Selected quad for the lemma: judgement_n
Text snippets containing the quad
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A93661
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A view of a printed book intituled Observations upon His Majesties late answers and expresses.
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Spelman, John, Sir, 1594-1643.
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1643
(1643)
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Wing S4941; Thomason E245_22; ESTC R6700
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54,336
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47
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their consent and advice of the Lords shall deeme to be just and fit And this power or rather trust they derive from the people their Electors yet not without dependance on the King The Knights are sent by the County but the County had power and command by the Kings Writ to send them And as for the Burgesses their trust or power call it what you will doth more especially referre unto the King as the author thereof for whence had the elected Burgesses their power but from the Borough that sent them whence had the Borough power to send but from the King who by his Letters Patents incorporated them into a Borough and gave them power to send Burgesses to the Parliament which otherwise they had no more right to doe then any other vile whatsoever And this is the ground of that power which the house of Commons have as concerning the generalty of the Kingdome And besides this the house of Commons although a great and honourable Assembly yet of themselves as I think they are no Court either of Record or of ordiâ—ary Iustice unlesse it bee with respect to their owne Members which is rather a necessary priviledge then any power They can neither administer an Oath nor give any judgement twixt party and party nor have they power to controll or reverse a judgement given in the meanest pipowder Court I speak not this with a minde to derogate from the due honour of that Assembly but to occasion some friendly brother if I am in errour to instrâ—ct me how the imposing of the Protestation by order of the Commons only upon all the subjects in generall under a penalty of being branded with malignancy and adjudged unfit to beare any publike office may be defended How that order for levelling Chancels and making other alterations in the Church which issued from the Commons without the King and in opposition to the Lords may be justified either by reason or president How that Remonstrance a chiefe meanes of all our succeding dissentions that was voted with so much opposition in their owne house and was after published I will not say to disaffect the people from his Majesties government may be defended and justified In briefe may I be instructed with some grounds by which these and many other their actions and Votes may be warranted I shall thenceforth acknowledge them whom now perhaps by mistake I think to be no Court at all to be the most supreme Iudicatory both for Law and State In the meane while I am ignorant of any trust they have other then a trust from the people to consult and assent to the King and Lords in the making of Lawes which without the consent of the Lords and his Majesties concurrence is altogether uselesse and of no vertue And in them apart I know no Iurisdiction but with respect to their owne Members and surely that such as it is they have from the Crowne the fountaine of all Iustice and the spring head of all Iurisdiction The house of Peeres considered simply have power by assent or disassent to enable or disable the making or repealing of any Lawes and generall Ordinances but without the concurrence of King and Commons this of it self is of no use They are likewise an high Court of Iudicatory in respect of particular causes orderly brought before them having Iurisdiction in many though not in all Cases In criminall causes concerning life and member I think they have not Iurisdiction without the Kings speciall Commission and therefore they cannot attaint any man for treason murder or felony They are not only a Court of Iustice but of Record they may take a recognizance and by the Kings Writ or Commission may reverse for errour the Iudgements given in any of the ordinary Courts But all these powers as likewise their Baronies by reason of which they have place and vote in Parliament are immediately and meerely derived from the Crowne the fountaine of all honour and jurisdiction and they doe so necessarily depend upon the King in matters of Iudicatory as that in iudgement of law they speak ove bouch le Roy mesme Thus much concerning the Lords and Commons apart from the King The King alone he is Capitalis Angliae Iusticiarius the fountaine of all Iurisdiction and above all other Iurisdictions Britton speaking in the person of King E. 1. nous volousque nostre jurisdiction soit sur touts jurisdictions in nostre royalme By the law of Nations and by the very end of Regall power the King is to iudge the people 1 Sam. cap. 8. Give us a King to judge us vers. 20. We will have a King over us that we also may be as the Nations and that our King may judge us Bracton tels us That the King alone if he could suffice ought to judge the people and that by his Oath he is bound thereunto And as the ordinary iuridicall power is supreme and originally in the King so likewise is the legislative it being a principall end of Regall authority dare jus populo which power was in Kings by the law of nature while they governed the people by naturall Equity long before either municipall lawes or Parliaments had a being Before Moses there were no standing municipall lawes or at least not before Pharoneus long before which there were Kings of Sâ—itâ—â—â— Assyria Egypt c. who according to naturall Equity gave law unto their people Rhemo cum fratre Quirinuâ— jura dabat Hoc Priami gâ—stamen erat â—um jura vocatiâ— Mâ—râ— dâ—ret populâ—â— But their lawes they so gave ought to bee agreeable to naturall Equity aiming no lesse at the good of the people then of themselves Such conditions and limitations as are agreeable to naturall Equity Kings by the divine institution were bound to observe and some by their voluntary Oaths for themselves and their successours many times bound themselves to more strict limits then were absolutely requisite yet being agreeable to Equity and consistent with Royalty ought to be observed And thenâ—e it is according to the severall degrees that the latitude of naturall Equity doth admit in giving lawes that some Kings are more strictly limiâ—ed then others and according to the oaths and promises made by the King of this Realme they can neither give nor repeale any law but â—ith the assent of the Peeres and people The Observaâ—or doth not deny the Legislative power to bee in the King but saith he partly in the King partly in the Kingdom which I shall admit to be true in this sence viz. that the Legislative power is not so in the King onely as that he being sole can either in ordinary or extraordinary cases make or alter any Law for thereunto is necessarily required the assent both of Lords and Commons But yet to speak properly the Legislative power is solely in the King although not in the King being sole Rex solus legislator non si solus the assent of
omnia jura in scrinio pecttoâ—s sui And yet as the government of this Kingdome is now setled the King cannot make void or vertulesse the setled Courts of Justice and thereby draw all things to a determination within his owne breast And if any cause shall come before him as a Judge to determine yet he hath a rule to follow and that 's the Law not his will which Law in respect of the King hath somewhat more then a directive force restrayning him and disabling him to goe against it so that he can doe no wrong The Lawes are made by the Kings power with the peoples or Parliaments assent which is a superiour power or rather the same power in a higher degree or extent to the Regall power alone and withâ—â—â—â— their assent And therefore the Regall power out of Parliament cannot change nor alâ—â—â— the Lawes and Ordinances made in Parliament but is bound by them as being made by a superiour power whence it is that Bracton every where affirmes the Law to be above the King solely And by this superiour power that is by the King with the assent of his people or Parliament were the ordinary Courts of Justice founded and established and their jurisdiction assertained and therefere may not be altered by the Regall power alone and by the same reason the King cannot alter the Constitution of the Court of Parliament but is the Constitution of all Courts alike the ordinary Courts are so constituted as that the Kings speciall Concurrence is not neeessary Arts and Judgements by the ordinary Judges alone are compleat and binding their assembling and departing is setled and doth not depend on the speciall pleasure of the Prince But the Court of Parliament hath another kind of Constitution the Kings speciall concurrence is in that a necessary and essential part Rex est capâ—t principium et finis Parliamenti Their assembling expects his speciall call their continuance depends on his will the Judgemements Arts and Ordinances made in Parliiament and concerning the Kingdome in generall are the Kings onely and without him frustrate and null Consider this good observator and then tel me if you did not endeavor grosly to abuse your reader by telling us that by the same reason the Parliament is not a Court compleâ— without the King the Common-pleas and all other Courts are not I confesse I have wondred to see it of late so often aâ—â—iâ—med That as the King cannot nor ought to declare by prâ—claimation or otherwise his disalowance of the acts judgments of the ordinary Courts so not of the Votes Ordinances of the Lords Commons in Parliament being the highest Court Should the ordinary Courts take upon them to dispose of the Militia by vertue of an Ordinance by them made might not the King by his Proclamation declare the Militia of that Ordinance and forewarne his Subjects not to be abused by it if the Observator can prove that the Lawes and Ordinances made by the now major part of the Lords and Commons are without and against the Kings pleasure of any more validitie that they are in themselves Lawes and Ordinances and not onely so called then I shall admit that the King either by Prociamation or otherwise ought not to declare against them meane while let every man judge how well the observatour hath maintained the power of the Lords and Commons mauger their King to make Lawes and Ordinances that shall bind the people in generall By which Ordinances the Militia the taking of Hull the Navy the Magazine the intercepting all mony and other provision that is but suspected to be passing towards the King the imprisoning all such as appeare dutifull towards his Majesties commands and such like Acts must be justified or acknowledged unjust The Observator finding it more then difficult in a plain field to maintaine his cause endeavours to shelter it under famed pretences of extraordinary danger and necessity in this extremity the King neglecting the helme nay purposely stearing towards rocks and shelves It is the duty of his Parliament in this case to oppose and preserve him and his Kingdome from utter wrecke and ruine He will then acknowledge that in ordinary cases without the King they cannot make a binding Law or Ordinance but in danger that is when they please In the miast of our calamities we are sensible of none thankes be to God but what their Ordinances have occasioned the Parliament seeing they must make use of their legislative power and make Ordinances to secure sâ—me Forts and settle the Militia or else two Kingdomes probably will be lost they doe accordingly the King proclaimes to the contrary in this contrariety consider if the Parliament 〈◊〉 vertually the whole Kingdome if it be not the supreame Judicatory as well in maâ—â—â—â—â— of State as Law if their grounds of jealousie be vaine To what purpose shall we consider of their jealousies if we thinke them to be but pretended by the cunning and practise of some few for accomplishing their designes and plots invented by some of their owne partie to be againe by them discovered yet must King and people submit to their judgement Are not the now major part the supreme Judges of danger to whom King and people are bound to submit If they are is it lesse then a mockery to bid us consider when as after consideration will we nill we we must subjugate our understandings and opinions to whatsoever they already have or hereafter shall declare But yet at your bidding I le consider in this contrariety whether the Parliament pray call them the Lords and Commons now assembled may not make use of their legislaiâ—e power yes if they have any such but I would not have them make use of the King legislative power without him and against him had they beene partners in that power some colour you might have had to have called it theirs but it seemes the power is solely the Kings they are onely to give an assent to the use of it Then you will I consider whether they be not the supreme Judicatory I thinke not the Parliamentiâ— supreame and above them both in matters of State and Law but againe I must consisider you say if the Lords and Cammons be not vertually the whole Kingdome why doe you put in the Lords whom at other times you can be content to spare The Lords Vote in respect of their Barronies derived from the Crowne the Commons Vote in right of their electors whom they represent at least nine parts of the Kingdome neither doe nor may Vote in their election the Clergie in respect of their spirituall livingt may not nor the most substantiall Coppy-holders Farmours nor Lessees for yeers not inheritrixes Jointresses nor reversioners Heirs apparrent and men that live upon Interest are excluded and all that have not 40. s. per annum free hold Land which I imagine cannot be above a tenth part of the Kingdome Tell me good Sir you that