viz. That his Majesty understanding that the Remonstrance was called for to take away all question commanded me to deliver it to you but hopeth that you proceed with the Bill of Tonnage and Poundage and give precedence to that business and to give an end to further dispute between some of his Subjects or else he shall think his Speech that was with a good applause accepted had not that good effect which he expected But before his Messege there was a report made by Mr. Pym for a Committee for Religion where a motion was made about the Remonstrance the last Session concerning that part which toucheth Religion and the Clark answered that by command from the King he delivered it to the Lord Privy Seal and so the Committee proceeded no farther SIr Walter Earl replied to the Message The last part of the Message calls me up For point of precedency Religion challengeth the precedence and the right of our best endeavors Vbi dolor ibi digitus I know justice and liberty is Gods cause but what will justice and liberty do when Popery and Arminianisme joyn hand in hand together to bring in a Spanish Tyranny under which those Laws and liberties must cease What hath been done for Religion since the last Session We know what declarations have been made what persons have been advanced what truthes confirmed by all Authority of Church Councels and King For my part I will forgo my life and estate and liberty rather than my Religion And I dare boldly affirm that never was more corruption between Religion and matters of state than is at this present time Humana consilia castigantur ubi coelestibus se praeferunt Let us hold our selves to method and that God that carried us through so many difficulties the last Parliament Session will not be wanting to us now Mr. Corrington LEt us not do Gods work negligently We receive his Majesties Message withall duty for our proceedings let us so proceed as it may soonest conduce to his Majesties desire Unity concerns all of us the unity of this house is sweet especially in Gods cause let us cry and cry again for this let us be resolved into a Committee and presently fall to debate thereof UPon Mr. Pyms motion It was ordered that Religion should have the precedency and that the particulars before named should be taken into consideration by a Committee of the whole House Wensday 28. Secretary COOKE delivered another Message from his Majesty HIs Majesty upon occasion of dispute in this House about Tonnage and Poundage was pleased to make a gracious declaration wherein he commended unto us the speedy finishing thereof and to give precedency thereto and since his Majesty understanding the preferring the Cause of Religion his Majesty expected rather thanks than a Remonstrance yet he doth not interrupt you so you do not intrench upon that which doth not belong unto you But his Majesty still commanded me to tell you that he expects precedency in Tonnage and Poundage assuring himself he hath given no occasion to put it back and so you will not put it off To this Mr. Long replied I Cannot see but with much sorrow how we are still pressed to this point I hoped those near the Chair would have truly informed his Majesty of our good intentions but we see how unhappy we are still some about his Majesty makes him diffident of us Sir Thomas Edmonds I am sorry this House hath given occasion of so many Messages about Tonnage and Poundage after his Majesty hath given us a full satisfaction You may perceive his Majesty is sensible of the neglect of his business we that know this should not discharge our duties to you if we should not perswade you to that course which should procure his Majesties good opinion of you Your selves are witnesses how industrious his Majesty was to procure you gracious Laws in his Fathers time and since that what enlargement he hath made of our liberties and yet still we give him cause to repent him of the good he hath done Consider how dangerous it is to Alienate his Majesties heart from Parliamens Mr. Corington When men speak here of neglect of duty to his Majesty let them know we know no such thing nor what they mean I see not how we do neglect the same I see it is all our hearts to expedite the Bill of Tonnage and Poundage in due time our business is still put back by these Messages and the business in hand is of God and his Majesty Things are certainly amiss and every one sees it and wo be to us if we present them not to his Majesty Sir Iohn Elliot His Speech to the same effect IT was ordered that a Committee should be appointed to pen an Answer to his Majesties Message and shew that it is their resolution to give him all expeditions in his service and that they hold it fit not onely to give him thanks but further to shew what perill we are in and that Tonnage is their own gift and it is to arise from themselves and that they intend not to enter into any thing that belongs not unto themselves Thursday 29. THe former part of the day was spent in dilating of the transportation of corn and victuals into Spain and it was ordered that Message should be sent to his Majesty that it is now evident that diverse ships are bound for Spain and to desire a stay of them After the House sat at a Committee about Religion after long debate it was resolved by the Commons-House as before Friday 30. THe House received an answer from his Majesty touching the Ships which was that he would consider of it and send them an answer in due time Also this day a Committee of the Lower-House went to the King in the Privy-Chamber with the Petition for the Fast and the Arch-Bishop of York after he had made a short Speech presented it to his Majesty in the name of both Houses To which the King answered Munday Febr. 2. THe Lower-House presented a declaration to his Majesty in answer to two Messages sent by him Tuesday 3. SEcretary Cook reported that himself and the rest of the Committees attended his Majesty upon Munday and he said For my part I have used all diligence to do all the commands of my Master and this House and I find that some exceptions have been taken at some words by me used when I delivered the Bill of Tonnage and Poundage Indeed I used many Arguments in speaking of his Majesty I said it much concerned him and that his Majesty much desired it and I required it in his name which I did not intend but to avoide dispute and I said not this was an ordinary revenue but this Tonnage was the means to inable his Majesty to set his Fleet to sea After this Apology he read his Majesties answer to the Petition of the Lower-House Sir Iohn Elliot Mr. Speaker I confess this hath given great satisfaction for present
the Speaker Iune 6. pag. 203 The Kings Speeches Iune 7 and the Petition of Right read and granted pag. 204 The motions of the lower House to the Higher ibid. Sir Thomas Wentworths speech pag. 205 The Kings message to the lower House by Sir Humphry May Iune 10. pag. 206 Eight particulars voted in the House of commons against the Duke of Buckingham Iune 11 ibid. The first Remonstrance of the House of Commons ibid. A Schedule of the shipping of this Kingdome which have been taken by the Enemy and lost at sea within the space of three yeares last past pag. 215 The Kings Answer to the Remonstrance Iune 17. p. 217 The Kings speech at the end of the Session Iune 26. ibid. The second Remonstrance pag. 218 A Letter which was found amongst some Jesuits that were lately taken at London and addressed to the Father Rector at Bruxills pag. 220 Motives to induce the Knights Citizens and Burgesses of the Commons house of Parliament to petition his Majesty for the revoking and abolishing of the degrees of Baronets lately erected by his Highnesses letters pattents pag. 224 The examination of Andrew le Brun Captain of the Mary of Rochell pag. 226 Articles against Melvin p. 227 A privie Seal for the transporting of horses Ianuary 30 tertio Caroli ibid. The Commission to the Lords and others of the Privy Councell concerning the present raising of Money pag. 228 Articles to be propounded to the Captains and Masters as well English as French touching the service in hand at Rochell May 4. 1628. p. 230 The Answer to the Articles propounded by the Lord generall and the rest of the Councell of warre pag. 231. A TABLE of the transactions of the second Session of the Parliament begun Ian. 20. 1628. M r Selden's report concerning the Petition of Right Ianuary 21 pag. 235. M r Pymms motion ibid. Sir Iohn Elliots reply ibid. M r Seldens speech concerning the Petition of Right p. 236. M r Norton the Kings Printer brought to the barre ibid. Sir Iohn Elliot ibid. Sir Robert Phillips's speech Ianuary 22. ibid. M r Littleton pag. 237 Sir Iohn Elliot ibid. M r Selden concerning the printing of the Petition of Right ibid. His Majesties message Ian. 23 24. pag. 238 M r Walter Ian. 26 ibid. M r Secretary Coke ibid. Sir Francis Beamor ibid. M r Kirton ibid. M r Shâ—rland pag. 239 Sir Nath. Rich Ian. 27 ibid. The Kings Message by Secretary Coke ibid. Sir Walter Earl pag. 240 M r Corrington ibid. M r Pymme ibid. Another Message from his Majesty Ianuary 28 deliver'd by Secretary Coke ibid. M r Long 's Reply pag. 241 Sir Thomas Edmonds ibid. M r Corrington ibid. Sir Iohn Elliot ibid. Secretary Coke's speech Feb. 3 pag. 242 Sir Iohn Elliot ibid. M r Speaker pag. 243 Secretary Coke ibid. Sir Hum. May ibid. Sir Iohn Elliot at the Committee for Religion ibid. A Bill that no Clergy man be in Commission for Peace Feb. 4 ibid. M r Selden pag. 244 A Petition against D r. Cosens ibid. Sir Eubal Thelwall ibid. M r Shervile ibid. M r Rouse ibid. M r Kirton ibid. Sir Robert Phillips pag. 245 Sir Edward Giles ibid. Sir Iames Perot ibid. M r Pymme ibid. Sir Robert Phillips ibid. A Petition about an imposition upon mault Febr. 5 p. 246 M r Long ibid. M r Ogle ibid. Secretary Coke ibid. Sir Robert Phillips ibid. A Petition against Whittington a Papist Febr. 6. ibid. M r Shervile pag. 247 S r Nath. Rich ibid. S r O. Roberts upon an Affidavit against D r Cosens ibid. S r Iohn Elliot ibid. M r Kirton Febr. 7. ibid. S r Walter Earl ibid. S r Robert Phillips ibid. M r Selden pag. 249 S r Robert Phillips ibid. M r Pymme ibid. M r Shervile ibid. S r Iohn Stanhope ibid. S r Nath. Rich ibid. S r Iohn Elliot ibid. S r Daniel Norton pag. 250 S r Robert Phillips ibid. The Chancellor of the Dutchy ibid. S r Thomas Heale ibid. M r Valentine ibid. Transactions concerning Cosens Bishop Mountague c. Febr. 9. ibid. S r Robert Phillips February 10 pag. 251 M r Chancellor of the Dutchy pag. 252 M r Selden ibid. S r Francis Seymour ibid. M r Selden pag. 253 M r Kirton ibid. M r Littleton ibid. S r Benjamin Ruddier ibid. M r Selden Febr. 11 ibid. A Petition of the booksellers and printers at the Committee for Religion pag. 254 M r Shervile's Report concerning D r Sibthorpe Cosens and Manwaring ibid. Sir Walter Earl pag. 255 A Committee for tonnage and poundage Febr. 12 Shervile in the Chair ibid. S r Iohn Elliot ibid. A Petition against Burges a Priest Febr. 13 pag. 257 S r Iohn Elliot ibid. Sir Will. Bawstrod at a Committee for Religion ibid. Sir Richard Gravenor pag. 258 Secretary Coke ibid. A Complaint against the Lord Lambert Febr. 14 pag. 259 M r Kirton ibid. S r Thomas Hobbie at a Committee for Religion pag. 260 M r Stroud at a Committee for Religion Febr. 16 p. 261 Another petition preferred by M r Chambers Febr. 17. p. 262 A publick Fast Febr. 18 p. 263 M r Dawes call'd in question for taking M r Rolls his goods Febr. 19 ibid. A petition of Complaint against the Lord deputy of Ireland Febr. 20 ibid. A petition by M r Symons in complaint of the Customers Febr. 21 pag. 264 The Committee for Merchants ibid. The protestation of the Commons in Parliament March 2 1628 pag. 267 The Kings speech in the House of Parliament March 10. to dissolve it pag. 268 His Majesties letter and queres concerning ship money and the answer thereunto Pag. 10. lin 18. for euge ingredi read yet coge ingredi The KINGS Speech 17. March 1627. My Lords and Gentlemen THese Times are for action wherefore for examples sake I meane not to spend much time in words expecting accordingly that your as I hope good resolutions will be speedy not spending time unnecessarily or that I may better say dangerously for tedious Consultations at this conjuncture of time are as hurtfull as ill Resolutions I am sure you now expect from me both to know the cause of your meeting and what to resolve on yet I think there is none here but knowes that common Danger is the cause of this Parliament and that Supply at this time is the chief end of it so that I need but point to you what to do I will use but few perswasions for if to maintaine your owne advises and as now the case stands by the following thereof the true Religion Lawes and Liberties of this State and the just defence of our true Friends and Allies be not sufficient then no eloquence of Men or Angels will prevaile Only let me remember you that my duty most of all and every one of yours according to his degree is to seek the maintenance of this Church and Common-wealth and certainly there never was a time in which this duty was more necessarily required then now I therefore
King is as an Angel of God of a quick of a noble and just apprehension he straines not at gnats he will easily distinguish between a vapour and a fogg between a mist of errour and a cloud of evill right he knowes if the heart be right Out of the abundance of the heart the mouth speakes You proceed to a survey of the lustre of this great and glorious Assemblie and in that as in a curious Crystall you observe the true happinesse which we all here enjoy You have distributed and divided aright and whosoever sees it otherwise hath an evill eye or a false glasse We have enjoyed it long through the happy meanes of gracious and good Princes and the way to enjoy it still is to know and heartily to acknowledge it and that God hath not done so to any other Nation It is a prime cause or meanes of this our happinesse You mention the forme of Government under which we live a Monarchie and the best of Monarchies where Sovereignty is hereditarie no Inter-Regnum nor competition for a Crown Descent and Succession are all one The Spirit of God by the mouth of the wisest of Kings long since proclaimed this happinesse Blessed art thou O Land where thy King is the son of Nobles The frames of other States are subject some to inconstant Levitie some to Faction some to Emulation and Ambition and all to manifold Distempers in which the People go to wrack The Monarchie is most naturall and in it Unity is the best cement of all government principally in respect of the unity of the Head which commands the rest And therefore other States when they have tryed a while doe for the most part resolve into this as into the best for Peace for Strength and for Continuance But formes of other governments though never so exact move not of themselves but are moved of their governours And therefore our Monarchie as you have truly said this glorious Assemblie the lively image and representation of our Monarchie is made happy and perfect by the Royall Presence that sits here in his highest Royal Throne the Throne of the Law-giver glorious in it selfe glorious by those happy Lawes and Oracles which have issued from it and most glorious by them that sit on it his Majestie and his Royall Progenitours incomparable Kings that with so much honour have swayed the Sceptre of this Kingdome so many successions of Ages In the next place after the Throne of Majestie you look into the Chaire of Doctrine the reverend Prelates and upon the state of Religion their proper charge This is the blessing of all blessings the priviledge and assurance that secures us of all the rest that as our Religion is most sincere and orthodoxe so our Clergie is eminent both for purity of Doctrine and integritie of Life our Priests are clothed with righteousnesse and their lips preserve knowledge and therefore God's Saints may and doe sing with joyfulnesse I must joyn with you in attributing this transcendent blessing to us as in the first place to God's goodnesse so in the second to his Majestie 's piety who following the steps of his ever-blessed Father is carefull that all the Lamps of the Church may be furnished with Oyle and especially those which are set on golden Candle-sticks with the purest and best oyle The Schools also and nurceries of Learning never so replenished especially with Divinity as in this last Age as they all shew his Majestie 's Piety so are they infallible Arguments of his Constancy The triall which you call the fierie triall undergone by his Majestie in the place of danger and again the power and policie of Rome and Spaine hath approved his resolution inimitable and his own remarkable example in his closet and his chamber his strict over-sight of and command to his Houshold servants and his charge to his Bishops and Judges his Edicts his Proclamations and Commissions and the like for the execution of the Lawes and his general care to preserve the fountain pure both from Schisme and Superstition are faire fruits and effects of a pious and zealous resolution From the chaire of Doctrine you turn to the state of Honour unto the Nobles and Barons of England These are Robâ—r belli who for the service of the King and Kingdome are to make good with their Swords what the Church-men must hallow and blesse by their Prayers And therefore as the Prelates are the great Lights of the Church so the Nobility are the Starres of the State and you know that the starres have fought and fought powerfully against the enemies of God From the state of Honour you come to the state of Justice and to the twelve Lyons under Solomon's Throne the Iudges and Sages of the Law and as their peculiar charge intrusted to them by our Sovereigne the Lawes of the Kingdome Lawes undoubtedly fitted to the constitution of this people for Leges Angliae and Consuetudines Angliae are Synonyma and Consuetudo est altera natura so as besides the justnesse and rightnesse of the Lawes they are become naturall to our people and that is one of the powerfullest meanes which begetteth obedience and such Lawes in the mouthes of learned and upright Judges are like waters in a pure chanel which the fairer it runs the clearer they run and produce that whereof Solomon speaks Prov. 29.2 When the righteous are in authority the People rejoyce From the Law you passe to the Knights Citizens and Burgesses and the third Estate who represent the Commons of England in whom the Scripture is verified In the multitude of People is the Kings honour and therefore you may be sure that distance of place and order breeds no distance in affection for wise Kings ever lay their honour next to their hearts Kings are Pastores populi and the Shepherds care is nothing lesse to the furthest then to the next part of his Flock and it is asmuch towards the least of his Lambs as towards the greatest Cattel And as in the Natural bodie no member is so remote but it is still within the care of the head so in this great Politick bodie of the Kingdome no ranck or order of People so low is at such distance from the Throne but it dayly feeles the influence and benefit of the Kings care and protection And to say the truth in a well-governed Kingdome the superiour rancks of Nobles of Judges and of Magistrates are not ordained for themselves but as conduits for the Kings justice protection and goodnesse to the lower rancks of his People And as the People are so its just cause they should be constant to the Poles of Love and Loyalty And thus having perused both Houses by divided parts joyn them together and in that juncture you believe truly and materially that the greatest denyal of their joynt requests is The King will advise A note very remarkable It shewes the indulgence of Kings it shews also the wisdom and judgement of the Houses the
please your Lordship I shall humbly move you that this Gentleman may also be bailed for under favour my Lord there is no cause in the return why he should be any farther imprisoned and restrained of his liberty My Lord I shall say something to the form of the writ and of the return but very little to them both because there is a very little left for me to say My Lord to the form I say it expresseth nothing of the first caption and therefore it is insufficient I will adde one reason as hath been said the Habeas Corpus hath onely these words quod habeas corpus ejus una cum causa detensionis non captionis But my Lord because in all imprisonment there is a cause of caption and detention the caption is to be answered as well as the detention I have seen many writs of this nature and on them the caption is returned that they might see the time of the caption and thereby know whether the party should be delivered or no and that in regard of the length of his imprisonment The next exception I took to the form is that there is much incertainty in it so that no man can tell when the writ came to the keeper of the prison whether before the return or after for it appears not when the Kings command was for the commitment or the signification of the Councell came to him It is true that it appears that the warant was dated the seventh of November but when it came to the keeper of the prison that appears not at all and therefore as for want of mentioning the same time of the caption so for not expressing the same time when this warrant came I think the return is faulty in form and void And for apparent contradiction also the return is insufficient for that part of the return which is before the warrant it is said quod detentus est per speciale mandatum domini Regis the warrant of the Lords of the Councel the very syllables of that warrant are that the Lords of the Councell do will and require him still to detain him which is contrary to the first part of the return Besides my Lord the Lords themselves say in another place and passage of the warrant that the King commanded them to commit him and so it is their commitment so that upon the whole matter there appears to be a clear contradiction in the return and there being a contradiction in the return it is void Now my Lord I will speak a word or two to the matter of the return and that is touching the imprisonment per speciale mandatum domini Regis by the Lords of the Councell without any cause expressed and admitting of any or either of both of these to be the return I think that by the constant and settled Laws of this kingdome without which we have nothing no man can be justly imprisoned be either of them without a cause of the commitment expressed in the return My Lord in both the last Arguments the statutes have been mentioned and fully expressed yet I will adde a little to that which hath been said The statute of Magna Charta cap. 29. that statute if it were fully executed as it ought to be every man would enjoy his liberty better then he doth The Law saith expresly no Free-man shall be imprisoned without due processe of the Law out of the very body of this Act of Parliament besides the explanation of other statutes it appears Nullus liber homo capiatur vel imprisonetur nisi per legem terrae My Lord I know these words legem terrae do leave the question where it was if the interpretation of the Statute were not But I think under your Lordships favour there it must be intended by due course of Law to be either by presentment or by indictment My Lords if the meaning of these words Per legem terrae were but as we use to say according to the lawes which leaves the matter very uncertain and per speciale mandatum c. be within the meaning of these words according to the law then this Act had done nothing The Act is No Free-man shall be imprisoned but by the law of the land if you will understand these words per legem terrae in the first sense this statute will extend to Villains as well as to Free-men for if I imprison another man Villain the Villain may have an action of false imprisonment But the Lords and the King for then they both had Villains might imprison them and the Villain could have no remedy but these words in the statute per legem terrae were to the Free-man which ought not to be imprisoned but by due processe of law and unlesse the interpretation shall be this the Free-man shall have no priviledge above the Villain So that I conceive my Lord these words per legem terrae must be here so interpreted as in 42 Eliz. the Bill is worth the observing it reciteth that divers persons without any writ or presentment were cast into prison c that it might be enacted that it should not be so done hereafter the answere there is that this is an Article of the great Charter this should be granted so that it seemes the statute is not taken to be an explanation of that of Magna Charta but the very words of the statute of Magna Charta I will conclude with a little observation upon these words nec super eum mittimus which words of themselves signifie not so much a man cannot finde any fit sense for them But my Lord in the seventh year of King Iohn there was a great Charter by which this statute in the ninth of Henry the third whereby we are now regulated was framed and there the words are nec eum in Carcerem mittimus we will not commit him to prison that is the King himself will not and to justifie this there is a story of that time in Matthew Paris and in that Book this Charter of King Iohn is set down at large which Book is very authentique and there it is entred and in the ninth of Henry the third he saith that the statute was renewed in the same words with the Charter of King Iohn and my Lord he might know it better then others for he was the Kings Chronologer in those times and therefore my Lord since there be so many reasons and so many presidents and so many statutes which declare that no Free-man whatsoever ought to be imprisoned but according to the laws of the land and that the liberty of the subject is the highest inheritance that he hath my humble request is that according to the ancient laws and priviledges of this Realm this Gentleman my Client may be bailed The Argument of Master Calthrop upon the Habeas corpus Sir Iohn Corbet being brought to the Kings Bench Bar with Sir Edmond Hampden Sir Walter Earl and Sir Iohn Henningham who were also
speciali Nos volentes eisdem C. D. E. graciam in hac parte facere specialem tibi praecipimus quod si praedict C. D. E. occasione praedict non alia in Prisona praedict detineantur pro transgressionibus illis secundum legem consuetudinem Regni nostri Angliae replegiabiles existunt c. tunc impos C. D. E. Ã Prisona praedict si ea occasione non alia detineantur in eadem interim deliberari facias per manucapt supradict habeas ibi tunc coram praefat Iusticiar nomina manncapt illorum hoc breve And the exposition of this speciale mandatum domini Regis mentioned in the writ is expounded to be breue domini Regis and thereupon is this writ directed unto the Sheriffe for the delivery of them And so for the branch of the first part I conclude that the speciall command of the King without shewing the nature of the commandment of the Kings is too generall and therefore insufficient for he ought to have returned the nature of the commandment of the King whereby the Court might have adjudged upon it whether it were such a commandment that the imprisonment of Sir Iohn Corbet be lawfull or not and whether it were such a commandment of the King that although the imprisonment were lawfull at the first yet he might be bailed by Law And as for the generall return of speciale mandatum domini Regis without shewing the cause of the imprisonment either speciall or generall I hold that for that cause also the return is insufficient First in regard of the Habeas corpus which is the commandment of the King onely made the 15 of November According to the Teste of the writ commanding the keeper of the Gatehouse to have the body of Sir Iohn Corbet una cum causa detensionis ad subjiciendum recipiendum ea quae curia nostra de eo ad tunc ibid. ordinar contingat So as the commandment of the writ being to shew the cause of his detaining in prison the keeper of the gatehouse doth not give a full answer unto the writ unlesse the cause of the detainment in prison be returned and the Court doth not know how to giue their judgement upon him either for his imprisonment or for his discharge according to the purport of the writ when there is not a cause returned and forasmuch as upon an excommengement certified it hath been adjudged oftentimes that Certificates were insufficient where the cause of the commitment hath not been certified that the Court might adjudge whether the Ecclesiasticall Judges who pronounced the excommunication had power over the original cause according to the book of 14 Hen. 4.14.8 Rep. 68. Trollops case 20 Ed. 3. Excommengement 9. So upon an Habeas corpus in this Court where a man hath been committed by the Chancellour of England by the Councell of England Marches of Wales Warden of the Stanneries High Commission Admiralty Dutchy Court of request Commission of Sewers or Bankrupts it hath severall times been adjudged that the return was insufficient where the particular cause of imprisonment hath not been shewen to the intent that it might appear that those that committed him had jurisdiction over the cause otherwise he ought to be discharged by the Law and I spare to recite particular causes in every kind of these because there are so many presidents of them in severall ages of every King of this Realm and it is an infallible maxime of the Law That as the Court of the Kings Bench and Judges ought not to deny an Habeas corpus unto any prisoner that shall demand the same by whomsoever he be committed so ought the cause of his imprisonment to be shewn upon the return so that the Court may adjudge of the cause whether the cause of the imprisonment be lawfull or not and because I will not trouble the Court with so many presidents but such as shall suit with the cause in question I will onely produce and vouch such presidents whereas the party was committed either by the commandment of the King or otherwise by the commandment of the Privy Councell which Stampford fol. 72. tearmeth the mouth of the King such acts as are done by the Privy Councell being as Acts done by the King himself And in all these causes you shall find that there is a cause returned as well as a speciale mandatum domini Regis c. or mandatum Privati Concilii domini Regis whereby the Court may adjudge of the cause and bail them if they shall see cause In the eighth of Henry the seventh upon return of an Habeas corpus awarded for the body of one Roger Sherry it appeareth that he was committed by the Mayor of Windsor for suspicion of felony and ad sectam ipsius Regis pro quibusdam feloniis transgressionibus ac per mandatum domini Regis 21 Hen. the seventh upon the return of an Habeas corpus sent for the body of Hugh Pain it appeared that he was committed to prison per mandatum dominorum Privati Concilii domini Regis pro suspicione feloniae Primo Henrici Octavi Rot. 9. upon the return of an Habeas corpus sent for the body of one Thomas Harrison and others it appears that they were committed to the Earl of Shrewsbury being Marshall of the houshould Per mandatum Domini Regis pro suspicione feloniae pro homicidio facto super Mare 3 4 Philip. Mariae upon a return of an Habeas corpus sent for the body of one Peter Man it appeareth that he was committed pro suspicione feloniae ac per mandatum Domini Regis Reginae 4 5 Philippi Mariae upon the return of an Habeas corpus sent for the body of one Thomas Newport it appeared that he was committed to the Tower pro suspicione contrafact monetae per privatum Concilium domini Regis Reginae 33 Elizabethae upon the return of an Habeas corpus for the body of one Lawrence Brown it appeareth that he was committed per mandatum Privati Concilii dominae Reginae pro diversis causis ipsam Reginam tangen ac etiam pro suspicione proditionis So as by all these presidents it appeareth where the return is either Per mandatum domini Regis or Per mandatum dominorum Privati Concilii domini Regis there is also a cause over and besides the mandatum returned as unto that which may be objected that per mandatum domini Regis or Privati Concilii domini Regis is a good return of his imprisonment I answer First that there is a cause for it is not to be presumed that the King or Councell would commit one to prison without some offence and therefore this mandatum being occasioned by the offence or fault the offence or fault must be the cause and not the command of the King or Councell which is occasioned by the cause Secondly it apeares that the jurisdiction of
hither that by a timely provision against those great imminent dangers our selves may be strengthened at home our Friends and Allies incouraged abroad and those great causes of feare scattered and dispelled And because in all warlike preparations Treasure bears the name and holds the semblance of the nerves and finewes and if a finew be too short or too weak if it be either shrunk or strained the part becomes unusefull it is needfull that you make a good and timely supply of treasure without which all counsells will prove fruitlesse I might presse many reasons to this end I will but name few First for his Majesties sake who requires it great is the duty which we owe him by the law of God great by the law of Nature and our own Allegeance great for his own merit and the memory of his ever blessed Father I do but point at them but me thinks our thoughts cannot but recoyle on our consideration touched by his Majestie which to me seemes to sound like a Parliamentarie part or Covenant A Warre was advised here Assistance professed yea and protested here I do but touch it I know you will deeply think on it and the more for the example the King hath set you his Lands his Plate his Jewells he hath not spared to supply the War what the People hath protested the King for his part hath willingly performed Secondly for the Cause sake it concernes us in Christian Charity to tender the distresses of our Friends abroad it concernes us in honour not to abandon them that have stood for us and if this come not close enough you shall finde our Interest so woven and involved with theirs that the Cause is more ours then theirs If Religion be in perill wee have the most flourishing and orthodoxe Church if Honour be in question the steps and monuments in former ages will shew that our Ancestours have left us as much as any Nation if Trade Commerce be in danger we are Islanders it is our life all these at once lye at stake and so doth our safety and being Lastly in respect of the manner of his Majesties demand which is in Parliament the way that hath ever best pleased the subjects of England and good cause for it for Aides granted in Parliament work good effects for the People they be commonly accompanied with wholesome Lawes gracious Pardons and the like Besides just and good Kings finding the love of their people and the readinesse of their supplies may the better forbear the use of their Prerogatives and moderate the rigour of the Lawes towards their Subjects This way as his Majestie hath told you he hath chosen not as the onely way but as the fittest not as destitute of others but as most agreeable to the goodnesse of his own most gracious disposition and to the desire and weale of his people If this be deferred Necessity and the Sword of the Enemy make way to the others Remember his Majesties admonition I say remember it Let me but adde and observe Gods mercy towards this land above all others the torrent of Warre hath overwhelmed other Churches and Countries but God hath hitherto restrained it from us and still gives us warning of every approaching danger to save us from surprize And our gracious Sovereign in a true sense of it calls together his High Court of Parliament the lively representation of the wisdome wealth and power of the whole Kingdome to joyn together to repell those hostile attempts which have distressed our Friends and Allies and threatned our selves And therefore it behoves all to apply their thoughts unto Counsell and Consultations worthy the greatnesse and wisdome of this Assembly to avoid discontents which may either distemper or delay and to attend that unum necessarium the common Cause propounding for the scope and work of all the debates the generall good of the King and Kingdome whom God hath joyned together with an indissoluble knot which none must attempt to cut or untie And let all by unity and good accord endeavour to pattern this Parliament by the best that have been that it may be a pattern to future Parliaments and may infuse into Parliaments a kinde of multiplying power and faculty whereby they may be more frequent and the King our Sovereign may delight to sit on this Throne and from hence to distribute his graces and favours amongst his people His Majestie hath given you cause to be confident of this you have heard from his royall mouth which neverthelesse he hath given me expresse command to redouble If this Parliament by their dutifull and wise proceedings shall but give this occasion his Majestie will be ready not onely to manifest his gracious acceptation but to put out all memory of those disasters that have troubled former Parliaments I have but one thing to adde and that is As your consultations be serious so let them be speedy The Enemy is beforehand with us and flies on the wings of Succese we may dallie and play with the houre-glasse that is in our powers but the houre will not stay for us and an opportunity once lost cannot be regained And therefore resolve of your Supplies that they may be timely and sufficient serving the occasion Your Counsel your Aid all is but lost if your Aid be either too little or too late And his Majestie is resolved that his affaires cannot permit him to expect it overlong And now having delivered what his Majestie hath commanded me concerning the cause of this Assembly his Majestie willeth that you of the House of Commons repaire to your owne House to make choice of a Speaker whom his Majestie will expect to be presented unto him on Wednesday next at two of the clock The Speaker Sir John Finches Speech March 19. 1627. Most Gracious Sovereign YOur obedient and loyall Subjects the Knights Citizens and Burgesses by your royall Summons here assembled in obedience to your gracious direction according to their antient usage and priviledge have lately proceeded to the choice of a Speaker and whether sequestring their better Judgements for your more weighty affairs or to make it known that their honour and wisdome can suffer neither increase nor diminution by the value or demerits of any one particular Member in what place soever serving them omitting others of worth and ability they have fixed their eyes of favour and affection on Mee Their long knowledge of my unfitnesse every way to undergo a charge of this important weight and consequence gave mee some hope they would have admitted my just excuse yet for their further and clearer satisfaction I drew the curtains and let in what light I could upon my owne inmost thoughts truely and really discovering to them what my self best knew and what I most humbly beseech your royall Majestie to take now into consideration that of so many hundreds sitting amongst them they could have found few or none whose presentation to your Majestie would have been of lesse repute
also to the Nobles and their honourable Progenies to the Bishops and Clergie and their successours to all persons of what condition or sex or age soever to all Judges Officers c. whose attendance are necessary c. without exception of any person Fifth generall reason The fifth is drawn from the indefinitnesse of time the pretended power being limited to no time may be perpetuall during life Sixth generall reason The sixth à damno dedecore from the losse and dishonour of the English Nation in 2 respects First for their valour and prowesse so famous through the whole world Secondly for their industry for who indeavours to apply himself in any profession either of warre liberall science or merchandise c. if he be but Tennant at will of his Liberty And no Tennant at will will support or improve any thing because he hath no certain estate And thus it should be both dedecus and damnum to the English Nation and it should be no honour to the King to be King of slaves Seventh generall reason The seventh is drawn ab utili inutili for that it appeareth by the statute of 36. E. 3. That the execution of the statute of Magna Charta 5. E. 3.25 E. 3. are adjudged in Parliament to be for the profit of the King and of his people Rot. Parl. 36. E. 3. num 9. 20. And therefore this pretended power being against the profit of the King and of his people can be no more part of this prerogative Eighth generall reason The eighth generall reason is drawn à tuto for it is safe for the King to expresse the cause of the commitment 1. E. 2. de frang prison stat unt pasche 18. E. 3. rot 33. coram Rege Bildestons case rot Parl. 28 H. 6. nu 16. Acts Apost cap. 25. v. the last and dangerous for him to omit it for if any be committed without expressing the cause though he escape albeit the truth be it were for treason or felony yet the escape is neither felony nor treason But if the cause be expressed to be for suspition of treason or felony then the escape albeit he be innocent is treason or felony Ninth generall reason The ninth generall reason is drawn from the authorities 16. H. 6. tit Monstrans defaits 182. by the whole Court the King in his presence cannot command one to be arrested but an action of false imprisonment lieth against him that arresteth 22. H. 6.46 Newton 1. H. 7.4 the opinion of Markham Chief Justice to E 4. and the reason because the party hath no remedy Fortescue cap. 18. proprio ore nullus Regum usus est c. to commit any man c. 4. Eliz. Plowd Com. 236. the common Common Law hath so admeasured the Kings prerogative as he cannot prejudice any man in his inheritance and the greatest inheritance a man hath is the Liberty of his person for all other are necessary to it Major haereditas venit unicuique nostrum à jure legibus quam à parentibus 25. E. 1. ca. 2. Confirm Cart. all judgements given against Magna Charta are void Objections Upon Conference with the Lords the objections were made by the Kings Attorney First object That these resolutions of the House were incompatible with a Monarchy that must govern by the state Bracton Answ. Whereunto it was answered that nihiltam proprium est imperii quam legibus vivere And again Attribuat Rex legi quodlex attribuat c. viz. dominationem imperium quia sine lege non potest esse Rex It can be no more prejudice to the King by reason of matter of state for if it be for suspition of treason misprision of treason or felony it may be by generall words expressed viz. pro suspitione proditionis 2 object To blind those that are committed one cause must be pretended and another intended especially when it toucheth matter of state Answ. Whereunto it was answered that all dissimulation especially in the course of Justice was to be avoided and soundnesse of truth to take place and therefore David that was both a King and a Prophet prayed to Almighty God against dissimulation in these words Lord send me a sound heart in thy statutes that I be not ashamed where sound in the originall signifieth upright without dissimulation and shame followeth dissimulation when the truth is known Third object If a Rebell be attainted in Ireland and his children for safety and for matter of state be kept in the Tower what shall be returned upon the Habeas Corpus Whereunto It was answered First that their imprisonment might be justified if they could not find good sureties for their good behaviour Secondly It was charity to find them meat drink and apparell that by the Attainder of their father had nothing Fourth object Though his Majesty expresseth no cause yet it must be intended that there was a just cause Answ. De non apparentibus de non existentibus eadem ratio Fifth object First The King in stead of gold or silver may make money currant of any base metall Secondly He may make warres at his pleasure Thirdly He may pardon whom he will Fourthly He may make denizens as many as he will and these were said to be greater priviledges then this in question Answ. To the first it is denyed that the King may make money currant of base metal but it ought to be gold or silver Secondly It was answered admitting the King might do it his losse and charge was more then of his Subjects both in the case of money and in the case of warre The pardon was private out of grace and no man had dammage or loss by it so of the making of denizens the King was only the looser viz. to have single custome where he had double Thirdly it was a non sequitur The King may do these things ergo he may imprison at will Your Lordships are advised by them that cannot be daunted by fear nor misled by affection reward or hope of preferment that is of the dead By ancient and many Acts of Parliament in the point besides Magna Charta which hath been 30 times confirmed and commanded to be put in execution wherein the Kings of England have thirty times given their Royall assent Secondly Judiciall Presidents per vividas rationes manifest and apparant reasons we in the house of Commons have upon great studie and serious consideration made a grand manifesto unanimously nullo contradicente concerning this great Liberty of the subject and have vindicated and recovered the body of this fundamentall Liberty both of your Lordships of our selves from shadowes which some time of the day are long sometimes short and sometimes long again and therefore no Judges are to be led by them Your Lordships are involved in the same danger and therefore ex congruo condigno we desire a conference to the end your Lordships might make the like declaration as we
have done Commune periculum commune requirit Auxilium and thereupon take such further course as may secure your Lordships and us and all your and our posterities in enjoying of our ancient undoubted and fundamentall Liberties The Argument of Sergeant Bramston upon the Habeas corpus MAy it please your Lordship to hear the return read or shall I open it Chief Iustice Hide Let it be read M r. Keeling read the return being the same as that of Sir Thomas Darnell May it please your Lordship I shall humbly move upon this return in the behalf of Sir Iohn Henningham with whom I am of Councell it is his petition that he may be bailed from his imprisonment it was but in vain for me to move that to a Court of Law which by Law cannot be granted and therefore in that regard that upon his return it will be questioned whether as this return is made the Gent. may be bailed or not I shall humbly offer up to your Lordship the case and some reasons out of mine understanding arising out of the return it self to satisfie your Lordship that these Prisoners may and as their case is ought to be bailed by your Lordship The exception that I take to this return is as well to the matter and substance of the return as to the manner and legall form thereof the exceptions that I take to the matter is in severall respects That the return is too generall there is no sufficient cause shewn in speciall or in generall of the commitment of this Gentleman and as it is insufficient for the cause so also in the time of the first imprisonment for howsoever here doth appear a time upon the second warrant from the Lords of the Councell to detain him still in prison yet by the return no time can appear when he was first imprisoned though it be necessary it should be shewen and if that time appear not there is no cause your Lordship should remand him and consequently he is to be delivered Touching the matter of the return which is the cause of his imprisonment It is expressed to be Per speciale mandatum domini Regis This is too generall and uncertain for that it is not manifest what kind of command this was Touching the Legall form of the return it is not as it ought to be fully and positively the return of the Keeper himself onely but it comes with a significavit or prout that he was committed Per speciale mandatum domini Regis as appeareth by warrant from the Lords of the Councell not of the King himself and that is not good in legall form For the matter and substance of the return it is not good because there ought to be a cause of that imprisonment This writ is the means and the onely means that the subject hath in this and such like case to obtain his liberty there are other writs by which men are delivered from restraint as that de homine replegiando but extends not to this cause for it is particularly excepted in the body of the writ de manucaptione de cantione admittenda but they lie in other cases but the writ of Habeas corpus is the onely means the subject hath to obtain his liberty and the end of this writ is to return the cause of the imprisonment that it may be examined in this Court whether the parties ought to be discharged or not but that cannot be done upon this return for the cause of the imprisonment of this Gentleman at first is so farre from appearing particularly by it that their is no cause at all expressed in it This writ requires that the cause of the imprisonment should be returned if the cause be not specially certified by it yet should it at the last be shewn in generall that it may appear to the Judges of the Court and it must be expressed so farre as that it may appear to be none of those causes for which by the Law of the Kingdome the subject ought not to be imprisoned and it ought to be expressed that it was by presentment or indictment and not upon petition or suggestion made to the King and Lords which is against the statute made in the 25 Ed. 3. c. 4. 42 E. 3. c. 3. By the Statute 25 Ed. 3. cap. 4. It is ordained and established that no man from henceforth shall be taken by petition or suggestion made to the King or his Councell but by indictment or course of Law and acordingly it was enacted 42 E. 3. c. 3. the title of which statute is None shall be put to answer an accusation made to the King without presentment Then my Lord it being so although the cause should not need to be expressed in such manner as that it may appear to be none of these causes mentioned in the statute or else the Subject by this return loseth the benefit and advantage of these Laws which be their birth-right and inheritance but in this return there is no cause at all appearing of the first commitment and therefore it is plain that there is no cause for your Lordship to remand him but there is no cause you should deliver him since the writ is to bring the body and the cause of the imprisonment before your Lordship But it may be objected that this writ of Habeas Corpus doth not demand the cause of the first commitment but of the detaining onely and so the writ is satisfied by the return for though it shew no cause of the first commitment but of detaining onely yet it declareth a cause why the Gentleman is detained in prison this is no answer nor can give any satisfaction for the reason why the cause is to be returned is for the Subjects liberty that if it shall appear a good and sufficient cause to your Lordship then to be remanded if your Lordship think and finde it insufficient he is to be enlarged This is the end of this writ and this cannot appear to your Lordship unlesse the time of the first commitment be expressed in the return I know that in some cases the time is not materiall as when the cause of the commitment is and that so especially returned as that the time is not materiall it is enough to shew the cause without the time as after a conviction or triall had by Law But when it is in this manner that the time is the matter it self for intend what cause you will of the commitment yea though for the highest cause of treason there is no doubt but that upon the return thereof the time of it must appear for it being before triall and conviction had by Law it is but an accusation and he that is onely accused and the accusation ought by Law to be let to bail But I beseech your Lordship to observe the consequence of this Cause If the Law be that upon this return this Gentleman should be remanded I will not dispute whether or no a man may
be imprisoned before he be convicted according to the Law but if this return shall be good then his imprisonment shall not continue on for a time but for ever and the Subjects of this Kingdome may be restrained of their liberties perpetually and by Law their can be no remedy for the Subject and therefore this return cannot stand with the Laws of the Realm or that of Magna Charta Nor with the statute of 28 Ed. 3. ca. 3. for if a man be not bailable upon this return they cannot have the benefit of these two Laws which are the inheritance of the Subject If your Lordship shall think this to be a sufficient cause then it goeth to a perpetuall imprisonment of the subject for in all those causes which may concern the Kings Subjects and are appliable to all times and cases we are not to reflect upon the present time and government where justice and mercy floweth but we are to look what may betide us in the time to come hereafter It must be agreed on all sides that the time of the first commitment doth not appear in this return but by a latter warrant from the Lords of the Councell there is a time indeed expressed for the continuing of him in prison and that appeares but if this shall be a good cause to remand these Gentlemen to prison they may lie there this seven yeares longer and seven yeares after them nay all the dayes of their lives And if they sue out a writ of Habeas corpus it is but making a new warrant and they shall be remanded and shall never have the advantage of the Laws which are the best inheritance of every Subject And in Ed. 6. fol. 36. the Laws are called the great inheritance of every Subject and the inheritance of inheritances without which inheriritance we have no inheritance These are the exceptions I desire to offer to your Lordship touching the return for the insufficiency of the cause returned and the defect of the time of the first commitment which should have been expressed I will not labour in objections till they be made against me in regard the sttatute of Westminster primo is so frequent in every mans mouth that at the Common Law those men that were committed in four cases were not replevisable viz. those that were taken for the death of a man or the commandment of the King or his Justices for the forest I shall speak something to it though I intend not to spend much time about it for it toucheth not this Case we have in question For that is concerning a Case of the Common Law when men are taken by the Kings writs and not by word of mouth and it shall be so expounded as Master Stamford fol. 73. yet it is nothing to this Case for if you will take the true meaning of that statute it extends not at all to this writ of Habeas corpus for the words are plain they shall be replevisable by the Common writ that is by the writ de homine replegiando directed to the Sheriffe to deliver them if they were baileable but the Case is above the Sheriffe and he is not to be Judge in it whether the cause of the commitment be sufficient or not as it appears in Fitz Herbert de homine replegiando and many other places and not of the very words of the statute this is clear for thereby many other causes mentioned as the death of a man the commandment of the Justices c. In which the statute saith men are not replevisable but will a man conceive that the meaning is that they shall not be bailed at all but live in perpetuall imprisonment I think I shall not need to spend time in that it is so plain let me but make one instance A man is taken de morte hominis he is not baileable by writ saith this statute that is by the common writ there was a common writ for this Case and that was called de odio acia as appeareth Bracton Coron 34. this is the writ intended by the statute which is a common writ and not a speciall writ But my Lord as this writ de odio acia was before this statute so it was afterwards taken away by the statute of 28 Ed. 3. cap. 9. But before that sttatute this writ did lie in the speciall Case as is shewn in Brooks 9 th Reports Powlters Case and the end of this writ was that the Subject might not be too long detained in prison as till the Justices of Eyre discharged them so that the Law intended not that a man should suffer perpetuall imprisonment for they were very carefull that men should not be kept too long in prison which is also a Liberty of the Subject and my Lord that this Court hath bailed upon a suspicion of high treason I will offer it to your Lordship when I shall shew you presidents in these cases of a commitment by the Privy Councell or by the King himself But before I offer these presidents unto your Lordship of which there be many I shall by your Lordships favour speak a little to the next exception and that is the matter of the return which I find to be per speciale mandatum domini Regis 8. and what is that it is by this writ there may be sundry commands by the King we find a speciall command often in our Books as in the statute of Marlborough cap. 8. they were imprisoned Rediss shall not be delivered without the speciall command of our Lord the King and so in Bracton De Actionibus the last chapter where it appears that the Kings commandment for imprisonments is by speciall writ so by writ again men are to be delivered for in the case of Rediss or Post Rediss if it shall be removed by a Certiorare is by a speciall writ to deliver parties so that by this appears that by the Kings commandment to imprison and to deliver in those cases is understood this writ and so it may be in this case which we have heard And this return here is a speciall Mandatum it may be understood to be under some of the Kings Seals 42 Ass. and ought to be delivered and will you make a difference between the Kings command under his seal and his command by word of mouth what difference there is I leave it to your Lordships judgement but if there be any it is the more materiall that it should be expressed what manner of command it was which doth not here appear and therefore it may be the Kings command by writ or his command under his Seal or his command by word of mouth alone And if of an higher nature there is none of these commands then the other doubtlesse it is that by writ or under seal for they are of record and in these the person may be bailed and why not in this As to the legall forme admitting there were substances in the return yet
there wants legall form for the writ of Habeas Corpus is the commandment of the King to the Keeper of the prisons and thereupon they are to make return both of the body and of the cause of the commitment and that cause is to appear of them who are the immediate Officers And if he doth it by signification from another that return is defective in Law and therefore this return cannot be good for it must be from the Officer himself and if the cause returned by him be good it bindes the prisoners The warrant of the Lords was but a direction for him he might have made his return to have been expresly by the Kings commandment there was a warrant for it I shall not need to put your cases of it for it is not enough that he returns that he was certified that the commitment was by the Kings command but he must of himself return this fact as it was done And now my Lord I shall offer to your Lordship presidents of divers kindes upon commitments by the Lords of the Privy Councel upon commitments by the speciall command of the King and upon commitments both by the King the Lords together And howsoever I conceive which I submit to your Lordship that our case will not stand upon presidents but upon the fundamentall Laws and Statutes of this Realm and though the presidents look the one way or the other they are to be brought back unto the Laws by which the Kingdome is governed In the first of Henry the eighth Rot. Parl. one Harison was committed to the Marshalsey by the command of the King and being removed by Habeas Corpus into the Court the cause returned was that he was committed per mandatum Domini Regis and he was bailed In the fortieth of Elizabeth Thomas Wendon was committed to the Gatehouse by the commandment of the Queen and Lords of the Councell and being removed by an Habeas Corpus upon the generall return and he was bailed In 8 Iacobi one Caesar was committed by the Kings commandment and this being returned upon his Habeas Corpus upon the examination of this case it doth appear that it was over ruled that the return should be amended or else the prisoner should be delivered The presidents concerning the commitment by the Lords of the Councell are in effect the same with these where the commitment is by the reason why the cause of the commitment should not be shewn holds in both cases and that is the necessity of suit and therefore Master Stamford makes the command of the King and that of the Lords of the Privy Councell to be both as one and to this purpose if they speak he speaks and if he speaks they speak The presidents that we can shew you how the Subject hath been delivered upon commitment by the Lords of the Councell as in the time of Henry the eight as in the times of Queen Elizabeth Queen Mary are infinite as in the ninth of Elizabeth Thomas Lawrence was committed to the Towre by the Lords of the Councell and bailed upon an Habeas Corpus In the 43 of Elizabeth Calvins case In the third of Elizabeth Vernons case These were committed for high treason and yet bailed for in all these cases there must be a conviction in due time or a deliverance by Law There be divers other presidents that might be shewn to your Lordship In 12 Iacobi Mâ—les Renards In 12 Iacobi Rot. 155. Richard Beckwiths case In 4 Iacobi Sir Thomas Monson was committed for treason to the Towre of London and afterwards was brought hither and bailed and since our case stands upon this return and yet there is no sufficient cause in Law expressed in the return of the detaining this Gentleman and since these presidents do warrant our proceedings my humble suit unto this Court is that the Gentleman Sir Iohn Henningham who hath petitioned his Majesty that he may have the benefit of the Law and his Majesty hath signified it it is his pleasure that justice according to the Law should be administred at all times in generall to all his Subjects and particularly to these Gentlemen which is their birth-right My humble suit to your Lordship is that these Gentlemen may have the benefit of that Law and be delivered from their imprisonment The Argument of Master Noye upon the Habeas corpus May it please your Lordship I am of Councell with Sir Walter Earl one of the prisoners at the Barre the return of this writ is as those that have been before they are much of one tenour and as you have heard the tenour of that so this Gentleman coming hither by an Habeas Corpus I will by your Lordships favour read the writ Carolus Dei Gratia Iohanni Lylo Milit Guardian Prison nostrae de le Fleet Salut Praecipimus tibi quod corpus Walteri Earl Milit in prison nostra sub custodia tua detent ut dicit una cum causa detentionis suae quocunque nomine praedict Walter censeat in eadem Habeas Corpus ad subjiciendum recipiendum ea quae curia nostra de eo ad tunc ibidem ordin conting in hac parte haec nallatenus omit periculo incumbent habeas tibi hoc breve Test Hyde apud Westminster quarto die Novembris Anno 8. Executio istius brevis patet in quadam schedula huic brevi annexat Respons Johan Liloe Guardian Prison de le Fleet. Ego Iohannes Lyloe Mil Guardian Prison domini Regis de le Fleet Serenissimo Domino Regi apud Westminster 8. Post receptionem hujus brevis quod in hac schedula est mentionat ' Certifico quod Walter Earl miles in eodem brevium nominat detentus est in prisona de le Fleet sub custodia mea praedict per speciale mandatum domini Regis mihi significatum per VVarrantum duorum aliorum de Privato Concilio per Honorabilissimi dicti Domini Regis cujus quidem tenor sequitur in haec verba Whereas Sir Walter Earl Knight was heretofore committed to your custody these are to will and require you still to detain him letting you know that both his first commitment and this direction for the continuance of him in prison were and are by his Majesties speciall commandment from White Hall 7 Novembris 1627. Thomas Coventree C. S. Henry Manchester Thomas Suffolk Bridgewater Kellie R. Duneln ' Thomas Edmunds Iohn Cook Marlborough Pembrook Salisbury Totnes Grandisson Guliel Bath and Wells Robert Nanton Richard Weston Humphrey Mayes To the Guardian of the Fleet or his Deputy Et haec est causa detentionis praedict Walteri Earl sub custodia mea in Prison praedict Attamen corpus ejusdem Walteri coram Domino Rege ad diem locum praedictum post receptionem brevis praedict pa rat habeo prout istud breve in se exiget requiret Respon Johan Liloe milit Guardian Prison de le Fleet. My Lord the first Habeas corpus bears date the
and not by way of information out of another mans mouth may not be good as appeareth by the severall books of our law 23 Ed. 3. Rex vic 181. upon a Homine replegiando against the Abbot of C. the Sheriffe returneth that he had sent to the Bailiffe of the Abbot that answered him that he was the villain of the Abbot by which he might not make deliverance and a Sicut alias was awarded for this return was insufficient insomuch that he had returned the answer of the Bailiffe of the Abbot where he ought to have returned the answer of the Abbot himself out of his own mouth Trin. 22. Ed. 2. Rot. 46. parent vill Burg. Evesque de Norwich repl 68. Nat. Br. Case 34. Fitz. Nat. Br. 65. 34. Ed. 3. Excom 29. the case appeareth to be such in a trespasse the defendant pleadeth the plaintiffe is excommunicate and sheweth forth the letter of the Bishop of Lincoln witnessing that for divers contumacies c. and because he had certified no excommunic done by himself but by another the letter of excommunication was annulled for the Bishop ought to have certified his own act and not the act of another Hillarii 22 Hen. 8. Rot. 37. it appeareth by the return of an Habeas corpus that Iohn Parker was committed to prison for security of the peace and for suspicion of felony as per mandatum Domini Regis nunciatum per Robertum Peck de Cliffords Inne and upon his return Iohn Parker was bailed for the return Commiss fuit per speciale mandatum domini Regis nunciatum per Robertum Peck was not good insomuch that it was not a direct return that he was committed per mandatum Domini Regis And for the first point I conclude that this return is insufficient in form insomuch that it doth not make a precise and direct return that he was committed and detained by the speciall command of the King but onely as he was signified by the warrant of the Lords of the Councell which will not serve the turn and upon the book of 9 Hen. 6.44 the return of the cause of a mans imprisonment ought to be precise and direct upon the Habeas corpus insomuch as thereby to be able to judge of the cause whether it be sufficient or not for there may not any doubt be taken to the return be it true or false but the Court is to accept the same as true and if it be false the party must take his remedy by action upon the case And as concerning the matter of the return it will rest upon these parts First whether the return be that he is detained in prison by speciall commandment of our Lord the King be good or not without shewing the nature of the commandment or the cause whereupon the commitment is grounded in the return The second is whether the time of the first commitment by the commandment of the King not appearing to the Court is sufficient to detain him in prison Thirdly whether the imprisonment of the subjects without cause shewed but onely by the commandment of the King be warantable by the laws and statutes of this Realm As unto the first part I find by the books of our law that commandments of the King are of severall natures by some of which the imprisonment of a mans body is utterly unlawfull and by others of them although the imprisonment may be lawfull yet the continuance of him without bail or mainprise will be utterly unlawfull There is a verball command of the King which is by word of mouth of the Kings onely and such commandment by the King by the books of our law will not be sufficient either to imprison a man or to continue him in prison 16.6 Monstrans de faict si upon an action of trespasse brought for cutting of trees the defendant pleadeth that the place where he cut them is parcell of the Manor of D. whereof the King is seised in fee and the King commanded him to cut the trees and the opinion of the Court there is that the plea in barre was ill because he did not shew any speciall commandment of the King and there it is agreed by the whole Court that if the King commandeth one to arrest another and the party commanded did arrest the other an action of trespasse or false imprisonment is maintainable against the party that arrested him although it were done in the presence of the King 39 H. 6.17 where one justifieth the seisure of the goods of a person that is outlawed by the commandment of the King such a party being no Officer may not in an action brought against him have any aid of the King for such a commandment given to one that is not an Officer will not any wayes avail him that is to justifie himself by the return of that commandment 37 Hen. 6.10 If the king give me a thing and I take the same by his commandment by word of mouth it is not justified by law nothing may passe without matter of Record 10 Hen. 7.7 17.18 it is agreed that Justices may command one to arrest another that is in their view or presence but not one that is out of their view or presence And Keble 10 Hen. 7.13 said that where one is arrested by a parroll command in their view or presence it is fitting that a record may be made of it insomuch that without such a record there can hardly be a justification in another Term. Secondly there is a commandment of the King by his Commission which according unto Calvins case in the seventh Report it is called by him breve mandatum non remediabile and by virtue of such a commandment the King may neither seise the goods of his subject nor imprison his body as it is resolved in 42 Ass. pl. 5. where it is agreed by all the justices that a Commission to take a mans goods or imprison his body without indictment or suit of the party or other due processe is against the Law Thirdly there is a commandment of the King which is grounded upon a suggestion made to the King or to his Councell and if a man be committed to prison by such a suggestion by commandment of the King it is unlawfull and not warranted by the Law of the Realm The 25 of Edward the third cap. 4. de Provisoribus whereas it is contained in the great Charter of the Franchises of England that none shall be imprisoned or arrested of his Free-hold or of his Franchises nor of his free customes but by the Law of the land It is awarded consented and established that from henceforth none shall be taken by petition or suggestion made to our Soveraign Lord the King or to his Councell untill it be by indictment or presentment of his good and lawfull neighbours where such deeds are done in due manner or by processe made by writ originall at the common law nor of his free-hold unlesse he be duely brought
examination and deliberation taken by them And it was observed to the Lords also that their confidence herein was of another nature and far greater weight then any confidence that could be expressed by M r. Attorney or whomsoever else being of his Majesties Councel learned To which purpose the Lords were desired to take into their Memory the difference between the present quality of the Gentlemen that spake in behalf of the House of Commons and of the Kings learned Councel in their speaking there howsoever accidentally they were both men of the same profession For the Kings Councel spake as Councel perpetually retained by Fee and if they made glosses and and what advantagious Interpretations soever for their own part they did but what belonged to their place and quality as M r. Attorney had done But the Gentlemen that spake in behalf of the House of Commons came there bound on the one side by the trust reposed in them by their Countrey that sent them and on the other bound also by an Oath taken by every of them before they sit in the House to maintain and defend the rights and prerogatives of the Crown So that even in the point of confidence alone that of them that spake as retained Councel by perpetual Fee and might by their place being permitted to speak say what they would and that of them that spake as bound to nothing but truth but by such a trust and such an Oath were no way to be so compared or Counterpoised as if the one of them were of no more weight then the other And then the Objections before mentioned were also answered For that of the resolution of all the Judges of England in 34. Eliz. It was shewed plainly it agreed with the resolution of the House of Commons For although indeed it might have been expressed with more perspicuity yet the words of it as they are sufficiently shew that the meaning of it is no otherwise To that purpose besides the words of the whole frame of this resolution of the Judges as it is in the Coppy transcribed out of the Lord Chief Justice Andersons book written in his own hand which book was there offered to be shewed also in behalf of the House of Commons It was observed that the Records of the first part of it shew plainly that all the Judges of England then resolved that the Prisoners spoken of in the first part of their resolution were onely Prisoners committed with cause shewed for they onely said they might not be delivered by any of the Courts without due Trial by Law and Judgement of acquital had which shews plainly that they meant that by trial and acquital they might be delivered but it is clear that no trial or acquital can be had where is not some cause laid to their charge for which they ought to stand committed Therefore in that part of the resolution such Prisoners are onely meant as are committed without cause shewed which also the Judges in that resolution expresly thought necessary as appears in the second part of the resolution wherein they have these words If upon Return of the Habeas Corpus the cause of their commitment be certified to the Judges as it ought to be c. by which words they shew plainly that every return of a commitment is insufficient that hath not a cause shewed of it And to that which M r. Attorney said as if the cause were sufficiently expressed in generality if the Kings Command or the Councels were expressed in it and as if that were meant in the resolution for a sufficient general cause it was answered That it was never heard of in Law that the power or Person that committed the Prisoner was understood for the Causa captionis or Causa detentionis but onely the reason why that Power or Person committed the Prisoner as also in common speech if a man ask why and for what cause a man stands committed the answer is not that such a one committed him but his offence or some other cause is understood in the question and is to be shewed in the Answer But to say that such an one committed the Prisoner is an answer to the question who committed him and not why or for what cause he stands committed Then for that of the Coppy of the Report of 13. Iac. shewed forth by Mr. Attorney it was answered That the Report it self which had been before seen and perused among many other things at a Committee made by the House was of sleight or no Authority for that it was taken by one that was at that time a young Student onely and was a Reporter in the Kings-bench and there was not any other Report to be found that agreed with it Secondly although the Reports of young Students when they take the words of Judges as they fall from their mouth at the Bench and in the Person and form as they are spoken may be of good credit Yet in this Case there was not one word so reported but in truth there being three Cases a time in the Kings-bench one Ruswell and one Allen and one Saltonstall every of which had something of like nature in it the Student having been present in the Court made up the form of one Report or Case out of all those three in his own words and so put it into his book so that there is not a word in the Report but is framed according to the Students fancie as it is written and nothing is expressed in it as it came from the mouth of the Judges otherwise then his fancie directed him Thirdly there are in the Report plain falshoods of Matter of Fact which are to be attributed either to the Judges or to the Reporter It is most likely by all reason that they proceeded from the Reporters fault but however those Matters of falshood shew sufficiently that the credit of the rest is of slight value for the purpose It is said in the Report that Harecourt being committed by the Councel was bayled in 40. Eliz. upon a privy Seal or a Letter where as there was no such thing in truth And it is said there that no such kinde of Letters are filed there in any case whatsoever That resolution of the Judges in 34. is miscited there and in 36. of Queen Eliz. and it is said there that by that resolution a Prisoner returned to be committed by the command of the Councel might not at all be delivered by the Court whereas no such thing is comprehended in in that resolution But that which is of most moment is that howsoever the truth of the report were yet the opinion of the Judges being sudden without any debate had of the case is of sleight moment For in difficult points especially the gravest and most learned men living may on the sudden let fall and that without disparragement to them such opinions as they may well and ought to change upon further enquiry and examination and full debate had
is said that bayl is ex gratia he answers that if the Prisoner comes to Habeas Corpus then it is not ex gratia Yet the Court may advise but mark the words ad subjiciendum recipiendum prout Curia consideraverit now it is impossible the Judges should do so if no cause be expressed for it they know no cause he may bring the 1.2.3 and fourth Habeas Corpus and so infinite till he finde himself a perpetual Prisoner so that no cause expressed is worse for a man then the greatest cause or Villany that can be imagined and thus far proceeded that learned Gentlemen M r. GLANVILES Argument HE said that by favour of the House of Commons he had liberty to speak if opportunity were offered he applies his answer to one particuler of M r. Attorney who assigned to the King 4. great trusts 1. of War 2. Coins 3. Denizens 4. Pardons Is assented unto that the King is trusted with all these 4. legal Prerogatives but the Argument followeth not the King is trusted with many Prerogatives Ergo in this non sequitur non est sufficiens enumeratio partium he said he could answer these particulars with 2. rules whereof the first should wipe of the first and the second and the other the third and fourth The first rule is this there is no fear of trusting the King with any thing but the fear of ill Councel the King may easily there be trusted where ill Councel doth not ingage both the King and Subjects as it doth in matter of War and Coin If he miscarry in the Wars it is not alwayes pecuum Achiro but he smarts equally with the people If he abase his Coin he looseth more then any of his people Ergo he may safely be trusted with the flowers of the Crown War and Coin The second rule he began was this when the King is trusted to confer grace it is one thing but when he is trusted to infer an injury it is another matter The former power cannot by miscouncelling be brought to prejudice another The latter may if the King pardoneth a guilty Man he punisheth not a good subject if he denizen never so many strangers it is but damnum sine injuria we allow him a liberty to confer grace but not without cause to infer punishment and indeed he cannot do injury for if he command to do a Man wrong the command is void alter fit Author and the Actor becomes the wrong doer Therefore the King may be safely trusted with War Coin Denizens and Pardons but not with a power to imprison without expression of Cause or limmitation of time because as the Poet tells us Libertas potius auro The Answer of the Judges for matter of Fact upon the HABEAS CORPUS 21. April THe Chief Justice saith they are prepared to obey our Command but they desire to be advised by us whether they being sworn upon penalty of forfeiting Body Lands and Goods into the Kings hands to give an account to him may without Warrant do this The Duke said he had acquainted the King with the business and for ought he knoweth he is well content therewith But for better assurance he hath sent his brother of Anglesey to know his pleasure Devonshire saith if a complaint be made by a mean Man against the greatest Officer in this place he is to give an account of his doings to this House Bishop of Lincoln saith this motion proceeded from him and so took it for clear that there was an appeal from the Chancery to a higher Court then the Kings-bench and in that Court hath ever given an account of their doings The Lord Say saith he wondred there should be any question made of this business because in his opinion this being the highest Court did admit of no appeal The President said the Judges did not do this by way of appeal but as the most common way for them this being a matter concerning the Kings prerogative Lord Say saith if they will not declare themselves we must take into consideration the point of our priviledge The Duke saith this was not done by the Judges as fearing to answer but of respect to the King And now his brother was come with answer from the King that they might proceed Order was taken that this passage should not be entered into the Journal Book and so Judge WHITLOCK spake 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 this 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 inlarged or the eight of the subject trenched upon It is true my Lords in Michaelmas Term last fower Gentlemen petitioned for a Habeas Corpus which they obtained and Councel was assigned unto them the return was per spialem mandatum Domini Regis which likewise was made known unto us under the hands of eighteen privy Councellours 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 new Writ if they had pleased but they say we ought not to have denied bayl I answer if we had done so it must needs have reflected upon the King that he had unjustly imprisoned them and it appears in Dyer 2. Eliz. that divers Gentlemen being committed and requireing Habeas Corpus some were bayled 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 betwixt remittitur and 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 endeavouring to have a Judgement entered it is true Mr. Attorney pressed the same for his Masters service but we being sworn to do right betwixt the King and his subjects commanded the Clark 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
Mr. Serjeant Ashley the other day told your Lordships of the Embleme of a King but by his leave made wrong use of it For a King bears in one hand the Globe and in the other the golden Scepter the tipes of Soveraignty and mercie but the Sword of Justice is ever carried before him by a Minister of Justice which shews Subjects may have their remedies for unjustice done and appeals done to higher powers for the Laws of England are so favourable to their Princes as they can do no unjustice Therefore I will conclude as all disputes I hold do Magna est veritas praevalebit so I make no doubt we living under so good a Prince as we do when this is represented unto him he will answer us Magna est Carta praevalebit The ARCH-BISHOPS of CANTERBURIES Speech at the Conference of both Houses 25. April 1628. GEntlemen of the House of Commons the service of the King and safety of the Kingdom do call on us my Lords to give all convenient expedition to dispatch some of those great and weighty businesses for the better effecting whereof my Lords have thought fit to let you know that they do in general agree with you and doubt not but you will agree with us to the best of your power to maintain and support the fundamental Laws of the Kingdom and the fundamental Liberties of the Subject for the particulers which may hereafter fall in debate they have given me in charge to let you know that what hath been presented by you to their Lordships they have laid nothing of it by they are not out of love with any thing you have tendered to them they have voted nothing neither are they in love with any thing proceeding from themselves for that which we shall say and propose unto you is out of an intendment to invite you to a mutual and free conference that you with confidence may come to us and we with confidence may speak to you so that we may come to a conclusion of those things which we both unanimously desire we have resolved of nothing defined or determined nothing but desire to take you with us praying help of you as you have done of us My Lords have thought upon some Propositions which they have ordered to be read here and then left with you in writing that if it seem good to you we may uniformly concur for the substance and if you differ that you may be pleased to put out or add or alter or diminish as you shall think fit that so we the better come to the end that we do both so desireously embrace Then the 5. Propositions were read by the Lord BISHOP of NORVVHICH The 5. Propositions 25. April 1628. 1. THat his Majesty would be pleased gratiously to declare that the good old Law called Magna Charta and the 6. Statutes conceived to be Declarations or Explanations of that Law do stand still in Force to all intents and purposes 2. That his Majesty would be pleased gratiously to declare that according to Magna Charta and the Statutes aforesaid as also according to the most ancient Customes and Laws of this Land every free Subject of this Realm hath a fundamental propriety in his goods and a fundamental Liberty of his Person 3. That his Majesty would be pleased gratiously to declare that it is his Royal pleasure to ratifie and confirm unto all and every his faithfull and Loyal Subjects all their antient several just Liberties Priviledges and Rights in as ample and beneficial manner to all intents and purposes as their Ancestors did enjoy the same under the Government of the best of his most Noble Progenitors 4. That his Majesty would be pleased gratiously to declare for the good contentment of his Loyal Subjects and for the secureing them from future fears that in all causes within the Cognizance of the Common-Law and concerning the Liberty of his Subjects his Majesty would proceed according to the Laws established in the Kingdom and in no other manner or wise 5. And as touching his Majesties Royal Prerogative intrincical to his Soveraignty and intrusted him from God ad communem totius populi salutem non ad destructionem his Majesty would resolve not to use or divert the same to the prejudice of any his loyal People in the propriety of their goods and liberty of their Persons And in case for the security of his Majesties Royal Person the Common safety of his People or the peaceable Government of his Kingdom his Majesty shall finde just cause of State to imprison or restrain any mans Person his Majesty would gratiously declare that within a convenient time he shall and will express the cause of his commitment or restraint either general or special and upon a cause so expressed will leave him immediatly to be tried according to the Common Justice of the Kingdom Then S r. DUDLEY DIGGS in the behalf of the Commons saith MY Lords it hath pleased Almighty God many wayes to bless the Knights Cittizens and Burgesses now assembled in Parliamen with great comforts and strong hopes that this will prove as happy a Parliament as ever was in England and in their Consultations for the service of his Majesty and the safety of this Kingdom one especial comfort and strong hope hath risen from the continued good respects which your Lordships so nobly from time to time have been pleased to shew unto them particulerly at this present in your so Honourable profession to agree with them in general in desire to maintain and support the fundamental Laws and Liberties of England The Commons have commanded me in like fort they have been are and will be as ready to propugne the just Prerogatives of his Majesty of which in all their Arguments searches of Records and resolutions they have been most carefull according to that which formerly was and now again is protested by them Another Noble Argument of your Honourable disposition towards them is exprest in this that you are pleased to expect no present answer from them who are as your Lordships in your general wisdoms they doubt not have considered a great body that must advise upon all new Propositions and resolve upon them before they can give answer according to the ancient usage of our House but is manifest in general God be thanked for it there is a great concurrence of affection to the same end in both Houses and such a good Harmony that I intreat your Lordships leave to borrow a comparison from nature or natural Philosophy as two Lutes well strung and tun'd brought together if one be plaid on little straws or sticks will stir upon the other though it lye still so though we have no power to reply yet these things said and proposed cannot but work in our hearts and we will faithfully report these passages to our House from whence in due time we hope your Lordships shall receive a contentfull Answer S r. BENJAMIN RUDDIERDS Speech 28.
then by giving a confirmation upon this occasion we have bettered our Case very much Thirdly have not the Judges in the Kings-bench in open Parliament upon our complaint disclaimed to have given any Judgement in the point which generally before by the Parliament was otherwise conceived for now they say it was but an Award and no Judgement Will such a Notorious Act upon so important an occasion in so publick a place be quickly forgotten Nay will not the memorie of it for ever remain upon Records is not our Case then much better then when we came hither Fourthly will not the resolution of this House and all our Arguments and reasons against imprisonment without a Cause expressed which no doubt by the course we have taken will be transferred to posterity be a great means to stay any Judge hereafter for declaring any Judgement to the contrary especially if there be likelyhood of a Parliament is not our Case in this very much amended Lastly have we not received Propositions from the Lords wherein amongst other things they declared that they are not out of love with our proceedings is not this a great strenghtning to it but after so long debate amongst them about it they cannot take any just exception to it and doth not this also much amend our Case From all these reasons I conclude that the second Objection that by a confirmation we are in no better case then when we came together is also a weak Objection Now for reasons to move us to proceed in this course of accepting a confirmation First we have his Majesties gracious promise to yield to a confirmation of the old Laws from which we may rest most assured he will not depart If we tender him with all our Proposition to be enacted we have cause to doubt that we shall loose both the one and the other Secondly we are no less assured of the Lords joyning with us for in their Propositions sent to us they have delivered themselves to that purpose This is then a secure way of getting somewhat of great advantage to us as we have great hopes and in a manner assurance on this side So on the other side we have great doubts and fears that by offering our resolution to be enacted we shall loose all For first we have had already experience of the Lords that they are not very foreward to joyn with us in a Declaration of our Proposition to be Law If they stumble at a Declaration much more will they in yielding to make Law in the same point And have we not much more cause to doubt that his Majesty will not yield unto it seeing it toucheth him so near Is it not the notice of his pleasure that hath wrought thus with the Lords If we should clog our Bill with our Proposition and it should be rejected by the Lords or by the King is not our resolution much weakned by it And are we not then in far worse case then before we made it Our resolution for the rejecting of our Proposition will tend to a Justification of all that hath been done against us in this great point of our Liberty Let us then like wise-men conform our desire to our hopes and guide our hopes by probabilities other desires and other hopes are but vain This is my poor opinion in this weighty business Secretary COKES Message 1. May 1628. Mr. Speaker I Have a very short message to deliver from his Majesty that shews both his Royal care to be rightly understood of this House and no less care to understand us in the best part and to shew clearly it shall not be his fault if this be not a happy Parliament His Majesty hath commanded me to desire this House clearly to let him know whether they will rest upon his Royal word and promise made at several times and especially by my Lord Keepers Speech made in his own presence which if they do he doth assure you that it shall be royally and really performed After speaking of himself and the nature of his place under his Majesty he proceeded in these words GIve me leave freely to tell you that I know by experience that by the place I hold under his Majesty if I will discharge the duty of my place and the Oath I have taken to his Majesty I must commit and neither express the cause to the Jaylor nor to the Judges nor to any Councellour in England but to the King himself yet do not think I go without ground of reason or take this power committed to me to be unlimmitted Yea rather it is to me a charge burthen and danger for if I by this power shall commit the poorest porter if I do it not upon a just cause if it may appear the burthen will fall upon me heavier then the Law can inflict for I shall loose my credit with his Majesty and my place And I beseech you consider whether those that have been in the same place have not committed freely and not any doubt made of it nor any complaint made by the Subject Veneris 2. May 1628. A Report was this day made from the grand Committee for grievances concerning the cause of Nicholas Clegat Cittizen and Vintner of London imprisoned by the Lord Major and Aldermen of the said Citie for refusing to lend a certain summe of money assessed upon him by the Company of Vintners of London whereof he is free towards the proportion of money imposed upon the Company by an Act of Common-Councel of the said Citie in pursuance of a contract of Land with his Majesty By which report it appeared that the said grand Committee had unanimously agreed that the said Citie might make Acts of Councel so as they were consonant to Law and reason and for regulating and deciphering of trade agreeable to reason and the Law of the Realm and might leavy money of the Cittizens by Act of Common-Councel for building or repairing of their Walls Gates or making or cleansing of Sewers or other like causes tending to the general and publick good and welfare of the Citie or towards Triumphs or other like occasions tending to the Honour of the Citie in general but could not by such Act of Common-Councel tax or leavy money towards the purchasing of Lands or other like occasions forreign to the government of the Citie Whereupon it is resolved by the House of Commons super totam materiam that the said Commitment of the said Nicholas Clegat was unlawfull and that a Petition should go from the House to his Majesty for the inlargement of the said Nicholas Clegat his commitment by the Lord Major and Aldermen being since strengthned by special command Henry TOMPSON one of the Shrieffs and Robert HENISVVORTH Alderman of the Citie of YORK their submission for their indirect chusing of S r. Thomas SAVIL Knight I Henry Tompson one of the Shrieffs of the Citie of York do hereby acknowledge to have offended the Lord Major and all the Cominalty
have been imprisoned for suing ordinary Actions and Statutes at the Common-Law untill they have been constrained to leave the same against their wills and put the same to order albeit Judgement and Execution have been had therein to their great losses and griefs for the aid of which Persons her Majesties Writs have sundry times been directed to divers Persons having the custody of such Persons unlawfully imprisoned upon which Writs no good or Lawfull cause of imprisonment hath been returned or certified whereupon according to the Laws they have been again committed to Prison in secret places and not to any common ordinary Prison or Lawfull Officer as Shrieff or other lawfully authorized to have or keep a Goal so that upon Lawfull complaint made for their delivery the Queens Courts cannot learn to whom to direct her Majesties Writs and by this means Justice cannot be done and moreover divers Officers and Serjeants of London have been many times committed to Prison for Lawfull executing of her Majesties Writ sued forth of her Majesties Courts at West-minster and thereby her Majesties Subjects and Officers are so terrified that they dare not sue or execute her Majesties Laws her Writs and Commandments Divers others have been sent for by Pursevants and brought to London from their dwellings by unlawfull imprisonment have been constrained not onely to withdraw their Lawfull Suits but have also been compelled to pay the Pursevants for bringing such Persons great summes of money All which upon complaint the Judges are bound by Office and Oath to relieve and help by and according to her Majesties Laws And when it pleaseth your Lordships to will divers of us to set down in what cases a Prisoner sent to custody by her Majesty her Councel some one or other or two are to be detained in Prison and not to be delivered by her Majesties Court or Judges we thinck that if any Person be committed by her Majesties Command from her Person or by order from the Councel board or if any one or two of her Councel commit one for high Treason such Persons so in the cases before committed may not be delivered by any of her Courts without due Trial had Nevertheless the Judges may Award the Queens Writ to bring the bodies of such Persons before them and if upon return thereof the causes of their commitment be certified to the Judges as it ought to be then the Judges in the cases before ought not to deliver him but to remaund the Prisoner to the place from whence he came Which cannot conveniently be done unless notice of the cause in general or else special be known to the Keeper or Goaler that shall have the custody of such Prisoner All the Judges and Barons did subscribe their names to these Articles Termino Pascha 34. Eliz. and sent one to the Lord Chancellor and another to the Lord Treasurer after which time there did follow more quietness then before in the cause afore mentioned The KINGS Message the 2. May 1628. by Secretary COKE HIs Majesty hath commanded me to make known to this House that howsoever we proceed with the business we have in hand which he will not doubt but to be according to our constant professions and so as he may have cause to give us thanks yet his resolution is that both his royal care and his harty and true affection towards all his loving Subjects shall appear to the whole Kingdom and to all the World that he will govern us according to the Laws and Customes of the Realm that he will maintain us in the Liberties of our Persons and propriety of our goods so as we may enjoy as much happiness as our Forefathers in their best times and that he will rectifie what hath been or may be amiss amongst us so that there may be hereafter no just cause to complain wherein as his Majesty will ranck himself amongst the best of our Kings and shew he hath no intention to invade or impeach our Lawfull Liberties or Rights so he will have us to match our selves with the best Subjects by not incroaching upon that Soveraignty and Prerogative which God hath put into his hands for our good and by containing our selves within the bounds and Laws of our Forefathers without streining or inlarging them by new Explanations Interpretations Expositions or Additions in any sort which he clearly telleth us he will not give way unto That the weight of the affairs of Christendom do press him more and more and the time is now grown to that point of maturity that it cannot indure long debate or delay so as this Session of Parliament must continue no longer then Tuesday come sevenight at the furthest within which time his Majesty for his part will be ready to perform what he hath promised to us and if we be not as forward to do that is fit for us it shall be our own faults Lastly upon the assurance of our good dispatch and correspondency his Majesty declareth that his Royal intention is to have another Session at Michalmass next for the perfecting of such things as cannot now be done M r. MASONS speech 2. May 1628. I Am of opinion with the Gentleman that spake first that in our proceedings in the matter now in debate we should have use of the Title of the Statute called circumspecte agatis for it concerns the Liberty of our Persons without which we do not enjoy our lives The Question is WHether in this Bill for the explanation of Magna Charta and the rest of the Satutes we shall provide that the cause of the commitment must be expressed upon the commitment or upon the Return of the Habeas Corpus Before I speak to the question it self I shall propose some observations in my conceit necessarily conduceing to the debate of the Matter 1. That we ought to take care and to provide for posterity as our Predecessors have done for us and that this provident care cannot be expounded to be any distrust of the performance of his Majesties gracious Declaration this Act providing for perpetuity to which his Highness promise unless it were by Act of Parliament cannot extend 2. That we having long debated and solemnly resolved our Rights and Priviledges by virtue of these Statutes and if now we shall reduce those Declarations and those resolutions into an Act we must ever hereafter expect to be confined within the bounds of that Act being made at our Suit and to be the limmits of the Prerogative in in that respect and it being an Act of explanation which shall receive no further explanation then it self contains 3. That by this Act we must provide a remedy against the Persons which detain us in Prison for as to the Commander there can be no certain Concerning the Question it self IT hath been solemnly and clearly resolved by the House that the commitment of a Freeman without expressing the cause at the time of the commitment is against the Law If by this Act
and free Customes of the Realm from your Majestie or your privy Councel And where also by the Statute called the great Charter of the Liberties of England It is declared and enacted That no Freeman may be taken nor imprisoned nor be disseised of his Freehold nor Liberties nor his free Customes nor be outlawed or exiled or in any manner destroyed but by the Lawfull judgement of his Peers or by the Law of the Land And in the 28. year of the Raign of King Edw. 3. it was declared and enacted by Authority of Parliament that no man of what Estate or condition he be shall put out of his Land or Tenement nor taken nor imprisoned nor disinherited nor put to death without being brought to answer by due process of Law Nevertheless against the Tenour of the said Statutes and other the good Laws and Statutes of your Realm to that end provided divers of your Subjects have of late been imprisoned without any cause shewed and when for their deliverance they were brought before your Justices by your Majesties Writ of Habeas Corpus there to undergo and receive as the Court should order and the Keepers commanded to certefie the causes of their detainer no cause was certified but that they were detained by your Majesties special command signified by the Lords of your privy Councel and yet were returned back to several Prisons without being charged with any thing the which they might make answer to and to Law And whereas of late great Companies of Souldiers and Marriners have been dispersed into divers Countreys of the Realm and the Inhabitants against their wills have been compelled to receive them into their houses and there to suffer them to sojourn against the Laws and Customes of this Realm and to the great grievance and vexation of the people And whereas also by Authority of Parliament in the 25. E. 3. it is declared and enacted that no man shall be fore-judged of Life or Limb against the form of the great Charter and the Law of the Land and by the said great Charter and other the Laws and Statutes of this your Realm no man ought to be adjudged to death but by the Laws established in this your Realm Nevertheless of late times divers Commissions under your Majesties great Seal have issued forth by which certain Persons have been assigned and appointed Commissioners with power and Authority to proceed within the Land according to the Justice of Martial Law against such Souldiers or Marriners or other dissolute Persons joyning with them as should commit any Murther Robbery Fellony Mutiny or other outrage or misdemeanour whatsoever and by such summary course and order as is agreeable to Martial Law and is used in Armies in time of War to proceed to the trial and condemnation of such offenders and them to cause to be executed and put to death according to the Law Martial By pretext whereof some of your Majesties Subjects have been by some of the said Commissioners put to death when and where if by the Laws and Statutes of the Land they had deserved death by the same Laws and Statutes also they might and by none other ought to have been adjudged and executed And also sundry grievous offenders by colour thereof claiming and exemption have escaped the punishment due to them by the Laws and Statutes of this your Realm By reason whereof divers of your Officers and Ministers of Justice have unjustly refused or forbore to proceed against such offenders according to the same Laws and Statutes upon pretence that the said offenders were punishable onely by Martial Law and by Authority of such Commissions as aforesaid which Commissions and all other of like nature are directly contrary to the said Laws and Statutes of this your Realm They do therefore humbly pray your most Excellent Majesty that no man hereafter be compelled to make or yield any Guift Loan Benevolence Tax or such like charge without common consent by Act of Parliament And that none be called to make answer or to take such an Oath or to give attendance or to be confined or otherwise molested or disquieted concerning the same or for refusal thereof And that no Freeman may man such manner as is before mentioned be imprisoned or detained And that your Majesty would be pleased to remove the said Souldiers and Marriners and that your people may not be so burthened in time to come And that the aforesaid Commissions for proceeding by Martial Law may be revoked annulled and that hereafter no Commissions of like nature may issue forth to any Person or Persons whatsoever to be executed as aforesaid least by colour of them any your Majesties Subjects be destroyed and put to death contrarie to the Laws and Franchises of the Land All which they most humbly pray of your most Excellent Majestie as their Rights and Liberties according to the Laws and Statutes of this Realm And that your Majestie would also vouchsafe to declare that the Awards doings and proceedings to the prejudice of your people in any the premises shall not be drawn hereafter into consequence or example And that your Majestie would be pleased gratiously for the further comfort and safety of your people to declare your Royal will and pleasure that in the things aforesaid all your Officers and Ministers shall serve you according to the Laws and Statutes of this Realm as they tender the Honour of your Majestie and the prosperity of this Kingdom S r. BENJAMIN RUDDIERDS Speech Mr. Pym I Did not think to have spoken again to this Bill because I was willing to believe that the forwardness of this Committee would have prevented me but now I hold my self bound to speak and to speak in earnest In the first year of the King and the second convention I first moved for the increase and inlarging of poor Ministers liings I shewed how necessarie it was that it had been neglected this was also commended to the House by his Majestie there were as now many accusations on foot against scandalous Ministers I was bolde to tell the House that there were scandalous livings which were much the cause of the other livings of 5. Marks of 5. l. a year that men of worth and of parts would not be musled up to such pittances that there were some places in England which were scarce in Christendom where God was little better known then amongst the Indians I exampled it in the utmost skirts of the North where the prayers of the common people are more like Spells and Charms then devotions the same blindeness and ignorance is in divers parts of Wales which many of that Countrey doth both know and lament I declared also that to plant good Ministers was the strongest and surest means to establish true Religion that it would prevail more against Papistry then the making of new Laws or executing of old that it would counterwork Court Conivence and Luke-warm accommodation that though the calling of Ministers be never
shall or will at any time hereafter commit or command to Prison or otherwise restrain the Person of any for not lending money unto us or for any other cause which in our conscience doth not concern the State the publick good and safety of us and of our people we will not be drawn to pretend any cause which in our Judgements is not or is not expressed which base thought we hope no man will imagine can fall into our royal breast that in all cases of this nature which shall hereafter happen we shall upon the humble Petition of the party or access of our Judges to us readily and really express the cause of their commitment or restraint so soon as with conveniency and safety the same is fit to be disclosed and expressed That in all causes Criminal of ordinary Jurisdiction our Judges shall proceed to the deliverance and baylment of the Prisoner according to the known and ordinary rules of the Laws of this Land and according to the Statutes of Magna Charta and those other six Statutes insisted upon which we do take knowledge stand in force and which we intend not to abrogate against the true intention thereof Thus we have thought fit to signifie unto you the rather for shortning any long delayes of this question the season of the year so far advance and our great occasions of State not lending us many dayes for long continuance of this Session of Parliament Given under our Signet at our Pallace of Westminster the 12. of May in the fourth year of our Raign The KINGS Message by the Lord Keeper 21. May 1628. HIs Majestie commanded me to signifie to your Lordships that the business concerning your part presented by the Commons to the Lords concerning the Liberty of the Subject wholly depends upon your Lordships and because his affairs are pressing and that he is very suddenly to take a Journey to Portsmouth As also because his Majesty would have the business put in a good forwardness before his going thither his Majestie desires your Lordships this day to proceed to a resolution whether you will joyn with the House of Commons in the Petition or not M r. MASONS speech concerning the Addition propounded by the Lords to be added to the Petition of Right IN our Petition of Right to the Kings Majestie we mentioned the Laws and Statutes by which it appeared that no Tax Loan or the like ought to be levied by the King but by common assent in Parliament That no Freeman ought to be imprisoned but by the Law of the Land That no Freeman ought to be compelled to suffer Souldiers in his house In the Petition we have expressed the breach of these Laws and desire that we may not suffer the like all which we pray as our Rights and Liberties The Lords have proposed an addition to this Petition in these words We humbly present this Petition to your Majestie not onely with a care of our own Liberties but with a due regard to leave intyre that Soveraign power wherewith your Majesty is intrusted for the protection safety and happiness of your people and whether we shall consent unto this addition is the Subject of this dayes discourse And because my Lord Keeper at the last conference declared their Lordships had taken the words of the Petition apart The word leave in a Petition is of the same nature as saving in a grant or Act of Parliament when a Man grants but part of a thing he saves the rest when he Petitions to be restored but to part he leaveth the rest then in the end of our Petition the word leave will imply that something is to be left of that or at least with a Reverence to what we desire The word entyre is very considerable a Conquerour is bound by no Law but hath power dare leges his will is a Law and although William the Conquerour at first to make his way to the Crown of England the more easie and the possession of it the more sure claiming it by little but afterwards when there were no powerfull pretenders to the Crown The little of Conquest to introduce that absolute power of a Conquerour was claimed and that Statute of Magna Charta and other Statutes mentioned in our Petition do principally limmit that power I hope it is as Lawfull for me to cite a Jesuite as it is for Dr. Manwaring to falsifie him Suares in his first book de legibus cap. 17. delivered his opinion in these words amplitudo restrictio potestatis Regum circa ea quae per se mala vel injusta non sunt pendet ex arbitrio hominum ex ambigua convencione vel pacto inter Reges Regnum And the further expresseth his opinion that the King of Spain was so absolute a Monarch that he might Lawfully impose tribute without consent of his people untill about 200. years since when it was concluded between him and his people that without consent of his people by proxies he should not impose any Tribute And Suares opinion is that by that agreement the Kings of Spain are bound to impose no Tribute without consent And this agreement that Author calls a restraining of that Soveraign power the Statutes then mentioned in our Petition restraining that absolute power of a Conquerour if we recite those Statutes and say we have the Soveraign power intire we do not take away that restraint which is the virtue and strength of those Statutes and set at Liberty the claim of the Soveraign power of a Conquerour which is to be limitted and restrained by no Laws this may be the danger of the word entyre The next words delivered by the Lords as observable is the particle that because it was said that all Soveraign power is not mentioned to be left but onely that with which the King is trusted for our protection safety and happiness But I conceive this to be an exception of all Soveraign power for all Soveraign power in a King is for the protection safety and happiness of his people If all Soveraign power be excepted you may easily Judge the consequence all Loans and Taxes being imposed by colour of that Soveraign power The next word is trusted which is very ambiguous whether it be meant trusted by God onely as a Conquerour or by the people also as King which are to Govern also according to Laws ex pacto In this point I will not presume to adventure further onely I like it not by reason of the doubtfull exposition it admits I have likewise considered the proposition it self and therein I have fallen upon the dilemma that this addition shall be construed either to refer unto the Petition or not If it doth refer unto the Petition it is meerly useless and unnecessary and unbefitting the Judgement of this grave and great Assembly to add to a Petition of this weight If it hath reference unto it then it destroys not onely the virtue and strength of our
no meaning of barring you from what hath been your Right but in the manner to avoid all scandals on his Councel and actions past his Ministers might not be nor himself under their names taxed for their Councels and that no such particulers should be taken in hand as would ask a longer time of consideration then what he hath already prefixed and still resolves to hold that so for this time Christendom might have notice of a sweet parting between him and his people which if it falls out his Majesty will not be long from another meeting when such grievances if there be any at their leasure and convenience may be considered The KINGS speech 7 June THe answer I have already given you was made with so good deliberation and approved by the judgement of so many wise men that I could not have imagined but it should have given you full satisfaction But to avoid all ambiguous interpretations and to shew you that there is no doubleness in my meaning I am willing to please you in words as well as in substance Read your Petition and you shall have an answer I am sure will please you Then the Petition of Right was read and again the whole PARLIAMENT spake MAy it please your most Excellent Majesty The Lords spiritual and temporal and Commons in Parliament Assembled taking into their considerations that the good intelligence between your Majesty and your people doth much depend upon your Majesties answer unto their Petition of Right formerly presented with an unanimous consent unto your Majesty Do most humbly beseech your Majesty that you will be gratiously pleased to give a satisfactory answer thereunto in full Parliament Soit droit fait come est desire par le Petition Let right be done as is desired by the Petition The KING again THis I am sure is full yet no more then I granted you in my first answer for the meaning of that was to confirm all your Liberties knowing according to your own protestations that you neither mean nor can hurt my Prerogative And I assure you my Maxim is that the peoples Liberties strengthen the Kings Prerogative and the Kings Prerogative is to defend the peoples Liberties You see now how ready I have shewn my self to satisfie your demands so that I have done my part wherefore if this Parliament hath not a happy conclusion the sin is yours I am free of it The Motions of the Lower-house to the Higher 7. June 1628. THat the new granted subsedies might be expended especially upon three or four of the most necessary of those Propositions propounded by his Majesty That they thought the most necessary imployments for the subsedies were first the repairing of our new impaired Navy Royal and the decayed Sea munition Secondly the re-edifying of the breaches made in our Forts and Haven Towns Thirdly by a supply and speedy aid and assistance for Denmark And whether in these they have judged rightly or not the eminent and incroaching dangers of the present times might be a guide Also they made Declaration of the late Suits and Petitions of our Marriners having lately received from them a Bill of grievances against the Duke for defect of payment and that not of some few but the whole Company And that if herein they had not sudden redress they must be forced to right themselves upon him as they shall finde opportunity Herein the Commons did declare that they thought themselves bound in Conscience as helping the oppressed and in pollicie in preventing all such combustions to patronize and cherish them Also they thought it expedient that all such books as have been questioned in Parliament and since tollerated might after the dissolving thereof by the virtue of the former Protection pass uncontroulable and the Authors thereof without molestation In the interim that this latter Proposition was debating upon just occasion being offered S r. THOMAS WENTVVORTH delivered himself thus RIght wise Right worthy how many instigations importune the sequel of my words 1. The equity of your proceedings 2. The honnesty of my request for I behold all your intendments grounded upon discretion and goodness and your constitutions steered as well by charity as the extreamity of Justice This order I say and method of your proceedings together with the opportunity offered of the subject in hand have imboldned me to sollicit for an extention of the late granted Protections in general The Lawfulness and honnesty of the Proposition depends upon these particulers 1. The present troubles of the parties protected having run themselves into further and almost irrecoverable hazard by presuming upon and feeding themselves with the hopes of a long continuing Parliament let the second be this consequence That which is prejudicial to the most ought to administer matter of advantage to the rest Sith then our interpellations and disturbations amongst our selves are unpleasing to all most all if any benefit may be collected let it fall upon these for I think the breach of our Sessions can befriend none but such nor such neither but by means of this grant before hand And because it is profitable that his Majesty may cause a remeeting the next Michalmass let thither also reach there prescribed time for Liberty and that till then there protections shall remain in as full virtue and Authority as if the Parliament were actually sitting This Speech at the first bred some distaste but afterwards seriously weighing the premises they easily and at last generally condiscended and so it is this day preferred to the Higher House The KINGS Message to the Lower House by S r. HUMFREY MAY 10. of June 1628. HIs Majesty is well pleased that your return of Right and his answer be not onely recorded in both Houses of Parliament but also in all the Courts of Westminster And that his pleasure is it be put in print for his Honour and the content and satisfaction of his people and that you proceed cheerfully to settle businesses for the good and reformation of the Common-wealth Eeight particulars all voted in the House of Commons 11. June 1628. THe excessive power of the Duke of Buckingham and the abuse thereof is the chief and principal Cause of all the mischiefs that have happened to the King and Kingdom 1. Innovation of Religion 2. Innovation of Government 3. Disasters of designs abroad 4. Not guarding of the Narrow Seas 5. Not guarding the Forts 6. The decay of Trade 7. The decay of Shipping 8. The want of Munition The first Remonstrance Most dread Soveraign AS with all Humble thankfulness we your dutifull Commons now in Parliament Assembled do acknowledge the great comfort we have had in the assurance of your Majesties pious and gracious disposition So we think it our most necessary duty being called by your Majesty to consult and advise of the great and urgent affairs of this Church and Common-wealth And findeing them at this time in apparent danger of ruine and destruction faithfully and dutifully to enform your
desires and future hopes and howsoever I find the misinterpretation of some and the danger of Religion yet I find his Majesties ears open and if these things be thus as we see that then he is not rightly counselled I am confident we shall render his Majesty an account of what he expecteth but Sir I apprehend a difference between his Majesties expression and the expression of his Ministers First Sir that Bill was here tendered in his Majesties name and now we find his Majesty disavows it that he did it not What wrong is this done to his Majesty and to this House to press things in his Soveraigns name to the prejudice and distraction of us all I think him not worthy to sit in this House Mr. Speaker THis Honorable person did explain himself that he did not press it in his Majesties name but onely did commend it to your considerations Secretary Cook I Said that in regard of the difference between his Majestie and his Subjects my desire was to accommodate it Sir Humfrey May IF ye be too quick to except against the ministers of his Majestie that serve his Majestie and this House it will discourage and stop our mouthes whose service ye dayly commend At the Committee for Religion Sir Iohn Elliot FOr the way of our proceedings to shew the weight and unitie thereof to all the world we have laid a good foundation I collect out of the particulars about the Article of Lambeth that the difference was in the manner of the use of them but all did profess the truth and worth of them at which unitie in all our hearts we may all rejoyce whereas the enemie abroad gives out that we are at faction amongst our selves whereas all of us took them granted not onely to make use of them to oppose our adversaries but also for the worth of them Let us boldly relie on the ground alreadie laid let us look to them that offended us in this our truth which I hope we shall live and die in if there be cause Are there Arminians for so they are called look to this see what degree they creep let us observe their Books and Sermons let us strike at them and make our charge at them and vindicate our truth that seems yet obscure and if any justifie themselves in their new opinions let us deal with them and then testimonie will be needfull our truth is clear our proofs will be many and if these parties will dare to defend themselves then seek for proof The Remonstrance of the last Parliament was read in part about Arminians and also his Majesties Declaration printed with the book of Articles and the Proclamation against Mountagne Wednesday Febr. 4. A Bill preferred that no Clergie-man shall be in Commission for Peace except Bishops Deans Vice-Chancellors of both Universities c. within their severall jurisdictions Doctor Reeves which sat as Judge upon the Conservation of Mr. Mountague called in and examined saith That Objections were offered Ore tenus and after offered in writing but he rejected the same because they had not an advocates hand and upon the whole saith he durst neither admit of any objections for the present nor give time for the same upon pain of premunire by the Statute Doctor Talbot and Doctor Steward are assigned for Councel with Mr. Iones the Printer in his Cause Mr. Selden THe point considerable is not whether Doctor Reeves hath done well or ill for he did but as any discreet man would have done but the point is now whether Mr. Mountague be a lawfull Bishop or no. Neither is the question to be debated whether the exceptions be lawfull or no but being legal of what force they be to hinder the confirmation of the Bishop All which is agreed and Doctor Reeves for the present discharged A Petition is preferred by Thomas Ogle against Doctor Cosens with Articles annexed thereunto tending to the introducing of Popish Doctrine and Popish Ceremonies into the Cathedral Church at Durham Sir Euball Thelwall THere were two affidavits that Cosens should say That the King had no more to do with Religion than his Horse-keeper and that by the appointment of Mr. Attorney these affidavits were taken and he said to the end a Bill in Star-chamber might be filed against him But since Cosens hath his pardon and the King was told it was onely raised by the spleen of some Puritane Mr. Shervile DEsired that search might be made for the pardons There were four pardons under the Great Seal granted to Mountague Sibthorpe Cosens and Manwering it pardons all Treasons Premunires Errors erronious Opinions and all false Doctrines scandalous Speeches or Books and all offences by word and deed all corrupt contracts c. Treason to the person of the King and Witchcraft onely excepted Mr. Rousse HEre are four persons that have made the Common-wealth sick thus by the Phisick you see the Diseases but I conceive there is other physick to be ministered to those rotten Members for questionless this is not to be cured but by cutting off those Members Mr. Kirton MAster Kirton moved that the procurers of these Pardons might be enquired after that it might be seen who gave order to the Signet for the going forth of those Pardons for questionless there are Cosens at Court too Sir Robert Philips IF ever any was abused it was our King in granting those pardons we would save the time of doing any thing if this be not searched to the bottom The goodness of our King is much abused I desire the Attorney may give account by what Warrant he drew these pardons so shall we find out those that misled the King to the heart-grief of us all It is high time to find out all these things A Committee was hereupon named to enquire who have been the Solicitors and Procurers of these pardons Sir Edward Giles I Know not what prevention may happen in these for questionless the devil of hell hath his hand in it Therefore presently let us send for Mr. Attorney Which was Ordered Sir Iames Perotte SIr Iames Perotte complaineth further of some instruments of the Bishop of London and Doctor Turner who denied the License of printing the Articles of Ireland That diverse books have been licensed by the Bishop of Londons Chapplains and then refuse the same declaring they are of a contrary opinion and haven given license to Mr. Chomley and Mr. Butterfield and therefore would not give license to these Mr. Pym MAster Pym doth make a full Report of all the proceedings against Mr. Mountague since the last Parliament of King Iames. Sir Robert Phillips REported from Mr. Attorney that my Lord of Dorset spoke to him to hasten the Pardons and that he received a Warrant from the King for drawing them that my Lord Carleton brought another Warrant from the King for drawing these pardons telling him that he must make expedition therein and he must draw the same as the Councel of the parties did direct the same
I conceive it is plain the King and the Law have power to deprive him of his Bishopprick if he deserves the same I think therefore it were good to decline this dispute for the present and to proceed to remove him which we are allowed Tuseday 10. A Bill for Ordering the Government and Plantation of the Summer Islands A Bill to restrain some abuses in Ministers and Magistrates Mr. Rowles complaineth that since his last complaint of the breach of the liberties of this House his Ware-house hath been locked up by one Massey a Pursevant and that yesterday he was called forth from the Committee in the Exchequer-chamber and served with a Subpena to appear in Star-chamber but that since he received a Letter from Mr. Attorney that it was a mistake The Subpena was read but the Letter not suffered to be read Sir Robert Phillips YOu see we are made the Subject of scorn and contempt I conceive this to be a bone thrown by those that have drawn a cloud over our sun our Religion to divert or interrupt us in the prosecution of them I desire the Messenger may be sent for and examined by what procurement this Subpena was taken forth for if we find not out those that throw these scorns upon us it is in vain to sit here Mr. Chancellor of the Dutchie THis proceeds from some great error for I will assure you this never proceeded from King nor Councel I therefore desire it may be searched to the bottom for be confident neither King nor Councel have cast in this as a bone Mr. Selden THis is not to be reckoned an Error for questionless this is to affront us and our own Liberties is the cause of this It is Ordered that Shemington the Messenger that served the Subpena be presently sent for to the House A Committee of six are appointed to see the information in Star-chamber and to examin the same and by whom the same was put in and they have power to send for persons or records that may inform them A general Order agreed on That all the Committees that have power to send for parties shall have power to command any of them as they shall think fit to attend the House at such times as they shall think fit The priviledge of the Merchants that are Planters here may be taken into consideration by this Committee concerning the information in Star-chamber Sheriff Acton called into the Barre as a Delinquent upon his knees saith if he have erred it is through want of memorie and ignorance for he intended not the least dislike or distaste to any Member of the House Mr. Long moved he might be sent to the Tower Sir Francis Seymour THat he may now be referred back to the Committee to be re-examined if then he deal not clearly this House may proceed to further punishment Mr. Selden I Cannot remember when we did commit a Sheriff of London but I remember when the House did commit both the Sheriffs of London to the Tower for an abuse of less nature onely for countenancing of a Serjeant in an Arrest on a Member of Parliament though they did acknowledge their faults at the Barre which this man hath not yet done the Serjeant was sent to Little-ease the person at whose suit he was Arrested was committed to the Fleet and both the Sheriffs to the Tower Mr. Kirton I Came into this House with as good an heart to this man as any man for I was spoken to to stand for him as I came in and I promised to do what favour I could but if he were my brother he should to the Tower Mr. Littleton YOu see the affronts by books by preaching by rumors by being dayly sued with Proces that are put upon us that we are become but a meer Scare-crow the neglect of our dutie is the cause of this it is high time to remedie this or it is in vain to sit here The Sheriff is again called in to the Barre on his knees and is sentenced to the Tower Sir Ben. Ruddiard THere be diverse Recantations Submissions and Sentences remaining on Record in both Universities against Arminianisme that concerning any thing that may conduce to our end the Speakers Letter may be sent to the Vicechancellor for those Records which is Ordered It is Ordered that Worsnam Daws and Garmarthen are to be at the Barre upon Fryday Wednesday 11. MAster Selden reported concerning the Process of the Merchants the Coppie of the Bill brought in and read that the Merchants did Plot Practice and Combine together against the peace of the Kingdom This being conceived to be a business incident to Tonnage and Poundage is Ordered to be referred till to Morrow morning Mr. Selden THat a Report shall be made to morrow of the Examination of the Complaints of the Merchants and the information in the Exchequer may also be brought which was also Ordered Ordered That in respect the Term ends to Morrow and the Assizes is to follow and diverse Members Lawyers may be gone down it is Ordered that none shall be gone without leave of the House It is alsu Ordered That the Speakers Letter be sent for Sir Edward Cook At the Committee for Religion MAster Walter delivered a Petition of the Book-sellers and Printers in complaint of the restraint of books written against Poperie and Arminianisme and the contrarie allowed of by the onely means of the Bishop of London that diverse of them have been so Pursevanted for printing of Orthodox books that the licensing of books is now onely restrained to the Bishop of London and his Chaplains One of the Printers said he tendred diverse books one called The golden Spur to the heavenly Race That Turner one of the Bishop of Londons Chaplains said That if he would put out the point That a man may be certain of his Salvation he would license the same notwithstanding he put out that point yet he could not get the same licensed Mr. Selden The refusing the Licensing of books is no crime but the Licensing of bad books is a crime or the refusing to license books because then writ against Poperie or Arminianisme is a crime There is no Law to prevent the printing of any book in England onely a Decree in Star-chamber therefore that a man should be sued and imprisoned and his goods taken from him is a great Invasion on the Libertie of the Subject moveth a Law to be made upon this This is referred to a select Committee to examin Mr. Shervile REported concerning the Pardons that they have examined Doctor Sibthorp and Cosens Pardons Sibthorp solicited his own Pardon and said he would get the Bishop of Winchester to get the Kings hand to it It is evident that the Bishop of Winchester got the Kings hand to Sibthorp and Cosens Pardons and also Mountagues Pardon was promised by him That Doctor Manwering solicited his own Pardon and the Bishop of Winchester got the Kings hand to it It is likewise said