Licensing of bad books is a crime or the refusing to license books because then writ against Poperie or Arminianisme is a crime There is no Law to prevent the printing of any book in England onely a Decree in Star-chamber therefore that a man should be sued and imprisoned and his goods taken from him is a great Invasion on the Libertie of the Subject moveth a Law to be made upon this This is referred to a select Committee to examin Mr. Shervile REported concerning the Pardons that they have examined Doctor Sibthorp and Cosens Pardons Sibthorp solicited his own Pardon and said he would get the Bishop of Winchester to get the Kings hand to it It is evident that the Bishop of Winchester got the Kings hand to Sibthorp and Cosens Pardons and also Mountagues Pardon was promised by him That Doctor Manwering solicited his own Pardon and the Bishop of Wincâ—ester got the Kings hand to it It is likewise said the Pardons were all drawn by Mr. Attorney before there was any Warrant Mr. Cromwell saith he had by relation from one Doctor Beard that Beard said Doctor Allablaster had preached flat Poperie at Pauls Cross the Bishop of Winchester commanded him as he was his Diocesan that he should preach nothing to the contrarie Sir Robert Philips saith One Doctor Marshall will relate as much said to him by the Bishop of Winchester as the Bishop said to Doctor Moor. Mr. Kirtoâ— That Doctor Marshall and Doctor Beard may be sent for This Bishop though he hath leapt through many Bishopricks yet he hath leâ—t Poperie behind him That Cosens frequenting the Printing-house hath caused the Book of Common-Prayer to be new printed and hath changed the word Minister into Priest and hath put out in another place the word Elect thus Cosens and his Lord go hand in hand Sir Miles Fleetwood saith We are to give Mountague his Charge and by his books charge him with Schisme in error of Doctrine Faction in point of State Thirdly matter of Aggravation Sir Walter Earl OUi color albus erat nunc est contrarius albo saith Doctor White hath sold his Orthodox books and bought Jesuiticall books moves that Bishop White may go arm in arm with Mountague Ordered a select Committee to be named to digest these things that have been alreadie agitated concerning the Innovation of Religion the Cause of the Innovation and the Remedie Thursday 12. THe Sheriff of London upon his submission at the Barre is released his imprisonment in the Tower Sir Iohn Elliot made the Report for the Committee in the examination of the complaint of Merchants and delivered the Orders and Injunctions into the Exchequer At a great Committee for Tonnage and Poundage Mr. SHERVIL in the Chair MAster Waller delivered a Petition from Chambers Felke and Gilborn in complaint of an information against them in the Star-chamber about Tonnage and Poundage that by the restraint of their goods they are like to be undone Sir Iohn Elliot THe Merchants are not onely kept from their goods by Customers but by a pretended Justice in a Court of Justice as the Exchequer I conceive if the Judges of that Court had their understanding enlightened of their error by this House they would reform the same and thereby the Merchants suddenly come to their goods Mr. Transtort conceiveth this to be a difficult way for us to go Mr. Corington Let it be done which way the House shall think fit but I conceive the Merchants shall have their goods before we can think of the Bill Kings ought not by the Law of God thus to oppress their Subjects I know we have a good King and this is the advice of his wicked Ministers but there is nothing can be more dishonorable unto him Mr. Stroud That it may be Voted That the Merchants may have their goods before we enter on the Bill Chancellor of the Dutchie I shall speak my opinion because I know not whether I shall have libertie to speak or you to hear any more All the proceedings of the King and his Ministers was to keep the Question safe untill this House should meet and you shall find the proceedings of the Chequer were Legal and thus much not knowing whether I shall have a days libertie to speak any more here again Mr. Thesaurer There is none here but would think it a hard thing that a Possession should be taken from us without any order for Sequestration that therefore it was not to be suffered that these few men should so unjustly disturb the Government of the State Desires there may be no interruption but that we may proceed to settle the Tonnage Mr. Corington I hope we may speak here as I hope we may speak in heaven and do our duties and let no fear divert us Mr. Waller It is not so few as 500 Merchants are threatened in this Sir Robert Phillips moveth we may go to the King and satisfie him of these interruptions Mr. Noy We cannot safely give unless we be in possession and proceedings in the Exchequer nullified and information in the Star-chamber and the Annexion to the Petition of Right and other Records I will not give my voice to this untill these things be made void for it will not be a Guift but a Confirmation Neither will I give unless these interruptions be removed and a Declaration in the Bill That the King hath no Right but by our free guift If it will not be accepted as is fit for us to give it we cannot help it If it be the Kings alreadie as by these new Records then we need not to give it Mr. Selden secondeth the Motion of sending a Message to the Exchequer declareth a President of a Message sent into the Chancerie for stay of proceedings in a Cause and it was obtained and whatsoever the Judges return it cannot prejudice us the Law speaks by Record and if these Records remain it will to posteritie explain the Law Mr. Littleton For the Right there is no Lawyer so ignorant to conceive it nor any Judge in the Land to affirm it is against giving to the King or going on the Bill In this case by the Law a man cannot be put to a Petition of Right but shall recover without Right Ordered that a Message shall be sent to the Court of the Exchequer That whereas certain goods of the Merchants have been stayed by Injunction from that Court by a false Affidavit and that the Customers that made the Affidavit have upon examination of this House confessed that the goods were stayed onely for duties contained in the book of Rates that therefore that Court would make void the orders and Affidavits in this business Friday 13. A Petition against one Burges a Priest who was here complained of the last Session some new Articles complained against him that he could not get a Copie of his Articles out of the house untill he was fain to get one counterfeit himself a Puritan to get the same and
Parker detentus est sub custodia mea per mandatum Domini Regis mihi nunciatum per Robertum Pecke now our case is by the Nunciation of many but in Law majus minus non variant in spetione the certification of one and of many is of the same effect although in morall understanding there may be a difference Trin. 2. Ed. 3. Rot. 46. in this Court in 21 Ed. 3. in the printed Book there is a piece of it The Abbot of Burey brings a prohibition out of this Court the Bishop of Norwich pleadeth in Barre of that Quod mihi testificatū quod continetur in Archivis that he is excommunicated there were two exceptions taken to this case in this president and they are both in one case the first was that no case appeareth why he was excommunicated there may be causes why he should be excommunicated and then he should be barred and there may be causes why the excommunication should not barre him for it may be the excomunication was for bringing the action which was the Kings writ and therefore because there was no cause of the excommunication returned it was ruled that it was not good The other reason is that upon the Roll which is mihi testificatum Now every man when he will make a certificate to the Court Proprium factum suum non alterius significare debet he must inform the Court of the immediate act done and not that such things are told him or that such things are signified unto him but that was not done in this case and therefore it was held insufficient and so in this case of ours I conceive the return is insufficient in the form there is another cause my Lord for which I conceive this return is not good But first I will be bold to inform your Lordship touching the Statute of Magna Charta 29. Nullus liber homo capiatur vel imprisonetur c. ne◠super eum mittimus nisi per legale judicium parium suorum vel per legem terrae That in this Statute these words in Carcerem are omitted out of the printed Books for it should be nec eum in Carcerem mittimus For these words per legem terrae what Lex terrae should be I will not take upon me to expound otherwise then I finde them to be expounded by Acts of Parliament and this is that they are understood to be the processe of the Law sometimes by writ sometimes by attachment of the person but whether speciale mandatum Domini Regis be intended by that or no I leave it to your Lordships exposition upon two petitions of the Commons and answer of the King in 36 Ed. 3. n o 9. and n o 20. In the first of them the Commons complain that the great Charter the Charter of the Forrest and other Statutes were broken and they desire that for the good of himself and of his people they might be kept and put in execution and that they might not be infringed by making an arrest by speciall command or otherwise and the answer was that the assent of the Lords established and ordained that the said Charter and other Statutes should be put in execution according to the petitition and that is without any disturbance by arrest by speciall command or otherwise for it was granted as it was petitioned In the same year for they were very carefull of this matter and it was necessary it should be so for it was then an usuall thing to take men by writs quibusdam de causis and many of these words caused many Acts of Parliament and it may be some of these writs may be shewn and I say in the same year they complained that men were imprisoned by speciall command and without indictment or other legall course of Law and they desired that thing may not be done upon men by speciall command against the great Charter The King makes answer that he is well pleased therewith that was the first answer and for the future he hath added farther if any man be grieved let him complain and right shall be done unto him This my Lord is an explanation of the great Charter as also the Statute of 37 Ed. 3. ch 18. is a commentary upon it that men should not be committed upon suggestion made to the King without due proofs of Law against them and so it is enacted twice in one year We find more printed Books as in Henry the sixth Minus de fiacts Fitz. 182. which is a strong case under favour in an action of Trespasse for cutting down trees the defendant saith that the place where the trees are cut is parcell of the Manor of B whereof the King is seised in fee and that the King did command him to cut them and the opinion of the Court was that this was no good plea without shewing the specialty of the command and they said if the King command me to arrest a man and I arrest him he shall have an action of false imprisonment against me although it were done in the Kings presence In 1 Ioh. cap. 7. fol. 46. it is in print and there we leave it Hussey Chief Justice saith that Sir Iohn Markham told King Edward the fourth that he could not arrest a man upon suspition of felony or treason as any of his Subjects might because if he should wrong a man by such arrest the parties could have no remedy against him if any man shall stand upon it here is a signification of the Kings pleasure not to have the cause of the commitment examined he hath here another signification of his pleasure by writ whereby the party is brought hither ad subjiciendum recipiendum that he hath made your Lordship Judge of that that should be objected against this Gentleman and either to punish him or to deliver him and if here be no cause shewn it is to be intended that the party is to be delivered and that it is the Kings pleasure it should be so and the writ is a sufficient warrant for the doing of it there being no cause shewn of the imprisonment and now my Lord I will speak a word to the writ of de homine replegiando and no other writ for that was the common writ and the four causes expressed in that Statue to wit the death of a man the command of the King or his Justices or Forrest were excepted in that writ before that Statute made as appears Bracton 133. so that the writ was at the Common Law before that Statute And it appears by our Books that if a man be brought hither by an Habeas corpus though he were imprisoned De morte hominis as in the 21 of Edward the fourth 7. Winkfield was bailed here this Court bailed him for he was brought hither ad subjiciendum recipiendum and not to lie in prison God knows how long and if the Statute should be expounded otherwise there were no bailing men outlawed or breakers of prisons
Ephemeris Parliamentaria OR A FAITHFULL REGISTER Of the Transactions in Parliament in the third and fourth years of the reign of our late SOVEREIGN LORD KING CHARLES Containing The severall Speeches Cases and Arguments of Law transacted between his MAJESTY and both Houses Together with the Grand Mysteries of the Kingdome then in Agitation Lege historias ne fias historia LONDON Printed for Iohn Williams and Francis Eglesfield and are to be sold at the Crown and at the Marigold in S t. Pauls Churchyard 1654. THE PREFACE ONe of the most lawfull wayes whereby man in some sort may be said to revenge himself of the shortnesse of his life and extend the measure thereof to a larger proportion then nature allows him is by the studie of Historie For Historie is the remembrancer of the time past it is the monument generall erected over actions long since dead and interred acquainting such as read the Epitaph thereon with the most remarkable passages of the ages past so that a Dwarf by the advantage of the ascent of History may suddenly start up if not a Giant one of competent stature to oversee all transactions long before him But of all Histories none more pleasant or profitable then those of our Native Countrey which as it is an Island and so a little entire world in it self hath in all ages afforded as many signall observables as any content of ground of the same proportion neither Greece nor Italie it self excepted which indeed overmatch us not in Histories but Historians Otherwise if workmen might be had as fair an Edifice might be erected of English affaires such the plâ—nty variety and curiosity of materials concurring thereunto And truly I cannot but accuse the blame-worthy negligence of many able men who under the pretended plea of modesty and humble distrust of their own sufficiency preferre rather to moulder away in obscuritie then industriously to preserve both their own memory and the honour of their nation And those also seem to me equally worthy of reproof who sharp-sighted abroad are little better then blinded at home know the way from Paris to Lions better then from London to York can give a better account from Pharamond to the last French Lewis then from our Lucius to King Charles A very preposterous knowledge seeing Historie like unto good mens charitie is though not to end yet to begin at home and thence to make its methodicall progresse into Forreign parts Now of all English Historie the greatest shame is to be ignorant in the Accidents of our own Age of nearest concernment unto our selves Those starres which are lowest seem lightest unto us yea a candle at hand illuminates more then a torch at distance A man is most as I may say morally edified by reading such men and matters as are his own contemporaries Chiefly because therein not so subject to be deceived by partiallity of reports because not taking up so much upon trust as conducted to his belief by his own eyes and eares witnesses of all transactions The consideration of the premises hath principally moved me to the setting forth of this work wherein I confesse rather fidelitie then industry yet rather industrie then any wit or learning hath been required Some works resent too much of their Authour frequently infusing his own judgement and affections clean through the contexture of his writings to the great prejudicing of the truth and misguiding of his Reader And this is likely to be the Epidemicall disease of the books in our Age wherein all are so engaged in parties that their writings will rather appear pleadings then reports VVhat by generall errour is falsely told of the Iews that they are alwayes crook-backed will be found most true of Authours of this age that they are crook-sided warped and bowed to the right or to the left so hard it will be to find a streight upright and unbiassed Historian For mine own part I can professe integrity herein the only thing I can assume to my self in this work And indeed I have had no occasion nor opportunitie to expresse my own inclinations who have no commission to be an Authour but a Transcriber There is an Officer in the Exchequer who though sitting with the Barons on the Bench hath no power to vote with them nor interposeth his judgement as decisive in any cause but observing silence in pleading speaketh sometimes as to the regulation of the time how it passeth away Such and no other my employment in this Book being a true tellâ—time and no more to marshall the speeches in due order and to acquaint the Reader with the day of the moneth when they were spoken which done my task is performed The Book containeth the transactions of the Parliament tertio quarto Caroli A distance of time of fit proportion for the Presse not too late nor too soon not so farre off as that the footsteps of truth are worn out as in some ancient stories where the most cunning Hunters are at a losse nor yet so near that the heels of truth ought to be feared though he hath but a servile soul who overvalueth his own safety in such cases to the poysoning of posterity with a falshood Here may one behold the severall traverses of State betwixt the upholders of the Royall Prerogative the Asserters of the Subjects Liberties The former endeavoured to support and perchance to enlarge the Kings Prerogative how in some cases it is too high to come under the roof of the Law and the discretion of the Sceptre as Guardian for the generall good of the Commonwealth must be intrusted on some emergencies with the managing of its own might And seeing Crownes commonly keep what they once catch loath to abate a whit of that power invested in them at leastwise exercised by them no wonder if the Courtiers stickled for their Master his right and as the appurtenances were zealous for that Power and Honour on whom they depended On the other side the Asserters of the Subjects Liberties Trustees for the Countreys good engage earnestly to retrench the Prerogative within the known limits of Law that so Subjects may be at a certainty how to square their loyalty and obedience For Allegiance is willingly and cheerfully paid where there is a sure and standing Rule whereto Sovereigns commands and Subjects duty is to be conformed Otherwise their loyalty flatteth and deadeth by degrees when exposed to an unbounded Arbitrary power so that they never know an end of their own obeying but are in daily fear of new pressures from a lawlesse power whose pleasure is all the reason of imposing them Besides unlimited power in a Prince carrieth in it self a strong temptation to Tyranny and mortall man his corruption is scarce to be trusted with so great a command for fear of abusing thereof Now although in this Parliament these two Parties are plainly to be discovered yet the judicious reader will observe that there was as yet lesse eagerness more
breath of our nostrils and the light of our eyes and besides the many Comforts which under you and your Royall Progenitours in this frame of Government this Nation hath enjoyed the Religion we professe hath taught us whose Image you are And we do all most humbly declare to your Majestie that nothing is or can be more deare unto us then the sacred Rights and Prerogatives of your Crown no Person or Councell can be greater lovers of them nor more truly carefull to maintain them And the fundamentall Liberties which concern the freedome of our persons and propriety of our goods and estates are an essentiall meanes to establish the true glorie of a Monarch for rich and free Subjects as they are best governed so they are most able to do your Majestie service either in peace or warre which under God hath been the cause of the happie victories of this Nation beyond other Kingdomes of larger Territories and greater numbers of people What information soever contrarie to this shall be brought to your Majestie can come from no other then such as for their own ends under colour of advancing the Prerogative do in truth undermine and weaken Royall Power and by impoverishing the Subject render this Monarchie lesse glorious and the people lesse able to serve your Majestie Having by this which hath been said cleared our hearts and proceedings to your Majesty our trust is that in your Royall Judgement we shall be free from the least opinion of giving any unnâ—cessary stop to our procâ—eding in the matter of Supply and that your Majestie will be pleased to entertain belief of our alacritie and cheerfulnesse in your service and that hereafter no such misfortune shall befall us to be misunderstood by your Majestie in any thing We all most humblie beseech your Majestie to receive no information either in this or any other businesse from private relations but to weigh and judge of our proceedings by those resolutions of the House which shall be presented from our selves This rightly and graciously understood we are confident from the knowledge of your goodnesse and our own hearts that the ending of this Parliament shall be much more happy then the beginning and that it shall be stiled to all ages The Blessed Parliament which making perfect union betwixt the best people your Majestie may ever delight in calling us together and we in the Comforts of your Gracious Favour towards us In this hope I return to my first errand which will best appear by that which I shall humbly desire your Majesty to hear read being an humble Petition from the House of Commons for redresse of those many inconveniences and distractions that have befallen your Subjects by the billetting of Souldiers Your Royall Progenitours have ever held their Subjects hearts the best Garrison of this Kingdome And our humble suit to your Majesty is that our Faith and Loyalty may have such place in your Royall thoughts as to rest assured that all your Subjects will be ready to lay down their lives for the defence of your Sacred Person and this Kingdome Not going our selves into our Countreys this Easter we should think it a great happinesse to us and we know it would be a singular comfort and encouragement to them that sent us hither if we might but send them the newes of a gracious Answer from your Majesty in this particular which the reasons of the Petition we hope will move your most excellent Majesty graciously to vouchsafe us The King's Answer to the Petition concerning billetting of Souldiers 14 April 1628. M r Speaker and you Gentlemen WHen I sent you my last message I did not expect any Reply for I intended to hasten you not to find fault with you I told you at your first meeting that this time was not to be spent in words and I am sure it is lesse fit for disputes which if I had a desire to entertain M r Speaker's Preamble might give me ground enough The Question is not now what Libertie you have in disposing of matters handled in your House but rather what is fit to be done Therefore I hope you will follow my example in eschewing disputations and fall to your important businesse You make a protestation of your affections and zeal to my Prerogative grounded upon so good and just reasons that I must believe you But I look that you use me with the like charitie to believe what I have delivered more then once since your meeting which is That I am as forward as you for the preservation of your true Liberties yet let us not spend so much time in this that may hazzard both my Prerogative and your Liberties to our Enemies To be short go on speedily with your businesse without fear or more Apologies for time calls fast on you which will neither stay for me nor you Wherefore it is my dutie to presse you to hasten as knowing the necessity of it and yours to give credit to what I say as to him that sitteth at the Helme Sir Dudley Diggs his Introduction My Lords I Shall I hope auspiciously bâ—gin this Conference this day with an Observation out of Holy Story In the dayes of good King Iosiah when the Land was purged of Idolatry and the great men went about to repaire the House of God while money was sought for there was found a Book of the Law which had been neglected and afterwards being presented to the good King 2 Chro. cap. 34. 2 Kings cap. 22. procured the blessing which your Lordships may read of in the Scriptures My good Lords I am confident your Lordships will as cheerfully joyn with the Commons in acknowledgement of Gods great blessing in our good King Iosiah as the Knights Citizens and Burgesses of the Commons House by me their unworthy servant do thankfully remember your most religious and truly honourable invitation of them to the late Petition for clensing this Land from Popish Abominations which I may truly call a necessary and happy repairing of the House of God And to go on with the parallell while we the Commons out of our good affection were seeking for money we found I cannot say a book of the Law but many and those fundamentall points thereof neglected and broken which hath occasioned our desire of this Conference Wherein I am first commanded to shew unto your Lordships in generall that the Lawes of England are grounded on reason ancienter then bookes consisting much in unwritten Customes yet so full of Justice and true Equity that your most honourable Predecessours and Ancestours many times propugned them with a Nolumus Mutare and so ancient that from the Saxons daies notwithstanding the Injuries and Ruines of Time they have continued in most parts the same as may appear in old remaining Monuments of the Lawes of Ethelbert the first Christian King of Kent In Bibliotheca â—ottoniana Ina King of the West-Saxones offa of the Mercians and of Alfred the great Monarch who united
the Saxon Heptarchie whose Laws are yet to be seen published as some think by Parliament as he sayes to that end ut qui sub uno Rege sub una Lege regerentur Liber Lichfield And though the book of Lichfield speaking of the troublesome times of the Danes saies that then Ius sopitum erat in Regno Leges consuetudines sopitae sunt and prava voluntas vis violentia magis regnabant quam Iudicia vel Iustitia yet by the blessing of God a good King Edward commonly called S. Edward did awaken these Lawes Excitatas reparavit Liber de Chartsey sive Regiâ—â—rum de Chartsey reparatas decoravit decoratas confirmavit which confirmavit sheweth that good King Edward did not give those Lawes which William the Conquerour and all his Successours â—ithence that have sworn unto And here my Lords by many Cases frequent in our Modern Lawes strongly concurring with those of the ancient Saxon Kings I might if time were not precious demonstrate that our Lawes and Customes were the same I will only intreat your Lordships leave to tell you that as we have now even in those Saxon times they had their Courts Barons and Courts Leets and Sheriffs Courts by which as Tacitus saith of the Germans their Ancestours Iura reddebant per pagos vicos And I believe as we have now they had their Parliaments where new Lawes were made cum consensu Praelatorum Magnatum totius Communitatis or as another writes cum consilio Praelatorum Nobilium sapientum Laicorum I will adde nothing out of Glanvile that wrote in the time of Henry the second or Bracton that writ in the time of Henry the third only give me leave to cite that of Fortescue the learned Chancellour to Hen. 6. who writing of this Kingdome saith De Dom. polit eâ— regal Regnum illud in omnibus 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 Ingreditur solâ— caput inter nubila condit Virgil. Wherefore the cloudy part being mine I will make haste to open way for your Lordships to heare more certain Arguments and such as go on surer grounds Be pleased then to know that it is an undoubted and fundamentall point of this so ancient Common Law of England that the Subject hath a true Proprietie in his goods and possessions which doth preserve as sacred that meum and tuum that is the Nurse of Industrie the Mother of Courage and without which there can be no Justice of which meum and tuum is the proper object But this undoubted Birthright of free Subjects hath latelie not a little been invaded prejudiced by pressures the more grievous because they have been pursued by Imprisonments contrary to the Franchise of this Land And when according to the Lawes and Statutes of this Realm redresse hath been sought for in a legall way by demanding Habeas Corpus from the Judges and a discharge or triall according to the Law of the Land successe hath failed which hath now inforced the Commons in this present Parliament assembled to examine by Acts of Parliaments Presidents and Reasons the truth of English Subjects Liberties which I shall leave to learned Gentlemen whose weightie Arguments I hope will leave no place in your Lordships memories for the errours and infirmities of your humblest Servant that doth thankfully acknowledge the great favour of your most honourable and patient attention The Argument made by M r Littleton at the command of the House of Commons out of Acts of Parliament and Authorities of Law expounding the same at the first Conference with the Lords concerning the Liberty of the Person of every Free-man My Lords UPon the occasions delivered by the Gentleman that last spake your Lordships have heard the Commons have taken into their serious Consideration the matter of Personall Libertie and after long debate thereof on divers dayes as well by solemn Arguments as single propositions of doubts and answers to the end no scruple might remaine in any mans breast unsatisfied they have upon a full search and cleer understanding of all things pertinent to the Question â—nanimously declared That no Free-man ought to be committed or detained in prison or otherwise restrained by the command of the King or the Privie Councell or any other unlesse 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 some other of their Members to represent unto your Lordships the true grounds of such their resolutions and have charged me particularly leaving the reasons of Law and Presidents for others to give your Lordships satisfaction that this Libertie is established and confirmed by the whole State the King the Lords Spirituall and Temporall and the Commons by severall 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 that I shall mind your Lordships of are so direct to 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 Granâ— Charter of the Liberties of England first granted in the 17 yeare of King Iohn and renewed in the 9 yeare of King Hen. 3. and since confirmed in Parliament above 30 times Cap. 29. the words are these Nullus liber homo capiatur vel imprisonetur aut diseisietur de libero tenemento suo vel libertatibus vel liberis consuetudinibus suis aut utlagetur aut exuletur aut aliquo modo destruatur nec super cum ibimus nec super cum mittemus nisi per legale judicium parium suorum vel per legem terrae These words Nullus liber home c. are expresse enough yet it is remarkable that Matthew Paris an Authour of speciall credit doth observe fo 432. that the Charter of the 9. H. 3. was the very same as that of the 17. of King Iohn in nullo dissimiles are his words and that of King Iohn he setteth down verbatim fol. 342. and there the words are directlie Nec eum in carcerem mittemus and such a corruption as is now in the print might easily happen 'twixt 9. H. 3. and 28. E. 1. when this Charter was first exemplified But certainly there is sufficient left in that which is extant to decide this question for the words are That no Free-man shall be taken or imprisoned but by the lawfull judgement of his Peeres which is by Jury Peeres for Pares ordinary Jurours for others who are their Peeres or by the Law of the Land Which words Law of the Land must of necessity be understood in this Nation to be by due processe of Law and not the Law of the Land generally otherwise it would comprehend Bond-men whom we call Villains
which are excluded by the word liber for the generall Law of the Land doth allow their Lords to imprison them at pleasure without cause wherein they only differ from the Free-men in respect of their persons who cannot be imprisoned without a cause And that this is the true understanding of those words per legem terrae will more plainly appear by divers other Statutes that I shall use which do expound the same accordingly And although the words of this Grand Charter be spoken in the third person yet they are to be understood of Suites betwixt partie and partie at least not of them alone but even of the Kings Suites against his Subjects as will appear by the occasion of the getting of that Charter which was by reason of the differences betwixt those Kings and their people and therefore properlie to be applyed to their power over them and not to ordinarie questions 'twixt Subject and Subject The words per legale judicium parium suorum immediately precedeing the other per legem terrae are meant of trialls at the Kings Suit and not at the prosecution of a Subject And therefore if a Peer of the Realm be arraigned at the Suit of the King upon any Indictment of Murther he shall be tried by his Peeres that is Nobles But if he be appealed of Murther by a Subject his triall shall be by an ordinarie Jury of 12 Free-holders as appeareth in 10. Edw. 4. It is said such is the meaning of Magna Charta By the same reason therefore as per judicium parium suorum extends to the Kings Suit so shall these words per legem terrae And in 8. E. 2. Rot. Parliam num 7. there is a Petition that a Writ made under the Privie Seal went to the Guardians of the Great Seal to cause lands to be seized into the Kings hands by force of which there went a Writ out of the Chauncery to the Exchequer to seize against the forme of the Grand Charter That the King or his Ministers shall out-law no man of Free-hold without reasonable Judgement And the partie was restored to his land Which sheweth the Statute did extend to the King There was no invasion upon this personall liberty till the time of King Edw. the 3. which was soon restrained by the Subject For in the 5. E. 3. cap. 9. it is ordained in these words It is enacted that no man from henceforth shall be attached by any accusation nor forejudged of life or limbe nor his lands tenements goods nor cattells seized into the Kings hands against the forme of the great Charter And the Law of the Land 25. E. 3. cap. 4. is more full and doth expound the words of the Grand Charter and it is thus Whereas it is contained in the great Charter of the Franchises of England That no Free-man be imprisoned or put out of his Free-hold nor of his Franchise nor Free Custome unlesse it be by the Law of the Land it is accorded assented and established that from henceforth none shall be taken by petition or suggestion made unto our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighbourhood where such deeds be done in due manner or by processe made by Writ originall at the Common Law nor that none be out of his Franchises or of his Free-hold unlesse he be duely brought into answer and forejudged of the same by course of Law and if any thing be done against the same it shall be redressed and held for null Out of this Statute I observe that what in Magna Charta and the Preamble of this Statute is termed by the Law of the Land is in the body of this Act expounded to be by processe made by Writ originall at the Common Law which is a plain interpretation of the words Law of the Land in the grand Charter Andâ— I note that this Law was made upon the commitment of divers to the Tower no man yet knoweth for what The 28. E. 3. is yet more direct this Libertie being followed with fresh suite by the Subject where the words are not many but very full and significant That no man of what estate or condition he be shall be put out of his lands or Tenement nor taken nor imprisoned nor disinherited nor put to death without he be brought into answer by due processe of the Law Here your Lordships see the usuall words of the Law of the Land are rendered by due processe of the Law 36. E. 3. Rot. Parliam num 9. amongst the Petitions of the Commons one of them being translated into English out of the French is thus First that the great Charter and the Charter of the Forrest and the other Statutes made in his time and the time of his Progenitours for the profit of him and his Commonaltie be well and firmly kept and put in due execution without putting disturbance or making arrest contrarie to them by speciall command or in any other The answer to the Petition which makes it an Act of Parliament is Our Lord the King by the assent of the Prelates Dukes Earles Barons and the Commonaltie hath ordained and established that the said Charters and Statutes be held and put in execution according to the said Petition which is that no arrest should be made contrarie to the Statutes by speciall command This concludes the Question and is of as great force as if it were printed For the Parliament Roll is the true warrant of an Act and many are omitted out of the books that are extant 36. E. 3. Rot. Parliament num 20. explaineth it further for there the Petition is Whereas it is contained in the Grand Charter and other Statutes that none be taken or imprisoned by speciall command without indictment or other due processe to be made by the Law yet oftentimes it hath been and still is that many are hindred taken and imprisoned without indictment or other processe made by the Law upon them as well of things done out of the Forrest of the King as for other things That it would therefore please our said Lord to command those to be delivered which are so taken by speciall Command against the forme of the Charters and Statutes aforesaid The answer is The King is pleased if any man find himself grieved that he come and make his complaint and right shall be done unto him 37. E. 3. cap. 18. agreeth in substance when it saith Though that it be contained in the great Charter that no man be imprisoned nor put out of his Freehold without processe of the Law neverthelesse divers people make false suggestions to the King himself as well for malice as otherwise whereat the King is often grievâ—d and divers of the Realme put in damage against the forme of the said Charter Wherefore it is ordained that all they which make such suggestions be sent with the suggestions before the Chauncellour Treasurer and the
per speciale mandatum Domini Regis ideo predicutus Johannes remittitur prefato Custodi Marr. hospitii predict salvo custodiend quousque c. that is quousque secundum legem deliberatus fuerit And if that Court which is the highest for ordinary Justice cannot deliver him secundum legem what Law is there I beseech you my Lords that can be sought for in any other inferiour Court to deliver him Now my Lords because this draught if it were entred in the Roll as it was prepared for no other purpose would be a great declaration contrary to the many Acts of Parliament already cited contrary to all Presidents of former times and to all reason of Law to the utter subversion of the chiefest Liberty and Right belonging to every Free-man of the Kingdome and for that especially also it supposeth that divers ancient Records had been looked into by the Court in like Cases by which Records their Judgements were directed whereas in truth there is not one Record at all extant that with any colour not so much indeed as with any colour warrants the Judgement therefore the House of Commons thought fit also that I should with the rest that hath been said shew this draught also to your Lordships I come now to the other kind of Presidents that is solemn Resolutions of Judges which being not of Record remain only in authentick Copies But of this kind there is but one in this Case that is a resolution of all the Judges in England in the time of Queen Elizabeth It was in the foure and thirtieth yeare of her reign when divers persons had been committed by absolute command and delivered by the Justices of one Bench or the other whereupon it was desired that the Judges would declare in what Cases persons committed by such Command were to be enlarged by them The resolution hath been variously cited and variously apprehended The House of Commons therefore desiring with all care to enforme themselves as fully of the truth of it as possibly they might got into their hands from a member of their House a book of selected Cases collected by a learned and reverend Chief Justice of the Common Pleas that was one of them that gave the Resolution which is entred at large in that book I mean the Lord Chief Justice Anderson It is written in that book in his own hand as the rest of the book is And however it hath been cited and was cited in that great Judgement given upon the habeas Corpus in the King's Bench as if it had been that upon such commitments the Judges might not baile the prisoners yet it is most plain that in the resolution it self no such thing is contained but rather expresly the contrary I shall better represent it to your Lordships by reading it then by opening it Then it was read If this Resolution doth resolve any thing it doth indeed upon the matter resolve fully the contrary to that which hath been pretended and enough for the maintenance of this ancient and fundamentall point of Liberty of the Person to be regained by habeas Corpus when any man is imprisoned And I the rather thought fit now to read it to your Lordships that it might be at large heard because in the great Judgement in the Kings Bench though it were cited at the Barre as against this point of personall Libertie as also at the Bench yet though every thing else of Record that was used was at large read openly this was not read either at Barre or Bench. For indeed if it had every hearer would easily have known the force of it to have been indeed contrary to the Judgement My Lords having thus gone through the Charge committed to me by the House of Commons and having thus mentioned to your Lordships and opened the many Presidents of Record and that draught of the Judgement in the like Case as also the Resolution I shall now as I had leave and direction given me least your Lordships should be put to too much trouble and expense of time in the finding or getting Copies at large of these things which I have cited offer also to your Lordships authentick Copies of them all and so leave them and whatsoever else I have said to your Lordships further consideration The whole Copies of the Presidents of Record mentioned in one of the Arguments made at the first Conference with the Lords touching the Liberty of the Person of every Free-man INter Recorda Domini Regis Caroli in Thesaurario Receptus Scaccarii sui sub custodia Dom. Thesaurarii Camerarii ibidem remanentia viz. Placita coram Domino Rege apud Westmonasterium de Termino Paschae anno Regis E. 3. post conquestum Angliae 15. inter alia sic continetur ut sequitur Adhuc de Termino Paschae London sc. Dominus Rex mandavit dilecto fideli suo Roberto de Dalton Constabulario Turris suae London vel ejus locum-tenenti breve suum in haec verba Edwardus Deigratia Angliae Franâ—iae Rex Dominus Hiberniae dilecto fideli suo Roberto de Dalton Constabulario Turris suae London vel ejus locum-tenenti salutem Mandamus vobis quod Iohannem de Bildeston Cappellanum quem vicecomites nostri London ad mandatum nostrum apud praedictam Turrim vobis liberabunt ab eisdem recipiatis in prisona nostra Turri praedicta custodiri faciatis quousque aliud vobis super hoc duxerimus de mandato Teste me ip so apud Turrim nostram London trigesimo die Martii anno Regni nostri Angliae sextodecimo Regni vero nostri Franciae tertio Et modo scilicet in Craft Ascension Dom. anno Reg. nunc 18. coram Domino Rege apud Westm. venit Iohannes de Wyndwick locum-tenens praedicti Constabularii adduxit coram Justiciarios hic in Curia praedicta Iohannem de Bildeston quem alias à praefatis vicecomitibus virtute brevis praedicti recipit c. Et dicit quod ipse à Domino Rege habuit in mandatis ducendi liberandi Corpus ipsius Iohannis de Bildeston praefat Justic. hic c. Et quaesitum est à praedicto Iohanne Wyndwick si quam aliam detentionis praefat Iohannis de Bildeston habeat causam Qui dicit quod non nisi breve praedict tantum Et quia videtur Curiae breve praedict sufficientem non esse causam praedict Iohannem de Bildeston in prisona Marescall Reg. hic retinend c. idem Iohannes dimittitur per manucaptionem Willielmi de Wakefield Rectoris Ecclesiae de Willingham Iohannis de Wyndwick de com Lancaster Iohannis de Lakenham Iohannis de Norton de com Norsolciae Nicolai de Wandesford de com Midd. Rogeri de Bromley de com Staff qui eum manuceperunt habendi eum coram Domino Rege in Octabis sanctae Trinitatis ubicunque c. viz. corpora pro corpore Ad quas Octab. sanct Trinit coram Domino Rege apud Westm. venit praedict
made fully to the maintenance of their resolution and that there was not one example or president of a Remittitur in any kinde upon this point before that of Cesars Case which is before cleared with the rest and is but of late time and of no moment against the resolution of the house of Commons And thus for so much as concerned the presidents of Record the first day of the conference desired by the Lords ended The next day they desired another conference which the house of Commons at which it pleased the Committee of both houses to hear M â— Attâ—rney again to make what Objection he would against other parts of the Arguments formerly delivered by the house of Commons He then Objected against the Acts of Parliament and against the reasons of Law and his Objections to these parts were answered as appears in the answers by order given into the house of Commons by the gentlemen that made them He Objected also upon the second day against that second kinde of presidents which are resolutions of Judges in former times and not of Records and brought also some other Testimonies of opinions of Judges in former times touching this point First for that resolution of all the Judges in England in 34. of Queen Eliz. mentioned and read in the Arguments made at the first conference he said That it was directly against the resolution of the House of Commons and observed the words of it to be in one place that Persons so committed by the King or the Councel may not be delivered by any of the Courts c. and in another that if the Cause were expressed either in generality or speciality it was sufficient and he said that the expressing of a cause in generality was to shew the Kings or Councels Command And to this purpose he read the whole words of that reâ—olution of the Judges Then he Objected also that in a report of one Ruswells Case in the Kings-bench in the 13. Iac. he found that the opinion of some Judges of that Court S r. Edward Coke being then Chief Justice and one of them was that a Prisoner committed per mandatum Domini Regis or privati Consilii without cause shewed and so returned could not be bayled because it might be matter of State or Arcanuâ— Imperii for which he stood committed And to this alâ—o he added an opinion that he found in a Journal of the House of Commons of the 13. Iac. wherein S r. Edward Coke speaking to a Bill preferred for the explanation of Magna Charta â—ouching imprisonâ—ent said in the House That a Prisoner so committed could not be enlarged by the Law because it might be Matter of State for which he was committed And among these Objectiâ—â—â— of other nature also he spake of the confidence that was shewed iâ— behalf of the House of Commons he said that it was not confidence could add any thing to the determination of the question but if it could that he had as much reason for the other side against the resolution of the House grounding himself upon the force of 〈◊〉 Objections which as he conceived had so weakned the Argument of the Commons House that notwithstanding any thing yet Objected they wereupon clear reason confident of the truth of their first resolution grounded upon so just examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and far greater weight then any confidence that could be expressed by M. Attorney or whomsoever elâ—e being of his Majesties Councel learned To which purpose the Lords were desired to take into their Memory the difference beâ—ween â—he present quality of the Gentlemen that â—pakâ— iâ— behalf of the House of Commons and of the Kings learned couâ—cel in their speaking there howsoever accidentally they were 〈…〉 of the same profession For the Kings Councel spake as 〈◊〉 perpetuâ—lly retained by Fee and if they made glosses and 〈…〉 adâ—anâ—agious Interpretations soever for their own part thâ—y did but wâ—aâ— belonged to their place and quality as M r. Attornâ—y had done But the Gentlemen that spake in behalf of the House of Commons came therâ— bound on the one side by the trust reposed in them by their Countrey that sent them and on the other bound also by an Oâ—th taken by every of them before they sit in they House to maintain aâ—d deâ—end the rights and prerogatives of the Crown So that 〈…〉 thâ— poâ—â—â— of confidence alone that of them that spake as â—â—tained Councel by perpetual Fee and might by their place being pâ—râ—itâ—ed to speak say what they would and that of them that spake as bound to nothing but truth but by such a trust and such an Oath were no way to be so compared or Counterpoised as if the one of them were of no more weight then the other And then the Objections before mentioned were also answered For that of the resolution of all the Judges of England in 34. Eliz. It was shewed plainly it agreed with the resolution of the House of Commons For although indeed it might have been expressed with more perspicuity yet the words of it as they are sufficiently shew that the meaning of it is no otherwise To that purpose besides the words of the whole frame of this resolution of the Judges as it is in the Coppy transcribed out of the Lord Chief Justice Andersons book written in his own hand which book was there offered to be shewed also in behalf of the House of Commons It was observed that the Records of the first part of it shew plainly that all the Judges of England then resolved that the Prisoners spoken of in the first part of their resolution were onely Prisoners committed with cause shewed for they onely said they might not be delivered by any of the Courts without due Trial by Law and Judgement of acquital had which shews plainly that they meant that by trial and acquital they might be delivered but it is clear that no trial or acquital can be had where is not some cause laid to their charge for which they ought to stand committed Therefore in that part of the resolution such Prisoners are onely meant as are committed without cause shewed which also the Judges in that resolution expresly thought necessary as appears in the second part of the resolution wherein they have these words If upon Return of the Habeas Corpus the cause of their commitment be certified to the Judges as it ought to be c. by which words they shew plainly that every return of a commitment is insufficient that hath not a cause shewed of it And to that which Mr. Attorney said as if the cause were sufficiently expressed in generality if the Kings Command or the Councels were expressed in it and as if that were meant in the resolution for a sufficient general cause it was answered That it was never heard of in Law that the power or
Person that committed the Prisoner was understood for the Causâ— captionis or Causâ— detentionis but onely the reason why that Power or Person committed the Prisoner as also in common speech if a man ask why and for what cause a man stands committed the answer is not that such a one committed him but his offence or some other cause is understood in the question and is to be shewed in the Answer But to say that such an one committed the Prisoner is an answer to the question who committed him and not why or for what cause he stands committed Then for that of the Coppy of the Report of 13. Iac. shewed forth by M r. Attorney it was answered That the Report it self which had been before seen and perused among many other things at a Committee made by the House was of sleight or no Authority for that it was taken by one that was at that time a young Student onely and was a Reporter in the Kings-bench and there was not any other Report to be found that agreed with it Secondly although the Reports of young Students when they take the words of Judges as they fall from their mouth at the Bench and in the Person and form as they are spoken may be of good credit Yet in this Case there was not one word so reported but in truth there being three Cases a time in the Kings-bench one Ruswell and one Allen and one Saltonstall every of which had something of like nature in it the Student having been present in the Court made up the form of one Report or Case out of all those three in his own words and so put it into his book so that there is not a word in the Report but is framed according to the Students fancie as it is written and nothing is expressed in it as it came from the mouth of the Judges otherwise then his fancie directed him Thirdly there are in the Report plain falshoods of Matter of Fact which are to be attributed either to the Judges or to the Reporter It is most likely by all reason that they proceeded from the Reporters fault but however those Matters of falshood shew sufficiently that the credit of the rest is of slight value for the purpose It is said in the Report that Harecourt being committed by the Councel was bayled in 40. Eliz. upon a privy Seal or a Letter where as there was no such thing in truth And it is said there that no such kinde of Letters are filed there in any case whatsoever That resolution of the Judges in 34. is miscited there and in 36. of Queen Eliz. and it is said there that by that resolution a Prisoner returned to be committed by the command of the Councel might not at all be delivered by the Court whereas no such thing is comprehended in that resolution But that which is of most moment is that howsoever the truth of the report were yet the opinion of the Judges being sudden without any debate had of the case is of fleight moment For in difficult points especially the gravest and most learned men living may on the sudden let fall and that without disparragement to them such opinions as they may well and ought to change upon further enquiry and examination and full debate had before them and mature deliberation taken by them Now plainly in that case of the 13. Iacob there is not so much as pretence of any debate at Bar or Bench. All that is reported to have been is reported as spoken upon the sudden and can any man take such a sudden opinion to be of value against solemne debates and mature deliberation since had of the point and all circumstances belonging to it which have within this half year been so fully examined and searched into that it may well be affirm'd that the learned'st man whatsoever that hath now considered of it hath within that time or might have learned more reason of satisfaction in it then ever before he met with Therefore the sudden opinions of any Judge to the contrary is of no value here Which also is to be said of that opinion obviously delivered in the Commons House 18. Iac. as M r. Attorney objected out of the Journal book of the House But besides neither was the truth of that report of that opinion in the Journal any way acknowledged For it was said in behalf of the House of Commons that their Journals were for matter of order and resolutions of the House of such Authority as that they were as their Records but for any particular Mans opinion noted in any of them it was so far from being of any Authority with them that in truth no particular opinion is at all to be entered in them and that their Clerks offend when ever they do the contrary And to conclude no such opinion whatsover can be sufficient to weaken the clear Law comprehended in these resolutions of the House of Commons grounded upon so many Acts of Parliament so much reason of Common Law and so many Presidents of Record and the resolution of all the Judges of Englaâ—d and against which no Law written not one President not one reason hath been brought that makes any thing to the contrary And thus to this purpose ended the next day of the Conference desired by the Lords and had by a Committee of both Houses The Proceedings against the Earle of SUFFOLK 14. April 1628. MR. Kerton acquainted the House how that the Earle of Suffolk had said to some Gentlemen that M r. Selden had razed a Record and deserved to be hanged for going about to set division betwixt the King and his Subjects And being demanded to whom the words were spoken he was unwilling to name any till by question it was resolved he should nominate him He then named S r. Iohn Strangwaies who was unwilling to speak what he had heard from the Earle but being commanded by the House and resolved by question he confessed That upon Saturday last he being in the Committee Chamber of the Lords the Earle of Suffolk called him unto him and said Sir Iohn will you not hang Selden To whom he said for what The Earle replied By God he hath razed a Record and deserves to be hanged This the House took as a great injury done to the whole House M r. Selden being imployed by them in the conference with the Lords in the great cause concerning the Liberty of the Persons of the Subjects The House presently sent S r. Robert Philips with a message to the Lords to this effect He expressed the great care the Commons had upon all occasions to maintain all mutual respect and correspondency betwixt both Houses Then he informed them of a great injury done by the Earle of Suffolk to the whole house and to M r. Selden a particuler Member thereof who by their Command had been imployed in the late conference with their Lordships That the House was very sensible thereof and
his Majesty to hazard an end of such unspeakable consequence upon the admittance of this addition into our Petition whereof as we have shewed the omission at this time can by no means harm the Kings Prerogative the expression may produce manifold inconveniences and therefore since the admittance of your Lordships addition into our Petition is incoherent and incompatible with the body of the same since there is no necessary use of it for the saving of the Kings rerogative since the moderation of our Petition deserveth your Lordships cheerfull conjunction with us since this addition is unseasonable for the time and inconvenient in respect of the place where your Lordships would have it inserted and lastly may prove a disservice to his Majesty I conclude with a most affectionate prayer to your Lordships to joyn with the House of Commons in presenting this Petition unto his sacred Majesty as it is without this addition The KINGS speech in the Higher House at the meeting of both Houses 2. June 1628. Gentlemen I Am come hither to perform my duty and I think no man will think it long since I have not taken so many dayes in answering of the Petition as you have spent weeks in framing it and I am come hither to shew you that as well in formall things as in essential I desire to give you as much content as in me lies The Lord KEEPER in explanation of the same MY Lords and you the Knights Cittizens and Burgesses of the House of Commons his Majesty hath commanded me to say unto you that he takes it in good part that in consideration how to settle your own Liberty you have generally professed in both Houses that you have no intention for to lessen or diminish his Majesties Prerogative wherein as you have cleared your own intentions so his Majesty now comes to clear his and to strike a firm league with his people which is ever decreed to be most constant and perpetual when the conditions are equal and known to be so These cannot be in a more happy estate then when your Liberties shall be an ornament and strength to his Majesties Prerogative and his Prerogative a defence to your Liberties In this his Majesty doubts not but both you and he shall take a mutual comfort hereafter and for his part he is resolved to give an example in so using of his power as hereafter you shall have no cause to complain This is the summe of that which I am to say to you Here read your own Petition and his Majesties gracious answer The KINGS answer to the Petition of Right 2. June by the Lord KEEPER THe King willeth that Right be done according to the Laws and Customes of the Realm and that the Statutes be put in due execution that the Subject may have no cause to complain of any wrong or oppression contrary to their just Rights and Liberties to the preservation whereof he holds himself in conscience as well obliged as of his Prerogative Sir JOHN ELLIOTS Speech 3. June Mr. Speaker WE sit here as the great Councel of the King and in that capacitie it is our duty to take into consideration the State and affairs of the Kingdom and where there is occasion to give them in a true representation by way of council and advice with what we conceive necessary or expedient for them In this consideration I confess many a sadd thought hath affrighted me and that not onely in respect of our dangers from abroad which yet I know are great as they have been often in this place prest and dilated to us but in respect of our disorders here at home we do inforce those dangers and by which they are occasioned For I believe I shall make clear unto you that I oth at first the cause of these dangers were disorders and our disorders now are yet our greatest dangers and not so much the potency of our enemies as the weakness of our selves do threaten us and that saying of the Father may be assumed by us Non tam potentia sua quam negligentia nostra Our want of true devotion to heaven our insincerity and doubling in Religion our want of Councels our precipitate actions the sufficiency or unfaithfulness of our Generals abroad the corruptions of our Ministers at home the impoverishing of the Soveraign the oppression and depression the exhausting of our treasures waste of our provisions Consumption of our Ships destruction of Men This makes the advantage to our enemies not the reputation of their Arms. And if in these there be not reformation we need no Foes abroad time it self will ruine us To shew this more fully as I believe you will all hold it necessary that there seem not an aspertion on the State or imputation on the Government as I have known such mentions misinterpreted which far it is from me to propose that have none but clear thoughts of the Excellency of his Majestie nor can have other ends but the advancement of his glory I shall desire a little of your patience extraordinarily to open the particulars which I shall do with what brevity I may answerable to the importance of the cause and the necessity now upon us yet with such respect and observation to the time as I hope it shall not be troublesome For the first then our insincerity and dubling in Religon the greatest and most dangerous disordor of all others which hath never been unpunished and of which we have so many strong examples of all States and in all times to awe us What testimony doth it want will you have Authority os bookes look on the collection of the Committee for Religion there is too clear an evidence will you have Recors see then the Commission procured for composition with the Papists in the North Mark the proceedings thereupon you will finde them to little less amounting then a tolleration in effect thought upon some slight payments and the easiness in them will likewise shew the favour that 's intended Will you have proofs of men witness the hopes witness the presumptions witness the reports of all the Papists generally observe the dispositions of Commanders the trust of Officers the confidence of secrecies of imployments in this Kingdom in Ireland and elsewhere they all will shew it hath too great a certainty and unto this add but the incontrolable evidence of that all-powerfull hand which we have felt so sorely that gave it full assurance for as the Heavens oppose themselves to us for our impiety so it is we that first oppose the Heavens For the second our want of Councels that great disorder in State with which there cannot be stability if effects may shew their causes as they are after a perfect demonstration of them our misfortunes our disasters serve to prove it and the consequence they draw with them If reason be allowed in this dark age the judgment of dependencies and foresight of contingencies in affairs confirm it For if we view our selves
that howsoever we know your Majesty doth with your Soul abhoâ— that any such thing should be imagined or attempted yet there is â— general fear conceived in your people of some secret working and combination to introduce into this your Kingdom innovacion and change of our holy Religion more precious to us then our lives and what ever this World can affoard Our fears and jealousies herein are not meerly conjectural but arising out of such certain and visible effects as may demonstrate a true and real cause For notwithstanding the many good and wholsom Laws and provisions made to prevent the increase of Popery within this Kingdom and notwithstanding your Majesties gracious and satisfactorie answer to the Petition of both Houses in that behalf presented unto your Majestie at Oxford we finde there hath followed no good execution or effect but on the contrary at which your Majestie out of the quick sence of your own Religious heart cannot but be in the highest measure displeased those of that Religion do finde extraordinarie favours and respects in Court from Persons of great quality and power there unto whom they continually resort and in particuler to the Countess of Buckingham who her self openly professing that Religion is a known favourer and supporter of them that do the same which we well hoped upon your Majesties answer to the aforesaid Petition of Oxford should not have been permitted nor that any of your Majesties Subjects of that Religion or justly to be suspected should be entertained in the service of your Majesty or of your Royal consort the Queen some likewise of that Religion have had Honours Offices and places of Command and Authority lately conferred upon them But that which striketh the greatest terrour into the hearts of your Loyal Subjects concerning this point is That Letters of stay of Legal proceedings against them have been procured from your Majesty by what indirect means we know not and Commissions under the great Seal granted and executed for compositions to be made with Popish Recusants with inhibitions and restraints both to the Ecclesiastical and Temporal Courts and Officers to intermeddle with them which is conceived to amount to no less then a toleration odious to God full of dishonour and extream disprofit to your Majestie of great scandal and grief to your good people and of apparent danger to the present estate of your Majestie and of this Kingdom their numbers power and insolencies dayly increasing in all parts of your Kingdom and in special about London and the Suburbs thereof where exceeding many families of them do make their aboad and publickly frequent Mass at Denmark House and other places and by their often meetings and conferences have opportunities of combining their counsels and strength together to the hazard of your Majesties safety and the State and especially in these doubtfull and calamitous times And as our fear concerning change or subversion of Religion is grounded upon the dayly increase of Papists the open and professed enemies thereof for the reasons formerly mentioned so are the hearts of your good Subjects no less perplexed when with sorrow they behold a dayly growth and spreading of the faction of the Arminians that being as your Majestie well knows but a cunning way to bring in Popery and the professors of those opinions the common disturbers of the Protestant Churches and Incendiaries in those States wherein they have gotten any head being Protestants in shew but Jesuits in opinion and practise which caused your royall Father with so much pious wisedom and ardent zeal to endeavour the suppressing of them as well at home as in the neighbour Countries And your gratious Majestie imitating his most worthy example hath openly and by your proclamation declared your mislike of those persons and of their opinions who notwithstanding are much favoured and advanced not wanting friends even of the Clergy near to your Majestie namely Doctor Neal Bishop of Winchester and Doctor Lawd Bishop of Bath and Wells who are justly suspected to be unsound in their opinions that way And it being now generally held the way to preferment and promotion in the Church many Scholars do bend the course of their studies to maintain those Errors Their books and opinions are suffered to be printed and published and on the otherside the impression of such as are written against them and in defence of the Orthodoxall Religion is hindered and prohibited And which is a boldness almost incredible this restraint of Orthodox books is made under colour of your Majesties formerly mentioned proclamation the intent and meaning whereof we know was quite contrary And further to increase our fears concerning Innovation in Religion we finde that there hath been no small labouring to remove that which is the most powerfull means to strengthen and increase our own Religion and to oppose both these which is the diligent teaching and instructing the people in the true knowledge and worship of Almighty God and therefore means have been sought out to depress and discountenance pious painfull and Orthodox preachers and how conformable soever and peacefull in their disposition and carriage they be yet the preferment of such is opposed and insteed of being incourraged they are molested by vexatious courses and pursuites and hardly permitted to lecture even in those places where are no constant preaching Ministers whereby many of your good people whose souls in this case we beseech your Majestie to comiserate are kept in ignorance and are apt to be easily seduced to error and superstition It doth not a little also increase our dangers and fears this way to understand the miserable condition of your Kingdom of Ireland where without controul the Popish Religion is openly professed and practised in every part thereof Popish Jurisdiction being there generally exercised and avowed Monastries Numeries and other superstitious houses newly erected redified and replenished with men and women of several orders and in a plentifull manner maintained in Dublin and most of the great Towns and divers other places of the Kingdom which of what ill consequence it may prove if not seasonably exprest we leave to your Majesties wisedom to judge But most humblie beseech you as we assure our selves you will to lay the serious consideration thereof to your royal and pious â—eart and that some timelie course may be taked for redress therein And now if to all these your Majestie will be pleased to add the consideration of the circumstance of time wherein these courses tending to the destruction of true Religion within these your Kingdoms have been taken here even then when the same is with open force and violence prosecuted in other countries and all the reformed Churches of Christendom either depressed or miserably diâ—tressed we humblie appeal unto your Majesties Princely Judgment whether there be not just ground of fear that there is some secret and strong cooperating here with the enemies of our Religion abroad for the utter extirpation thereof And whether of these
to his Majesty in answer to two Messages sent by him Tuesday 3. SEcretary Cook reported that himself and the rest of the Committees attended his Majesty upon Munday and he said For my part I have used all diligence to do all the commands of my Master and this House and I find that some exceptions have been taken at some words by me used when I delivered the Bill of Tonnage and Poundage Indeed I used many Arguments in speaking of his Majesty I said it much concerned him and that his Majesty much desired it and I required it in his name which I did not intend but to avoide dispute and I said not this was an ordinary revenue but this Tonnage was the means to inable his Majesty to set his Fleet to sea After this Apology he read his Majesties answer to the Petition of the Lower-House Sir Iohn Elliot Mr. Speaker I confess this hath given great satisfaction for present desires and future hopes and howsoever I find the misinterpretation of some and the danger of Religion yet I find his Majesties ears open and if these things be thus as we see that then he is not rightly counselled I am confident we shall render his Majesty an account of what he expecteth but Sir I apprehend a difference between his Majesties expression and the expression of his Ministers First Sir that Bill was here tendered in his Majesties name and now we find his Majesty disavows it that he did it not What wrong is this done to his Majesty and to this House to press things in his Soveraigns name to the prejudice and distraction of us all I think him not worthy to sit in this House Mr. Speaker THis Honorable person did explain himself that he did not press it in his Majesties name but onely did commend it to your considerations Secretary Cook I Said that in regard of the difference between his Majestie and his Subjects my desire was to accommodate it Sir Humfrey May IF ye be too quick to except against the ministers of his Majestie that serve his Majestie and this House it will discourage and stop our mouthes whose service ye dayly commend At the Committee for Religion Sir Iohn Elliot FOr the way of our proceedings to shew the weight and unitie thereof to all the world we have laid a good foundation I collect out of the particulars about the Article of Lambeth that the difference was in the manner of the use of them but all did profess the truth and worth of them at which unitie in all our hearts we may all rejoyce whereas the enemie abroad gives out that we are at faction amongst our selves whereas all of us took them granted not onely to make use of them to oppose our adversaries but also for the worth of them Let us boldly relie on the ground alreadie laid let us look to them that offended us in this our truth which I hope we shall live and die in if there be cause Are there Arminians for so they are called look to this see what degree they creep let us observe their Books and Sermons let us strike at them and make our charge at them and vindicate our truth that seems yet obscure and if any justifie themselves in their new opinions let us deal with them and then testimonie will be needfull our truth is clear our proofs will be many and if these parties will dare to defend themselves then seek for proof The Remonstrance of the last Parliament was read in part about Arminians and also his Majesties Declaration printed with the book of Articles and the Proclamation against Mountague Wednesday Febr. 4. A Bill preferred that no Clergie-man shall be in Commission for Peace except Bishops Deans Vice-Chancellors of both Universities c. within their severall jurisdictions Doctor Reeves which sat as Judge upon the Conservation of Mr. Mountague called in and examined saith That Objections were offered Ore tenus and after offered in writing but he rejected the same because they had not an advocates hand and upon the whole saith he durst neither admit of any objections for the present nor give time for the same upon pain of premunire by the Statute Doctor Talbot and Doctor Steward are assigned for Councel with Mr. Iones the Printer in his Cause Mr. Selden THe point considerable is not whether Doctor Reeves hath done well or ill for he did but as any discreet man would have done but the point is now whether Mr. Mountague be a lawfull Bishop or no. Neither is the question to be debated whether the exceptions be lawfull or no but being legal of what force they be to hinder the confirmation of the Bishop All which is agreed and Doctor Reeves for the present discharged A Petition is preferred by Thomas Ogle against Doctor Cosens with Articles annexed thereunto tending to the introducing of Popish Doctrine and Popish Ceremonies into the Cathedral Church at Durham Sir Euball Thelwall THere were two affidavits that Cosens should say That the King had no more to do with Religion then his Horse-keeper and that by the appointment of Mr. Attorney these affidavits were taken and he said to the end a Bill in Star-chamber might be filed against him But since Cosens hath his pardon and the King was told it was onely raised by the spleen of some Puritane Mr. Shervile DEsired that search might be made for the pardons There were four pardons under the Great Seal granted to Mountague Sibthorpe Cosens and Manwering it pardons all Treasons Premunires Errors erronious Opinions and all false Doctrines scandalous Speeches or Books and all offences by word and deed all corrupt contracts c. Treason to the person of the King and Witchcraft onely excepted Mr. Rousse HEre are four persons that have made the Common-wealth sick thus by the Phisick you see the Diseases but I conceive there is other physick to be ministered to those rotten Members for questionless this is not to be cured but by cutting off those Members Mr. Kirton MAster Kirton moved that the procurers of these Pardons might be enquired after that it might be seen who gave order to the Signet for the going forth of those Pardons for questionless there are Cosens at Court too Sir Robert Philips IF ever any was abused it was our King in granting those pardons we would save the time of doing any thing if this be not searched to the bottom The goodness of our King is much abused I desire the Attorney may give account by what Warrant he drew these pardons so shall we find out those that misled the King to the heart-grief of us all It is high time to find out all these things A Committee was hereupon named to enquire who have been the Solicitors and Procurers of these pardons Sir Edward Giles I Know not what prevention may happen in these for questionless the devil of hell hath his hand in it Therefore presently let us send for Mr. Attorney Which was Ordered Sir
In this the Councel said it will not extend to make him a Bishop upon the point of Election but upon the point of Confirmation onely which maketh him punishable if he execute any thing concerning the Bishoprick Sir Hen. Martin saith The exception making void the Confirmation doth in Law work also upon the Election Doctor Steward saith The point of setting to of the Advocates hand is but matter of Form in the Court no matter of Law Sir Henry Martin saith he will endeavour himself to give the House as full satisfaction and he will speak without relation to the Kings Right and Laws of the Realm The Proclamation by the Common Law should not be at Bow Church but at the Cathedral Church of the Diocess where the Bishop is to be elected and the Dean and Charter of that Diocess is to except and not every one that will The Argument is endless and to alter a course so long settled I conceive it is plain the King and the Law have power to deprive him of his Bishopprick if he deserves the same I think therefore it were good to decline this dispute for the present and to proceed to remove him which we are allowed Tuseday 10. A Bill for Ordering the Government and Plantation of the Summer Islands A Bill to restrain some abuses in Ministers and Magistrates Mr. Rowles complaineth that since his last complaint of the breach of the liberties of this House his Ware-house hath been locked up by one Massey a Pursevant and that yesterday he was called forth from the Committee in the Exchequer-chamber and served with a Subpena to appear in Star-chamber but that since he received a Letter from Mr. Attorney that it was a mistake The Subpena was read but the Letter not suffered to be read Sir Robert Phillips YOu see we are made the Subject to scorn and contempt I conceive this to be a bone thrown by those that have drawn a cloud over our sun our Religion to divert or interrupt us in the prosecution of them I desire the Messenger may be sent for and examined by what procurement this Subpena was taken forth for if we find not out those that throw these scorns upon us it is in vain to sit here Mr. Chancellor of the Dutchie THis proceeds from some great error for I will assure you this never proceeded from King nor Councel I therefore desire it may be searched to the bottom for be confident neither King nor Councel have cast in this as a bone Mr. Selden THis is not to be reckoned an Error for questionless this is to affront us and our own Liberties is the cause of this It is Ordered that Shemington the Messenger that served the Subpena be presently sent for to the House A Committee of six are appointed to see the information in Star-chamber and to examin the same and by whom the same was put in and they have power to sent for persons or records that may inform them A general Order agreed on That all the Committees that have power to send for parties shall have power to command any of them as they shall think fit to attend the House at such times as they shall think fit The priviledge of the Merchants that are Planters here may be taken into consideration by this Committee concerning the information in Star-chamber Sheriff Acton called into the Barre as a Delinquent upon his knees saith if he have erred it is through want of memorie and ignorance for he intended not the least dislike or distaste to any Member of the House Mr. Long moved he might be sent to the Tower Sir Francis Seymour THat he may now be referred back to the Committee to be re-examined if then he deal not clearly this House may proceed to further punishment Mr. Selden I Cannot remember when we did commit a Sheriff of London but I remember when the House did commit both the Sheriffs of London to the Tower for an abuse of less nature onely for countenancing of a Serjeant in an Arrest on a Member of Parliament though they did acknowledge their faults at the Barre which this man hath not yet done the Serjeant was sent to Little-ease the person at whose suit he was Arrested was committed to the Fleet and both the Sheriffs to the Tower Mr. Kirton I Came into this House with as good an heart to this man as any man for I was spoken to to stand for him as I came in and I promised to do what favour I could but if he were my brother he should to the Tower Mr. Littleton YOu see the affronts by books by preaching by rumors by being dayly sued with Proces that are put upon us that we are become but a meer Scare-crow the neglect of our dutie is the cause of this it is high time to remedie this or it is in vain to sit here The Sheriff is again called in to the Barre on his knees and is sentenced to the Tower Sir Ben. Ruddiard THere be diverse Recantations Submissions and Sentences remaining on Record in both Universities against Arminianisme that concerning any thing that may conduce to our end the Speakers Letter may be sent to the Vicechancellor for those Records which is Ordered It is Ordered that Worsnam Daws and â—armarthen are to be at the Barre upon Fryday Wednesday 11. MAster Selden reported concerning the Process of the Merchants the Coppie of the Bill brought in and read that the Merchants did Plot Practice and Combine together against the peace of the Kingdom This being conceived to be a business incident to Tonnage and Poundage is Ordered to be referred till to Morrow morning Mr. Selden THat a Report shall be made to morrow of the Examination of the Complaints of the Merchants and the information in the Exchequer may also be brought which was also Ordered Ordered That in respect the Term ends to Morrow and the Assizes is to follow and diverse Members Lawyers may be gone down it is Ordered that none shall be gone without leave of the House It is alsâ— Ordered That the Speakers Letter be sent for Sir Edward Cook At the Committee for Religion MAster Walter delivered a Petition of the Book-sellers and Printers in complaint of the restraint of books written against Poperie and Arminianisme and the contrarie allowed of by the onely means of the Bishop of London that diverse of them have been so Pursevanted for printing of Orthodox books that the licensing of books is now onely restrained to the Bishop of London and his Chaplains One of the Printers said he tendred diverse books one called The golden Spur to the heavenly Race That Turner one of the Bishop of Londons Chaplains said That if he would put out the point That a man may be certain of his Salvation he would license the same notwithstanding he put out that point yet he could not get the same licensed Mr. Selden The refusing the Licensing of books is no crime but the