enrich the kings Enemies or to furnish them with munition to be imployed against the State or utterly to ruine the Common-wealth by carrying out a Commodity which may not be spared or by bringing in of some that may be hurtfull Nay which is more such may be the occasion that the king may I doubt not stop the passages of all Merchants from all places for a short time as upon the death of the late Queene it was put in practise to prevent Intelligence there may likewise be such necessary use of their ships as the want of them upon some sodaine attempts may be a cause of the overthrow of the whole State In such cases as these if the Common law did not give the King leave to restraine their passage by his absolute power it were very improvident in the highest points which cannot be imagined of so wise a law And yet the Kings of this Realme have alwayes been sparing in the practise of their absolute power in this point For there are little lesse then 30. Acts of Parliament touching the opening and shutting up of the passage of Merchants most of which as I conceive were made rather for the increase of punishment then for want of power in the King For the breach of a restraint by absolute commandment is punishable as all other contempts onely by Fine and Imprisonment and not by forfeiture of the Merchandizes