Selected quad for the lemma: england_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	bishop_n	king_n	realm_n	4,849	5	8.3375	4	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A89520	An argument or, debate in law: of the great question concerning the militia; as it is now settled by ordinance of both the Houses of Parliament. By which, it is endeavoured, to prove the legalitie of it, and to make it warrantable by the fundamentall laws of the land. In which, answer is also given to all objections that do arise, either directly, or collaterally concerning the same. All which is referred to the judicious reader. by J.M. C.L.	Marsh, John, 1612-1657.; Milton, John, 1608-1674, attributed name.	1642 (1642)	Wing M575; Thomason E119_13; ESTC R18112	46,929	48

faciat universis c. He is created and elected King for this purpose and intent that he may doe justice to all men And what greater act of Justice can there be then for the King to defend his people in peace or what greater act of Justice can there be then for the King at the request of his people represented by the body of Parliament to enact such Lawes which conduce to the maintaining of peace Certainly none And this Bracton seemeth to intimate Bracton fo 10●… Sinon esset qui justitiam faceret pax de facili potest exterminari c. If there were not one who would doe Justice peace might easily be extirminated Here note that he doth not say that our lives Lawes Liberties or Estates for want of Justice might easily be extirminated but our peace by this as it were concentering all Justice in this act of maintaining peace and without question all our happinesse under God consists in the supporting and maintaining of peace for take that away and all things fall to utter ruine and destruction And certainly if it be thus that the greatest act of Justice in the King that can be consists in maintaining of peace and in granting of such Lawes which conduce unto this end without question the denying of this by the King must needs be the greatest act of injustice in the King that can be and by consequence a breach of that trust that is reposed in his Majestie And therefore I doe conceive that at the least in this the King can have no negative voyce and I doe not conceive that the King can have any negative voyce in Parliament in other things for if the King by his Oath and the Law of the Land be obliged to doe Justice as in truth he is and if it be as great an act of Justice in the King as can be not onely justly to dispence the Lawes in esse in being to his people but also to grant such new Lawes unto them as conduce to the well governing of them in peace and happinesse Why then certainly it must of necessitie follow that the King can have no negative voyce but is bound under this heavie sinne of the breach of his Oath and the Lawes of the Land to grant such Lawes as are requested of him by his people But here it may be objected that the King had this Prerogative by the Law that he might have called a Parliament when he pleased and there was no positive Law to the contrary before this Parliament in which the King hath devested himselfe of this power and if before at the request of his people he had not been pleased to grant them a Parliament why this in effect was a denier of Justice for that the King denied the meanes by which it might be obteined and yet this was lawfull for him to doe therefore it will be concluded that by the same reason he may have a negative voyce in Parliament And Cromp. Jur. of Courts saith expressely Cro. Iur. fo 7. b. that when the King doth assent to a Bill then he writes upon the Bill L' Roy veult that is the King will have it so and if he doth not assent then it is indorsed L'Roy advisera that the King will advise here it doth appeare how the King hath a negative voyce allowed him by the Law To this I answer and agree these Prerogatives de facto to be in the King but whether in truth they be such as are compatible and may stand with the Oath and Justice of the King this may be questionable and under favour I conceive that they cannot for that as I have shewed his Oath and the Lawes of the Land ties his Majestie to doe Justice to his people and the granting of new Laws unto them upon their request is an Act of Justice and therefore he cannot denie them without breach of his Oath and the Lawes of the Land and by consequence these prerogatives are not compatible with the Oath and Justice of the King and though peradventure the Law may dispence with it selfe yet it cannot with the Oath of the King Wherefore I conceive notwithstanding this objection that the King can have no negative voyce but of this onely by the way And is it thus that the King hath made a breach of that trust reposed in him by God and his people as in truth I have cleered it unto you then none so proper to supply this defect in his Majestie by the disposing of the Militia for the defence and protection of the King Kingdome as the Parliament who are at this time entrusted under God not onely with our esse with our being but with our bene esse with our well-being also But here it may be objected that the King derives his Crowne and regall power from God and that therefore he is responsible to God alone for his actions and not to man To this I answer that it is a most strange Episcopall and illegall objection for what is this but the attributing of a power to the King above Law and the giving of him such a prerogative that should not be subject to those Constitutions which his predecessors before him had been and though it should be admitted that as all power is derived originally from God so especially this yet it doth not follow that it was therefore conferred by an extraordinary and immediate hand of God as it was upon Saul and David 1 Sam. 9. 24. yet they likewise were confirmed and approved by the people as you may reade in holy Writ Besides Saul and David lived not under any Municipall or positive Constitutions of men which they were bound to maintaine and observe as the King of England doth and therefore it must needs be that their power must be more absolute which was not circumscribed within the bounds and limits of any humane Lawes But now the Kings of England having subjected themselves to the Law of the Land and received their Crownes with that trust and tacite condition of defending of the Lawes lives and liberties of their Subjects the Law were idle and vaine if there should be none that should have this power for the breach of this trust by his Majestie to interpose for the securing of him his Lawes and people And if this divine prerogative which the Bishops doe so buzze into the Kings eares should be admitted I would faine know what difference would be made betwixt an absolute Monarke and the King of England and cleerely this was never reputed for other nor can be the Crowne being subject to the Law as well as the people then a mixt Monarchy but I shall conclude this that they who so much defend and exalt this divine prerogative would in the conclusion if they might have their way upon the same ground advance the Miter above the Crowne God open the Kings eyes that he may see and acknowledge himselfe subject to the Lawes and may rule his

c. the King hath his Court to wit Earles Barons c. and Fleta lib. 2. ca. 2. 〈◊〉 li. 2. ca. 2. Habet etiam Rex Curiam suam in Consilio suo in Parliamentis suis c. the King hath his Court in his Counsell in his Parliaments c. and Crompton in his Jurisdiction of Courts ●…p ●ur d' ●…s fo 1. 2. begins with the description of the high Court of Parliament giving it the precedency in act as well as in words where he saith that the said Court is L'treshaulte Court d' Engliterre that is the thrice high Court of England in which saith he the Prince himselfe sits in person c. And I shall conclude this with Dyer who saith Dyer fo ●… that this Court of Parliament is the highest C●u●t and hath more priviledges then any other Court of the Realme c. And all this is made cleare without further saying by this that no ●ppeale lyeth from this Court no reversall of their judgement but by the judgement of a subsequent Parliament Then this being admitted that the Parliament is the greatest Court in England I shall argue thus is the King by intendment of Law present in all his other inferiour Courts as in truth he is as 21. H. 7. and 2 3. Eliz. Dyer 21. H. 7. f● 2. 3. Dyer fo 1●… and many other books are which certainly is the reason of the heavy judgement of these cases of killing of a Judge upon the Bench that that is Treason Or of drawing of a sword to strike a Justice sitting in judgement or of striking of a Juror in the presence of Justice that these incurre the heavy judgement of cutting off the right hand perpetuall imprisonment and the losse of lands and goods as the books are of 22. E. 3. and F. Judgement 174. 22. E. 3. ●… Fitz. Ju●… 174. or of killing of a Messenger of the King that goeth to execute his commandment that this likewise is Treason as the book is in 22. Ass 22. Ass P●… I say I conceive that the reason of these cases is for that he that offers violence to his Minister when he is doing the service of his great Master the King offers violence to the King himself whose person he represents and who by intendment of Law is there present giving judgement and he that strikes another in the presence of Justice doth it as in the presence of the King himself for that what the Judge or Minister of the King doth in pursuance of the lawfull commands of the King or in executing Justice is the act or judgement of the King himself according to that rule of Law Qui per alium facit per seipsum facere videtur the act of a mans minister or servant is the act of the Master himself And this Bracton himself saith Bract. fo ●… treating of jurisdiction delegated by the King to inferiour Judges and withall shewing and directing of those Judges Delegates to execute righteous judgement saith he Tale judicium diligit honor Regis cujus p●rsonam in judicio judicando representant Such a judgement the honour of the King delights in whose person in judgement they represent Why then I say is it thus that the King by intendment of Law is present in all his other Courts and that what they do or judge is the act or judgement of the King himself then certainly it must of necessity follow as indeed the Law is that their judgement cannot be counte manded by the King for this were to put Caesar against Caesar the King against himself which cannot be for that when a Judge hath once given his judgement he cannot afterwards countermand this judgement Again is the King as I have said by intendment of Law present in his inferiour Courts and is their judgement his judgement so that by this his Majestie is estopped and concluded by his own inclusive judgement to countermand theirs Then I say a fortiori the King though he disunite himself from his Parliament yet by intendment of Law and virtually he is present in his high Court of Parliament and therefore their judgement is his judgement and what they declare to be Law the King by an inclusive judgement declareth to be Law also And if so the conclusion must of necessity be that the King can no more countermand their judgement then he can the judgement of his Judges for when Transit in rem judicatam that is when a thing is once adjudged it can never after be repealed by the same judgement as I have said for that were a way to make judgement upon judgement and so ad insinitum insinitum in iure reprobatur the Law detests infinites And as the King himself cannot repeal this judgement pronounced by his Parliament so neither can he do it by any other advise or judgement power or jurisdiction whatsoever no not by the advise though of all the Judges of England for that there is no power or judgement whatsoever but is inferiour to the judgement of the high Court of Parliament which is plain by that that no appeal lieth from them and then the rule of Law binds up and supersedeth all inferiour judgements In presentia maioris cessat potestas minoris In the presence of the great the power of the lesse ceaseth And therefore according to this rule it is resolved in 21. Ass Ass Pl. 1. that because that the Kings Bench is Eier and more then Eier if a Commission of Eier sit in a County and the Kings Bench cometh thither the Eier ceaseth And this is the reason that when it was enacted by the Statute of 28 E. 1. 〈…〉 1. ca. 5. that the Kings Bench should follow the King that the power of the Steward of the Kings Houshold to determine Pleas of the Crown did cease and that in Terme time when the Kings Bench sits in the same County all Commissions cease as it is resolved in the 10. Rep. and in the 9. Rep. ●… Rep. fo 73. ●… Rep. fo b. And this is the reason likewise that when the Pope exercised jurisdiction here in England whatsoever the Ordinary of any Diocesse might do that the Pope who challenged to himself supreme jurisdiction over all Ordinaries used to do within this Realm as supreme Ordinary and so he used to make Visitations corrections dispensations and tolerations within every Diocesse of this Realm as the Ordinaries used so he used to make Appropriations without the Bishop and this was held good and was never contradicted by the Bishop who was accounted but the inferiour Ordinary Upon this ground as it is said by Manwood Justice in Pl. Com. ●… Com. fo ●… a. In presentia maioris cessat potestas minoris So I say in the case in question for that the high Court of Parliament are the most supreme jurisdiction in England what they declare to be Law cannot be countermanded by the judgement of any