Selected quad for the lemma: justice_n
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A90012
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A new poll-bill for raising the sum of seven hundred thousand pound. Humbly offered to consideration. / By a person of quality.
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1689-1694
(1694)
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Wing N715B; ESTC R180953
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8,209
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4
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the Parliament should be of Opinion that this manner of proceeding would also look too much like a Bill of Attainder we may reduce these several particulars into two Heads I. Upon those who shall refuse a passive TEST as aforesaid II. Upon all persons who shall receive any Benefit by a General Act of Oblivion viz. That a Clause be brought in and added to the Bill That all persons except Members of Parliament whose Character exempts them from all Exceptions who intend to have any Benefit by the Act of Indempnity shall within such a certain time to be prefix'd actually pay into the Exchequer or to Commissioners to be appointed in every respective County some certain 〈…〉 degrees of persons or in default thereof to stand Excepted out of the said Act. There is no doubt but all these and many other persons that it may not be our Interest to disoblige at this time by a Bill of Attainder or putting Marks or Distinctions upon them to render them Infamous in their Country and which must of Necessity stir up a Spirit of Opposition upon all Occasions would yet voluntarily and freely lay down a small Sum of Money to secure themselves and their posterity from any future Troubles after so great a Revolution to purchase peace and quietness and a firm confirmation of their Lives and Estates by Act of Parliament The Parliament is not bound to distribute their Favours Gratìs without some small Acknowledgment and Return towards the carrying on the War against France the Common Enemy of Christendom And the people would very joyfully accept of the same upon these Terms to the raising of a very considerable Tax as much beyond the Proposal above set forth as the Number of persons under the long Catalogue of Offences in the two last Râ—igns is above the Number of the persons mentioned in this paper Reasons for Raising Money by way of a Tax and not by way of a Bill of Attainder NOlumus Leges Angliae mutari the Law and Custom of Parliament is Lex Terrae and the Supreme Law of the Land it regulates and corrects the Abuses of all other Courts and the Equity of their Proceedings is for Example to all Inferior Jurisdictions Ergo Nolumus Leges Consuetudines Parliamenti mutari 'T is true the Jurisdiction of the High Court of Parliament is absolute and unlimited the King Lords and Commons are in themselves uncontroulable by any power upon Earth But in imitation of the great Creator and Governor of the whole World they have been pleas'd to set such Rules and Bounds to their own proceedings as they in their great Wisdom have thought just and convenient and most consistent with the common safety of the people Hence it is that we find the Parliament in all Ages very cautious of introducing new Presidents in the ways and methods of Raising of Money Hence it is that we may observe how very careful our wise Predecessors have been in passing any Bill of Attainder and whenever we meet with such an extraordinary Bill we shall generally find that the same was passed in a Case of Necessity and upon some eminent and particular person who had been instrumental in some high station towards the Subversion of the Government and whose interest and power was above the Authority of the ordinary Courts of Justice as against my Lord Strafford and the Duke of Monmouth and such like persons and yet in the former the Parliament was so very cautious as to Enact That the same should never be made use of for a president for the future But in all Ages and Histories we can never read an Instance of an Act of Parliament to attaint a number of Men of Inferior station and subject to the ordinary Methods and Rules of Law the Reason of which is very plain for that such Presidents are of dangerous Consequence and not consistent with the common Safety of the people of England Salus populi Suprema Lex The end of all Government consists in a general Security of the Lives Liberties and properties of the Subject And in every Government where the Laws and Methods of the Supreme Courts are most strict and regular for the common Safety those Laws and Methods are esteem'd as the best and that Nation as the most happy in the World. God be praised this Kingdom doth enjoy the happiness of the best Constitution in the World which we ought to value the more because so lately retriev'd by the wonderful hand of providence from imminent Destruction But amongst other Laws and Methods observ'd in this Nation the people of England have always valued this That in all the various Revolutions of the Government the general pardon of one prince tho' but King de Facto and not de Jure hath ever been observ'd in the next Revolution for otherwise no Man living could be safe but that one time or other he might be executed for a Traytor or his Estate forfeited and his Blood corrupted by a Bill of Attainder 'T is true we have seen a pardon disputed in parliament against an Impeachment of the House of Commons and in the Case of a prime Minister of State but the Law of England is grounded upon Reason which in such a Case is singular and in a manner Lex Necessitatis for such persons are supposed to command the Brâ—ad Seal and to be able to obtain a pardon when they please And whereas it is a Maxim of Law That the King can do no Wrong the same do's imply That his Ministers may do wrong and may be punish'd for it but that might not be in case a pardon should be valid in such a Case against the impeachment of the Commons of England The King might do wrong if his Ministers might do it by his assurance of such a pardon so that the common safety of the people which is the Supreme Law that governs all the rest do's require that such a pardon in such particular Instances should not be of any Force in Law And this will be the Case of the late Lord Chancellor some of the Judges and other evil Ministers of State. But Cessante ratione Legis Cessat Lex where providence has thrown a pardon upon a Number of Men subject to the ordinary Courts of Justice and the same is allowed every Term in the Courts of Westminster Hall and all other Courts within this Kingdom when Felons and other Notorious Offeâ—ders have been discharged upon it then it is very extraordinary to see the same at length defeated and a Bill of Attainder executed upon several thousand Families How can such a president as this consist with the common safety of the people For if one Legal pardon may be set aside why not another The general pardon of a prince is as Legal as any other pardon by Act of parliament so far as it can by Law extend And if it should once become practicable to pass Bills of Attainder notwithstanding any Legal pardon to
the contrary Who can be safe What can be expected but that in every Revolution the succeeding Parliament should pass a Bill of Attainder upon the Former notwithstanding any General pardon or Act of Oblivion to the contrary and then what Fatal Consequences will such a president produce Where will be the End of Ruin and Desolation This would be to put a new Weapon into Mens hands to destroy one another to all Eternity Consider the various Revolutions during the Wars between the Two Houses of York and Lancaster if the General pardons on both Sides had been set aside no Man in the whole Kingdom had been secure As the General Law of Nations ought to be observed by all Princes and Assemblies tho' in open War one with another so these General pardons for the common Safety of the people ought to be observ'd in all Revolutions of Government Object That these Arguments tend to the setting aside of the Bill of Forfeitures and of the Bill of pains and penalties and therefore are not to be allowed I. As to the Bill of Forfeitures the Answer is That so far as the same is really and truly a Bill of Forfeitures these Reasons do not tend to the setting aside thereof But so far as the said Bill may tend to the imposing of penalties upon persons who are not liable to the same by the Common Law they may for so far the said Bill is not properly a Bill of Forfeitures but a Bill of Attainder and may be retorted upon us hereafter for not receiving the Sacrament II. As to the Bill of pains and penalties these Reasons can no ways be made use of against inflicting pains and penalties upon great Ministers of State who have acted against their Oaths to the Government and against the Fundamental Constitution thereof upon the Confidence of a pardon which they could command whenever they pleas'd and who were punishable by no other way but by the power of a parliament But so far as the said Bill may extend to the punishment of Inferior persons who are under the common Fate of Mankind to stand and fall by the Laws of this Realm there such Reasons may be made use of very justly to raise a due Consideration how far such a president may be consistent with the Rules and Methods of parliament and the common Safety of the people of England Object That this Bill of Forfeitures will not be any Bill of Attainder for that the late King's pardon does not extend to the penalties which are due to an Informer for the King cannot give away another Man 's Right He may remit a Forfeiture due to Himself but not when it 's due to the Subject so that wherever the Subject hath a Right the King cannot by his pardon divest the same Resp In all penal Statutes the Right of the penalty is in Nubibus and not fix'd in any person till an Action be brought or an information fil'd and then that person who files the Information hath a Right in Law to the penalty and the King cannot by any pardon divest the same or remit that Forfeiture which is by Law appropriated to the use of that particular Informer But in Case the King grant a pardon before any Action brought or Information filed that is before the Right be attached in any Subject in such Case the King takes the first Cognizance of the Matter and is in judgment of Law instead of an Informer and by Consequence may remit the Forfeiture which is in such a Case due to himself alone And farther also for that after such pardon no person can inform tam pro Domino Rege quà m pro seipso according to the Statutes and for himself alone he cannot inform in any popular Action as is adjudg'd in 3 Instit 194 195. Coke 11. Report Dr. Foster's Case fol. 65 66. and many other Reports So that the late King's pardon is valid in Law to discharge all persons against whom no Action was brought nor Information filed before the said pardon II. Upon this particular Statute no Action can be brought till after Conviction by Information presentment or Indictment and the plaintiff in his Declaration must set forth the said Conviction as part of his Title But no Man can be Convicted since that pardon and therefore no penalty can be recover'd by any Informer as is said before III. All those who had particular Dispensations in their Patents may insist that they had acted according to Law that is according to the Judgment of the â—udges For tho' that Judgment might be ever so corrupt and erroneous yet the same was a Law that left the people to their liberty either to take the Oaths or to let them alone What is all the Law of England but the Judgment of the Judges reported to us from Age to Age in our Law Books and Reports In the 1 Insâ—… fo 168 c. my Lord Câ—ke tells us That Judicium est quasi Juris dâ—ctum so called because so long as it stands in Force pro veritate accipitur and cannot be contradicted The Famous Plowden fo 82. in the Case of Partridge against Câ—oker hath this Expression Words says he which are no other than the Verbâ—ration of the â—…ir do not make a Statute but only the Image of a Statute and the Life of the Statute rests in the minds of the Expositors of the words who are the Members of Parliament who made that Statute But in Case there be no Parliament so that their minds cannot be known then the Judges are by Law the Interpreters of that Statute The Law itself is but a dead Letter but the Judges upon their solemn Oaths are the speaking Law and several Cases are there Cited where Constructions have been made contrary to the Letter of the Statute My Lord Hobart in the Case of Slade against Drake tells us That as Articles are made de Fide by the determination of the Church so matters are said to be de Lege by the determination of the King's Courts And fo 84. his Lordship declares That the Courts Ecclesiastical cannot inâ—erpret a Statute but only the Judges of the Common Law. 'T is expresly Enacted That the King shall not pardon Murder but by express words and not by the words Felonicam Interfectionem because the King was frequently misinformed and by misrepresentations used to pardon Murder whereas he intended only to pardon Manslaughter And yet the King pro Tempore hath always dispensed with that Statute and Murder has been pardon'd by the words Felonicam Interfectionem ever since contrary to the express words of the Statute and as we are credibly informed such a pardon was read and allowed in the King's Bench this last Term. Cases of this Nature are innumerable what words can be more plain and express than the words of those Statutes That no person shall go Judge of Assize in his own County Nor be Sheriff for more than one Year That no Welshman shall be Judge Chamberlain c. in Wales That there shall not be more than 8 Justices in each County of Wales and the like And yet the contrary is done and allow'd even at this day without any Notice thereof in Parliament and what Reason can be given for this but that all Mankind must confess That the Judges are the speaking Law and that they have declared That the King has a dispensing power in these Cases notwithstanding the Statutes say That the King shall not be able by any Nonobstante to dispense with the same And therefore let the Judges answer for the Integrity of the Law in this Case as well as in the Case of the Ship Money and all other Cases the Subject is no way accountable by Law for the same In the Speech of Mr. Pierpoint against Judge Berkley upon his Impeachment for High Treason before the Lords he urges by way of Aggravation That for a Judge to be unjust more hurteth the publick than any other For what a Judge doth is look'd upon as a thing ought to be done and his unjust Judgments more our Records that is our Laws Rushworth 's Collections The Excellency of our Laws above the Laws of all other Nations consists in the Certainty of it and the Certainty consists in this That every Judgment of the Judges is a Law till it be Reversed so that the people of England who act under such a Judgment are safe without any regard to the Integrity or Corruption of the Judges of which they are no Judges Paramount But when that Judgment is Reversed in the Exchequer they have all fair warning that the Law is altered in that particular and then the 2d Judgment will protect them and in Case that Judgment be also Reversed in Parliament then the first Judgment comes into Force again So that the people must walk after the Judgment of the Judges in all Cases and if they are punished for so doing in Parliament it must be by a Bill of Attainder contrary to all the former Rules and Methods of proceedings So that upon the whole matter to raise Money by such a Tax as is proposed seems to be just and equal and according to the ancient Rules and Methods of Parliament But to raise Money by the Name of Forfeitures tho' in reality by a Bill of Attainder is a new President of very great Consequence and whether it be consistent with the common Safety of the people in General or with our own Interest in particular is humbly submitted to our Superiors to whose Judgment we must all Appeal Let us beware lest we dig a pit for others and fall into it our selves