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Michaelmas Term. 5 James I

Prohibitions del Roy.

Note, upon Sunday, the tenth of November, in this same Terme, the King, upon complaint made to him by Bancroft Arch-bishop of Canterbury, concerning Prohibitions, the King was informed, that when Question was made of what matters the Ecclesiasticall Judges have Cognizance, either upon the Exposition of the Statutes concerning Tiths, or any other thing Ecclesiasticall, or upon the Statute 1. Eliz.¹ concerning the high Commission, or in any other case in which there is not expresse Authority in Law, the King himselfe may decide it in his Royall 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 himselfe. And the Archbishop said, that this was cleer 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 cleer consent of all the Justices of England and Barons of the Exchequer, that the King in his own person cannot adjudge any case, either criminall, 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 Custome of England, and alwayes Judgements are given, Ideo consideratum est per Curiam, so that the Court gives the Judgement. And the King hath his Court, viz. in the upper House of Parliament, in which he with his Lords is the supreame 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 erre, that may be reversed in the upper house of Parliament, by the King, with the assent of the Lords Spirituall and Temporall, without the Commons: And in this respect the King is called the Chief Justice, 20 H. 7.7.2.² by Brudnell:³ 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 alwayes present in Court in the Judgement of Law; and upon this he cannot be non-suit:⁴ But the Judgements are alwayes given Per Curiam; and the Judges are sworn to execute Justice according to Law and custome of England. And it appeares by the Act of Parliament, of 2 Ed. 3. cap. 9.⁵ 2. Ed. 3. cap. 1.⁶ That neither by the great Seale, nor by the little Seale, Justice shall be delayed; ergo, the King cannot take any cause out of any of his Courts, and give Judgment upon it himselfe, but in his owne cause he may stay it, as it doth appeare, H.4.8.⁷ And the Judges informed the King, that no King after the conquest assumed to himselfe to give any Judgment in any cause whatsoever, which concerned the administration of Justice within this Realme, but these were solely determined in the Courts of Justice.⁸ And the King cannot arrest any man, as the Book is in 1 H.7.4.⁹ for the party cannot have remedy against the King, so if the King give any Judgment, what remedy can the party have, vide 39 Ed. 3.14.¹⁰ One who had a Judgment reversed before the Councill of State: it was held utterly void, for that it was not a place where Judgment may be reversed, vide 1.H.7.4 Hussey chiefe Justice,¹¹ who was Attorney to Ed. 4. reports, that Sir John Markham chief Justice said to King Edward 4 That the King cannot arrest a man for suspition of Treason or Felony, as other of his Leiges may; for that if it be a wrong to the party grieved, he can have no remedy. And it was greatly marvelled that the Arch-bishop durst informe the King, that such absolute power and authority as is aforesaid, belonged to the King by the Word of God, vide 4.H.4.cap.22¹² which being translated into Latine, the effect is, Judicia in Curia Regis reddita non annihilentur, sed stet judicium in suo robore quousq; per judicium Curiae Regis tanquam erroneum, &c. vide West, 2 cap. 5.¹³ vide le Stat. de Marbridge. cap 1.¹⁴ Provisum est, concordatum, & concessum, quod tam majores quam minores justitiam habeant & recipiant in Curia Domini Regis, & vide le Stat. de Mag. Charta. cap. 29.,¹⁵ 25 Ed. 3. cap. 5.¹⁶ None may be taken by petition or suggestion made to our Lord the King or his Councill, unless by Judgement. And 43 Ed. 3. cap. 3.¹⁷ no man shall be put to answer without presentment before the Justices, matter of Record, or by due Processe, or by Writ Originall, according to the Ancient Law of the Land: And if anything be done against it, it shall be void in Law and held for Error, vide 28 Ed. 3. cap. 3.,¹⁸ 37 Ed. 3. cap. 18.,¹⁹ vide 17 R. 2. ex rotulis Parliamenti in Turri act 10.²⁰ A controversie of Land between parties was heard by the King, and sentence given, which was repealed, for this, that it did belong to the common Law. 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 Lawes of his Realm of England, and causes which concerne the life, or inheritance, or goods, or fortunes of his Subjects; they are not to be decided by naturall reason, but by the artificiall reason and judgment of Law, which Law is an art 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 & Lege.²¹