Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	chief_a	robert_n	sir_n	5,482	5	6.5009	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A27455	An argument shewing that 'tis impossible for the nation to be rid of the grievances occasion'd by the marshal of the King's-Bench, and warden of the Fleet, without an utter extirpation of their present offices with proposals for a new constitution of those offices by way of letter to a member of Parliament.	J. B. (John Berisford)	1699 (1699)	Wing B1962; ESTC R5834	20,197	36

hence is That the Rules of Court ought not to be taken upon Trust nor as if they were undoubtedly Legal because they are Rules of Court And therefore if any such have been made in respect of the Rules of the Fleet and King's-Bench Prisons it may be reasonable for a Parliament to Enquire into the Justice and Validity of them And this brings me to Consider that other part of the Enacting Clause where 't is said That no Prisoner shall be suffered to go at large except by Virtue of some Habeas Corpus or Rule of Court which Rule of Court shall not be Granted but by Motion made or Petition read in Open Court c. So that if there be a Rule of Court for it a Prisoner now may lawfully go abroad This is I Confess an Extraordinary Clause and looks as if a Judge himself or at least some Body who was pretty sure of being one had Penn'd it for it gives the Court an Arbitrary or which Tantamounts a Discretionary Power to Release all the Prisoners in England I don't say or believe that they will ever Exert it to such a height But why should the Court have a Power to do it if they please Why should the Debtors Restraint any more than the Creditors Liberty be Precarious Since the same Laws are the Measures of both and a Violation of the one may soon be followed by a Violation of the other for they who have an Absolute Power to give Liberty may in time pretend to that of Restraint 'T is true we are Secure from all Apprehensions of this Nature during the present Government who may doubtless Challenge all the Reigns since the Conquest to produce a more August and Reverend Bench for Learning Temper and Integrity So that it seems the peculiar Happiness of His Majesties mighty Genius to be Blessed with Council at Home equal to the Success of his Arms Abroad that he might Triumph both in Peace and War But 't is Posterity that I am labouring for What if in process of time a Deluge of Oppression and Tyranny should again Overwhelm us What if such a Sett of precious Judges should be trumpt up as the late Reign produced Some of which were the Scum and Refuse of the Law a Disgrace and Scandal to the Robes they Wore and all but one were base Deserters of their Countrey 's Cause and were cull'd out for no other End but to put the great Machine of Arbitrary Power into Motion which they did effectually Perform by prostituting the Laws Religion Honour and Justice of the English Nation to the Vile Lust of a Superstitious and Despotick Monarch But as I was Observing how Dangerous would it be to Intrust such a Power in the Hands of Renegado and Apostate Judges who might Raise Vast and Immense Sums by Granting such Rules of Enlargement If the late Lord Chief Justice Sir Robert W. had been Invested by Act of Parliament with such a Discretionary Power he might in his great Wisdom have thought it an Easier and more Honourable Way of Supplying his Necessities than by Mortgaging his Estate a Second time and adding Perjury to the Bargain by making an Affidavit that 't was free from all Incumbrances besides he might have thought this Power a Perquisite to his Place and that he might Justifie this Method of making up the Loss of his Sallary the greatest part of which went on t'other side of the Hall I know it may be Objected That never such a General Rule of Enlargement was made nor perhaps ever thought on before or since the making of the Act tho' I shall quote one by and by which was made long before that Act and comes pretty near it and that this Rule of Court which is Excepted in the Act is commonly understood of Day-Rules and that only such are Granted Tho' I should acknowledge this to be true yet it admits of an easie Answer for I am only Arguing that the Court May Grant a General Rule of Enlargement by Virtue of this Act and so they May Grant other Rules by Virtue of it As for Instance I don't see but the Court may now Grant a Rule to bring up a Prisoner to be a Witness at a Tryal at Bar or to carry him to York to be a Witness at a Tryal there or upon any other Occasion the Court shall think proper Whereas before the late Act I do not think such a Rule was sufficient to Secure the Keeper from an Action of Escape There is an Authority to this purpose in 1 Sid. 13. That if a Habeas Corpus ad testificandum be directed to a Gaoler to bring up a Prisoner who is in Execution to be a Witness If the Goaler by Virtue of this Writ brings the Prisoner yet this is an Escape for which he is Answerable and why should a Rule of Court have a greater prevalence and force than the King 's Writ which has been Established by the Common Law time Immemorial But pray let us Consider a little the Nature of these Day-Rules and how far they will stand the Test of a Legal Examination This Rule it seems is made every Day in Term upon Motion or Petition in which it is Suggested by the Prisoners that they have Extraordinary Occasions to go Abroad to Direct their Attorneys and Advise with Councel about their Business and the like Upon this the Court makes a Rule for them accordingly but t is suppos'd they are to have a Keeper with 'em tho' if they have that will not alter the Case But the question is Whether the Common Law does Allow that a Prisoner in Execution may be permitted in any Case to go and Advise with his Councel tho' it may be about Matters which relate to the Cause of his Imprisonment And I conceive that the Common Law does not Indulge any such Liberty And for this I rely on Two Substantial Authorities The First is in Plowden's Commentaries 360. where 't is said that a Man in Prison hath not liberty to go at Large to make his Entry or Claim or to seek Councel The Other is in Co. Lit. 259. where 't is also said That a Man Imprison'd shall not be bound by a Descent for that by the Intendment of Law he is kept without Intelligence of things Abroad and hath not Liberty to make his Entry or Claim or to seek for Councel I 'll quote one Case more and that is Mostin's Case in my Lord Dyer 297. which was this Mostin being in Execution in the Fleet the Lord Treasurer and the Barons of the Exchequer Commands by their Order or Rule of Court that the Warden should let the Prisoner go at Large accordingly the Prisoner was let loose but the Warden in those times paid for 't in an Action of Escape brought against him in the Common Pleas where his Justification under the Rule of Court was not Allow'd So that here 's a President of a General Rule of Enlargement and what has been done

same Parity of Reason the Creditors Lodging is also a Prison and the Creditor himself is become a Prisoner He may well cry out this is a Dream or else we live in an Age of Miracles and Contradictions But Sir that which I insist on is That not only the Going of these Sham-Prisoners out of those Places they call the Rules but also their Living within 'em out of the Prison is an Escape in Law But I must not be understood to mean that their being out of the Prisons of the King's-Bench and Fleet only is an Escape if they are in any other Prison it is well enough I know it was Adjudged in Cro. Car. 210. that the King's-Bench Prison was not Local but any Place where a Man is Restrain'd of his Liberty is a Prison and in the same Book fol. 266. It is Resolved by all the Judges of England That the Wardon of the Fleet and the Marshal of the King's-Bench may keep their Prisoners in any other Place of the County But then they ought to be kept as Prisoners Sub salva arcta Custodia Whereas in our Case 't is not pretended that they are in Custody within these Rules nor that there is any manner of Keeper with 'em they have the same Freedom and Liberty of Egress and Regress with other Persons to Go and Come when they please without any manner of Guard du Corps attending of 'em perhaps some of the more Cautious when they are to go Abroad amongst their Creditors will now and then take a Follower with 'em but however in point of Law this won't do neither for 't is Adjudged in Boyton's Case the 3 Rep. 44. and so is my Lord Dyer 278. and Hub. 202. That if the Sheriff suffer the Prisoner to go abroad with a Bayliff or Keeper yet this is an Escape for that he ought to be kept in Safe and Strait Custody which can't be said when his Arms and Legs are at Liberty with his Sword by his Side and only one Scoundrel to Attend him There are Multitudes of Authorities which shew the Strictness and Severity of the Law as to the Confinement of the Prisoner's Body And the Political Reason of this Rigorous Usage is That the Prisoner being uneasie under it might the sooner be induced to regain his Liberty by Discharging his Just and Honest Debts So that since the Rules of these Prisons do directly Subvert the Good and Ancient Maxims of the Common Law it will certainly be worth the Enquiry of the Committee to know when and by what Authority these Rules were first set on Foot and whether the present Use of 'em does Answer to their Original Institution I Confess I have Endeavoured to Trace 'em to the Fountain from whence they first Sprung but the first and only Book where I find the Rules taken Notice of is in Sid. Rep. 384. where 't is said by my Lord Chief Justice Keeling That by reason of the Removal from other Prisons there being more Prisoners than the Kings-Bench Prison could contain therefore the Prison was Enlarged by the Direction of the Court which Enlargement is call'd the Rules which are Houses Adjacent Hired by the Marshal So that here the Authority appears by which they were introduced viz. by the Direction of the Court and I don't see any harm in this Direction if it was only to Enlarge his Prison-House or to keep the Prisoners in another House and Place provided they are kept in Safe Custody But what if these Rules of late Years are Degenerated and are quite of another Nature from those which were at first Allowed For now the Rules are not Hired Houses by the Marshal nor any part of a Prison they scorn the Scandal of that opprobrious Name the Gentlemen only take Lodgings for their Conveniency within certain Places called the Rules And what if these Rules as they are Established upon this new Bottom should also be Approv'd of by the Rule and Direction of the Court Why truly if the Case should be so I take it clearly That this Rule and Direction of the Court is against the Law of England This may seem a little roundly Exprest and perhaps may look somewhat Peremptory to those who don't Consider That the Judges are but Men Humanum est Errare says my Lord Coke the great Oracle of our Law who himself could not escape being Censured especially in the Zenith of his Court Preferments So the Lord Chief Justice Keeling was mistaken in Point of Law when he Fin'd and Committed some of the Jury to Prison for not giving a Verdict to his Mind which Error he acknowledg'd upon his Knees at the Bar of the House of Commons So it appears in 1 Sid. 218. that the whole Court of King's-Bench mistook the Law when by their Rule they Imposed a Watch and Ward in Westminster and laid a Tax upon the Inhabitants to defray the Expence of it This was indeed a pretty bold Stroke or certainly a Prodigious Mist clouded their Understandings for every vulgar Eye might at first Glance discover the Weakness of that Rule which was made in direct Opposition of the great Priviledge of Parliament and I wonder they escaped the severest Censure of it But my Lord Chief Justice Scroggs had not so good luck for one of the Articles of Impeachment against him was for that he had caus'd an Illegal and Arbitrary Rule to be Entred in the Court of King's-Bench against the Printing of the Weekly Packet of Advice from Rome 't was his Misfortune but the Nation 's Happiness that he liv'd at a time when the Parliament would not suffer the meanest Englishman to be Oppressed with Impunity It was that Immortal and Prophetick Parliament commonly called the Exclusion Parliament And since I chance to mention that Generous and Heroick Senate I can't forbear making this short Observation It was Cassandra-like theirs and the whole Nation 's unspeakable Calamity not to be believed for which Stubborn and vastly Pernicious and only not Fatal Blindness of the Church for there it went What a Chain of Horrours Darkness and Confusions did Ensue What a Scene of Tragical Tyrannies and Depredations were every where Display'd throughout the British Isle Our Civil Rights were Lost and intirely Swallowed up by that Voracious Monster called Prerogative of the Crown and our Religious ones were reduced to the very Brink and Precipice of Destruction But when the Church looked down and saw the great Abyss in which they were Eternally to sink then they Cry'd out for help and Providence brought 'em an Assistance which hath 't is true Redeem'd us but not without the Expence of Millions of Sacrifices Offered up not of Beasts as those of the Ancients were but of the Noblest Human Blood and Treasure But after this small Digression to pursue the Thread of my Discourse I was giving you some Instances where the Courts in Westminster-Hall have given Signal Proofs of their Fallibility And what I infer from