ticklish point Therefore he was committed to the custody of the Marshal and all the other Prisoners were remanded to the Tower because they would not find sureties for the good behaviour Accordingly the same Term an Information was exhibited by the Atturney General against Sir Iohn Elliot Denzil Holles Sir Benjamin Valentine reciting That a Parliament was summoned to be held at Westminster 17 Martii tertio Caroli Regis ibid. inchoat and that Sir Iohn Elliot was duly elected and returned Knight for the County of Cornwal and the other two Burgesses of Parliament for other places and Sir Iohn Finch chosen Speaker That Sir John Elliot machinans intendens omnibus viis modis seminare excitare discord evil will murmurings and seditions as well versus Regem Magnates Praelatos Proceres Justiciarios suos quam inter Magnates Proceres Justiciarios reliquos Subditos Regis totaliter deprivare avertere regimen gubernationem Regni Angliae tam in Domino Rege quam in Conciliariis Ministris suis cujuscunque generis introducere tumultum confusionem in all Estates and parts ad intentionem That all the Kings Subjects should withdraw their affections from the King The 23 of February Ann. 4 Carol. in the Parliament and hearing of the Commons falso malitiose seditiose used these words The Kings Privy Council his Judges and his Counsel learned have conspired together to trample under their feet the Liberties of the Subjects of this Realm and the Liberties of this House And afterwards upon the 2 of March Ann. 4. aforesaid the King appointed the Parliament to be adjourned until the 10 of March next following and so signified his pleasure to the House of Commons and that the three Defendants the said 2 day of March 4 Car. malitiose agreed and amongst themselves conspired to disturb and distract the Commons that they should not adjourn themselves according to the Kings pleasure before signified And that the said Sir Iohn Elliot according to the agreement and conspiracy aforesaid had maliciously in propositum intentionem praedict in the House of Commons aforesaid spoken these false malicious pernitious and seditious words precedent c. And that the said Denzil Holles according to the agreement and conspiracy aforesaid between him and the other Defendants then and there falso malitiose seditiose uttered haec falsa malitiosa scandalosa verba precedentia c. And that the said Denzil Holles Benjamin Valentine secundum agreamentum conspirationem praedict ad intentionem propositum praedict uttered the said words upon the said 2 of March after the signifying the Kings pleasure to adjourn and the said Sir John Finch the Speaker endeavoring to get out of the chair according to the Kings command They vi armis manu forti illicito assaulted evil entreated and forcibly detayned him in the chair and afterwards he being out of the chair they assaulted him in the House and evil entreated him violenter manu forti illicito drew him to the chair and thrust him into it whereupon there was great tumult and commotion in the House to the great terror of the Commons there assembled against their Allegeance in maximum contemptum and to the disherison of the King his Crown and Dignity for which c. To this Information the Defendants put in a Plea to the jurisdiction of the Court Forasmuch as these offences are supposed to have been done in Parliament they ought not to be punished in this Court or any other except in Parliament And the Atturney General moved the Court to over-rule the Plea as to the jurisdiction of the Court and this he said the Court might do although he did not demur upon the Plea But the Court would not over-rule the Plea but gave a day to joyn in demurr that Term. And on the first day of the next Term the Record to be read and within a day after argued at the Bar. In Hilary Term following the Case of Walter Longe Esquire one of the imprisoned Gentlemen came to hearing in the Star-Chamber which was as followeth An Information was exhibited into the Star-Chamber by SIR Robert Heath Knight his Majesties Atturney General Plaintiff against the said Walter Longe Defendant for a great and presumptuous Contempt against his Majesty for breach of duty and trust of his Office and for manifest and wilful breach of his Oath taken as high Sheriff of the County of Wilts and not residing and dwelling in his own person in the said County according to the said Oath but being chosen one of the Citizens for the City of Bath in the County of Somerset to serve for the said City in the last Parliament by colour thereof he remained at London or Westminster during the time of that Parliament by the space of three months and above in neglect of his Duty and in manifest contempt of the Laws of this kingdom which cause was now by his Majesties said Atturney General brought to hearing upon the Defendents own confession And upon opening the answer and reading the examination of the said Defendant it appeared to this Court That the said Defendant Long was by his now Majesty made high Sheriff of the County of Wilts in or about November in the third year of his Majesties reign and received his Patent of Sheriffwick for the said County about ten days after and that he took an Oath before one of the Masters of the Chancery for the due execution of the said Office of Sheriff of the said County In which Oath as appear'd by the same there read in Court he did swear that he would in his own person remain within his Bayliffwick during all the time of his Sheriffwick unless he had the King license to the contrary and that at an Election of Citizens for the said City of Bath the said Defendant Longe was chosen one of the Citizens to serve for the said City of Bath in the Parliament then summoned to be holden and commence upon the seventeenth day of March in the said third year of his Majesties reign and being so chosen and returned by the Sheriff of the Countie of Somerset notwithstanding his said Oath taken to remain in his proper person within his Bayliffwick unless he were licensed by his Majestie he the said Defendant did make his personal appearance in the Commons house of Parliament at the City of Westminster in the County of Middlesex and did during the most part of the said Parliament continue in and about the City of London and Westminster and did attend in the Parliament as a Citizen for the said City of Bath during all which time he likewise was and continued high Sheriff for the said County of Wilts and had no particular license from his Majesty to the contrary Upon consideration whereof as also of the the particular causes and reasons of the Defendants Demurrer and Plea formerly exhibited
unto the said Information the benefit whereof was by order of the Court reserved unto the Defendant to be debated and considered of at the hearing of this cause and of divers other matters now urged for the Defendant both to have justified his the said Defendants attendance in Parliament and his not residence in person in the County whereof he was then Sheriff and amongst other things that it properly belonged to the house of Parliament to judge of the justness or unjustness of the said Election and upon grave and mature consideration thereof had and taken by the Court their Lordships did not onely conceive the said Demurrer and Plea and other the Arguments and Reasons used by the Defendant and his Council to be of no weight or strength but also to be in opposition and derogation of the Jurisdiction of the Court the reasons moved and urged for the Defendants excuse or justification being clearly answered and the charges of the Information made good by Mr. Atturney General and others of his Majesties Counsel learned And therefore the whole Court were clear of opinion and did so declare That the said Defendant who at that time as high Sheriff had the custody and charge of the County of Wilts committed unto him by his Majesty and had taken his Oath according to the Law to abide in his proper person within his Bayliffwick during all the time of his Sheriffwick as aforesaid and whose trust and imployment did require his personal attendance in the said Countie had not onely committed a great offence in violating the said Oath so by him taken but also a great misdemeanor in breach of the trust committed unto him by his Majesty and in contempt of his Majesties pleasure signified unto him by and under his Highness great Seal when he granted unto him the said Office of Sheriffwick aforesaid For which said several great Offences in breach of his said Oath neglect of the trust and duty of his Office and the great and high contempt of his Majesty their Lordships did hold the said Defendant worthy the sentence of the Court the rather to the end that by this example the Sheriffs of all other Counties may be deterred from committing the like offences hereafter and may take notice that their personal residence and attendance is required within their Bayliffwicks during the time of their Sheriffwick The Court therefore thought fit ordered adjudged and decreed That the said Defendant should stand and be committed to the prison of the Tower there to remain during his Majesties pleasure and also pay a Fine of two thousand Marks to his Majesties use and further make his humble submission and acknowledgement of his offence both in the Court of Star-Chamber and to his Majesty before his thence enlargment The same Term Mr. Mason argued in the kings Bench for Sir Iohn Elliot against the Information preferred against him amongst others by Sir Robert Heath the kings Atturney General and the same day the Atturney General argued in maintenance of the said Information the Judges also the same day spake briefly to the Case and agreed with one Voyce That the Court as this Case is shall have Jurisdiction although that these offences were committed in Parliament and that the imprisoned Members ought to answer Iones began and said That though this Question be now newly moved yet it is an ancient Question with him for it had been in his thoughts these eighteen yeers For this Information there are three Questions in it 1. Whether the matters informed be true or false and this ought to be determined by Iury or Demurrer 2. When the matters of the Information are found or confessed to be true if the Information be good in substance 3. Admit that the offences are truly charged if this Court hath power to punish them and that is the sole Question of this day And it seems to me that of these offences although committed in Parliament this Court shall have jurisdiction to punish them The Plea of the Defendents here to the jurisdiction being concluded with a Demurrer is not peremptory unto them although it be adjudged against them but if the Plea be pleaded to the jurisdiction which is found against the Defendant by verdict this is peremptory In the discussion of this point I decline these Questions 1. If the matter be voted in Parliament when it is finished it can be punished and examined in another Court 2. If the matter be commenced in Parliament and that ended if afterward it may be Questioned in another Court I question not these Matters but I hold That an Offence committed criminally in Parliament may be questioned elsewhere as in this Court and that for these Reasons First Quia interest Reipublicae ut malesicia non maneant impunita and there ought to be a fresh punishment of them Parliaments are called at the Kings pleasure and the King is not compellible to call his Parliament and if before the next Parliament the party offending or the witnesses die then there will be a â—ayler of Justice Secondly The Parliament is no constant Court every Parliament mostly consists of several men and by consequence they cannot take notice of matters done in the foregoing Parliament and there they do not examine by oath unless it be in Chancery as it is used of late time Thirdly The Parliament cannot send Process to make the offenders to appear at the next Parliament and being at large if they hear a noise of a Parliament they will fugam facere and so prevent their punishment Fourthly Put the case that one of the Defendants be made a Baron of Parliament now he cannot be punished in the House of Commons and so he shall be unpunished It hath been objected That the Parliament is the Superior Court to this therefore this Court cannot examine their proceedings To this I say That this Court of the Kings Bench is a higher Court then the Justices of Oyer and Terminer or the Justices of Assize But if an offence be done where the Kings Bench is after it is removed this offence may be examined by the Justices of Oyer and Terminer or by the Justices of Assize We cannot Question the Judgments of Parliaments but their particular offences 2. Obj. It is a Priviledge of Parliament whereof we are not competent Iudges To this I say That Privilegium est privata lex privat legem And this ought to be by grant prescription in Parliament and then it ought to be pleaded for the manner as is 33 Hen. 8 Dy. as it is not here pleaded Also we are Judges of all Acts of Parliament as 4 Hen. 7. Ordinance made by the King and Commons is not good and we are Judges what shall be said a Session of Parliament as it is in Plowden in Patridges Case We are Judges of their lives and lands therefore of their Liberties And 8 Eliz. which was cited by Mr. Atturney it was the opinion of Dyer Oatlyn Welsh Brown
and Southcot Justices That offences committed in Parliament may be punished out of Parliament And 3 Ed. 3.19 it is good Law And it is usual neer the end of Parliaments to set some petty punishment upon offenders in Parliament to prevent other Courts And I have seen a Roll in this Court in 6 H. 6. where judgment was given in a writ of annuity in Ireland and afterwards the said judgment was reversed in Parliament in Ireland upon which judgment Writ of Error was brought in this Court and reversed Hide Chief Justice to the same intent No new matter hath been offered to us now by them that argue for the Defendants but the same Reasons and Authorities in substance which were objected before all the Justices of England and Barons of the Exchequer at Sergeants-Inn in Fleet-street upon an Information in the Star-Chamber for the same matter At which time after great deliberation it was resolved by all of them That an offence committed in Parliament that being ended may be punished out of Parliament And no Court more apt for that purpose then this Court in which we are and it cannot be punished in a future Parliament because it cannot take notice of matters done in a foregoing Parliament As to that that was said That an Inferiour Court cannot meddle with matters done in a Superior True it is That an Inferior Court cannot meddle with judgments of a Superior Court but if the particular members of a Superiour Court offend they are oft-times punishable in an Inferior Court As if a Judg shall commit a capital offence in this Court he may be arraigned thereof at Newgate 3 E. 3.19 and 1 Mar. which have been cited over-rule this case Therefore Whitlock accordingly 1. I say in this Case Nihil dictum quod non dictum prius 2. That all the Judges of England have resolved this very point 3. That now we are but upon the brink and skirts of the Cause for it is not now in Question if these be offences or no or if true or false but only if this Court have jurisdiction But it hath been objected That the offence is not capital therefore it is not examinable in this Court But though it be not capital yet it is criminal for it is sowing of sedition to the destruction of the Commonwealth The Question now is not between us that are Judges of this Court and the Parliament or between the King and the Parliament but between some private Members of the House of Commons and the King himself for here the King himself questions them for those offences as well he may In every Commonwealth there is one supereminent Power which is not subject to be questioned by any other and that is the King in this Commonwealth who as Bracton saith solum Deum habet ultorem But no other within the Realm hath this Priviledge It is true that that which is done in Parliament by consent of all the house shall not be questioned elsewhere but if any private Members exuunt personas judicum induunt malefacientium personas sunt seditiosi is there such Sanctimony in the place that they may not be questioned for it elsewhere The Bishop of Ross as the Case hath been put being Embassadour here practised matters against the State And it was resolved That although Legatus sit Rex in alieno solo yet when he goes out of the bounds of his Office and complots with Traytors in this Kingdom that he shall be punished as an offender here A Minister hath a great Priviledge when he is in the Pulpit but yet if in the Pulpit he utter speeches which are scandalous to the State he is punishable so in this Case when a Burgess of Parliament becomes mutinous he shall not have the Priviledge of Parliament In my opinion the Realm cannot consist without Parliaments but the behaviour of Parliament-men ought to be Parliamentary No outragious speeches were ever used against a great Minister of State in Parliament which have not been punished If a Judge of this Court utter scandalous speeches to the State he may be questioned for them before Commissioners of Oyer and Terminer because this is no judicial act of the Court. But it hath been objected That we cannot examine Acts done by a higher Power To this I put this Case When a Peer of the Realm is arraigned of Treason we are not his Judges but the high Steward and he shall be tryed by his Peers But if errour be committed in this proceeding that shall be reversed by errour in this Court for that which we do is Coram ipso Rege It hath been objected That the Parliament-Law differs from the Law by which we judge in this Court in sundry Cases And for the instance which hath been made That by the Statute none ought to be chosen Burgesse of a Town in which he doth not inhabit but that the usage of Parliament is contrary But if Information be brought upon the said Statute against such a Burgess I think that the Statute is a good warrant for us to give judgement against him And it hath been objected That there is no President in this matter But there are sundry Presidents by which it appears that the Parliament hath transmitted matters to this Court as 2 R. 2. there being a question between a great Peer and a Bishop it was transmitted to this Court being for matter of behaviour and although the Judges of this Court are but inferiour men yet the Court is higher for it appears by the 11 Eliz. Dy. That the Earl Marshal of England is an Officer of this Court and it is always admitted in Parliament That the priviledges of Parliament hold not in three Cases to wit in case of Treason secondly in case of Felony and in suit for the peace and the last is our very case Therefore c. Crook argued to the same intent but I did not well hear him he said That these offences ought to be punished in the Court or no where and all manner off offences which are against the Crown are examinable in this Court It hath been objected That by this means none will adventure to make his complaints in Parliament That is not so for he may complain in a Parliamentary course but not falsely and unlawfully as here is pretended for that which is unlawfully cannot be in a Parliamentary course It hath been objected That the Parliament is a higher Court then this is And it is true But every Member of Parliament is not a Court and if he commit offence he is punishable here Our Court is a Court of high jurisdiction it cannot take cognizance of real Pleas but if a real Plea comes by Error in this Court it shall never be transmitted But this Court may award a grand Cape and other Process usual in real Actions But of all capital and criminal causes we are originally competent Judges and by consequence of this matter But I am not
of Magna Charta is That no free-man be imprisoned but by the Law of the Land And it appears by these Books that it is against the Law of the Land that the King should imprison any one 2. Admit that this be onely a signification and notification given by the King himself of the commitment of the prisoner yet it seems that that signification is of no force 1. Because the words are general uncertain for notable contempts There are in the Law many contempts of severall natures there are contempts against the Common law against the Statute-law contempts in words gestures or actions And it appears not to the Court of what nature these contempts were Notable Every contempt which is made to the King is notable Against Our Government Contempt which is committed in a Court of Record or Chancery is a contempt against the Government of the King to wit because they disobey the King when he commands them by his Writs C. 8. 60. a. Beechers case The last two words of the Return are For stirring up of sedition against Us which words likewise are indefinite and generall I find not the word Sedition in our Books but taken adjectively as seditious books seditious newes c. in the Statute of 1 st and 2 d. of Phil. and Mary cap. 3. the words are If any person shall be convicted c. for speaking c. any false seditious or slanderous newes saying of the tayles of the Queen c. he shall lose his ears or pay 100 l. There the penalty imposed upon such Sedition is but a Fine C. 4. Lord Cromwell's case 13. where Sedition is defined to be seorsum itio when a man takes a course of his own And there it is said that the words maintain sedition against the Queen's proceedings shall be expounded according to the coherence of all the words and the intent of the parties So that it is plain that there is a sedition that is onely finable and which is no cause of imprisonment without bail And what the sedition is that is here intended cannot be gathered out of the words they are so generall against Us those words are redundant for every sedition is against the King Upon the generality and incertainty of all the words in the Return he put these cases 18. E. 3. A man was indicted quia furatus est equum and doth not say Felonic and therefore ill 29. ass 45. A man was indicted that he was communis latro and the indictment held vitious because too generall So here the offences are returned generally But there ought to be something individuall C. 5.57 Specot's case quia schismaticus inveteratus is no good cause for the Bishop to refuse a Clerk for it is too generall and there are schisms divers kinds 38. E. 3.2 Because the Clerk is criminosus it is no good cause for the Bishop to refuse him 8 and 9 Eliz. Dy. 254. The Bishop of N. refuseth one because he was a haunter of Taverns c. for which and divers other crimes he was unfit held that the last words are too generall and incertain 40. E. 3.6 In the tender of a marriage and refusall of the heir he ought to alledge a certain cause of refusall Whereupon issue may be taken C. 8.68 Trollop's case to say That the Plantiff is excommunicated for divers contumacies shall not disable him without shewing some cause in speciall of the excommunication upon which the Court may judge whether it were just or no. So here And he concluded with a case that was resolved Hill 33 Eliz. Peak and Paul the Defendants said of the Pantiff Thou art a mutinous and seditious man and maintains sedition against the Queen and the words adjudged not actionable Mason of Lincolns-Inne of Counsell with Mr. Long moved also that the Return was insufficient For the first Warrant that he was committed by command of the King signified by the Privy Councill I will not argue that because it was claimed as an antient right pertaining to the Subject in the Petition of Right whereto the King himself hath given his consent For the second Warrant the Return is for stirring up sedition against Us and Our Government Sedition is not any determined offence within our Law our Law gives definitions or descriptions of other offences to wit of Treason Murder Felony c. but there is no crime in our Law called Sedition It is defined by a Civilian to be Seditio or Secessio cum pars reipublicae contra partem infurgit so that sedition is nothing but division Braeton and Glanvill have the word Seditio generally Before the Statute of 25 E. 3. chap. 2. it was not clear enough what thing was Treason what not by which Statute it is declared what shall be said Treason and that the Iudges shall not declare any thing to be Treason that is not contained within the said Statute but it shall be declared onely by Parliament And that Statute speaks not of Sedition nor the Statute of 1 H. 4. chap. 10. which makes some things Treason which are not contained within the said Statute of 25 E. 3. The Statute of 1 E. 6. chap. 12. takes away all intervenient Statutes which declared new Treasons and the said Act declares other things to be Treason but mentions not Sedition Sedition is the quality of an offence and is oftentimes taken Adverbially or Adjectively To raise tumults or trespasses is sedition Tim. 2. E. 3. rot 23. Garbart's case A man was indicted because in the high street he took I. S. there being in hostile manner and usurped over him royall power which is manifest sedition and there it was but an indictment of trespasse Mich. 20. E. 1. rot 27. One that was surveyor of the Wood-work for the King was indicted for stealing of timber and detaining wages ridding Carpenters wages by one that was but a boy and this is there tearmed Sedition and yet it was but a petty Fellony Mich. 42. E. 3. rot 65. B. R. R. Pope was appealed by the wife of I. S. because he feloniously and seditiously murdered I. S. and seditiously was there put in because it was done privily By which cases it appears that sedition is not taken as a Substantive so that it may be applyed to treason trespasse or other offences By the Statute of 2 H. 4. chap. 15. there is punishment inflicted for the raising of seditious doctrine and yet no punishment could have been inflicted for it untill the said Statute yet it was seditious as well before the said Statute as after And this appears also by the Statute of 1 and 2 of Phil. and Mar. chap. 3. which hath been cited The Statute 13 Eliz. chap. 2. reciâ—es that divers seditious and evill disposed persons c. obtained Bulls of reconciliation from the Pope which offence was made treason by the said Statute for it was not before and yet there was sedition and by the saâ— Statute the aiders and abettors
that it is but a Finable offence yet by the said Statute those which are imprisoned for open and notorious naughtinesse shall not be bayled the same naughtinesse is there intended high and exorbitant offence 2. It is fit to restrain the prisoners of their liberty that the Common-wealth be not damnifâ—ed It is lawfull to pull down a house to prevent the spreading mischief of fire it is lawfull to restrain a furious man And by the 14 H. 7. a Iustice of peace may restrain one rout Then the restraint of dangerous men to the Common-wealth is justifiable and necessary 24 E. 3.33 p. 25. Sir Thomas Figet went armed in the Palace which was shewed to the Kings Councell wherefore he was taken and disarmed before the chief Iustice shard and committed to the prison and he could not be bayled till the King sent his pleasure and yet it was shewed that the Lord of T. threatned him Out of which case I observe two things First that the Iudge of this Court did cause a man to be apprehended upon complaint made to the Council that is to the Lords of the Privy Council 2. That although he did nothing he is not mayn-pernable untill the King sent his pleasure because he was armed and furiously disposed So here UUherefore I pray that the Prisoners may be sent back again Davenport argued to the same intent and purpose and therefore I will report his Argument briefly 1. He said That the Return here is sufficient The Counsell on the other side have made fractions of this Return and divided it into severall parts whereas the genuine construction ought to have been made upon the entire Return for no violence ought to be offered to the Text. 7 E. 4.20 In false imprisonment the Defendant did iustifie and alledged severall reasons of his justification to wit because a man was killed and that this was in the County of S. and that the common voice and fame was that the Plaintiff was culpable And this was held a good plea although Bryan did there object That the plea was double or treble and the reason was because twenty causes of suspition make but one entire cause and indivisible unity in this ought not to be divided So C. 8.66 Crogates In an action of trespasse the Defendant justifies for severall causes and held good because upon the matter all of them make but one cause C. 8.117 It is said That it is an unjust thing unlesse the whole Law be looked into to judge and answer by propounding any one particular thereof and if it be unjust in the exposition of a Law it is uncivill in a Return to make fractions of it in the construction thereof especially it being a Return for Information and not for Accusation 2. Although the Counsell on the other side have taken this case to be within the Petition of Right yet this is Petitio principii to take that for granted which is the question in debate He said That he would not offer violence to the Petition of Right to which the King had assented and which shall really be performed But the question here is Whether this Return be within it and the Iudges are keepers not masters of this pledge and it seems that this Return is out of the letter and meaning of the said Statute 3. He said That this was the actuall commitment of the Lords of the Privy Councill and the habituall or virtuall commitment of the King But because upon these two matters he put no case nor gave any reason but what had been put or given in the Argument of the grand Habeas corpus Mich. 3 Caroli and afterwards in the House of Commons which was reported to the Lords in the painted Chamber all which Arguments I heard I have here omitted them And for the great respect which the Law gives to the commands of the King he put these cases 7 H. 3. Attachment of waste against the Tenant in Dower and the waste was assigned in the taking of fish out of a pond and the carrying them away The Defendant pleaded That her second husband by the command of the Lord the King took all the fish out of the said pond to the use of the Lord the King and held a good justification which proves that the command of the King there to her husband excused her of the said waste And yet it is clear that Tenant in Dower is liable to an action of waste for waste done in the time of her second husband But contrary is it where a woman is Tenant for life and took a husband who made waste and dyed no action lies against the wife for that waste And F. N. B. 17. A. If the Tenant in precipe at the grand cape makes default the King may send a UUrit to the Iustices rehearsing that he was in his service c. commanding them that that default be not prejudiciall to him and this command of the King excuseth his default be the cause true or no. 4. For the particulars of the Return it is for notable contempts against the Government But as to that it hath been said that the King hath sundry governments to wit Ecclesiasticall Politicall c. and it is not shewn against which of them This is but a cavilling exception they might as well have excepted to this Return because it is not shewen that these contempts were after the last generall Pardon that had been a better exception The last words of the Return are raising sedition against Us But as to this it hath been said That Seditio is not a word known in the Law and is alwaies taken either Adverbially or Adjectively and is not a Substantive To this he said That although it is not a Substantive for the preservation yet it is a Substantive for the destruction of a Kingdom And he said that he found the word Seditio in the Law and the consequent of it likewise which is seductio populi But it is not ever found to be taken in a good sense it is alwaies ranked and coupled with treason rebellion insurrection or such like as it appears by all those Statutes which have been remembred on the other side Therefore he prayed likewise that the Prisoners might be sent back Trin. 5 Car. B. R. THe first day of the Term upon Habeas Corpus to Sir Allen Apsley the Lieutenant of the Tower to bring here the body of John Selden Esq with the cause of detention He returned the same cause as above and Littleton of Counsell with him moved that the Return was insufficient in substance therefore he prayed that he might be bayled It is true that it is of great consequence both to the Crown of the King and to the liberty of the Subject But under favour for the difficulty of Law contained in it the case cannot be said Grand In my Argument I will offer nothing to the Court but that which I have seen with these eyes and that which
real from things fictitious or imaginary Whereof I shall not at all repent if I may but prove an ordinary Instrument to undeceive those that come after us If you demand why my Collections commence so early and start at such a distance of time so remote I must answer That it was at first in my purpose to begin with the Parliament which met Nov. 3. 1640. But after I had perused ordered and compared my Printed and Manuscript-Relations of the First Year of that Parliament I found they pointed at and were bottomed upon some Actions of the late King in dissolving four preceding Parliaments And thereupon the zeal I had to clear the truth of the Differences between the King and Parliament forced me to a longer Adventure especially seeing the Essay had been very imperfect and but a meer fragment if I had only writ the Death and not the Life of a Prince who in the first Speech that ever he made in his first Parliament did reflect upon some passages in a former Parliament that advised his Father to break off the two Treaties with Spain touching a Marriage and Restitution of the Palatinate and so engaged the Father in a War which the Son was by him left to prosecute And this Consideration put me upon a further enquiry concerning the aforesaid Treaties the causes and grounds of the War in the Palatinate and how far the same concerned England and the oppressed Protestants in Germany And finding those proceedings to have their rise in the Year 1618. in which Year the Blazing-Star appeared I resolved that very Instant should be the Ne plus ultra of my Retrospect I allow and accept it as a good Memento which I meet with in a late Author That most Writers now adays appear in Publique not crook-backed as it is reported of the Iews but crook-sided warped and bowed to the right or to the left For I have heartily studied to declare my self unbiassed and to give an instance That it is possible for an Ingenuous man to be of a Party and yet not partial If any one engaged on the King's side come forth in Print with the like moderation fairness and indifferencie without heat and personal reflections our Posterity may be confident of a full discovery of Truth which is every honest mans desire and expectation And besides the Vertues and Reasons of men concerned may shine and give satisfaction even to those who are not of the same Judgment I pretend onely in this Work to a bare Narrative of matter of Fact digested in order of time not interposing my own Opinion or interpretation of Actions I infuse neither vinegar nor gall into my Ink If I mention a Charge or Impeachment it relates also to the Defence that was made by the Accused And though in these latter times Titles Names and Dignities are altered yet I use the Language of that Time of which I write speaking as the then Parliaments spake and not robbing any man of the Honor or Epithite which they then pleased to give him If I speak of any transactions which I my self did not see or hear I do so with all the caution imaginable having first consulted Records conferred with Persons of unquestionable esteem interessed in the very actions or perused their known hand-writings of those times and where I make mention of any Letters or Passages scattered in print I first well weighed the same and out of whose Closets they came and found many of them concredited before I inserted them And lastly where I doubted I perfected my Intelligence by Forein correspondencies fetching my satisfaction in divers particulars out of Germany Spain and Italy Here you will have an intermixture of Secrets of State useful for States-men and of matters of Law which may be of some use not only to the Professors of it but to every Englishman for though few profess the Law yet all live by it for it hedges in and upholds the Rights Liberties and Properties The matters of Law are not all bound up in one bundle but you will finde them dispersed in interlocutory Speeches and Discourses some of them in Historical Narrations and lastly in Polemical Debates and Arguments taken by a Gentleman then a young Student of the Law which you will finde in an Appendix placed at the end of the Book and I hope the Reader will not think his minutes ill bestowed in reading of them though out of place A great part of the Work is filled up with remarkable Transactions in Parliament and the Course and Proceedings thereof wherein you will finde not onely great wit and wisdom but choice Eloquence and excellent Orators Diggs Wentworth Phillips Elliot Glanvile and others not much inferior to the Roman Demagogue I durst not presume to contract them to an Epitomie or Abridgement lest by essaying that I might trespass too much upon the Soil of other mens Inventions and Judgements or prejudice Truth or the Persons whose natural Off-springs they are Here you have Debates Siftings and Consultations of each House apart and also by Conferences each with other Alterius sic Altera poscit opem Domus consultat amicè and Resolutions of Parliaments and some Laws which were the ultimate productions of these Councels and Debates I have but a word to say to my good and worthy Friends of the Army and it must be by way of Apology that this Treatise contains not what may be expected by them from me the Relation of the Motions Actions and Atchievements of the Army which I acknowledge was the first thing in my thoughts and intentions But upon further consideration I thought it necessary to look somewhat backwards that we may the better understand the Causes and Grounds which brought the late War upon us before we set forth the Actions of the War In the former we may see the vigilancy and care of our Ancestors to secure and uphold our Liberties and Properties and to transmit the same in as much purity as might be to their Posterity in the latter which are the Actions of the War you shall see their Courage and Magnanimity setting a higher value upon the Rights and Liberties of the Nation then upon their own Lives Whom therefore when I come in order of time to mention and shall also have occasion to magnifie for their perseverance in maintaining and defending those Laws and Liberties so redeemed with the price of their blood against Arbitrary wayes and courses how joyfull shall I be to employ my Pen to Chronicle such of their Names to Posterity who justly merit that Character as worthy of Double Honor. In the second Part of my Collections which is to follow according to the entertainment which this findes abroad I shall write with the more confidence because I did personally attend and observe all Occurrences of moment during the Eleven years Interval of Parliament in the Star-Chamber Court of Honor and Exchequer-Chamber when all the Judges of England met there upon extraordinary
dares not but give advice to follow where God leads apprehending the work of God in this and that of Hungary That by peece and peece the Kings of the Earth that gave their power to the Beast shall leave the Whore and make her desolate That he was satisfied in Conscience that the Bohemians had just cause to reject that proud and bloody man who had taken a course to make that Kingdom not Elective in taking it by the Donation of another The slighting of the Viscount Doncaster in his Ambassage gave cause of just displeasure and indignation Therefore let not a Noble Son be forsaken for their sakes who regard nothing but their own ends Our striking-in will comfort the Bohemians honor the Palsgrave strengthen the Princes of the Union draw on the United Provinces stir up the King of Denmark and the Palatines two Uncles the Prince of Orange and the Duke of Bouillon together with Tremouille a rich Prince in France to cast in their shares The Parliament is the old and honorable way for raising of Money and all that may be spared is to be turned this way And perhaps God provided the Iewels which were laid up in the Tower by the Mother for the preservation of the Daughter who like a Noble Princess hath professed that she will not leave her self one Iewel rather then not maintain so religious and righteous a Cause Certainly if countenance be given to this Action many brave Spirits will offer themselves Therefore let all our Spirits be gathered up to animate this business that the World may take notice that we are awake when God calls The Life and Zeal of these Expressions from a Person of such Eminency may discover the Judgment and Affection of the Anti-Spanish party in the Court of England But the King was engaged in those ways out of which he could not easily turn himself Besides it did not please him that his Son should snatch a Crown out of the Fire And he was used to say That the Bohemians made use of him as the Fox did of the Cats foot to pull the Apple out of the Fire for his own eating In the mean while before the King could answer the Palsgrave desiring advice in that behalf the Bohemians had wrought and prevailed with him to accept of their Election whereof he sent Advertisement into England excusing the suddenness of the Action for that the urgency of the cause would admit of no deliberation King Iames disavowed the Act and would never grace his Son in Law with the stile of his new Dignity But Sir Richard Weston and Sir Edward Conway were sent Ambassadors into Bohemia to close up the breach between the Emperor and the Elector Palatine The King being not a little troubled and jealous that the Palatines nearness to him might give cause of suspition to his Brother of Spain that this Election had been made by his procurement or correspondence with the German Protestants commands his Agent Cottington to give that King plenary Information of all proceedings As That his Ambassador being sent to compound the differences and to reduce the Bohemians to the quiet obedience of the Emperor instead of finding the Emperor so prepared and such a way made for his Mediation as was promised and expected received answer That the business was already referred to four of the Electors insomuch that no place was left for his Authority to interpose Of this exclusive answer as he had just cause to be sensible considering that he had entred into that Treaty meerly at the instance of the King of Spain and his Ministers so there followed a further inconvenience That the Bohemians having long expected the fruit and issue of this Mediation and finding little hope by this means did instantly as out of desperation Elect the Count Palatine for their King Wherefore being tender of his own honor and reputation especially in the opinion of the King of Spain he would not have it blemished by the least misunderstanding And for that end he tendred to his view such Letters as from time to time he had written to the Princes of the Union and to the Palatine himself whereby he might plainly see his dislike of the Bohemians engaging against their King and his industry to contain those Princes in peace and quietness and to make a fair Accord between the disagreeing parties Reply was made as touching the answer given to the Viscount Doncaster That he was admitted a Compounder in such form as was possible the Arbitration having been committed by the late Emperor into the hands of three of the Electors and the Duke of Bavaria that nevertheless he might have proceeded in the Negotiation and by his Masters Authority have over-ruled any difficulty which might have hapned on the Emperors side on whose behalf the reference was made if he had reduced the Bohemians to the acceptance of any reasonable conditions But he presently to the Emperors great disservice labored to suspend the Election of the King of the Romans till the Bohemian Controversie were first compounded which was absolutely to defeat King Ferdinand of that Crown and to disturb and put in danger his Election to the Empire This was the more confirmed by his desire to make Bonfires in Liege when the Count Palatine was made King of Bohemia As touching the Kings integrity in the whole business the satisfaction tendred was received with great applause and it was further said That it would gain the more authority and estimation if he should continue to disclaim that which had been done so contrary to his opinion and against his Friends and Allies as are all the Princes of the House of Austria But the Lot was cast in Germany and for the Palsgrave there was no going back forces pour in a main on both sides The King of Poland aided the Emperor in Hungary to bound and check the incursions of Prince Bethlem the Duke of Saxony did not brook his Fellow Electors advancement to Regal Majesty and condemned his joyning with Bethlem Gabor Who saith he came in with the Turks consent to make a desolution in the Empire King Frederick visited the several parts of his Kingdom to confirm the people to him and to receive the Oath of Fidelity And the Emperor published a Proscription against him wherein he proclaims him guilty of High Treason excludes him out of the publick peace and declares his resolution to prosecute him as the publick Enemy of the Empire and a contemner of his Imperial Majesty and absolves all his Subjects from their Oaths and Duties to him and commands all persons whatsoever to abandon him and his adherents Christian Prince of Anhalt was appointed Generalissimo of the Bohemian Forces and governed all affairs which was some eclipse and discontent to Thurne and Mansfet who had hitherto stood the shock of the Imperial Armies The Princes of the Union raised forces for the defence of the Palatinate and their own interest
impaired the same I would you would hasten for my Supply or else it will be worse for your selves For if any ill happen I think I shall be the last shall feel it Afterwards the Commons fell upon the Duke as the chief Cause of all Publick Miscarriages Doctor Turner a Physitian propounded in the House these Questions which were then commonly called Queries against the Duke of Buckingham and were grounded upon Publick Fame 1. Whether the Duke being Admiral be not the Cause of the loss of the Kings Royalty in the Narrow-Seas 2. Whether the unreasonable exorbitant and immense Gifts of Money and Lands bestowed on the Duke and his Kindred be not the Cause of impairing the Kings Revenue and impoverishing of the Crown 3. Whether the Multiplicity of Offices conferred upon the Duke and others depending upon him whereof they were not capable be not the Cause of the Evil Government of this Kingdom 4. Whether Recusants in general by a kind of Connivencie be not borne out and increased by reason of the Dukes Mother and Father-in-law being known Papists 5. Whether the Sale of Honors Offices and Places of Judicature and Ecclesiastical Livings and Promotions a scandal and hurt to the Kingdom be not through the Duke 6. Whether the Dukes staying at home being Admiral and General in the Fleet of the Sea and Land-Army were not the Cause of the bad success and overthrow of that Action And whether he did give good direction for that Design All these are famed to be so Hereupon two Questions were moved in Parliament 1. Whether the Six Heads delivered by Doctor Turner to be the Cause of the Evils that were grounded upon Common Fame be to be debated in Parliament 2. Whether an Accusation upon Common Fame by a Member of this House be a Parliamentary way It was declared by Sir Tho. Wentworth Mr. Noy and other Lawyers in the Debate That there was a difference between Common Fame and Rumor For the General voice Vox populi is Common Fame And if Common Fame might not be admitted as an Accuser Great men would be the onely safe men for no Private person dare adventure to enquire into their Actions But the House of Commons is a House of Information and Presentment but not a House of Definitive Judgment So the House came to this Resolution That Common Fame is a good ground of Proceeding for this House either by Enquiry or presenting the Complaint if the House finds cause to the King or Lords The Commons the next day proceeding in that Debate Sir Richard Weston delivered to the House this Message from his Majesty THat his Majesty had taken notice of a seditious Speech uttered in the House by Mr. Clement Cook The words are said to be to this effect That it were better to die by an Enemy then to suffer at home Yet his Majesty in his wisdom hath forborne to take any course therein or to send to the House about it not doubting but the House would in due time correct such an Insolence But his Majesty hath found that his patience hath wrought to an ill effect and hath imboldened one since to do a strange act in a strange way and unusual that is Doctor Turner who on Saturday last without any ground of knowledge in himself or Proof tendred to the House made an Enquiry of sundry Articles against the Duke of Buckingham as he pretended but indeed against the Honor and Government of the King and his late Father This his Majesty saith is such an Example that he can by no means suffer though it were to make Enquiry of the meanest of his Servants much less against one so neer unto himself and doth wonder at the foolish impudencie of any man that can think he should be drawn out of any end to offer such a Sacrifice much unworthy the greatness of a King and Master of such a Servant And therefore his Majesty can no longer use his wonted patience but desireth the Justice of the House against the Delinquents not doubting but such course will be taken that he shall not be constrained to use his Regal authority to right himself against these two Persons Upon this Message Doctor Turner made a short Explanation of himself desiring to know wherewith he was charged What he said he said the House can witness and what he said he spake for the general good of the Commonwealth and not upon the least reflection of any in particular This he thought a Parliamentary way warranted by antient Presidents To accuse upon Common Fame he finds warranted first by the Imperial Roman Laws and the Canons of the Church which allowed Common Fame sufficient to accuse any man And they that are learned amongst them give two reasons First for Greatness Next for Cunning. Our Ancestors within these walls have done the like and that to a Duke the Duke of Suffolk in the time of King H. 6. who was accused upon Fame And lastly he said Mr. Chancellor himself did present the Common Undertakers upon Particular Fame and why he should not have as ample priviledge in this place he knew no reason to the contrary The Commons having appointed another day for the Debate of this Business in the mean time came this Letter from Doctor Turner to the Speaker SIR THese Lines first Petition you to signifie to the Honorable House of Commons That my desires are still the same to have made my personal appearance before you but my ability and strength to perform it are not the same And therefore that I humbly desire them to excuse me on that part and to accept of this my Answer unto the matter I shall speak to I do confess that on Saturday last in the afternoon I did deliver in certain Accusations of Common Fame into the House of Parliament against my Lord Admiral and that out of so many all bearing the signiture of Vox populi I chose out some few not because they were greater or more known Grievances but because they did seem to direct us to find out the Griever or the first Cause For I did think it was then full time to agree the Agent and the Actions and that it was time also to leave considering Grievances in Arbitration I do now also agree unto you that which hath been reported unto you by Mr. Wandesford and by that if you shall think sit will put my self unto your Censure hoping and assuring my self that you will find my design to include nothing else within it but duty and publick service to my Country and also that my addressing those Accusations unto the House of Parliament shall by you be found to be done by a mannerly and Parliamentary way But howsoever it becomes me to submit my Cause to your Wisdoms and equal Iudgments which I do heartily and whatsoever you shall please to appoint me I shall dutifully satisfie when God shall be pleased to restore me able to attend your service I doubt
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
the Articles of several High Treasons and other great and enormous Crimes Offences and Contempts supposed to be committed by him against our late Soveraign Lord King James of Blessed Memory deceased and our Soveraign Lord the Kings Majesty that now is wherewith the said Earl is charged by his Majesties Attorney-General on his Majesties behalf in the most High and Honorable Court of Parliament before the King and the Lords there And not acknowledging any the supposed Treasons Crimes Offences and Contempts wherewith he is charged in and by the said Articles to be true and saving to himself all advantages benefit and exception to the Incertainty and Insufficiency of the said Articles and of the several Charges in them contained And humbly praying that his Cause may not suffer for want of Legal form whereunto he hath not been used but may be judged according to such real and effectual Grounds and Proofs as may be accepted from an Ambassador the ground of the Charge growing thence and that he may have leave to explain himself and his own meaning in any thing that may seem of a doubtful Construction For Answer saith as followeth I. THe First Article he denieth and because the Matters contained in the said Article consist of several parts viz. The loss of the said Palatinate and the Match with the said Lady of Spain and of the several Employments as of one Extraordinary Ambassage to the Emperor and another to the King of Spain in the years 1621.22 and 23. He humbly craves leave of this most Honorable Court to separate the businesses and distinguish the times And beginning with the Palatinate first to give an account of his Ambassage to the Emperor and so to make as brief a Deduction as he could of the whole carriage in that business from the beginning of his employment to the time he left it in his Ambassage to the Emperor he propounded all things faithfully according to his Instructions and the Answers which he returned to his late Majesty of Blessed Memory were the very same and no other then such as were given by the Emperor under his Hand and Imperial Seal the which according to his duty he faithfully sent unto his said Majesty and withal did honestly and truly advertise his said Majesty what he understood and thought then upon the place but was so far from giving to his Majesty any ill-grounded hopes in that behalf that he wrote unto the Lords of the Council here in England from Vienna 26 Iuly 1624. in such sort as followeth I Am further to move your Lordships That there may be a Dispatch made presently into Spain to his Majesties Ambassador and Mr. Cottington that they deal effectually for the repairing and ripening of the business against my coming that they use some plain and direct Language letting the Ministers there know That the late Letter sent by the King of Spain to the Emperor was colder and more reserved then his Master had reason to expect I shall conclude with telling your Lordships That although I dispair not of good success in that knotty business yet I hope his Majesty and your Lordships lay not aside the care of all fitting preparations for a War in case a Peace cannot be honorably had And amongst other things I most earnestly commend unto your Lordships by your Lordships unto his Majesty the continuing yet abroad for some small time of Sir Robert Mansels Fleet upon the Coasts of Spain which in case his Majesty should be ill used will prove the best Argument we can use for the Restitution of the Palatinate And this his Advice he saith was wholly intended by his Actions by being the cause as he returned homeward out of Germany to bring down Count Mansfield whereby the Town of Frankendale was relieved by supplying of his Majesties Army then in great distress with Moneys and Plate to the value of 10000 l. meerly out of his zeal and affection to the good of the King and his Children having no Warrant or Order but that his heart was ever really bent in effects more then in shews to serve the Kings Son-in-law and his cause as by the discourse of this business will appear And how acceptable these Services were will more appear by the Letters of the Queen of Bohemia in these words following My Lord HAving understood from Heidelburgh how you have shewed your affection to the King and me in all things and in the help of Money you have lent our Soldiers I cannot let so great Obligation pass without giving many thanks for it by these lines since I have no other means to shew my gratefulness unto you Howsoever assure your self that I will never be forgetful of the Testimonies you give me of your love which I intreat you to continue in doing the King and me all good Offices you can to his Majesty You have been an eye-witness of the miserable estate our Countreys are in I intreat you therefore to solicite his Majesty for our help you having given me an assurance of your affection I intreat you now to shew it in helping of us by your good endeavors to his Majesty and you shall ever binde me to continue as I am already Your very affectionate Friend ELIZABETH Which Letters were seconded with others about the same time both from the King of Bohemia and Council of Heidelburgh to the same effect And how much satisfaction his late Majesty received in that behalf and touching that business will plainly appear several ways and particularly by his Speech in Parliament And the said Earl likewise appealeth to both Houses of Parliament to whom by his late Majesties Order he gave a just and true accompt of that employment with what true zeal he proceeded and how he pressed that single Treaty and Promises no longer be relied on but that a fitting preparation for War might go along hand in hand with any Treaty of Accommodation And for a conclusion among many of his late Majesties approbations of his carriage in this employment he humbly desireth that a Letter of the Duke of Buckinghams under his own hand bearing date the Eleventh of October 1621. may be produced being as followeth My Lord I Am exceeding glad that your Lordship hath carried your self so well in this employment that his Majesty is infinitely pleased for your Service you have done for which he commanded me to give your Lordship thanks in his Name until he see you himself You of all men have cause to commend his Majesties choice of such a man that unless your heart had gone with the business you could never have brought it to so good a pass Amongst other things his Majesty liketh very well the care of clearing his Honor whereof he will advise further with your Lordship at your next coming over I hope you will not finde your Negotiation with the Infanta of such difficulty as you seem to fear in your Letter seeing my Brother Edward hath brought with him a Letter
Scotland and Ireland and they will tell you Sejanus pride was so excessive as Tacitus saith he neglected all Councel mixed his businesses and service with the Prince seeming to confound their Actions and was often stiled Imperatoris laborum socius How lately and how often hath this Man commixed his Actions in Discourses with ACtions of the Kings My Lords I have done you see the Man onely this which was conceived by the Knights Citizens and Burgesses should be boldly by me spoken That by him came all these evils in him we finde the Cause and on him we expect the Remedies and to this we met your Lordships in Conference to which as your Wisdom invites us so we cannot doubt but in your Lordships Wisdom Greatness and Power we shall in due time finde Judgment as he deserves I conclude by presenting to your Lordships the particular Censure of the Bishop of Ely reported in the 11 Rich. 1. and to give you a short view of his faults He was first of all noted to be Luxurious secondly He married his own Kinred to Personages of highest rank and places thirdly No mans business was done without his help fourthly He would not suffer the Kings Council to advise in Matters of State fifthly He grew to such a height of Pride that no man was thought worthy to speak unto him and lastly His Castles and Forts of Trust he did obscuris ignotis hominibus tradere his doom was this Per totam insulam publicè proclamatur periat qui perdere cuncta festinat opprimatur ne omnes opprimat Sir Dudley Diggs having made the Prologuâ— and Sir Iohn Elliot the Epilogue in the Impeachment of the Duke they were both by the Kings Command committed to the Tower Upon the Impeachment of the Duke a Paper was privately conveyed to the King importing THat this great opposition against the Duke was stirred up and maintained by such as seek the destruction of this free Monarchy Because they finde it not yet ripe to attempt against the King himself they endeavor it through the sides of the Duke The persons agreeing in this one mischeif are of divers sorts and humors First Medling and busie persons who love popular Speeches Secondly Govetous Landlords Inclosers Depopulators c. who being of the Parliament ease themselves in Subsidies and lay it on the true Commons and cry out the grievances are caused by the Duke Thirdly Recusants who hate the Duke for the breach of the Spanish Match Fourthly Persons indebted who by priviledge of Parliament avoid payment Fifthly Puritans and Sectaries though two of them scarcely agree in what they would have Haters of Government and would have the Kings power extinguished in matters Ecclesiastical and limited in Civil Sixtly Male-contents who look upon the Duke with an evil eye because themselves are not preferred Seventhly Lawyers who are very fit in Parliaments to second any Complaint against â—oth Church and King and all his Servants with their Customs Antiquities Records Statutes Presidents and Stories Eighthly Merchants and Citizens who deceive the King of Custom Ninethly Innovators Plebicolae That since the time of Henry the Sixth these Parliamentary discoursings might never be suffered as being but certain symptomes of Subsequent Rebellions Civil Wars and the dethroning of our King and no one Patriot daring to oppose them least he incur the reputation of a Fool or Coward in his Countreys Cause His Majesty therefore strengthned himself ever with some Favorite as whom he might better trust then many of the Nobility tainted with this desire of Oligarchy It behoveth without doubt his Majesty to uphold the Duke against them who if he be but decourted it will be the Corner Stone on which the demolishing of his Monarchy will be builded For if they prevail with this they have hatched a thousand other demands to pull the Feathers of Royalty They will appoint him Counsellors Servants Alliances Limits of Expences and accompt of his Revenue cheifly if they can they will now dazle him in the beginning of his raign Lastly King James and King Charls are the Dukes Accusers in all the Aspersions that are laid upon him King James for the Money destined for the Wars in his time spent in Treaties c. And his Majesty can testifie for the things done in his time And all these though actions of the King are imputed to the Duke Who if he suffer for obeying his Soveraign the next attempt will be to call the King to accompt for any thing he undertakes which doth not prosperously succeed as all men would desire it If it please his Majesty to remove and set aside all these disadvantages he shall find the Charge against the Duke very empty and of small moment And if his Majesty and the Dukes Grace think it no impeachment to their Honors all that the Parliament hath objected against the Duke except two or three things that may receive an Answer is pardoned at the Kings Coronation which benefit every poor Subject enjoyeth May 11. The King came to the Parliament and spake to the House of Peers as followeth My Lords THe cause and onely cause of my coming to you this day is to express the sense I have of all your Honors for he that toucheth any of you toucheth me in a very great measure I have thought fit to take order for the punishing some insolent speeches lately spoken I have been too remiss heretofore in punishing such speeches as concern my self Not that I was greedy of their monies but that Buckingham through his importunity would not suffer me to take notice of them lest he might be thought to have set me on and that he might come the forwarder to his Trial. And to approve his innocencie as touching the matters against him I my self can be a Witness to clear him in every one of them I speak not this to take any thing out of your hands but to shew the reason why I have not hitherto punished those insolent speeches against my self And now I hope you will be as tender of my Honor when time shall serve as I have been sensible of yours And so his Majesty was pleased to depart The same day this following Message was brought from the Commons to the Lords by Sir Nathanael Rich. THe Commons taking into serious consideration the many mischiefs and inconveniences which this renowned Kingdom doth now suffer threatening apparent danger to the King and Common-wealth have by search and disquisition into the Causes thereof found that they do principally flow from the exorbitant power and abusive carriage of the Duke of Buckingham whereof he hath this Parliament béen impeached before their Lordships by the Commons besides an accusation of a Péer in their own House who hath charged him as they are informed of High Treason They therefore with one voice make an entire Declaration That they hold it a thing of dangerous Consequence both for the present and future times that a man of so
advantage of education in your University how to value the deserts of men of your qualities and degrees so could they not be more willing to cherish you then my self who will make amends for my want of Schollarship in my love to the Professors of it and to the source from whence it cometh having now most just cause more cheifly to employ my utmost endeavors with what favor I enjoy from a Royal Master to the maintaining of the Charters Priviledges and Immunities of your University in general and to the advancing of the particular merits of the Students therein And since I am so far engaged to you I will presume upon a further courtesie which is That you will be pleased to supply me with your advice and suggest a way unto me as my self likewise shall not fail to think on some means how we may make Posterity remember you had a thankful Chancellor and that both really loved you and your University Which is a resolution writ in an honest heart by him that wanteth much to express his Affection to you who will ever be Your faithful Friend and humble Servant George Buckingham Also the King was pleased to write to the University of Cambridge in approbation of the said Election Trusty and Well-beloved We greet you well WHereas upon Our pleasure intimated unto you by the Bishop of Durham for the choice of your Chancellor you have with much duty as We expected highly satisfied Us in your Election We cannot in Our Princely Nature who are much possessed with this Testimony of your ready and Loyal Affections but for ever let you know how much you are therein made partakers of Our Royal Approbation And as We shall ever conceive that an Honor done to a Person We favor is out of a Loyal respect had unto Our Self And as We shall ever justifie Buckingham worthy of this your Election so shall you finde the fruits of it For We that have found him a faithful Servant to Our dear Father of Blessed memory and Our Self cannot but undertake that he will prove such a one to you and will assist him with a Gratious Willingness in any thing that may concern the good of the University in general or the particular Merits of any Students there Given under Our Signet at Our Pallace of Westminster the Sixth of June in the Second year of Our Raign Iune 8. Before the Duke gave in his Answer on that day unto the House of Peers to the Impeachment of the House of Commons he made this ensuing Speech My Lords IN a case of pressure considered by it self I have a fair beginning it is a due debt to your Lordships for this Honorable Favor in leaving it to my choice whether I would answer to the particulars in the Aggravation or not I may without lessening my Obligation say The favor is greater at first it may be yours or your Posterities hereafter I have in a manner tied my self to my charge hoping if I give your Lordships satisfaction in that the Aggravations will fall of themselves I could not well have followed the Aggravations being composed of words which I hope my actions have not deserved and I am sure my ears have not been made acquainted with without some distraction of spirit yet I have left nothing of them unanswered that is material I have used as much speed to come to an answer as conveniently I could without prejudice of my cause having my Reputation too long upon the stage and had your Lordships called for it sooner I had been as ready as now I was desirous to detain your Lordships as little as may be with the expectation of my particular from weightier business I was also grieved that my business should be a cause of the loss of this year from foreign attempts and the hindrance of those resolutions that would have comforted our Friends abroad and secured our selves at home But in this my Lords I am sure you will easily acquit me in your thoughts When I look upon my Charge in general as they did without searching into the integrity of mine own heart and actions which are yet unknown to most of them I wonder not so much at their proceedings the particulars not being voted against me nor unanimously but had they taken the means to have been better and trulier informed of the particulars or have given me cause to have informed them I assure my self they had not troubled your Lordships with this Charge But I confess there hath been that contestation in the House of Commons concerning my Justification that I cannot but acknowledge much favor there from many And if the actions of some others in that House do not conclude me of a worse disposition then I shall hereafter be found there is none but may say with me I am at peace with all I shall onely for the present apply my self to the clearing of my Reputation and for the future of those actions and endeavors which may repossess me of that I have counted one of my greatest losses their good opinions I would not speak nor profess this before your Lordships if Reason and my own disposition did not warrant the performance of it For first Who accused me Common Fame Who gave me up to your Lordships The House of Commons The one is too subtile a Body if a Body the other too great for me to contest with and I am confident when my cause shall be tried neither the one or the other or part of either will be found to be my enemy But as Fame is subtle so it is often and especially in accusations false therefore the House of Commons have not wronged me Yet I am confident it will at length be found that Common Fame hath abused both them and me I presume the House of Commons have proceeded against me out of an hearty and zealous affection to do their King and Country service I hope out of Christian Charity to punish and amend my faults if fame could have proved them and not to envy my Reputation or destroy my Fortune I shall never call such proceedings wrong if seeking to cure my errors give me opportunity to clear and publish my innocency For the State it self I have little to say it is but a little I will not abuse your Lordships patience I was born and bred in it I ow it my self I have been raised to Honors and Fortunes in it I freely confess beyond my Merits what I wanted in sufficiency and experience for the service of it I have endeavored to supply by care and industry And could there be the least alienation hereafter in my heart from the service of the State for any thing that hath past I should be the ungratefullest man living should but such a thought stain my heart I should be content it were let blood If my Posterity should not inherit the same fidelity I should desire an inversion in the course of Nature and be glad to
charissimo Consanguineo nostro Edwardo Comiti Dorset nec non charissimo Consiliar nostro Philippo Comiti Mountgomery charissimóque Consanguineo nostro Willielmo Comiti Northampton Presidenti Consilii nostri infra Principalitatem Marchias Walliâ—e ac chariss Consanguineo Consiliar nostro Iacobo Comiti Carlol Nec non charissimis Consanguineis nostris Iohanni Comiti de Clare Thomae Comiti Cleveland Edmundo Comiti de Mulgrave Nec non charissimo Consanguineo Consiliar nostro Georgio Comiti de Totnes charissimóque Consanguineo nostro Henrico Vicecomiti Rochford Ac etiam Reverendis in Christo Patribus Georgio Episcopo London Richardo Episc. Dunclm Reverendóque in Christo Patri sideli Consiliar nostro Lanceloto Episc. Winton Nec non Reverendis in Christo Patribus Samueli Episc. Norwicen Willielmo Episc. Meneven Ac perdilecto fideli Consiliario nostro Edwardo Dom. Conway uni primorum Secretarium nostrum Ac etiam perdilecto fideli nostro Samueli Dom. Scroop Presidenti Consilii nostri in partibus Borealibus perdilectóque fideli Consiliar nostro Fulconi Dom. Brook Salutem Cùm nuper pro quibusdam arduis urgentibus negotiis Nos statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus praesens hoc Parliamentum nostrum apud Civitatem nostram Westmonasterii sexto die Februar Anno Regni nostri primo inchoari teneri ordinaverimus à quo die idem Parliamentum nostrum usque ad instantem decimum quintum diem Iunii continuatum fuerat Sciatis quòd nos pro certis urgentibus causis considerationibus nos specialiter moventibus idem Parliamentum nostrum hoc instanti decimo quinto die Iunii duximus dissolvendum De fidelitate igitur prudentia circumspectione vestris plurimum confidentes de avisamento assensu Consilii nostri assignavimus vos Commissionarios nostros dantes vobis aliquibus tribus vel pluribus vestrum tenore praesentium plenam potestatem authoritatem hoc instanti decimo quinto die Iunii ad dictum Parlamentum nostrum nomine nostro plenariè dissolvendum ideo vobis mandamus quòd vos vel aliqui tres vel plures vestrum idem Parliamentum nostrum hoc instante decimo quinto die Iunii virtute harum Literarum nostrum patent plenariè dissolvatis determinetis Et ideo vobis mandamus quòd praemissa diligenter intendatis ac â—a in forma praedicta effectualiter expleatis exequamini Damus autem universis singulis Archiepiscopis Ducibus Marchionibus Comitibus Vicecomitibus Episcopis Baronibus Militibus Civibus Burgensibus ac omnibus aliis quorum interest ad dictum Parliamentum nostrum conventurum tenore praesentium firmiter in mandat quod vobis in praemissis faciend agend exiquend pariant obediant intendant in omnibus prout decet In cujus rei testimonium has literas nostras â—ieri fecimus patentes Teste meipso apud Westm. decimo quinto die Iunii Anno Regni nostri secundo EDMONDS This Commission being read and the Commons present the Parliament was dissolved on the Fifteenth day of Iune 1626. The intended Remonstrance was as followeth Most Gracious Soveraign WE your loyal and faithful Subjects the Commons assembled by your Majesties most Royal authority in this present Parliament having with all dutiful affection from the time of our first méeting earnestly endeavored to procéed spéedily in those affairs that might best and soonest conduce to our dispatch of the intended supply of your Majesties great designs to the enlargement of your support and to the enabling of our selves and them whom we represent to the full and timely performance of the same have notwithstanding by reason of divers informations interruptions and other preventions béen hitherto so retarded in the prosecution of these affairs that we now thought it a necessary part of our most humble duties thus to declare both those interruptions and preventions with the true original and continual cause of them as also our most earnest devotion of the Parliamentary service of your most excellent Majesty and of the careful safety and defence of your Dominions Crown and Dignity And we most humbly therefore beséech your most excellent Majesty to be graciously pleased here to cast your eye on some particulars that have relation as well to your first Parliament as to this out of which we cannot doubt but that your great Goodness may receive an ample satisfaction touching our most loyal and faithful intentions In the first Parliament of the first Year of your Majesties most happy Reign over us the Commons then assembled after they had cheerfully presented to your Majesty as the first-fruits of their affections Two entire Subsidies were excéedingly pressed by the means of the Duke of Buckingham and for his own ends as we conceive to enlarge that Supply which when he conceived would not be there effected he procured for the same ends from your Majesty an Adjournment of the Parliament to the City of Oxford where the Commons then taking into just consideration the greatest mischiefs which this Kingdom variously hath suffered and that chiefly by reason of the exorbitant power and frequent misdoings of the said Duke were entring into a Parliamentary course of examination of those mischiefs power and misdoings But no sooner was there any mention made of his Name to this purpose but that he fearing lest his Actions might so have béen too much laid open to the view of your most excellent Majesty and to the just Censure that might then have followed presently through his misinformations to your Majesty of the intentions of your said Commons as we have just cause to believe procured a dissolution of the said Parliament And afterwards also in the same year through divers misreports made to your Majesty in his behalf touching some Members of the said Commons who had more particularly drawn his Name into just question and justly professed themselves averse to his ends there procured as we cannot but conceive the said Members to be made the Sheriffs of several Counties for this year that followed to the end that they might have all béen precluded from being chosen Members of the present Parliament lest they should again have therein questioned him and by the like practice also as we are perswaded he procured soon after the said dissolution another Member of the said House because he had justly professed himself against his Ends to be sent as Secretary of your Majesties last Fleet hereby indeed to punish him by such drawing him from his practice of the Law which was his Profession under colour of an honorable Imployment It pleased your Majesty afterwards in February last to call this present Parliament wherein though none of those whom the said Duke had so procured to be made high Shiriffs have sit as Members yet we finding in our selves the like affection first to the Service of your Majesty and next to the good of the Commonwealth
for Posterity to strike at the propriety of their Goods contrary to the piety and intention of your Majesty so graciously exprest And these being the true Grounds and Motives of his forbearance to the said Loan shewing such inconveniences in Reason and representing it an Act contradicting so many of your Laws and most of them by the most prudent and happiest of our Princes granted which could not without presumption beyond pardon in your Suppliant in taking to himself the Dispensation of those Laws so piously Enacted by him be violated or impeached In the fulness of all Submission and Obedience as the Apology of his Loyalty and Duty he lowly offers to your most Sacred Wisdom for the satisfaction of your Majesty most humbly praying your Majesty will be graciously pleased to take them into your Princely consideration where when it shall appear as he doubts not but from hence it will to your déep judgment that no factious humor nor disaffection led on by stubbornness and will hath herein stirred or moved him but the just Obligation of his Conscience which binds him to the service of your Majesty in the observânce of your Laws he is hopeful presuming upon the Piety and Iustice of your Majesty that your Majesty according to your innate Clemency and Goodness will be pleased to bestow him to your Favor and his Liberty and to afford him the benefit of those Laws which in all humility he craves Notwithstanding the said Petition he still continued a prisoner in the Gate-house till the general Order of Discharge came Sir Peter Hayman refusing to part with Loan-money was called before the Lords of the Council who charged him with refractoriness and with an unwillingness to serve the King and told him if he did not pay he should be put upon service Accordingly they commanded him to go upon his Majesties service into the Palatinate and having first setled his estate he undertook and performed the journey and afterwards returned into England Archbishop Abbot having been long slighted at Court now fell under the Kings high displeasure for refusing to Licence Doctor Sibthorps Sermon as he was commanded intituled Apostolical Obedience and not long after he was sequestred from his Office and a Commission was granted to the Bishops of London Durham Rochester Oxford and Doctor Laud Bishop of Bath and Wells to execute Archiepiscopal Jurisdiction The Commission as followeth CHARLS by the Grace of God King of England Scotland France and Ireland Defender of the Faith c. To the Right Reverend Father in God George Bishop of London and to the Right Reverend Father in God Our Trusty and Welbeloved Counsellor Richard Lord Bishop of Durham and to the Right Reverend Father in God Iohn Lord Bishop of Rochester and Iohn Lord Bishop of Oxford to the Right Reverend Father in God Our Right Trusty and Welbeloved Counsellor William Lord Bishop of Bathe and Wells Greeting WHereas George now Archbishop of Canterbury in the right of the Archbishoprick hath several and distinct Archiepiscopal Episcopal and other Spiritual and Ecclesiastical Powers and Iurisdictions to be exercised in the Government and Discipline of the Church within the Province of Canterbury and in the Administration of Iustice in Causes Ecclesiastical within that Province which are partly executed by himself in his own person and partly and more generally by several persons nominated and authorised by him being learned in the Ecclesiastical Laws of this Realm in those several places whereunto they are deputed and appointed by the said Archbishop Which several places as We are informed they severally hold by several Grants for their several lives as namely Sir Henry Martin Knight hath and holdeth by the Grants of the said Archbishop the Offices and places of the Dean of the Arches and Iudge or Master of the Prerogative Court for the Natural life of the said Sir Henry Martin Sir Charls Caesar Knight hath and holdeth by Grants of the said Archbishop the places or Offices of the Iudge of the Audience and Master of the Faculties for the term of the Natural life of the said Sir Charls Caesar. Sir Thomas Ridley Knight hath and holdeth by the Grant of the said Archbishop the place or Office of Uicar-General to the said Archbishop And Nathaniel Brent Doctor of the Laws hath and holdeth by Grant of the said Archbishop the Office or place of Commissary to the said Archbishop as of his proper and peculiar Diocess of Canterbury And likewise the several Registers of the Arches Prerogative Audience Faculties and of the Uicar-General and Commissary of Canterbury hold their places by Grants from the said Archbishop respectively Whereas the said Archbishop in some or all of these several places and Iurisdictions doth or may sometimes assume unto his personal and proper Iudicature Order or Direction some particular Causes Actions or Cases at his pleasure And forasmuch as the said Archbishop cannot at this present in his own person attend these Services which are otherwise proper for his Cognisance and Iurisdiction and which as Archbishop of Canterbury he might and ought in his own person to have performed and executed in Causes and Matters Ecclesiastical in the proper Function of Archbishop of that Province We therefore of Our Regal Power and of Our Princely Care and Providence that nothing shall be defective in the Order Discipline Government or Right of the Church have thought fit by the Service of some other Learned and Reverend Bishops to be named by Us to supply those things which the said Archbishop ought or might in the Cases aforesaid to have done but for this present cannot perform the same Know ye therefore That We reposing special Trust and Confidence in your approved Wisdoms Learning and Integrity have nominated authorised and appointed and do by these presents nominate authorise and appoint you the said George Lord Bishop of London Richard Lord Bishop of Durham John Lord Bishop of Rochester John Lord Bishop of Oxford and William Lord Bishop of Bathe and Wells or any four thrée or two of you to do execute and perform all and every those Acts Matters and things any way touching or concerning the Power Iurisdiction or Authority of the Archbishop of Canterbury in Causes or Matters Ecclesiastical as amply fully and effectually to all intents and purposes as the said Archbishop himself might have done And We do hereby Command you and every of you to attend perform and execute this Our Royal Pleasure in and touching the premisses until We shall declare Our Will and Pleasure to the contrary And We do further hereby Will and Command the said Archbishop of Canterbury quietly and without interruption to permit and suffer you the said George Bishop of London Richard Bishop of Durham John Bishop of Rochester John Bishop of Oxford and William Bishop of Bathe and Wells any four thrée or two of you to execute and perform this Our Commission according to Our Royal Pleasure thereby signified And We do further Will
his person that the body of a man was not liable to be arrested or imprisoned for any other Cause at the Common-Law but for force and things done against the Peace For the Common-Law being the preserver of the Land so abhorreth force that those that commit it she accounteth her capital Enemies and therefore did subject their bodies to imprisonment But by the Statute of Marlebridge cap. 24. which was made 35 H. 3. who was the eighth King from the Conquest because Bailiffs would not render accompts to their Lords it was enacted that their bodies should be attatched And after by the Stat 23 E. 3.17 who was the eleventh King after the Conquest because men made no conscience to pay their Debts it was enacted that their bodies should likewise be attached But before those Statutes no mans body was subject to be taken or imprisoned otherwise then as aforesaid whereby it is evident how much the Common-Law favored the Liberty of the Subject and protected his body from imprisonment Here he enforced the Reason by a Rule in Law and mentioned some Cases in Law upon that rule and so proceeded to a second Reason drawn by an Argument à majore ad minus I frame it thus said he If the King have no absolute power over our Lands or Goods then à fortiori not over our Persons to imprison them without declaring the cause for our persons are much more worth then either Lands or Goods which is proved by what I have said already And Christ himself makes it clear where he saith An non est corpus supra vestimentum Is not the Body of more worth then the Raiment Nay I may well say that almost every leaf and page of all the Volumes of our Common-Law prove this right of Propriety this distinction of meum and tuum as well between King and Subject as one Subject and another And therefore my conclusion follows that if the Prerogative extend not neither to Lands nor to Goods then à fortiori not to the Person which is more worth then either Lands or Goods as I said And yet I agree that by the very Law of Nature service of the Person of the Subject is due to his Soveraign but this must be in such things which â—re not against the Law of Nature but to have the body imprisoned without any cause declared and so to become in bondage I am sure is contrary unto and against the Law of Nature and therefore not to be inforced by the Soveraign upon his Subjects 3. My next Reason is drawn ab inutili incommodo for the Statute de frangentibus prisonám made 1 E. 2. is Quod nullus qui prisonam fregerit subeat judicium vitae vel membrorum pro fractione prisonae tantum nisi causa pro qua captus imprisonetur tale judicium requirat whence this conclusion is clearly gathered that if a man be committed to prison without declaring what cause and then if either Malefactor do break the Prison or the Gaoler suffer him to escape albeit the Prisoner so escaping had committed crimen laesae Majestatis yet neither the Gaoler nor any other that procured his escape by the Law suffer any corporal punishment for setting him at large which if admitted might prove in consequence a matter of great danger to the Commonwealth 4. My next Reason is drawn ab regis honore from that great Honor the Law doth attribute unto Soveraign Majesty and therefore the rule of Law is that Solum Rex hoc non potest facere quod non potest justè agere And Hussey chief Justice 1 H. 7. saith that Sir Iohn Markham told King E. 4. he could not arrest a man either for Treason or Felony as a Subject might because that if the King did wrong the party could not have an Action against him and if the Kings Writ under his Great-Seal cannot imprison the Subject unless it contains the cause shall then the Kings Warrant otherwise do it without containing the cause that his Judge upon the return thereof may likewise judge of the same But I will conclude with that which I finde reported of Sir Iohn Davis who was the Kings Serjeant and so by the duty of his place would no doubt maintain to his uttermost the Prerogatives of the King his Royal Master And yet it was by him thus said in those Reports of his upon the Case of Tavistry-Customs That the Kings of England alwayes have had a Monarchy Royal and not a Monarchy Seignoral where under the first saith he The Subjects are Freemen and have Propriety in their Goods and Free-hold and Inheritance in their Lands But under the later they are as Villains and Slaves and have propriety in nothing And therefore said he When a Royal Monarch makes a new conquest yet if he receives any of the Nations ancient Inhabitants into his Protection they and their heirs after them shall enjoy their Lands and Liberties according to the Law And there he vouched this President and Judgment following given before William the Conqueror viz. That one Sherborn a Saxon at the time of the Conquest being owner of a Castle and Lands in Norfolk the Conqueror gave the same to one Warren a Norman and Sherborn dying the heir claiming the same by discent according to the Law it was before the Conqueror himself adjudged for the heir and that the gift thereof by the Conqueror was void Upon this and other Arguments made in this Case of the Habeas Corpus the House referred the whole Business to a Committee to examine all the Proceeding Concerning which Mr Selden afterward made report to the House that Mr Waterhouse a Clerk in the Crown Office being examined before the Committee did confess that by direction from Sir Robert Heath the Kings Attorney-General he did write the draught of a Judgement in the Case before mentioned which was delivered to Mr Attorney And Mr Keeling being examined before the Committee did confess that after Mich Tâ—â—m last the Attorney General wished him to make a special Entry of 〈◊〉 Habeas Corpus To which he answered he knew no special Entry in those Cases but onely a remittitur But said to Mr Attorney that if he pleased to draw one and the Court afterwards assent to it he would then enter it The Attorney did accordingly make a draught and the Copy thereof Mr Keeling produced to the Committee And further said that he carried this draught to the Judges but they would not assent to a special Entry Nevertheless the At. General divers times sent to him and told him there was no remedy but he must enter it Yet a week before the Parliament the Att. General called for the draught again which accordingly he gave unto him and never heard of it more Sir Robert Philips upon this Report gave his opinion That this intended Judgement in the Habeas Corpus was a draught made by some man that desired to strike us all from our Liberties but
of the opinion of Mr. Atturney General that the word proditore would have made this Treason And for the other matters he agreed with the Judges Therefore by the Court the Defendants were ruled to plead further and Mr. Lenthal of Lincolns-Inn was assigned of Counsel for them Inasmuch as the Defendants would not put in other Plea the last day of the Term judgment was given against them upon a nihil dicit which judgment was pronounced by Iones to this effect The matter of the Information now by the confession of the Defendants is admitted to be true and we think their Plea to the jurisdiction insufficient for the matter and manner of it And we hereby will not draw the true Liberties of Parliament-men into Question to wit for such matters which they do or speak in Parliamentary manner But in this case there was a conspiracy between the Defendants to slander the State and to raise sedition and discord between the King his Peers and People and this was not a Parliamentary course All the Iudges of England except one have Resolved the Statute of 4 Hen. 8. to be a private Act and to extend to Strood only But every Member of the Parliament shall have such Priviledges as are there mentioned but they have no Priviledge to speak at their pleasure The Parliament is an high Court therefore it ought not to be disorderly but ought to give good example to other Courts If a Judg of our Court shall rayl upon the State or Clergy he is punishable for it A Member of the Parliament may charge any great Officer of the State with any particular offence but this was a malevolous accusation in the generality of all the Officers of State therefore the matter contained within the Information is a great offence and punishable in this Court 2. For the punishment although the offence be great yet that shall be with a light hand and shall be in this manner 1. That every of the Defendants shall be imprisoned during the Kings pleasure Sir John Elliot to be imprisoned in the Tower of London and the other Defendants in other Prisons 2. That none of them shall be delivered out of Prison until he give security in this Court for his good behaviour and have made submission and acknowledgment of his offence 3. Sir John Elliot inasmuch as we think him the greatest offender and the ringleader shall pay a fine to the King of 2000 l. and Mr. Holles a fine of 1000 marks and Mr. Valentine because he is of less ability then the rest shall pay a fine of 500 l. And to all this all the other Justices with one voice accorded FINIS APPENDIX His Majesties Declaration to all his Loving Subjects of the Causes which moved him to dissolve the last Parliament March 10. 1628. HOwsoever Princes are not bound to give accompt of their Actions but to God alone yet for the satisfaction of the minds and affections of Our Loving Subjects We have thought good to set down thus much by way of Declaration that We may appeare to the world in the truth and sincerity of Our Actions and not in those Colours in which We know some turbulent and ill-affected spirits to masque and disguise their wicked intentions dangerous to the State would represent Us to the publick view We assembled our Parliament the 17th day of March in the third yeer of Our Reigne for the safety of Religion for securing Our Kingdoms and Subjects at home and Our friends and Allies abroad And therefore at the first sitting down of it We declared the miserable afflicted estate of those of the reformed Religion in Germany France and other parts of Christendome the distressed extremities of Our dearest Uncle the King of Denmark chased out of a great part of his Dominions the strength of that Party which was united against Us That besides the Pope and the house of Austria and their antient confederates the French King professed the rooting out of the Protestant Religion That of the Princes and States on Our party some were over-run others diverted and some disabled to give assistance For which and other important motives We propounded a speedy supply of Treasure answerable to the necessity of the Cause These things in the beginning were well resented by the House of Commons and with much alacrity and readinesse they agreed to grant a liberall aid But before it was brought to any perfection they were diverted by a multitude of Questions raised amongst them touching their Liberties and Priviledges and by other long disputes that the Bill did not passe in a long time and by that delay Our affairs were put into a far worse case then at the first Our Foraigne Actions then in hand being thereby disgraced and ruined for want of timely help In this as We are not willing to derogate from the merit and good intentions of those wise and moderate men of that House to whose forwardnesse We attribute it that it was Propounded and Resolved so soon so We must needs say that the delay of passing it when it was resolved occasioned by causlesse jealousies stirred up by men of another temper did much lessen both the reputation and reality of that Supply And their spirit infused into many of the Commissioners and Assessors in the Country hath returned up the Subsidies in such a scanty proportion as is infinitely short not onely of Our great occasâ—ons but of the presidents of former Subsidies and of the intentions of all well-affected men in that House In those large Disputes as We permitted many of Our high prerogatives to be debated which in the best times of Our Predecessors had never been questioned without punishment or sharp reproof so We did endeavour to have shortned those debates for winning of time which would have much advantaged Our great affairs both at home and abroad And therefore both by speeches and messages We did often declare Our gratious and clear resolution to maintain not onely the Parliament but all our People in their antient and just liberties without either violation or diminution and in the end for their full satisfaction and security did by an Answer framed in the form by themselves desired to their Parliamentary Petition confirm their antient and just Liberties and Rights which We resolve with all constancy and justice to maintain This Parliament howsoever besides the setling Our necessary supply and their own liberties they wasted much time in such proceedings blasting Our Government as We are unwilling to remember yet We suffered them to sit untill themselves desired Us to appoint a time for their Recesse not naming either Adjournment or Prorogation Whereupon by advice of Our Councill We resolved to prorogue and make a Session and to that end prefixed a day by which they might as was meet in so long a Sitting finish some profitable and good Lawes and withall gave order for a gratious Pardon to all Our Subjects which according to the use
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
and others was now moved by Mason to have the resolution of the Iudges and the Court with one voice said That they are now content that they shall be bailed but that they ought to find Sureties also for the good behaviour And Jones Iustice said that so it was done in the case which had been often remembered to another purpose to wit Russell's case in 9 E. 3. To which Mr. Selden answered with whom all the other Prisoners agreed in opinion That they have the Sureties ready for the bayl but not for the good behaviour and desire that the bayl might first be accepted and that they be not urged to the other Sir Robert Heath the Kings Atturney-generall exhibited Information in this Court against Sir John Eliot Knight Denzill Hollis and Benjamin Valentine Esquires the effect of which was That the King that now is for weighty causes such a day and year did summon a Parliament and to that purpose sent his Writ to the Sheriff of Cornwall to chuse two Knights by vertue whereof Sir John Eliot was chosen and returned Knight for Cornwall And that in the same manner the other Defendants were elect Burgesses of other places for the same Parliament And shewed further that Sir John Finch was chosen for one of the Citizens of Canterbury and was Speaker of the House of Commons And that the said Eliot publickly and malitiously in the House of Commons to raise sedition between the King his Nobles and People uttered these words That the Councill and Judges had all conspired to trample under-foot the Liberties of the Subjects He further shewed that the King had power to call adjourn and dissolve Parliaments And that the King for divers reasons had a purpose to have the House of Commons adjourned and gave direction to Sir Joâ—n Finch then the Speaker to move as adjournment and if it should not be obeyed that he should forthwith come from the House to the King And that the Defendants by confederacy afore-hand spake a long and continued Speech which was recited verbatim in which were divers malitious and seditious words of dangerous consequence And to the intent that they might not be prevented of uttering their premeditate speeches their intention was that the Speaker should not go out of the Chair till they had spoken them the Defendants Hollis and Valentine lay violent hands upon the Speaker to the great afrightment and disturbance of the House And the Speaker being got out of the Chair they by violence set him in the Chair again so that there was a great tumult in the House And after the said speeches pronounced by Sir John Eliot Hollis did recapitulate them And to this information the Defendants have put in a plea to the Iurisdiction of the Court because these offences are supposed to be done in Parliament and ought not to be punished in this Court or in any other but in Parliament And the Atturney-Generall moved the Court to over-rule the plea to the Iurisdiction And that he said the Court might do although he had not demurred upon the plea. But the Court would not over-rule the plea but gave day to joyne in Demurrer this Tearm And on the first day of the next Tearm the Record shall be read and within a day after shall be argued at Barre But Hyde chief Iustice said to the Counsell of the Defendants So far light we will give you This is no new question but all the Iudges of England and Barons of the Exchequer before now have oft been assembled on this occasion and have with great patience heard the Arguments on both sides and it was resolved by them all with one voice That an offence committed in Parliament criminally or contemptuously the Parliament being ended rests punishable in an other Court Jones It is true that we all resolved That an offence committed in Parliament against the Crown is punishable after the Parliament in another Court and what Court shall that be but the Court of the Kings Bench in which the King by intendment sitteth Whitlock The question is now reduced to a narrow room for all the Iudges are agreed That an offence committed in Parliament against the King or his Government may be punished out of Parliament So that the sole doubt which now remains is Whether this Court can punish it And Crook agreed That so it had been resolved by all the Iudges because otherwise there would be a failer of Iustice. And by him If such an offence be punishable in another Court what Court shal punish it but this Court which is the highest Court in the Realm for criminall offences And perhaps not onely criminall actions committed in Parliament are punishable here but words also Mason of Lincolns-Inne argued for Sir John Eliot one of the Defendants The charges in the Information against him are three 1. For speeches 2. For contempts to the King in resisting the Adjournment 3. For conspiracy with the other Defendants to detain Mr. Speaker in the Chair In the discussion of these matters be argued much to the same intent which he had argued before upon an information brought in the Star-Chamber against the same Defendants and others for the same offences therefore his Argument is reported here very briefly 1 st For his speeches They contain matter of accusation against some great Peers of the Realm and as to them he said That the King cannot take notice of them The Parliament is a Councill and the grand Councill of the King and Councills are secret and close none other hath accesse to those Councills of Parliament and they themselves ought not to impart them without the consent of the whole House A Iury in a Leet which is sworn to enquire of offences within the said Iurisdiction are sworn to keep their own counsell so the House of Commons enquire of all grievances within the Kingdom and their counsells are not to be revealed And to this purpose was a Petition 2 H. 4. numb 10. That the King shall not give credit to any private reports of their proceedings To which the King assents therefore the King ought not to give credit to the information of these offences in this case 2 ly The words themselves contain severall accusations of great men and the liberty of accusation hath alwaies been Parliamentary 50 E. 3. Parliament-Roll numb 21. The Lord Latimer was impeached in Parliament for sundry offences 11 R. 2. the Arch-Bishop of York 18 H. 6. numb 18. the Duke of Suffolk 1 Mar. Dy. 93. the Duke of Norfolk 36 H. 6. numb 60. un Uickar Generall 2 3 E. 6. c. 18. the Lord Seymer 18 of King James the Lord of St. Albans Chancellor of England and 21 of King James Cranfield Lord Treasurer and 1 Car. the Duke of Buckingham 3 ly This is a priviledge of Parliament which is determinable in Parliament and not else-where 11 R. 2. numb 7. the Parliament-Roll Petition exhibited in Parliament and allowed by the King That
the liberties and priviledges of Parliament shall onely be discussed there and not in other Courts nor by the Common nor Civill-Law see this case more at large in Selden's Notes upon Fortescue f. 42. 11 R. 2. Roll of the Processe and Iudgment An appeal of treason was exhibited against the Arch-bishop of Canterbury and others and there the advice of the Sages of the one Law and the other being required but because the appeal concerned persons which are Peers of the Realm which are not tryed else-where then in Parliament and not in an inferiour Court 28 H. 6. numb 18. There being a question in Parliament concerning Precedency between the Earl of Arundell and the Earl of Devon the opinion of the Iudges being demanded they answered That this question ought to be determined by the Parliament and by no other 31 H. 6. numb 25 26. During the prorogation of the Parliament Thorp that was the Speaker was out in Execution at the Suit of the Duke of York and upon the re-assembly of the Parliament the Commons made Suit to the King and Lords to have their Speaker delivered Upon this the Lords demand the opinion of the Iudges who answer That they ought not to determine the priviledges of the High Court of Parliament 4 ly This accusation in Parliament is in legall course of justice and therefore the accuser shall never be impeached 13 H. 7. and 11 Eliz. Dy. 285. Forging of false deeds brought against a Peer of the Realm Action de scandalis Magnatum doth not lie C. 4.14 Cutler and Dixy's case where divers cases are likewise put to this purpose 35 H. 6.15 If upon the view of the body the slayer cannot be found the Coronâ—r ought to enquire Who first found the dead body and if the first finder accuse another of the murder that is afterward acquit he shall not have an action upon the case for it was done in legall manner So it is the duty of the Commons to enquire of the grievances of the Subjects and the causes thereof and doing it in a legall manner 1â— H. 6.19 8 H. 4.6 in conspiracy it is a good plea that he was one of the Indictors And 20 H. 6.5 that he was a grand-Iury-man and informed his companions And 21 E. 4.6 7. and 35 H. 6.14 that he was a Iustice of Peace and informed the Iury 27 ass p. 12. is to the same purpose And if a Iustice of Peace the first finder a Iuror or Indictor shall not be punished in such cases à fortiori a Member of the House of Commons shall not who as 1 H. 7.4 is a Iudge 27 ass p. 44. may be objected where two were indicted of conspiracy because they maintained one another but the reason of the said case was because Maintenance is matter forbidden by the Law but Parliamentary accusation which is our matter is not forbidden by any Law C. 9.56 there was conspiracy in procuring others to be indicted And it is true for there it was not his duty to prefer such accusation 2 The accusation was extra-judicial and out of Court but it was not so in our case 3 Words spoken in Parliament which is a superiour Court cannot he questioned in this Court which is inferior 3 E. 3.19 and Stamford 153. will be objected where the Bishop of Winchester was arraigned in this Court because he departed the Parliament without license there is but the opinion of Scroop and the case was entred P. 3. E. 3.19 And it is to be observed that the plea of the Bishop there was never over-ruled From this I gather that Scroop was not constant to his opinion which was suddain being in the same Term in which the plea was entred or if he were yet the other Iudges agreed not with him and also at last the Bishop was discharged by the Kings Writ From this I gather that the opinion of the Court was against the King as in Pl. 20. in Fogassas's case where the opinion of the Court was against the King the party was discharged by privy Seal 1 and 2 Phil. and Mar. hath been objected where an Information in this Court was preferred against Mr. Ployden and other Members of the House of Commons for departing from the House without license But in that case I observe these matters 1. That this information depended during all the life of the Queen and at last was sine die by the death of the Queen 2. In the said case no plea was made to the Iurisdiction of the Court as here it is 3. Some of them submitted themselves to the Fine because it was easie for it was but 53. 4 d. But this cannot be urged as a president because it never came injudgment and no opinion of the Court was delivered therein And it is no argument that because at that time they would not plead to the jurisdiction therefore we now cannot if we would 4 These offences were not done in the Parliament House but else-where by their absence of which the Country may take notice but not of our matters being done in Parliament And absence from Parliament is an offence against the Kings Summons to Parliament 20 R. 2. Parliament-Roll 12. Thomas Hacksey was indicted of high-treason in this Court for preferring a Petition in Parliament but 1 H. 4. num 90. he preferred a Petition to have this Iudgment voided and so it was although that the King had pardoned him before And 1 H. 4. numb 104. all the Commons made Petition to the same purpose because this tends to the destruction of their priviledges And this was likewise granted 4 H. 8. c. 8. Strood's case That all condemnations imposed upon one for preferring of any Bill speaking or reasoning in Parliament are void And this hath alwaies been conceived to be a generall Act because the prayers time words and persons are generall and the answer to it is generall for a generall act is alwaies answered with Le Roy voit and a particular Act with Soit droit fait al partyes And 33 H. 6.17.18 A generall Act is alwaies inrolled and so this is 2 ly For the second matter the contempt to the command of the Adjournment 18 Jac. it was questioned in Parliament Whether the King can adjourn the Parliament although it be without doubt that the King can prorogue it And the Iudges resolve that the King may adjourn the House by Commission and 27 Eliz. it was resolved accordingly But it is to be observed that none was then impeached for moving that question 2 It is to be observed that they resolve that the adjournment may be by Commission but not resolved that it may be by a verball command signified by another and it derogates not from the Kings prerogative that he cannot so do no more then in the case of 26 H. 8.8 that he cannot grant one acre of land by parol The King himself may adjourn the House in person or under the great Seal but not by verball message