another Bill among you against Informers I desire you my Lords that as you tender my Honor and the good of my People ye will put that Bill to an end as soon as you can and at your next meeting to make it one of your first works For I have already shewed my dislike of that kinde of people openly in Star-Chamber and it will be the greatest ease to me and all those that are near about me at Court that may be For I remember that since the beginning of this Parliament Buckingham hath told me he never found such quiet and rest as in this time of Parliament from Projectors and Informers who at other times miserably vexed him at all hours And now I confess that when I looked before upon the face of the Government I thought as every man would have done that the people were never so happy as in my time For even as at divers times I have looked upon many of my Coppices riding about them and they appeared on the outside very thick and well-grown unto me but when I turned into the midst of them I found them all bitten within and full of Plains and bare spots like an Apple or Pear fair and smooth without but when ye cleave it asunder you finde it rotten at the Heart Even so this Kingdom the External Government being as good as ever it was and I am sure as Learned Judges as ever it had and I hope as honest Administring Justice within it and for Peace both at home and abroad I may truly say more setled and longer lasting then ever any before together with as great plenty as ever So as it was to be thought that every man might sit in safety under his own Vine and Fig-Tree Yet I am ashamed and it makes my hair stand upright to consider How in this time my people have been vexed and polled by the vile execution of Projects Patents Bills of Conformity and such like which besides the trouble of my people have more exhausted their Purses then Subsidies would have done Now my Lords before I go hence since God hath made me the Great Judge of this Land under him and that I must answer for the Justice of the same I will therefore according to my place remember you of some things though I would not teach you For no mans Knowledge can be so good but their Memories will be the better to be refreshed And now because you are coming to give Judgment all which moves from the King that you may the better proceed take into your care two things 1. To do Bonum 2. To do it Bene. I call Bonum when all is well proved whereupon ye Judge for then ye build upon a sure Foundation And by Bene I understand that ye proceed with all Formality and Legality wherein you have fit occasion to advise with the Judges who are to assist you with their Opinions in cases of that nature and wo be to them if they advise you not well So the ground being good and the form orderly it will prove a course fitting this High Court of Parliament In Sentence ye are to observe two parts First To recollect that which is worthy of judging and censuring and secondly To proceed against these as against such-like crimes properly We doubt there will be many matters before you some complained of out of Passion and some out of just cause of Grievance Weigh both but be not carried away with the impertinent discourses of them that name as well Innocent men as guilty Proceed judicially and spare none where ye finde just cause to punish But let your proceedings be according to Law and remember that Laws have not their Eyes in their Necks but in their Foreheads For the Moral Reason for the punishment of Vices in all Kingdoms and Commonwealths is because of the Breach of Laws standing in force For none can be punished for Breach of Laws by Predestination before they be made There is yet one particular that I am to remember you of I hear that Sir Henry Yelverton who is now in the Tower upon a Sentence given in the Star-Chamber against him for deceiving my trust is touched concerning a Warrant Dormant which he made while he was my Attorney I protest I never heard of this Warrant Dormant before and I hold it as odious a matter as any is before you And if for respect to me ye have forborne to meddle with him in Examination because he is my Prisoner I do here freely remit him unto you and put him into your hands And this is all I have to say unto you at this time wishing you to proceed justly and nobly according to the Orders of your House and I pray God to bless you and you may assure your selves of my assistance Wishing that what I have said this day among you may be entred into the Records of this House The Lords pronounced Sentence upon Sir Giles Mompesson who was fled beyond Sea 1. THat he shall be degraded of the Order of Knighthood with reservation of the Dignity of his Wife and Children 2. That he shall stand perpetually in the degree of his person Outlawed for Misdemeanor and Trespass 3. That his testimony be received in no Court nor he to be of any Inquisition or Iury. 4. That he shall be excepted out of all General Pardons to be hereafter granted 5. That he shall be imprisoned during life 6. That he shall not approach within Twelve miles of the Court or Prince nor of the Kings High Court usually held at Westminster 7. And the Kings Majesty shall have the profit of his Lands for life and all his Goods and Chattels so forfeited and that he shall undergo Fine and Ransome which was set at Ten thousand pounds 8. Disabled to hold or receive any Offce under the King or for the Commonwealth 9. That he shall be ever held an infamous person 10. And his Majesty added thereunto perpetual Banishment Sir Francis Michel a Projector and Mompessons Compartner was fined One thousand pound degraded and imprisoned in the same place in Finsbury Fields which he had prepared for others For the Tower was thought too honorable for such a person He rode likewise from Westminster into London with his face to the Horse-tail Likewise the King revoked his Letter Patents Commissions and Proclamations concerning Inns and Ale-houses and the Manufactures of Gold and Silver Thred To these Reformations the King gave encouragement by his Third Speech in Parliament wherein he declared much against Corruption and Bribery in Judicatures professing That no person should be preferred before the publick good and that no offender should go unpunished In the same Speech he gave them thanks for the Subsidies given in the beginning of the Parliament and for the Title of the Grant and proceeded to open his present state in relation to his Son in Law the Prince Elector Palatine how the sums granted by the Act of Subsidy were taken up
with Brick which he intendeth onely for the Beauty and more â—afety of the City therefore he will go through with it and if the Commissioners offend herein let the party aggrieved complain and he will redress it that the form of proceedings used by the Commons in this Parliament is also a grievance unto his Majesty for that they did not call the Commissioners whom they complained of before them touching their complaint against Doctor Aynan his Majesty said their oath of Supremacy forbids them to meddle with Church matters besides they complain against him and never heard him Touching their complaint against the Apothecaries his Majesty protested his care therein to be onely for his peoples health it is dangerous for every one to meddle with Apothecaries ware and the Grocers have a Trade beside His fourth grievance is that Seditious Books are so frequently printed which he will be carefull to prevent hereafter Fifthly for calling in so many Patents appointing the Patentees to wait so many days with their Council and never to hear them wherefore his Majesty warned them to call for no more hereafter unless they first knew them to be grievous to the people and so his Majesty concluded with thanks for the Commons good carriage towards him and his Lords this Session Then the Lord Keeper spake to the particulars of the Speakers Speech and by his Majesties command approved them all alluding the general consent of both Houses to the Septuagint directed by the Holy Ghost and touching the Speakers desire for the Kings assent to the Bills past both Houses he said the royal assent is proper to the Lawgiver and shewed that it is best for the people that this is in his Majesties power and not in themselves for the King knoweth what is best to be granted unto his people as may appear by the Petition that Bathsheba made to King Solomon to give unto Adonijah Abishag to wife which had Solomon granted he had given Adonijah means to usurp the Kingdom contrary to Bathsheba's meaning and such is his Majesties intent this day for such Bills which he will not pass That his Majesty had given his consent to all the Bills of Grace and to the Bill of the continuance of some Statutes and repeal of others so necessary and for the good of the people That his Majesty accepteth in good part their thanks for his general Pardon which he hath so freely granted unto his Subjects but his special command is that those that are in Office do look strictly to the execution of Laws against Recusants the Subsidies his Majesties graciously accepteth and therefore imitates not the Story in Macrobius of one who had all his debts paid and instead of thanks answered mihi nihil though this be given to the Palatinate his Majesty interpreteth it as given to himself and rendreth to you all hearty thanks for the same The Lord Keeper having ended his Speech the Clerk of the Crown stood up and read the title of the Bills passed both Houses and the Clerk of the Parliament read his Majesties Answer to each Bill which being done his Majesty remembred the breaking up of three Parliaments together and the happy conclusion of this Session and puts the Commons again in minde that at their next meeting they do so carry themselves that this Parliament may be as happily continued to the end At the Parliament holden at Westminster by Prorogation the Nineteenth day of February Anno Regis Iacobi Angliae Franciae Hiberniae vicesimo primo Scotiae quinquagesimo septimo These Acts were passed 1. AN Act for making perpetual an Act made Anno 39 Eliz. Entituled An Act for the Erecting of Hospitals and Workhouses for the Poor 2. An Act for the quiet of the Subject against Concealments 3. An Act concerning Monopolies and Dispensations with Penal Laws 4. An Act for ease of the Subjects concerning Informations upon Penal Statutes 5. An Act That Sheriffs their Heirs c. having a Quietus est shall be discharged of their Accompts with the Judges opinion therein 6. An Act concerning Women convicted of small Felonies 7. An Act to repress Drunkenness and to restrain the haunting of Inns c. 8. An Act to punish Abuses in procuring Supersedeas of the Peace out of the Courts at Westminster and to prevent the Abuses in procuring Writs of Certiorari out of the said Courts c. 9. An Act for the Free Trade of Welsh Clothes c. in England and Wales 10. An Act to repeal a Branch of the Statute An. 34 H. 8. Entituled An Act for certain Ordinances in the Kings Dominions and Principality of Wale 11. An Act for Confirmation of a Judgment given for his Majesty in a Scire facias against Henry Heron and for Declaration of the Letters Patents therein mentioned to be void 12. An Act to make perpetual the Act for ease in pleading against troublesom Suits prosecuted against Justices of the Peace Mayors c. 13. An Act for the further reformation of Jeofails 14. An Act to admit the Subject to plead the General Issue in Informations of Intrusion brought on the Kings behalf and to retain his Possession till Trial. 15. An Act to enable Judges and Justices to give restitution of Possession in certain cases 16. An Act for Limitation of Actions and for avoiding of Suits in Law 17. An Act against Usury 18. An Act for the Continuance of a former Statute made 4º Iac. Entituled An Act for the true making of Woollen Clothes 19. An Act for the further Description of a Bankrupt and relief of Creditors against such as shall become Bankrupts and for inflicting of Corporal punishment upon them in some Cases 20. An Act to prevent Swearing and Cursing 21. An Act concerning Hostlers and Inholders 22. An Act explaining a Statute An. 3 4 5 E. 6. concerning the Traders of Butter and Cheese 23. An Act to avoid Delaies by removing of Actions out of Inferior Courts 24. An Act for relief of Creditors against such as die in Execution 25. An Act for relief of Patentees Tenants and Farmers of Crown-Lands and Duchy-Lands 26. An Act against such as shall levy any Fine suffer any Recovery knowledge any Statute Recognisance Bail or Judgment in the name of any person not privy thereunto 27. An Act to prevent the murthering of Bastard-children 28. An Act to continue divers Statutes and repeal others 29. An Act to enable Prince Charls to make Leases of Lands parcel of the Duchy of Cornwal or annexed to the same 30. An Act to assure York-House and other Lands to the King and to assure the Manors of Brighton Santon and other Lands to the Archbishop of York c. 31. An Act for the good Government of the Makers of Knives in Hallam-shire in the County of York 32. An Act to make the Thames Navigable from Bercot to Oxon. 33. An Act for the Subsidies of the Clergy 34. An Act for Three Subsidies Three Fifteens and Tenths granted by the
adding but one The Regality of our Narrow Seas the Antient Inheritance of our Princes lost or impeached This I need not further to press but from hence my Observation must descend to his other Virtues and that by way of Perspective I shall give it so near and short as rather to exercise your Lordships Memory then to oppress your patience First I propose unto your Lordships the inward Character of the Dukes minde which is full of Collusion and Deceipt I can express it no better then by the Beast called by the Antients Stellionatus a Beast so blur'd so spotted so full of foul lines that they knew not what to make of it So do we finde in this mans practice who first inveagled the Merchants drawing them to Deep to be inchralled then dealt deceitfully with the King to colour his Offences his design being against Rochel and the Religion Next with the Parliament to disguise his Actions a practice no less dangerous and disadvantageous to us then prejudicial to our Friends and Allies Next I present to your Lordships the Dukes high oppression and that of strange latitude and extent not to Men alone but to Laws and Statutes to Acts of Council to Pleas and Decrees of Court to the pleasure of his Majesty all must stoop to him if they oppose or stand in his way This hath been expressed unto you in the Ship called the St. Peter and those of Deep nay he draws on the colour of his Majesties great Name to shadow his design It had been his duty nay the trust of his place not to have translated them into the hands of strangers that had his Majesty yeilded in that point the Duke should have opposed it by his continual Prayers and Intercessions making known unto his Majesty the Inconveniencies likely to ensue and not to rest there but to have reported it to your Lordships sitting in Council to have desired and prayed your aid and assistance in a matter of so great importance And if this had failed he should have entered into a Protestation against it This hath been done by worthy Predecessors in that Office and this had been the worthy discharge of the great trust reposed in his place I heard the Ships were returned but I know it not but if I knew so this neither excuseth nor qualifieth the Dukes offence The French in this case are to be commended not he excused he left them in the hands of a Foreign Power who when they once had them for any thing he knew might easily have kept them The third head is The Dukes extortion in exacting from the East-India Company without right or colour Ten thousand pounds exquisitely expressed and Mathematically observed by the Gentleman you know by whom employed who by his Marine experience learned this Observation That if the Fleet gained not the wind by such time at the Cape the Voyage was lost Here one of the Lords interposing privately It was the King that employed him Sir Iohn Elliot in the Name of the Commons makes this Protestation Far be it from them to lay any Odium or Aspersion on his Majesties Name they hold his Honor spotless nor the least shadow of blemish can fix upon him in this business Next to foul Extortion is Bribery and Corruption in the Sale of Honor and Offices of Command That which was wont to be the crown of Vertue and Merit is now become a merchandise for the greatness of this man and Justice it self made a prey unto him All which particulars your Lordships have heard opened and enforced with Reasons and Proofs what in themselves they are and therefore I spare further to press them In the fifth place I observe a wonder in Policy and in Nature how this man so notorious in evil so dangerous to the State in his immense greatness is able to subsist of himself and keep a Being To this I answer That the Duke hath used the help of art to prop him up It was apparent That by his skill he hath raised a party in the Court a party in the Country and a main party in the cheif places of Government in the Kingdom So that all the most deserving Offices that require Abilities to discharge them are fixed upon the Duke his Allies and Kinred And thus he hath drawn to him and his the Power of Justice the Power of Honor and the Power of Command and in effect the whole Power of the Kingdom both for Peace and War to strengthen his Allies and in setting up himself hath set upon the Kingdoms Revenues the Fountain of Supply and the Nerves of the Land He intercepts consumes and exhausts the Revenues of the Crown not onely to satisfie his own lustful desires but the Luxury of others and by emptying the Veins the Blood should run in he hath cast the Body of the Kingdom into a high Consumption Infinite sums of Money and mass of Land exceeding the value of Money Contributions in Parliament have been heaped upon him and how have they been employed Upon costly Furniture sumptuous Feasting and magnificent Building the visible evidences of the express exhausting of the State and yet his Ambition which is boundless resteth not here but like a violent flame bursteth forth and getteth further scope Not satisfied with injuries and injustice and dishonoring of Religion his attempts go higher to the prejudice of his Soveraign which is plain in his practice The effects I fear to speak and fear to think I end this passage as Cicero did in a like case Ne gravioribus utar verbis quam rei natura fert aut levioribus quam causae necessitas postulat Your Lordships have an Idea of the Man what he is in himself what in his affections You have seen his power and some I fear have felt it you have known his practice and have heard the effects It rests then to be considered what being such he is in reference to the King and State how compatible or incompatible with either In reference to the King he may be stiled the Canker in his Treasure in reference to the State the Moth of all goodness What future hopes are to be expected your Lordships may draw out of his Actions and Affections I will now see by comparison with others to what we may finde him likened I can hardly finde him a match or parallel in all Presidents none so like him as Sejanus who is thus described by Tacitus Audax sui obtegens in alios criminator juxta adulator superbus To say nothing of his Veneries if you please to compare them you shall easily discern wherein they vary such boldness of the one hath lately been presented before you as very seldom or never hath been seen For his secret Intentions and Calumniations I wish this Parliament had not felt them nor the other before For his Pride and Flattery it is noted of Sejanus that he did Clientes suos Provinciis adornare Doth not this Man the like Ask England
when the end may be the service of his Majesty and the good of the Commonweale But on the contrary when against a Parliament Law the Subject shall have taken from him his goods against his will and his liberty against the Laws of the Land shall it be accounted want of duty in us to stand upon our Priviledges hereditary to us and confirmed by so many Acts of Parliament In doing this we shall but tread the steps of our forefathers who ever preferred the Publick Interest before their own right nay before their own lives nor can it be any wrong to his Majesty to stand upon them so as thereby we may be the better enabled to do his Majesties service but it will be a wrong to us and our posterity and our consciences if we willingly forego that which belongs unto us by the Law of God and of the Land and this we shall do well to present to his Majesty we have no cause to doubt of his Majesties gracious acceptation This Debate said Sir Tho. Wentworth carries a double Aspect towards the Soveraign and the Subject though both be innocent both are injured and both to be cured Surely in the greatest humility I speak it these illegal ways are punishment and marks of indignation the raising of Loans strengthned by Commission with unheard of Instructions and Oathes the billetting of Soldiers by the Lieutenants and Deputy Lieutenants have been as if they could have perswaded Christian Princes yea worlds that the right of Empires had been to take away by strong hands and they have endeavored as far as possible for them to do it This hath not been done by the King under the pleasing shade of whose Crown I hope we shall ever gather the fruits of Justice but by Projectors who have extended the Prerogative of the King beyond the just Symetry which maketh a sweet harmony of the whole They have brought the Crown into greater want then ever by anticipating the Revenues And can the Shepherd be thus smitten and the Speep not scattered They have introduced a Privy-Council ravishing at once the Spheres of all ancient Government imprisoning us without either bail or bond they have taken from us what shall I say indeed what have they left us All means of supplying the King and ingratiating our selves with him taking up the root of all propriety which if it be not seasonably set again into the ground by his Majesties own hands we shall have insteed of beauty baldness To the making of those whole I shall apply my self and propound a Remedy to all these diseases By one and the same thing have King and People been hurt and by the same must they be cured to vindicate what new things no our ancient vital Liberties by reinforcing the ancient Laws made by our Ancestors by setting forth such a Character of them as no licentious spirit shall dare to enter upon them and shall we think this is a way to break a Parliament no our desires are modest and just I speak truly both for the interest of King and People if we injoy not these it will be impossible for to relieve him Therefore let us never fear they shall not be accepted by his goodness wherefore I shall shortly descend to my motions consisting of four parts two of which have relation to our persons two to the propriety of goods for our persons first the freedom of them from imprisonment secondly from imployment abroad contrary to the ancient Customs For our goods that no Levies be made but by Parliament secondly no billetting of Soldiers It is most necessary that these be resolved that the Subject may be secured in both Sir Benjamin Rudyard stands up as a Moderator and spake thus This is the Chrysis of Parliaments we shall know by this if Parliaments live or die the King will be valued by the success of us the Councils of this House will have opperations in all 't is sit we be wise his Majesty begins to us with affection proclaiming that he will relie on his peoples love preservation is natural we are not now on the bene esse but on the esse be sure England is ours and then prune it Is it no small matter that we have provoked two most Potent Kings we have united them and have betrayed our selves more then our enemies could Men and Brethren what shall we do is there no balm in Gilead if the King draw one way the Parliament another we must all sink I respect no particular I am not so wise to contemn what is determined by the major part one day tells another and one Parliament instructs another I desire this House to avoid all contestations the hearts of Kings are great 't is comely that Kings have the beter of their Subjects give the King leave to come off I believe his Majesty expects but the occasion 't is lawfull and our duty to advise his Majesty but the way is to take a right course to attain the right end which I think may be thus by trusting the King and to breed a trust in him by giving him a large Supply according to his wants by prostrating our Grievances humbly at his feet from thence they will have the best way to his heart that is done in duty to his Majesty And to say all at once Let us all labor to get the King on our side and this may be no hard matter considering the neer subsistence between the King and people Sir Edward Cook spake next Dum tempus habemus bonum operemur I am absolutely to give Supply to his Majesty yet with some caution To tell you of Forein dangers and inbred evils I will not do it the State is inclining to a consumption yet not incurable I fear not Forein Enemies God send us peace at home for this disease I will propound remedies I will seek nothing out of mine own head but from my heart and out of Acts of Parliament I am not able to fly at all Grievances but only at Loans Let us not flatter our selves who will give Subsidies if the King may impose what he will and if after Parliament the King may inhaunce what he pleaseth I know the king will not do it I know he is a Religious King free from personal vices but he deals with other mens hands and sees with other mens eyes will any give a Subsidy that may be taxed after Parliament at pleasure the King cannot tax any by way of Loans I differ from them who would have this of Loans go amongst Grievances but I would have it go alone I le begin with a noble Record it cheers me to think of it 25. E. 3. it is worthy to be written in letters of gold Loans against the will of the Subject are against reason and the Franchises of the Land and they desire restitution what a word is that Franchise The Lord may tax his Villain high or low but it is against the Franchises
of the Land for freemen to be taxed but by their consent in Parliament Franchise is a French word and in Latine it is Libertas In Magna Charta it is provided that Nullus liber homo capiatur vel imprisoâ—etur aut disseisietur de libero tenemento suo c. nisi per legale judicium parium suorum vel per legem terrae which Charter hath been confirmed by good Kings above thirty times When these Gentlemen had spoken Sir Iohn Cook Secretary of State took up the matter for the King and concluded for redress of Grievances so that Supplies take the precedency And said I had rather you would hear any then me I will not answer what hath been already spoken my desire is not to stir but to quiet not to provoke but to appease my desire is that every one resort to his own heart to reunite the King and the State and to take away the scandal from us every one speaks from the abundance of his heart I do conclude out of every ones Conclusion to give to the King to redress Grievances all the difference is about the manner we are all Inhabitants in one House the Commonwealth let every one in somewhat amend his house somewhat is amiss but if all the House be on fire will we then think of amending what 's a miss will you not rather quench the fire the danger all apprehend The way that is propounded I seek not to decline illegal courses have been taken it must be confessed the redress must be by Laws and Punishment but withal add the Law of Necessity Necessity hath no Law you must abilitate the State to do what you do by Petition require It is wished we begin with Grievances I deny not that we prepare them but shall we offer them first will not this seem a Condition with his Majesty do we not deal with a wise King jealous of his Honor All Subsidies cannot advantage his Majesty so much as that his Subjects do agree to Supply him This will amaze the Enemy more then ten Subsidies begin therefore with the King and not with our selves This dayes Debate said Sir Robert Philips makes me call to minde the custom of the Romans who had a solemn feast once a year for their Slaves at which time they had liberty without exception to speak what they would whereby to ease their afflicted minds which being finished they severally returned to their former servitude This may with some resemblance and distinction well set forth our present State where now after the revolution of some time and grievous sufferings of many violent oppressions we have as those Slaves had a day of liberty of speech but shall not I trust be herein Slaves for we are free we are not Bondmen but Subjects these after their Feast were Slaves again but it is our hope to return Freemen I am glad to see this mornings work to see such a sense of the Grievances under which we groan I see a concurrence of grief from all parts to see the Subject wronged and a fit way to see the Subject righted I expected to see a division but I see honorable conjunction and I take it a good Omen It was wished by one that there were a forgetfulness of all let him not prosper that wisheth it not No there is no such wayes to perfect remedy as to forget injuries but not so to forget as not to recover them It was usual in Rome to bury all injuries on purpose to recover them It was said by a Gentleman that ever speaks freely We must so govern our selves as if this Parliament must be the Chrysis of all Parliaments and this the last I hope well and there will be no cause for the King our Head to except against us or we against him The dangers abroad are presented to us he is no English man that is not apprehensive of them We have provoked two Potent Kings the one too near who are too strongly joyned together the dangers are not Chimerical but real I acknowledge it but it must be done in proportion of our dangers at home I more fear the violation of Publick Rights at home then a Forein Enemy Must it be our duties and direction to defend Forein dangers and establish security against them and shall we not look at that which shall make us able and willing thereunto We shall not omit to confide and trust his Majesty otherwise our Councils will be with fears and that becomes not Englishmen The unaccustomed violences I have nothing but a good meaning â—rench into all we have To the four particulars already mentioned wherein we suffer one more may be added Lest God forbare to hear me in the day of my trouble our Religion is made vendible by Commissions Alas now a tolleration is granted little less and men for pecuniary annual rates dispenced withal whereby Papists without fear of Law practise Idolatry and scoff at Parliaments at Laws and all it is well known the people of this State are under no other subjection then what they did voluntarily consent unto by the original contract between King and people and as there are many Prerogatives and Priviledges conferred on the King so there are left to the Subject many necessary Liberties and Priviledges as appears by the Common Laws and Acts of Parliament notwithstanding what these two Sycophants have prated in the Pulpit to the contrary Was there ever yet King of England that directly ever violated the Subjects Liberty and Property but their actions were ever complained of in Parliament and no sooner complained of then redressed 21 E. 3. there went out a Commission to raise money in a strange manner the succeeding Parliament prayed redress and till H. 8. we never heard of the said Commissions again Another way was by Loan a worm that cankered the Law the Parliament did redress it and that money was paid again The next little Engine was Benevolence what the force of that was look into the Statute of R. 3. which damned that particular way and all other indirect wayes Since the Right of the Subject is thus bulwarkt by the Law of the Kingdom and Princes upon complainâ— have redressed them I am confident we shall have the like cause of joy from his Majesty I will here make a little digression The County I serve for were pleased to command me to seek the removal from them of the greatest burthen that ever people suffered It was excellently said Commissionary Lieutenants do deprive us of all Liberty if ever the like was seen of the Lieutenancy that now is I will never be believed more They tell the people they must pay so much upon a warrant from a Deputy Lieutenant or be bound to the good behavior and sent up to the Lords of the Council it is the strangest Engine to rend the Liberty of the Subject that ever was there was now a Decemviri in every County and amongst that
ad idem dash not the Common-wealth twice against one Rock We have Grievances we must be eased of them who shall ease us No Nation hath a people more loving to the King then we but let the King think it and believe it there is a distance betwixt him and us before we can have his heart we must remove it Our disease is not so great but that it may be cured it is the Kings Evil which must be cured with Gold let us imitate Iacob who wrestled with the Angel and would not let him go I would we could wrestle with the King in duty and love and not to let him go in this Parliament till he comply with us We must take heed of too much repetition and over-beating of Grievances it is dangerous and it may make a further separation He that talks too much of his Grievance makes the party that is the cause of it make an apology and to justifie it and that is dangerous let us do as Poets in a Tragedy that sometimes have Comical Passages and so a generous mind will sink presently Sure a due presentation of such Grievances to such a King with moderation will take place with him In all deliberations go the safest way The old way I have heard is first to remove Grievances we must not ty and bind our selves by all that was done before I have gone over the Thames in former times on foot when it was all an Ice but that is no argument to perswade me by to do the like now because I did so once THe House waving the Debate of the Propositions proceeded with Grievances by Confinement and Designation for forain imployment in which points several Gentlemen delivered their opinion COnfinement is different from Imprisonment and it is against the Law that any should be confined either to his House or elswhere I know not what you can call a Punishment but there is some ground of it or mention thereof in Acts of Parliament Law-books or Records but for this of Confinement I finde none indeed Jews have been confined in former times to certain places as here in London to the old Iury The Civilians have perpetual Prisons and coercive Prisons upon Judgements in Court Carcer domesticus is a confinement for madmen I Was imployed in 88. in that service it was then thought fit that Recusants should be confined in strong places but it was not held legal and when the Navy was dispiersed they were set at liberty and the Parliament petitioned the Queen for a Law to warrant the Confinement Hereupon it was resolved That no freeman ought to be confined by any command of the King or Privy Councel or any other unless it be by Act of Parliament or by other due course or warrant of Law And then the House proceeded to the Debate concerning Designation to forain Imployment TOuching Designation to forain Imployment Sir Peter Hayman opened his own Case I have forgot my imployment unto the Palatinate I was called before the Lords of the Councel for what I know not I heard it was for not lending on a Privy Seal I told them if they will take my Estate let them I will give it up give I will not When I was before the Lords of the Councel they laid to my Charge my unwillingness to serve the King I said I had my Life and my Estate to serve my Countrey and my Religion They put upon me if I did not pay I should be put upon an imployment of Service I was willing after ten weeks waiting they told me I was to go with a Lord into the Palatinate and that I should have imployment there and means befitting I told them I was a Subject and desired means some put on very eagerly some dealt nobly they said I must go on my own purse I told them Nemo militat suis expensis some told me I must go I began to think What must I none were ever sent out in that kinde Lawyers told me I could not be so sent having that assurance I demanded means and was resolved not to stir upon those tearms and in silence and duty I denied upon this they having given me a Command to go after some twelve days they told me they would not send me as a Soldier but to attend on an Ambassador I knew that stone would hit me I setled my troubled estate and addressed my self to that Service THis is a great Point that much concerns the Commonwealth if the the King cannot command a Subject to his necessary service and on the other side it will be little less then an honorable banishment to the Subject if he may Our Books say the King cannot compel any to go out of the Realm and an action brought against him he cannot plead in Bar that he is by command from the King in forein service but the King may give him his protection 5 E. 3. N. 9. in the Parliament Roll there was an Ordinance whereby the King had power to send some to Ireland it is ordained that such Sages of the Law and Soldiers where need shall be though they refuse to go and excuse themselves if their excuses be not reasonable the King may do to them according to right and reason If the King by Law could do this of himself and send them to Ireland his own Dominion he would never have taken power from his Parliament and if men do not according to that Law there is no imprisonment prescribed NO restraint be it never so little but is Imprisonment and forain imployment is a kind of honorable Banishment I my self was designed to go to Ireland I was willing to go and hoped if I had gone to have found some Mompessons there There is a difference when the Party is the Kings servant and when not 46 E. 3. this was the time when the Law was in its height Sir Richard Pembridge was a Baron and the Kings Servant and Warden of the Cinque-ports he was commanded to go to Ireland and to serve as Deputy there which he refused He was not committed but the King was highly offended and having Offices and Fees and Lands pro servitio suo impenso the King seized his Lands and Offices I went to the Parliament Roll 47. E. 3. where I found another precedent for forain imployment they that have Offices pro consilio or servitio impenso if they refuse those Lands and Offices so given are seized but no commitment IF any man owes a man displeasure and shall procure him to be put into forain imployment it will be a matter of high concernment to the Subject We know the Honor and Justice of the King but we know not what his ministers or the mediation of Ambassadors may do to work their own wrath upon any man IF you grant this Liberty what are you the better by other priviledges what difference is there between imprisonment at home and constrained imployment
lege regerentur And though the Book of Litchfield speaking of the times of the Danes says then Ius sopitum erat in regno leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam Judicia vel Justitia yet by the blessing of God a good King Edward commonly called St. Edward did awaken those Laws and as the old words are Excitatas reparavit reparatas decoravit decoratas confirmavit which Confirmavit shews that good King Edward did not give those Laws which William the Conqueror and all his Successors since that time have sworn unto And here my Lords by many Cases frequent in our modern Laws strongly concurring with those of the ancient Saxon Kings I might if time were not more precious demonstrate that our Laws and Customs were the same I will onely intreat your Lordships leave to tell you That as we have now even in those Saxon times they had their Court Barons and Court Leets and Sheriffs Courts by which as Tacitus says of the Germanes their Ancestors Iura reddebant per pagos vicos and I do believe as we have now they had their Parliaments where new Laws were made cum consensu Praelatorum Magnatum totius Communitatis or as another writes cum consilio Praelatorum Nobilium sapientium Lâ—icorum I will add nothing out of Glanvile that wrote in the time of Hen. 2. or Bracton that writ in the days of Hen. 3. onely give me leave to cite that of Fortescue the learned Chancellor to Hen. 6. who writing of this Kingdom says Regnum istud moribus nationum regum temporibus eisdem quibus nunc regitur legibus consuetudinibus regebatur But my good Lords as the Poet said of Fame I may say of our Common Law Ingrediturque solo caput inter nubila condit Wherefore the cloudy part being mine I will make haste to open way for your Lordships to hear more certain Arguments and such as go on more sure grounds Be pleased then to know that it is an undoubted and fundamental Point of this so ancient Common Law of England That the Subject hath a true property in his goods and possessions which doth preserve as sacred that meum tuum that is the nurse of Industry and mother of Courage and without which there can be no Justice of which meum tuum is the proper object But the undoubted Birthright of true Subjects hath lately not a little been invaded and prejudiced by pressures the more grievous because they have been pursued by imprisonment contrary to the Franchises of this Land and when according to the Laws and Statutes of this Realm redress hath been sought for in a legal way by demanding Habeas Corpus from the Judges and a discharge by trial according to the Law of the Land success hath failed that now inforceth the Commons in this present Parliament assembled to examine by Acts of Parliament Precedents and Reasons the truth of the English Subjects liberty which I shall leave to learned Gentlemen to argue NExt after Sir Dudly Diggs spake Mr. Ed Littleton of the Inner-Temple That their Lordships have heard that the Commons have taken into consideration the matter of personal Liberty and after long debate thereof they have upon a full search and clear understanding of all things pertinent to the question unanimously declared That no Freeman ought to be committed or restrained in Prison by the command of the King or Privy Councel or any other unless some cause of the commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained And they have sent me with other of their Members to represent unto your Lordships the true grounds of their resolution and have charged me particularly leaving the reasons of Law and Precedents for others to give your Lordships satisfaction that this Liberty is established and confirmed by the whole State the King the Lords Spiritual and Temporal and Commons by several Acts of Parliament the Authority whereof is so great that it can receive no Answer save by Interpretation or Repeal by future Statutes And these I shall minde your Lordships of are so direct in the point that they can bear no other exposition at all and sure I am they are still in force The first of them is the grand Charter of the Liberties of England first granted in the 17th year of King Iohn and renewed in the 9 tâ— year of Hen. 3. and since confirmed in Parliament above 30. times the words there are Chap. 29. Nullus liber homo capiatur vel imprisonetur aut disseisietur de libero tenemento suo vel liberis consuetudinibus suis aut utlagetur aut exuletur aut aliquo modo destruatar nec super eum ibimus nec eum mittemus nisi per legale judicium Parium suorum vel per legem terrae He then proceeded to open and argued learnedly upon the several Particulars in the last recited Clause of Magna Charta and further shewed That no invasion was made upon this personal Liberty till the time of King Ed. 3. which was soon resented by the Subject for in the 5. Ed. 3. Chap. 9. it is enacted That no man from henceforth shall be attached on any occasion nor fore-judged of Life or Limb nor his Lands Tenements Goods nor Chattels seised into the Kings hands against the Form of the great Charter and the Law of the Land and 25 Edw. 3. Chap. 4. it is more full and doth expound the words of the grand Charter which is thus Whereas it is contained in the grand Charter of the Franchises of England that none shall be Imprisoned nor put out of his Freehold nor free Custom unless it be by the Law of the Land it is awarded assented and established That from henceforth none shall be taken by Petition or suggestion made to our Lord the King or to his Councel unless it be by Indictment or Presentment of his good and lawful People of the the same neighborhood which such Deed shall be done in due maner or by process made by Wâ—it original at the common Law nor that none be outed of his Franchises nor Office Freehold unless it be duly brought in Answer and fore-judged of the same by the course of the Law and that if any thing be done against the same it shall be redressed and holden for none and 28 Ed. 3. Chap. 3. it is more direct this Liberty being followed with fresh suit by the Subject where the words are not many but very full and significant That no man of what state and condition he be shall be put out of his Lands nor Tenements nor taken nor imprisoned nor disinherited nor put to death without it be brought in Answer by due process of the Law Several other Statutes were cited by him in confirmation of this point of the Liberty of the Subject The Kings Councel afterward made Objections to the said Argument
yet acknowledged that the seven Statutes urged by the House of Commons are in force yet said that some of them are in general words and therefore conclude nothing but are to be expounded by Precedents and some of them are applied to the suggestion of Subjects and not to the Kings command simply of its self and that per legem terrae in Magna Charta cannot be understood for process of Law and original Writs for that in Criminal proceedings no original Writ is usual at all but every Constable either for Felony or breach of the Peace or to prevent the breach of the Peace may commit without Process or original Writ it were very hard the King should not have the power of a Constable They also argued That the King was not bound to express the cause of Imprisonment because there may be in it matter of State not fit to be revealed for a time lest the confederates thereupon make means to escape the hands of Justice Besides that which the Commons do say that the party ought to be delivered or bailed is a contradiction in its self for bayling doth signifie a kinde of Imprisonment still Delivery is a total freeing And besides bayling is a grace or favor of a Court of Justice and they may refuse to do it To this it was replyed That the Statutes were direct in Point and though some of them speak of suggestions of the Subjects yet they are in equal reason a commitment by command of the King as when the King taketh notice of a thing himself And for the words per legem terrae original Writs onely are not intended but all other legal process which comprehendeth the whole proceedings of the Law upon Cause other then trial by Jury and the course of the Law is rendred by due process of the Law and no man ought to be imprisoned by special command without indictment or other due process to be made by the Law And whereas it is said there might be danger in revealing the Cause that may be avoided by declaring a general Cause as for Treason suspicion of Treason misprision of Treason Felony without expressing the particulars which can give no greater light to a confederate then will be conceived upon the very apprehension upon the imprisonment if nothing at all were expressed And as for the bayling of the party committed it hath ever been the discretion of the Judges to give so much respect to a commitment by the command of the King or the privy Councel which are ever intended to be done in just and weighty Cases that they will not presently set them free but bail them to answer what shall be objected against them on the Kings behalf but if any other inferior Officer do commit a man without shewing cause they do instantly deliver him as having no cause to expect their leasure so that Delivery is applyed to the imprisoned by command of some mean minister of Justice Bailing when it is done by command of the King or his Councel and though Bailing is a grace and favor of the Court in case of Felony and other crimes for that there is another way to discharge them in convenient time by their trial but where no cause of imprisonment is returned but the command of the King there is no way to deliver such persons by trial or otherwise but that of the Habeas Corpus and if they should be then remanded they might be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence might be in a worse case then a greater offender for the latter should have an ordinary trial to discharge him the other should never be delivered MAster Selden of the Inner-Temple argued next first making this Introduction Your Lordships have heard from the Gentleman that last spake a great part of the grounds upon which the House of Commons upon mature deliberation proceeded to that clear resolution touching the right of liberty of their persons The many Acts of Parliament which are the written Laws of the Land and are expresly in the Point have bin read and opened and such Objections as have been by some made unto them and Objections also made out of another Act of Parliament have been cleared and answered It may seem now perhaps my Lords that little remains needful to be further added for the enforcement and maintenance of so fundamental and established a Right and Liberty belonging to every freeman of the Kingdom The House of Commons taking into consideration that in this question being of so high a nature that never any exceeded it in any Court of Justice whatsoever all the several ways of just examination of the Truth should be used have also most carefully informed themselves of all former Judgements or Precedents concerning this great Point either way and have been no less careful of the due preservation of his Majesties just Prerogative then of their own Rights The Precedents here are of two kinds either meerly matter of Record or else the former resolutions of the Judges after solemn debate in the Point This Point that concerns Precedents the House of Commons have commanded me to present to your Lordships which I shall as briefly as I may so I do it faithfully and perspicuously to that end my Lords before I come to the particulars of any of those Precedents I shall first remember to your Lordships that which will seem as a general key for the opening and true apprehension of all them of record without which key no man unless he be verst in the entries and course of the Kings Bench can possibly understand In all cases my Lords where any Right or Liberty belongs to the Subjects by any positive Law written or unwritten if there were not also a remedy by Law for enjoying or regaining of this Right or Liberty when it is violated or taken from him the positive Law were most vain and to no purpose and it were to no purpose for any man to have any right in any Land or other Inheritance if there were not a known remedy that is an Action or Writ by which in some Court of ordinary Justice he might recover it And in this case of Right of Liberty of Person if there were not a remedy in the Law for regaining it when it is restrained it were of no purpose to speak of Laws that ordain it should not be restrained The Writ of Habeas Corpus or Corpus cum causa is the highest remedy in Law for any man that is imprisoned and the onely remedy for him that is imprisoned by the special command of the King or the Lords of the pâ—ivy Councel without shewing cause of the commitment and if any mâ—n be so imprisoned by any such Command or otherwise whatsoever though England and desire by himself or any other in his behalf this Writ of Hab. Corp. for the purpose in the Court of Kings Bench that Writ is to be granted to him
were made which was about one hundred years before 2 H. 5. besides the differences between these Savings and this Clause I doubt not but I shall give ample satisfaction to your Lordships that the Commons as well in this as in all their other Reasons have been most careful to rely upon nothing but that which is most true and pertinent Before the second year of King H. 5. the course was thus When the Commons were Suiters for a Law either the Speaker of their House by word of mouth from them the Lords House joyning with them or by some Bill in writing which was usually called their Petition moved the King to Ordain Laws for the redress of such mischiefs or inconveniences as were found grievous unto the people To these Petitions the King made answer as he pleased sometimes to part sometimes to the whole sometimes by denial sometimes by assent sometimes absolutely and sometimes by qualification Upon these Motions and Petitions and the Kings Answers to them was the Law drawn up and Ingrossed in the Statute Roll to binde the Kingdom but this inconvenience was found in this course that oftentimes the Statutes thus framed were against the sense and meaning of the Commons at whose desires they were Ordained and therefore in the 2 H. 5. finding that it tended to the violation of their Liberty and Freedom whose right it was and ever had been that no Law should be made without their assent they then exhibited a Petition to the King declaring their right in this particular praying that from thenceforth no Law might be made or Ingrossed as Statutes by additions or diminutions to their Motions or Petitions that should change their sense or intent without their assent which was accordingly established by Act of Parliament ever since then the use hath been as the Right was before that the King taketh the whole or leaveth the whole of all Bills or Petitions exhibited for the obtaining of Laws From this course and from the time when first it became constant and setled we conclude strongly that it is no good Argument because ye finde Savings in Acts of Parliament before the second of H. 5. that before those Savings were in the Petitions that begat those Statutes for if the Petitions for the two Loans so much insisted upon which Petitions for any think we know are not now extant were never so absolute yet might the King according to the usage of those times insert the Savings in his Answers which passing from thence into the Statute Roll do onely give some little colour but are not proof at all that the Petitions also were with Savings Thus much for the general to come now to the particular Statute of 25 of Edw. 1. which was a confirmation of Magna Charta with some provision for the better execution of it as common Law which words are worth the noting It is true that Statute hath also a Clause to this effect That the King or his Heirs from thenceforth should take no Aids Taxes or Prises of his Subjects but by common assent of all the Realm Saving the ancient Aids and Prises due and accustomed This Saving if it were granted which is not nor cannot be proved that it was as well in the Petition as in the Act yet can it no way imply that it is either fit or safe that the Clause now in question should be added to our Petition for the nature and office of a Saving or Exception is to exempt particulars out of a general and to ratifie the Rule in things not exempted but in no sort to weaken or destroy the general Rule it self The body of that Law was against all Aids and Taxes and Prises in general and was a confirmation of the common Law formerly declared by Magna Charta the Saving was onely of Aids and Prises in particular so well described and restrained by the words Ancient and Accustomed that there could be no doubt what could be the clear meaning and extent of that exception for the Kings Right to those ancient Aids intended by that Stature to be saved to him was well known in those days and is not yet forgotten These Aids were three from the Kings Tenants by Knights service due by the common Law or general Custom of the Realm Aid to ransom the Kings Royal Person if unhappily he should be taken prisoner in the Wars Aid to make the Kings Eldest Son a Knight and Aid to marry the Kings Eldest Daughter once but no more and that those were the onely Aids intended to be saved to the Crown by that Statute appeareth in some clearness by the Charter of King Iohn dated at Runningmede the 15 of Iune in the 5th year of his Reign wherein they are enumerated with an exclusion of all other Aids whatsoever Of this Charter I have here one of the Originals whereon I beseech your Lordships to cast your eyes and give me leave to read the very words which concern this point These words my Lords are thus Nullum scutigium vel auxilium ponatur in Regno nostro nisi per commune Consilium Regni nostri nisi ad Corpus nostrum redimendum primogenitum filium nostrum militem faciendum ad filiam nostram primogenitam semel maritandam ad hoc non siat nisi rationabile auxilium Touching Prises the other thing excepted by this Statute it is also of a particular Right to the Crown so well known that it needeth no description the King being in possession of it by every days usage It is to take one Tun of Wine before the Mast and another behinde the Mast of every Ship bringing in above twenty Tuns of Wine and here discharge them by way of Merchandise But our Petition consisteth altogether of particulars to which if any general Saving or words amounting to one should be annexed it cannot work to confirm things not excepted which are none but to confound things included which are all the parts of the Petition and it must needs beget this dangerous Exposition that the Rights and Liberties of the Subject declared and demanded by this Petition are not theirs absolutely but sub modo not to continue always but onely to take place when the King is pleased not to exercise that Soveraign Power wherewith this Clause admitted he is trusted for the protection safety and happiness of his People And thus that Birthright and Inheritance which we have in our Liberties shall by our own assents be turned into a meer Tenancy at will and sufferance Touching the Statute of 28 Edw. 1. Articuli super Chartas the scope of that Statute among other things being to provide for the better observing and maintaining of Magna Charta hath in it nevertheless two Savings for the King the one particular as I take it to preserve the ancient Prices due and accustomed as of Wines and of other goods the other general Seigniory of the Crown in all things To these two Savings besides the former Answers which
shew them the said cancelled Commission and Warrant The Commons resume again the Debate upon the Bill of Tunnage and Poundage Whereupon Mr. Selden said Whereas the Kings Councel objected that 1. Eliz. saith It was Granted time out of mind to the King I fear his Majesty is told so and some body doth ascertain him so But we may clear that for not only 1. Eliz. but also in the Statute of 1. Iac. the word time out of mind is That whereas H. 7. and other his Majesties Progenitors have had some Subsidy for the guarding of the Seas And that there was never a King but had some Subsidie in that sense it is indeed time out of mind Yet is it a matter of free gift for publique Bills the King saith Le Roy se veult for Petitions of Right Soit droit fait come est desire For the Bill of Subsidies it is thus the King heartily thanking the Subjects for their good wills In all the Bills of Tunnage and Poundage is the very same Answer save one which was 1. Eliz. and but for that only mistake of the Clerk it hath ever the same assent as the Bill of Subsidie Upon this Debate it was Ordered that a Committee be appointed to draw a Remonstrance to his Majesty of the peoples Rights and of the undue taking of Tunnage and Poundage and Impositions without Act of Parliament and to shew the Reasons why the House cannot in so short a time prepare that Bill The Remonstrance was as followeth MOst Gracious Sovereign Your Majesties most Loyal and Dutiful Subjects the Commons in this present Parliament assembled being in nothing more careful then of the Honor and Prosperity of your Majestie and the kingdom which they know do much depend upon that happie union and relation betwixt your Majestie and your people do with much sorrow apprehend that by reason of the incertaintie of their continuance together the unexpected interruptions which have been cast upon them and the shortness of time in which your Majestie hath determined to end this Session they cannot bring to maturitie and perfection divers businesses of weight which they have taken into their consideration and resolution as most important for the common good Amongst other things they have taken into especial care the preparing of a Bill for the Granting of your Majestie such a Subsidie of Tunnage and Poundage as might uphold your Profit and Revenue in as ample a manner as their just care and respect of Trade wherein not only the Prosperity but even the Life of the Kingdom doth consist would permit But being a work which will require much time and preparation by conference with your Majesties Officers with the Merchants not only of London but of other remote parts they find it not possible to be accomplished at this time Wherefore considering it will be much more prâ—judicial to the right of the Subject if your Majestie should continue to receive the same without Authority of Law after the determination of a Session then if there had been a Recess by Adjournment only In which case that intended Grant would have related to the first day of the Parliament And assuring themselves that Your Majestie is resolved to observe that Your Royal Answer which â—ou have lately made to the Petition of Right of both Houses of Parliament Yet doubting least Your Majestie may be misinformed concerning this particular case as if you might continue to take those Subsidies of Tunnage and Poundage and other Impositions upon Merchants without breaking that Answer they are forced by that dutie which they owe to Your Majestie and to those whom they represent to declare That there ought not any Imposition to be laid upon the Goods of Merchants Exported or Imported without common consent by Act of Parliament which is the right and inheritance of your Subjects founded not only upon the most Ancient and Original constitution of this Kingdom but often confirmed and declared in divers Statute Laws And for the better manifestation thereof may it please Your Majestie to understand that although Your Royal Predecessors the Kings of this Realm have often had such Subsidies and Impositions Granted unto them upon divers occasions especially for the guarding of the Seas and safeguard of Merchants Yet the Subjects have been ever careful to use such Cautions and Limitations in those Grants as might prevent any claim to be made that such Subsidies do proceed from duty and not from the free gift of the Subject And that they have heretofore used to limit a tune in such Grants and for the most part but short as for a year or two and if it were continued longer they have sometimes directed a certain space of Cessation or intermission that so the right of the subject might be more evident At other times it hath been Granted upon occasion of War for a certain number of years with Proviso that if the War were ended in the mean time then the Grant should cease And of Course it hath been sequestred into the hands of some Subjects to be imployed for the guarding of the Seas And it is acknowledged by the ordinary Answers of your Majesties Predecessors in their Assent to the Bills of Subsidies of Tunnage and Poundage that it is of the nature of other Subsidies proceeding from the good will of the Subject Uery few of your Predecessors had it for life untill the Reign of H. 7. who was so far from conceiving he had any right thereunto That although he granted Commissions for collecting certain duties and Customes due by Law yet he made no Commissions for receiving the Subsidie of Tunnage and Poundage untill the same was granted unto him in Parliament Since his time all the Kings and Queens of this Realm have had the like Grants for life by the free love and good will of the Subjects And whensoever the people have been grieved by laying any Impositions or other Charges upon their goods and Merchandises witâ—out authority of Law which hath been very sâ—ldom Yet upon complaint in Parliament they have been forthwith relieved saving in the time of your Royal Father who having through ill Councel raised the Rates and Charges upon Merchandises to that height at which they now are yet he was pleased so far forth to yield to the complaint of his people as to offer that if the value of those Impositions which he had set might be made good unto him He would binde himself and his Heirs by Act of Parliament never to lay any other Which offer the Commons at that time in regard of the great burden did not think fit to yield unto Nevertheless your Loyall Commons in this Parliament out of their especial zeale to your Service and especial regard of your pressing occasions have taken into their consideration so to frame a Grant of Subsidie of Tunnage and Poundage to your Majesty that both you might have been the better enabled for the defence of your Realm and your
in these words We cannot safely give unless we be in possession and the proceedings in the Exchequer nullified as also the information in the Star-Chamber and the annexion to the Petition of Right for it will not be a gift but a confirmation neither will I give without the removal of these interruptions and a Declaration in the Bill that the King hath no right but by our free gift if it will not be accepted as it is fit for us to give we cannot help it if it be the Kings already we do not give it Hereupon the House ordered that the Barons of the Exchequer be sent unto to make void their injunction and order concerning the staying of Merchants goods to which the Barons returned this answer Whereas the Honourable House of Commons by order of the 12. of this instant February have appointed that notice shall be given to the Lord Treasurer Chancellor Barons of the Exchequer of a Declaration made by Sir Iohn VVolstenholme Abrah Dawes and Rich. Carmarthan in the House of Commons that the goods that the Merchants brought into the Kings Store-house and laid up there for his Majesties use were detained as they conceive onely for the duty of Tunnage and Poundage and other sums comprized in the Book of rates which notice was given to the end the said Court of Exchequer might further proceed therein as to justice shall appertain Now the Lord Treasurer Chancellour and Barons out of their due respect to that honourable House and for their satisfaction do signifie that by the Orders and Injunctions of the said Court of Exchequer they did not determine nor any way touch upon the right of Tunnage and Poundage and so they declared openly in Court at the making of these Orders neither did they by the said Orders or Injunctions barr the Owners of those goods to sue for the same in a lawful course but whereas the said Owners endeavoured to take the same goods out of the Kings actual possession by Writs or Plaints of Replevin which was no lawful action or course in the Kings case nor agreeable to his Royal Prerogative therefore the said Court of Exchequer being the Court for ordering the Kings Revenue did by those Orders and Injunctions stay those Suits and did fully declare by the said Orders that the owners if they conceived themselves wronged might take such remedy as the Law alloweth Richard Weston Iohn Walter Tho. Trevor Lo. Newburgh Iohn Denham George Vernon The Answer of the Lord Treasurer and Barons instead of satisfaction expected by the House was looked upon as a justification of their Actions whereupon a motion was made to go on to consider of their proceedings and whether ever the Court of Exchequer held this course before for staying of Replevins and whether this hath been done by Prerogative of the King in his Court of Exchequer A report was made from the Committee concerning the pardons granted by the King since the last Session to certain persons questioned in Parliament and the reporter informed the House that they do finde upon examination that Dr. Sibthorpe and Mr Cosens did solicite the obtaining of their own pardons and that they said the Bishop of Winchester would get the Kings hand to them and it did also appear to the Committee that the Bishop of Winchester did promise the procuring of Mr. Montagues pardon that Dr. Manwaring solicited his own pardon and that the Bishop of Winchester got the Kings hand to it Mr. Oliver Cromwell being of this Committee informed the House what countenance the Bishop of Winchester did give to some persons that preached flat Popery and mentioned the persons by name and how by this Bishops means Manwaring who by censure the last Parliament was disabled for ever holding any Ecclesiasticall dignity in the Church and confessed the Justice of that Censure is nevertheless preferred to a rich Living If these be the steps to Church preferment said he what may we expect A Petition from the Booksellers and Printers in London was also presented complaining of the restraint of Books written against Popery and Arminianism and the contrary allowed of by the only means of Dr. Laud Bishop of London and that divers of the Printers and Booksellers have been sent for by Pursuivants for â—rinting Books against Popery and that Licensing is only restrained to the Bishop of London and his Chaplains and instanced in certain Books against Popery which were denyed to be Licenced Upon which occasion Mr. Selden declared that it is true there is no Law to prevent the Printing of any Books in England only a Decree in Star-Chamber and he advised that a Law might be made concerning Printing otherwise he said a man might be Fined Imprisoned and his Goods taken from him by vertue of the said Decree which is a great Invasion upon the Liberty of the Subject The House of Commons being informed that an Information was preferred in the Star-Chamber against Richard Chambers and others concerning some matters that fell out about their refusal to pay Tunnage and Poundage since the last Session of Parliament because the same was not granted by Act of Parliament they referred the same to a Committee to examine the truth of their proceedings and that whither they ought not to have priviledge of Parliament in regard they had then a Petition depending in Parliament to protect them against the said proceedings and Sir William Acton Sheriff of London being examined before the Committee concerning some matters about the Customers and not giving that cleare Answer which he ought and as the House conceived he might have done was therefore committed to the Tower of London And a Question mas made in the House at that time whether the House had at any time before committed a Sheriff of London to prison to which Mr. Selden made Answer that he could not call to mind a president of sending one Sheriff of London to prison but he well remembred a president of sending both the Sheriffs of London to the Tower and instanced the Case Friday February 13. the Parliament fell into consideration of the great increase of Popery and it was moved to examine the releasing of the Jesuites that were arraigned at Newgate whereof one onely was condemned though they were ten in number and they all Priests and had a Colledge here in London about Clerken-well these men said some could not attempt these acts of boldness but that they have great countenancers Hereupâ—n Secretary Cook declared that a Minister of State having notice of these ten persons and this Colledge intended to be kept at Clarkenwell acquainted his Majesty with it and I should not discharge my duty if I should not declare how much his Mâ—jesty referred it to the especial care of the Lords of the Councel who examining the same sent those ten persons to Newgate and gave order to Mr. Attourney to prosecute the Law against them He further added
for a word and lay a snare for him that reproveth in the gate and turn aside the just for a thing of nought Blame not before thou have examined the truth understand first and then rebuke answer not before thou hast heard the cause neither interrupt men in the midst of their talk Doth our Law judge any man before it hear him and know what he doth King Agrippa said unto Paul Thou art permitted to speak for thy self Thou shalt not wrest the judgment of the poor in his cause thou shalt not respect persons neither take a gift for a gift doth blind the eyes of the wise and pervert the eyes of the righteous Woe to them that devise iniquity because it is in the power of their hand and they covet fields and take them by violence and houses and take them away so they oppress a man and his house even a man and his heritage Thus saith the Lord God Let it suffice you O Princes of Israel remove violence and spoyl and execute judgment and justice take away your exactions from my people saith the Lord God If thou seest the oppression of the Poor and violent perverting of judgment and justice in a Province marvel not at the matter for he that is higher then the highest regardeth and there be higher then they Per me Richard Chambers Afterwards in the Term of Trinity the 5 yeer of King Charls it is found in the great Roll of this year that there is demanded there of Richard Chambers of London Merchant 2000 l. for a certain fine imposed on him hither sent by vertue of a writ of our said Lord the King under the foot of the great Seal of England directed to the Treasurer and Barons of this Exchequer for making execution thereof to the use of the said Lord the King as is there contained and now that is to say in the Utas of the Blessed Trinity this Term comes the said Richard Chambers in his own proper person and demands Oyer of the demand aforesaid and it is read unto him and he demands Oyer also of the Writ aforesaid under the foot of the Great Seal of England hither sent and it is read unto him in these words CHarls by the Grace of God of England Scotland France and Ireland Defender of the Faith c. To his Treasurer and Barons of his Exchequer health The extret of certain fines taxed and adjudged by Us and our said Council in our said Council in Our Court of Star-Chamber in the Term of St Michael the Term of St. Hillary and the Term of Easter last past upon Thomas Barns of the Parish of St. Clements Danes in the County of Middlesex Carpenter and others severally and dividedly as they be there severally assessed We send unto you included in these presents commanding that looking into them you do that which by Law you ought to do against them for the levying of those fines Witness our Self at Westminster the 21 of May in the yeer of Our Reign the 5 Mutas And the tenor of the Schedule to the said Writ annexed as to the said Richard Chambers followeth in these words IN the Term of Easter the fifth year of King Charles of Richard Chambers of London Merchant 2000 l. which being read heard and by him understood he complains that he is grievously vexed and inquieted by colour of the Premises and that not justly for that protesting that the said great Roll and the matter therein contained is not in Law sufficient to which he hath no need nor is bound by Law to answer yet for Plea the said Richard Chambers saith That he of the demand aforesaid in the great Roll aforesaid mentioned and every parcel thereof ought to be discharged against the said Lord the King for that he said That he from the time of the Taxation oâ— the aforesaid Fine and long before was a Freeman and a Merchant of this Kingdom that is to say In the Parish of the blessed Mary of the Arches in the Ward of Cheap London And that by a certain Act in the Parliament of the Lord Henry late King of England the Third held in the ninth year of his reign it was provided by Authority of the said Parliament That a Freeman shall not be amerced for a little offence but according to the manner of the said offence and for a great offence according to the greatness of the offence saving to him his Contenement or Freehold and a Merchant in the same manner saving unto him his Merchandize and a Villain of any other then the King after the same manner to be amerced saving his Wainage and none of the said Amercements to be imposed but by the Oaths of good and lawful men of the Neighbourhood And by a certain other Act in the Parliament of the Lord Edward late King of England the first held in the Third year of his reign it was and is provided That no City Burrough or Town nor any man should be amerced without reasonable cause and according to his Trespass that is to say A Freeman saving to him his Contenement A Merchant saving to him his Merchandize and A Villan saving to him his Wainage and this by their Peers And by the same Act in the Parliament of the said Lord Henry late King of England the Third held in the ninth year of his reign aforesaid it was and is provided by Authority of the said Parliament That no Freemen should be taken or imprisoned or disseized of his Freehold or Liberties or free Customs or outlaw'd or banish'd or any way destroyed And that the Lord the King should not go upon him nor deal with him but by a lawful judgement of his Peers or by the Law of the Land And by a certain Act in the Parliament of the Lord Edward late King of England the Third held in the fifth year of his reign it was and is provided by the Authority of the said Parliament That no man henceforward should be attached by reason of any Accusation nor pre-judged of Life or Member nor that his Lands Tenements Goods or Chattels should be seized into the hands of the Lord the King against the form of the great Charter and the Law of the Land And by a certain Act in the Parliament of the Lord Henry late King of England the seventh held in the third year of his reign reciting that by unlawful Maintenances given of liveries signes and tokens and retainders by Indentures Promises Oaths Writings and other Imbraceries of the Subjects of the said Lord the King false Demeanors of Sheriffs in making of Pannels and other false returns by taking of money by Jurors by great ryots and unlawful assemblies the policie and good Government of this Kingdom was almost subdued and by not punishing of the said inconveniences and by occasion of the Premises little or nothing was found by Inquisition by reason thereof the Laws of
are but in the case of Premunire By the Statute of 13. Eliz. chap. 1. for the avoiding of contentious and seditious Titles to the Crown it is enacted by the said Statute That he that shall declare the Successor of the King shall forfeit the moity of his goods c. so that the said offence although it be seditious is not treason by the Common Law nor is made treason by the Statute of 25. E. 3. nor by the Statute of 13 Eliz. By the Statute of 23 Eliz. chap. 2. he that speaks seditious or slanderous news of the Queen shall lose his ears or pay 200 l. and the second offence is made Felony The Statute of 35 Eliz. chap. 1. 〈…〉 seditious Sectaries which absent themselves from the Church they are to be punished 10 l. by the month Out of all which Statutes it may be collected that the word Sedition is taken variously according to the subject in hand And C. 4. Lord Cromwell's case Seditious is referred to doctrine There are offences more high in their nature than sedition which were not treason unlesse so declared by act of Parliament Every rebellious act is sedition yet if such Acts be not within the Statute of 23 Ed. 3. they are not treason 17 R. 2. chap. 8. Insurrection of villains and others is not made treason which proves that before this Act it was not treason And this Act of 17 R. 2. is repealed by the Statute of 1 H. 4. By the Statute of 3 and 4 E. 6. chap. 5. to assemble people to alter the Lawes is made treason if they continue together an houre after Proclamation made This assembly of people was sedition at the Common Law and the very assembly if they after dissolve upon Proclamation made is not treason by the said Statute By the Statute of 14 Eliz. chap. 1. it is made Felony malitiously and rebelliously to hold from the Queen any Castles c. but because this relates not to the Statute of 25 E. 3. it is not treason 2. It seems clearly that this Case is within the Petition of Right in which Magna Charta and the Statutes of 25 and 28 E. 3. are recited The grievance there was That divers have been imprisoned without any cause shewed to which they might make answer according to the Law And upon this Return nothing appears to be objected to which he might answer It appears not what that Act which is called Sedition was This is the very grief intended to be remedied by this Statute To this he cannot answer according to Law It appears not whether this were a seditious act trespasse or slander or what it was at all The words are Sedition against the King This helps not for every offence is against the King against his Crown and dignity that which disturbs the Common-wealth is against the King seditious doctrine is sedition against the King as is before said In 28 H. 6. vide Postrat fol. 19. the Lords and Commons desire the King that William de la Pool may be committed for divers treasons and sundry other heinous crimes and the Petition held not good because too generall Whereupon they exhibit particular Articles against him And therefore upon the whole matter he concluded and prayed that Mr. Long might be discharged from his imprisonment On another day Barckley and Davenport the Kings Sergeants argued for the King That this Return was sufficient in Law to detain them in prison Barckley began and said That the case is new and of great weight and consequence and yet under favour the prerogative of the King and the liberty of the Subject are not mainly touched therein for the case is not so generall as it hath been made but particular upon this particular Return The liberty of the Subject is a tender point the right whereof is great just and inviolable The prerogative of the King is an high point to which every subject ought to submit I intend not to make any discourse of the one or the other I will onely remember what the King hath determined upon them both in his speech which he made upon the Petition of right to wit That the Peoples liberties strengthen the Kings prerogative and that the Kings prerogative is to defend the Peoples liberties Thi◠〈◊〉 settle the hearts of the people concerning their liberty The way which I intend to treat in my Argument is to answer to the objections and reasons which have been made and to give some reasons whereby this Return shall be sufficient The objections which have been made are reducible to four heads 1. By what the prisoner here shall be said to be committed and detained 2. That this Commitment is against the Petition of right 3. That the Cause which is here returned is generall and incertain 4. That the offences mentioned in the Return are but Finable and therefore notwithstanding them the party is bailable For the first it hath been objected that the commitment here was by the Lords of the Privy Councill and the signification of this cause is by the King himself But I say that there is a further matter in the Return for the Lords of the Councill do it by the command of the King and they onely pursue this command I will not dispute whether the Lords of the Councill have power to commit an offender or no it is common in experience 33 H. 6.28 Poignâ—â— case is expresse in it And in the Petition of right it is admitted that they may commit And this is not alledged there for a grievance but the grievance there was because the particular charge of commitment was not shewed Some Books have been objected to prove that the King though in person cannot commit any person 16 H. 6. F. Monstrance de faits 182. But the authority of that Book vanisheth if the case be put at large which was in trespasse for cutting of Trees The Defendant said That the place where c is parcell of the Mannor of D. whereof the King is seised in Fee and the King commands us to cut And the opinion of the Court was that this is no plea without shewing a specialty of the command of the King And there the whole Court saies That if the King command me to arrest a man whereby I arrest him he shall have trespasse or imprisonment against me although it be done in the presence of the King That the following words are to be understood as the principal case was of one command of the King by word and then such command by word to arrest a man is void And 1 H. 7.4 was objected Hussey saies that Markham said to King Edw. 4. that he cannot arrest a man for suspition of Treason or Felony because if he do wrong the party cannot have his action To this I say That the Book there is to be understood of a wrongfull arrest for there is spoken of an action of false imprisonment and a wrongfull arrest cannot be made by the
Frankendale if they be taken That within the said term of seventy days a Suspension of Arms in the Palatinate be concluded upon the Conditions last propounded by Sir Richard Weston at Bruxels and that a general Treaty shall be again set on foot upon such honorable terms as were tendered to the Emperor in November last But if these particulars be refused or delayed by the Emperor that the King of Spain shall joyn forces with the King of Great Britain for the recovery of his Childrens Honors and Patrimony And if he cannot give assistance that he will at least allow him a free and friendly passage through his Territories for the forces to be employed in that service Of these points distinctly if the Ambassador should not receive a direct assurance he was to take his leave of that King and to return into his Masters presence But the King annexed this private Instruction That in case a Rupture happened it might be managed to the best advantage Wherefore he should not instantly come away but send him secret intelligence and in publick give out the contrary Immediately upon these Demands an Order was sent from Spain to Bruxels for the relief of Manheim but it came too late for before the arival thereof the Town was yielded into the hands of Tilly But had it come in season the effect thereof might be guessed by Tilly's Reasons presented to the Arch-Dutchess against raising the siege of Manheim and the restoring of Heidelburgh to this purpose That he could not do it without the Emperors express consent and that the winning of Manheim was to be hastned to prevent the machinations of evil Neighbors who were plotting new Commotions in favor of the Count Palatine and especially to obviate the designs of Count Mansfield And lastly That the Emperor and the Catholick League having setled all Germany might give the Law to their Opposites and settle a peace upon their own terms How little the Emperor attributed to the Kings Humanity and upright dealing which he applauded in shew might be discerned by sure Advertisements of his purpose to propound in the Dyet at Ratisbone his promise of translating the Palatine Electorate to the Duke of Bavaria as a thing irrevocable Moreover the King of Spain the Fifth of November 1622. in the height of those Professions made to the English Ambassador touching the Marriage wrote on this manner to his Grand Favorite the Conde Olivares THe King my Father declared at his Death That his intent never was to marry my Sister the Infanta Donna Maria with the Prince of Wales which your Uncle Don Balthazar understood and so treated this Match ever with intention to delay it notwithstanding it is now so far advanced that considering all the aversness unto it of the Infanta it is time to seek some means to divert the Treaty which I would have you finde out and I will make it good whatsoever it be But in all other things procure the satisfaction of the King of Great Britain who hath deserved much and it shall content me so that it be not in the Match Olivares wrote a Letter deliberative the Eighth of November 1622. and propounded an Expedient to the King of Spain in these words SIR Considering in what estate we finde the Treaty of Marriage between Spain and England and knowing certainly how the Ministers did understand this business that Treated it in the time of Philip the Third that is in Heaven that their meaning was never to effect it but by enlarging the Treaties and Points of the said Marriage to make use of the Friendship of the King of Great Britain as well in matters of Germany as those of Flanders And imagining likewise that your Majesty is of the same opinion though the Demonstrations do not shew so joyning to these Suppositions that it is certain the Infanta Donna Maria is resolved to put her self into a Monastery the same day that your Majesty shall press her to this Marriage I have thought fit to represent unto your Majesty that which my good zeal hath offered me in this occasion thinking it a good time to acquaint your Majesty withal to the end you may resolve of that which you shall finde most convenient with the advice of those Ministers you shall think fit to make choice of The King of Great Britain doth finde himself at this time equally engaged in two businesses the one is this Marriage to which he is moved by the conveniencies he findes in your Majesties friendship by making an Agreement with those Catholicks that he thinks are secretly in his Kingdom and by this to assure himself of them as likewise to marry his Son to one of the House of Austria knowing that the Infanta Donna Maria is the best born Lady in the World The other business is the restitution of the Palatinate in which he is more engaged for beside that his Reputation is at stake there is added the love and interest of his Grand-children Sons of his onely Daughter So that both by the Law of Nature and Reason of State he ought to put that forward whatever inconveniencies might follow by dissembling what they suffer I do not dispute whither the King of Great Britain be governed in this business of the Palatinate by Act or Friendship I think a man might say he used both but as a thing not precisely necessary to this Discourse I omit it I hold it for a Maxim that these two Engagements in which he findes himself are inseparable for although the Marriage be made we must fail of that which in my way of understanding is most necessary the restitution of the Palatinate This being supposed Having made this Marriage in that form as it is Treated your Majesty shall finde your self together with the King of Great Britain engaged in a War against the Emperor and the Catholick League A thing which to hear will offend your godly ears or declaring your self for the Emperor and the Catholick League as certainly your Majesty will do then you will finde your self engaged in a War against the King of England and your Sister married with his Son with the which all whatsoever reasons of Conveniency that were thought upon in this Marriage do cease If your Majesty shall shew your self Neutral as it may be some will propound That first will cause very great scandal and with just reason since in matters of less opposition then of Catholicks against Hereticks the Arms of this Crown have taken the godly part against the contrary party and at this time the Frenchmen fomenting the Hollanders against your Majesty your Piety hath been such that you have sent your Arms against the Rebels of that Crown leaving all the great considerations of State onely because these men are Enemies to the Faith and the Church It will oblige your Majesty and give occasion to those of the League to make use of the King of France and of other Catholick Princes ill-affected
concerning Religion and that his Answer be Inrolled with the force of an Act of Parliament Also that the House consider of the new prepared Fleet and Army and whither intended no Enemy being yet declared That great Sums of Money were given for places to the value of an Hundred and forty thousand pounds at least that the King should contribute to help the Palatinates Cause with his own Estate that the time of the year was too far spent for the Fleet to go forth in Service that inquiry be made whether the Duke brake not the Match with Spain out of Spleen and Malice to Conde Olivares whether he made not the Match with France upon harder terms and whether the Ships lent against Rochel were not maintained with the Subsidies given for the relief of the Palatinate that an Advised Counsel for the Government of the present Affairs and to look into the Kings Estate is necessary that his Majesty be desired to give his Answer concerning the Imposition on Wines and Select Committees draw out these Heads at large to be presented to the King The doing whereof they said was no Capitulation with his Majesty but an ordinary Parliamentary course Without which the Commonwealth could never supply the King nor indeed subsist Soon after the Commons had a Conference with the Lords desiring their Concurrence in presenting to the King these Matters following That notwithstanding the Lords and Commons at their last Meeting this Session did Petition his Majesty for the advancing of Gods true Religion and the suppressing of Popery unto which his Majesty vouchsafed as well from his own Mouth as by the Lord Keeper to return such Answer as assured them of his Royal performance yet at this Meeting they finde That on the 12 of Iuly last his Majesty granted a Pardon unto Alexander Baker a Jesuite and unto Ten other Papists which as the Commons have been informed was gotten by the importunity of some Foreign Ambassador and passed by immediate Warrant and was recommended by the Principal Secretary of State without the payment of the ordinary Fees And further That divers Copies of Letters and other Papers being found in the house of one Mary Estmonds in Dorsetshire by two Justices of Peace who thereupon tendred her the Oath of Alleagiance and upon her refusal committed her to the Constable from whom she made an escape and complained to the King The Principal Secretary did write to those two Justices in favor of her Upon these Passages the Commons made Observations first upon the date of the Pardon which was the next day after his Majesties Answer by the Lord Keeper to their Petition concerning Religion secondly That the Pardon dispenced with several Laws as of the 21 and 27 of Queen Elizabeth and of the Third of King Iames provided to keep the Subjects in due obedience thirdly That the Pardon was signed by the Principal Secretary of State and therefore the Commons declared that these actings tended to the prejudice of true Religion his Majesties dishonor the discountenancing of the Ministers of Justice the grief of the good people the animating of the Popish party who by such examples grew more proud and insolent and to the discouragement of the High Court of Parliament All which they humbly desire his Majesty to take into due consideration and to give effectual and speedy Redress therein The Lord Conway principal Secretary of State being called to give an Accompt of this business answered That he ever hated the Popish Religion That the Pardon was granted before the King answered their Petition though it bore not date till afterwards That the King commanded the doing thereof and that no Fees should be taken That he was commanded by the King to write a Letter in favor of the Woman in Dorset-shire and what he did therein was to take off all scandal from the King though it lighted upon himself This Conference no sooner ended but both Houses were ordered to meet at Christ-Church to receive an Answer to their Petition concerning Religion To every Clause whereof his Majesty answered in a Parliamentary way The Petition Remedies and the Kings Answer we give you intermixt for the better understanding the Answer to every respective Clause distinctly To the Kings most Excellent Majesty Most Gracious Soveraign IT being infallibly true that nothing can more establish the Throne and assure the peace and prosperity of the people then the unity and sincerity of Religion We your most humble and loyal Subjects the Lords Spiritual and Temporal and Commons of this present Parliament assembled hold our selves bound in conscience and duty to represent the same to your Sacred Majesty together with the dangerous Consequences of the increase of Popery in this Land and what we conceive to be the principal Causes thereof and what may be the Remedies The Dangers appear in these particulars I. In their desperate ends being both the subversion of Church and State and the restlesness of their spirits to attain these ends the Doctrine of their Teachers and Leaders perswading them that therein they do God good service II. Their evident and strict dependencie upon such Forein Princes as no way affect the good of your Majesty and this State III. The opening a way of Popularity to the Ambition of any who shall adventure to make himself Head of so great a Party The principal Cause of the Increase of Papists I. The want of the due execution of Laws against Iesuites Seminary Priests and Popish Recusants occasioned partly by the connivencie oâ— the State partly by defects in the Laws themselves and partly by the manifold acuse of Officers II. The interposing of Foreign Princes by their Ambassadors and agents in favor of them III. Their great Concourse to the City and frequent Conferences and Conventicles there IV. The open and usual resort to the Houses and Chappels of Forein Ambassadors V. The Education of their Children in Seminaries and Houses of their Religion in Foreign parts which of late have been greatly multiplied and enlarged for entertaining of the English VI. That in some places of your Realm your people be not sufficiently instructed in the knowledge of true Religion VII The licentious printing and dispersing of Popish and Seditious Books VIII The imployment of men ill-affected in Religion in places of Government who do shall or may countenance the Popish party The Remedies against this outragious and dangerous disease We conceive to be these ensuing I. That the Youth of this Realm be carefully educated by able and Religious Schoolmasters and they to be enjoined to Catechise and instruct their Scholars in the grounds and principles of true Religion And whereas by many Complaints from divers parts of the Kingdom it doth plainly appear That sundry Popish Scholars dissembling their Religion have craftily crept in and obtained the places of Teaching in divers Counties and thereby infected and perverted their Scholars and so fitted them to be transported to the Popish Seminaries beyond
Majesty will be likewise pleased strictly to command all your Iudges and Ministers of Iustice Ecclesiastical and Temporal to sée the Laws of this Realm against Popish Recusants to be duly executed And namely that the Censure of Excommunication be declared and certified against them and that they be not absolved but upon publick satisfaction by yielding to Conformity Answ. His Majesty leaves the Lawes to their Course and will order in the point of Excommunication as is desired X. That your Majesty will be pleased to remove from places of Authority and Government all such persons as are either Popish Recusants or according to direction of former Acts of State to be justly suspected Answ. This his Majesty thinks fit and will give order for it XI That present order be taken for disarming all Popish Recusants legally convicted or justly suspected according to the Laws in that behalf and the Orders taken by his late Majesties Privy-Council upon reason of State Answ. The Laws and Acts in this Case shall be followed and put in due execution XII That your Majesty be also pleased in respect of the great resort of Recusants to and about London to command forthwith upon pain of your indignation and severe execution of the Laws that they retire themselves to their several Countries there to remain confined within Five miles of their places Answ. For this the Laws in force shall be forthwith executed XIII And whereas your Majesty hath strictly commanded and taken order that none of the natural born Subjects repair to the hearing of Masses or other Superstitious Service at the Chappels or Houses of Foreign Ambassadors or in any other places whatsoever we give your Majesty most humble thanks and desire that your Order and Commandment therein may be continued and observed and that the Offenders herein may be punished according to the Laws Answ. The King gives assent thereto and will see that observed which herein hath been commanded by him XIV That all such Insolencies as any that are Popishly affected have lately committed or shall hereafter commit to the dishonor of our Religion or to the wrong of the true Professors thereof be exemplarily punished Answ. This shall be done as is desired XV. That the Statute of 1 Eliz. for the payment of Twelve-pence every Sunday by such as shall be absent from Divine service in the Church without a lawfull excuse may be put in due execution the rather for that the penalty by Law is given to the poor and therefore not to be dispenced withal Answ. It is fit that this Statute be executed and the Penalties shall not be dispenced withal XVI Lastly That your Majesty would be pleased to extend your Princely care also over the Kingdom of Ireland that the like courses may be there taken for the restoring and establishing of true Religion Answ. His Majesties cares are and shall be extended over the Kingdom of Ireland and he will do all that a Religious King should do for the restoring and establishing of true Religion there And thus most gracious Soveraign according to our duty and zeal to God and Religion to your Majesty and your safety to the Church and Common-wealth and their peace and prosperity we have made a faithfull Declaration of the present Estate the causes and remedies of this increasing disease of Popery humbly offering the same to your Princely care and wisdom The Answer of your Majesties Father our late Soveraign of famous memory upon the like Petition did give us great comfort of Reformation but your Majesties most gracious promises made in that kinde do give us confidence and assurance of the continual performance thereof In which comfort and confidence reposing our selves we most humbly pray for your Majesties long continuance in all Princely felicity The Petition and Answer being read it was further intimated to the Commons That as his Majesty took well their minding him of the care of Religion so he would have done and granted the same things though they had never petitioned him neither doth he place his Answer to this Petition as a wheel to draw on other affairs and designs but he leaves them to move in their own Sphere and what he hath done in this particular comes from these two Fountains Conscience and Duty to his Father who in his last speech recommended unto him the Person but not the Religion of his Queen At the same time the Duke signified to both Houses that by the Kings command he was to give an account of the Fleet and the preparations thereof and said that the first and last time he had the happiness to speak in that Auditory it was of the Spanish Treaty and then he was so happy as to be honored and applauded by both Houses of Parliament and he made no question but speaking now with the same heart he should be no less acceptable to them And he made this request to the House of Commons to believe that if any hath spoken or shall speak in discharge of his conscience his zeal of Reformation any thing which may seem to reflect upon some particular persons he shall be the last man that will apply this to himself because he is confidently assured of two things first that they are just not to fall upon him without cause and secondly that himself shall do nothing that unbecomes a faithfull Englishman And for the Method of his ensuing Discourse he chose rather to speak by way of Objection and Answer then in one continued Speech as a speedier means to give the Commons satisfaction Object 1. By what Counsel those Designs and Actions of War were carried and enterprised Answ. By the Counsel of the Parliament appointed according to the Act of both Houses the 23. of March 1623. by those Counsels his Majesty was guided and applied himself accordingly for the defence of the Realm the securing of Ireland the assisting of our Neighbors and others our Friends and Allies and for the setting forth the Navy-Royal His Majesty looking into his purse saw enough to do all the former Actions but not this latter For when he came to consider of the Navy there was neither money nor preparations yet looking upon the Affairs of Christendom he found that of most necessity Hereupon his Majesty of famous memory did him viz. the Duke the honor as to write from Newmarket to him at London a Letter to this effect That looking into the Affairs of Christendom he found it necessary that a Royal-Fleet shouâ—d be prepared and set in readiness but that he had no Money wherefore himself meaning the Duke and his Friends must begin to lay it out and no doubt but others would follow and by this means the King might lie the longer concealed and undiscovered in the Enterprise as bearing the name of the Subject onely and other Princes in hope to draw him on would sooner come to the business Upon this Letter the Duke said he leaped into the Action with all alacrity and
the Princes hands might have been bound up and yet he neither sure of a Wife nor any assurance given of the Temporal Articles All which in his high presumption he adventured to do being an express breach of his Instructions and if the same had not been prevented by his late Majesties vigilancy it might have turned to the infinite dishonor and prejudice of his Majesty XI Lastly That he hath offended in a high and contemptuous manner in preferring a scandalous Petition to this honorable house to the dishonor of his Majesty of blessed memory deceased and of his sacred Majesty that now is which are no way sufferable in a Subject towards his Soveraign and in one Article of that Petition specially wherein he gives his now Majesty the Lye in denying and offering to falsifie that Relation which his Majesty affirmed and thereunto added many things of his own remembrance to both Houses of Parliament ROBERT HEATH The Earl of Bristol upon the Attorney Generals accusing him of high Treason thus exprest himself THat he had exhibited his Petition to the House April 19 that he might come up and be heard in his Accusation of the Duke of Buckingham and that thereupon he being a Peer of this Realm is now charged with Treason That he had heretofore inâ—ormed the late King of the Dukes unfaithfull service and thereupon the Duke labored that he might be clapt up in the Tower presently upon his return out of Spain That he importuned the late King that he might be heard before himself and his Majesty promised it I pray God said he that that promise did him no hurt for he died shortly after And for the Kings promise he vouched the Lord Chamberlain for a witness and he desired the Lords to take notice that their House was possessed already of his said Petition and of his Accusation of the said Duke And therefore desired first that they would receive his charge against the Duke and the Lord Conway and not to invalid his Testimony against them by the Kings Charge against him and that he might not be impeached till his Charge of so high a nature be first heard So he tendred to the House the Articles against the Duke which the Clerk received and he withdrew and his Petition exhibited the 19 of April was read and the Lords resolved upon the Question That the said Earls Charge against the Duke of Buckingham and the Lord Conway should be presently read The Earl being shortly after called in again to the Bar of the Lords House concerning his Articles against the Duke made this speech FIrst he craved pardon of their Lordships for his earnest Speeches the other day confessing them to have been in passion saying That unexpected accusation of Treason would warm any honest heart but would hereafter amend it Then he rendred their Lordships humble thanks for their manner of proceeding against him and desired to know from Mr Attorney whether that were his whole Charge or not Mr Attorney answered That he had Commandment to open no more against him peradventure upon the opening of the Charge some particulars might arise and be urged but no new matter should Then the Earl desired to know of Mr Attorney who was the Relator to his Charge and that he might understand who was his Accuser Mr Attorney answered That the King himself out of his own mouth had given him directions for his own Relation against him and corrected many things that were added Unto which the Earl answered That he would not contest with the King neither did it beseem him so to do neither esteemed he his life or his fortunes so much as to save them by contesting with his Soveraign and therefore would make no reply or answer were it not that his Religion and Honor were joyntly questioned with his life but this being to descend to his Posterity for their sakes he was an humble Suitor unto his Majesty that he would not take indignation at his own just defence yet would he be ready to make any humble submission to his Majesty and heartily desired some means might be made that he might make it personally to himself wherein he would submit himself most willingly to some such act of humiliation and submission not wronging his innocency that never Subject did towards his Soveraign And also That his Majesty would be pleased to set himself in his Throne of Justice and declare out of his Royal justice that he would have the Duke and him upon equal terms and that neither of their causes should be advanced before others These were his humble Petitions which he besought their Lordships to present unto his Majesty and to take into their considerations of how dangerous a consequence it would be if the King should be Accuser Judge Witness and should have the Confiscation As touching the Charge against him he said He had once answered it all except that of his Petition and he doubted not but to clear himself before their Lordships of every particular of it he said he expected not to have heard of this again having once answered it He rather expected to have been charged with some practise with Spain against the State or the receipt of Ten or Twenty thousand pounds for the perswading and procuring of the delivery up of some Town of which the Crown was in possession as might be the Town of Flushing the Brill or the like or for being the means of lending the Kings Ships to a Forein Nation and that against those of our own Religion or for revealing his Majesties highest Secrets which none above two or three dares know or for treating the greatest affairs as it were by his own Authority without formal Instructions in the points or for having taken Rewards or been corrupted by a Foreign Prince or to have broken his Instructions in any Ecclesiastical point or as the Law calleth it to have committed an overt Act of disloyalty and not to be charged after seven Ambassages with Discourses and Inferences Then he desired their Lordships that he might have a Copy of his Charge in writing and time allowed him for his Answer and Counsel assigned him to plead his Cause and said there was a great difference between the Duke of Buckingham and him for the Duke was accused of Treason and yet at large and in the Kings favour and he being accused but of that which he had long since answered was a Prisoner and therefore he moved that they might be put in equal condition And as touching the Lord Conway in as much as he had given in Articles against him he desired his Lordship might not meddle in that particular business nor use the Kings name against him ex officio he also besought their Lordships to be Suitors to his Majesty on his behalf that all the particular dispatches of his own Ambassages and Sir Walter Ashtons might be brought thither and that he might make use of them for his defence as his Evidence
King nor any other but with that express Clause and Condition That he should be bred in his own Religion and have such Tutors and Servants as his Father should appoint XI That the Lord Conway hath been the cause of all the Earl of Bristol's Troubles by his dubious and intrapping Dispatches and inâ—erring That the said Earl hath failed in his Directions when it shall be made appear that his Dispatches contained no such Directions as he hath alledged were given The House not being satisfied to commit the Earl to the Tower let him remain where he was before with the Gentleman Usher and further ordered That the Kings Charge against the Earl of Bristol be first heard and then the Charge of the said Earl against the Duke yet so that the Earls Testimony against the Duke be not prevented prejudiced or impeached The day following the Lord Keeper delivered a Message from the King to the House of Lords THat his Majesty taketh notice of the Articles exhibited against the Duke of Buckingham by the Earl of Bristol and he observeth that many of them are such as himself is able to say more of his own knowledge then any man for the Dukes sincere carriage in them That one of them touching the Narrative made in Parliament in the One and twentieth of King Iames trencheth as far upon himself as the Duke for that his Majesty went as far as the Duke in that Declaration and that all of them have been closed in the Earls own breast now for these two years contrary to his Duty if he had known any crime of that nature by the Duke and now he vents it by way of recrimination against the Duke whom he knows to be a principal Witness to prove his Majesties Charge And therefore That his Majesty gave them thanks that they gave no way to the Earl of Bristol's unreasonable motion of putting the Duke under the same restraint that they had put the Earl thereby eschewing what the Earl aimeth at to alter their dutifull Procedings toward his Majesty That thereby they had made his Majesty confident that as they have so they will put a difference between his Majesties Charge against one that appeareth as a Delinquent and the recrimination of the Earl of Bristol against his Majesties Witness and they will not equal them by a proceeding Pari Passu At this time there was an endeavor to take the Earls Cause out of the House and to proceed by way of Indictment in the Kings-Bench To which manner of proceeding why the Lords should not give way these ensuing Reasons were offered to consideration I. IT was ordered That in all Causes of moment the Defendants shall have Copies of all Depositions both pro and contra after publication in convenient time before hearing to prepare themselves and if the Defendants will demand that of the House in due time they shall have their learned Council to assist them in their defence And their Lordships declared That they did give their assents thereto because in all Cases as well Civil as Criminal and Capital they hold That all lawfull help could not before just Judges make one that is guilty avoid Justice and on the other side God defend that an Innocent should be condemned II. The Earl of Bristol by his Petition to the House complained of his restraint desiring to be heard here as well in points of his wrongs as in his accusations against the Duke whereof his Majesty taking consideration signified his pleasure by the Lord Keeper April the 20 That his Majesty was resolved to put his Cause upon the honor and justice of this House and that his pleasure was that the said Earl should be sent for as a Delinquent to answer the offences he committed in his Negotiation before his Majesties going into Spain whilest his Majesty was there and since his coming thence and that his Majesty would cause these things to be charged against him in this House so as the House is fully possessed of the Cause as well by the Earls Petition as by the Kings assent and the Earl brought up to the House as a Delinquent to answer his offences there and Mr. Attorney hath accordingly delivered the Charge against him in the House and the Earl also his Charge against the Duke And now if he be proceeded withal by way of Indictment in the Kings-Bench these dangerous inconveniences will follow viz. 1. He can have no Counsel 2. He can use no Witness against the King 3. He cannot know what the Evidences against him will be in a convenient time to prepare for his Defence and so the Innocent may be condemned which may be the Case of any Peer 4. The Liberties of the House will be thereby infrigned the Honor and Justice thereof declined contrary to the Kings pleasure expresly signified by the Lord Keeper All these things are expresly against the Order 5. The Earl being indicted it will not be in the power of the House to keep him from Arraignment and so he may be disabled to make good his Charge against the Duke Therefore the way to proceed according to the Directions and true meaning of the Order and the Kings pleasure already signified and preserve the Liberties of the House and protect one from injury will be First To have the Charge delivered into the House in writing and the Earl to set down his Answer to it in writing and that the Witnesses may be examined and Evidences on both sides heard by such course and manner of proceedings as shall be thought fit by the House and if upon full hearing the House shall finde it to be Treason then to proceed by way of Indictment if doubtfull in point of Law to have the opinion of the Judges to clear it if doutfull in matter of Fact then to refer it to a regal Fait And the rather for that 1. It appears that the Earl in the space of two years till now he complained hath not been so much as questioned for matter of Treason 2. He hath been examined upon twenty Interrogatories and the Commissioners satisfie that his Answer would admit of no Reply 3. The Lord Conway by several Letters hath intimated That there was nothing against him but what was pardoned by the Parliament Pardon of 21 Iac. And signified his Majesties pleasure That he might rest in that security he was and sit still His Majesty hath often declared both to the Countess of Bristol and others That there was neither Fellony nor Treason against him nor ought else but what a small acknowledgment would expiate Some Cases happened in Parliament 1 2 Caroli wherein the Judges opinions were had viz. THis Question was put to all the Justices Whether a Peer impeached for Treason shall be tried in Parliament And the chief Justice in the name of all the Justices delivered his opinion that the course by Law was Indictment and this to be signified in Parliament before the Lord Steward vide 10
Edward 4.6 or by Bill and an Act of Parliament to attaint the Party An Order was made in the Upper-House of Parliament 21 Iac. That any Peer shall have Counsel in case Criminal or Capital and upon the Accusation of the Earl of Bristol in Parliament he made a motion for Counsel which matter was commended to the King by the Lords with voucher of the said former Order The King returned Answer that this was contrary to the Fundamental Laws of the Realm but inasmuch as it was for his Benefit and Prerogative with which he may dispence therefore out of his grace he would allow the Earl of Bristol to have his Counsel with protestation that he would advise in the general and the same Order was made without his privity and without hearing the Justices or his Counsel And upon the Trial of the Lord Middlesex in a Case Criminal and not Capital afterward that is to say Friday after upon the assembly of all the Justices the Attorney of the King by commandment of the King demanded their opinion and they with one voice agreed That where the Trial is upon Indictment no Counsel in Fellony or Treason is to be allowed unless a matter of Law happen or upon the Indictment or upon Plea of the Defendant or upoâ— Evidence and in such Cases the Prisoner may have Counsel but not otherwise The Lords by Order referred to the Justices this Question Whether the King may be a Witness in case of Treason Secondly Admit that this be for Treason done when he is privy Whether in this case he may be a Witness or not and before the Resolution this Message and Command came from the King to the Justices that in this general Question they do not deliver any opinion but if any point come in particular they upon mature deliberation may give their advice And this was declared by the Cheif Justice in the Upper House of Parliament and the said Matter surceased Sitting this Parliament the Duke of Buckingham was deputed Procurator by several Peers whose Votes on any occasion he had power to make use of viz. By the Earls of Bath Exeter Cumberland Northumberland Lord Teinham Colchester Tunbridge Evers Darcy Meynel Noel St. John of Basing Mansfield and Roberts Whereupon the House of Peers made an Order That after this Session no Lord of this House shall be capable of receiving above two Proxies nor more to be numbred in any Cause voted About a fortnight after the Charge was given in against the Earl of Bristol the Earl gave in his Answer which we have chosen to insert here for the Readers more conveniency though a little out of time And having the Answer in his hand ready to deliver to their Lordships he did crave leave that by way of Introduction he might speak a few words and began thus I Am not insensible upon what disadvantages I come to tryal in this Cause For first I am faln into this Majesties heavy displeasure and am to encounter with a potent Adversary highly in favor and am accused for Treason for which all Counsel and Friends abandon me as a man infected with the Plague I am become bound and under restraint whereas a man who is to encounter for his life and honor and with a strong Adversary had need to come upon equal terms But as to the Matter I finde my self charged with divers Articles of High Treason but looking into them with the eyes of my best understanding with the opinion also of my Council lately assigned me and taking them apart one Article from another I finde not any thing in them like Treason or that hath so much as the shew or countenance of a fault either in act or words onely by laying all things together and by wresting the wrests with a strained Construction directly contrary to the true sence and meaning of them and the occasion whereupon they were spoken it is informed and that by way of inference onely That the intent was evil and the matter to prove the intent to be evil depends upon two props viz. Ill affection to Religion and too much affection to Spain which if I shall clear the Inference grounded upon these props will fall of it self Therefore I crave leave of your Lordships before I give my Answer to the Charge that I may give you an account of these two particulars and I humbly beseech you that what I shall speak in my just defence may not be conceived to proceed of vain ostentation And first for Religion I was in my Childhood bred in the Protestant Religion and rather after the stricter manner then otherwise When I grew in years fit I travelled into France Italy and Rome it self In all which Travels I can produce some that I consorted withal who will witness with me that I ever constantly used the Religion I professed without the least prevarication no man being able to charge me that so much as out of curiosity I ever was present at any of the exercises belonging to the Roman Religion or did the least act of Conformity to any of their Rites or Ceremonies Secondly After my return home I was received into the service of his late Majesty of Blessed Memory whom I served some years as a Gentleman of his Privy Chamber and Carver in which time none of his Majesties Servants received the Holy Sacrament frequented Sermons and other exercises of our Religion more then I. Thirdly In that time of my youth not to avoid idleness but out of affection to Religion I translated that excellent Book of our Faith and great Points of our Religion Written by Monsieur Moulins which his late Majesty having sometimes after seen approved so well that he would needs have it Printed which accordingly was Printed in the name of Mr. Sampford my Chaplain to whom I gave the honor But it was my own act as Mr. Sampford will not deny though to this hour I had never before spoken of it Fourthly About Seven or eight and twenty years of my age I was employed Ambassador into Spain in that great business of the Treaty of the Marriage and whereas others before me carried with them but one Chaplain I had two viz. Mr. Sampford and Mr. Boswel and at my arival at the Court of Spain I caused it to be published that such a day God willing I purposed to have a Communion to the end that such English as were in the Town might resort thither Whereat the Duke De Lerma and other the great Ministers of Spain took offence and told me they might well perceive I brought no good affection to the business I came about that would so publickly and avowedly in that Court where never the like was done proclaim there a Communion and with high expression perswaded me to decline it Whereunto I answered I came to do my Master service which I would heartily and effectually endeavor but would not omit my service to God no though my Master commanded And at
the other Knight being Robert Clifford it was agreed in Parliament that he should have the voices of both because the other must of necessity be absent And they both amongst other things petitioned the Council that if the King in his Person should come on the Sea they might have such a liberty to wait upon him as they might make their Lieutenant during the time for the service of their places But the Council that allowed the rest or most of their demands answered to that Le Councel ne pent faire Then he estimated the nature of the offence by the consequences which follow the not guarding of the Seas viz. 1. The losses already shewed 2. The prevention of Trade which gives life to the wealth of the Kingdom 3. The weakning of the Naval strength the Merchants being thereby discouraged from building ships which they cannot use In 1 Rich. 2. the Commons opened the two chief and almost whole Causes of the weakning the Kingdom at that time the neglect of Chivalry and eminent vertue not regarded nor rewarded the decay of Trade since the Navy was grown weak besides all the loss of quiet possession of so large a Territory as the Seas of England and Ireland by the free use of which the ancient glory and greatness of the Crown of England hath so constantly subsisted Then he instanced in Michael de la Pool Lord Chancellor who in 9 Rich. 2. mis-spent Subsidies given pro salva custodia maris as appears in the Roll and was adjuged in Parliament though for other offences because some other Lords of the Council had been trusted with him and it was not fit to impeach him sans les companions they taking it for a crime without question fit to be complained of Secondly in William Duke of Suffolk who for the same fault being Admiral onely in the right of Henry Earl of Exeter his Ward was by the King extraordinarily commanded into banishment Then he brought examples of such who had been put to death and confiscated for not safe-guarding Towns and Castles and Forts which are of like nature with not safe-guarding the Seas and with losing the possession of the Crown To the Fifth he said The staying of the ship called the Peter of Newhaven and detaining part of the goods was against the Marine Laws of England against the Common Laws against the Laws of Merchants and consequently the Law of Nations By the Marine Laws agreeable to the Civil Laws sentence given by any Subject or other against the King may upon new proof be revoked but not without new proof He made by his Patent a Judge of all Maritine Causes as well as Keeper of the Seas his Jurisdiction was to be exercised juxta leges nostras civiles Maritimas and accordingly to hear all Causes and generally to proceed ex officio mero mixto promoto secundum leges nostras Civiles Maritimas Against the common-Common-Laws All Justices and all other deputed to do Law or Right are commanded by Act of Parliament to permit the course of ordinary Justice and although they be commanded to do the contrary that they do execution aright and according to justice as far as in them lies and so for any Letters of Commandment which may come unto them from us or from any other or by any other cause Against the Law of Nations Against what is agreed by the Leagues between us and Forain Nations That the Subjects of Nations in Amity with us shall be well used and permitted without Molestation for what cause or occasion soever according to the Laws and Customs of the places where they shall be Lastly against the Laws of Merchants which is to have Celerem justitiam The Consequences of this Offence are 1. Great damage to our English Merchants that have suffered by reason of it in Forain Parts as they alleadge 2. It is a discouragement to those that are Subjects to the Marine Jurisdiction 3. An example that may serve hereafter to justifie all absolute Authority in the Admiral without Law or Legal course over the ships and good of all Merchants whatsoever and so no security to Merchants Lastly He instanceth in the Duke of Suffolk who was adjudged in Parliament for Treason and among other offences it was laid to his charge that he took to his own use goods Piratically taken and expresly against the Order determined by the Lord Protector and the whole Council whereunto his hand had been for the restitution of them Next were read the Sixth Seventh and Eighth Articles viz. VI. Whereas the honor wealth and strength of this Realm of England is much increased by the Traffick chiefly of such Merchants as imploy and build great warlike Ships a consideration that should move all Counsellors of State especially the Lord Admiral to cherish and maintain such Merchants The said Duke abusing the Lords of the Parliament in the One and twentieth year of the late King Iames of famous memory with pretence of serving the State did oppress the East India Merchants and extorted from them Ten thousand pounds in the subtil and unlawfull manner following About February in the year aforesaid he the said Duke hearing some good success that those Merchants had at Ormus in the parts beyond the Seas by his Agents cunningly in or about the moneth aforesaid in the year of the said late King endeavored to draw from them some great sum of money which their poverty and no gain by that success at Ormus made those Merchants absolutely to deny whereupon he the said Duke perceiving that the said Merchants were then setting forth in the course of their Trade four Ships and two Pinaces laden with goods and merchandise of very great value like to lose their voyage if they they should not speedily depart The said Duke on the first of March then following in the said year of the said late King did move the Lords then assembled in the said Parliament whether he should make stay of any Ships which were then in the Ports as being high Admiral he might and namely those ships prepared for the East India voyage which were of great burthen and well furnished which motion being approved by their Lordships the Duke did stay those ships accordingly but the fifth of March following when the then Deputy of that Company with other of those Merchants did make suit to the said Duke for the release of those Ships and Pinaces he the said Duke said he had not been the occasion of their staying but that having heard the motion with much earnestness in the Lords House of Parliament he could do no less then give the order they had done and therefore he willed them to set down the reasons of their suit which he would acquaint the House withall yet in the mean time he gave them leave to let their said ships and Pinaces fall down as low as Tilbury And the tenth of March following an unusual joynt action was by his procurement entred
complained of and what punishment it may deserve His fault consisteth in the unjust extorting and receiving the Ten thousand pounds from the East-India Company against their wills by colour of his Office Yet as offenders in this kinde have commonly some colour to disguise and mask their Corruptions so had he His colour was the Release of his pretended right to the Tenth part or some other share of the Goods supposed to be Piratically taken at Sea by the Captain and their Servants of the Company And though his Lordship may perhaps call his act therein a lawful Composition I must crave pardon of your Lordships to say thus That if his supposed right had been good this might peradventure have been a fair Composition The same pretence being unsound and falling away it was a meer naked Bribe and unjust extortion For if way should be given to take money by colour of Releases of pretended rights men great in power and in evil would never want means to extort upon the meaner sort at their pleasures with impunity It remains therefore that I should prove unto your Lordships onely two things First That a pretence of right by the Duke if he had none will not excuse him in this case and in the next place to shew by reason and good warrant That he had in Law no right at all to Release For the former I will relie upon the substance of two noteable presidents of Judgments in Parliament the one antient in the 10 Rich. 2. At which time the Commons preferred divers Articles unto the Lords in Parliament against Michael de la Pool Earl of Suffolk Lord Chancellor of England accusing him amongst other things by the first Article of his Charge That while he was Lord Chancellor he had refused to give Livery to the cheif Master of St. Anthonies of the profit pertaining to that Order till he had security from them with Sureties by Recognisance of Three thousand pounds for the payment of One hundred pounds per annum to the Earl and to Iohn his Son for their lives The Earl by way of Answer set forth a pretended Title in his Son to the cheif Mastership of that Order and that he took that One hundred pound per annum as a Composition for his Sons right The Commons replied shewing amongst other things That the taking of Money for that which should have been done freely was a selling of the Law and so prayed Judgment In conclusion the pretended right of his Son not being just or approved the offence remained single by it self a sale of Law and Justice as the Law termeth it and not a Composition for the Release of his Interest So the Earl for this amongst the rest was sentenced and greatly punished as by the Records appeareth The other President of like nature is more Modern in the Case of the Earl of Middlesex late Lord Treasurer of England who was charged by the Commons in Parliament and transmitted to your Lordships for taking of Five hundred pounds of the Farmers of the Great Customs as a Bribe for allowing of that Security for payment of their Rent to the late Kings Majesty which without such reward of Five hundred pounds he had formerly refused to allow of The Earl pretended for himself That he had not onely that Five hundred pound but Five hundred pounds more in all One thousand pounds of those Farmers for a Release of his Claim to Four of Two and thirty parts of that Farm But upon the proof it appearing to your Lordships That he had not any such part of that Farm as he pretended it was in the Thirteenth day of May in the Two and twentieth year of his late Majesties reign Adjudged by your Lordships in Parliament which I think is yet fresh in your Memories That the Earl for this amongst other things should undergo many grievous Censures as appeareth by the Records of your Lordships house which I have lately seen and perused And now being to prove that the said Duke had no title to any part of the Goods by him claimed against the East-India Company I shall easily make it manifest if his Lordships pretence by his own Allegation in the Admiralty were true That the Goods whereof he claims his share were Piratically taken From which Allegation as he may not now recede so is it clear by Reason and Authority That of such Goods no part or share whatsoever is due to the Lord Admiral in right of his Office or otherways 1. For that the parties from whom the same were taken ought to have restitution demanding it in due and reasonable time and it were an injury to the intercourse and Law of Nations if the contrary should be any way tolerated 2. Secondly by Law for so are the Statutes of this Kingdom and more especially in 27 Edw. 3.13 whereby it was provided That if any Merchant privy or stranger be robbed of his Goods upon the Sea and the same come afterwards into this Realm the owner shall be received to prove such Goods to be his and upon proof thereof shall have the same restored to him again Likewise 1 2 3 Edw. 6.18 in the Act of Parliament touching Sir Thomas Seymour Great Admiral of England who therein amongst divers other things is charged with this That he had taken to his own use Goods Piratically taken against the Law whereby he moved almost all Christian Princes to conceive a grudge and displeasure and by open War to seek remedy by their own hands And therefore for this amongst other things he was attainted of High Treason as appeareth by that Act wherein the Law is so declared to be as before is expressed But if it should be admitted that the Duke had a right in this case for which he might compound yet the manner of his seeking to try and recover such his right is in it self an high Offence and clearly unlawful in many respects whereof I will touch but a few As in making the most Honorable House of Parliament an Instrument to effect his private ends for his profit In proceeding to arest and stay the Ships of men not apt to flie but well able to answer and satisfie any just Suits which he might have against them though their Ships had gone on in their Voyage In prosecuting things so unseasonably and urging them so extreamly by his Advocate for bringing in of so great a sum of money upon the sudden and formally under colour of Justice and Service of the State In reducing that Company into that straight and necessity that it was as good for them to compound though the Duke had no title as to defend their own just right against him upon these disadvantages which by his power and industry he had put upon them Then he read the Seventh and Eighth Articles which he handled joyntly as being not two Charges but two sevearl parts of one and the same Charge and when he had read them he went on speaking further to
said Drink or Potion to his said late Majesty who thereupon at the same times within the seasons in that behalf prohibited by his Majesties Physitians as aforesaid did by the means and procurement of the said Duke drink and take divers quantities of the said Drink or Potion After which said Plaisters and Drink or Potion applied and given unto and taken and received by his said Majesty as aforesaid great distempers and divers ill symptoms appeared upon his said Majesty insomuch That the said Physitians finding his Majesty the next morning much worse in the estate of his health and holding a Consultation thereabout did by joynt consent send to the said Duke praying him not to adventure to minister to his Majesty any more Physick without their allowance and approbation And his said Majesty himself finding himself much diseased and affected with pain and sickness after his then fit when by the course of his Disease he expected intermission and ease did attribute the cause of such his trouble unto the said Plaister and Drink which the said Duke had so given and caused to be administred unto him Which said adventrous act by a person obliged in duty and thankfulness done to the Person of so great a King after so ill success of the like formerly administred contrary to such Directions as aforesaid and accompanied with so unhappy event to the great grief and discomfort of all his Majesties Subjects in general is an Offence and Misdemeanor of so high a nature as may justly be called and is by the said Commons deemed to be an act of transcendent presumption and of dangerous consequence Mr. Wandesford deputed to enlarge and aggravate upon the Thirteenth Article commended the charity and providence of that Law which makes it penal for unskilful Empyricks and all others to exercise and practice Physick upon common persons without a lawful Calling and Approbation branding them that thus transgress as Improbos Ambitiosos Temerarios Audaces homines But he that without skill and calling shall direct a Medicine which upon the same person had wrought bad effects enough to have disswaded a second adventure and then when Physitians were present Physitians selected for Learning and Art prepared by their Office and Oaths without their consent nay even contrary to their Direction and in a time unseasonable He must needs said he be guilty albeit towards a common person of a precipitate and unadvised rashness much more towards his own Soveraign And so pious are our selves to put the Subjects in minde of their duty towards their Princes Persons so Sacred that in the attempt of a Madman upon the King his want of Reason which towards any of his fellow Subjects might have quit him of Felony shall not excuse him of Treason And how wary and advised our Ancestors have been not to apply things in this kinde to the Person of a King may appear by a President 32 Hen 6. where Iohn Arundel and others the Kings Physitians and Chirurgeons thought it not safe for them to administer any thing to the Kings Person without the assent of the Privy Council first obtained and express Licence under the Great Seal of England This Medicine found his Majesty in the declination of his desease and we all wish it had left him so but his better days were shortly turned into worse and instead of health and recovery we hear by good testimony that which troubles the poor and loyal Commons of England of great distempers as Droughts Raving Fainting an intermitting Pulse strange effects to follow upon the applying of a Treacle Plaister But the truth is Testimony tells us That this Plaister had a strange smell and an invective quality striking the malignity of the disease inward which Nature otherwise might have expelled outward Adde to this the Drink twice given to his Majesty by the Duke his own hands and a third time refused and the following Complaint of that blessed Prince the Physitians telling him to please him for the time That his second impairment was from cold taken or some other ordinary cause No no said his Majesty it is that which I had from Buckingham And though there be no President said he of an act offered to the Person of a King so insolent as this yet is it true that divers persons as great as this have been questioned and condemned for less offences against the Person of their Soveraign It was an Article amongst others laid against the Duke of Somerset for carrying Edward the Sixth away in the night time out of his own head but from Hampton Court to Windsor and yet he was trusted with the Protection of his person Presidents failing us in this point the Common Law will supply us The Law judgeth a deed done in the execution of an unlawful act Man-slaughter which otherwise would but have been Chance-medley and that this act was unlawful the House of Commons do believe as belonging to the Duty and Vocation of a sworn and experimented Physitian and not the unskilfulness of a yong Lord. And so pretious are the lives of men in the Eye of the Law that though Mr. Stanford saith If a Physitian take one into his Cure and he die under his hands it is not Felony because he did it not Feloniously Yet it is Mr. Bractons opinion That if one that is no Physitian or Chirurgeon undertake a Cure and the party die under his hands this is Felony And the Law goeth further making Physitians and Chirurgeons themselves accomptable for the Death of their Patients if it appear they have transgressed the Rules of their own Art that is by undertaking a thing wherein they have no experience or having yet failed in the care and diligence Lastly He said he was commanded by the House of Commons to desire their Lordships That seeing the Duke hath made himself a President in committing that which former Ages knew not their Lordships will out of their Wisdom and Justice make him an example for the time to come The several Articles being thus enlarged and aggravated by the said respective Members Sir Iohn Elliot was appointed to make the Epilogue to the Impeachment who spake thus My Lords YOur Lordships have heard in the Labors of these two days spent in this Service a Representation from the Knights Citizens and Burgesses of the Commons House of Parliament of their Apprehension of the present Evils and dangers of this Kingdom of the Causes of the same and of the Application of them to the Duke of Buckingham so clearly and fully as I presume your Lordships expect I should rather conclude then adde any thing to his charge Your Lordships have heard how his Ambition was expressed in procuring and getting into his hands the greatest Offices of strength and power of this Kingdom by what means he had attained them and how Money stood for Merit There needs no Argument to prove this but the common sense of the Miseries and Misfortunes which we suffer
Barnardiston of the County of Suffolk and William Coriton Esq of the County of Cornwal were secured in the County of Sussex Sir Harbotle Grimston of the County of Essex and Sir Robert Points were secured in Northamptonshire Iohn Hampden Esq and others of the County of Bucks were secured in Hampshire and the like course was taken with the Gentry of other Counties who refused the Loan And the Council ordered that all those Refractory persons before-named for so they are called in the Order who are appointed by his Majesties command to their several Commitments shall presently obey the Order of the Board sent with their Messenger in that behalf or be committed close prisoners any pretence of inability want of conveniency or any excuse whatsoever notwithstanding Many of those Gentlemen were afterwards sent for by Pursevants out of those Counties where they were confined by Order of the Council and committed to several Prisons some to the Fleet some to the Marshalsey and Gatehouse and others remained in the custody of the Messengers And from the Gatehouse Sir Iohn Elliot sends this Petition to his Majesty To the Kings most Excellent Majesty The humble Petition of Sir Iohn Elliot Knight Prisoner in the Gate-house concerning the Loan Sheweth THat your poor Suppliant affected with sorrow and unhappiness 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 Royal Brest that stubbornness and will have béen the motives of his forbearing to condescend to the said Loan low as your Highness foot with a sad yet a faithful 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 Iustice he takes to be the Law impartial Arbiter of Government and Obedience the support and strength of Majesty the observation of that Iustice by which Subjection is commanded This and Religion added to this Power not to be resisted binds 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 of the Loan being desirous to be satisfied how far 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 Edward the First he findeth that the Commons of that age were so tender of their Liberties as they feared even their own frée acts and gifts might turn them to a Bondage and their Heirs Wherefore it was desired and granted That for no business 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 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 Freeman of the Land And that Prudent and Magnanimous Prince Edward the Third led by the same Wisdom having granted That the greatest gift given in Parliament for the Aid and speed of his matchless 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 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 Such were the Opinions of these times for all these Aids Benevolences Loans and such like Charges exacted from the Subject not in Parliament which they held to be Grievances contrary to their Liberties and illegal and so pious were their Princes in Confirmation of their Liberties as having secured them for the present by such frequent Laws and Statutes they did likewise by them provide for their Posterity and in some so strictly that they bound the Observation with a Curse as in that of 33 Edw. 1. And also under pain of Excommunication as by the other of the Five and twentieth of the same King which was to be denounced against all those that violate or break them which Act extends to us And these Reasons he presents to your Majesty as the first Motive taken from the Law There are others also which in his humble apprehension he conceived from the Action it self which he likewise tenders to your most Excellent Wisdom First That the Carriage and Instructions accompanied with the Authority of the Great Seal imported a Constraint such Requests to Subjects being tacite and implied Commands and so preventing that readiness and love which in a frée way would have far excéeded those Demands whereas the wonted Aids given to your happy Ancestors were Ex spontanea voluntate charitate populi whereby they made that Conjunction of their Hearts at home which wrought such power and reputation to their acts abroad Whereas the firmest Obligation of that readiness and love is the benignity of Princes giving and preserving to their People just and decent Liberties which to this Kingdom are derived from the Clemency and Wisdom of your Progenitors to whom there is owing a Sacred Memory for them He could not as he feared without pressure to these immunities become an actor in this Loan which by imprisonment and restraint was urged contrary to the Grants of the Great Charter by so many glorious and victorious Kings so many times confirmed being therein most confident of your Majesty that never King that raigned over us had of his own benignity and goodness a more pious disposition to preserve the just Liberties of his Subjects then your Sacred Self Though we were well assured by your Majesties Royal Promise whose words he holds as Oracles of Truth that it should become a president during the happiness of your Raign the long continuance whereof is the daily subject of his Prayers yet he conceived from thence a fear that succeeding Ages might thereby take occasion
and written divers Books and know very well what appertaineth to the Schools This is a new kinde of Learning unto me I have formerly found fault that the Author of this Sermon quoteth not the places whereupon he grounds his Doctrine and when I have oft called for them it is replied unto me that I must take them upon the credit of the Writer which I dare not do for I have searched but one place which he quoted in general but sets down neither the words nor the Treatise nor the Chapter and I finde nothing to the purpose for which it is quoted and therefore I have reason to suspect all the rest I pray you therefore in the humblest manner to commend my service to the King my Master and let him know that unless I may have all the Quotations set down that I may examine them and may have that writing wherein I am so ill used I cannot allow the Book Before I go further it shall not be amiss to touch some particulars of that which I sent in writing to the King The first was Page 2. Those words deserve to be well weighed And whereas the Prince pleads not the Power of Prerogative To this Mr. Murrey said The King doth not plead it But my Reply was By what then doth he coerce those Refractories for I have not heard of any Law whereby they are imprisoned and therefore I must take it to be by the Kings Prerogative To the second Page 8. The Kings duty is first to direct and make Laws There is no Law made till the King assent unto it but if it be put simply to make Laws it will cause much startling at it To this I remember not any material thing answered neither to the third Page 10. If nothing may excuse from active obedience but what is against the Law of God or of Nature or impossible How doth this agree with the first Fundamental Position Page 5. That all Subjects are bound to all their Princes according to the Laws and Customs of the Kingdom wherein they live This is a fourth Case of Exception And here before I go to the rest the Doctor did truly hit upon a good point in looking to the Laws and Customs if he could have kept him to it for in my memory and in the remembrance of many Lords and others that now live Doctor Haresenet the then Bishop of Chichester and now of Norwich in Parliament time Preached a Sermon at Whitehal which was afterward burned upon the Text Give unto Caesar the things that be Caesars Wherein he insisted That Goods and Money were Caesars and therefore they were not to be denied unto him At this time when the whole Parliament took main offence thereat King Iames was constrained to call the Lords and Commons into the Banqueting-house at Whitehal and there his Majesty calmed all by saying The Bishop onely failed in this when he said the Goods were Caesars he did not adde They were his according to the Laws and Customs of the Countrey wherein they did live So moderate was our Caesar then as I my self saw and heard being then an eye and ear witness for I was then Bishop of London To the fourth The Poll-Money in St. Matthew was imposed by the Emperor as a Conqueror over the Iews and the execution of it in England although it was by a Law produced a terrible effect in King Richard the Second's time when onely it was used for ought that appeareth Here the Bishop in the Paper excepted divers things as That sometimes among us by Act of Parliament strangers are appointed to pay by the Poll which agreeth not with the Case and that it was not well to bring examples out of weak times whereas we live in better but that it was a marvelous fault the blame was not laid upon the Rebels of that Age. Those are such poor things that they are not worth the answering But my Objection in truth prevailed so far that in the Printed Book it was qualified thus Poll-Money other persons and upon some occasions where obiter I may observe That my refusing to sign the Sermon is not to be judged by the Printed Book for many things are altred in one which were in the other To the fifth Page 12. It is in the bottome view the Reign of Henry the Third whether it be fit to give such allowance to the Book being surreptiously put out To this it was said That being a good passage out of a blame-worthy Book there was no harm in it But before the Question of Sibthorps Treatise the Bishop of Bathe himself being with me found much fault with that Treatise as being put out for a scandalous Parallel of those times To the sixth in the same Page Let the largeness of those words be well considered Yea all Antiquity to be absolutely for absolute Obedience to Princes in all Civil or Temporal things For such Cases as Naboths Vineyard may fall within this Here the Bishop was as a man in a rage and said That it was an odious comparison for it must suppose that there must be an Ahab and there must be a Iezabel and I cannot tell what But I am sure my Exception standeth true and reviling and railing doth not satisfie my Argument All Antiquity taketh the Scripture into it and if I had allowed that proportion for good I had been justly beaten with my own Rod. If the King the next day had commanded me to send him all the Money and Goods I had I must by mine own rule have obeyed him and if he had commanded the like to all the Clergy-men in England by Doctor Sibthorps proportion and my Lord of Canterburies allowing of the same they must have sent in all and left their Wives and Children in a miserable case Yea the words extend so far and are so absolutely delivered That by this Divinity if the King should send to the City of London and the Inhabitants thereof commanding them to give unto him all the wealth which they have they were bound to do it I know our King is so gratious that he will attempt no such matter but if he do it not the defect is not in these flattering Divines who if they were called to question for such Doctrine they would scarce be able to abide it There is a Meum and a Tuum in Christian Commonwealths and according to Laws and Customs Princes may dispose of it that saying being true Ad Reges potestas omnium pertinet ad singulos proprietas To the seventh Page 14. Pius Quintus was dead before the year One thousand five hundred and eighty They make no Reply but mend it in the Printed Book changing it into Gregory the Thirteenth To the last in the same Page weigh it well How this Loan may be called a Tribute and when it is said We are promised shall not be immoderately imposed How that agreeth with his Majesties Commission and Proclamation which are quoted in the Margent
apparent that their true grief is not in the matter of giving but to see the Evil imploying of it when it is given If any man shall pervert this good meaning and motion of yours and inform his Majesty 't is a derogation from his Honor to yield to his Subjects upon Conditions His Majesty shall have good cause to prove such mens Eyes malitious and unthankfull and thereby to disprove them in all their other Actions For what can it lessen the Reputation of a Prince whom the Subject onely and wholy obeyeth that a Parliament which his Majesty doth acknowledge to be his highest Council should advise him and he follow the advice of such a Council What dishonor rather were it to be advised and ruled by one Councellor alone against whom there is just exception taken of the whole Commonwealth Marcus Portio saith That that Commonwealth is everlasting where the Prince seeks to get obedience and love and the Subjects to gain the affection of the Prince and that Kingdom is unhappy where their Prince is served out of ends and hope of Reward and hath no other assurance of them but their service Thursday the 20 of March the House setled their grand Committees for Religion Grievances Courts of Justice and Trade and agreed upon a Petition to the King for a Fast unto which the Lords also consented Most gracious Soveraign WE your most humble and loyal Subiects the Lords Spiritual and Temporal in this present Parliament assembled upon a tender and compassionate sence of the extream Calamities of the Reformed Churches abroad and with much sorrow apprehending the displeasure of Almighty God declared against our selves the manifold evils already faln upon us and those which are further threatned as by your sacred Majesty was intimated unto us even to the utter destruction and subversion of this Church and State and which our sins have justly deserved and being now by your Majesties gracious favor assembled in Parliament as the Great Council of this your Kingdom to consult of such means as we think fittest to redress the present and prevent the future evils wherein we through Gods blessing intend to imploy our utmost endeavors humbly beseech your Majesty that by your special Command one or more days may be forthwith solemnly set apart wherein both our selves and the whole Kingdom may by fasting and prayers seek reconciliation at the hands of Almighty God and with humble and penitant hearts beseech him to remove those miseries that lie upon us our neighbor Churches to avert those which are threatned to continue the favors we yet enjoy and particularly to bestow his abundant blessing upon your Majesty and this present Parliament so that all our Counsels and Resolutions being blessed by his Divine assistance may produce much honor and safety to your Majesty your People and Allies Saturday the 22 of March was spent in opening the grievances and state of the Kingdom as billeting of Soldiers Loans by Benevolences and Privy-Seal and the imprisoning certain Gentlemen who refused to lend upon that account who afterwards bringing their Habeas Corpus were notwithstanding remanded to prison nor did the House encline to Supply his Majesty till these Grievances were redressed To which purpose Sir Francis Seimour thus began This is the great Council of the Kingdom and here if not here alone his Majesty may see as in a true glass the state of the Kingdom we are called hither by his Majesties writs to give him faithful counsel such as may stand with his honor but this we must do without flattery we are sent hither by the Commons to discharge that trust reposed in us by delivering up their just grievances and this we must do without fear let us not therfore be like Cambyses Judges who being demanded of their King whether it were not lawful for him to do what in it self was unlawful They rather to please the King then to discharge their own consciences answered that the Persian Kings might do what they listed This base flattery tends to mischief being fitter for reproof then imitation and as flattery so fear taketh away the judgment let us not then be possessed with fear or flattery of corruptions the basest For my own part I shall shun both these and speak my conscience with as much duty to his Majesty as any man but not neglecting the Publick in which his Majesty and the Commonwealth have an Interest But how can we shew our affections whilst we retain our fears or how can we think of giving of Subsidies till we know whether we have any thing to give or no for if his Majesty be perswaded by any to take from his Subjects what he will and where it pleaseth him I would gladly know what we have to give It s true it is ill with those Subjects that shall give Laws to their Princes and as ill with those Princes which shall use force with those Laws that this hath been done appeareth by the billetting of Soldiers a thing no way advantageous to his Majesties service but a burden to the Commonwealth This also appeareth by the last Levy of money against an act of Parliament Again Mr Speaker what greater proof can there be of this then the imprisonment of divers Gentlemen for the Loan who if they had done the contrary for fear their fault had been as great as theirs that were the Projectors in it and to countenance these Proceedings hath it not been preached or rather prated in our pulpits that all we have is the Kings Iure Divino say these time-servers they forsake their own function and turn ignorant States-men we see how willing they will be to change a good conscience for a Bishoprick and Mr Speaker wee see how easie it is for a Prince how just and good soever to be abused in regard he must see with other mens eyes and hear with other mens ears Let us not flatter his Majesty it is too apparent to all the world the King and people suffer more now then ever His Majesty in his Affairs abroad and his People in their Estates at home But will you know the reason of all this let us look back to the Actions of former Princes and we shall find that those Princes have been in greatest want and extreamity that exacted most of their Subjects and most unfortunate in the choice of their Ministers and to have failed most in their undertakings happy is that Prince that hath those that are faithful of his Council That which his Majesty wanted in the management of his Affairs concerning France and Spain I am clear was his want of faithful Council to advise The reason is plain a Prince is strongest by faithfull and wise Council I would I could truly say such have been imployed abroad I will confess and still shall from my heart he is no good Subject nor well affected to his Majesty and the State that will not willingly and freely lay down his life
propriety in my own house and not liberty in my person Perspicuè vera non sunt probanda The King hath distributed his Judicial power to Courts of Justice and to Ministers of Justice it is too low for so great a Monarch as the King is to commit men to Prison and it is against Law that men should be committed and no cause shewed I would not speak this but that I hope my Gracious King will hear of it yet it is not I Edw. Cook that speaks it but the Records that speak it we have a National appropriate Law to this Nation diversis ab orbe Brittannis I will conclude with the Acts of the Apostles chap. 25. It is against reason to send a man to Prison and not to shew the cause It is now time to go to the Question Resolved upon the Question Nemine contradicente I. That no Freeman ought to be detained or kept in Prison or otherwise restrained by the command of the King or the Privy-Council or any other unless some cause of the commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained II. That the Writ of Habeas Corpus may not be denied but ought to be granted to every man that is committed or detained in Prison or otherwise restrained though it be by the command of the King the Privy-Council or any other he praying the same III. That if a Freeman be committed or detained in prison or otherwise restrained by the Command of the King the Privy-Council or any other no cause of such Commitment Detainer or Restraint being expressed for which by Law he ought to be committed detained or restrained and the same be returned upon a Habeas Corpus granted for the said Party then he ought to be delivered or bailed And then taking into consideration the Property of the Subject in his Goods they came to this Resolution to which there was not a Negative viz. That it is the antient and undubitable right of every Freeman That he hath a full and absolute Property in his Goods and Estate that no Tax Tallage Loan benevolence or other like charge ought to be commanded or levied by the King or any of his Ministers without common consent by Act of Parliament Wednesday March 26. The Propositions tendred the day before by Secretary Cook from his Majesty were now received and read but the Debate thereof was referred to another day The Propositions were these viz. 1. To furnish with men and Victuals 30 ships to guard the narrow Seas and along the Coasts 2. To set out ten other ships for the relief of the Town of Rochel 3. To set out ten other ships for the preservation of the Elbe the Sound and Baltick-Sea 4. To leavy Arms Cloth Victual pay and transport an Army of 1000. Horse and 10000. Foot for Forein Service 5. To pay and supply 6000 l. more for the service of Denmark 6. To supply the Forts of the Office of Ordnance 7. To supply the Stores of the Navy 8. To build 20 ships yearly for the increase of the Navy 9. To repair the Forts within the Land 10. To pay the arrears of the Office of Ordnance 11. To pay the arrears of the Victuallers Office 12. To pay the Arrear of the Treasure of the Navy 13. To pay the Arrears due for the freight of divers Merchants ships imployed in his Majesties Service 14. To provide a Magazine for Victuals for Land and Sea-service And the Commons having a Conference with the Lords about the Petition against Recusants Secretary Cook was appointed to manage the said Conference In the first place he said we acknowledge all due honor both unto the reverend Fathers of the Church and to our Noble Lords in that ye have shined before us as worthy Lights in the encouragement and maintenance of true Religion being the true support of all Dignities and Honors And this forwardness of you is the more remarkable when that viperous Generation as your Lordships justly stiled them do at ease with tooth and nail essay to rend the Bowels of their Mother Give me leave to tell you what I know that these now both vaunt at home and write to their friends abroad They hope all will be well and doubt not to prevail and to win ground upon us And a little to awake the Zeal and Care of our learned and grave Fathers it is fit that they take notice of that Hierarchy which is already established in competition with their Lordships for they have a Bishop consecrated by the Pope This Bishop hath his Subalternate Officers of all kindes as Vicars-General Arch-Deacons Rural-Deans Apparators and such like neither are these nominal or titular Officers alone but they all execute their Jurisdictions and make their ordinary Visitations through the Kingdom keep Courts and determine Ecclesiastical Causes And which is an Argument of more consequence they keep ordinary intelligence by their Agents in Rome and hold correspondence with the Nuntio's and Cardinals both at Bruxels and in France Neither are the Seculars alone grown to this height but the Regulars are more active and dangerous and have taken deep root they have already planted their Societies and Colledges of both Sexes they have setled Revenues Houses Libraries Vestments and all other necessary provisions to travel or stay at home nay even at this time they intend to hold a concurrent Assembly with this Parliament But now since his Sacred Majesty hath extended his Royal arm and since the Lords of his Council have by their Authority caused this nest of Wasps to be digged out of the Earth and their Convocations to be scattered And since your Lordships joyn in courage and resolution at least to reduce this people to their lawfull restraint that they may do no more hurt we conceive great hope and comfort that the Almighty God will from henceforth prosper our endeavors both at home and aboad But now my Lords to come to the chief Errand of this our meeting which is to make known to you the Approbation of our House of that Petition to his Majesty wherein you are pleased to request our concurrence The House hath taken it into serious consideration and from the beginning to the end approve of every word and much commend your happy pen onely we are required to present unto you a few Additions whereby we conceive the Petition may be made more agreeable to the Statutes which are desired to be put in execution and to a former * Petition granted by his Majesty Recorded in both Houses confirmed under the Broad-Seal of England and published in all our Courts of ordinary Justice But these things we propound not as our Resolutions or as matters to raise debate or dispute but commend them onely as our advice and desire being ready notwithstanding to joyn with your Lordships in the Petition as now it is if your Lordships shall not finde this Reason to be of weight This
being agreed unto on Monday the 31 of March the aforesaid Petition was presented by his Majesty to both Houses at the delivery whereof the Lord Keeper spake as followeth Most Gracious Soveraign THe Lords Spiritual and Temporal and Commons in this present Parliament assembled out of due care of the Glory of Almighty God and of the Honor and Safety of your Majesty do with all humbleness and with one unanimous consent present to your Royal hands the most Loyal desires of all their hearts which is set down in a dutifull Petition which is to quicken the Laws against the Perturbers of the Peace of all States We cannot nor do not forget your Majesties most gracious Acts and Answers on the like Petition they are visible to the world to your Majesties honor and comfort We bend our knees and hearts blessing God and your Majesty therefore yet let it not seem needless that we repair again to your Majesty The Husbandman knows what Weeds are not destroyed at one weeding These are growing Evils they are Weeds of a spreading nature And we that come from all parts do think it our duty to tell your Majesty that Gods Vineyard is not yet cleansed And God himself requires that we pray to him often even for what he means and promiseth to bestow on us But my Message comes from the Pen of both Houses And therefore I humbly beseech your Majesty to lend a gracious ear to hear me read the Petition After the reading thereof his Majesty made this short speech My Lords and Gentlemen I Do very well approve the Method of your proceedings in this Parliament A Jove principium hoping that the rest of your Consultatious will succeed the happier And I like the Preamble of my Lord Keeper otherwise I should have a little suspected that you had thought me not so careful of Religion as I have and ever shall be wherein I am as forward as you can desire And for the Petition I answer first in general That I like it well and will use these as well as other means for the maintenance and propagation of that Religion wherein I have lived and do resolve to die But for the particulars you shall receive a more full Answer hereafter And now I will only add this That as we pray to God to help us so we must help our selves For we can have no assurance of his assistance if we do lie in bed and only pray without using other means And therefore I must remember you that if we do not make provision speedily we shall not be able to put one ship to Sea this year Verbum sapienti sat est Afterwards the Lord Keeper signified unto the House That his Majesty had now given his Answer unto the Petition exhibited by both Houses against Recusants and had commanded his Lordship to read the same Answer in this House and Mr Secretary to read it in the House of Commons Whereupon the Clerk read the first Article of the said Petition and the Lord Keeper read his Majesties Answer unto the same and so each Article thereof The which Petition with the Answers follow in haec verba Most Gracious Soveraign WE your most Loyal and obedient Subâ—ects the Lords Spiritual and Temporal and Commons in Parliament assembled Having to our singular comfort obtained your Majesties pious and gracious assent for a Publick Fast to appease the wrath of Almighty God kindled against us and to prevent those grievous Iudgments which do apparently press upon us do in all humility present unto your sacred Majesty all possible thanks for the same And because the publick and visible sins of the Kingdom are the undoubted causes of those visible Evils that are faln upon us Amongst which sins as is apparent by the word of God Idolatry and Superstition are the most haynous and crying sins To the end that we may constantly hope for the blessing of God to descend upon this our publick Humiliation by abandoning those sins which do make a wall of Separation betwixt God and us WE most humbly and ardently beg at the hands of your most Sacred Majesty That your Majesty will be pleased to give continual life and motion to all those Laws that stand in force against Iesuites Seminary Priests and all that have taken Orders by Authority of the Sea of Rome by exacting a more due and serious execution of the same Amongst which number those that have highly abused your Majesties clemency by returning into the Kingdom after their vanishment contrary to your Highness express Proclamation we humbly desire may be left to the severity of your Laws without admitting of any mediation or intercession for them And that such of your Majesties unsound and il affected Subjects as do receive harbor or conceal any of their viperous Generation may without delay suffer such Penalties and Punishments as the Laws most justly impose upon them His Majesties Answer unto the first Article of this Petition TO the first Point his Majesty answereth That he will according to your desire give both life and motion to the Laws that stand in force against Jesuites Seminary Priests and all that have taken Orders by Authority of the Sea of Rome and to that end his Majesty will give strict order to all his Ministers for the discovering and apprehending of them and so leave them being apprehended to the trial of the Law And in case after trial there shall be cause to respit execution of any of them yet they shall be committed according to the example of the best times to the Castle of Wisbitch and there be safely kept from exercising their Functions of spreading their Superstitious and dangerous Doctrine and the Receivers and Abettors they shall be left to the Law THat your Majesty would be pleased to command a surer and strait watch to be kept in and over your Majesties Ports and Havens and to commit the care and charge of searching of Ships for the discovery and apprehension aswel of Jesuites and Seminary Priests brought in as of Children and young Students sent over beyond the Seas to suck in the poyson of Rebellion and Superstition unto men of approved fidelity and Religion And such as shall be convicted to have connived or combined in the bringing in of the one or conveying of the other that the Laws may pass upon them with speedy execution His Majesties Answer to the second Article TO the second Article His Majesty granteth all that is in this Article and to this end will give Order to the Lord Treasurer Lord Admiral and Lord Warden of the Cinque Ports that in their several places they be careful to see this Article fully executed giving strict charge to all such as have place and authority under them to use all diligence therein And his Majesty requireth them and all other his Officers and Ministers to have a vigilant eye upon such as dwell in dangerous places of advantage or opportunity for receiving or
and ought not to be denied and is directeâ— to the Keeper of the Prison in whose custody the Prisoner remains commanding him that after a certain day he bring in the body of the Prisoner cum causa detentionis and sometimes cum causa captionis and he with his return filed to the Writ bringeth the Prisoner to the Bar at the time appointed and the Court judgeth of the sufficiency or insufficiency of the retuâ—n and if they finde him baylable committitur Marescallo the proper Prison belongeth to the Court and then afterward traditur in ball But if upon the return of the Habeas Corpus it appear to the Court that the Prisoner ought not to be bayled nor discharged from the Prison whence he is brought then he is remanded and sent back again to continue till by due course of Law he may be delivered and the entâ—y of this is remittitur quousque secundum legem deliberatus fuerit or remittitur quousque c. which is all one and the highest award of Judgement that ever was or can be given upon a Habeas Corpus Your Lordships have heard the resolution of the House of Commons touching the enlargement of a man committed by the command of the King or the privy Councel or any other without cause shewed of such commitment which resolution as it is grounded upon Acts of Parliament already shewen the reason of the Law of the Land being committed to the charge of another to open unto unto you so it is strengthened by many Precedents of Records He then produced twelve Precedents full and directly in the point to prove that persons so committed ought to be delivered upon bayl which were distinctly opened and read to their Lordships then he also offered to their consideration other kind of Precedents which were solemn resolutions of Judges things not of Record but yet remain in Authentick Copies which Precedents and Authorities we omit for the length thereof He then proceeded and said The House of Commons desiring with all care to inform themselves fully of the truth of the resolution of the Judges in the 34. year of the Queen cited in the case of Sir Iohn Heveningham by the Kings Councel as Arguments against his not being bayled have got into their hands a Book of select Cases collected by the reverend and learned Judge Chief Justice Anderson all written with his own hand which he caused to be read being the same which hath been already mentioned in the Collections of this Parliament which Precedents saith he do fully resolve enough for the maintenance of the ancient and fundamental point of Liberty of the Person to be regained by Hab. Corp. when any is imprisoned Then he concluded that having thus gone through the charge committed to him by the House of Commons he should now as he had leave and direction given him lest their Lordships should be put to much trouble and expence of time in finding and getting Copies at large of those things which he had cited offer also to their Lordships Authentick Copies of them all and so left them and whatever else he had said to their Lordships further consideration LAst of all Sir Edward Cook took up the Argument as to the rational part of the Law and began with this Introduction Your Lordships have heard 7. Acts of Parliament in point and 31. Precedents summarily collected and with great understanding delivered which I have perused and understand them all throughly 12. of the Precedents are in terminis terminantibus a whole Jury of Precedents and all in the point I am much transported with joy because of the hope of good success in this weighty business your Lordships being so full of Justice and the very Theme and Subject doth promise success which was Corpus cum cansa the freedom of an English man not to be imprisoned without cause shewn which is my part to shew and the reason and the cause why it should be so wherein I will not be prolix nor copious for to guild Gold were idle and superfluous And after he had cleared some doubts made of the Statute of Westminster which saith That the Sheriffs and others in some cases may not replevin men in Prison he proceeded further and said That all those Arguments offered unto your Lordships in this last conference are of a double nature 1. Acts of Parliament 2. Judicial Precedents For the first I hold it a proper Argument for your Lordships because you my Lords temporal and you my Lords spiritual gave your assent unto those Acts of Parliament and therefore if these cannot perswade you nothing can For the second which are Judicial Precedents it is Argumentum ab authoritate and Argumentum ab authoritate valet affimative that is I conceive though it be no good Argument to say negatively the Judges have given no opinion in the point 3. It is good Law which I fortifie with a strong Axiome Neminem oportet sapientiorem esse legibus Now these two arguments being so well pressed to your Lordships by my Colleagues I think your Lordships may wonder what my part may be it is short but sweet it is the Reason of all those Laws and Precedents and Reason must needs be welcome to all men for all men are not capable of the understanding of the Law but every man is capable of Reason and those Reasons I offer to your Lordships in affirmance of the antient Laws and Precedents made for the Liberty of the Subject against Imprisonment without cause expressed 1. A re ipsa 2. A minore ad majus 3. From the remedies provided 4. From the extent and universality of the same 5. From the infiniteness of the time 6. A Fine The first general Reason is a re ipsa even from the nature of Imprisonment ex visceribus causae for I will speak nothing but ad idem be it close or other Imprisonment and this Argument is three-fold because an imprisoned man upon will and pleasure is 1. A Bond-man 2. Worse then a Bond-man 3. Not so much as a man for mortuus homo non est homo a Prisoner is a dead man 1. No man can be imprisoned upon will and pleasure of any but he that is a Bond-man and villain for that Imprisonment and Bondage are Propria quarto modo to villains now Propria quarto modo and the species are convertible Whosoever is a Bond-man may be imprisoned upon will and pleasure and whosoever may be imprisoned upon will and pleasure is a Bondman 2. If free men of England might be imprisoned at the will and pleasure of the King or his commandment then were they in worse case then Bondmen or villains for the Lord of a villain cannot command another to imprison his villain without cause as of disobedience or refusing to serve as it is agreed in the year books And here he said that no man should reprehend any thing that he said out of Books or Records he said he would prove
a free man imprisonable upon command or pleasure without cause expressed to be absolutely in worse case then a villain and if he did not make this plain he desired their Lordships not to believe him in any thing else and then produced two Book Cases 7. Edw. 3. fol. 50. in the new print 348. old print A Prior had commanded one to imprison his villain the Judges were ready to bayl him till the Prior gave his reason that he refused to be Bayliff of his Manour and that satisfied the Judges 2d Case 33. Edw. 3. title Tresp 253. in Faux imprisonment it was of an Abbot who commanded one to take and detain his villain but demanded his cause he gives it because he refused being thereunto required to drive his Cattel Ergo free men imprisoned without cause shewn are in worse case then villains that must have a cause shewn them why they are imprisoned 3. A Free man impisoned without cause is so far from being a Bondman that he is not so much as a man but is indeed a dead man and so no man imprisonment is in Law a civil death perdit domum familiam vicinos patriam and is to live amongst wretched and wicked men Malefactors and the like And that death and imprisonment was the same he proved by an Argument ab effectis because they both produce the like immediate effects he quoted a Book for this If a man be threatned to be killed he may avoid seoffment of Lands gifts of goods c. so it is if he be threatned to be imprisoned the one is an actual the other is a civil death And this is the first general Argument drawn a re ipsa from the nature of imprisonment to which res ipsa consilium dedit The second general Reason he took also from his books for he said he hath no Law but what by great pains and industry he learnt at his book for at ten years of age he had no more Law then other men of like age and this second reason is a minore ad majus he takes it from Bracton Minima poena corporalis est major qualibet pecuniaria But the King himself cannot impose a fine upon any man but it must be done judicially by his Judges per justitiarios in Curia non per regem in Camera and so it hath been resolved by all the Judges of England he quoted 3. R. 2. fo 11. The third general Reason is taken from the number and diversity of remedies which the Laws give against imprisonment Viz. Breve de homine replegiando De odio atia De Habeas Corpus An appeal of Imprisonment Breve de manucaptione The latter two of these are antiquated but the Writ De odio atia is revived for that was given by the Statute of Magna Charta Cha. 26. and therefore though it were repealed by Statute of 42. E. 3. by which it is provided that all Statutes made against Magna Charta are void now the Law would never have given so many remedies if the free men of England might have been imprisoned at free will and pleasure The fourth general Reason is from the extent and universality of the pretended power to imprison for it should extend not onely to the Commons of this Realm and their Posterities but to the Nobles of the Land and their progenies to the Bishops and Clergy of the Realm and their Successors And he gave a cause why the Commons came to their Lordships Commune periculum commune requirit auxilium Nay it reacheth to all persons of what condition or sex or age soever to all Judges and Officers whose attendance is necessary c. without exception and therefore an imprisonment of such an extent without reason is against reason The fifth general Reason is drawn from the indefiniteness of time the pretended power being limited to no time it may be perpetual during life and this is very hard to cast an old man into prison nay to close prison and no time allotted for his coming forth is a hard case as any man would think that had been so used And here he held it an unreasonable thing that a man had a remedy for his Horse or Cattle if detained and none for his body thus indefinitely imprisoned for a Prison without any prefixed time is a kinde of Hell The sixth and last Argument is a Fine and sapiens incipit a Fine and he wisht he had begun there also and this Argument he made three-fold Ab honesto This being less honourable Ab utili This being less profitable A tuto This Imprisonment by will and pleasure being very dangerous for King and Kingdom 1. Ab honesto It would be no honour to a King or Kingdom to be a King of Bond-men or Slaves the end of this would be both Dedecus Damnum both to King and Kingdom that in former times hath been so renowned Ab utili It would be against the profit of the King and Kingdom for the execution of those Laws before remembred Magna Charta 5. Ed. 3. 25. Ed. 3.28 Ed. 3. whereby the King was inhibited to imprison upon pleasure You see quoth he that this was vetus querela an old question and now brought in again after seven Acts of Parliament I say the execution of all these Laws are adjudged in Parliament to be for the common profit of the King and People and he quoted the Roll this pretended power being against the profit of the King can be no part of his Prerogative He was pleased to call this a binding Reason and to say that the wit of man could not answer it that great men kept this Roll from being Printed but that it was equivalent in force to the printed Rolls 3. A Reason a tuto It is dangerous to the King for two respects first of loss secondly of destroying of the endeavors of men First if he be committed without the expression of the cause though he escape albeit in truth it were for treason or felony yet this escape is neither felony nor treason but if the cause be expressed for suspicion of treason or felony then the escape though he be innocent is treason or felony He quoted a Cause in print like a reason of the Law not like Remittitur at the rising of the Court for the Prisoner traditur in ballium quod breve Regis non fuit susficiens causa The Kings Command He quoted another famous Case Commons in Parliament incensed against the Duke of Suffolk desire he should be committed The Lords and all the Judges whereof those great Worthies Prescot and Fortescue were two delivered a flat opinion that he ought not to be committed without an especial Cause He questioned also the name and etymologie of the Writ in question Corpus cum causa Ergo the Cause must be brought before the Judge else how can he take notice hereof Lastly he pressed a place in the Gospel Acts 25. last verse which Festus conceives is an
will overthrow all our Petition it trenches to all parts of it It flies at Loans and at the Oath and at Imprisonment and Billeting of Soldiers this turns all about again Look into all the Petitions of former times they never petitioned wherein there was a saving of the Kings Soveraignty I know that Prerogative is part of the Law but Soveraign Power is no Parliamentary word In my opinion it weakens Magna Charta and all our Statutes for they are absolute without any saving of Soveraign Power and shall we now adde it we shall weaken the Foundation of Law and then the building must needs fall take we heed what we yield unto Magna Charta is such a fellow that he will have no Soveraign I wonder this Soveraign was not in Magna Charta or in the Confirmations of it If we grant this by implication we give a Soveraign Power above all these Laws Power in Law is taken for a Power with force The Sheriff shall take the Power of the County what it means here God onely knows It is repugnant to our Petition that is a Petition of Right grounded on Acts of Parliament our Predecessors could never indure a Salvo jure suo no more then the Kings of old could indure for the Church Salvo honore Dei Ecclesiae We must not admit of it and to qualifie it is impossible Let us hold our Priviledges according to the Law that Power that is above this it is not fit for the King and people to have it disputed further I had rather for my part have the Prerogative acted and I my self to lie under it then to have it disputed IF we do admit of this Addition we shall leave the Subject worse then we found him and we shall have little thanks for our labor when we come home let us leave all power to his Majesty to punish Malefactors but these Laws are not acquainted with Soveraign Power we desire no new thing nor do we offer to trench on his Majesties Prerogative we may not recede from this Petition either in part or in whole TO adde a Saving is not safe doubtful words may beget an ill construction and the words are not onely doubtful words but words unknown to us and never used in any Act or Petition before LEt us not go too hastily to the question said Mr. Selden If there be any Objections let any propound them and let others answer them as they think good If it hath no reference to our Petition what doth it here I am sure all others will say it hath reference and so must we how far it doth exceed all examples of former times no man can shew me the like I have made that search that fully satisfies me and I finde not another besides 28 of Eliz. We have a great many Petitions and Bills of Parliament in all ages in all which we are sure no such thing is added That Clause of the 28 of Edw. 1. it was not in the Petition but in the Kings Answer In Magna Charta there were no such Clauses the Articles themselves are to be seen in a Library at Lambeth in a Book of that time upon which the Law was made There was none in the Articles in King Iohns time for these I have seen there is no Saving In the Statutes of Confirmatio Chartarum is a Saving les auncients Aids that is for file maryer pur faire fitz Chivalier and for ransom and in the Articles of King Iohn in the Original Charter which I can shew there those three Aids were named therein and they were all known In the 25. of Edw. 3. there is a Petition against Loans there is no Saving and so in others As for that Addition in the 28. of Edw. 1. do but observe the Petitions after Magna Charta as 5 Edw. 3. they put up a Petition whereas in Magna Charta it is contained That none be imprisoned but by due process of Law those words are not in Magna Charta and yet there is no Saving and so in the 28. of Edw. 3. 36. 37. 42. of Edw. 3. all which pass by Petition and yet there is no Saving in them And there are in them other words then are in Magna Charta and yet no Saving For that that Mr. Speaker said The King was our heart and ever shall be but we then speak of the Kings Prerogative by it self and we are bound to say so But speaking of our Rights shall we say we are not to be imprisoned Saving by the Kings Soveraign Power Say my Lands without any Title be seised in the Kings hand and I bring a Petition of Right and I go to the King and say I do by no means seek your Majesties Right and Title and after that I bring a Petition or Monstrance de droit setting forth my own Right and Title and withal set down a Saving that I leave intire his Majesties Right it would be improper It was objected That in the 28. of Edw. 1. in the end of Articuli super Chartas which was a confirmation of Magna Charta and Charta de foresta in the end there is a Clause Savant le droit Segniory the words are extant in that Roll that is now extant but the original Roll is not extant In the 25th E. 3. there was a confirmation of the Charter in 27 E. 3. The Parliament was called and much stir there was about the Charter and renewing the Articles but then little was done In 28 E. 1. the Commons by Petition or Bill did obtain the Liberties and Articles at the end of the Parliament they were extracted out of the Roll and Proclaimed abroad the addition was added in the Proclamation in the Bill there was no savant but afterwards it was put in And to prove this it is true there is no Parliament Roll of that year yet we have Histories of that time In the Library at Oxford there is a Journal of a Parliament of that very year which mentions so much also in the publique Library at Cambridge there is a Manuscript that belonged to an Abby it was of the same year 28 E. 1. and it mentions the Parliament and the Petitions and Articulos quos petierunt sic confirmaverit Rex ut in fine adderet Salvo jure Coronae regis and they came by Proclamation in London when the people heard this clause added in the end they fell into execration for that addition and the great Earls that went away satisfied from the Parliament hearing of this went to the King and after it was cleared at the next Parliament Now there is no Parliament Roll of this of that time onely in one Roll in the end of E. 3. there is a Roll that recites it The Lords afterwards at a Conference tendred Reasons to fortifie their addition which were briefly reported That the Lord Keeper said THat the Lords were all agreed to defend and maintain the just
dangerous as I hope to make most evident however coming from your Lordships the House of Commons took it into their considerations as became them and apprehending upon the first Debate that it threatned ruine to the whole Petition they did heretofore deliver some Reasons to your Lordships for which they then desired to be spared from admitting it To these Reasons your Lordships offered some Answers at the last meeting which having been faithfully reported to our House and there debated as was requisite for a business of such weight and importance I must say truly to your Lordships yet with due reverence to your opinions the Commons are not satisfied with your Arguments and therefore they have commanded me to recollect your Lordships Reasons for this Clause and in a fair Reply to let you see the causes why they differ from you in opinion But before I come to handle the particulars wherein we dissent from your Lordships I will in the first place take notice yet a little further of that general wherein we all concur which is That we desire not neither do your Lordships to augment or dilate the Liberties and Priviledges of the Subjects beyond the just and due Bounds nor to incroach upon the Limits of his Majesties Prerogative Royal and as in this your Lordships at the last meeting expressed clearly your own senses so were your Lordships not mistaken in collecting the concurrent sense and meaning of the House of Commons they often have protested they do and ever must protest that these have been and shall be the Bounds of their desires to demand and seek nothing but that which may be fit for dutiful and loyal Subjects to ask and for a gracious and just King to grant for as they claim by Laws some Liberties for themselves so do they acknowledge a Prerogative a high and just Prerogative belonging to the King which they intend not to diminish And now my Lords being assured not by strained inferences or obscure collections but by the express and clear Declarations of both Houses that our ends are the same it were a miserable unhappiness if we should fail in finding out the means to accomplish our desires My Lords the Heads of those particular Reasons which you insisted upon the last day where onely these 1. First you told us that the word Leave was of such nature that it could give no new thing to his Majesty 2. That no just exception could be taken to the words Soveraign Power for that as his Majesty is a King so he is a Soveraign and as he is a Soveraign so he hath Power 3. That the Soveraign Power mentioned in this Clause is not absolute or indefinite but limited and regulated by the particle That and the word Subsequent which restrains it to be applied onely for Protection Safety and Happiness of the People whereby ye inferred there could be no danger in the allowance of such power 4. That this Clause contained no more in substance but the like expressions of our meanings in this Petition which we had formerly signified unto his Majesty by the mouth of Mr. Speaker that we no way intended to incroach upon his Majesties Soveraign Power or Prerogative 5. That in our Petition we have used other words and of larger extent touching our Liberties then are contained in the Statutes whereon it is grounded In respect of which inlargement it was fit to have some express or implied Saving or Narrative Declaratory for the Kings Soveraign Power of which Narrative ye alledge this Clause to be 6. Lastly whereas the Commons as a main Argument against the Clause had much insisted upon this that is was unprecedented and unparliamentary in a Petition from the Subjects to insert a Saving for the Crown your Lordships brought for instance to the contrary the two Statutes of the 25 E. 1. commonly called Confirmatio Chartarum and 28 E. 1. known by this name of Articuli super Chartas in both which Statutes there are Saving for the Kings Having thus reduced to your Lordships memories the effects of your own reasons I will now with your Lordships favor come to the points of our Reply wherein I most humbly beseech your Lordships to weigh the Reasons which I shall present not as the sense of my self the weakest Member of our House but as the genuine and true sense of the whole House of Commons conceived in a business there debated with the greatest gravity and solemnity with the greatest concurrence of opinions and unanimity that ever was in any business maturely agitated in that House I shall not peradventure follow the Method of your Lordships recollected Reasons in my answering to them nor labor to urge many reasons It is the desire of the Commons that the weight of their Arguments should recompense if need be the smalness of their number And in conclusion when you have heard me through I hope your Lordships shall be enabled to collect clearly out of the frame of what I shall deliver that in some part or other of my discourse there is a full and satisfactory answer given to every particular reason or objection of your Lordships The Reasons that are now appointed to be presented to your Lordships are of two kinds Legal and Rational of which these of the former sort are allotted to my charge and the first of them is thus The Clause now under question if it be added to the Petition then either it must refer or relate unto it or else not if it have no such reference is it not clear that it is needless and superfluous and if it have such reference is it not clear that then it must needs have an operation upon the whole Petition and upon all the parts of it We cannot think that your Lordships would offer us a vain thing and therefore taking it for granted that if it be added it would refer to the Petition let me beseech your Lordships to observe with me and with the House of Commons what alteration and qualification of the same it will introduce The Petition of it self simply and without this Clause declareth absolutely the Rights and Priviledges of the Subject in divers points and amongst the rest touching the Levies of monies by way of Loans or otherwise for his Majesties supply That such Loans and other charges of the like nature by the Laws and Statutes of this Land ought not to be made or laid without common consent by Act of Parliament But admit this Clause to be annexed with reference to the Petition and it must necessarily conclude and have this Exposition That Loans and the like Charges true it is ordinarily are against the Laws and Statutes of the Realm unless they be warranted by Soveraign Power and that they cannot be commanded or raised without assent of Parliament unless it be by Soveraign Power what were this but to admit a Soveraign Power in the King above the Laws and Statutes of the Kingdome Another part of this Petition is
may be for the most part applied to this Statute as well as to the former I adde these further Answers The first of these two Savings is of the same prisage of Wines which is excepted in the 25 Edw. 1. but in some more clearness for that here the word Wines is expresly annexed to the word Prices which I take for so much to be in Exposition of the former Law And albeit these words and of other goods be added yet do I take it to be but a particular Saving or exception which being qualified with the words Ancient due and accustomed is not very dangerous nor can be understood of Prices or Levies upon Goods of all sorts at the Kings will and pleasure but onely of the old and certain Customs upon Wool Woolfels and Leather which were due to the Crown long before the making of this Statute For the latter of the two Savings in this Act which is of the more unusual nature and subject to the more exception it is indeed general and if we may believe the concurrent Relations of the Histories of those times as well as those that are now Printed as those which remain onely in Manuscripts it gave distaste from the beginning and wrought no good effect but produced such distempers and troubles in the State as we wish may be buried in perpetual oblivion and that the like Saving in these and future times may never breed the like disturbance For from hence arose a Jealousie That Magna Charta which declared the ancient Right of the Subject and was an absolute Law in it self being now confirmed by a latter Act with this Addition of a general Saving for the Kings Right in all things by the Saving was weakned and that made doubtful which was clear before But not to depart from our main ground which is that Savings in old Acts of Parliament before 2 H. 5. are no proof that there were the like Savings in the Petitions for those Acts let me observe unto your Lordships and so leave this point That albeit this Petition whereon this Act of 28 Edw. 1. was grounded be perished yet hath it pleased God that the very Frame and Context of the Act it self as it is drawn up and entred upon the Statute Roll and Printed in our Books doth manifestly impart that this Saving came in by the Kings Answer and was not in the Original Petition of the Lords and Commons for it cometh in at the end of the Act after the words le Roy vent which commonly are the words of the Royal assent to an Act of Parliament And though they be mixed and followed with other words as though the Kings Councel and the rest who were present at the making of this Ordinance did intend the same Saving yet is not that Conclusive so long as by the form of those times the Kings Answer working upon the materials of the Petition might be conceived by some to make the Law effectual though varying from the frame of the Petition The next Reason which the Commons have commanded me to use for which they still desire to be spared from adding this Clause to their Petition is this this offensive Law of 28 E. 1. which confirmed Magna Charta with a Saving rested not long in peace for it gave not that satisfaction to the Lords or people as was requisite they should have in a case so nearly concerning them and therefore about thirty three or thirty four of the same Kings Reign a later Act of Parliament was made whereby it was Enacted That all men should have their Laws and Liberties and free Customs as largely and wholly as they had used to have at any time when they had them best and if any Statutes had been made or any Customs brought in to the contrary that all such Statutes and Customs should be void This was the first Law which I call now to minde that restored Magna Charta to the original purity wherein it was first moulded albeit it hath been since confirmed above twenty times more by several Acts of Parliament in the Reigns of divers most just and gracious Kings who were most apprehensive of their Rights and jealous of their Honors and always without Savings so as if between 28 and 34 E. 1. Magna Charta stood blemished with many Savings of the Kings Rights or Seigniory which might be conceived to be above the Law that stain and blemish was long since taken away and cleared by those many absolute Declarations and Confirmations of that excellent Law which followed in after ages and so it standeth at this day purged and exempted now from any such Saving whatsoever I beseech your Lordships therefore to observe the circumstance of time wherein we offer this Petition to be presented to your Lordships and by us unto his Majesty Do we offer it when Magna Charta stands clogged with Saving No my Lords but at this day when later and better confirmations have vindicated and set free that Law from all exceptions and shall we now annex another and worse Saving to it by an unnecessary Clause in that Petition which we expect should have the fruits and effects of a Law Shall we our selves relinquish or adulterate that which cost our Ancestors such care and labour to purchase and refine No my Lords but as we should hold our selves unhappy if we should not amend the wretched estate of the poor Subject so let us hold it a wickedness to impair it Whereas it was further urged by your Lordships That to insert this Clause into our Petition would be no more then to do that again at your Lordships motion and request which we had formerly done by the mouth of our Speaker and that there is no cause why we should recede from that which so solemnly we have professed To this I answer and confess it was then in our hearts and so it is now and shall be ever not to incroach on his Majesties Soveraign Power But I beseech your Lordships to observe the different occasion and reference of that Protestation and of this Clause That was a generalâ—â—nswer to a general Message which we received from his Majesty warning us not to incroach upon his Prerogative to which like dutiful and loving Subjects we answered at full according to the integrity of our own hearts nor was there any danger in making such an Answer to such a Message nor could we answer more truly or more properly But did that Answer extend to acknowledge a Soveraign Power in the King above the Laws and Statutes mentioned in our Petition or controll the Liberties of the Subject therein declared and demanded No my Lords it hath no reference to any such particulars and the same words which in some cases may be fit to be used and were unmannerly to be omitted cannot in other cases be spoken but with impertinency at the least if not with danger I have formerly opened my Reasons proving the danger of this Clause and am
it is declared and enacted That no man shall be forejudged of life or limb against the form of the great Charter and the Law of the Land And by the said great Charter and other the Laws and Statutes of this your Realm no man ought to be adjudged to death but by the Laws established in this your Realm either by the Customs of the same Realm or by Acts of Parliament And whereas no offender of what kinde soever is exempted from the proceedings to be used and punishments to be inflicted by the Laws and Statutes of this your Realm Nevertheless of late divers Commissions under your Majesties great Seal have issued forth by which certain persons have been assigned and appointed Commissioners with Power and Authority to proceed within the Land according to the Iustice of Martial Law against such Soldiers and Mariners or other dissolute persons joyning with them as should commit any Murther Robbery Felony Mutiny or other Outrage or Misdemeanor whatsoever and by such summary Course and Order as is agreeable to Martial Law and is used in Armies in time of War to proceed to the tryal and condemnation of such offenders and them to cause to be executed and put to death according to the Law Martial By pretext whereof some of your Majesties Subjects have been by some of the said Commissioners put to death when and where if by the Laws and Statutes of the Land they had deserved death by the same Laws and Statutes also they might and by no other ought to have been adjudged and executed And also sundry grievous offenders by colour thereof claiming an exemption have escaped the punishments due to them by the Laws and Statutes of this your Realm by reason that divers of your Officers and Ministers of Iustice have unjustly refused or forborn to proceed against such offenders according to the same Laws and Statutes upon pretence that the said offenders were punishable onely by Martial Law and by Authority of such Commissions as aforesaid which Commissions and all other of like nature are wholly and directly contrary to the said Laws and Statutes of this your Realm They do therefore humbly pray your most Excellent Majesty That no man hereafter be compelled to make or yield any Gift Loan Benevolence Tax or such like Charge without common consent by Act of Parliament and that none be called to make answer or take such Oath or to give attendance or he confined or otherwise molested or disquieted concerning the same or for refusal thereof And that no Freeman in any such maner as is before mentioned be imprisoned or detained And that your Majesty will be pleased to remove the said Soldiers and Mariners and that your People may not be so burthened in time to come And that the foresaid Commissions for proceeding by Martial Law may be revoked and annulled and that hereafter no Commissions of like nature may issue forth to any person or persons whatsoever to be executed as aforesaid lest by colour of them any of your Majesties Subjects be destroyed or put to death contrary to the Laws and Franchise of the Land All which they most humbly pray of your most Excellent Majesty as their Rights and Liberties according to the Laws and Statutes of this Realm And that your Majesty would also vouchsafe to declare That the awards doings and proceedings to the prejudice of your People in any of the Premises shall not be drawn hereafter into Consequence or Example And that your Majesty would be also graciously pleased for the further comfort and safety of your People to declare your royal Will and Pleasure That in the things aforesaid all your Officers and Ministers shall serve you according to the Laws and Statutes of this Realm as they tender the Honor of your Majesty and the prosperity of this Kingdom Which Petition being read the 2 of June 2628. The Kings Answer was thus delivered unto it The King willeth that Right be done according to the Laws and Customs of the Realm And that the Statutes be put in due execution that his Subjects may have no cause to complain of any wrong or oppressions contrary to their just Rights and Liberties to the preservation whereof he holds himself in Conscience as well obliged as of his Prerogative On Tuesday June 3. the King's Answer was read in the House of Commons and seemed too scant in regard of so much expence of time and labour as had been imployed in contriving the petition Whereupon Sir Iohn Elliot stood up and made a long Speech wherein he gave forth so full and lively representation of all Grievances both general and particular as if they had never before been mentioned HE reduced the Cause of all our evils to Five heads Our insincerity and doubling in Religion which he exemplified by the freedome and increase of Papists by the composition with them in the North the slightness of those payments and the easiness in them by the hopes presumptions and reports of all the Papists generally by the disposition of Commanders the trust of Officers the confidence of secrecies of employments in this Kingdom in Ireland and elsewhere 2. Our want of Councel which sacrificed our honour and our men sent to the Palatinate stopping those greater supplies appointed for that Service by which it might have been made defensible this gave direction to that late expedition to Ree whose wounds are yet bleeding by means whereof the Protestants of France and their King by a necessary consequence are divided and that Countrey so prepared against us that we have nothing to promise our neighbours hardly for our selves insomuch as by the issue and success it may rather be thought a conception of Spain then begotten here by us 3. The insufficiency and unfaithfulness of our Generals Witness first the expedition to Cales where we arrived and found a Conquest ready viz. the Spanish ships fit for the satisfaction of a voyageâ— either in point of honour or in point of profit why was it neglected why was it not atchieved it being granted on all hands feasible when the whole Army landed why was there nothing attempted if nothing were intended wherefore did they land if there were a service why were they shipt again Witness secondly that to Ree where the whole action was carried against the judgement and opinion of the Officers viz. those that were of the Councel was not the first was not the last was not all at land in the intrenching in the continuance there in the assault in the retreat without their assent to say nothing of leaving the Wines and the Salt which were in our possession and of a value as they say to answer much of our expence nor of that wonder which no Alexander or Caesar ever did know the enriching of an enemy by curtesies when the Souldiers want help nor of the private entercourses and parlies with the Fort which continually were held what they intended may be
Bill shew and declare against Roger Manwaring Clerk Dr. in Divinity That whereas by the Laws and Statutes of this Realm the free Subiects of England do undoubtedly inherit this Right and Liberty not to be compelled to contribute any Tax Tollage Aid or to make any Loans not set or imposed by common consent by Act of Parliament And divers of his Majesties loving Subjects relying upon the said Laws and Customes did in all humility refuse to lend such sums of Moneys without Authority of Parliament as were lately required of them Nevertheless he the said Roger Manwaring in contempt and contrarâ— to the Laws of this Realm hath lately preached in his Majesties presence two several Sermons That is to say the fourth day of July last one of the said Sermons and upon the 29. day of the same Moneth the other of the said Sermons both which Sermons he hath since published in print in a Book intituled Religion and Allegiance and with a wicked and malitious intention to seduce and misguide the Conscience of the Kings most excellent Majesty touching the observation of the Laws and Customes of this Kingdom and of the Rights and Liberties of the Subjects to incense his Royal displeasure against his good Subjects so refusing to scandalize subvert and impeach the good Laws and Government of this Realm and the Authority of the High Court of Parliament to alienate his Royal heart from his People and to cause jealousies sedition and division in the Kingdom He the said Roger Manwaring doth in the said Sermons and Book perswade the Kings most excellent Majesty First that his Majesty is not bound to keep and observe the good Laws and Customes of this Realm concerning the Rights and Liberties of the Subjects aforementioned And that his Royal Will and Command in imposing Loans Taxes and other Aids upon his people without common consent in Parliament doth so far binde the Consciences of the Subjects of this Kingdom that they cannot refuse the same without peril of eternal damnation Secondly that those of his Majesties loving Subjects which refused the Loan aforementioned in such manner as is before recited did therein offend against the Law of God against his Majesties Supreme Authority and by so doing became guilty of Impiety Dissoialty Rebellion and Disobedience and liable to many other Taxes and Censures which he in the several parts of his Book doth most falsly and malitiously lay upon them Thirdly that authority of Parliaments is not necessary for the raising of Aids and Subsidies that the slow proceedings of such Assemblies are not fit for the supply of the urgent necessities of the State but rather apt to produce sundry impediments to the just designs of Princes and to give them occasion of displeasure and discontent All which the Commons are ready to prove not only by the general scope of the same Sermons and Book but likewise by several Clauses Assertions and Sentences therein contained and that he the said Roger Manwaring by preaching and publishing the Sermons and Book aforementioned did most unlawfully abuse his holy function instituted by God in his Church for the guiding of the Consciences of all his Servants and chiefly of Soveraign Princes and Magistrates and for the maintenance of the peace and concord betwixt all men especially betwixt the King and his People and hath thereby most grievously offended against the Crown and Dignity of his Majesty and against the Prosperity and good Government of this State and Common-wealth And the said Commons by protestation saving to themselves the Liberty of exhibiting at any time hereafter any other occasion or impeachment against the said Roger Manwaring and also of replying to the answers which he the said Roger shall make unto any of the matters contained in this present Bill of Complaint and of offering further proof of the premises or of any of them as the Cause according to the Course of Parliament shall require do pray that the said Roger Manwaring may be put to answer to all and every the premises and that such proceeding examination trial judgement and exemplary punishment may be thereupon had and executed as is agreeable to Law and Iustice. This Declaration ingrossed in Parliament being read Mr. Pym addressed himself to the Lords in this manner THat he should speak to this Cause with more confidence because he saw nothing out of himself that might discourage him If he considered the matter the Offences were of an high nature of easie proof if he considered their Lordships who were the Judges of their own interest their own honour the example of their Ancestors the care of their Posterity would all be Advocates with him in this Cause on the behalf of the Commonwealth if he considered the King our Soveraign the pretence of whose Service and Prerogative might perchance be sought unto as a Defence and Shelter for this Delinquent he could not but remember that part of his Majesties Answer to the Petition of Right of both Houses that he held himself bound in conscience to preserve those Liberties which this man would perswade him to impeach He said further that he could not but remember his Majesties love to Piety and Justice manifested upon all occasions and he knew love to be the root and spring of all other passions and affections A man therefore hates because he sees somewhat in that which he hates contrary to that which he loves a man therefore is angry because he sees somewhat in that wherewith 〈◊〉 â—ngry that gives impediment and interruption to the accomplishment of that which he loves If this be so by the same act of his Apprehension by which he believes his Majesties love to Piety and Justice he must needs believe his hate and detestation of this man who went about to withdraw him from the exercise of both Then he proceeded to that which he said was the Task enjoyned him to make good every Clause of that which had been read unto them which that he might the more clearly perform he prepounded to observe that order of parts unto which the said Declaration was naturally dissolved 1. Of the Preamble 2. The Body of the Charge 3. The Conclusion or Prayer of the Commons The preamble consisted altogether of recital first of the Inducements upon which the Commons undertook this complaint The second of those Laws and Liberties against which the offence was committed The third of the violation of those Laws which have relation to that offence From the connexion of all those recitals he said there did result three Positions which he was to maintain as the ground-work and foundation of the whole Cause The first that the form of Government in any State could not be altered without apparent danger of ruine to that State The second the Law of England whereby the Subjects was exempted from Taxes and Loans not granted by common consent of Parliament was not introduced by any Statute or by any Charter or Sanction of Princes but was
the Antient and Fundamental Law issuing from the first frame and constitution of the Kingdom The third that this Liberty of the Subject is not onely most convenient and profitable for the People but most honourable most necessary for the King yea in that point of supply for which it was endeavored to be broken The form of Government is that which doth actuate and dispose every part and member of a State to the common good and as those parts give strength and ornament to the whole so they receive from it again strength and protection in their several stations and degrees If this mutual relation and intercourse be broken the whole frame will quickly be dissolved and fall in pieces and in stead of this concord and interchange of support whilest one part seeks to uphold the old form of Government and the other part to introduce a new they will miserably consume and devour one another Histories are full of the calamities of whole States and Nations in such cases It is true that time must needs bring some alterations and every alteration is a step and degree towards a dissolution those things onely are eternal which are constant and uniform Therefore it is observed by the best Writers upon this Subject that those Commonwealths have been most durable and perpetual which have often reformed and recomposed themselves according to their first Institution and Ordinance for by this means they repair the breaches and counterwork the ordinary and natural effect of time The second question is as manifest there are plain footsteps of those Laws in â—he Government of the Saxons they were of that vigor and force as to overlive the Conquest nay to give bounds and limits to the Conqueror whose victory gave him first hope but the assurance and possession of the Crown he obtained by composition in which he bound himself to observe these and the other antient Laws and Liberties of the Kingdom which afterwards he likewise confirmed by oath at his Coronation from him the said Obligation descended to his Successors It is true they have been often broken they have been often confirmed by Charters of Kings by Acts of Parliaments but the Petitions of the Subjects upon which those Charters and Acts were founded were ever Petitions of Right demanding their antient and due Liberties not suing for any new To clear the third Position he said may seem to some men more a Paradox That those Liberties of the Subject should be so honorable so profitable for the King and most necessary for the supply of his Majesty It hath been upon another occasion declared that if those Liberties were taken away there should remain no more industry no more justice no more courage who will contend who will endanger himself for that which is not his own But he said he would not insist upon any of those points nor yet upon other very important he said that if those Liberties were taken away there would remain no means for the Subjects by any act of Bounty or Benevolence to ingratiate themselves to their Soveragn And he desired their Lordships to remember what profitable Prerogatives the Laws had appointed for the support of Soveraignty as Wardships Treasures trove Felons-goods Fines Amercements and other Issues of Courts Wrecks Escheats and many more too long to be enumerated which for the most part are now by Charters and Grants of several Princes dispersed into the hands of private Persons and that besides the antient Demeasnes of the Crown of England William the Conqueror did annex for the better maintenance of his Estate great proportions of those Lands which were confiscate from those English which persisted to withstand him and of these very few remain at this day in the Kings possession And that since that time the revenue of the Crown had been supplied and augmented by Attainders and other Casualties in the age of our Fathers by the dissolution of Monasteries and Chantries neer a third part of the whole Land being come into the Kings possession He remembred further that constant and profitable Grant of the Subjects in the Act of Tonnage and Poundage And all these he said were so alienated anticipated overcharged with annuities and assignments that no means were left for the pressing and important occasions of this time but the voluntary and free gift of the Subjects in Parliament The hearts of the People and their bounty in Parliament is the onely constant Treasure and Revenue of the Crown which cannot be exhausted alienated anticipated or otherwise charged and incumbred In his entrance into the second part he propounded these Steps by which he meant to proceed 1. To shew the state of the Cause as it stood both in the Charge and in the Proof that so their Lordships might the better compare them both together 2. To take away the pretences of mitigations and limitations of his Opinions which the Doctor had provided for his own defence 3. To observe those circumstances of Aggravation which might properly be annexed to his Charge 4. To propound some Precedents of former times wherein though he could not match the offence now in question for he thought the like before had never been committed yet he should produce such as should sufficiently declare how forward our Ancestors would have been in the prosecution and condemning of such offences if they had been then committed The Offence was prescribed in a double maner First by the general scope and intention and by the matter and particulars of the Fact whereby that intention was expressed In the description of the intention he observed six Points every one of which was a Character of extreme malice and wickedness 1. His attempt to misguide and seduce the Conscience of the King 2. To incense his Royal Displeasure against his Subjects 3. To scandalize impeach and subvert the good Laws and Government of the Kingdom and Authority of Parliaments 4. To avert his Majesties minde from calling of Parliaments 5. To alienate his royal Heart from his People 6. To cause Jealousies Sedition and Division in the Kingdom Of these particulars he said he would forbear to speak further till he should come to those parts of the Fact to which they were most properly to be applied The Materials of the Charge were contrived into three distinct Articles the first of these comprehended two Clauses 1. That his Majesty is not bound to keep and observe the good Laws and Customs of the Realm concerning the right and liberty of the Subject to be exempted from all Loans Taxes and other Aids laid upon them without common consent in Parliament 2. That his Majesties Will and Command in imposing any Charges upon his Subjects without such consent doth so far bind them in their Consciences that they cannot refuse the same without peril of eternal damnation Two kinds of Proof were produced upon this Article The first was from some assertions of the Doctors concerning the power of Kings in general but by necessary consequence
to be applied to the King of England The next kinde of Proof was from his Censures and determinations upon the particular Case of the late Loan which by necessity and parity of reason were likewise applicable to all Cases of the like nature And lest by frailty of memory he might mistake the words or invert the sense he desired leave to resort to his Paper wherein the places were carefully extracted out of the Book it self And then he read each particular Clause by it self pointing to the Page for proof which we here forbear to mention referring the Reader to the Book it self Then he proceeded and said That from this evidence of the Fact doth issue a clear evidence of his wicked intention to misguide and seduce the Kings Conscience touching the observation of the Laws and Liberties of the Kingdom to scandalize and impeach the good Laws and Government of the Realm and the Authority of Parliaments which are two of those Characters of malice which he formerly noted and now inforced thus If to give the King ill Counsel in some one particular Action hath heretofore been heavily punished in this high Court how much more hainous must it needs be thought by ill Counsel to pervert and seduce his Majesties Conscience which is the soveraign Principle of all moral Actions from which they are to receive warrant for their direction before they be acted and Judgement for their reformation afterwards If Scandalum magnatum Slander and Infamy cast upon great Lords and Officers of the Kingdom have been always most severely censured how much more tender ought we to be of that Slander and Infamy which is here cast upon the Laws and Government from whence is derived all the Honor and Reverence which is due to those great Lords and Magistrates All men and so the greatest and highest Magistrates are subject to passions and partialities whereby they may be transported into overhard injurious Courses Which Considerations may sometimes excuse though never justifie the railing and evil speeches of men who have been so provoked it being a true rule That whatsoever gives strength and inforcement to the temptation in any sin doth necessarily imply an abatement and diminution of guilt in that sin But to slander and disgrace the Laws and Government is without possibility of any such excuse it being a simple act of a malignant Will not induced nor excited by any outward provocation the Laws carrying an equal and constant respect to all ought to be reverenced equally by all And thus he derived the Proofs and Inforcements upon the first Article of the Charge The second Article he said contained three Clauses 1. That these refusers had offended against the Law of God 2. Against the supreme Authority 3. By so doing were become guilty of Impiety Disloyalty Rebellion Disobedience and lyable to many other Taxes For proof of all these he said he needed no other evidence then what might be easily drawn from those places which he had read already for what impiety can be greater then to contemn the Law of God and to prefer humane Laws before it what greater disloyalty rebellion and disobedience then to depress supreme Authority to tye the hands and clip the wings of Soveraign Princes Yet he desired their Lordships patience in hearing some few other places wherein the Stains and Taint which the Doctor endeavored to lay upon the Refusers might appear by the odiousness of their comparisons in which he doth labor to rank them The first Comparison is with Popish Recusants yet he makes them the worst of the two and for the better resemblance gives them a new name of Temporal Recusants For this he alledgeth the 1. Sermon Page 31 32. and part of the fifth Consideration by which he would perswade them to yield to this Loan Fifthly If they would consider what advantage this their Recusancy in Temporals gives to the common adversary who for disobedience in Spirituals have hitherto alone inherited that name for that which we our selves condemn in them for so doing and profess to hate that Religion which teacheth them so to do that is to refuse subjection unto Princes in Spirituals the same if not worse some of our side now if ours they be dare to practise We must needs be argued of less Conscience and more Ingratitude both to God and the King if in Temporal things we obey not They in Spirituals deny subjection wherein they may perhaps frame unto themselves some reasons of probability that their offence is not so hainous if we in Temporals shall be so refractory what colour of reason can we possibly finde to make our defence withal without the utter shaming of our selves and laying a stain which cannot easily be washed out upon that Religion which his Majesty doth so graciously maintain and our selves profess The second Comparison is with Turks and Jews in the 2. Sermon Page 47. What a Paradox is c. What a Turk will do for a Christian and a Christian for a Turk and a Jew for both c. the same and much less Christian men should deny to a Christian King The third Comparison is with Corah Dathan and Abiram Theudas and Iudas which is taken out of the second Sermon Page 49. where he labors to deprive those refusers of all merit in their sufferings for this Cause Corah Dothan and Abiram whom for their murmurings God suddenly sunk into Hell fire might as well alledge their sufferings had some resemblance with that of the three Children in the Babylonian Furnace and Theudas and Iudas the two Incendiaries of the people in the days of Caesars tribute might as well pretend their Cause to be like the Maccabees Thus he ended the second Article of the Charge upon which he said were imprinted other two of these six Characters of malice formerly vented That is a wicked intention to increase his Majesties displeasure against his good Subjects so refusing and to alienate his heart from the rest of his People Both which were Points so odious that he needed not to adde any further inforcement or illustration The third Article conteined three Clauses 1. That Authority of Parliament is not necessary for the raising of Aids and Subsidies 2. That the slow proceedings of such Assemblies are not fit to supply the urgent necessity of the State 3. That Parliaments are apt to produce sundry Impediments to the just designs of Princes and to give them occasion of displeasure and discontent For proof of all which he alledged two places conteining the two first of those six Considerations which are propounded by the Doctor to induce the refusers to yield to the Loan in the first Sermon Page 26 27. First if they would please to consider that though such Assemblies as are the highest and greatest Representations of a Kingdom be most Sacred and Honorable and Necessary also to those ends to which they were at first instituted yet know we must that ordained they were not to this end to
agreed in one that he ought not by the Law to be tortured by the Rack for no such punishment is known or allowed by our Law And this in case of Treason was brought into this Kingdom in the time of Henry 6. note Fortescue for this Point in his Book de laudibus legum Angliae see the preamble of the Act 28. H. 8. for the Trial of Fellony where Treasons are done upon the Sea and Statute 14. Edw. 3. Ch. 9. of Jaylours or Keepers who by duresse make the prisoners to be approvers Since the last Session of Parliament certain Merchant who traded in Wines had been committed to the Fleet for the non-payment of an Imposition of 20. s. the Tun and were now at liberty upon their entring into bond for the payment of that Imposition Moreover the King in full Councel declared his absolute will and pleasure to have the entry of 2. s. 2. d. the hundred upon all Currens to be satisfied equally with that of 3. s. 4. d. before the landing of that Commodity it being a duty laid by Queen Elizabeth who first gave being to the Levant Company and which had been paid both in his Fathers time and his own and that their Majesties were equally possessed of the whole summe of 5. s. 6. d. the hundred by a solemn and Legal Judgement in the Exchequer and he straightly charged his Councel to examine the great abuse in this point and to make a full reparation to his Honour by inflicting punishment as well upon Officers as Merchants that for the future they may beware of committing such contempts And Divers Merchants of London having forcibly Landed and endeavoured to carry away their Goods and Merchandises from the Custom-house Key without payment of duties were summoned to the Councel-table And the Councel was informed against them that they had caused great and unlawful assemblies of people to be gathered together to the breach of the Kings Peace and Mr. Chambers was committed to prison by the Lords of the Councel for some words spoken at that time Michaelmas 4. Car. Richard Chambers being in Prison in the Marshalsie Del hostel de Roy desired an Habeas Corpus and had it which being returable upon the 16. day of October the Marshall returned that he was committed to prison the 28. day of Septemb. last by command of the Lords of the Councel The Warrant verbatim was That he was committed for insolent behaviour and words spoken at the Councel-Table which was subscribed by the Lord Keeper and twelve others of the Councel The words were as information was given though not expressed in the Return That such great Customes and Impositions were required from the Merchants in England as were in no other place and that they were more screwed up then under the Turk And because it was not mentioned what the words were so as the Court might adjudge of them the Return was held insufficient and the Warden of the Prison advised to amend his Return and he was by Rule of the Court appointed to bring his prisoner by such a day without a new Habeas Corpus and the Prisoner was advised by the Court That in the mean time he should submit to the Lords and Petition them for his enlargement The Warden of the Prison bringing the Prisoner in again in Court the 23. day of October Then Mr. Iermin for the Prisoner moved That forasmuch as it appeared by the Return that he was not committed for Treason or Felony nor doth it appear what the words were whereto he might give answer he therefore prayed he might be dismissed or bailed But the Kings Attourney moved That he might have day untill the 25. of October to consider of the Return and be enformed of the words and that in the interim the Prisoner might attend the Councel-Table and Petition But the Prisoner affirmed that he oftentimes had assayed by Petition and could not prevail although he had not done it since the beginning of October and he prayed the Justice of the Law and the inheritance of a Subject Whereupon at his importunity the Court commanded him to be bailed and he was bound in a Recognizance of four hundred pounds and four good Merchants his Sureties were bound in Recognizance of one hundred pound a piece that he should appear here in Crastino animarum and in the interim should be of the good behaviour And advertized him they might for contemptuous words cause an Indictment or Information in this Court to be drawn against him if they would The Lords of the Councel were much dissatisfied with the Bailing of Chambers Whereupon the Judges were â—ent for to the Lord Keeper at Durham House where were present besides the Lord-Keeper the Lord Treasurer Lord Privy Seal and the Chancellor of the Dutchy And the Lord Keeper then declared unto them that the said enlargement of Chambers was without due regard had to the Privy Councel in not first acquainting them therewith To this the Judges answered that to keep a fair correspondency with their Lordships they had by the Lord Chief-Justice acquainted the Lord Keeper in private therewith before they baild the party And that what they had done as to the bailing of the prisoner was according to Law and Justice and the conscience of the Judges To this it was replied that it was necessary for the preservation of the State that the power and dignity of the Councel Table should be preserved and that it could not be done without correspondency from the Courts of Justice so they parted in very fair tearms On Thursday the 27. of November Felton was removed from the Tower to the Gate-house in order to his tryal and was the same day brought by the Sheriffs of London to the Kings-bench Bar and the indictment being read he was demanded whether he were guilty of the murder therein mentioned he answered he was guilty in killing the Duke of Buc. and further said that he did deserve death for the same though he did not do it out of malice to him So the Court passed sentence of death upon him whereupon he offered that hand to be cut off that did the fact but the Court could not upon his own offer inflict that further punishment upon him neverthelesse the King sent to the Judges to intimate his desire that his hand might be cut off before execution but the Court answered that it could not be for in all murthers the Judgement was the same unlesse when the Statute of 25. E. 3. did alter the nature of the offence and upon a several indictment as it was in Queen Elizabeths time when a Felon at the Bar flung a stone at a Judge upon the Bench for which he was indicted and his sentence was to have his hand cut off which was accordingly done and they also proceeded against him upon the other indictment for Felony for which he was found guilty and afterwards hanged and Felton was afterwards hung up
the Land had little effect in their execution to the increase of Murders Robberies Perjuries and Insecurities of all men living to the loss of their Lands and Goods to the great displeasure of Almighty GOD It was ordained for Reformation of the Premises by Authority of the said Parliament That the Chancellour and Treasurer of England for the time being and the Keeper of the Privy-Seal of the Lord the King or two of them calling to them one Bishop one Lord temporal of the most honourable Council of the Lord the King and two chief Justices of the Kings Bench and Common pleas for the time being or two other Justices in their absence by Bill or Information exhibited to the Chancellour for the King or any other against any person for any other ill behaviours aforesaid have Authority of calling before them by Writ or Privie-Seal such Malefactors and of examining them and others by their discretion and of punishing such as they finde defective therein according to their demerits according to the form and effect of the Statutes thereof made in the same manner and form as they might and ought to be punished if they were thereof convinced according to the due course of Law And by a certain other Act in the Parliament of the Lord Henry late King of England the eighth held in the one and twentieth year of his reign reciting the offences in the aforesaid Statute of the said late King Henry the seventh beforementioned by Authority of the said Parliament it was and is ordained and enacted That henceforward the Chancellour Treasurer of England and the President of the most honourable Privy-Council of the King attending his most honourable person for the time being and the Lord Keeper of the Privy-Seal of the Lord the King or two of them calling to them one Bishop and one temporal Lord of the most honourable Council of the Lord the King and two chief Justices of the Kings Bench and Common Pleas for the time being or two Justices in their absence by any Bill or Information then after to be exhibited to the Chancellour of England the Treasurer the President of the said most honourable Council of the Lord the King or the Keeper of the Privy-Seal of the Lord the King for the time being for any misdemeanour in the aforesaid Statute of King Henry the seventh aforesaid before recited from henceforth have full power and authority of calling before them by Writ or by Privy-Seal such Malefactors of examining of them and others by their discretion and of punishing those that are found defective according to their demerits According to the form and effect of the said Statute of the aforesaid Lord King Henry the seventh and of all other Statutes thereupon made not revoked and expired in the same manner and form as they might and ought be punished if they were convicted according to the due order of the Laws of the said Lord the king And by the aforesaid Writ under the foot of the great Seal it manifesty appears that the said Fine was imposed by the Lord the king and his Council and not by the Legal Peers of the said Richard Chambers nor by the Law of the Land nor according to the manner of the pretended offence of the said Richard Chambers nor saving unto him his Merchandize nor for any offence mentioned in the said Statutes all and singular the which the said Richard Chambers is ready to verifie to the Court c. and demands judgment and that he be discharge of the said 2000 l. against the said Lord the now King and that as to the premises he may be dismissed from this Court Waterhouse With this Plea he annexed a Petition to the Lord Chief Baron and also to every one of the Barons humbly desiting the filing of the Plea with other Reasons in the manner of a motion at the Bar because he said Counsel would not move plead nor set hand to it as further appeareth The Copy of the Order upon Mr. Atturneys motion in the Exchequer the 17 Iuly 1629. after the Plea put in and order to file it Per the Lord Chief Baron TOuching the Plea put into this Court by Richard Chambers to discharge himself of a â—ine of 2000 l. set on him in the Star-Chamber Forasmuch as Sir Robert Heath Kniâ—â—â— his Majesties Atturney General informed this Court that the said Chambers in his said Plea recites divers Statutes and Magna Charta and what offences are punishable in the Star-Chamber and how the proceedings ought to be and upon the whole matter concludes That the said fine was imposed by the King and his Council and not by a Legal judgment of his Peers nor by the Laws of the Land nor according to the manner of his offence nor saving his Merchandize nor for any offence mentioned in the said Statutes Which Plea Mr. Atturny conceiving to be very frivolous and insufficient and derogatory to the honour and jurisdiction of the Court of Star-Chamber Humbly prayeth might not be allowed of nor filed It is therefore this day ordered That the said Plea shall be read on Saturday next and then upon hearing the Kings Counsel and the Counsel of the said Richard Chambers this Court will-declare their further order therein and in the mean time the said Plea is not to be filed nor delivered out In Michaelmas Term following Mr. Chambers was brought by a Habeas Corpus out of the Fleet and the Warden did return THat he was committed to the Fleet by vertue of a Decree in the Star-Chamber by reason of certain words he used at the Council Table viz. That the Merchants of England were skrewed up here in England more then in Turky And for these and other words of defamation of the Government he was censured to be committed to the Fleet and to be there imprisoned until he made his submission at the Council Table and to pay a fine of 2000. l. And now at the Bar he prayed to be delivered because this Sentence is not warranted by any Law or Statute For the Statute of 3 Henrici 7. which is the foundation of the Court of Star-Chamber doth not give them any authority to punish for words only But all the Court informed him That the Court of Star-Chamber was not erected by the Statute of 3 H. 7. but was a Court many years before and one of the most high and honourable Courts of Justice and to deliver one who was committed by the Decree of one of the Courts of Justice was not the usage of this Court and therefore he was remanded As a concurrant proof of these Proceedings concerning Mr. Chambers we shall insert here a Petition of his though out of time to the Long Parliament and afterwards renewed to the succeeding Parliament viz. To the Parliament of the Commonwealth of England Scotland and Ireland The brief Remonstrance and humble Petition of Richard Chambers Merchant late Alderman and Sheriff of the City of
whence he came and whither to go And that the Gates of each City be shut all night and keyes kept by the Mayor or Governour 5. Also Inn-keepers to deliver the names of all unknown passengers that lodge in their houses and if they stay suspitiously at any time to present them to the Governour whereby dangerous persons seeing these strict courses will be more wary of their actions and thereby mischievous attempts will be prevented All which being referred to your Majestie 's wise consideration it is meet for me withall to give you some satisfaction of the charge and time to perform what is purposed that you may not be discouraged in the difficulty of the one or prolongation of the other both which doubts are resolved in one and the same reason in respect that in England each chief Town commonly hath a ruinated Castle well seated for strength whose foundation and stones remaining may be both quickly repaired for this use and with little charge and industry made strong enough I hope for this purpose within the space of one year by adding withall Bulwarks and Rampiers for the Ordnance according to the rules of Fortification The Ordnance for these Forts may be of Iron not to disfurnish your Majestie 's Navy or be at a greater charge then is needfull To maintain yearly the Fort I make account in ordinary pay three thousand men will be sufficient and will require forty thousand pound charge per Annum or thereabouts being an expence that inferiour Princes undergo for their necessary safety All which prevention added to the invincible Sea-force your Majesty hath already and may have will make you the most powerfull and obeyed King of the world Which I could likewise confirm by many examples but I omit them for brevity and not to confuse your Majesty with too much matter Your Majesty may find by the scope of this discourse the means shewed in generall to bridle your Subjects that may be either discontent or obstinate So likewise am I to conclude the same intent particularly against the perversnesse of your Parliament as well to suppresse that pernitious humour as to avoid their oppositions against your profit being the second part to be discoursed on and therefore have first thought fit for better prevention thereof to make known to your Majesty the purpose of a generall Oath your Subjects may take for sure avoiding of all rubs that may hinder the conclusion of these businesses It is further meant that no subject upon pain of high Treason may refuse the same Oath containing onely matter of Allegiance and not scruples in points of Conscience that may give pretence not be denyed The effect of the Oath is this That all your Majestie 's Subjects do acknowledge you to be as absolute a King and Monarch within your Dominions as is amongst the Christian Princes and your Prerogative as great whereby you may and shall of your self by your Majestie 's Proclamation as well as other Soveraign Princes doing the like either make Lawes or reverse any made with any other Act so great a Monarch as your self may do and that without further consent of a Parliament or need to call them at all in such cases considering that the Parliament in all matters excepting causes to be sentenced as the highest Court ought to be subject unto your Majestie 's will to give the negative or affirmative conclusion and not to be constrained by their impertinencies to any inconvenience appertaining to your Majestie 's Regall Authority and this notwithstanding any bad pretence or custom to the contrary in practise which indeed were fitter to be offered a Prince elected without other right than to your Majesty born successively King of England Scotland and Ireland and your Heirs for ever and so received not onely of your Subjects but also of the whole world How necessary the dangerous supremacy of Parliament's usurpation is to be prevented The example of Lewes the Eleventh King of France doth manifest who found the like opposition as your Majesty doth and by his wisdom suppressed it And to the purpose here intended which is not to put down altogether Parliaments and their authority being in many cases very necessary and fit but to abridge them so far as they seek to derogate from your Majesties Regall authority and advancement of your greatnesse The caution in offering the afore-said Oath may require some policy for the easier passage at first either by singular or particular tractation and that so near about one time over the Land as one Government may not know what the other intendeth so it may passe the easier by having no time of combination or opposition There is another means also more certain then this to bring to passe the Oath more easily as also your profit and what else pretended which here I omit for brevity requiring a long discourse by it self and have set it down in particular instructions to inform your Majesty 2. The second part of this Discourse is touching your Majestie 's Profit after your State is secured Wherein I should observe both some reasonable content to the people as also consider the great expences that Princes have now adaies more then in times past to maintain their greatnesse and safety of their Subjects who if they have not wit or will to consider their own interest so much indifferently your Majestie 's wisdom must repair their defects and force them to it by compulsion but I hope there shall be no such cause in points so reasonable to increase your Majestie 's revenue wherein I set down divers means for your gratious Self to make choice of either all or part at your pleasure and to put it in execution by such degrees and cautions as your great wisdom shall think fit in a businesse of this nature Imprimis The first means or course intended to increase your Majestie 's revenues or profit withall is of greatest consequence and I call it a Decimation being so tearmed in Italy where in some part it is in use importing the tenth of all Subjects estates to be paid as a yeerly rent to their Prince and as well monyed men in Towns as landed men in the Countries their value and estates esteemed justly as it is to the true value though with reason and this paid yeerly in mony Which course applyed in England for your Majestie 's service may serve instead of Subsidies Fifteens and such like which in this case are fit to be released for the Subjects benefit and content in recompence of the said Decima which wil yield your Majesty more in certainly than they do Casually by five hundred thousand pounds per annum at the least Item That when your Majesty hath gotten monie into your hands by some courses to be set down it would be a profitable course to increase your Entrada to buy out all Estates and Leases upon your own Lands in such sort as they be made no
it particular It hath been confessed by one that argued on the other side that there is a generall in a particular C. 4. Hollands case there is the most generall and there is generall in particular as the State Ecclesiasticall 3 ly There is more particular as Colledges Deans and Chapters This being in a case of Return upon Habeas Corpus no precise certainty is required In an Indictment a certainty of all circumstances is requisite in Pleading a certainty is required in Counâ—s a more precise certainty in Barrs a certainty to a common intent is enough There is not such precise certainty required here as in Indictment or Count because the party ought to answer unto them nor so much certainty is required in this as in a Bar. And the Return is not incertain for as it is said in Plowden 202. and 193. a thing is incertain where it may be taken indifferently one way or the other But where the intendment the one way exceeds the intendment the other way it is not uncertain as it is here The words are for notable contempts against Us and Our Government for stirring up of sedition against Us Here is certainty of intendment one way There are many Writs which are more uncertain thâ—â— this Return here is yet good The Writ concerning the taking of an Apostate is general Quod spreto habitu Ordinis and yet there are more sorts of Apostasies In the Writ concerning the amoving of a Leper the words are generall and yet it appears by F. N. B. that there are two kinds of Lepers one outward and the other inward and for the latter the Writ concerning amoving a Leper So the Writs concerning the burning of an Heretick and concerning the examining of an Idiot are general and yet there are sundry kinds of Hereticks and Idiots also But it hath been objected that Sedition is not a Law-tearm nor known in the Law of which the Iudges can take no notice but the words to expresse offences of this nature are Murder Treason Felony c. and that no Indictment of Sedition generally was ever seen To this I answer Perhaps it is true that no Indictment was ever seen made because the form of an Indictment is precise words of art are required therein as appears in Dyer 69.261 C. 4. Vaux's case yet in 5 E. 6. Dyer 69. it is said that Furatus implies Felonicè cepit although the contrary hath been objected In a Return words by Periphrasis are sufficient The Warrant of a Iustice of Peace to apprehend I. S. because of prepensed malice interfecit I. D. is good enough although there wants the word murdravit In 5 R. 2. F. tryal 54. Belknap saies That a miscreant shall forfeit his land Out of which it may be gathered that a man may be Indicted for miscreancy And it seems likewise that an Indictment of sedition may be good for in some cases it is Treason I agree Peaks case which hath been obiected that for these words seditious fellow no action lies and so is C. 4.19 b. because those words do not import an act to be done but onely an inclination to do it but if a man say such words of another which import that he hath made sedition they are actionable as it was resolved in Phillips Badby's case 24 Eliz. C. 4.19 a. Thou hast made a seditious Sermon and moved the people to sedition this day adjudged actionable So in the Lord Cromwells C. 4.12 13. the action would have lain for those words You like of those that maintain sedition against the Queens proceedings if there had not been another matter in the case I agree the case of 21 E. 3. Sir John Garboyls case 42. E. 3. for in those cases sedition was only taken adjectively and shewes an inclination onely to do a seditious act in such sense sedition may be applyed to other offences then treason In 31 E. 1. f. gard 157. Gardein in Socage made feofment of land which he had in Ward This is forfeiture saies the Book for the treason which he did to the Ward so there one thing is called treason which is onely a breach of trust In an appeal of Mayhem it is felonicè and yet 6 H. 7.1 it is not Felony But felony is there onely put to expresse the hainousnesse of the offence it is as it were a felony The Statutes of 2 H. 4.1 Mar. 13 Eliz. 35 Eliz. 17 R. 2.3 4 E. 6.14 Eliz. which have been objected have the word Sedition but not applyable to this case Bracton in his Book de Corona saies Si quis c. If any by rash attempt plotting the Kings death should act or cause any to act to the sedition of the Lord the King or of his Army it is treason And Glanvil in as many words saies That to do any thing in sedition of the Kingdom or of the Army is high-treason And Britton fol. 16 It is high treason to â—â—herit the King of the Realm and sedition tendeth to the disheritance of the King for as it hath been said Seditio est quasi seorsum-itio when the people are severed from the King or it is Seperans à ditione when the people are severed from the power of the King And in this sense Sedition is no stranger in our Law and such sedition which severs the people from the King is Treason But it hath been objected that by the Statute of 25 E. 3. the Parliament ought onely to determine what is treason what not To this I answer That upon the said Statute the positive Law had alwaies made explication and exposition Br. treason 24. the words are Compasse or imagine the death of the King and there it is taken that he that malitiously deviseth how the King may come to death by words or otherwise and does an act to explain it as in assaying harnesse this is treason 13 Eliz. Dy. 298. Story 's case he being beyond-sea practised with a forraign Prince to invade the Realm and held treason because invasion is to the perill of the Prince and so within the Statute of 25 E. 3.4 Mar. Dy. 144. The taking of the Castle of Scarborough was treason in Stafford by 30. ass p. 19. which was presently after the making of the Statute of 25 E. 3. A man ought to have been hanged and drawn that brought Letters of Excommengement from the Pope and published them in England And it is to be noted that at the same time there was no Statute to make it treason but upon construction of the said Statute of 25 E. 3 though now it be made treason by the Statute of 13 Eliz. if it be with intention to advance forraigne power Perhaps the sedition mentioned in this Return is high treason and yet the King may make it an offence Finable for he may prosecute the offendor in what course he pleaseth and if it be treason then the prisoners are not baylable by the Statute of Westm. But suppose
d. interfecit I. S. upon prepensed malice is good for the nature of the thing is expressed although the formall word be wanting but out of the Return the substance of the offence ought alwaies to appear which appears not here But it hath been said by the other side That let the cause in the Return be as it will yet is it not traversable 9 H. 6.54 and I confesse it But as C. 11. James Baggs case is the Return ought to have certainty so much in it that if it be false the party grieved may have his action upon the case And the grievance complained of in the Petition of Right is that upon such Return no cause was certified that is no such cause upon which any Indictment might be drawn up for we never understand that the party shall be tryed upon the Habeas Corpus but that upon the matter contained within it and Indictment shall be made and he shall have his tryall upon it And yet it is clear and it hath been agreed of all hands in the Argument of the grand Habeas corpus Mich. 3. Car. in this Court that if the cause be certified upon the Return of the Habeas corpus that the Court may judge of the legality of that cause 2. Consider the parts of this Return as they are coupled together for notable contempts by him committed against Our Self and Our Government and for stirring of sedition against Us Upon the entire Return the King joynes sedition with notable contempts so that it is as much as if he had said that Sedition is one of the notable contempts mentioned in the first part of the Return so that he makes it but a contempt For the generality and incertainty of the Return I refer my self to the cases put by Mr. Ask and I will not waive any of them True it is if the Return had been that it was for Treason he had not been bailable but by the discretion of the Court and such Return would have been good but it is not so of sedition Gard. 157. Treason is applyed to a petty offence to the breach of trust by a Guardian in Socage but it is not treason And so sedition is of far lesse nature then treason and is oftentimes taken of a trespasse it is not treason of it self nor seditiosè was never used in an Indictment of treason It was not treason before the 25 of Edw. 3. nor can it be treason for 25 E. 3. is a flat Barre as I have said before to all other offences to be treason which are not contained within the said Act or declared by any Statute afterwards And there are offences which are more heinous in their nature then sedition is which are not treason as Insurrections c. which see in the Statute 11 H. 7. cap. 7. 2 H. 5. cap. 9. 8 H. 6. cap. 14. 5 R. 2. cap. 6. 17 R. 2. cap. 8. and by 3 and 4 E. 6. cap. 5. the assembly of twelve persons to attempt the alteration of any Law and the continuance together by the space of an hour being commanded to return is made treason which Act was continued by the Statute of 1 Mar. cap. 12. and 1 Eliz. cap. 16. but now is expired by her death and is not now in force although the contrary be conceived by some which I pray may be well observed By the Statute of 14 Eliz. cap. 1. rebellious taking of the Castles of the King is made treason if they be not delivered c. which shewes clearly that such taking of Castles in its nature was not treason But the said Statute is now expired and also all Statutes creating new treasons are now repealed But for a conclusion of this part of my Argument I will cite a case which I think expresse in the point or more strong then the case in question And it was M. 9. E. 3. roll 39. B. R. Peter Russells case he was committed to prison by the Deputy-Iustice of North-Wales because he was accused by one William Solyman of sedition and other things touching the King And hereupon a Commission issued out of the Chancery to enquire if the said Peter Russell behaved himselfe well or seditiously against the King and by the Inquisition it was found that he behaved himself well And upon an Habeas Corpus out of this Court his body was returned but no cause But the said Inquisition was brought hither out of Chancery and for that no cause of his caption was returned he prayed Delivery but the Court would not deliver him till it knew the cause of his Commitment Therefore taking no regard of the said Inquisition they now send a Writ to the now Iustice of Wales to certifie the cause of his commitment And thereupon he made this Return That the foresaid Peter Russell was taken because one William Solyman charged him that he had committed divers seditions against the Lord the King and for that cause he was detained and for no other And because the Return mentions not what sedition in speciall he was bayled but not discharged And I desire the baylment of the prisoner onely and not his deliverance I desire that the case be well observed In the said case there was an actuall sedition against the King here is onely a stirring up of sedition The words of the said Award are Videtur curiae which are the solemn words of a Iudgment given upon great deliberation There it was for other things concerning Us This is all one as if it had said for other things against Us Concerning the King and Against the King are all one as appears by 25 E. 3. c. 4. de Clero Stamf. 124. Westm. 1. c. 15. Bracton f. 119. 14 Eliz. c. 2. And the words of the Iudgment in the said case were not dimittitur but ideò dimittendus which imply the right of the party to be bayled The said case in some things was more particular then our case and more strong for there was an Accuser to boot which wants in our case There true it is that he was committed by the Iustice of Wales and here by the King himself but this makes no difference as to this Court for be the commitment by the King himself or by any other if it be not upon just cause the party may be bayled in this Court. And for the Inquisition which is mentioned it was no Tryall in the case nor did the Court give any regard thereto To detain the prisoner by the command of the King singly is against the Petition of Right but it being coupled with the cause the cause is to be considered and the truth of the cause is to be intended as well where it is mentioned to be by an inferiour Iudge as where by the King himself for it is traversable neither in the one nor other And 22 H. 8. roll 37. B. R. and 1 H. 8 roll 8. Harrisons case resolv'd that a man committed by the command of the King is