Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	bring_v	error_n	writ_n	15,418	5	10.2182	5	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

power or Counsell whatsoever because that in the presence of the most supreme jurisdiction the inferiour ceaseth I do not hereby intend that the power of the Judges in their severall Courts for the dispensation and execution of justice should cease in the Terme for that the Parliament is sitting at the same time And the reason is obvious for that these Courts have their proper and distinct jurisdictions from the Parliament and therefore cannot be superseded by it I intend by this onely that what the Parliament hath declared to be Law cannot as I have said before be countermanded by any other inferiour judgement whatsoever for that where the powers exercise the same jurisdiction they cannot both stand together but the greater will cashere and suspend the lesse so I say in our case But here it may be objected that the King is fons Justitiae that is the fountain of Justice and that he onely as Bracton saith Bract. fo 55. b. Ordinariam habet iurisdictionem dignitatem potestatem super omnes qui in regno suo sunt habet enim omnia iura in manu sua c. And a little after he saith Ea quae iurisdictionis sunt c. ea quae sunt Justitie c. annexa ad nullum pertinent nisi ad Coronam dignitatem Regiam that is those things which appertain to jurisdiction and justice belong to no body but the Crown and royall dignity And as all justice and jurisdiction is primarily and originally in the King so they cannot be exercised by any other except that they be first delegated to them by the King And so saith Bracton a little after Jurisdictiones c. non possunt à privata persona possideri nec usus nec executio iuris nisi hoc datum fuorit ei desuper that is no jurisdiction nor execution of the Law can be exercised by any private person except that this power be first given unto him from the King So Bracton treating of jurisdiction saith Bract. fo 107. ● Videndum c. quis primo principaliter possit debet iudicare that is let us see who first and principally may and ought to judge And then he answereth Sciendum quod ipse Rex non alius si solus ad hoc sufficere possit eum ad hoc virtute sacramenti teneatur astrictus that is we must know that the King onely and no other if he alone may suffice For that he is bound to do it by vertue of his Oath And after in the next Chapter speaking of jurisdiction delegated he saith Bract fo 108. a Si ipse Dominus Rex ad singulas causas terminandas non sufficiat ut levior sit illi labor c. he may saith he Constituere Justiciarios c. quibus referantur tam quaestiones super dubiis quam quaerimoniae super iniuriis c. that is if the King alone cannot suffise to determine all causes that his labour may be the more easie he may constitute Justices to whom as well doubts in Law may be referred as complaints upon injuries And in pursuance of this the King not possibly suffi●ing to exercise all jurisdiction himself hath in all ages delegated power and jurisdiction to a certain number of men and hath constituted them Judges and dispensers of the Law under his Majestie and in his right an 〈◊〉 to his people Now all this being admitted as in truth it cannot be denied the force of the objection stands thus is it so that no jurisdiction can be exercised by any except that it be first delegated to them by the King and that the King hath constituted certain persons to be his Judges of the Law why then it lieth not in the power of the two Houses of Parliament to declare what is Law and what not First because that they are not the proper Judges of it And secondly because that they have no such power given unto them by the King for what power they have it is derived by their Writ by which the King calleth them to Parliament and this onely requireth their presence Super dictis negotiis tractaturis and tractare is onely to treat of or debate the Law not to declare or give judgement what the Law is Besides this word tractare is contained onely in the Writ by which the Lords are summoned to Parliament and not in the Writ of the Commons for by that they are called onely as I remember the Writ is ad faciendum consentiendum to do and agree why then they have no such power to intermeddle with the debating of the Law much lesse to declare what the Law is To which I answer That the two Houses of Parliament conjoyned for I speak not of the power of the House of Commons distinct and by it self may not onely declare what the Law is but are the best and most proper Judges of it Are not they the ne plus ultra that the Subject hath for redresse in matter of Law are not they as common experience teacheth us the supreme Seat of Judicature and do not they exercise a superintendent jurisdiction over all other Courts and have not they power by a Writ of Error brought before them to reverse Judgements erroniously given in other Courts Without doubt they have witnesse that case of the Ship-money which Judgement could not possibly have been reversed but by the Parliament who upon debate declared that Judgement to be against the Law and how miserable this Common-wealth had been if they had not had this power the lamentable successe of devesting of the Subjects property without his consent by that damnable judgement contrary to all Law would have in short time been manifested to the whole world But to this it may be said that in these cases the Judges advise who sit as assistants in Parliament is demanded and that in such case the King by his Judges doth declare what the Law is To this I answer that because the Parliament may demand the advise of the Judges who sit there to that intent will it therefore follow that they are tied to it or having demanded their advise must the consequence be that they are bound to follow it without question nothing lesse for this were to tie my judgement to another mans principles which ought not to be And it were absurd for to think that the Parliament who are the supreme seat of Judicature should be tied to subscribe to the judgement of any inferiour power whatsoever And now I shall put you one case posito that all the Judges of England assembled together in the Chequer Chamber to give judgement in a point of Law should all concurre in their judgements and should give judgement accordingly and after in a Writ of Error brought in Parliament this judgement should be reversed doe not the Parliament onely in this case declare what the Law is Without question they doe for I suppose that there is none so stupid as

to thinke that the Judges advice or judgement ought or can be received in this case for this were upon the matter to appeale à Caesare ad Caesarem and to reverse that Judgement though not by the same power yet by the same advise that gave it which as I conceive by the Law ought not to be But here peradventure it will be againe objected that no Writ of error can be brought in Parliament but that the King first signes to it 1. H. 7. 19 ●… and this is a consent by the King a giving of them power to proceed and declare what the Law is but in our case there is no such thing for here is nothing judicially before them by which to authorise them to give any such judgement and therefore they have no such power to declare what the Law is in this case and if they doe their proceeding is extrajudiciall and arbitrary To this I answer that true it is that they cannot nor ought not to take notice of any thing which concerneth any private persons or their interest neither can they in any such case give Judgement or declare what the Law is except they have something judicially pending before them upon which to ground their judgement but otherwise it is where it concerneth the Common-wealth for there I conceive under favour especially as in this case in time of imminent danger they are not tied to any legall way of proceeding but they may and are bound as well by their Oaths of Alleageance Supremacy and their late Protestation as by their Writ by which they are called to Parliament to take notice of all things which may be obnoxious and prejudicall to the Common-wealth and to debate determine and declare the Law concerning them though that they have nothing judicially before them for if they should in this case expect a complainant the Common-wealth might perish before that they could yeeld any ayde or assistance for the securing of it Now by their Oaths they are bound to defend the King and Kingdome as I have before said and by their Writ they have power and authoritie given them De imminentibus periculis tractare and tractare doth not onely signifie to handle treate of or debate but likewise it signifieth as the learned observe to order to governe to write of or to describe and without question these words have weight sence and power enough in them not onely to inable them to debate what the Law is but also to declare what it is after that it is debated so that I conceive by this it is cleare that the Parliament doe not exercise practise or endeavour any arbitrary way of proceeding And the difference as I concelve upon the whole matter will be this that the two Houses of Parliament cannot as I have shewed before make a new Law or alter the old Law without the consent of the King and this by Act of Parliament but they may declare what the Common Law is and this shall be obliging to his Majestie for otherwise this great Court which so farre transcends all others in other things should be lesse in power in this particular then any other Which ought not to be conceived or imagined Now this being Law which I have delivered as I conceive it is from hence these Conclusions may necessarily and by consequence be deduced First that the declaration of the Law to be otherwise by the Proclamation or other Declaration of the King doth not change the Law for that it is a Rule in the Law that the King can neither create a Law nor alter the Law by his Patent or Proclamation And with this agreeth 49. Ass 37. H. 8. Br. Patents 100. 11. H. 4. 10. H. 7. 5. Rep. 49. Ass Pl. 8. 37. H. 8. Br. Pat. 100. 11. H. 4. 37. 10. H. 7. 23. 5. Rep. fo 55. and many other Books Secondly Hence a good argument may be deduced to prove the Commission of Array at this time illegall for that the King with the advice of his great Counsell the Parliament hath by a tacite and inclusive consent as I have made it good before established the Militia why then clearely it lieth not in his Majesties power without their consent to countermand this by any other Commission for the Rule of Law is that Eodem modo quo quid constetuitur dissolvitur that is every thing ought to be dissolved by a matter of as high nature as it was created and that is the reason that an Act of Parliament cannot be repealed but by an Act of Parliament for that no power or jurisdiction whatsoever is so great as it selfe and it is without question that the Kings power or authoritie by it selfe is not of so high and excellent a nature as it is joyned with his Parliament Wherefore I doe conceive for this reason that the Commission of Array is absolutely unlawfull and therefore ought not to be submitted unto Thirdly and lastly Hence may be concluded that the Kings declaration of the Law to be contrary to what the Parliament have declared the Law to be is Coram non Judice that is by one that hath not jurisdiction of the cause First Because as I have said that the King himselfe cannot declare the Law to be contrary to their judgement for that his Majesties judgement is superseded and bound up in theirs and secondly For that he cannot contradict their judgement by any other advice or judgement for that that advice or judgement is inferiour to the Court of Parliament and therefore in their presence as to this purpose ought to cease And I shall compare this case to one case onely which is in the 10. Rep. in the case of the Marshallsea 10. Rep. fo 7●… the case of Marshallsea where the case is thus The Sheriffe who is prescribed by the Law to hold his Tourne within the Moneth after Mich. c. held his Tourne after the Moneth and tooke an indictment of Robbery at the same Tourne and the Indictment being removed by a Cerciorari into the Kings Bench by the advice of all the Justices the partie so indicted was discharged for that the Indictment was utterly voyde and Coram non Judice because at this time the Sheriffe had no authoritie to hold his Court so I say in this case the Declaration or Proclamation of the King is Coram non Judice for that though the King properly and onely ought to declare the Law by the advice of his Judges at another time yet at this time he cannot for that their judgement is estopped and superseded by the superintendency of the high Court of Parliament Then the Law being thus this justifieth the proceedings of Parliament in punishing of such who dare adventure against Law to execute the Commission of Array or to proclaime or declare any thing in his Majesties name against his owne judgement and the judgement of his Parliament for the Rule of Law is Extra territorium jus dicenti non

provide for the securing of my person and estate from perishing in the common ruine Secondly It is Religion that these cruell barbarous and unheard of Tyrants make for a ground of their horrid Rebellion and what stronger ingagement can there be then this for to incourage and spurre men forward in any desperate designe Especially those of the Popish faction who may have a pardon before-hand for the act they shall commit be it never so desperate And doe we not thinke that this will be a strong incitement to men who conceive themselves tyed in conscience to undertake that which they doe to wade through any misery for the accomplishment of their desired end knowing before-hand that they have a pardon for the most horrid act or attempt that they can doe conducing to the perfecting of the same And then as this obligeth all Nations besides of the Popish partie ought not we to thinke and beleeve that such an opportunitie must of necessitie stimulate them forward to be ayding and assisting to such a designe which will infallibly at the last merit either Heaven or Hell I am confident and it stands with all reason that it should be so for that they have not for a long time praysed be God had the like opportunitie that the Pope with all his adherents are now plotting and contriving with their holy Father the Devill to operate the ruine of the Protestant Religion and shall this ingage them to fight against God under a pretence of being on his side And shall it not invite us who fight for God and his truth which we have so long time happily peaceably through Gods goodnesse enjoyed to prepare our selves and all that we have for the desence of the same To conclude this we who have the greatest part of the world our enemies may justly feare that they are now plotting and contriving that for England that is already acted in Ireland And let us not say that they are at enmitie one with another and therefore are not at leisure to harme us for we may be sure that they will shake hands to doe us a mischiefe according to that in holy Writ of Pilate and Herod who though they were utter enemies one to another yet they were made friends to combine against Christ ●…uke 23. 12. Thirdly and lastly who is able to say that either he or his children shall live to see an end of that bloudy persecution and rebellion and what the successe of it will be True it is that God hath hitherto gone forth with our Armies and hath in an exceeding measure and above all expectation blessed their endeavours and crowned their actions with a happie successe God be praised for it but yet who knoweth whether they shall ever be able to root out this rebellious Tribe I speak not this out of any diffidence of Gods continued favour and goodnesse towards us or to make others mistrust but onely to demonstrate that there is a just cause of feare for who can divine what the event of warre will be Exitus belli incertus that is the issue of warre is uncertain Besides and which brings me to my second ground of our just and dreadfull feares if the distractions of this Kingdome continue which God defend what ayde can they expect from us who are like to be surrounded with the like misery so that their necessitie may cutt them short of their hopes and by this much adde to our feares Secōndly having shewed our just cause of fear which riseth ab extra from our deplorable brethren and neighbours now I shall shew our cause of fear that ariseth ab intra from the unhappy distractions which are risen amongst our selves Who is it that doth not see the sad divisions and generall sidings throughout the Realm which hath grown upon this unhappy division of the King and Parliament which when it will be reconciled God knoweth And if this which adds much to our miserie had not happened we could not before have been secure without a just cause of fear for what divellish plots and fearfull designes have been discovered through Gods mercy and the vigilant eye of the Parliament tending to the destruction of our best birth-right and inheritance the priviledges and freedome of Parliaments Without the continuance of which that which is nearest and dearest unto thee whether it be thy Religion life or liberty what ever it be that thou most blessest thy self withall will then depend upon the Arbitrary will of thy Soveraign so that thou mayest not then stile ought that God hath given thee thy own which heavy judgement I beseech God to divert from this sinfull Land and Nation for we may truly acknowledge that it were just upon us that we who have so much abused Gods blessings should now be deprived of them and that we who have so much abused the freedome of conscience of our laws lives liberties and estates should now be subjected to a perpetuall slavery Now to conclude this likewise divide the Kingdom into foure parts and I am confident that the Papist Newter and Cavalier I might adde likewise the domineering proud Clergy who would fain reduce all things to their late condition who lie perdue and wait for an opportunitie for to bring a speedie destruction upon this Common-wealth will make two parts I think I might without any imputation or prejudice to judgement say three parts of the foure and now put all these things together and I beleeve that no indifferent understanding man but will be forced to confesse that there was and still is a just cause of fear and of putting of the Kingdom into a posture of warre And then the imminent danger being pregnant and demonstrable to all the world the last question is taken away But admitting that it were not prospicuous and visible to all then the question is who is the proper Judge of this imminent danger and I conceive plainly under favour that the Parliament ought to be and no other and my first reason is grounded upon the rule of Law viz. that the Parliament can do no wrong which is warranted by the 9. Rep. the 6. Rep. ● Rep. 106. b. ●07 a. ● Rep. 27. b. ●… a. and many other books And in Pl. Com. it is said Pl. Com. fo 398 that the Parliament is a Court of thrice great honour and justice of which none ought to imagine a dishonourable thing And this I conceive to be grounded upon the Writ of Summons to Parliament which wils that the elections should be De gravioribus discretioribus viris c. of the most grave and discreet men And Fortescue speaking of the Parliament saith Fortes ca. 18. We ought necessarily to think that the Statutes of this Realm are made with great wisdom and prudence Dum non unius aut centum solum consultorum virorum sed plus quam trecentorum electorum hominum quali numero olim Senatus Romanorum regebatur ipsa sunt edita For

paretur impunè he that obeys the command of any power out of its jurisdiction shall be punished for it So I conclude this point also and conceive that for this reason likewise the Parliament hath done no more then what is warranted by the Lawes of the Land Fourthly and lastly I hold that the Parliament have done no more then what is warrantable by Law upon this ground which ought to be the Basis and end of all Law viz. the common good and safetie but of this onely a word for that I have touched it before That Law which is above all Law to which all Law ought to subscribe is Salus Populi the safetie of the people True it is that the Law was made to defend every mans private interest as well as the Republique but primarily and principally the Republique it is the Rule of Law as I have shewed before Quod bonum publicum privato anteferri debet that the publique good ought to be preferred before the private And againe we have another Rule Quod magis dignum trahit ad se quod est minus dignum that the more worthy doth draw to it the lesse worthy and without controversie the magis dignum the more worthy is the Common-wealth why then the minus dignum the lesse worthy which is every mans private concernment must subscribe to that And the reason wherefore the good and safotio of the Republi●que ought principally and in the first place to be maintained and therefore is styled Suprema Lex that is the most supream● Law or if you will a Law above all Lawes is for that as in the naturall body if the body be in health the members must needs be well also and if the body be sicke the members must needs sympathise with it● so it is in the body politique if the body be well the members fare all the better for it if the body be in distemper the members cannot but be distempered also so the happinesse or misery of every individuall person h●●geth upon the good or ill successe of the Common-wealth and therefore the good of the Common-wealth ought to have the first and chie●e endeavour of every true and faithfull member of it In 18. E. 2. which you shall sind cited in the 10. Rep. Keighleyes C. ●8 E. 2. 27. ●0 Rep. 139. b. Keighleyes C. a man brought an Action upon the case against another and the ground of the Action was for suffering of a Wall of the Sea that the Defendant was bound by prescription to repair when need should be ●●repaired so that for default of reparation the water entred and surrounded the lands of the Plaintiffe The Defendant traversed the prescription upon which they were at issue and it was found for the Plaintiffe and that there was a default in the wall for not repairing for which the Plaintiffe recovered his Damages and a Writ was awarded to the Sheriffe to distrain the Defendant to repair the wall where need was ●and d●sault Upon which my Lord Cooke maketh a speciall obseruation Not a Reader saith he this judgement and the reason of it is pro bono publico for the common good For saith he Salus populi est suprema Lex the safetie of the people is the most supreme Law and therefore it is part of the judgement in this Action that the Defendant should be restrained to repair the wall As if he had said this Action is brought by the Plaintiffe for his speciall da●●ification onely and this he hath restored to him by the judgement But yet note for that it concerneth the weal-publique the Judges considering themselves to be tied both in Law and conscience to provide for the securing of the same made this part of their judgement likewise that the Desendant be compelled to repair the same lest in defect of this the Common-wealth should suffer also Here you may see the car● that the Judges then had of the common good It were well that this were pondered on in those dayes in which I doubt men are too ready and prone to prefer their own private concernment in their indeavours I mean their honou● before the publique safetie In Davis Reports Da. Rep. fo 32. b. it is 〈…〉 to the interest of one particular person yet reasonable where it is for the benefit of the Common-wealth in generall as a custome to make Balwarks upon the land of another for the defence of the Realm 36. H. 8. Dyer and to raze houses in publico incendi● in a common fire 29. H. 8. Dyer these cases I have remembred before so to turn the plough up●n the head-land of another in favour of husbandry 21. E. 4. and to drie Nets upon the land of another in favour of fishing and navigation 8. E. 4 36. H. 8. Dyer fo 60● 29. H. 8. Dyer fo 36● 21. E. 4. 28● 8. E. 4. 18. But saith the book a custome which is contrary to the publique good which is the scope and generall end of all Laws for salus populi suprema lex or injurious and prejudiciall to the multitude and beneficiall onely to some particular person such a custome is repugnant to the Law of reason which is above all positive Laws c. Here note that it is said that the Law of reason is above all positive Laws and no doubt but it is for that Law which is against reason is rather a mystery of iniquitie then Law and in truth it is no Law which is not grounded upon the Law of reason For as some will have it the word Lex is derived à ligando quoniam ad observandas leges homines ligat and no question a Law which is unreasonable doth not oblige men to obedience so that it is no Law if it be not warranted by the Law of reason Now to apply this to the case in question the King by his Prerogative ought to have the sole disposing of the Militia the kingdom being in imminent danger the King refuseth to settle it by the advise of his great Counsell for the securing of himself and his people Now the doubt is whether the Parliament may without the consent of the King assume this power to themselves for the securing of his Majestie and his kingdom or whether they ought to subscribe to the Prerogative of the King though it be to the apparent destruction of the Common-weal which of these two is the reasonable Law is the question Why no doubt Salus populi the safetie of the people for these reasons First for that the Law was made for the people and not the people for the Law And secondly for that the whole ought to be preferred before any part wherefore I conclude that it is Suprema Lex the most supreme Law and therefore the Prerogative of the King ought to give way to this and not this to the Prerogative of the King for if you preserve and maintain the common good you preserve and maintain the Kings Majestie his Prerogative your Laws and your selves and if you do otherwise you destroy all And therefore I conclude all with this Non solum conveniens est sed necesse est ut salus populi sit suprema Lex That it is not onely convenient but nenessary that the safety of the people should be the most supreme Law And therefore the Parliament have done that which is agreeable both to Law and reason in preferring of the publique safetie FINIS