Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	error_n	judge_n	writ_n	1,482	5	9.3217	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A26144	The power, jurisdiction and priviledge of Parliament and the antiquity of the House of Commons asserted occasion'd by an information in the Kings Bench by the attorney general against the Speaker of the House of Commons : as also A discourse concerning the ecclesiastical jurisdiction in the realm of England, occasion'd by the late commission in ecclesiastical causes / by Sir Robert Atkins, Knight ...	Atkyns, Robert, Sir, 1621-1709.	1689 (1689)	Wing A4141; ESTC R16410	69,431	78

of the Exchequer quod si ita est Those Words do not refer to the Custom set forth nor to the Law upon it but to the Allegation in the Writ of matter of Fact viz. That Walsh the Defendant was menial Servant to the Earl of Essex And then the Defendant does by way of Plea grounded upon that Writ apply the Writ to himself and averrs That he is the same Person mentioned in the Writ and averrs That he was the menial Servant to the E. of Essex and then demands allowance of his Priviledge The Plaintiff in that Suit traverses the Custom and Priviledge alledged in the Writ as to the being impleaded but admits it as to the Freedom from Arrest This Traverse is in the Nature of a Demurrer for it is Quaestio Juris ad quam respondent Judices non Juratores Et super hot viso praelecto brevi praedicto per Barones c. Habitoque Avisamento Justiciariorum Domini Regis de utroque Banco in hac parte Quia videtur praefatis Baronibus de avisamento Justiciariorum praedictorum quod talis habetur habebatur consuetudo quod Magnates Milites Comitatuum ac Cives Burgenses Civitatum Burgorum ad Parliamentum de Sumonitione Regis venientes ac eorum Familiares Ratione alicujus Transgressionis c. dum sic in Parliamento morentur capi aut arrestari non debent But then they adjudge that the Priviledge does hold only against Arresting their Persons but not against the Suing them This strongly proves the Point I have in Hand That the House of Commons have their Priviledges by Custom and therefore the House it self could not have its Original within Time of Memory as 49 H. 3. is in a Legal Understanding It is very useful further to observe That the single and sole Occasion of this Record was from the Priviledge of the Peers from the suing a menial Servant of a Peer No Man denies but the Peers have even been a part of the Parliament Nay our new Modellers of the Government would have the Parliament to consist only of the King and Lords And yet it is said to be a Joint Custom for the Commons as well as for the Lords by express and particular Words Why did they not lay the Custom for the Priviledge of the Lords only that might have serv'd for that present Occasion which was about the Priviledge for a menial Servant of the then E. of Essex But the Custom was an entire Custom for both Houses This proves them to be coaetaneous and Twins by Birth and Original All this is by the Judgment of all the twelve Judges in a Judicial Proceeding And it takes in the Opinion of the Chancellor who issued out that Writ The other Record of the same Court is entred H. 12. E. 4. Rot. 7. inter Ryner Cousin Keeper of the Wardrobe to the King in an Action of Debt too and there the Defendant claims his Priviledge not as Servant to the King but as Servant to Thomas St. Leger Knight of the Shire for Surrey And the Writ of Priviledge sets forth the same entire Custom both for Lords and Commons tho' the Occasion was here from the Commons only and the Court of Exchequer gives the like Judgment as in the former Case by Advice too of all the Judges of both Benches The next Record I shall make use of shall be that of E. 2. which is a most invincible Proof that the Knights Citizens and Burgesses have originally and before 49 H. 3. constituted the House of Commons and have ever been a part of the Parliament The Burgesses of S. Albans in their Petition to the King say That they sicut caeteri Burgenses Regni ad Parliamentum Regis per duos Comburgenses suos venire debeant prout retro-actis temporibus venire consueverant tam tempore Domini Edwardi nuper Regis Angliae Patris Regis which must be E. 1. progenitorum suorum which must be understood of the Progenitors in the plural number of E. 1. for he mentions the then King E. 2. afterwards so that of necessity it must take in King Hen. 3. and his Father King John at the least And this Computation much exceeds the Date given to the House of Commons by these new Authors viz. 49 H. 3. And then the Petition descends to the mention of the then Kings Time viz. E. 2. tempore Domini Regis qui nunc est semper ante instans Parliamentum And the Petition complains of the Sheriff of Hertfordshire who by the Abbots procuring refused to summon that Burrough The Answer by the Councel is Scrutentur Rotuli c. de Cancellaria si temporibus Progenitorum Regis Burgenses praedicti solebant venire vel non This Answer admits the general Usage of Burgesses to be chosen for divers Burroughs in the times of the King's Progenitors For it is absurd to think that that needed any search of the Rolls in Chancery but the Search was to be only Whether that particular Burrough of S. Albans was one of those Ancient Burroughs that had used that Priviledge and had a Right to it which would appear by the Rolls and Returns of Writs of Summons The Record lays the Usage for the Burrough to have been semper ante instans Parliamentum so that the Usage had been from ever In the Rolls of Parliament 11 H. 4. num 59 cited by Mr. Pryn in his Brevia Parliamentaria rediviva fol. 185. There is a Petition of the Commons in French reciting the Stat. of 7. H. 4. c. 15. which Statute as the Petition says was made for the preserving the Franchises and Liberties of the Election of Knights of the Shire used throughout the whole Realm and by the Kings Progenitors from Parliament to Parliament time out of mind observed I will now put the Court in mind of some Acts of Parliament that fully prove this Point The Statute of 5 R. 2. Parl. 2. c. 4. in a time When Parliaments were not so much valued It is thereby Enacted by Assent of the Prelates Lords and Commons that all Persons and Communalties which should have a Summons to Parliament should come from thence-forth to Parliaments in the manner as they were bounden to do and had been accustomed of Old Times otherwise they should be Amerced as of Old Times had been accustomed Rot. Parl. 2. H. 5. Pars 2. Numb 10. This is left out of Sir Rob. Cott. Abr. That Act declares that the Commons had ever been a Member of the Parliament and that no Statute or Law could be made without their Assent I will not spend time in citing those Learned Antiquaries or Historians as Sir Henry Spelman Bedes Eccl. Hist. nor Famous Selden nor Learned Cambden who by general Words used in the Saxon Times for the Assembling of Parliaments tho' not by that Name prove the Commons to be a Part of Them but they do not prove the Commons to be so

sacred Authority of any Court that it hath an absolute power that it is the highest Court in the Realm is acknowledged by our most Learned and gravest Writers and Historians for I would not wholly omit them though I do not need them but I relie only and put all the stress of my proofs and arguments upon my Authorities in Law. Cambden in his Britannia Summam sacrosanctam Authoritatem habet Parliamentum Knighton de eventibus Angliae l. 1. fo 2681. col 1 2. He calls it the Highest Court of the Realm So it is call'd in Trewinnard's Case in Dier 60 61. Sr. Thomas Smith in his Common-Wealth of England l. 2. c. 2. fo 50 51. In Comitiis Parliamentariis posita est omnis absolutae potestatis vis Sir R. Cotton in his Posthuma edit at Lond. pag. 345. cited by Mr. Pryn in his Preface to Sir Robert Cotton ' s Abr. The Parliament controlls all Inferior Courts and all Causes of difficulty cum aliqua dubitatio emergit referr it to the Parliament To shew their power and jurisdiction upon Erroneous proceedings in other Courts by authorities in Law which confirms one of my Reasons In Trewinnard's case it is said that though the Parliament erre it is not reversible in any other Court This is spoken in a case where the then occasion was upon a Judgment given only by the House of Commons in a case of Priviledge Agreeable to this is 21 E. 3. fo 46. Br. Abr. tit Error plac 65. in the latter end of that case and 7 H. 6. Br. Abr. tit Error plac 68. by Cottesmore and 1 H. 7. fo 19. Br. Error plac 137. Error in Parliament shall be revers'd in Parliament non aliter for there is not an higher Court. 1 H. 7. fo 19 20. By all the Judges in the Exchequer-Chamber for a Judgment in the King's-Bench Error must be sued in Parliament and as the Parliament shall correct the Judgments so they are to correct the Judges that give corrupt and dishonest Judgments These are the words and the opinions of the Lord chief Justice Vaughan in his Reports fo 139. in Bushel's case Such says he in all ages have been complained of to the King in the Star-Chamber which is a Court now dissolv'd by Parliament or to the Parliament He there mentions many Judges those 44. that were hang'd in King Alfred's time before the Conquest for corrupt judgments and those in the time of E. 1. E. 3. and R. 2. for their pernicious resolutions He vouches the Journals of Parliament and instances in the Judgment of Ship-money in the last King's time and the particular Judges impeach'd Sir E. C. in his 12 Rep. fol. 64. the words are spoken by Sir E. C. but as that Rep. says with the clear consent of all the Judges The King hath his Court that is to say in the Vpper House of Parliament in which he with his Lords is the Supreme Judge over all other Judges For if Error be in the Common-Pleas that may be revers'd in the King's-Bench and if the Court of King's-Bench erre that may be revers'd in the Upper House of Parliament by the King with the assent of the Lords Now though this is spoken of the Lords House only yet it must be again remembred that the Parliament as I prov'd before is one entire Body and that their power in the right of it is entire though as to the exercise of it it is distributed into parts and is divided Not can the House of Lords exercise any power as an House of Parliament or as a Court for Errors without the House of Commons be in being at the same time Both Houses must be Prorogu'd together and Dissolv'd together like the Twins of Hippocrates they live and die together and the one cannot be in being without the other also at the same time be in being too 2. Inst. 408. Matters of difficulty were heretofore usually Adjourn'd to Parliament but says he 't is now disused And 2. Inst. 599. Courts at variance properly complain to the Parliament 4. Inst. In the Chapter of the Court of the Kings-Bench Errors in the Kings-Bench in matters that concern their Jurisdiction and other Cases there excepted in the Act of 27 Eliz. Cap. 8. cannot be Revers'd but in the High Court of Parliament 4. Inst. Fol. 67. There is a Court Erected by the Statute of 14 E. 3. Cap. 5. Stat. 2. For redress of delays of Judgments in the Kings great Courts consisting of a Prelate Two Earls and Two Barons to be chosen in Parliament by that Statute If the Case before them be so difficult that it may not well be determin'd without assent of the Parliament it does not say by the House of Lords only then shall the tenor of the Record be brought by the said Prelate Earls and Barons into the next Parliament and there a final Judgment shall be given Si obscurum difficile sit Judicium ponantur judicia in respectu usque magnam curiam Rot. Parl. 14. E. 3. Num. ult Sir Jeffery Stanton's Case 25. E. 3. Cap. 2. The Chapter of Treason in the 2. Inst. Fol. 21. The Judge or Court in some Cases is to forbear going to Judgment till the Cause be shewed before the King and his Parliament whether it ought to be judged Treason or not That this Court proceeds by the ordinary Rules of the Common Law but that High Court of Parliament proceeds not by that Law but by a Law peculiar to that High Court which is called Lex Consuetudo Parliamenti and consists in the Customs Usages and Course of Parliament and therefore this Court nor no other inferior Court can for this very Reason judge or determine of what is done in Parliament or by the Parliament If this Court should take upon it to proceed in such cases it would justly be said of it as a thing very irregular Metiri se quemque suo modulo ac pede verum est Sir Rob. Cott. Abr. 20. R. 2. nu 14 15. Sir Tho. Haxey delivered a Bill to the Commons in Parliament for the honour and profit of the King and of all the Realm complaining of the outragious Expences of the Kings House and namely of Bishops and Ladies Here the Camb. Dr. I have before mention'd would take occasion again to complain of the sauciness of this Bill K. R. 2. was offended with the Commons for preferring this Bill to the King for it seems they had entertain'd this Information from a particular hand as was done in our Case from Dangerfield and they proceeded upon it K. R. 2. said it was an offence against his Dignity and Liberty and said he would be free therein And Sir John Bussey the Speaker to the Parliament as that Roll of Parliament calls him is charg'd to declare the Name of him who Exhibited that Bill By this it appears the King could not take notice of what was done in the Commons-House or deliver'd to them but by