mentioned and his Majesty will take it for good service if any will give knowledge of such as have connived or combined or shall connive or combine as is mentioned in this Article that Justice may be strictly done upon them To the third His Majesty will take order to restrain the recourse of Recusants to the Court and also for the other points of this Article his Majesty is well pleased that the Laws be duly executed and that all unlawfull Licenses be annulled and discharged To the fourth His Majesty is most willing to punish for the time past and prevent for the future any the deceits and abuses mentioned in this Article and will account it a good service in any that will inform himself his Privy Councell Officers of his Revenue Judges or Councell learned of any thing that may reveal this Mystery of Iniquity and his Majesty doth strictly charge and command every of them to whom such information is made that they suffer not the same to die but do their utmost endeavour to effect a clear discovery and bring the Offenders to punishment and to the intent that no concealed toleration may be effected his Majesty leaveth the Lawes to their course To the fifth His Majesty is pleased to prohibite and restrain the coming and resort to the house of Ambassadours and will command a vigilant watch to be set for their taking and punishing as is desired To the sixth He is perswaded that this Article is already observed with good care neverthelesse for the avoyding as much as may be errours and escapes in that kind his Majesty will give order to the Lord Keeper that the next Terme he call unto him all the Judges and take information from them of the state of their severall Circuits if any such as are mentioned in this Article be in the Commission for Peace that reformation may be made thereof and will likewise give order to the Lord Admirall and to such persons to whom it shall appertain to make diligent enquiry and certifie to his Majesty if any such be in place of authority and command in his ships or service To the seventh His Majesty doth fully grant it To the eighth His Majesty doth well approve it as a matter of necessary consideration and the Parliament now sitting he recommendeth to both Houses the preparation of a fitting Law to that effect and his Majesty doth further declare that the mildnesse that hath been used towards them of the Popish Religion hath been upon hope that forraign Princes thereby might be induced to use moderation towards their Subjects of the Reformed Religion but not finding that good effect which was expected his Majesty resolveth unlesse he shall very speedily see better fruit to adde a further degree of severity to that which is in this Petition desired Sir Edward Coke's Speech March 25. upon a Question of Law in point of the Iudgement given in the Kings Bench Mich. 3. Caroli Viz. That a Prisoner detained by Committment per special mandat Regis without expressing a Cause is not bailable wherein he held negatively and spake as followeth IT is true that the Kings Prerogative is a part of the Law of this Kingdome and a supream part for the Prerogative is highly tendred and respected of the Law yet it hath bounds set unto it by the Laws of England But some worthy Members of this House have spoken of forraign States which I conceive to be a forraign Speech and not able to weaken the Side I shall maintain That Master Attorney may have something to answer unto I will speak without taking another day to the body of the Cause yet keeping something in store for another time I have not my Vade mecum here yet I will endeavour to recite my Ancestours truly I shall begin with old Authority for Errorem ad sua principia referre est refellere The ground of this Errour was the Statute of Westm. 1 cap. 15. which saith that those are not repleviable who are committed for the death of a man or by the commandment of the King or his Justices for the Forrest for so it was cited and Stamford 72. expounding hereof the commandment of the King to be the commandment of the Kings mouth or of his Councell But it is clear that by praeceptum is understood the commandment of the Justices of the Kings Bench and Common Pleas and this is contemporanea expositio quae est fortissima in lege To this purpose vide Westm. 1. cap. 9. the book of 2. R. 2. item cap. 20. de malefactoribus in parc the book of 8 Hen. 4.5 item 25.26.29 cap. ejusdem statuti whereby it may appear that the commandment here spoken of to be the commandment of the King is his commandment by his Judges Praeceptum Domini Regis in Curia non in Camera So it is likewise taken 1. R. 2. cap. 12. in a Statute made in the next Kings reign and expresly in Dyer fol. 162. § 50. fol. 192. § 24. Shall I further prove it by matter of record Fac hoc vives it is 18. E. 3. Rot. 33. coram Rege Iohn Bilston's Case who being committed and detained in prison by commandment of the King was discharged by Habeas corpus eo quod Breve Domini Regis non fuit sufficiens causa All the Acts of Parliament in title of accusation are direct to the point and also the 16. Hen. 6. Brooke and Littleton 2.1 monstrans de fait 182 per Cur. The King cannot command a man to be arrested in his presence the King can arrest no man because there is no remedy against him 1. Hen. 7.4 likewise praedict stat cap. 18. the Kings pleasure is not binding without the assent of the Realm I never read any opinion against what I have said but that of Stamford mistaken as you see in the ground yet I say not that a man may not be committed without precise shewing the cause in particular for it is sufficient if the cause in generall be shewed as for Treason c. 1. E. 2. stat de frangend prison nullus habeat judicium c. there the cause of imprisonment must be known else the Statute will be of little force the words thereof doe plainly demonstrate the intent of the Statute to be accordingly I will conclude with the highest authority that is 25. chap. of the Acts of the Apostles the last verse where Saint Paul saith It is against reason to send a man to prison without shewing a Cause Thus Master Attorney according to the rules of Physick I have given you a Preparative which doth precede a Purge I have much more in store The substance of the King's Speech upon the relating of the proceedings of the Parliament to him by the Counsellers of the Commons House of Parliament 4. April 1628. HIs Majestie upon the Report made expressed great contentment that it gave him not valuing the money given comparable to the hearts shewed in the way
to be set at liberty upon Baile and are in the nature of Objections out of Record I shall deliver them summarily to your Lordships with all faith as also the true Copies of them Out of which it shall appear cleerly to your Lordships that of those of the first kind there are no lesse then twelve most full and directly in the point to prove that persons so committed are to be delivered upon baile and among those of the other kind there is not so much as one that proves at all any thing to the contrary I shall first my Lords go through them of the first kind and so observe them to your Lordships that such scruples as have been made upon them by some that have excepted against them shall be cleered also according as I shall open them severally The first of this first kind is of Edw. 3. time It is in Pasche 18. E. 3. Rot. 33. Rex The case was thus King E. 3. had committed by Writ that under his Great Seal as most of the Kings Commands in that time were one Iohn de Bidleston a Clergie-man to the prison of the Tower without any cause shewed of the commitment The Lieutenant of the Tower is commanded to bring him into the Kings Bench where he is committed to the Marshall But the Court asked of the Lieutenant if there were any cause to keep this Bidleston in prison besides that commitment of the King He answered No. Whereupon as the Roll saith Quia videtur Curiae breve predictum that is the Kings Command sufficientem non esse causam predictum Johannem de Bidleston in prisona Marr. Regis hic detinend idem Johannes dimittitur per manucaptionem Will. de Wakefield and some others Where the Judgement of the Court is fully declared in the very point The second of this first kind of Presidents of Record is in the time of H. the 8. One Iohn Parker was committed to the Sheriffs of London pro securitate pacis at the Suit of one Brinton ac pro suspicione fellonie committed by him at Cowall in Glocestershire ac per mandatum Dni Regis he is committed to the Marshall of the Kings Bench postea isto eodem Termino traditur in Ballium There were other causes of the commitment but plainly one was a Command of the King signified to the Sheriff of London of which they took notice But some have interpreted this as if the commitment here had been for suspicion of fellony by command of the King in which case it is agreed of all hands that the Prisoner is bailable But no man can think so of this President that observes the Contents and understands the Grammar of it wherein most plainly ac per mandatum Regis hath no reference to any other cause whatsoever but is a single cause enumerated in the Return by it self as the Record cleerly shewes It is in the 22. H. 8. Rot. 37. The third is of the same time It is 35. H. 8. Rot. 33. Iohn Bincks case He was committed by the Lords of the Councell pro suspicione fellonie ac pro aliis causis illos moventibus Qui committitur Marescallo c. et immediate ex gratia curiae special traditur in ballium They commit him for suspicion of fellony and other causes them thereunto moving wherein there might be matter of State or whatsoever else can be supposed and plainly the cause of the commitment is not expressed yet the Court bailed him without having regard to those other unknown causes that moved the Lords of the Councell But it is indeed somewhat different from either of those other two that precede and from the other nine that follow For it is agreed That if a cause be expressed in the return insomuch as the Court can know why he is committed that then he may be bailed but not if they know not the cause Now when a man is committed for a cause expressed pro aliis causis Dominos de Concilio moventibus certainly the Court can no more know in such a case what the cause is then in any other The fourth of these is in the time of Queen Mary It is Pasche 2. and 3. Phil. and Mar. Rot. 58. Overtons case Richard Overton was returned upon a habeas Corpus directed to the Sheriffs of London to have been committed to them and detained per mandatum prenobilium virorum honorabilis Concilii Dominorum Regis Reginae Qui committitur Marescallo c. immediate traditur in ballium In answer to this President or by way of objection against the force of it hath been said that this Overton stood at that time indicted of Treason It is true he was so indeed but that appeares in another Roll that hath no reference to the Return as the Return hath no reference to that Roll. Yet they that object this against the force of this President say That because he was indicted of Treason therefore though he was committed by the command of the Lords of the Councell without cause shewed yet he was bailable for the Treason and upon that was here bailed Then which Objection nothing can be or is more contrarie to Law or common Reason It is most contrarie to Law for that cleerly every Return is to be adjudged by the Court out of the body of the Writ it self not by any other collaterall or forrain Record whatsoever Therefore the matter of Indictment here cannot in Law be cause of the bailing of the Prisoner And it is so adverse to all common Reason that if the objection be admitted it must of necessity follow that whosoever shall be committed by the King or the Privie Councell without cause shewed and be not indicted of Treason or some other offence may not be inlarged by reason of the supposition of matter of State But that whosoever is so committed and withall stands so indicted though in another Record may be inlarged whatsoever the matter of State be for which he was committed The absurdity of which assertion needs not a word for further confutation as if any of the Gent. in the last Judgement ought to have been the sooner delivered if he had been also indicted of Treason Certainly if so Traitours and Fellons had the highest priviledges of personall Liberty and that above all other Subjects of the Kingdome The first of this first kind is of Queen Marie's time also It is Pasche 4. 5. P. M. Rot. 45. the Case of Edward Newport He was brought into the Kings Bench by habeas Corpus out of the Tower of London cum causa viz. Quod commissus fuit per mandatum Conciliorum Dominae Reginae Qui committitur Marr. c. et immediate traditur in ballium To this the like kind of answer hath been made as in that other Case of Overton next before cited They say that in another Roll of another Terme of the same year it appears he was in question for suspicion of Coyning And it
the Privy Councell is a limited jurisdiction for they have no power in all causes their power being restrained in certain causes by severall Acts of Parliament as it appeareth by the statute of 20 Edward the third c. 11. 25 Ed. the third c. 1. stat 4. the private petition in Parliament permitted in the 1 of R. 2. where the Commons petition that the Privie Councell might not make any Ordinance against the Common Law Customes or Statutes of the Realm the fourth of Henry the fourth ca. 3. 13 Hen. the fourth 7. 31 Henry the sixth and their jurisdictions being a limited jurisdiction the cause and grounds of their commmitment ought to appear whereby it may appear if the Lords of the Councell did commit him for such a cause as was within their jurisdiction for if they did command me to be committed to prison for a cause whereof they had not jurisdiction the Court ought to discharge me of this imprisonment and howsoever the King is Vicarius Dei in terra yet Bracton cap. 8. fol. 107. saith quod nihil aliud potest Rex in terris cum sit Minister Dei Vicarius quam solum quod de jure potest nec obstat quod dicitur quod Principi placet legis habet vigorem quia sequitur in fine legis cum lege Regia quae de ejus imperio lata est id est non quicquid de voluntate Regis temere praesumptum est sed animo condendi Iura sed quod consilio Magistratuum suorum Rege author praestant habita super hoc deliberatione tract rect fuer definit Potestat itaque sua juris est non injuriae The which being so then also it ought to appear upon what cause the King committeth one to prison whereby the Judges which are indifferent between the King and his Subjects may judge whether his commitment be against the Laws and Statutes of this Realm or not Thirdly it is to be observed that the Kings command by his Writ of Habeas corpus is since the commandment of the King for his commitment and this being the latter commandment ought to be obeyed wherefore that commanding a return of the body cum causa detentionis there must be a return of some other cause then Per mandatum domini Regis the same commandment being before the return of the Writ Pasch. 9. E. 3. pl. 30. fol. 56. upon a Writ of Cessavit brought in the County of Northumberland the Defendants plead That by reason the Country being destroyed by Warres with the Scots King Edward the second gave command that no Writ of Cessavit should be brought during the Warres with Scotland and that the King had sent his Writ to surcease the Plea and he averreth that the Warres with Scotland did continue Hearle that giveth the Rule saith That we have command by the King that now is to hold this Plea wherefore we will not surcease for any writ of the King that is dead and so upon all these reasons and presidents formerly alledged I conclude that the return that Sir Iohn Corbet was committed and detained in prison Per speciale mandatum domini Regis without shewing the nature of the commandment by which the Court may judge whether the commandment be of such a nature as he ought to be detained in prison and that without shewing the cause upon which the commandment of the King is grounded is not good As unto the second part which is Whether the time of the commitment by the return of the Writ not appearing unto the Court the Court ought to detain him in prison or no I conceive that he ought not to be continued in prison admitting that the first commitment by the command of the King were lawfull yet when he hath continued in prison by such reasonable time as may be thought fit for that offence for which he is committed he ought to be brought to answer and not to continue still in prison without being brought to answer For it appears by the Books of our Laws that liberty is a thing so favoured by the Law that the Law will not suffer the continuance of a man in prison for any longer time then of necessity it must and therefore the Law will neither suffer the party Sheriffs or judges to continue a man in prison by their power and their pleasure but doth speed the delivery of a man out of prison with as reasonable expedition as may be And upon this reason it is resolved in 1 2 El. Dyer 175. 8 Ed. 4.13 That howsoever the Law alloweth that there may be no term between the rest of an originall Writ and the return of the same where there is onely a summons and no imprisonment of the body yet it will not allow that there shall be a term between the rest of a Writ of Capias and the return of the same where the body of a man is to be imprisoned insomuch that it will give no way that the party shall have no power to continue the body of a man imprisoned any longer time then needs must 39 E. 3.7 10 H. 7.11 6 E. 4.69 11 E. 4.9 48 E. 3.1 17 E. 3.1 2 Hen. 7. Kellawaies Reports do all agree that if a Capias shall be awarded against a man for the apprehending of his body and the Sheriffe will return the Capias that is awarded against the party a non est inventus or that languidus est in prisona yet the Law will allow the party against whom it is awarded for the avoiding of his corporall pennance and dures of imprisonment to appear gratis and for to answer For the Law will not allow the Sheriffe by his false return to keep one in prison longer then needs must 38 Ass. pl. 22. Brooks imprisonment 100. saith That it was determined in Parliament that a man is not to be detained in prison after he hath made tender of his fine for his imprisonment therefore I desire your Lordship that Sir Iohn Corbet may not be kept longer in durance but be discharged according to the Law The substance of the Objections made by Mr. Attorney General before a Committee of both Houses to the Argument that was made by the House of Commons at the first conference with the Lords out of Presidents of Record and Resolutions of Iudges in former times touching the Liberty of the person of every Freeman and the Answers and Replies then presently made by the House of Commons to these Objections AFter the first conference which was desired by the Lords and had by a Committee of both houses in the painted Chamber touching the Reasons Laws Acts of Parliament and Presidents concerning the Liberty of the person of every Freeman M r Attorney General being heard before the Committee of both houses as it was assented by the house of Commons that he might be before they went up to the conference after some preamble made wherein he declined the answering all Reasons of Law
and Acts of Parliament came onely to the Presidents used in the Argument before delivered and so endeavoured to weaken the strength of them that had been brought in behalf of the subjects to shew that some other were directly contrary to the Law comprehended in the Resolutions of the house of Commons touching the bailing of Prisoners returned upon the writ of Habeas Corpus to be committed by the special command of the King or the Councel without any cause shewed for which by Law they ought to be committed And the course which was taken it pleased the Committee of both houses to allow of was that M r. Attorney should make his Objections to every particuler President and that the Gentlemen appointed and trusted herein by the house of Commons by several Replies should satisfie the Lords touching the Objections made by him against or upon every particuler as the order of the Presidents should lead them he began with the first 12. Presidents that were used by the house of Commons at the conference delivered by them to prove that Prisoners returned to stand so Committed were delivered upon bail by the Court of Kings Bench The first was that of Bildstones case in the 18. Edw. 3. Rot. 33. Rex To this he Objected First that in the return of him into the Court it did not appear that this Bildstone was committed by the Kings command and Secondly that in the Record it did appear also that he had been committed for suspicion of counterfaiting the great Seal and so by consequence was bailable by the Law in regard there appeared a Cause why he was committed in which case it was granted by him as indeed it was plain and agreed of all hands that the Prisoner is bailable though committed by Command of the King and he said that this part of the Record by which it appeared he had been committed for suspicion of treason was not observed to the Lords in the Argument before used and he said also to the Lords that there were three several kinds of Records by which the full truth of every award or bailing upon a Habeas Corpus is known First the remembrance Roll wherein the award is given Secondly the file of the writt and the return and Thirdly the Scruect or Scruet finium wherein the baile is entered and that onely the remembrance Roll of this Case was to be found and that if the other two of it were extant he doubted not but that it would appear also that upon the return it self the Cause of the Commitment had been expressed and so he concluded that this proved not for the house of Commons touching the Matter of bail where a Prisoner was committed by the Kings special command without Cause shewed To this Objection the reply was First that it was plain that Bildstone was committed by the Kings express Command For so the very words of the Writt are to the Constable of the Tower quod eum tenendum Custodiae facias c. then which nothing can more fully express a Commitment by the Kings command Secondly how ever it be true that in the latter part of the Record it doth appear that Bildstone had been Committed for suspicion of Treason yet if the times of the proceeding expressed in the Record were observed it would be plain that the Objection was of no force for this one ground both in this Case and all the rest is infallible and never to be doubted of in the Law Nota. That Justices of every Court adjudge of the force and strength of a return out of the body of it self onely and as therein it appears Now in Easter term in the 18. Edward 3. he was returned and brought before them as Committed onely by the Writt wherein noe Cause is expressed and the Leivetenant the Constable of the Tower that brought him into the Court saies that he had no other warrant to detain him Nisi breve predictum wherein there was no mention of any Cause the Court thereupon adjudged that breve predictum for that speciall command was not sufficient causa to detain him in prison and thereupon he is by judgment of the Court in Easter term let to Mainprize But that part of the Record wherein it appears that he had indeed been committed for suspicion of Treason is of Trinity term following when the King after the letting of him to Mainprize sent to the Judges that they should discharge his Mainprize because no man prosecuted him And at that time it appears but not before that he had been in for suspicion of Treason so that he was returned to stand committed by the Kings special command onely without Cause shewed in Easter term And then by judgment of the Court let to Mainprize which to this purpose is but the same with bail though otherwise it differ And in the term following upon another occasion the Court knew that he had been committed for suspicion of Treason which hath no relation at all to the letting of him to Mainprize nor to the judgement of the Court then given when they did not nor could possible know any Cause for which the King had committed him And it was said in behalf of the house of Commons that they had not indeed in the Argument expresly used this latter part of Bildstones Case because it being onely of Trinity term following could not concern the reason of an Award given by the Court in Easter term next before yet notwithstanding that they had most faithfully at the time of their Argument delivered into the Lords as indeed they had a perfect coppy at large of the whole Record of this Case as they had done also of all other presidents whatsoever cited by them in so much as in truth there was not one president of Record of either side the coppy whereof they had not delivered in likewise nor did Mr. Attorney mention any one besides those that were so delivered in by them And as touching those 3. kinds of Records the remembrance Roll the return and file of the Writt and the Scruets it was answered by the gentlemen imployed by the house of Commons that it was true that the Scruect and return of this Case of Bildstone was not to be found but that did not lessen the weight of the president because always in the Award or Judgment drawn up in the remembrance Roll the Cause whatsoever it be when any is shewed upon the return is always expressed as it appears clearly by the constant Entries of the Kings-Bench Court so that if any Cause had appeared plainly in that part of the Roll which belongs to Easter term wherein the Judgment was given but the return of the commitment by the Kings command without Cause shewed and the Judgment of the Court that the Prisoner was to be let to Mainprize appears therein onely and so notwithstanding any Objection made by Mr. Attorney the Cause was maintained to be a clear proof among many others
of explanation we shall provide onely that the cause ought to be expressed upon the return of the Habeas Corpus then out of the words of the Statute it will necessarily be inferred that before the return of the Habeas Corpus the cause need not to be expressed because the Statute hath appointed the time of the expression of the cause And it will be construed that if the makers of the Statutes had intended that the cause should have been soener shewen they would have provided for it by the Act and then the Act which we term an Act of explanation will be an Act of the abridging of Magna Charta and the rest of the Statutes Or if this Act do not make the commitment without expressing the cause to be Lawfull yet it will clearly amount to a tolleration of the commitment without expressing the cause untill the Habeas Corpus or to a general or perpetual dispensation beginning with and continuing as long as the Law it self And in my understanding the words in this intended Law that no Freeman can be committed without cause can no wayes advantage us or satisfie this Objection for till the return of the Habeas Corpus he that commits is Judge of the cause or at least hath a license by this Law till that time to conceal the cause and the Goaler is not subject to any action for the detaining of the Prisoner upon such command for if the Prisoner demanded the cause of his inprisonment of the Goaler It will be a safe answer for him to say that he detains the Prisoner by Warrant and that it belongs not unto him to desire those which commit the Prisoner to shew the cause untill he returns the Habeas Corpus and if the Prisoner be a Suitor to know the cause from those that committed him it will be a sufficient answer for them to say they will express the cause at the Return of the Habeas Corpus In this cause there will be a wrong because the commitment is without cause expressed and one that suffers that wrong viz. the party imprisoned and yet no such wrong doer but may excuse if not justifie himself by this Law In making of Laws we must consider the inconveniences which may ensue and provide for the prevention of them lex caveat de futuris I have taken into my thoughts some inconveniences which I shall expose to your considerations not imagining that they can happen in the time of our gracious Soveraign but in an Act of Parliament we must provide for the prevention of all inconveniences in future times 1. If a man be in danger to be imprisoned in the beginning of a long vacation for refusing to pay some small summe of money and knows that by this Act he can have no inlargement till the Return of the Habeas Corpus in the Term and that the charge of his being in Prison and of his inlargement by Habeas Corpus will amount to more then the summe he will depart with money to prevent his imprisonment or to redeem himself thence because he cannot say any man doth him wrong untill the Return of the Habeas Corpus the Law resolves a man will pay a Fine rather then be imprisoned for the Judgement which is given when one is fined is Ideo Capiatur and the highest execution for dept is a Capias ad satisfaciendum the Law presuming any man will depart with his money to gain his Liberty and if the Prisoner procure an Habeas Corpus and be brought into the Kings-bench by virtue of it yet the cause need not to be then expressed The provision of this Law being that if no cause be then expressed he shall be bayled and no cause being shewen upon the Return of the Habeas Corpus yet may be pretended that at the time of his Commitment there were strong presumptions of some great offence But upon examination they are cleared or it may be said that the offence was of that nature that the time of his imprisonment before the Return was a sufficient punishment and we may be frequently imprisoned in this manner and never understand the cause and have often such punishment and have no means to justifie our selves and for all these proceedings this Law will be the justification or colour 2. If by this Act there be a Tolleration of imprisonment without shewing cause untill the Return of the Habeas Corpus yet it is possible to accompany that imprisonment with such circumstances of close restraint and others which I forbear to express as may make imprisonment for that short time as great a punishment as a perpetual imprisonment in our ordinary manner 3. The party may be imprisoned a long time before he shall come to be delivered by this Law The place of his imprisonment may be in the furthest parts of this Kingdom The Judges always makes the Return of the Habeas Corpus answerable to the distance of the Prison from Westminster The Goaler may neglect the Return of the first Process and then the party must procure an alias and the Goaler may be then in some other imployment for the King and excuse the not returning of the body upon that Process and this may make the imprisonment for a year and in the end no cause being returned the party may be discharged but in the mean time he shall have imprisonment he shall never know the cause he shall have no remedy for it nor be able to question any for injustice which have not a justification or excuse by this Law 4. The party may be imprisoned during his life and yet there shall be no cause ever shewn I will instance in the manner a man may be committed to the furthest part of the Kingdom Westward he obtains an Habeas Corpus Before the Goaler receives the Habeas Corpus or before the returns it the Prisoner by Warrant is removed from that Prison to another it may be the furthest Northern part of the Realm the first Goaler returns the special Matter which will be sufficient to free himself and in like manner the Prisoner may be translated from one Prison to another and his whole life shall be a preregrination or wayfairing from one Goal to another and he shall never know the cause nor be able to complain of any who cannot defend their actions by this Bill 5. If the Prisoner be brought into the Court by Habeas Corpus and no cause expressed and thereupon he be enlarged he may be partly committed again and then his enlargement shall onely make way for his commitment and this may continue during his life and he shall never know the cause and this not remedied but rather permitted by this Act. And there are also considerable in this Matter the expence of the party in Prison His Fees to the Goaler his costs in obtaining and prosecuting an Habeas Corpus and his charges in removing himself attended with such as have the charge of his conduct and
hereby will and command you out of our Treasury remaining in the receipt of the said Exchequer forthwith to pay or cause to be paid unto Phillip Burlamachi of London Merchant the summ of 30000 l. to be paid by him over by Bill of Exchange unto the Low-Countries and Germany unto our trustie and well be loved Sir William Balfoore Knight and Iohn Dalber Esquire or either of them for levying and providing certain numbers of Horse with Arms for Horse and Foot to be brought over into this Kingdom for our service viz. For the levying and transporting of a 1000 Horse 15000 l. for 5000 Muskets 5000 Corslets 5000 Pikes 10500 l. and for 1000 Curasiers compleat 200 Corslets and 200 Carbines 4500 l. Amounting in the whole to the said summ of 30000 l. And this our Letter shall be your sufficient warrant and discharge in this behalf Given under our privy Seal at our Palace of Westminster 30. of Ianuary in the third year of our raign The Commission to the Lords and others of the privy Councel concerning the present raising of money CHARLES by the grace of God King of England Scotland France and Ireland defender of the faith c. To Sir Thomas Coventry Lord Keeper of the great Seal of England Iames Earl of Marlburgh Lord Treasurer Henry Earl of Manchester Lord President of the Councel Edward Earl of Worcester Lord Keeper of the privy Seal George Duke of Buckingham our high Admiral of England William Earl of Pembroke Lord Steward of our Houshould Phillip Earl of Mongommery Lord Chamberlain of our Houshould Theophilus Earl of Suffolk Edward Earl of Dorcet William Earl of Salisbury Thomas Earl of Exceter Iohn Earl of Bridgwater Iames Earl of Carlile Henry Earl of Holland William Earl of D. George Earl of Totnes Sir George Hay Knight Lord Chaunceller of Scotland William Earl of Morton Thomas Earl of Kelly Thomas Earl of Melros Edward Viscount Conway one of our principall Secritaries of State Edward Viscount Wimbleton Oliver Viscount Grandison Henry Viscount Falkland Lord Deputy of Ireland To the Lord Bishop of Winchester William Lord Bishop of Bath and Wells Fulk Lord Brook Dudly Lord Carleton vice Camberlain of our Houshould Sir Thomas Edmonds Treasurer of our Houshould Sir Iohn Savill Comptroller of our Houshould Sir Robert Nawton Master of our Court of Wards Sir Iohn Cooke one of the principal Secritaries of our State Sir Richard Weston Chancellor and under Treasurer of our Exchequer Sir Iulius Caesar Master of the Roll. Sir Humfry May Knight Chancellor of our Dutchy of Lancaster GREETING WHereas the present Conjuncture of the pressing affairs of Christendom and our own particular interest in giving assistance to our oppressed Allies and for the providing for the defence and safety of our own dominions And people do call upon us to neglect nothing that may conduce to those good ends And because monies the principall sinews of War and one of the first and chiefest in all great preparations and actions necessary to be provided in the first place and we are carefull the same may be raised by such ways as may best stand with the State of our Kingdoms and Subjects and yet may answer the pressing occasions of the present times We therefore out of the experience we have had and for the trust we repose in your wisdoms fidelities and dutifull care of your services and for the experience you have of all great causes concerning us and our State both as they have relation to forraign parts abroad and as to our Common-Wealth and People at home Ye being Persons called by us to be of our privy Councel have thought fit amongst those great and important matters which so much concern us in the first and chiefest place to recommend this to your speciall care and dilligence And we do hereby authorize and appoint and stricktly will and require you speedily and seriously to enter into consideration of all the best and speediest ways and means yee can for raising of money for the most important occasions aforesaid which without extreamest hazard to us our dominions and people and to our friends and Allies can admit of no long delay The same to be done by imposition or otherwise as in your wisdom and best Judgments ye shall finde to be most convenient in a case of this inevitable necessity wherein form and circumstance must be dispensed with rather then the substance be lost or hazarded And herein our will and pleasure is that you or as many of you as from time to time can be spared from attendant upon our Person or other our necessary services do use all dilligence by your frequent meetings and serious consultations and when you have brought any thing to maturity ye make report thereof unto us and advertise us of those things ye shall either resolve upon or thinck fit to represent unto us for the advancement of this great service which with the greatest affection we can we recommend to your best care and Iudgement Whereof you must not fail as you tender our honour and the honour and safety of our Dominions and People and for the doing hereof these presents shall be to you and every of you a sufficient warrant In witness whereof we have caused these our Letters to be made Letters Patents Witnes our selfe at Westminster the last day of February in the third yeare of our Raigne Per ipsum Regem Articles to be propounded to the Captains and Masters as well English as French touching the service in hand at ROCHEL 4. May 1628. the ships rideing before the Town 1. WHether in your opnion and judgments by the means and strength we have the Floates and Pallizadoes may be forced and the entrance into the Town may be thereby made for the victuallers 2. If you shall think it fit what in your opinions will be the best and readiest way to open the same 3. Whether you hold it fit to send in the victuallers at the same instant together with the fire ships and barks considering that if it should not take effect instead of relieving the Town we relieve the Enemy 4. If in this attempt part shall get through and the greater part be taken by the Enemies whether the service or dishonour will be greater 5. If in case you think it fit to give the attempt whether you hold it likewise necessary that the Merchant ships should second or follow them and how far you hold it safe for them to go 6. Whether the more to countenance the service you hold it fit for the Kings ships to put themselves under sail being they are to be exposed to shallow water and a narrow Channel and to lye under command of many of the Enemies Forts where by an unlucky accident many of them may be brought on ground and miscarry 7. You are here to deliver your opinions upon your allegiance the rather because the onely service the Kings ships there can do is to cause the Enemies Fleet which rides
hither that by a timely provision against those great imminent dangers our selves may be strengthened at home our Friends and Allies incouraged abroad and those great causes of feare scattered and dispelled And because in all warlike preparations Treasure bears the name and holds the semblance of the nerves and finewes and if a finew be too short or too weak if it be either shrunk or strained the part becomes unusefull it is needfull that you make a good and timely supply of treasure without which all counsells will prove fruitlesse I might presse many reasons to this end I will but name few First for his Majesties sake who requires it great is the duty which we owe him by the law of God great by the law of Nature and our own Allegeance great for his own merit and the memory of his ever blessed Father I do but point at them but me thinks our thoughts cannot but recoyle on our consideration touched by his Majestie which to me seemes to sound like a Parliamentarie part or Covenant A Warre was advised here Assistance professed yea and protested here I do but touch it I know you will deeply think on it and the more for the example the King hath set you his Lands his Plate his Jewells he hath not spared to supply the War what the People hath protested the King for his part hath willingly performed Secondly for the Cause sake it concernes us in Christian Charity to tender the distresses of our Friends abroad it concernes us in honour not to abandon them that have stood for us and if this come not close enough you shall finde our Interest so woven and involved with theirs that the Cause is more ours then theirs If Religion be in perill wee have the most flourishing and orthodoxe Church if Honour be in question the steps and monuments in former ages will shew that our Ancestours have left us as much as any Nation if Trade Commerce be in danger we are Islanders it is our life all these at once lye at stake and so doth our safety and being Lastly in respect of the manner of his Majesties demand which is in Parliament the way that hath ever best pleased the subjects of England and good cause for it for Aides granted in Parliament work good effects for the People they be commonly accompanied with wholesome Lawes gracious Pardons and the like Besides just and good Kings finding the love of their people and the readinesse of their supplies may the better forbear the use of their Prerogatives and moderate the rigour of the Lawes towards their Subjects This way as his Majestie hath told you he hath chosen not as the onely way but as the fittest not as destitute of others but as most agreeable to the goodnesse of his own most gracious disposition and to the desire and weale of his people If this be deferred Necessity and the Sword of the Enemy make way to the others Remember his Majesties admonition I say remember it Let me but adde and observe Gods mercy towards this land above all others the torrent of Warre hath overwhelmed other Churches and Countries but God hath hitherto restrained it from us and still gives us warning of every approaching danger to save us from surprize And our gracious Sovereign in a true sense of it calls together his High Court of Parliament the lively representation of the wisdome wealth and power of the whole Kingdome to joyn together to repell those hostile attempts which have distressed our Friends and Allies and threatned our selves And therefore it behoves all to apply their thoughts unto Counsell and Consultations worthy the greatnesse and wisdome of this Assembly to avoid discontents which may either distemper or delay and to attend that unum necessarium the common Cause propounding for the scope and work of all the debates the generall good of the King and Kingdome whom God hath joyned together with an indissoluble knot which none must attempt to cut or untie And let all by unity and good accord endeavour to pattern this Parliament by the best that have been that it may be a pattern to future Parliaments and may infuse into Parliaments a kinde of multiplying power and faculty whereby they may be more frequent and the King our Sovereign may delight to sit on this Throne and from hence to distribute his graces and favours amongst his people His Majestie hath given you cause to be confident of this you have heard from his royall mouth which neverthelesse he hath given me expresse command to redouble If this Parliament by their dutifull and wise proceedings shall but give this occasion his Majestie will be ready not onely to manifest his gracious acceptation but to put out all memory of those disasters that have troubled former Parliaments I have but one thing to adde and that is As your consultations be serious so let them be speedy The Enemy is beforehand with us and flies on the wings of Succese we may dallie and play with the houre-glasse that is in our powers but the houre will not stay for us and an opportunity once lost cannot be regained And therefore resolve of your Supplies that they may be timely and sufficient serving the occasion Your Counsel your Aid all is but lost if your Aid be either too little or too late And his Majestie is resolved that his affaires cannot permit him to expect it overlong And now having delivered what his Majestie hath commanded me concerning the cause of this Assembly his Majestie willeth that you of the House of Commons repaire to your owne House to make choice of a Speaker whom his Majestie will expect to be presented unto him on Wednesday next at two of the clock The Speaker Sir John Finches Speech March 19. 1627. Most Gracious Sovereign YOur obedient and loyall Subjects the Knights Citizens and Burgesses by your royall Summons here assembled in obedience to your gracious direction according to their antient usage and priviledge have lately proceeded to the choice of a Speaker and whether sequestring their better Judgements for your more weighty affairs or to make it known that their honour and wisdome can suffer neither increase nor diminution by the value or demerits of any one particular Member in what place soever serving them omitting others of worth and ability they have fixed their eyes of favour and affection on Mee Their long knowledge of my unfitnesse every way to undergo a charge of this important weight and consequence gave mee some hope they would have admitted my just excuse yet for their further and clearer satisfaction I drew the curtains and let in what light I could upon my owne inmost thoughts truely and really discovering to them what my self best knew and what I most humbly beseech your royall Majestie to take now into consideration that of so many hundreds sitting amongst them they could have found few or none whose presentation to your Majestie would have been of lesse repute
King is as an Angel of God of a quick of a noble and just apprehension he straines not at gnats he will easily distinguish between a vapour and a fogg between a mist of errour and a cloud of evill right he knowes if the heart be right Out of the abundance of the heart the mouth speakes You proceed to a survey of the lustre of this great and glorious Assemblie and in that as in a curious Crystall you observe the true happinesse which we all here enjoy You have distributed and divided aright and whosoever sees it otherwise hath an evill eye or a false glasse We have enjoyed it long through the happy meanes of gracious and good Princes and the way to enjoy it still is to know and heartily to acknowledge it and that God hath not done so to any other Nation It is a prime cause or meanes of this our happinesse You mention the forme of Government under which we live a Monarchie and the best of Monarchies where Sovereignty is hereditarie no Inter-Regnum nor competition for a Crown Descent and Succession are all one The Spirit of God by the mouth of the wisest of Kings long since proclaimed this happinesse Blessed art thou O Land where thy King is the son of Nobles The frames of other States are subject some to inconstant Levitie some to Faction some to Emulation and Ambition and all to manifold Distempers in which the People go to wrack The Monarchie is most naturall and in it Unity is the best cement of all government principally in respect of the unity of the Head which commands the rest And therefore other States when they have tryed a while doe for the most part resolve into this as into the best for Peace for Strength and for Continuance But formes of other governments though never so exact move not of themselves but are moved of their governours And therefore our Monarchie as you have truly said this glorious Assemblie the lively image and representation of our Monarchie is made happy and perfect by the Royall Presence that sits here in his highest Royal Throne the Throne of the Law-giver glorious in it selfe glorious by those happy Lawes and Oracles which have issued from it and most glorious by them that sit on it his Majestie and his Royall Progenitours incomparable Kings that with so much honour have swayed the Sceptre of this Kingdome so many successions of Ages In the next place after the Throne of Majestie you look into the Chaire of Doctrine the reverend Prelates and upon the state of Religion their proper charge This is the blessing of all blessings the priviledge and assurance that secures us of all the rest that as our Religion is most sincere and orthodoxe so our Clergie is eminent both for purity of Doctrine and integritie of Life our Priests are clothed with righteousnesse and their lips preserve knowledge and therefore God's Saints may and doe sing with joyfulnesse I must joyn with you in attributing this transcendent blessing to us as in the first place to God's goodnesse so in the second to his Majestie 's piety who following the steps of his ever-blessed Father is carefull that all the Lamps of the Church may be furnished with Oyle and especially those which are set on golden Candle-sticks with the purest and best oyle The Schools also and nurceries of Learning never so replenished especially with Divinity as in this last Age as they all shew his Majestie 's Piety so are they infallible Arguments of his Constancy The triall which you call the fierie triall undergone by his Majestie in the place of danger and again the power and policie of Rome and Spaine hath approved his resolution inimitable and his own remarkable example in his closet and his chamber his strict over-sight of and command to his Houshold servants and his charge to his Bishops and Judges his Edicts his Proclamations and Commissions and the like for the execution of the Lawes and his general care to preserve the fountain pure both from Schisme and Superstition are faire fruits and effects of a pious and zealous resolution From the chaire of Doctrine you turn to the state of Honour unto the Nobles and Barons of England These are Robâ—r belli who for the service of the King and Kingdome are to make good with their Swords what the Church-men must hallow and blesse by their Prayers And therefore as the Prelates are the great Lights of the Church so the Nobility are the Starres of the State and you know that the starres have fought and fought powerfully against the enemies of God From the state of Honour you come to the state of Justice and to the twelve Lyons under Solomon's Throne the Iudges and Sages of the Law and as their peculiar charge intrusted to them by our Sovereigne the Lawes of the Kingdome Lawes undoubtedly fitted to the constitution of this people for Leges Angliae and Consuetudines Angliae are Synonyma and Consuetudo est altera natura so as besides the justnesse and rightnesse of the Lawes they are become naturall to our people and that is one of the powerfullest meanes which begetteth obedience and such Lawes in the mouthes of learned and upright Judges are like waters in a pure chanel which the fairer it runs the clearer they run and produce that whereof Solomon speaks Prov. 29.2 When the righteous are in authority the People rejoyce From the Law you passe to the Knights Citizens and Burgesses and the third Estate who represent the Commons of England in whom the Scripture is verified In the multitude of People is the Kings honour and therefore you may be sure that distance of place and order breeds no distance in affection for wise Kings ever lay their honour next to their hearts Kings are Pastores populi and the Shepherds care is nothing lesse to the furthest then to the next part of his Flock and it is asmuch towards the least of his Lambs as towards the greatest Cattel And as in the Natural bodie no member is so remote but it is still within the care of the head so in this great Politick bodie of the Kingdome no ranck or order of People so low is at such distance from the Throne but it dayly feeles the influence and benefit of the Kings care and protection And to say the truth in a well-governed Kingdome the superiour rancks of Nobles of Judges and of Magistrates are not ordained for themselves but as conduits for the Kings justice protection and goodnesse to the lower rancks of his People And as the People are so its just cause they should be constant to the Poles of Love and Loyalty And thus having perused both Houses by divided parts joyn them together and in that juncture you believe truly and materially that the greatest denyal of their joynt requests is The King will advise A note very remarkable It shewes the indulgence of Kings it shews also the wisdom and judgement of the Houses the
But yet our Eden in this garden of the Common-wealth as there are the flowers of the Sun which are so glorious that they are to be handled onely by royall Majestie so are there also some Daisies and wholsome herbs which every common hand that lives and labours in this garden may pick and gather up and take comfort and repose in them Amongst all which this oculus diei this bona libertas is one and the cheif one Thus much in all humblenesse I presume to speak for the occasion I will now descend to the Question wherein I hold with all dutifull submission to better Iudgments that these Acts of power in imprisoning and confining of his Majesties Subjects in such manner without any declaration of the cause are against the fundamentall Lawes and Liberties of this Kingdome And for these reasons thus briefly drawn I conclude 1. The first from the great favour which the Law doth give unto and the great care which it hath ever taken of the liberty and safety of this Kingdome I should not need to take the question in pieces nor handle it in parts dividedly but as one intire because I hold no other difference between imprisonment and confinement then only this that one hath a lesse and streighter the other a greater and larger Prison And this word Confinement not being to be found in any one case of our law if therefore it is become the language of State it is too difficult for me to define To proceed therefore in maintenace of my first reason I find our Law doth so much favour the Subjects liberty of 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 accompts her capitall enemies therefore did subject their bodies to imprisonment But by the statute of Marlebridge Cap. 24. which was made 35. Hen. 3. who was the eighth King from the Conquest because Bailiffs would not render accounts to their Lords it was enacted that their bodies should be attached And afterwards by the statute 23. Edw. 3.17 who was the 11 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 many body was subject to be taken or imprisoned otherwise then as aforesaid Whereby it is evident how much the Common Law favoured the Liberty of the Subject and protected his body form imprisonment I will inforce the reason futher by a Rule in law and some cases in Law upon that Rule The Rule is this That Corporalis injuria non recipit aestimationem fuluro So as if the question be not for a wrong done to the person the Law will not compell him to sustain it and afterwards except a remedy for the Law holds no damage a sufficient recompence for a wrong which is corporall The cases in Law to prove this rule shall be these If one menace me in my goods or that he will burn the evidence of my land which he hath in his custody unlesse I make unto him a Bond there I cannot avoyd the Bond by pleading of this menace But if he restrains my person or threatens me with battery or with burning my house which is a protection for my person or with burning an instrument of manumission which is an evidence of my enfranchisement upon these menaces these or dares I shall avoid the bond by plea. So if a Trespassour drives my beast over another Mans ground and I pursue to rescue it there I am a Trespassour to him on whose ground I am But if a man assault my person and I for my safety fly over into another man's ground there I am no Trespassour to him for Quod quis in tuitione sui corporis fecerit jure id fecisse existimatur Nay which is more the Common Law did favour the Liberty not only of Freemen but even of the persons of Bondmen and Villains who haue no right of propriety either in lands or goods as Freemen have And therefore by the Law the Lord could not maim his Villain nay if the Lord commanded another to beat his Villain and he did it the Villain should have his action of Battery against him for it If the Lord made a Lease for yeares to his Villain if he did plead with his Villain if he tendred his Villain to be Champion for him in a Writt of Right any of those acts and many other which I omit were in Law infranchisements and made these Villains Freemen Nay in a suite brought against one if he by Attorney will pleade that he is a Villain the Law is so carefull of Freedome that it dissallowes this plea by Attorny but he must doe it propria persona because it binds his Posterity and bloud to the Villains also And thus much in the generall for my first reason 2. My next reason is drawn by an Argument à majori ad minus I frame it thus 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 more worth then Raiment where the Canonists say that Vestimentum comprehendeth all outward things which are not in the same degree with that which is corporall And our Law maketh it also plain for if a Villain purchase Frank-land this maketh it Villain-land according to the nature of his person but it holds not è converso Frank-land shall not free the person Now that the King hath no absolute power either over our Lands or Goods I will onely at this time but put a case or two for without proof of the Premisses my Conclusion would not follow First for Land The King cannot by his Letters pattents make the son of an Alien heir to his father nor to any other for he cannot disinherit the right heir saith the book nor do no prejudice to the Lord of his Escheat The King by his Prerogative shall pay no toll for things bought in Fairs and Markets but a custome for paying toll to go over the soil and free-holds of another shall bind the King for this toucheth the inheritance of the Subject and therefore the King shall not have so much as a way over his lands without paying and if not a way then certainly not the land it self Next for Goods If a man hath a Jewell in gage for ten pound c. and is attainted for Treason the King shall not have this Jewell if he payes not the ten pound So if Cattel be distreined and the owner of them
afterwards be attainted yet the King shall not have them untill he have satisfied that for which they were distreined And if in these Cases where the owners of the goods are such capitall offendours the King cannot have them much lesse shall he have them when the owner is innocent and no offendour 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 aswell 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 Soveraigne but this must be in such things which are 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 Soveraigne upon his Subjects 3. My next reason is drawn ab inutili incommodo For the Statute de frangentibus prisonam 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 Iudicium requirat Whence this Conclusion is clearly gathered That if a man be committed to prison without declaring what cause and then if either Malefactour 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 corporall punishment for setting him at large which if admitted might prove in consequence a matter of great danger to the Common-wealth 4. My next reason is drawn ab Regis honore from that great honour the Law doth attribute unto soveraigne Majesty and therefore the Rule of Law is that Solum Rex hoc non potest facere quod non potest juste agere And therefore if a Subject hath the donation and the King the presentation to a Church whereunto the King presents without the Subjects nomination here the quare impedit lies against the Incumbent and the King is in Law no disturber And Hussey chief Justice in 1 H. 7. fol. 4. saith that Sir Iohn Markham told King Edw. 4. he could not arrest a man either for treason or fellony as a Subject might because that if the King did wrong the party could not have his Action against him What is the reason that an Action of false imprisonment lies against the Sheriff if he doth not return the Kings Writ by which he hath taken the body of the Subject but this because the Writ doth breviter enarrare causam captionis which if it doth not it shall abate and is void in Law and being returned the party when he appears may know what to answer and the Court upon what to judge And if the Kings Writ under his great Seal cannot imprison the Subject unlesse it contains the cause shall then the Kings warrant otherwise doe it without containing the cause that his Judges upon return thereof may likewise judge of the same either to remain or judge the partie imprisoned I should argue this point more closely upon the statute of Magnae Charta 29. quod nullus liber homo imprisonetur the statute of West 1. cap. 15. for letting persons to bail and the Judgements lately given in the Kings Bench but the later of these statutes referring having been by that honourable Gent. to whom the Professours of the Law both in this and all succeding ages are and will be much bound already expounded unto us and that also fortified by those many contemporary Expositions and Judgements by him learnedly cited and there being many learned Lawyers here whose time I will not waste who were present and some of them perhaps of councell in the late Cause adjudged in the Kings Bench where you to whose person I now speak do well know I was absent being then of councel in a cause in another Court and my practice being in the Country farre remote from the treasure of Antiquity and Records conducing to the clearing of this point Therefore the narrowness of my understanding commends unto me sober ignorance rather then presumptuous knowledge and also commands me no further to trouble your Patience But I will conclude with that which I find 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 royall 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 Royall and not a Monarchy Seignorall where under the first saith he the Subjects are Free-men 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 proprietie in nothing And therefore saith he when a Royall Monarch makes a new Conquest yet if he receives any of his 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 voucheth this President and Judgement following given before William the Conquerour himself viz. That one Sherborn at the time of the Conquest being owner of a Castle and lands in Norfolk the Conquerour gave the same to one Warren a Norman and Sherborn dying the Heir clayming the same by descent according to the Law it was before the Conquerour himself adjudged for the Heir and that the gift thereof by the Conquerour was void If then it were thus in the Conquerour's time by his own sentence and judgement and hath so continued in all the successions of our Kings ever since what doubt need we have but that his most excellent Majestie upon our humble petition prostrated at his feet which as was well said is the best passage to his heart will vouchsafe unto us our ancient Liberties and Birthrights with a through reformation of this and other just grievances And so I humbly crave pardon of this honourable House that I have made a short Lesson long Sir Benjamin Ruddier's Speech March 22. 1627. Mr. Speaker OF the mischiefs that have lately fallen upon us by the late distractions here is every man sensible and that may ensue the like which God forbid we may easily see and too late repent The eyes of Christendome are upon us and as we speed here so go the Fortunes of our selves our Friends and of our Religion That the Dangers were not reall but pretended we all heartily wish but feel the contrary
territories and greater number of people 7. What information is given to his Majesty contrary to this doth proceed from such persons as to serve their own ends under colour of advancing his Majesties Prerogative do weaken Royall power 8. We trust to be cleared in his Majesties judgement that there hath been no unnecessary stop but a most cheerfull proceeding in the matter of Supply and therefore we do humbly desire that his Majesty will take no information in this or any other businesse from private relations but to judge of our proceedings by the resolution that shall be presented to his Majestie from the House 9. Being thus rightly and graciously understood we assure our selves that the end of this Parliament shall be more happy then the beginning The Speaker Sir John Finche's Speech upon the 9 Heads 14. April 1628. Most Gracious and dread Sovereign YOur dutifull and loyall Commons here assembled were lately humble Suitours for accesse to your Royall presence The occasion that moved their desires herein was a particle of importance worthy your Princely Consideration and which as it well deserves should have been the only subject of my Speech at this time But since your gracious answer for this accesse obtained by a Message from your Majestie they have had some cause to doubt that your Majestie is not so well satisfied with the manner of their proceedings as their heartie desire is you should be especially in that part which concernes your Majesties present Supply as if in the prosecution thereof they had of late used some slacknesse or delay And because no unhappinesse of theirs can parallell with that which may proceed from a misunderstanding in your Majestie of their cleer and loyall intentions they have commanded me to attend your Majestie with an humble and summarie declaration of their proceedings since this short time of their sitting which they hope will give your Majestie abundant satisfaction that never people did more truly desire to be endeared in the favour and gracious opinion of their Sovereign And withall to let your Majestie see that as you can no where have a more faithfull Councell so your great designes and occasions can no way be so speedily or heartily supported as in this old and ancient way of Parliament For this purpose they humbly beseech your Majestie to take into your Royall Consideration that although by ancient right of Parliament the matters there debated are to be disposed in their true method and order and that their constant custome hath been to take into their consideration the common Grievances of the Kingdome before they enter upon matter of Supplie yet to make a full expression of that zeal and affection which they beare to your Royall Person equalling at least if not exceeding the best affections of their predecessours to the best of your Progenitours they have in this Assemblie contrary to ordinary proceeding in Parliament given your Majesties supply precedency before the common Grievances of the Subject how pressing soever joyning only with it those fundamentall and vitall Liberties of the Kingdome which give subsistence and ability to your Subjects This was their originall order and resolution and was grounded upon a true discerning that these two considerations could not be severed but did both of them intirely concern your Majesties service consisting no lesse in encouraging and inabling your Subjects then in proportioning a Present suting to your Majesties occasions and their own abilities Nay so farre have they been from using any unnecessary delaies as that though of the two that of Supply were later in proposition amongst them yet the Grand Committee to which both were referred have made that of your Majesties Supply first ready for conclusion And to be sure your Majesties Supply might receive no interruption they differing from custome and usage in cases of this nature sent up of those that concern the Subject by parcels some to your Majestie and some to the Lords to the end your Majestie may receive such speedy content as sutes with the largest and best extent of their first order Sir you are the breath of our nostrils and the light of our eyes and besides the many Comforts which under you and your Royall Progenitours in this frame of Government this Nation hath enjoyed the Religion we professe hath taught us whose Image you are And we do all most humbly declare to your Majestie that nothing is or can be more deare unto us then the sacred Rights and Prerogatives of your Crown no Person or Councell can be greater lovers of them nor more truly carefull to maintain them And the fundamentall Liberties which concern the freedome of our persons and propriety of our goods and estates are an essentiall meanes to establish the true glorie of a Monarch for rich and free Subjects as they are best governed so they are most able to do your Majestie service either in peace or warre which under God hath been the cause of the happie victories of this Nation beyond other Kingdomes of larger Territories and greater numbers of people What information soever contrarie to this shall be brought to your Majestie can come from no other then such as for their own ends under colour of advancing the Prerogative do in truth undermine and weaken Royall Power and by impoverishing the Subject render this Monarchie lesse glorious and the people lesse able to serve your Majestie Having by this which hath been said cleared our hearts and proceedings to your Majesty our trust is that in your Royall Judgement we shall be free from the least opinion of giving any unnecessary shop to our proceeding in the matter of Supply and that your Majestie will be pleased to entertain belief of our alacritie and cheerfulnesse in your service and that hereafter no such misfortune shall befall us to be misunderstood by your Majestie in any thing We all most humblie beseech your Majestie to receive no information either in this or any other businesse from private relations but to weigh and judge of our proceedings by those resolutions of the House which shall be presented from our selves This rightly and graciously understood we are confident from the knowledge of your goodnesse and our own hearts that the ending of this Parliament shall be much more happy then the beginning and that it shall be stiled to all ages The Blessed Parliament which making perfect union betwixt the best people your Majestie may ever delight in calling us together and we in the Comforts of your Gracious Favour towards us In this hope I return to my first errand which will best appear by that which I shall humbly desire your Majesty to hear read being an humble Petition from the House of Commons for redresse of those many inconveniences and distractions that have befallen your Subjects by the billetting of Souldiers Your Royall Progenitours have ever held their Subjects hearts the best Garrison of this Kingdome And our humble suit to your Majesty is that our Faith and
of Justice And thereupon the Statutes cannot be intended to restrain all commitments unlesse a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the cause at the very first Answer Hereupon it was replied by the House of Commons that all danger and inconvenience may be avoided by declaring a generall Cause as for treason suspicion of treason misprision of treason or fellony without specifying the particular which can give no greater light to a Confederate then will be conjectured by his very apprehension upon the imprisonment if nothing at all were expressed It was further alledged that there was a kind of contradiction in the position of the Commons when they say the partie committed without a cause shewed ought to be delivered or bailed Bailing being a kind of imprisonment Delivery a totall freeing To this it was answered that it hath alwayes been the discretion of the Judges to give so much respect to a Commitment by the Command of the King or the Privie Councell which are ever intended to be done on just weightie Causes that they will not presently set him free but baile him to answer what shall be objected against him on his Majesties behalf But if any other inferiour Officer commit a man without a cause shewed they do instantly deliver him as having no cause to expect their pleasure So the Delivery is applyed to an imprisonment by the command of some mean minister of Justice Bailing when it is done by the Command of the King or his Councell It was said by M r Attorney That Bailing was a grace and favour of a Court of Justice and that they may refuse to do it This was agreed to be true in divers cases as where the case doth appeare to be for fellony or other crimes expressed for that there is another way to discharge them in some convenient time by their triall yet in some of these cases the constant practise hath been anciently modernly to baile them But where no cause of the imprisonment is returned but the Command of the King there is no way to deliver such persons by triall or otherwise but that of the habeas Corpus and if they should be then remanded they may be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence be in worse case then a great Offender for the latter should have an ordinarie triall to discharge him the other should never be delivered It was further said that though the Statute of Westm. 1. cap. 15. as a Statute by way of provision did extend only to the Sheriff yet the recitall of that Statute touching the 4 cases wherein a man was not replevisable at the Common Law namely those that were committed for the death of a man by the command of the King or the Justices or for the Forrest did declare that the Justices could not baile such a one and that Replevisable and Bailable were Synonyma and all one and that Stamford a Judge of great authority doth expound it accordingly and that neither the Statute nor he sayes replevisable by the Sheriff but generally without restraint and that if the Chief Justice commits a man he is not to be enlarged by another Court as appeareth in the Register To this it was answered First that the recitall and body of the Statute relates only to the Sheriff as appeareth by the very words Secondly that replevisable is not restrained to the Sheriffs for that the words import no more that a man committed by the Chief Justice is bailable by the Court of Kings Bench. Thirdly that Stamford meaneth all of the Sheriff or at least he hath not sufficiently expressed that he intended the Justices Fourthly It was denyed that Replevisable and Bailable were the same for they differ in respect of the place where they are used Baile being in the Kings Court of Record Replevisable before the Sheriff and they are of severall natures Replevisable being a letting at large upon Sureties Bailing being when one Traditur in ballium and the Baile are his Gaolers and may imprison him and shall suffer bodie for bodie which is not true of replevying by sureties And Baile differeth from Mainprize in this that Mainprize is an undertaking in a summe certain Bailing is to answer the condemnation in Civil causes and in Criminall body for body The reasons and authorities used in the first Conference were then renewed and no exception taken to any save in 22. H. 6. it doth not appear that the Command of the King was by his mouth which must be intended or by his Councell which is all one as is observed by Stamford for the words are these That a man is not replevisable by the Sheriff who is committed by the Writ or Commandment of the King 21. E. 1. rot 2. dorso was cited by the Kings Counsell But it was answered that it concerned the Sheriff of Leicester only and not the power of the Judges 33. H. 6. the Kings Attorney confesseth was nothing to the purpose and yet that Book hath been usually cited by those that maintain the contrary to the Declaration of the House of Commons And therefore such sudden opinion as hath been given thereupon is not to be regarded the foundation failing And where it was said that the French of 36. E 3. Rot. Parliament 9. which can receive no answer did not warrant what was inferred thence but that these words Sans disturbance mettre ou arrest faire et le contre par special commandment ou en autre maniere must be understood that the Statutes should be put in execution without putting disturbance or making arrest to the contrarie by speciall command or in other manner The Commons did utterly deny the interpretation given by the Kings Counsell and to justifie their own did appeal to all men that understood French and upon the 7 Statutes did conclude That their Declaration remained in undoubted truth not controlled by any thing said to the contrary The true Copies of the Records not printed which were used on either side of that part of the debate INter Recorda domini Regis Caroli in Thesauro Recepto Scacarii sui sub custodia domini Thesaurarii et Camerarii ibidem remanentia viz. placita coram ipso Domino Rege Concilio suo ad Parliament suum post Pascham apud London in Mâ—nerio Archipiscopi Ebor Anno Regni Domini Regis Edw. vicessimo primo inter alia sie continetur ut sequitur Rot. secundo in Dorso Vic. Leic. sci Stephanus Rubaz Vic. Leic. War coram ipso Domino Rege ejus concilio arianatus ad Levem positus de hoc quod cum Io. Botetourte Edel Hatche W. Hemelin nuper in ballium ipsius vicecom per Dominum Regem fuissent assignati and Goalas Domini Regis celiberandum eidem vic quendam W. de Petling per quendam Appellatorem ante adventum eorundam Justic. ibidem
have done Commune periculum commune requirit Auxilium and thereupon take such further course as may secure your Lordships and us and all your and our posterities in enjoying of our ancient undoubted and fundamentall Liberties The Argument of Sergeant Bramston upon the Habeas corpus MAy it please your Lordship to hear the return read or shall I open it Chief Iustice Hide Let it be read M r. Keeling read the return being the same as that of Sir Thomas Darnell May it please your Lordship I shall humbly move upon this return in the behalf of Sir Iohn Henningham with whom I am of Councell it is his petition that he may be bailed from his imprisonment it was but in vain for me to move that to a Court of Law which by Law cannot be granted and therefore in that regard that upon his return it will be questioned whether as this return is made the Gent. may be bailed or not I shall humbly offer up to your Lordship the case and some reasons out of mine understanding arising out of the return it self to satisfie your Lordship that these Prisoners may and as their case is ought to be bailed by your Lordship The exception that I take to this return is as well to the matter and substance of the return as to the manner and legall form thereof the exceptions that I take to the matter is in severall respects That the return is too generall there is no sufficient cause shewn in speciall or in generall of the commitment of this Gentleman and as it is insufficient for the cause so also in the time of the first imprisonment for howsoever here doth appear a time upon the second warrant from the Lords of the Councell to detain him still in prison yet by the return no time can appear when he was first imprisoned though it be necessary it should be shewen and if that time appear not there is no cause your Lordship should remand him and consequently he is to be delivered Touching the matter of the return which is the cause of his imprisonment It is expressed to be Per speciale mandatum domini Regis This is too generall and uncertain for that it is not manifest what kind of command this was Touching the Legall form of the return it is not as it ought to be fully and positively the return of the Keeper himself onely but it comes with a significavit or prout that he was committed Per speciale mandatum domini Regis as appeareth by warrant from the Lords of the Councell not of the King himself and that is not good in legall form For the matter and substance of the return it is not good because there ought to be a cause of that imprisonment This writ is the means and the onely means that the subject hath in this and such like case to obtain his liberty there are other writs by which men are delivered from restraint as that de homine replegiando but extends not to this cause for it is particularly excepted in the body of the writ de manucaptione de cantione admittenda but they lie in other cases but the writ of Habeas corpus is the onely means the subject hath to obtain his liberty and the end of this writ is to return the cause of the imprisonment that it may be examined in this Court whether the parties ought to be discharged or not but that cannot be done upon this return for the cause of the imprisonment of this Gentleman at first is so farre from appearing particularly by it that their is no cause at all expressed in it This writ requires that the cause of the imprisonment should be returned if the cause be not specially certified by it yet should it at the last be shewn in generall that it may appear to the Judges of the Court and it must be expressed so farre as that it may appear to be none of those causes for which by the Law of the Kingdome the subject ought not to be imprisoned and it ought to be expressed that it was by presentment or indictment and not upon petition or suggestion made to the King and Lords which is against the statute made in the 25 Ed. 3. c. 4. 42 E. 3. c. 3. By the Statute 25 Ed. 3. cap. 4. It is ordained and established that no man from henceforth shall be taken by petition or suggestion made to the King or his Councell but by indictment or course of Law and acordingly it was enacted 42 E. 3. c. 3. the title of which statute is None shall be put to answer an accusation made to the King without presentment Then my Lord it being so although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute or else the Subject by this return loseth the benefit and advantage of these Laws which be their birth-right and inheritance but in this return there is no cause at all appearing of the first commitment and therefore it is plain that there is no cause for your Lordship to remand him but there is no cause you should deliver him since the writ is to bring the body and the cause of the imprisonment before your Lordship But it may be objected that this writ of Habeas Corpus doth not demand the cause of the first commitment but of the detaining onely and so the writ is satisfied by the return for though it shew no cause of the first commitment but of detaining onely yet it declareth a cause why the Gentleman is detained in prison this is no answer nor can give any satisfaction for the reason why the cause is to be returned is for the Subjects liberty that if it shall appear a good and sufficient cause to your Lordship then to be remanded if your Lordship think and finde it insufficient he is to be enlarged This is the end of this writ and this cannot appear to your Lordship unlesse the time of the first commitment be expressed in the return I know that in some cases the time is not materiall as when the cause of the commitment is and that so especially returned as that the time is not materiall it is enough to shew the cause without the time as after a conviction or triall had by Law But when it is in this manner that the time is the matter it self for intend what cause you will of the commitment yea though for the highest cause of treason there is no doubt but that upon the return thereof the time of it must appear for it being before triall and conviction had by Law it is but an accusation and he that is onely accused and the accusation ought by Law to be let to bail But I beseech your Lordship to observe the consequence of this Cause If the Law be that upon this return this Gentleman should be remanded I will not dispute whether or no a man may
there wants legall form for the writ of Habeas Corpus is the commandment of the King to the Keeper of the prisons and thereupon they are to make return both of the body and of the cause of the commitment and that cause is to appear of them who are the immediate Officers And if he doth it by signification from another that return is defective in Law and therefore this return cannot be good for it must be from the Officer himself and if the cause returned by him be good it bindes the prisoners The warrant of the Lords was but a direction for him he might have made his return to have been expresly by the Kings commandment there was a warrant for it I shall not need to put your cases of it for it is not enough that he returns that he was certified that the commitment was by the Kings command but he must of himself return this fact as it was done And now my Lord I shall offer to your Lordship presidents of divers kindes upon commitments by the Lords of the Privy Councel upon commitments by the speciall command of the King and upon commitments both by the King the Lords together And howsoever I conceive which I submit to your Lordship that our case will not stand upon presidents but upon the fundamentall Laws and Statutes of this Realm and though the presidents look the one way or the other they are to be brought back unto the Laws by which the Kingdome is governed In the first of Henry the eighth Rot. Parl. one Harison was committed to the Marshalsey by the command of the King and being removed by Habeas Corpus into the Court the cause returned was that he was committed per mandatum Domini Regis and he was bailed In the fortieth of Elizabeth Thomas Wendon was committed to the Gatehouse by the commandment of the Queen and Lords of the Councell and being removed by an Habeas Corpus upon the generall return and he was bailed In 8 Iacobi one Caesar was committed by the Kings commandment and this being returned upon his Habeas Corpus upon the examination of this case it doth appear that it was over ruled that the return should be amended or else the prisoner should be delivered The presidents concerning the commitment by the Lords of the Councell are in effect the same with these where the commitment is by the reason why the cause of the commitment should not be shewn holds in both cases and that is the necessity of suit and therefore Master Stamford makes the command of the King and that of the Lords of the Privy Councell to be both as one and to this purpose if they speak he speaks and if he speaks they speak The presidents that we can shew you how the Subject hath been delivered upon commitment by the Lords of the Councell as in the time of Henry the eight as in the times of Queen Elizabeth Queen Mary are infinite as in the ninth of Elizabeth Thomas Lawrence was committed to the Towre by the Lords of the Councell and bailed upon an Habeas Corpus In the 43 of Elizabeth Calvins case In the third of Elizabeth Vernons case These were committed for high treason and yet bailed for in all these cases there must be a conviction in due time or a deliverance by Law There be divers other presidents that might be shewn to your Lordship In 12 Iacobi Mâ—les Renards In 12 Iacobi Rot. 155. Richard Beckwiths case In 4 Iacobi Sir Thomas Monson was committed for treason to the Towre of London and afterwards was brought hither and bailed and since our case stands upon this return and yet there is no sufficient cause in Law expressed in the return of the detaining this Gentleman and since these presidents do warrant our proceedings my humble suit unto this Court is that the Gentleman Sir Iohn Henningham who hath petitioned his Majesty that he may have the benefit of the Law and his Majesty hath signified it it is his pleasure that justice according to the Law should be administred at all times in generall to all his Subjects and particularly to these Gentlemen which is their birth-right My humble suit to your Lordship is that these Gentlemen may have the benefit of that Law and be delivered from their imprisonment The Argument of Master Noye upon the Habeas corpus May it please your Lordship I am of Councell with Sir Walter Earl one of the prisoners at the Barre the return of this writ is as those that have been before they are much of one tenour and as you have heard the tenour of that so this Gentleman coming hither by an Habeas Corpus I will by your Lordships favour read the writ Carolus Dei Gratia Iohanni Lylo Milit Guardian Prison nostrae de le Fleet Salut Praecipimus tibi quod corpus Walteri Earl Milit in prison nostra sub custodia tua detent ut dicit una cum causa detentionis suae quocunque nomine praedict Walter censeat in eadem Habeas Corpus ad subjiciendum recipiendum ea quae curia nostra de eo ad tunc ibidem ordin conting in hac parte haec nallatenus omit periculo incumbent habeas tibi hoc breve Test Hyde apud Westminster quarto die Novembris Anno 8. Executio istius brevis patet in quadam schedula huic brevi annexat Respons Johan Liloe Guardian Prison de le Fleet. Ego Iohannes Lyloe Mil Guardian Prison domini Regis de le Fleet Serenissimo Domino Regi apud Westminster 8. Post receptionem hujus brevis quod in hac schedula est mentionat ' Certifico quod Walter Earl miles in eodem brevium nominat detentus est in prisona de le Fleet sub custodia mea praedict per speciale mandatum domini Regis mihi significatum per VVarrantum duorum aliorum de Privato Concilio per Honorabilissimi dicti Domini Regis cujus quidem tenor sequitur in haec verba Whereas Sir Walter Earl Knight was heretofore committed to your custody these are to will and require you still to detain him letting you know that both his first commitment and this direction for the continuance of him in prison were and are by his Majesties speciall commandment from White Hall 7 Novembris 1627. Thomas Coventree C. S. Henry Manchester Thomas Suffolk Bridgewater Kellie R. Duneln ' Thomas Edmunds Iohn Cook Marlborough Pembrook Salisbury Totnes Grandisson Guliel Bath and Wells Robert Nanton Richard Weston Humphrey Mayes To the Guardian of the Fleet or his Deputy Et haec est causa detentionis praedict Walteri Earl sub custodia mea in Prison praedict Attamen corpus ejusdem Walteri coram Domino Rege ad diem locum praedictum post receptionem brevis praedict pa rat habeo prout istud breve in se exiget requiret Respon Johan Liloe milit Guardian Prison de le Fleet. My Lord the first Habeas corpus bears date the
and not by way of information out of another mans mouth may not be good as appeareth by the severall books of our law 23 Ed. 3. Rex vic 181. upon a Homine replegiando against the Abbot of C. the Sheriffe returneth that he had sent to the Bailiffe of the Abbot that answered him that he was the villain of the Abbot by which he might not make deliverance and a Sicut alias was awarded for this return was insufficient insomuch that he had returned the answer of the Bailiffe of the Abbot where he ought to have returned the answer of the Abbot himself out of his own mouth Trin. 22. Ed. 2. Rot. 46. parent vill Burg. Evesque de Norwich repl 68. Nat. Br. Case 34. Fitz. Nat. Br. 65. 34. Ed. 3. Excom 29. the case appeareth to be such in a trespasse the defendant pleadeth the plaintiffe is excommunicate and sheweth forth the letter of the Bishop of Lincoln witnessing that for divers contumacies c. and because he had certified no excommunic done by himself but by another the letter of excommunication was annulled for the Bishop ought to have certified his own act and not the act of another Hillarii 22 Hen. 8. Rot. 37. it appeareth by the return of an Habeas corpus that Iohn Parker was committed to prison for security of the peace and for suspicion of felony as per mandatum Domini Regis nunciatum per Robertum Peck de Cliffords Inne and upon his return Iohn Parker was bailed for the return Commiss fuit per speciale mandatum domini Regis nunciatum per Robertum Peck was not good insomuch that it was not a direct return that he was committed per mandatum Domini Regis And for the first point I conclude that this return is insufficient in form insomuch that it doth not make a precise and direct return that he was committed and detained by the speciall command of the King but onely as he was signified by the warrant of the Lords of the Councell which will not serve the turn and upon the book of 9 Hen. 6.44 the return of the cause of a mans imprisonment ought to be precise and direct upon the Habeas corpus insomuch as thereby to be able to judge of the cause whether it be sufficient or not for there may not any doubt be taken to the return be it true or false but the Court is to accept the same as true and if it be false the party must take his remedy by action upon the case And as concerning the matter of the return it will rest upon these parts First whether the return be that he is detained in prison by speciall commandment of our Lord the King be good or not without shewing the nature of the commandment or the cause whereupon the commitment is grounded in the return The second is whether the time of the first commitment by the commandment of the King not appearing to the Court is sufficient to detain him in prison Thirdly whether the imprisonment of the subjects without cause shewed but onely by the commandment of the King be warantable by the laws and statutes of this Realm As unto the first part I find by the books of our law that commandments of the King are of severall natures by some of which the imprisonment of a mans body is utterly unlawfull and by others of them although the imprisonment may be lawfull yet the continuance of him without bail or mainprise will be utterly unlawfull There is a verball command of the King which is by word of mouth of the Kings onely and such commandment by the King by the books of our law will not be sufficient either to imprison a man or to continue him in prison 16.6 Monstrans de faict si upon an action of trespasse brought for cutting of trees the defendant pleadeth that the place where he cut them is parcell of the Manor of D. whereof the King is seised in fee and the King commanded him to cut the trees and the opinion of the Court there is that the plea in barre was ill because he did not shew any speciall commandment of the King and there it is agreed by the whole Court that if the King commandeth one to arrest another and the party commanded did arrest the other an action of trespasse or false imprisonment is maintainable against the party that arrested him although it were done in the presence of the King 39 H. 6.17 where one justifieth the seisure of the goods of a person that is outlawed by the commandment of the King such a party being no Officer may not in an action brought against him have any aid of the King for such a commandment given to one that is not an Officer will not any wayes avail him that is to justifie himself by the return of that commandment 37 Hen. 6.10 If the king give me a thing and I take the same by his commandment by word of mouth it is not justified by law nothing may passe without matter of Record 10 Hen. 7.7 17.18 it is agreed that Justices may command one to arrest another that is in their view or presence but not one that is out of their view or presence And Keble 10 Hen. 7.13 said that where one is arrested by a parroll command in their view or presence it is fitting that a record may be made of it insomuch that without such a record there can hardly be a justification in another Term. Secondly there is a commandment of the King by his Commission which according unto Calvins case in the seventh Report it is called by him breve mandatum non remediabile and by virtue of such a commandment the King may neither seise the goods of his subject nor imprison his body as it is resolved in 42 Ass. pl. 5. where it is agreed by all the justices that a Commission to take a mans goods or imprison his body without indictment or suit of the party or other due processe is against the Law Thirdly there is a commandment of the King which is grounded upon a suggestion made to the King or to his Councell and if a man be committed to prison by such a suggestion by commandment of the King it is unlawfull and not warranted by the Law of the Realm The 25 of Edward the third cap. 4. de Provisoribus whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or arrested of his Free-hold or of his Franchises nor of his free customes but by the Law of the land It is awarded consented and established that from henceforth none shall be taken by petition or suggestion made to our Soveraign Lord the King or to his Councell untill it be by indictment or presentment of his good and lawfull neighbours where such deeds are done in due manner or by processe made by writ originall at the common law nor of his free-hold unlesse he be duely brought
examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and far greater weight then any confidence that could be expressed by M r. Attorney or whomsoever else being of his Majesties Councel learned To which purpose the Lords were desired to take into their Memory the difference between the present quality of the Gentlemen that spake in behalf of the House of Commons and of the Kings learned Councel in their speaking there howsoever accidentally they were both men of the same profession For the Kings Councel spake as Councel perpetually retained by Fee and if they made glosses and and what advantagious Interpretations soever for their own part they did but what belonged to their place and quality as M r. Attorney had done But the Gentlemen that spake in behalf of the House of Commons came there bound on the one side by the trust reposed in them by their Countrey that sent them and on the other bound also by an Oath taken by every of them before they sit in the House to maintain and defend the rights and prerogatives of the Crown So that even in the point of confidence alone that of them that spake as retained Councel by perpetual Fee and might by their place being permitted to speak say what they would and that of them that spake as bound to nothing but truth but by such a trust and such an Oath were no way to be so compared or Counterpoised as if the one of them were of no more weight then the other And then the Objections before mentioned were also answered For that of the resolution of all the Judges of England in 34. Eliz. It was shewed plainly it agreed with the resolution of the House of Commons For although indeed it might have been expressed with more perspicuity yet the words of it as they are sufficiently shew that the meaning of it is no otherwise To that purpose besides the words of the whole frame of this resolution of the Judges as it is in the Coppy transcribed out of the Lord Chief Justice Andersons book written in his own hand which book was there offered to be shewed also in behalf of the House of Commons It was observed that the Records of the first part of it shew plainly that all the Judges of England then resolved that the Prisoners spoken of in the first part of their resolution were onely Prisoners committed with cause shewed for they onely said they might not be delivered by any of the Courts without due Trial by Law and Judgement of acquital had which shews plainly that they meant that by trial and acquital they might be delivered but it is clear that no trial or acquital can be had where is not some cause laid to their charge for which they ought to stand committed Therefore in that part of the resolution such Prisoners are onely meant as are committed without cause shewed which also the Judges in that resolution expresly thought necessary as appears in the second part of the resolution wherein they have these words If upon Return of the Habeas Corpus the cause of their commitment be certified to the Judges as it ought to be c. by which words they shew plainly that every return of a commitment is insufficient that hath not a cause shewed of it And to that which M r. Attorney said as if the cause were sufficiently expressed in generality if the Kings Command or the Councels were expressed in it and as if that were meant in the resolution for a sufficient general cause it was answered That it was never heard of in Law that the power or Person that committed the Prisoner was understood for the Causa captionis or Causa detentionis but onely the reason why that Power or Person committed the Prisoner as also in common speech if a man ask why and for what cause a man stands committed the answer is not that such a one committed him but his offence or some other cause is understood in the question and is to be shewed in the Answer But to say that such an one committed the Prisoner is an answer to the question who committed him and not why or for what cause he stands committed Then for that of the Coppy of the Report of 13. Iac. shewed forth by Mr. Attorney it was answered That the Report it self which had been before seen and perused among many other things at a Committee made by the House was of sleight or no Authority for that it was taken by one that was at that time a young Student onely and was a Reporter in the Kings-bench and there was not any other Report to be found that agreed with it Secondly although the Reports of young Students when they take the words of Judges as they fall from their mouth at the Bench and in the Person and form as they are spoken may be of good credit Yet in this Case there was not one word so reported but in truth there being three Cases a time in the Kings-bench one Ruswell and one Allen and one Saltonstall every of which had something of like nature in it the Student having been present in the Court made up the form of one Report or Case out of all those three in his own words and so put it into his book so that there is not a word in the Report but is framed according to the Students fancie as it is written and nothing is expressed in it as it came from the mouth of the Judges otherwise then his fancie directed him Thirdly there are in the Report plain falshoods of Matter of Fact which are to be attributed either to the Judges or to the Reporter It is most likely by all reason that they proceeded from the Reporters fault but however those Matters of falshood shew sufficiently that the credit of the rest is of slight value for the purpose It is said in the Report that Harecourt being committed by the Councel was bayled in 40. Eliz. upon a privy Seal or a Letter where as there was no such thing in truth And it is said there that no such kinde of Letters are filed there in any case whatsoever That resolution of the Judges in 34. is miscited there and in 36. of Queen Eliz. and it is said there that by that resolution a Prisoner returned to be committed by the command of the Councel might not at all be delivered by the Court whereas no such thing is comprehended in in that resolution But that which is of most moment is that howsoever the truth of the report were yet the opinion of the Judges being sudden without any debate had of the case is of sleight moment For in difficult points especially the gravest and most learned men living may on the sudden let fall and that without disparragement to them such opinions as they may well and ought to change upon further enquiry and examination and full debate had
till his pleasure be first known Thus did the Lord Chief Justice Coke in Raynards Case They say this would have been done if the King had not written but why then was the Letter read and published and kept and why was the Town Clark sent carefully to enquire because the Letter so directed whether these men offered for bayl were subsedy men the Letter sheweth also that Beckwith was committed for suspition of being acquainted with the Gun-Pouder-Treason but no proof being produced the King left him to be bayled The Earle of WARVVICKS speech 21. April 1628. MY Lords I will observe something out of the Law wherein this liberty of the Subjects Person is founded and some things out of Presidents which have been alleadged For the Law of Magna Charta and the rest concerning these points they are acknowledged by all to be of force and that they were to secure the Subjects from wrongfnll imprisonment as well or rather more concerning the King then the Subject why then besides the grand Charter and those 6. other Acts of Parliament in the very point we know that Magna Charta hath been at least 30. times confirmed so that upon the matter we have 6. or 7. and thereby Acts of Parliament to confirm this liberty although it was made a matter of derision the other day in this House One is that of 36. E. 3. No. 9. and another in the same year No. 20. not printed but yet as good as those that are and that of 42. E. 3. cap. 3. so express in the point especially the Petition of the Commons that year which was read by M r. Littleton with the Kings answer so full and free from all exception to which I refer your Lordships that I know not have any thing in the World can be more plain and therefore if in Parliament ye should make any doubt of that which is so fully confirmed in Parliament and in case so clear go about by new glosses to alter the old and good Law we shall not onely forsake the steps of our Ancestors who in Cases of small importance would answer nolumus mutare leges Angliae but we shall yield up and betray our right in the greatest inheritance the Subjects of England hath and that is the Laws of England and truely I wonder how any man can admit of such a gloss upon the plain Text as should overthrow the force of the Law for whereas the Law of Magna Charta is that no Free-man shall be imprisoned but by lawfull judgement of his Peers or the Law of the Land the King hath power to commit without Cause which is a sence not onely expresly contrary to other Acts of Parliament and those especially formerly cited but against Common sence For Mr. Attorney confesseth this Law concerns the King why then where the Law saith the King shall not commit but by the Law of the Land the meaning must be as M r. Attorney would have it that the King must not commit but at his own pleasure and shall we think that our Ancestors were so foolish to hazard their Persons Estates and labour so much to get a Law and to have it 30. times confirmed that the King might not commit his Subjects but at his own pleasure and if he did commit any of his Subjects without a Cause shewen then he must lie during pleasure then which nothing can be imagined more ridiculous and contrary to true reason For the Presidents I observe that there hath been many shewen by which it appears to me evidently that such as have been committed by the Kings Councel they have been delivered upon Habeas Corpus and that constantly It is true that some Presidents were brought on the Kings part that when some of these persons desired to be delivered by Habeas Corpus the King or his Councel signified his Majesties pleasure that they should be delivered or the Kings Attorney hath come into the Court and related the Kings Command but this seems to make for the Subject For that being in his Majesties power to deliver them who by his special Command were imprisoned May not we well think that his Majesty would rather at that time have stayed their deliverance by Law then furthered it with his Letters and made the Prisoners rather beholding to him for his grace and mercy then to the Judges for Justice had not his Majesty known that at that time they ought to have been delivered by Law I think no man would imagine a wise King would have suffered his Grace and Prerogative if any such Prerogative were to be so continually questioned and his Majesty and his Councel so far from commanding the Judges not to proceed to deliver the Prisoner by them committed without Cause shewn as that on the other side which is all the force of these Presidents the King and the Councel signified to the Judges that they should proceed to deliver the parties certainly if the King had challenged any such Prerogative that a Person committed without any cause shewn ought not to be delivered by the Judges without his consent it would have appeared by one President or other amonst all that have been produced that his Majesty would have made some claim to such a Prerogative But it appears to the contrary that in many of these cases the King or his Councel did never interpose and where they did it was alwayes in affirmation and incouragement to that Court to proceed And besides the writing of Letters from his Majesty to the Judges to do Justice to his Majesties Subjects may with as good reason be interpreted that without those Letters they might not do Justice also the King signified his willingness that such such Persons which were committed by him should be delivered therefore they could not be delivered without it which is a strange reason So that findeing the Laws so full so many and so plain in the point and findeing that when ever any were committed without cause shewn brought their Habeas Corpus they were delivered and no Command ever given to the contrary or claim made on the Kings part to any such Prerogative I may safely conclude as the House of Commons have done and if any one President or two of late can be shewn that the Judges have not delivered the Prisoners so committed I think it is their fault and to be enquired of but contrary it seems to me to be an undoubted Liberty of the Subject that if he be committed without cause or without cause shewn yet he may have some speedy course to bring himself to Trial either to justifie his own innocencie or to receive punishment according to his fault for God forbid that an innocent man by the Laws of England should be put in worse case then the most grievous Malefactors are which must needs be if this should be that if a cause be shewed he may have his Trial but if none he must lie and pine in Prison during pleasure
of the Citie by the undue pronouncing and return of Sr. Thomas Savil Knight to be one of the Cittizens to serve in this Parliament for the said Citie whereas I ought of right to have pronounced and returned in his place Mr. Thomas Royle Alderman of the said Citie I am hartily sorry for my said offence and misdemeanour and crave pardon of my Lord Major and all the Cominalty and in particuler of the said Alderman Hoyl for the same I Robert Henisworth Alderman of the Citie of York do acknowledge that I have offended the Lord Major and all the Cominalty of of the said Citie by my undue preparing and practising the election of Sr. Thomas Savill Knight to be chosen one of the Cittizens for the said Cittie of York to serve in this present Parliament I am hartily sorry for my said offence and do desire my Lord Major and all the said Cominalty to pardon me for the same Propositions drawn for the defence of this Kingdom and the annoyance of the enemies of the same by Sea THat every Shire in England shall be injoyned on the charge of the Countrey to set forth one Ship well maned and victualled for 7. Moneths and to be of the burthen of 500 300 or 140. Tuns at the least according to the ability of the Shire in the opinion of the State That every Port or Sea-Town according to their abillity be injoyned to do the like London may well furnish 10. Bristol 3. and the rest according to their abillity And such of the Sea-Towns as are not of abillity to set forth Ships of the burthen aforesaid to furnish out Pinnaces of 60 or 80 Tuns for Light-Horsmen or Intelligencers Those Ships will amount to 80. Sail and above and these to be divided into 4. Squadrons adjoyning unto every Squadron one of the Kings Ships for their Admiral The first Squadron to lye off and on the Western Ilands and as high as the Canaries for Brasile men the Caracks and the Plate-Fleet and all other trading that way The second Squadron to lye of the Southern Cape and so low as the Groyn for all such shipping as shall go in or out of Spain or Portugal and if occasion require to joyn with the former Squadron The third Squadron to lye of between the Groyn and the mouth of the Sleve or Sylly to stop such shipping as trade into those Coasts The fourth Squadron to keep the Narrow Seas to awe the Dunkerkers to take all the French trade and so Northward and this Squadron to be still relieved with fresh Ships as the other shall grow foul or come to any misfortune so as this Squadron may continually keep the Seas most part of the year That no Master of these Ships be owner or have any part in her that he goeth in Master of for they will be unwilling to bring their Ship in fight or danger and use many tricks and devices especially if there be an ignorant Captain Therefore it is expedient likewise that every Shire should nominate a Captain for the Ship that they furnish out for the avoiding of ignorant and insufficient Captains That in London Portsmouth or elsewhere where the State shall think fit there be Store-houses appointed for the receipt of such Prizes as shall be taken by any of the 4. Squadrons That every County or Sea-Town that furnisheth the said shipping may nominate and have a Master of their own free election that may have power in the behalf of the Counties and Sea-Towns as the other Officers that shall be appointed for the King for the opening of decks of the Prizes receiving the goods into the said Store-houses and for the divideing and disposing them according That what Prizes any of the 4. Squadrons shall take be brought into one of the Port-Towns where those Store-houses are appointed and the benefit of all Prizes what Squadron soever of the 4. sendeth them in be divided the Kings part being deducted to the several Counties and Sea-Towns of the Kingdom according to the burthen of their shipping and not particularly to such Counties or Sea-Towns unto which the Squadron of Ships belongeth that shall send in the said Prizes That it shall not be Lawfull for any in the said Ships to break take or open the deck of any Prizes they take but nail them down fast untill they be brought in at one of the Port-Towns aforesaid and the Officers for the King with the Commissioners for the Counties to take and open them That after the Kings part is sequestred with such allowance over and above as shall be proportionable for the Kings ships being Admirals the rest to be distributed as aforesaid to the use and benefit of all the Counties and Sea-Towns in general not in particuler to such Counties and Sea-Towns unto which any of the said 4. Squadrons belongeth that sendeth in the said Prizes the Pillage above deck onely excepted which do belong unto the Officers Saylors and Souldiers of the Squadron that took the said Prize That for the speedy and present execution hereof every County or Sea-Town that is not furnished with shipping accordingly shall hire untill they can build which to be limmited to perform within a certain and convenient time The charge that will fall on the Subjects yearly will amount for the first year 200000. l. which God prospering them within the year they will re-inburse and by the benefit of the Prizes afterwards they will have stock sufficient with increase for new victualling forth the Ships the first year and so from time to time The Kingdom will hereby encrease their shipping breed and make good store of good Sea-men and we shall hereby be Masters of the Sea so as our Merchants shall travel safely and we shall much prejudice the French and Spanish Nation or any others that are Enemies and not in League Judge ANDERSON DIverse Persons fueront Committes a several temps a several Persons sur pleasur sans bon cause parte de queux estiant amesnes en en banck le Roy parte en le Comune banck fueront accordant a le ley de la terre mise a large discharge de le inprisonment pur que aschunt grands fueront offendus procure vn comandment a les Iudges que ils ne ferra issent apres Ceo nient meins les Iudges ne surcease mes per advise enter eux ils fesoient certanie Articles le tenour de queux ensue deliver eux al seignieures Chauncellor Treasurer eux subscribe one touts lour manies les Articles sont coe ensuont WE her Majesties Justices of both Benches and Barons of the Exchequer desire your Lordships that by some good means some order may be taken that her Highness Subjects may not be committed or detained in Prison by commandment of any Noble Man or Councellor against the Laws of the Realm either help us to have access to her Majesty to the end to become suitors to her for the same for divers
have been imprisoned for suing ordinary Actions and Statutes at the Common-Law untill they have been constrained to leave the same against their wills and put the same to order albeit Judgement and Execution have been had therein to their great losses and griefs for the aid of which Persons her Majesties Writs have sundry times been directed to divers Persons having the custody of such Persons unlawfully imprisoned upon which Writs no good or Lawfull cause of imprisonment hath been returned or certified whereupon according to the Laws they have been again committed to Prison in secret places and not to any common ordinary Prison or Lawfull Officer as Shrieff or other lawfully authorized to have or keep a Goal so that upon Lawfull complaint made for their delivery the Queens Courts cannot learn to whom to direct her Majesties Writs and by this means Justice cannot be done and moreover divers Officers and Serjeants of London have been many times committed to Prison for Lawfull executing of her Majesties Writ sued forth of her Majesties Courts at West-minster and thereby her Majesties Subjects and Officers are so terrified that they dare not sue or execute her Majesties Laws her Writs and Commandments Divers others have been sent for by Pursevants and brought to London from their dwellings by unlawfull imprisonment have been constrained not onely to withdraw their Lawfull Suits but have also been compelled to pay the Pursevants for bringing such Persons great summes of money All which upon complaint the Judges are bound by Office and Oath to relieve and help by and according to her Majesties Laws And when it pleaseth your Lordships to will divers of us to set down in what cases a Prisoner sent to custody by her Majesty her Councel some one or other or two are to be detained in Prison and not to be delivered by her Majesties Court or Judges we thinck that if any Person be committed by her Majesties Command from her Person or by order from the Councel board or if any one or two of her Councel commit one for high Treason such Persons so in the cases before committed may not be delivered by any of her Courts without due Trial had Nevertheless the Judges may Award the Queens Writ to bring the bodies of such Persons before them and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be then the Judges in the cases before ought not to deliver him but to remaund the Prisoner to the place from whence he came Which cannot conveniently be done unless notice of the cause in general or else special be known to the Keeper or Goaler that shall have the custody of such Prisoner All the Judges and Barons did subscribe their names to these Articles Termino Pascha 34. Eliz. and sent one to the Lord Chancellor and another to the Lord Treasurer after which time there did follow more quietness then before in the cause afore mentioned The KINGS Message the 2. May 1628. by Secretary COKE HIs Majesty hath commanded me to make known to this House that howsoever we proceed with the business we have in hand which he will not doubt but to be according to our constant professions and so as he may have cause to give us thanks yet his resolution is that both his royal care and his harty and true affection towards all his loving Subjects shall appear to the whole Kingdom and to all the World that he will govern us according to the Laws and Customes of the Realm that he will maintain us in the Liberties of our Persons and propriety of our goods so as we may enjoy as much happiness as our Forefathers in their best times and that he will rectifie what hath been or may be amiss amongst us so that there may be hereafter no just cause to complain wherein as his Majesty will ranck himself amongst the best of our Kings and shew he hath no intention to invade or impeach our Lawfull Liberties or Rights so he will have us to match our selves with the best Subjects by not incroaching upon that Soveraignty and Prerogative which God hath put into his hands for our good and by containing our selves within the bounds and Laws of our Forefathers without streining or inlarging them by new Explanations Interpretations Expositions or Additions in any sort which he clearly telleth us he will not give way unto That the weight of the affairs of Christendom do press him more and more and the time is now grown to that point of maturity that it cannot indure long debate or delay so as this Session of Parliament must continue no longer then Tuesday come sevenight at the furthest within which time his Majesty for his part will be ready to perform what he hath promised to us and if we be not as forward to do that is fit for us it shall be our own faults Lastly upon the assurance of our good dispatch and correspondency his Majesty declareth that his Royal intention is to have another Session at Michalmass next for the perfecting of such things as cannot now be done M r. MASONS speech 2. May 1628. I Am of opinion with the Gentleman that spake first that in our proceedings in the matter now in debate we should have use of the Title of the Statute called circumspecte agatis for it concerns the Liberty of our Persons without which we do not enjoy our lives The Question is WHether in this Bill for the explanation of Magna Charta and the rest of the Satutes we shall provide that the cause of the commitment must be expressed upon the commitment or upon the Return of the Habeas Corpus Before I speak to the question it self I shall propose some observations in my conceit necessarily conduceing to the debate of the Matter 1. That we ought to take care and to provide for posterity as our Predecessors have done for us and that this provident care cannot be expounded to be any distrust of the performance of his Majesties gracious Declaration this Act providing for perpetuity to which his Highness promise unless it were by Act of Parliament cannot extend 2. That we having long debated and solemnly resolved our Rights and Priviledges by virtue of these Statutes and if now we shall reduce those Declarations and those resolutions into an Act we must ever hereafter expect to be confined within the bounds of that Act being made at our Suit and to be the limmits of the Prerogative in in that respect and it being an Act of explanation which shall receive no further explanation then it self contains 3. That by this Act we must provide a remedy against the Persons which detain us in Prison for as to the Commander there can be no certain Concerning the Question it self IT hath been solemnly and clearly resolved by the House that the commitment of a Freeman without expressing the cause at the time of the commitment is against the Law If by this Act
and free Customes of the Realm from your Majestie or your privy Councel And where also by the Statute called the great Charter of the Liberties of England It is declared and enacted That no Freeman may be taken nor imprisoned nor be disseised of his Freehold nor Liberties nor his free Customes nor be outlawed or exiled or in any manner destroyed but by the Lawfull judgement of his Peers or by the Law of the Land And in the 28. year of the Raign of King Edw. 3. it was declared and enacted by Authority of Parliament that no man of what Estate or condition he be shall put out of his Land or Tenement nor taken nor imprisoned nor disinherited nor put to death without being brought to answer by due process of Law Nevertheless against the Tenour of the said Statutes and other the good Laws and Statutes of your Realm to that end provided divers of your Subjects have of late been imprisoned without any cause shewed and when for their deliverance they were brought before your Justices by your Majesties Writ of Habeas Corpus there to undergo and receive as the Court should order and the Keepers commanded to certefie the causes of their detainer no cause was certified but that they were detained by your Majesties special command signified by the Lords of your privy Councel and yet were returned back to several Prisons without being charged with any thing the which they might make answer to and to Law And whereas of late great Companies of Souldiers and Marriners have been dispersed into divers Countreys of the Realm and the Inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourn against the Laws and Customes of this Realm and to the great grievance and vexation of the people And whereas also by Authority of Parliament in the 25. E. 3. it is declared and enacted that no man shall be fore-judged of Life or Limb against the form of the great Charter and the Law of the Land and by the said great Charter and other the Laws and Statutes of this your Realm no man ought to be adjudged to death but by the Laws established in this your Realm Nevertheless of late times divers Commissions under your Majesties great Seal have issued forth by which certain Persons have been assigned and appointed Commissioners with power and Authority to proceed within the Land according to the Justice of Martial Law against such Souldiers or Marriners or other dissolute Persons joyning with them as should commit any Murther Robbery Fellony Mutiny or other outrage or misdemeanour whatsoever and by such summary course and order as is agreeable to Martial Law and is used in Armies in time of War to proceed to the trial and condemnation of such offenders and them to cause to be executed and put to death according to the Law Martial By pretext whereof some of your Majesties Subjects have been by some of the said Commissioners put to death when and where if by the Laws and Statutes of the Land they had deserved death by the same Laws and Statutes also they might and by none other ought to have been adjudged and executed And also sundry grievous offenders by colour thereof claiming and exemption have escaped the punishment due to them by the Laws and Statutes of this your Realm By reason whereof divers of your Officers and Ministers of Justice have unjustly refused or forbore to proceed against such offenders according to the same Laws and Statutes upon pretence that the said offenders were punishable onely by Martial Law and by Authority of such Commissions as aforesaid which Commissions and all other of like nature are directly contrary to the said Laws and Statutes of this your Realm They do therefore humbly pray your most Excellent Majesty that no man hereafter be compelled to make or yield any Guift Loan Benevolence Tax or such like charge without common consent by Act of Parliament And that none be called to make answer or to take such an Oath or to give attendance or to be confined or otherwise molested or disquieted concerning the same or for refusal thereof And that no Freeman may man such manner as is before mentioned be imprisoned or detained And that your Majesty would be pleased to remove the said Souldiers and Marriners and that your people may not be so burthened in time to come And that the aforesaid Commissions for proceeding by Martial Law may be revoked annulled and that hereafter no Commissions of like nature may issue forth to any Person or Persons whatsoever to be executed as aforesaid least by colour of them any your Majesties Subjects be destroyed and put to death contrarie to the Laws and Franchises of the Land All which they most humbly pray of your most Excellent Majestie as their Rights and Liberties according to the Laws and Statutes of this Realm And that your Majestie would also vouchsafe to declare that the Awards doings and proceedings to the prejudice of your people in any the premises shall not be drawn hereafter into consequence or example And that your Majestie would be pleased gratiously for the further comfort and safety of your people to declare your Royal will and pleasure that in the things aforesaid all your Officers and Ministers shall serve you according to the Laws and Statutes of this Realm as they tender the Honour of your Majestie and the prosperity of this Kingdom S r. BENJAMIN RUDDIERDS Speech Mr. Pym I Did not think to have spoken again to this Bill because I was willing to believe that the forwardness of this Committee would have prevented me but now I hold my self bound to speak and to speak in earnest In the first year of the King and the second convention I first moved for the increase and inlarging of poor Ministers liings I shewed how necessarie it was that it had been neglected this was also commended to the House by his Majestie there were as now many accusations on foot against scandalous Ministers I was bolde to tell the House that there were scandalous livings which were much the cause of the other livings of 5. Marks of 5. l. a year that men of worth and of parts would not be musled up to such pittances that there were some places in England which were scarce in Christendom where God was little better known then amongst the Indians I exampled it in the utmost skirts of the North where the prayers of the common people are more like Spells and Charms then devotions the same blindeness and ignorance is in divers parts of Wales which many of that Countrey doth both know and lament I declared also that to plant good Ministers was the strongest and surest means to establish true Religion that it would prevail more against Papistry then the making of new Laws or executing of old that it would counterwork Court Conivence and Luke-warm accommodation that though the calling of Ministers be never
Petition of Right but our rights themselves for the addition being referred to each part of the Petition will necessarily receive this construction That none ought to be compelled to make any guift loan or such like charge without common consent or Act of Parliament unless it be by the Soveraign power with which the King is trusted for the protection safety and happiness of his people That none ought to be compelled to sojourn or billet Souldiers unless by the same Soveraign power and so of the rest of the Rights contained in the Petition And then the most favourable construction will be that the King hath an ordinary Prerogative and by that he cannot impose Taxes or Imprison That is he cannot impose Taxes at his will to imploy them as he pleaseth that he hath an extraordinary and transcendent Soveraign power for the protection and happiness of his people and for such purpose he may impose Taxes or billet Souldiers as he pleaseth and we may assure our selves that hereafter all Loans Taxes and billeting of Souldiers will be said to be for the protection safety and happiness of the people Certainly hereafter it will be conceived that an House of Parliament would not have made an unnecessary addition to this Petition of Right and therefore it will be resolved that the addition hath relation to the Petition which will have such operation as I have formerly declared and I the rather fear it because the late Loan and Billeting have been declared to have been by Soveraign power for the good of our selves and if it be doubtfull whether this proposition hath reverence to the Petition or not I know not who shall Judge whether Loans or Imprisonments hereafter be by that Soveraign power or not A Parliament which is made a body of several wits and may be dissolved by one Commission cannot be certain to decide this question We cannot resolve that that the Judges shall determine the words of the Kings Letter read in this House expressing the cause of Commitment may be such that the Judges have not capacity of Judicature no rules of Law to direct guide their Judgements in cases of that transcendent nature the Judges then and the Judgements are easily conjectured It hath been confessed by the Kings Councel that the Statute of Magna Charta bindes the King and his Soveraign power cannot be divided from himself If then the Statute of Magna Charta bindes the King it bindes his Soveraign power if to the Petition these words be added the exposition then must be that the Statute of Magna Charta binds the Kings Soveraign power Saving the Kings Soveraign power I shall endevour to give some answer to the reasons given by the Lords The first is that it is the intention of both Houses to maintain the just Liberty of the Subject and not to diminish the just power of the King and therefore the expression of that intention in this Petition cannot prejudice us which I answer First that our intention was and is as we then professed and no man can assign any particuler in which we have done to the contrary Neither have we any way transgressed in that kinde in this Petition and if we make this addition to the Petition it would give some intimution that we have given cause or colour of offence therein which we deny and which if any man conceive so that he would assign the particuler that we may give an answer thereunto By our Petition we onely desire our particuler Rights and Liberties to be confirmed to us and therefore it is not proper for us in it to mention Soveraign power in general being altogether impertinent to the matter in the Petition There is a great difference between the words of the addition and the words proposed therein for reason viz. between just power which may be conceived to be limmitted by Laws and Soveraign power which is supposed to be transcendent and boundless The second reason delivered by their Lordships was that the King is Soveraign That as he is Soveraign he hath power and that that Soveraign power is to left for my part I would leave it so as not to mention it but if it should be expressed to be left in this Petition as it is proposed it must admit something to be left in the King of what we pray or at least admit some Soveraign power in his Majestie in these Priviledges which we claim to be our Right which would frustrate our Petition and destroy our Right as I have formerly shewed The third reason given from this addition was that in the statute Articuli super Chartas there is a saving of the right and seigniory of the Crown To which I give these answers That Magna Charta was confirmed above 30 times and a general saving was in none of these Acts of confirmation but in this onely and I see no cause we should follow one ill and not 30 good Presidents and the rather because that saving produced ill effects that are well known That saving was by Acts of Parliament The conclusion of which Act is that in all those Cases the King did will and all those that were at the making of that Ordinance did intend that the Right and Seigniory of the Crown should be saved By which it appears that the saving was not in the Petition of the Commons but added by the King for in the Petition the Kings will is no expressed In that Act the King did grant and depart with to his people divers Rights belonging to his prerogative as in the first Chapter he granted that the people might choose three Men which might have power to hear and determine complaints made against those that offended in any point of Magna Charta though they were the Kings officers and to fine and ransome them and in the 8.12 and 19. Chapter of that Statute the King departed with other prerogatives and therefore there might be some reason of the adding of that Soveraign by the Kings Councel But in this Petition we desire nothing of the Kings Prerogative but pray the enjoying of our propper and undoubted Rights and Priviledges and therefore there is no cause to add any words which may imply a saving of that which concerns not the matter in the Petition The 4. reason given by their Lordships was that by the mouth of our Speaker we have this Parliament declared that it was far from our intention to incroach upon his Majesties Prerogative and that therefore it could not prejudice us to mention the same resolution in an addition to this Petition To which I answer that that declaration was a general answer to a Message from his Majestie to us by which his Majestie expressed that he would not have his Prerogative streitned by any new explanation of Magna Charta or the rest of the Statutes and therefore that expression of our Speakers was then propper to make it have reference to this Petition there being nothing therein