Common-wealth and certainly there never was a time in which this duty was more necessarily required then now I therefore judging of a Parliament to be the antient speediest best way in this time of common Danger to give such supply as to secure our selves and to save our Friends from imminent ruine have called you together Every man must do according to his conscience Wherefore if you which God forbid should not doe your duties in contributing what the State at this time needs I must in discharge of my conscience use those other meanes which God hath put into my hands to save that which the follies of particular men may hazard to loose Take not this as a threatning for I scorn to threaten any but my equals but an admonition from him that both out of nature and dutie have most care of your preservations and prosperities and though I thus speak I hope that your endeavours at this time will be such as shall not onely make me approve your former Counsels but lay on me such obligations as shall binde me by way of thankfulness to meet often for be assured that nothing can be more pleasing to me then to keep a good correspondence with you I will onely adde one thing more and then leave my Lord Keeper to make a short paraphrase upon the Text I have delivered you which is to remember a thing to the end we may forget it You may imagine that I came here with a doubt of success of what I desire remembring the distractions at the last meeting but I assure you that I shall very easily and gladly forget and forgive what is past so that you will at this present time leave the former waies of distractions and follow the counsell late given you to maintain the unity of the Spirit in the bond of Peace The Lord Keeper Coventry's Speech 17. March 1627. My Lords and you the Knights Citizens and Burgesses of the House of Commons IF I had been delighted in long speaking yet the example and commandment of his Majestie hath been more then enough to refraine the super fluitie of that humour but here is yet more For that short and excellent compacted Speech which you have heard from his Majestie begins with a reason It is a time for action and not for speech Examples and Command master the VVill and Reason the Understanding and therefore you may expect nothing from me but brevity You have heard the matter already and I doubt not but with reverence as the weight and authority requires you have imprinted it in your mindes and the matter being known long speeches from me were but babling to beat the aire Yee are here in Parliament by his Majesties writ and royall command to consult and conclude of the weightie and urgent businesse of this Kingdome VVeighty it is and great as great as the honour safety and protection of Religion King and Country and what can be greater Urgent it is It is little pleasure to tell or think how urgent and to tell it with circumstances were a long work I will but touch the summe of it in few words The Pope and House of Austria have long affected the one a Spiritual the other a Temporal Monarchie and to effect their ends to serve each others turn the House of Austria besides the rich and vast Territories of both the Indies and in Africa joined together are become Masters of Spain and Italy and the great country of Germany And although France be not under their subjection yet they have endeavoured all about him the very bowells of the Kingdome swaied by the Popish faction they have gotten such a part and such interest in the Government that under pretence of Religion to root out the Protestants and our Religion they have drawn the King to their adherence so farre that albeit upon his Majesties interposition by his Ambassadours and his engagement of his royall word there was between the King and his Subjects Articles of agreement and the Subjects were quiet whereby his Majestie interessed in that great Treaty was bound to see a true accomplishment yet against that strict alliance that Treaty hath been broken and those of the Religion have been put to all extremity and undoubtedly will be ruinated without present help so as that King is not onely diverted from assisting the common Cause but hath been misled to engage himself in hostile acts against our King or other Princes making way thereby for the House of Austria to the ruine of his own and other Kingdomes Other Potentates that in former times did ballance and interrupt the growing greatnesse of the House of Austria are now removed and diverted The Turk hath made peace with the Emperour and turned himself wholly into warrs with Asia the King of Sweden is embroiled in a warre with Poland which is invented by Spanish practices to keep that King from succouring our part the King of Denmark is chased out of his Kingdome on this and on that side the Sound so as the house of Austria is on the point to command all the Sea-coasts from Dantzick to Emden and all the Rivers falling into the Sea in that great extent so as besides their power by Land they beginne to threaten our part by Sea to the subversion of all our State In the Baltique Sea they are providing and arming all the ships they can build or hire and have at this time their Ambassadours threatning at Lubeck to draw into their service the Hans-Townes whereby taking from us and our neighbours the East-land trade by which our Shipping is supplied they expect without any blow given to make themselves masters of the Sea In those Western parts by the Dunkerkers and by the now French and Spanish Admirall to the ruine of Fishing of infinite consequence both to us and the Low Countries they infest all our coast so as wee passe not safely from port to port And that Fleet which lately assisted the French at the Isle of Ree is now preparing at St. Andrea with other ships built in the coast of Biscai to re-inforce it and a greater Fleet is making ready at Lisbon where besides their own they do serve themselves upon all strangers bottoms coming to that coast for trade And these great preparations are no doubt to assault us in England or Ireland as they shall finde advantage and a place fit for their turn Our friends of the Netherlands besides the feare that justly troubles them lest the whole force of the Emperour may fall down upon them are distracted by their Voyages into the East which hath carried both men and money into another world and almost divided them at home Thus are we even ready on all sides to be swallowed up the Emperour France and Spain being in open warr against us Germany over-run the King of Denmark distressed the King of Sweden diverted and the Low-Countrey men disabled to give us assistance I speak not this to increase fear unworthy of English
courages but to presse to provision worthy the wisdome of a Parliament And for that cause his Majestie hath called you 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 sinewes and if a sinew 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 weâ—le 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 attempâ— 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 Successe 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 aud priviledge have lately proceeded to the choice of a Speaker and whether fequestring 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
Crown and People neither over-shadowing the one or oppressing the other Before your Throne like the twelve Lyons under Solomon's Throne sit the Lights of Justice your grave Iudges and Sages of the Law learned and just as many Ages have known and learning justice by your example Our Lawes as excellent as they are I am sure no humane Lawes excell them nor could so well suite with the constitution of this People were they in the power of corrupt or ignorant men I know not which were worse for one will perhaps oftner erre then the other bribe Justice could never keep her right chanel nor runne cleare as in your Majestie 's reigne it ever hath I must not forget the other Lights the Knights Citizens and Burgesses the Representative of their Estate who although they move lower and at more distance from your royall Person yet I am confident will ever be found constant to the Poles of Love and Loyaltie 'T is a gracious Favour of your Majestie and our former Kings I have often thought on that when both these Houses are humble suitors for any thing they are never denyed Le Roy s' aviserà The King will advise of it is the greatest denyall And I assure my self your Majestie shall finde all your Subjects so full of dutie to your Crown and of true and loyall affection to your royall Person that you shall never have cause to think your gracious Favours ill bestowed on them The Union of Hearts Sir is a greatnesse beyond that of the Kingdome to which you are Heire Et penitus toto divisos orbe Britannos it is a Name of advantage to this Island if the Division be not amongst our selves which the God of Unitie for his mercies sake forbid and so knit our Hearts in love one to another and all of us in duty and loyalty to your most excellent Majestie that this renowned Island perish not by our Distractions but may ever flourish and be like Ierusalem the Citie of God where his Name may â—e for ever honoured Great and glorious have been the Actions of your royal Predecessours yet greater remaine for your Majestie and most of theirs attend you for their perfection The first Christian King of Europe the first that abated the swelling pride of Rome by banishing his usurped power and God's true Vice-gerent the first that established the true Religion now profest were all Kings of England and the last a young one Queen Elizabeth was a woman yet Spaine hath cause to remember her the Protestants of France and the Low-Countries will never forget her And were Henry the Great alive he would say That in requitall of the love of this Kingdome shewed him he hath sent us one of his owne Loynes your royall Consort our most gracious Queen to propagate these blessings to us and our posteritie for ever Your royall Father of ever blessed and famous memorie had a Reigne like Solomon's for Religion no man knew more a lustre or advantage to him this Age shall deliver it to the next and all Ages shall see it in his Kingly Workes But while under his glorious Reigne we abode in peace and plenty our hands had forgot to warre and our fingers to fight till at last by your Princely mediation upon the humble suite of both these Houses the two Treaties were dissolved and a foundation laid for your Majestie to restore us to our antient and Military honour which I doubt not will quickly be Eritis sicut Dii was the Serpent's Counsell and ruined Mankinde nor is it fit for private men much lesse for me to search into the Counsells or Actions of Kings Onely Sir give me leave from an heart full of zeale to your glorie and greatnesse to say to your Majestie the Times require you Religion calls upon you to goe on with that Kingly Courage you have begunne till the state of Christendome be settled in the right Balance again We see how the Eagle spreads his wings in Germany reaching with his talons as farre as the Sound and Baltick sea Denmark and Sweden in danger of utter ruine by seizing the Electorates the choice of the Empire invested in a manner solely in the House of Austria Our Religion in France and every where never so neare a period And we know who it is for whom all this works he of whom the boast is made Allà qui Monarâ—ui nasciendo d'el monendo who by the ruine of us and our Religion will make a new Zodiack and draw an Ecliptick line through the East and West Indies But he that sits on high will in his good time laugh them to scorne and as that wise Woman said to King David God will make to my Lord the King a sure house if my Lord shall continue to fight the battels of Iehovah and let all England say Amen I have presumed too farre upon your royall Patience and therefore I will conclude with a few words for them that sent me who are humble suitours to your excellent Majestie First for our better attending the publick and important services that our selves and our necessary Attendants may be free both in our persons and goods from all arrests and troubles according to our ancient priviledge and immunities Next that since that in all great Councells where difference of opinion is truth is best discovered by free debates your Majestie according to our like ancient use and priviledge will be graciously pleased to allow us liberty and freedome of speech and I assure my self we shall not passe the latitude of duty and discretion That upon all occurrences of moment fit for resort to your owne person your Majestie upon humble suit at your best leisure will vouchsafe us accesse to your royall person And lastly that all our proceedings being lodged in your royall heart with belief of our zeal and loyalty we may reap the fruits of it by your Majestie 's gracious and favourable interpretation One word more I humbly begg for my self That though it be the beginning of a Parliament I may now and ever enjoy your Majestie 's most gracious and generall free Pardon The Lord Keeper Coventry's second Reply M r. Speaker HIs Majestie with no lesse content then attention hath heard your learned Discourse he observes your beginning with his gracious incouragement and advice not forsaking your humble modestie but adding to it thankfulnesse alacrity and joy of heart a just and right temper He observes you derive these aright first from the Throne in heaven he lookes thither with you and joynes in prayer that both you and all this Assemblie by that Divine hand and power be moulded and procured for the honour safety and good of the Church and Kingdome Next you apply your self to the Throne on earth his Majestie doth graciously accept your protestations of the truth of your heart the fulnesse of your zeale and duty to his Majestie and the Publick he believes it and that not in you alone but in all this
he doth willingly give way to have the abuse of power reformed by which I do verily believe that he doth very well understand what a miserable power it is which hath produced so much weakness to himself and to the Kingdom and it is our happiness that he is so foreward to redress it For my own part I shall be very glad to see that good old decrepit Law of Magna Charta which hath so long kept in and lain as it were bedrid I should be glad I say to see it walk abroad again with new vigour and lustre attended by the other six Statutes questionless it will be a general hartning to all the People I doubt not but by a debating conference with the Lords we shall happily fall upon a fair and fit accommodation concerning the Liberty of our Persons and propriety of our goods I hope we have a Bill to agree in the point against imprisonment for Loanes or privy Seals as for intrincical power and reason of State they are matters in the clouds where I desire we may leave them and not meddle in them at all least by way of admittance we may loose somewhat of that which is our own already Yet this by the way I will say of reason of State that in the latitude as it is used it hath eaten out almost not onely all the Laws but all the Religion of Christendom Now M r. Speaker I will onely remember you of one precept and that of the wisest Man Be not overwise be not over just and he cited his reason for why wile thou be desolate Sir if Justice and Wisedom may be stretcht to desolation let us thereby learn that moderation is the virtue of virtues and the wisedom of wisedomes Let it be our Master-piece so to carry our business as we may keep Parliaments on foot for as long as they are frequent there will be no irregular power which though it cannot be broken at once yet in short time it will fade and moulter away there can be no total and final loss of Liberty but by loss of Parliaments as long as they last what we cannot get at one time we may have at another Let no man think that what I have said is the language of a private end my aim is upon the good success of the whole for I thank God my minde stands above any fortune that is to be gotten by base and unworthy means No man is bound to be rich or great no nor to be wise but every man is bound to be honnest out of which heart I have spoken The Lord KEEPERS speech 28. April 1628. MY Lords Knights and Burgesses of the House of Commons I cannot but remember the great and important affairs concerning the safety both of State and Religion declared at first from his own mouth to be the cause of assembling this Parliament the fear whereof as it doth dayly increase with his Majesty so it ought to do and his Majesty doubts not but it doth so with you since the danger encreaseth every day both by effluction of time and preparation of the enemy Yet his Majesty doth well weigh that this expence of time hath been occasion by the debate that hath risen in both Houses touching the Liberty of both Subjects in which as his Majesty takes in good part the purpose and intent of the Houses so clearly and frequently professed that they would not deminish nor blemish his Royal and just Prerogative so he presumes ye will all confess it a point of extraordinary grace and Justice in him to suffer it to rest so long in dispute without interruption But now his Majesty considering the length of time which it hath already taken and fearing nothing so much any future loss as that whereof every hour and minute is so precious and foreseeing that ordinary way of debate though never so carefull must in regard of the forms of both Houses necessarily take up more time then the affairs of Christendom can permit his Majesty out of his great and Princely care hath thought it expedient to shorten the business by declaring the clearness of his own heart and intention And therefore he hath commanded me to let you know that he holds the Statute of Magna Charta and the other 6. Statutes insisted on for the Subjects Liberty to be all in force and assureth you that he will maintain all his Subjects in the just freedom of their Persons and in safety of their estates and that he will Govern according to the Laws and Staâ—â—tes of the Realm and that you shall finde as much security in his Majesties Royal word and promise as in the strength of any Law you can make so that hereafter you shall never have cause to complain The conclusion is this that his Majesty prayeth that God who hath hitherto blessed this Kingdom and hath put into his heart this day to come unto you will make the success hereof happy both to King and People And therefore he desireth that no doubt or mistrust may possesse any man but that you all will proceed speedily and unanimously with the business The Bishop of EXCETERS Letter sent to the House of COMMONS 28. April 1628. Gentlemen FOr God sake be wise in your well meant Zeal why do you argue away precious time that can never be revoked or repaired Woe is me while we dispute our friends perish and we must follow them where are we if we break and I tremble to think we cannot but break if we hold so stiff Our Liberties and proprieties are sufficiently declared to be sure and legal our remedies are clear and irrefragable what do we fear every Subject sees the way now chalked out for future Justice and who dares henceforth tread besides itâ— Certainly whilest Parliaments live we need not misdoubt the violations of our Freedoms and Rights May we be but where the Law found us we shall sufficiently enjoy our selves and ours It is no season to search for more Oh let us not whilest we over-rigedly plead for an higher strain of safety put our selves into a necessity of ruine and utter despair of redress Let us not in the suspition of Evils that may be cast our selves into a present confusion If you love your selves and your Countrey remit some thing of your own terms and since the substance is yielded by your Noble Patriots stand not too rigorously upon points of circumstance Fear not to trust a good King who after the strict Laws made must be trusted with the execution Think that your Countrey nay Christendom lies on the mercie of your present resolutions Relent or farewell welfare From him whose faithfull heart bleeds in a vowed sacrifice for his King and Countrey EXCETER M r. HACK VVELL of LINCOLNS-INNE his Speech in the Lower-House 1. May 1628. SIR I Chose rather to discover my weakness by speaking then to betray my conscience by silence My opinion is that we shall do well totally to omit our resolution out of
Treason the King shall not have this Jewell if he payes not the ten pound So if Cattel be distreined and the owner of them afterwards be attainted yet the King shall not have them untill he have satisfied that for which they were distreined And if in these Cases where the owners of the goods are such capitall offendours the King cannot have them much lesse shall he have them when the owner is innocent and no offendour Nay I may well say that almost every leaf and page of all the volumes of our Common Law prove this right of propriety this distinction of meum and tuum aswell between King and Subject as one Subject and another and therefore my Conclusion follows that if the Prerogative extend not neither to Lands nor to Goods then à fortiori not to the Person which is more worth then either lands or goods as I said And yet I agree that by the very law of Nature service of the Person of the Subject is due to his Soveraigne but this must be in such things which are not against the law of Nature but to have the body imprisoned without any cause declared and so to become in bondage I am sure is contrary unto and against the law of Nature and therefore not to be inforced by the Soveraigne upon his Subjects 3. My next reason is drawn ab inuâ—ili incommodo For the Statute de frangentibus prisonam made 1 E. 2. is quod nullus qui prisonam fregerit subeat judicium vitae vel membrorum pro fractione prisonae tantum nisi causa pro qua captus imprisonetur tale Iudicium requirat Whence this Conclusion is clearly gathered That if a man be committed to prison without declaring what cause and then if either Malefactour do break the prison or the Gaoler suffer him to escape albeit the prisoner so escaping had committed Crimen laesae majestatis yet neither the Gaoler nor any other that procured his escape by the Law suffer any corporall punishment for setting him at large which if admitted might prove in consequence a matter of great danger to the Common-wealth 4. My next reason is drawn ab Regis honore from that great honour the Law doth attribute unto soveraigne Majesty and therefore the Rule of Law is that Solum Rex hoc non potest facere quod non potest juste agere And therefore if a Subject hath the donation and the King the presentation to a Church whereunto the King presents without the Subjects nomination here the quare impedit lies against the Incumbent and the King is in Law no disturber And Hussey chief Justice in 1 H. 7. fol. 4. saith that Sir Iohn Markâ—am told King Edw. 4. he could not arrest a man either for treason or fellony as a Subject might because that if the King did wrong the party could not have his Action against him What is the reason that an Action of false imprisonment lies against the Sheriff if he doth not return the Kings Writ by which he hath taken the body of the Subject but this because the Writ doth breviter enarrare causam eaptionis which if it doth not it shall abate and is void in Law and being returned the party when he appears may know what to answer and the Court upon what to judge And if the Kings Writ under his great Seal cannot imprison the Subject unlesse it contains the cause shall then the Kings warrant otherwise doe it without containing the cause that his Judges upon return thereof may likewise judge of the same either to remain or judge the partie imprisoned I should argue this point more closely upon the statute of Magna Charta 29. quod nullus liber homo imprisonetur the statute of West 1. cap. 15. for letting persons to bail and the Judgements lately given in the Kings Bench but the later of these statutes referring having been by that honourable Gent. to whom the Professours of the Law both in this and all succeding ages are and will be much bound already expounded unto us and that also fortified by those many contemporary Expositions and Judgements by him learnedly cited and there being many learned Lawyers here whose time I will not waste who were present and some of them perhaps of councell in the late Cause adjudged in the Kings Bench where you to whose person I now speak do well know I was absent being then of councel in a cause in another Court and my practice being in the Country farre remote from the treasure of Antiquity and Records conducing to the clearing of this point Therefore the narrowness of my understanding commends unto me sober ignorance rather then presumptuous knowledge and also commands me no further to trouble your Patience But I will conclude with that which I find reported of Sir Iohn Davis who was the Kings Serjeant and so by the duty of his place would no doubt maintain to his uttermost the Prerogatives of the King his royall Master and yet it was by him thus said in those Reports of his upon the case of Tavistry Customs That the Kings of England alwayes have had a Monarchy Royall and not a Monarchy Seignorall where under the first saith he the Subjects are Free-men and have propriety in their goods and free-hold and inheritance in their Lands but under the later they are as Villains and Slaves and have proprietie in nothing And therefore saith he when a Royall Monarch makes a new Conquest yet if he receives any of his Nations ancient Inhabitants into his protection they and their heirs after them shall enjoy their Lands and Liberties according to the Law And there he voucheth this President and Judgement following given before William the Conquerour himself viz. That one Sherborn at the time of the Conquest being owner of a Castle and lands in Norfolk the Conquerour gave the same to one Warren a Norman and Sherborn dying the Heir clayming the same by descent according to the Law it was before the Conquerour himself adjudged for the Heir and that the gift thereof by the Conquerour was void If then it were thus in the Conquerour's time by his own sentence and judgement and hath so continued in all the successions of our Kings ever since what doubt need we have but that his most excellent Majestie upon our humble petition prostrated at his feet which as was well said is the best passage to his heart will vouchsafe unto us our ancient Liberties and Birthrights with a through reformation of this and other just grievances And so I humbly crave pardon of this honourable House that I have made a short Lesson long Sir Benjamin Ruddier's Speech March 22. 1627. Mr. Speaker OF the mischiefs that have lately fallen upon us by the late distractions here is every man sensible and that may ensue the like which God forbid we may easily see and too late repent The eyes of Christendome are upon us and as we speed here so go the Fortunes of
hearts and affections loyally and religiously devoted to God and your Majesties service and to the safety of your Majesties Sacred Person we most zealously present to your Princely Wisdome craving your Majesties chearful and gracious approbation The King's Answer to the Petition against Recusants March 31. 1628. My Lords and Gentlemen I Do very well approve the method of your proceeding à Jove principium hoping that the rest of your Consultations will succeed the happier And I like the preamble of my Lord Keeper otherwise I should a little have suspected that you thought me not so carefull of Religion as I have been and ever shall be wherein I am as forward as you can desire As for the Petition I answere first in generall that I like it well and will use those as well as all other means for the maintenance and propagation of that Religion wherein I have lived and doe resolve to die But for the particulars you shall receive a more full answer hereafter And now I will only add this that as we pray to God to help us so we must help our selves for we can have no assurance of his assistance if we do ly in bed and only pray without using other means And therefore I must remember you that if we do not make provision speedily we shall not be able to put one Ship to sea this year Verbum sapienti satis est The Answer to the same Petition by the Lord Keeper Coventrey TO the first point his Majesty answereth That he will accoreding to your desire give both life and motion to the Laws that stand in force against Iesuits Seminary Priests and all that have taken Orders by authority of the Sea of Rome and to that end his Majesty will give strict order to all his Ministers for the discovering and apprehending of them and so leave them being apprehended to the triall of the Law and in case after tryall there shall be cause to respite the execution of any of them yet they shall be committed according to the example of best times to the Castle of Westbitch and there be safely kept from exercising their functions or spreading their Superstitious and dangerous Doctrine and for the receivers and abettors they shall be left to the Law To the second His Majesty granteth all that is desired in this Article and to this end will give order to the Lord Treasurer Lord high Admirall and Lord Warden of the Cinque Ports that in their severall places they be carefull to see this Article fully executed giving strict charge to all such as have place or authority under them to use all diligence herein and his Majesty requireth them and all other his Officers and Ministers to have a vigilant eye upon such as dwell in dangerous places of advantage or opportunity for receiving or transporting any such as are here mentioned and his Majesty will take it for good service if any will give knowledge of such as have connived or combined or shall connive or combine as is mentioned in this Article that Justice may be strictly done upon them To the third His Majesty will take order to restrain the recourse of Recusants to the Court and also for the other points of this Article his Majesty is well pleased that the Laws be duly executed and that all unlawfull Licenses be annulled and discharged To the fourth His Majesty is most willing to punish for the time past and prevent for the future any the deceits and abuses mentioned in this Article and will account it a good service in any that will inform himself his Privy Councell Officers of his Revenue Judges or Councell learned of any thing that may reveal this Mystery of Iniquity and his Majesty doth strictly charge and command every of them to whom such information is made that they suffer not the same to die but do their utmost endeavour to effect a clear discovery and bring the Offenders to punishment and to the intent that no concealed toleration may be effected his Majesty leaveth the Lawes to their course To the fifth His Majesty is pleased to prohibite and restrain the coming and resort to the house of Ambassadours and will command a vigilant watch to be set for their taking and punishing as is desired To the sixth He is perswaded that this Article is already observed with good care neverthelesse for the avoyding as much as may be errours and escapes in that â—ind his Majesty will give order to the Lord Keeper that the next Terme he call unto him all the Judges and take information from them of the state of their severall Circuits if any such as are mentioned in this Article be in the Commission for Peace that reformation may be made thereof and will likewise give order to the Lord Admirall and to such persons to whom it shall appertain to make diligent enquiry and certifie to his Majesty if any such be in place of authority and command in his ships or service To the seventh His Majesty doth fully grant it To the eighth His Majesty doth well approve it as a matter of necessary consideration and the Parliament now sitting he recommendeth to both Houses the preparation of a fitting Law to that effect and his Majesty doth further declare that the mildnesse that hath been used towards them of the Popish Religion hath been upon hope that forraign Princes thereby might be induced to use moderation towards their Subjects of the Reformed Religion but not finding that good effect which was expected his Majesty resolveth unlesse he shall very speedily see better fruit to adde a further degree of severity to that which is in this Petition desired Sir Edward Coke's Speech March 25. upon a Question of Law in point of the Iudgement given in the Kings Bench Mich. 3. Caroli Viz. That a Prisoner detained by Committment per special mandat Regis without expressing a Cause is not bailable wherein he held negatively and spake as followeth IT is true that the Kings Prerogative is a part of the Law of this Kingdome and a supream part for the Prerogative is highly tendred and respected of the Law yet it hath bounds set unto it by the Laws of England But some worthy Members of this House have spoken of forraign States which I conceive to be a forraign Speech and not able to weaken the Side I shall maintain That Master Attorney may have something to answer unto I will speak without taking another day to the body of the Cause yet keeping something in store for another time I have not my Vade mecum here yet I will endeavour to recite my Ancestours truly I shall begin with old Authority for Errorem ad sua principia referre est refellere The ground of this Errour was the Statute of Westm. 1 cap. 15. which â—aith that those are not repleviable who are committed for the death of a man or by the commandment of the King or his Justices for the Forrest for so it
which are excluded by the word liber for the generall Law of the Land doth allow their Lords to imprison them at pleasure without cause wherein they only differ from the Free-men in respect of their persons who cannot be imprisoned without a cause And that this is the true understanding of those words per legem terrae will more plainly appear by divers other Statutes that I shall use which do expound the same accordingly And although the words of this Grand Charter be spoken in the third person yet they are to be understood of Suites betwixt partie and partie at least not of them alone but even of the Kings Suites against his Subjects as will appear by the occasion of the getting of that Charter which was by reason of the differences betwixt those Kings and their people and therefore properlie to be applyed to their power over them and not to ordinarie questions 'twixt Subject and Subject The words per legale judicium parium suorum immediately precedeing the other per legem terrae are meant of trialls at the Kings Suit and not at the prosecution of a Subject And therefore if a Peer of the Realm be arraigned at the Suit of the King upon any Indictment of Murther he shall be tried by his Peeres that is Nobles But if he be appealed of Murther by a Subject his triall shall be by an ordinarie Jury of 12 Free-holders as appeareth in 10. Edw. 4. It is said such is the meaning of Magna Charta By the same reason therefore as per judicium parium suorum extends to the Kings Suit so shall these words per legem terrae And in 8. E. 2. Rot. Parliam num 7. there is a Petition that a Writ made under the Privie Seal went to the Guardians of the Great Seal to cause lands to be seized into the Kings hands by force of which there went a Writ out of the Chauncery to the Exchequer to seize against the forme of the Grand Charter That the King or his Ministers shall out-law no man of Free-hold without reasonable Judgement And the partie was restored to his land Which sheweth the Statute did extend to the King There was no invasion upon this personall liberty till the time of King Edw. the 3. which was soon restrained by the Subject For in the 5. E. 3. cap. 9. it is ordained in these words It is enacted that no man from henceforth shall be attached by any accusation nor forejudged of life or limbe nor his lands tenements goods nor cattells seized into the Kings hands against the forme of the great Charter And the Law of the Land 25. E. 3. cap. 4. is more full and doth expound the words of the Grand Charter and it is thus Whereas it is contained in the great Charter of the Franchises of England That no Free-man be imprisoned or put out of his Free-hold nor of his Franchise nor Free Custome unlesse it be by the Law of the Land it is accorded assented and established that from henceforth none shall be taken by petition or suggestion made unto our Lord the King or to his Councell unlesse it be by indictment or presentment of his good and lawfull people of the same neighbourhood where such deeds be done in due manner or by processe made by Writ originall at the Common Law nor that none be out of his Franchises or of his Free-hold unlesse he be duely brought into answer and forejudged of the same by course of Law and if any thing be done against the same it shall be redressed and held for null Out of this Statute I observe that what in Magna Charta and the Preamble of this Statute is termed by the Law of the Land is in the body of this Act expounded to be by processe made by Writ originall at the Common Law which is a plain interpretation of the words Law of the Land in the grand Charter Andâ— I note that this Law was made upon the commitment of divers to the Tower no man yet knoweth for what The 28. E. 3. is yet more direct this Libertie being followed with fresh suite by the Subject where the words are not many but very full and significant That no man of what estate or condition he be shall be put out of his lands or Tenement nor taken nor imprisoned nor disinherited nor put to death without he be brought into answer by due processe of the Law Here your Lordships see the usuall words of the Law of the Land are rendered by due processe of the Law 36. E. 3. Rot. Parliam num 9. amongst the Petitions of the Commons one of them being translated into English out of the French is thus First that the great Charter and the Charter of the Forrest and the other Statutes made in his time and the time of his Progenitours for the profit of him and his Commonaltie be well and firmly kept and put in due execution without putting disturbance or making arrest contrarie to them by speciall command or in any other The answer to the Petition which makes it an Act of Parliament is Our Lord the King by the assent of the Prelates Dukes Earles Barons and the Commonaltie hath ordained and established that the said Charters and Statutes be held and put in execution according to the said Petition which is that no arrest should be made contrarie to the Statutes by speciall command This concludes the Question and is of as great force as if it were printed For the Parliament Roll is the true warrant of an Act and many are omitted out of the books that are extant 36. E. 3. Rot. Parliament num 20. explaineth it further for there the Petition is Whereas it is contained in the Grand Charter and other Statutes that none be taken or imprisoned by speciall command without indictment or other due processe to be made by the Law yet oftentimes it hath been and still is that many are hindred taken and imprisoned without indictment or other processe made by the Law upon them as well of things done out of the Forrest of the King as for other things That it would therefore please our said Lord to command those to be delivered which are so taken by speciall Command against the forme of the Charters and Statutes aforesaid The answer is The King is pleased if any man find himself grieved that he come and make his complaint and right shall be done unto him 37. E. 3. cap. 18. agreeth in substance when it saith Though that it be contained in the great Charter that no man be imprisoned nor put out of his Freehold without processe of the Law neverthelesse divers people make false suggestions to the King himself as well for malice as otherwise whereat the King is often grievâ—d and divers of the Realme put in damage against the forme of the said Charter Wherefore it is ordained that all they which make such suggestions be sent with the suggestions before the Chauncellour Treasurer and the
the partie could not be delivered To this the Answer is plain 1. No opinion is delivered in that book whether he were delivered or bailed or not 2. It appeares expresly that he was brought thither to be charged in an accusation of debt at another mans Suit and no desire of his own to be delivered or bailed and then if he were remanded it is no way materiall to the question in hand But that which is most relied upon is the opinion of Stamford in his book of the Pleas of the Crown lib. 2. ca. 18. fol. 72. 73. in his cap. of Mainprize where he reciteth the Statute of Westm. 1. cap. 15. and then saith thus By this Statute it appeareth that in 4 cases at the Common Law a man was not replevisable to wit those that were taken for the death of a man by command of the King or of his Justices or for the Forrest Thus farre he is most right Then he goeth on and saith As to the Command of the King that is understood of the command of his own mouth or his Councell which is incorporated unto him and speake with his mouth or otherwise every writ of Capias to take a man which is the Kings command would be as much And as to the command of the Justices that is meant their absolute command for if it be their ordinarie commandment he is replevisable by the Sheriff if it be not in some of the Cases prohibited by the Statute The answer that I give unto this is That Stamford hath said nothing whether a man may be committed without cause by the Kings command or whether the Judges ought not to baile him in such case but only that such a one is not replevisable which is agreed for that belongs to the Sheriff And because no man should think he meant any such thing he concludes his whole sentence touching the command of the King and his Justices That one committed by the Justices ordinarie command is replevisable by the Sheriff So either he meant all by the Sheriff or at least it appeares not that he meant that a man committed by the King or the Privie Councell without cause is not bailable by the Justices and then he hath given no opinion in this case What he would have said if he had been asked the question cannot be known neither doth it appeare by any thing he hath said that he meant any such thing as would be inferred out of him And now my Lords I have performed the command of the Commons and as I conceive shall leave their declaration of personall Liberty on ancient and undoubted truth fortified with 7 Acts of Parliament and not opposed by any Statute or authoritie of Law whatsoever The Objections of the King's Councell with the Answers made thereunto at the two Conferences touching the same matter IT was agreed by Master Attorney generall that the seven Statutes urged by the Commons were in force and that Magna Charta did extend most properly to the King But he said First that some of them are in generall words and therefore conclude nothing but are to be expounded by the Presidents and others that be more particular are applyed to the suggestions of Subjects and not to the Kings Command simplie of it self Hereunto was answered That the Statutes were as direct as could be which appeareth by the reading of them and that though some of them speak of suggestions of the Subject yet others do not and those that do are as effectuall for that they are in equall reason a commitment by Command of the King being of as great force when it moveth by a suggestion from a Subject as when the King takes notice of the cause himself the rather for that Kings seldome intermeddle with matters of this nature but by information from some of their Subjects Secondly M r Attorney objected that per legem terrae in Magna Charta which is the foundation of this Question cannot be understood for processe of the Law and originall Writs for that in all Criminall proceedings no originall Writ is used at all but every Constable may arrest either for fellony or for breach of the peace or to prevent a breach of the peace without processe or originall Writ and it were hard the King should not have the power of a Constable the Statutes cited by the Commons make processe of the Law and Writ originall to be all one The answer of the Commons to this Objection was That they do not intend originall Writs only by the Law of the Land but all other legall processe which comprehends the whole proceedings of Law upon Cause other then the triall by Jurie Iudicium parium unto which it is opposed Thus much is imported ex vi termini out of the word processe and by the true acceptation thereof in the Statutes which have been urged by the Commons to maintain their Declaration and most especially in the Statute 25. E. 3. cap. 4. where it appeareth that a man ought to be brought into answer by the course of the Law having former mention made of processe made by originall Writ And in 28. E. 3. cap. 3. by the course of the Law is rendered by due processe of the Law and 36. E. 3. Rot. Parl. num 20. the Petition of the Commons saith That no man ought to be imprisoned by speciall Command without Indictment or other due processe to be made by the Law 37. E. 3. cap. 18. calleth the same thing Processe of the Law 42. E. 3. cap. 3. stileth it by due processe and Writ originall where the conjunctive must be taken for the disjunctive which change is ordinary in the exposition of the Statutes and Deeds to avoid inconvenience to make it stand with the rest and with reason And it may be collected that by the Law of the Land in Magna Charta by the Course of the Law in 25. E. 3. by due processe of the Law in 28. E. 3. other due processe to be made by the Law in 36. E. 3. processe of the Law 37. E. 3. and by due processe and originall Writ in 42. E. 3. are meant one and the same thing the latter of these Statutes referring alwayes to the former and that all of them import any due and regular proceeding of Law upon a Cause other then the triall by Jury And this doth appeare in Coke 10. 74. in the case of the Marshalsey and Coke 11. 99. Iames Bagg's case where it is understood of giving Jurisdiction by Charter or prescription which is the ground of a proceeding by course of Law and in Selden's Notes on Fortescue fol. 29. where it is expounded for Law wager which is likewise a triall at Law by the oath of the partie differing from that by Jurie And it doth truly comprehend these and all other regular proceedings in Law upon Cause which gives authoritie to the Constable to arrest upon Cause And if this should not be the true exposition of these
and constant use in the Court of Kings Bench as it cannot be doubted but your Lordships will easily know also from the grave and learned my Lords the Judges These two causes the one of the Entrie of Committitur Marescallo postea traditur in ballium and the other Remittitur quousque and Remittitur generally or Remittitur prisonae predict together with the nature of the habeas Corpus being thus stated it will be easier for me to open and your Lordships to observe whatsoever shall occurre to this purpose in the Presidents of Record to which I shall come in particular But before I come to the Presidents I am to let your Lordships know the resolution of the House of Commons touching the enlargement of any man committed by the command of the King or of the Privie Councell or of any other without cause shewed of such commitment It is thus That if a Free-man be committed or detained in prison or otherwise restrained by the Command of the King the Privie Councell or any other and no cause of such commitment detainer or restraint be expressed for which by Law he ought to be committed detained or restrained and the same be returned upon a habeas Corpus granted for the partie that then he ought to be delivered or bailed This resolution as it is grounded upon those Acts of Parliament already shewed and the reason of the Law of the Land which is committed to the charge of another and anone to be opened unto you is strengthened also by many Presidents of Record But the Presidents of Record that concerne this point are of two kinds for the House of Commons hath informed it self of such as concern it either way The first such as shew expresly that persons committed by the Command of the King or of the Privie Councell without any cause shewed have been enlarged upon Baile when they prayed it Whence it appeares cleerly that by Law they were bailable and so by habeas Corpus to be set at liberty For although they ought not to have been committed without cause shewen of their commitment yet it is true that the reverend Judges of this Land in former Ages did give such a respect to such commitment by Command of the King or of the Lords of the Councell as also to the commitments sometimes of inferiour persons that upon the habeas Corpus they rarely used absolutely to discharge the prisoners instantly but to enlarge them only upon Baile which sufficiently secures and preserves the Liberty of the Subject according to the Lawes that your Lordships have already heard Nor in any of these cases is there any difference made between any such commitments by the King and commitments by the Lords of the Councell that are incorporated with him The second kind of Presidents of Record are such as have been pretended to prove the Law to be contrarie and that persons so committed ought not to be set at liberty upon Baile and are in the nature of Objections out of Record I shall deliver them summarily to your Lordships with all faith as also the true Copies of them Out of which it shall appear cleerly to your Lordships that of those of the first kind there are no lesse then twelve most full and directly in the point to prove that persons so committed are to be delivered upon baile and among those of the other kind there is not so much as one that proves at all any thing to the contrary I shall first my Lords go through them of the first kind and so observe them to your Lordships that such scruples as have been made upon them by some that have excepted against them shall be cleered also according as I shall open them severally The first of this first kind is of Edw. 3. time It is in Pasche 18. E. 3. Rot. 33. Rex The case was thus King E. 3. had committed by Writ that under his Great Seal as most of the Kings Commands in that time were one Iohn de Bidleston a Clergie man to the prison of the Tower without any cause shewed of the commitment The Lieutenant of the Tower is commanded to bring him into the Kings Bench where he is committed to the Marshall But the Court asked of the Lieutenant if there were any cause to keep this Bidleston in prison besides that commitment of the King He answered No. Whereupon as the Roll saith Quia videtur Curiae breve predictum that is the Kings Command sufficientem non esse causam predictum Johannem de Bidleston in prisona Marr. Regis hic detinend idem Johannes dimittitur per manucaptionem Will. de Wakefield and some others Where the Judgement of the Court is fully declared in the very point The second of this first kind of Presidents of Record is in the time of H. the 8. One Iohn Parker was committed to the Sheriffs of London prosecuritate pacis at the Suit of one Brinton ac pro suspicione fellonie committed by him at Cow all in Glocester shire ac per mandatum Dni Regis he is committed to the Marshall of the Kings Bench posâ—ea isto eodem Terminâ— traditur in Ballium There were other causes of the commitment but plainly one was a Command of the King signified to the Sheriff of London of which they took notice But some have interpreted this as if the commitment here had been for suspicion of fellony by command of the King in which case it is agreed of all hands that the Prisoner is â—ailable But no man can think so of this President that observes the Contents and understands the Grammar of it wherein most plainly ac per mandatum Regis hath no reference to any other cause whatsoever but is a single cause enumerated in the Return by it self as the Record cleerly shewes It is in the 22. H. 8. Rot. 37. The third is of the same time It is 35. H. 8. Rot. 33. Iohn Bincks case He was committed by the Lords of the Councell pro suspicione fellâ—nie ac pro aliiâ— caâ—sis illos movantibus Qui committitur Marescallo c. et immediate ex gratiâ— curiae special traditur in ballium They commit him for suspicion of fellony and other causes them thereunto moving wherein there might be matter of State or whatsoever else can be supposed and plainly the cause of the commitment is not expressed yet the Court bailed him without having regard to those other unknown causes that moved the Lords of the Councell But it is indeed somewhat different from either of those other two that precede and from the other nine that follow For it is agreed That if a cause be expressed in the return insomuch as the Court can know why he is committed that then he may be bailed but not if they know not the cause Now when a man is committed for a cause expressed pro aliis causis Dominos de Concilio moventibus certainly the Court can no more know in such a case
by the errour of the Clark for want perhaps of distinction in his understanding of the Marshall of the Kings Bench from the Marshall of the Houshold The sixth of these is Thomas Cesar's Case It is in the 8. Iacobi Regis Rot. 99. This Cesar was committed to the Marshalsey of the Houshold per mandatum Domini Regis and returned to be therefore detained and indeed a remittitur is in the Roll but not a remittitur quousque but only that kind of remittitur which is used only whiles the Court adviseth And in truth this is so farre from proving any thing against the Resolution of the House of Commons that it appeares that the opinion of the reverend Judges of that time was That the Return was insufficient and that if it were not amended the Prisoner should be discharged For in the Book of Rules of that Court of Mich. Terme when Cesars Case was in question they did expresly order that if the Steward and Marshall did not amend their Return the Prisoner should be absolutely discharged The words of the Rule are Nisi Scenescalâ—us Marescallus hospitii Domini Regis sufficienter returnaverint breve de habeas Corpus Tho. Cesar die Mercurii proxim post quindenam Sancti Martini defendens exonerabitur And this is all the force of that President but yet there hath been an interpretation used upon this Rule It hath been said that the Judges gave this Rule because the truth was that the Return was false and that it was well known that the Prisoner was committed not by the immediate Command of the King but by the command of the Lord Chamberlain and thence as it was said they made this Rule But this kind of interpretation is the first that ever supposed that Judges should take any notice of the truth or falshood of any Return otherwise then the body of the Return could inform them And the rule it self speakes plainly of the sufficiency only and not of the truth or falshood of it The seventh of these is the Case of Iames Demetrius Edward Emerson and some others that were Brewers and were committed to the Marshalsey of the Houshold per mandatum Domini Regis and so returned upon habeas Corpus And it is true that the Roll shewes they were remanded but the remanding was only upon advisement And indeed the grave and upright Judges of that time were so carefull least upon the entring of the remanding any such mistake might be as might perhaps mislead posterity in so great a point that they would have expresly the word immediate added to remittitur that so all men that should meet with the Roll might see that it was done for the present only and not upon any debate of the question And besides there is no quousque to it which is usually added when the highest award upon debate or resolution of this kind is given by them The eighth of these is the Case of S r Samuel Saltonstall It is Hill 12. Iacob He was committed to the Fleet per mandatum Domini Regis and besides by the Court of Chauncery for disobeying an order of that Court and is returned upon his habeas Corpus to be therefore detained And it is true that a remittitur is entred in the Roll but it is only a remittitur prisonae predict without quousque secundum legem deliberatus fuerit And in truth it appeares in the Record that the Court gave the Warden of the Fleet 3 severall dayes at severall times to amend his Return and in the interim remittitur prisonae predict still Certainly if the Court had thought that the Return had been good they would not have given so many severall dayes to have amended it For if that mandatum Domini Regis had been sufficient in the Case why needed it to have been amended The ninth and last of these is Trinit 13. Iacob Rot. 71. the Case of the said S r Samuel Saltonstall He is returned by the Warden of the Fleet as in the Case before and generally remittitur as in the Roll which proves nothing at all that therefore the Court thought he might not by Law be enlarged and besides in both Cases he stood committed also for disobeying an order in Chauncery These are all that have been pretended to the contrary in this great point and upon the view of them thus opened to your Lordships it is plain that there is not one not so much as one at all that proveth any such thing as that persons committed by the Command of the King or of the Lords of the Councell without cause shewed might not be enlarged but indeed the most of them expresly prove rather the contrary Now my Lords having thus gone through the Presidents of Record that concern this point of either side before I come to the other kind of Presidents which are the solemn resolution of Judges in former times I shall as I am commanded by the House of Commons represent unto your Lordships somewhat else that they have thought very considerable with which they have met while they were in a most carefull enquirie of whatsoever concerned them in this great Question It is my Lords a draught of an Entry of a Judgement in that great Case lately adjudged in the Court of Kings Bench when divers Gentlemen imprisoned per speciale mandat Domini Regis were by the Award and Judgement of the Court after solemn debate sent back to Prison because it was expresly said that they could not in Justice deliver them though they prayed to be bailed The case is famous and well known to your Lordships therefore I need not further mention it And as yet indeed there is no Judgement entred upon the Roll but there is room enough for any kind of Judgement to be entred But my Lords there is a form of a Judgement a most unusuall one such a one as never was in any such Case before used for indeed there was never before any Case so adjudged and this drawn up by a chief Clark of that Court by direction of M r Attorney Generall as the House was informed by the Clark in which the reason of the Judgement and the remanding of those Gentlemen is expressed in such sort as if it should be declared upon Record for ever that the Law were that no man could be enlarged from imprisonment that stood committed by any such absolute command The draught is only in S r Iohn Henningham's Case being one of the Gentlemen that was remanded and it was made for a form for all the rest The words of it are after the usuall Entrie of a Curia advisur vult for a time that visis return predict nec non diversis antiquis Recordis in Curia hic remanent consimiles casus concernentibus maturaque deliber atione inde prius habita eo quod nulla specialis causa captionis sive detentionis predict Johannis exprimitur sed gener aliter quod detentus est in prisona predict
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
commitment by the command of the King were lawfull yet when he hath continued in prison by such reasonable time as may be thought fit for that offence for which he is committed he ought to be brought to answer and not to continue still in prison without being brought to answer For it appears by the Books of our Laws that liberty is a thing so favoured by the Law that the Law will not suffer the continuance of a man in prison for any longer time then of necessity it must and therefore the Law will neither suffer the party Sheriffs or judges to continue a man in prison by their power and their pleasure but doth speed the delivery of a man out of prison with as reasonable expedition as may be And upon this reason it is resolved in 1 2 El. Dyer 175. 8 E d. 4. 13. That howsoever the Law alloweth that there may be no term between the rest of an originall Writ and the return of the same where there is onely a summons and no imprisonment of the body yet it will not allow that there shall be a term between the rest of a Writ of Capias and the return of the same where the body of a man is to be imprisoned insomuch that it will give no way that the party shall have no power to continue the body of a man imprisoned any longer time then needs must 39 E. 3. 7. 10 H. 7. 11. 6 E. 4. 69. 11 E. 4. 9. 48 E. 3. 1. 17 E. 3. 1 2 Hen. 7. Kellawaies Reports do all agree that if a Capias shall be awarded against a man for the apprehending of his body and the Sheriffe will return the Capias that is awarded against the party a non est inventus or that languidus est in prisona yet the Law will allow the party against whom it is awarded for the avoiding of his corporall pennance and dures of imprisonment to appear gratis and for to answer For the Law will not allow the Sheriffe by his false return to keep one in prison longer then needs must 38 Ass. pl. 22. Brooks imprisonment 100. saith That it was determined in Parliament that a man is not to be detained in prison after he hath made tender of his fine for his imprisonment therefore I desire your Lordship that Sir Iohn Corbet may not be kept longer in durance but be discharged according to the Law The substance of the Objections made by Mr. Attorney General before a Committee of both Houses to the Argument that was made by the House of Commons at the first conference with the Lords out of Presidents of Record and Resolutions of Iudges in former times touching the Liberty of the person of every Freeman and the Answers and Replies then presently made by the House of Commons to these objections AFter the first conference which was desired by the Lords and had by a Committee of both houses in the painted Chamber touching the Reasons Laws Acts of Parliament and Presidents concerning the Liberty of the person of every Freeman M r Attorney General being heard before the Committee of both houses as it was assented by the house of Commons that he might be before they went up to the conference after some preamble made wherein he declined the answering all Reasons of 〈◊〉 and Acts of Parliament came onely to the Presidents used in the Argument before delivered and so endeavoured to weaken the strength of them that had been brought in behalf of the subjects to shew that some other were directly contrary to the Law comprehended in the Resolutions of the house of Commons touching the bailing of Prisoners returned upon the writ of Habeas Corpus to be committed by the special command of the King or the Councel without any cause shewed for which by Law they ought to be committed And the course which was taken it pleased the Committee of both houses to allow of was that M r. Attorney should make his Objections to every particuler President and that the Gentlemen appointed and trusted herein by the house of Commons by several Replies should satisfie the Lords touching the Objections made by him against or upon every particular as the order of the Presidents should lead them he began with the first 12. Presidents that were used by the house of Commons at the conference delivered by them to prove that Prisoners returned to stand so Committed were delivered upon bail by the Court of Kings Bench The first was that of Bildstones case in the 18. Edw. 3. Rot. 33. Rex To this he Objected First that in the return of him into the Court it did not appear that this Bildstone was committed by the Kings command and Secondly that in the Record it did appear also that he had been committed for suspicion of counterfaiting the great Seal and so by consequence was bailable by the Law in regard there appeared a Cause why he was committed in which case it was granted by him as indeed it was plain and agreed of all hands that the Prisoner is bailable though committed by Command of the King and he said that this part of the Record by which it appeared he had been committed for suspicion of treason was not observed to the Lords in the Argument before used and he said also to the Lords that there were three several kinds of Records by which the full truth of every award or bailing upon a Habeas Corpus is known First the remembrance Roll wherein the award is given Secondly the file of the writt and the return and Thirdly the Scruect or Scruet finium wherein the baile is entered and that onely the remembrance Roll of this Case was to be found and that if the other two of it were extant he doubted not but that it would appear also that upon the return it self the Cause of the Commitment had been expressed and so he concluded that this proved not for the house of Commons touching the Matter of bail where a Prisoner was committed by the Kings special command without Cause shewed To this Objection the reply was First that it was plain that Bildstone was committed by the Kings express Command For so the very words of the Writt are to the Constable of the Tower quod cum tenendum Custodiae facias c. then which nothing can more fully express a Commitment by the Kings command Secondly how ever it be true that in the latter part of the Record it doth appear that Bâ—â—stone had been Committed for suspicion of Treason yet if the times of the proceeding expressed in the Record were observed it would be plain that the Objection was of no force for this one ground both in this Case and all the rest is infallible and never to be doubted of in the Law Nota. That Justices of every Court adjudge of the force and strength of a return out of the body of it self onely and as therein it appears Now in Easter term in the
to be concluded that is that as Fellony is a greater Cause then Surety of the peace so the matter whereupon the Kings command was grounded was greater then Fellony But in truth this kinde of Argument holds neither way here and whatsoever the Cause were why the King committed him it was impossible for the Court to know it and it also might be of very high moment in matter of state and yet of farr less nature then Fellony All which shews that this president hath his full force also according as it was first used in Argument by the house of Commons To the third of these which is Binckes Case in the 35. H. 8. Rot. 33. the Objection was that there was a Cause expressed pro suspicione felloniae and though pro aliis causis illos moventibus were added in the Return yet because in the course of enumeration the general name of aliis comming after particulars includes things of less nature then the particuler doth therefore in this Case suspition of fellony being the first the other Causes afterwards generally mentioned must be intended of less nature for which the Prisoner was bailable because he was bailable for the greater which was suspition of fellony Hereunto it was replyed that the Argument of enumeration in these Cases is of no moment as is next before shewed and that although it were of any moment yet any Case though less then fellony might be of very great consequence in matter of state which is pretended usually upon generall Returns of command without cause shewed and it is most plain that the Court could not possible know the reasons why the Prisoner here was committed and yet they bailed him without looking further after any unknown thing under that title of Matter of state which might as well have been in this Case as in any other whatsoever To the 4. of these which is Overton's Case in 2. 3. Phet M. Rot. 58. and to the 5. which is Newports Case P. M. 4. 5. Rot. 45. onely these Objections were said over again by M r. Attorney which are mentioned in the Argument made out of presidents in behalf of the house of Commons at the first conference and in the same Argument are fully and clearly satisfied as they were in like manner now again To the 6. of these which was Lawrence his Case M. 9. Eliz. Rot 35. and the 7. which is Constables P. 9. Eliz. Rot. 68. the same Objections onely were likewise said over again by M r. Attorney that are mentioned and clearly and fully answered in the Argument made at the first conference out of presidents in behalf of the house of Commons the force of the Objection being onely that it appeared in the Margent of the Roll that the word Pardon was written but it is plain that the word there hath no reference at all to the reason why they were bailed nor could it have reference to the Cause why they were committed in regard the Cause why they were committed is utterly unknown and was not shewed To the 8. of these Presidents which was Brownings Case P. 20. Eliz. Rot. 72. It was said by M r. Attorney that he was bailed by a letter from the Lords of the Councel directed to the Judges of the Court but being asked for that letter or any Testimony of it he could produce none at all but he said he thought the Testimony of it was burnt among many other things of the Councel-table at the burning of the banquetting house To the 9. being Harecourts Case H. 40. Eliz. Rot. 62. the self same Objection was made by him but no warrant was shewed to maintain his Objection To the 10. which is Catesbyes Case in vacatione Hill 43. Eliz. he said that it was by direction of a privy Seal from the Queen and to that purpose he shewed the Seal of 43. Eliz. which is at large among the Transcripts of the Records concerning bails taken in Cases where the King or the Lords assented But it was replied that the privy seal made onely for some particular Gentlemen mentioned in it and for none other as indeed appears in it and then he said that it was likely that Catesby here had a privy seal in his behalf because those other had so which was all the force of his Objection To the 11. of these which is Beckwiths Case in Hill 12. Iacobi Rot. 153. he said that the Lords of the councel sent a letter to the Court of Kings-Bench to bail him And indeed he produced a letter which could not by any means be found when the Arguments were made at the first conference and this letter and a coppy of an obscure Report made by a young student which was brought to another purpose as is hereafter shewed were the onely things written of any kinde that M r. Attorney produced besides the particulars shewed by the house of Commons at the first conference To this it was replied that the letter was of no moment being onely a direction to the Chief Iustice and no Matter of record nor any way concerning the rest of the Iudges And besides either the Prisoner was bailable by the Law or not bailable if bailable by the Law then was he to be bailed without any such letter if not bailable by the Law then plainly the Judges could not have bailed him upon the letter without breach of their oath which is that they are to do Iustice according to the Law without having respect to any command whatsoever so that letter in this Case or the like in any other Case is for point of Law to no purpose nor hath any weight at all by way of Objection against what the Record and the Judgment of the Court shews us To the 12. and last of these which is Sir Thomas Monsons Case in the 14. Iacobi Rot. 147. the same Objection was said over by him which was mentioned and clearly answered in the Argument and that one ground which is infallible That the Iudgment upon a return is to be made onely out of what appears in the body of the return it self was again insisted upon in this Case as it was also in most of the rest And indeed that alone which is most clear Law fully satisfies almost all kinds of Objections that have been made to any of these presidents which thus rightly understood are many ample Testimonies of the Judgments of the Court of Kings-Bench touching this great point in the several ages and raignes of the several Princes under which they fell After his Objections to the 12. and the Replies and satisfactions given to those Objections he came next to those wherein the Assent of the King and privy Councel appears to have been upon the enlargment but he made not to any of those any other kinde of Objections then such as are mentioned and clearly answered as they were now again in the Argument made at the first conference And for so much as concerns Letters of assent
Common Law for there are also divers Jurisdictions in this Kingdom which are also so reckoned the Law of the Land As in Kendrick's Case in the report fol. 8. the 1. Ecclesiastical Law is held the Law of the Land to punish Blasphemies Schismes Heresies Simony Incest and the like for a good reason there rendred viz. That otherwise the King should not have power to do Justice to his Subjects in all Cases nor to punish all Crimes within his Kingdom The Admiral 's Jurisdiction is also Lex terrae for things done upon the Sea but if they exceed their Jurisdiction a prohibition is awarded upon the Statute of null us liber homo by which appears that the Statute is in force as we have acknowledged The Martial likewise though not to be exercised in times of peace when recourse may be had to the Kings Courts yet in times of invasion or other times of Hostility when an Army Royal is in the field and offences are committed which require speedy reformation and cannot expect the solemnity of legal Trials then such imprisonment execution or other Justice done by the Law Martial is Warrantable for it is then the Law of the Land and is Ius gentium which ever serves for a supply in the defeat of the Common Law when ordinary proceeding cannot be had And so it is also in the case of the Law of the Merchant which is mentioned 13. E 4. fol. 9. 10. where a Merchant stranger was wronged in his goods which he had committed to a Carrier to convey to Southampton and the Carrier imbezelled some of the goods for remedy whereof the Merchant sued before the Councel in the Star-Chamber for redress It is there said thus Merchant strangers have by the King safe conduct for coming into this Realm therefore they shall not be compelled to attend the ordinary Trial of the Common Law but for expedition shall sue before the Kings Councel or in Chancery de die in diem de hâ—râ in horam where the Case shall be determined by the Law of Merchants In the like manner it is in the Law of State when the necessity of State requires it they do and may proceed to natural equity as in those other Cases where the Law of the Land provides not there the proceeding may be by the Law of natural equity and infinite are the Occurrences of State unto which the Common Law extends not And if these proceedings of State should not also be accounted the Law of the Land then we do fall into the same inconveniency mentioned in Cawdries Case that the King should not be able to do Justice in all Cases within his own Dominions If then the King nor his Councel may not Commit it must needs follow that either the King must have no Councel of State or having such a Councel they must have no power to make Orders or Acts of State Or if they may they must be without means to compell obedience to those Acts and so we shall allow them Jurisdiction but not compel obedience to those Acts but not correction which will be then as fruitless as the Command Frustra potentia quae nunquam redigitur in statutum Where as the very Act of Westminster first shews plainly that the King may commit and that his commitment is lawfull or else that Act would never have declared a man to be irreprieveable when he is committed by the Command of the King if the Law-makers had conceived that his commitment had been unlawfull And Divine truth informs us that the Kings have their power from God the Psalmist calling them the children of the most High which is in a more special manner understood then of other men for all the Sons of Adam are by election the Sons of God and all the Sons of Abraham by recreation or regeneration the Children of the most High in respect of the power which is committed unto them who hath also furnished them with ornaments and arms fit for the exercising of that power and hath given them Scepters Swords and Crowns Scepters to vestitute and Swords to execute Laws and Crowns as Ensigns of that power and dignity with which they are invested shall we then conceive that our King hath so far transmitted the power of his Sword to inferiour Magistrates that he hath not reserved so much Supream power as to commit an Offender to prisonâ— 10. H. 6. fol. 7. It appears that a Steward of a Court Leet may commit a man to prison and shall not the King from whom all inferior power is deduced have power to commit We call him the fountain of Justice yet when these streams and rivolets which flowe from that Fountain come fresh and full we would so far exhaust that Fountain as to leave it dry but they that will admit him so much power do require the expression of the cause I demand whether they will have a general cause alleadged or a special if general as they have instances for Treason Fellony of for Contempt for to leave fencing and to speak plainly as they intend it If loan of money should be required and refused and thereupon a commitment ensue and the cause signified to be for a contempt this being unequal inconvenience from yielding the remedy is sought for the next Parliament would be required the expression of the particular cause of the commitment Then how unfit would it be for King or Councel in Cases to express the particuler Cause it s easily to be adjudged when there is no State or pollicy of government whether it be Monarchal or of any other frame which have not some secrets of State not communicable to every vulgar understanding I will instance but one If a King imploy an Ambassadour to a Forreign Countrey of States with instructions for his Negotiation and he pursue not his instructions whereby dishonour and dammage may ensue to the Kingdom is not this commitment And yet the particuler of his instruction and the manner of his miscarrying is not fit to be declared to his Keeper or by him to be certified to the Judges where it is to be opened and debated in the presence of a great audience I therefore conclude for offences against the State in Case of State Government the King and his Councel have lawfull power to punish by imprisonment without shewing particular cause where it may tend to the disclosing of State-Government It is well known to many that know me how much I have laboured in this Law of the Subjects Liberty very many years before I was in the Kings service and had no cause then to speak but to speak ex animo yet did I then maintain and publish the same opinion which now I have declared concerning the Kings Supream power in matters of State and therefore can not justly be centured to speak at this present onely to merit of my Master But if I may freely speak my own understanding I conceive it to be a question too high to
being deducted to the several Counties and Sea-Towns of the Kingdom according to the burthen of their shipping and not particularly to such Counties or Sea-Towns unto which the Squadron of Ships belongeth that shall send in the said Prizes That it shall not be Lawfull for any in the said Ships to break take or open the deck of any Prizes they take but nail them down fast untilâ— they be brought in at one of the Port-Towns aforesaid and the Officers for the King with the Commissioners for the Counties to take and open them That after the Kings part is sequestred with such allowance over and above as shall be proportionable for the Kings ships being Admirals the rest to be distributed as aforesaid to the use and benefit of all the Counties and Sea-Towns in general not in particuler to such Counties and Sea-Towns unto which any of the said 4. Squadrons belongeth that sendeth in the said Prizes the Pillage above deck onely excepted which do belong unto the Officers Saylors and Souldiers of the Squadron that took the said Prize That for the speedy and present execution hereof every County or Sea-Town that is not furnished with shipping accordingly shall hire untill they can build which to be limmited to perform within a certain and convenient time The charge that will fall on the Subjects yearly will amount for the first year 200000. l. which God prospering them within the year they will re-inburse and by the benefit of the Prizes afterwards they will have stock sufficient with increase for new victualling forth the Ships the first year and so from time to time The Kingdom will hereby encrease their shipping breed and make good store of good Sea-men and we shall hereby be Masters of the Sea so as our Merchants shall travel safely and we shall much prejudice the French and Spanish Nation or any others that are Enemies and not in League Judge ANDERSON DIverse Persons fueront Committes a sevâ—ral temps a several Persons sur pleasur sans bon cause parte de queâ—x estiant ameâ—nes en en banck le Roy parte en le Comune banck fueront accordant a le ley de la terre mise a large discharge de lâ— inprisonment pur que aschunt grands fueront offendus procure vn comandment a les Iudges que ils be ferra issent apres Ceo nient meins les Iudges ne surcease mes pâ—r advise enter eux ils fesoient certanie Articles le tenour de queux ensue deliver eux al seignieures Chauncellor Treasurer eux subscribe 〈◊〉 touts lour manies les Articles â—ont coe ensuâ—nt WE her Majesties Justices of both Benches and Barons of the Exchequer desire your Lordships that by some good means some order may be taken that her Highness Subjects may not be committed or dâ—tained in Prison by commandment of any Noble Man or Councellor against the Laws of the Realm either help us to have access to her Majesty to the end to become â—uitors to her for the same for divers have been imprisoned for suing ordinary Actions and Statutes at the Common-Law untill they have been constrained to leave the same against their wills and put the same to order albeit Judgement and Execution have been had therein to their great losses and griefs for the aid of which Persons her Majesties Writs have sundry times been directed to divers Persons having the custody of such Persons unlawfully imprisoned upon which Writs no good or Lawfull cause of imprisonment hath been returned or certified whereupon upon 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
at home are we in strength are we in reputation equall to our Ancestors if we view our selves abroad are our Friends as many as our Enemies Nay more do our friends retain their safety and possessions do our Enemies enlarge themselves and gain for them and us what Councel to the loss of the Pallatinate sacrificed we our honour and our men sent thither stopping those greater powers appointed for that service by which it might have been defencible what Councel gave direction to the late action whose wounds are yet a bleeding I mean the expedition to Rhee of which there is yet so sadd a memorie in all men what design for us or advantage to our State could that import you know the wisdom of our Ancestors the practice of their times how they preserved their safeties we all know and have as much cause to doubt as they had the greatness and ambition of that Kingdom which the Old world could not satisfie against this greatness and ambition we likewise know the proceedings of that Princess that never to be forgotten Excellency of Queen Elizabeth whose name without admiration falls not into mention with her Enemies you know how she advanced her self how she advanced this Kingdom how she advanced this Nation in glorie and in state how she depressed her Enemies how she upheld her Friends how she enjoyed a full security and made them then our scorn whom now are made our terror Some of the principals she built on were these and if I mistake let reason and our Statesmen contradict me First to maintain in what she might a unity in France that that Kingdom being at peace within it self might be a Bulwark to keep back the power of Spain by land Next to preserve an amity and league between the States and us that so we might come in aid of the low Countries and by that means receive their Ships and help by sea This treable-cord so working between France the States and us might enable us as occasion should require to give assistance unto others and by this means the experience of that time doth tell us that we were not onely free from those fears that now possess and trouble us but then our Names were fearfull to our enemies See now what correspondency or actions had with this square it by these rules that it induce a necessary consequence of the division of France between the Protestants and their King of which there is too wofull and lamentable experience It hath made an absolute breach between that State and us and so entertained us against France France in preparation against us that we have nothing to promise our neighbours hardly for our selves Nay but observe the time in which it was attempted and you shall finde it not onely varying from those principals but directly contrary and opposite ex diametro to those ends and such as from the issue and success rather might be through a conception of Spain then begotten here with us Here there was an interruption made by S r. HUMFRY MAY. expressing a dislike but the House of Commons commanded him to go on it thus followeth M r. Speaker I Am sorry for this interruption but much more sorry if there hath been occasion wherein as I shall submit my self wholly to your judgement to receive what censure you should give me if I have offended So in the integrity of my intentions and clearness of my thoughts I must still retain this confidence that no greatness may deter me from the duties which I owe to the service of my King and Countrey but with a true English heart that I shall discharge my self as faithfully and as really to the extent of my poor power as any mans whose honours or whose Offices most strictly have obliged him you know the dangers Denmark is in how much they concerned us what in respect of our Alliance and the Countrey what in the importance of the Sound what an advantage to our Enemies the gain thereof would be what loss what prejudice to us by this division we breaking upon France France being inraged by us the Netherlands at amazement between both neither could we intend to aid that luckless King whose loss is our disaster Can those now that express their troubles at the hearing of these things and have been so often told us in this place of their knowledge in the conjunctures and disjunctures of affairs say they advised in this Was this an Act of Councel Mr. Speaker I have more charity then to think it and unless they make a confession of themselves I cannot believe it For the next the insufficiency and unfaithfulness of our Generals that great disorders abroad what shall I say I wish there were not cause to mention it and but out of the apprehension of the dangers that 's to come if the like chance hereafter be not prevented I could willingly be silent But my duty to my Soveraign and the service of this House the safety and Honour of my Countrey are above all respects and what so nearly tendeth to the prejudice of this may not be forborn At Calis then in that first expedition we made when we arrived and found a Conquest ready the Spanish ships I mean fit for the satisfaction of a Voyage and of which some of the chiefest then there themselves have since assured me the satisfaction would have been sufficient either in point of Honour or in point of profit why was it neglected why was it not atchieved it being of all hands granted how sensible it was after when with the destruction of some men and with the exposition of some others who though their fortune since have not been such by chance came off When I say with the loss of our serviceable men that unserviceable men were gained and the whole Army landed why was there nothing done why was there nothing attempted if nothing were intended wherefore did they Land if there were a service why were they shipt again Mr. Speaker it satisfies me too much in this when I think of their dry and hungry march unto that druncken quarter for so the Souldiers term'd it where was the period of their Journey that divers of our men being left as a sacrifice to the Enemy that labour was at an end For the next undertaking at Reez I will not trouble you much onely this in short was not that whole action carried against the Judgement and opinion of the Officers those that were of Councel was not the first was not the last was not all in the landing in the intrenching in the continuance there in the asâ—ault in the retreat did any advice take place of such as were of Councel If there should be made a particuler inquisition thereof these things will be manifest and more I will not instance Now the manifestation that was made for the reason of these Arms nor by them nor in what manner nor on what grounds it was published nor what effects it hath wrought drawing
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 diâ—â—aste 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 II. 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 Majestie thereof and with bleeding hearts and bended knees to crave such speedy redress therein as to your own wisdom unto which we humbly submit our selves and our desires shall seem most meet and convenient what the multitude and potency of your Majesties Enemies are abroad what be their malitious and ambitious ends and how vigilant and constantly industrious they are in pursuing the same is well known to your Majesty Together with the dangers threatned thereby to your sacred Person and your Kingdoms and the calamity which hath already fallen and doth dayly increase upon your Friends and Allies of which we are all well assured your Majesty is most sensible and will accordingly in your own great wisdom and with the gravest and most mature Councel according to the exigency of the times and occasions provide by all means to prevent and help the same To which end we most humbly intreat your Majesty first and especially to cast your eyes upon the miserable condition of this your own Kingdom of late so strangely weakned impoverished dishonoured and dejected That unless through your Majesties most gracious wisdom goodness and Justice it be speedily raised to a better condition it is in no little danger to become a sudden prey to the Enemies thereof And of the most happy and flourishing to be the most miserable and contemptible Nation in the World In the discovery of which dangers mischiefs and inconveniences lying upon us we do freely protest that it is far from our thoughts to lay the least aspercion upon your Majesties sacred Person or the least scandal upon your Government for we do in all sincerity and with all joyfulness of heart not onely for our selves but in the name of the whole Commons of England whom we represent ascribe as much honour to your Majesty and acknowledge as much duty as a most loyal and affectionate people can do unto the best King for so you are and so you have been pleased abundantly to express your self this present Parliament by your Majesties clear and satisfactory answer to our Petition of Right for which both we our selves and our posterities shall bless God for you and ever preserve a thankfull memory of your great goodness and Justice therein and we do verily believe that all or most of those things which we shall now present unto your Majesty are either unknown unto your Majesty or else by some of your Majesties Ministers offered under such specious pretences as may hide their own bad intentions ill consequence of them from your Majesty But we assure our selves that according to the good example of your most noble Predecessors nothing can make your Majesty being a Wise and Judicious Prince and above all things desirous of the welfare of your people more in love with Parliaments then this which is one of the principal ends of calling them that therein you may be truely informed of the State of all the several parts of your Kingdom and how your Officers and Ministers do behave themselves in discharge of the trust reposed in them by your Majesty which is scarce possible to be made known unto you but in Parliament as was declared by your blessed Father when he was pleased to put the Commons in Parliament assembled in minde that it would be the greatest unfaithfulness and breach of duty to his Majesty and of the trust committed to them by their Countrey that could be if in setting forth the grievances of the people and the condition of all the parts of this Kingdom from whence they came they did not deal clearly with him without sparing any how near and deer soever they were unto him if they were hurtfull or dangerous to the Common-wealth In confidence therefore of your Majesties gracious acceptation in a matter of so high importance and in faithfull discharge of our dâ—ties we do first of all most humbly beseech your Majesty to take notice
courâ—es be not speedily redrest and the profession of true Religion more encourraged we can expect any other then misery and ruine speedily to fall upon us especially if besides the visible and apparant dangers wherewith we are compast round about you would be pleased piously to remember the dispeasure of Almightie God alwaies bent against the neglect of his holie Religion the stroak of whose divine Justice we have alreadie felt and do still feel in great measure And besides this fear of Innovation in Religion we do in like faithfull discharge of our duties most humbly declare to your Majestie that the hearts of your people are full of fear of Innovation and change of government and accordingly possest with extream grief and sorrow yet in this point by your Majesties late answer to our Petition of right touching our libertie much comforted and raised again out of that sadness and discontent which they generallie had conceived throughout your whole Kingdom at the undue courses which were the last year taken for raising of money by loans then which what ever your Majestie hath been enformed to the contrarie there was never mony demanded or paid with greater grief and general dislike of all your faithfull Subjects though manie partly out of fear and partlie out of other respects yet most unwillinglie were drawn to yield to what was then required The billiting of souldiers did much augment both their fears and griefs wherein likewise they finde much comfort upon your late gratious Answer to our Petition of right and to that we presented to your Majestie concerning this particular yet we humblie beseech your Majestie that we may inform you that the still continuance and late re-enforcing of the numbers of those Souldiers the conditions of their Persons many of them being not Natives of this Kingdom nor of the same but of an opposite Religion the placing of them upon the Sea coast where making head among themseves they may unite with a Popish partie at home if occasion serve or joyn with an envading Enemy to do extream mischief and that they are not dismissed doth still minister cause of jelousie to your loving Sujects for that these Souldiers cannot be continued without exceeding great danger of the peace and safetie of your Kingdom The report of the strange and dangerous purpose of bringing in of Germain horses and Riders would have turned our doubts into dispair and our fears into a certainty of confusion had not your Majesties gratious Message for which we give you humble thanks comforted us by the assurance of your Royal word that they neither are nor were intended by your Majestie for any service in England but that they were designed for some forraign imployment yet the sight of the privie seal by which seemeth they were to be levied for this place the great some of money which upon examination we found had been made ever for that purpose That much about the same time there was a commission under the great Seal granted to the Lords and others of your privie Councel to consider as of other wayes of raising of monies so particularlie by imposition gave us just cause to suspect that what ever was your Majesties own gratious intention yet there wanted not those that under some colourable pretence might secretlie by this as by other wayes contrive to change the frame both of Religion and Government and thereby undermine the safetie of your Majestie and your Kingdoms these men could not be ignorant that the bringing in of strangers for aid hath been pernitious to most States where they have been admitted but to England fatall We do bless God that hath given your Majestie a wise and understanding heart to discern of the mischief of such courses and that such power produceth nothing but weakness and calamitie And we beseech your Majestie to pardon the vehemencie of our expressions if in the loyall and zealous affections we bear to your Mejestie and your service we are bould to declare to your Majestie and the whole world that we hold it far beneath the heart of any free English man to think that this victorious Nation should now stand in need of Germaine Souldiers to defend their own King and Kingdom But when we consider the courses formerlie mentioned concerning the undermining of Religion and these things tending to an apparant change of government the often breach of Parliaments where by your Majestie hath been deprived of the faithfull Councels and free aids of your people The taking of tonnage and pondage without any grant thereof by Act of Parliament ever since the beginning of your Majesties raign to this present The standing commission granted to the Duke of Buckingham to be General of an Army within the land in the time of peace The displaceing of faithfull and sufficient Officers and Ministers some from Judicial places and others from the Offices and Authorities which formerly they held in the Common-Wealth we cannot but at the sight of such an approaching desolation as must necessarilie follow these courses out of the depth of sorrow lift up our cries to Heaven for help and next under God humbly applie our selves to your sacred Majestie and falling down at your feet do beseech you to harken to the voice of all your people who if you could hear so many thousands speaking altogether would all joyntly implore speedy help and reformation And if yet your Majestie will be pleased to take a further view of the present estate of your Realm we do humblie pray you to consider whether the miserable disasters and ill success that hath accompanied all your late designes and actions particularly those of Cales the Isle of Rhee and the last expedition to Rochel have not extreamlie wasted that stock of honour that was left unto this Kingdom sometimes terrible to all other Nations and now declining to contempt beneath the meanest together with our honour we there lost those and that not a few who had they lived we might have had some better hope of recovering it again Our valiant Collonels Captains and Commanders and many thousand common Souldiers and Marriners though we have some cause to think that your Majestie is not as yet rightlie enformed thereof and that of six or seaven thousand of your Subjects lost at the Isle of Rhee your Majesty received information but of few hundreds And that all this dishonour and loss hath been purchased with the Consumption of above a million of Treasure many of your Forts are excceding weak and decayed and want both men and munition And here we cannot but with grief consider and complain of a strange improvidence we think your Majestie will call it treacherie That your store of powder which by order of your privy Councel dated the tenth day of December 1626. should be constantly three hundred last besides a continual supplie of Twentie last a moneth for ordinarie expences and were now fit as we conceive to be double That proportion is at this time
will advise A note very remarkable It shewes the indulgence of Kings it shews also the wisdom and judgement of the Houses the King not willing to deny his People People not willing to presse their King to a deniall the one wise and modest in their requests and the other moderate and sweet in the answer This is the ancient and right way of union in Parliament The God of unity keep it in this and all insuing Parliaments This union you rightly call the union of Hearts and a greatnesse beyond the Kingdomes which the King inherits so then its a present fit for a wise people to offer to their gracious King Wise and magnanimous Kings are a speciall gift from God having hearts capable of greatnesse union of hearts is greatest and greatnesse was never unwelcome to Kings and therefore present and offer it to your King you cannot doubt of acceptance Having spoken of union you fall presently into a memoriall of the great and glorious actions of his Majestie 's Predecessours and into the height and contemplation of greater that remain If I mistake not your meaning you would have it understood that the union of Prince and people make way to those remarkable acts of former times and that we that wish the like successe in our time should look back upon our Forefathers Wisdome requires it Honour and the Time requires it that we should shew our selves the sonnes of our Auncestours at least in holding that which they left us The pride of Rome abated as you say by England now lifts up her horns against Religion Gods vine planted and deeply rooted here overspread into our neighbour Countreys hath of late lost many of her goodly branches The Austrian Eagle that wanted feathers till of late now soares and preys at will over all Spain so often foiled by us hath by disguised treaties dispoiled of their patrimonie those princely Branches of our royall Cedar and posts apace to his universall Monarchy to the ruine of us our Friends and Religion God hath his time and I trust a time to stop their course I know not but we may expect it as well now as ever There is a resolution in our King and there is I trust for I am sure there was a resolution in our Parliament for great actions Our king as he hath a Solomon so hath he many Davids in the glorious catalogue of his royall Descent and hath linked himself in the House of Henry the Great and he bears a glorious and auspicious name sutable to his thoughts and desires and therefore since Honour and Religion call for it and since you have incouraged him to fight Iehovah's battels let all put to their hands that our King and Nation may have the honour to set Christendome in her right Balance And now to come to the petitions you have made for the House his Majestie most graciously and readily grants them all according to your true and ancient Rights and Priviledges of Parliament which his Majestie trusts you will have care not to exceed or transgresse and therefore you may go chearfully together and speedily settle about the publick affairs And the almighty God prosper the works of your hands I say the almighty God prosper your handy-work M r. Goodwin's Speech March 22. 1627. Mr. Speaker IT hath pleased his Majestie in his last Speech to intimate unto us the cause of our meeting which is supply against the great and common dangers that threaten the ruine of this Kingdome and the time of our sitting cannot be long and therefore he wisheth to avoid tedious resolutions In conformity whereunto I propound that laying aside all other matters we addresse our selves to that for which we were called hither wherein as in the first place we have well begun in our pious humiliation towards almighty God so let us now proceed to serve and to supply the king yet so as we satisfie our Countrey that sent us hither and preserve our Rights and Priviledges which have as surely been broken and infringed as undoubtedly they belong â—o us S r. Francis Seymour's Speech March 22. 1627. THis is the great Councel of the Kingdome and here if not here alone his Majestie may see as in a true glasse the state of the Kingdome We are all called hither by his Majestie 's writs to give him faithfull counsel such as may stand with his honour but that we must do without flatterie and chosen by the Commons to deliver up their just grievances and this we must do without fear Let us not be like Cambyses Judges who being demanded of him concerning something unlawfull said Though there were no written Law the Persian Kings might do what they liâ—t This was base flatterie fitter for reproof then imitation and as flatterie so fear taketh away the judgement For mine own part I shall shun both these and speak my conscience with as much duty to his Majestie as any man not neglecting the Publick But how can we speak our affections while we retein our fears or speak of giving till we know whether we have any thing to give or not For if his Majestie shall be perswaded to take what he will what need we to give That this hath been done appeareth by the billetting of Souldiers a thing no way advantageous to his service and a burthen to the Common-wealth the imprisonment of Gentlemen for the Loane who if they had done the contrary for fear their faults had been as great as theirs who were Projectours in it To countenance these proceedings hath it not been preached in the pulpit or rather praâ—ed All we have is the Kings But when they forsake their own calling and turn ignorant States-men we see how willing they will be to change a good conscience for a Bishoprick It is too apparent the people suffer more now then ever will you know the true reason we shall find those Princes have been in greatest wants and necessities that have exacted most from their Subjects The reason is plain A Prince is strongest by faithful and wise Counsel I would I could truly say such had been imployed abroad I speak this to this end to shew the defect proceeded not from this House I must confesse he is no good Subject that would not willingly and freely lay down his life when the End may be the service of his Majestie and the good of the Common-wealth But he is no good Subject but a slave that will have his goods taken from him against his will and his Liberty against the Laws of the Kingdome In doing this we shall but â—read the steps of our Fore-fathers who still preferred the publick interest before their own rights nay before their own lives It will be a wrong to Us to our Posterities to our Consciences if we shall forgo this This we shall do well to present to his Majestie I offer this in the generall thinking the particulars fitting for Committees What I may now say or shall then I submit
to better Judgements S r. Thomas VVentworth's speech March 22. 1627. MAy this dayes resolution be as happy as I conceive the Proposition which now moves me to rise to be seasonable and necessary for which we shall either look upon the King or his people It did never more behove this great Physician the Parliament to affect a true consent amongst the parts then now This debate carries with it a double aspect towards the Sovereigne towards the Subject though both be innocent yet both are injured both to be cured In the representation of Injuries I shall crave your attention in the Cure I shall beseech your equall cares and better judgements Surely in the greatest humility I speak it these illegall wayes are punishments and marks of indignation the raising of Levies strengthened by Commission with unheard of instructions the billetting of Souldiers by the Lieutenants and Deputy-lieutenants have been as if they could have perswaded Christian Princes nay worlds the right of Empire had been to take away by strong hand and they have endeavoured as farre as was possible for them to do it This hath not been done by the King under the pleasing shade of whose Crown I hope we shall ever gather the fruits of Justice but by Projectours They have pretended the Prerogative of the King beyond the just proportion which makes the sweet harmony of the whole They have rent from us the light of our eyes enforced a company of guests worse then the Ordinaries of France vitiated our wives and daughters before our faces brought the Crown to greater want then ever by anticipating the revenew and can the Shepherd be thus smitten and the Sheep not scattered They have introduced a Privie Councel ravishing at once the sphears of all ancient government imprisoning us without bank or bond They have taken from us what shall I say indeed what have they left us all means of supplying the King and ingratiating our selves with him taken up the roots of all Propriety which if it be not seasonably set into the ground by his Majestie 's own hand we shall have instead of Beauty Baldnesse To the making of them whole I shall apply my self and propound a remedy to all these diseases By one and the same thing hath King and people been hurt and by the same must they be cured by vindicating what new things no our ancient sober and vitall Liberties by reinforcing the ancient Laws made by our Auncestours by setting such a Character on them as no licencious spirit shall dare to enter upon them And shall we think this is a way to break a Parliament no our desires are modest and just I speak truly both for the interest of King and people If we enjoy not these it will be impossible to relieve him therefore let us never fear that they shall not be accepted by his Goodnesse Therefore I shall descend to my Motion consisting of four parts two of which have relation to our Persons two to the propriety of our Goods For our Persons the freedome of them first from imprisonment secondly from imployment abroad contrary to the ancient Customes For our Goods that no levies may be made but by Parliament secondly no billetting of souldiers It is most necessary that these be resolved that the Subject may be secured in both For the manner in the second place it will be fit to determine it by a grand Committee The Speech and Argument of M r. Creswell of Lincolne's Inne one of the Members of the Commons House of Parliament concerning the Subjects grievance by the late Imprisonment of their persons without any declaration of the Cause I Stand up to speak somewhat concerning the point of the Subjects grievance by imprisonment of their persons without any declaration of the cause contrary unto and in derogation of the fundamentall Laws and Liberties of this Kingdome I think I am one of the puisnes of our profession which are of the Members of this House but howsoever sure I am that in respect of my own inabilities I am the puisne of all the whole House therefore according to the usuall course of Students in our profession I as the puisne speak first in time because I can speak least in matter In pursuance of which course I shall rather put the case then argue it and therefore I shall humbly desire first of all of this honourable House in generall that the goodnesse of the cause may receive no prejudice by the weaknesse of my Argument and next of all of my Masters here of the same profession in particular that they by their learned judgements will supply the great defects I shall discover by declaring of my unlearned opinion Before I speak of the Question give me leave as an entrance thereunto to speak first of the Occasion You shall know Iustice is the life and the heart-bloud of the Common-wealth and if the Common-wealth bleed in the Master-vein all the Balm in Gilead is but in vain to preserve this our body of Policy from ruine and destruction Justice is both Columna Corona reipubâ—icae she is both the Column and the Pillar the Crown and the glorie of the Common-wealth This is made good in Scripture by the judgement of Solomon the wisest King that ever reigned on earth For first she is the Pillar for he saith that by Justice the Throne shall be established Secondly she is the Crown for he saith that by Justice a Nation is exalted Our Lawes which are the rules of this Justice they are the ne plus ultra to both the King and the Subject and as they are the Hercules Pillar so are they the pillar to every Hercules to every Prince which he must not passe Give me leave to resemble her to Nebuchadnezzars tree for she is so great that she doth shade not onely the Pallace of the King and the house of the Nobles but doth also shelter the Cottage of the poorest beggar Wherefore if either now the blasts of indignation or the unresistable violatour of lawes Necessitie hath so bruised any of the branches of this Tree that either our persons or goods or possessions have not the same shelter as before yet let us not therefore neglect the Root of this great Tree but rather with all our possible endeavour and unfeigned dutie both apply fresh and fertile mould unto it and also water it even with our own teares that so these bruised Branches may be recovered and the whole Tree again prosper flourish For this I have learned from an ancient Father of the Church that though preces Regum sunt armatae yet arma subditorum are but only preces et lachrymâ— I know well that Cor Regis inscrutabile and that Kings although they are but men before God yet are they Gods before men And therefore to my gratious and dread Soveraigne whose virtues are true qualities ingenerate both in his judgement and nature let my arm be cut off nay let my soul not live
that daie that I shall dare to lift up my arm to touch that forbidden fruit those flowers of his princely Crown and Diadem But yet in our Eden in this garden of the Common-wealth as there are the flowers of the Sun which are so glorious that they are to be handled onely by royall Majestie so are there also some Daisies and wholsome herbs which every common hand that lives and labours in this garden may pick and gather up and take comfort and repose in them Amongst all which this oculus diei this bona libertas is one and the cheif one Thus much in all humblenesse I presume to speak for the occasion I will now descend to the Question wherein I hold with all dutifull submission to better Iudgments that these Acts of power in imprisoning and confining of his Majesties Subjects in such manner without any declaration of the cause are against the fundamentall Lawes and Liberties of this Kingdome And for these reasons thus briefly drawn I conclude 1. The first from the great favour which the Law doth give unto and the great care which it hath ever taken of the liberty and safety of this Kingdome I should not need to take the question in pieces nor handle it in parts dividedly but as one intire because I hold no other difference between imprisonment and confinement then only this that one hath a lesse and streighter the other a greater and larger Prison And this word Confinement not being to be found in any one case of our law if therefore it is become the language of State it is too difficult for me to define To proceed therefore in maintenance of my first reason I find our Law doth so much favour the Subjects liberty of his Person that the body of a man was not liable to be arrested or imprisoned for any other cause at the Common Law but for force and things done against the peace For the Common Law being the preserver of the land so abhorreth force that those that commit it she accompts her capitall enemies therefore did subject their bodies to imprisonment But by the statute of Marlebridge Cap. 24. which was made 35. Hen. 3. who was the eighth King from the Conquest because Bailiffs would not render accounts to their Lords it was enacted that their bodies should be attached And afterwards by the statute 23. Edw. 3. 17 who was the 〈◊〉 King after the Conquest because men made no Conscience to pay their debts it was enacted that their bodies should likewise be attached But before those statutes no mans body was subject to be taken or imprisoned otherwise then as aforesaid Whereby it is evident how much the Common Law favoured the Liberty of the Subject and protected his body from imprisonment I will inforce the reason further by a Rule in Law and some cases in Law upon that Rule The Rule is this That Corporalis injuria non recipit aestimationem è fuâ—uro So as if the question be not for a wrong done to the person the Law will not compell him to sustain it and afterwards except a remedy for the Law holds no damage a sufficient recompence for a wrong which is corporall The cases in Law to prove this rule shall be these If one menace me in my goods or that he will burn the evidence of my land which he hath in his custody unlesse I make unto him a Bond there I cannot avoyd the Bond by pleading of this menace But if he restrains my person or threatens me with battery or with burning my house which is a protection for my person or with burning an instrument of manumission which is an evidence of my enfranchisement upon these menaces or dares I shall avoid the bond by plea. So if a Trespassour drives my beast over another Mans ground and I pursue to rescue it there I am a Trespassour to him on whose ground I am But if a man assault my person and I for my safety fly over into another man's ground there I am no Trespassour to him for Quod quis in tuitione sui corporis fecerit jure id fecisse existimatur Nay which is more the Common Law did favour the Liberty not only of Freemen but even of the persons of Bondmen and Villains who haue no right of propriety either in lands or goods as Freemen have And therefore by the Law the Lord could not maim his Villain nay if the Lord commanded another to beat his Villain and he did it the Villain should have his action of Battery against him for it If the Lord made a Lease for yeares to his Villain if he did plead with his Villain if he tendred his Villain to be Champion for him in a Writt of Right any of those acts and many other which I omit were in Law infranchisements and made these Villains Freemen Nay in a suite brought against one if he by Attorney will pleade that he is a Villain the Law is so carefull of Freedome that it dissallowes this plea by Attorny but he must doe it propria persona because it binds his Posterity and bloud to the Villains also And thus much in the generall for my first reason 2. My next reason is drawn by an Argument à majori ad minus I frame it thus If the King have no absolute power over our Lands or Goods then à fortiori not over our Persons to imprison them without declaring the cause for our Persons are much more worth then either Lands or Goods which is proved by what I have said already and Christ himself makes it clear where he saith An nonest corpus supra vestimentum Is not the Body more worth then Raiment where the Canonists say that Vestimentum comprehendeth all outward things which are not in the same degree with that which is corporall And our Law maketh it also plain for if a Villain purchase Frankland this maketh it Villain-land according to the nature of his person but it holds not è converso Frank-land shall not free the person Now that the King hath no absolute power either over our Lands or Goods I will onely at this time but put a case or two for without proof of the Premisses my Conclusion would not follow First for Land The King cannot by his Letters pattents make the son of an Alien heir to his father nor to any other for he cannot disinherit the right heir saith the book nor do no prejudice to the Lord of his Escheat The King by his Prerogative shall pay no toll for things bought in Fairs and Markets but a custome for paying toll to go over the soil and free-holds of another shall bind the King for this toucheth the inheritance of the Subject and therefore the King shall not have so much as a way over his lands without paying and if not a way then certainly not the land it self Next for Goods If a man hath a Jewell in gage for ten pound c. and is attainted for
therefore to be suspected that if occasion serve they will rather adhere to a forreign Enemy of that Religion then to your Majestie their liege Lord and Sovereign especially some of their Captaines and Commanders being as Popishlie affected as themselves and having served in the warres in the behalf of the King of Spain and the Arch-Dutchesse against your Majesties Allyes which of what pernicious consequence it may prove and how prejudiciall to the safety of all your Kingdome we humblie leave to your Majesties high and Princely Wisdome And now upon this and many more which might be alledged most weightie and important reasons grounded upon the maintenance of the worship and service of almightie God the continuance and advancement of your Majesties high honour and profit the preservation of the ancient and undoubted Liberties of your people and therein of Justice and Industrie and Valour which clearly concernes the glorie and happinesse of your Majestie and all your Subjects and the preventing of imminent calamities and ruine both of Church and Common-wealth we your Majesties most humble and loyall Subjects the Knights Citizens and Burgesses of your House of Commons in the name of all the Commonaltie of the Kingdome who are upon this occasion most miserable disconsolate and afflicted prostrate at the throne of your Grace and Justice do most humbly and ardently beg a present remove of this insupportable burthen and that your Majesty would be graciously pleased to secure us from the like pressure for time to come The nine Heads of the House of Commons to the Speaker 1. THat it is the ancient right of Parliament to dispose of matters there debated in their own method 2. That is is their ancient custome to consider of Grievances before matters of Supplie 3. That yet neverthelesse in this Parliament to expresse our affection to his Majesty contrarie to ordâ—narie proceedings we have proceeded in the Supply as farre as we could in that Committee 4. That we have been so farre from delaying that post-posing the common and pressing grievances we have given precedencie to the supply joyning with it only the fundamentall and vitall Liberties of the Kingdome that give substance to the Subjects 5. Further to expresse the fulnesse of our affections we have exceeded our order in that particular concerning the supplie which though later in proposition yet hath been first made readie for conclusion in the Committee 6. No person or Councell can be greater lovers of or more carefull to maintain the sacred Rights and Prerogatives of the Crown then we and we do conceive that the maintaining of the fundamentall Rights and Liberties of the Subject is an especiall meanes to establish the glory of a Monarch and that by it his Subjects are the better enabled to do him service which hath been the cause of many glorious victories wone by this Nation above other Kingdomes of larger territories and greater number of people 7. What information is given to his Majesty contrary to this doth proceed from such persons as to serve their own ends under colour of advancing his Majesties Prerogative do weaken Royall power 8. We trust to be cleared in his Majesties judgement that there hath been no unnecessary stop but a most cheerfull proceeding in the matter of Supply and therefore we do humbly desire that his Majesty will take no information in this or any other businesse from private relations but to judge of our proceedings by the resolution that shall be presented to his Majestie from the House 9. Being thus rightly and graciously understood we assure our selves that the end of this Parliament shall be more happy then the beginning The Speaker Sir John Finche's Speech upon the 9 Heads 14. April 1628. Most Gracious and dread Sovereign YOur dutifull and loyall Commons here assembled were lately humble Suitours for accesse to your Royall presence The occasion that moved their desires herein was a particle of importance worthy your Princely Consideration and which as it well deâ—erves should have been the only subject of my Speech at this time But since your gracious answer for this accesse obtained by a Message from your Majestie they have had some cause to doubt that your Majestie is not so well satisfied with the manner of their proceedings as their heartie desire is you should be especially in that part which concernes your Majesties present Supply as if in the prosecution thereof they had of late used some slacknesse or delay And because no unhappinesse of theirs can parallell with that which may proceed from a misunderstanding in your Majestie of their cleer and loyall intentions they have commanded me to attend your Majestie with an humble and summarie declaration of their proceedings since this short time of their sitting which they hope will give your Majestie abundant satisfaction that never people did more truly desire to be endeared in the favour and gracious opinion of their Sovereign And withall to let your Majestie see that as you can no where have a more faithfull Councell so your great designes and occasions can no way be so speedily or heartily supported as in this old and ancient way of Parliament For this purpose they humbly beseech your Majestie to take into your Royall Consideration that although by ancient right of Parliament the matters there debated are to be disposed in their true method and order and that their constant custome hath been to take into their consideration the common Grievances of the Kingdome before they enter upon matter of Supplie yet to make a full expression of that zeal and affection which they beare to your Royall Person equalling at least if not exceeding the best affections of their predecessours to the best of your Progenitours they have in this Assemblie contrary to ordinary proceeding in Parliament given your Majesties supply precedency before the common Grievances of the Subject how pressing soever joyning only with it those fundamentall and vitall Liberties of the Kingdome which give subsistence and ability to your Subjects This was their originall order and resolution and was grounded upon a true discerning that these two considerations could not be severed but did both of them intirely concern your Majesties service consisting no lesse in encouraging and inabling your Subjects then in proportioning a Present suting to your Majesties occasions and their own abilities Nay so farre have they been from using any unnecessary delaies as that though of the two that of Supply were later in proposition amongst them yet the Grand Committee to which both were referred have made that of your Majesties Supply first ready for conclusion And to be sure your Majesties Supply might receive no interruption they differing from custome and usage in cases of this nature sent up of those that concern the Subject by parcels some to your Majestie and some to the Lords to the end your Majestie may receive such speedy content as sutes with the largest and best extent of their first order Sir you are the
breath of our nostrils and the light of our eyes and besides the many Comforts which under you and your Royall Progenitours in this frame of Government this Nation hath enjoyed the Religion we professe hath taught us whose Image you are And we do all most humbly declare to your Majestie that nothing is or can be more deare unto us then the sacred Rights and Prerogatives of your Crown no Person or Councell can be greater lovers of them nor more truly carefull to maintain them And the fundamentall Liberties which concern the freedome of our persons and propriety of our goods and estates are an essentiall meanes to establish the true glorie of a Monarch for rich and free Subjects as they are best governed so they are most able to do your Majestie service either in peace or warre which under God hath been the cause of the happie victories of this Nation beyond other Kingdomes of larger Territories and greater numbers of people What information soever contrarie to this shall be brought to your Majestie can come from no other then such as for their own ends under colour of advancing the Prerogative do in truth undermine and weaken Royall Power and by impoverishing the Subject render this Monarchie lesse glorious and the people lesse able to serve your Majestie Having by this which hath been said cleared our hearts and proceedings to your Majesty our trust is that in your Royall Judgement we shall be free from the least opinion of giving any unnâ—cessary stop to our procâ—eding in the matter of Supply and that your Majestie will be pleased to entertain belief of our alacritie and cheerfulnesse in your service and that hereafter no such misfortune shall befall us to be misunderstood by your Majestie in any thing We all most humblie beseech your Majestie to receive no information either in this or any other businesse from private relations but to weigh and judge of our proceedings by those resolutions of the House which shall be presented from our selves This rightly and graciously understood we are confident from the knowledge of your goodnesse and our own hearts that the ending of this Parliament shall be much more happy then the beginning and that it shall be stiled to all ages The Blessed Parliament which making perfect union betwixt the best people your Majestie may ever delight in calling us together and we in the Comforts of your Gracious Favour towards us In this hope I return to my first errand which will best appear by that which I shall humbly desire your Majesty to hear read being an humble Petition from the House of Commons for redresse of those many inconveniences and distractions that have befallen your Subjects by the billetting of Souldiers Your Royall Progenitours have ever held their Subjects hearts the best Garrison of this Kingdome And our humble suit to your Majesty is that our Faith and Loyalty may have such place in your Royall thoughts as to rest assured that all your Subjects will be ready to lay down their lives for the defence of your Sacred Person and this Kingdome Not going our selves into our Countreys this Easter we should think it a great happinesse to us and we know it would be a singular comfort and encouragement to them that sent us hither if we might but send them the newes of a gracious Answer from your Majesty in this particular which the reasons of the Petition we hope will move your most excellent Majesty graciously to vouchsafe us The King's Answer to the Petition concerning billetting of Souldiers 14 April 1628. M r Speaker and you Gentlemen WHen I sent you my last message I did not expect any Reply for I intended to hasten you not to find fault with you I told you at your first meeting that this time was not to be spent in words and I am sure it is lesse fit for disputes which if I had a desire to entertain M r Speaker's Preamble might give me ground enough The Question is not now what Libertie you have in disposing of matters handled in your House but rather what is fit to be done Therefore I hope you will follow my example in eschewing disputations and fall to your important businesse You make a protestation of your affections and zeal to my Prerogative grounded upon so good and just reasons that I must believe you But I look that you use me with the like charitie to believe what I have delivered more then once since your meeting which is That I am as forward as you for the preservation of your true Liberties yet let us not spend so much time in this that may hazzard both my Prerogative and your Liberties to our Enemies To be short go on speedily with your businesse without fear or more Apologies for time calls fast on you which will neither stay for me nor you Wherefore it is my dutie to presse you to hasten as knowing the necessity of it and yours to give credit to what I say as to him that sitteth at the Helme Sir Dudley Diggs his Introduction My Lords I Shall I hope auspiciously bâ—gin this Conference this day with an Observation out of Holy Story In the dayes of good King Iosiah when the Land was purged of Idolatry and the great men went about to repaire the House of God while money was sought for there was found a Book of the Law which had been neglected and afterwards being presented to the good King 2 Chro. cap. 34. 2 Kings cap. 22. procured the blessing which your Lordships may read of in the Scriptures My good Lords I am confident your Lordships will as cheerfully joyn with the Commons in acknowledgement of Gods great blessing in our good King Iosiah as the Knights Citizens and Burgesses of the Commons House by me their unworthy servant do thankfully remember your most religious and truly honourable invitation of them to the late Petition for clensing this Land from Popish Abominations which I may truly call a necessary and happy repairing of the House of God And to go on with the parallell while we the Commons out of our good affection were seeking for money we found I cannot say a book of the Law but many and those fundamentall points thereof neglected and broken which hath occasioned our desire of this Conference Wherein I am first commanded to shew unto your Lordships in generall that the Lawes of England are grounded on reason ancienter then bookes consisting much in unwritten Customes yet so full of Justice and true Equity that your most honourable Predecessours and Ancestours many times propugned them with a Nolumus Mutare and so ancient that from the Saxons daies notwithstanding the Injuries and Ruines of Time they have continued in most parts the same as may appear in old remaining Monuments of the Lawes of Ethelbert the first Christian King of Kent In Bibliotheca â—ottoniana Ina King of the West-Saxones offa of the Mercians and of Alfred the great Monarch who united
words per legem terrae the Kings Councell were desired to declare their meaning which they never offered to do and yet certainly these words were not put into the Statute without some intention of consequence Whereupon M r Serjeant Ashley offered an interpretation of them thus Namely that there were divers Lawes of this Realme as the Common Law the Law of the Chauncerie the Ecclesiasticall Law the Law of the Admiraltie or Marine Law the Law of Merchants the Martiall Law and the Law of State and that these words per legem terrae do extend to all those Lawes The answer To this it was answered that we read of no Law of State and that none of these Lawes can be meant there save the Common Law which is the principall and generall Law and is alwayes understood by way of excellency when mention is made of the Law of the Land generally and that though each of the other Lawes which are admitted into this Kingdome by Custome or Act of Parliament may justly be called a Law of the Land yet none of them can have the preeminence to be stiled the Law of the Land And no Statute Law-book or other Authoritie printed or unprinted could be shewen to prove that the Law of the Land being generally mentioned was ever intended of any other Law then the Common Law and yet even by these other Lawes a man may not be committed without a cause expressed But it standeth with the rule of other legall expositions that per legem terrae must be meant the Common Law which is the generall and universall Law by which men hold their inheritances And therefore if a man speak of Escuage generally it is understood as Littleton observeth of the incertain Escuage which is a Knights-Service Tenure for the defence of the Realm by the body of the Tenant in time of warre and not of the certain Escuage which giveth only a contribution in money and no personall service And if a Statute speakes of the Kings Courts of Record it is meant only of the 4 at Westm. by way of excellency Coke 6. 20. Gregorie's Case So the Canonists by the excommunication simplie spoken do intend the greater excommunication and the Emperour in his Institutions saith that the Civil Law being spoken generally is meant of the Civil Law of Rome though the Law of every City is a Civil Law as when a man names the Poet the Grecians understood Homer the Latinists Virgil. Secondly admit that per legem terrae extends to all the Lawes of the Realm yet a man must not be committed by any of them but by the due proceedings that are exercised by those Lawes and upon a Cause delivered Again it was urged that the King was not bound to expresse the cause of imprisonment because there may be in it matter of State not fit to be revealed for a time lest the Confederates thereupon make meanes to escape the hands of Justice And thereupon the Statutes cannot be intended to restrain all commitments unlesse a cause be expressed for that it would be very inconvenient and dangerous to the State to publish the cause at the very first Answer Hereupon it was replied by the House of Commons that all danger and inconvenience may be avoided by declaring a generall Cause as for treason suspicion of treason misprision of treason or fellony without specifying the particular which can give no greater light to a Confederate then will be conjectured by his very apprehension upon the imprisonment if nothing at all were expressed It was further alledged that there was a kind of contradiction in the position of the Commons when they say the partie committed without a cause shewed ought to be delivered or bailed Bailing being a kind of imprisonment Delivery a totall freeing To this it was answered that it hath alwayes been the discretion of the Judges to give so much respect to a Commitment by the Command of the King or the Privie Councell which are ever intended to be done on just weightie Causes that they will not presently set him free but baile him to answer what shall be objected against him on his Majesties behalf But if any other inferiour Officer commit a man without a cause shewed they do instantly deliver him as having no cause to expect their pleasure So the Delivery is applyed to an imprisonment by the command of some mean minister of Justice Bailing when it is done by the Command of the King or his Councell It was said by M r Attorney That Bailing was a grace and favour of a Court of Justice and that they may refuse to do it This was agreed to be true in divers cases as where the case doth appeare to be for fellony or other crimes expressed for that there is another way to discharge them in some convenient time by their triall yet in some of these cases the constant practise hath been anciently modernly to baile them But where no cause of the imprisonment is returned but the Command of the King there is no way to deliver such persons by triall or otherwise but that of the habeas Corpus and if they should be then remanded they may be perpetually imprisoned without any remedy at all and consequently a man that had committed no offence be in worse case then a great Offender for the latter should have an ordinarie triall to discharge him the other should never be delivered It was further said that though the Statute of Westm. 1. cap. 15. as a Statute by way of provision did extend only to the Sheriff yet the recitall of that Statute touching the 4 cases wherein a man was not replevisable at the Common Law namely those that were committed for the death of a man by the command of the King or the Justices or for the Forrest did declare that the Justices could not baile such a one and that Replevisable and Bailable were Synonyma and all one and that Stamford a Judge of great authority doth expound it accordingly and that neither the Statute nor he sayes replevisable by the Sheriff but generally without restraint and that if the Chief Justice commits a man he is not to be enlarged by another Court as appeareth in the Register To this it was answered First that the recitall and body of the Statute relates only to the Sheriff as appeareth by the very words Secondly that replevisable is not restrained to the Sheriffs for that the words import no more that a man committed by the Chief Justice is bailable by the Court of Kings Bench. Thirdly that Stamford meaneth all of the Sheriff or at least he hath not sufficiently expressed that he intended the Justices Fourthly It was denyed that Replevisable and Bailable were the same for they differ in respect of the place where they are used Baile being in the Kings Court of Record Replevisable before the Sheriff and they are of severall natures Replevisable being a letting at large upon Sureties Bailing being when
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 found 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 fafety 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 ratiâ— 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 itâ— 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 dâ—nizâ—ns 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 confiâ—med 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 communerequirit 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
for they are not within this Statute and yet this Court doth it at pleasure But plainly by the Statute it self it appears that it meant only to the common writ for the preamble recites that the Sheriffs and other have taken and kept in prison persons detected of felony and let out to plevin such as were not reprisable to grieve the one party and to the gain of the other and forasmuch as before this time it was not determined what prisoners were reprisable which not but onely in certain cases were expressed therefore it is ordained c. Now this is no more but for direction of the keepers of the prisons for it leaves the matter to the discretion of the Judges whether bailable or no not of the Judges for when the Statute hath declared who are repleviable who are not as men outlawed have abjured the Realm Proves such as be taken in the manner breakers of prisons buâ—ners of houses makers of false money counter feiting of the Kings Seal and the like it is then ordained that if the Sheriff or any other let any go at large by surety that is not reprisable if he be Sheriff Constable or any other that hath the keeping of prisons and thereof be attainted he shall lose his office and fee for ever so that it extends to the common Goalers and keepers of prisons to direct them in what cases they shall let men to bail and in what cases not and that they shall not be Judges to whom to let to replevin and whom to keep in prison but it extends not to the Judges for if the makers of the Statute had meant them in it they should have put a pain upon them also So then I conclude upon these under your Lordships favour that as this case is there should have been a cause of the commitment expressed for these Gentlemen are brought hither by writ ad subjiciendum if they be charged and ad recipiendum if they be not charged and therefore in regard there is no charge against them whereupon they should be detained in prison any longer we desire that they may be bailed or discharged by your Lordship The Argument of Master Selden upon the Habeas corpus My Lords I am of Councell with Sir Edmond Hampden his case is the same with the other two Gentlemen I cannot hope to say much after that that hath been said yet if it shall please your Lordship I shall remember you of so much as is befallen my lot Sir Edmond Hampden is brought hither by a writ of Habeas corpus and the keeper of the Gate-house hath returned upon the writ that Sir Edmond Hampden is detained in prison per speciale mandatum Domini Regis mihi significatum per Warrantum duorum Privati Concilii dicti domini Regis and then he recites the warrants of the Lords of the Councell which is that they do will and require him to detain this Gentleman still in prison letting him know that his first imprisonment c. May it 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
18. Edward 3. he was returned and brought before them as Committed onely by the Writt wherein noe Cause is expressed and the Leivetenant the Constable of the Tower that brought him into the Court saies that he had no other warrant to detain him Nisi breve predictum wherein there was no mention of any Cause the Court thereupon adjudged that breve predictum for that speciall command was not sufficient causa to detain him in prison and thereupon he is by judgment of the Court in Easter term let to Mainprize But that part of the Record wherein it appears that he had indeed been committed for suspicion of Treason is of Trinity term following when the King after the letting of him to Mainprize sent to the Judges that they should discharge his Mainprize because no man prosecuted him And at that time it appears but not before that he had been in for suspicion of Treason so that he was returned to stand committed by the Kings special command onely without Cause shewed in Easter term And then by judgment of the Court let to Mainprize which to this purpose is but the same with bail though otherwise it differ And in the term following upon another occasion the Court knew that he had been committed for suspicion of Treason which hath no relation at all to the letting of him to Mainprize nor to the judgement of the Court then given when they did not nor could possible know any Cause for which the King had committed him And it was said in behalf of the house of Commons that they had not indeed in the Argument expresly used this latter part of Bildstones Case because it being onely of Trinity term following could not concern the reason of an Award given by the Court in Easter term next before yet notwithstanding that they had most faithfully at the time of their Argument delivered into the Lords as indeed they had a perfect coppy at large of the whole Record of this Case as they had done also of all other presidents whatsoever cited by them in so much as in truth there was not one president of Record of either side the coppy whereof they had not delivered in likewise nor did M r. Attorney mention any one besides those that were so delivered in by them And as touching those 3. kinds of Records the remembrance Roll the return and file of the Writt and the Scruets it was answered by the gentlemen imployed by the house of Commons that it was true that the Scruect and return of this Case of Bildstone was not to be found but that did not lessen the weight of the president because always in the Award or Judgment drawn up in the remembrance Roll the Cause whatsoever it be when any is shewed upon the return is always expressed as it appears clearly by the constant Entries of the Kings-Bench Court so that if any Cause had appeared plainly in that part of the Roll which belongs to Easter term wherein the Judgment was given but the return of the commitment by the Kings command without Cause shewed and the Judgment of the Court that the Prisoner was to be let to Mainprize appears therein onely and so notwithstanding any Objection made by M r. Attorney the Cause was maintained to be a clear proof among many others touching the resolution of the house of Commons To the second of these 12. which is Parkers Case in the 22. H. 8. Rot. 37. his Objections were two First that it is true that he was returned to be committed Per mandatum domini Regis but it appeared that this command was certified to the Shreiffs of London by one Robert Peck gentleman and that in regard that the command came no otherwise the return was held insufficient and that therefore he was bailed Secondly that it appears also in the Record that he was committed pro suspicione felloniae ac per mandatum domini Regis so that in regard that the command that in the expression of the causes of his commitment suspicion of fellony preceeds the command of the King therefore it must be intended that the Court tooke the Cause why the King committed him to be of less moment then fellony and therefore bailed him For he Objected that even the house of Commons themselves in some Arguments used by them touching the interpretation of the statute of Westminster the first cap. 15. about this point had affirmed that in enumeration of particulars those of greatest nature were first mentioned and that it was supposed that such as followed were usually of less nature or moment But the reply was to the first Objection that the addition of the certefying of the Kings command by Robert Peck altered not the Case First because the Sheriffs in their Return took notice of the command as what they were assured of and then howsoever it came to them it was of equal force as if it had been mantioned without reference to Peck Secondly as divers Patents pass the great Seal by writ of privy Seal and are subscribed Per breve de privato sigillo so diverse per ipsum Regem are so subscribed and oftentimes in the Roll of former times to the words per ipsum Regem are added nunciante A. B. So that the Kings command generally and the Kings command related or certified by such a man is to this purpose of like nature Thirdly in the late great Case of Habeas Corpus where the Return of the commitment was Per speciale mandatum Domini Regis mihi significatum per Dominos de privato Consilio the Court of Kings-Bench did agree that it was the same and of like force as if mihi significatum c. had not followed and that those words were void According whereunto here also Per mandatum Dom. Regis nunciatum per Robert Peck had been wholly omitted and void likewise And in truth in that late Case this Case of Parker was cited both at the Barr and Bench and at the Bench it was interpreted by the Judges no otherwise then if it had been onely per mandatum Domini Regis in place of it but the Objection there was made of another kinde as was delivered in the first Argument made out of presidents in the behalf of the house of Commons Therefore to the second Objection touching the course of Enumeration of the Causes in the Return it was said that howsoever in some Acts of Parliament and else where in the solemn expressions used in the Law things of greater nature preceded and the less follow yet in this Case the contrary was most plain for in the Return it appears that there were three Causes for detaining the Prisoners Surety of the peace Suspicion of Fellony and the Kings command and Surety of the peace is first mentioned which is plainly less then Fellony And therefore it is plain if any force of Argument be taken from this enumeration that the contrary to that which M r. Attorney inferred is
Person that committed the Prisoner was understood for the Causâ— captionis or Causâ— detentionis but onely the reason why that Power or Person committed the Prisoner as also in common speech if a man ask why and for what cause a man stands committed the answer is not that such a one committed him but his offence or some other cause is understood in the question and is to be shewed in the Answer But to say that such an one committed the Prisoner is an answer to the question who committed him and not why or for what cause he stands committed Then for that of the Coppy of the Report of 13. Iac. shewed forth by M r. Attorney it was answered That the Report it self which had been before seen and perused among many other things at a Committee made by the House was of sleight or no Authority for that it was taken by one that was at that time a young Student onely and was a Reporter in the Kings-bench and there was not any other Report to be found that agreed with it Secondly although the Reports of young Students when they take the words of Judges as they fall from their mouth at the Bench and in the Person and form as they are spoken may be of good credit Yet in this Case there was not one word so reported but in truth there being three Cases a time in the Kings-bench one Ruswell and one Allen and one Saltonstall every of which had something of like nature in it the Student having been present in the Court made up the form of one Report or Case out of all those three in his own words and so put it into his book so that there is not a word in the Report but is framed according to the Students fancie as it is written and nothing is expressed in it as it came from the mouth of the Judges otherwise then his fancie directed him Thirdly there are in the Report plain falshoods of Matter of Fact which are to be attributed either to the Judges or to the Reporter It is most likely by all reason that they proceeded from the Reporters fault but however those Matters of falshood shew sufficiently that the credit of the rest is of slight value for the purpose It is said in the Report that Harecourt being committed by the Councel was bayled in 40. Eliz. upon a privy Seal or a Letter where as there was no such thing in truth And it is said there that no such kinde of Letters are filed there in any case whatsoever That resolution of the Judges in 34. is miscited there and in 36. of Queen Eliz. and it is said there that by that resolution a Prisoner returned to be committed by the command of the Councel might not at all be delivered by the Court whereas no such thing is comprehended in that resolution But that which is of most moment is that howsoever the truth of the report were yet the opinion of the Judges being sudden without any debate had of the case is of fleight moment For in difficult points especially the gravest and most learned men living may on the sudden let fall and that without disparragement to them such opinions as they may well and ought to change upon further enquiry and examination and full debate had before them and mature deliberation taken by them Now plainly in that case of the 13. Iacob there is not so much as pretence of any debate at Bar or Bench. All that is reported to have been is reported as spoken upon the sudden and can any man take such a sudden opinion to be of value against solemne debates and mature deliberation since had of the point and all circumstances belonging to it which have within this half year been so fully examined and searched into that it may well be affirm'd that the learned'st man whatsoever that hath now considered of it hath within that time or might have learned more reason of satisfaction in it then ever before he met with Therefore the sudden opinions of any Judge to the contrary is of no value here Which also is to be said of that opinion obviously delivered in the Commons House 18. Iac. as M r. Attorney objected out of the Journal book of the House But besides neither was the truth of that report of that opinion in the Journal any way acknowledged For it was said in behalf of the House of Commons that their Journals were for matter of order and resolutions of the House of such Authority as that they were as their Records but for any particular Mans opinion noted in any of them it was so far from being of any Authority with them that in truth no particular opinion is at all to be entered in them and that their Clerks offend when ever they do the contrary And to conclude no such opinion whatsover can be sufficient to weaken the clear Law comprehended in these resolutions of the House of Commons grounded upon so many Acts of Parliament so much reason of Common Law and so many Presidents of Record and the resolution of all the Judges of Englaâ—d and against which no Law written not one President not one reason hath been brought that makes any thing to the contrary And thus to this purpose ended the next day of the Conference desired by the Lords and had by a Committee of both Houses The Proceedings against the Earle of SUFFOLK 14. April 1628. MR. Kerton acquainted the House how that the Earle of Suffolk had said to some Gentlemen that M r. Selden had razed a Record and deserved to be hanged for going about to set division betwixt the King and his Subjects And being demanded to whom the words were spoken he was unwilling to name any till by question it was resolved he should nominate him He then named S r. Iohn Strangwaies who was unwilling to speak what he had heard from the Earle but being commanded by the House and resolved by question he confessed That upon Saturday last he being in the Committee Chamber of the Lords the Earle of Suffolk called him unto him and said Sir Iohn will you not hang Selden To whom he said for what The Earle replied By God he hath razed a Record and deserves to be hanged This the House took as a great injury done to the whole House M r. Selden being imployed by them in the conference with the Lords in the great cause concerning the Liberty of the Persons of the Subjects The House presently sent S r. Robert Philips with a message to the Lords to this effect He expressed the great care the Commons had upon all occasions to maintain all mutual respect and correspondency betwixt both Houses Then he informed them of a great injury done by the Earle of Suffolk to the whole house and to M r. Selden a particuler Member thereof who by their Command had been imployed in the late conference with their Lordships That the House was very sensible thereof and
be determined by any legal direction for it must needs be an hard case of contention when the Conquerour must sit down with irreparable losses as in this Case If the Subject prevails he gains Liberty but looseth the benefit of that State-Government by which a Monarchie may soon become an Anarchie or if the State prevails it gives absolute Soveraignty but looseth Subjects not their subjection for obedience we must yield though nothing be left us but prayers and tears but yet looseth the best part of them which is their affections whereby Soveraignty is established and the Crown formerly fixt on his Royal head between two such extreams there is not way to moderate but to finde a medium for the accommodation of the difference which is not for me to prescribe but onely to move your Lordships to whom I submit After M r. Serjeant his speech ended my Lord President said thus to the Gentlemen of the House of Commons That though at this free conference Liberty was given by the Lords to the Kings Councel to speak what they thought fit for his Majesty Yet M r. Serjeant Ashley had no Authority or direction from them to speak in that manner he hath done M r. NOYE his Argument the 16. of April 1628. HE offered an answer to the inconveniences presented by Mr. Attorney which were 4. in Number First where it was objected that it was inconvenent to express the cause for fear of divulging Arcana â—mperii for hereby all may be discovered and abundance of Traitors never brought to Justice To this that Learned Man answered That the Judges by the intention of the Law are the Kings Councel and the secrets may safely be committed to all or some of them who might advise whether they will bayl him and here is no danger to King or subjects for their Oath will not permit them to reveal the secrets of the King nor yet to detain the Subjects long if by Law he be to be bayled Secondly for that Objection of the Children of Odonell he laid this for a ground that the King can do no wrong but in Cases of extream necessity we must yield sometimes for the preservation of the whole State ubi unius damnum utilitate publica rependitus he said there was no trust in the Children of Traitours no wrong done if they did tabe facere or marcesere in Carcere It is the same Case of necessity as when to avoid the burning of a Town we are forced to pull down an honnest mans House or to compell a man to dwell by the Sea-side for defence or fortitude Yet the King cannot do wrong for potentia juris est non injura Ergo the Act of the King though to the wrong of another is by the Law made no wrong as if he commanded to be kept in Prison yet he is responsal for his wrong he quoted a book 42. 6. Ass Port. Thirdly the instance made of Westminster First he said there was a great difference between those 3. Mainprize Bail and Replevin The Statute saith a man cannot be repleiued Ergo not bayled non sequitur Maniprize under pain Bayl body for body no pain ever in Court to be declared Replevin neither by surety not bayl of Replevin never in Court the Statute saith a man cannot be Repleiued Ergo not bayled non sequitur Fourthly where it 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 if 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 Gentleman 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 sufficients enumer atiâ— 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 in 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 â—o many strangers it is but damnum â—ine 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 HABE AS 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 forseiting 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 Honse 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
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 prosession 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 sort 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. April 1628. Mr. Speaker WE are now upon a great business and the manner of handling it may be as great as the business it self I need not tell you that Liberty is a pretious thing for every man may set his own price upon it and he that doth not value it deserves to be valued accordingly for my own part I am clear without scruple that what we have resolved it according to Law and if any Judge in England were of a contrary opinion I am sure we should have heard of him before now Out of all question the very point the scope and drift of Magna Charta was to reduce the Regal to a Legal power in matters of imprisonment or else it had not been worth so much contending for But there have been Presidents brought to prove the practise and interpretation of the Law I confess I have heard many Presidents of utillity and respect but none at all of truth or of Law Certainly there is no Court of Justice in England that will discharge a Prisoner committed by the King Rege inconsulto without acquainting the King yet this good manners was never made or mentioned as a legal part of the delivery It is Objected that the King ought to have a trust left and deposited in him God forbid but he should And I say that it is impossible to take it from him for it lies not in the wit of man to devise such a Law as should be able to comprehend all particulers all accidents but that extraordinary cases must happen which when they come If they be disposed of for the Common good there will be no Law against them yet must the Law be general for otherwise admissions and exceptions will fret and eat out the Law to nothing God himself hath constituted a general Law of nature to govern the ordinary course of things he hath made no Laws for miracles Yet there is this observation of them that they are rather praeter naturam then contra naturam and alwayes propter bonos fines for Kings Prerogatives are rather besides the Law then against it and when they are directed to right ends for the publick good they are not onely concurring Laws but even Laws in singularity and excelling But to come nearer M r. Speaker let us consider where we are now what steps we have gone and gained the Kings learned Councel have acknowledged all the Laws to have been still in force the Judges have disallowed any Judgement against these Laws the Lords also have confessed that the Laws are in full strength they have further retained our resolution intire and without prejudice All this hitherto is for our advantage but above all his Majesty himself being publickly present declared by the mouth of my Lord Keeper before both the Houses that Magna Charta and the other six Statutes are in force that he will maintain his Subjects in the liberty of their Persons and the propriety of their goods that he will govern according to the Laws of the Kingdom this is a solemne and bindeing satisfaction expressing his gracious readiness to comply with his People in all their reasonable and just desires The King is a good man and it is no diminution to be called so for whosoever is a good man shall be greater then a King that is not so The King certainly is exceeding tender of his present Honour and of his fame hereafter he will think it hard to have a worse mark set upon him and his Government then any of his Ancestors by extraordinary restraints his Majesty hath already intimated unto us by a message that
may be said that the offence was of that nature that the time of his imprisonment before the Return was a sufficient punishment and we may be frequently imprisoned in this manner and never understand the cause and have often such punishment and have no means to justifie our selves and for all these proceedings this Law will be the justification or colour 2. If by this Act there be a Tolleration of imprisonment without shewing cause untill the Return of the Habeas Corpus yet it is possible to accompany that imprisonment with such circumstances of close restraint and others which I forbear to express as may make an imprisonment for that short time as great a punishment as a perpetual imprisonment in our ordinary manner 3. The party may be imprisoned a long time before he shall come to be delivered by this Law The place of his imprisonment may be in the furthest parts of this Kingdom The Judges always makes the Return of the Habeas Corpus answerable to the distance of the Prison from Westminster The Goaler may neglect the Return of the first Process and then the party must procure an alias and the Goaler may be then in some other imployment for the King and excuse the not returning of the body upon that Process and this may make the imprisonment for a year and in the end no cause being returned the party may be discharged but in the mean time he shall have imprisonment he shall never know the cause he shall have no remedy for it nor be able to question any for injustice which have not a justification or excuse by this Law 4. The party may be imprisoned during his life and yet there shall be no cause ever shewn I will instance in the manner a man may be committed to the furthest part of the Kingdom Westward he obtains an Habeas Corpus Before the Goaler receives the Habeas Corpus or before he returns it the Prisoner by Warrant is removed from that Prison to another it may be the furthest Northern part of the Realm the first Goaler returns the special Matter which will be sufficient to free himself and in like manner the Prisoner may be translated from one Prisoh to another and his whole life shall be a preregrination or wayfairing from one Goal to another and he shall never know the cause not be able to compalin of any who cannot defend their actions by this Bill 5. If the Prisoner be brought into the Court by Habeas Corpus and no cause expressed and thereupon he be enlarged he may be partly committed again and then his enlargement shall onely make way for his commitment and this may continue during his life and he shall never know the cause and this not remedied but rather permitted by this Act. And there are also considerable in this Matter the expence of the party in Prison His Fees to the Goaler his costs in obtaining and prosecuting an Habeas Corpus and his charges in removing himself attended with such as have the charge of his conduct and that the Prisoner must sustain all without satisfaction or knowing the cause The onely reason given by those of the other opinion That it is requisite the King and Councel should have power to command the detainer of a man in Prison for sometime without expressing the cause is because it is supposed that the manifestation of the cause at first may prevent the discovery of a Treason The reason is answered by the remedy proposed by this Act it being proposed that it shall be provided by this Bill that upon our commitment we may have instantly recourse to the Chancery for an Habeas Corpus retornable in that Court which is alwayes open that partly upon the receipt thereof the Writ must be returned and the cause thereupon expressed If then this remedy be really the cause of commitment must partly appear which contradicts the former reason of State And in my own opinion we ought not onely to take care that the Subject should be delivered out of Prison but to prevent his imprisonment The Statute of Magna Charta and the rest of the Acts providing that no man should be imprisoned but by the Law of the Land And although the King or Councel as it hath been objected by might may commit us without cause notwithstanding any Laws we can make Yet I am sure without such an Act of Parliament such commitment can have no Legal colour and I would be loath we should make a Law to endanger our selves for which reasons I conceive that there being so many wayes to evade from this Act we shall be in worse case by it then without it providing no remedy to prevent our imprisonment without expressing the cause to be Lawfull and administers excuses for continuing us in Prison as I have before declared and thus for providing for one particuler out of reason of State which possibly may fall out in an age or two we shall spring a leak which may sinck all our Liberties and open a gap through which Magna Charta and the rest of the Statutes may issue out and vanish I therefore conclude that in my poor understanding which I submit to better Judgements I had rather depend upon our former resolutions and the Kings gracious Declarations then to pass an Act in such manner as hath been proposed The Speakers speech to his MAJESTY in the Bancketting-House 5. May 1628. Most gracious and dread Soveraign YOur Loyal and dutifull Subjects the Commons assembled in Parliament by several Messages from your Majesty especially by that your must Royal Declaration delivered by the Lord Keeper before both Houses have to their exceeding joy and comfort received many ample expressions of your Princely care and tender affection towards them with a gracious promise and assurance that your Majesty will govern according to the Laws and Statutes of this Realm and so maintain all your Subjects in the just freedom of their Persons and safety of their Estates that all their Rights and Liberties may be by them enjoyed with as much freedom and security in your time as in any age heretofore by their Ancestors under the best of your Royal Progenitors For this so great and gracious a favour enlarged by a continual intimation of your Majesties confidence in the proceeding of this House they do by me their Speaker make a full return of most humble thanks to your Majesty withall dutifull acknowledgement of your grace and goodness herein extended to them And whereas in one of these Messages delivered from your Majesty there was an expression of your desire to know whether this House would rest upon your Royal word and promise assuring them if they would it should be Royally and really performed As they again present their humble thanks for this seconding and strengthning of your former Royal expressions so in all humbleness they assure your Majesty that their greatest confidence is and ever must be in your gracious favour and
and Commission whereby it may be executed I have here in my hand delivered unto me by a Noble Gentleman of that Nation and a worthy Member of this House Sir Francis Stuart To conclude although Christianity and Religion be established generally throughout this Kingdom yet untill it be planted more particularly I shall scarce think this a Christian Common-wealth seeing it hath been moved and stirred in Parliament it will lye heavy upon Parliaments untill it be effected Let us do something for God here of our own and no doubt God will bless our proceedings in this place the better for ever hereafter And for my own part I will never give over solliciting this cause as long as Parliaments and I shall live together CHARLES REX To our trusty and well-beloved the Lords Spiritual and Temporal of the Higher House of PARLIAMENT WE being desirous of nothing more then the advancement of the good peace and prosperity of our people have given leave to free debates of highest points of our Prerogative Royal which in times of our Predecessors Kings and Queens of this Realm were ever restrained as Matters they would not have disputed and in other things we have been willing fairly to condiscend to the desires of our loving Subjects as might fully satisfie all moderate mindes and free them from all just fears and jealousies with those Messages which heretofore we have sent to the Commons House will well demonstrate to the World and yet we finde it still insisted on that in no case whatsoever should it never so nearly concern Matters of State and government we nor our privy Councel have power to commit any man without the cause shewed whereas it often happens that should the cause be shewed the service thereby would be destroyed and defeated and the cause alleadged must be such as may be determined by our Judges of our Courts at Westminster in a Legal and Ordinary way of Justice whereas the cause may be such whereof the Judges have no capacity of Judicature or rules of Law to direct or guide their Judgements in cases of that transcendent nature which hapning so often the very intermitting of the constant rules of government for many ages within this Kingdom practised would soon dissolve the very frame and foundation of our Monarchy wherefore as to our Commons we have made propositions which might equally preserve the just Liberty of the Subject So my Lords we have thought good to let you know that without overthrow of our Soveraignty we cannot suffer this power to be impeached But notwithstanding to clear our conscience and just intentions this we publish that it is not in our hearts nor ever will we extend our royal power lent unto us from God beyond the just rule of moderation in any thing which shall be contrary to our Laws and Customes where the safety of our people shall be our onely aim And we do hereby declare our royal pleasure and resolution to be which God willing we shall ever constantly continue and maintain that neither we nor our privy Councel 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 advanced 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 Reveâ—â—â—â—â— 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 Majesty to hazard an end of such unspeakable consequence upon the admittance of this addition into our Petition whereof as we have shewed the omission at this time can by no means harm the Kings Prerogative the expression may produce manifold inconveniences and therefore since the admittance of your Lordships addition into our Petition is incoherent and incompatible with the body of the same since there is no necessary use of it for the saving of the Kings rerogative since the moderation of our Petition deserveth your Lordships cheerfull conjunction with us since this addition is unseasonable for the time and inconvenient in respect of the place where your Lordships would have it inserted and lastly may prove a disservice to his Majesty I conclude with a most affectionate prayer to your Lordships to joyn with the House of Commons in presenting this Petition unto his sacred Majesty as it is without this addition The KINGS speech in the Higher House at the meeting of both Houses 2. June 1628. Gentlemen I Am come hither to perform my duty and I think no man will think it long since I have not taken so many dayes in answering of the Petition as you have spent weeks in framing it and I am come hither to shew you that as well in formall things as in essential I desire to give you as much content as in me lies The Lord KEEPER in explanation of the same MY Lords and you the Knights Cittizens and Burgesses of the House of Commons his Majesty hath commanded me to say unto you that he takes it in good part that in consideration how to settle your own Liberty you have generally professed in both Houses that you have no intention for to lessen or diminish his Majesties Prerogative wherein as you have cleared your own intentions so his Majesty now comes to clear his and to strike a firm league with his people which is ever decreed to be most constant and perpetual when the conditions are equal and known to be so These cannot be in a more happy estate then when your Liberties shall be an ornament and strength to his Majesties Prerogative and his Prerogative a defence to your Liberties In this his Majesty doubts not but both you and he shall take a mutual comfort hereafter and for his part he is resolved to give an example in so using of his power as hereafter you shall have no cause to complain This is the summe of that which I am to say to you Here read your own Petition and his Majesties gracious answer The KINGS answer to the Petition of Right 2. June by the Lord KEEPER THe King willeth that Right be done according to the Laws and Customes of the Realm and that the Statutes be put in due execution that the Subject may have no cause to complain of any wrong or oppression contrary to their just Rights and Liberties to the preservation whereof he holds himself in conscience as well obliged as of his Prerogative Sir JOHN ELLIOTS Speech 3. June Mr. Speaker WE sit here as the great Councel of the King and in that capacitie it is our duty to take into consideration the State and affairs of the Kingdom and where there is occasion to give them in a true representation by way of council and advice with what we conceive necessary or expedient for them In this consideration I confess many a sadd thought hath affrighted me and that not onely in respect of our dangers from abroad which yet I know are great as they have been often in this place prest and dilated to us but in respect of our disorders here at home we do inforce those dangers and by which they are occasioned For I believe I shall make clear unto you that I oth at first the cause of these dangers were disorders and our disorders now are yet our greatest dangers and not so much the potency of our enemies as the weakness of our selves do threaten us and that saying of the Father may be assumed by us Non tam potentia sua quam negligentia nostra Our want of true devotion to heaven our insincerity and doubling in Religion our want of Councels our precipitate actions the sufficiency or unfaithfulness of our Generals abroad the corruptions of our Ministers at home the impoverishing of the Soveraign the oppression and depression the exhausting of our treasures waste of our provisions Consumption of our Ships destruction of Men This makes the advantage to our enemies not the reputation of their Arms. And if in these there be not reformation we need no Foes abroad time it self will ruine us To shew this more fully as I believe you will all hold it necessary that there seem not an aspertion on the State or imputation on the Government as I have known such mentions misinterpreted which far it is from me to propose that have none but clear thoughts of the Excellency of his Majestie nor can have other ends but the advancement of his glory I shall desire a little of your patience extraordinarily to open the particulars which I shall do with what brevity I may answerable to the importance of the cause and the necessity now upon us yet with such respect and observation to the time as I hope it shall not be troublesome For the first then our insincerity and dubling in Religon the greatest and most dangerous disordor of all others which hath never been unpunished and of which we have so many strong examples of all States and in all times to awe us What testimony doth it want will you have Authority os bookes look on the collection of the Committee for Religion there is too clear an evidence will you have Recors see then the Commission procured for composition with the Papists in the North Mark the proceedings thereupon you will finde them to little less amounting then a tolleration in effect thought upon some slight payments and the easiness in them will likewise shew the favour that 's intended Will you have proofs of men witness the hopes witness the presumptions witness the reports of all the Papists generally observe the dispositions of Commanders the trust of Officers the confidence of secrecies of imployments in this Kingdom in Ireland and elsewhere they all will shew it hath too great a certainty and unto this add but the incontrolable evidence of that all-powerfull hand which we have felt so sorely that gave it full assurance for as the Heavens oppose themselves to us for our impiety so it is we that first oppose the Heavens For the second our want of Councels that great disorder in State with which there cannot be stability if effects may shew their causes as they are after a perfect demonstration of them our misfortunes our disasters serve to prove it and the consequence they draw with them If reason be allowed in this dark age the judgment of dependencies and foresight of contingencies in affairs confirm it For if we view our selves
as you know almost the whole World in league against us nor will I mention of the leaving of the Wines the leaving of the Salt which were in our possession of a value as they said to answer much of our expence nor that wonder which no Alexander or Caesar ever did the inriching of the Enemy by courtesies when the Souldiers wanted help nor the private intercourses and Parlies with the Fort which continually were held what they intended may be read in the success and upon due examination thereof they would not want their proofs For the last Voyage to Rochell there needs no observations it is so fresh in memory Nor will I make an inference or Corolory and all your own knowledge shall judge what truth or what sufficiency they expressed For the next the ignorance and corruption of our Ministers where can you miss of instances if you survey the Court if you survey the Countrey if the Church if the Cittie be examined if you observe the Bar if the Bench if the Courts if the shipping if the Land if the Seas All these will render you variety of proofs and in such measure and proportion as shews the greatness of our sickness that if it have not some speedy remedy our case is most desperate M r. Speaker I fear I have been too long in these particulers that are past and am unwilling to offend you therefore in the rest I shall be shorter and in that which concerns the impoverishing of the King no other arguments will I use then such as all men grant The Exchequer you know is empty the Reputation thereof gone the ancient Lands are sold the Jewels pawned the Plate ingaged the Debt still great almost all charges both ordinary and extraordinary born by Projects What poverty can be greater what necessity so great what perfect English heart is not almost dissolved into sorrow for the truth for the oppression of the Subject which as I remember is the next particuler I proposed It needs no demonstration the whole Kingdom is a proof and for the exhausting of our treasures that oppression speaks it what waste of our provisions what consumption of our ships what destruction of our men have been witness that Journey to Argiers Withness that with Mansfield Witness that to Cales Witness the next Witness that to Rees Witness the last I pray God we may never have more such witnessess Witness likewise the Pallatinate Witness Denmark Witness the Turks Witness the Dunkerkers Witness all what losses we have sustained how we are impaired in Munition in Ships in Men. It hath no contradiction we were never so much weakned nor had less hope how to be restored These M r. Speaker are our dangers these are they do threaten us and those are like that Troiane horse brought in cunningly to surprize us in these do lurk the strongest of our Enemies ready to issue on us and if we do not now the more speedily expell them these are the sign the invitation to others These will prepare their entrance that we shall have no means left of refuge or defence for if we have these Enemies at home how can we strive with those that are abroad If we be free from these no other can impeach us our antient English virtue that old Sparton valour cleared from these disorders being in sincerity of Religion once made friends with Heaven having maturity of Councels sufficency of Generals Incorruption of Officers opulency in the King Liberty in the People repletion in Treasures restitution of Provisions reparation of Ships preservation of Men. Our Antient English virtue thus rectefied I say will secure us and unless there be a speedy reformation in these I know not what hopes or expectations we may have These things Sir I shall desire to have taken into consideration That as we are the great Councel of the Kingdom and have the apprehension of these dangers we may truely represent them unto the King wherein I conceive we are bound by a treble Obligation of duty unto God of duty to his Majesty and of duty to our Countrey And therefore I wish it may so stand with the wisdom and Judgement of the House that they may be drawn into the body of a Remonstrance and therein all humbly expressed with a prayer unto his Majesty for the safety of himself and for the safetie of the Kingdom and for the safety of Religion That he will be pleased to give us time to make perfect inquisition thereof or to take them into his own wisdom and there give them such timely reformation as the necessity of the cause and his Justice doth import And thus S r. with a large affection and Loyalty to his Majesty and with a firm duty and service to my Countrey I have suddenly and it may be with some disorder expressed the weak apprehension I have wherein if I have erred I humbly crave your Pardon and so submit to the censure of the House A Report from the COMMITTEE for Trade 4. June 1628. IN all other parts of Christendom there is great care with much cost to raise Forts and walled Towns onely for defence in time of War and great charge to make Engines and Weapons to offend the Enemy of little or no use in time of Peace Whereas in England the Rampires and Bulwarks and Ships and those also for offence of the Enemy our best Weapons are Engines And this also in time of Peace best instruments of our Wealth even as usefull as the Plough or Cart. But our shipping and our strength of Marriners within these three years is much decayed in general But the decay of Trade through disturbance of the Merchant by new Impositions and troubles for want of a certain and well established book of Rate and Bill of Tonnage and Poundage used heretofore to be given for guarding of the Seas By reason that the Seas are not guarded so That our Coasts are infested Our Fishermen driven from their Trade And all our Coasting smaller shipping so disturbed or taken that in all parts of the Kingdom Sea-faring men give over and the Seas are forsaken More particularly THat of our shipping of countenance of 100. Tuns or upwards in the last three years there have been decayed cast away and taken by the Enemy between Dover and New-Castle 248. great ships and with them proportionable number of Marriners besides great and inestimable losses in less Vessels The causes whereof are diverse disorders in the late mannaging of Sea Affairs before the imployment of Ships and Men in his Majesties service FIâ—st By pressing and taking up Merchants ships laden and bound out upon Voyages Secondly By too frequent and general imbarques of shipping Thirdly By taking out of ships unseasonably and and unreasonable numbers their best men so forcing them ill Mann'd to Winter Voyages c. Fourthly By giving too little allowance of Wages and 2. shill. per Tun for Fraight of ships so taken being but half that which Marchants allow
that howsoever we know your Majesty doth with your Soul abhoâ— that any such thing should be imagined or attempted yet there is â— general fear conceived in your people of some secret working and combination to introduce into this your Kingdom innovacion and change of our holy Religion more precious to us then our lives and what ever this World can affoard Our fears and jealousies herein are not meerly conjectural but arising out of such certain and visible effects as may demonstrate a true and real cause For notwithstanding the many good and wholsom Laws and provisions made to prevent the increase of Popery within this Kingdom and notwithstanding your Majesties gracious and satisfactorie answer to the Petition of both Houses in that behalf presented unto your Majestie at Oxford we finde there hath followed no good execution or effect but on the contrary at which your Majestie out of the quick sence of your own Religious heart cannot but be in the highest measure displeased those of that Religion do finde extraordinarie favours and respects in Court from Persons of great quality and power there unto whom they continually resort and in particuler to the Countess of Buckingham who her self openly professing that Religion is a known favourer and supporter of them that do the same which we well hoped upon your Majesties answer to the aforesaid Petition of Oxford should not have been permitted nor that any of your Majesties Subjects of that Religion or justly to be suspected should be entertained in the service of your Majesty or of your Royal consort the Queen some likewise of that Religion have had Honours Offices and places of Command and Authority lately conferred upon them But that which striketh the greatest terrour into the hearts of your Loyal Subjects concerning this point is That Letters of stay of Legal proceedings against them have been procured from your Majesty by what indirect means we know not and Commissions under the great Seal granted and executed for compositions to be made with Popish Recusants with inhibitions and restraints both to the Ecclesiastical and Temporal Courts and Officers to intermeddle with them which is conceived to amount to no less then a toleration odious to God full of dishonour and extream disprofit to your Majestie of great scandal and grief to your good people and of apparent danger to the present estate of your Majestie and of this Kingdom their numbers power and insolencies dayly increasing in all parts of your Kingdom and in special about London and the Suburbs thereof where exceeding many families of them do make their aboad and publickly frequent Mass at Denmark House and other places and by their often meetings and conferences have opportunities of combining their counsels and strength together to the hazard of your Majesties safety and the State and especially in these doubtfull and calamitous times And as our fear concerning change or subversion of Religion is grounded upon the dayly increase of Papists the open and professed enemies thereof for the reasons formerly mentioned so are the hearts of your good Subjects no less perplexed when with sorrow they behold a dayly growth and spreading of the faction of the Arminians that being as your Majestie well knows but a cunning way to bring in Popery and the professors of those opinions the common disturbers of the Protestant Churches and Incendiaries in those States wherein they have gotten any head being Protestants in shew but Jesuits in opinion and practise which caused your royall Father with so much pious wisedom and ardent zeal to endeavour the suppressing of them as well at home as in the neighbour Countries And your gratious Majestie imitating his most worthy example hath openly and by your proclamation declared your mislike of those persons and of their opinions who notwithstanding are much favoured and advanced not wanting friends even of the Clergy near to your Majestie namely Doctor Neal Bishop of Winchester and Doctor Lawd Bishop of Bath and Wells who are justly suspected to be unsound in their opinions that way And it being now generally held the way to preferment and promotion in the Church many Scholars do bend the course of their studies to maintain those Errors Their books and opinions are suffered to be printed and published and on the otherside the impression of such as are written against them and in defence of the Orthodoxall Religion is hindered and prohibited And which is a boldness almost incredible this restraint of Orthodox books is made under colour of your Majesties formerly mentioned proclamation the intent and meaning whereof we know was quite contrary And further to increase our fears concerning Innovation in Religion we finde that there hath been no small labouring to remove that which is the most powerfull means to strengthen and increase our own Religion and to oppose both these which is the diligent teaching and instructing the people in the true knowledge and worship of Almighty God and therefore means have been sought out to depress and discountenance pious painfull and Orthodox preachers and how conformable soever and peacefull in their disposition and carriage they be yet the preferment of such is opposed and insteed of being incourraged they are molested by vexatious courses and pursuites and hardly permitted to lecture even in those places where are no constant preaching Ministers whereby many of your good people whose souls in this case we beseech your Majestie to comiserate are kept in ignorance and are apt to be easily seduced to error and superstition It doth not a little also increase our dangers and fears this way to understand the miserable condition of your Kingdom of Ireland where without controul the Popish Religion is openly professed and practised in every part thereof Popish Jurisdiction being there generally exercised and avowed Monastries Numeries and other superstitious houses newly erected redified and replenished with men and women of several orders and in a plentifull manner maintained in Dublin and most of the great Towns and divers other places of the Kingdom which of what ill consequence it may prove if not seasonably exprest we leave to your Majesties wisedom to judge But most humblie beseech you as we assure our selves you will to lay the serious consideration thereof to your royal and pious â—eart and that some timelie course may be taked for redress therein And now if to all these your Majestie will be pleased to add the consideration of the circumstance of time wherein these courses tending to the destruction of true Religion within these your Kingdoms have been taken here even then when the same is with open force and violence prosecuted in other countries and all the reformed Churches of Christendom either depressed or miserably diâ—tressed we humblie appeal unto your Majesties Princely Judgment whether there be not just ground of fear that there is some secret and strong cooperating here with the enemies of our Religion abroad for the utter extirpation thereof And whether of these
in the Tower the present warrants being served but nine last and forty pound in all which we tremble to think of And that notwithdanding this extream scarcitie of powder great quatities have been permitted to be sould out of your Majesties store to particular persons for private gain whereof we have seen a certificate of fortie six last sould since the fourteenth of Ianuary last And your Majesties store being unfurnished of powder which by a contract made with Mr. Evelin by the advise of the Lords in Parliament ought to be supplied monthly with twentie last at the rate of 3 l. 10. s. 10. d. the barrel Your Majestie hath been forced to pay above 7. l. a barrel for powder to be brought from beyond the Seas for which purpose 12400. l. hath been imprest to Mr. Burlamacho the last year and that powder not so good as that which by contract your Majestie should have of your own by one third part All which are most fearfull and dangerous abuses But what the poverty weakness and miserie your Kingdom is now grown unto by decay of trade by destruction and loss of ships and Marriners within these three last years we are almost afraid to declare And could we have been assured that your Majesty should any other way have had a true information thereof we should have been doubtfull to have made our weakness and extreamity of misfortune in this kinde to appear But the importunate and most pittifull complaints from all the parts of your Kingdom near adjoyning to the sea in this kinde would rend we think the strongest heart in the world with sorrow And the sence we have of the miserable condition your Kingdoms is in by reason thereof especially for that we see no present possible means being now shortly to end this session how to help the same adds such a weight of grief unto our sadd thoughts as we have no words to express it But for your Majesties more exact reformation herein we beseech you be pleased to peruse the Kallandar of particulars which with this our Remonstrance we most humbly present unto your Majestie One reason amongst many others of this decay of trade and loss of ships Marriners is the not guarding seas the Regalitie whereof your Majesty hath now in a manner wholly lost and that wherein a principal part of the honour and safetie of this Kingdom heretofore consisted in having the absolute command of the seas is now so neglected that the Town of Dunkerk doth so continuallie beat robb and spoil your Subjects that we can assure your Majestie if some present and effectual remedie be not forthwith provided the whole trade of this Kingdom the shipping and Marriners belonging thereunto will be utterly lost and consumed The principal cause of these Evils and Dangers we conceive to be the excessive power of the Duke of Buckingham and the abuse of that power And we humbly submit it to your Majesties Excellent wisdom whether it can be either safe for your self or your Kingdom that so great power as rests in him both by sea and land should be in the hands of any one Subject whatsoever And as it is not safe so sure we are it cannot be for your service it being impossible for any one man to mannage so many and so weightie affairs of the Kingdom as he hath undertaken besides the ordinary duties of those great offices which he holds some of which well performed would require the time and industrie of the ablest man both for Councel and action that your whole Kingdom could afford especially in these times of common danger And our humble desire further is that your most Excellent Majestie would be pleased to take it into your Princely consideration whether in respect the same Duke hath so abused his power it be safe for your Majestie and your Kingdoms to continue him either in his great offices of trust or in his place of nearness and Councel about your sacred person And thus in all humility aiming at nothing but the honour of Almightie God the maintenance of his true Religion the safetie and happiness of your most Excellent Majestie and the preservation and prosperitie of this Church and Common-Wealth we have endeavoured with faithfull hearts and intentions and in discharge of the dutie we owe to your Majestie and our Countrey to give your Majestie a true representation of our present dangers and pressing calamities which we humbly beseech your Majestie gratiously to accept and to take the same to heart accompting the safety and prosperity of your people your greatest happiness and their love your richest treasure A rufull and lamentable spectacle we confess it must needs be to behold these ruines in so fair a house so many-diseases and almost every one of them deadly in so strong and well tempered a bodie as this Kingdom latelie was yet we will not doubt but that God hath reserved this honour for your Majestie to restore the safety and happiness thereof again as a work worthy so Excellent a Prince For whose long life and true felicity we dayly pray and that your fame and never dying glory may be continued to all succeeding generations A Kallender or Schedule of the shipping of this Kingdom which have been taken by the enemy and lost at sea within the space of three years last past Taken by the Enemy Ships of the burthen of 100. Tun and upwards belonging to London Ipswich Newcastle Hull Yarmouth Aldbâ—â—ough The ships 77 and furniture vallued at 62000. l. Cast away Ships of the same burthen belonging to the same places 133 The ships and furniture vallued at 100000. l. Taken and cast away Ships of the like burthen belonging to Lynne Bristol Dartmouth Portsmouth Southampton Waymouth Exceter Shoram Harwich Dâ—ver Woodbridge Sandwich 50 The ships and furniture vallued at 35000. l. Some 260 ships vallued at 197000. l. Taken by the Enemy Ships of 100 Tonne belonging to London Newcastle Hull Boston Yarmouth Lynne Aldborough Dover The County of Suffex Pool Southampton Weymouth Exceter Dartmouth Bristol Iersey Scarbrâ—ugh Soul and Dunwich 130 The vallued not certified Touching the Ports and Towns of Portsmouth Westchester Milfordhaven Bridgwater Bastable Faymouth Foy Lynne Regis Isle of Whight Colchester Iersey Low Whitby Bridlington Blackney Wels. Orford Brightling-sea Rochester and divers other small Ports great losses whereof no particular is given The goods and Merchandizes lost in the shipping aforesaid and in Flemish bottoms fraighted by English Merchants to be imported into this Kingdom are of exceeding great vallue the certainty whereof cannot now be expressed Onely one company of Merchants Trading to the Eastwards from London Ipswich Hull and New-castle in half this space of time have lost one hundred thousand pounds taken by the Enemy A Great Number of Marriners also proportionable to this loss of shipping have been taken and destroyed by the Enemy and cast away through disorderly pressing and forcing upon Winter voyages besides many more by reason of their
Duke could alter it 4. That when the Ordinance were shipt at S. Martins the Duke caused the Souldiers to go one that they might be destroyed 5. That the Duke said he had an Army of 16000. Foot and 1200. Horse 6. That King Iames his bloud and Marquess Hambletons with others cries out for vengeance to Heaven 7. That he could not expect any thing but ruine of this Kingdom 8. That Prince Henry was poysoned by Sir Thomas Overbury and he himself served with the same sawce and that the Earl of Sommerset could say much to this 9. That he himself had a Cardinal to his Uncle or near Kinsman whereby he had great intelligence A Privy Seal for the transporting of Horses 30 January 3. CAROLâ— CHarles by the grace of God King of England Scotland France and Ireland defendor of the faith c. To the Treasurer and under Treasurer of our Exchequer for the time being greeting We do hereby will and command you out of our Treasury remaining in the receipt of the said Exchequer forthwith to pay or cause to be paid unto Phillip Burlamachi of London Merchant the summ of 30000 l. to be paid by him over by Bill of Exchange unto the Low-Countries and Germany unto our trustie and well be loved Sir William Balfoore Knight and Iohn Dalber Esquire or either of them for levying and providing certain numbers of Horse with Arms for Horse and Foot to be brought over into this Kingdom for our service 〈◊〉 For the levying and transporting of a 1000 Horse 15000 l. for 5000 Muskets 5000 Corslets 5000 Pikes 10500 l. and for 1000 Curasiers compleat 200 Corslets and 200 Carbines 4500 l. Amounting in the whole to the said summ of 30000 l. And this our Letter shall be your sufficient warrant and discharge in this behalf Given under our privy Seal at our Palace of Westminster 30. of Ianuary in the third year of our raign The Commission to the Lords and others of the privy Councel concerning the present raising of money CHARLES by the grace of God King of England Scotland France and Ireland defender of the faith c. To Sir Thomaâ— Coventry Lord Keeper of the great Seal of England Iames Earl of Marlburgh Lord Treasurer Henry Earl of Manchester Lord President of the Councel Edward Earl of Worcester Lord Keeper of the privy Seal George Duke of Buckingham our high Admiral of England William Earl of Pembroke Lord Steward of our Houshould Phillip Earl of Mongommery Lord Chamberlain of our Houshould Theophilus Earl of Suffolk Edward Earl of Dorcet William Earl of Salisbury Thomas Earl of Exceter Iohn Earl of Bridgwater Iames Earl of Carlile Henry Earl of Holland William Earl of D. George Earl of Totnes Sir George Hay Knight Lord Chaunceller of Scotland William Earl of Moâ—ton Thomas Earl of Kelly Thomas Earl of Melros Edward Viscount Conway one of our principall Secritaries of State Edward Viscount Wimbleton Oliver Viscount Grandison Henry Viscount Falkland Lord Deputy of Ireland To the Lord Bishop of Winchester William Lord Bishop of Bath and Wells Fulk Lord Brook Dudly Lord Carleton vice Camberlain of our Houshould Sir Thomas Edmonds Treasurer of our Houshould Sir Iohn Savill Comptroller of our Houshould Sir Robert Nawton Master of our Court of Wards Sir Iohn Cooke one of the principal Secritaries of our State Sir Richard Weston Chancellor and under Treasurer of our Exchequer Sir Iulius Caesar Master of the Roll. Sir Humfry May Knight Chancellor of our Dutchy of Lancaster GREETING WHereas the present Conjuncture of the pressing affairs of Christendom and our own particular interest in giving assistance to our oppressed Allies and for the providing for the defence and safety of our own dominions And people do call upon us to neglect nothing that may conduce to those good ends And because monies the principall sinews of War and one of the first and chiefest in all great preparations and actions necessary to be provided in the first place and we are carefull the same may be raised by such ways as may best stand with the State of our Kingdoms and Subjects and yet may answer the pressing occasions of the present times We therefore out of the experience we have had and for the trust we repose in your wisdoms fidelities and dutifull care of your services and for the experience you have of all great causes concerning us and our State both as they have relation to forraign parts abroad and as to our Common-Wealth and People at home Ye being Persons called by us to be of our privy Councel have thought fit amongst those great and important matters which somuch concern us in the first and chiefest place to recommend this to your â—peciall care and dilligence And we do hereby authorize and appoint and stricktly will and require you speedily and seriously to enter into consideration of all the best and speediest ways and means yee can for raising of money for the most important occasions aforesaid which without extreamest hazard to us our dominions and people and to our friends and Allies can admit of no long delay The same to be done by imposition or otherwise as in your wisdom and best Judgments ye shall finde to be most convenient in a case of this inevitable necessity wherein form and circumstance must be dispensed with rather then the substance be lost or hazarded And herein our will and pleasure is that you or as many of you as from time to time can be spared from attendanc upon our Person or other our necessary services do use all dilligence by your frequent meetings and serious consultations and when you have brought any thing to maturity ye make report thereof unto us and advertise us of those things ye shall either resolve upon or thinck fit to represent unto us for the advancement of this great service which with the greatest affection we can we recommend to your best care and Iudgement Whereof you must not fail as you tender our honour and the honour and safety of our Dominions and People and for the doing hereof these presents shall be to you and every of you a sufficient warrant In witness whereof we have caused these our Letters to be made Letters Patents Witnes our selfe at Westminster the last day of February in the third yeare of our Raigne Per ipsum Regem Articles to be propounded to the Captains and Masters as well English as French touching the service in hand at ROCHEL 4. May 1628. the ships rideing before the Town 1. WHether in your opnion and judgments by the means and strength we have the Floates and Pallizadoes may be forced and the entrance into the Town may be thereby made for the victuallers 2. If you shall think it fit what in your opinions will be the best and readiest way to open the same 3. Whether you hold it fit to send in the victuallers at the same instant together with the fire ships and barks considering that if it should not take
whether there were not some Copies printed without additions he answered there were some but they were suppressed by some warrant Sir Iohn Elliot DEsired some clearer satisfaction might be made and that he might answer directly by what warrant Whereupon he was called in again who said he did not remember the particular but sure he was there was a warrant Tuesday 22. ONe Mr. Roules a Merchant and a Member of the House informed the House that his goods were seized by the Customers for refusing to pay Custome by them demanded although he told them he would pay what was adjudged by Law Whereupon Sir Robert Phillips spake as followeth Sir Robert Phillips BY this information you see the unfortunateness of the times and how full time it was that this Assembly should meet to serve his Majesty and to preserve our selves and I am confident we come hither with fullness of both and all shall conduce to a happy conclusion and to the King's honour and our own safety Great and weighty things wound deep Cast your eyes which way you please and you shall see violations on all sides look at the liberty of the subject look on the priviledge of this House let any say if ever he saw the like violation by inferiour Ministers that over-do their command nay they say if all the Parliament were in you this would we do and justifie If we suffer the liberty of this House to wither out of fear or complemeâ—â— we give a wound to the happiness of this Kingdom Here the course of justice was interrupted and order in the Exchequer was made for stay of the goods since here is a seizure upon the approach of Parliament of goods amounting to 5000. l. for a pretended duty of 200 l. In the sight of King Iames by reason of the sickness that then was the Parliament was prorogued and then there was some boldness to take this Tonnage and Poundage for there was no right to demaund it Let us proceed with affection of duty to make up breaches let a Committee consider of these proceedings Mr. Littleton HEre Mr. Littleton made a short speech to second him and all to the same purpose but for brevity sake I omit it M. Littleton we have had good admonitions and have followed them we have moderation preached unto us in Parliament and we follow I would others did the like out of Parliament Let the parties be sent for that violated the liberties of the Parliament and have their doom This Speech was occasioned by Setretary Cook who in his Speech desired moderation might be used Sir Iohn Elliot I See by this Relation what cause we have to be tender of the liberty of the Kingdom and this House and yet withall to return that moderation as to give satisfaction to the world that our hearts are fixed to serve his Majesty and to free us from ofter of jealousie 3 Things are involved in this complaint First the Right of particular Gentlemen Secondly the Right of the Subject Thirdly the Right and priviledge of this House Let the Committee consider of the 2 former but for the violation of the liberty of this House let us not do less then our fathers Was ever the information of a Member committed to a Committee Let us send for the parties Is there here a bare denial of the restistution of the goods was it not also said that if all the Parliament were contained in him they would do as they did Let them be sent for It was ordered that the Officers of the Custome-house should be sent for Mr. Selden REported from the Committee concerning the printing of the Petition of Right that there were printed 1500 without any addition at all which were published in the time of the last Parliament but since the Parliament other Copies have been printed and these supprest and I made waste paper which the Printer did as he said by command from Mr. Attorny which he received from his Majesty and the Printer further said that the Attorney was with the Lord Privy Seal at White-Hall and there delivered unto the Printer sundry papers with diverse hands to them and on the backside was endorsed thus We will command you that these copies be printed Friday 23. HIs Majesty sent the House a Message to this effect That he willed them to cease from the former debate of Tonnage and Poundage till the next day in the after-noone and that he would speak with them the next day in the after-noone at White-Hall in the Banqueting-house Saturday 24. THe King made a Speech to that purpose Munday 26. MR. Walter did inform the House that diverse ships were laden with corn for Spain whereupon a Committee was appointed to inquire of the trading into Spain and to other enemies transporting corn and other Munition thither it is also ordered that some of the prime Councel should presently move the King about stay of the ships Mr. Secretay Cook then moved that the Bill of Tonnage and Poundage might be read and after some debate it was diverted and they fell upon points of Religion the which Mr. Rowse did first mention See his former Speech at large Sir Francis Beamor IF Religion be not a Rule to all our actions what pollicy can we have If God fight not our battailes the help of man is in vain In our defect the cause thereof is our defect in religion and the sin is Idolatry and Popery Papists encrease now more than ever they did neither do they want their Priests and Masses nay his Majesties name is used to stop proceedings against Papists and that since the Parliament contrary to his Majesties goodness and publick profession and contrary to his many proclamations and many instructions to the Judges and whatsoever is done in the country is undone above Mr. Kirton IF ever now it is time to speak We see what men are raised to preferment if we look not to it I shall more fear it than the Spanish Armado or the loss of the Sound Mountague was here questioned We see the King to all our comforts is right it comes not from him but some that are too near him are too busie in this The ambition of the Clergy brought these stories We see pulpits are full of them we see some that wear white and black 't is more than Mountague let us bend our wits to reforme them Mr. Sherland WE have a Religion that is worth the loving with all our hearts it was setled by the bloud of Martyrs and kept by miracles To have our noses wiped of this would grieve any heart more to see our Religion go away and designes made of it and Arminianism still to encrease as it doth If do admi I do perswade my self the greater part of the Clergy Nobility and Gentry are firm but it is the desire of some to labour to bring in a new faction of their own and so to drop into the ears of his Majesty that those that oppose them oppose
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 of explanation we shall provide onely that the cause ought to be expressed upon the return of the Habeas Corpus then out of the words of the Statute it will necessarily be inferred that before the return of the Habeas Corpus the cause need not to be expressed because the Statute hath appointed the time of the expression of the cause And it will be construed that if the makers of the Statutes had intended that the cause should have been â—â—ener shewen they would have provided for it by the Act and then the Act which we term an Act of explanation will be an Act of the abridging of Magna Charta and the rest of the Statutes Or if this Act do not make the commitment without expressing the cause to be Lawfull yet it will clearly amount to a tolleration of the commitment without expressing the cause untill the Habeas Corpus or to a general or perpetual dispensation beginning with and continuing as long as the Law it self And in my understanding the words in this intended Law that no Freeman can be committed without cause can no wayes advantage us or satisfie this Objection for till the return of the Habeas Corpus he that commits is Judge of the cause or at least hath a license by this Law till that time to conceal the cause and the Goaler is not subject to any action for the detaining of the Prisoner upon such command for if the Prisoner demanded the cause of his inprisonment of the Goaler It will be a safe answer for him to say that he detains the Prisoner by Warrant and that it belongs not unto him to desire those which commit the Prisoner to shew the cause untill he returns the Habeas Corpus and if the Prisoner be a Suitor to know the cause from those that committed him it will be a sufficient answer for them to say they will express the cause at the Return of the Habeas Corpus In this cause there will be a wrong because the commitment is without cause expressed and one that suffers that wrong viz. the party imprisoned and yet no such wrong doer but may excuse if not justifie himself by this Law In making of Laws we must consider the inconveniences which may ensue and provide for the prevention of them lex caveat de futuris I have taken into my thoughts some inconveniences which I shall expose to your considerations not imagining that they can happen in the time of our gracious Soveraign but in an Act of Parliament we must provide for the prevention of all inconveniences in future times 1. If a man be in danger to be imprisoned in the beginning of a long vacation for refusing to pay some small summe of money and knows that by this Act he can have no inlargement till the Return of the Habeas Corpus in the Term and that the charge of his being in Prison and of his inlargement by Habeas Corpus will amount to more then the summe he will depart with money to prevent his imprisonment or to redeem himself thence because he cannot say any man doth him wrong untill the Return of the Habeas Corpus the Law resolves a man will pay a Fine rather then be imprisoned for the Judgement which is given when one is fined is Ideo Capiatur and the highest execution for dept is a Capias ad satisfaciendum the Law presuming any man will depart with his money to gain his Liberty and if the Prisoner procure an Habeas Corpus and be brought into the Kings-bench by virtue of it yet the cause need not to be then expressed The provision of this Law being that if no cause be then expressed he shall be bayled and no cause being shewen upon the Return of the Habeas Corpus yet may be pretended that at the time of his Commitment there were strong presumptions of some great offence But upon examination they are cleared or it