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	reverse_v	verdict_n	1,761	5	11.8650	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A64083	Bibliotheca politica: or An enquiry into the ancient constitution of the English government both in respect to the just extent of regal power, and the rights and liberties of the subject. Wherein all the chief arguments, as well against, as for the late revolution, are impartially represented, and considered, in thirteen dialogues. Collected out of the best authors, as well antient as modern. To which is added an alphabetical index to the whole work.; Bibliotheca politica.	Tyrrell, James, 1642-1718.	1694 (1694)	Wing T3582; ESTC P6200	1,210,521	1,073

at all And therefore you are quite out in your Law when you tell me that an Absolute Illegal Judgment is valid till it be reversed for if it be appearantly contrary to the known Forms of Law and practice of the Kingdom it is so far from being valid that tho' it be put in Execution it would be lookt upon as null and done without any Authority at all As suppose the King in person or any Inferiour Judge should condemn a Man to die either contrary to the Verdict of his Jury or without any Jury at all this is so far from being Authoritative or valid that such a Judgment is void in it self and those are guilty of Murder who execute it and it will need no Writ of Error to reverse it But I suppose by Illegal Judgments you mean such Judgments which have some Error in them either in matter of Law or Form for which they may be reversed I grant if these should not be lookt upon as valid and hold good till they are reversed in a higher Court there could not be any Judgment given at all since all Human Judicatories whatsoever are subject to Errors and Mistakes and there is sure a great deal of difference between such actions as are done by that Authority which the Law entrusts them with tho' not duly exercised and those violent and illegal acts which a Prince when he persecutes and enslaves his Subjects performs by his wicked Instruments contrary to all Divine and Human Laws So that the validity of such an Erroneous Judgment is not from the Judges personal Authority above the Law nor from his mistake or ignorance of the Law but from that high Credit and Authority which the Law hath given to all Courts and Judicial Proceedings which if they are done in due form are to be taken for Law however unjust and must be presumed to be free from Error till they are reversed in some higher Court. M. But if you please better to consider of it you will find a necessity of owning a Supreme Power in the King beyond all Appeal or Resistance and that there must be a personal Authority in him antecedent and superiour to all Civil Laws for there can be no Laws without a Law-maker and there can be no Law-maker unless there be one or more persons invested with the Power of Government of which making Laws is one principal branch for a Law is nothing else but the publick and declared Will and Command of the Law-makers whether they be a Soveraign Prince or the People And hence it necessarily follows that a Soveraign Prince does not receive his Authority from the Laws but Laws receive their Authority from him And I must be still of the same Opinion as to Bracton's words which you before quoted Lex facit Regem the Law makes the King by which I cannot believe that that great Lawyer meant that the King received the Soveraign Power from the Law for the the Law hath no Authority nor can give any but what it receives from the King and then it is a wonderful riddle how the King should receive his Authority from the Law And therefore I must stick to my former Interpretation that when he says the Law makes the King that is it distinguisheth him from a Tyrant as appears from the reason he gives for it i. e. Non est enim Rex ubi dominatur voluntas non Lex he is no King that Governs by his Arbitrary Will and not by Law not that he is no Soveraign Prince but he is a Tyrant and not a King And hence it as evidently follows that the Being of Soveraign Power is independent on Laws that is as a Soveraign Prince doth not receive his Soveraign Power from the Law so should he violate the Laws by which he is bound to govern Yet he is not to be resisted much less doth he forfeit his Power 'T is true he breaks his Faith to God and his Countrey but he is a Soveraign Prince still And now I hope it plainly appears that every Illegal act the King doth or Illegal Commission that he grants is not an inauthoritative Act or Commission but layes on the Subject an Obligation to yield if not Active yet a Passive Obedience And in the King 's most Illegal acts tho' they have not the Authority of Laws yet they have the Authority of Soveraign Power which is irrisistible and unaccountable In a word it doth not become any Man who can think three consequences off to talk of the Authority of Laws in derogation to the Authority of Soveraign Power The Soveraign Power made the Laws and can Repeal them and Dispense with them and make new Laws The only Power and Authority of the Laws is in in the Power that can make and execute Laws Soveraign Power is unseparable from the Person of a Soveraign Prince tho' the exercise of it may be regulated by Laws and tho the Prince doth very ill who having consented to such a Regulation breaks the Laws yet when he acts contrary to Law such acts carry Soveraign and irrisistible Authority with them while he continues a Soveraign Prince F. I am very well satisfied notwithstanding all you have hitherto said that the Government of England owns no such thing as this Arbitrary Power with which you would invest the King since I have already proved at our ●th meeting that the King is not the Sole Legislator and consequently not the Sole Supreme Power So likewise our Law it doth as little understand any such thing as a Personal Authority in the King antecedent and Superiour to all Laws For since God hath now left off making Kings by his own special appointment as he did among the Jews every King must either be so by the Law or Custome of that Countrey or else a bare possession of the Throne is sufficient to make him so and then every Usurper hath as much right to a Crown as the most lawful Prince and Oliver Cromwell was as rightful a Prince as King Charles the Second It is true the first King of any Race could not be invested with the Crown by the same Law as his Successors are that is by an Hereditary proximity of Blood Yet such a King whenever he began to be so could have no Legal Right without the Election Recognition or Consent of the People And as for an Hereditary Right that is but a Right by the Law of the Land or general Consent of the People testified by an uninterrupted Custom to entail the Crown on such a Family so that in either Case they are Kings by Law and therefore I conceive it can be only in this sense that Bracton says Lex facit Regem i. e. The Law of the Kingdom makes the King which more plainly appears by what immediately follows attribuat igitur Rex Legi quod Lex attribuit ei viz. Dominationem Potestatem in which words nothing seems more plain than that the

write against any man's Opinions as they are his but only freely to examine them in order to an impartial discovery of the Truth and since some of them may have been perhaps too commonly and favourably received by our ordinary Gentry and Clergy if therefore any ingenious person will take upon him farther to assert or vindicate any Opinion here questioned either by the one or other of our Disputants and will clearly and fairly shew me where my Argument might 〈◊〉 been put more home or any Objection more solidly answered shall be so far from taking it amiss that I shall rather give him my thanks for his pains and do here farther promise to insert all or at least the substance of his Arguments under their poper Heads with all due acknowledgments to their Authors if ever the Discourses will bear a second Impression only I desire him whosoever he shall be so far to imitate the Gentlemen who are supposed to converse in these Dialogues as to for bear all rude Reflections and course Language otherwise I hope they will give me their pardon if I only take notice of their Reasons and pass by their Passion Nor would I have any Candid Reader to slight the two first Dialogues because they treat of Opinions at present out of fashion viz. The Divine Right of Monarchy and Succession from the Patriarchal Power given by God to Adam since you may easily remember that it is not many years ago that our Pulpits and Presses would scarce suffer any other Doctrines either to be Preacht or Publisht than on these Subjects It faring with some Political Opinions as with Fashions which are never so generally received and worn as when they have been in Vogue at Court Those Divines and Lawyers who were the first Inventers or new Vampers of them commonly receiving the greatest Rewards and Prefermets who as the Court Taylors did Fashions could invent such Doctrines and Opinions as were most burthensome and uneasie to all sort of People except a few Great ones who were to gain by them and I desire you also farther to consider that however odd or unreasonable these Doctrines may seem to most men yet certainly they must have at least a great appearance of Truth since they were able to Captivate the Reasons of the Major part of both Houses of Convocation in the begining of the Reign of King James the First they then declaring them by several Cannons made on purpose the only sure Foundations of all Civil Authority as also of Obedience thereunto as plainly appears by that late Treatise which goes under the name of Bishop Overal's Convocation-Book And thô neither the King nor Parliament then thought fit to give those Cannons the stamp of Civil Authority whereby they might become Laws Yet for all this it did not hinder divers Learned and Ingenious men as well of Clergy as Laity from embracing these Opinions such as were Sir Robert Filmer and his Vindicatior Mr. B. as also the most Reverend and Learned Bishop Sanderson with divers others of note whose Arguments I have made use of and considered in the two first Dialogues and that in a way as little reflective as possible since I know what is due to the memory and fame of such great and worthy Persons and therefore I have only made use of the initial Letters of their Names or Titles of their Books in the Margine with an Index at the beginning of each Discourse shewing what Book each mark does signifie which Method I have persued through all the rest of these Discourses and of what is not so mark● I desire the Reader to look upon the words if not the sense to be my own since I do not pretend to be an Inventer of new Notions in Politicks and there is no man more sensible than my self of that Old Latine Sentence Nihil dictum quod non dictum prius But tho' I have already finisht almost all the Discourses on the Subjects above mentioned yet am I not very fond of publishing them after so many several Treatises that have been written thereon tho' my design be for the saving of the Readers money as well as time to reduce what is material in all of them into so many 12 d. Books and therefore I have at present published this first Dialogue as an Introduction to the rest that according to the success I find this meets with abroad I may be more or less encouraged to proceed● nor ●eed it seem strange to any considering person that I chuse rather to publish one Discourse at a time since it is but too publick a Complaint how scarce a Commodity Money as well as Paper is at this time And therefore I have given the Printer leave to publish one of these Discourses in a month or oftner as he shall think good since I am sensible the greatest part of common Reader would rather part with eight or ten shilling● at so many several times than all at once and have therein endeavoured to imitate the Great Council of the Nation who have thought fit to divide the present Pole-Tax into four quarterly Payments I have but one thing more to advertise the Reader viz. That tho' the Title of this Discourse mentions no more than the discussing the Question Divine Right of Monarchy yet the natural Powers of Fathers and Masters of Families and Freemen are here dis●inctly treated of and closely enquired into as being the first Elements or Principles of all Civil Powers as those alone out of which they could be at first regularly made and into which they are upon the dissolution of Civil Governments again to be resolved To conclude therefore I hope that the Arguments in this and all the following Discourses may prove so plai● and convincing to all careful and unprejudiced Readers that they may as easily discover the Truth as an honest unbyass'd Iury-man can a● a Tryal judge on which side the Right and Iustice of the Cause inclines upon the barehearing the Evidence on both sides nay even before the Court hath summed it up Since I think it may prove more useful as well as divertive to hear or peruse the Arguments and Reasons in short that may be brought o● either side and thereon to pass a Judgment than to Read over the tedious and Voluminous De●ds and Evidences of the Estate in Question But on which side soever you bring in your Verdict I heartily wish that God would direct your minds and guide your Iudgments to find out and embrace the Truth which as it was the only End of my writing so it is now and will be also of publishing this and those other Treatises I intend on the Subjects I have before mentioned Adieu The Subject of the First Dialogue WHether Hereditary Monarchy be of Divine Right or Institution Authors made use of in this Dialogue and how denoted in the Margin 1. Sir Robert Filmers's 1. Observations on Grotius de Belli Pa●u R. F. O. G. 2. Patriarcha F.

or for the time being may not be legally defended in the Throne for as for that part of the Oath which was taken to King Iames himself it can hold no longer than whilst he continued King If therefore the Estates of the Kingdom have adjudged him to have forfeited or abdicated the Crown the whole Nation ought to take this as to have been legally done since it was done by the judgment of the highest Authority in the Nation when King Iames had deserted the Throne the like I may also say for the other part of the Oath of Allegiance whereby we are obliged to his Heirs and Lawful Successors for since there has been a dispute concerning the succession of the Crown between the Princess of Orange and your Prince of Wales if the Convention who are the sole proper Judges in this Case have thought fit for the reasons I have already given you at our last Meeting to declare King William and Queen Mary the lawful King and Queen of England all the Nation ought to accept them for such since it was done by the highest Authority at that time extant in the Nation and the only proper Judges of that right and if disputes about legal rights of which certainly that of succeeding to the Crown is of the highest importance ought to be decided by Law and not by the Sword which is not the decision of civil Authority but of force the sentence of competent Judges must end the dispute and if the Estates of the Realm be not the proper and legal Judges of such Disputes that concern the right to the Crown there can be none and if they be Subjects must acquiesce in their Judgments or it is all one as if there had been none for if Men may pretend Conscience and adhere to their own private Opinions as sole Judges the dispute must end in blows which is contrary to the reason and nature of humane Societies which were instituted to prevent Civil Wars and to end all Controversies by a legal Judgment without the Sword And to let you see farther that as to the Allegiance of the Subjects it is all one in respect of us who are Subjects whether the Convention have judged right or wrong in this case Let us suppose a Person who has only a pretence but no true right to an Estate should commence a Suit of Law for it and at last obtaine a Verdict of the Jury and also a Judgment of the Court of Kings-Bench for his Title can any Man deny but that the Sheriff is by vertue of this Verdict and Judgment oblig'd to put this Abator into possession of this Estate notwithstanding he may know of his own knowledge that the person who has obtain'd this Judgment has no true right to the Estate or will any Lawyer doubt whether all the Tenants of the Mannour are not oblig'd to swear homage and fealty to this suppos'd Lord if they are required by him so to do Now though the true Heir or owner has the legal right to the Estate yet by the supream Law of all Societies which refers the decision of all personal rights to a legal Authothority he who by a legal judgment is possessed of it has the legal right in the Estate against all other claims and legal Authority must desend him in it and all who will submit to Laws and Legal Authority must acquiesce in it And thus it must be with respect to the Rights of Princes as well as of Subjects the right to the Crown has been often disputed as we all know and to say that when such disputes happen there is no Authority in the Nation to decide them is to say that Princes have no rights to their Crowns by the Laws of that Nation for there can be no Civil Rights of which there neither are nor can be any Civil Judges for no man no not a Prince can be judge in his own Cause and if Princes have no legal rights they can lose no legal rights when they lose their Crowns and I doubt their natural rights swill affect the Consciences of very few Subjects Therefore every independent Civil Society which is not wholly governed by the Sword must from the nature of such Societies and the reason of their institution have authority within it self to decide all Controversies which may arise about the rights of every member of that Society and to preserve it self from falling into a state of War which is a dissolution of all Civil Government and if there ought to be such an Authority in every Civilized Nation when this Supream Authority has given sentence in such Disputes this must also determine all the Subjects and ought likewise to have the same effect upon the contending Princes themselves and no right or pretence of right ought to affect the Conscience after such a final Judgment unless Civil Rights can oblige Subjects to dissolve Civil Governments and to dispute Civil Rights not by the Law but by the Sword which is to overthrow all Civil Rights and put an end to the Authority of Laws I hope this may serve to shew you how much you are mistaken to suppose that there can be no King in an hereditary Monarchy but the next lineal Heir and tho' I grant no Allegiance can be due or ought to be paid to him who is no King yet will it not follow that none can be due to any Prince if he be not the next heir for that no obedience can be due to him who is no King I readily grant but yet he may be a legal King in this Kingdom who is not the next Heir by blood as almost half of the Kings of England since the Conquest were not and yet have been always own'd and obey'd as legal Kings M. I confess what you say would go a great way to satisfie me could you prove that there was no difference between the succession to Crowns and private inheritances where I grant that the judgement of the Supream Court of the Nation is to determine not only the possession but the right too in respect of the person who loses his Estate by an unjust verdict or illegal judgment whereas it is otherwise in the Title of Crowns to which Princes have a right as well by the Laws of God and Nature as also by the receiv'd setled Laws and Customs of the Kingdom concerning the Succession by descent which is call'd in the 13th of Queen Elizabeth in the Statute we have so much debated at our last Meeting the Common Laws of this Realm and it is there declared that it ought to direct the right of the Crown of England and it is there made Treason during the Queens life to affirm the contrary and this course of lineal Succession at Common Law was also declar'd by solemn judgment in Parliament in the case I have so often urg'd of the Duke of York's Title to the Crown against Henry the VIth that it could no way be defeated by