Selected quad for the lemma: justice_n
Text snippets containing the quad
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B03896
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To the honorable societies of Gray's-Inne, and of the rest of the innes of court, and to all the professors of the law
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Jenkins, David, 1582-1663.
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1647
(1647)
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Wing J610; ESTC R178974
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25,096
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37
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Command under his great Seale which in this warre hath beene used by the Kings command for his Commission to leavy and array men that is no personall command which the law in some cases disallowes but that is such a command so made as all men hold their lands by who hold by Patents All corporations have their Chartera which hold by Charters and all Judges and officers their places and callings Ob. It is objectd the King cannot suppresse his Courts of Justice and that this warre tended to their suppression 7 pars The Earle of Westmerlands Case 1 Eliz. Dier 165. 7 pars Cooke Sol. The answer is the King cannot nor ought to suppresse Justice or his Courts of Justice nor ever did But Courts of Jnstice by abuser or non user cease to be courts of Justice when Judges are made and proceedings in those courts holden by others then Judges made by the King and against his command under the great Seale and his Majestie is not obeyed The case of discontinuance of Processe but the votes of the houses they cease to be the Kings Courts and are become the Courts of the houses and his Judges breaking that condition in law of trust and loyalty implied in their Patents are no longer his Judges they obey and exercise their places by virtue of writts and processes under a counterfet Seale The King only can make Judges the twenty seventh of Henry the eighth Chapter the twenty fourth Justices of the Peace c. twenty eighth of Henry the eighth Dier the eleventh the Kings Patent makes Judges The cheefe Justice of the Kings Bench is made by the Kings writt only of all the Judges The great Seale is the key of the kingdome Avticuli super chartas cap. 5. and meete it is that the King should have the key of his kingdome about him 2 pars instit 552. which confutes their saying that the King got the Seale away surreptitiously The King and he only may remove his Courrs from Westminster into some other place Britton sol 23. at Yorke the Termes were kept for seven yeares in Edward the sirst's time but for the Court of Common pleas the place must be ceataine for the Kings Bench and Chancery the King by the law may command them to attend his person alwayes if it seeme so meete unto him but the removing of the Common pleas must be to a place certaine and so notified to the people All the bookes of law in all times agree 34. Assis pl. 24. 22 Ed. 4. Fitz jurisdiction last placit 6 H. 7.9 6 Eliz. Dier 226. that the King may grant couusance of all Pleas at his pleasure within any County or precinct to bee holden there only and remove the Courts from Westminster to some other place for the Common Pleas the place must be certaine and so notified to the people and adjourne the termes as hee sees cause All which the two houses have violated Plebs sine lege ruit Some seeming objections of Master Prinn's seettered in divers books answered and the truth thereby more fully cleared Ob. 1 The first of Henry the fourth reviveth the statute of the eleventh of Richard the second and repeales to the twelfth of Richard the second whereby certaine persons were declared traytors to the King and kingdome being of the Kings party Sol. True but note the eleventh of Richard the second A Parliament beset with 40000 men and the King assents to it so an Act and besides the first of Henry the fourth declares that that treasons mentioned in the act of the eleventh of Richard the second being but against a few private men shall not be drawn into example and that no Treason should be but such as the twenty fist of Edward the third declares 9 Ed. 4. fol. 80. All these are Acts passed by the King and the three estates not to be drawne into example in a tumultuous time by a besieged Parliament with an army and the confirmer 〈◊〉 Henry the fourth being an usurper makes that act of the first of Henry the fourth to secure himselfe Also what is this to the votes of the two houses only at this time Ob. 2 The Court of Parliament is above the King for it may avoid his Charters Commisions c. granted against the law Sol. And the Law is above the King By the same reason you may say that the Courts of Chancery or any of the Courts of law at westminster are above the King for they make of no effect the Kings Charters which are passed against the law and the King is Subject to law and sworne to maintaine it Again it is no Parliament without the King and the King is the head thereof he is principium Caput finis of a Parliament as Medas tenendi Parliament hath it and two houses only want principium Caput finis of a Parliament and it is a sorry Parliament that wants all these And therefore to say that Parliaments are above the King is to say that the King is above himselfe Ob. 3 The Parliament can enlarge the Kings prerogative therefore it is above him Sol. If the King assent otherwise not and then it is an act of Parliament and otherwise no Act. Ob. 4 Bracton saith God the Law and the Kings Court viz his Earles and Barrons are above the King viz in Parliament as Master Prinne expounds it Sol. Where is then the house of Commons Indeed take God the Law and Earles and Barrons together it is true but to affirme that the Earles and Barrons in Parliament are above the King the King being the head of the Parliament and they one of the members how an inferior member is above the head is hard to cenceive besides that position destroyes all Master Prinns discourse who attributes so much to the house of Commons Ob. 5 The King is but one of the three estates of Parliament and two are greater then one therefore above Sol. The Leggs Armes and trunke of the Body are greater then the head and yet not above nor with life without it The argument holds for quantity but not for quality and in truth the King is none of the three estates but above them all the three estates are the Lords Sprirituall the Lords Temporall and the Commons Cooke their Oracle in his Chapter of Parliaments Folio the first Ob. 6 In corporations the greater number of voices make all the Acts of the corporation valid therefore so in Parliament Sol. By this reason the Kings assent is needlesse and to no end and all the Acts of Parliament formerly mentioued and law bookes have quite mistaken the matter which with unanimous voice requires the Kings assent as necessary Besides the Corporations are so constituted by the Kings Charters that the greater number of votes shall make their Acts valid Ob. 7 The King as King is present in his Parliament as well as in all other his Courts of Justice how be it he is not there
Sol. In his other Courts of Justice he hath no voice he is none of the Judges in the Parliament he hath if his presence be not necessary his voice is not nor his assent Ob. 8 The originall prime legislative power of making Lawes to bind the subjects and their posterity Soveraign power of Parliaments 46.47 rests not in the King but in the kingdome and Parliament which represents it Sol. Master Prinne in the same lease affirmes and truly that the Kings assent is generally requisite to passe lawes and ratifie them the King is the head of the kingdome and Parliament how then can a body act without a head Ob. 9 A major part of a Corporation binds therefore the Major part in Parliament and so of by Lawes Sol. The Corporation is so bound either by the Kings Charters or by prescription which sometimes had the Kings concession but prescription and Law and practise alwayes left the King a negative voice Ob. 10 The King cannot alter the Bills presented to him by both houses go. Sol. True but the King may refuse them Ob. 11 Acts of Parliament and Lawes ministred in the Reignes of usurpers bind rightfull Kings go. Sol. What is this to prove the two houses power only which is the question A King de facto must be obeyed by them who submitted to him and they are his Subjects by their submission and not Subjects defacto to the true King 9 Ed. 4.12 and such being Traytors and Rebells to the regent King having renounced the true King when the lawfull Kings is restored may be punished by him for their treason against the usurper But heere is a King still in both cases and the proceedings at law holds The Judges having their patents from the being Kings in the reignes of Kings de facto or dejure for all Kings are bound and sworne to observe the lawes Ob. 12 A King dies without Heyre is an infant non Compos mentis c. the two honses may establish Lawes g o Sol There is no Inter-regnum in England as appeares by all our books of law and therfore the dying without Heyre is a Vaine supposition and by their principle he is considerable in his politique capacity which cannot die at all The protector assisted by the Councell of the King at law his twelve Judges the councell of state his Attorney Solicitor and two Sergieants at law his twelve Masters of the Chancery hath in the Kings behalfe and ever had a negative Voice but what is this to the present question Wee have a King of full age of great wisdome and judgement The power of the two houses in such a case to be over the King cannot be showne Ob. 13 The King cannot disassent to publique and necessary Bills for the common good g o Sol. Nor ever did good King but who shall be judge whether they be publique and necessary The major part in either of the houses for passing of bills so pretended may be but one or two voices or very few and perhaps of no judicious men is it not then fitter or more agreeable to reason that his Majestie and Councell of State his twelve Judges his Sergieants Attorny and Solicitor twelve Masters of the Chancery should judge of the conveniency and benefit of such Bills for the publique good rather then a minor of which sort there may be in the houses or a weake man or a few who often times carry it by making the Major part which involves the consent of all Let reason determine Ob. 14 The Kings of England have beene elective and the King by his Coronation Oath is bound to maintaine justas leges consuetudines quas vulgas elegerit g o Sol. Popery hath beene in the kingdome and therefore to continue it still will not be taken for a good argument when things are setled for many ages to looke back to times of confusion is to destroy all repose The Act of Parliament of the first of K. James Chapter the first and all our extant lawes say that the Kings office is an heritage inhaerent in the blood of Our Kings and their byrth-right And usurpers that come in by the consent of the people 1 Ed. 4. cap. 1. are Kings de facto but not de jure as appeares by the acts of Parliament declaring them so And by all our law books and the fundamentall constitution of the Land Regall power is herditary and not elective For the words vulgus elegerit if vulgus be applied to the house of commons 1 H. 7. they if themselves can make no laws The Peeres were never yet termed vulgus but allowing they be so called the lawes to be made must be just and who is fit to judge thereof is before made evident Ob. 15 Customes cannot referre to future time and both are coupled Lawes and Customes Princes have beene deposed and may bee by the two houses g o Sol. The deposers were Traytors as appeares by the resolution of all the judges of England Cooke Chapter Treason in the second part of the Institutes And never was King deposed but in tumultuous and mad times and by the power of Armies and they who were to be the succeeding Kings in the head of them as Edward the third and Henry the fourth Ob. 16 The appeale to the Parliament for errors in judgements in all Courts is frequent g o Sol. This is only to the house of Lords and that is not the Parliament the house of Commons have nothing to doe therewith and in the house of Peeres if a writt of error be brought to reverse any judgment There is first a Petition to the King for the allowance thereof and the reason of the Law in this Case is for that the Judges of the Land all of them the Kings Councell and twelve Masters of the Chancery assist there by whose advice erroneous judgments are redressed Ob. 17 The Parliaments have determined of the rights of Kings as in Henry the sixts time and others and Parliaments have bound the succession of Kings as appeares by the statute of the thirteenth of Q. Eliza Chapter the first and the discent of the Crowne is guided rather by a Parliamentary Title then by common law g o Sol. If this objection be true that the Title to the Crowne is by Parliament then wee had no usurpers for they all had Parliaments to back them yea Richard the third that Monster All our books of law say they have the Crowne by discent and the Statutes of the Land declare that they have the same by inherent byrth-right And the Statute of the thirteenth of Elizabeth the first Chapter was made to secure Queene Elizabeth against the Queene of Scots then in the Kingdome clayming the Crowne of England and having many adherents And that Statute to that end affirmes no such power in the two Houses which is the Question but in Queene Esizabeth and the two Houses which makes against the pretence of this time Master