mours (of whose interest this Court will not deny the notice, and if his Ma- My Lords, the next charge is concerning Impofitions, Mr. Vaffalls goods are feised for not paying Impoft, which hee conceived to bee against Law, he is imprisoned, and judgement given against him, without fuffering him to bee heard, upon the point of right, because that had beene heretofore judged in Bates's Cafe: And yet thefe very Judges have not thought themselves fo bound up by former judgements, but that fince this time they have argued a cafe upon the fame point, which was adjudged in Hillary Term in the 15. Eliz. and confirmed after by all the Iudges of England in a Writ of Errour, in the 21. yeare of that Queenes reigne, 'tis Walfinghams Cafe, however the fame modesty seized them againe in the Cafe of a Noble Lord, not now prefent: Whether the King without affent of Parliament, may fet impofitions upon the Wares, and goods of Merchants, is no new question; it hath beene more then once debated in Parliament, and indeed whilst it was a question, was fitteft for a Parliament: I will not trouble your Lordfhips long: 'tis now refolved, and nothing new can be faid in this Argument, though I may have leave to fay, if the King can by his Letters Patents create fuch a right to himfelfe, and by a legall courfe recover that right under fuch a Title, fuch Letters Patents are in no degree inferior to an Act of Parliament: to reconcile fuch a power in the Prince, and the property of the Subject, that the one must not be deftructive to the other, will require a much greater, a fubtler understanding than I pretend to; but my Lords, I doe not thinke the judgement in this point to be fo great a crime in thefe Judges, as that they prefumed to judge at all; the matter had beene long debated in Parliament undetermined, and therefore not within the Conusance of an inferiour Court, had it not beene true that Fortescue fays in his 36. Chapter of the Lawes of England, Neque Rex per fe aut Miniftros fuos, tallagia, fubfidia, aut quævis onera alia imponit, &c. fine conceffione vel affenfu totius Regni fui in Parliamento fuo expresso, &c. If the Statute de Tal tagio lagia non concedendo, if the 30th. Chapter of Magna Charta, and all the other Statutes to that purpose, bee not cleere in the point, they might easily have apprehended fo much weight, fo much difficulty in the queftion, (efpecially fince in all our Law-bookes, not fo much as the word impofition is found, untill the cafe in my Lord Dyer of 1. Eliz. (fol. 163.) that they might very well have fufpected themselves to be no competent Judges for that determination, and I hope by the experience of this Parliament, the Judges will recover that ancient modefty to beleeve, that fome cases may fall out that may not be properly within their jurifdiction in the 9. yeare of Eliz. ('tis in the Parliament Rolls) It being found by an office after the death of Gilbert de Clare Earle of Glofter, that his fifters were his Heyres, nifi Comitiffa Gloceftriæ esset pregnans, the queftion was, whether the King might grant the Heyres their Livery in prejudicium impregnature: This was conceived negotium novum, & difficile, and the King having commanded the Chancellour and Judges to deliver their opinions in writing, they returned, quod non audebant dictum negotium definire, nec Domino Regi confulere fine affenfu magnatum, propter raritatem & difficultatem: whereupon the day was given to the parties, ad proximum Parliamentum. And your Lordships well know the fpeciall care that is taken by the Statute of 14. Ed. 3. cap. 5. that fuch matters as for the difficulty are not fit for the Judges, or through eminent delaye are not dispatched by the Judges, fhall be determined in Parliament. Not fuch matters as the parties concerned, had rather venture upon your Lordships judgements, then upon the Rules and proceedings of the Law (God knowes what mifchiefe and confufion may fall out upon that admiffion) there must be fuch difficulty, fuch delay, before that Statute meant your Lordships Juftice fhould be concerned in the refolution, I wish thefe Gentlemen had thought this bufines a matter of that difficulty as had been fit for fuch a delay. My Lords, we come next to the charge, concerning Knighthood. Mr. Maleverer appeares upon the proceffe of that Court, pleads and fubmits to his fine, ponit fe in gratiam curie: The Barons refufe to impose any fine, they had no power to doe that, he must treate with certaine Commiffioners appointed for that purpose, and compound with them: your Lordships have not met in the fame men fuch contradictions of crymes, who would fufpect the fame men in one charge, to have the mettle to ufurp the power, and exercise the jurisdiction of the highest Court, the Court of Parliament, and prefently to want the Spirit to doe that which was so restrained, and peculiar to their places to have done, as that none else could do it; they had no power to fyne, as if the fole bufines of fworn Judges in a Court of Law, was to fummon and call men thither, and then to fend them on errands to other Commiffioners for Juftice: 'tis true the Commiffioners of 1. Edw. 1. to Tiptoffe and Berk, and fince to others, were and have been to compound with thofe, who defired to compound, not otherwife, they had no power to compell any, to fine any; that truft by the Law, was and is onely in the Judges: fo that if this duty were aright to his Majefty, and the Perfons liable refuse to compound, for ought thefe Judges can doe, the King must loose this duty, they can impofe no fine, only they have found a trick, which they call the courfe courfe of the Court, to make his Majefty a faver: appeare while you will, plead what you will, fubmit to the mercy of the Court, Iffues fhall goe on ftill, as if you did neither, till you have done fomewhat that Court will not order you to doe, nor is bound to take notice of when you have done: your Lordships will help us out of this Circle: And that you may fee how incapable they are of any excuie in this poiut, the very Mittimus out of the Chancery gives them expreffe command amongst other things, ut fines omnium illorum qui juxta proclamationem prædi&t. ordinem ante prædict. diem fufcepiffe debuerunt, capiatis, &c. 'Tis onely worth your Lordships obfervation, this misfortune commonly attends (and may it ever) thofe abfolute, difufed rights, that be the thing in it felfe in a degree lawfull, the Advisers and Ministers of it fo faile in the execution, that as it ufually proves as grievous to the Subject, fo by fome circumstances it proves as penall to the Inftruments, as if it were in the very nature of the thing against all the Lawes of government. I have wearied your Lordships: you fee in what a dreffe of injuftice, fubtilty and oppreffion, I am very unwillingly compelled to prefent thefe Judges to you: if they appeare to your Lordships under any other character of known and confeffed learning in the whole courfe of their lives, how farre that will aggravate their fault your Lordships muft onely judge; if under the excuse of ignorance, or not much knowledge in the duty of their places, your Lordfhips will eafily conclude, what infinite mifchiefe, of which your Lordships have no particular information, the Subjects of this Kingdom have fuffered in their lives, in their fortunes, under fuch ignorance, and fuch prefumption: if under the reputation of prudence and integrity in all cafes, except these prefented to your Lordships; your Lordships will be at least of the fame opinion that he of Lacedemon was of the Athenians if they carried themselves well, when time was, and now ill; they deserve a double punishment; because they are not good, as they were; and because they are evill, as they were not. My Lords, if the excellent, envied conftitution of this Kingdome, hath beene of late diftempered, your Lordfhip fee the caufes: if the sweet harmony betweene the Kings protection, and the Subjects obedience, hath unluckily, fuffered interruption, if the royall Juftice, and Honour of the beft of Kings hath beene miftaken by his people, if the duty and affection of the most faithfull and loyall Nation, hath been fufpected by their gracious Soveraigne, if by thefe mifreprefentations, and thefe mifunderstandings, the King and People have beene robbed of the delight and comfort of each other, and the blessed peace of this Island beene fhaken and frighted into Tumults and Commotion, into the Poverty, though not into the rage of Warre, as a people prepared for deftruction and defolation: these are the men actively or paffively, by doing or not doing, have brought this upon us: Mifera fervitus falfa pax vocatur : ubi judicia definunt incipit bellum. My Lords, I am commanded by the House of Commons, to defire your Lordfhips, that these three Judges may be speedily required to make their anfwers to thefe Impeachments: and that fuch further proceedings may be had against them, as the course and justice of Parliament will admit. A SPEECH A SPEECH delivered by the honourable WILLIAM PIERREPONT, fecond Son to the right Honorable the Earle of KINGSTONE, against Sir ROBERT BERKLEY, Knight, one of the Juftices of the Kings Bench; at a Conference of both Houses in the Painted Chamber, July 6. 1641. MY LORDS, I Am commanded to prefent to your Lordships thefe Articles, with which the Knights, Citizens, and Burgeffes of the Commons house of Parliament, in their own name, and in the name of all the Commons of England, impeach Sir Robert Berkley, Knight, one of the Juftices of his Majefties Court of Kings bench in maintenance of their accufation of high Treason, and other great misdemeanours. The Articles they defire may be read. The Articles were read by Mr. Newport. The high Treafon is in the first Article, in his endeavours to fubvert the fundamentall Laws of this Realm, and to introduce an Arbitrary and Tyrannicall government, which have been lately adjudged Treason, in the cause of the Earle of Strafford. The other Articles (of his opinions, Certificates, Judgements, denials of the benefits of our Laws, which have been read to your Lordships) prove the firft. Our goods, our lands, our bodies, the peace of a good confcience are by him given up to Arbitrary, Tyrannicall Government. Our Ancestors have with great care provided for Judges to know the Lawes, to make them juft, or fear them from being evil; We have Innes of Court for the peculiar study of our Lawes; Judges from thence only chofen ; feldome any but fuch as have been twenty yeares there; Honours and revenues are given to Judges, encouragements to do well; this Judge had these ; Judges are fworn according to Law to ferve the King, and his people, according to Law to counsell the King, and for not fo doing, to be at his will for body, lands and goods; this Judge took that oath; the Lawes the Judges study, impofe the greatest punishments on unjuft Judges, fhew that those punishments have been inflicted; more could not be done to perfwade or fear a Judge. His offences fhew in him great ambition, yet he was most timorous of difpleafing the great men then in power, he did not only forbear doing what、 he was fworn to do, but with them was most active against our Lawes, and in oppofing and punishing any that did maintain them. To have only received Bribes (though they blind the eyes, and though the defire to get money encreaseth with age) that hainous crime in a Judge had, compared with his offences, been a tolerable vice; for from fuch a Judge a Judge, juftice is also to be had for money. Ambition is violent, and ruines, whilft Covetoufneffe is making a bargain.. The words of his opinion and judgement are for the Kings power. It is pleafing to the nature of man' that others fhould obey his will; and even well framed difpofitions of Princes may easily be perfwaded to a defire of unlimited power from this ground, that thereby they have more opportunities of doing good, the greatest happineffe that man is capable of. For the most oppreffive defignes (which we have fuffered under) the pretences to his Majeftie have ever been the good of his Subjects; His is the fin, that is to judge by the Lawes, and knowes the Lawes are to the contrary, yet puts and confirmes fuch thoughts in his Prince. He that incites another to Arbitrary Government, when his felfe-ends are thereby compaffed, hates him for taking that power he perfwaded him unto.' The writs, those monsters of neceffitie to provide Ships to prevent imminent danger that could not ftay forty daies for the calling of a Parliament, were therefore to goe out in September to have Ships ready in March: These have been adjudged by your Lordships to bee deftructive to the fundamentall laws of this Realm and to the fubjects right of property and liberty, that I shall say concerning them but thus, that this Judge published them to bee infeparable flowers of the Crown. And that wee have lived to fee for five yeares together imminent danger, and to be prevented by them. This Judge did advife to fuch a government as future Kings here might exercise the highest Tyrannies, and the Subjects want the benefit of restraints known to the most flavish Easterne nations where if their Prince doth unjuftly, he hath hatred for it, and the dangers that follow that. This Judge will have that hatred to goe to our good lawes. No fuch bondage as when lawes of freedom are misinterpreted by Judges to make men slaves. For a Judge of Law to give his opinion and advice to his Prince how the lawes the mutuall covenants of Kings and Subjects may be broken: It can bear no other construction, but that his intentions are to have his Prince doe ill, and to make his evill fervants to study wicked defignes: because they see means to put them in execution, by making them to perfwade their Prince, because in imminent danger, his Subjects goods are at his will, that there is fuch danger when there is not: and they only have fome by-ends of their own. A Judge is not to determine what may be done by the King, or what may be done by the fubject in a cause of imminent danger, or in any other where the lawes fet no rule; for what greater offence then for a Judge to deliver his opinion, that if the King fhould intend to give up his people to be de-. ftroyed by foreign forces, for the safety of the people in that imminent danger, a fubject by the Law might take away the King. This Judge will have our Law to be what to him feems reason; when as the reafon limited to him to judge of, is what the common Law and Statutes do fay. For him to judge this or that is Law, else a mischief will follow, is at best for him, but this The Law in fuch a thing is imperfect, therefore he will make a Law to fupply it; or because that the Law written |