Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	judge_n	king_n	law_n	5,155	5	5.2571	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A88684	Considerations touching the great question of the King's right in dispensing with the penal laws Written on the occasion of His late blessed Majesties granting free toleration and indulgence. By Richard Langhorn, late of the Middle Temple, Esq;	Langhorne, Richard, 1654-1679.; Langhorne, Richard, fl. 1687.	1687 (1687)	Wing L396A; ESTC R229629	25,471	35

our Inland Trade had been destroyed For Proof of their Affirmative to the Second Question they say I. It is proved by the Fifth Sixth and Eighth Grounds before layd II. To deny this would be to Charge our Laws with the highest defect imaginable for to grant as they do That the Law hath provided a Fountain of Mercy always visible and in being to take care of private and particular Persons and to dispense with Penal Laws as to such when Necessity requires and to deny that the Law hath provided any Fountain of Mercy always visible and in Being to take Care of the Publick and to provide for the Safety of the People when Necessity requires would be to charge our Law with a greater defect than ever any yet charged it with III. That if no such Power had been all Navigation as to Trade must have totally or at least for a great part have ceased during this present War for want of Mariners and all our Inland-Trade must have ceased from the time of the making of the Act touching Cart-Wheels for want of Carriages and De Witts designs for ought we know might have been effectual to have engaged us in a New War at home and to have Provoked our Non-Conformists into a Rebellion in which they would most certainly have been assisted with all necessaries from Holland for the rescuing themselves from the Inconveniencies which they pretend they lye under from the Penal Laws made against them if there had not been a Visible Power in Being to avoid the Danger then threatning us and not foreseen by the Law-makers by suspending the Execution of those Laws For Proof of their Affirmative to the Third Question and what they hold therein they say I. It is proved by the Ninth Tenth and Eleventh Grounds before layd II. There is no other Power always visible and in being which doth or can pretend with any colour of Reason to have this Right besides the King alone III. To place this Power in any other without the King would be to make that other King. And to place it any where then in the King alone so as to make some others to be sharers in this Power were to make those others to be sharers in the Highest Act of Soveraignty and consequently sharers in the Crown which would be wholly to change our Government and to alter our Laws and consequently to subvert all our Liberties and Properties which cannot be safe if any Principles be admitted in alteration of our Laws and Government And it is for this Reason that the King cannot commit the power of his Mercy concerning any Penal Statute to his Subjects Coke lib. 7. fol. 37. IV. Our Kings have always used this Power and our Judges approved the Exercise thereof to be agreeable with our Laws as is proved in the Grounds before layd And though it be true that some Ancient Laws seem suspended by a dis-usance and a seeming tacite Consent of the whole Kingdom King Judges and People yet that was in truth the suspension of the King alone For those Laws were when once made the King's Laws and the King was the only Person trusted with them he might have put them in Execution and commanded his Judges to see them put in Execution if he had pleased and his Judges would not have taken upon them to say That they the Judges or That the People had thought fit to suspend them by common consent and therefore they stood Suspended In short those who do maintain these Affirmatives in all these Questions and insist upon the Grounds and Rules before layd do for farther clearing of the matters in debate humbly offer the following Cases to Consideration as concieving the Solutions of them may settle the Point I. Suppose a Distress taken upon that Branch of the Statute of 14. Car. 2. cap. 6. which relates to the breadth of the Weels of Carts and Waggons and the Execution of which Branch was suspended by His Majesties Proclamation Would the Judges justifie this Distress or not If they did in pursuance of the Statute and dis-ailowance of the Power of Suspension the Consequences would be That they would hereby destroy the greatest part of In-Land-Trade of the Kingdom If they did not allow the Distress but agree the Act to be lawfully Suspended by the King's Proclamation issued forth in a Case where so great a Necessity required for the Publick Good Then all the three Affirmatives upon the aforesaid Questions are settled with this Addition That the King may dispense with a Malum Prohibitum though it be as it is in the Case put adjudged by Act of Parliament a Common Nusance And may dispense with a Penal Law though the Forfeitures as they are in the Case put be not given to the King but to others as in this Case to the Surveyors of the High-Ways the Poor and the Prosecutor But if the Judges in this Case as it is here put to avoid the difficulty should refuse to allow the distress upon some other Reason as rather taking upon themselves to adjudge the Act of Parliament as to this particular Branch to be void then to allow the King to have Power to Dispense with what an Act of Parliament adjudgeth to be a Common Nusance though the whole Kingdom believes that his Majesties said Proclamation was the sole Cause why there was never any Execution of that Law And that no man was ever prosecuted upon that Branch because all men generally admitted that the King had dispensed with it and had a power so to do And consequently That the Judges never had an Opportunity to Repeal it by their Judgment yet if the Judges should in this Case proceed this latter way or any other way rather then to Affirm the King 's Right for Reasons best known to themselves there would be then no more gained by this Case then A Law may be made by the Legislative Power which may be very inconvenient to the whole Kingdom And that in such Case there must necessarily be a Power somewhere either to suspend its Execution or to Repeal it totally by adjudging it to be Void And then the next Case proceeds thus II. Suppose a Law made under the penalty of 100 l. to the Prosecutor to his own Use That none shall serve His Majesty either in his Navies at Sea or in his Armies at Land or bear Arms in the Militia in any County except he first take the Oaths of Supremacy and Obedience And take the Sacrament of the Lord's Supper according to the Form used in the Church of England And Abjure Transubstantiation This Law being made Suppose France and Holland should Unite their Forces and make a present War upon His Majesty And the more to distract us and raise Divisions amongst us should publish their Placaet and promise a general Toleration to all in England in point of Religion and the Enjoyment of their Ancient Laws if the People of England will sit still and not take up

Exercise of his said Power yet his continual Exercise of the same Right in the other last mention'd Cases makes it evident that it is only a wavior in this single Case in particular Circumstances and upon such Advice as that he still nevertheless thinks it most reasonable and legal to continue the Dispensations by which his Majesty hath Suspended those other Laws And it were Injurious to the Care and Wisdome of his Majesties Great Counsel and to the providence and foresight of his Counsel Learned the Judges to conceive that they do not take the Execution of those other Laws to stand well Suspended by his Majesties respective Proclamations by which they stand Suspended whilst yet they have not complained of those Suspensions nor prepared or advised the preparing of any Bills to be offered to his Majesty for the Repealing or Suspending of those Laws by Act of Parliament Object XI That all our present Judges have expresly declared their unanimous Opinion in the very point by giving in Charge the Laws intended to be Suspended by his Majesties late Declaration which hath been the Occasion of the Publick Debates touching this matter albeit the said Declaration did expresly affirm the said Suspension to be for Publick-Good Answ The Proceedings of our Reverend Judges are always Regulated by prudent but strict Rules and those Rules relate as well to matter of Form as to matter of Substance This our Law requires and by their Oaths they are bound up to proceed according to Law which is the true reason why many Judgments given in our several Courts are afterwards reversed in Cases otherwise very honest and just Learned Men have been often heard to wish that Matters of Form might be less Considerable in our Laws And that our Judges of every Court of Law had also a Power to Consider and Judge also of Equity in all Cases coming before them It seeming very harsh to such as do not throughly grasp the Reasons of things to hear it said that an honest just Cause was lost for matter of Form or because of the Errror or Ignorance of a Clerk And that Law in such a Case is one way and Conscience and Equity another way And these things seem often times in particular Cases to be very mischievous But when it shall be consider'd That this way of being tyed close even by an Oath to strict Rules is that which preserves us from Arbitrary Judgments and keeps all things Certain and that many particular Mischiefs are rather to be tolerated then the great and common Inconveniencies endured of Trusting any Judges whatsoever with an Arbitrary Power And that for the Relieving even of particular Persons against such mischiefs as may happen from the Close Observance of these strict Rules our Government hath appointed Courts of Equity No one can reasonably Complain that they are hurt or Injured Now it is conceived that the reason of this way of proceeding in our Judges in the Poynt objected was not that they judged the King to have no Power to Dispence with Penal Laws for the Publick-Good and when Necessity and Reason of State required but they were tyed up by their Oaths as is before-mention'd And consequently were bound not only to consider the substantial part whether by the King 's sole Power the Execution of Penal Laws upon Grounds warranted by Law might be Suspended But they were also to Consider the Form and Manner of the King 's Executing of this Power And if the same were not done in such manner as the Rules of Law required they could not legally be so bound by it as to be Excused from giving those Statutes in Charge though they might otherwise have a Liberty so far to comply with the Publick-Good and with what the King whom the Law hath constituted Judge of what is so judged to be necessary for the Publick-Good as not rigorously to compell the Execution of what they were nevertheless bound by their Oaths to give in Charge And this is conceived to be the true State of the present Case urged in the Objection which rightly understood makes nothing against the King's Right here affirmed and justifies the Prudence and High Integrity of the Lords the Judges The King found it absolutely necessary for Common-Good being to Engage in a most necessary War to suspend the Execution of several Penal Laws The Resolution taken in the Case was upon serious Debates had with his Ministers of State it being purely an Affair of State consequently his Majesties Counsel of Lawyers were not consulted in the Poynt it not being within their Cognizance to Advise in Affairs of State such as are the making of Peace or War c. Nor do they think themselves disparaged in being omitted out of Consultations of this nature The King upon this Advice resolves upon the thing as necessary and finding in common practice That it was not to be doubted but that he had a Power inherent in him to do this His Majesty having formerly Exercised this Right in the aforesaid Cases of Suspending the Execution of several Laws made in Relation to Cart-Wheels French-Wines c. In all which his Counsel of Lawyers had prepared and drawn up the Instruments by which the same were Suspended and no Complaint or Exception was ever taken against the same by any of the Judges or by the Parliament The form of doing this was by his Majesty left to his Ministers of State because it being matter of State it lay most properly within their Sphere to express the Reasons which were therein to be set forth for the doing what was to be done These States-men being solely used to consider matter of Substance and being mere Strangers to matters of Form and consequently not reflecting upon matter of Form as necessary drew up the Instrument by which this Suspension was to be Executed by the way of a Declaration and thought the passing of that Declaration in Council by his Majesty and the Publishing the same in Print being in their Judgments the sole matter of substance was all that was necessary in this Affair But it happened in this Case that for want of Advising with his Majesties Attorney General by whom those Instruments were prepared which suspend the Execution of those other Laws there was something amiss in this So that it came not so Legally and in such Form to the Judges as those others did consequently they could not by reason of their Oaths omit to give in Charge the Laws intended to be suspended by this Declaration Yet they took care like most prudent Persons and most Loyal and Dutiful Subjects not to press the rigorous Execution of any one of those Laws because the King had declared his Royal Judgment That the Execution of them was to the prejudice of Common-Good Nor yet did they proceed to declare any Reason why they continued to give the same in Charge nor to declare any Negative Opinon that the same were not Suspended But left all men to conjecture