CASES ON CONSTITUTIONAL LAW BOOK I. INTRODUCTORY TOPICS. CHAPTER I. THE DISTINCTION BETWEEN LEGISLATIVE, THE DUKE OF YORK'S CLAIM TO THE CROWN. HOUSE OF LORDS. 1460. [5 Rotuli Parliamentorum, 375.] Memorand', that the xvi day of Octobr', the ixth daye of this present Parlement, the Counseill of the right high and mighty Prynce Richard Duc of York, brought into the Parlement Chambre a writyng, conteignyng the clayme and title of the right, that the seid Duc pretended unto the Corones of Englond and of Fraunce, and Lordship of Irelond, and the same writyng delyvered to the Right Reverent Fader in God George Bishop of Excestre, Chaunceller of Englond, desiryng hym that the same writyng myght be opened to the Lordes Spirituelx and Temporelx assembled in this present Parlement, and that the seid Duc myght have brief and expedient answere thereof: wheruppon the seid Chaunceller opened and shewed the seid desire to the Lordes Spirituelx and Temporelx, askyng the question of theym, whither they wold the seid writyng shuld be openly radde before theym or noo. To the which question it was answered and agreed by all the seid Lordes: In asmuche as every persone high and lowe, suyng to this high Court of Parlement, of right must be herd, and his desire 1 The Constitution of the United States contains many passages more or less pertinent to this topic. See I. 1; I. 3, clause 6; I. 5, clauses 1 and 2; I. 7, clauses 2 and 3; I. 8, clauses 9 and 11-16 and 18; I. 9, clause 2; II. 1, clause 1; II. 2; II. 3; II.4; III. 1; III. 2, clauses 1 and 2; IV. 4; VI. clauses 2 and 3; Am. XI. - Ed. and Petition understande, that the said writyng shuld be radde and herd, not to be answered without the Kyngs commaundement, for so moche as the mater is so high, and of soo grete wyght and poyse. Which writyng there than was radde. . . . And afterward, the xvii day of October, the xth day of this present Parlement, the seid Chaunceller shewed and declared to the seid Lordes Spirituelx and Temporelx beyng in the same Parlement, howe that the Counseill of the seid Duc of York, gretely desired to have answere of such writyng, .. and theruppon asked the seid Lordes, what they thought was to be doon in that matier. To the which question it was answered and thought by all the seid Lordes, that the matier was so high and of such wyght, that it was not to eny of the Kynges Subgetts to enter into communication therof, withoute his high commaundement, agreement and assent had therto. And ferthermore, for asmoch as the seid Duc desired and required bref and undelared answere of the seid writyng, and in eschuyng and avoidyng of grete and manyfold inconveniences that weren lykly to ensue, yf hasty provision of good answere in that behalf were not had, it was thought and agreed by all the Lordes, that they all shuld goo unto the Kyng, to declare and open the seid mater unto his Highnes, and to understond what his good grace wuld to be doon ferther therin. And theruppon incontynent all the seid Lordes Spirituelx and Temporelx went to the Kyngs high presence, and therunto opened and declared the seid mater, by the mouth of his said Chaunceller of Englond. And the same matier by the Kynges Highnes herd and conceyved; It pleased hym to pray and commaunde all the seid Lordes, that they shuld serche for to fynde in asmuch as in them was, all such thyngs as myght be objecte and leyde ayenst the cleyme and title of the seid Duc. And the seid Lordes besaught the Kyng, that he wuld remember hym, yf he myght fynde any resonable mater that myght be objected ayenst the seid cleyme and title, in so moche as his seid Highnes had seen and understouden many dyvers writyngs and Cronicles. Wheruppon, on the morn the xviii day of October, . the forseid Lordes sent for the Kyngs Justices into the Parlement Chambre, to have their avis and Counsell in this behalf, and there delyvered to theym the writyng of the cleyme of the seid Duc, and in the Kyngs name gave theym straitely in commaundement, sadly to take avisament therin, and to serche and fynde all such objections as myght be leyde ayenst the same, in fortefying of the Kynges right. Wherunto the same Justices, the Monday, the xx day of Octobr' then next ensuyng, for their answere uppon the seid writyng to theym delyvered seiden, that they were the Kyngs Justices, and have to determyne such maters as com before theym in the lawe, betwene partie and partie, and in such maters as been betwene partie and partie they may not be of Counseill; and sith this mater was betwene the Kyng and the seid Duc of York as two parties, and also it hath not be accustumed to calle the Justices to Counseill in such maters, and in especiall the mater was so high, and touched the Kyngs high estate and regalie, which is above the lawe and passed ther lernyng, wherfore they durst not enter into eny communication therof, for it perteyned to the Lordes of the Kyngs blode, and th' apparage of this his lond, to have communication and medle in such maters; and therfore they humble bysought all the Lordes, to have theym utterly excused of eny avyce or Counseill, by theym to be yeven in that matier. CLARK'S CASE. [5 Coke's Reports, 64a.]1 IN an action of false imprisonment brought by Clark against Gape; the defendant justified the imprisonment, because King E. 6. incorporated the town of St. Albans by the name of Mayor, etc., and granted to them to make ordinances; and shewed, that the Queen appointed the term to be kept there, and that they with the assent of the plaintiff and other burgesses, did assess a sum on every inhabitant for the charges in erecting the courts there; and ordained, that if any should refuse to pay, etc., that he should be imprisoned, etc., and because the plaintiff being a burgess, etc., refused to pay, etc., he as Mayor justified; and it was adjudged no plea, for this ordinance is against the statute of Magna Charta, cap. 29. Nullus liber homo imprisonetur; which act hath been confirmed and established above thirty times, and the plaintiff's assent cannot alter the law in such case; but it was resolved, that they might have inflicted a reasonable penalty, but not imprisonment, which penalty they might limit to be levied by distress, or for which an action of debt lay; and the plaintiff had judgment. 1 s.c. sub nom. Bab v. Clarke, Moore, 411. ED. PROHIBITIONS DEL ROY. BEFORE ALL THE JUDGES. 1607. [12 Coke's Reports, 63.] NOTE, upon Sunday the 10th of November in this same term, the King, upon complaint made to him by Bancroft, Archbishop of Canterbury, concerning prohibitions, the King was informed, that when the question was made of what matters the ecclesiastical Judges have cognizance, either upon the exposition of the statutes concerning tithes, or any other thing ecclesiastical, or upon the statute 1 El. concerning the high commission, or in any other case in which there is not express authority in law, the King himself may decide it in his royal person; and that the Judges are but the delegates of the King, and that the King may take what causes he shall please to determine, from the determination of the Judges, and may determine them himself. And the Archbishop said, that this was clear in divinity, that such authority belongs to the King by the word of God in the Scripture. To which it was answered by me, in the presence, and with the clear consent of all the Judges of England, and Barons of the Exchequer, that the King in his own person cannot adjudge any case, either criminal, as treason, felony, &c. or betwixt party and party, concerning his inheritance, chattels, or goods, &c. but this ought to be determined and adjudged in some court of justice, according to the law and custom of England; and always judgments are given, ideo consideratum est per curiam, so that the Court gives the judgment: and the King hath his Court, viz. in the upper house of Parliament, in which he with his Lords is the supreme Judge over all other Judges; for if error be in the Common Pleas, that may be reversed in the King's Bench: and if the Court of King's Bench err, that may be reversed in the upper house of Parliament, by the King, with the assent of the Lords spiritual and temporal, without the Commons: and in this respect the King is called the Chief Justice, 20 H. 7. 7 a. by Brudnell: and it appears in our books, that the King may sit in the Star-chamber; but this was to consult with the Justices, upon certain questions proposed to them, and not in judicio: so in the King's Bench he may sit, but the Court gives the judgment: and it is commonly said in our books, that the King is always present in Court in the judgment of law; and upon this he cannot be nonsuit: but the judgments are always given per curiam; and the Judges are sworn to execute justice according to law and the custom of England. And it appears by the act of Parliament of 2 Ed. 3. cap. 9. 2 Ed. 3. cap. 1. That neither by the great seal, nor by the little seal, justice shall be delayed; ergo, the King, cannot take any cause out of any of his Courts, and give judgment upon it himself, but in his own cause he may stay it, as it doth appear 11 H. 4. 8. Then the King said, that he thought the law was founded upon reason, and that he and others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: and that the law was the golden met-wand and measure to try the causes of the subjects; and which protected his Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege. PROCLAMATIONS. PRIVY COUNCIL. 1610. [12 Coke's Reports, 74.]1 MEMORANDUM, that upon Thursday, 20 Sept. 8 Regis Jacobi, I was sent for to attend the Lord Chancellor, Lord Treasurer, Lord Privy Seal, and the Chancellor of the Duchy; there being present the Attorney, the Solicitor, and Recorder: and two questions were moved to me by the Lord Treasurer; the one if the King by his proclamation may prohibit new buildings in and about London, &c.; the other, if the King may prohibit the 1 s.c. 2 Howell's State Trials, 723. — Ed. |
