Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	according_a	court_n	law_n	2,915	5	4.6268	4	false

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

ought to Judge according to the Law by which the Realm is Governed and not by the Lords if it appears that an Act of Parliament be made by the King and the Lords without the Commons that Act is Felo-de-se and the Courts of Westminster ought to judge it voide 4. H. 7. 18. Hub. 111. and accordingly they ought to do if this return contain in it that which is fatal to it self it hath been a question often resolved in this Court when a Writ of Error in Parliament shall be a supersedias and this Court hath determined that shall be said to be a Session of Parliament 1. Rolls 29. and if the Law were otherwise there would be a failure of Justice if the Parliament were Desolved there would be no question but the Prisoner should be discharged on a Habeas Corpus and yet then the Court must examine the cause of Commitment and by Consequence a matter Parliamentary and the Court may now have Cognissance of the matter as clearly as when the Parliament is Desolved the Party would be without remedy for his Liberty if he could not find it here for it is not sufficient for him to procure the Lords to determine their pleasure for his Imprisonment for before his Enlargement he must have the Pleasures of the King to be determined and that ought to be in this Court and therefore the Prisoner ought first to resort hither Let us suppose for it does not appear in the return and the Court ought not to Enquire of any matter out of it that the supposed Contempt was a thing done out of the House it would be hard for this Court to remand him Suppose he were removed to a Forraign Prison during the Pleasure of the Lords No doubt but that would have been an Illegal Commitment against Magna Charta and the Petition there the Commitment would have been Expresly Illegal and it may be this Commitment may be no less for if it had been Expresly shewn and if he be remanded he is Committed by this Court who are to answer for his Imprisonment But 2 the limitation of the Imprisonment during the Pleasures of the King and the House is Illegal and uncertain for since it ought to determin in two Courts it can have no certain Period a Commitment until he shall be Discharged by Kings Bench and Common Pleas is Illegal for the Prisoner can't apply himself in such a manner as to obtain his Discharge If a Man be Committed to further order Cook saith he is Baylable presently for that Imports till he shall be delivered in good course of Law and if this Commitment have not that Sence it is Illegal for the pleasure of the King is that which shall be determined according to Law in his Courts as where the Stat. of Westminster 1 Chap. 15. declares that he is not reprovable who is taken by Command of the King who ought not to extend to an Extra judicial Command but in his Courts of Justice to which all matters of Judicature are deligated and distributed 2 Inst. 186. and 187. Wollop To the same purpose cited Bushels case Vaughan 137. that the _____ return for high Contempts was not sufficient and the Court that made the Commitment in this Case makes no difference in the Case for otherwise one may be Imprisoned by the House of Peers Unjustly for a matter relevable here and yet shall be without any manner of relief by such a return for on Supposition that this Court ought not to meddle where the person is Committed by the Peers any person at any time and for any Cause may be subject to a perpetual Imprisonment at the Pleasure of the Lords And the Law is otherwise for the House of Lords is the Supream Court yet their Jurisdiction is limited by the Common and Statute-Law and their Excises are examinable in this Court for there is a great difference between the Errors and Excise in and of a Court between an Erronious proceeding without Jurisdidiction which is void and a meer Nullity 4. H. 7. 18. 6. in the Parliament the King would have one attain it of Treason and lose his Lands and the Lords assented but nothing was said of the Commons wherefore all the Justices held clearly that it was no Act and he was restored to his Land and without doubt in the same case if the Party had been Imprisoned the Justices might have made the like resolution that he ought to have been discharged It is a solaecisme that a Man shall be Imprisoned by a limited Jurisdiction and it shall not be examinable whether the cause were within their Jurisdiction or not if the Lords without the Commons should grant a Tax and one that refused to pay it should be Imprisoned the Tax is void but by a general Commitment the Party shall be remedyless if so be the Lords should award a Capias for Treason or Fellony By these Instances it appears that their Jurisdiction was restrained by the Common Law and it is also restrained by divers Acts of Parliament 1 Hen. 4. Chap. 14. no Appeals shall be made or any ways pursued or where a Statute is made a Power is Implicitly given to this Court by the Fundamental Institution which makes the Judges Expositors of Acts of Parliament and peradventure if all this case appeared upon the return this might be a Case in which they were restrained by the Stat. 4. Hen. 8. Chap. 8. That all the Suits Usements and Condemnations c. Many time from henceforth at any time to be put or had upon any Members for any Bill speaking or reasoning of any matters concerning the Parliament to be Communed or Treated of shall be utterly void and of no Effect now it does not appear but this is a Correction and Punishment Imposed upon the Earl contrary to the Statute there is no question now made of the Power of the Lords but it is only urged that it is necessary for them to declare by Vertue what Power they proceed otherwise the Liberty of every English Man shall be subject to the Lords whereof they may deprive any of them against an Act of Parliament but no usage can justify such a proceeding Elsmores Case of the Post Nati 19. The Duke of Suffolk was Impeached by the Commons of High Treason and Misdemeanors the Lords were in doubt whether they should proceed upon such a general Impeachment to Imprison the Duke and the advise of the Judges being demanded and their Resolution given in the Negative the Lords were satisfied This Case is mentioned with design to shew the respect given to the Judges and that the Judges have determined the highest matters in Parliament At a Conference held between the Lords and the Commons 3d. April 4. Car. concerning the right and Priviledge of the Subject it was declared and agreed that no Freeman ought to be Committed or restrained by Commitment of the King or Privy Councel or any other in which the House of Peers is

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