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	law_n	writ_n	2,710	5	9.4811	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A35603	The case of Anthony Earl of Shaftsbury as it was argued before His Majesties justices of the Kings Bench, Trin. Term., 29. Car. 2 : being upon his confinement in the Tower &c. : with a speech of this worthy Earl, pleading his own case, and the liberty of the subject.	Shaftesbury, Anthony Ashley Cooper, Earl of, 1621-1683.	1679 (1679)	Wing C883; ESTC R4010	14,439	19

THE CASE OF ANTHONY EARL OF SHAFTSBURY As it was Argued before His Majesties Justices of the Kings Bench Trin. Term. 29. Car. 2. Being upon his CONFINEMENT in the TOWER c. With a SPEECH of this Worthy EARL pleading his own Case and the Liberty of the Subject LONDON Printed by K. P. for C. R. 1679. To the READER THIS being the CASE of a PEER of this Realm wherein the Liberty of the Subject is concerned and being Argued before His Majesties Justices of the K. B. It is Published for thy Satisfaction Trin. 29. Car. 2. B. R. Jun. 27. 29. 1677. THE EARL of SHAFTSBVRY'S CASE THIS day the Earl of Shaftsbury was brought to the Bar upon the return of an alias Hab. Corp. directed to the Constable of the Tower of London the effect of the return was that Anthony Earl of Shaftsbury in the Writ mentioned was Committed to the Tower of London 16. Febr. Anno Dom. 1676 By vertue of an Order from the Lords Spiritual and Temporal then in Parliament assembled the Tenour of which Order followeth in haec verba Ordered by the Lords Spiritual and Temporal in Parliament Assembled That the Constable of His Majesties Tower of London his Deputy or Deputies shall receive the Bodys of James Earl of Salisbury Anthony Earl of Shaftsbury and Philip Lord Wharton Members of this House and keep them in safe Custody within the said Tower during His Majesties Pleasure and the Pleasure of this House for their High Contempts committed against this House and this shall be a sufficient Warrant on that Behalf To the Constable of the Tower c. J. Browne Cler. Par. The Earl of Shaftsbury's Council prayed that the return might be Filed and it was so and Friday following appointed for debating the sufficiency of the return and in the mean time directions were given to his Council to attend the Judges and Attorney General with their exceptions to the return and my Lord was remanded till that day and it was said that though the return was filed the Court could remand or Commit him to the Marshalsea at their Election On Friday the Earl was brought into Court again and his Council argued the insufficiency of the return Williams said That the Cause was of great consequence in regard that the King was touched in his Prerogative the Subject was touched in his Liberty and this Court in its Jurisdiction 1st The Cause of Commitment which is returned is not sufficient for the general Allegations of high Contempts is too uncertain for the Court cannot judge of the Contempt if it doth not appear in what act it consists 2dly It is not known where the Contempts were committed and in favour of liberty it shall be intended they were committed out of the House of Peers 3dly The time is uncertain so that peradventure it was before the last Act of General Pardon 4thly It does not appear whether the Commitment were on a conviction or accusation only It cannot be denyed but that the return of such a Commitment by any other Court would be too general and uncertain More 893 Astwish was Bailed on a return quod commissus fuit per mandatum N. Milit. Dni Custod Magn. Sigil Angliae virtute cujusdem contemptus in curia facti and in that Book that divers other persons were bailed on such general returns and the Cases have been lately affirmed in Bushels Case reported by the late Lord Chief Justice Vaughan where it is expresly said that such Commitment and return being too general and uncertain the Court can't believe in an implicite manner that in truth the Commitment was for causes particular and sufficient Vaughan's Reports 140. Accord 2. Inst. 52 53. 55. and the 1. Rolls 218. and though the Commitment of the Jurors was for acquitting Pen and Mead contra plenam manifestam evidentiam it was resolved to be too general for the evidence ought to appear as certainly to the Judge of the return as it appears before the Judge authorised to Commit Rush. Case 137. Now this Commitment being by the House of Peers will make no difference for in all Cases where a matter comes in Judgment before this Court let the question be of what nature it will the Court is obliged to declare the Law and that without distinction whether the question began in Parliament or no. In the Case of Geo. Binion in C. B. there was a long Debate Whether an Original Writ might be Filed against a Member of Parliament during the time of Priviledge and it was urged that it being during the Session of Parliament the termination of the Question did belong to the Parliament but it was resolved that an Original might be filed and Bridgman then Chief Justice said that the Court was obliged to declare the Law in all Cases that came in Judgment before them H. 4. Ed. 4. Rut. 4. 7. 10. in Scacc. In Debt by River Versus Cousin the Defendent Pleads that he was sent of a Member of Parliament Ideo Capi seu arestant non debet and the Plantiff prays Judgment and afterwards by Advice of all the Judges the Judgment was entred Videtur Baronibus quod tale habetur Privilegium quod Magnates c. Et eorum familiares capi seu arestare non debent sed nullum habetur privilegium quod non debent Implantare ideo respondet Noster So in Triviniards Case a question of Priviledges was determined in this Court Dyer 60. in 14. Ed. 3. in the Case of Sr. John and Sir Jeoffry Stanton which was cited in the Case of the Earl of Clarendon and is entred in the Lords Journal An Accord of wast depended between them in the Common-Please and the Court was divided and the Record was Certified into the House of Lords and they gave direction that the Judgment should be Entred for the Plantiff afterwards on a Writ of Error brought in this Court that Judgment was Reversed Notwithstanding the Objection that it was given by order of the House of Lords for the Court was Obliged to proceed according to the Law in a matter that was before them in point of Judgment Not long since the Earl of Bristol Exhibited an Accusation against the Earl of Clarendon to the House of Lords and it contained divers matters whereof some did arise out of Parliament and it was referred to the Judges to consider whether that procedure was Parliamentary and the 4th July 1663. it was resolved by the Judges that the Lords ought not to proceed only upon an Impeachment by the Commons when the matters arise out of the House The Construction of all Acts of Parliament are given to the Courts of Westminster and accordingly they have Judges of Validity of Acts of Parliament they have searched the Rolls of Parliament Hub. 109. Lord Hunsdons Case they have determined whether the Journal be a Record Hub. 110 When a point comes before them in Judgment they are not fore closed by any Act of the Lords but

not be difficult to prove that anciently the Commons did assist there and now it shall be intended that they were present for there can be no Averment against the Record The Lords do several Acts as a distinct House as the Debating Bills the Enquiring of Breaches of Priviledges and the Warrant in this Case being by the Lords Spiritual and Temporal cannot be intended otherwise but that it was done by them in their distinct capacity and then the commitment being during the Pleasure of the King and the House of Peers it is manifest that the King is Principal and His Pleasure ought to be determined in this Court If the Lords should commit a great Minister of State whose Advice is necessary for the King and the Realm it cannot be imagined that the King shall be without remedy for his Subject but that he may have him Discharged by his Writ out of this Court This present Recess is not ordinary Adjournment for it is entred in the Journal that the Parliament shall not be Assembled at the Day of Adjournment but Adjourned or Prorogued to another Day if the King do not signifie his Pleasure by Proclamation Some other Exceptions were made to the Return 1. That no Commitment is returned but only a Warrant to the Constable to receive him 2. The Return does not answer the Mandate of the Writ for that it is to have the Body of A. E. of S. and the return of Warrant for the Imprisonment of A. Ashley E. of S. Serjeant Maynard argued to maintain the Return The House of Lords is the Supream Court of the Realm 't is true this Court is superior to all Courts of ordinary Jurisdiction If this Commitment had been by any Inferior Court it could not have been maintained But the Commitment is by a Court that is not under the Controul of this Court and that Court is in Law sitting at this time and therefore the expressing the Contempt particularly is a Matter that coutinues in the Deliberation of that Court 'T is true this Court ought to determine what the Law is in every Case that comes before them and in this Case the Question is only whether this Court can judge of a Contempt committed in Parliament during the same Session of Parliament and discharge one committed for such Contempt when Question of Priviledge ariseth in an Accord depending in this Court the Cour● may determine it but now the Question is Whether the Lords have capacity to determine their own Priviledges and whether this Court can controul their Determination and Discharge during their Session a Peer committed for contempt Th● Judges have often demanded what the Law is and how a Statute should be expounded of the Lords in Parliament as on the Statute of Amendments 40 Ed. 3. 34. 6 8. Co. 157 158. a fortiori The Court ought to demand their Opinion when a Doubt ariseth on an Order made by the House of Lords now sitting As to the Determination of the Imprisonment doubtless the Pleasure of the King is to be determined in the same Court where the Judgment was given As to the Determination of the Session the Opinion of Cooke is good Law and the Addition of Promises of many Acts is only in Majorem cautelam Attorney Gen. To the same Effect as to the uncertainty of the Commitment it is to be considered that this Case differs from all other Cases in two circumstances 1. The Person which is committed is a Member of the House by which he is committed I do not take upon me to say that the Case would be different if the person commited were not a Peer 2. The Court that does commit is Superior to this Court and therefore if the contempt had been particularly shewn of what Judgment soever this Court should have been as to the contempt yet they would not have discharged the Earl and thereby take upon them a Jurisdiction over the House of Peers The Judges in no Age have taken upon them the Judgment of what is Lex consuetudo Parliamenti but here the Attempt is to engage the Judges to give their Opinion in a matter whereof they might have refused to have given it If it had been demanded in Parliament 't is true if a Writ be brought where Priviledge is pleaded the Court ought to judge of it as an Incident to the Suit whereof the Court was possess'd but this will be no warrant for this Court to assume a Judgment of an original Matter arising in Parliament and that which is said of the Judges power to expound Statutes cannot be denied But it is not applicable to this Case by the same reason that this commitment is questioned every commitment of the House of Commons may be likewise questioned in this Court It is objected that there would be a failure of Justice if the Earl should not be discharged but the contrary is true for if he be discharged there would be a failure of Justice for Offences in Parliament and therefore the Earl would be discharged from all manner of punishment for his Offence if he be discharged for he must be discharged or remanded for the Court cannot Bail but where they have a Jurisdiction of the Matter and so delivered out of the Hands of the Lords who only have power to punish him It is objected that the contempt is not said to be committed in the House of Peers but it may well be intended to be committed there for it appears he is a Member of that House and that the contempt was against the House and besides there are contempts whereof they have Cognisance though they are Committed out of the House it is Objected that t is possible this Contempt was Committed before the General Pardon but surely such Injustice shall not be supposed in the Supream Court and it may well be supposed to be Committed during the Session in which the Commitment of Prison was It would be great difficulty for the Lords to make their Commitments so exact and particular when they are Imployed in the Arduous Affairs of the Realm and it has been adjudged on a return out of Chantery of a Commitment for a Contempt against a Decree that it was good and yet the Decree was not shown The Linnitation of the Imprisonment is well for if the King or the House determine their Pleasure he shall be discharged for then t is not the pleasure of both that he should be detained and the Addition of those words during the pleasure is no more then was before Implied by the Law for if those words had been Omitted yet the King might have pardoned the Contempt if he had but Exprest his pleasure under the Broad Seal If a Judgment be given in this Court that one shall be Imprisoned during the Kings pleasure his pleasure ought to be Determined by Pardon and not by any Act of this Court so that the King would have no prejudice by the Imprisonment of a great Minister because he