Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	lie_v	writ_n	2,231	5	9.8366	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A35587	The Case and cure of persons excommunicated according to the present law of England in two parts : I. the nature of excommunication, as founded in Holy Writ : the persons intrusted with that power, the objects of that censure and the method prescribed by God for it : the corruptions of it in times of popery, with the acts of the popish clergy, to fortify it with under these corruptions : the several writs of common law, and the statute laws made in those times, and still in force : to restrain the abuse of this censure, and to deliver the subjects from the oppression of it : II. the mischievous consequents of excommunication as the law now stands at present in England : with some friendly advice to persons pursued in inferior ecclesiatical courts by malicious promoters : both in order to their avoiding excommunication, or delivering themselves from prisons, if imprisoned because they have stood excommunicated fourty days.		1682 (1682)	Wing C848; ESTC R4831	39,295	48

I do not remember that this Case hath been tried but were it my own concern I do think that I should upon a Refusal to admit my Appeal either presently appeal to the King in his High Court of Chancery that is to the Delegates or else complain in some of his Majesties's Courts at Westminster that my Appeal was refused contrary to the Stature 24. Hen. 8.12 and hear the Opinions of the Judges about it for this Practice is a meer Artifice to ●y up the Subject to the pleasure of a single Arbitrary Judge This is all I know can be done to avoid an Excommunication and I dare not promise my Reader but that notwithstanding this he may be excommunicated for besides that this is the great Prize they wait for and so take all Advantages they think they have to wound one with this Thunder-bolt there is nothing more ordinary then for Judges and Surrogates in those Courts to go on notwithstanding Prohibitions and Appeals The last thing therefore which I have to do is to inform my Reader what Course he may take if he be imprisoned upon the Writ de Excommunicato capiendo to get out of Prison He must know no Prohibition nor Inhibition will serve him in that Case not the first because no Prohibition will lye against the King's Writ Besides the Prohibition is to the Bishop who hath done his utmost and hath no more to do in the Case till be come to signify for the Delivery of the Person and for the same Reason an Appeal and an Inhibition will do him no good for no Ecclesiastical Court shall controul the King 's Writ No Writs of Habeas Corpus or de Homine replegiando will help him nor any Indictment upon Magna Charta because tho the Person be not imprisoned per judicium parium upon the Verdict of a Jury yet he is imprisoned per Legem Terrae according to the Common Law of England They are therefore ill advised who seek Deliverance any of these ways and they only augment their own Charge Dr. Cozens who I think was in Queen Elizabeth's time Dean of the Archers in his Apology for some Proceedings in Causes Ecclesiastical tells us He could never learn more than two ways by which a Person so imprisoned could deliver himself The first is by Submission to the Bishop and giving him Caution by Bond by Pledg or by Oath that for the time to come he will be obedient to the Commands of the Church in Form of Law The second is In case the Party appealeth to a Superiour Court Ecclesiastical He might have reckoned many more of the same nature with the second which supposeth the Court from whence the Excommunication proceeded to have proceeded wrongfully In which case there are several Remedies according to the various Errors committed in the Proceedings I will mention some of them 1. If the Party imprisoned hath brought a Prohibition by which the Ecclesiastical Court hath been commanded to proceed no further and to absolve the Person if excommunicated and the Judg hath disobeyed the Writ and signified and procured the Party to be imprisoned the Person that is imprisoned at any time in Term upon a motion shall have first an Attachment against the Judg and then a Writ of Supersedeas to the Sheriff to deliver the Prisoner to follow the Attachment without any Submission to the Bishop at all or any Caution Such a Writ may be found in the Register of Original Writs p. 66. Nay if the Attachment be granted and the Person be imprisoned or a Writ out commanding him to be taken and the Term be done before the Attachment can be served the Register tells us that he shall have the same Writ during the Vacation out of Chancery Nay it is the Opinion of Men skilled in the Law that he shall have such a Supersedeas upon Affidavit made that the Proceedings are contrary to a Prohibition served upon the Judg tho no such Attachment be taken out 2. If the Party imprisoned or against whom the Writ is to take him tho he be not taken hath appealed according to the Statute 24. Hen. 8.12 if he bringeth into the Court of Chancery an authentick Copy of his Appeal he shall have a Writ of Supersedeas to stop the Sheriff from apprehending him or to deliver him if he be apprehended only this must be within a Year after his Appeal that it may appear to the Court he hath not deserted his Appeal you may find Forms of such a Supersedeas also in the Register of Original Writs both these are founded upon excellent Reason The Law of England will not suffer Ecclesiastical Judges either to invade their Right or to exalt themselves against their Authority nor yet suffer Inferiour Ecclestastical Courts to invade the Right Power and Authority of Superiour Courts in their own order 3. If a Person be sued in the Ecclesiastical Courts for a matter not within their Jurisdiction and they have caught him upon Contempt in not appearing or not obeying their Sentence Upon a Suggestion to the King's Courts if it appear to them that the Original Matter was not cognoscible in the Ecclesiastical Courts they will supersede the Proceedings and order the imprisoned Person to be discharged 4. If the imprisoned Person or he against whom the Writ is out tho he be not taken bring a Copy of the Bishops Significavit into the Courts at Westminster and make it appear to the Judges there that the cause of Excommunication is not therein expressed together with the day when it was pronounced if he be not said to be excommunicated majori Excommunicatione if it be not signed by the Bishop or said to be done Authoritate nostra ordinarta If the Party excommunicated be not expressed by Name the Court will deliver the Person Dr. Cozens mentions three of these Cases and the Reader also may find them in the Register of Writs The first he saith he cannot find in the Register viz. That the Articles or matter of the Libel must be expressed nor indeed do I find it there but it is in several Reports The Reasons are 1. Because the Law will not suffer Men to be imprisoned for every light Offence this Dr. Cozens gives 2. The second is because the King's Courts can receive Significavits from none but the Person to whom if need be they may write to discharge the Prisoner Nor will the Court suffer a Person to be excommunicated and lye in Prison for a Crime which the Ecclesiastical Court hath no Judgment in nor yet unless it appeareth to the Court he hath stood forty days excommunicated Again heretofore whole Cities and Communities have been excommunicated therefore the Person must be expressed by Name or he shall not lye there 5. Let him procure the Copy of the Writ de Excommunicate capiendo and observe 1. If it be issued in Term-time 2. If there were full twenty days betwixt the Test and the Return 3. If it be made returnable

Parliament or by the established Laws of the Land as they stood in the Year 1639 and if not Whether they be not made void by the Statute 13 Car. 2. 10. When he hath given his Answer which must be subscribed by his own hand it is usual for the Adverse Proctor to demand a time to prove his Articles for which the Judg at his pleasure granteth 2 3 4 or 6 Court-days usually but two Let him also at the same time move that he may have Liberty within that time also to produce any Witnesses for his Defence if it be denied let him appeal 11. Let him observe what time the Judge setteth his Adversary to produce his Witnesses in Court and whom he names for Witnesses for him Let him also desire a time to be set in Court for him to produce his Witnesses and be careful to bring them at the time for they must all be sworn in the Court then examined privately by the Register Unless the Adversary desireth a Commission to examine Witnesses which is not often done because it is much more chargeable in that Case there are no Witnesses in the Court produced and sworn but before those Commissioners 12. If the Party Defendant will he may deliver in to the Register Interrogatories upon which the Register shall cross-examine his Adversary's Witnesses But he must be very wary as to this for he shall not afterward except against any of his Adversary's Witnesses whom he hath cross-examined and made Witnesses for himself 13. Let him advise his own Witnesses to be very careful that the Register setteth down what they say in their own Words that under the pretence of putting them into a decent Phrase their whole sense be not altered 14. When the time Probatory set at first by the Judge is expired let him desire of the Judge Publication If the Judge will grant longer time to prove let him desire the Advantage of the same time also to bring more Witnesses for himself which he may or may not make use of as he pleases 15. If once the Term given for Proof be expired let him desire Publication and Liberty to take out a Copy of the Depositions 16. When he hath got a Copy let him diligently observe if he can prove any thing contrary to what the Witnesses or any of them have sworn if he can let him at the next Court-day offer a Paper of General and Particular Exceptions shewing the Particulars which he exepteth against in their Depositions severally as well as his General Exceptions against them all Let him desire a time to bring in Witnesses to prove his Exceptions If the Judge refuseth to admit his Exceptions or to give him due time to prove them he may again appeal 17. When once the Promoter hath allowed to have Publication he may again move for time to invalidate the Proof of the Exceptions but not to fortify his first Proof If any Liberty of that nature be desired the Defendant may appeal for unless in a Case for the King after Publication no new Witnesses can be produced 18. When the Party against whom the Promotion is peruseth the Depositions let him strictly observe whether the Particulars he is charged with be proved by two Witnesses for it is a Rule in their Law Vox unius est vox nullius and if the Judge will admit the thing proved by one Witness a Prohibition lyes For the King's Judges will not only see that those Courts shall keep to matters truly belonging to their Jurisdiction but also that in the Prosecution of them they shall keep to the received Rules of their own Law in those main Points of Proof c. 19. It is an usual thing upon Presentments by Church-wardens when the Party presented calls for Proof of the Presentment to tell him That the Church-wardens Presentment is a Conviction they being sworn Officers But this is contrary to the Law of England which alloweth no Presentment by Officers ex Officio to be a Conviction If Grand-Juries at Assizes and Sessions do present this is no Conviction but the Person must after this be indicted and Proof made by Witnesses If therefore the Ecclesiastical Court insists on this the Person may appeal or which it may be is better he may have a Prohibition from the King's Court at Westminster as some Great Lawyers think 20. When the time for Proof is expired and Publication made and Exceptions given in and proved and Publication of those Proofs also made Either Party may move for a time to be set to conclude and to give the Judge Informations of the whole State and Merit of the Case and also to give sentence in it 21. At the Day set the Party accused or promoted against may appear and show to the Judge the whole State of the Case and plead it himself or if he will by an Advocate if any be at hand or for ought I know if there be none by an Attorney or Counsellour at Common Law after which the Judge will appoint upon desire a day to give Sentence 22. At that day the Party must have a Form of an Absolutory Sentence ready to tender to the Judge 23. If the Judge gives Sentence against him he may appeal within 15 days by virtue of the Statute 24 Hen. 8.12 24. All along the Prosecution the Person against whom the Promotion is shall do well after every Court to get the Acts of the Count in his Case under the Register's Hand and to keep them by him carefully 25. This last Appeal is called Appealing a Sentence● definitive● from the definitive Sentence All appealing before this is but a Gravamine from a Grievance or an Interlocutory Decree inferring a Grievance Because there have been so frequent mentions in this Discourse of Writs of Prohibition and of Appeals it may not be amiss further to inform the Reader of both these And first concerning Prohibitions The Judges of the King's Courts at Westminster are undoubtedly under the King the Keepers of the Liberties of England and by their Office and Oath are to preserve unto the Subjects their Rights and Liberties Two things are the Rights of Subjects 1. To be Impleaded for any supposed Offences in Proper Courts that is such as according to the Law of England have a Cognizance of the supposed Offences 2. To be prosecuted in a just and reasonable manner according to the Rules of Law and Reason And the Judges of his Majesty's Courts at Westminster are doubtless Judges paramount to whose Judgments all the Judgments given in other Courts shall be subjected so far as they shall determine upon complaint to them Whether they have proceeded upon Matters within their Jurisdiction and Secondly Whether they have proceeded according to the Rules of that Law the Executors of which they are Hence if the Subject think himself grieved by the Ecclesiastical Courts either because he is there called in question for Matters which they have no Jurisdiction in or because he is not