Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	case_n	error_n	reverse_v	5,017	5	12.8782	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obvious for that these Courts have their proper and distinct jurisdictions from the Parliament and therefore cannot be superseded by it I intend by this onely that what the Parliament hath declared to be Law cannot as I have said before be countermanded by any other inferiour judgement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

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