Selected quad for the lemma: justice_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
justice_n	judge_n	king_n	power_n	3,562	5	5.1146	4	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A75552	The arguments upon the writ of habeas corpus, in the Court of Kings Bench. Wherein, are learnedly discussed, not onely the severall branches of the said writ, but also many authorities as well of the common as statute law: and divers ancient and obscure records most amply and elaborately debated and cleared. Together, with the opinion of the court thereupon. Whereunto is annexed, the petition of Sir Iohn Elliot Knight, in behalf of the liberty of the subject.	Eliot, John, Sir, 1592-1632.; England and Wales. Court of King's Bench.	1649 (1649)	Wing A3649; Thomason E543_1; ESTC R204808	64,168	98

Lordship and all others but the parties themselves for I except them My Lord the great and mighty reason that they insisted upon was the inconveniences that might come to the subjects in their liberties if this Return should be good and this reason they inferred out of Records and Books of the Common Law which gives the liberty of the subjects I doe acknowledge that the liberty of the subject is just and that it is the inheritance of the subject but yet it is their inheritance secundum legem terrae My Lords they put many cases likewise to enforce it 1 2 Eliz. Dier fo 175. that the continuance of a Capias shall bee from Term to Term without Term betwixt because otherwise the party defendant may be kept too long in prison and 38 Ass pl. 22. Broke tit Imprisonment 100. that imprisonment is but to detaine the party till he have made fine to the King and therefore the King cannot justly detain him in prison after the fine tendred and 16 H. 6. monstrans de faictz 182. if the King command me to arrest a man and thereupon I doe arrest him he may have an action of false imprisonment or of trespasse against me though it be done in the Kings presence and 1 H. 7. 4. the discourse of Hussey where he saith that Sir John Markham delivered unto King Edward the fourth that hee should not arrest upon treason or felony any of his subjects because hee could not wrong his subjects by such arrest for they could not have remedy against him Prerogative Br. 139. These my Lord are the causes that they insisted upon for this purpose To the two first I shall give but one answer which is that the restraint in these two cases and most of the other cases before cited appears to be in the ordinary course of Judicature fit for Westminster Hall and not for the Kings Councell Table A writ of Capias was the first originall of it and therefore not to be applied to the cause of ours And for the other two cases the law presumeth that the active part of them is not so proper for the Majesty of a King who ever doth these things by his subordinate Officers But that the subject should not be committed by the King was never heard of for the King may commit any man at his pleasure but that is not our case but whether when the King hath committed one he must render a cause of that commitment that it may appear whether the party be bailable or not or else the party must be delivered The Book 9 E. 3. fol. 16. pl. 30. cited of a Cessavit the King having by Proclamation commanded that in the County of Northumberland no Cessavit should be brought c. during the war the tenant pleadeth this command and it was denyed him and he that notwithstanding was commanded to plead but the reason thereof was because the commandment thereof was given by E. 2. who being dead the commandment was determined The Book of Edward the third 4. fol. 16. is indeed where the commandment was given by the same King and that was likewise denyed him for the King cannot command your Lordship to any other Court of Justice to proceed otherwise then according to the Laws of this kingdome for it is part of your Lordships oath to judge according to the Law of the kingdome But my Lord there is a great difference between those legall commands and that absolute Potestas that a Soveraign hath by which a King commands but when I call it absoluta potestas I doe not mean that it is such a power as that a King may doe what he pleaseth for he hath rules to governe himself by as well as your Lordship who are subordinate Judges under him the difference is the King is the head of the same fountaine of Justice which your Lordship administers to all his subjects all Justice is derived from him and what he doth he doth not as a private person but as the Head of the Common-wealth as Iusticiarius Regni yea the very essence of Justice under God upon earth is in him and shall not wee generally not as subjects onely but as Lawyers who governe themselves by the rules of the Law submit to his command but make inquiries whether they be lawfull and say that the King doth not this or that in course of Justice If your Lordship sitting here shall proceed according to Justice who calleth your actions in question except in your own Judgements you see some errour in the proceeding and then you are subject to a writ of Errour But who shall call in question the Actions or the Justice of the King who is not to give any account for them as in this our case that he commits a subject and shews no cause for it The King commits and often shews no cause for it is sometimes generally Per special● mandatum domini Regis sometimes Pro certis causis ipsum dominum Regem moventibus but if the King doe this shall it not bee good it is all one when the commitment is Per speciale mandatum domini Regis and when it is Pro certis causis ipsum dominum Regem moventibus and it is the same if the commitment be Certis de causis ipsum dominum Regem tangentibus And my Lord unlesse the Return to you doth open the secrets of the commitment your Lordship cannot judge whether the party ought by Law to be remaunded or delivered and therefore if the King allow and give warrant to those that make the Return that they shall expresse the cause of the commitment as many times he doth either for suspition of felony or making money or the like we shall shew your Lordship that in these causes this Court in his Jurisdiction were proper to try these criminall causes and your Lordship doth proceed in them although the commitment be Per speciale mandatum domini Regis which hath not secret in it in these causes for with the warrant he sendeth your Lordship the cause of the committing and when these warrants are made and brought into this Court your Lordship may proceed but if there be no cause expressed this Court hath always used to remaund them for it hath been used and it is to be intended a matter of State and that it is not ripe nor timely for it to appear My Lord the main fundamentall grounds of Arguments upon this case beginnes with Magna Charta from thence have grown states for explanation thereof severall Petitions of Parliament and Presidents for expedition I shall give answers to them all For Magna Charta in the 29 Chapter hath these words No Free-man shall be taken nor imprisoned or disseised of his freehold liberties nor free customes nor be outlawed or exiled nor any other way destroyed nor we will not passe upon him nor condemn him but by lawfull Judgement of his Peers or by the Law of the Realm My Lord this statute

in those times that the King might then give such commandment for committing the scope of this statute had two hands first that the Warden should forfeit his office and secondly that he should recompence the party In the fourth and fifth of Phil. Mar. Dier 162. it was resolved that if the Warden shall deliver a man out of prison without command hee forfeiteth his office and damage unto the party But if he have the command of the King that shall excuse the forfeiture of his office but he must bring the party hither and here these Gentlemen are now for that commandment of the King is no exception for him not to observe If he receives a writ from this Court to shew the Court from whence he receives his warrant it may excuse the forfeiture of his office but notwithstanding he is subject to the action of the party But I desire your Lordship to observe that part of the statute which the other party would not make use of which is that the King may command by writ or otherwise these were all the printed statutes cited by the Councell on the other side But because I would not misinterpret these statutes I thought it equall to desire your Lordship that they might be read Besides the printed statutes they mentioned Petitions by the Commons and the Answers to them of severall Kings in Parliament The first is Rot. pl. ●6 Ed. 3. Numero primo Numero vicesimo besides these two there is one other of 28 Ed. 3. nu 18. My Lord these three petitions and their answers the two first were mentioned by the Councell on the other side that in 28 E. 3. 28. I have produced all of them even to one purpose The Commons then petitioned the King that all the Statutes made in exposition of Magna Charta and of the Forest may be kept and observed The King makes answer that it shall be done And in one of the answers it is said If any man be grieved he may complain But what is all this to the point in question could there be any other answer to give life to these requests The King he is petitioned that some are injured he answers That if they complain they shall be relieved And now my Lord we are where we were to finde out the true meaning of Magna Charta for there is the foundation of our Case all this that hath been said concerneth other things and nothing to the thing in Question There is not a word either of the commitment of the King or commandment of the Councell in all the Statutes and Records And now my Lord I am at an end of those Statutes and come to that that was alledged and mentioned to be in 3 H. 6. 46. and if I could have found it I would have brought it but I could not finde it therefore if they have it I desire that they will shew it but I think they have it not and therefore I will let that goe And now my Lord I come to that which I insisted upon the Question as it was at first not whether the King or the Lords of the Councell can commit a man and shew no cause wherefore they do commit him but whether the ordinary Courts of Justice have power to bail him or no for that I will insist upon the Statute of Westm primo which I desire your Lordship may be read and then I will apply Cap. 15. Mainprise Br. 11 56 78 Dier 170. Vide Westm primo My Lord this Statute if I misunderstand it not is a full expression to this purpose of Magna Charta the scope whereof is to direct us in what case men imprisoned were to be bailed It was especially for direction to the Sheriffes and others but to say Courts of Justice are excluded from this Statute I conceive it cannot be It recites that whereas heretofore it was not resolved in what cases men were replevisable and in what cases not but onely in these four cases For the death of a man or by the commandement of the King or of his Justices or of the Forest My Lord I say that this Statute expresseth not the Law was made by this Statute that in these cases men were not replevisable but it expresseth that the Law was clear in these cases In these four cases it was clearly resolved before I pray you my Lord observe the time of the making of this Statute that of Magna Charta was made in the time of Henry the third and this of Westminster in the time of Edward the first so that the first it was made in the time of the same And my Lord if they had understood the Statute of Magna Charta in another sense would they not have expressed it so in this Statute was it not fitter for them then for us they being nearer the first making of Magna Charta then we are But certainly the Statute of Magna Charta was expounded at the time as I have shewed before if not without all doubt at the time of making of Westm primo The Parliament would not have been so carefull to provide for things of lesser moment and omit this of so great consequence if there had been any question of it In all times and ages Magna Charta hath been confirmed but they shew not any one Law that doth except against this positive Law of Westminster the first or any Acts of Parliament nay more in any printed books that in this case men should be replevisable My Lord if you know nothing printed or unprinted if any will desire to alter a course that always hath been held you will seek for presidents for the constant use and course is the best exposition of the Law it is not enough for me to say this it is unlesse I make it good First then I say they on the other side cannot cite one Book late Statute or other thing to prove That they that have been committed Per speciale mandatum domini Regis are bailable But my Lord I finde some to the contrary that they are not bailable and I will cite some of them and read of others for I would not in a case of that expectation that it should be thought that any thing should be mis-interpreted In the 33 of Hen. the sixth folio vicesimo tertio Robert Poynings Case he was committed Pro diversis causis ipsum dominum Regem tangent ' this alters not the case for it was as good as no cause for it was the Warrant Domini Regis and there is no question upon this But my Lord I know this is not the point in question The next thing I shall shew unto your Lordship is Pasch 21 Edvardi primo Rot. cla secund and this my Lord was near the time of making of the Statute of Westm prim and this president is to this purpose The Sheriffe of Leicestershire and Warwickshire for then there was but one Sheriffe to both those Shires did receive

the Records and after the King releaseth his commandment and that the outlawry should be reversed and for the felony he was bailed Vide the Record So that you may see the offences mentioned in the Warrant for the commitment were triable here and when the King releases his commandment they were bailed for the rest but they that were committed by the commandment of the King were released by the King In 7 H. 7. the Cases of William Bartholmew Henry Carre and others is to the same effect by all which you may see that when the King releaseth his commandment they were bailed for the rest and as they were committed by the Kings commandment so they were released by the Kings command Now here I shall trouble you with no more presidents and you see your own what conclusion they produce And those strong presidents alledged on the other side we are not wiser then they that went before us and the common custome of the Law is the Common Law of the Land and that hath been the continuall common custome of the Law to which we are to submit for we come not to charge the Law but to submit to it We have looked upon that president that was mentioned by Master Atturney The resolution of all the Judges of England in 34 Eliz. we have considered of the time and I think there were not before nor have been since more upright Judges then they were Wray was one and Anderson another In Easter Term this was certified under the hands of all the Judges of England and Barons of the Exchequer in a duplicate whereof the one was delivered to the Lord Chancellor and the other to the Lord Treasurer to be delivered to the Queen We have compared our copies not taking them the one from the other but bringing them we have long had them by us together and they all agree word for word and that which M. Atturney said he had out of Judge Andersons Book and it is to this purpose to omit other things That if a man be committed by the commandment of the King he is not to be delivered by a Habeas Corpus in this Court for we know not the cause of the commitment Vide this at the latter end of the first part of Master Seldens Argument as aforesaid But the Question now is Whether we may deliver this Gentleman or not you see what hath been the practice in all the Kings times heretofore and your own Records and this resolution of all the Judges teacheth us and what can we do but walk in the steps of our forefathers If you ask me which way you should be delivered we shall tell you we must not counsell you Master Atturney hath told you that the King hath done it and we trust him in great matters and he is bound by Law and he bids us proceed by Law as we are sworn to do and so is the King and we make no doubt but the King if you seek to him he knowing the cause why you are imprisoned he will have mercy but we leave that If in Justice we ought to deliver you we would do it but upon these grounds and these Records and the presidents and resolutions we cannot deliver you but you must be remanded Now if I have mistaken any thing I desire to be righted by my brethren I have indeavoured to give the resolutions of us all TO THE KINGS MOST EXCELLENT MAIESTY The humble Petition of Sir John Elliot Knight Prisoner in the Gatehouse concerning the LOANE Delivered the 10th of Novemb 1627. but never answered SHEWETH THAT your poore suppliant affected with sorrow and unhappinesse through the long sense of your Majesties displeasure willing in every act of duty and obedience to satisfie your Majesty of the loyalty of his heart then which he hath nothing more desired that there may not remain a jealousie in your royall breast that stubbornnesse and will have been the motives of his forbearing to condescend to the said Loan low as your Highnesse foot with a sad yet a faithfull heart for an Apology to your Clemency and Grace he now presumes to offer up the Reasons that induced him which he conceiveth necessity of his duty to Religion Justice and your Majesty did inforce The Rule of Justice he takes to be the Law impartiall Arbiter of Governments and obedience the support and strength of Majesty the observation of that Justice by which subjection is commanded Religion adding to these power not to be resisted binde up the conscience in an Obligation to that rule which without open prejudice and violence of these duties may not be impeached In this particular therefore for the Loan being desirous to be satisfied how farre the Obligation might extend and resolving where he was left master of his own to become servant to your will he had recourse unto the Laws to be informed by them which in all humility he submitteth to your most sacred view in the Collections following In the time of Edw. 1. he findeth that the Commons of that age were so tender of their Liberties as they feared even their own free Acts and gifts might turn them to a Bondage and their heires wherefore it was desired and granted 25 E. 1. That for no businesse such manner of Aids Taxes nor Prizes should be taken but by common assent of the Realm and for the common Profit thereof The like was in force by the same King and by two other Laws again enacted Stat. Tallage 33 E. 1. That no Tallage or Aid should be taken or levied without the good will and assent of the Archbishops Bishops Earls Barons Knights Burgesses and other Freemen of the Land And that prudent and magnanimous Prince Edward the third led by the same Wisdome having granted That the greatest gift given in Parliament for the aid and speed of his matchlesse undertaking against France should not be had in example nor fall to the prejudice of the Subject in time to come did likewise adde in confirmation of that Right That they should not from thenceforth be grieved to sustain any charge or aid but by the common assent and that in Parliament And more particularly upon this point upon a Petition of the Commons afterwards in Parliament it was established Rot. 16. 25 E. 3. That the Loans which are granted to the King by divers persons be released and that none from henceforth be compelled to make such Loans against their wills because it is against reason and the Franchises of the Land and restitution be made to such as made such Loans And by another Act upon a new occasion in the time of Richard the third it was ordained That the Subject in no wise be charged with any such charge exaction or imposition called a Benevolence nor such like Charge and that such like exactions be damned and annulled for ever 1 R. 3. Such were the opinions of these times for all these Aids Benevolences Loans and such like charges exacted