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Am Jur Summary

  • Submitted by: Sujidap
  • on December 15, 2010
  • Category: Miscellaneous
  • Length: 13,455 words

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English Prologue
  * Stuart Theory of the Divine Right of Kings
What is the extent of the King’s royal prerogative?
      * James I – law is divinely inspired reason, applied common sense, and the King is reason
        * relies on Bible – King is God’s viceroy on earth, capable of determining what reason is
        * Ellesmere (Lord Chancellor) – Rex est lex loquens, “The king is the law speaking” (Calvin’s Case)
      * Sir Edward Coke – law is artificial reason
        * relies on common law as the source of authority
            * unlimited, arbitrary power is inconsistent with the rule of law
            * precedent is accepted custom, need to be predictable to others
        * Quad Rex non debet esse sub homine, sed sub Deo et lege.   “Although the king must not be under man, but he must be under God and the law.”
        * secular representative (held every major political and legal position, CJ of Common Pleas)
        * believed that Court of High Commission (ecclesiastical court) was overextending its jurisdiction beyond church matters and encroaching on lay matters

Fuller’s Case
      * challenge to King’s courts v. Court of Common Pleas
      * lawyer Fuller’s clients refuse to take oath ex officio which asks nonconformists about religious beliefs and makes them take an oath of truth, Fuller says forces people to condemn themselves
      * ecclesiastical court says that an attorney who insults bishops commits an ecclesiastical crime
        * Coke aruged that this is a lay matter to be tried at common law – lost
        * Presser:   This is clearly an ecclesiastical matter b/c of issue

  * Seven Bishops case (1688)
Ascendancy of Parliament
      * Declaration of Indulgence – anyone can hold office and worship in public, bishops must publish
        * James II is trying to send message of religious freedom (and make Catholics safer)
        * fear of Catholic...

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