unto the said Information the benefit whereof was by order of the Court reserved unto the Defendant to be debated and considered of at the hearing of this cause and of divers other matters now urged for the Defendant both to have justified his the said Defendants attendance in Parliament and his not residence in person in the County whereof he was then Sheriff and amongst other things that it properly belonged to the house of Parliament to judge of the justness or unjustness of the said Election and upon grave and mature consideration thereof had and taken by the Court their Lordships did not onely conceive the said Demurrer and Plea and other the Arguments and Reasons used by the Defendant and his Council to be of no weight or strength but also to be in opposition and derogation of the Jurisdiction of the Court the reasons moved and urged for the Defendants excuse or justification being clearly answered and the charges of the Information made good by Mr. Atturney General and others of his Majesties Counsel learned And therefore the whole Court were clear of opinion and did so declare That the said Defendant who at that time as high Sheriff had the custody and charge of the County of Wilts committed unto him by his Majesty and had taken his Oath according to the Law to abide in his proper person within his Bayliffwick during all the time of his Sheriffwick as aforesaid and whose trust and imployment did require his personal attendance in the said Countie had not onely committed a great offence in violating the said Oath so by him taken but also a great misdemeanor in breach of the trust committed unto him by his Majesty and in contempt of his Majesties pleasure signified unto him by and under his Highness great Seal when he granted unto him the said Office of Sheriffwick aforesaid For which said several great Offences in breach of his said Oath neglect of the trust and duty of his Office and the great and high contempt of his Majesty their Lordships did hold the said Defendant worthy the sentence of the Court the rather to the end that by this example the Sheriffs of all other Counties may be deterred from committing the like offences hereafter and may take notice that their personal residence and attendance is required within their Bayliffwicks during the time of their Sheriffwick The Court therefore thought fit ordered adjudged and decreed That the said Defendant should stand and be committed to the prison of the Tower there to remain during his Majesties pleasure and also pay a Fine of two thousand Marks to his Majesties use and further make his humble submission and acknowledgement of his offence both in the Court of Star-Chamber and to his Majesty before his thence enlargment The same Term Mr. Mason argued in the kings Bench for Sir Iohn Elliot against the Information preferred against him amongst others by Sir Robert Heath the kings Atturney General and the same day the Atturney General argued in maintenance of the said Information the Judges also the same day spake briefly to the Case and agreed with one Voyce That the Court as this Case is shall have Jurisdiction although that these offences were committed in Parliament and that the imprisoned Members ought to answer Iones began and said That though this Question be now newly moved yet it is an ancient Question with him for it had been in his thoughts these eighteen yeers For this Information there are three Questions in it 1. Whether the matters informed be true or false and this ought to be determined by Iury or Demurrer 2. When the matters of the Information are found or confessed to be true if the Information be good in substance 3. Admit that the offences are truly charged if this Court hath power to punish them and that is the sole Question of this day And it seems to me that of these offences although committed in Parliament this Court shall have jurisdiction to punish them The Plea of the Defendents here to the jurisdiction being concluded with a Demurrer is not peremptory unto them although it be adjudged against them but if the Plea be pleaded to the jurisdiction which is found against the Defendant by verdict this is peremptory In the discussion of this point I decline these Questions 1. If the matter be voted in Parliament when it is finished it can be punished and examined in another Court 2. If the matter be commenced in Parliament and that ended if afterward it may be Questioned in another Court I question not these Matters but I hold That an Offence committed criminally in Parliament may be questioned elsewhere as in this Court and that for these Reasons First Quia interest Reipublicae ut malesicia non maneant impunita and there ought to be a fresh punishment of them Parliaments are called at the Kings pleasure and the King is not compellible to call his Parliament and if before the next Parliament the party offending or the witnesses die then there will be a â—ayler of Justice Secondly The Parliament is no constant Court every Parliament mostly consists of several men and by consequence they cannot take notice of matters done in the foregoing Parliament and there they do not examine by oath unless it be in Chancery as it is used of late time Thirdly The Parliament cannot send Process to make the offenders to appear at the next Parliament and being at large if they hear a noise of a Parliament they will fugam facere and so prevent their punishment Fourthly Put the case that one of the Defendants be made a Baron of Parliament now he cannot be punished in the House of Commons and so he shall be unpunished It hath been objected That the Parliament is the Superior Court to this therefore this Court cannot examine their proceedings To this I say That this Court of the Kings Bench is a higher Court then the Justices of Oyer and Terminer or the Justices of Assize But if an offence be done where the Kings Bench is after it is removed this offence may be examined by the Justices of Oyer and Terminer or by the Justices of Assize We cannot Question the Judgments of Parliaments but their particular offences 2. Obj. It is a Priviledge of Parliament whereof we are not competent Iudges To this I say That Privilegium est privata lex privat legem And this ought to be by grant prescription in Parliament and then it ought to be pleaded for the manner as is 33 Hen. 8 Dy. as it is not here pleaded Also we are Judges of all Acts of Parliament as 4 Hen. 7. Ordinance made by the King and Commons is not good and we are Judges what shall be said a Session of Parliament as it is in Plowden in Patridges Case We are Judges of their lives and lands therefore of their Liberties And 8 Eliz. which was cited by Mr. Atturney it was the opinion of Dyer Oatlyn Welsh Brown
sorts of persons might partake of the Publick Joy Prisoners for Debts were set at liberty and Pardon was granted to several Criminals as an earnest of the Kings respect and love to his Sister after this new Alliance The Duke of Buckingham was sent into France to his Christian Majesty to send away the Wife to the King of Great Britain and to be her Convoy He arrived at Paris the 24. of May with the Earl of Montgomery and other English Lords and was lodged in the Palace of the Duke of Chevereux who with his Lady was to conduct the Queen into England there to render her to the King her Husband During the seven days stay which the Duke made at Park the Feastings and Rejoicings were renewed and multiplied Bonfires shining and Canons playing but none did equalize the Feast that was made by the Cardinal of Richelieu The Second of Iune was the time appointed for our Queens departure The King of France sent to the Towns in her way to render her Majesty all due honors as if it were to himself The King of England having notice that the Queen was gone from Amiens sent a Royal Navy to Boloign to transport her the Fleet saluted the Town with a hundred peece of Canon Among other great Ladies the Duchess of Buckingham was sent to kiss the Queens hands as from the King her Husband desiring her to take her own time of coming over with most conveniencie to her own person The 22. of Iune New Stile the Queen imbarqued at Boloign and within Twenty four hours arrived at Dover And as the King was preparing to receive her she sent to his Majesty to desire him not to come till the morrow because she had been somewhat indisposed at Sea She passed that night at Dover and the next day about Ten of the clock the King was there with the Flower of the Nobility and after some Complements past caused every-body to retire and they were half an hour together in the Closet Thence his Majesty conducted the Queen to Canterbury and the same evening the Marriage was there consummated Then the Queen in testimony of her respect and love to the King her Husband made it her first suit as afterwards the King made known That he would not be angry with her for her faults of Ignorance before he had first instructed her to eschew them For that she being young and coming into a strange Country both by her years and ignorance of the Customs of the Nation might commit many Errors And she desired him in such cases to use no Third person but by himself to inform her when he found she did ought amiss The King granted her request and thanked her for it desiring her to use him even as she had desired him to use her which she willingly promised The Knights and Gentlemen of Kent together with the Trained Bands were by Order of the Council commanded to attend and receive the Queen at the most convenient places as she passed in such solemn manner and equipage as beseemed the dignity of his Majesty and the quality of her person Likewise the Magistrates of the Cities and Towns were commanded to attend at her passage in such Formalities as are used in principal and extraordinary Solemnities On the Sixteenth of Iune the King and Queen came both to London Great preparations were made and intended for her Majesties reception but the Plague then increasing those Ceremonies were laid aside A Chappel at Somerset-house was built for the Queen and her Family with Conveniencies thereunto adjoining for Capuchin-Friers who were therein placed and had permission to walk abroad in their Religious habits Thence-forward greater multitudes of Seminary-Priests and Iesuites repaired into England out of Forein parts This Summer the Pestilence raged in London At the entrance of the late King there was a great Plague in the City but this was far greater and the greatest that ever was known in the Nation For which cause a great part of Trinity-Term was adjourned from the First Return to the Fourth by the advice of the Privy-Council and the Justices of the Courts at Westminster and some few days in the beginning and ending thereof were holden for the better expediting and continuing of Causes and Suits and the returning and suing out of Processes and such like business as might be done in the absence of the Parties by their Attornies On the Eighteenth day of Iune the Parliament began at Westminster The King being placed in his Royal Throne the Lords sitting in their Robes the Commons also being present his Majesty spake thus I Thank God that the Business to be treated on at this time is of such a nature that it needs no Eloquence to set it forth For I am neither able to do it neither doth it stand with my Nature to spend much time in words It is no new business being already happily begun by my Father of blessed memory who is with God therefore it needeth no Narrative I hope in God you will go on to maintain it as freely as you advised my Father to it It is true He may seem to some to have been slack to begin so just and so glorious a work but it was his wisdom that made him loth to begin a work until he might find a means to maintain it But after that he saw how much he was abused in the confidence he had with other States and was confirmed by your Advice to run the Course we are in with your Engagement to maintain it I need not press to prove how willingly he took your Advice for the Preparations that are made are better able to declare it then I to speak it The assistance of those in Germany the Fleet that is ready for action with the rest of the Preparations which I have only followed my Father in do sufficiently prove that he entred into this Action My Lords and Gentlemen I hope that you do remember that you were pleased to imploy me to advise my Father to break off those two Treaties that were on foot so that I cannot say that I came hither a free unengaged man It 's true I came into this business willingly and freely like a Young man and consequently rashly but it was by your interest your engagement So that though it were done like a Young man yet I cannot repent me of it and I think none can blame me for it knowing the love and fidelity you have borne to your King having my self likewise some little experience of your affections I pray you remember that this being my first Action and begun by your Advice and intreaty what a great Dishonor it were to you and me if this Action so begun should fail for that Assistance you are able to give me Yet knowing the constancie of your love both to me and this Business I needed not to have said this but only to shew what care and sense I have
Lordships according to the unanimous Advice of all the Iudges of England and his Majesties pleasure signified therein That the First Article propounded viz. You shall do all your pain and diligence to destroy and make to cease all manner of Heresies and Errors commonly called Lollaries within in your Bayliwick from time to time to all your power and assist and be helping to all Ordinaries and Commissioners of the Holy Church and favor and maintain them as oftentimes as you shall be required shall be left out in the Oath to be given to Sir Edward Cook and shall ever hereafter be left out in all Oaths to be given to the High Sheriffs of Counties hereafter And their Lordships do likewise Order according to the unanimous Advice of all the Iudges of England That the other thrée Articles doubted of shall stand in the said Oath to be ministred to the said Sir Edward Cook and to all other High Sheriffs as heretofore hath béen accustomed and that the Lord Keeper do give order to such Officers and Clerks in the Court of Chancery to whom it appertained to make out the Oath for the time to come according to present Order The expectation of a Parliament gave encouragement to the Bishop of Lincoln who yet retained the name of Lord Keeper notwithstanding his Sequestration several moneths before from the presence of the King the Council Table and the custody of the Seal to make an Address to his Majesty for a favorable interpretation of his actions But his carriage towards the Duke at the Parliament at Oxford was fresh in memory where the Bishop told the Duke in Christ-Church upon the Dukes rebuking him for siding against him That he was engaged with William Earl of Pembroke to labor the Redress of the Peoples Grievances and was resolved to stand upon his own Legs If that be your resolution said the Duke Look you stand fast and so they parted and shortly after that he was sequestred though the Seal was not disposed from him till the Thirtieth of October at which time it was given to Sir Thomas Coventry at hampton-Hampton-Court who was that day sworn of the Privy Council and sate there and sealed some Writs and afterwards came to the Term at Reading and sate there as Lord Keeper and heard Causes The King being pressed with his own Necessities and the Cry of the Nation against the Fruitless Voyage of Cadiz summoned a Parliament to meet in February and before the time of meeting his Majesty enjoyned the Archbishops and Bishops in both Provinces to proceed against Popish Recusants by Excommunication and other Censures of the Church and not to omit any lawful means of bringing them to Publick Justice especially he recommended to their vigilant care the unmasking and repressing of those who were not professed Papists yet disaffected to the true Religion and kept close their evil and dangerous affection and by secret means and slights did encourage and advance the growth of Popery This Command was seconded by a Proclamation requiring That all Convicted Papists should according to the Laws of this Realm remain confined to their dwelling places or within five miles thereof unless upon special Licences first obtained in Cases necessary Immediately before the Parliament Bishop Laud procured the Duke of Buckingham to sound the King concerning the Cause Books and Tenets of Mr. Richard Montague and understanding by what the Duke collected That the King had determined within himself to leave him to a Tryal in Parliament he said I seem to see a Cloud arising and threatning the Church of England God for his Mercy dissipate it About the same time the King declared his purpose to celebrate the Solemnity of his Coronation on Candlemas-day at the Palace of Westminster and required all persons who by reason of their Offices and Tenures were bound to perform any Duties at the Solemnitie to give their attendance and to be furnished in all respects answerable to an action of so high State according to their places and dignities Wherefore by a Commission under the Great Seal of England Sir Thomas Coventry Lord Keeper of the Great Seal Iames Lord Say High Treasurer of England Edward Earl of Worcester Keeper of the Privy Seal Thomas Earl of Arundel and Surrey Earl Marshal of England William Earl of Pembroke Lord High Chamberlain Edward Earl of Dorset and Sir Randol Crew Cheif Justice of the Common Pleas were authorised to receive and determine the Claims exhibited by any Person concerning Services to be performed at the approaching Coronation And the more to credit the Solemnity the King resolving to make certain of his Servants and other Subjects in regard of their Birth good Service and other Qualities Knights of the Bath Authorised Thomas Earl of Arundel and Surrey and Earl Marshal of England William Earl of Pembroke Lord Chamberlain to perform in his Majesties Name and behalf all the Rites and Ceremonies belonging thereto At the same time Writs were directed to all Sheriffs in the Realm of England and Dominions of Wales commanding them to make Proclamation That all such as had Forty pounds a year or more of Lands or Revenues in their own hands or the hands of Feoffees for their use for the space of Three years and are not yet Knights do at their perils prepare to present themselves in his Majesties Presence by the One and thirtieth of Ianuary to receive the Order of Knighthood Upon the asswaging of the great Pestilence through the Mercy and Goodness of God in withdrawing and almost removing the Scourge the King by His Royal Authority ordained a Publick and General Thanksgiving to be celebrated upon the Nine and twentieth of Ianuary being the Lords day in the Cities of London and Westminster and the places adjacent and on the Nineteenth of February in all other places of the Kingdom the manner and form whereof was prescribed by a Book composed by the Bishops according to his Majesties special Direction The Contagion ceasing the restraint enjoyned to the Citizens of London from resorting to Fairs for a time was taken off The number of those that died this year within and without the Walls of the City of London and in the Liberties and Nine out Parishes from the Sixteenth of December 24. to the Fifteenth of December 25. Was in Total Fifty four thousand two hundred sixty and five whereof of the Plague Thirty five thousand four hundred and seventeen On Candlemas-day King Charls was Crowned Bishop Laud had the cheif hand in compiling the Form of the Coronation and had the honor to perform this Solemnity instead of the late Lord Keeper Williams who through the Kings disfavor was sequestred from this Service which belonged to his place as he was Dean of Westminster Mr. Iohn Cosens as Master of the Ecclesiastical Ceremonies kneeled behinde the Bishop when the Prayers were read and directed the Quire when to answer The Ceremony in going to and all the
his the said Ambassadors last return into Spain in the Summer An. 1622. To carry his Majesty then Prince into Spain to the end he might be informed and instructed in the Roman Religion and thereby have perverted the Prince and subverted the true Religion established in England From which misery this Kingdom next under Gods mercy hath by the wise religious and constant carriage of his Majesty been almost miraculously delivered considering the many bold and subtile attempts of the said Duke in that kind II. That Mr. Porter was made acquainted therewith and sent into Spain and such Messages at his return framed as might serve for a ground to set on foot this Conspiracie The which was done accordingly and thereby the King and Prince highly abused and their Consents thereby first gotten to the said Journey that is to say after the return of the said Mr. Porter which was about the end of December or the beginning of Ianuary 1622. whereas the said Duke had plotted it many moneths before III. That the said Duke at his arrival in Spain nourished the Spanish Ministers not only in the belief of his own being Popishly affected but did both by absenting himself from all Exercises of Religion constantly used in the Earl of Bristols house and frequented by all other Protestant English and by conforming himself to please the Spaniards in divers Rites of their Religion even so far as to kneel and adore their Sacrament from time to time give the Spaniards hope of the Prince his Conversion The which Conversion he endeavored to procure by all means possible and thereby caused the Spanish Ministers to propound far worse Conditions for Religion then had been formerly by the Earl of Bristol and Sir Walter Aston setled and signed under their Majesties hands with a Clause in the King of Spain's Answer of Decemb. 12. 1622. That they held the Articles agreed upon sufficient and such as ought to induce the Pope to the granting of the Dispensation IV. That the Duke of Buckingham having several times in the presence of the Earl of Bristol moved and pressed his late Majesty at the instance of the Conde of Gondomar to write a Letter unto the Pope and to that purpose having once brought a Letter ready drawn wherewith the Earl of Bristol by his Majesty being made acquainted did so strongly oppose the writing of any such Letter that during the abode of the said Earl of Bristol in England the said Duke could not obtain it yet not long after the Earl was gone he procured such a Letter to be written from his late Majesty unto the Pope and to have him stiled Sanctissime Pater V. That the Pope being informed of the Duke of Buckingham's inclination and intention in point of Religion sent unto the said Duke a particular Bull in parchment for to perswade and encourage him in the perversion of his Majesty then Prince VI. That the said Dukes behaviour in Spain was such that he thereby so incensed the King of Spain and his Ministers as they would admit of no reconciliation nor further dealing with him Whereupon the said Duke seeing that the Match would be now to his disadvantage he endeavored to break it not for any service to the Kingdom nor dislike of the Match in it self nor for that he found as since he hath pretended that the Spaniards did not really intend the said Match but out of his particular ends and his indignation VII That after he intended to cross the Marriage he put in practice divers undue courses as namely making use of the Letters of his Majesty then Prince to his own ends and not to what they were intended as likewise concealing divers things of high importance from his late Majesty and thereby overthrew his Majesties purposes and advanced his own ends VIII That the said Duke as he had with his skill and artifices formerly abused their Majesties so to the same end he afterwards abused both Houses of Parliament by his sinister Relation of the carriage of Affairs as shall be made appear almost in every particular that he spake unto the said Houses IX As for scandal given by his personal behaviour as also the imploying of his power with the King of Spain for the procuring of Favors and Offices which he bestowed upon base and unworthy persons for the recompence and hire of his Lust These things as neither fit for the Earl of Bristol to speak nor indeed for the House to hear he leaveth to your Lordships wisdom how far you will be pleased to have them examined It having been indeed a great infamy and dishonor to this Nation that a Person of the Dukes great quality and imployments a Privy-Counsellor an Ambassador eminent in his Masters favor and solely trusted with the Person of the Prince should leave behind him in a Forein Court so much scandal as he did by his ill behaviour X. That the Duke hath been in great part the Cause of the ruine and misfortune of the Prince Palatine and his Estates in as much as those Affairs had relation unto this Kingdom XI That the Duke of Buckingham hath in his Relations to both Houses of Parliament wronged the Earl of Bristol in point of his Honor by many sinister aspersions which he hath laid upon him and in point of his Liberty by many undue Courses through his power and practices XII That the Earl of Bristol did reveal unto his late Majesty both by word and letter in what sort the said Duke had disserved him and abused his trust And that the King by several ways sent him word That he should rest assured he would hear the said Earl but that he should leave it to him to take his own time And thereupon few days before his sickness he sent the Earl word that he would hear him against the said Duke as well as he had heard the said Duke against him Which the Duke himself heard And not long after his blessed Majesty sickned and died having been in the interim much vexed and pressed by the said Duke Articles of the Earl of Bristol against the Lord Conway bearing Date 1 Maii 1626. I. THat the Lord Conway is so great a Servant of the Duke of Buckingham's that he hath not stuck to send the Earl of Bristol plain word That if businesses could not be accommodated betwixt him and the Duke he must then adhere and declare himself for the said Duke and therefore unfit to be a Judge in any thing that concerneth the Duke or the Earl II. That the said Lord Conway professeth himself to be a Secretary of the Duke of Buckingham's creation and so acknowledgeth it under his own hand And although that he be the Kings Secretary of State and a Privy-Counsellor he usually beginneth his Letters to the Duke Most gracious Patron III. That as a Creature of the said Dukes the said Lord Conway hath been made the Instrument of keeping the Earl of Bristol from the Kings presence and
into my hands not as an Attorney onely for the Prince But the King of Spain having taken the substitution of them by his Secretary of State entred in Legal form whereby that King was then become interessed in them by their occupation as well as the Prince by granting of them And becoming the Instrumentum stipulatum wherein they were both interessed they were deposited in my hands as an indifferent person trusted between the King of Spain and the Prince with a Declaration of the Trust. And now the Duke was returned out of Spain he plotted my ruine and put it in execution in this manner He concealed that the powers were to expire at Christmas and procured his Majesty to write a Letter not a direct Commandment but expressing a desire that the Desponsories should not be till one of the days in Christmas intending thereby to draw me into a Dilemma That if I proceeded in the Match this Letter should as now it is have been inforced against me as a breach of Instructions If I had not proceeded then I had broken my trust between the Prince and King of Spain overthrown the Marriage so long sought and labored it being the main scope of my Ambassage contrary to express Warrant and that upon a Letter I must needs know to be a mistake And when I had written into England to have a direct Warrant in the point the Duke then seeing that Plot would not take he dealt with divers great Lords as was well known to some of their Lordships there present to have me upon my arival in England committed to the Tower before I should ever come to speak with the King which the Spanish Ambassador here in England having gotten private notice of gave advertisement thereof to that King Who thereupon foreseeing my danger and consulting with his Council and Divines what were fit for him in Honor and Conscience to do in that Case they resolved That seeing my Sufferings grew by being an honest man and endeavoring to perform the trust reposed in me by that King as well as the Prince That King was bound both in Honor and Conscience not onely to preserve me from ruine but to make me a reparation for any loss I should sustain by occasion of the Trust Whereupon at his departure going to Court to take his leave the Conde de Olivares told me what was plotted against me in England and in respect of the danger by reason of the greatness of my Adversary pâ—rswaded me to stay there and in his Masters Name made an offer not in secret but in the presence of Sir Walter Aston Here he repeated those offers of Reward Honor and Preferment which we have mentioned before in order of time and at present pass it by he then proceeded and said Upon what grounds and hope came I to encounter with those dangers Not upon hope of my greatness in Court and strength of Friends there to bolster out an ill Cause no sure my strength was too weak and my adversaries too powerful But I knew my Conscience was clear and my Cause was good and trusted in God Almighty And to him now and to their Lordships judgments recommended my self and my Cause And then he delivered his Answer desiring their Lordships it might be after Recorded in Parchment that it might remain to posterity which being read by one of his Council the Lord Keeper asked him Whether he desired to say any more then he had done he answered That he had something more to say but knew not the order or whether Mr. Attorney would speak first but he being desired to speak He desired their Lordships he might put them in minde of what he conceived they had already promised which was That the Duke whom he accused in that House of far higher offences then any with which he was charged might be proceeded with as he was and that they might be upon equal Conditions And that such heads as he had delivered against the Duke being of such Matters as he met withal in his Negotiation as an Ambassador and which he had according to his duty acquainted the State withal might by their Lordships care and order be put into Legal form and prosecuted for so was the use when he had the honor to sit at the Council Table He said He conceived he had already done his part to inform and would be ready to make it good it concerning their Lordships to see it prosecuted it not being to be expected that he should solicit it or if he would he could not being under restraint And he desired likewise that the Judges might deliver their opinions Whether the matter charged against him were Treason that if it should not so be in their opinions he might not lie under so heavy a burthen He put their Lordships in minde that it was a strange manner of proceeding that upon a displeasure a Peer of the Kingdom complaining of those that had practised against him and had been the causers of his Sufferings should then and never but then be charged with Treason He told them it was not his case alone but it equally concerned them and their Posterity and it might be some others hereafter more then him now For he said he thanked God he had some experience in the World and thereby and by those things he had kept was able to make his innocency appear which perhaps would not be every mans hereafter and so many an honest heart in a good cause distracted with fears and abandoned of Friends might perish through the malice of a potent Adversary The Lords again asked him whether he had any thing more to say he answered No but desired leave onely to explain himself in two things one in his Speech now spoken and the other when he was first brought to the House That in his Speech this day was where he affirmed he had like to have been ruined in his Negotiation First For being a Puritan and now for being a Papist and both by one hand he explained it to be by the hand of the Duke of Buckingham And the other when he first came to the House saying there For Redress of former sufferings and meeting on the sudden with Treason charged upon him he spake in Passion expressing the Wrongs and Injuries done him by the Duke and told their Lordships he had used means to convey part of his Sufferings to the late King his Master who in the Dukes hearing sware he would after he had heard the Duke against him hear him also against the Duke for which his Majesty suffered much or to some such purpose Now he understandeth this Speech to reflect upon what was in Agitation in the Lower House but he said although he could not well excuse the Dukes indiscretion in that point yet he spake it not any ways to corroborate that opinion For howsoever the Duke were his enemy yet he could not think so dishonorably of him The Answer of the Earl of Bristol to
in the chief Court of Admiralty in the name of the said late King and of the Lord Admiral against them for Fifteen thousand pound taken Piratically by some Captains of the said Merchants ships and pretended to be in the hands of the East India Company and thereupon the Kings Advocate in the name of Advocate for the then King and the said Lord Admiral moved and obtained one Attachment which by the Serjeant of the said Court of Admiralty was served on the said Merchants in their Court the sixteenth day of March following whereupon the said Merchants though there was no cause for their molestation by the Lord Admiral yet the next day they were urged in the said Court of Admiralty to bring in the Fifteen thousand pounds or go to prison wherefore immediately the Company of the said Merchants did again send the Deputy aforesaid and some others to make new suit unto the said Duke for the release of the said Ships and Pinaces who unjustly endeavoring to extort money from the said Merchants protested that the Ships should not go except they compounded with him and when they urged many more reasons for the release of the said Ships and Pinaces the Answer of the said Duke was That the then Parliament must first be moved The said Merchants therefore being in this perplexity and in their consultation the three and twentieth of that moneth even ready to give over that Trade yet considering that they should lose more then was demanded by unlading their ships besides their voyage they resolved to give the said Duke Ten thousand pounds for his unjust demands And he the said Duke by the undue means aforesaid and under colour of his Office and upon false pretence of Rights unjustly did exact and extort from the said Merchants the said Ten thousand pounds and received the same about the 28. of April following the discharge of those Ships which were not released by him till they the said Merchants had yielded to give him the said Duke the said Ten thousand pounds for the said Release and for the false pretence of Rights made by the said Duke as aforesaid VII Whereas the Ships of our Soveraign Lord the King and of his Kingdoms aforesaid are the principal strength and defence of the said Kingdoms and ought therefore to be always preserved and safely kept under the command and for the service of our Soveraign Lord the King no less then any the Fortresses and Castles of the said Kingdoms And whereas no Subject of this Realm ought to be dispossessed of any his Goods or Chattels without order of Justice or his own consent first duly had and obtained The said Duke being Great Admiral of England Governor-General and Keeper of the said Ships and Seas and thereof ought to have and take a special and continual care and diligence how to preserve the same The said Duke in or about the end of Iuly last in the first year of our Soveraign Lord the King did under the colour of the said Office of Great Admiral of England and by indirect and subtile means and practices procure one of the principal Ships of his Majesties Navy-Royal called the Vantguard then under the Command of Captain Iohn Pennington and six other Merchants Ships of great burden and value belonging to several Persons inhabiting in London the Natural Subjects of his Majesty to be conveyed over with all their Ordnance Munition Tackle and Apparel into the parts of the Kingdom of France to the end that being there they might the more easily be put into the hands of the French King his Ministers and Subjects and taken into their possession command and power And accordingly the said Duke by his Ministers and Agents with menaces and other ill means and practices did there without order of Justice and without the consent of the said Masters and Owners unduly compel and inforce the said Masters and Owners of the said six Merchants Ships to deliver their said Ships into the said possession command and power of the said French King his Ministers and Subjects and by reason of his compulsion and under the pretext of his power as aforesaid and by his indirect practices as aforesaid the said Ships aforesaid as well the said Ship Royal of his Majesty as the others belonging to the said Merchants were there delivered into the hands and command of the said French King his Ministers and Subjects without either sufficient security or assurance for redelivery or other necessary caution in that behalf taken or provided either by the said Duke himself or otherwise by his direction contrary to the duty of the said Offices of Great Admiral Governor-General and Keeper of the said Ships and Seas and to the faith and trust in that behalf reposed and contrary to the duty which he oweth to our Soveraign Lord the King in his place of Privy-Counsellor to the apparent weakening of the Naval strength of this Kingdom to the great loss and prejudice of the said Merchants and against the liberty of those Subjects of our Soveraign Lord the King that are under the Jurisdiction of the Admiralty VIII The said Duke contrary to the purpose of our Soveraign Lord the King and his Majesties known zeal for the maintenance and advancement of the true Religion established in the Church of England knowing that the said Ships were intended to be imployed by the said French King against those of the same Religion at Rochel and elswhere in the Kingdom of France did procure the said Ship Royal and compel as aforesaid the said six other Ships to be delivered unto the said French King his Ministers and Subjects as aforesaid to the end the said Ships might be used and imployed by the said French King in his intended War against those of the said Religion in the said Town of Rochel and elswhere within the Kingdom of France And the said Ships were and have been since so used and imployed by the said French King his Ministers and Subjects against them And this the said Duke did as aforesaid in great and most apparent prejudice of the said Religion contrary to the purpose and intention of our Soveraign Lord the King and against his duty in that behalf being a sworne Counsellor to his Majesty and to the great scandal and dishonor of this Nation And notwithstanding the delivery of the said Ships by his procurement and compulsion as aforesaid to be imployed as aforesaid the said Duke in cunning and cautelous manner to mask his ill intentions did at the Parliament held at Oxford in August last before the Committee of both Houses of Parliament intimate and declare that the said Ships were not nor should they be so used and imployed against those of the said Religion as aforesaid in contempt of our Soveraign Lord the King and in abuse of the said Houses of Parliament and in violation of that Truth which every man should profess These three Articles were aggravated by Mr. Glanvile
great eminence power and authority being impeached and accused of such high Crimes and Offences should yet enjoy his Liberty hold so great a part of the strength of the Kingdom in his hands sit as a Peer in Parliament and be acquainted with the Counsels thereof whereby inevitable mischief may suddenly fall upon the Kingdom Wherefore they have thought it their duty to recommend this their unanimous desire to their Lordships as agreeable to Law and reason That they would be pleased forthwith to commit the person of the said Duke to safe Custody Whereupon the Duke made this Speech in the Lords House My Lords IF I should hold my peace it would argue guilt If I should speak it would argue boldness being so foully accused Your Lordships see what Complaints are made against me by the House of Commons How well I stood in their opinions not long since your Lordships know it What I have done since to lose their good opinions I protest I know not I cannot so distrust my own Innocencie and my heart which abhors guilt as to decline any Course or Court of Justice And had not they brought my Cause to your Lordships it should have been my own work And they have done me a favor to deliver me out of their hands into your Lordships I will not speak any thing to cast dirt at those who have taken pains to make me so foul but to protest my innocencie in that measure which I shall ever hope to prove it being before such just Judges I desire my Trial may be hastened that I may no longer suffer then I must needs And now that my Accuser hath not been content only to make my Process but to prescribe to your Lordships the manner of your Judgment and to judge me before I am heard I shall not give way to any of their unjust Demands c. The Commons upon the Imprisonment of their Members and the offence taken by the King at the words spoken by those two Gentlemen in impeaching the Duke resolved to proceed in no other business till they were righted in their Liberties and ordered that the House be turned into a Grand Committee presently to sit and consider of the best way and means to effect the same and that no Member be suffered to go forth At which time Sir Dudley Carlton observing that unusual and as he termed it sullen silence of the House made this Speech I Find by a great silence in this House that it is a fit time to be heard if you please to give me the patience I may very fitly compare the heaviness of this House unto some of my misfortunes by Sea in my Travels For as we were bound unto Marseillis by oversight of the Mariners we mistook our Course and by ill fortune met with a Sand That was no sooner overpast but we fell on another and having escaped this likewise we met with a third and in that we stuck fast All of the Passengers being much dismaied by this disaster as now we are here in this House for the loss of those two Members At last an old experienced Mariner upon consultation affirmed That the speediest way to come out from the Sands was to know how we came there So well looking and beholding the Compass he found by going in upon such a point we were brought into that streight wherefore we must take a new point to rectifie and bring us out of danger This House of Parliament may be compared to the Ship the Sands to our Messages and the Commitment to the Sands that the Ship did stick fast in and lastly the Compass to the Table where the Book of Orders doth lie Then I beseech you let us look into the Book where the Orders are whether the Gentlemen did go no further then the Order did warrant them If they did not it is fit that we should defend them whom we imployed in our behests But if they have exceeded their Commission and delivered that which they had not warrant for it is just that we let them suffer for this presumption and this our Course will bring us from these Rocks I beseech you Gentlemen move not his Majesty with trenching upon his Prerogatives lest you bring him out of love with Parliaments You have heard his Majesties often Messages to you to put you forward in a Course that will be most convenient In those Messages he told you That if there were not Correspondencie between him and you he should be inforced to use new Counsels Now I pray you consider what these new Counsels are and may be I fear to declare those that I conceive In all Christian Kingdoms you know that Parliaments were in use antiently by which their Kingdoms were governed in a most flourishing manner until the Monarchs began to know their own strength and seeing the turbulent spirit of their Parliaments at length they by little and little began to stand upon their Prerogatives and at last overthrew the Parliaments throughout Christendom except here only with us And indeed you would count it a great misery if you knew the Subject in Foreign Countries as well as my self to see them look not like our Nation with store of flesh on their backs but like so many Ghosts and not men being nothing but skin and bones with some thin cover to their nakedness and wearing only woodden shoos on their feet so that they cannot eat meat or wear good clothes but they must pay and be taxed unto the King for it This is a misery beyond expression and that which yet we are free from Let us be careful then to preserve the Kings good opinion of Parliaments which bringeth this happiness to this Nation and makes us envied of all others while there is this sweetness between his Majesty and his Commons lest we lose repute of a Free-born Nation by our turbulencie in Parliament For in my opinion the greatest and wisest part of a Parliament are those that use the greatest silence so as it be not opiniotory or sullen as now we are by the loss of these our Members that are committed This good Correspondencie being kept between the King and his people will so join their love and favor to his Majesty with liking of Parliaments that his Prerogative shall be preserved entire to himself without our trenching upon it and also the Priviledge of the Subject which is our happiness inviolated and both be maintained to the support of each other And I told you if you would hear me patiently I would tell you what exception his Majesty doth take at those Gentlemen that are committed You know that Eight Members were chosen to deliver the Charge against the Duke but there were only Six imployed for that purpose insomuch that there was no Exception As for Sir Dudley Diggs his part that was the Prologue and in that his Majesty doth conceive that he went too far beyond his Commission in pressing the death of his
man that would not depend upon him among other men had me in his eye for not stooping unto him so as to become his Vassal I that had learned a Lesson which I constantly hold To be no mans servant but the Kings for mine Old Royal Master which is with God and mine own Reason did teach me so went on mine own ways although I could not but observe That so many as walked in that path did suffer for it upon all occasions and so did I nothing wherein I moved my Master taking place which finding so clearly as if the Duke had set some ill character upon me I had no way but to rest in patience leaving all to God and looking to my self as warily as I might But this did not serve the turn his undertakings were so extraordinary That every one that was not with him was presently against him and if a hard opinion were once entertained there was no place left for satisfaction or reconciliation What befel the Earl of Arundel and Sir Randal Crew and divers others I need not to report and no man can make doubt but he blew the Coals For my Self there is a Gentleman called Sir H. S. who gave the first light what should befal me This Knight being of more livelihood then wisdom had married the Lady D. Sister to the now Earl of E. and had so treated her that both for safeguard of her Honor blemished by him scandalously and for her Alimony or maintenance being glad to get from him she was inforced to endure a Suit in the High Commission Court So to strengthen his party he was made known to the Duke and by means of a Dependant on his Grace he got a Letter from the King That the Commissioners should proceed no further in hearing of that Cause by reason that it being a difference between a Gentleman and his Wife the Kings Majesty would hear it himself The Solicitor for the Lady finding that the course of Justice was stopped did so earnestly by Petition move the King that by another Letter there was a relaxation of the former restraint and the Commissioners Ecclesiastical went on But now in the new proceeding finding himself by Justice like enough to be pinched he did publickly in the Court refuse to speak by any Councel but would plead his cause himself wherein he did bear the whole business so disorderly tumultuously and unrespectively that after divers reproofs I was enforced for the Honor of the Court and Reputation of the High Commission to tell him openly That if he did not carry himself in a better fashion I would commit him to Prison This so troubled the yong Gallant that within few days after being at Dinner or Supper where some wished me well he bolted it out That as for the Archbishop the Duke had a purpose to turn him out of his place and that he did but wait the occasion to effect it Which being brought unto me constantly by more ways then one I was now in expectation what must be the issue of this great mans indignation which fell out to be as followeth There was one Sibthorpe who not being so much as a Batchellor of Arts as it hath been credibly reported unto me by means of Doctor Peirce Dean of Peterborough being Vice-Chancellor of Oxford did get to be conferred upon him the Title of a Doctor This man is Vicar of Brackley in Northamptonshire and hath another Benefice not far from it in Buckinghamshire But the lustre of his Honor did arise from being the Son-in-law of Sir Iohn Lamb Chancellor of Peterborough whose Daughter he married and was put into the Commission of Peace When the Lent Assizes were in February last at Northampton the man that Preached before the Judges there was this worthy Doctor where magnifying the Authority of Kings which is so strong in the Scripture that it needs no flattery any ways to extol it he let fall divers Speeches which were distasteful to the Auditors and namely That they had power to put Poll-Money upon their Subjects heads when against those challenges men did frequently mourn He being a man of a low Fortune conceived that the putting his Sermon in Print might gain favor at Court and raise his Fortune higher on he goeth with the Transcribing of his Sermon and got a Bishop or two to prefer this great Service to the Duke and it being brought unto the Duke it cometh in his head or was suggested unto him by some malicious body that thereby the Archbishop might be put to some remarkable strait For if the King should send the Sermon unto him and command him to allow it to the Press one of these two things would follow That either he should Authorize it and so all men that were indifferent should discover him for a base and unworthy Beast or he should refuse it and so should fall into the Kings indignation who might pursue it at his pleasure as against a man that was contrary to his service Out of this Fountain flowed all the Water that afterwards so wet In rehearsing whereof I must set down divers particulars which some man may wonder how they should be discovered unto me But let it suffice once for all that in the word of an honest man and of a Bishop I recount nothing but whereof I have good warrant God himself working means The matters were revealed unto me although it be not convenient that in this Paper I name the manner how they came unto me least such as did by well-doing further me should receive blame for their labor Well! resolved it is That I must be put to it and that with speed and therefore Mr. William Murrey Nephew as I think unto Mr. Thomas Murrey sometimes Tutor unto Prince Charls and the yong man now of the Kings Bed-chamber is sent unto me with the Written Sermon of whom I must say That albeit he did the King his Masters business yet he did use himself temperately and civilly unto me For avoiding of inquit and inquam as Tully saith I said this and he said that I will make it by way of Dialogue not setting down every days conference exactly by it self but mentioning all things of importance in the whole yet distinguishing of times where for the truth of the Relation it cannot be avoided Murrey My Lord I am sent unto you by the King to let you know that his pleasure is That whereas there is brought unto him a Sermon to be Printed you should allow this Sermon to the Press Archb. I was never he that authorised Books to be Printed for it is the work of my Chaplains to read over other mens writings and what is fit to let it go what is unfit to expunge it Murrey But the King will have you your self to do this because he is minded that no Books shall be allowed but by you and the Bishop of London And my Lord of London authorised one the other day Cousens
to his duty To this Sir Thomas Darnell replied That such words never came into his thoughts And did humbly pray they might make no impression upon the Court to the disparagement of his Cause for he was accused of that he was in no manner guilty of Upon which Sir Nicholas Hide Chief Justice said That he had made a fair and temperate Answer And you may perceive said the Chief Justice the upright and sincere proceedings which have been in this business You no sooner moved for a Habeas Corpus but it was granted you you no sooner desired Council but they were assigned you though any Council might move for you without being assigned and should have had no blame for it The Kings pleasure is his Law should take place and be executed and for that do we sit here And whether the Commitment be by the King or others this Court is the place where the King doth sit in person to do right if injury be done And we have power to examine it and if it appear that any man hath wrong done him by his Imprisonment we have power to deliver and discharge him if otherwise he is to be remanded by us to Prison again And the Attorney-General after the Chief Justice had spoken said Though this be a Case which concerns the King in an high degree yet he hath been so gracious and so just as not to refuse the Examination and Determination thereof according to the Laws of the Kingdom Then the Court proceeded to hear the Arguments made in the Prisoners behalf Mr. Noy argued for Sir Walter Earl Serjeant Bramston for Sir Iohn Heveningham Mr. Selden for Sir Edward Hampden Mr. Calthrop for Sir Iohn Corbet who were all assigned of Council with the Prisoners by the Court of Kings-Bench upon a Petition delivered by them to that purpose After they had argued Mr. Attorney had a day appointed to argue for the King It is not our intention to take up the Readers time with the Arguments at large either by the one side or the other We shall only hint unto you some generals chiefly concerning the form of the Return of the Writ The first Exception taken by the Council for the imprisoned Gentlemen was to the form of the Return 1. For that the Return is not positive but referred to the signification made by another by the Lords of the Council 2. The Keepers of the Prisons have not return'd the Cause of the Commitment but the Cause of the Cause which they held not to be good 3. That the Return of the Commitment is imperfect for that it sheweth onely the Cause of the detaining in Prison and not the Cause of the first Commitment Lastly That the Return is contradictory in it self For that in the first part thereof it is certified that the detaining of those Gentlemen in Prison is per speciale mandatum Domini Regis And when the Warrant of the Lords of the Council is shewn it appeareth that the Commitment is by the command of the King signified by the Lords of the Council The second general Exception was to the matter of the Return and that was touching the Imprisonment per speciale mandatum Domini Regis by the Lords of the Council without any Cause expressed Wherefore said Mr. Selden by the constant and setled Laws of this Kingdom without which we have nothing no man can be justly imprisoned either by the King or Council without a Cause of the Commitment and that ought to be expressed in the Return The Law saith expresly No Free-man shall be imprisoned without due Process of the Law Nullus liber homo capiatur vel imprisonetur nisi per legem terrae c. And in the Charter of King Iohn there are these words Nec eum in carcerem mittimus We will not commit him to Prison that is The King himself will not This right said Serjeant Bramston is the onely means that a Subject hath whereby to obtain his Liberty and the end of it 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 Which cannot be done upon this Return for the Cause of the Imprisonment is so far from appearing particularly by it that there is no Cause at all expressed And the Writ requires that the Cause of the Imprisonment should be returned and the Cause ought to be expressed so far as that it ought to be none of those Causes for which by the Laws of the Kingdom the Subject ought not to be imprisoned and it ought to be expressed that it was by Presentment or Indictment or upon Petition or Suggestion made unto the King For said he observe but the consequence If those Gentlemen who are committed without any Cause shewn should not be bailed but remanded the Subjects of the Kingdom may be restrained of their Liberty for ever and by Law there can be no remedy We shall not reflect upon the present time and Government but we are to look what may betide us in time to come hereafter The Laws are called the great Inheritance of every Subject and the Inheritance of Inheritances without which we have nothing that deserves the name of Inheritance If upon a Habeas Corpus a Cause of Commitment be certified then said Mr. Noy the Cause is to be tryed before your Lordships but if no Cause be shewn the Court must do that which standeth with Law and Justice and that is to deliver the party The Commons did complain in Ed. 3. his time that the great Charter and other Statutes were broken They desired that for the good of himself and his people they may be kept and put in execution and not infringed by making any Arrest by special command or otherwise And the Answer which was given them was this That the said great Charter and other Statutes should be put in execution according to the Petition without disturbance of Arrests by special command And the King granteth the Commons desire in the same words as they were expressed in their Petition And afterwards complaining again That notwithstanding this Answer of the King they were imprisoned by special command without Indictment or other legal course of Law The Kings Answer was upon another Petition unto him That he was therewith well pleased And for the future he added further If any man be grieved let him complain and right shall be done And forasmuch as it doth not appear to the Court that there was any Cause of the Commitment of these Members no Charge against them no Indictment or Process according to the Laws Wherefore Mr. Noy prayed they might be no longer detained in Prison but be bailed or discharged Admit the Commitment of the Command of the King was lawful yet said Mr. Calthorp when a man hath continued in prison a reasonable time he ought to be brought to answer and not to continue still in prison without being brought to answer For that it appeareth
by the Books of our Laws that Liberty is a thing so favored of 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 pleasure It doth speak of the delivery of a man out of prison with as reasonable expedition as may be And upon this reason it hath been resolved that howsoever the Law alloweth that there may be a Term between the Teste of an Original Writ and the Return of the same where there is only a Summons and no Imprisonment of the body yet the Law will not allow that there should be a Term between the Teste of a Writ of Capias and the Return of the same where the body of a man is to be imprison'd insomuch that it will give no way that the party shall have power to continue the body of a man longer time in prison then needs must so tender is the Law of the Subjects Liberty Monday the 27. of November the Attorney-General argued for the King That this was a very great Cause and hath raised great expectation and he was afraid that those Gentlemen whom it concerns have rather advised their Councils then their Councils them For the first Exception That the Return is not positive but hath relation to some others He did conceive it was positive enough For said he the words are Quod detentus est sub custodia mea per speciale mandatum Domini Regis The other words mihi significatum they follow after but are not part of the affirmation made before it And if they will have it as they seem to understand it then they must return the words thus Quod significatum est mihi per Dominos Privati Consilii quod detentus est per speciale mandatum Domini Regis And then it had not been their own proper Return but the signification of another the Lords of the Council The turning of the sentence would resolve this point the thing it self must speak for it self It is clear it is a positive Return that the detaining is by the command of the King and the rest of the Return is rather satisfaction to the Court then any part of the Return And for the other Exception That the Cause of the Cause is returned and not the Cause it self He said Among the Logicians there are two Causes there is Causa causans and Causa causata The Causa causans here in this Case is not the Warrant from the Lords of the Council for that is Causa causata But the primary and original Cause which is Causa causans is Speciale mandatum Domini Regis the other is but the Councils signification or testification or Warrant for him that made the Return And for the other Exception The Cause is imperfect because it shews only the Cause of detaining in Prison and not the Cause of the first Commitment He conceives it is sufficient for an Officer of the Law to answer That the Writ is a Command to make a Return of the detaining of the Prisoner and he accordingly makes a Return of the Detention and if the Keeper of the Prison had only said they were detained per speciale mandatum c. it had been good Then he proceeded to the matter of the Return and to answer the Book-Cases and Records that had been cited by the Council for the Prisoners and to produce Presidents on the Kings behalf which are extant in Print to which the Reader is referred Afterwards Sir Nicholas Hide Chief Justice Justice Dodderidge Justice Iones and Justice Whitlock being upon the Bench and Sir Iohn Heveningham and the forementioned Prisoners being brought to the Bar Sir Nicholas Hide Lord Chief Justice by the consent and direction of the Judges spake to this purpose That the Court hath seriously considered what hath been spoken by either side and are grown to a resolution And that his Brothers have enjoined him to deliver unto you the resolution of the whole Court And therefore said he though it be delivered by my mouth it is the resolution of us all I am sure you expect Justice from hence and God forbid we should sit here but to do Justice to all men according to our best skill and knowledge as it is our oaths and duties so to do But this is a Case of very great weight and great expectation and requires more solemn Arguments then the time will now permit The Exceptions which have been taken to this Return are two the one for the form the other for the substance First for the form because it is not returned as they say positively and absolutely but with reference to a Warrant of the Lords of the Council Now the Court is of opinion That this is a positive and absolute Return upon this reason That the Keeper of the Prison first returns that they are detained by the special command of the King And if they had ceased there it had been positive And for that which follows That it was signified to him by the Lords of the Council this is only to certifie the Court that he returned the Cause truly and not to shew us that he had no knowledge of the Cause but by the signification of the Lords of the Council There is not one word in the Writ that demands the cause why they were taken but why they are detained So that that point in the Writ is sufficiently answered which was only to certifie the cause of the detention And therefore we resolve That the form of this Return is good The next thing is the main point in Law Whether the substance or matter of the Return be good or no Where in the substance is this He doth certifie that they are detained in Prison by the special command of the King And whether this be good in Law or no is the Question Here the Lord Chief Justice did mention the several Presidents and Book-Cases cited by each side too long to be here related And concluded That that which is now to be judged by us is this Whether one that is committed by the Kings authority and no Cause shewn of his Commitment according as here it is upon this Return whether we ought to deliver him by Bail or to remand him back again Where by the way you must know that we can take notice only of this Return That when the Case appears to us no otherwise then by the Return we are not bound to examine the truth thereof but the sufficiencie of the Return We cannot judge upon rumors or reports but upon that which is before us on Record which is examinable by us whether it be sufficient or not Mr. Attorney hath told you That the King hath done it And we trust him in great matters And we make no doubt but the King if you seek to him knowing the cause why you
the Judges justly refused it but if the Judges did intend it we sit not here said he to answer the trust we are sent for if we present not this matter to his Majesty Let this business be further searched into and see how this Judgement lies against us and what the Judges do say concerning the same Sir Edw. Cook proceeded and said This Draught of the Judgement will sting us quia nulla causa fuit ostenta being committed by command of the King therefore he must not be bailed What is this but to declare upon Record that any Subject committed by such absolute command may be detained in Prison for ever What doth this tend to but the utter subversion of the choise Liberty and Right belonging to every free-born Subject of this Kingdom I fear were it not for this Parliament that followed so close after that form of Judgement was drawn up there would have been hard putting to have had it entred But a Parliament brings Judges Officers and all men in good order The Commons afterwards upon further debates of this matter desired that the Judges of the Kings-Bench might declare themselves concerning this business which was done accordingly and though it be a little out of time yet for coherence sake we bring it in here Judge Whitlock spake thus My Lords We are by your appointment here ready to clear any Aspersion of the House of Commons in their late presentment upon the Kings-Bench that the Subject was wounded in the Judgement there lately given If such a thing were My Lords your Lordships not they have the power to question and judge the same But My Lords I say there was no Judgement given whereby either the Prerogative might be enlarged or the Right of the Subject trenched upon It is true my Lords in Mich Tearm last four Gentlemen Petitioned for a Habeas Corpus which they obtained and Counsel was assigned unto them the Return was per speciale mandatum Domini Regis which likewise was made known to us under the Hands of Eighteen Privy-Councellors Now my Lords if we had delivered them presently upon this it must have been because the King did not shew cause wherein we should have judged the King had done wrong and this is beyond our knowledge for he might have committed them for other matters then we could have imagined but they might say thus they might have been kept in Prison all their dayes I answer no but we did remit them that we might better advise of the matter and they the next day might have had a a new Writ if they had pleased But they say we ought not to have denied bail I answer if we had done so it must needs have reflected upon the King that he had unjustly imprisoned theâ— And it appears in Dyer 2 Eliz. that divers Gentlemen being commâ—â—â—d and requiring Habeas Corpus some were bailed others remitted whereby it appears much is left to the discretion of the Judges For that which troubleth so much remittitur quousque This my Lords was onely as I said before to take time what to do and whereas they will have a difference between remittitur remittitur quousque My Lords I confess I can finde none but these are new inventions to trouble old Records And herein my Lords we have dealt with knowledge and understanding for had we given a Judgement the party must thereupon have rested every Judgement must come to an issue in matter in fact or demur in point of Law here is neither therefore no Judgement For endeavoring to have a Judgement entred it is true Mr Attorney pressed the same for his Majesties Servies But we having sworn to do right between his Majesty and his Subjects commanded the Clerk to make no Entry but according to the old form and the Rule was given by the Chief Justice alone I have spent my time in this Court and I speak confidently I did never see nor know by any Record that upon such a Return as this a man was bailed the King not first consulted with in such a Case as this The Commons House do not know what Letters and Commands we receive for these remain in our Court and are not viewed by them For the rest of the matters presented by the House of Commons they were not in agitation before us whether the King may commit and how long he may detain a man committed Therefore having answered so much as concerneth us I desire your Lorships good Construction of what hath been said Judge Doderidge concerning the same Subject said It is no more fit for a Judge to decline to give an accompt of his doings then for a Christian of his Faith God knoweth I have endeavored alwayes to keep a good Conscience for a troubled one who can bear The Kingdom holds of none but God and Judgements do not pass privately in Chambers but publickly in Courts where every one may hear which causeth Judgement to be given with maturity Your Lordships have heard the Particulars given by my brother how that Counsel being assigned to those four Gentlemen in the latter end of Mich. Term their Cause received hearing and upon consideration of the Statutes and Records we found some of them to be according to the good old Law of Magna Charta but we thought that they did not come so close to this Case as that bail should be thereupon presently granted My Lords the Habeas Corpus consisteth of three parts The Writ the Return upon the Writ or Schedule and the Entry or Rule reciting the Habeas Corpus and the Return together with the opinion of the Court either a remittitur or a traditur in Ballium In this Case a remittitur was granted which we did that we might take better advisement upon the Case and upon the remittitur My Lords they might have had a new Writ the next day and I wish they had because it may be they had seen more and we had been eased of a great labour And my Lords when the Attorney upon the Remittitur pressed an Entry we all straitly charged the Clerk that he should make no other Entry then such as our Predecessors had usually made in like Cases For the difference between Remittitur and Remittitur quousque I could never yet finde any I have now sate in this Court 15 years and I should know something surely if I had gone in a Mill so long dust would cleave to my clothes I am old and have one foot in the Grave therefore I will look to the better part as near as I can But Omina habere in memoria in nullo errare Divinum potius est quà m humà num The Lord Chief Justice Hide and Justice Iones delivered their opinions much to the same purpose The House proceeded in further debate of the Liberty of the Subject Mr Hackwel resumes the Debate of the matter concerning the Habeas Corpus The late Judgement said he which lies in Bar is
onely an Award and no Judgement and in the L. Chief Justice his Argument there was no word spoken that the King might commit or detain without cause For the King to commit a man is indignum Regi Mercy and Honor flow immediately from the King Judgement and Justice are his too but they flow from his Ministers the Sword is carried before him but the Scepter in his hands These are true Emblems of a good King The Law admits not the King power of detaining in Prison at pleasure In antient times Prisons were but pro custodia carceres non ad poenam sed ad custodiam Admit the King may commit a man yet to detain him as long as he pleaseth is dangerous and then a man shall be punished before his offence Imprisonment is a Maceration of the body and horror to the minde it is vita pejor morte Mr Selden last of all produced the Statutes Presidents and Book-Cases which were expresseâ— in point to the Question in hand and the House commanded that Case in the Lord Chief Justice Andersons Book all of his own hand-writing to be openly read And for the Presidentâ— cited by the Kings Council in 34 years of the Queen as the Opinion of all the Judges certainly there was a great mistake in it and the mistake was the greater when it passed as currant by the Judges of the Kings-Bench in the last Case of the Habeas Corpus And that the truth of the Opinion may clearly appear let us read the words out of the Lord Chief Justice Andersons Report out of the Book written with his own hand which will contradict all those Apocrypha Reports that go upon the Case The words of the Report were these Divers persons fueront committes a several temps a several prysons sur pleasure sans bon cause parte de queux estiant amesnes en banck le Roy. Et parte en le Commune banck fuerunt accordant a le ley de la terre mise a large discharge de le imprisonment pur que aucunt grands fueront offendus procure un commandment a les Iudges que ils ne fera ainsi apres Ceo nient meins les Iudges ne surcease mes per advise enter eux ils fesoint certain Articles le tenour de queux ensus deliver eux al seignieurs Chancelor Treasurer eux subscribe avec touts lour mainies les Articles sont come erisnoint We her Majesties Iustices 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 else to 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 Suits at the Common-Law until they have been constrained to leave the same against their wills and put the same to order albeit Iudgement 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 sundry 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 discharged of their imprisonment some of which persons so delivered have been again committed to prison in secret places and not to any common or ordinary Prison or lawfull Officer or Sheriff or other lawfully authorized to have or keep a Goal So that upon complaint made for their delivery the Queens Courts cannot tell to whom to direct her Majesties Writs and by this means Iustice cannot be done And moreover divers Officers and Serjeants of London have been many times committed to Prison for lawfull executing of her Majesties Writs sued forth of her Majesties Court at Westminster 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 and by unlawfull imprisonment have been constrained not only to withdraw their lawfull suits but have been also compelled to pay the Pursevants so bringing such persons great sums of money All which upon complaint the Iudges are bound by Office and Oath to relieve and help by and according to her Majesties Laws And where it pleaseth your Lordships to will divers of us to set down in what Cases a Prisoner sent to custody by her Majesty or her Councel are to be detained in Prison and not to be delivered by her Majesties Court or Iudges We think that if any person be committed by her Majesties command from her person or by order from the Council board and if any one or two of her Council 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 by the Law and Iudgement of acquittal had Nevertheless the Iudges may award the Queens Writ to bring the bodies of such Prisoners before them and if upon return thereof the causes of their commitment be certified to the Iudges as it ought to be then the Iudges in the Cases before ought not to deliver him but to remand the Prisoner to the place from whence he came which cannot conveniently be done unless notice of the cause in general or else in special be given to the Keeper or Goaler that shall have the Custody of such a Prisoner All the Iudges and Barons did subscribe their names to these Articles Ter. Paschae 34 Eliz. and delivered one to the L. Chancellor and another to the L. Treasurer after which time there did follow more quietness then before in the Cause before mentioned After the reading of this Report Sir Edw. Cook said That of my own knowledge this Book was written with my L. Andersons own hand it is no flying report of a young Student I was Solicitor then and Treasurer Burley was as much against Commitment as any of this Kingdom It was the White Staves that made this stir Let us draw towards a conclusion The Question is whether a Feeman can be imprisoned by the King without setting down the cause I leave it as bare as Aesops Crow they that argue against it Humores moti non remoti corpus destruunt It is a Maxime the Common-Law hath admeasured the Kings Prerogative that in no Case it can prejudice the Inheritance of the Subjects had the Law given the Prerogative to that which is taken it would have set some time to it else mark what would follow I shall have an Estate of Inheritance for life or for years in my Land or propriety in my Goods and I shall be a Tenant at will for my liberty I shall have
propriety in my own house and not liberty in my person Perspicuè vera non sunt probanda The King hath distributed his Judicial power to Courts of Justice and to Ministers of Justice it is too low for so great a Monarch as the King is to commit men to Prison and it is against Law that men should be committed and no cause shewed I would not speak this but that I hope my Gracious King will hear of it yet it is not I Edw. Cook that speaks it but the Records that speak it we have a National appropriate Law to this Nation diversis ab orbe Brittannis I will conclude with the Acts of the Apostles chap. 25. It is against reason to send a man to Prison and not to shew the cause It is now time to go to the Question Resolved upon the Question Nemine contradicente I. That no Freeman ought to be detained or kept in Prison or otherwise restrained by the command of the King or the Privy-Council or any other unless some cause of the commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained II. That the Writ of Habeas Corpus may not be denied but ought to be granted to every man that is committed or detained in Prison or otherwise restrained though it be by the command of the King the Privy-Council or any other he praying the same III. That if a Freeman be committed or detained in prison or otherwise restrained by the Command of the King the Privy-Council or any other no cause of such Commitment Detainer or Restraint being expressed for which by Law he ought to be committed detained or restrained and the same be returned upon a Habeas Corpus granted for the said Party then he ought to be delivered or bailed And then taking into consideration the Property of the Subject in his Goods they came to this Resolution to which there was not a Negative viz. That it is the antient and undubitable right of every Freeman That he hath a full and absolute Property in his Goods and Estate that no Tax Tallage Loan benevolence or other like charge ought to be commanded or levied by the King or any of his Ministers without common consent by Act of Parliament Wednesday March 26. The Propositions tendred the day before by Secretary Cook from his Majesty were now received and read but the Debate thereof was referred to another day The Propositions were these viz. 1. To furnish with men and Victuals 30 ships to guard the narrow Seas and along the Coasts 2. To set out ten other ships for the relief of the Town of Rochel 3. To set out ten other ships for the preservation of the Elbe the Sound and Baltick-Sea 4. To leavy Arms Cloth Victual pay and transport an Army of 1000. Horse and 10000. Foot for Forein Service 5. To pay and supply 6000 l. more for the service of Denmark 6. To supply the Forts of the Office of Ordnance 7. To supply the Stores of the Navy 8. To build 20 ships yearly for the increase of the Navy 9. To repair the Forts within the Land 10. To pay the arrears of the Office of Ordnance 11. To pay the arrears of the Victuallers Office 12. To pay the Arrear of the Treasure of the Navy 13. To pay the Arrears due for the freight of divers Merchants ships imployed in his Majesties Service 14. To provide a Magazine for Victuals for Land and Sea-service And the Commons having a Conference with the Lords about the Petition against Recusants Secretary Cook was appointed to manage the said Conference In the first place he said we acknowledge all due honor both unto the reverend Fathers of the Church and to our Noble Lords in that ye have shined before us as worthy Lights in the encouragement and maintenance of true Religion being the true support of all Dignities and Honors And this forwardness of you is the more remarkable when that viperous Generation as your Lordships justly stiled them do at ease with tooth and nail essay to rend the Bowels of their Mother Give me leave to tell you what I know that these now both vaunt at home and write to their friends abroad They hope all will be well and doubt not to prevail and to win ground upon us And a little to awake the Zeal and Care of our learned and grave Fathers it is fit that they take notice of that Hierarchy which is already established in competition with their Lordships for they have a Bishop consecrated by the Pope This Bishop hath his Subalternate Officers of all kindes as Vicars-General Arch-Deacons Rural-Deans Apparators and such like neither are these nominal or titular Officers alone but they all execute their Jurisdictions and make their ordinary Visitations through the Kingdom keep Courts and determine Ecclesiastical Causes And which is an Argument of more consequence they keep ordinary intelligence by their Agents in Rome and hold correspondence with the Nuntio's and Cardinals both at Bruxels and in France Neither are the Seculars alone grown to this height but the Regulars are more active and dangerous and have taken deep root they have already planted their Societies and Colledges of both Sexes they have setled Revenues Houses Libraries Vestments and all other necessary provisions to travel or stay at home nay even at this time they intend to hold a concurrent Assembly with this Parliament But now since his Sacred Majesty hath extended his Royal arm and since the Lords of his Council have by their Authority caused this nest of Wasps to be digged out of the Earth and their Convocations to be scattered And since your Lordships joyn in courage and resolution at least to reduce this people to their lawfull restraint that they may do no more hurt we conceive great hope and comfort that the Almighty God will from henceforth prosper our endeavors both at home and aboad But now my Lords to come to the chief Errand of this our meeting which is to make known to you the Approbation of our House of that Petition to his Majesty wherein you are pleased to request our concurrence The House hath taken it into serious consideration and from the beginning to the end approve of every word and much commend your happy pen onely we are required to present unto you a few Additions whereby we conceive the Petition may be made more agreeable to the Statutes which are desired to be put in execution and to a former * Petition granted by his Majesty Recorded in both Houses confirmed under the Broad-Seal of England and published in all our Courts of ordinary Justice But these things we propound not as our Resolutions or as matters to raise debate or dispute but commend them onely as our advice and desire being ready notwithstanding to joyn with your Lordships in the Petition as now it is if your Lordships shall not finde this Reason to be of weight This
yet acknowledged that the seven Statutes urged by the House of Commons are in force yet said that some of them are in general words and therefore conclude nothing but are to be expounded by Precedents and some of them are applied to the suggestion of Subjects and not to the Kings command simply of its self and that per legem terrae in Magna Charta cannot be understood for process of Law and original Writs for that in Criminal proceedings no original Writ is usual at all but every Constable either for Felony or breach of the Peace or to prevent the breach of the Peace may commit without Process or original Writ it were very hard the King should not have the power of a Constable They also argued That the King was not bound to express the cause of Imprisonment because there may be in it matter of State not fit to be revealed for a time lest the confederates thereupon make means to escape the hands of Justice Besides that which the Commons do say that the party ought to be delivered or bailed is a contradiction in its self for bayling doth signifie a kinde of Imprisonment still Delivery is a total freeing And besides bayling is a grace or favor of a Court of Justice and they may refuse to do it To this it was replyed That the Statutes were direct in Point and though some of them speak of suggestions of the Subjects yet they are in equal reason a commitment by command of the King as when the King taketh notice of a thing himself And for the words per legem terrae original Writs onely are not intended but all other legal process which comprehendeth the whole proceedings of the Law upon Cause other then trial by Jury and the course of the Law is rendred by due process of the Law and no man ought to be imprisoned by special command without indictment or other due process to be made by the Law And whereas it is said there might be danger in revealing the Cause that may be avoided by declaring a general Cause as for Treason suspicion of Treason misprision of Treason Felony without expressing the particulars which can give no greater light to a confederate then will be conceived upon the very apprehension upon the imprisonment if nothing at all were expressed And as for the bayling of the party committed it hath ever been the discretion of the Judges to give so much respect to a commitment by the command of the King or the privy Councel which are ever intended to be done in just and weighty Cases that they will not presently set them free but bail them to answer what shall be objected against them on the Kings behalf but if any other inferior Officer do commit a man without shewing cause they do instantly deliver him as having no cause to expect their leasure so that Delivery is applyed to the imprisoned by command of some mean minister of Justice Bailing when it is done by command of the King or his Councel and though Bailing is a grace and favor of the Court in case of Felony and other crimes for that there is another way to discharge them in convenient time by their trial but where no cause of imprisonment is returned but the command of the King there is no way to deliver such persons by trial or otherwise but that of the Habeas Corpus and if they should be then remanded they might be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence might be in a worse case then a greater offender for the latter should have an ordinary trial to discharge him the other should never be delivered MAster Selden of the Inner-Temple argued next first making this Introduction Your Lordships have heard from the Gentleman that last spake a great part of the grounds upon which the House of Commons upon mature deliberation proceeded to that clear resolution touching the right of liberty of their persons The many Acts of Parliament which are the written Laws of the Land and are expresly in the Point have bin read and opened and such Objections as have been by some made unto them and Objections also made out of another Act of Parliament have been cleared and answered It may seem now perhaps my Lords that little remains needful to be further added for the enforcement and maintenance of so fundamental and established a Right and Liberty belonging to every freeman of the Kingdom The House of Commons taking into consideration that in this question being of so high a nature that never any exceeded it in any Court of Justice whatsoever all the several ways of just examination of the Truth should be used have also most carefully informed themselves of all former Judgements or Precedents concerning this great Point either way and have been no less careful of the due preservation of his Majesties just Prerogative then of their own Rights The Precedents here are of two kinds either meerly matter of Record or else the former resolutions of the Judges after solemn debate in the Point This Point that concerns Precedents the House of Commons have commanded me to present to your Lordships which I shall as briefly as I may so I do it faithfully and perspicuously to that end my Lords before I come to the particulars of any of those Precedents I shall first remember to your Lordships that which will seem as a general key for the opening and true apprehension of all them of record without which key no man unless he be verst in the entries and course of the Kings Bench can possibly understand In all cases my Lords where any Right or Liberty belongs to the Subjects by any positive Law written or unwritten if there were not also a remedy by Law for enjoying or regaining of this Right or Liberty when it is violated or taken from him the positive Law were most vain and to no purpose and it were to no purpose for any man to have any right in any Land or other Inheritance if there were not a known remedy that is an Action or Writ by which in some Court of ordinary Justice he might recover it And in this case of Right of Liberty of Person if there were not a remedy in the Law for regaining it when it is restrained it were of no purpose to speak of Laws that ordain it should not be restrained The Writ of Habeas Corpus or Corpus cum causa is the highest remedy in Law for any man that is imprisoned and the onely remedy for him that is imprisoned by the special command of the King or the Lords of the pâ—ivy Councel without shewing cause of the commitment and if any mâ—n be so imprisoned by any such Command or otherwise whatsoever though England and desire by himself or any other in his behalf this Writ of Hab. Corp. for the purpose in the Court of Kings Bench that Writ is to be granted to him
alledged must be such as may be determined by our Iudges of our Courts of Westminster in a Legal and ordinary way of Iustice whereas the Causes may be such as those Iudges have not capacity of Iudicature nor Rules of Law to direct and guide their Iudgement in cases of that transcendent nature which hapning so often the very incroaching on that constant Rule of Government for so many ages within this Kingdom practised would soon dissolve the very Foundation and Frame of our Monarchy Wherefore as to our Commons we made fair Propositions which might equally preserve the just Liberty of the Subject so my Lords we have thought good to let you know that without the overthrow of Soveraignty we cannot suffer this Power to be impeached notwithstanding to clear our conscience and just intentions this we publish That it is not in our heart nor will we ever extend our Royal Power lent unto us from God beyond the just rule of Moderation in any thing which shall be contrary to our Laws and Customs wherein the safety of our People shall be our onely aim And we do hereby Declare our Royal pleasure and resolution to be which God willing we shall ever constantly continue and maintain That neither we nor our Privy Council shall or will at any time hereafter commit or command to Prison or otherwise restrain the persons of any for not lending Money to us nor for any cause which in our conscience doth not concern the publique good and safety of us and our people we will not be drawn to pretend any cause wherein our judgement and conscience is not satisfied with base thoughts we hope no man can imagine will fall into our Royal breast and that in all cases of this nature which shall hereafter happen we shall upon the humble Petition of the party or address of our Iudges unto us readily and really express the true cause of their Commitment or Restraint so soon as with conveniency and safety the same is fit to be disclosed and expressed and that in all Causes Criminal of ordinary Iurisdiction our Iudges shall proceed to the Deliverance or Bailment of the Prisoner according to the known and ordinary Rules of the Laws of this Land and according to the Statute of Magna Charta and those other Six Statutes insisted upon which we do take knowledge stand in full force and which we intend not to abrogate and weaken against the true intention thereof This we have thought fit to signifie the rather to shorten any long Debate upon this great question the season of the year being so far advanced and our great Occasions of State not lending many more days for longer continuance of this Session of Parliament Given under our Signet at our Palace at Westminster 20º Maii the Fourth year of our Reign The same day the Kings Letter was communicated to the House of Commons they laid it aside and Sir Thomas Wentworth said it was a Letter of Grace but the people will onely like of that which is done in a Parliamentary way besides the Debate of it would spend much time neither was it directed to the House of Commons and the Petition of Right would clear all mistakes For said he some give out as if the House went about to pinch the Kings Prerogative But the further Debate of this matter took up several days May 17. the Lords propounded at a Conference an Addition to be made to the Petition of Right which was delivered by the Lord Keeper to this purpose THat whereas at the late Conference of both Houses there were some things propounded that came from their Lordships out of a desire the Petition might have the easier passage with his Majesty not intending to violate in any maner the substance of the Petition but it was then thought fit that there was another part of the Petition of as great importance and weight My Lords since the time of that Conference have imployed themselves wholly to reduce the Petition to such a frame and order that may give both to you and them hope of acceptance And after many deliberations and much advice taken my Lords have resolved to represent to you something which they have thought upon yet not as a thing conclusive to them or you and according to their desires having mentioned it in the beginning have held it fit to conclude of nothing till that you be made acquainted with it and that there may be a mature advisement between you and them so that there may be the happier conclusion in all their business This being the determination of the Lords that nothing that is now offered unto you should be conclusive yet they thought it convenient to present it unto you This alteration and not alteration but addition which they shall propound unto you to be advised and conferred upon which is no breach of the frame they think it meet if it shall stand with your liking to be put in the conclusion of the Petition which I shall now read unto you WE present this our humble Petition to your Majesty with the care not onely of preserving our own Liberties but with due regard to leave intire that Soveraign Power wherewith your Majesty is trusted for the Protection Safety and Happiness of the People This is the thing the Lords do present unto you this subject of this Conference concerning the adding of this in the conclusion of the Petition and that they know that this is new and that you cannot presently give an answer to it therefore they desire that you do with some speed consider of it and their Lordships will be ready this afternoon This Addition produced several Speeches LEt us look said he into the Records and see what they are what is Soveraign Power Bodin saith That it is free from any Condition by this we shall acknowledge a Regal as well as a Legal Power Let us give that to the King that the Law gives him and no more I Am not able to speak to this question I know not what it is All our Petition is for the Laws of England and this Power seems to be another distinct Power from the Power of the Law I know how to adde Soveraign to his Person but not to his Power Also we cannot leave to him Soveraign Power we never were possessed of it WE cannot admit of those words with safety they are applicable to all the parts of our Petition It is in the nature of a Saving and by it we shall imply as if we had incroached on his Prerogative all the Laws we cite are without a Saving and yet now after the violation of them we must adde a Saving Also I have seen divers Petitions and where the Subject claimed a Right there I never saw a Saving of this nature THis is Magnum in parvo this is propounded to be a conclusion of our Petition It is a matter of great weight and to speak plainly it
special Charge and Direction so soon as the said Fleet or the greatest thereof shall be reassembled and joyned together then presently with the first opportunity of wind taking into his Charge also the Ships stayed and prepared at Portsmouth and Plimouth together with such fire Ships and other Vessels as shall be provided for this expedition to return to Rotchel with all possible diligence and do his best endevor to relieve the same Letting his Lordship know that order is taken for the victualling of the Fleet by Petty warrant so long as it remaineth in Harbor for the sparing and lengthening of the Sea victuals And if it so fall out that the Earl of Denbigh do set forward on his voyage towards Rotchel before the whole Fleet shall be joyned with him we pray your Grace to give him such Direction that he may leave order that the Ships which are behind shall follow him with all speed Monday 2 Iune The King came to the Parliament and spake thus in brief to both Houses Gentlemen I Am come hither to perform my duty I think no man can think it long since I have not taken so many days in answering the Petition as ye spent weeks in framing it And I am come hither to shew you that as well in formal things as in essential I desire to give you as much content as in me lies After this the Lord Keeper spake as followeth MY Lords and ye the Knights Citizens and Burgesses of the House of Commons his Majesty hath commanded me to say unto you That he takes it in good part that in consideration of setling your own Liberties ye have generally professed in both Houses that ye have no intention for to lessen or diminish his Majesties Prerogative wherein as ye have cleared your own intentions so now his Majesty comes to clear his and to subscribe a firm League with his People which is ever likely to be most constant and perpetual when the Conditions are equal and known to be so These cannot be in a more happy estate then when your Liberties shall be an ornament and a strength to his Majesties Prerogative and his Prerogative a defence of your Liberties in which his Majesty doubts not but both he and you shall take a mutual comfort hereafter and for his part he is resolved to give an example in the using of his power for the preservation of your Liberties that hereafter ye shall have no cause to complain This is the sum of that which I am to say to you from his Majesty And that which further remains is That you hear read your own Petition and his Majesties gracious Answer The Petition Exhibited to his Majesty by the Lords Spiritual and Temporal and Commons in this present Parliament assembled concerning divers Rights and Liberties of the Subjects with the Kings Majesties Royal Answer thereunto in full Parliament To the Kings most Excellent Majesty HUmbly shew unto our Soveraign Lord the King the Lords Spiritual and Temporal and Commons in Parliament assembled That whereas it is Declared and Enacted by a Statute made in the time of the Reign of King Edward the first commonly called Statutum de Tallagio non concedendo That no Tallage or aide shall be laid or levied by the King or his Heirs in this Realm without the good will and assent of the Archbishops Bishops Earls Barons Knights Burgesses and other the Freemen of the Commonalty of this Realm And by Authority of Parliament holden in the five and twentieth year of the Reign of King Edward the third it is Declared and Enacted That from thenceforth no person should be compelled to make any Loans to the King against his will because such Loans were against Reason and the Franchise of the Land and by other Laws of this Realm it is provided That none should be charged by any Charge or Imposition called a Benevolence nor by such like Charge by which the Statutes before mentioned and other the good Laws and Statutes of this Realm your Subjects have inherited this Freedom That they should not be compelled to contribute to any Tax Tallage Aid or other like Charge not set by common censent in Parliament Yet nevertheless of late divers Commssions directed to sundry Commissioners in several Counties with instructions have issued by means whereof your People have been in divers places assembled and required to lend certain sums of Money unto your Majesty and many of them upon their refusal so to do have had an Oath administred unto them not warrantable by the Laws or Statutes of this Realm and have been constrained to become bound to make appearance and give attendance before your Privy Councel and in other places and others of them have been therefore Imprisoned Consined and sundry other ways molested and disquieted And divers other charges have been layed and levied upon your People in several Counties by Lords Lieutenants Deputy Lieutenants Commissioners for Musters Iustices of Peace and others by command or direction from your Majesty or your Privy Councel against the Laws and free Customs of the Realm 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 or imprisoned or be disseised of his Freeholds or Liberties or his free Customs or be Outlawed or Exiled or in any manner destroyed but by the lawful Iudgement of his Peers or by the Law of the Land And in the eight and twentieth year of the reign of King Edward the third it was declared and enacted by Authority of Parliament That no man of what Estate or condition that he be should be put out of his Land or Tenements nor taken nor imprisoned nor disherited nor put to death without being brought to answer by due process of Law Nevertheless against the tenor of the said Statutes and other the good Laws 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 Iustices by your Majesties Writs of Habeas Corpus there to undergo and receive as the Court should order and their Keepers commanded to certifie 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 to which they might make answer according to the Law And whereas of late great companies of Soldiers and Mariners have been dispersed into divers Counties 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 Customs of this Realm and to the great grievance and vexation of the people And whereas also by Authority of Parliament in the 25 year of the reign of King Edward the third
Bill shew and declare against Roger Manwaring Clerk Dr. in Divinity That whereas by the Laws and Statutes of this Realm the free Subiects of England do undoubtedly inherit this Right and Liberty not to be compelled to contribute any Tax Tollage Aid or to make any Loans not set or imposed by common consent by Act of Parliament And divers of his Majesties loving Subjects relying upon the said Laws and Customes did in all humility refuse to lend such sums of Moneys without Authority of Parliament as were lately required of them Nevertheless he the said Roger Manwaring in contempt and contrarâ— to the Laws of this Realm hath lately preached in his Majesties presence two several Sermons That is to say the fourth day of July last one of the said Sermons and upon the 29. day of the same Moneth the other of the said Sermons both which Sermons he hath since published in print in a Book intituled Religion and Allegiance and with a wicked and malitious intention to seduce and misguide the Conscience of the Kings most excellent Majesty touching the observation of the Laws and Customes of this Kingdom and of the Rights and Liberties of the Subjects to incense his Royal displeasure against his good Subjects so refusing to scandalize subvert and impeach the good Laws and Government of this Realm and the Authority of the High Court of Parliament to alienate his Royal heart from his People and to cause jealousies sedition and division in the Kingdom He the said Roger Manwaring doth in the said Sermons and Book perswade the Kings most excellent Majesty First that his Majesty is not bound to keep and observe the good Laws and Customes of this Realm concerning the Rights and Liberties of the Subjects aforementioned And that his Royal Will and Command in imposing Loans Taxes and other Aids upon his people without common consent in Parliament doth so far binde the Consciences of the Subjects of this Kingdom that they cannot refuse the same without peril of eternal damnation Secondly that those of his Majesties loving Subjects which refused the Loan aforementioned in such manner as is before recited did therein offend against the Law of God against his Majesties Supreme Authority and by so doing became guilty of Impiety Dissoialty Rebellion and Disobedience and liable to many other Taxes and Censures which he in the several parts of his Book doth most falsly and malitiously lay upon them Thirdly that authority of Parliaments is not necessary for the raising of Aids and Subsidies that the slow proceedings of such Assemblies are not fit for the supply of the urgent necessities of the State but rather apt to produce sundry impediments to the just designs of Princes and to give them occasion of displeasure and discontent All which the Commons are ready to prove not only by the general scope of the same Sermons and Book but likewise by several Clauses Assertions and Sentences therein contained and that he the said Roger Manwaring by preaching and publishing the Sermons and Book aforementioned did most unlawfully abuse his holy function instituted by God in his Church for the guiding of the Consciences of all his Servants and chiefly of Soveraign Princes and Magistrates and for the maintenance of the peace and concord betwixt all men especially betwixt the King and his People and hath thereby most grievously offended against the Crown and Dignity of his Majesty and against the Prosperity and good Government of this State and Common-wealth And the said Commons by protestation saving to themselves the Liberty of exhibiting at any time hereafter any other occasion or impeachment against the said Roger Manwaring and also of replying to the answers which he the said Roger shall make unto any of the matters contained in this present Bill of Complaint and of offering further proof of the premises or of any of them as the Cause according to the Course of Parliament shall require do pray that the said Roger Manwaring may be put to answer to all and every the premises and that such proceeding examination trial judgement and exemplary punishment may be thereupon had and executed as is agreeable to Law and Iustice. This Declaration ingrossed in Parliament being read Mr. Pym addressed himself to the Lords in this manner THat he should speak to this Cause with more confidence because he saw nothing out of himself that might discourage him If he considered the matter the Offences were of an high nature of easie proof if he considered their Lordships who were the Judges of their own interest their own honour the example of their Ancestors the care of their Posterity would all be Advocates with him in this Cause on the behalf of the Commonwealth if he considered the King our Soveraign the pretence of whose Service and Prerogative might perchance be sought unto as a Defence and Shelter for this Delinquent he could not but remember that part of his Majesties Answer to the Petition of Right of both Houses that he held himself bound in conscience to preserve those Liberties which this man would perswade him to impeach He said further that he could not but remember his Majesties love to Piety and Justice manifested upon all occasions and he knew love to be the root and spring of all other passions and affections A man therefore hates because he sees somewhat in that which he hates contrary to that which he loves a man therefore is angry because he sees somewhat in that wherewith 〈◊〉 â—ngry that gives impediment and interruption to the accomplishment of that which he loves If this be so by the same act of his Apprehension by which he believes his Majesties love to Piety and Justice he must needs believe his hate and detestation of this man who went about to withdraw him from the exercise of both Then he proceeded to that which he said was the Task enjoyned him to make good every Clause of that which had been read unto them which that he might the more clearly perform he prepounded to observe that order of parts unto which the said Declaration was naturally dissolved 1. Of the Preamble 2. The Body of the Charge 3. The Conclusion or Prayer of the Commons The preamble consisted altogether of recital first of the Inducements upon which the Commons undertook this complaint The second of those Laws and Liberties against which the offence was committed The third of the violation of those Laws which have relation to that offence From the connexion of all those recitals he said there did result three Positions which he was to maintain as the ground-work and foundation of the whole Cause The first that the form of Government in any State could not be altered without apparent danger of ruine to that State The second the Law of England whereby the Subjects was exempted from Taxes and Loans not granted by common consent of Parliament was not introduced by any Statute or by any Charter or Sanction of Princes but was
Protestation was published in the House viz. Whosoever shall bring in Innovation of Religion or by favour or countenance seek to extend or introduce Popery or Arminianism or other opinion disagreeing from the Truth and Orthodox Church shall be reputed a Capital Enemy to this Kingdom and Commonwealth 2. Whosoever shall counsel or advise the taking and levying of the Subsidies of Tunnage and Poundage not being granted by Parliament or shall be an Actor or Instrument therein shall be likewise reputed an Innovator in the Government and Capital Enemy to the Kingdom and Commonwealth 3. If any Merchant or Person whatsoever shall voluntarily yeeld or pay the said Subsidies of Tunnage and Poundage not being granted by Parliament he shall likewise be reputed a Betrayer of the Liberties of England and an Enemy to the same Hereupon the King sent for the Sergeant of the House but he was detained the Door being lockt then he sent the Gentleman Usher of the Lords House with a Message and he was refused admittance till the said Votes were read and then in much confusion the House was adjourned to the tenth of March according as it was intimated from his Majesty Nevertheless his Majesty by Proclamation dated the second of March declares the Parliament to be dissolved The passages of this day and the preceding day in Parliament are hereafter more fully related in the proceedings in the Kings Bench. By the King A Proclamation about the dissolving of the Parliament WHereas We for the general good of our Kingdom caused our high Court of Parliament to assemble and meet by prorogation the 20 day of January last past sithence which time the same hath been continued And although in this time by the malevolent dispositions of some ill affected persons of the House of Commons We have had sundry Iust Causes of offence and dislike of their proceedings yet We resolved with patience to trie the uttermost which we the rather did for that We found in that House a great number of sober and grave Persons well-affected to Religion and Government and desirous to preserve unity and peace in all parts of Our Kingdom And therefore having on the five and twentieth day of February last by the uniform advice of our Privy-Council caused both Houses to be adiourned until this present day hoping in the mean time that a better and more right understanding might be begotten between Us and the Members of that House whereby this Parliament might have a happy end and issue And for the same intent We did again this day command the like Adiournment to be made until the tenth day of this Month It hath so happened by the disobedient and seditious carriage of those said ill affected persons of the House of Commons That We and Our Regal Authority and Commandment have been so highly contemned as our Kingly Office cannot bear nor any former age can paralel And therefore it is Our full and absolute resolution to dissolve the same Parliament whereof We thought good to give notice unto all the Lords Spiritual and Temporal and to the Knights Citizens and Burgesses of this present Parliament to all others whom it may concern That they may depart about their needful affairs without attending any longer here Nevertheless We will that they and all others shall take notice that We do and ever will distinguish between those who have shewed good affection to Religion and Government and those that have given themselves over to faction and to work disturbance to the peace and good order of Our Kingdom Given at our Court at Whitehal this second day of March in the fourth yeer of Our Reign of Great Britan France and Ireland This Proclamation was not published till after the tenth of March. The day following Warrants were directed from the Council to Denzil Holles Esq Sir Miles Hobert Sir Iohn Elliot Sir Peter Hayman John Selden Esq William Coriton Walter Long William Stroud Benjamin Valentine commanding their personal appearance on the morrow At which time Mr. Holles Sir Iohn Elliot Mr. Corriton Mr. Valentine appearing and refusing to answer out of Parliament what was said and done in Parliament were committed close prisoners to the Tower and Warrants were given the Parliament being still in being for the sealing up of the studies of Mr. Holles Mr. Selden and Sir Iohn Elliot Mr. Long and Mr. Stroud not then nor of some time after appearing a Proclamation issued out for the apprehending of them On the tenth of March being six days after the commitment of the said Members his Majesty being set in his Royal Throne with his Crown on his head and in his Robes and the Lords in their Robes also and divers of the Commons below the Bar but not their Speaker neither were they called his Majesty spake as followeth My Lords I Never came here upon so unpleasant an occasion it being the dissolution of a Parliament therefore men may have some cause to wonder why I should not rather chuse to do this by Commission it being a general maxime of Kings to leave harsh Commands to their Ministers themselves only executing pleasing things yet considering that Iustice as well consists in reward and praise of vertue as punishing of vice I thought it necessary to come here to day and to declare to you and all the world that it was meerly the undutiful and seditious carriage in the Lower House that hath made the dissolution of this Parliament and you My Lords are so far from being any causers of it that I take as much comfort in your dutiful demeanour as I am justly distasted with their proceedings yet to avoyd their mistakings let me tell you that it is so far from me to adjudge all the House alike guilty that I knâ—w that there are many there as dutiful Subjects as any in the world it being but some few Vipers among them that did cast this mist of undutifulness over most of their eys yet to say truth there was a good number there that could not be infected with this contagion insomuch that some did express their duties in speaking which was the general fault of the House the last day To conclude as those Vipers must look for their reward of punishment so you My Lords must justly expect from me that favour and protection that a good King oweth to his loving and faithful Nobility And now my Lord Keeper Do what I have commanded you Then the Lord Keeper said My Lords and Gentlemen of the House of Commons the Kings Majesty doth dissolve this Parliament Whilst the King is preparing a Declaration of the causes and motives which induced him to dissolve this Parliament let us see what followed hereupon The discontents of the common people upon this Dissolution were heightned against the powerful men at Court and the Kings most inward Counsellors for some few days after two Libels were found in the Dean of Pauls yard one against Bishop Laud to this effect
Laud look to thy self be assured thy life is sought as thou art the fountain of wickedness repent of thy monstrous sins before thou be taken out of the world and assure they self neither God nor the world can endure such a vile Counsellor or whisperer to live The other was as bad against the L. Treasurer Weston The King purposing to proceed against the Members of the House of Commons who were committed to Prison by him in the Star-Chamber caused certain Questions to be proposed to the Judges upon the 25 of April WHereupon all the Judges met at Sergeants-Inne by command from his Majesty where Mr. Atturney proposed certain Questions concerning the offences of some of the Parliament-men committed to the Tower and other prisons at which time one Question was proposed and resolved viz. That the Statute of 4 H. 8.8 intituled An Act concerning Richard Strode was a particular Act of a Parliament and extended onely to Richard Strode and to those persons that had joyned with him to prefer a Bill to the House of Commons concerning Tynners And although the Act be private and extendeth to them alone yet it was no more then all other Parliament-men by priviledge of house ought to have viz. Freedom of speech concerning those matters debated in Parliament by a Parliamentary course The rest of the Questions Mr. Atturney was wished to set down in writing against another day Upon Munday following all the Judges met again and then Mr. Atturney proposed these Questions 1. Whether if any Subject hath received probable Information of any Treason or treacherous attempt or intention against the King or State that Subject ought not to make known to the King or his Majesties Commissioners when thereunto he shall be required what Information he hath received and the grounds thereof to the end the King being truly informed may prevent the danger And if the said Subject in such Case shall refuse to be examined or to answer the Questions which shall be demanded of him for further inquiry and discovery of the truth whether it be not a high contempt in him punishable in the Star-Chamber as an offence against the general Iustice and Government of the Kingdom Sol. The resolution and answer of all the Justices That it is an offence punishable as aforesaid so that this do not concern himself but another nor draw him to danger of Treason or contempt by his answer 2. Whether it be a good answer or excuse being thus interrogated and refusing to answer to say That he was a Parliament-man when he received this Information and that he spake thereof in the Parliament-house and therefore the Parliament being now ended he refused to answer to any such Questions but in the Parliament-house and not in any other place Sol. To this the Judges by advise privately to Mr. Atturney gave this Answer That this excuse being in Nature of a Plea and an errour in judgement was not punishable until he were over-ruled in an orderly manner to make another answer and whether the party were brought in Ore tenus or by Information for this Plea he was not to be punished 3. Whether a Parliament-man committing an offence against the King or Council not in a Parliament way might after the Parliament ended he punished or not Sol. All the Judges una voce answered He might if he be not punished for it in Parliament for the Parliament shall not give priviledge to any contra morem Parliamentarium to exceed the bounds and limits of his place duty And all agreed That regularly he cannot be compelled out of Parliament to answer things done in Parliament in a Parliamentary course but it is otherwise where things are done exorbitantly for those are not the Acts of a Court. 4. Whether if one Parliament-man alone shall resolve or two or three shall covertly conspire to raise false slanders and rumours against the Lords of the Council and Iudges not with intent to question them in a Legal course or in a Parliamentary way but to blast them and to bring them to hatred of the people and the Government in contempt be punishable in the Star-Chamber after the Parliament is ended Sol. The Judges resolve that the same was punishable out of Parliament as an offence exorbitant committed in Parliament beyond the office and besides the duty of a Parliament-man There was another Question put by Mr. Atturney viz. Whether if a man in Parliament by way of digression and not upon any occasion arising concerning the same in Parliament shall say The Lords of the Council and the Judges had agreed to trample upon the Liberty of the Subject and the priviledges of Parliament he were punishable or not The Judges desired to be spared to make any answer thereunto because it concerned themselves in particular The next day Mr. Atturny put the Judges another Case It is demanded of a Parliament-man being called Ore tenus before the Court of Star-Chamber being charged that he did not submit himself to examination for such things as did concern the King and the Government of the State and were affirmed to be done by a third person and not by himself if he confess his hand to that refusal and make his excuse and plead because he had priviledg of Parliament Whether the Court will not over-rule this plea as erronious and that he ought to make a further answer It is the justest way for the King and the party not to proceed Ore tenus because it being a point in Law it is fit to hear Counsel before it be over-ruled and upon an Ore tenus by the Rules of Star-Chamber Counsel ought not to be admitted and that it would not be for the Honor of the King nor the safety of the subject to proceed in that manner Pasca 5 Car. upon a Habeas Corpus of this Court to bring the body of William Stroud Esq with the cause of his imprisonment to the Marshal of the Kings Bench It was returned in this manner That Mr. William Stroud was committed under my custody by vertue of a certain Warrant under the hands of twelve of the Lords of the Privy-Council of the King the tenor of which Warrant followeth in these words YOu are to take knowledge that it is his Majesties pleasure and commandment that you take into your custody the Body of William Stroud Esq and keep him close prisoner till you shall receive other order either from his Majesty or this Board for so doing this shall be your Warrant Dated this 2 of April 1629. And the direction of the Warrant was To the Marshal of the Kings Bench or his Deputy He is also detained in prison by vertue of a Warrant under his Majesties hand the tenor of which Warrant followeth in these words C.R. WHereas you have in your custody the Body of William Stroud Esq by Warrant of Our Lords of our Privy-Council by Our special Command you are to take notice that this
discontinuance of assembling the three Estates in France which was in time about four years before the blazing Star by Lewis the eleventh King of France who by reason the third Estate representing the Commons did incroach as he declared too much upon the Clergie and Nobility the King dissolved that Parliament of the three Estates and never had a free Election of the third Estate afterwards but ordained another kind of meeting instead thereof which is called L' assembli des Notables An assembly of certain eminent persons of his own Nomination whereunto he added some Counsellour out of every Court of Parliament there being eight in all in France and being few in number and of his own Nomination would more readily comply with the Kings proposals and not dispute his will and pleasure as the general assembly of three Estates had wont to do when the King trenched upon the liberty and property of the Subject which alteration of the Government as to the third Estate hath ever since exposed the Commons to much vassalage and misery as at this day is apparent by the meanness of their livelyhood and wearing of wooden shoes That which gives us occasion to mention this last particular is a little Tract composed to the said end and purpose and which did this Trinity long Vacation walk abroad and went from hand to hand sometime at Court sometime in the Country and sometime at the Innes of Court which we here set down verbatim in the Appendix that the humour of the Author thereof may be the more clearly discerned and when we come to its proper time and place you shall see what success this Pamphlet had when it was questioned in the Star-Chamber Towards the latter end of his Vacation all the Justices of the Kings Bench being then in the Country received every one of them a Letter to be at Sergeants Inne upon Michaelmas day These Letters were from the Council-Table and the cause expressed in them was That his Majesty had present and urgent occasion to use their service The Judges came up accordingly on Tuesday being Michaelmas day The next morning about four a clock Letters were brought to the chief Justice from Mr. Trumbal Clerk of the Council then attending that he and Judge Whitlock one of the Judges of that Court should attend the King that morning so soon as conveniently they could which the Chief Justice and that Judge did at Hampton that morning where the King taking them apart from the Council fell upon the business of the Gentlemen in the Tower and was contented they should be bayled notwithstanding their obstinacy in that they would not give the King a Petition expressing That they were sorry he was offended with them he shewed his purpose to proceed against them by the common Law in the Kings Bench and to leave his proceeding in the Star-Chamber Divers other matters he proposed to the said Judges by way of advice and seemed well contented with what they answered though it was not to his minde which was That the offences were not capital and that by the Law the prisoners ought to be bailed giving security to the good behaviour whereupon the King told them That he would never be offended with his Judges so they dealt plainly with him and did not answer him by Oracles and Riddles both these Judges did at that time what good office they could to bring the King on to heal this breach The first day of Michaelmas Term it was moved by Mr. Mason to have the Resolution of the Judges and the Court with one voice said That they are now content that they shall be bayled but that they ought to finde sureties also for the good behaviour and Iones Justice said That so it was done in the Case which had been often remembred to another purpose two wit Russels Case in 9 E. 3. To which Mr. Selden answered with whom all the other prisoners agreed in opinion That they have their sureties ready for the bayl but not for the good behaviour and desire that the bayl might first be accepted and that they be not urged to the other and that for these Reasons First the Case here had long depended in Court and they have been imprisoned for these thirty weeks and it had been oftentimes argued on the one side and the other and those that argued for the King alwaies demanded that we should be remanded and those which argued on our side desired that we might be bayled or discharged but it was never the desire of the one side or the other that we should be bound to the good behaviour And in the last Term four several days were appointed for the Resolution of the Court and the sole point in question was If baylable or not therefore he now desires that the matter of bayl and of good behaviour may be severed and not conâ—ounded Secondly because the finding of sureties of good behaviour is seldome urged upon Returns of Felonies or Treasons And it is but an implication upon the Return that we are culpable of those matters which are objected 3. We demand to be bayled in point of Right and if it be not grantable of Right we do not demand it but the finding of Sureties for the good behaviour is a point of discretion meerly and we cannot assent to it without great offence to the Parliament where these matters which are surmised by the Return were acted and by the Statute of 4 Hen. 8. all punishments of such nature are made voyd and of none effect Therefore c. Curia The Return doth not make mention of any thing done in Parliament and we cannot in a judicial way take notice that these things were done in Parliament And by Whitlock The surety of good behaviour is as a preventing medicine of the damage that may fall out to the Commonwealth and it is an Act of Government and jurisdiction and not of Law And by Crook It is no inconvenience to the Prisoners for the same bayl sufficeth and all shall be written upon one peece of parchment And Heath Atturney General said That by the command of the King he had an information ready in his hand to deliver in the Court against them Hide Chief Justice If now you refuse to find sureties for the good behaviour and be for that cause remanded perhaps we afterwards will not grant Habeas Corpus for you inasmuch as we are made acquainted with the cause of your imprisonment Ashly the Kings Sergeant offered his own bayl for Mr. Holles one of the Prisoners who had married his daughter and heir But the Court refused it for it is contrary to the course of the Court unless the Prisoner himself will become bound also And Mr. Long that had found sureties in the Chief Justices Chamber for the good behaviour refused to continue his sureties any longer inasmuch as they were bound in a great summe of 2000 l. and the good behaviour was a
and Southcot Justices That offences committed in Parliament may be punished out of Parliament And 3 Ed. 3.19 it is good Law And it is usual neer the end of Parliaments to set some petty punishment upon offenders in Parliament to prevent other Courts And I have seen a Roll in this Court in 6 H. 6. where judgment was given in a writ of annuity in Ireland and afterwards the said judgment was reversed in Parliament in Ireland upon which judgment Writ of Error was brought in this Court and reversed Hide Chief Justice to the same intent No new matter hath been offered to us now by them that argue for the Defendants but the same Reasons and Authorities in substance which were objected before all the Justices of England and Barons of the Exchequer at Sergeants-Inn in Fleet-street upon an Information in the Star-Chamber for the same matter At which time after great deliberation it was resolved by all of them That an offence committed in Parliament that being ended may be punished out of Parliament And no Court more apt for that purpose then this Court in which we are and it cannot be punished in a future Parliament because it cannot take notice of matters done in a foregoing Parliament As to that that was said That an Inferiour Court cannot meddle with matters done in a Superior True it is That an Inferior Court cannot meddle with judgments of a Superior Court but if the particular members of a Superiour Court offend they are oft-times punishable in an Inferior Court As if a Judg shall commit a capital offence in this Court he may be arraigned thereof at Newgate 3 E. 3.19 and 1 Mar. which have been cited over-rule this case Therefore Whitlock accordingly 1. I say in this Case Nihil dictum quod non dictum prius 2. That all the Judges of England have resolved this very point 3. That now we are but upon the brink and skirts of the Cause for it is not now in Question if these be offences or no or if true or false but only if this Court have jurisdiction But it hath been objected That the offence is not capital therefore it is not examinable in this Court But though it be not capital yet it is criminal for it is sowing of sedition to the destruction of the Commonwealth The Question now is not between us that are Judges of this Court and the Parliament or between the King and the Parliament but between some private Members of the House of Commons and the King himself for here the King himself questions them for those offences as well he may In every Commonwealth there is one supereminent Power which is not subject to be questioned by any other and that is the King in this Commonwealth who as Bracton saith solum Deum habet ultorem But no other within the Realm hath this Priviledge It is true that that which is done in Parliament by consent of all the house shall not be questioned elsewhere but if any private Members exuunt personas judicum induunt malefacientium personas sunt seditiosi is there such Sanctimony in the place that they may not be questioned for it elsewhere The Bishop of Ross as the Case hath been put being Embassadour here practised matters against the State And it was resolved That although Legatus sit Rex in alieno solo yet when he goes out of the bounds of his Office and complots with Traytors in this Kingdom that he shall be punished as an offender here A Minister hath a great Priviledge when he is in the Pulpit but yet if in the Pulpit he utter speeches which are scandalous to the State he is punishable so in this Case when a Burgess of Parliament becomes mutinous he shall not have the Priviledge of Parliament In my opinion the Realm cannot consist without Parliaments but the behaviour of Parliament-men ought to be Parliamentary No outragious speeches were ever used against a great Minister of State in Parliament which have not been punished If a Judge of this Court utter scandalous speeches to the State he may be questioned for them before Commissioners of Oyer and Terminer because this is no judicial act of the Court. But it hath been objected That we cannot examine Acts done by a higher Power To this I put this Case When a Peer of the Realm is arraigned of Treason we are not his Judges but the high Steward and he shall be tryed by his Peers But if errour be committed in this proceeding that shall be reversed by errour in this Court for that which we do is Coram ipso Rege It hath been objected That the Parliament-Law differs from the Law by which we judge in this Court in sundry Cases And for the instance which hath been made That by the Statute none ought to be chosen Burgesse of a Town in which he doth not inhabit but that the usage of Parliament is contrary But if Information be brought upon the said Statute against such a Burgess I think that the Statute is a good warrant for us to give judgement against him And it hath been objected That there is no President in this matter But there are sundry Presidents by which it appears that the Parliament hath transmitted matters to this Court as 2 R. 2. there being a question between a great Peer and a Bishop it was transmitted to this Court being for matter of behaviour and although the Judges of this Court are but inferiour men yet the Court is higher for it appears by the 11 Eliz. Dy. That the Earl Marshal of England is an Officer of this Court and it is always admitted in Parliament That the priviledges of Parliament hold not in three Cases to wit in case of Treason secondly in case of Felony and in suit for the peace and the last is our very case Therefore c. Crook argued to the same intent but I did not well hear him he said That these offences ought to be punished in the Court or no where and all manner off offences which are against the Crown are examinable in this Court It hath been objected That by this means none will adventure to make his complaints in Parliament That is not so for he may complain in a Parliamentary course but not falsely and unlawfully as here is pretended for that which is unlawfully cannot be in a Parliamentary course It hath been objected That the Parliament is a higher Court then this is And it is true But every Member of Parliament is not a Court and if he commit offence he is punishable here Our Court is a Court of high jurisdiction it cannot take cognizance of real Pleas but if a real Plea comes by Error in this Court it shall never be transmitted But this Court may award a grand Cape and other Process usual in real Actions But of all capital and criminal causes we are originally competent Judges and by consequence of this matter But I am not
sufficient to raise a jealousie against our proceedings in such as were not well acquainted with the sincerity and clearnesse of them There followed another of no lesse skill for although Our proceeding before the Parliament about matters of Religion might have satisfied any moderate men of Our zealous care thereof as we are sure it did the most yet as bad stomachs turn the best things into their own nature for want of good digestion so those distempered persons have done the like of Our good intents by a bad and sinister interpretation For when they did observe that many honest and religious minds in that House did complain of those dangers that did threaten the Church they likewise took the same word in their mouth and their cry likewise was Templum Domini Templum Domini when the true care of the Church never came into their hearts and what the one did out of zeal unto Religion the other took up as a plausible Theam to deprave Our Government as if We Our Clergy and Councill were either senslesse or carelesse of Religion And this wicked practise hath been to make Us seem to walk before Our people as if We halted before God Having by these artifices made a jealous impression in the hearts of many and a day being appointed to treat of the Grant of Tunnage and Poundage at the time prefixed all expresse great willingnesse to grant it But a new strain is found out that it could not be done without great perill to the right of the Subject unlesse We should disclaim any right therein but by grant in Parliament and should cause all those Goods to be restored which upon commandment from Us or Our Councill were stayed by our Officers untill those Duties were paid and consequently should put Our Selves out of the possession of the Tunnage and Poundage before they were granted for else it was pretended the Subject stood not in fit case to grant it A fancy and cavill raised of purpose to trouble the businesse it being evident that all the Kings before named did receive that Duty and were in actuall possession of it before and at the very time when it was granted to them by Parliament And although We to remove all difficulties did from Our Own Mouth in those clear and open tearms that might have satisfied any moderate and well-disposed minds declare That it was Our meaning by the gift of Our people to enjoy it and that we did not challenge it of right but took it de bene esse shewing thereby not the right but the necessity by which We were to take it wherein We descended for their satisfaction so far beneath Our self as We are confident never any of Our Predecessors did the like nor was the like ever required or expected from Them Yet for all this the Bill of Tunnage and Poundage was laid aside upon pretence they must first clear the right of the Subject therein under colour whereof they entertain the complaints not onely of Iohn Rolles a Member of their House but also of Richard Chambers John Fowkes and Bartholomew Gilman against the Officers of Our Customs for detaining their goods upon refusall to pay the ordinary Duty accustomed to be paid for the same And upon these complaints they send for the Officers of the Customes enforcing them to attend day after day by the space of a month together they cause them to produce their Letters Patents under Our Great Seal and the Warrants made by Our Privy Councill for levying of those Duties They examine the Officers upon what questions they please thereby to entrap them for doing Our service and commandment In these and other their proceedings because We would not give the least shew of interruption We endured long with much patience both these and sundry other strange and exorbitant incroachments and usurpations such as were never before attempted in that House We are not ignorant how much that House hath of late years endeavoured to extend their priviledges by setting up generall Committees for Religion for Courts of Justice for Trade and the like a course never heard of untill of late So as where in former timos the Knights and Burgesses were wont to communicate to the House such businesse as they brought from their Countries now there are so many Chairs erected to make enquirie upon all sorts of men where complaints of all sorts are entertained to the unsufferable disturbance and scandall of Justice and Government which having been tolerated a while by Our Father and Our Self hath daily grown to more and more height insomuch that young Lawyers sitting there take upon them to decry the opinions of the Judges and some have not doubted to maintain That the Resolutions of that House must bind the Judges a thing never heard of in Ages past But in this last assembly of Parliament they have taken on them much more then ever before They sent messengers to examine Our Atturney Generall who is an Officer of trust and secrecy touching the execution of some commandements of Ours of which without Our leave first obtained he was not to give account to any but Our Self They sent a captious and directory message to the Lord Treasurer Chancellor and Barrons of the Exchequer touching some judiciall proceedings of theirs in Our Court of Exchequer They sent messengers to examine upon sundry questions Our two Chief Justices and three other of Our Judges touching their judiciall proceedings at the Gaol-Delivery at Newgate of which they are not accountable to the House of Commons And whereas Suits were commenced in Our Court of Star-Chamber against Richard Chambers John Fowks Bartholomew Gilman and Richard Phillips by Our Atturney Generall for great misdemeanours they resolved that they were to have priviledge of Parliament against us for their persons for no other cause but because they had Petitions depending in that House and which is more strange they resolved that a Signification should be made from that House by a Letter to issue under the hand of their Speaker unto the Lord Keeper of Our Great Seal that no attachments should be granted out against the said Chambers Fowks Gilman or Phillips during their said priviledge of Parliament Whereas it is far above the power of that House to give direction to any of Our Courts at Westminster to stop Attatchments against any man though never so strongly priviledged the breach of Priviledge being not in the Court that grants but in the Party or Minister that puts in execution such Attachments And therefore if any such Letter had come to the Lord Keeper as it did not he should have highly offended Us if he had obeyed it Nay they went so far as they spared not the honour of Our Councill-board but examined their proceedings in the case of Our Customers interrogating what this or that man of Our Councill said in direction of them in the businesse committed to their charge And when one of the Members of that House speaking of our
Counsellors said We had wicked Counsell and another said that the Councill and Judges sought to trample under feet the liberty of the Subject and a third traduced Our Court of Star-Chamber for the Sentence given against Savage they passed without check or censure by the House By which may appear how far the Members of that House have of late swollen beyond the rules of moderation and the modesty of former times and this under pretence of priviledge and freedom of speech whereby they take liberty to declare against all authority of Councill and Courts at their pleasure They sent for Our Sheriff of London to examine him in a cause whereof they had no jurisdiction their true and antient jurisdiction extending onely to their own Members and to the conservation of their priviledges and not to the censure of forrain persons and causes which have no relation to their priviledges the same being but a late innovation And yet upon an enforced strain of a Contempt for not answering to their satisfaction they commit him to the Tower of London using that outward pretext for a cause of committing him the true and inward cause being for that he had shewed himself dutifull to Us and Our commandements in the matter concerning Our Customs In these innovations which We will never permit again they pretended indeed Our service but their drift was to break by this means through all respects and ligaments of Government and to erect an universall over-swaying power to themselves which belongs onely to Us and not to them Lastly in their proceedings against Our Customers they went about to censure them as Delinquents and to punish them for staying some goods of some factious Merchants in Our Store-house for not paying those Duties which themselves had forâ—erly paid and which the Customers without interruption had received of all other Merchants many years before and to which they were authorised both by Our great Seal and by severall directions and commandements from Us and Our Privy Councill To give some colour to their proceedings herein they went about to create a new priviledge which We will never admit That a Parliament-man hath priviledge for his goods against the King the consequence whereof would be That he may not be constrained to pay any Duties to the King during the time of priviledge of Parliament It is true they would have this case to have been between the Merchants and Our Farmers of Our Customs and have severed them from Our interest and commandment thereby the rather to make them lyable to the censure and punishment of that House But on the other side We holding it both unjust and dishonorable to with-draw Our self from Our Officers in any thing they did by Our commandement or to disavow any thing that we had enjoyned to be done upon Munday the 23d of February sent a message unto them by Secretary Cook thanking them for the respect they had shewed in severing the interest of Our Farmers from Our Own interest and commandment Neverthelesse We were bound in honour to acknowledge a truth that what was done by them was done by our expresse commandement and direction and if for doing thereof Our Farmers should suffer it would highly concern Us in honour Which message was no sooner delivered unto them but in a tumultuous and discontented manner they called Adjourn Adjourn and thereupon without any cause given on Our part in a very unusuall manner adjourned untill the Wednesday following On which day by the uniform wisdom of Our Privy Council We caused both Houses to be adjourned until the second day of March hoping that in the mean time a better and more right understanding might bee begotten between Us and the Members of that House whereby the Parliament might come to a happy Issue But understanding by good advertisment that their discontent did not in that time digest and passe away We resolved to make a second adjournment untill the tenth of March which was done as well to take time to Our Self to think of some means to accommodate those difficulties as to give them time to advise better and accordingly We gave commandment for a second adjournment in both Houses and for cessation of all businesse till the day appointed which was very dutifully obeyed in the Higher House no man contradicting or questioning it But when the same commandment was delivered in the House of Commons by their Speaker it was streight-waies contradicted and although the Speaker declared unto them it was an absolute right and power in Us to adjourn as well as to prorogue or dissolve and declared and readd unto them divers presidents of that House to warrant the same yet Our commandment was most contemptuously disobeyed and some rising up to speak said They had businesse to do before the House should be adjourned Whilst the Duke of Buckingham lived he was intituled to all the distempers and ill events of former Parliaments and therefore much endeavour was used to demolish him as the onely wall of separation between Us and Our people But now he is dead no alteration was found amongst those envenomed spirits which troubled then the blessed harmony between Us and Our Subjects and continue still to trouble it For now under the pretence of publick care of the Common-wealth they suggest new and causlesse fears which in their own hearts they know to be false and devise new Engines of mischief so to cast a blindnesse upon the good affections of Our people that they may not see the truth and largenesse of Our heart towards them So that now it is manifest the Duke was not alone the mark these men shot at but was onely as a near minister of Ours taken up on the By and in their passage to their more secret designes which were onely to cast Our Affairs into a desperate condition to abate the powers of Our Crown and to bring Our Government into obloquy that in the end all things may be over-whelmed with Anarchy and Confusion We do not impute these dysasters to the whole House of Commons knowing that there were amongst them many religious grave and well-minded men but the sincerer and better part of the House was over-born by the practises and clamours of the other who carelesse of their duties and taking advantage of the times and Our necessities have enforced Us to break off this Meeting which had it been answered with like duty on their parts as it was invited and begun with love on Ours might have proved happy and glorious both to Us and this whole Nation We have thus declared the manifold causes We had to dissolve this Parliament whereby all the world may see how much they have forgotten their former engagements at the entry into the War themselves being perswaders to it promising to make Us feared by Our enemies and esteemed by Our friends And how they turned the Necessities grown by that War to enforce us to yield to Conditions incompatible with Monarchy And now that
per Annum by raising a certain value upon their Lands and some other impositions which requiring a long Discourse by it self I will omit it here setting it down in my Instructions it will save your Majesty at least One hundred thousand pounds per Annum to make it pain of death and confiscation of goods and lands for any of the Officers to cousen You which now is much to be feared they do or else they could not be so rich and herein to allow a fourth part benefit to them that shall find out the cousenage Here is not meant Officers of State as the Lord Treasurer c. being Officers of the Crown The summe of all this account amounteth unto two Millions or Twenty hundred thousand pounds per Annum Suppose it be but one Million and a Half as assuredly your Majesty may make by these courses set down yet it is much more then I promised in my Letter for your Majesties service Besides some sums of mony in present by the courses following Imprimis By the Prince's Marriage to make all the Earls in England Grandees of Spain and Principi with such like priviledges and to pay twenty thousand pounds apiece for it 2. As also if you make them Foeditaries of the Towns belonging to their Earldoms if they will pay for it besides as they do to the King of Spain in the Kingdom of Naples And so likewise Barons to be made Earls and Peers to pay ninteen thousand pounds a piece I think might yield five hundred thousand pounds and oblige them more sure to his Majesty 3. To make choice of two hundred of the richest men of England in estate that be not Noble-men and make them Titulate as is used in Naples and paying for it that is a Duke thirty thousand pounds a Marquis fifteen thousand pounds an Earl ten thousand pounds and a Baron or Viscount five thousand pounds It is to be understood that the antient Nobility of Barons made Earls are to precede these as Peers though these be made Marquesses or Dukes this may raise a Million of pounds and more unto your Majesty To make Gentlemen of low quality and Francklines and rich Farmers Esquires to precede them would yield your Majesty also a great sum of mony in present I know another course to yield your Majesty at least three hundred thousand pounds in mony which as yet the time serveth not to discover untill your Majesty be resolved to proceed in some of the former courses which till then I omit Other courses also that may make present mony I shall study for your Majestie 's service and as I find them out acquaint you withall Lastly to conclude all these discourses by the application of this course used for your profit That it is not onely the means to make you the richest King that ever England had but also the safety augmented thereby to be most secure besides what shewed in the first part of this Discourse I mean by the occasion of this Taxation and raising of monies your Majesty shall have cause and means to imploy in all places of the Land so many Officers and Ministers to be obliged to you for their own good and interest as nothing can be attempted against your Person or Royall State over land but some of them shall in all probability have means to find it out and hinder it Besides this course will detect many disorders and abuses in the publick Government which were hard to be discovered by men indifferent To prohibite gorgeous and costly apparell to be worn but by persons of good quality shall save the Gentry of the Kingdom much more mony then they shall be taxed to pay unto your Majesty Thus withall I take my leave and kiss your gratious hands desiring pardon for my error I may commit herein Pasc. 5. Caroli Regis B. R. The Reports of the following Arguments were taken by Mr. Widdrington of Gray's-Inn UPon the Habeas Corpus out of this Court to bring here the body of one William Stroud Esq with the cause of his imprisonment to the Marshall of the Kings Bench it was returned in this manner That William Stroud Esq was committed under my custody by vertue of a certain Warrant under the hands of twelve Lords of the Privy Councill of the Lord the King the tenour of which Warrant followeth in these words You are to take knowledge that it is his Majesties expresse pleasure and commandment that you take into your custody the body of William Stroud Esq and keep him close-prisoner untill you shall receive other order either from his Majesty or this Board for so doing this shall be your Warrant Dated the 2 d of April 1629. And the Direction thereof was To the Marshall of the King's Bench or his Deputy He is likewise held in prison by vertue of a certain Warrant under the hand of the King himself the tenour of which Warrant followeth in these words Carolus Rex Whereas you have in your custody the body of William Stroud Esq committed by the Lords of Our Privy Councill by Our speciall command you are to take notice that his commitment was for notable contempts by him committed against Our Self and Our Government and for stirring up of Sedition against Us For which you are to detain him in your custody and keep him close-prisoner untill Our pleasure be further known concerning his deliverance Given at Greenwich the 7 th of May 1629. in the 5 th year of Our Reigne And the direction was To Our Marshall for Our Bench for the time being And these are the causes of the taking and detaining of the foresaid William Stroud c. And upon another Habeas Corpus to the Marshall of the Houshold to have the body of Walter Long Esq he made the same Return as above Ask of the Inner Temple of Counsell with Mr. Stroud moved That the Return was insufficient The Return consists upon two Warrants bearing severall Dates which are the causes of the taking and detaining of the Prisoner For the first Warrant which is of the Lords of the Councill that is insufficient because no cause is shewn of his commitment which is expresly against the resolution of the Parliament and their Petition of Right in the time of this King which now is to which he had likewise given his assent so his taking by vertue of the said Warrant is wrongfull And for the second Warrant it is insufficient also and that notwithstanding that it be the Kings own for the King himself cannot imprison any man as our Books are to wit 16 H. 6. F. Monstrance de faits 1 H. 7.4 Hussey reports it to be the opinion of Markham in the time of Edw. 4. and Forrescue in his Book de laudibus Legum Angliae cap. 18. And the reason given is because no action of false imprisonment lies against the King if the Imprisonment be wrongfull and the King cannot be a wrong doer The Statute
of Magna Charta is That no free-man be imprisoned but by the Law of the Land And it appears by these Books that it is against the Law of the Land that the King should imprison any one 2. Admit that this be onely a signification and notification given by the King himself of the commitment of the prisoner yet it seems that that signification is of no force 1. Because the words are general uncertain for notable contempts There are in the Law many contempts of severall natures there are contempts against the Common law against the Statute-law contempts in words gestures or actions And it appears not to the Court of what nature these contempts were Notable Every contempt which is made to the King is notable Against Our Government Contempt which is committed in a Court of Record or Chancery is a contempt against the Government of the King to wit because they disobey the King when he commands them by his Writs C. 8. 60. a. Beechers case The last two words of the Return are For stirring up of sedition against Us which words likewise are indefinite and generall I find not the word Sedition in our Books but taken adjectively as seditious books seditious newes c. in the Statute of 1 st and 2 d. of Phil. and Mary cap. 3. the words are If any person shall be convicted c. for speaking c. any false seditious or slanderous newes saying of the tayles of the Queen c. he shall lose his ears or pay 100 l. There the penalty imposed upon such Sedition is but a Fine C. 4. Lord Cromwell's case 13. where Sedition is defined to be seorsum itio when a man takes a course of his own And there it is said that the words maintain sedition against the Queen's proceedings shall be expounded according to the coherence of all the words and the intent of the parties So that it is plain that there is a sedition that is onely finable and which is no cause of imprisonment without bail And what the sedition is that is here intended cannot be gathered out of the words they are so generall against Us those words are redundant for every sedition is against the King Upon the generality and incertainty of all the words in the Return he put these cases 18. E. 3. A man was indicted quia furatus est equum and doth not say Felonic and therefore ill 29. ass 45. A man was indicted that he was communis latro and the indictment held vitious because too generall So here the offences are returned generally But there ought to be something individuall C. 5.57 Specot's case quia schismaticus inveteratus is no good cause for the Bishop to refuse a Clerk for it is too generall and there are schisms divers kinds 38. E. 3.2 Because the Clerk is criminosus it is no good cause for the Bishop to refuse him 8 and 9 Eliz. Dy. 254. The Bishop of N. refuseth one because he was a haunter of Taverns c. for which and divers other crimes he was unfit held that the last words are too generall and incertain 40. E. 3.6 In the tender of a marriage and refusall of the heir he ought to alledge a certain cause of refusall Whereupon issue may be taken C. 8.68 Trollop's case to say That the Plantiff is excommunicated for divers contumacies shall not disable him without shewing some cause in speciall of the excommunication upon which the Court may judge whether it were just or no. So here And he concluded with a case that was resolved Hill 33 Eliz. Peak and Paul the Defendants said of the Pantiff Thou art a mutinous and seditious man and maintains sedition against the Queen and the words adjudged not actionable Mason of Lincolns-Inne of Counsell with Mr. Long moved also that the Return was insufficient For the first Warrant that he was committed by command of the King signified by the Privy Councill I will not argue that because it was claimed as an antient right pertaining to the Subject in the Petition of Right whereto the King himself hath given his consent For the second Warrant the Return is for stirring up sedition against Us and Our Government Sedition is not any determined offence within our Law our Law gives definitions or descriptions of other offences to wit of Treason Murder Felony c. but there is no crime in our Law called Sedition It is defined by a Civilian to be Seditio or Secessio cum pars reipublicae contra partem infurgit so that sedition is nothing but division Braeton and Glanvill have the word Seditio generally Before the Statute of 25 E. 3. chap. 2. it was not clear enough what thing was Treason what not by which Statute it is declared what shall be said Treason and that the Iudges shall not declare any thing to be Treason that is not contained within the said Statute but it shall be declared onely by Parliament And that Statute speaks not of Sedition nor the Statute of 1 H. 4. chap. 10. which makes some things Treason which are not contained within the said Statute of 25 E. 3. The Statute of 1 E. 6. chap. 12. takes away all intervenient Statutes which declared new Treasons and the said Act declares other things to be Treason but mentions not Sedition Sedition is the quality of an offence and is oftentimes taken Adverbially or Adjectively To raise tumults or trespasses is sedition Tim. 2. E. 3. rot 23. Garbart's case A man was indicted because in the high street he took I. S. there being in hostile manner and usurped over him royall power which is manifest sedition and there it was but an indictment of trespasse Mich. 20. E. 1. rot 27. One that was surveyor of the Wood-work for the King was indicted for stealing of timber and detaining wages ridding Carpenters wages by one that was but a boy and this is there tearmed Sedition and yet it was but a petty Fellony Mich. 42. E. 3. rot 65. B. R. R. Pope was appealed by the wife of I. S. because he feloniously and seditiously murdered I. S. and seditiously was there put in because it was done privily By which cases it appears that sedition is not taken as a Substantive so that it may be applyed to treason trespasse or other offences By the Statute of 2 H. 4. chap. 15. there is punishment inflicted for the raising of seditious doctrine and yet no punishment could have been inflicted for it untill the said Statute yet it was seditious as well before the said Statute as after And this appears also by the Statute of 1 and 2 of Phil. and Mar. chap. 3. which hath been cited The Statute 13 Eliz. chap. 2. reciâ—es that divers seditious and evill disposed persons c. obtained Bulls of reconciliation from the Pope which offence was made treason by the said Statute for it was not before and yet there was sedition and by the saâ— Statute the aiders and abettors
King 2. It stands not with the dignity of the King to arrest any man C. 4. 73. The King makes a Lease for years rendring rent with condition of re-entry for non-payment he shall take advantage of the condition without any demand and the reason there given is that a decorum and conveniency might be observed So it is not befitting for the King in person to arrest any man but the King may command another to do it Bracton lib. 2. de acquirendo rerum Dominio fol. 55. sayes That the Crown of the King is to do justice and judgment and facere pacem without which the Crown it self cannot subsist Severall constructions are to be made upon those severall words and the last words facere pacem imply that the King hath a coercive power Britton f. 1. amongst the Errata The King said in person Because we are not sufficient in person to do every thing We divide the charge into many parts We are the peoples Iustice and a Iustice implies one that hath power to do justice in every kind to wit by imprisonment or otherwise 20 H. 7.7 C. 11.85 it is said That the King is the chief Iustice. And Lambert in his Justice of Peace fol. 3. saies That in antient Histories the chief Iustice of England is called Capitalis Justicia Prima Justicia after the King in England So that the King hath the same power of Iustice as the Chief Iustice had This imprisonment here which is before conviction for any offenâ— is not used towards the Subject as imprisonment for any fault but is rather an arrest or restraint to avoid further inconveniencies 14 H. 7.8 A Iustice of Peace may arrest men riotously assembled for prevention of further mischief And the Book also saies That he may leave his servants there to arrest men for safeguard of the peace It is a case well known that if a house be set on fire every man may pull down the next house for prevention of greater mischief so it seems concerning the Incendiaries of the State they ought to be restrained and supprest lest others should be stirred up by them to the same combustion 22 ass 56. and 22 E. 4.45 in false imprisonment the Defendant justifies because the Plantiff was mad and out of his wits and that he had done some harm and that he had bound and beat him to avoid further harm which might have happened by his madnesse And the justification was held good So it is in matter of Government to avoid commotions the King ought to use his coercive power against those that are enraged The objection was that this course was against the Petition of Right But I answer That this case is out of the words of that Petition the words of the Petition were Whereas by the Statute called The great Charter and by the Statute of 28 E. 3. no free-man may be taken or imprisoned yet against the tenour of the said Statute c. divers of your subjects have of late been imprisoned without any cause shewed and when for their deliverance c. they were brought before the Iustices by Writs of Habeas corpus there to undergo and receive as the Court should order and their Keepers commanded to certifie the cause of their deteyner and no cause was certified but that they were detained by your Majesties speciall command signified by the Lords of your Council and yet were returned back to severall prisons without being charged with any thing to which they might make answer according to Law These last words are observable Without being charged with any thing to which they might make answer These words do not refer to the Return of the Habeas Corpus for the cause returned therein cannot be traversed 9 H. 6. 54. but the Court took it as true But the setting forth of the cause and the answer to the same cause is to be upon other proceedings to wit upon the indictment for the offence or otherwise And there is great difference between the return of a Writ to which a man may answer and the return of an Habeas corpus 10 E. 4. 3 H. 7.11 are that if the Sheriff return Rescous all certainties of every circumstance ought to be shewed because it is fitting that a thing certain be brought into judgment And upon shewing of the grievance as above the Petition is that no free-man in any such manner as before is mentioned be imprisoned or detained such and it hath relation to such imprisonment which is mentioned in the premises And imprisonment mentioned in the premises of the Petition is where no cause at all was mentioned then where any cause is shewed is out of the Petition and that such is the word relative appears by C. 11 62. where many cases are put to the same purpose which see The third objection was That the Return was generall and uncertain The Counsell on the other side had divided the words of the Return but that is to offer violence thereunto for an exposition shall not be made by fractions but upon the whole matter For the first words notable contempts It hath been said that the addition of the word notable is but to make a flourish But I say That notable is not the emphasis of the Return but it onely expresseth the nature of the offence and yet notable is a word observable by it self in the Law and implyes that the thing is known and noted By 27 E. 1. Sheriffs shall be punished that let notorious offenders to bayl and by the Statute of 4 H. 4. chap. 3. a notorious or common thief shall not make his purgation and 26 E. 3.71 in a trespasse for fals imprisonment the Defendant said That the Plantiff came into the Town of Huntington and because he was seen in the company of R. de Thorby who was a notorious thief he as Bailiff of Huntington took him upon suspition I confesse that for contempts is generall yea it is genus generalissimum and within the Petition of Right but the words are against Our Self It hath been said That this might be by irreverent words or gestures and Our Government It hath been said that this might be by contempt to the Kings Writ or by Retraxit as Beechers case is To this I answer That those words which are spoken to one purpose ought not to be wrested to another and this is against the common meaning of the words C. 4. Thou art a murderer the Defendant shall not afterwards explain it to be a murderer of Hares for the highest murder is intended So here the highest Government is intended 4. It hath been objected that for stirring up of sedition against Us may perhaps be but an offence Finable But those words joyned with the former words shew this to be an offence of the highest nature sedition is a speciall contempt And although sedition in it self may be but a generall offence yet here it is Sedition against Us and Our Government which makes
d. interfecit I. S. upon prepensed malice is good for the nature of the thing is expressed although the formall word be wanting but out of the Return the substance of the offence ought alwaies to appear which appears not here But it hath been said by the other side That let the cause in the Return be as it will yet is it not traversable 9 H. 6.54 and I confesse it But as C. 11. James Baggs case is the Return ought to have certainty so much in it that if it be false the party grieved may have his action upon the case And the grievance complained of in the Petition of Right is that upon such Return no cause was certified that is no such cause upon which any Indictment might be drawn up for we never understand that the party shall be tryed upon the Habeas Corpus but that upon the matter contained within it and Indictment shall be made and he shall have his tryall upon it And yet it is clear and it hath been agreed of all hands in the Argument of the grand Habeas corpus Mich. 3. Car. in this Court that if the cause be certified upon the Return of the Habeas corpus that the Court may judge of the legality of that cause 2. Consider the parts of this Return as they are coupled together for notable contempts by him committed against Our Self and Our Government and for stirring of sedition against Us Upon the entire Return the King joynes sedition with notable contempts so that it is as much as if he had said that Sedition is one of the notable contempts mentioned in the first part of the Return so that he makes it but a contempt For the generality and incertainty of the Return I refer my self to the cases put by Mr. Ask and I will not waive any of them True it is if the Return had been that it was for Treason he had not been bailable but by the discretion of the Court and such Return would have been good but it is not so of sedition Gard. 157. Treason is applyed to a petty offence to the breach of trust by a Guardian in Socage but it is not treason And so sedition is of far lesse nature then treason and is oftentimes taken of a trespasse it is not treason of it self nor seditiosè was never used in an Indictment of treason It was not treason before the 25 of Edw. 3. nor can it be treason for 25 E. 3. is a flat Barre as I have said before to all other offences to be treason which are not contained within the said Act or declared by any Statute afterwards And there are offences which are more heinous in their nature then sedition is which are not treason as Insurrections c. which see in the Statute 11 H. 7. cap. 7. 2 H. 5. cap. 9. 8 H. 6. cap. 14. 5 R. 2. cap. 6. 17 R. 2. cap. 8. and by 3 and 4 E. 6. cap. 5. the assembly of twelve persons to attempt the alteration of any Law and the continuance together by the space of an hour being commanded to return is made treason which Act was continued by the Statute of 1 Mar. cap. 12. and 1 Eliz. cap. 16. but now is expired by her death and is not now in force although the contrary be conceived by some which I pray may be well observed By the Statute of 14 Eliz. cap. 1. rebellious taking of the Castles of the King is made treason if they be not delivered c. which shewes clearly that such taking of Castles in its nature was not treason But the said Statute is now expired and also all Statutes creating new treasons are now repealed But for a conclusion of this part of my Argument I will cite a case which I think expresse in the point or more strong then the case in question And it was M. 9. E. 3. roll 39. B. R. Peter Russells case he was committed to prison by the Deputy-Iustice of North-Wales because he was accused by one William Solyman of sedition and other things touching the King And hereupon a Commission issued out of the Chancery to enquire if the said Peter Russell behaved himselfe well or seditiously against the King and by the Inquisition it was found that he behaved himself well And upon an Habeas Corpus out of this Court his body was returned but no cause But the said Inquisition was brought hither out of Chancery and for that no cause of his caption was returned he prayed Delivery but the Court would not deliver him till it knew the cause of his Commitment Therefore taking no regard of the said Inquisition they now send a Writ to the now Iustice of Wales to certifie the cause of his commitment And thereupon he made this Return That the foresaid Peter Russell was taken because one William Solyman charged him that he had committed divers seditions against the Lord the King and for that cause he was detained and for no other And because the Return mentions not what sedition in speciall he was bayled but not discharged And I desire the baylment of the prisoner onely and not his deliverance I desire that the case be well observed In the said case there was an actuall sedition against the King here is onely a stirring up of sedition The words of the said Award are Videtur curiae which are the solemn words of a Iudgment given upon great deliberation There it was for other things concerning Us This is all one as if it had said for other things against Us Concerning the King and Against the King are all one as appears by 25 E. 3. c. 4. de Clero Stamf. 124. Westm. 1. c. 15. Bracton f. 119. 14 Eliz. c. 2. And the words of the Iudgment in the said case were not dimittitur but ideò dimittendus which imply the right of the party to be bayled The said case in some things was more particular then our case and more strong for there was an Accuser to boot which wants in our case There true it is that he was committed by the Iustice of Wales and here by the King himself but this makes no difference as to this Court for be the commitment by the King himself or by any other if it be not upon just cause the party may be bayled in this Court. And for the Inquisition which is mentioned it was no Tryall in the case nor did the Court give any regard thereto To detain the prisoner by the command of the King singly is against the Petition of Right but it being coupled with the cause the cause is to be considered and the truth of the cause is to be intended as well where it is mentioned to be by an inferiour Iudge as where by the King himself for it is traversable neither in the one nor other And 22 H. 8. roll 37. B. R. and 1 H. 8 roll 8. Harrisons case resolv'd that a man committed by the command of the King is
in tertio Caroli that generall Returns that were committed by the command of the Lord the King are not good and that those Arguments remain as Monuments on record in the Upper House of Parliament but I will not admit them for Law But I will remember what was the opinion of former times 22 H. 6.52 by Newton a man committed by the command of the King is not replevisable And the opinion cannot be intended of a Replevin made by the Sheriff because the principall case there is upon a Return in this Court 33 H. 6.28 Poyning's case where the Return was That he was committed by the Lords of the Councill and it was admitted good It is true that this opinion is grounded upon Westm. 1. cap. 15. but I will not insist upon it But the constant opinion hath alwaies been that a man committed by the command of the King is not baylable In 9 H. 6.44 it is said That if one be taken upon the Kings suit the Court will not grant a Supersedeas The contrary opinion is grounded upon Magna Charta which is a generall Law and literally hath no sense to that purpose and it is contrary to the usuall practise in criminall causes in which the imprisonment is alwaies lawfull untill the tryall although it be made by a Iustice of Peace or Constable And that a man committed by the command of the King or Privy Councill is not baylable he cited 1 Jacobi Sir Brocket's case 8 Jac. Sir Cesar's case 12. Demetrius's case 43 Rinch's case And in the case M. 36 Eliz. and 4 and 5 Thimelby's case And said that there are innumerable presidents to this purpose M. 21 and 22 Eliz. upon the return of an Habeas corpus it appears that Michael Page was committed by the command of the Lord the King but was not delivered and after was arraigned in this Court and lost his hand And at the same time Stubbs was committed by the command of the Lord the King for seditious words and rumors and he lost his hand also upon the same tryall M. 17 and 18. Eliz. Upon Habeas corpus for John Loan it was returned That he was committed for divulging sundry seditious writings and he was remanded And 7 H. 7 roll 6. Rugs case and roll 13. Chase's case where the Return was that they were committed by the command of the Lord the King and they were not delivered and this was also the opinion in this Court M. 3. Car. And after the said time the Law is not altered and so I hope neither are your opinions But to consider the particular cause mentioned in the Return I will not rely upon the first part of the words although they be of great weight but onely upon the last words for stirring up of sedition against Us But it hath been objected that Sedition is not a word known in the Law But I marvell that the signification of the word is not understood when it is joyned with the words agains Us this ought to be understood Sedition against the King in his politick capacity Sedition hath sundry acceptations according to the subject handled as it appears C. 4. Lord Cromwel's case which hath been cited If it be spoken of a man that he is seditious if it be of a company in London it shall be understood sedition in the Company if it be spoken of a Souldier it shall be taken for mutinous Mr. Littleton who argued this case very well said That Tacitus useth this word and it is true and he saies That there are two manners of Seditions Seditio armata togata and the last is more dangerous then the former But couple it with the subsequent words here against Us the interpretation and sense thereof is easie loquendum ut vulgus Mr. Littleton shewes the acceptation of this word in divers places of Scripture and I will not reject them for they make for me 20 Numb 3. the Latine is populi versi sunt in seditionem and it is Englished murmuring but clearly it was high treason against their Governour and God himselfe 26 Numb 9. in seditione Corah it is manifest that that was a great Insurrection 12 Judg. 1. Facta est ergo seditio in Ephraim The Ephramites rose against Jephta and he at the same time was their Iudge and Governour so it was the heighth of Insurrection It is true that in 15 Act. 2. Facta est seditio and in some Translations it is Orta est repughantia non parva for it may be taken in severall senses 19 Acts 40. the Town-Clerk there knew not how to answer for this daies sedition or insurrection and no doubt he was in great perill for it was a great insurrection and I wish the greater ones were as circumspect as he was 24 Act. 5. Tertullus accused Paul of sedition and doubtlesse it was conceived a great offence if you consider the time and other circumstances for they were Heathens and Romans And although he in very truth taught the Gospell of God yet he was taken for a pestilent fellow and as a perswader to shake off Government Bracton lib. 3. de Corona c. 2. rancks Sedition amongst the crimes laesae Majestatis But it hath been objected that if it be a capitall offence it ought to be felony or treason To this I say That it cannot be felony but it may be treason for any thing that appears It is true that by the statute of 25 E. 3. treasons are declared and nothing shall be said treason which is not comprised within the said Statute unlesse it be declared so by Act of Parliament But upon indictment of treason such sedition as this may be given in evidence and perhaps will prove treason And the Return is not That he was seditious which shewes onely an inclination but that he stirred up sedition which may be treason if the evidence will bear it In divers Acts of Parliament notice is taken of this word Seditio and it is alwaies coupled with Insurrection or Rebellion as appears by the Statutes of 5 R. 2. c. 6. 17 R. 2. c. 8. 2 H. 5. c. 9. 8 H. 6. c. 14. 3 4. E. 6. c. 5. 2 R. 2. c. 5. 1 and 2 Phil. Mar. c. 2. 1 Eliz. c. 7. 13 Eliz. c. 2. 23 Eliz. c. 2. 27 Eliz. c. 2. and 35 Eliz. c. 1. all which were cited before and they prove that Sedition is a word well known in the Law and of dangerous consequence and which cannot be expounded in good sense Wherefore the nature of the offence I leave it to the Court But out of these Statutes it appears that there is a narrow difference between it and treason if there be any at all 3 ly As to the Objections which have been made I will give a short answer to them 1. It was objected That every imprisonment is either for custody or punishment the last is alwaies after the judgment given for the offence and if it be but for custody the
and others was now moved by Mason to have the resolution of the Iudges and the Court with one voice said That they are now content that they shall be bailed but that they ought to find Sureties also for the good behaviour And Jones Iustice said that so it was done in the case which had been often remembered to another purpose to wit Russell's case in 9 E. 3. To which Mr. Selden answered with whom all the other Prisoners agreed in opinion That they have the Sureties ready for the bayl but not for the good behaviour and desire that the bayl might first be accepted and that they be not urged to the other Sir Robert Heath the Kings Atturney-generall exhibited Information in this Court against Sir John Eliot Knight Denzill Hollis and Benjamin Valentine Esquires the effect of which was That the King that now is for weighty causes such a day and year did summon a Parliament and to that purpose sent his Writ to the Sheriff of Cornwall to chuse two Knights by vertue whereof Sir John Eliot was chosen and returned Knight for Cornwall And that in the same manner the other Defendants were elect Burgesses of other places for the same Parliament And shewed further that Sir John Finch was chosen for one of the Citizens of Canterbury and was Speaker of the House of Commons And that the said Eliot publickly and malitiously in the House of Commons to raise sedition between the King his Nobles and People uttered these words That the Councill and Judges had all conspired to trample under-foot the Liberties of the Subjects He further shewed that the King had power to call adjourn and dissolve Parliaments And that the King for divers reasons had a purpose to have the House of Commons adjourned and gave direction to Sir Joâ—n Finch then the Speaker to move as adjournment and if it should not be obeyed that he should forthwith come from the House to the King And that the Defendants by confederacy afore-hand spake a long and continued Speech which was recited verbatim in which were divers malitious and seditious words of dangerous consequence And to the intent that they might not be prevented of uttering their premeditate speeches their intention was that the Speaker should not go out of the Chair till they had spoken them the Defendants Hollis and Valentine lay violent hands upon the Speaker to the great afrightment and disturbance of the House And the Speaker being got out of the Chair they by violence set him in the Chair again so that there was a great tumult in the House And after the said speeches pronounced by Sir John Eliot Hollis did recapitulate them And to this information the Defendants have put in a plea to the Iurisdiction of the Court because these offences are supposed to be done in Parliament and ought not to be punished in this Court or in any other but in Parliament And the Atturney-Generall moved the Court to over-rule the plea to the Iurisdiction And that he said the Court might do although he had not demurred upon the plea. But the Court would not over-rule the plea but gave day to joyne in Demurrer this Tearm And on the first day of the next Tearm the Record shall be read and within a day after shall be argued at Barre But Hyde chief Iustice said to the Counsell of the Defendants So far light we will give you This is no new question but all the Iudges of England and Barons of the Exchequer before now have oft been assembled on this occasion and have with great patience heard the Arguments on both sides and it was resolved by them all with one voice That an offence committed in Parliament criminally or contemptuously the Parliament being ended rests punishable in an other Court Jones It is true that we all resolved That an offence committed in Parliament against the Crown is punishable after the Parliament in another Court and what Court shall that be but the Court of the Kings Bench in which the King by intendment sitteth Whitlock The question is now reduced to a narrow room for all the Iudges are agreed That an offence committed in Parliament against the King or his Government may be punished out of Parliament So that the sole doubt which now remains is Whether this Court can punish it And Crook agreed That so it had been resolved by all the Iudges because otherwise there would be a failer of Iustice. And by him If such an offence be punishable in another Court what Court shal punish it but this Court which is the highest Court in the Realm for criminall offences And perhaps not onely criminall actions committed in Parliament are punishable here but words also Mason of Lincolns-Inne argued for Sir John Eliot one of the Defendants The charges in the Information against him are three 1. For speeches 2. For contempts to the King in resisting the Adjournment 3. For conspiracy with the other Defendants to detain Mr. Speaker in the Chair In the discussion of these matters be argued much to the same intent which he had argued before upon an information brought in the Star-Chamber against the same Defendants and others for the same offences therefore his Argument is reported here very briefly 1 st For his speeches They contain matter of accusation against some great Peers of the Realm and as to them he said That the King cannot take notice of them The Parliament is a Councill and the grand Councill of the King and Councills are secret and close none other hath accesse to those Councills of Parliament and they themselves ought not to impart them without the consent of the whole House A Iury in a Leet which is sworn to enquire of offences within the said Iurisdiction are sworn to keep their own counsell so the House of Commons enquire of all grievances within the Kingdom and their counsells are not to be revealed And to this purpose was a Petition 2 H. 4. numb 10. That the King shall not give credit to any private reports of their proceedings To which the King assents therefore the King ought not to give credit to the information of these offences in this case 2 ly The words themselves contain severall accusations of great men and the liberty of accusation hath alwaies been Parliamentary 50 E. 3. Parliament-Roll numb 21. The Lord Latimer was impeached in Parliament for sundry offences 11 R. 2. the Arch-Bishop of York 18 H. 6. numb 18. the Duke of Suffolk 1 Mar. Dy. 93. the Duke of Norfolk 36 H. 6. numb 60. un Uickar Generall 2 3 E. 6. c. 18. the Lord Seymer 18 of King James the Lord of St. Albans Chancellor of England and 21 of King James Cranfield Lord Treasurer and 1 Car. the Duke of Buckingham 3 ly This is a priviledge of Parliament which is determinable in Parliament and not else-where 11 R. 2. numb 7. the Parliament-Roll Petition exhibited in Parliament and allowed by the King That
sustained and undergone by him for his service done to the Common-wealth in the Parliament of tertio Caroli Resolved c. That the sum of five thousand pounds shall be assigned for the dammages losses sufferings and imprisonment sustained and undergone by Mr. Strode late a member of this House deceased for service done by him to the Common-wealth in the Parliament of tertio Caroli Resolved c. That Mr. Benjamin Valentine shall have the sum of five thousand pounds paid unto him for the dammages losses sufferings and imprisonments sustained and undergone by him for his service done to the Common-wealth in the Parliament of tertio Caroli Resolved c. That the sum of five hundred pounds shall be bestowed and disposed of for the erecting a Monument to Sir Miles Hobert a Member of the Parliament of tertio Caroli in memory of his sufferings for his service to the Common-wealth in that Parliament of tertio Caroli Resolved c. That Mr. Samuel Vassell shall have the sum of ten thousand four hundred forty five pounds twelve shillings two pence paid him for his losses and dammages sustained for denying to pay Tunnage and Poundage not granted by Act of Parliament in pursuance and obedience to a Declaration and Vote of this House Resolved c. That this House doth declare that they will in due time take Mr. Vassell into further consideration for his imprisonment and personall sufferings Ordered That it be recommitted to the Committee who brought in this Report to consider how the severall sums of mony this day ordered to be paid for dammages to the severall Members and others before named for their sufferings in the service of the Common-wealth may be raised FINIS AN INDEX Alphabetically digested relating to the Principal Persons and Matters contained in this Book A. ABbot Archbishop his advice concerning the Palatinate War p. 12 In disgrace at Court p. 61. his Letter to the King against Toleration of Popery p. 85. Still in disfavor p. 435. A Commission to sequester him â—b his Narrative at large containing the true cause of his being sequestred from p. 438. to 461. His Speech concerning the Petition of Right p. 552 Abbot Doctor p. 62 Acts passed in Parliament p. 152 195 644 Alford Master p. 568 Allured Master his Letter to the Duke p. 91. Another concerning the Duke p. 621 Ambassadors private Instructions p. 18 Anhault Prince made General of the Bohemians p. 14 Arminians p. 62 111 177 180 181 479 Arundel Earl p. 368 c. Ashley Serjeant questioned for words p. 552 Aston Sir Walter p. 14 60 106 107 113 114 Le Assembli des notables c. p. 691. And p. 14. Appendix Aske Mr. His Argument for Master Stroud p. 18. Appendix B. BAcon Lord Chancellor p. 28 29 31 162 Barkley Serjeant his Argument against Mr. Stroud Appendix p. 21 Barkshire Earl p. 376 Barons of the Exchequer sent unto about Merchants gâ—ods p. 666 667 Beecher Sir William p. 430 Bethlem Gabor assists the Bohemians p. 12 Bohemians vide Palatinate Book of Bounty prohibited p. 417 Bramston Serjeant upon the Habeas Corpus p. 463 Bristol vide Digby Buckingham writes unto Gundamor of King James dissatisfaction about the Palatines War p. 16. Goes with the Prince into Spain p. 76. Made Duke p. 78. A Letter sent to him from Mr. Allured p. 91. His Narrative to both Houses of Parliament p. 119. The truth thereof attested by the Prince p. 16. The Popes Letter to him p. 80. His head demanded by the Spanish Ambassador p. 126. The Duke is justified of both Houses ibid. And by King James who called him his disciple p. 127. Is accused again by the Spanish Ambassador p. 144 Renders an account in Parliament of the Fleet p. 190. And also speaks on his own behalf p. 191. Queries in Parliament concerning the Duke p. 221. Sir John Elliot concerning the Duke p. 224. The Kings Speech on behalf of the Duke p. 225. Lord Keeper to the same purpose p. 227. The Duke explains the Kings and the Lord Keepers Speech in Parliament p. 229. And renders an account of his Negotiation in the Low Countreys and elswhere p. 231. Is vindicated by the Lord Conway p. 235. The Commons present a Remonstrance against him p. 247. Private advice given him p. 250. The Dukes answer to a Message from the Commons p. 251. Articles exhibited against him by Bristol p. 266. The Kings Message on behalf of the Duke against Bristol p. 270. Impeached by the Commons p. 307. managed at a Conference by Eight Members p. 306 307 308 c. Private suggestions on behalf of the Duke p. 360. The Kings Speech on his behalf p. 361. A Message from the Commons against him p. 361. His Speech against them p. 367. Sir Dudley Carlton concerning him p. 362 363. Dissatisfied at the release of Sir John Elliot p. 365. Sir John Elliots explanation concerning him p. 366. Is chosen Chancellor of Cambridge p. 375. His Letter to that University p. 377. The Kings Letter on his behalf p. 378. His Speech in Parliament before he gave in his Answer p. 379. His Plea and Answer to the Impeachment p. 380 c. The King prefers an Information against him in Star-Chamber p. 417. Sets sail with the Fleet p. 429. Lands his Army at the Isle of Rhee p. 430. And had a hot encounter with the French p. 431. Omits to take in the little Fort ibid. Lays siege to the Cittadel at St. Martins ibid. Retreats with the Army from Rhee p. 469. Declared cause of all grievances p. 615. Desires to clear himself concerning some words supposed to be spoken by him p. 639. And charges one Melvin for speaking words against him ibid. Is slain at Portsmouth p. 647. The King receives news of his Death ibid. Burlacy Sir John p. 15 Burroughs Captain p. 15 40 Burroughs Sir John slain at Rhee p. 200 C. CAlthrop Mr. p. 464. Appendix 49 Carlile Earl p. 173 Carlton Sir Dudley p. 76.362 363 Carmarthen Mr. his Answer about Customs p. 668 Cautionary Towns in the Netherlands delivered up p. 3 Chambers Mr. questioned at the Council and committed p. 651. Brings his Habeas Corpus ibid. is bailed p. 652. his Goods seised on for not paying of Customs p. 653. A Writ of Replevin denied him ibid. Proceedings in Star-Chamber against him p. 680. His Sentence p. 681. His submission tendred p. 682. His refusal thereof p. 683. His Plea in the Exchequer against the jurisdiction of the Court of Star-Chamber ibid. Brought upon Habeas Corpus p. 686. His Petition to the long Parliament p. 687. His Death p. 689 Charls Prince his Letter to Philip the Fourth of Spain about the Match p. 59. Goes disguised into Spain p. 76. Had a sight of the Princess Henrietta Maria as the passed through France ibid. His reception and entertainment in Spain p. 77. Endeavors used to make him change his Religion p. 78. The Popes Letter to him ibid. His Answer thereunto p. 82. Swears to
real from things fictitious or imaginary Whereof I shall not at all repent if I may but prove an ordinary Instrument to undeceive those that come after us If you demand why my Collections commence so early and start at such a distance of time so remote I must answer That it was at first in my purpose to begin with the Parliament which met Nov. 3. 1640. But after I had perused ordered and compared my Printed and Manuscript-Relations of the First Year of that Parliament I found they pointed at and were bottomed upon some Actions of the late King in dissolving four preceding Parliaments And thereupon the zeal I had to clear the truth of the Differences between the King and Parliament forced me to a longer Adventure especially seeing the Essay had been very imperfect and but a meer fragment if I had only writ the Death and not the Life of a Prince who in the first Speech that ever he made in his first Parliament did reflect upon some passages in a former Parliament that advised his Father to break off the two Treaties with Spain touching a Marriage and Restitution of the Palatinate and so engaged the Father in a War which the Son was by him left to prosecute And this Consideration put me upon a further enquiry concerning the aforesaid Treaties the causes and grounds of the War in the Palatinate and how far the same concerned England and the oppressed Protestants in Germany And finding those proceedings to have their rise in the Year 1618. in which Year the Blazing-Star appeared I resolved that very Instant should be the Ne plus ultra of my Retrospect I allow and accept it as a good Memento which I meet with in a late Author That most Writers now adays appear in Publique not crook-backed as it is reported of the Iews but crook-sided warped and bowed to the right or to the left For I have heartily studied to declare my self unbiassed and to give an instance That it is possible for an Ingenuous man to be of a Party and yet not partial If any one engaged on the King's side come forth in Print with the like moderation fairness and indifferencie without heat and personal reflections our Posterity may be confident of a full discovery of Truth which is every honest mans desire and expectation And besides the Vertues and Reasons of men concerned may shine and give satisfaction even to those who are not of the same Judgment I pretend onely in this Work to a bare Narrative of matter of Fact digested in order of time not interposing my own Opinion or interpretation of Actions I infuse neither vinegar nor gall into my Ink If I mention a Charge or Impeachment it relates also to the Defence that was made by the Accused And though in these latter times Titles Names and Dignities are altered yet I use the Language of that Time of which I write speaking as the then Parliaments spake and not robbing any man of the Honor or Epithite which they then pleased to give him If I speak of any transactions which I my self did not see or hear I do so with all the caution imaginable having first consulted Records conferred with Persons of unquestionable esteem interessed in the very actions or perused their known hand-writings of those times and where I make mention of any Letters or Passages scattered in print I first well weighed the same and out of whose Closets they came and found many of them concredited before I inserted them And lastly where I doubted I perfected my Intelligence by Forein correspondencies fetching my satisfaction in divers particulars out of Germany Spain and Italy Here you will have an intermixture of Secrets of State useful for States-men and of matters of Law which may be of some use not only to the Professors of it but to every Englishman for though few profess the Law yet all live by it for it hedges in and upholds the Rights Liberties and Properties The matters of Law are not all bound up in one bundle but you will finde them dispersed in interlocutory Speeches and Discourses some of them in Historical Narrations and lastly in Polemical Debates and Arguments taken by a Gentleman then a young Student of the Law which you will finde in an Appendix placed at the end of the Book and I hope the Reader will not think his minutes ill bestowed in reading of them though out of place A great part of the Work is filled up with remarkable Transactions in Parliament and the Course and Proceedings thereof wherein you will finde not onely great wit and wisdom but choice Eloquence and excellent Orators Diggs Wentworth Phillips Elliot Glanvile and others not much inferior to the Roman Demagogue I durst not presume to contract them to an Epitomie or Abridgement lest by essaying that I might trespass too much upon the Soil of other mens Inventions and Judgements or prejudice Truth or the Persons whose natural Off-springs they are Here you have Debates Siftings and Consultations of each House apart and also by Conferences each with other Alterius sic Altera poscit opem Domus consultat amicè and Resolutions of Parliaments and some Laws which were the ultimate productions of these Councels and Debates I have but a word to say to my good and worthy Friends of the Army and it must be by way of Apology that this Treatise contains not what may be expected by them from me the Relation of the Motions Actions and Atchievements of the Army which I acknowledge was the first thing in my thoughts and intentions But upon further consideration I thought it necessary to look somewhat backwards that we may the better understand the Causes and Grounds which brought the late War upon us before we set forth the Actions of the War In the former we may see the vigilancy and care of our Ancestors to secure and uphold our Liberties and Properties and to transmit the same in as much purity as might be to their Posterity in the latter which are the Actions of the War you shall see their Courage and Magnanimity setting a higher value upon the Rights and Liberties of the Nation then upon their own Lives Whom therefore when I come in order of time to mention and shall also have occasion to magnifie for their perseverance in maintaining and defending those Laws and Liberties so redeemed with the price of their blood against Arbitrary wayes and courses how joyfull shall I be to employ my Pen to Chronicle such of their Names to Posterity who justly merit that Character as worthy of Double Honor. In the second Part of my Collections which is to follow according to the entertainment which this findes abroad I shall write with the more confidence because I did personally attend and observe all Occurrences of moment during the Eleven years Interval of Parliament in the Star-Chamber Court of Honor and Exchequer-Chamber when all the Judges of England met there upon extraordinary
Cases at the Council Table when great Causes were heard before the King and Council And when matters were agitated at a greater distance I was there also and went on purpose out of a curiosity to see and observe the passages at the Camp at Berwick at the Fight at Newborn at the Treaty at Rippon at the great Council at York and at the meeting of the Long Parliament The Observations I made during all the said time shall be further known if I be encouraged to proceed and that this my Forlorn be not repelled and defeated Thus have I good Reader acquainted thee in plain English with the Lines and rude Draughts of what hath been and what is like to be multorum annorum opus in which as I never did approve so neither could I perswade my self to tread in their Steps who intermingle their Passion with their stories and are not content to write of unless they write also for a Party or to serve an Interest and so declare themselves far better Advocates then Historiansâ—â— I profess that in singleness of heart I aim at truth which to me has alwayes seemed hugely amiable even without the tires and advantages of Wit and Eloquence And therefore in order to my greatest purpose I have esteemed the most unaffected and familiar Stile the best Altum alii teneant And so irresistible is the force of Truth and the Divine Providence so great that howsoever all possible diligence may have been used to carry things in secret and to act by colourable Pretences men often acting like Tumblers that are squint-eyed looking one way and aiming another Yet hath God in these our dayes brought to light such Secrets of State such private Consultations such strâ—nge Contrivances discovered by Letters Papers and Cabinet-memorials seised on in time of the War as otherwise probably neither we nor our Posterity should have ever known I conclude with the learned Spaniards opinion Satis est Historiae si sit vera quae ut reliqua habeat omnia si veritatem non habet obtinere nomen suum non potest J. RUSHWORTH 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h.e. Anglorum leges Suadam consulta Senatus ausáque cuncta loquor tempore quaeque suo Excipis adverso si pectore ore maligno pluribus invideas Zoile nemo tibi The Printer to the Reader BEing obliged to get this Book finished against the ensuing Term I was constrained to make more haste then ordinary so that possibly some Faults have escap'd which I request the Courteous Reader to Pardon and Amend as they shall be met with VALE The right high and most mightie Monarch â—AMES by the Graâ—ce of God King of great Britaine Fraunce and Ireland c Defendor of the Faith Historical Collections THe grand business of State in the latter times of King Iames was the Spanish Match which had the Kings heart in it over-ruled all his Counsels and had a mighty influence upon the Universal State of Christendom This King affecting the name of a King of Peace and Peace-maker as his chief glory had designed what in him lay the setling of a general Peace in Europe and the reconciling of all Parties and professed that if the Papists would leave their King-killing and some other grosser Errors he was willing to meet them half way moreover he was ever zealous for the honor and height of regal Majesty and to maintain the glory of it in his Successors 't was his chief desire and care to match his Son with some Princess of most high descent though of a different Religion There had been a Treaty of Marriage between the late Prince Henry and a Daughter of Spain which on the Spaniards part was found a meer Complement carried on by the accustomed gravity and formality of that Nation For Cecil Earl of Salisbury the great States-man of that time pursued and drove the matter to that point that the Duke of Lerma finding no evasion disclaimed the being of a Marriage Treaty Nevertheless the Spanish Ambassador to acquit himself to this State and to clear his own honesty at a full Council produced his Commission together with his Letters of Instruction given under the Duke's hand Such manner of dealing might have been sufficient Cause of just Indignation against any future motion of this Alliance After death of Prince Henry the King set his thoughts upon a Daughter of Henry the Fourth late King of France as the fittest Match for Prince Charles and by Sir Thomas Edmonds his Legier Ambassador endeavored to know the minde of that State but could not discern their affections and was not willing to discover his own At length taking occasion to send the Lord Hayes Extraordinary Ambassador to the French King to Congratulate his Marriage with Anne the Infanta of Spain he resolved to make a thorow Trial The matter was put forth and in appearance well taken but proved of no effect For the Duke of Savoy was before-hand and prevailed for his Son the Prince of Piedmont During this Negotiation of Alliance with France the Duke of Lerma frequently intimated unto Sir Iohn Digby Ambassador Resident in Spain an extraordinary desire in the King his Master not onely to maintain Peace and Amity with the King of great Britain but to lay hold on all means that might be offered for the nearer uniting of their Majesties and their Crowns as also a disposition in this regard to match his second Daughter to the Prince of Wales The Ambassador replyed that His Majesty had little reason to give ear to this overture having not long since in the Treaty for the late Prince received such an unexpected Answer and Demands so improper and unworthy and that there needed more then ordinary assurance to induce him to believe that there was now so great a change and the match desired in good earnest and not propounded meerly to divert the match with France wherefore he expected the proposal of such terms of advantage and certainty as might gain a belief of their sincere Intentions Lerma promised a further Conference But by reason of a strong report that the Match with France was absolutely concluded and within few dayes to be published the business lay asleep until Sir Iohn Digby going for England was desired by the Duke to give him notice of the state of this Affair From hence Digby gives him to understand that there was no cause of dispair concerning this new overture unless the difficulty of the Conditions should make it desperate but if the Demands in point of Religion were no more then what would satisfie another Catholick Prince and to which his Majesty might yeild with Honor he knows that divers persons not of the meanest power were well inclined and ready to give their helping hand He said further that it were much better not to revive this motion then by impossible and unfitting
ticklish point Therefore he was committed to the custody of the Marshal and all the other Prisoners were remanded to the Tower because they would not find sureties for the good behaviour Accordingly the same Term an Information was exhibited by the Atturney General against Sir Iohn Elliot Denzil Holles Sir Benjamin Valentine reciting That a Parliament was summoned to be held at Westminster 17 Martii tertio Caroli Regis ibid. inchoat and that Sir Iohn Elliot was duly elected and returned Knight for the County of Cornwal and the other two Burgesses of Parliament for other places and Sir Iohn Finch chosen Speaker That Sir John Elliot machinans intendens omnibus viis modis seminare excitare discord evil will murmurings and seditions as well versus Regem Magnates Praelatos Proceres Justiciarios suos quam inter Magnates Proceres Justiciarios reliquos Subditos Regis totaliter deprivare avertere regimen gubernationem Regni Angliae tam in Domino Rege quam in Conciliariis Ministris suis cujuscunque generis introducere tumultum confusionem in all Estates and parts ad intentionem That all the Kings Subjects should withdraw their affections from the King The 23 of February Ann. 4 Carol. in the Parliament and hearing of the Commons falso malitiose seditiose used these words The Kings Privy Council his Judges and his Counsel learned have conspired together to trample under their feet the Liberties of the Subjects of this Realm and the Liberties of this House And afterwards upon the 2 of March Ann. 4. aforesaid the King appointed the Parliament to be adjourned until the 10 of March next following and so signified his pleasure to the House of Commons and that the three Defendants the said 2 day of March 4 Car. malitiose agreed and amongst themselves conspired to disturb and distract the Commons that they should not adjourn themselves according to the Kings pleasure before signified And that the said Sir Iohn Elliot according to the agreement and conspiracy aforesaid had maliciously in propositum intentionem praedict in the House of Commons aforesaid spoken these false malicious pernitious and seditious words precedent c. And that the said Denzil Holles according to the agreement and conspiracy aforesaid between him and the other Defendants then and there falso malitiose seditiose uttered haec falsa malitiosa scandalosa verba precedentia c. And that the said Denzil Holles Benjamin Valentine secundum agreamentum conspirationem praedict ad intentionem propositum praedict uttered the said words upon the said 2 of March after the signifying the Kings pleasure to adjourn and the said Sir John Finch the Speaker endeavoring to get out of the chair according to the Kings command They vi armis manu forti illicito assaulted evil entreated and forcibly detayned him in the chair and afterwards he being out of the chair they assaulted him in the House and evil entreated him violenter manu forti illicito drew him to the chair and thrust him into it whereupon there was great tumult and commotion in the House to the great terror of the Commons there assembled against their Allegeance in maximum contemptum and to the disherison of the King his Crown and Dignity for which c. To this Information the Defendants put in a Plea to the jurisdiction of the Court Forasmuch as these offences are supposed to have been done in Parliament they ought not to be punished in this Court or any other except in Parliament And the Atturney General moved the Court to over-rule the Plea as to the jurisdiction of the Court and this he said the Court might do although he did not demur upon the Plea But the Court would not over-rule the Plea but gave a day to joyn in demurr that Term. And on the first day of the next Term the Record to be read and within a day after argued at the Bar. In Hilary Term following the Case of Walter Longe Esquire one of the imprisoned Gentlemen came to hearing in the Star-Chamber which was as followeth An Information was exhibited into the Star-Chamber by SIR Robert Heath Knight his Majesties Atturney General Plaintiff against the said Walter Longe Defendant for a great and presumptuous Contempt against his Majesty for breach of duty and trust of his Office and for manifest and wilful breach of his Oath taken as high Sheriff of the County of Wilts and not residing and dwelling in his own person in the said County according to the said Oath but being chosen one of the Citizens for the City of Bath in the County of Somerset to serve for the said City in the last Parliament by colour thereof he remained at London or Westminster during the time of that Parliament by the space of three months and above in neglect of his Duty and in manifest contempt of the Laws of this kingdom which cause was now by his Majesties said Atturney General brought to hearing upon the Defendents own confession And upon opening the answer and reading the examination of the said Defendant it appeared to this Court That the said Defendant Long was by his now Majesty made high Sheriff of the County of Wilts in or about November in the third year of his Majesties reign and received his Patent of Sheriffwick for the said County about ten days after and that he took an Oath before one of the Masters of the Chancery for the due execution of the said Office of Sheriff of the said County In which Oath as appear'd by the same there read in Court he did swear that he would in his own person remain within his Bayliffwick during all the time of his Sheriffwick unless he had the King license to the contrary and that at an Election of Citizens for the said City of Bath the said Defendant Longe was chosen one of the Citizens to serve for the said City of Bath in the Parliament then summoned to be holden and commence upon the seventeenth day of March in the said third year of his Majesties reign and being so chosen and returned by the Sheriff of the Countie of Somerset notwithstanding his said Oath taken to remain in his proper person within his Bayliffwick unless he were licensed by his Majestie he the said Defendant did make his personal appearance in the Commons house of Parliament at the City of Westminster in the County of Middlesex and did during the most part of the said Parliament continue in and about the City of London and Westminster and did attend in the Parliament as a Citizen for the said City of Bath during all which time he likewise was and continued high Sheriff for the said County of Wilts and had no particular license from his Majesty to the contrary Upon consideration whereof as also of the the particular causes and reasons of the Defendants Demurrer and Plea formerly exhibited