Selected quad for the lemma: cause_n
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A41308
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Patriarcha, or, The natural power of Kings by the learned Sir Robert Filmer.
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Filmer, Robert, Sir, d. 1653.
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1680
(1680)
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Wing F922; ESTC R29832
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53,082
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156
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according to the Rules and Presidents of Antient Times And where Presidents have failed the Judges have resorted to the General Law of Reason and accordingly given Judgment without any Common Law to direct them Nay many times where there have been Presidents to direct they upon better Reason only have Changed the Law both in Causes Criminal and Civil and have not insisted so much on the Examples of former Judges as examined and corrected their Reasons thence it is that so no Laws are now obsolete and out of use and the Practice quite contrary to what it was in Former Times as the Lord Chancellor Egerton proves by several Instances Nor is this spoken to Derogate from the Common Law for the Case standeth so with the Laws of all Nations although some of them have their Laws and Principles Written and Established for witnesse to this we have Aristotle his Testimony in his Ethiques and in several places in his Politiques I will cite some of them Every Law saith he is in the General but of some things there can be no General Law when therefore the Law sqeaks in General and something falls out after besides the General Rule Then it is fit that what the Law-maker hath omitted or where he hath Erred by speaking Generally it should be corrected or supplyed as if the Law-maker himself were Present to Ordain it The Governour whether he be one Man or more ought to be Lord over all those things whereof it was impossible the Law should exactly speak because it is not easie to comprehend all things under General Rules whatsoever the Law cannot Determine it leaves to the Governours to give Iudgment therein and permits them to rectifie whatsoever upon Tryal they find to be better than the Written Laws Besides all Laws are of themselves Dumb and some or other must be trusted with the Application of them to Particulars by examining all Circumstances to pronounce when they are broken or by whom This work of right Application of Laws is not a thing easie or obvious for ordinary capacities but requires profound Abilities of Nature for the beating out of the truth witness the Diversity and sometimes the contrariety of Opinions of the learned Judges in some difficult Points 10 Since this is the common Condition of Laws it is also most reasonable that the Law-maker should be trusted with the Application or Interpretation of the Laws and for this Cause anciently the Kings of this Land have sitten personally in Courts of Judicature and are still Representatively present in all Courts the Judges are but substituted and called the Kings Justices and their Power ceaseth when the King is in place To this purpose Bracton that learned Chief Justice in the Reign of Henry the Third saith in express terms In doubtful and obscure points the Interpretation and Will of our Lord the King is to be expected since it is his part to interpret who made the Law for as he saith in another place Rex non Alius debet Iudicare si Solus ad id sufficere possit c. The King and no body else ought to give Iudgment if He were able since by vertue of his Oath he is Bound to it therefore the King ought to exercise Power as the Vicar or Minister of God but if our Lord the King be not able to determine every cause to ease part of his Pains by distributing the Burthen to more Persons he ought to chuse Wise men fearing God c and make Iustices of them Much to the same purpose are the words of Edward the First in the beginning of his Book of Laws written by his appointment by Iohn Briton Bishop of Hereford We will saith he that our own Iurisdiction be above all the Iurisdictions of our Realm so as in all manner of Felonies Trespasses Contracts and in all other Actions Personal or Real We have power to yield such Iudgments as do appertain without other Process wheresoever we know the right truth as Iudges Neither may this be taken to be meant of an imaginary Presence of the King's Person in His Courts because he doth immediately after in the same place severally set forth by themselves the Jurisdictions of his Ordinary Courts but must necessarily be understood of a Jurisdiction remaining in the King 's Royal Person And that this then was no New-made Law or first brought in by the Norman Conquests appears by a Saxon Law made by King Edgar in these words as I find them in Mr. Lambert Nemo in lite Regem appellato nisi quidem domi Iustitiam consequi aut impetrare non poterit sin summo jure domi urgeatur ad Regem ut is Onus aliqua ex parte Allevet provocato Let no man in Suit appeal to the King unless he may not get Right at home but if the Right be too heavy for him then let him go to the King to have it eased As the Judicial Power of Kings was exercised before the Conquest so in those setled times after the Conquest wherein Parliaments were much in use there was a High-Court following the King which was the place of Soveraign Justice both for matter of Law and Conscience as may appear by a Parliament in Edward the First 's time taking Order That the Chancellour and the Iustices of the Bench should follow the King to the end that He might have always at hand able men for His Direction in Suits that came before Him And this was after the time that the Court of Common-Pleas was made Stationary which is an Evidence that the King reserved a Soveraign Power by which he did supply the Want or correct the Rigour of the Common Law because the Positive Law being grounded upon that which happens for the most part cannot foresee every particular which Time and Experience brings forth 12. Therefore though the Common Law be generally Good and Just yet in some special Case it may need Correction by reason of some considerable Circumstance falling out which at the time of the Law-making was not thought of Also sundry things do fall out both in War and Peace that require extraordinary help and cannot wait for the Usual Care of Common Law the which is not performed but altogether after one sort and that not without delay of help and expence of time so that although all Causes are and ought to be referred to the Ordinary Processe of common Law yet rare matters from time to time do grow up meet for just Reasons to be referred to the aid of the absolute Authority of the Prince and the Statute of Magna Charta hath been understood of the Institution then made of the ordinary Jurisdiction in Common Causes and not for restraint of the Absolute Authority serving only in a few rare and singular Cases for though the Subjects were put to great dammage by False Accusations and Malitious Suggestions made to the King and His Council especially during the time of King Edward the Third whilst he
was absent in the Wars in France insomuch as in His Reign divers Statutes were made That provided none should be put to answer before the King and His Council without due Processe yet it is apparent the necessity of such Proceedings was so great that both before Edward the Third's days and in his time and after his Death several Statutes were made to help and order the Proceedings of the King and his Council As the Parliament in 28. Edw. 1. Cap. 5. did provide That the Chancellour and Iustices of the King's Bench should follow the King that so he might have near unto him some that be learned in the Laws which be able to order all such matters as shall come unto the Court at all times when need shall require By the Statute of 37. Edw. 3. Cap. 18. Taliation was ordained in case the Suggestion to the King proved untrue Then 38. Edw. 3. Cap. 9. takes away Taliation and appoints Imprisonment till the King and Party grieved be satisfied In the Statutes of 17. Ric. 2. Cap. 6. and 15. Hen. 6. Cap. 4. Dammages and Expences are awarded in such Cases In all these Statutes it is necessarily implyed that Complaints upon just Causes might be moved before the King and His Council At a Parliament at Glocester 2. Ric. 2. when the Commons made Petition That none might be forced by Writ out of Chancery or by Privy Seal to appear before the King and His Council to answer touching Free-hold The King's Answer was He thought it not reasonable that He should be constrained to send for His Leiges upon Causes reasonable And albeit He did not purpose that such as were sent for should answer Finalment peremptorily touching their Free-hold but should be remanded for Tryal thereof as Law required Provided always saith he that at the Suit of the Party where the King and His Council shall be credibly informed that because of Maintenance Oppression or other Out-rages the Common Law cannot have duly her Course in such case the Council for the Party Also in the 13 th year of his Reign when the Commons did pray that upon pain of Forfeiture the Chancellour or Council of the King should not after the end of the Parliament make any Ordinance against the Common Law the King answered Let it be used as it hath been used before this time so as the Regality of the King be saved for the King will save His Regalities as His Progenitors have done Again in the 4 th year of Henry the Fourth when the Commons complained against Subpoena's and other Writs grounded upon false Suggestions the King answered That He would give in Charge to His Officers that they should abstain more than before time they had to send for His Subjects in that manner But yet saith He it is not Our Intention that Our Officers shall so abstain that they may not send for Our Subjects in Matters and Causes necessary as it hath been used in the time of Our Good Progenitors Likewise when for the same Cause Complaint was made by the Commons Anno 3. Hen. 5. the King's Answer was Le Roy s'advisera The King will be advised which amounts to a Denyal for the present by a Phrase peculiar for the Kings denying to pass any Bill that hath passed the Lords and Commons These Complaints of the Commons and the Answers of the King discover That such moderation should be used that the course of the common Law be ordinarily maintained lest Subjects be convented before the King and His Council without just cause that the Proceedings of the Council-Table be not upon every slight Suggestion nor to determine finally concerning Free hold of Inheritance And yet that upon cause reasonable upon credible Information in matters of weight the King's Regallity or Prerogative in sending for His Subjects be maintain'd as of Right it ought and in former times hath been constantly used King Edward the First finding that Bogo de Clare was discharged of an Accusation brought against him in Parliament for that some formal Imperfections were found in the Complaint commanded him nevertheless to appear before Him and His Council ad faciendum recipiendum quod per Regem ejus Concilium fuerit faciendum and so proceeded to an Examination of the whole Cause 8. Edw. 1. Edward the Third In the Star-Chamber which was the Ancient Council-Chamber at Westminster upon the Complaint of Elizabeth Audley commanded Iames Audley to appear before Him and His Council and determin'd a Controversie between them touching Lands contain'd in the Covenants of her Joynture Rot. Claus. de an 41. Ed. 3. Henry the Fifth in a Suit before Him and His Council for the Titles of the Mannors of Seere and S. Laurence in the Isle of Thenet in Kent took order for the Sequestring the Profits till the Right were tryed as well for avoiding the breach of the Peace as for prevention of waste and spoil Rot. Patin Anno 6. Hen. 5. Henry the Sixth commanded the Justices of the Bench to stay the Arraignment of one Verney of London till they had other commandment from Him and His Council because Verney being indebted to the King and others practised to be Indicted of Felony wherein he might have his Clergy and make his Purgation of intent to defraud his Creditors 34. Hen. 6. Rot. 37. in Banco Regis Edward the Fourth and His Council in the Star-Chamber heard the Cause of the Master and Poor Brethren of S. Leonards in York complaining that Sir Hugh Hastings and others withdrew from them a great part of their living which consisted chiefly upon the having of a Thrave of Corn of every Plough-Land within the Counties of York Westmerland Cumberland and Lancashire Rot. Paten de Anno 8. Ed. 4. Part 3. Memb. 14. Henry the Seventh and His Council in the Star-Chamber decreed That Margery and Florence Becket should Sue no further in their Cause against Alice Radley widow for Lands in Wolwich and Plumstead in Kent for as much as the Matter had been heard first before the Council of King Ed. 4. after that before the President of the Requests of that King Hen. 7. and then lastly before the Council of the said King 1. Hen. 7. What is hitherto affirmed of the Dependency and Subjection of the Common Law to the Soveraign Prince the same may be said as well of all Statute Laws for the King is the sole immediate Author Corrector and Moderator of them also so that neither of these two kinds of Laws are or can be any Diminution of that Natural Power which Kings have over their People by right of Father-hood but rather are an Argument to strengthen the truth of it for Evidence whereof we may in some points consider the nature of Parliaments because in them only all Statutes are made 12. Though the Name of Parliament as Mr. Cambden saith be of no great Antiquity but brought in out of France yet our Ancestors the English Saxons had a Meeting which they