Concerning JusticeEmery, Lucilius A. (Lucilius Alonzo)
Philosophy
Concerning Justice
Emery, Lucilius A. (Lucilius Alonzo)
Courts -- United States; Justice; Justice, Administration of
Charles I assented to the Petition of Right and promised to observe
it, but no provision was made for any tribunal independent of the king
to determine whether his acts were in violation of any article of the
Petition. Consequently, when afterward in the matter of the tonnage
and poundage tax Parliament remonstrated against the imposition of the
tax as a violation of the royal promise in assenting to the Petition
of Right, the king abruptly ended the session and in his speech of
prorogation denied the right of Parliament to interpret the Petition
and asserted that it was for him alone to determine "the true intent
thereof." Again, the legality of the imposition by the king of the
"ship money" tax without the consent of Parliament was hopelessly
questioned. The king procured from the judges an opinion that he could
lawfully impose such a tax without awaiting the assent of Parliament,
when necessary for the defense of the kingdom, and that he was the
judge of the necessity and proper amount of the tax. But this was not
the opinion of an independent judiciary. The judges at that time could
be promoted, removed, or "recalled" at any time at the king's sole
pleasure, and they well knew the king's obstinate insistence in the
matter. Their opinion simply gave expression to the king's will, and
hence inspired no respect.
Finally, for want of an independent tribunal empowered to determine
authoritatively between king and subject "the true intent" of the
Petition of Right, the legal extent and limitation of the royal power,
the lawfulness of its exercise upon the subject in a given case, the
issues between them had to be submitted to the arbitrament of civil
war, with the result that the monarchical system of government was
overthrown. Its successor, an unchecked parliament, was no less
arbitrary in many of its acts, and was in turn overthrown and the
monarchy restored. The restored dynasty, however, obeying the impulse
of all possessors of governmental powers, soon began again to claim
and exercise autocratic power, to encroach upon the rights and
liberties thought to have been secured to the subject by the royal
assent to the Petition of Right and vindicated by successful
resistance, and also to suspend the operation of the laws at his
pleasure. Unfortunately again there was as yet no impartial,
independent tribunal in England to determine authoritatively the line
between the royal power and the specified rights of the subject. The
judges were still removable at the king's sole pleasure. James II did
not hesitate to use this power to obtain such opinions and decisions
as he desired. Preparatory to the trial of the Quo Warranto case
against the City of London to procure the forfeiture of its charter,
the king removed Chief Justice Pemberton and appointed in his place
the servile Saunders who had drawn the writ in the case and had
conducted all the proceedings in behalf of the crown as its counsel to
Public-domain text, read in full here on John Shaqi.
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